Ex Parte Application

Cal. Super. - 6th Dist.January 30, 2020

Phillip G. Vermont, SBN 132035 Dominique Jacques, SBN 290036 RANDICK O'DKA TOOLIATOS VERMONT A SARGENT, LLP 5000 Hopyard Road, Suite 225 Pleasanton, California 94588 Telephone: (925) 460-3700 Facsimile: (925) 460-0969 Attorneys for Plaintiff, First Point Oakmead LLC, a Delaware limited liability company, 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ll 12 13 14 15 16 17 18 First Point Oakmead LLC, a Delaware limited liability company, Plaintiff, vs. MiaSole, a California corporation, MiaSole Hi-Tech Corp., a California corporation, and DOES I to 25, Defendants. Case No.: 20CV362450 EX PARTE APPLICATION TO HAVE MOTION FOR SUMMARY JUDGMENT HEARD FOR PRE-COVID-19 UNLAWFUL DETAINER [UNLAWFUL DETAINER - COMMERCIAL] Filing Date: January 30, 2020 Original Trial Date: March 19, 2020 Continued Trial Date: June 11, 2020 Continued Trial Date again: August 6, 2020 19 20 21 22 23 24 25 26 27 28 I. STATEMENT OF FACTS This action arises from pending pre-COVID-19 commercial unlawful detainer action, which was filed on January 30, 2020, by plaintiff, First Point Oakmead LLC, a Delaware limited liability company ("Plaintiff') against MiaSole, a California corporation and MiaSole Hi-Tech Corp., a California corporation. The unlawful detainer action is based on Defendant's failure to pay an estimated $689,560.09 in rent due through September 2019. A default was entered against MiaSole on or about March 2, 2020, and a trial date of March 19, 2020, was set for trial against MiaSole Hi-Tech Corp. ("Defendant"). No payments have been received by Plaintiff since well EX PARTE APPLICATION TO HAVE MOTION FOR SUMMARY JUDGMENT HEARD FOR PRE-COVID-19 UNLAWFUL DETAINER - CASE NO. 20CV362450 o3547 2d Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/26/2020 11:53 AM Reviewed By: S. Vera Case #20CV362450 Envelope: 4515500 20CV362450 Santa Clara - Civil S. Vera prior to that date. Currently, over $2.600.000.00 in rent and holdover damages is owed due to the significant delays in this matter, as detailed below. On or about March 14, 2020, a few days before the scheduled trial date, this Court ceased its operations due to the COVID-19 pandemic. On or about March 17, 2020, this Court rescheduled the trial date for June 11, 2020. On or about March 24, 2020, the Santa Clara County Board of Supervisors adopted Urgency Ordinance NS-9.287, in accordance with Governor Gavin Newsom's Executive Order N-28-20, which barred eviction of commercial tenants whose eviction would result from non- 10 payment of rent due specifically to a substantial loss of income related to the COVID-19 pandemic. This did not bar evictions unrelated to the COVID-19 pandemic, On or about April 6, 2020, the Judicial Council adopted various emergency rules. 12 13 Emergency Rule I bars the issuance of summons in unlawful detainer matters and entry of defaults. It further effectively continued all unlawful detainer trial dates for a period of 60 days. However, the Judicial Council did not bar previously pending unlawful detainer matters 15 from proceeding. On or about April 6, 2020, Plaintiff attempted to submit its Motion for Summary 17 Judgment which would effectively resolve this matter without the expenditure of significant 18 court resources, However, due to the court closures, the court was not providing available dates 19 for motions at the time of filing, either online or via telephone. Therefore, the Motion was 20 submitted without a mutually agreed upon date. The Motion was rejected on the basis that no pleadings in unlawful detainer matters were being allowed. On or about May 6, 2020, this Court 22 rescheduled the trial on this matter for August 6, 2020. 23 On or about May 26, 2020, the Santa Clara County Board of Supervisors adopted 24 25 Urgency Ordinance NS-9.288, which effectively extended Urgency Ordinance NS-9.287 until July 28, 2020. On or about June 2, 2020, Urgency Ordinance NS-9.289 additionally amended 26 Urgency Ordinance NS-9.287, but such changes do not impact this current matter. 27 28 EX PARTE APPLICATION TO HAVE MOTION FOR SUMMARY JUDGMENT HEARD FOR PRE-COVID-19 UNLAWFUL DETAINER - CASE NO. 20CV362450 dda47 2.docx On June 10, 2020, based on the current Ordinances, Rules and Orders in place, Plaintiff resubmitted its Motion for Summary Judgment with this Court. However, the Motion was deemed rejected on June 22, 2020 "Per Emergency Rule re: UD issued by Judicial Council." There appears to be no Emergency Rule in effect that would bar the filing of Plaintiff s Motion. Notably, it is well past the mandatory 60-day continuance established in the Emergency Rule I, as trial was requested by Plaintiff on March 2, 2020, and trial was originally set for March 19, 2020. Additionally, the instant matter is unrelated to the COVID-19 pandemic and stems from Defendant's failure to pay rent since before September 2019. Therefore, Plaintiff hereby files 10 this application to have its Motion for Summary Judgment heard as soon as possible as it is not otherwise barred, nor the matter stayed, pursuant to any law in effect. II. LAW 12 A. THE CURRENT ORDERS DO NOT JUSTIFY FURTHER DELAY. 13 14 On May 29, 2020, Governor Gavin Newsom extended Executive Order N-28-20 by an additional 60 days, to July 28, 2020. Executive Order N-28-20 provides that when an eviction is 15 16 for nonpayment of rent caused by COVID-19 and is documented, such evictions shall be suspended until the expiration of the Order. Santa Clara County Board of Supervisors mirrored 17 this Order in its Urgency Ordinance NS-9.288. Both the Order and the Ordinance requires that 18 19 20 21 the tenant demonstrate through documentation that the eviction resulted from the COVID-19 pandemic. A copy of Executive Order N-28-20 and Urgency Ordinances NS-9,287, NS-9.288, and NS-9.289 are attached hereto and incorporated herein by reference as Exhibit A. Here, Defendant's eviction stems from Defendant's failure to pay rent well in advance of 22 23 24 even the earliest signs of the COVID-19 pandemic, originating before September 2019. Defendant's eviction is not barred by this County based on the facts in this matter. It has now been 114 days since Plaintiff requested a trial in this matter and 97 days since trial was originally 25 26 scheduled to take place, well past the 60 day minimum continuance required by Emergency Rule 1. Plaintiff seeks to resubmit its Motion for Summary Judgment and have it filed and set 27 28 for hearing, allowing for quick resolution of this matter and clearance of this matter from this 3 EX PARTE APPLICATION TO HAVE MOTION FOR SUMMARY JUDGMENT HEARD FOR PRE-COVID-19 UNLAWFUL DETAINER - CASE NO. 20CV362450 463547 2.docx Court's docket. There appears to be no bar on filings in unlawful detainers that preexist the COVID-19 pandemic. Based on the current laws in place, there appears to be no reason to justify further rejection or delay of Plaintiff s Motion for Summary Judgment. B. STATUTE SUPPORTS THE EARLIEST RESOLUTION OF UNLAWFUL DETAINER MATTERS POSSIBLE. 