CIVDS1210511

SAN BERNARDINO COUNTY SUPERIOR COURT APPELLATE DIVISION

BONNIE SHIPLEY,
Petitioner, v.

SAN BERNARDINO COUNTY SUPERIOR COURT

Respondent;
_____________________________________________________

STUBBLEFIELD PROPERTIES,
a CA General Partnership, dba Mountain Shadows Mobile Home Community Real Party in Interest. Following Denial of Motion for Summary Judgment SBSC No. UDDS1204130 [limited jurisdiction] The Honorable Donald Alvarez, Judge [S-32] (909)708-8690 PETITION FOR PEREMPTORY WRIT OF MANDATE IN THE FIRST INSTANCE, ALTERNATIVE WRIT OR OTHER APPROPRIATE RELIEF; MEMORANDUM OF POINTS & AUTHORITIES; EXHIBITS & TRANSCRIPTS [IN SEPARATE COVER]

IMMEDIATE STAY OF TRIAL DATE REQUESTED

[trial setting conference is 2-27-2013]
Nancy D McCarron, CBN 164780 950 Roble Lane Santa Barbara, CA 93103 nancyduffysb@yahoo.com 805-450-0450 fax 805-965-3492 Attorney for Petitioner

TABLE OF CONTENTS AND AUTHORITIES

Certificate of Interested Entities or Persons . filed 10-9-13

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 park lease? YES. The court said no.

STATEWIDE URGENCY
The courts ruling abrogated all statutory protections against arbitrary evictions of mobilehome owners without just cause, and authorized park owners to evict a resident on 5-days notice by arbitrarily labeling the resident an unlawful occupant.

PETITION . 3
Authenticity of Exhibits .. 3 Beneficial Interest of Petitioner; .. 3 Capacities of Respondent and Real Party In Interest.................................... Urgency to Petitioner.... Chronology of Pertinent Events ... No Adequate Remedy At Law...... Prayer .... Verifications ... 3 3 3 9 9 10

POINTS & AUTHORITIES ... 11

Standard of Review [De Novo- Summary Judgment]... Argument I Civil 798.75[c] applies only to purchasers & transferees... Argument II Court erred in finding a triable issue of fact on a park rule 11 12 15

CONCLUSION .. . 19 Certificate of Word Count... 20 Proof of Service . 21 i

TABLE OF AUTHORITIES CASES

Addy v. Bliss & Glennon (1996) 44 CA 4th 205, 214 .... AARTS Productions, Inc. v. Crocker Natl Bank (1986) 179 Cal.App.3d 1061, 1065. .. Burton v. Sec Pac Natl Bank (1988) 197 CA.3d 972, 978 .. Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 CA.4th 620, 629 quoting Stratton v. First Natl Life Ins Co....................... Clutterham v. Coachmen Industries, Inc. (1985) 169 CA.3d 1223, 1227; .. Cuccia v. Superior Court (2007) 153 Cal. App. 4th 347, 353-354 . 11 14 14 11 14 16

Henriksen v. City of Rialto (1993) 20 CA. 4th 1612, 1617 n 2. [4th. Dist. Div 2]. 11, 14 Lehto v. City of Oxnard (1985) 171 CA.3d 285, 293 [review den. Dec. 5, 1985] Lompoc Unified School Dist. v. Superior Court (1993) 20 Cal. App. 4th 1688, 1692 ... Morales v. Fansler (1989) 209 CA.3d 1581, 1584 17 .. Otanez v. Blue Skies Mobile Home Park (1991) 1 CA.4th.1521.. Rancho Santa Paula Mobile Homes v. Evans (1994) 26 CA4th.1129 . Rubenstein v. Rubenstein (2000) 81 Cal. App. 4th 1131, 1151 n.10 Sanchez v. Swinerton & Walberg Co. (1996) 47 CA 4th 1461, 1465-1466 12 11 15 16 18 15 14

Smiley v. Citibank (1995) 11 Cal. 4th 138, 145 . 15 Suidan v. County of San Diego (1999) 72 CA. 4th 916, 921 . 15

ii

Sutherland v. Barclays American/Mortgage Corp. (1997) 53 CA. 4th 299, 317 . 15 Travelers Casualty & Surety v. Superior Court (1998) 63 Cal. App. 4th 1440, 1450 . 11 Weaver v. Chavez (2005) 133 CA. 4th 1350, 1356 West Shield Investigations & Security Consultants v. Superior Court (2000) 82 CA 4th 935, 946 .. Ziman v. Firemans Fund Ins. Co. (1999) 73 CA. 4th 1382, 1387.. 18 11 15

STATUTES Code of Civil Procedure 437c Code of Civil Procedure 904.1 Code of Civil Procedure 1160 . 11 . 7 5

Civil Code 789.3 .. 16 Civil Code 789.19 . 17 Civil Code 798-798.88 [Moblehome Residency Law (MRL)] . 12 Civil Code 798.11. 12 Civil Code 798.25. 18 Civil Code 798.34(b) . 17 Civil Code 798.55 . 1,2,3 Civil Code 798.55-798.57 1,19 Civil Code 798.75[c] .......... 1,2,5,7,11,12,13,17,19 Civil Code 798.77 . 1 Civil Code 798.88 2,13

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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 URGENCY Civil 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 1162 of 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) 2

PETITION AUTHENTICITY OF EXHIBITS 1. 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 PETITIONER 3. 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 EVENTS 4. 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. 3

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

4

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 2.4 10. 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 2.5 5

11.

