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August 13, 2021

Commercial Eviction Moratoriums Across California—Where Are We Now?

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Over the course of the past year and a half, individuals and businesses in California have been forced to adapt to a new way of life brought on by the coronavirus pandemic.  In response, state and local governments have adopted various legislation to accommodate these changes as well as measures to address financial hardships suffered as a result of the pandemic.  One crucial legislative focus has been on the inability of tenants to pay rent, including office, retail, industrial and other commercial tenants.

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July 23, 2021

Attorney Sean Ponist Named to the 2021 San Diego Super Lawyers List

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The Ponist Law Group is proud to announce that founding partner Sean E. Ponist has been selected as a 2021 San Diego Super Lawyer, an award bestowed upon those who “demonstrate the highest degree of professional achievement and peer recognition.” This marks the 11th year that he has been selected as a Super Lawyer.  The distinction is awarded to less than 5% of attorneys based on peer nomination and evaluation as well as independent research. Read More


October 6, 2020

Court Practice Series: Superior Court (Civil)

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Join us on Wednesday, October 14, 2020 to hear from Superior Court Judge Eddie C. Sturgeon and experienced trial attorney Sean E. Ponist as they discuss keys to success in the courtroom and useful tips for litigators.  The presentation will cover, among other things, “knowing your judge,” “sizing up your case,” motion practice and argument as well as trial pointers.  This legal education seminar is sponsored by the San Diego County Bar Association.

Mr. Ponist is a highly regarded trial attorney.  As a skilled civil litigator and former prosecutor, Mr. Ponist is a forceful courtroom advocate for his clients.  He has tried over 35 cases to verdict and brings significant litigation and trial experience to his representation of clients.  His practice covers a broad range of high stakes civil litigation matters, including real estate, construction and construction defect, business litigation as well as financial elder abuse and other elder abuse matters.


September 1, 2020

Attorney Sean Ponist Selected to the 2020 Northern California Super Lawyers List

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The Ponist Law Group is proud to announce that founding partner Sean E. Ponist has been selected as a 2020 Northern California Super Lawyer, highlighting those who “demonstrate the highest degree of professional achievement and peer recognition.”  This marks the 10th year that he has been selected as a Super Lawyer.  The distinction is awarded to less than 5% of attorneys based on peer nomination and evaluation as well as independent research.

Mr. Ponist is a highly regarded trial attorney.  As a skilled civil litigator and former prosecutor, Mr. Ponist is a forceful courtroom advocate for his clients.  He has tried over 35 cases to verdict and brings significant litigation and trial experience to his representation of clients.  His practice covers a broad range of high stakes civil litigation matters, including real estate, construction and construction defect, business litigation as well as financial elder abuse and other elder abuse matters.

Sean Ponist Super Lawyers Profile


August 31, 2020

Real Estate Brokerage During These Extraordinary Times

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Join us on September 9, 2020 to hear from Sean Ponist and other leading real estate professionals as they discuss “Real Estate Brokerage During These Extraordinary Times.” The presentation will look at new laws and current issues affecting real estate brokerage industry during these extraordinary times, including:

  • Recent dual agency cases and issues—the conflicts, the ethics and the liability;
  • Navigating broker duties—e.g., the duty to inspect and disclose vs. the obligation
    to shelter-in-place, etc.;
  • Agent advertising and promoting—when boasting becomes actionable;
  • Standard of care for agents involved in distressed sales, e.g., short sales and foreclosures;
  • New COVID-19 disclosures and other disclosures in real estate transactions.

This program is sponsored by the Real Property section of the San Francisco Bar Association and will be held on September 9, 2020 from 12:00 pm to 1:30 pm.

Click here to download the event flyer

Click here to register for the event


August 14, 2020

California’s Judicial Council Lifts Stay on Evictions Effective September 1, 2020

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In the wake of the novel coronavirus pandemic, city and county governments throughout the State of California passed laws to stay eviction proceedings against tenants, including commercial tenants. Additionally, the Judicial Council of California also took action to protect tenants. On August 13, 2020, however, the Judicial Council of California voted to end the emergency rules affecting evictions and foreclosures (Rules 1 and 2, respectively) effective September 1, 2020.

