WRIT ISSUE PRESENTED Is the summary eviction remedy provided
under Civil 798.75[c] limited only to purchasers and transferees
who occupy a mobile home without first executing a lease? YES. The
court answered no, holding all occupants were subject to summary
eviction. The court denied summary judgment on this issue of law
and will set trial on 2-27-13.
STATEWIDE URGENCYCivil Code 798.55-798.57 provides unique
protection to owners of mobilehomes located in a mobilehome park. A
park owner can only terminate a tenancy for seven enumerated
reasons, and only after 60-days written notice reciting the
authorized reason. Only a purchaser or transferee, who acquires a
mobilehome in a park and unlawfully occupies it without first
signing a lease, can be summarily evicted under Civil 798.75(c)
Article 7 of the Mobilehome Residency Law [MRL] governing transfers
of ownership, provides this limited remedy to protect park owners
from surprise, unlawful occupants and to prevent a new owner from
occupying a mobilehome space without paying rent.
The court erroneously expanded the limited scope of 798.75(c) by
saying it applied universally to any occupant a park owner
unilaterally labels as an unlawful occupant. This was despite
testimony from Maury Priest who attended every legislative session
in 1987 when subsection c was added. He said legislators added a
limited remedy only to evict purchasers and transferees who moved
in without first executing a new park lease. The holding abrogates
all protections our legislators granted in Civil 798.55-798.57.
The court impliedly held that any provision in a park lease or
rule is enforceable, regardless of reasonableness. This disregards
Civil 798.77 which renders any provision void & unenforceable
if it deprives an owner of a statutory right guaranteed under MRL.
The court held there was a triable jury issue as to whether a park
rule was violated. This ruling authorizes summary eviction of any
resident contrary to legislative intent. Even if summary eviction
were authorized under Civil 798.75(c) [it clearly is not] the
ruling bypassed 2 prerequisite issues; i.e. is the park rule
constitutional and reasonable? Both issues must be decided before
deciding if a rule was violated justifying eviction. This action
presents a compelling case for immediate writ review to resolve an
issue of urgent statewide importance to all mobilehome residents.
The courts ruling enables a park owner to summarily evict any
occupant for an alleged violation of any park rule unilaterally
imposed, contrary to legislative intent recited under Civil Code
798.55:
(a) The Legislature finds and declares that, because of the high
cost of moving mobilehomes, the potential for damage resulting
therefrom, the requirements relating to the installation of
mobilehomes, and the cost of landscaping or lot preparation, it is
necessary that the owners of mobilehomes occupied within mobilehome
parks be provided with the unique protection from actual or
constructive eviction afforded by the provisions of this
chapter.
(b) (1) The management may not terminate or refuse to renew a
tenancy, except for a reason specified in this article and upon the
giving of written notice to the homeowner, in the manner prescribed
by Section 1162of the Code of Civil Procedure, to sell or remove,
at the homeowner's election, the mobilehome from the park within a
period of not less than 60 days, which period shall be specified in
the notice.
It is contrary to an expressed legislative goal to encourage
owners to use injunctive relief under Civil 798.88 rather than
evict a resident for an alleged park rule violation:
(Legislative intent: This three-year sunset will arguably
provide the Legislature with the opportunity to re-evaluate this
bill to ensure that the stated goal of encouraging a park owner to
pursue a lesser remedy against a resident of a mobilehome park
instead of eviction is actually reached without negative unintended
consequences.) (Amended by Stats. 2012, Chap. 99 (AB 2272, Wagner),
eff. 1/1/2013)PETITIONAUTHENTICITY OF EXHIBITS1. All exhibits
accompanying this petition are true and correct copies of original
documents on file with the respondent court, except Three
Transcripts [certified copies of Reporter's Transcripts of 3
related hearings on 1/22/2013, 1/31/2013 and 2/14/2013.
BENEFICIAL INTEREST OF PETITIONER;CAPACITIES OF RESPONDENT AND
REAL PARTY IN INTEREST
2. Petitioner is defendant in an action pending trial in
Respondent Court entitled, Stubblefield Properties, a California
General Partnership v. Bonnie Shipley UDDS1204130, a summary
eviction proceeding. Plaintiff is Real Party in Interest.
