MERLE'S MANOR II, LLC VS DOMITILO GUDINO

Tentative Rulings

Case Number: 19STCP05067    Hearing Date: February 01, 2021    Dept: 26

Merle’s Manor II, LLC v. Gudino, et al.

ATTORNEY FEES

(Civil Code §§ 798.85, 1717)

TENTATIVE RULING:

Petitioner Merle’s Manor II, LLC’s Motion for Attorney Fees and Costs is DENIED.

ANALYSIS:

Petitioner Merle’s Manor II, LLC (“Petitioner”) filed the instant Petition for Permanent Injunction against Domitilo Gudino (“Respondent”) on November 26, 2019. Petitioner moved pursuant to Civil Code section 786.88 for an order enjoining Respondent from continuing violation of the rules of Petitioner’s Mobile Home Park. On February 5, 2020, the Court granted the Petition.

Petitioner filed the instant Motion for Attorney Fees and Costs on July 23, 2020. Respondent filed an opposition on August 11, 2020 and Petitioner replied on January 19, 2021.

Discussion

A prevailing party is entitled to recover costs, including attorneys’ fees, as a matter of right. (Code Civ. Proc., §§ 1032, subd. (a)(4); 1033.5, subd. (a)(10).) This right may arise out of contract, statute or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) Here, the statute under which the Petition for Permanent Injunction was brought allows for the recovery of attorney fees and costs: “In any action arising out of the provisions of this chapter the prevailing party shall be entitled to reasonable attorney's fees and costs.” (Civ. Code, § 798.85.)

It is undisputed that Petitioner is the prevailing party in this action, as the party for whom relief was granted pursuant to the Petition. (Code Civ. Proc., § 1032, subd. (a)(4).) Therefore, Petitioner is entitled to recover the attorney fees and costs incurred defending this action.

“A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court . . . must be served and filed within the time for filing a notice of appeal under . . . rules 8.822 and 8.823 in a limited civil case.” (Cal. Rules of Court, Rule 3.1702, subd. (b)(1).) In a limited civil case, a notice of appeal must be filed on or before the earliest of 30 days after service of a document entitled “Notice of Entry” of judgment or 90 days after the entry of judgment. (Cal. Rules of Court, Rule 8.822, subd. (a)(1).) The Court can extend the time for bringing a motion upon a showing of good cause. (Cal. Rules of Court, Rule 3.1702, subd. (d).) Alternatively, the Court can grant relief from a missed deadline under Code of Civil Procedure section 473, subdivision (b). (Lee v. Wells Fargo Bank, N.A. (2001) 88 Cal.App.4th 1187, 1192-1195.)

A copy of the Order Granting the Petition for Permanent Injunction (“the Order”) was personally served on Respondent on February 5, 2020. However, the Order it is not entitled “Notice of Entry,” so it did not trigger the 30-day deadline under Rule 8.822, subdivisions (a) and (b). The question is whether the February 5, 2020 Order amounts to “entry of judgment” under Rule 8.822, subdivision (c).) Code of Civil Procedure section 577 defines a judgment as “the final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc., § 577.) Here, the order granting the Petition did make a final determination on the parties’ rights in this action. Furthermore, case law has held that a permanent injunction is a final judgment on the merits. (People ex rel. Becerra v. Huber (2019) 32 Cal.App.5th 524, 532 [citing Dawson v. East Side Union High School Dist. (1994) 28 Cal.App.4th 998, 1041].) The case on which Petitioner relies to claim that a permanent injunction is not a final order did not involve an order granting an injunction but denying a request to modify an injunction. (Crespin v. Shewry (2004) 125 Cal.App.4th 259, 270.) Finally, Code of Civil Procedure section 664.5, subdivision (a) sets forth the procedure for entry of judgment: “In any contested action or special proceeding … the party submitting an order or judgment for entry shall prepare and serve, a copy of the notice of entry of judgment to all parties who have appeared in the action or proceeding and shall file with the court the original notice of entry of judgment together with the proof of service.” (Code Civ. Proc., § 664.5, subd. (a).) Petitioner submitted an order for entry on the Petition, a copy of which it then served on Respondent and filed with the Court, along with proof service of the same.

The Court finds the order granting the Petition for Permanent Injunction is a final judgment that triggered the 90-day deadline to file a motion for attorney fees. Otherwise, a prevailing party could indefinitely extend the time to file a motion for attorney fees by waiting to file a document entitled “Entry of Judgment.” Based on the February 5, 2020 entry date, the Motion for Attorney Fees and Costs should have been filed by May 5, 2020. Instead, the Motion was not filed and served until more than two months later, on July 23, 2020.

Petitioner does not show good cause to extend the time to bring the Motion under Code of Civil Procedure section 1033.5. Petitioner incorrectly contends that it was not possible to file the Motion earlier than July 23, 2020 because of COVID-related court closures. Filing of motion papers, regardless of the hearing date, however, was not suspended for months as Petitioner asserts. Only March 17-19, 2020 were designated court holidays for purposes of computing time. (LASC General Order 004, dated 3/17/20.) Petitioner makes no showing that it attempted to file the Motion by May 5, 2020 and was unable to do so, which would support a finding of good cause to extend the deadline. No explanation is provided for why Petitioner waited until July 23, 2020. Petitioner may move for relief from the failure to meet the time limitation under section 473. (Save Our Forest & Ranchlands v. County of San Diego (1996) 50 Cal.App.4th 1757, 1761.)

