Whaley v. Trailer Haven

Filed 10/19/06 Whaley v. Trailer Haven CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

Introduction

This appeal arises out of extensive litigation between the parties as a result of appellant Gerald Whaley’s (Whaley) brief tenancy at respondent Trailer Haven’s (Trailer Haven) mobilehome park. Whaley appeals following summary judgment entered in favor of Trailer Haven on all of the causes of action alleged in his third amended complaint (TAC). On appeal, Whaley claims his cause of action for retaliatory eviction should have survived summary judgment. He also challenges the trial court’s denial of his request for leave to file a fourth amended complaint. We affirm.

II.

Facts and Procedural History

In opposing summary judgment, Whaley failed to identify any evidence that might create a dispute with regard to any of the facts submitted by Trailer Haven in support of its motion for summary judgment. Therefore, we are entitled to deem all of Trailer Haven’s undisputed facts to be admitted, and we shall summarize them and the relevant exhibits supporting them. (See Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 941.)

In April 2002, Whaley entered into a written lease agreement with Trailer Haven for a space for his residential mobilehome. As part of the agreement, Whaley was required to comply with the mobilehome park rules and regulations. Shortly after his tenancy commenced, on June 19, 2002, Trailer Haven served Whaley with a “Seven Day Notice to Comply with Park Rules and Regulations“ based on assorted violations of the mobilehome park rules, including the presence of additional people in Whaley’s mobilehome who were not on the lease.

On June 28, 2002, Trailer Haven’s lawyer wrote to Whaley indicating Trailer Haven had received numerous complaints “regarding the conduct of you, your unauthorized household members, and your guests.” The complaints “include[d] excessive noise, verbal altercations, screaming, loud music, trespass on other homesites, and threats of physical violence against other residents.” The letter indicated Whaley’s tenancy would be terminated “should [he] fail to immediately cease the annoying conduct.”

In July 2002, Trailer Haven served Whaley with a “Notice of Termination of Tenancy and Sixty (60) Day Notice to Remove Mobilehome from Mobilehome Park.” When Whaley did not vacate the premises, Trailer Haven filed an unlawful detainer action on September 10, 2002. Whaley filed an answer, alleging retaliatory eviction as an affirmative defense. Whaley alleged Trailer Haven was attempting to evict him in retaliation “for complaints made to State officials regarding dangerous and hazardous conditions” at Trailer Haven.

The unlawful detainer action resulted in a stipulated judgment entered in Trailer Haven’s favor in February 2003. The unlawful detainer judgment by the court awarded restitution of the premises to Trailer Haven and awarded Trailer Haven “judgment for forfeiture of the rental agreement between the parties.” On March 26, 2003, Whaley was evicted from Trailer Haven by the sheriff and his mobilehome and its contents were eventually sold at auction in June 2003.

Meanwhile, in November 2002, while the unlawful detainer proceedings were still pending, Whaley, acting in pro. per., filed the instant civil case against Trailer Haven. In response to Trailer Haven’s successful demurrers, Whaley amended his complaint twice more. The TAC, which is the operative complaint in this proceeding, was filed September 22, 2003. It set forth two causes of action, one for “Unlawful Retaliatory Eviction” and one for “Fraud and Bad Faith Dealings.”

The cause of action for retaliatory eviction was based upon Whaley’s complaint to the State of California’s Department of Housing and Community Development about “a number of potentially dangerous and illegal electrical conditions at the trailer park.” Whaley claims that Trailer Haven initiated eviction proceedings in retaliation for his reporting of these hazardous electrical conditions. The second cause of action, alleging fraud and bad faith, claimed Trailer Haven’s ulterior motive in proceeding with eviction proceedings was “to obtain title and possession of [Whaley’s] mobile home for resale.”

The case was submitted to judicial arbitration; and on July 20, 2004, judgment was entered in favor of Trailer Haven.^[1] Whaley sought a trial de novo. On December 20, 2004, over two years after the initial complaint was filed and five months after the arbitration, Trailer Haven filed a motion for summary judgment to Whaley’s TAC.

On February 14, 2005, Whaley sought leave to file a fourth amended complaint. The sole argument in support of Whaley’s motion was that his prior counsel had mistakenly filed “a prior version“ of the TAC which failed to include all of the causes of action he intended to allege against Trailer Haven. Whaley submitted his proposed fourth amended complaint, which contained 17 new causes of action, including breach of contract, conversion, quiet title, negligence, libel, trespass, and intentional and negligent infliction of emotional distress. As Whaley explains, the new causes of action alleged in the proposed amendment emanate from Trailer Haven’s actions in “mov[ing] to obtain a writ of execution, obtain[ing] a restraining order against him, den[ying] him his right to remove possessions, and ultimately [selling] his personal possessions and the mobile home without providing notice as required by California law.”

