ELECTRONICALLY FILED

1 DAMIEN M. SCHIFF, No. 235101 6/15/2020 10:39 AM

Email: [email protected] Kern County Superior Court
2 MICHAEL A. POON, No. 320156 By Candice Rocha, Deputy
Email: [email protected]
3 Pacific Legal Foundation
930 G Street
4 Sacramento, California 95814
Telephone: (916) 419-7111
5 Facsimile: (916) 419-7747

6 OLIVER J. DUNFORD, No. 320143

Email: [email protected]
7 Pacific Legal Foundation
4440 PGA Blvd., Suite 307
8 Palm Beach Gardens, Florida 33410
Telephone: (561) 691-5000
9
Attorneys for Petitioners
10

11 SUPERIOR COURT OF CALIFORNIA

12 COUNTY OF KERN

13
BCV-20-101361
14 PEGGY CHRISTENSEN and PETER MARTIN, No. __________________________

15 Petitioners, VERIFIED PETITION

FOR PEREMPTORY
16 v. WRIT OF MANDATE
(CCP § 1085)
17 CALIFORNIA JUDICIAL COUNCIL,

18 Respondent.

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Verified Petition for Peremptory Writ of Mandate
1
 1 INTRODUCTION

2 On April 6, 2020, the California Judicial Council responded to the coronavirus pandemic

3 by issuing 11 emergency rules of court. Among these was Emergency Rule 1 (“ER 1”), which

4 violates the fundamental rights of property owners by indefinitely suspending their right to initiate

5 unlawful detainer actions. The rule creates the perverse incentive for all tenants, whether they face

6 financial hardship or not, to refuse to pay their rent during the crisis. And it immunizes from

7 eviction even tenants who create nuisances, damage property, conduct illegal activity, or violate

8 lease terms. ER 1’s restrictions not only visit significant hardship on landlords like Petitioners; they

9 are also unconstitutional.

10 The rule effectively closes the courthouse doors to Petitioners and obstructs their right to

11 re-enter their own property. It does so because the Judicial Council determined as a matter of policy

12 that tenants should be immunized from eviction in virtually all cases. The rule therefore constitutes

13 a legislative decision forbidden to the Judicial Council under the principle of separation of powers

14 embodied in Article III, § 3, of the California Constitution.

15 Moreover, because ER 1 contradicts statutes recognizing landlords’ right to re-entry and

16 providing expedited procedures to effect that right, it violates Article VI, § 6(d), of the Constitution,

17 which requires Judicial Council rules to accord with all state statutes. Executive Order N-38-20,

18 which purports to suspend statutes conflicting with ER 1, did not excuse the Council from this

19 requirement by suspending contrary statutes. The order fails to meet the requirements of

20 Government Code § 8571, which permits the Governor to suspend certain statutes in a state of

21 emergency. Even if Executive Order N-38-20 otherwise complied with § 8571, however, the

22 Governor cannot delegate his suspension power to the Judicial Council as the order purports to.

23 Petitioners understand and are themselves affected by the difficulties of the current

24 pandemic and the impact of the lockdown orders. Both have worked and in general do work with

25 tenants who fall behind on their rent, whether due to the pandemic or other reasons. But Emergency

26 Rule 1 places Petitioners at the mercy of individuals who fail to pay rent, whether or not as a result

27 of financial hardship, and those who disturb other tenants and prevent Petitioners from welcoming

28 other renters in need of housing. The Court should hold the line on the separation of powers by
Verified Petition for Peremptory Writ of Mandate
2
 1 granting Petitioners’ petition for a peremptory writ of mandate under Code of Civil Procedure

2 § 1085 and directing the Judicial Council to revoke Emergency Rule 1.

3 PARTIES

4 Petitioners

5 1. Petitioners are property owners who seek to exercise their right to re-entry.

6 2. Peggy Christensen, 63, is a retired medical-devices consultant. She owns through

7 her living trust an 8-unit complex in Mojave. Peggy keeps the units in good condition and usually

8 has good relations with her tenants, including accepting late payments and waiving late fees. One

9 of her tenants lived in a unit with his girlfriend, but he subsequently abandoned the unit and ceased

10 paying rent. Though Peggy has not and would not have rented to the woman, Peggy allowed her to

11 continue to live in the unit out of compassion. However, she has damaged the property, disturbed

12 the other tenants, and created a nuisance. As a result, Peggy has received numerous complaints

13 from other tenants. In addition, though this individual paid rent intermittently in the past, she has

14 not paid rent since February 2020 and has not claimed any coronavirus-related hardship. Peggy

15 now wishes to evict her. Emergency Rule 1 prevents Peggy from doing so.

