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F I L E DSUPERIOR COURT OF THE STATE OF CALIFORNIP~UPERIORCCOUNTY OF SAN BERNARDINO COUNTY OF SAN BERNARDAPPEALS Dl?/lSIORIAPPELLATE DIVISION401 N. Arrowhead Ave., San Bernardino,CA 92415-0063 MAR 2 6 20 ;3

(909) 521 3574 BY

CASE NO.: CIVDSI 302013 / UDDS1204130 (San Bernardino) DATE: March 26,2013BONNIE SHIPLEY,Petitioner,v.SUPERIOR COURT OF THE STATE OFCALIFORNIA, COUNTY OF SANBERNARDINO,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 tcourt erroneously denied her motion for summary judgment. Specifically, Petitioner contends that trial court erred in interpreting Civil Code section 798.75, subdivision (c) as being applicable to a"unlawful occupant," regardless of whether the occupant is a purchaser or transferee of mobiiehoi-iie or a su"ueiiant of the rnobiiehorne owneriresideiit. As we explain beiow, we firid somerit in Petitioner's contention of error.Stubblefield's complaint is based upon a 5-day notice to surrender pursuant to Civil Cosection 798.75, subdivision (c). Subdivision (c) provides that "In the event that an occupant omobilehome has no rights of tenancy and is not otherwise entitled to occupy the mobilehopursuant to this chapter, the occupant is considered an unlawful occupant if, after a demand is mafor the surrender of the mobilehome park site, for a period of five days, the occupant refuses- urrender the site to the mobilehome park management. In the event the unlawful occupant failscomply with the demand, the unlawful occupant shall be subject to the proceedings set forthChapter 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. Sec798.75 is located within Article 7 (of Chapter 2.5), which is entitled "Transfer of MobilehomeMobilehome Park."

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We find no case law interpreting Civil Code section 798.75. However, the Rutter GroLandlord-Tenant Practice Guide provides this helpful discussion with respect to Section 798.75:Agreement to Rental Terms Required to Validate Purchaser's Tenancy Rights: Asa condition to the purchaser's rights of tenancy in the park, the escrow, sale or transferagreement involving a mobilehome located in the park at time of sale (where themobilehome is to rema'nn in the park) must contain a copy of either (a) a fully executedrental agreement or (b) a statement signed by park management and the prospectivehonieowner (purchaser) that the parties have agreed to the terms and conditions of arental agreement. [CC 798.75(a)]a. Five-day notice to "surrender" for refusal to execute lease: A purchaser whorefuses to execute a rental agreement with management "shall not have any rightsof 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 daysafter 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," thepurchaser 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 notsubject to unlawful detainer eviction under 798.75(c), above, if all of these conditionsexist (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 orher 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 (CC798.75(d)(3)).

(Friedman, Garcia & Hagarty, Cal. Prac. Guide: Landlord-Tenant (The Rutter Group 201 2),(1T-11:211 259. Italics in original.)Although the foregoing is not legal authority, it is persuasive and consistent with petitionecontention that Section 798.75, s~~bdivisionc) applies only to an occupant who is a purchasertransferee.Subdivisioli (b) of Section 798.75 states that "In the event the purchaser fails to execute rental agreement, the purchaser shall not have any rights of tenancy." Thus, a purchaser w

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refuses to execute a rental agreement with management falls within the status of an "unlawoccupant" as referenced in subdivision (c) of Section 798.75. Therefore, it follows that a 5-day noto s~trrenderunder Civil Code section 798.75, subdivision (c) may be served only upon a purchawho refuses to execute a rental agreement with park management and is subject to summrepossession 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 provthe remedy for removing mobilehome owners/residents andlor their subtenants for violating prules. Civil Code section 798.23.5 sets forth tlie circumstances under which a homeowner may ror sublet his or her home that serves as the homeowner's primary residence. Subdivision (b)provides that "The renter or sublessee shall comply with all rules and regulations of the park. Tfailure of a renter or sublessee to comply with the rules and regulations of the park may result in termination of the homeowner's tenancy in the mobilehome park, in accordance with Section 798.A homeowner's tenancy may not be terminated under this paragraph if the homeowner completes action for unlawful detainer or executes a judgment for possession, pursuant to Chapter(commencing with Section 1159) of Title 3 of Part 3 of the Code of Civil Procedure within 60 daysthe homeowner receiving notice of termination of tenancy." (Civ. Code, 798.23.5, subd. (b)(Section 798.56 provides the permissible grounds for termination of a homeowner's tenancy, includthe "Failure of the homeowner or resident to comply with a reasonable rule or regulation of the pthat 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, failto obtain park consent or approval before assuming occupancy. As such, Stubblefield's remedy isproceed against the homeowner in accordance with Civil Code section 798.56, subdivision (d) "failure of the homeowner or resident to comply with a reasonable rule or regulation of the park thapart of the rental agreement or any amendment thereto."

