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Civil EO58852

In the Court of Appeal, State of California FOURTH APPELLATE DISTRICT, DIVISION TWO
STUBBLEFIELD PROPERTIES,
a CA General Partnership, dba Mountain Shadows Mobile Home Community

Petitioner v. THE APPELLATE DIVISION OF


THE SAN BERNARDINO COUNTY SUPERIOR COURT HONORABLE GILBERT G. OCHOA, Presiding

Respondent
_____________________________________________________

BONNIE SHIPLEY,
Real Party in Interest
Shipleys

OPPOSITION TO
Stubblefields

PETITION FOR WRIT OF MANDATE, PROHIBITION AND/OR CERTIORARI OR OTHER APPROPRIATE RELIEF WITH DEMURRER, MOTION TO QUASH & STRIKE AND RETURN Following a 5/6/2013 OPINION issued by the Appellate Division of San Bernardino Superior Court in Case No. CIVDS1302013 Granting Real Party Bonnie Shipleys Writ Petition Reversing Denial of Summary Judgment in SBSC Case UDDS1204130 [limited jurisdiction] by the Honorable Donald Alvarez, Judge [S-32] (909)708-8690

FILED WITH REAL PARTYS EXHIBITS 1-9


_________________________________________________________________________________________________________________________________________________________

Nancy Duffy McCarron CBN 164780


950 Roble Lane Santa Barbara, CA 93103 nancyduffysb@yahoo.com 805-450-0450 fax 805-965-3492 Attorney for Real Party Bonnie Shipley

TO BE FILED IN 'THE COURT OF APPEAL

APP-008
Court of Appeal Case Number:

COURT OF APPEAL,

FOURTH

APPELLATE DISTRICT, DNlSlON

TWO

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Barnumber, and address):

Nancy Duffy McCarron 164780

E058852
Superior Court Case Number:

-950 Roble Lane


Santa Barbara, CA 93 103
FOR COURT USE ONLY

805-450-0450 FAX NO. (O~tionalJ: 805-965-3492 E-MAIL ADDRESS ( ~ p t i o n a ~nancyduffysb j. @~ ~ ~ O O . C O I I I ATTORNEY FOR (Name): Petitioner [Writ of Mandate, Prohibition and Review]
TELEPHONE NO.:

APPELLANTIPETITIONER

Stubblefield Properties Bonnie Shipley

RESPONDENTIREAL PARTY IN INTEREST:

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS


(check one):

O INITIAL CERTIFICATE

O SUPPLEMENTAL CERTIFICATE

II

I I

Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may also use this form as a supplemental certificate when you learn of changed or additional information that must be disclosed.
1. This form is being submitted on behalf of the following party (name): Real 2. a.

Part in Interest BOMVIE SHIPLEY

There are no interested entities or persons that must be listed in this certificate under rule 8.208.

b. ) Interested entities or persons required to be listed under rule 8.208 are as follows: Full name of interested entity or person Nature of interest (Explain):

(I)
(2)

Stubblefield Properties, Partners Stubblefield Quail Point Company Eva Stubblefield Hazard, partner Arnold H Stubblefield, Gen Partner Thomas Parrish, General Partner
Continued on attachment 2

Business BankcorpICA; see more- SEC filing Attachment 2 D. William Bader; Neal Baker; William Cozzo, Alan J Lane John E. Duckworth; John Riddell; Robert L Nottingham; John L Ridell; James W Andrews; Ruth E Adell Neil Derry,SB Cty Supr race; Bill Postmus;Dale Stubblefield

(3)
(4)
(5)

The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).