10 12 13 14 15 17 18 19 20 California statute favors the expedient resolution of unlawful detainer matters. Code of Civil Procedure ("CCP") section 1170.5 states that the trial of an unlawful detainer proceeding shall be held not later than the 20'" day following the date that the request to set the time of the trial is made. (Emphasis added.) The court may only extend the period for trial upon the agreement of all parties. (CCP )1170.5(b).) If the trial is not held within the specified timeframe, the court, upon finding that there is a reasonable probability that the plaintiff will prevail in the action, shall determine the amount of damages, if any, to be suffered by the plaintiff by reason of the extension, and shall issue an order requiring the defendant to pay that amount into court as the rent so long as the defendant remains in possession pending the termination of the action. (CCP )1170.5(c).) If the defendant fails to make a payment ordered by the court, trial of the action shall be held within 15 days of the date payment was due. (CCP $ 1170.5(d),) While Emergency Rule 1(d) states that a trial date in an unlawful detainer matter shall not occur any earlier than 60 days from the initial date of trial, the 60'" day since the initial trial date was May 18, 2020. Therefore, the delay required to satisfy Emergency Rule 1(d) has already been met. 21 22 23 25 Again, despite Plaintiff's right to a timely trial by statute and no law or ordinance in effect that prevents the proceeding of an unlawful detainer matter that preexisted the COVID-19 pandemic, Plaintiff merely requests that the Court schedule and consider its Motion for Summary Judgment, which Plaintiff believes will resolve this dispute. 26 27 28 EX PARTE APPLICATION TO HAVE MOTION FOR SUMMARY JUDGMENT HEARD FOR FRE-COVID-19 UNLAWFUL DETAINER - CASE NO. 20CV362450 463547 2 doc@ 1 III. CONCLUSION There is currently no order, ordinance or rule in place that justifies the further rejection or delay of Plaintiff s Motion for Summary Judgment. Therefore, Plaintiff respectfully requests that its Motion for Summary Judgment be heard in a timely manner before this Court. Plaintiff requests a hearing date in the second or third week of July 2020 for this Motion to be heard. 10 Date: June 26, 2020 TOOLIATOS GENT, LLP l&Ige hillip $ . Vermont 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EX PARTE APPLICATION TO HAVE MOTION FOR SUMMARY JUDGMENT HEARD FOR PRE-COVID-19 UNLAWFUL DETAINER - CASE NO. 20CV362450 463u7 2.dos@ 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT A 28 EX PARTE APPLICATION TO HAVE MOTION FOR SUMMARY JUDGMENT HEARD FOR PRE-COVID-19 UNLAWFUL DETAINER - CASE NO. 20CV362450 463547 2doex A \OOOQQUI 1o 12 ' I I 6 O OTI U - VID- F . _2.d c EXECUTIVE DEPARTMENT STATE OF CALIFORNIA EXECUTIVE ORDER N-28-20 WHEREAS on March 4, 2020, I proclaimed a State of Emergency to exist in California as a result of the threat of COVID-19; and WHEREAS despite sustained efforts, the virus remains a threat, and further efforts to control the spread of the virus to reduce and minimize the risk of infection and otherwise mitigate the etfects of COVID-19 are needed; and WHEREAS the economic impacts of COVID-19 have been significant, and could threaten to undermine Californians'ousing security and the stability of California businesses; and WHEREAS many Californians are experiencing substantial losses of income as a result of business closures, the loss of hours or wages, or layoffs related to COVID-19, hindering their ability to keep up with their rents, mortgages, and utility bills; and WHEREAS Californians who are most vulnerable to COVID-19, those 65 years and older, and those with underlying health issues, are advised to self-quarantine, self-isolate, or otherwise remain in their homes to reduce the transmission of COVID-19; and WHEREAS because homelessness can exacerbate vulnerability to COVID-19, California must take measures to preserve and increase housing security for Californians to protect public health; and WHEREAS local jurisdictions, based on their particular needs, may therefore determine that additional measures fo promote housing security and stability are necessary to protect public health or to mitigate the economic impacts of COVID-19; and WHEREAS local jurisdictions may also determine, based on fheir particular needs, that promoting stability amongst commercial tenancies is also conducive to public health, such as by allowing commercial establishments to decide whether and how to remain open based on public health concerns rather than economic pressures, or to mitigate the economic impacts of COVID-19; and WHEREAS in ortrtltion tn these ouhlic health benefits. state and local WHEREAS many utility providers, public and private, covering electricity, gas, water, and sewer, have voluntarily announced moratoriums on service disconnections and late fees for non-payment in response to COVID-19; and WHEREAS many telecommunication companies, including internet and cell phone providers, have voluntarily announced moratoriums on service disconnections and late fees for non-payment in response to COVID-19; NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the State Constitution and statutes of the State of California, and in particular, Government Code sections 8567 and 8571, do hereby issue fhe following order to become effective immediately: IT IS HEREBY ORDERED THAT: 1) The time limitation set forth in Penal Code section 396, subdivision (f), concerning protections against residential eviction, is hereby waived. Those protections shall be in effect through May 31, 2020. 