URGENCY TO PETITIONER3. Absent intervention by this court
petitioner will be compelled to defend herself in a trial in a
summary eviction proceeding which was not authorized under MRL and
is expressly prohibited by clear legislative intent in Civil
798.55. On 2-14-13 the court entered an order denying summary
judgment. [App V-III 13.295]
CHRONOLOGY OF PERTINENT EVENTS4. On 8/1/12 petitioner (51) moved
in as co-resident of a mobile home owner at Space 333 in plaintiffs
park. The owner had a series of co-residents sharing the home since
she bought it on 1/05/05. The owner registered petitioner at the
office. The manager drove up to 333 on 8/2/12 and tried to orally
evict petitioner stating if she wanted to live there she had to
move in with a sugar daddy over 55 in the park. The manager
confiscated a parking sticker the owner attached to petitioners
car. The manager told petitioner the owner had gotten away with
having a co-resident in the past but would no longer get away with
it under the new 2010 park rules.5. On August 11, 2012 plaintiff
nailed a 5-day Notice to Surrender Possession:from: App.Vol.I,
p.2.8
6. Petitioner was unable to surrender possession because she did
not own the home. The notice did not apply to petitioner because
she did not purchase the mobilehome.
7. On August 27, 2012 plaintiff served petitioner with a hybrid
Unlawful Detainer summons combined with a Forcible Detainer
complaint. Neither made any sense.
from: App.Vol.I, p.1.1
from App. Vol.I, p. 2.3
8. An unlawful detainer was invalid as there was no
landlord/tenant relationship. A forcible detainer complaint was not
viable as no forced entry was alleged and plaintiff was not the
occupant in possession as statutorily required. CCP 1160
9. The sham complaint was bizarre. Plaintiff alleged it was
owner of the premises, while admitting the homeowner owned the
premises at 333 and was the occupant in exclusive possession of the
premises since the park owner leased it to her in 2005.
from App V-I. p 2.410. The complaint recited allegations as if
petitioner were a purchaser or transferee unlawfully occupying as
described in Article 7 of the MRL at Civil 798.75(a)-(d):
from App V-I. page 2.511. The prayer was equally bizarre.
Plaintiff prayed for possession of the premises, without even
joining the owner as a defendant, whose home plaintiff prays to
seize; plaintiff prays for damages at $30.01 per day [reasonable
rental value of space 333] while collecting full space rent from
the homeowner it never joined as a defendant; plaintiff prays for
attorney fees without being in privity of contract with petitioner
and where there is no contract or statutory basis for entitlement
to attorney fees:
App V-I. page 2.6
12. On 8/31/12 petitioner filed a demurrer to the sham
complaint, a motion to quash service, a motion to strike attorney
fees, and a motion to strike rent value damages. On 9/27/12 Judge
Schneider [S-31] overruled demurrer & denied all three motions.
On 10/4/12 petitioner filed a motion to transfer the case from
limited jurisdiction to higher jurisdiction as assessed value of
the home (up for seizure) exceeded $10,000. The motion was denied
without explanation. Later, Judge Schneider revoked his invalid
sanction order and recused himself. The case was transferred to
Dept S-32. 13. On December 26, 2012 petitioner filed a Motion for
Judgment on the Pleadings because plaintiff did not allege, and
could not allege, the statutory elements of a forcible detainer
complaint, nor could plaintiff prove it was occupant in possession.
Judge Alvarez [S-32] denied that motion and motions to compel
production of alleged secret videos and written reports of alleged
violations. The items requested were clearly discoverable but the
court nevertheless denied the timely motions.
14. At summary judgment, the so-called summary proceeding had
mushroomed to: 8 volumes in 7 months, a 13 page docket with 258
docket entries & 30 hearings. Petitioner believes it is the
longest and thickest summary proceeding in history. The court must
realize this case is not about evicting a roommate in a mobilehome.
This case is about a park owner who already filched 200 of 400
homes in the park and converted them into a cash cow of rentals to
non-owner tenants with no rights. The owner intends to filch the
other 200 homes and petitioner is fighting to the end.