16 3. Peter Martin, 59, is a retired attorney who owns through his living trust a 27-space

17 mobile home park in Arcata. According to a local news outlet, one of his tenants was arrested in

18 January 2020 on drug and firearms charges. In March 2020, the Humboldt County Drug Task Force

19 served a search warrant on the tenant’s mobile home. Peter’s property managers have reported to

20 him that other tenants have complained of this tenant. In addition, this tenant has not paid rent since

21 January and has not claimed any coronavirus-related hardship. As a result, Peter attempted to evict

22 this tenant for disturbing the other tenants by engaging in unlawful drug activities on the premises.

23 The Superior Court of Humboldt County refused to issue a summons due to Emergency Rule 1.

24 Respondent

25 4. The California
` Judicial Council is an administrative body established by the

26 California Constitution “[t]o improve the administration of justice.” Cal. Const. art. VI, § 6(d).

27 Among the Judicial Council’s duties is to “adopt rules for court administration, practice and

28 procedure, and perform other functions prescribed by statute.” Id.

Verified Petition for Peremptory Writ of Mandate
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 1 JURISDICTION AND VENUE

2 5. The Court has jurisdiction of this petition for peremptory writ of mandate pursuant

3 to Code of Civil Procedure § 1085.

4 6. Venue is proper in the county in which “the cause, or some part of the cause, arose,”

5 for a suit against a public officer’s act. Cal. Code Civ. Proc. § 393(b). Government agencies are

6 public officers for purposes of § 393. Regents of Univ. of Cal. v. Sup. Ct., 3 Cal. 3d 529, 537–38

7 (1970). A cause arises where the plaintiff or petitioner is injured by the state action complained of.

8 Cal. State Parks Found. v. Sup. Ct., 150 Cal. App. 4th 826, 834 (2007). Emergency Rule 1 injures

9 Peggy Christensen in Kern County, where her property is located. Venue is therefore proper in

10 Kern County. In addition, venue is proper in the Metropolitan Division of Kern County Superior

11 Court, because the instant suit is an unlimited civil action. L.R. 1.7.5(b).

12 GENERAL ALLEGATIONS

13 The Emergency Services Act and the Governor’s Orders

14 7. On March 4, 2020, Governor Newsom proclaimed a state of emergency as a result

15 of the COVID-19 pandemic. 1

16 8. Since then, the Governor has issued a number of executive orders related to the

17 pandemic pursuant to the Emergency Services Act (“ESA”) and particularly Government Code

18 § 8571.

19 9. Section 8571 permits the Governor, “[d]uring a . . . state of emergency,” to “suspend

20 any regulatory statute, or statute prescribing the procedure for conduct of state business, or the

21 orders, rules, or regulations of any state agency . . . where the Governor determines and declares

22 that strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder,

23 or delay the mitigation of the effects of the emergency.”

24 10. On March 16, 2020, the Governor issued Executive Order N-28-20 (“Order 28”). 2

25 The order suspends statutory

` restrictions on municipalities “to impose substantive limitations on

26
1
27 https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-
Proclamation.pdf.
2
28 https://www.gov.ca.gov/wp-content/uploads/2020/03/3.16.20-Executive-Order.pdf.
Verified Petition for Peremptory Writ of Mandate
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 1 residential or commercial evictions” in hardship cases—that is, where the eviction is due to

2 nonpayment of rent or foreclosure as a result of a documented, COVID-19-related decrease in

3 income or increase in medical expenses. Order 28 also suspends all “statutory cause[s] of action”

4 for eviction, including Code of Civil Procedure § 725a, et seq. (regarding judicial foreclosures) and

5 Code of Civil Procedure § 1161, et seq. (regarding unlawful detainer), “only to the extent of the

6 limitation imposed by the local government” and “only as applied to any tenancy, or residential