It is undisputed that petitioner is not a purchaser of the subject mobilehome. Therefore, shenot subject to summary eviction under Civil Code section 798.75, subdivision (c). Additionapetitioner cannot be evicted directly by Stubblefield because there is no privity between tmobilehome park and petitioner.

Pending our determination of whether petitioner has made out a prima facie case for issuanof a writ, respondent superior court may wish to vacate itsorder of February 14, 2013, and issuenew order granting petitioner's motion for summary judgment.

In the event respondent court does not notify the Appellate Division by April 16, 2013, thahas revised its order, the parties are advised that this court is inclined to grant a peremptory writhe first instance, vacating the court's order of February 14, 2013, and remanding this matter to trial court for further proceedings. (Code Civ. Proc., 1088; Palma v. U.S. Industrial Fasteners, I(1984) 36 Cal.3d 171, 177-180.)

If any party wishes to file additional briefs or opposition with this court, they shall do so onbefore April 9, 2013.

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The stay of trial court proceedings issued on March 5, 2013 shall remain in effect, pending.final decision on the writ petition.The Hon. Joseph R. Brisco and the Hon. James J. Hosking concur.

,/-:-;-2( ) ! > : r . a e>;:-./*.; \L>$T? r,'',,,.# $ . cu6,+ki.:; :* ,: : .~. >.,,l .,,. ., .- &2&j::i.:.,,,>;;;&>.?.$pJJ& >! b; 8,2,, ,q.. =, pTJ$ .&@& 2;,, 4%$ ;s7$?-.7"rl-":;!..* ,&.,&../ 6 ,3Yq.?*,., ;"',* >,,.49::;' . '% ,i ...;,.,j ,;.%T.~...:Y.d:2q,fl.@-..+?;dl : Presidiog Judge of the Appellate Division

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cc: Hon. Donald R. Abarez, San Bernardino Courthouse

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S u p e r i o r & o tt r t S t a t e of CnliforniwCLountp of S a n P e c n a r b i n o

Appellate DivisionDECLARATION OF SERVICE BY MAIL

STATE OF C ALIFORNIA )) Writ # ClVDS 1302013COUNTY OF SAN BERNARDINO 1 Trial Court# UDDS 1204130The undersigned hereby declares: 1 am a citizen of the United States of America, over theage of eighteen years, a resident o f tlie above-nam ed State, and n ot a party to nor interestin the procee dings named in the title of the annexed documen t. I am a Deputy Appe llateClerk of said County. I am readily familiar with the business practice for collection and---processing of cor esp m den cefo r rn a ikngw i tk the Unite$ StaksPostaL Service. -- - - -Correspondence would be deposited with the United States P ostal Service that same day ithe ordinary cours e of business. On the date of mailing show11 elow, I placed for co llectioand m ailing following ordinary business practices, at the request and under the direction ofthe S~ ipe rio r ourt in and for the S tate of California and County above-named, whose officeis at the Courthouse, S ar ~Bernardino, California, a sealed envelope wh ich contained a truecopy of each ann exed docum ent, and which envelope was addressed to the addressee, asfollows:

NANCY D. MCCARR ON, ESQ. HART, KING & COLDREN950 ROBLE LANE 200 SA NDPO INTE, 4THFLOORSANTA BARBARA, CA 93103 SANTA ANA, CA 92707

SAN BER NARDINO COLIRTHOUSEHONORABLE DONALD ALVAREZ

Da te and Place of Mailing: March 26, 2013 , San B ernardino, California.Document M ailed: PALMA ORDERI declare under pena lty of perjury that the foregoing is true and correct.

Executed on March 26, 2013, at San Bernardino, California.