15. Petitioner moved for summary judgment, setting a hearing on
1-31-13, which was the same day plaintiff had set a hearing on its
motion for summary judgment. The court set an Order To Show for
January 22, 2013 for plaintiff to show cause why it moved for
summary judgment before the court ruled on Motion To Compel
responses to deposition questions set for Feb. 27, 2013. The court
stepped out of its role as Judicial Officer & into a role of
plaintiffs advocate, even questioning the wisdom of plaintiffs
counsel in setting MSJ prematurely? [see transcript 1/22/13]
16. Petitioner filed a separate statement of four undisputed
facts. [App.V-III, p. 2.15] Real partys attorney admitted facts
were undisputed. [transcript 1/22/13; p.2 line 5] The undisputed
facts are: 1) owner has a valid lease; 2) Community Rules [2000]
were incorporated in her lease; 3) the MRL governs; 4) owner was in
continuous possession of the premises and real party has collected
the monthly rent for 8 years.
17. Real party failed to file a statement of disputed facts in
opposition to MSJ. 18. Petitioner submitted the declaration of
legislative lobbyist Maury Priest, in support of her summary
judgment motion. Mr. Priest testified that he attended every
session when legislators amended Civil 798.75 to add subsection(c)
in 1987.
19. Maury Priest testified legislators intended the summary
eviction remedy in Civil 798.75[c] to be used only against new
purchasers and transferees who acquire title to a mobile home and
then occupy it without first executing a park lease to pay
rent.
20. Mr. Priest testified legislators did not intend summary
eviction remedies to be used against co-residents or guests of a
homeowner. [App V-III, p. 3.17b, Par. 10] Real party failed to file
any declaration opposing Maury Priests testimony.
21. Petitioner filed her own declaration and a declaration of
the mobile home owner, which recited that the owner regularly
occupied the home and that petitioner signed a lease to share
occupancy of the home with the owner, who regularly used it. Real
party failed to file any witness declarations opposing summary
judgment.
22. Despite that real party failed to file a statement of
disputed facts in opposition; its attorney admitted that facts were
undisputed; and real party failed to file any declarations in
opposition or a declaration rebutting the testimony of Maury
Priest, the court denied a motion for summary judgment which should
have been granted.
23. The court did not post a tentative ruling before the summary
judgment hearing on 1/31/2013, or before the continued hearing on
2/14/2013. Instead the court announced its ruling in a lengthy
transcript. Three Transcripts are filed with this Writ Petition and
Appendix under separate cover. The transcripts show clear
errors.
NO ADEQUATE REMEDY AT LAW 24. The Respondent Court's denial of
Plaintiffs motion for summary judgment is not appealable. CCP
904.1. Delay of review until after final judgment would be an
inadequate remedy as plaintiff will be compelled to defend an
unmeritorious claim. Writ relief is essential to avoid the waste of
significant resources of the parties and the court in this case, as
well as courts throughout California that will be compelled to
conduct jury trials in unmeritorious actions. Petitioner faces
summary eviction. Plaintiff never joined the mobile home owner as a
defendant; yet it prays for a writ of possession to seize her
premises. If the writ is granted the owner will lose her mobilehome
without due process of law. Petitioner has no adequate remedy at
law for the relief sought in this Petition other than a writ to
reverse clear errors of law.
PRAYER FOR RELIEFWHEREFORE, Petitioner prays that this
Court:1.Issue an immediate stay of trial pending final resolution
of this writ proceeding.2.Either (a) issue its peremptory writ of
mandate directing Respondent Court to set aside and vacate its
February 14, 2013 order denying petitioners summary judgment and
directing respondent court to enter a new order granting summary
judgment (b) issue an alternative writ directing Respondent Court
to show cause why it should not so be directed, and upon return to
the alternative writ, issue the peremptory writ set forth in
subparagraph (a) next above; or (c) other appropriate relief.3.
Award Petitioners costs incurred in this proceeding and attorney
fees under MRLRespectfully submitted,
_____________________________________________Nancy D McCarron,
Attorney for PetitionerVERIFICATION OF PETITIONERI, BONNIE SHIPLEY,
declare:I am the Petitioner in this writ proceeding. I have read
the foregoing Petition for Writ of Mandate, and know the contents
thereof; the same is true of my own personal knowledge, except as
to those matters which are stated upon my information or belief,
and as to those matters I believe them to be true. I declare under
penalty of perjury, under the laws of the State of California that
the foregoing is true and correct and this Verification was
executed on February 27, 2013 at Highland, California.