7 real property” subject to such a limitation. These provisions were to expire on May 31, but they

8 were extended by Executive Order N-66-20 through July 28. 3

9 11. On March 27, 2020, the Governor issued Executive Order N-37-20 (“Order 37”). 4

10 The order granted residential tenants several eviction-related reprieves. It forbade the execution of

11 eviction writs for eligible tenants and extended the deadline for a tenant to respond to an unlawful

12 detainer action. The order was limited to residential tenants experiencing hardship due to COVID-

13 19, and these tenants were also required to have been current on their rent prior to the order, retain

14 documentation of their hardship, and timely notify the landlord of their hardship. Order 37 expired

15 on May 31.

16 12. Also on March 27, the Governor issued Executive Order N-38-20 (“Order 38”). 5

17 The order states, in relevant part, that “[i]n the event that the Judicial Council or its Chairperson

18 . . . wishes to consider a rule that would otherwise be inconsistent with any statute concerning civil

19 or criminal practice or procedure, the relevant statute is suspended.” Order 38. The order states that

20 this provision is an attempt to satisfy Article VI, § 6, of the California Constitution by “ensuring

21 that the rules adopted ‘shall not be inconsistent with statute.’” Id.

22 Emergency Rule 1

23 13. On April 4, 2020, five internal chairs of the Judicial Council recommended the

24 adoption of 11 emergency rules of court.

25 /// `
26
3
https://www.gov.ca.gov/wp-content/uploads/2020/05/5.29.20-EO-N-66-20.pdf.
27 4
https://www.gov.ca.gov/wp-content/uploads/2020/03/3.27.20-EO-N-37-20.pdf.
28 5
https://www.gov.ca.gov/wp-content/uploads/2020/03/3.27.20-N-38-20.pdf.
Verified Petition for Peremptory Writ of Mandate
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 1 14. On April 6, 2020, the Judicial Council adopted all 11 proposed rules, including

2 Emergency Rule 1.

3 15. Emergency Rule 1 provides:

4 (a) Application

5 Notwithstanding any other law, including Code of Civil Procedure sections

1166, 1167, 1169, and 1170.5, this rule applies to all actions for unlawful
6 detainer.
7 (b) Issuance of summons
8 A court may not issue a summons on a complaint for unlawful detainer unless
the court finds, in its discretion and on the record, that the action is necessary
9 to protect public health and safety.
10 (c) Entry of default
11 A court may not enter a default or default judgment for restitution in an
unlawful detainer action for failure of defendant to appear unless the court
12 finds both of the following:
13 (1) The action is necessary to protect public health and safety; and
14 (2) The defendant has not appeared in the action within the time provided by
law, including by any applicable executive order.
15
(d) Time for trial
16
If a defendant has appeared in the action, the court may not set a trial date
17 earlier than 60 days after a request for a trial is made unless the court finds that
an earlier trial date is necessary to protect public health and safety. Any trial
18 set in an unlawful detainer proceeding as of April 1, 2020 must be continued
at least 60 days from the initial date of trial.
19
(e) Sunset of rule
20
This rule will remain in effect until 90 days after the Governor declares that
21 the state of emergency related to the COVID-19 pandemic is lifted, or until
amended or repealed by the Judicial Council.
22

23 16. Emergency Rule 1 therefore indefinitely bars landlords from initiating, prosecuting,

24 and obtaining relief through unlawful detainer actions.

25 17. On June `8, 2020, the Judicial Council issued a proposed amendment to Emergency

26 Rule 1. The amendment would have altered section (e) to read:

27 ///

28 ///
Verified Petition for Peremptory Writ of Mandate
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 1 (e) Sunset of rule