Conclusion

Based on the foregoing, Petitioner Merle’s Manor II, LLC’s Motion for Attorney Fees and Costs is DENIED.

Court clerk to give notice.

Case Number: 19STCP05067    Hearing Date: February 05, 2020    Dept: 26

Merle’s Manor II, LLC v. Gudino, et al.

PERMANENT INJUNCTION

(Civil Code § 798.88)

TENTATIVE RULING:

Petitioner Merle’s Manor II, LLC’s Petition for Permanent Injunction Against Respondent Domitilo Gudino is GRANTED.

ANALYSIS:

Petitioner Merle’s Manor II, LLC (“Petitioner”) filed the instant Petition for Permanent Injunction against Domitilo Gudino (“Respondent”) on November 26, 2019. Petitioner moves pursuant to Civil Code section 786.88 for an order enjoining Respondent from continuing violation of the rules of Petitioner’s Mobile Home Park. Specifically, that Respondent be immediately (1) ordered to remove all items from outside the Mobile Home and storage shed except outdoor patio furniture and barbecues from the Premises, and prohibited from storing any items except outdoor patio furniture and barbecues outside of the Mobile Home and on the Premises; (2) prohibited from tying his dog up outside and allowing his dog to roam the Park without a leash; (3) ordered to trim the overgrown trees and bushes on the Premises; and (4) prohibited from playing loud music and from swearing at his neighbors. (Notice of Hearing, filed 1/28/20.)

The Petition and Notice of Hearing were personally served on Respondent on January 26, 2020. To date, no opposition has been filed.

Legal Standard

The Mobilehome Residency Law (“MRL”) gives management an injunctive relief remedy for violations of “reasonable” park rules and regulations. (Civ. Code, § 798.88.) Specifically, management may obtain a restraining order against a continuing or recurring violation of any “reasonable rule or regulation.” (Civ. Code, § 786.88, subd. (b); Rancho Santa Paula Mobilehome Park, Ltd. v. Evans (1994) 26 Cal.App.4th 1139, 1142.) The Petition and Notice of Hearing must be personally served on the respondent. (Civ. Code, § 786.88, subd. (c).) At the time of the hearing, the court shall issue the injunction if it finds by clear and convincing evidence the existence of a continuing or recurring violation of a “reasonable rule or regulation.” (Civ. Code, § 786.88, subd. (d).) The duration of the injunction may not exceed three years. (Civ. Code, § 786.88, subd. (d).)

Discussion

Petitioner has complied with the service requirements set forth at Civil Code section 798.88, subdivision (c) by personally serving Respondent with the Petition and Notice of Hearing. The Petition is supported by the declarations of the Mobile Home Park’s manager, Mario Flores (“Flores”) and regional manager, Trish Simpson (“Simpson”). Simpson states in her declaration that the subject Mobile Home Park (“the Park”) is located at 1000 N. Figueroa Street, Wilmington, California and is owned by Petitioner. (Pet., Simpson Decl., ¶1.) Both Flores and Simpson work for St. Claire Management, which was hired by Petitioner to oversee operations of the Park. (Pet., Flores Decl., ¶1.) On July 3, 2003, Respondent entered into a written agreement with Petitioner to lease Space 71 of the Park (“the Premises”). (Id. at ¶2 and Exh. A.) Respondent owns the Mobile Home that is located on the Premises. (Id. at ¶2.) Pursuant to the lease agreement, Respondent agreed to the Park Rules, which were incorporated therein. (Id. at ¶3.)

Since June 2019, Flores has observed Respondent violating several Park Rules as follows:

• Having an unregistered dog, tying the dog up outside, and allowing the dog to roam the Park without a leash in violation of Rules 24A-K;

• Having unapproved structures as part of the landscaping of the Premises in violation of Rules 8A-B;

• Storing multiple items on the Premises and outside the Mobile Home and failing to keep the landscaping in good condition in violation of Rules 10B, 10C, 10P, 10Q; and

• Playing loud music at night and swearing at his neighbors in violation of Rules 13A, 13C and 13E.

(Id. at ¶4(a)-(d).) Following these violations, Petitioner’s counsel issued seven-day Notices to Comply with Rules and Regulations in July and October, 2019. (Id. at ¶4(e) and Exh. C; Beam Decl., ¶¶2-3; Exhs. 3-5.) Despite these Notices to Comply, Respondent continues to be in violation of Rules. (Id. at ¶4(d).) Based on the foregoing evidence, which is unopposed, the Court finds that Petitioner has shown a continuing violation of its reasonable rules and regulations by clear and convincing evidence.

The Petition for Permanent Injunction Against Respondent Domitilo Gudino is GRANTED.

Moving party to give notice.