the other side
The Need for Masking Court Unlawful Detainer Records
By J. Wallace Oman
As many of you undoubtedly are already aware, credit bureaus and other tenant reporting agencies both record and report judgments in eviction lawsuits (unlawful detainer proceedings, or “UDs”). Many of these tenant reporting agencies report even the mere filing of UD lawsuits, without judgments, to mark “problem” tenants. Then, when landlords and property managers review tenants’ rental applications and check the tenant histories and credit reports (I’ll call them “tenant records”), they usually decline to rent to any tenant whose record contains a UD judgment, whether or not it is adverse to the tenant. In fact, many landlords and property managers decline to rent to a tenant whose record shows the mere filing of a UD against him or her, regardless of the reason for filing or the outcome of the UD.
Tenants with UDs on their records are often “blacklisted” from renting apartments. These blacklisting tenant reports even show UDs filed against tenants who are without fault (i.e. the tenants have not failed to pay rent or committed a nuisance or breached a covenant in the lease, etc.) except, perhaps, for their failure to move out after a landlord’s notice of termination of tenancy. As I will discuss in greater detail below, in California the law requires courts to block access to UD court records—to “mask” the UDs to the public for the first 60 days after the UDs are filed. Thus, at least theoretically, tenants are not blacklisted for at least the first 60 days after UDs are filed.
In eviction control jurisdictions such as San Francisco, landlords have a huge financial incentive to evict long-time rent-controlled tenants whose rents are significantly below market rents. Because long-time tenants evicted from rent-controlled units will often face double, triple or quadruple rents in new units with only a half, a third or a quarter of the space—if the tenants can even find those smaller, more expensive units—and because of the tenants’ emotional attachment to their long-time homes, they have great economic and emotional incentives to defeat the evictions. Naturally, these tenants are often very skeptical about the landlords’ stated “just causes” for eviction in the notices of termination of tenancy.
Thus they are often very determined to test the validity of the landlords’ stated reasons for eviction by making the landlords declare their reasons under penalty of perjury during litigation (usually in UD depositions after written interrogatories to the landlords and where the tenants’ attorneys have had the power to subpoena documents). As a consequence of these situations, evictions in San Francisco are often not quickly resolved and, even when they are ultimately settled (as most UDs are), they often are not settled for a long time (relatively speaking by quick UD time-measurement standards).
Because of the frequently draconian adverse consequences of the filing of UDs against tenants, such as the consequent blacklisting of those tenants, pro per
tenants (tenants representing themselves, without attorneys), tenant attorneys often feel obliged, once a UD has been filed, to take one of two approaches to the UDs. First, they may litigate cases harder and faster or harder and longer than they would otherwise do if there were no UD blacklisting, to attempt to prevail in the UDs. Second, they may avoid litigating cases on their merits, by relinquishing possession of the rental units either before the filing of UDs or after the filing of UDs but before trial (so that the UDs convert to ordinary civil actions and are no longer UDs).
Many landlord attorneys are aware of this “backs against the wall” status for tenants and are willing to attempt to follow procedures that recover the possession of the rental units—the primary goal of their landlord clients—but which do not unnecessarily harm the tenants by blacklisting. They particularly adopt this procedural deference when the evictions are brought for reasons that don’t involve tenant fault. For example, these landlord attorneys are often willing to utilize negotiated settlement agreements with such enforcement procedures as the filing of pseudonym-defendant UDs (“Doe-Defendant UDs”), which do not initially name (and cause the blacklisting of) the tenants. (If a tenant should fail to vacate by the promised date, the landlord attorney, by prior stipulation contained in the settlement agreement, can quickly amend the pseudonym-defendant UD to name the defaulting tenant as a defendant and can quickly obtain a default judgment and writ of execution for possession.) And if UDs have already been filed against the tenants before settlement agreements are reached, these landlord attorneys are often willing, in the settlement agreements, to agree to quickly dismiss the UDs naming the tenants and then to refile them as Doe-Defendant UDs.
A few respected local landlord lawyers have told me that, although they are willing, pursuant to settlement agreement provisions, to remask UDs that have become unmasked by the passage of 60 days, they seldom are requested by tenant attorneys for UD remasking procedures. I suspect that silence is because the tenant attorneys are under the impression that the San Francisco court will not allow the remasking to occur (more about this below).