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. 7

17. 18.

Real party failed to file a statement of disputed facts in opposition to MSJ. 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 RELIEF WHEREFORE, 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 MRL Respectfully submitted,
_____________________________________________

Nancy D McCarron, Attorney for Petitioner 9

VERIFICATION OF PETITIONER I, 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 ATTORNEY I, 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 10

MEMORANDUM OF POINTS AND AUTHORITIES STANDARD OF REVIEW The 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 1 The standard of review is de novo. 2 Id 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).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
4

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 5 The sole issue here is interpreting Civil 798.75 If subsection [c] applies only to purchasers/transferees petitioners eviction is illegal.

Travelers Casualty & Surety v. Superior Court (1998) 63 Cal.App.4th 1440,1450; Lompoc Unified School District v. Superior Court (1993) 20 Cal. App.4th 1688, 1692 2 Travelers, Id. @ 1450 3 West Shield Investigations & Sec Cons v. Superior Court (2000) 82 CA 4th 935, 946; Addy v. Bliss & Glennon (1996) 44 CA 4th 205,214 4 Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 CA.4th 620, 629 quoting Stratton v. First National Life Insurance Company 5 Henriksen v. City of Rialto (1993) 20 CA. 4th 1612, 1617 n 2. [4th. Dist. Div 2]
1

11

I. ARGUMENT ONE CIVIL 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 6 Mobilehome Residency Law or MRL

[Civil 798 - 798.88] is divided into 8 Articles separated by subject area: Mobilehome Residency Law Article 1 Article 2 Article 3 Article 3.5 Article 4 Article 4.5 Article 5 Article 5.5 Article 6 Article 7 Article 8 General Rental Agreement Rules and Regulations Fees and Charges Utilities Rent Control Homeowner Communications and Meetings Homeowners Meetings with Management Termination of Tenancy Transfer of Mobilehome or Mobilehome Park 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.

Lehto v. City of Oxnard (1985) 171 CA.3d 285, 293 [review den. Dec. 5, 1985] 12

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.

13

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. 7 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. 8 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. 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. 10 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 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. 12
7 8

App. Vol-III, page 12.289 App. Vol-III, page 3.17-a 9 App. Vol-III, page 3.17-b 10 App. Vol-III, page 3.17-b 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 14

II. ARGUMENT TWO COURT ERRED IN RULING THAT A TRIABLE ISSUE OF FACT EXISTS The 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 judgment is 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
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 14 Plaintiffs counsel admitted facts were undisputed. Transcript
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. Ziman16 The court reviews a ruling, not its rationale. 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 18 When the only issue to be decided is a pure question of law summary judgment should be granted. Morales 19

13 14 15 16 17 18 19

Rubenstein v. Rubenstein (2000) 81 Cal. App. 4th 1131, 1151 n.10 Sutherland v. Barclays American/Mortgage Corp. (1997) 53 CA. 4th 299, 317 Transcript, 1-31-2013, page 2, line 5 Ziman v. Firemans Fund Ins. Co. (1999) 73 CA. 4th 1382, 1387 Suidan v. County of San Diego (1999) 72 CA. 4th 916, 921 Smiley v. Citibank (1995) 11 Cal. 4th 138, 145 Morales v. Fansler (1989) 209 CA.3d 1581, 1584 15

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
20

This was clear error for 2 reasons. First, a court already decided this issue. Otanez 21 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:
22

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 to overrule 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 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.

20 21 22 23

Transcript 2/14/2013, page 12, line 17 Otanez v. Blue Skies Mobile Home Park (1991) 1 CA.4th.1521 Cuccia v. Superior Court (2007) 153 Cal. App. 4th 347, 353-354 Transcript 2-14-2013 page 11, line 1 16

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. 17

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 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 798.25 permits 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
25 24

24 Rancho Santa Paula Mobile Homes v. Evans (1994) 26 CA4th.1129 25 Weaver v. Chavez (2005) 133 CA. 4th 1350, 1356 18

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 1162 of 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. 19

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

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PROOF OF SERVICE STATE 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 nancyduffysb@yahoo.com to: rwilliamson@hkclaw.com by mutual agreement of parties 2-27-2013

[ ] (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, 2013

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