Litigation Changes for 2021

Litigation Changes for 2021

By: Robert J. Enos, Esq. and Tanner N. Puryear, Esq.

January 12, 2021

2020 was a year of change and the law is no exception. Most hearings are now remote, and civil trials have been significantly delayed. While we anticipate these changes will revert back to “normal” once the pandemic is over, some changes are permanent. For example, the Governor signed SB 1146 into law back in September, which allows for a deposition to be taken remotely without stipulation. Prior to this legislation, deponents were required to be in the same room as the deposing party and the court reporter absent agreement. With this new law, any attorney or party of record may, but is not required to, be physically present at the deposition at the location of the deponent.

However, the bulk of the changes regarding litigation were signed into law with the passage of AB 3088. As you will likely recall, despite a shortened session, the legislature passed AB 3088, which provided numerous protections for tenants during the pandemic. These protections last until February 1, 2021, and significantly affect how unlawful detainer actions are handled. For example, new judicial council forms and modified notices to pay rent or quit, are now required to be provided to the tenant before eviction proceedings can commence. Code of Civil Procedure § 1179.04 requires that a landlord provide notice, in at least 12-point font, to tenants who have not paid one or more rental payments due between March 1, 2020 and August 31, 2020, notice of their “Covid-19 rights”. However, this statutory notice is only required for rent that comes due before January 31, 2021.

The notice for the residential tenant must specifically state that he or she will not be evicted due to failure to pay rent, provided that the tenant delivers to the landlord a declaration setting forth the reason for the COVID-19-related financial distress, signed under penalty of perjury, and the tenant pays at least 25% of the rent. The notice must also include an unsigned copy of the form declaration to be returned by the tenant.

Code of Civil Procedure §1161(2), provides that a tenant must have fifteen, (as opposed to three) days to respond to a non-payment of rent notice. The tenant has the choice to pay the rent during the 15 days and/or provide the declaration to support payment of 25% of the cumulative rent then due. Code of Civil Procedure §1161(2) also sets forth several procedures which must be followed, including that the 15-day notice period does not include Saturdays, Sundays, or judicial holidays.

In addition to the notice requirements for the protected period, AB 3088 modified Civil Code 1946.2, which expands the “just cause” eviction requirement to single family homes.

Finally, Code of Civil Procedure section 116.223 increases small claim court jurisdictional limits from March 1, 2021 to February 1, 2025 in order to allow lawsuits for unpaid rent deferred due to the pandemic. Prior small claim limits no longer apply nor is there a limit on the amount of small claim cases that can be filed by any one party. All unpaid rent due between March 1, 2020 and January 31, 2021 can be collected through the small claim court regardless of the amount demanded. However, it is important to note that attorneys are not allowed in the small claims process, and a Plaintiff in a small claim action cannot appeal an adverse decision. Therefore we highly recommend consulting an attorney before commencing the action. The attorneys at BPE Law are here to assist in the unlawful detainer process during these changing times.

The information presented in this article is not to be taken as legal advice. Every situation is different. If you are facing a legal issue of any kind, get competent legal advice in your state immediately so that you can determine your best options.

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