Ginger Smithfield and her four kids have one more day until they’re homeless. The sheriff is scheduled to lock them out of their northwest Fresno apartment first thing in the morning.
The Smithfields are one of hundreds of households across the Valley that have fallen through the cracks of the state’s patchwork of eviction protections without an attorney or any legal assistance to help navigate the complicated proceedings.
Tenant activists are pressing the Fresno City Council to adopt a “right to counsel” program, where renters facing eviction would be provided with legal aid, similar to how public defenders are available for criminal defendants without representation.
They say the program is critical in keeping people in their homes and off the streets. Evidence from cities with similar programs suggest there’s truth to that claim. A 2018 study found that evictions in New York City contributed to a significant and persistent increase in homelessness, along with higher emergency room use.
Evictions are, by all accounts, a devastating event, creating a trap of debt, bad credit, disrupted schooling and poor health outcomes that can linger over families for years, making a path out of poverty feel nearly impossible.
In Fresno County, just over 500 unlawful detainer cases (eviction lawsuits) were filed since the start of the pandemic, according to a Fresnoland/Fresno Bee public records act request. In a more typical year, the court might see over 3,000 eviction cases.
The “eviction tsunami” that many experts and activists predicted — in the wake of the pandemic-induced recession — hasn’t materialized quite yet, thanks to a patchwork of housing assistance programs, eviction protections, and some landlords willing to eat costs for now.
But the California Judicial Council predicts that as many as 240,000 evictions could be processed this year across the state.
And as more evictions find their ways through the cracks in the system, Fresno’s already significant homelessness problem could become much worse — especially as tenants struggle to keep up with the ever-changing patchwork of laws.
Less than 1% of tenants have legal representation in court, compared to 76% of landlords, according to a 2019 Faith in the Valley research report.
“The power imbalance is crushing,” said Patience Milrod, executive director of Central California Legal Services.
How the eviction process works
Once a landlord files an unlawful detainer lawsuit, the tenant receives a notice from the court, giving them five days to respond. They don’t automatically receive a court date. If they don’t respond, they default — or, automatically lose. The sheriff is called to lock the tenant out if they do not leave.
If a tenant responds, they’re given a date to show up in court. There’s typically a mandatory settlement conference, where a mediator attempts to bring the tenant and landlord to some resolution to avoid a formal eviction.
Defaults are very common. A recent study of tenants’ right to counsel pilots found the default rate was around 40% in the four California counties studied.
Smithfield, 60, defaulted in her eviction case. After she was served with the lawsuit, she contacted her friend, an attorney, who said he’d help her respond to the suit, but he got busy and forgot to file a response, she said. He, however, assured her that she’s protected by California’s eviction ban.
But she was not. California’s current eviction protections still allow landlords to file eviction lawsuits for a variety of reasons, including lease violations. So if someone falls behind on rent but fails to provide the landlord a written notice that their nonpayment is related to COVID-19, that could be grounds for eviction.
Smithfield says she was $2,100 behind on rent, but that she was evicted for taking in two of her children who had lived with her estranged partner in September. The eviction notice claims she violated the lease by having unauthorized occupants, pets, plus noise violations.
How ‘right-to-counsel’ works
Over a dozen cities and counties across the country have some form of a civic counsel program for tenants threatened with eviction, according to the National Coalition for a Civic Right to Counsel.
A true “right” to counsel would mean that no defendant in an unlawful detainer case would go without legal representation — something still rare in practice. In many cases, the goal is to increase tenants’ access to justice as much as resources allow. Some cities, like Los Angeles and New York City, have targeted counsel for tenants in zip codes where housing instability is more prevalent.
In California, the Sargent Shriver Civic Counsel Act of 2009 funded greater legal representation for lower-income defendants in civil cases across the state. In Fresno, a small pilot was run by Central California Legal Services’ attorneys in 2018-19 defending lower-income tenants in eviction cases.
The Shriver program’s premise was simple — increase access to justice for defendants in unlawful detainer cases by ensuring that every tenant has the ability to respond within the legally required five-day period.
Many tenants are confused by the current process. In Fresno County, the court hosts self-help clinics in partnership with Central California Legal Services to help tenants file a response to eviction lawsuits, but this program is not well publicized.
“Many tenants don’t even see the door on their way into the court, and know this is an option,” said Janine Nkosi, a lecturer at Fresno State and researcher with Faith in the Valley. The official lawsuit notice doesn’t include specific information directing tenants to the court’s self-help clinics, either.
Would Smithfield and her children have benefited from a right-to-counsel program?
For people who can access the services, the program works: an independent evaluation of the Shriver pilot programs found that only 3% of renters served with an unlawful detainer lawsuit were actually formally evicted in the counties where tenants had full representation.
Many landlords don’t accept new tenants who have an eviction on their record, leaving renters with limited options that often come with high security deposits and, at times, higher rents.
Now, days away from living in a car or shelter with her children, Smithfield is struggling to find a place to live — especially given a poor credit history from an eviction on her record.
Avoiding homelessness is one of a few important benefits of tenants’ access to legal counsel. Shriver-funded attorneys were able to negotiate waivers or reductions in past-due rent and fees, saving an average of $903 per tenant, according to the evaluation.
Most importantly, attorneys were able to protect tenants’ credit by excluding lawsuits from public records and credit agencies, and securing a neutral record from the landlord. No small deal: the ability to secure affordable and quality housing depends in no small part on the credit of the tenant.
