Judge Latrice A. G. Byrdsong, Case Number: 23STCP00245, Date: 2023-11-08 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 23STCP00245, Date: 2023-11-08 Tentative Ruling

Case Name: SUN-WEST PROPERTIES AND INVESTMENTS INC dba SUNRISE ESTATES v. AVEN LOUISE CHISHOLM; JACE MORGAN DEWOLFE; and DOES 1 to 10

Tentative Ruling: The Petition for Declaration of Abandonment of Mobilehome is DENIED WITHOUT PREJUDICE.

On January 30, 2023, Petitioner Sun-West Properties and Investments, Inc. (“Petitioner”) filed a Petition for Declaration of Abandonment of Mobilehome (the “Petition”) against Respondents Aven Louise Chisholm (“Chisholm”) and Jace Morgan Dewolfe (“Dewolfe”) (collectively, “Respondents”). Petitioner seeks a declaration that the mobilehome located at 45131 28th Street E, Space 27, Lancaster, CA 93535, described as 1965 Baron Majestic, Decal Number AAS1557, Serial No. S440 (the “Mobilehome”) is abandoned. (Petition, ¶2 and p.4.) Petitioner also seeks: (1) rent according to proof; (2) utilities according to proof; (3) attorneys’ fees and costs; and (4) other charges according to proof. (Petition, p.4.)

On June 5, 2023, after hearing oral argument, the Court continued the hearing on the Petition to July 5, 2023. (See June 5, 2023 Minute Order.)

On June 6, 2023, Petitioner requested, and default was entered against Respondents.

On July 5, 2023, after hearing oral argument, the Court continued the hearing on the Petition to August 9, 2023 in order for Petitioner to correct deficiencies in the Petition. (July 5, 2023 Minute Order.) The Court found that Petitioner did not show that the Mobilehome fell within the definition of abandoned pursuant to Civil Code section 798.61. (Id.) The Court also found that Petitioner failed to present any admissible evidence in support of the Petition. (Id.)

On August 9, 2023, the Court issued a minute order continuing the hearing on the Petition to October 11, 2023. On September 20, 2023, the Court issued a minute order continuing the hearing on the Petition from October 11, 2023, to November 6, 2023. On October 6, 2023, the Court continued the hearing on the Petition from November 6, 2023, to November 8, 2023.

To date, Petitioner has not corrected the deficiencies outlined in the Court’s July 5, 2023 Minute Order. Petitioner has not filed any declarations or other admissible evidence in support of the Petition.

An abandoned mobilehome means a mobilehome which: (1) is located in a mobilehhome park on a site for which no rent has been paid to the management for the preceding 60 days; (2) is unoccupied; (3) a reasonable person would believe it to be abandoned; and (4) is not permanently affixed to the land. (Civ. Code § 798.61(a)(1)(A)-(D).)

“After determining a mobilehome in a mobilehome park to be an abandoned mobilehome, the management shall post a notice of belief of abandonment on the mobilehome for not less than 30 days, and shall deposit copies of the notice in the United States mail, postage prepaid, addressed to the homeowner at the last known address and to any known registered owner, if different from the homeowner, and to any known holder of a security interest in the abandoned mobilehome. This notice shall be mailed by registered or certified mail with a return receipt requested.” (Civ. Code § 798.61(b).)

“Thirty or more days following posting pursuant to subdivision (b), the management may file a petition in the superior court in the county in which the mobilehome park is located, for a judicial declaration of abandonment of the mobilehome . . . [c]opies of the petition shall be served upon the homeowner, any known registered owner, and any known person having a lien or security interest of record in the mobilehome by posting a copy on the mobilehome and mailing copies to those persons at their last known addresses by registered or certified mail with a return receipt requested in the United States mail, postage prepaid.” (Code Civ. Proc. § 798.61(c)(1).)

“If, at the hearing, the petitioner shows by a preponderance of the evidence that the criteria for an abandoned mobilehome has been satisfied and no party establishes an interest therein at the hearing and tenders all past due rent and other charges, the court shall enter a judgment of abandonment, determine the amount of charges to which the petitioner is entitled, and award attorney’s fees and costs to the petitioner.” (Civ. Code § 798.61(d)(2).)

Initially, the Court finds that the Petition is still deficient as Petitioner has not submitted any admissible evidence in support of the Petition. Petitioner has not corrected the deficiencies articulated in this Court’s July 5, 2023 Minute Order.

The Court finds that Petitioner has not made a showing under Civil Code section 798.61(a)(1). The Petition states that no rent has been paid to the Park Management for the period commencing August 1, 2021, the Mobilehome is unoccupied, and that Park Management reasonably believes the Mobilehome to be abandoned. (Petition, ¶ 6.) Petitioner, however, has not submitted declarations or other admissible evidence in support of the Petition.[1] Beyond the allegations of the Petition, the Court has no facts on which to assess whether the Mobilehome meets the definition of an abandoned mobilehome. There is no indication via admissible evidence whether: (1) the Mobilehome is permanently affixed to the land; (2) Respondents own the Mobilehome; (3) the Mobilehome is unoccupied; or (4) a reasonable person would believe the Mobilehome to be abandoned. While the Notice of Abandonment and accompanying Proof of Service are attached as Exhibit 1 to the Petition, such exhibit has not been authenticated and therefore is not admissible in evidence. In sum, Petitioner has still failed to make a showing under Civil Code section 798.61(a)(1) that the Mobilehome is abandoned.

Additionally, Petitioner has not complied with Civil Code section 798.61(b). The Notice of Abandonment, which is attached as Exhibit 1 to the Petition, is not authenticated and therefore cannot be admitted into evidence. Therefore, Petitioner has failed to make a showing that it complied with Civil Code section 798.61(b).

Petitioner, however, has complied with Civil Code section 798.61(c)(1). Proofs of service were filed on March 10, 2023, showing that Chisolm and Dewolfe were both served with the Petition by posting and mailing. Thus, Petitioner has complied with Civil Code section 798.61(c)(1).

Although seeking rent, utilities, attorneys’ fees and costs, and other charges, Petitioner has failed to make a showing by a preponderance of the evidence that the criteria for an abandoned mobilehome has been satisfied. As stated above, Petitioner has submitted no admissible evidence in support of the Petition and has not satisfied the requirements of Civil Code sections 798.61(a)(1) and 798.61(b). The Court therefore cannot enter a judgment of abandonment pursuant to Civil Code section 798.61(d)(2).

Accordingly, due to the aforementioned issues concerning the Petition, the Court DENIES the Petition without prejudice.

[1] “In law and motion practice, factual evidence is supplied to the court by way of declarations.” Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.