2 This rule will remain in effect until August 3, 2020, or until amended or
repealed by the Judicial Council. Notwithstanding Code of Civil Procedure
3 section 1170.5 and this subdivision, any trial date set under (d) as of August 3,
2020, will remain as set unless a court orders otherwise.
4 18. The Judicial Council’s vote on the amendment was scheduled for June 10, but the
5 vote was suspended. News Release, California Courts, Chief Justice Suspends Vote on Eviction,
6 Foreclosure Emergency Rules (June 10, 2020). 6
7 Constitutional Limitations on Judicial Council Rulemaking
8 19. The California Constitution contains at least three relevant limits on the Judicial
9 Council’s rulemaking power.
10 20. First, the Constitution divides the legislative, executive, and judicial powers of
11 government among three separate branches and provides that: “Persons charged with the exercise
12 of one power may not exercise either of the others except as permitted by this Constitution.” Cal.
13 Const. art. III, § 3. Accordingly, the “‘core’ or ‘essential’ functions” of a branch “may not be
14 usurped by another branch.” Le Francois v. Goel, 35 Cal. 4th 1094, 1102–03 (2005) (quoting
15 People v. Bunn, 27 Cal. 4th. 1, 14 (2002)). Neither may a branch “practically defeat” or “materially
16 impair” another branch’s core powers. Id. (quoting Sup. Ct. v. Cty. of Mendocino, 13 Cal. 4th 45,
17 54 (1996)).
18 21. Second, the Judicial Council may only “adopt rules for court administration, practice
19 and procedure, and perform other functions prescribed by statute.” Cal. Const. art. VI, § 6(d). It
20 may do so only to “improve the administration of justice.” As a result, “in the absence of legislative
21 authorization,” the Council may adopt no “rules governing substantive matters.” People v. Wright,
22 30 Cal. 3d 705, 711–12 (1982).
23 22. Third, the Judicial Council’s rules “shall not be inconsistent with statute.” Cal.
24 Const. art. VI, § 6(d). “In this context, a rule is inconsistent with a statute if it conflicts with either
25 `
the statute’s express language or its underlying legislative intent.” In re Abbigail A., 1 Cal. 5th 83,
26 92 (2016) (quoting In re Alonzo J., 58 Cal. 4th 924, 937 (2014)).
27
6
https://newsroom.courts.ca.gov/news/chief-justice-suspends-vote-on-eviction-foreclosure-
28 emergency-rules.
Verified Petition for Peremptory Writ of Mandate
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 1 Petitioners’ Interests

2 23. Petitioners are beneficially interested in the revocation of Emergency Rule 1,

3 because its revocation would restore their right to re-enter their property.

4 24. Petitioners have no plain, speedy, and adequate remedy, in the ordinary course of

5 law, available to them to seek review of Emergency Rule 1. See Cal. Code Civ. Proc. § 1086. The

6 only means by which review of ER 1 may be had is through writ of mandate or other equitable

7 relief.

8 25. As set forth herein, the Judicial Council in issuing Emergency Rule 1 violated its

9 public duty to comply with constitutional limitations in crafting rules of court. The Council is

10 therefore under a public duty to revoke the rule. As citizens of California, Petitioners have an

11 interest in the Council’s executing its duty. See Green v. Obledo, 29 Cal. 3d 126, 144 (1981).

12 26. Without the Petitioners’ action, other persons beneficially interested in the legality

13 of ER 1 would be unable to vindicate that interest, because of their inability to comment adequately

14 on the proposed rule, as well as the burden imposed on them by the time and cost of litigation.

15 Petitioners are ably positioned to represent the public interest in this action, given their beneficial

16 and other interests as landlords and property owners. Finally, Petitioners’ action will confer a broad

17 and important benefit on the public and will inure to the public interest by confirming important

18 limitations on the Council’s rulemaking power that will in turn safeguard the public from agency

19 overreach.

20 27. Petitioners have lost rent as a result of the Judicial Council’s issuance of Emergency

21 Rule 1 and its failure to rescind the rule. In the absence of Emergency Rule 1, Petitioners would

22 have evicted their respective tenants and been able to welcome others in need of housing.

23 28. Peggy Christensen’s property is almost always full. Other than gaps of less than one

24 month for cleaning and repairs between tenants, the property has been full since mid-2017, when

25 Peggy acquired the property.

` The property has been full for the duration of Emergency Rule 1. Her

26 last vacancy, when a tenant moved out at the end of February 2020, received 20 inquiries and was

27 filled by March 9. In early March, she received a rental application from a well-qualified

28 prospective tenant. But for Emergency Rule 1, Peggy would have initiated the evictions process
Verified Petition for Peremptory Writ of Mandate
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 1 against the disruptive tenant in April in order to accommodate this applicant. In the months since

2 Emergency Rule 1 issued, Peggy has received multiple unsolicited requests to rent. In addition, two

3 of her current tenants have contacted Peggy urgently seeking housing for their friends. But for

4 Emergency Rule 1, Peggy would have been able to effect an eviction and been able to welcome a

5 rent-paying tenant in need of housing. The rent she has lost as a result of Emergency Rule 1

6 increases with each month.

