Tatro v. Bradley

Filed 5/19/08 Tatro v. Bradley CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Josh M. Fredericks, Judge. Affirmed.

Stuart M. Parker for Plaintiff and Appellant.

Law Offices of Larry W. Weaver, Susan C. Watts, and Larry W. Weaver for Defendants and Respondents.

Al Tatro (plaintiff) filed a lawsuit against James P. Bradley, doing business as Vera Carson Estates Mobile Home (defendant). Defendant filed a demurrer to plaintiffs first amended complaint (FAC), which was sustained without leave to amend. Plaintiff appeals, contending the trial court ignored the gravamen of the FAC, defendants illegal conspiracy to conduct a commercially unreasonable sale of plaintiffs mobilehome. We affirm the judgment (order of dismissal).

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff owned a mobilehome and leased space in defendants mobilehome park in Carson, pursuant to an oral agreement. Beginning in September 2004, plaintiff did not timely pay rent and defendant proceeded with an unlawful detainer action and eviction, which resulted in a lien being placed on plaintiffs mobilehome. After securing a judgment against plaintiff, defendant sold the mobilehome to satisfy the lien on September 2, 2005. In April 2006, plaintiff filed the instant lawsuit. In his FAC, he alleged statutory violations, breach of the implied covenant of good faith and fair dealing, and unlawful, unfair, and fraudulent business practices, and sought punitive damages. Defendant filed a demurrer and at a hearing held on April 23, 2007, the court held that plaintiff had failed to adequately allege any causes of action against defendant and sustained the demurrer without leave to amend. Thereafter, the court entered judgment in favor of defendant, and awarded $5,000 in attorney fees and $520 in court costs.

DISCUSSION

On appeal of an order of dismissal following the sustaining of a demurrer, we review the complaint de novo, assuming all the properly pleaded facts are true and determine whether it contains sufficient facts to state a cause of action. (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814, Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 852.)

Plaintiffs complaint alleged that his mobilehome was of older vintage and had a nominal value of $3,000. However, he alleged that if the home had been sold with the right to remain on the leased space, it had a value of $70,000. He alleged that defendant did not offer the mobilehome for sale together with the right to lease the space, and entered into a conspiracy with unnamed Doe defendants to sell the mobilehome separately for the lowest possible price so that plaintiff could not recover any of his equity in the mobilehome. Plaintiff alleged statutory violations and a violation of his lease agreement, the terms of which are not included in the FAC. Plaintiff did not dispute that he did not timely pay rent and that an unlawful detainer judgment was entered against him.

Civil Code section 798.56[1]lists the permissible reasons for termination of a tenancy by a mobilehome manager. In particular, it provides that if there is nonpayment of rent, the tenancy may be terminated, subject to certain conditions.

Section 798.58 provides that: Tenancy may only be terminated for reasons contained in Section 798.56, and a tenancy may not be terminated for the purpose of making a homeowners site available for a person who purchased or proposes to purchase, or rents or proposes to rent, a mobilehome from the owner of the park or the owners agent.

Section 798.56a, subdivision (e) provides, that if neither the legal owner nor the junior lienholder gives timely notice of its decision to either sell the mobilehome itself or otherwise cure the default, the management may either remove the mobilehome from the premises and place it in storage or store it on its site. In this case, notwithstanding any other provision of law, the management shall have a warehousemans lien in accordance with Section 7209 of the Commercial Code against the mobilehome for the costs of dismantling and moving, if appropriate, as well as storage, that shall be superior to all other liens, . . . and may enforce the lien pursuant to Section 7210 of the Commercial Code either after the date of judgment in an unlawful detainer action or after the date the mobilehome is physically vacated by the resident, whichever occurs earlier. Upon completion of any sale to enforce the warehousemans lien in accordance with Section 7210 of the Commercial Code, the management shall provide the purchaser at the sale with evidence of the sale . . . . (Italics added.)

In 2005, Commercial Code section 7210 provided that: (1) Except as provided in subdivision (2), a warehousemans lien may be enforced by public or private sale of the goods . . . , at any time or place and on any terms which are commercially reasonable, after notifying all persons known to claim an interest in the goods. . . . The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the warehouseman is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the warehouseman either sells the goods in the usual manner in any recognized market therefor, or if he sells at the price current in such market at the time of his sale, or if he has otherwise sold in conformity with commercially reasonable practices among dealers in the type of goods sold, he has sold in a commercially reasonable manner. . . .[2]

Plaintiff contends that when defendant conducted the warehousemans lien sale, it did not conduct it in a commercially reasonable manner pursuant to section 798.56a, subdivision (e), and Commercial Code section 7210 because it orchestrated a sale wherein those benefits [of keeping the mobilehome in the park were] only extended to a co-conspirator, while those members of the public who might otherwise be interested in the sale as purchasers, were only extended the right to buy the mobilehome structure which has no value apart from its being situated on the lot site. He asserts that because of the manner in which defendant conducted the sale, he did not receive any excess monies after the lien was satisfied.

Plaintiff concedes that the unlawful detainer action resulted in the termination of his lease. Thus, his interest in the space no longer existed, and nothing in the applicable statutes required defendant to sell the space in the park together with plaintiffs mobilehome after the termination of the tenancy. Nor can plaintiff point to any agreement between the parties which required defendant to sell the mobilehome with the opportunity to lease the same space. Finally, he alleges no facts which support the existence of an alleged conspiracy of which defendant was a part. He merely concludes that defendant was part of a conspiracy with unnamed coconspirators. While we must accept all material facts alleged, we are not bound to accept plaintiffs bare conclusions. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

Where, as here, a demurrer is sustained without leave to amend, we must decide whether there is a reasonable possibility plaintiff can cure the defect with an amendment. If we find that an amendment can cure the defect, we may conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. The plaintiff has the burden of demonstrating that an amendment could cure the defect. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 853.) On appeal, he has not attempted to show he can cure the deficiencies in his pleading. Accordingly, we find that there was no abuse of discretion in sustaining the demurrer without leave to amend.

DISPOSITION

The judgment (order of dismissal) is affirmed. Defendant shall recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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[1] All further undesignated statutory references are to the Civil Code.

[2] This statute was amended in 2006.