Judge: Mark E. Windham, Case: 23STCP02034, Date: 2023-10-12 Tentative Ruling

Case Number: 23STCP02034    Hearing Date: December 18, 2023    Dept: 26

Covina Hills MHC v. Souza, et al.

(1 of 2 )DEMURRER; MOTION TO STRIKE 

(Code Civ. Proc., §§ 430.10, 436)

TENTATIVE RULING:

Petitioner Covina Hills MHC’s Demurrer and Motion to Strike are PLACED OFF CALENDAR. ON ITS OWN MOTION THE COURT STRIKES THE CROSS-COMPLAINT FILED ON OCTOBER 12, 2023.

ANALYSIS:

On June 12, 2023, Petitioner Covina Hills MHC (“Petitioner”) filed the instant Petition to Declare Mobilehome Abandoned against Respondent Eugenia Souza (“Respondent”). Respondent filed an Answer on July 26, 2023 and a Request to Postpone Trial on October 3, 2023. Respondent also filed a cross-complaint on October 12, 2023.

The Petition came for hearing on October 16, 2023, at which time the matter was continued to allow Petitioner to file and serve supplemental papers. (Minute Order, 10/16/23.) Respondent filed an opposition to the Petition on the same date.

On November 13, 2023, Petitioner filed a Demurrer and Motion to Strike with respect to the Cross-Complaint. Respondent filed oppositions to the Demurrer and Motion to Strike on December 4, 2023 and Petitioner replied on December 11, 2023.  

Discussion

Code of Civil Procedure section 428.10 expressly sets forth the circumstances in which a cross-complaint may be filed: “A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint . . . .” (Code Civ. Proc., § 428.10.) There is no statutory authorization to file a cross-complaint in response to a petition to declare a mobile home abandoned, which is neither a complaint nor a cross-complaint. The Court of Appeals has ruled: “The provisions for compulsory cross-complaints do not apply to special proceedings and permissive cross-complaints are only allowed where the cross-complaint responds to a complaint or another cross-complaint (not a petition) (ss 426.60, 428.10).” (Airfloor Co. of California, Inc. v. Regents of University of California (1978) 84 Cal.App.3d 1004, 1009.)

A petition to declare a mobile home abandoned under Civil Code section 798.61 is a special proceeding. (See Rosner v. Benedict Heights, Inc. (1963) 219 Cal.App.2d 1, 8 [“a legal proceeding which, under the common law and equity practice, was not an action at law or a suit in equity, is a special proceeding. The two chief characteristics of special proceedings are: (1) They are established by statute, and (2) the statutes usually (though not invariably) create new remedies unknown to the common law or equity courts.”].) Furthermore, a proceeding under Code of Civil Procedure section 798.61 is subject to the legislative mandate of speedy resolution: “Hearing on the petition shall be given precedence over other matters on the court's calendar.” (Code Civ. Proc., § 798.61, subd. (d)(1).) Allowing Respondent to bring cross-claims in this action and proceed under the timelines for a standard civil action would run contrary to this mandate.

Therefore, the Court exercises its power under Code of Civil Procedure section 436, subdivision (b) to strike the improperly filed Cross-Complaint.

Conclusion

Petitioner Covina Hills MHC’s Demurrer and Motion to Strike Cross-Complaint are PLACED OFF CALENDAR. ON ITS OWN MOTION, THE COURT STRIKES THE CROSS-COMPLAINT FILED ON OCTOBER 12, 2023.

Court clerk to give notice.

(2 of 2 )PETITION
TO DECLARE MOBILEHOME ABANDONED 

(Civ.
Code § 798.61)

TENTATIVE RULING:

Petitioner Covina Hills MHC’s Petition to Declare Mobilehome
Abandoned is DENIED.

ANALYSIS:

On June 12, 2023, Petitioner
Covina Hills MHC (“Petitioner”) filed the instant Petition to Declare
Mobilehome Abandoned against Respondent Eugenia Souza (“Respondent”).
Respondent filed an Answer on July 26, 2023 and a Request to Postpone Trial on
October 3, 2023. Respondent also filed a cross-complaint on October 12, 2023.

The Petition came for hearing on
October 16, 2023, at which time the matter was continued to allow Petitioner to
file and serve supplemental papers. (Minute Order, 10/16/23.) Respondent filed
an opposition to the Petition on the same date.

On November 13, 2023, Petitioner
filed a Demurrer and Motion to Strike with respect to the Cross-Complaint.
Respondent filed oppositions to the Demurrer and Motion to Strike on December
4, 2023 and Petitioner replied on December 11, 2023. To date, Petitioner has
not filed supplemental papers in support of the Petition.

Discussion

Pursuant
to Civil Code section 798.61, Petitioner
seeks a court order deeming Respondent’s mobilehome (“the Mobilehome”), located
at 17350 E. Temple Ave., Space 446, La Puente, California (“the Space”), to be
abandoned, and awarding Petitioner rent due on the Space from May 1, 2022 to
the present, accruing at $1,166.00 per month, plus costs and attorney’s fees.
(Pet., ¶6 and Prayer ¶¶1-6.) A proceeding under this statute “shall be given
precedence over other matters on the court's calendar.” (Code Civ. Proc., §
798.61, subd. (d)(1).) For this reason, the Court denies Respondent’s request
to continue the hearing date.

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.

(C)
A reasonable person would believe it to be abandoned.

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

(Civ. Code, § 798.61, subd. (a)(1).) The Petition is still not
supported by any declaration attesting to the facts alleged therein. A Notice
of Abandonment on the Mobilehome was allegedly posted on the mobilehome and
served by certified mail on January 19, 2023, but the document is not
authenticated, dated, nor supported by a proof of service. (Pet., Exh. 1.)
Petitioner, therefore, has not demonstrated that the Mobilehome is unoccupied nor
that a reasonable person would believe the Mobilehome to be 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 Petition but as discussed above, has
still not demonstrated that it was served on Respondent by posting and
certified mail. It remains that the requirements of Civil Code, section 798.61,
subdivision (b) are not satisfied.

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).) La Puente is located
within the County of Los Angeles, which is within this Court’s jurisdiction.
Although there is no proof of service of the Petition, Respondent’s appearance
in the action has waived any defect in service of the Petition itself. (See Carlton
v. Quint (2000) 77 Cal.App.4th 690, 697.) However, the Court cannot
determine that the Petition was filed more than 30 days after the Notice of
Belief of Abandonment was posted because there is no proof of service of the
Notice of Belief of Abandonment.

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 of $1,166.00 per month from May 1, 2022. (Pet., ¶6.) No
evidence is submitted to support the monthly rent sought, nor the amount of
attorney’s fees and costs sought.

Conclusion

Based on the foregoing, Petitioner Covina Hills MHC’s
Petition to Declare Mobilehome Abandoned is DENIED.

Court clerk to give notice.