Date:

6-24-2013

Nancy Duffy McCarron 164780


(TYPE OR PRINT NAME) Page 1 o f 3 Form Approved for Optional Use Judicial Council of Callfornia APP-008 [Rev. January 1.20091
Gal. Rules of Court, rules 8.208. 8.488 www.couttinfo.ca.gov

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS.. filed 6/24/13 TABLE OF AUTHORITIES ..... INTRODUCTION .. ONLY ONE ISSUE WAS PRESENTED IN SHIPLEYs WRIT PETITION BELOW Is the summary eviction remedy provided under Civil 798.75[c] limited only to purchasers and transferees who occupy a mobile home without first executing a park lease? YES. The trial court said NO. The Appellate Division said YES. STATEWIDE URGENCY . The trial courts order abrogated all statutory protections against a parks arbitrary eviction of mobile home owners without just cause, and authorized park owners to arbitrarily evict a resident on 5-days notice by labeling her an unlawful occupant legislators prohibited arbitrary evictions by enacting Civil 798.55 in 1978 A WOLF IN SHEEPS CLOTHING . A. Attorney is de facto beneficiary shown by perjured verification & proof of service B. The law firm obtained a stay by deception, sabotage and two perjured affidavits DEMURRER, MOTION TO QUASH/STRIKE CRC 8.487(b)(1) [Return Below] I II Court Lacks Jurisdiction to Act On a Petition Not Verified by Petitioner (the party) 13 13 7 1 iv 1 1

Court Lacks Jurisdiction to Act Where Service Failed to Comply with Code & Rules 15 17 21

III. Petitioner Has Seven other Plain, Speedy Remedies in the Ordinary Course of Law IV. Petition Fails to Show it is Necessary to Protect Substantial Right Balance of Harm Test Tips in Respondents Favor No Harm to Petitioner V.

Petition Fails to State Facts Sufficient to Constitute a Cause of Action . 22 Elements of a Writ of Review - Petitioner did not meet Omaha Factors . 22 22

VI. Court Must Strike Irrelevant Matters Not Part of Writ Petition & OPINION below A. Petitioners Unappealed MSJ, Lis Pendens & Injunction Docs not Part of Wit ii

THE REAL CHRONOLOGY OF PERTINENT EVENTS [RETURN] . 29 POINTS & AUTHORITIES ... 33 I. THE REAL STANDARD OF REVIEW [Did the court exceed its jurisdiction?] 33 A. Right to Appeal is Statutory and Limited to Expressed Legislative Mandates 33 B. Writ of Review is Limited to only if Appellate Division exceeded jurisdiction. 34 C. Writ of Review Does Not Review Matters Within Appellate Courts Discretion.. 36 D. Writ of Prohibition Never Issues To Restrain Lower Court from Error 37 II. III. IV. Courts Cannot Issue Advisory Opinions Or Guard over Potential Misdeeds . 37 Appellate Courts Have a Duty to Uphold Legislative Intent ..... Appellate Division Did Not Exceed its Jurisdiction - Opinion is Correct . 38 39 39 41

A. Opinion is Presumed Correct Appellate Court Cannot Reweigh Evidence . B. Court May Not Assess Credibility of a Witness . CONCLUSION .

V.

42

CERTIFICATE OF WORD COUNT. VERIFICATION ... PROOF OF SERVICE ...