_____________________________________________ BONNIE J. SHIPLEY,
Petitioner
VERIFICATION OF PETITIONERs ATTORNEYI, NANCY D MCCARRON,
declare:I am the Petitioners attorney in this proceeding. I have
read the foregoing Petition for Writ of Mandate, and know the
contents; the same is true of my own personal knowledge, except as
to those matters which are stated upon my information or belief,
and as to those matters I believe them to be true. I declare under
penalty of perjury, under the laws of the State of California that
the foregoing is true and correct and this Verification was
executed on February 27, 2013 at Highland, California.
___________________________________________________NANCY D
MCCARRON, Attorney for Petitioner
MEMORANDUM OF POINTS AND AUTHORITIESSTANDARD OF REVIEWThe
Standard of Review for Orders Denying Summary Adjudication is De
Novo Denial of summary judgment may be reviewed by mandamus. CCP
437c (l) Where a court's erroneous denial will result in trial on a
non actionable claim, a writ of mandate will issue. Travelers
[footnoteRef:1] The standard of review is de novo. [footnoteRef:2]
Id [1: Travelers Casualty & Surety v. Superior Court(1998) 63
Cal.App.4th 1440,1450; Lompoc Unified School Districtv.Superior
Court (1993) 20 Cal. App.4th 1688, 1692 ] [2: Travelers, Id. @
1450]
First, the motion is reviewed to determine whether defendant met
its initial burden to establish that one or more causes of action
in the complaint has no merit, by showing that one or more elements
of the cause of action cannot be established, or that there is a
complete defense thereto. CCP 437c, subdivisions (f)(1), (o)(2)
Second, if defendant meets her burden we examine if plaintiff has
shown, by setting forth specific facts, that a triable issue of
fact exists as to that claim. 437c (o)(2).[footnoteRef:3] In
reviewing the appellate court need not defer to the trial court's
decision. 'We are not bound by the trial court's stated reasons, if
any, supporting its ruling; we review the ruling, not its
rationale.' Marmaro [footnoteRef:4] [3: West Shield Investigations
& Sec Cons v. Superior Court (2000) 82 CA 4th 935, 946; Addyv.
Bliss & Glennon(1996) 44 CA 4th 205,214] [4: Campv. Jeffer,
Mangels, Butler & Marmaro (1995) 35 CA.4th 620, 629 quoting
Strattonv. First National Life Insurance Company]
When the sole issue raised by a writ is whether the trial courts
ruling on an issue of law was erroneous, the appellate court need
not address whether any triable issues of material fact exist.
Henricksen [footnoteRef:5] The sole issue here is interpreting
Civil 798.75 If subsection [c] applies only to
purchasers/transferees petitioners eviction is illegal. [5:
Henriksen v. City of Rialto (1993) 20 CA. 4th 1612, 1617n 2. [4th.
Dist. Div 2] ]
I. ARGUMENT ONECIVIL CODE 798.75[c] APPLIES ONLY TO PURCHASERS
& TRANSEREES It is well established that statutes must be given
a reasonable construction that conforms to the apparent purpose and
intention of the lawmakers, and the various parts of the statutory
enactment must be harmonized by considering the particular clause
in the context of the whole statute. " Lehto [footnoteRef:6]
Mobilehome Residency Law or MRL [Civil 798 - 798.88] is divided
into 8 Articles separated by subject area: [6: Lehto v.City of
Oxnard (1985) 171 CA.3d 285, 293 [review den. Dec. 5, 1985]]
Mobilehome Residency Law
Article 1 General Article 2 Rental Agreement Article 3 Rules and
Regulations Article 3.5 Fees and Charges Article 4 Utilities
Article 4.5 Rent Control Article 5 Homeowner Communications and
Meetings Article 5.5 Homeowners Meetings with Management Article 6
Termination of Tenancy Article 7 Transfer of Mobilehome or
Mobilehome Park Article 8 Actions, Proceedings, and Penalties
Article 1 General contains provisions such as MRL application
and definitions; i.e. Resident is a homeowner or other person who
lawfully occupies a mobile home. Civil Code 798.11 Plaintiff could
have sought declaratory relief to ask a court to interpret the
words lawfully occupies. Instead of seeking declaratory relief
plaintiff prosecuted a sham complaint to summarily evict the
roommate of a resident/tenant. Article 8 governs Actions,
Proceedings, and Penalties. Civil 798.88 (Article 8) authorizes
injunction for rule violations. Article 7 governs Transfers of
Mobile homes. All codes under Article 7 relate to transfers of
ownership. Civil 798.75 authorizes a park owner to summarily evict
a purchaser or transferee who takes title and occupies a home
without first executing an occupancy lease to pay rent. The remedy
is limited to purchasers & transferees. It cannot be used
against a paying tenant with a valid lease. Civil Code 798.75.
