FILED SUPERIOR COURT OF THE STATE OF CALIFORNIP~UPERIORCOUR COUNTY OF SAN BERNARDINO COUNTY OF SAN BERNARDINO APPEALS Dl?

/lSIORI APPELLATE DIVISION MAR 2 6 20;3

401 N. Arrowhead Ave., San Bernardino, CA 92415-0063 (909) 521-3574 BY

CASE NO.: CIVDSI 302013 / UDDS1204130 (San Bernardino) BONNIE SHIPLEY, Petitioner, v.

DATE: March 26,2013

SUPERIOR COURT OF THE STATE OF

CALIFORNIA, COUNTY OF SAN BERNARDINO, Respondent,
-

ORDER

STUBBLEFIELD PROPERTIES, Real Party in Interest.

Bonnie Shipley has filed a petition for a writ of mandate in which she contends that the trial court erroneously denied her motion for summary judgment. Specifically, Petitioner contends that the trial court erred in interpreting Civil Code section 798.75, subdivision (c) as being applicable to any "unlawful occupant," regardless of whether the occupant is a purchaser or transferee of the mobiiehoi-iie or a su"ueiiant of the rnobiiehorne owneriresideiit. As we explain beiow, we firid some merit in Petitioner's contention of error. Stubblefield's complaint is based upon a 5-day notice to surrender pursuant to Civil Code section 798.75, subdivision (c). Subdivision (c) provides that "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." The Mobilehome Residency Law is contained within Chapter 2.5 of the Civil Code. Section 798.75 is located within Article 7 (of Chapter 2.5), which is entitled "Transfer of Mobilehome or Mobilehome Park."

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We find no case law interpreting Civil Code section 798.75. However, the Rutter Group Landlord-Tenant Practice Guide provides this helpful discussion with respect to Section 798.75:
Agreement to Rental Terms Required to Validate Purchaser's Tenancy Rights: As a condition to the purchaser's rights of tenancy in the park, the escrow, sale or transfer agreement involving a mobilehome located in the park at time of sale (where the mobilehome is to rema'nn in the park) must contain a copy of either (a) a fully executed rental agreement or (b) a statement signed by park management and the prospective honieowner (purchaser) that the parties have agreed to the terms and conditions of a rental agreement. [CC 798.75(a)]

a. Five-day notice to "surrender" for refusal to execute lease: A purchaser who refuses to execute a rental agreement with management "shall not have any rights of tenancy." [CC 798.75(b)] Management may serve a purchaser resident with a demand to surrender the mobilehome park site; failure to surrender within five days -after the demand makes the purchaser an r'unlawful occupant." [CC 798.75(c)] b. Unlawful detainer: Once placed in the status of an "unlawful occupant," the purchaser may be evicted under the statutory summary repossession procedures (CCP I 159 et seq.). [CC 798.75(c)]
Exceptions to UD eviction: A person is not an "unlawful occupant" and thus not subject to unlawful detainer eviction under 798.75(c), above, if all of these conditions exist (CC 798.75(d));

(1) The occupant is the registered owner of the mobilehome (CC 798,75(d)(l)); (2) Management lias determined that the occupant has the financial ability to pay park rent and charges, will comply with the park rules and regulations, based on his or her prior tenancies, and will comply with the MRL (CC 798.75(d)(2)); and (3) Management failed or refused to offer the occupant a rental agreement (CC 798.75(d)(3)). (Friedman, Garcia & Hagarty, Cal. Prac. Guide: Landlord-Tenant (The Rutter Group 2012),(1T-11:25611:259. Italics in original.) Although the foregoing is not legal authority, it is persuasive and consistent with petitioner's contention that Section 798.75, s~~bdivision (c) applies only to an occupant who is a purchaser or transferee. Subdivisioli (b) of Section 798.75 states that "In the event the purchaser fails to execute the rental agreement, the purchaser shall not have any rights of tenancy." Thus, a purchaser who
I certify that copies of the above Order were mailed to counsel of record as indicated on