2) Any provision of state law that would preempt or otherwise restrict a local government's exercise of its police power to impose substantive limitations on residential or commercial evictions as described in subparagraphs (i) and (ii) below-including, but not limited to, any such provision of Civil Code sections 1940 et seq. or 1954.25 et seq.-is hereby suspended to the extent that it would preempt or otherwise restrict such exercise. This paragraph 2 shall only apply to the imposition of limitations on evictions when: (i) The basis for the eviction is nonpayment of rent, or a foreclosure, arising out of a substantial decrease in household or business income (including, but not limited to, a substantial decrease in household income caused by layoffs or a reduction in the number of compensable hours of work, or a substantial decrease in business income caused by a reduction in opening hours or consumer demand), or substantial out-of-pocket medical expenses; and (ii) The decrease in household or business income or the out-of-pocket medical expenses described in subparagraph (i) was caused by the COVID-19 pandemic, or by any local, state, or federal nnuc mrna nt rwcnnncn tn C AVID-19 nnrt ic occupation thereof, to which a local government has imposed a limitation on eviction pursuant to this paragraph 2, and only to the extent of the limitation imposed by the local government. Nothing in this Order shall relieve a tenant of the obligation to pay rent, nor restrict a landlord's ability to recover rent due. The protections in this paragraph 2 shall be in effect through May 31, 2020, unless extended. 3) All public housing authorities are requested to extend deadlines for housing assistance recipients or applicants to deliver records or documents related to their eligibility for programs, to the extent that those deadlines are within the discretion of the housing authority. 4) The Department of Business Oversight, in consultation with the Business, Consumer Services, and Housing Agency, shall engage with financial institutions to identify tools to be used to afford Californians relief from the threat of residential foreclosure and displacement, and to otherwise promote housing security and stability during this state of emergency, in furtherance of the objectives of this Order. 5) Financial institutions holding home or commercial mortgages, including banks, credit unions, government-sponsored enterprises, and institutional investors, are requested to implement an immediate moratorium on foreclosures and related evictions when the foreclosure or foreclosure-related eviction arises out of a substantial decrease in household or business income, or substantial out-of-pocket medical expenses, which were caused by the COVID-19 pandemic, or by any local, state, or federal government response to COVID-19. 6) The California Public Utilities Commission is requested to monitor measures undertaken by public and private utility providers to implement customer service protections for critical utilities, including but not limited to electric, gas, water, internet, landline telephone, and cell phone service, in response to COVID-19, and on a weekly basis publicly report these measures. Nothing in this Order shall be construed to invalidate any limitation on eviction enacted by a local jurisdiction between March 4, 2020 and this date. Nothing in this Order shall in any way restrict state or local authority tn nrdler nnv nr inrnntine isolation. nr other nuhlic health measure that I FURTHER DIRECT that as soon as hereafter possible, this proclamation be filed in the Office of the Secretary of State and that widespread publicity and notice be given of this Order. IN WITNESS WHEREOF I have hereunto set my hand and caused the Great Seal of the State of California to be affixed this 16th day of March 2020. vernor of California ATTEST: ALEX PADILLA Secretary of State ORDINANCE NO. NS-9287 AN UNCODIFIED URGENCY ORDINANCE OF THE BOARD OF SUPERVISORS OF THE COUNTY OF SANTA CLARA TEMPORARILY BANNING EVICTIONS FOR NON-PAYMENT OF RENT BY RESIDENTIAL AND COMMERCIAL REAL PROPERTY TENANTS IN SANTA CLARA COUNTY DIRECTLY IMPACTED BY THE COVID-19 PANDEMIC, AND SETTING FORTH THE FACTS CONSTITUTING SUCH URGENCY Sununary This Urgency Ordinance imposes a temporary moratorium on evictions in Santa Clara County for non-payment of rent by residential and commercial real property tenants directly impacted by the COVID-19 pandemic and sets forth the facts constituting such urgency. THE BOARD OF SUPERVISORS OF THK COUNTY OF SANTA CLARA FINDS AND DECLARES AS FOLLOWS: WHEREAS, in late December 2019, several cases of a novel coronavirus known as COVID-19 emerged in the Hubei province of China; WHEREAS, on January 30, 2020, the World Health Organization ("WHO") declared COVID-19 a Public Health Emergency of international Concern; WHEREAS, on January 31, 2020, in the wake of the spread of COVID-19, the United States Secretary ofHealth and Human Services declared a Public Health Emergency; WHEREAS, on February 3, 2020, the County of Santa Clara ("County") Health Officer declared a local health emergency, and the County's Director of Emergency Services proclaimed a local emergency, to respond to the COVID-19 pandemic and manage its spread throughout the County; WHEREAS, on February 10, 2020, the Board of Supervisors ratified the local health emergency and local emergency; WHEREAS, on March 4, 2020, Governor Gavin Newsom ("the Governor") issued a Proclamation of a State of Emergency in the State of California related to the COVID-19 pandemic; Ordinance NS-9.287 re: Eviction Moratorium Page i of 8 WHEREAS, Government Code section 8634 authorizes the County Board of Supervisors to promulgate orders and regulations necessary to provide for the protection of life and property during a local emergency; WHERKAS, on March 16, 2020, the County Public Health Officer issued an order requiring County residents to shelter in place through April 7, 2020, in order to stop community spread of COVID-19, subject to exceptions for the provision and receipt of essential services, and this order may be continued as necessary to address the pandemic; WHEREAS, as of 5:00 p.m. on March 21, 2020, the County confirmed 302 cases of infection and 10 deaths from COVID-19; WHEREAS, the COVID-19 pandemic and associated public health