Attachment of rental agreement or statement (a) An escrow, sale, or
transfer agreement involving a mobilehome located in a park at the
time of the sale, where the mobilehome is to remain in the park,
shall contain a copy of either a fully executed rental agreement or
a statement signed by the park's management and the prospective
homeowner that the parties have agreed to the terms and conditions
of a rental agreement.(b) In the event the purchaser fails to
execute the rental agreement, the purchaser shall not have any
rights of tenancy.(c) In the event that an occupant of a mobilehome
has no rights of tenancy and is not otherwise entitled to occupy
the mobilehome pursuant to this chapter, the occupant is considered
an unlawful occupant if, after a demand is made for the surrender
of the mobilehome park site, for a period of five days, the
occupant refuses to surrender the site to the mobilehome park
management. In the event the unlawful occupant fails to comply with
the demand, the unlawful occupant shall be subject to the
proceedings set forth in Chapter 4 (commencing with Section 1159)
of Title 3 of Part 3 of the Code of Civil Procedure.(d) The
occupant of the mobilehome shall not be considered an unlawful
occupant and shall not be subject to the provisions of subdivision
(c) if all of the following conditions are present:(1) The occupant
is the registered owner of the mobilehome.(2) The management has
determined that the occupant has the financial ability to pay the
rent and charges of the park; will comply with the rules and
regulations of the park, based on the occupant's prior tenancies;
and will comply with this article.(3) The management failed or
refused to offer the occupant a rental agreement.
Under Lehto the particular clause (subsection c here) must be
considered in the context of the entire statute. The court erred in
reciting only subsection c in its ruling. Petitioner cited Supreme
Court authorities directing courts to consider placement of a
statute in an Article to mean its scope is limited to the subject
area within the Article. [footnoteRef:7] [7: App. Vol-III, page
12.289]
In support of her motion for summary judgment petitioner
submitted an affidavit of Maury Priest, a lobbyist for homeowners,
who attended every legislative session when Civil 798.75 was
amended in 1987 to add subsection [c] and [d] as a remedy. Priest
testified at length about what happened 25 years ago during those
sessions. [footnoteRef:8] [8: App. Vol-III, page 3.17-a]
Priest testified that legislators authorized summary evictions
only against purchasers and transferees who acquired title to a
mobile home in a park and occupied it without first executing a
park lease to pay rent. [footnoteRef:9] Priest testified that
legislators never intended to authorize summary evictions against a
guest or co-resident who shared a home with a park tenant who had a
valid park lease and was paying monthly space rent.
[footnoteRef:10] [9: App. Vol-III, page 3.17-b] [10: App. Vol-III,
page 3.17-b]
The court erred by disregarding Priests testimony where no
rebuttal was offered. A court generally cannot resolve questions
about a declarant's credibility in a summary judgment proceeding.
Henricksen [footnoteRef:11] Adopting plaintiffs counsels conjecture
and speculation on what he thought legislators intended in
1987---instead of Maury Priests testimony based on personal
knowledge---showed prejudicial bias. An assertion based solely on
conjecture or speculation is insufficient to avoid summary
judgment. [footnoteRef:12] [11: AARTS Productions, Inc. v. Crocker
Natl Bank (1986) 179 Cal.App.3d 1061,1065 Henriksen v. City of
Rialto (1993) 20 CA. 4th 1612, 1625 . [4th. Dist. Div 2] ] [12:
Burton v. Sec Pac Natl Bank(1988) 197 CA.3d 972, 978; Clutterham v.
Coachmen Industries, Inc. (1985) 169 CA.3d 1223, 1227; Sanchez v.