Trailer Haven’s motion for summary judgment and Whaley’s motion to amend were heard at the same time. Although Whaley was in pro. per., he was permitted to bring counsel with him to the hearing, and counsel was permitted to argue on Whaley’s behalf. The court granted Trailer Haven’s motion for summary judgment, finding the first cause of action for retaliatory eviction was barred by res judicata based on the prior unlawful detainer action, and, alternatively, that the summary judgment proceedings revealed there was “no triable issue of material fact as to the issue of retaliation.” With respect to the cause of action for fraud and bad faith, the court found there was no triable issue of material fact.^[2] The court also denied Whaley’s motion to amend his complaint, finding, among other things, that Whaley had unreasonably delayed in filing the motion. This appeal followed.^[3]

III.

Discussion

A.

Standard of Review

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Thus, summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment meets its burden of showing there is no merit to a cause of action if that party shows that one or more elements of the cause of action cannot be established or there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)

If the defendant fails to meet this initial burden, it is unnecessary to examine the plaintiff’s opposing evidence; the motion must be denied. (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 59-60.) However, if the defendant makes a prima facie showing that justifies a judgment in its favor, the burden then shifts to the plaintiff to make a prima facie showing that there exists a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) “The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .” (Code Civ. Proc., § 437c, subd. (p)(2).)

On appeal from a summary judgment, we make “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)

B.

Retaliatory Eviction Cause of Action

Civil Code section 1942.5, subdivision (c), declares it to be “unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of these acts, for the purpose of retaliating against the lessee because he or she has . . . lawfully and peaceably exercised any rights under the law.” A lessor who engages in such retaliation is liable for the injured tenant’s damages. (Civ. Code, § 1942.5, subd. (f).)

A tenant alleging retaliatory eviction must prove the landlord retaliated because the tenant exercised a legal right. (Western Land Office, Inc. v. Cervantes (1985) 175 Cal.App.3d 724, 739.) Typically, the claim arises as a defense to an unlawful detainer or other eviction proceeding, but the landlord’s retaliatory motive can also form the basis of a tenant’s affirmative cause of action for damages. (Id. at pp. 736-737; Civ. Code, § 1942.5, subd. (c).) Whether or not the landlord’s motive was retaliatory ordinarily raises a factual question, but such an issue cannot be submitted to the trier of fact unless there is substantial evidence to support it. (Four Seas Inv. Corp. v. International Hotel Tenants’ Assn. (1978) 81 Cal.App.3d 604, 610 (Four Seas).) If there is uncontroverted evidence of a “preexisting rational, uncontrived and substantial business motive,” then one cannot conclude that a retaliatory motive existed. (Ibid.) In the context of a summary judgment proceeding, if the landlord proffers a legitimate explanation for the challenged action, the court must consider the tenant’s showing to determine if a triable issue of fact exists. (Rich v. Schwab (1984) 162 Cal.App.3d 739, 744.)

We glean from Whaley’s arguments on appeal that triable issues exist with regard to whether his tenancy at the mobilehome park was terminated in retaliation for making a complaint to state officials about hazardous electrical wires at the mobilehome park. Acknowledging that he presented no facts to dispute Trailer Haven’s undisputed material facts showing that it had a legitimate nonretaliatory reason for terminating Whaley’s tenancy, Whaley claims Trailer Haven failed to prove that it was entitled to judgment as a matter of law.

We disagree. Whaley acknowledges that the date he complained to the State of California’s Department of Housing and Community Development about the conditions at the mobilehome park was on June 27, 2002. However, by this time, Trailer Haven had already served Whaley with a “Seven Day Notice to Comply with Park Rules and Regulations” based on assorted violations of the mobilehome park rules. In the notice, which was served on June 19, 2002, Trailer Haven advised Whaley that he was in violation of his lease and that his tenancy would be terminated if corrections were not undertaken.

Additional evidence defeating Whaley’s claim for retaliatory eviction is the letter from Trailer Haven’s legal counsel, dated June 25, 2002 (two days before Whaley’s complaint to the state), advising Whaley that he was subject to legal action should he “fail to comply with Park rules as required by the June 15, 2002 notice to comply.” Counsel wrote another letter a few days later, on June 28, 2002 (one day after Whaley’s complaint to the state), warning Whaley that his tenancy would be terminated “should [he] fail to immediately cease the annoying conduct.

Furthermore, Whaley made his complaint to the state anonymously. There is no evidence Trailer Haven had any knowledge of Whaley’s complaint until his lawyer wrote a letter on August 8, 2002, informing Trailer Haven’s attorney about the complaint, and insisting this established a retaliatory motive for eviction. In response, Trailer Haven’s counsel indicated that Trailer Haven would be able to “refute any defense based on alleged retaliatory eviction” because “[p]ark management had already been working with the State regarding the electrical problems prior to Mr. Whaley moving into the [p]ark.”

Consequently, the undisputed facts show that Trailer Haven signaled its intention to evict Whaley for failing to comply with park rules and regulations before Trailer Haven learned that Whaley had complained to state authorities about the conditions in the mobilehome park. Thus, Trailer Haven’s evidentiary showing on summary judgment established that there existed a “preexisting rational, uncontrived and substantial business motive” for pursuing legal action to remove Whaley from the premises. (Four Seas, supra, 81 Cal.App.3d at p. 610.) There was no conflicting evidence offered by Whaley to support a theory of retaliatory motive. The trial court therefore correctly found Trailer Haven “has demonstrated that there is no triable issue of material fact as to the issue of retaliation, and [Whaley] has failed to provide any competent evidence to the contrary.”^[4]

C.