The Judicial Council had originally approved the temporary emergency rules staying eviction and foreclosure proceedings on April 6, 2020. The Judicial Council effected this stay by prohibiting any California court from issuing a summons—i.e., a document necessary to commence legal action—in connection any eviction or foreclosure proceeding, unless the court found “that the action [was] necessary to protect public health and safety.”

At the recent Judicial Council meeting, however, the Judicial Council determined that the stay was no longer appropriate. As stated by Chief Justice Tani G. Cantil Sakauye:

The judicial branch cannot usurp the responsibility of the other two branches on a long-term basis to deal with the myriad impacts of the pandemic … The duty of the judicial branch is to resolve disputes under the law and not to legislate.

I urge our sister branches to act expeditiously to resolve this looming crisis. They have had since March 2020 to explore remedies that will provide fairness to all parties while recognizing the limitations the pandemic has placed on our residents and our institutions. Practical, fair solutions may involve special treatment for COVID-related housing issues that would require parties to mediate their issues before coming to a court system dealing COVID related backlogs.

While there is pending legislation to provide further protections for residential tenants (see e.g., Calif. SB-1410), notably, there is not any such pending legislation to protect commercial tenants.

Nonetheless, despite the sunset of Rules 1 and 2, it is important to keep in mind that a patchwork of varying local legislation is still in place across California, which may still limit a landlord’s ability to evict non-paying tenants. Thus, it is still important for both landlords and tenants alike to fully understand the particular eviction rules and ordinances that are still applicable to them.


July 23, 2020

The Art of Taking & Defending Virtual Depositions

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Join us on August 3, 2020 to hear from Sean Ponist and other leading civil litigators attorneys as they discuss the new age of taking and defending virtual depositions. The 1 hour CLE will cover the entire virtual deposition process, from the new (virtual) deposition notices and admonitions through tips to having your client make the best impression for the camera. This legal education seminar is sponsored by the San Diego County Bar Association.

Topics include:

  • The nuts-and-bolts of taking a virtual deposition (including a discussion of remote realtime, videography and exhibit sharing);
  • Taking the deposition as if you were in trial (as it may very well be used in lieu of live testimony at trial);
  • Defending the deposition remotely (away from your client/witness and everyone else);
  • Preparing your client/witness to make a great impression (including a discussion of the impact of stereotypes, biases, nonverbal language, etc.).

Click here to register for the event.


April 2, 2020

It’s the Start of the Month—Rent Is Due or Is It?

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The coronavirus pandemic, together with the government response thereto, has impacted everyone’s life.  The governmental measures, while prudent, have also placed an incredible strain on nearly every business.  In an effort to lessen the impact on businesses, many cities and counties have enacted rent protection measures to assist businesses with their commercial lease obligations. 

Below we discuss these measures and, specifically, address the following: 

(1) Recent laws enacted to protect businesses as well as older laws which may also afford protection to struggling businesses;

(2) A deep-dive look into the City of San Diego’s ‘Moratorium on Evictions’ designed to assist and protect businesses; and,

(3) How a business can (and should) provide notice in order to avail itself of these protections, along with a sample notification letter for businesses.

I.  Commercial Tenant Protections, New and Old

At nearly every level of government—state, county and municipal—laws have recently been enacted to protect struggling businesses from eviction and rent payment obligations during these difficult times. 

At the state level, Governor Newsom issued Executive Order N-37-20 on March 27, 2020, which halts evictions of renters who are unable to pay rent due to reasons related to COVID-19 through May 31, 2020.  This executive order expands on Governor Newsom’s previous Executive Order N-28-20, which enables local governments to enact regulations limiting landlords’ ability to evict residential or commercial tenants.

At the county and city level, many local governments have enacted legislation placing moratoriums on eviction of both residential and commercial tenants.  On March 25, 2020, San Diego enacted Ordinance Number O-21177, which bars evictions for nonpayment of rent by both residential and commercial tenants who are directly impacted by COVID-19.  Similarly, Los Angeles has enacted similar prohibitions on evictions of residential and commercial tenants through at least April 19, 2020 (see Executive Order of Mayor Garcetti; LA Board of Supervisors Executive Order).