Swinerton & Walberg Co. (1996) 47 CA 4th 1461, 1465-1466]
II. ARGUMENT TWOCOURT ERRED IN RULING THAT A TRIABLE ISSUE OF
FACT EXISTSThe court erred in not accepting the evidence petitioner
submitted; i.e. declarations from petitioner and the homeowner.
Plaintiff failed to file any affidavits opposing summary judgment
which could create any disputed factual issue to invoke a trial.
The validity of summary judgmentis to be determined solely by the
sufficiency of affidavits before the court when the motion was
heard, and the appellate court will consider only facts before
trial court at time it ruled on motion. Rubenstein [footnoteRef:13]
If plaintiffs opposing papers fail to address the dispositive issue
framed by pleadings plaintiff may not create an issue outside the
pleadings or argue nonissues. Barclays [footnoteRef:14] [13:
Rubenstein v. Rubenstein (2000) 81 Cal. App. 4th 1131, 1151n.10]
[14: Sutherland v. Barclays American/Mortgage Corp. (1997) 53 CA.
4th 299, 317 ]
Plaintiffs counsel admitted facts were undisputed. Transcript
[footnoteRef:15] Plaintiff failed to file any statement of disputed
facts in opposition to petitioners undisputed facts. Where facts
are undisputed, issue is one of law and appellate court is free to
draw its own conclusions of law from undisputed facts.
Ziman[footnoteRef:16] The court reviews a ruling, not its
rationale. [footnoteRef:17] In ruling on a motion, the trial court
determines what has been called a pure question of law, but what is
in fact a mixed question of law and fact that is predominantly
legal: does plaintiffs complaint state facts sufficient to
constitute a cause of action against the defendant? Smiley
[footnoteRef:18] When the only issue to be decided is a pure
question of law summary judgment should be granted. Morales
[footnoteRef:19] [15: Transcript, 1-31-2013, page 2, line 5] [16:
Ziman v. Firemans Fund Ins. Co. (1999) 73 CA. 4th 1382, 1387] [17:
Suidan v. County of San Diego (1999) 72 CA. 4th 916, 921 ] [18:
Smiley v. Citibank (1995) 11 Cal. 4th 138, 145] [19: Morales v.
Fansler (1989) 209 CA.3d 1581, 1584]
The court erred in finding a triable issue of fact; i.e. whether
or not Ms. McCarron regularly occupied the mobile home as required
under the rules. Transcript [footnoteRef:20] This was clear error
for 2 reasons. First, a court already decided this issue. Otanez
[footnoteRef:21] [20: Transcript 2/14/2013, page 12, line 17] [21:
Otanez v. Blue Skies Mobile Home Park (1991) 1 CA.4th.1521]
We hold that the tenant need not live in the premises full-time
in order to be a resident.
Under stare decisis the court was required to apply Otanez to
this case. The court exceeded its jurisdiction by refusing to
follow Otanez as explained in Cuccia: [footnoteRef:22] [22: Cuccia
v. Superior Court (2007) 153 Cal. App. 4th 347, 353-354]
Pursuant to Auto Equity Sales, Inc. v. Superior Court(1962) 57
Cal.2d 450, 455... the decisions of every division of the District
Court of Appeal are binding on all superior courts of this state.
Courts exercising inferior jurisdiction must accept the law
declared by courts of superior jurisdiction. It is not their
function to attempt tooverrule decisions of the higher court.''
(Ibid.) Here the trial court exceeded its jurisdiction by refusing
to follow Marchman. What should a trial court do when confronted
with a published Court of Appeal opinion which compels it to rule
one way when it believes that the opinion is erroneous? First, it
has no choice but to follow the declared law in the appellate
opinion..
