Sunday, January 15, 2017

New rules on restricting access to unlawful detainer records

Unlawful detainer records used to be "masked" from public access for the first 60 days and then, if no defendant settled or got dismissed in the interim and the case was still going on, the record would become publicly available. Case's records were opening up by default—a stipulation or a court order was required for the records to become hidden again. Now the order of things is refersed—it remains masked by default, and only upon a certain condition opens to public. Assembly Bill No. 2819, amending CCP § 1161.2 and establishing CCP § 1167.1, effective January 1, 2017.

In the past, it looks like each California county's court treated the masking rule differently, at least this is the case I am observing in my cases I had in Northern California counties.

In San Francisco, if the record was restricted, it would not show you the case, only sometimes revealing the litigant's name, and only if no other cases are recorded against that party. A dismissal of any party, even a Doe defendant, within first 60 days would result in permanent mask on the record. Contra Costa court was less secretive, it freely shown parties' names and even the case number, online and free of charge. Alameda court recently started charging for searches by party's name, but other than making money on the searches, it would suggest the case. San Mateo court would show the record open, even if there was dismissal of DOEs made within the first 60 days. I had mixed experience in Marin county, with some cases sealed entirely and some openly published online.

Observe that each court seems to use a different software provider: the above-mentioned San Mateo, San Francisco, Alameda, Contra Costa, and Marin, each deploys an entirely different database interface. It must be a contributing factor to what amount of  data different courts show for masked cases.

Please also note that CCP § 1161.2 only talks about limited jurisdiction cases. This means, at least in theory, that cases with rent or rental damages due in amounts over $25,000 should be open for public, exempt from the masking rule.  I did not see this distinction applied under the old rule, just as I haven't seen courts readily distinguishing between residential and commercial cases, and there is no reason to suspect that the courts will act differently under the new rule. I thus expect all cases, limited and unlimited, residential and commercial, all being masked the same way, but the time and application may prove me wrong. It is technically possible to distinguish, even if the decision is made by a computer's algorithm, because these differences are all marked on the case cover sheet (CM-010) at the time the action is filed.

And so with this new rule, I don't expect the picture to change globally. Less restrictive courts will still show more hints on the otherwise-hidden cases, and parties' names is in most cases all one needs to access the record in a case masked under 1161.2. This is because the remaining information is easy to grab elsewhere. For example, if you need property's address, for a single-family residence you can obtain it from the county's recorder. For a multi-unit property, you may identify it through the remaining residents of other units. And in the counties or cities with an active rent board, the task can be accomplished by searching that board's records, which are in most occasions are publicly accessible.

A word of caution with regard to the newly baked CCP § 1167.1, added by the same Assembly Bill 2819: calendar your cases for the 60-day mark to file proofs of service, or fall into court's discretion for the case's dismissal if you haven't filed it. This rule is at odds with the general rule of civil procedure, where, in presence of a similar  60-day rule for filing a proof of service, defendant's general appearance in the case is deemed as an admission of that defendant's actual notice of the lawsuit, thus eliminating the need of returning summons to court or filing other proof of service. See, Weatherby v. Van Diest (1991) 233 Cal.App.3d 506, 509.  In general civil cases, defendant's filing of the answer excuses the plaintiff's performance under CCP §§ 583.210, 583.220.  Biss v. Bohr (1995) 40 Cal.App.4th 1246, 1251.  I am predicting that courts will interpret this new section 1167.1 similarly to section 583.210, but, unless you want your case to become the testing ground of this procedural nuance, I suggest you mark the calendar to ensure your proofs are filed within 60 days from service.


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