42 43 44

iii

TABLE OF AUTHORITIES
Cases

5 AARTS Productions. Inc . v. Crocker Nat 'I Bank (1986) 179 Cal.App.3d 1061 ................... Abeileira v . Dist Ct ofAPpeal ('941) 17 C.2d 280, 288 ................................................... 16 Abellejra v. District Court ofAppeal (1941) 17 Cal.2d 280 ...............................................36 AFT . Board of Education (1980) 107 C.A.3d 829, 835-836 ............................................. 6 Bancrofi-whitneyv . MeHugh, 166 C.140. ....................................................... 38 Benjamin Franklin B & L Gorp. v. Schmidt (1933) 132 CA.39 ........................................14 Bishop v Merging Capital (1996) 49 ~ a 1 . 4 ~ ~ 1 81809 0 3 , ....................................................39 Blank v Kirwan (1985) 39 Cal.3d 3 11, 33 1 ........................................................................ 35 Burlington v . Sante Fe Ry Co (2004) 121 CA4th . 452, 462 ..................................... .......e40 Burton v. Set Pat Nat'lBank (1988) 197 CA.3d 972, 978 ..................................................6 Crwfordv. So Pac(1935) 3 Cal.2d 427. 429 .........................................................39 Citibankv. Tabalon (2012) 209 CA 4 . ' Supp.16, 21 ......................................................... 40 City o f l A v . County of LA (1 989) 2 16 CA.3d 916. 923 ......................................................6 Clothesrigger v . GTE (1987) 191 CA3d . 605, 61 1............................................................. 37 6 Clutterham v . Coachmen Industries. Inc . (1985) 169 CA.3d 1223, 1227 ............................ 40 County of Santa Clara v. Superior Court (1971) 4 Cal.3d 545,553 ................................... Curle v. Supr . Ct (2001) 24 C4th . 1057 .......................................................................... 1 4 Davey v. So Pac Co., 116 Cal . 325, 330. ............................................................................ 40 Denham v Superior Court (1970) 2 Cal.3d 557, 566 .......................................................... 35 Denham ve. Supr. Ct. (1970) 2 C3d . 557, 564 .................................................................... 42 Doers v. Golden Gate Dist (1979) 23 C.3d 180,184, fnl ...................................................28 Estate of Kay (1947) 30 Cal.2d. 215, 225-226 .................................................................... 38 Evje v. City Title Co. (1953) 120 CA 2d . 488, 492-494 ...................................................... 43 Eye Dog Faund. v. State Board of Guide Dogs for the Blind ............................................. 39 FLIR Systems v . Parrish (2009) 174 CA 4th . 1270, 1276 ...................................................43 Friedland v Superior Court (1945) 67 CA2d 6 19, 623 ....................................................... 36 Ghirardo v. ~ n t o n i o l(1 i 994) 8 ~ a 1 . 4 ~ ~ 1, .7 800-80 9 1 ......................................................... 42 ~ i l b e rv t. ~ u n i c i p a Court l (4th . Dist . Div . 2- 1977) 73 CA.3d, 723, 734-735 ................... 29 Gonzales v. Superior Court (1935) 3 Cal.2d 260 .................................................................. 6 Green Trees Entr . v . PaZm Springs Alpine Estates. Inc . (1967) 66 Cal . 2d 782, 784-785 .42 Hayward v- Sup. Ct (1933) 130 CA 607, 608. Phelps v . Sr . Ct (1934) 138 CA 570, 572.36 ~enriksen v . Cily of Rialto (1993) 20 C A. 4th 1612, 16 17 n 2 . [4th . Dist . Div 21 ............. 42 Howard v . Superior Court (1944) 25 Cal-2d 784, 789 ....................................................... 42 th In re Aria C (20 12) 204 CA 4 . 1317, 1329........................................................................43 In re Marriage ofFink (1979) 25 Cal.3d 877, 887 ............................................................. 41 Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660 .........................................................42

