Judge Mark E. Windham, Case 22STCP03595 2023-02-07 Tentative Ruling

Judge: Mark E. Windham, Case: 22STCP03595, Date: 2023-02-07 Tentative Ruling

Case Number: 22STCP03595 Hearing Date: February 7, 2023 Dept: 26

Belmont Shores Mobile Estates v. Wagner, et al.

PETITION TO DECLARE MOBILEHOME ABANDONED

(Civ. Code § 798.61)

TENTATIVE RULING:

Petitioner Belmont Shores Mobile Estates’ Petition to Declare Mobilehome Abandoned is GRANTED. JUDGMENT TO BE ENTERED IN PETITIONER’S FAVOR IN THE AMOUNT OF $19,950.00, PLUS ACCRUING DAILY DAMAGES OF $47.50. COSTS AND ATTORNEY’S FEES ARE TO BE DETERMINED BY MEMORANDUM OF COSTS AND NOTICED MOTION, RESPECTIVELY.

ORDER TO SHOW CAUSE RE: SALE / DISPOSAL OF MOBILEHOME AND SUBMISSION OF ACCOUNTING PURSUANT TO CIVIL CODE SECTION 798.61 IS SET FOR JULY 24, 2023 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On October 4, 2022, Petitioner Belmont Shores Mobile Estates (“Petitioner”) filed the instant Petition to Declare Mobilehome Abandoned against Respondents William Wagner, Norman Ingram and Sheryl V. Mitchell (“Respondents”). A First Amended Petition was filed on November 8, 2022. Following no response to the Petition, default was entered against Respondents on January 3, 2023.

Discussion

Pursuant to Civil Code section 798.61, Petitioner seeks a court order deeming Respondents’ mobilehome, (“the Mobilehome”) located at 6218 E Beachcomber Drive, Long Beach, California (“the Space”), to be abandoned, and awarding Petitioner rent due on the Mobilehome site in the amount from September 1, 2021 to the present, accruing at $1,425.00 per month, plus costs and attorney’s fees. (First Amended Pet., ¶6 and Prayer ¶¶1-6.)

A. Determination of “Abandoned Mobilehome”—Civ. Code § 798.61(a)(1)

Pursuant to Civil Code, section 798.61, subdivision (a)(1), an “abandoned mobilehome” means a mobilehome about which all of the following are true:

(A) It is located in a mobilehome park on a site for which no rent has been paid to the management for the preceding 60 days.

(B) It is unoccupied.

(D) It is not permanently affixed to the land.

(Civ. Code, § 798.61, subd. (a)(1).) The First Amended Petition is supported by the declaration of Petitioner’s Regional Manager, Sal Ortiz, who states that the parties entered into a lease agreement for the Space on or about April 1, 2010. (Ortiz Decl., Exh. 3.) No rent has been paid for the Space from 60 days prior to posting a Notice of Abandonment on the Mobilehome on August 29, 2022. (Id. at ¶8 and Exh. A.) In fact, no rent has been paid since September 1, 2021. (Id. at ¶9.) The Notice of Belief of Abandonment was posted on, and mailed by certified mail with return receipt requested to, the Mobilehome. (Id. at Exhs. A-B.) This evidence demonstrates that the Mobilehome is unoccupied and a reasonable person would believe the Mobilehome to be abandoned. Therefore, Petitioner has demonstrated that the Mobilehome is abandoned within the meaning of Civil Code section 798.61, subdivision (a)(1).

B. Notice of Belief of Abandonment—Civ. Code § 798.61(b)

Civil Code, section 798.61, subdivision (b) requires:

“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, subd. (b).) Petitioner attached a Notice of the Belief of Abandonment to the First Amended Petition and demonstrates that it was served on Respondents by posting and certified mail. (Pet., Ortiz Decl., Exh. 1; Proof of Service by Posting, filed 01/03/23.) This satisfies the requirements of Civil Code, section 798.61, subdivision (b).

C. Petition for Judicial Declaration—Civ. Code § 798.61(c)

Civ. Code § 798.61(c)(1) states:

“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. A proceeding under this subdivision is a limited civil case. Copies 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.” (Emphasis added.)

(Civ. Code, § 798.61, subd. (c)(1).) Long Beach is located within the County of Los Angeles, which is within this Court’s jurisdiction. The Court further determines that the Petition was filed more than 30 days after the Notice of Belief of Abandonment was posted. Additionally, the Petition and Notice of Hearing were served on Respondents on November 8, 2022 by posting and certified mail with return receipt requested. (Proof of Service by Posting, filed 01/03/22.)

D. Charges, Attorneys’ Fees, and Costs

“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, subd. (d)(2).) Petitioner asks for accrued rent/storage fees on the Space in the amount $19,950.00 based on monthly rent of $1,425.00 per month from September 1, 2021 to November 1, 2022, plus accruing daily damages of $47.50. (Ortiz Decl., ¶10.) No amount of costs or attorney’s fees is sought or supported by the evidence. (See Pet., p. 2:11-14.) Accordingly, costs and attorney’s fees are to be determined by memorandum of costs and noticed motion, respectively.

Conclusion

Moving party to give notice.