It’s no surprise to landlords and tenants that an eviction lawsuit in a tenant’s past can be the kiss of death when that tenant applies for a rental—even when the tenant prevailed or the landlord dismissed the suit. Because the rental market is hot in many locales, landlords often have many qualified applicants from which to choose, and they routinely reject those with eviction lawsuits in their past, figuring that even the victorious tenant may have prevailed “on a technicality” or just got lucky. Why take a chance when other applicants’ histories don’t raise the worry that the tenant will repeat the behavior that resulted in the eviction attempt?
As of January 1, 2017, landlords will find it increasingly difficult to learn of evictions that resulted in tenant victories or voluntary dismissals initiated by the landlord. With some exceptions (noted below), the new rules hide, or “mask,” eviction case records unless the landlord prevailed (obtains a judgment) within 60 days of filing the eviction complaint. And if the landlord obtains a judgment more than 60 days after the filing of the complaint, the records will be unmasked only upon order of the court.
The law provides for specified exceptions to these rules. Court records of the case will be made available to:
These exceptions are designed to allow interested parties, including the press and other residents of the rental property (neighbors), to have access to the court records.
(California Code of Civil Procedure Sections 1161.2 and 1167.1; Assembly Bill 2819.)
The 2017 legislation is not the first time California legislators have attempted to address the issue of how to balance the public’s right to know about lawsuits and a tenant’s interest in not being blacklisted after justly winning an eviction lawsuit.
In 1991, legislation prohibited consumer credit agencies from releasing information about unlawful detainer cases unless the landlord prevailed. (AB 1796, Allen, Chapter 965.) One such agency, U.D. Registry, sued on First Amendment grounds, successfully arguing that the law prohibited truthful reporting of public information that was already available to any member of the public who chose to access the court clerk’s file. (U.D. Registry, Inc. v. Municipal Court, 50 Cal. App. 4th 673 (1996).) The Court of Appeal pointedly noted that if the Legislature wanted to restrict access to specified information, it should begin with the source—the clerk’s office of the court—and order it to not disclose the information to the public in the first place.
In response, the Legislature passed a new law in 2003 that did just that—for the first 60 days after an eviction case was filed, the law directed the clerk to “mask” the court records, with exceptions like those noted above. After 60 days, the mask was to be lifted, unless the defendant (the tenant) prevailed within those 60 days. (SB 345 (Kuehl, Chapter 787, Statutes of 2003.) As you can see, this law did not protect a tenant who prevailed in a case that went to judgment more than 60 days after the complaint had been filed. In those days, relatively few eviction cases took so long; by statute, they’re supposed to be heard within 20 days.
Fast forward to 2016, when available rental housing is very scarce in many places, and where courthouses in many counties have faced staffing cut-backs that result in long delays. Eviction cases are supposed to be heard within 20 days of being filed, but through no fault of landlord or tenant, many cases come to court substantially after that time. Tenants who contest the eviction often don’t reach a resolution until 60 days have passed. So, even in cases where the tenant defeats the unlawful detainer lawsuit, the 2003 legislation did not mask these cases when the judgment was entered more than 60 days after the case was filed.
Proponents of the 2016 legislation heralded it as finally fulfilling the Legislature’s long-standing intent: To protect innocent tenants from the consequences of prevailing in an unlawful detainer lawsuit, with a law that does not invite Constitutional challenges.