Joeger v Superior Court (1934) 2 CA2d 360. 363 .............................................................. 16 Kompf v . Morrison, 73 Cal.App.2d 284, 286 ................................................................... 38 Krueger v. Superior Court (Sec. Pac . Nat'l . Bank) (1979) 89 CA.3d 934, 936 .................14 Kuhn v. Dept . Gen. Svs . (1994) 22 CA4th. 1627, 1632 ...................................................... 41 Lehto v. City of Oxnard (1985) 17 1 CA.3d 285, 293 [review den . Dec . 5, 19851................ 3 Leslie G v. Perry & As . (1996) 43 C A 4" 472, 487 ........................................................... 41 Mannheim v. Superior Court (1970) 3 Cal.3d 678, 683 ....................................................14 Marriage ofBalcof(2006) 141 C A 4" .1509, 153 1 ............................................................ 43 Marriage ofDitto (1988) 206 CA3d 643, 647 ....................................................................40 Marriage ofMix (1975) 14 C3d 604, 614 ........................................................................... 43 Navarro v. Perron (2004) 122 CA4th 797, 803 .................................................................. 43 Omaha Indemnity v. Superior Court (Greinke) (1989)209 C A 3d . 1266, 1269 ................22 Parker v . Supr Ct (1936) 16 C A 2d 580, 583; ................................................ 36 16 Pennoyer v. Neff; 95 U.S.7 14;............................................................................................. People v. Hull (199 1 ) 1 Cal.4th 266, 272 ............................................................................. 6 People v. Jackson (2005) 128 CA4th. 1009 10 18 ............................................................... 37 People v. Shuey (1975) 13 Cal.3d 835 846 ......................................................................... 36 People v. Superior Court (LafJ) (200 1 ) 25 Cal.4th 703, 727 ................................................ 6 People's Home S&L v. Sadler (1905) 1 C A 189, 193 ....................................... 26 Marriage of Fonstein (1976) 17 C3d 800, 813 ............................................................ 26 Phelan v . Superior Court (1950) 35 Cal.2d 363 .......................................................... 1 7 Power v. Fairbanks, supra, 146 Cal . 6 1 1, 6 15 .................................................................... 40 Ragland v . U S. Bank National Assn . (20 12)209 Cal.App.4th 1 82 ,195 ............................ 28 Redlands School District v . S . Ct (1942) 20 Cal.2d. 348, 350-35 1 .................................... 34 Reid v. Google (20 10) 50 C4th.5 17, 527 ........................................................................ 16 Roddenberry v. Roddenberry ( 1 996) 44 C A 4th. 634, 65 1 ..................................................41 Sanchez v. Swinerton & Walberg Co. (1996) 47 C A 4th 146 1, 1465- 1466 .........................6 41 Schmidlin v. City ofpalo Alto (2007)157 Cal.App.4th 728 ................................................ Star Motor Imports v . Superior Court (1979) 88 CA3d 201, 203-204 ...............................15 Star Motor Imports v . Superior Court (1979) 88 Cal.App.3d 201 .....................................1 1 Texas Co.v . Sr Ct (1938 2 7 CA2d 651............................................................. 36 35 Tidewater Ass 'n Oil v. Supr . Ct (1955) 43 C2d 81 5 , 820 ................................................... 38 Treadwell v . Nickel, 194 Cal . 243; ...................................................................................... Troche v Duly ( 1 990) 2 17 CA3d 403, 407 .......................................................................... 43 Tupman v. Haberkern ( 1 929) 208 Ca1.256, 270 ................................................................. 38 v. City ofRialto (1993)20 C A. 4th 1612, 1625 . [ 4 t h ~ i 2v ..................................................5 Wilson v County of Orange (2009) 169 C A 4th 1 185, 1 1 88 ............................................... -42

Civil E058852

Statutes
CCP $1067-1077 ................................................................................................................. 34 CCP Ij 10 11 .......................................................................................................................... 17 CCP 437c(m)(1) ................................................................................................................ 23
CCp $446 ............................................................................................................................ 15

C I v $798.55 .......................................................................................................................... 2 CIV 798.75[c] .......................................................................................................... 1, 22, 31

c ~ $798 v . 88 ....................................................................................................................... 20
CIV 5798.11 .................................................................................................................... 4, 18 CIV 5798.25.51.................................................................................................................... 19 CIV 8798.34 .................................................................................................................. 19, 30 CIV $798.34. ....................................................................................................................... 30 CIV $798.75 .............................................................................................................. 1,2,3,5,7 CIV 798.75(c)............................................................................................................ 2 3, 30 CIV 8798.77 .......................................................................................................................... 3 CCP $1069 .......................................................................................................................... 14 CCP 9 1073 .......................................................................................................................... 16 17 CCP $410.50 ....................................................................................................................... CCP 5583.1 10 ..................................................................................................................... 16

12 CCP 5904.2 .........................................................................................................................


CCP 5904.3 ......................................................................................................................... 34

CCP 1074.......................................................................................................................... 34 CCP1069.1 ........................................................................................................................ 16 VI