Code of Civil Procedure § 1161.2(a) sets forth the law requiring the courts to block access to court records of UDs to strangers to the cases for the first 60 days after the UDs are filed (i.e., to “mask”), and it implies that the UD records can become unmasked to the public after 60 days (with a significant exception):
1161.2. (a) The clerk may allow access to limited civil case records filed under this chapter, including the court file, index, and register of actions, only as follows: (1) To a party to the action, including a party’s attorney. (2) To any person who provides the clerk with the names of at least one plaintiff and one defendant and the address of the premises, including the apartment or unit number, if any. (3) To a resident of the premises who provides the clerk with the name of one of the parties or the case number and shows proof of residency. (4) To any person by order of the court, which may be granted ex parte, on a showing of good cause. (5) To any other person [e.g. a tenant reporting agency] 60 days after the complaint has been filed, unless a defendant prevails in the action within 60 days of the filing of the complaint, in which case the clerk may not allow access to any court records in the action, except as provided in paragraphs (1) to (4), inclusive. [Emphasis added.]
There is generally no blacklisting problem if a tenant vacates the rental unit within 60 days of the filing of the UD and the landlord attorney dismisses the UD before that 60-day trigger. This is because, for UDs in San Francisco, the court procedurally treats a tenant as the “prevailing party” for UD continued-masking purposes if the landlord dismisses the UD within the 60-day period. The blacklisting problem arises when a tenant has not vacated the unit within 60 days of the filing of a UD or if the UD has not been dismissed within that 60-day period.
UD settlement agreements often provide the tenants with long periods to vacate, well beyond the 60-day unmasking point, but the tenants are harmed by blacklisting when the tenant reporting agencies still report the filing of the UDs, notwithstanding the longer occupancies permitted by the settlement agreements and the willingness of the parties to keep masking the UD records. Even in UDs where possession has been vigorously contested by tenants so that the litigation has continued past the 60-day unmasking point and the court UD records have become accessible to tenant reporting agencies, many landlord attorneys are willing in eventual settlements to agree to follow procedures that would remask the court’s UD records, were the court to permit the remasking.
Although it is reported that the San Francisco Superior Court does not always strictly comply with C.C.P. § 1161.2(a) to unmask all those court records exactly at the 60-day unmasking point, tenant attorneys report that, once those records are unmasked, they know of no current procedures allowed by the court by which tenants alone, or tenants with the stipulation of the landlords’ attorneys, can remask the records after that 60-day unmasking point. Tenant attorneys report that, although the court in the past permitted UD records to be remasked by stipulation of counsel or agreement of the parties, it no longer permits this.
While conducting research for this article, I contacted officials of the San Francisco Superior Court to ascertain the court’s exact procedures (or lack of procedures) regarding UD unmasking and remasking. A reliable court source told me that UDs are masked automatically by the court’s management system upon filing, and that the unmasking is done by the court’s computer on the 60th day. The court makes every effort to comply with C.C.P. §1161.2(a) to insure that the information is not released prior to that date. I am happy to report that this same reliable court source, when asked if there are any current procedures recognized by the court by which tenants alone, or tenants with the stipulation of the landlords attorney, can remask the UD records after the 60-day unmasking point, stated: “Tenants have a right to make a motion to the court to remask their case. Upon the filing of a proper motion or a signed agreement by the parties to the case, an unlawful detainer case can be remasked depending upon the motion that was filed, stipulations agreed upon by the parties and the judge’s ruling on the matter.” With respect to stipulations for masking or remasking a UD, this same source stated: “The court requires a formal filing of the stipulation between the parties with signatures on the agreement and a judge’s signature that the agreement is acceptable to the court. This ensures that the information will be properly processed so that all parties can rest assured of their privacy.”
I am hopeful that, when UD settlement agreements are reached with the appropriate UD masking, continued masking, or remasking provisions, the agreements can now incorporate the win-win UD-masking procedures described by this court source. Parenthetically and in conclusion, I should note that all landlord attorneys and all tenant attorneys are united in their frustration that the court’s online record system doesn’t permit them to check their clients’ UD case records via the internet, as they can do with most other types of cases.
The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of SFAA or SF Apartment Magazine. The information contained in this article is general in nature; consult the advice of an attorney for any specific problem. J. Wallace Oman is a San Francisco attorney specializing in tenant representation. Before that, for almost 20 years he was a staff attorney with the local, federally funded legal services program. He is a coauthor of the California Eviction Defense Manual, Second Edition (CEB California Continuing Education of the Bar 2006). He can be reached at walloman@aol.com. Copyright © 2008 J. Wallace Oman and SF Apartment Magazine. All rights reserved.