Motion to File Fourth Amended Complaint

Whaley contends the court abused its discretion in denying his motion for leave to file a fourth amended complaint, based on his former counsel’s mistake in filing the wrong version of the TAC. His former attorney filed a declaration in support of motion to amend. He offers the following explanation: “[B]y mistake, I inadvertently filed an earlier version of the amended complaint . . . which version did not contain all of the causes of action that I had intended to file.” “I understand that plaintiff has had to file a motion to amend the complaint for the fourth time as a result of my excusable neglect.”^[5]

The trial court, noting that it was fundamentally unfair to Trailer Haven to have to defend an endless panoply of shifting and differing legal theories, denied the motion for leave to amend the complaint after finding Whaley inexcusably delayed in making the motion. The court observed that Trailer Haven “has been involved in . . . litigation for two and a half years [and] makes a motion for summary judgment on the only two counts that they’re faced with, and on the eve of trial, in effect, a fourth amended complaint comes forward with allegedly 16 causes of action?” “[O]ne must look at the circumstances; and the circumstances here include . . . no showing of the reason for the delay, none, other than we just, in effect, I guess, found out that the third amended complaint wasn’t what it was cracked up to be . . . .”

A trial court enjoys broad discretion in determining whether to allow a party to amend his pleading. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.) “[T]he appropriate exercise of that discretion requires the trial court to consider a number of factors: ‘including the conduct of the moving party and the belated presentation of the amendment. [Citation.] . . . The law is well settled that a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court’s denial of the amendment. . . . ‘The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may----of itself----be a valid reason for denial.’ [Citation.]” (Id. at p. 613.) When a trial court denies leave to amend, the exercise of the court’s discretion may be overturned only for a manifest or gross abuse of discretion. (Record v. Reason (1999) 73 Cal.App.4th 472, 486.)

In the instant case, Whaley has failed to meet his burden of establishing a manifest or gross abuse of discretion in the trial court’s denial of his motion for leave to file a fourth amended complaint. The record reveals the trial court was justified in believing that Whaley had waited an unreasonable time to seek amendment after gaining knowledge that his TAC did not include all of his theories of liability. As Whaley admits in his declaration filed in the summary judgment proceeding: “Just prior to the arbitration hearing date [July 1, 2004] plaintiff Whaley learned that the ‘[TAC]’ that his former counsel David Linn had filed on September 22, 2003 was not in fact the correct one, but a prior one.” However, Whaley’s request for leave to file a fourth amended complaint was filed on February 14, 2005, over seven months later. The motion to amend was filed after substantial discovery had been conducted and several months after Trailer Haven had filed a motion for summary judgment on the two causes of action in the TAC. The motion to amend was therefore untimely, and Whaley had failed to show diligence in seeking leave to amend. Thus, we conclude that the trial court did not abuse its discretion in denying the motion to amend.

IV.

Disposition

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Reardon, J.

_________________________

Rivera, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

^[1] The Judicial Arbitration Act (Code Civ. Proc., § 1141.10 et seq.) mandates judicial arbitration for most small (i.e., the amount in controversy is less that $50,000) civil claims. (Code Civ. Proc., § 1141.11.) An arbitration award becomes final unless a party requests a trial de novo. (Code Civ. Proc., § 1141.20.) If a trial de novo is not requested and the award is not vacated, it is entered as a judgment and has the same force and effect as a judgment in any civil action, except that it is not appealable. (Code Civ. Proc., § 1141.23.)

^[2] Whaley makes no attempt in his opening brief to challenge the dismissal of his second cause of action for fraud, and has therefore waived any argument that summary judgment was erroneously granted with regard to it. (See Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710-711.)

^[3] On August 1, 2006, this case was transferred from Division Two to Division Four of the First Appellate District. (Cal. Rules Court, rule 47.1(b)(1)(A). Justice James A. Richman was the trial court judge in this case and is now a member of the panel in Division Two.

^[4] Because we uphold the trial court’s grant of summary judgment on the ground that Whaley failed to raise a triable issue of fact on retaliatory motive, we need not discuss the trial court’s secondary ruling that Whaley’s claim for retaliatory eviction was barred by the res judicata effect of the prior unlawful detainer action.

^[5] A motion prepared by Whaley’s former attorney, seeking leave to file the TAC, indicates that the unfiled prior version should have contained four causes of action, instead of the two causes of action which were alleged in the TAC actually filed. However, the proposed fourth amended complaint submitted by Whaley sets forth 17 causes of action, not the two causes purportedly, inadvertently, omitted.

Thus, the record contradicts Whaley’s contention, in support of the motion to amend, that the court should have granted his motion to correct a justifiable oversight in the preparation of pleadings.