7 29. Peter Martin’s mobile home park is almost always full, and it has been full for the

8 duration of Emergency Rule 1. The property’s last vacancy was in January, and it typically receives

9 one to five inquiries per week from individuals seeking a vacancy. Peter filed an unlawful detainer

10 action against the disruptive tenant on April 13, 2020, but the court declined to issue a summons

11 two days later due to Emergency Rule 1. But for Emergency Rule 1, Peter would have been able to

12 effect an eviction and been able to welcome a rent-paying tenant in need of housing. The rent he

13 has lost as a result of Emergency Rule 1 increases with each month. In addition to this tenant, Peter

14 has at least one other tenant who has ceased paying rent and has not claimed a coronavirus-related

15 hardship. But for Emergency Rule 1, Peter could have evicted these tenants. The resulting lost rent

16 increases with each month

17 FIRST CAUSE OF ACTION FOR PEREMPTORY WRIT OF MANDATE

18 (Cal. Code Civ. Proc. § 1085; Cal. Const. art. III, § 3)

19 30. The above paragraphs are hereby realleged.

20 31. In adopting Emergency Rule 1, the Judicial Council usurped the Legislature’s core

21 functions in violation of the separation-of-powers guarantee in Article III, § 3, of the state

22 Constitution.

23 32. Foremost amongst the Legislature’s core powers is the “power to make the law.”

24 Carmel Valley Fire Prot. Dist. v. State, 25 Cal. 4th 287, 299 (2001) (quoting Loving v. United

25 States, 517 U.S. 748, 758

` (1996)). “This essential function embraces the far-reaching power to
26 weigh competing interests and determine social policy.” Bunn, 27 Cal. 4th at 14–15. Thus, only the

27 Legislature may “resol[ve] . . . fundamental policy issues” and “provide . . . direction for the

28 implementation of that policy.” Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., 3 Cal.
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 1 5th 1118, 1146 (2017) (quoting Carson Mobilehome Park Owners’ Ass’n v. City of Carson, 35 Cal.

2 3d 184, 190 (1983)). “[A]bsent a constitutional prohibition, the choice among competing policy

3 considerations in enacting laws is a legislative function,” and “[t]he judiciary . . . may not undertake

4 to evaluate the wisdom of the policies embodied in such legislation.” County of Mendocino, 13 Cal.

5 4th at 53.

6 33. In adopting Emergency Rule 1, the Judicial Council made a classic policy decision

7 that is properly the Legislature’s domain, not the Judicial Council’s. Specifically, in explaining its

8 reasons for adopting the rule, the Council improperly weighed social interests and struck a balance

9 amongst them.

10 34. Emergency Rule 1 was motivated by at least four reasons: (1) Order 37’s eviction

11 moratorium “cannot by itself provide sufficient assistance to tenants and courts to avert this crisis”;

12 (2) unlawful detainer actions “require very fast legal responses (within five days) from defendants

13 who are often self-represented and at a time when court self-help centers and legal aid services are

14 not readily available”; (3) unlawful detainer actions “threaten to remove people from the very

15 homes they have been instructed to remain in”; and (4) “the number of such actions for both

16 commercial and residential properties is likely to explode in coming months . . . resulting in a surge

17 of unlawful detainer filings and trials in the courts.” Judicial Council of California, Report to the

18 Judicial Council, Item No. 20-141, at 7 (Apr. 4, 2020).

19 35. These reasons, particularly the first, show that ER 1 constitutes a forbidden policy

20 judgment. ER 1 effectively overruled Order 37 for, in the Judicial Council’s determination,

21 insufficiently protecting tenants. Whereas Order 37 created limited reprieves for certain, qualified

22 residential tenants only until May 31, 2020, ER 1 creates an indefinite blanket ban on unlawful

23 detainers actions against all residential and commercial tenants, subject only to a discretionary

24 health-and-safety exception.