INTRODUCTION
ONLY ONE ISSUE WAS PRESENTED IN BONNIE SHIPLEYs WRIT PETITION: Is the summary eviction remedy provided under Civil 798.75[c] limited only to purchasers and transferees who occupy a mobile home without first executing a park lease? YES. The trial court said NO. The Appellate Division said YES. STATEWIDE URGENCY The trial courts order abrogated all statutory protections against a parks arbitrary eviction of mobile home residents without just cause, and authorized arbitrary evictions on 5-days notice by unilaterally labeling a park resident as an unlawful occupant. This order put millions of poor, elderly and disabled residents at risk of arbitrary eviction. The Appellate Division reversed the order contrary to legislative intent and public policy. Our legislators expressed intent to prohibit arbitrary evictions in 1978 by 798.55: (a) The Legislature finds and declares that, because of the high cost of moving mobilehomes, the potential for damage resulting therefrom, the requirements relating to the installation of mobilehomes, and the cost of landscaping or lot preparation, it is necessary that the owners of mobilehomes occupied within mobilehome parks be provided with the unique protection from actual or constructive eviction afforded by the provisions of this chapter. (b) (1) The management may not terminate or refuse to renew a tenancy, except for a reason specified in this article and upon the giving of written notice to the homeowner, in the manner prescribed by Section 1162 of the Code of Civil Procedure, to sell or remove, at the homeowner's election, the mobilehome from the park within a period of not less than 60 days, which period shall be specified in the notice. Civil 798.55 Our legislators reaffirmed their abhorrence of arbitrary park evictions in 2012: It is contrary to an expressed legislative goal to encourage owners to use injunctive relief under Civil 798.88 rather than evict a resident for an alleged park rule violation: (Legislative intent: This three-year sunset will arguably provide the Legislature with the opportunity to re-evaluate this bill to ensure that the stated goal of encouraging a park owner to pursue a lesser remedy against a resident of a mobilehome park instead of eviction is actually reached without negative unintended consequences.) (Amended by Stats. 2012, Chap. 99 (AB 2272, Wagner), eff. 1/1/2013) 1

Civil 798.55-798.57 provide unique protection to owners of mobile homes in mobile home parks. A park owner can terminate tenancy for seven enumerated reasons, and only after 60-days written notice reciting the reason. Only a purchaser or transferee, who acquires a mobilehome and unlawfully occupies it without executing a lease, can be summarily evicted under Civil 798.75(c). Article 7 of the Mobilehome Residency Law [MRL] governing transfers of ownership, provides this limited remedy to protect park owners from unlawful occupants and to prevent a new owner from occupying a mobile home space without paying rent. The trial court erroneously expanded the limited scope of 798.75(c) by holding it applied universally to any park resident labeled as an unlawful occupant. This was despite testimony from Maury Priest supporting summary judgment. Priest testified that he attended every legislative session in 1987 and legislators added a limited remedy only to evict purchasers and transferees who moved in without a park lease.

The trial court impliedly held that any provision in a park lease or rule is enforceable, regardless of reasonableness. This disregards Civil 798.77 which renders any provision void and unenforceable if it deprives an owner of a statutory right guaranteed under MRL. The trial court held there was a triable jury issue as to whether a park rule was violated. The trial court authorized summary eviction of any resident contrary to legislative intent. Even if summary eviction were authorized under Civil 798.75(c) [it clearly is not] the order bypassed two prerequisite issues; i.e. is the park rule constitutional and reasonable? Both issues must be addressed before deciding if a rule was violated to justify eviction. The issue is of statewide importance to all mobilehome residents. The trial court order enables a park owner to summarily evict any occupant for any violation of any park rule unilaterally imposed, even if it is unreasonable, contrary to legislative intent recited in 798.55 and 798.88. Fortunately, the appellate court reversed this devastating order.

Statutes must be given a reasonable construction which conforms to the apparent purpose and intent of the lawmakers. Various parts of the statutory enactment must be harmonized by considering the particular clause in the context of the whole statute." Lehto 1 Mobilehome Residency Law or MRL [Civil 798 - 798.88] Civil 798.75 must be harmonized with Civil 798.55-57 which provide unique protection to owners of mobile homes located in mobile home parks by precluding arbitrary evictions without due process. It makes no sense that legislators would grant those rights in 1978 and revoke them in 1987. The MRL is divided into 8 Articles separated by subject area as shown below: Mobilehome Residency Law Article 1 General Article 2 Rental Agreement Article 3 Rules and Regulations Article 3.5 Fees and Charges Article 4 Utilities Article 4.5 Rent Control Article 5 Homeowner Communications and Meetings Article 5.5 Homeowners Meetings with Management Article 6 Termination of Tenancy Article 7 Transfer of Mobilehome or Mobilehome Park Article 8 Actions, Proceedings, and Penalties Article 1 General contains provisions such as MRL application and definitions; i.e. Resident is a homeowner or other person who lawfully occupies a mobile home. Civil 798.11 Plaintiff could have sought declaratory relief to ask a court to interpret the words unlawful occupant. Instead plaintiff prosecuted a sham complaint to summarily evict the roommate of a resident/tenant with a valid lease who was paying monthly rent for the space. Article 8 governs Actions, Proceedings, and Penalties. Civil 798.88 (Article 8) authorizes injunction for rule violations. Article 7 governs Transfers of Mobile homes. All codes under Article 7 relate to transfers of ownership.