orders from the County Health Officer and from the State Health Officer are expected to result in the closure of many local businesses until at least April 7, 2020, and result in extreme restrictions on other local businesses until then, and likely thereafter; WHEREAS, the COVID-19 pandemic and associated public health orders are expected to result in a significant loss of income to a widespread portion of the local population that depend on wages or business income to pay rent and may also result in substantial medical expenses for certain County residents; WHEREAS, the County is already experiencing a humanitarian crisis of homelessness and is one of the least affordable conununities in the world; WHEREAS, the County is also experiencing a housing affordability crisis, which is driving homelessness and displacement of residents; WHEREAS, many of the County's renters are rent-burdened, paying over 30 percent of their income on rent, and some renters are severely rent-burdened, paying over 50 percent of their income on rent, which leaves less money for families to spend on other necessities like food, healthcare, transportation, and education; WHEREAS, in light of the COVID-19 pandemic and his state of emergency Proclamation, on March 16, 2020, the Governor issued an executive order suspending any provision oF state law prohibiting a local govermnent from exercising its police power to impose substantive limitations on residential or commercial evictions; WHEREAS, without local protection, eviction notices for failure to pay rent are likely to surge as residents and businesses are unable to earn income due to the pandemic, or are forced to pay substantial medical expenses associated with the pandemic; Ordinance NS-9.287 re: Eviction Moratorium Page 2 of 8 WHEREAS, the Board has determined that it is appropriate to temporarily prohibit evictions, through May 31, 2020, for any tenant (residential or commercial) who can demonstrate that they are being evicted for the failure to pay rent, and that such failure is a direct impact of the COVID-19 pandemic; WHEREAS, the Board has determined that adoption of such a temporary moratorium prohibiting evictions is necessary for the protection of life and properly as described herein; WHEREAS, this Order shall serve as an order and regulation also applicable within the cities in Santa Clara County pursuant to Govertunent Code section 8634 and the regulations contained herein shall apply to all cities within Santa Clara County and within unincorporated Santa Clara County; and WHEREAS, there is an urgent need for the County to enact such substantive limitations to protect the health, safety, and welfare of its residents in light of the emergency declared regarding the COVID-19 pandemic, including but not limited to the need to keep residents in their homes during the time that they need to shelter-in-place. THK BOARD OF SUPERVISORS OF THE COUNTY OF SANTA CLARA ORDAINS AS FOLLOWS: PROHIBITION ON EVICTIONS ARISING FROM SUBSTANTIAL INCOME LOSS OR MEDICAL EXPENSES RELATED TO THE CORONAVIRUS PANDEMIC SECTION 1. ~Sco e. This Ordinance is adopted to prohibit evictions through May 31, 2020, unless extended by action of the Board of Supervisors, which action shall not require amenthnent of this Ordinance, for any tenant in Santa Clara County who can demonstrate that they have received a notice of eviction or similar action for failure to pay rent, and that such a failure is related to a substantial loss of income or substantial out-of-pocket medical expenses resulting from the 2020 COVID-19 pandemic or any local, State, or federal government response to the pandemic, The regulations in this ordinance shall apply to cities within Santa Clara County and unincorporated Santa Clara County. To the extent that the governing body of a city enacts an ordinance or adopts a regulation that is more protective of residential and commercial tenants, such city ordinance or regulation shall apply in place of this Ordinance. Ordinance NS-9,287 re: Eviction Moratorium Pase 3 of 8 SECTION 2. Definitions, For purposes of this Ordinance, the following definitions shall apply: Cnttzmercird Real Property means any real property that is used for business, income-producing purposes, or any purpose other than for residential use, however organized, that meets the size standard for a small business in the industry in which that entity operates as defined in the U.S. Sniall Business Administration's table of size standards by industry, codified at 13 C.F.R. section 121,201; (b) Owner means any natural person, partnership, corporate or fictitious entity, acting as a lessor or sublessor, whether as a principal or through an agent, who receives or is entitled to receive rent in exchange for the use or occupancy of any residential or commercial real property for rent, and includes a predecessor in interest; (c) Rent means the financial obligation or monetary payment a tenant owes an owner for the occupancy or use of cominercial or residential real property whether by written or oral agreement; (d) Residezztial Real Property means any dwelling unit that is intended or used for human habitation; (e) Tenancy ineans the lawful occupancy of residential or commercial real property and includes a lease or sublease; Tenant means the lawful occupant of residential or commercial real property whether by lease or sublease. SECTION 3. Prohibition on evictions stemmina from coronavirus nandemic losses. (a) Through May 31, 2020 and any subsequent extensions approved by the Board of Supervisors, the Owner of Residential Real Property or Commercial Real Property shall not terminate a Tenancy for failure to pay rent if the Tenant demonstrates that the failure to pay rent is directly related to a substantial loss of income or substantial out-of-pocket medical expenses associated with the 2020 COVID-19 pandemic or any local, State, or federal government response to the pandemic. Ordinance NS-9.287 re', Eviction Moratorium Page 4 of 8 (b) Through May 31, 2020 and any subsequent extensions approved by the Board of Supervisors, the Owner of Residential Real Property or Commercial Real Property shall not terminate a Tenancy for any no-fault cause for eviction, as those causes are defined in Civil Code Section 1946.2(b)(2), if the Tenant demonstrates that the Tenant has