25 36. Even in `considering whether to sunset ER 1 on August 3, the Judicial Council

26 admitted it stepped into the Legislature’s shoes when it issued the rule. The circulating order

27 memorandum accompanying the proposed amendment states that ER 1’s purpose was to “address[]

28 the immediate crisis,” Judicial Council of California, Circulating Order Memorandum, No. CO-20-
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10
 1 10, at 7 (June 8, 2020), at a time when “the Legislature was not in session to address these issues.”

2 Id. at 4. Likewise, the Chief Justice, in suspending the Judicial Council vote on the amendment,

3 stated that ER 1 was adopted because “the Legislature was not in session.” Chief Justice Suspends

4 Vote on Eviction, Foreclosure Emergency Rules, supra. But “now that the Legislature is

5 considering these areas of the law, the chairs [of the Judicial Council] concluded that it was

6 appropriate to cede the balancing of the substantive policy to the consideration of the Legislature.”

7 Circulating Order Memorandum, supra, at 7.

8 37. The power to determine substantive policy is not one that the Judicial Council may

9 seize and return as it deems “appropriate.” Making substantive policy is a core power inherent in

10 the Legislature and forbidden to the Judicial Council. The Constitution does not permit the judiciary

11 to assume legislative power simply because the Legislature is not in session. Chief Justice Cantil-

12 Sakauye also appeared to acknowledge ER 1’s tension with the separation of powers when, in

13 suspending the vote on the ER 1 amendment, she stated that “[t]he judicial branch cannot usurp the

14 responsibility of the other two branches to deal with the myriad impacts of the pandemic.” Chief

15 Justice Suspends Vote on Eviction, Foreclosure Emergency Rules, supra.

16 38. ER 1 also “practically defeat[s]” the Legislature’s determination that summonses,

17 defaults, and default judgments should immediately issue when statutory conditions are met.

18 Le Francois, 35 Cal. 4th at 1102 (quoting County of Mendocino, 13 Cal. 4th at 54). In addition,

19 ER 1 practically defeats statutes recognizing landlords’ right to re-entry and property owners’ right

20 to possess their property. Finally, it practically defeats the Legislature’s decision to grant only

21 limited emergency powers to the judiciary. See Cal. Gov’t Code § 68115.

22 39. Because ER 1 violates Article III, § 3, of the Constitution, it must be withdrawn.

23 SECOND CAUSE OF ACTION FOR PEREMPTORY WRIT OF MANDATE

24 (Cal. Code Civ. Proc. § 1085; Cal. Const. art. VI, § 6(d))

25 40. The above

` paragraphs are hereby realleged.
26 Emergency Rule 1 Is Inconsistent with Statute

27 41. The Constitution forbids the Judicial Council from issuing rules that are

28 “inconsistent with statute.” Cal. Const. art. VI, § 6(d).

Verified Petition for Peremptory Writ of Mandate
11
 1 42. Emergency Rule 1 directly conflicts with several statutes.

2 43. First, it explicitly purports to abrogate Code of Civil Procedure §§ 1166 and 1169,

3 which require the immediate issuance of summonses, defaults, and default judgments when

4 statutory conditions are met. It also explicitly purports to abrogate the trial timeline provisions of

5 Code of Civil Procedure § 1170.5.

6 44. Second, by denying landlords the only procedure for vindicating their right of re-

7 entry under the terms of a lease, the rule undermines the letter and intent of Civil Code §§ 790–92,

8 which recognize landlords’ right to re-entry and express the Legislature’s intent that the right be

9 enforced by expedited proceedings. See In re Abbigail A., 1 Cal. 5th at 92 (“In this context, a rule

10 is inconsistent with a statute if it conflicts with either the statute’s express language or its underlying

11 legislative intent.” (quoting In re Alonzo J., 58 Cal. 4th at 937)). The rule also undermines Civil

12 Code § 654, which recognizes property owners’ “right . . . to possess and use [their property] to the

13 exclusion of others.”

14 45. The rule thus violates Article VI, § 6, of the California Constitution and must be

15 withdrawn.

16 46. Order 38 does not cause Emergency Rule 1 to be consistent with statute.