Researchers have also found significant benefits for public agencies to avoid eviction: a 2018 study found that an eviction can cost agencies up to $8,000 per case in shelter, health care, and other public assistance costs.
The San Francisco model
One of the most comprehensive and robust right-to-counsel programs in the country is in San Francisco. The program has evolved from a pilot relying on a loose network of nonprofit legal services and pro-bono defense attorneys to a centralized network of legal aid and rent assistance programs, implemented by the Mayor’s Office of Housing and Community Development in partnership with the San Francisco Eviction Defense Collaborative.
After San Francisco residents passed Proposition F — establishing a universal tenant right to counsel — in November 2018, the program was redesigned to a more centralized, one-stop model in 2019.
Now, after a tenant gets served with an unlawful detainer, they receive clear directions on how to connect with the Eviction Defense Collaborative, who screens their case and refers them to the appropriate resources — rental assistance, a mediation attorney or full-scope legal assistance.
“The more points of contact a tenant has, the more chance they’re going to stop, and give up,” said Martina Cucullu Lim, executive director of the San Francisco Eviction Defense Collaborative, reiterating that a one-stop shop for tenants was essential to providing more representation.
In the first six months of the San Francisco program, 67% of tenants who came for assistance were able to stay housed, the majority remaining in their homes, without moving. The outcomes were especially positive for African American households, Cucullu Lim said.
But even with an annual budget of around $13 million paying for 48 attorneys, handling about 50 cases per month, the collaborative was still meeting only two thirds of the demand for legal assistance, Cucullu Lim said.
Beyond resources and capacity, Cucullu Lim stressed the importance of collaboration between all who interact with tenants — court employees, social service providers, workplaces as well as training on how to direct people to the eviction diversion program.
“If a doctor knows their patient is stressed because of the fear of eviction, shouldn’t they know how to help them access resources to avoid it?” Cucullu Lim said.
What’s being proposed in Fresno?
Councilmember Nelson Esparza’s Jan. 7 workshop featured dueling proposals from the City Attorney’s Office and the Fresno Right to Counsel Coalition, a collective of local community organizations, led by Faith in the Valley.
City Attorney Doug Sloan’s plan would cost about $170,000 per year and include a full-time attorney and a half-time legal secretary who are dedicated to unlawful detainer cases, but only when the tenants are deemed to have been wrongfully evicted. It is unclear whether they would accept cases of tenants who are undocumented.
With this level of capacity, they’d serve around 300 tenants per year, about 10% of all estimated evictions in any year.
“It is farcical to think that you can only take on clients that you’ve determined have been illegally evicted,” Martina Lim said about the city attorney’s proposal. “Where does it say you’re only guaranteed an attorney when you’re convicted of a crime, if you’re innocent?”
Fresno administrative leaders were skeptical of the proposal, as is evident in a question by City Manager Thomas Esqueda, during the council workshop. “So you’re asking the city of Fresno to legally defend private citizens?”
The City Attorney’s office has not consulted Central California Legal Services, which runs the city’s only full-scope eviction defense shop, according to conversations with top staff.
The Fresno Right to Counsel Coalition’s $1 million proposal is a more substantive pilot and would include three full-time attorneys, along with a full-time legal secretary and several part-time legal clerks to manage an annual caseload of about 1,000 tenants — about one-third of the typical demand for tenant legal assistance in Fresno.
The group’s plan also includes a $200,000 budget for education and outreach — legal clinics for tenants and landlords, door-to-door outreach, mobile pop-ups, training for key service providers, as well as media campaigns informing tenants and landlords of their rights.
“Public librarians are on the front lines of people being served an eviction notice,” Nkosi said.
Council President Luis Chavez is considering a third, still unveiled option, to focus a small amount of resources from the city attorney’s office to support a mediation clinic for tenants and landlords — like the city attorney’s proposal, focused on those who have been deemed illegally served with an eviction notice.
In eviction court, a mandatory settlement conference is required, but because most tenants lack representation, they are not always knowledgeable about who the mediator is, and whom they can trust during the process, leading to poor outcomes for the tenant, Nkosi said.
Legal aid or more affordable housing?
While tenant counsel programs are shown to be effective in forestalling homelessness, they don’t necessarily address the dual underlying issues many tenants face — not enough affordable housing and not enough income to pay market rents, a growing problem in Fresno.
Housing insecurity persists in California, and evidence from the Shriver pilot program suggests that the right to counsel program will not change that. Seventy one percent of tenants who avoided eviction as a result of legal counsel, still moved after the process; a third moved in with family or friends.
The City Council approved another $5.9 million in housing retention grants in late January and are deliberating on how to spend $15.9 million in recent federal pandemic stimulus, plus $17 million from the state. While the funds are explicitly for emergency rental assistance, some of it can go toward “housing stabilization services,” including a right-to-counsel program.
“It would be a better use of taxpayer dollars to invest in rental assistance and to educate landlords and tenants on their rights and responsibilities,” said Greg Terzakis, senior vice president at the California Apartment Association in an emailed statement, who said it drains resources that can benefit renters directly.
But many tenant advocates see legal counsel as essential to leveling the playing field between tenants and landlords.
“If we’re talking about one-time rental assistance, that’s never going to be enough to address the levels of housing instability that so many renters are facing right now,” said Lim. “With an attorney, tenants have a better chance of negotiating a settlement with their landlord that could stabilize their housing situation.”