suffered a substantial loss of income or substantial out-of-pocket medical expenses associated with the 2020 COVID-19 pandemic or any local, State, or federal government response to the pandemic. (c) For this Section to apply, a Tenant must demonstrate through documentation or other objectively verifiable means: (1) Substantial loss of income fi'om: (i) job loss; (ii) layoffs; (iii) a reduction in the number of compensable hours of work; (iv) astore,'estaurant, office, or business closure; (v) a substantial decrease in business income caused by a reduction in opening hours or constuner demand; (vi) the need to miss work to care for a home- bound school-age child or a family member infected with coronavirus; or (vii) other similarly-caused loss of income, where the conditions listed in (i) through (vii) resulted from the 2020 COVID-19 pandemic or related guidance or public health orders from local, State, or federal authorities; or (2) Substantial out-of-pocket medical expenses for themselves or their immediate family members related to the 2020 COVID-19 pandemic. (3) This prohibition shall also apply to an Owner*s action that constitutes constructive eviction under California law, The Owner shall innnediately correct any conditions of the property that could be considered to constitute cause for a constructive eviction under California law. (4) An Owner's failure to comply with this Ordinance shall render any notice of termination of Tenancy, where the termination would be in violation of this Section, void. Any notice of termination served on a Tenant during the 2020 COVID-19 pandemic must contain the reason for the termination of Tenancy. Any notice of tertnination served on a Tenant during the 2020 COVID-19 pandemic must also include a notice of Tenant's rights under this Ordinance as well as a notice of emergency rental assistance programs, These notices shall be provided on a form approved by the Santa Clara County Office of Ordinance NS-9.2g7 re'. Eviction Moratorium Page 5 of 8 Supportive Housing. An Owner's failure to comply with this Ordinance shall render any notice of termination of Tenancy, where the termination would be in violation of this Section, void. (5) This Section may be asserted as an affirmative defense in an unlawful detainer action. Nothing in this Ordinance shall relieve a Tenant of the obligation to pay Rent, nor restrict an Owner's ability to recover Rent due. Upon expiration or termination of this Ordinance, a Tenant who demonstrated substantial loss of income or substantial out-of-pocket medical expenses as required under this Ordinance shall pay all past- due Rent within 120 days Irom the date of expiration of this Ordinance. An Owner's failure to comply with this Ordinance does not constitute a criminal offense, but will subject an Owner to civil fines and penalties as set forth in Division Al of the County Ordinance Code. (9) Whenever an Owner endeavors to recover possession or recovers possession ofResidential Real Property or Commercial Real Property in violation of this Ordinance, retaliates against a Tenant for the exercise of any rights under this Ordinance, or attempts to prevent a Tenant from acquiring any rights herein, the Tenant may institute a civil proceeding for injunctive relief, money damages of not more than three times actual damages (including damages for mental or emotional distress), and whatever other relief the court deems appropriate. In the case of an award of damages for mental or emotional distress, said award shall only be trebled if the trier of fact finds that the Owner acted in knowing violation of or in reckless disregard of the limitations of this Ordinance. The prevailing party shaH be entitled to reasonable attorney's fees and costs pursuant to order of the court. (10) An Owner may not charge or collect a late fee for Rent that is delayed during this Ordinance and for a period of 120 days thereafter. For the purposes of this Ordinance, adequate documentation of lost income or out-of-pocket medical expenses from the 2020 COVID-19 Ordinance NS-9.287 re: t viction Moratorium Page 6 of 8 pandemic shall include, but not be limited to: letters from employers citing the 2020 COVID-19 pandemic or related goveriunent action as the basis for termination of employment or reduced work, employer paycheck stubs, bank statements, or letters or notifications from schools in which the Tenant has a dependent enrolled regarding COVID-19-related closures that substantially affected the Tenant' income. Any Tenant eligible for protection under this Ordinance can provide documentation of lost income or out-of-pocket medical expenses at any time prior to execution ofa judgment for possession of their rental unit to stop such eviction from going forward. SECTION 4. CEOA not auulieable. This Ordinance is not subject to the California Enviromnental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and Section 15060(c)(3) (the activity is not a project as defined in Section 15378 of the CEQA Guidelines, because it has no potential for resulting in physical change to the environment, directly or indirectly). SECTION 5. Severabilitv. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The Board of Supervisors hereby declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, and phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases may be held invalid. SECTION 6. Effective date. This Ordinance shall take effect immediately upon adoption by a four-fifths vote of the Board of Supervisors as an Urgency Ordinance. This is based on the Board of Supervisors finding that this Ordinance is adopted in compliance with Government Code section 25123, that it is necessary for the protection of the public peace, health, or safety for the reasons contained in the findings set forth at the beginning of this Ordinance, which are incorporated by reference herein, and that it is necessary to prevent Santa Clara County from suffering potentially irreversible displacement of tenants resulting from the evictions that this Ordmance is designed to prevent. Ordinance NS-9.287 re: Eviction Mora(orium Page 7 of 8 SECTION 7, Exniration. Ret2eal. This Ordinance shall expire and shall be repealed as of May 31, 2020, unless shortened or extended by the Board of Supervisors based on the existence of a local emergency. PASSED AND ADOPTED by the Board of Supervisors of the County of Santa Clara, State of California, on NAR 2 4 20?