Local governments in Northern California have enacted similar measures.  The City and County of San Francisco has prohibited commercial evictions from March 17, 2020, through at least April 16, 2020 (30 days), (see Executive Order of Mayor Breed).  Other localities in the Bay Area have also placed limitations on evictions, with Oakland (Emergency Ordinance), Santa Clara County (Ordinance NS-9.287), and the City of San Mateo (Ordinance 2020-3) prohibiting both residential and commercial evictions through May 31, 2020.

It should be noted that, while many local governments in California have temporarily halted evictions, tenants’ rent obligations are not forgiven and must be repaid within the timeframe specified in the particular regulations.  Moreover, all local legislation specifies specific procedures that tenants affected by COVID-19, or impacts thereof, must follow in order to avail themselves to eviction protections.

Additionally, there are laws already on the books providing relief for force majeure events, i.e., extraordinary events that could not have been reasonably anticipated.  California Civil Code § 1511 expressly provides that performance under a contract is excused where, by “operation of law” or “superhuman cause,” such performance is prevented or delayed.  Likewise, California Civil Code § 3526 provides that “[n]o man is responsible for that which no man can control.”  Although none of the statewide or local moratoriums on evictions excuse tenants from paying rent, where, as here, “superhuman causes” like COVID-19 and governmental orders requiring people to shelter-in-place have caused commercial tenants to be unable to operate their businesses and pay rent, an argument can be made that performance under the leasing contracts (i.e., paying rent) should be excused. 

II.  City of San Diego Ordinance O-21177 (“TEMPORARY MORATORIUM ON EVICTIONS DUE TO NONPAYMENT OF RENT FOR RESIDENTIAL AND COMMERCIAL TENANTS”)

On March 25, 2020, the City of San Diego enacted Ordinance O-21177 which not only placed a moratorium on evictions of residential tenants for nonpayment of rent, but commercial tenants as well.  Specifically, in an effort to assist businesses, the Ordinance provides:

  • “No landlord shall take action to evict a tenant for not timely paying rent that was due on or after March 12, 2020, if the tenant provided written notice to the landlord, on or before the date the rent was due, that the tenant is unable to pay rent due to financial impacts related to COVID-19.”
  • “‘[F]inancial impacts’ means a substantial decrease in … business income for a commercial tenant, due to business closure, loss of compensable hours of work or wages, layoffs, or substantial out-of-pocket medical expenses.”
  • “A financial impact is ‘related to COVID-19’ if it is caused by the COVID-19 pandemic or any governmental response to the COVID-19 pandemic, including complying with any public health orders or recommended guidance related to COVID-19 from local, state, or federal governmental authorities.”

The Ordinance further requires that, “[w]ithin one week of providing notice under subsection (a), the tenant shall provide the landlord documentation or objectively verifiable information that the tenant is unable to pay rent due to financial impacts related to COVID-19.”  Critically, “[i]f the tenant does not provide evidence of financial impacts related to COVID-19 within this time frame, the landlord may pursue any enforcement action in accordance with state and local laws.”

“If a tenant complies with the requirements of this Ordinance, a landlord shall not take any of the following actions based on the tenant’s nonpayment of rent: charge or collect any late fees for rent that is delayed for the reasons set forth in this Ordinance, serve a notice, file, or prosecute any action to obtain possession of the property rented by that tenant or otherwise endeavor to evict that tenant for nonpayment of rent.”

The Ordinance further provides that affected tenants “shall have up to six months from the date this Ordinance is effective or the withdrawal of Governor Newsom’s Executive Order N-28-20, whichever occurs soonest, to pay their landlords all unpaid rent” unless they move out sooner, in which all unpaid rent becomes due upon move out.  Importantly, the Ordinance does not “relieve[] the tenant of liability for unpaid rent after expiration of the provisions of this Ordinance,” but simply defers the obligation for up to six months or more. 