17 47. While the report to the Judicial Council invokes the authority of Order 38, that order

18 did not authorize and could not have authorized the Judicial Council to adopt ER 1, consistent with

19 Government Code § 8571.

20 48. First, in order to invoke § 8571, the Governor must “determine[] and declare[] that

21 strict compliance with [an eligible] statute . . . would . . . prevent, hinder, or delay the mitigation of

22 the effects of the emergency.” Cal. Gov’t Code § 8571. The determination and declaration are key

23 statutory prerequisites, because they ensure that the Governor suspends only statutes that he judges

24 to be an obstacle to resolving the emergency. Such provisions were enacted to preserve

25 transparency and accountability

` when government officials exercise extraordinary powers in times

26 of emergency.

27 49. Order 38 makes no such determination or declaration as to any statute. Compare

28 with, e.g., Gavin Newsom, Proclamation of a State of Emergency, at PDF 2 (Mar. 4, 2020)
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12
 1 (“[U]nder the provisions of Government Code section 8571, I find that strict compliance with
2 various statutes and regulations specified in this order would prevent, hinder, or delay appropriate
3 actions to prevent and mitigate the effects of the COVID-19.”) 7; Gavin Newsom, Executive Order
4 N-62-20, at PDF 1 (May 6, 2020) (same); Gavin Newsom, Executive Order N-66-20, at PDF 2
5 (May 29, 2020) (same). Order 38 therefore has no force under § 8571 and cannot authorize ER 1.
6 50. Second, § 8571 is not a broad grant of power to the Governor to suspend any statute

7 during an emergency, but only statutes in three categories: “regulatory statute[s]”; those that

8 “prescrib[e] the procedure for conduct of state business”; or “orders, rules, or regulations of any

9 state agency.” Cal. Gov’t Code § 8571. None of the statutes with which ER 1 conflicts fall into any

10 of these categories, and so Order 38 cannot save ER 1 from invalidity under Article VI, § 6(d), of

11 the California Constitution.

12 51. Third, even if § 8571 permitted the Governor to suspend all statutes with which

13 ER 1 conflicts, Order 38’s suspension is limited by its own terms to “statute[s] concerning civil or

14 criminal practice or procedure.” Order 38(3). The Judicial Council therefore may not rely on Order

15 38 to suspend Civil Code §§ 654 and 790–91, which do not concern practice or procedure but rather

16 recognize and codify substantive rights. For reasons set forth above, ER 1 conflicts with these

17 provisions.

18 52. Fourth, § 8571 requires the Governor to decide which statutes to suspend; he may

19 not turn that choice over to the Judicial Council, based on whatever emergency rules the Judicial

20 Council might consider, as Order 38 purports to do.

21 53. “When the Legislature has made clear its intent that one public body or official is to

22 exercise a specified discretionary power, the power is in the nature of a public trust and may not be

23 exercised by others in the absence of statutory authorization.” Bagley v. City of Manhattan, 18 Cal.

24 3d 22, 24 (1976) (en banc) (citations omitted), superseded by statute on other grounds as stated in

25 San Diego Hous. Comm’n

` v. Pub. Emp’t Relations Bd., 246 Cal. App. 4th 1 (2016). Such

26 authorization must be “express[].” City of Los Angeles v. Sup. Ct., 56 Cal. 4th 1086, 1094 (2013).

27
7
https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-
28 Proclamation.pdf.
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13
 1 54. Section 8571 empowers only the Governor to suspend statutes, and no statute

2 permits the Governor to delegate the choice of statutes to suspend to the Judicial Council. Compare

3 with Cal. Gov’t Code § 8587 (“[T]he Governor may delegate any of the powers vested in him or

4 her under this chapter to the secretary [of emergency services] except the power to make, amend,

5 and rescind orders and regulations, and the power to proclaim a state of emergency.”). Indeed,

6 § 8571’s declaration requirement necessarily requires the Governor to decide which statutes

7 impede recovery and should be suspended.

8 55. Therefore, by transferring the choice of statute to suspend to the Judicial Council,

9 Order 38 violates the ESA and overrides the Legislature’s will in violation of the separation of

10 powers. See County of Mendocino, 13 Cal. 4th at 53 (“The executive branch . . . may not disregard

11 legislatively prescribed directives . . . .”); Knudsen Creamery Co. of Cal. v. Brock, 37 Cal. 2d 485,

12 492 (1951) (Executive officers may not “vary or enlarge the terms or conditions” of their statutory

13 power. (quoting Boone v. Kingsbury, 206 Cal. 148, 161 (1928))). The Judicial Council therefore

14 could not have issued ER 1 in reliance on Order 38’s delegated suspension of contrary statutes.