Lehto v. City of Oxnard (1985) 171 CA.3d 285, 293 [review den. Dec. 5, 1985] 3

Civil 798.75 authorizes a park owner to summarily evict a purchaser or transferee who takes title to and occupies a mobilehome without first executing an occupancy lease. The remedy is limited to purchasers and transferees. It cannot be used against a paying tenant with a valid lease or her co-resident. The disputed issue is application of [c]. Petitioner claims it applies universally to anyone. Real party claims it applies only to purchasers and transferees who acquire title and move in without a rental agreement. Civil Code 798.75. Attachment of rental agreement or statement (a) An escrow, sale, or transfer agreement involving a mobilehome located in a park at the time of the sale, where the mobilehome is to remain in the park, shall contain a copy of either a fully executed rental agreement or a statement signed by the park's management and the prospective homeowner that the parties have agreed to the terms and conditions of a rental agreement. (b) In the event the purchaser fails to execute the rental agreement, the purchaser shall not have any rights of tenancy. (c) In the event that an occupant of a mobilehome has no rights of tenancy and is not otherwise entitled to occupy the mobilehome pursuant to this chapter, the occupant is considered an unlawful occupant if, after a demand is made for the surrender of the mobilehome park site, for a period of five days, the occupant refuses to surrender the site to the mobilehome park management. In the event the unlawful occupant fails to comply with the demand, the unlawful occupant shall be subject to the proceedings set forth in Chapter 4 (commencing with Section 1159) of Title 3 of Part 3 of the Code of Civil Procedure. (d) The occupant of the mobilehome shall not be considered an unlawful occupant and shall not be subject to the provisions of subdivision (c) if all of the following conditions are present: (1) The occupant is the registered owner of the mobilehome. (2) The management has determined that the occupant has the financial ability to pay the rent and charges of the park; will comply with the rules and regulations of the park, based on the occupant's prior tenancies; and will comply with this article. (3) The management failed or refused to offer the occupant a rental agreement.

Under Lehto the particular clause (subsection c here) must be considered in the context of the entire statute. The trial court erred in reciting only subsection c in its ruling. Real party had cited Supreme Court authority directing courts to consider placement of a statute in an Article to mean its scope is limited to the subject area within the Article. 2 In support of her motion for summary judgment real party submitted an affidavit of Maury Priest, a lobbyist for homeowners, who attended every legislative session when Civil 798.75 was amended during 1987 to add subsection [c] and [d] as a remedy. Priest testified at length about what happened 25 years ago during those sessions. 3 Priest testified that legislators authorized summary evictions only against purchasers and transferees who acquired title to a mobile home and occupied it without first executing a park lease to pay rent. 4 Priest testified that legislators never intended to authorize summary evictions against a guest or co-resident who shared a home with an owner who had a valid park lease with the owner and was paying monthly space rent. 5 The court erred by disregarding Priests testimony where no rebuttal was offered. A court generally cannot resolve questions about a declarant's credibility in a summary judgment proceeding. Henricksen 6 Adopting plaintiffs counsels conjecture and speculation on what he thought legislators intended in 1987---instead of Maury Priests testimony based on personal knowledge---showed prejudicial bias. An assertion based solely on conjecture or speculation is insufficient to avoid summary judgment. 7
2 3
4 5