III.   How a Business Can (and Should) Provide Notice in Order to Avail Itself of These Protections (Sample Letter)

How businesses can (and should) provide notice of inability to pay to their landlords will vary depending upon the location of the business, the particular ordinances and laws affecting the lease and particular leasing circumstances.  Below we have provided an excerpt from a sample letter that a business operating in the City of San Diego may send:

Dear _________________,

We are currently unable to pay rent due to the financial impact of COVID-19.  The COVID-19 pandemic has impacted all aspects of our business at _________________.  We have experienced a substantial decrease in business income due to COVID-19, California’s shelter-in-place order and related travel bans. 

This letter serves as notice under City of San Diego Emergency Ordinance No. O-21177 of our inability to pay rent at this time and assertion of protected rights thereunder.  We further assert protections under Civil Code §§ 1511 and 3526 and reserve all rights thereunder.  Please see attached for documentation regarding our inability to pay rent due to the financial impact of COVID-19.

(You may click on this link for a fully editable copy of the sample letter; nonetheless, we encourage you to consult with your legal counsel before sending any such notification to ensure that the notification addresses your particular circumstances.)

While not an exhaustive list, below are a few important points to keep in mind when sending such a notification:

  • Timing. Rent is typically due on the first day of each month; thus, businesses should get these notifications out as soon as possible.  In fact, the San Diego Ordinance requires that notice be provided on or before the date that rent is due. 
  • Notice. Commercial leases typically contain a provision indicating to whom notice must be provided, where notice must be provided and how it needs to be provided.  While the San Diego Ordinance, for instance, appears to relax these standards (allowing for notice by email or text if tenant communicates with landlord in such fashion), it is most prudent to still abide by the notification requirements set forth in the lease. 
  • Entity/Entities. Be sure to list each and every tenant on the lease on whose behalf you are providing notice.  For instance, if you operate several different businesses out of the same location which are all tenants under the lease, be sure to list each and every one of those businesses. 

* * *

In these unprecedented times, we are here to help both commercial landlords and tenants navigate these state and local eviction guidelines.  Contact the Ponist Law Group today to set up a consultation with one of our experienced attorneys.

The information provided on this website is for informational purposes only and does not constitute legal advice.  You should contact a licensed attorney to discuss any particular issue or problem.  Use of and access to this website or any of the email links contained within the site does not create an attorney-client relationship.  

 


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July 9, 2019

The Ponist Law Group Welcomes Cary McReynolds as Of Counsel

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The Ponist Law Group is pleased to announce that Cary D. McReynolds is joining the firm as of counsel.  Mr. Ponist and Mr. McReynolds previously worked together at another firm and have worked on several significant matters together since.  Mr. McReynolds’ practice focuses on real estate, construction, and business litigation, as well as select family law matters on a case-by-case basis. He is a strong client advocate, with a proven record for success.  We hope you’ll join us in welcoming him to the firm.  More information about Mr. McReynolds can be found on his bio page.


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May 5, 2019

The Keys To The House: Unraveling Equitable Remedies In Real Property Transaction (Part 2 of 2)

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Join us on May 15, 2019 in San Francisco to hear from Sean Ponist and other leading real estate attorneys as they discuss recovering of real estate damages.   This legal education seminar is sponsored by the Bar Association of San Francisco who is hosting the event.

This seminar examines real estate remedies arising from disputes both before and after closing. This is the second in a two-part series and focuses on powerful remedies, beyond damages, to enforce client rights, including a discussion of rescission, reformation, specific performance and other equitable remedies. Read More


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    Recent Posts
    • The New Look of Trials December 9, 2021
    • With the Holidays Approaching, Here is a Quick Reminder to be Grateful for Your Family November 19, 2021
    • Closing Arguments with Renowned Trial Attorneys November 2, 2021
    • Sean Ponist Named to Both the San Diego Super Lawyers List and the Northern California Super Lawyers List for 2021 October 13, 2021
    • The Ponist Law Group Obtains a Complete Dismissal of Action on Behalf of Clients October 13, 2021
    • A Cautionary Tale to LLC Members with Minority Interests October 13, 2021
    • Sean Ponist Named to the 2021 Northern California Super Lawyers List October 8, 2021
    • Are Investment Notes “Securities” Under Federal Securities Laws? October 1, 2021
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