Court Clerk

refuses to execute a rental agreement with management falls within the status of an "unlawful occupant" as referenced in subdivision (c) of Section 798.75. Therefore, it follows that a 5-day notice to s~trrenderunder Civil Code section 798.75, subdivision (c) may be served only upon a purchaser who refuses to execute a rental agreement with park management and is subject to summary repossession procedures under Code of Civil Procedure section 1159 et seq. Further support for this interpretation is found in Sections 798.23.5 and 798.56., which provide the remedy for removing mobilehome owners/residents andlor their subtenants for violating park rules. Civil Code section 798.23.5 sets forth tlie circumstances under which a homeowner may rent or sublet his or her home that serves as the homeowner's primary residence. Subdivision (b)(3) provides that "The renter or sublessee shall comply with all rules and regulations of the park. The failure of a renter or sublessee to comply with the rules and regulations of the park may result in the termination of the homeowner's tenancy in the mobilehome park, in accordance with Section 798.56. A homeowner's tenancy may not be terminated under this paragraph if the homeowner completes an action for unlawful detainer or executes a judgment for possession, pursuant to Chapter 4 (commencing with Section 1159) of Title 3 of Part 3 of the Code of Civil Procedure within 60 days of the homeowner receiving notice of termination of tenancy." (Civ. Code, 798.23.5, subd. (b)(3) ) Section 798.56 provides the permissible grounds for termination of a homeowner's tenancy, including the "Failure of the homeowner or resident to comply with a reasonable rule or regulation of the park that is part of the rental agreement or any amendment thereto." (Civ. Code, 798.56, subd. (d).) Here, Stubblefield alleges that petitioner has violated park rules by, among other things, failing to obtain park consent or approval before assuming occupancy. As such, Stubblefield's remedy is to proceed against the homeowner in accordance with Civil Code section 798.56, subdivision (d) for "failure of the homeowner or resident to comply with a reasonable rule or regulation of the park that is part of the rental agreement or any amendment thereto." It is undisputed that petitioner is not a purchaser of the subject mobilehome. Therefore, she is not subject to summary eviction under Civil Code section 798.75, subdivision (c). Additionally, petitioner cannot be evicted directly by Stubblefield because there is no privity between the mobilehome park and petitioner. Pending our determination of whether petitioner has made out a prima facie case for issuance of a writ, respondent superior court may wish to vacate itsorder of February 14, 2013, and issue a new order granting petitioner's motion for summary judgment. In the event respondent court does not notify the Appellate Division by April 16, 2013, that it has revised its order, the parties are advised that this court is inclined to grant a peremptory writ in the first instance, vacating the court's order of February 14, 2013, and remanding this matter to the trial court for further proceedings. (Code Civ. Proc., 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) If any party wishes to file additional briefs or opposition with this court, they shall do so on or before April 9, 2013.

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The stay of trial court proceedings issued on March 5, 2013 shall remain in effect, pending the .final decision on the writ petition.

The Hon. Joseph R. Brisco and the Hon. James J. Hosking concur.
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cc: Hon. Donald R. Abarez, San Bernardino Courthouse

I certify that copies of the above Order were mailed to counsel of record as indicated on

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S u p e r i o r &ottrt S t a t e of Cnliforniw CLountp of S a n Pecnarbino

Appellate Division
DECLARATION OF SERVICE BY MAIL

STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO

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Writ # ClVDS 1302013 Trial Court# UDDS 1204130

The undersigned hereby declares: 1 am a citizen of the United States of America, over the age of eighteen years, a resident of tlie above-named State, and not a party to nor interested in the proceedings named in the title of the annexed document. I am a Deputy Appellate Clerk of said County. I am readily familiar with the business practice for collection and ---processing of corespmdencefor rnaikngwitkthe Unite$ StaksPostaL Service. - - - - - Correspondence would be deposited with the United States Postal Service that same day in below, I placed for collection the ordinary course of business. On the date of mailing show11 and mailing following ordinary business practices, at the request and under the direction of the S~iperior Court in and for the State of California and County above-named, whose office is at the Courthouse, Sar~ Bernardino, California, a sealed envelope which contained a true copy of each annexed document, and which envelope was addressed to the addressee, as follows: NANCY D. MCCARRON, ESQ. 950 ROBLE LANE SANTA BARBARA, CA 93103 SAN BERNARDINO COLIRTHOUSE HONORABLE DONALD ALVAREZ HART, KING & COLDREN 200 SANDPOINTE, 4THFLOOR SANTA ANA, CA 92707

Date and Place of Mailing: March 26, 2013, San Bernardino, California. Document Mailed: PALMA ORDER I declare under penalty of perjury that the foregoing is true and correct. Executed on March 26, 2013, at San Bernardino, California.