(l by the following vote: AYES cHAYEz, CORTEsE, ELLENBERG : SSSTIAN, WASSERMAN NOES I'toNE ABSENT: NoNE ABSTAIN; NGNE CI~ CHAVEZ, ~ident Board of S4latrl'visors Ci oH H w,'4". n tu t -.. e I 1oo 3 11, Al I 1 2 * * vt vvo t tttvttve lv tht D. Ia t ta A Co.. ~Ma Ot& /~ / der~ MEGAN +YLE // Clerk of thI: Board okSupervisors APPROVED AS TO FORM AND LEGALITY: /A/t Q- Xrhgt~ MIZurrAn S JAMES R. WILLIAMS County Counsel 2189425 Ordinance NS-9.287 re: Eviction Moratorium Page 8 of 8 ORDINANCE NO. NS-9.288 AN UNCODIFIED URGENCY ORDINANCE OF THE BOARD OF SUPERVISORS OF THE COUNTY OF SANTA CLARA EXTENDING A TEMPORARY MORATORIUM ON EVICTIONS FOR NON-PAYMENT OF RENT BY RESIDENTIAL AND SMALL BUSINESS TENANTS IN SANTA CLARA COUNTY DIRECTLY IMPACTED BY THE COVID-19 PANDEMIC& AND DECLARING THE URGENCY THEREOF Summary This Urgency Ordinance extends the temporary moratorium on evictions in Santa Clara County for non-payment ofrent due to COVID-19 originally enacted on March 24, 2020, through (1) the date that Governor Newsom's Executive Order N-28-20 suspending any provision of state law that would preempt or otherwise restrict a local government's exercise ofpolice powers to impose substantive limits on residential or commercial evictions under certain conditions (or similar executive order) is extended, or (2) August 31, 2020, whichever is earlier. THE BOARD OF SUPERVISORS OF THE COUNTY OF SANTA CLARA ORDAINS AS FOLLOWS: SECTION 1. Findings and Purnose. In accordance with California Government Code section 25123, subdivision (d), the Board of Supervisors finds and declares that this Ordinance is deemed necessary for the following reasons: l. On March 16, 2020, Governor Gavin Newsom issued Executive Order N-28-20 that suspends any provision of state law that would preempt or otherwise restrict a local government's exercise ofpolice powers to impose substantive limits on residential or commercial evictions under certain conditions. The protections in that order expire on May 31, 2020. 2. On March 24, 2020, the Board of Supervisors of the County of Santa Clara adopted Ordinance No. NS-9.287, an urgency ordinance which temporarily banned the eviction ofresidential or commercial tenants in Santa Clara County due to inability to pay rent because of a substantial loss of income, or substantial out-of-pocket medical expense, related to the 2020 COVID-19 pandemic. Ordinance No, NS-9.287 was enacted to protect these local tenants Irom homelessness or housing insecurity as a means of ensuring the efncacy of the County's shelter in place order and combating community spread of COVID-19. Ordinance No. NS-9.287 provides that it shall expire on May 31, Ordinance No. NS-9.288 Extension of Temporary Moratorium on Eviotions Throughout County Page t of 4 2020 unless extended by the Board of Supervisors. Similarly, other jurisdictions within the County, such as the Cities of Mountain View, Palo Alto, San Josd, Santa Clara, and Sunnyvale, as well as the Town of Los Gatos, have enacted eviction moratoriums to protect tenants from eviction. 3. On March 27, 2020, Gavin Newsom, Governor of the State of California, issued Executive Order N-37-20 banning thc enforcement of eviction orders for renters affected by COVID-19 through May 31, 2020. On April 6, 2020, the California Judicial Council promulgated emergency rules in response to the 2020 COVID-19 pandemic that temporarily suspended entry of default and trials in eviction proceedings in the Superior Courts. 4. On April 29, 2020, the County Public Health Officer issued an order extending and revising the prior shelter in place order issued on March 31, 2020, The April 29, 2020 order extends the shelter in place requirement for County residents to May 31, 2020, in order to stop community spread of COVID-19, subject to exceptions for the provision and receipt of essential services. These orders have resulted in the closure of many local businesses, which in turn has potentially led to loss of income for many County residents. 5. The humanitarian crises ofhomelessness, housing affordability, and housing insecurity in the County that existed at the time Ordinance No. NS-9.287 was enacted persist today, as do the struggles of rent-burdened and severely rent-burdened County residents who pay over 30 percent and 50 percent of their income on rent, respectively. These crises, combined with substantial losses in income or substantial out ofpocket medical expenses due to the shelter in place restricfions imposed during the COVID-19 pandemic, continue to leave renters in the County with less money to spend on other necessities, such as food, healthcare, transportation, and education. Thus, extending the protections in the Ordinance by the Board is necessary to protect the health, safety, and welfare of its residents, including, but not limited to, the need to keep residents in their homes during the time that they need to shelter-in-place. SECTION 2. Extension of Ordinance No. NS-9.287. This Ordinance extends Ordinance No. NS-9.287 through (I) the date that the Governor's Executive Order N-28-20 suspending any provision of state law that would preempt or otherwise restrict a local government's exercise ofpolice powers to impose substantive limits on residential or commercial evictions under certain conditions (or similar executive order) is extended, or (2) August 31, 2020, whichever is earlier. SECTION 3. Comtsliance with the California Environmental Oualitv Act. This Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Section 15060(c)(2) of the CEQA Guidelines (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and Section 15060(c)(3) (the activity is not a project as defined in Section 15378 of the Ordinance No. NS-9.2BB Extension of Tempormy Moratorium on Evictions Throughout County Page 2 of 4 CEQA Guidelines because it has no potential for resulting in physical change to the environment, directly or indirectly). SECTION 4. Effective Date. This Ordinance is an extension of Ordinance No. NS-9.287 and shall be in effect immcdiatcly upon adoption by a four-fifths vote of the Board of Supervisors as an Urgency Ordinance. This is based on the Board of Supervisors finding that this Ordinance is adopted in compliance with Government Code section 