This court held Otanez was not controlling because it involved a
park owner who shut off utilities in a mobile home and the
governing code [Civil 789.3] is not part of the MRL. Transcript
[footnoteRef:23] Civil 789.3 applies to all tenants, including
those who rent mobile homes. The park owner argued because the home
owner did not regularly occupy the home (she lived there
periodically) she had no resident rights. Otanez held a tenant need
not occupy full-time to be a resident. [23: Transcript 2-14-2013
page 11, line 1 ]
By leaping to the conclusion that a jury must decide whether or
not Ms. McCarron regularly occupied the mobile home as required
under the rules impliedly found that the rules are enforceable,
regardless of their reasonableness or their constitutionality. This
disregards Civil 798.77 which renders any provision in a lease or
park rule void and unenforceable if it deprives an owner of a
statutory right guaranteed under MRL. The court assumed the rules
as created in 2010 were constitutional and reasonable. A mobile
home owner has a statutory right to have a co-resident under Civil
798.34(b):
(a) A homeowner shall not be charged a fee for a guest who does
not stay with him or her for more than a total of 20 consecutive
days or a total of 30 days in a calendar year. A person who is a
guest, as described in this subdivision, shall not be required to
register with the management.(b) A homeowner who is living alone
and who wishes to share his or her mobilehome with one person may
do so, and a fee shall not be imposed by management for that
person. The person shall be considered a guest of the homeowner and
any agreement between the homeowner and the person shall not change
the terms and conditions of the rental agreement between management
and the homeowner. The guest shall comply with the provisions of
the rules and regulations of the mobilehome park.
Even if summary eviction were authorized under Civil 798.75(c)
[it clearly is not] the ruling bypassed 2 prerequisite issues; i.e.
is the rule constitutional and reasonable? Both issues must be
decided before deciding if a rule was violated justifying
eviction.The park may not impose a new rule which waives an owners
rights under the MRL. Civil 789.19. Any such waiver shall be deemed
contrary to public policy and void.
The court failed to discuss Civil 789.19 and 798.34(b) in its
ruling on 2/14/2013. There is no language expressed in 798.34(b)
which requires an owner to regularly occupy the home in order to
exercise her right to share her home. The regularly occupy language
is contained in a new rule the park has applied ex post facto. A
park is barred from applying a new rule retroactively to an owner
who did not agree to such rule in her lease (ex post facto
application is unconstitutional) Rancho [footnoteRef:24] [24:
Rancho Santa Paula Mobile Homes v. Evans (1994) 26 CA4th.1129]
Respondent contends that the restriction did not operate
retroactively because it was incorporated by law into the original
lease. He argues that since Civil Code, section 798.25permits the
making of new rules without the homeowner's consent, the homeowner
in commencing the tenancy agrees to subsequently enacted rules.
However, the argument begs the question. To be valid and
enforceable, the rule must be reasonable. A homeowner could not be
expected to foresee a rule change effecting such a radical change
in such an important condition of his tenancy. Insofar as it
attempts to operate retroactively, such a rule is not reasonable.
Rancho @1148
By finding the jury must decide if McCarron regularly occupies
the home as required by the rules assumes the rules are
constitutional and enforceable. Whether a newly imposed rule which
was not part of the owners original lease is constitutional and/or
reasonable are two issues of fact a jury must decide before they
are faced with deciding whether the rule was violated warranting
eviction of a guest. The court exceeded jurisdiction when it
invented an issue of fact where plaintiffs counsel admitted in
court that the facts were undisputed, where plaintiff failed to
file a statement of disputed facts in opposition to defendants
undisputed facts, and where plaintiff failed to submit any
evidentiary affidavits opposing summary judgment. Error is
prejudicial if it is reasonably probable a miscarriage of justice
exists or when it is reasonably probable a result more favorable
would have been reached. Weaver [footnoteRef:25] [25: Weaver v.
Chavez (2005) 133 CA. 4th 1350, 1356]
CONCLUSION In 1978 our legislators enacted Civil Code 798.55
-798.57 to provide unique protection to mobile home owners from
arbitrary evictions without just cause: (a) The Legislature finds
and declares that, because of the high cost of moving mobilehomes,
the potential for damage resulting therefrom, the requirements
relating to the installation of mobilehomes, and the cost of
landscaping or lot preparation, it is necessary that the owners of
mobilehomes occupied within mobilehome parks be provided with the
unique protection from actual or constructive eviction afforded by
the provisions of this chapter.
(b) (1) The management may not terminate or refuse to renew a
tenancy, except for a reason specified in this article and upon the
giving of written notice to the homeowner, in the manner prescribed
by Section 1162of the Code of Civil Procedure, to sell or remove,
at the homeowner's election, the mobilehome from the park within a
period of not less than 60 days, which period shall be specified in
the notice.