15 56. Fifth, suspensions under § 8571 are valid only “[d]uring a state of war emergency

16 or a state of emergency.” Cal. Gov’t Code § 8571. As a result, when the Governor sunsets the

17 declaration of emergency, suspended statutes will automatically return to effect. The Judicial

18 Council therefore cannot rely on Order 38 to sustain ER 1 for 90 days beyond the end of the declared

19 emergency.

20 Emergency Rule 1 Is Ultra Vires

21 57. The Judicial Council may issue only rules “for court administration, practice and

22 procedure.” Cal. Const. art. VI, § 6(d). It may also “perform other functions prescribed by statute.”

23 Id. As a result, “in the absence of legislative authorization,” the Council may adopt no “rules

24 governing substantive matters.” People v. Wright, 30 Cal. 3d 705, 711–12 (1982).

25 58. When considering

` the procedural or substantive nature of a legal provision, courts

26 examine its effect. See, e.g., Tapia v. Sup. Ct., 53 Cal. 3d 282, 289 (1991) (holding, in context of

27 retroactivity analysis, the determination of a statute’s substantive or procedural nature turns on “the

28 law’s effect, not its form or label”); see also Duran v. U.S. Bank Nat’l Ass’n, 59 Cal. 4th 1, 40
Verified Petition for Peremptory Writ of Mandate
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 1 (2014) (“Procedural innovation must conform to the substantive rights of the parties.”); Morris v.

2 Pac. Elec. Ry. Co., 2 Cal. 2d 764, 768 (1935) (holding that “the Legislature may not, under pretense

3 of regulating procedure . . . , deprive a party of a substantive right, such as a good cause of action

4 . . . which existed theretofore”).

5 59. By blocking all evictions unless an individual court grants an exception, “in its

6 discretion” and pursuant to unspecified procedures and standards, ER 1 has the effect of destroying

7 property owners’ right to re-entry. It is therefore a substantive rule, not one “for court

8 administration, practice and procedure.” Cal. Const. art. VI, § 6(d).

9 60. The Judicial Council also did not issue ER 1 pursuant to its “other functions

10 prescribed by statute.” Id.

11 61. Therefore, ER 1 is ultra vires of the Judicial Council’s powers under Article VI,

12 § 6(d), of the California Constitution.

13 PRAYER FOR RELIEF

14 WHEREFORE, Petitioners pray for relief as follows:

15 1. For a peremptory writ of mandate directing the Judicial Council to rescind

16 Emergency Rule 1.

17 2. For compensatory damages pursuant to Code of Civil Procedure § 1095.

18 3. For an award of attorneys’ fees and costs pursuant to Code of Civil Procedure

19 § 1021.5, or other authority as appropriate.

20 4. For any other relief that the Court determines to be warranted.

21 DATED: June 15, 2020.

22 Respectfully submitted,

23 DAMIEN M. SCHIFF
MICHAEL A. POON
24 OLIVER J. DUNFORD
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By s/Damien M. Schiff_______________
26 DAMIEN M. SCHIFF
27 Attorneys for Petitioners
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Verified Petition for Peremptory Writ of Mandate
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 VERl f'ICATJON
2 I, Michael A. Poon, declar<:
3 I am an attorney for Pc1i1ioncrs Peggy Christensen and Peter Martin in 1his action.

4 Petitioners are absent from the counties where I and the othc-r attorneys for Petitioners maintain our
S offices, ru1d I submil 11\is verificMion OB bchAlf of Petitioners for 1ha1 reason. Cal. Code Civ. Proc.
6 § 446(a). f have read the foregoing Vcri fi<:d Pe1i1ion for Peremptory Wril of Mandate. J am

7 informed and believe, and on that ground allege, 1hnt llhc maners stated in that pleading are true.

8 I dC(:larc w1der pe.11ahy of perjury under the law;::;: of the State ofCalifornia that the foregoing
9 is rrue and correct

10
11 DATED: June 15. 2020.
MICHAEL A. POON
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