25123, subdivision (d), that it is necessary for the protection of the public peace, health, or safety for the reasons contained in the findings set forth at the beginning of this Ordinance, which are incorporated by reference herein, and that it is necessary to prevent Santa Clara County I'rom suffering potentially irreversible displacement of tenants resulting from the evictions that this Ordinance and Ordinance No. NS-9.287 are designed to prevent. This Ordinance shall expire and shall be repealed as of the earlier of (1) the date through which the Governor's Executive Order extending the suspension of any provision of state law that would preempt or otherwise restrict a local government's exercise ofpolice powers to impose substantive limits on residential or commercial evictions under certain conditions (or similar executive order) is extended, or (2) August 31, 2020, unless shortened or extended by the Board of Supervisors based on the existence of a local emergency. Ordinance No. NS-9.288 Extension ofTemporary Moratorium on Evictions Throughout County Page 3 of4 SECTION 5. Severabilitv. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The Board of Supervisors hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases will be held unconstitutional, invalid, or unenforceable. PASSED AND ADOPTED by the Boar/ oj Supervisors of the County of Santa Clara, State of Californi, on MAY 2 6 2U2U, by the following vote: CHAVEZ, CORTESE, ELLENBERG - SIMITIAN, WASSERMAN NOES:( NONE ABSENT: NoNE ABSTAIN: IsoNE CINDY CPPfEZ (P9stdent Board of Supervisors Signed and certified that a copy of this document has been delivered by electronic or other means to the President, Board of Supervisors. ATTEST: MEGAN JPOYLE fJ / 0 Clerk of the Boar~ Supefyisors VED AS TO FORM AND LEGALITY: fA E~ LL4(VS 2216763 Ordinance No. NS-9.288 Extension of Temporary Moratorium on Evictions Thmughout County Page 4 of 4 ORDINANCE NO. NS-9.289 AN UNCODIFIED URGENCY ORDINANCE OF THE BOARD OF SUPERVISORS OF THE COUNTY OF SANTA CLARA AMENDING ORDINANCE NO, NS-9.287 AS EXTENDED BY ORDINANCE NO. NS-9.288 RELATING TO EVICTIONS OF CERTAIN RESIDENTIAL AND SMALL BUSINESS TENANTS IN SANTA CLARA COUNTY DIRECTLY IMPACTED BY THE COVID-19 PANDEMIC, AND DECLARING THE URGENCY THEREOF This Urgency Ordinance amends Ordinance No, NS-9.287, as extended by Ordinance No. N$-9.288, by extending the time period during which past-due rent must be repaid to 12 months and specifying repaytnent intervals. THE BOARD OF SUPERVISORS OF THK COUNTY OF SANTA CLARA ORDAINS AS FOLLOWS: SECTION L Findings and Purnose. In accordance with California Government Code section 23123, subdivision (d), the Board of Supervisors finds and declares that this Ordinance is deemed necessary for the following reasons: Cl. 0'U I Q. CO CD Cl IO IO C) h) Cl 1. On March 16, 2020, Governor Gavin Newsom issued Executive Order N-28-20 that suspends any provision of state law that would preempt or otherwise restrict a local government's exercise ofpolice powers to impose substantive limits on residential or commercial evictions under certain conditions. The protections in that order would have expired on May 31, 2020. 2. On March 24, 2020, the Board of Supervisors of the County of Santa Clara adopted Ordinance No. NS-9287, an urgency ordinance that temporarily banned the eviction of certain residential or commercial tenants in Santa Clara County who sufFered a substantial loss of income, or substantial out-of-pocket medical expense, related to the 2020 COVID-19 pandemic. Ordinance No. NS-9.287 was enacted to protect these local tenants from homelessness or housing insecurity as a tneans ofensuring the efficacy of the County's shelter in place order (as described below) and combating community spread of COVID-19, Ordinance No. NS-9.287 provided that it shall expire on May 31, 2020 unless extended by the Board ofSupervisors. Similarly, other jurisdictions within the County, such as the Cities of Mountain View, Palo Alto, San Jose, Santa Clara, and Sunnyvale, as well as the Town ofLos Gatos, have enacted eviction moratoriums to protect tenants from eviction, Ordinance No. NS-9.289 Amending Temporary Moratorium on Evictions Throughout County Pageos ofa Revised based on 6/2/20 Board Motion 3. On March 27, 2020, Gavin Newsom, Governor of the State of California, issued Executive Order N-37-20 banning the enforcement of eviction orders for renters affected by COVID-19 through May 31, 2020. On April 6, 2020, the California Judicial Council promulgated emergency rules in response to the 2020 COVID-19 pandemic that temporarily suspended entry ofdefault and trials in eviction proceedings in the Superior Courts, 4. On April 29, 2020, the County Public Health Officer issued an order extending and revising the prior shelter in place order issued on March 31, 2020. The April 29, 2020, order extends the shelter in place requirement for County residents to May 31, 2020, in order to stop community spread of COVID-19, subject to exceptions for the provision and receipt of essential services. On May 18, 2020, the County Public Health OIEcer issued an order extending and revising the previous shelter in place orders that became effective on May 22, 2020, and that will remain in effect until further action by the County Public Health OIEcer. Because ofCOVID-19, these orders have resulted in the closure of many local businesses, which in turn has potentially led to loss of income for many County residents. 5. On May 26, 2020, the Board ofSupervisors enacted Ordinance No. NS-9.288 which extended Ordinance No. NS-9.287 through: (1) the date that the Governor's Executive Order N-28-20 suspending any provision of state law that would preempt or otherwise restrict a local government's exercise ofpolice powers to impose substantive limits on residential or commercial evictions under certain conditions (or similar executive order) is extended, or (2) August 31, 2020, whichever is earlier. 6. On May 29, 2020, Governor Newsom issued Executive Order N-66-20, which extended the applicable pmvisions of Executive Order N-28-20. This extension expires on July 28, 2020, thereby extending the County's ordinance through July 28, 2020. 