In 1987 our legislators added subsections (c) and (d) to Civil
Code 798.75 to provide unique protection to park owners from
purchasers or transferees who acquire title to a mobile home and
occupy it without first executing a park lease. This summary
eviction remedy was an exception to 60-day notice just cause rule.
This exception gave park owners a speedy remedy to evict a
non-paying occupant. The courts expansion of this speedy remedy
[798.75(c)] to apply to any occupant completely abrogates paying
tenants protections granted in Civil 798.55-798.57 The absurd
result is that park owners no longer need just cause to evict a
resident and need not give 60-days notice. They can just label a
resident an unlawful occupant for any purported rule violation and
summarily evict the resident, who will be forced to litigate to a
trial whereby a jury will decide if the rule was violated to
justify eviction. Because most residents can not afford to litigate
against the parks GOLIATH law firm they will be forced to vacate
their home and lose in most cases their entire life savings. This
absurd result abrogates legislation enacted to provide statewide
protections to a class of underprivileged, low-income citizens from
the wrath of greedy park owners. It violates the separation of
powers clause of the United States Constitution (Art. III). Our
Legislative branches make the laws and our Judicial branches
enforce the laws. This court decided to unilaterally change the
law- grossly exceeding delegated powers. It is contrary to an
expressed legislative goal to encourage owners to use injunctive
relief under Civil 798.88 rather than evict a resident for an
alleged park rule violation:(Legislative intent: This three-year
sunset will arguably provide the Legislature with the opportunity
to re-evaluate this bill to ensure that the stated goal of
encouraging a park owner to pursue a lesser remedy against a
resident of a mobilehome park instead of eviction is actually
reached without negative unintended consequences.) (Amended by
Stats. 2012, Chap. 99 (AB 2272, Wagner), eff. 1/1/2013)
Petitioner respectfully requests this court to issue an
immediate stay on setting trial and a peremptory writ of mandate
directing Respondent Court to set aside and vacate its February 14,
2013 order denying petitioners summary judgment and directing
respondent court to enter a new order granting summary judgment, or
alternatively issue an order to show cause why the court should not
vacate its judgment and enter a new order granting summary
judgment, and to award costs and attorney fees as prayed.
CERTIFICATE OF WORDCOUNT The petition contains 5,894 words
(excluding tables) in roman typeface 14 font. I relied on a word
count generated by MS Word 2007 showing in the status bar.
2-27-2013
PROOF OF SERVICESTATE OF CALIFORNIA, COUNTY OF SAN
BERNARDINO
Stubblefield Properties v. Bonnie Shipley UDDS1204130
The undersigned is counsel for petitioner/defendant at: 950
Roble Lane, Santa Barbara, CA 93103 805-450-0450 fax 805-965-3492
On the date recited below the undersigned served the below document
in the manner indicated:WRIT PETITION to Appellate Division re:
Denial of Defendants Summary Judgment Motion [S-32] [x] (By
Personal Delivery) to the parties below as follows: on 2-27-2013
To: RESPONDENT COURT: [S-32] Hon.Donald Alvarez in S-32 at hearing
on MTC responses To: Real Party in Interest, c/o Attorney Robert
Williamson, in S-32 at hearing on MTC responses[ ] (By Fax) Fax
machine used complied with Rule 2003(3) and no error was reported
by the machine. Pursuant to Rule CRC, 2008 [c](4). I caused the
machine to maintain a record of same.[x] (By Electronic) to address
below (by agreement) & with copy to [email protected] to:
[email protected] by mutual agreement of parties2-27-2013 [ ]
(By Mail) 1013a, 2015.5 CCP. I deposited the documents in a
pre-paid stamped envelope to: Robert Williamson, Hart, King &
Coldren 200 Sandpointe, 4th. Floor Santa Ana, CA 92707 714-432-8700
fax 714-546-7457
I am familiar with mail collection in San Bernardino. I
deposited the envelope in the mail at San Bernardino, CA. I am
aware on a motion of the party served, service is presumed invalid
if postal cancellation date is more than one day after deposit date
on affidavit. [x ] (STATE) I declare under penalty of perjury and
laws of California that the above is true. Executed in San
Bernardino CA on February 27, 201316