7. The humanitarian crises ofhomelessness, housing affordability, and housing insecurity in the County that existed at the time Ordinance No. NS-9,287 and Ordinance No, N$-9.288 were enacted persist today, as do the struggles ofrent-burdened and severely rent-burdened County residents who pay over 30 percent and 50 percent of their income on rent, respectively. These crises, combined with substantial losses in income or substantial out ofpocket medical expenses due to the COYID-19 pandemic, continue to leave renters in the County with less money to spend on other necessities, such as food, healthcare, transportation, and education. Thus, the protections in the prior ordinances and this Ordinance are necessary to protect the health, safety, and welfare of its residents, including, but not limited to, the need to keep residents in their homes during the time that they need to shelter in place. Ordinance No. NS-9.289 Amending Temporary Moratorium on Evictions Throughout County Page 2 of4 Revised based on 6/2/20 Board Motion SECTION 2. Amendments to Ordinance No. NS-9.287 As Extended bv Ordinance No. NS-9.288. a. Section 3(c)(7) ofOrdinance No. NS-9.287, as extended by Ordinance No. NS-9.288, is hereby amended to read as follows: Upon expiration or termination of this Ordinance, a Tenant who demonstrated substantial loss of income or substantial out-of-pocket medical expenses as required under Ordinance No. NS-9.287, as extended, shall pay all past-due Rent deferred pursuant to this Ordinance in full within 12 months of the date ofexpiration or termination of this Ordinance. Additionally, a Tenant who qualifies for protection under this Ordinance shall pay at least 50o/o of the past-due Rent deferred under this Ordinance within 6 months of the expiration or termination of this Ordinance as extended. Prior to initiating repayment plans with their Tenants protected under this Ordinance, Owners shall inform such Tenants of their repayment rights. b. Section 3(c)(10) ofOrdinance No. NS-9.287, as extended by Ordinance No. NS-9,288, is hereby amended to read as follows: Upon expiration or termination of this Ordinance, or any extension thereof, an Owner shall not charge or collect a late fee for Rent that was deferred pursuant to this Ordinance, as long as such Rent is paid in accordance with the timelines established in Section 3(c)(7). SECTION 3. Comssltance with the California Environmental Ouaiitv Act. This Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Section 15060(c)(2) of the CEQA Guidelines (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and Sertion 15060(c)(3) (the activity is not a project as defined in Section 15378 of the CEQA Guidelines because it has no potential for resulting in physicrd change to the environment, directly or indirectly). SECTION 4. Effective Date. This Ordinance shall be in effect immediately upon adoption by a four-fifths vote of the Board ofSupervisors as an Urgency Ordinance. This is based on the Board of Supervisors finding that this Ordinance is adopted in compliance with Government Code section 25123, subdivision (d), that it is necessary for the protection of the public peace, health, or safety for the reasons contained in the findings set forth at the beginning of this Ordinance, which are incorporated by reference herein, and that it is necessary to prevent Santa Clara County from sufFering potentially irreversible displacement of tenants and related negative public health impacts caused by increases in homelessness resulting fiom the evictions that this Ordinance and Ordinance No. NS-9.287 and Ordinance No, NS- 9.288 are designed to prevent. Ordinance No. NS-9.289 Amending Temporary Moratorium on Evictions Throughout County Page 3 of4 Revised based on 6/2/20 Board Motion SECTION 5. Severabilitv. If any section, subsection, paragraph, sub-paragraph, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The Board of Supervisors hereby declares that it would have passed each section, subsection, paragraph, sub-paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one or more sections, subsections, paragraphs, sub-paragraphs, sentences, clauses, or phrases will be held unconstitutional, invalid, or unenforceable. PASSED AND ADOPTED by the Board of Supervisors of the County of Santa Clara, State of California, on JUN 0 2 2020, by the following vote: CHAVEZ, CORTESE, ELLENBERO AYES: BIMITIAN, wASBERMAN NOES: NONE ABSENT HONE ABSTAIN HONE CINDY CHAVEZ PresttIEtil Board of Supervisors Signed and certiftedahat ~ \ u-- n I'l „ I r tcJ tu o sl n 'l s D~ * rs. ATTEST: ~ 2&is drlA VJ&leans g+ MEGAN ALE g j Clerk of thf; Boar~ Supervfsors APPROVED AS TO FORM AND LEGALITY: JAMES R. WILLIAMS County Counsel 222IS77 Ordinance No. NS-9.289 Amending Temporary Moratorium on Evictions Throughout County Page 4 of 4 Revised based on 6/2/20 Board Motion PROOF OF SERVICE I, Sue Betti, declare: I am employed in Alameda County, State of Californi, am over the age of eighteen years, and not a party to the within action. My business address is 5000 Hopyard Road, Suite 225, Pleasanton, California 94588, I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service and/or other overnight delivery. Under overnight delivery practice, all mailings are deposited in an authorized area for pick-up by an authorized express service courier the same day it is collected and processed in the ordinary course of business. On the date set forth below, I served the within: EX PARTE APPLICATION TO HAVE MOTION FOR SUMMARY JUDGMENT HEARD FOR PRE-COVID-19 UNLAWFUL DETAINER on the parties in this action by placing a true copy thereof in a sealed envelope, and each envelope addressed as follows: 10 Gary Sullivan, Esq. 1565 The Alameda, Suite 100 San Jose, CA 95126 zwsullivanlaw&zmaihcom 12 13 14 15 16 [x] [x ] (By U.S. Mail) I caused each such envelope to be served by depositing same, with postage thereon fully prepaid, to be placed in the United States Postal Service in the ordinary course of business at Pleasanton, California. (By Electronic Service) The above-referenced document was served by electronically mailing a true and correct copy through Randick O'Dea & Tooliatos LLP's electronic mail system, to the email addresses set forth as listed above, and in accordance with Federal Rules of Civil Procedure, Rule 5(b). 17 18 19 20 21 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on June 26, 2020, at Pleasanton, California. C L/W 'L)l~l Sue Betti 22 23 24 26 27 28 PROOF OF SERVICE dddd47 2.dodd