App. Vol-III, page 12.289 App. Vol-III, page 3.17-a

App.Vol-III, page 3.17-b App. Vol-III, page 3.17-b 6 AARTS Productions, Inc. v. Crocker Natl Bank (1986) 179 Cal.App.3d 1061,1065 Henriksen v. City of Rialto (1993) 20 CA. 4th 1612, 1625 . [4thDiv 2] 7 Burton v. Sec Pac Natl Bank (1988) 197 CA.3d 972, 978; Clutterham v. Coachmen Industries, Inc. (1985) 169 CA.3d 1223, 1227;
Sanchez v. Swinerton & Walberg Co. (1996) 47 CA 4th 1461, 1465-1466 5

In 1935 our Supreme Court guided us on statutory interpretation, mandating that courts must give considerable weight to Chapter & Section headings. see Gonzales 8 It is an elementary rule of construction that chapter and section headings in the codes are entitled to considerable weight in interpreting the various sections and should be given effect according to their import, to the same extent as though they were included in the body of the law. Gonzalez was affirmed in AFT 9 holding if a section is contained in a Chapter it applies only in the context of that chapter. Gonzales & AFT were followed in City of LA 10 In 1991 the Supreme Court revisited the issue reaffirming Gonzalez and AFT. People v. Hull 11 In 2001 the High Court announced its 1935 rule of construction was elementary. Laff 12 "It is an elementary rule of construction that chapter and section headings in the codes are entitled to considerable weight in interpreting the various sections and should be given effect according to their import, to the same extent as though they were included in the body of the lawchapter and section headings properly may be considered in determining legislative intentour opinion states: "That such a remedial section should exist may be conceded but arguments based on such a premise are more properly addressed to the legislature than to the courts." The Laff court held a court may not carve out a new remedy from subsection text, because such right to a remedy must be addressed to the legislature not the courts. Yet, this is exactly what the trial court did in its ruling--carved a new remedy out of subsection [c]. This was clear error which is why the Appellate Division reversed the damaging order. The trial court had no right to play superlegislator and carve out a remedy for the billionaire, regardless of whether or not he fears the billionaire might fund a candidate to run against him next year when he is up for reelection. The dissenter Hosking is up for reelection this year.

8 9

Gonzales v. Superior Court (1935) 3 Cal.2d 260 AFT v. Board of Education (1980) 107 C.A.3d 829, 835-836 10 City of LA v. County of LA (1989) 216 CA.3d 916, 923 11 People v. Hull (1991) 1 Cal.4th 266, 272 12 People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 727 6

In re Mark B (2007) 149 CA.4th 61, 75-76 held a court must look to where the code section was placed in relation to the Chapter & Section Headings giving considerable weight to its placement to determine whether it applies specifically or generally to all. The same rule applies in this case. Article 7 of the MRL applies only to Transfers and Sales of Mobile Homes. This court must give considerable weight to the placement of Civil 798.75 under Article 7 Sales & Transfers. The Appellate Division followed the Supreme Court and gave considerable weight to 798.75s placement in Article 7 applying only to purchasers and transferees. The Appellate Division was right. The trial court was wrong.

[A WOLF IN SHEEPS CLOTHING] A. Attorney is de facto beneficiary shown by a perjured verification & proof of service 1. A firm got a stay by deception, sabotage and perjured verification & proofs of service. A Writ to the Supreme Court is imminent no matter which party prevails in this case. This vitriolic summary proceeding mushroomed into 9 volumes, with a 14-pg docket, 270 entries and 40 hearings. It is not about Bonnie Shipley. It is about an underprivileged, underrepresented class of poor, elderly and disabled residents whose homes are at risk. The residents are too poor and weak to battle a GOLIATH law firm who teaches wealthy park owners how to convert mobile homes into a private portfolio of cash cow rentals. This is about a firms quest to maintain maximum market share in legal fees representing mobile home park owners. The firm touts its market share as 30 Years of Excellence.

The firms self-touting logo appears on all emails & letters

It makes no sense to incur a million dollars in attorney fees over a $60,000 mobile home. What makes sense is HKC wants to take credit for annihilating the only protection mobile home residents have from the wrath of greedy park owners trying to filch mobilehomes. 7

This firm will stop at nothing to win, including deception, trickery, sabotage and perjury. This court was hoodwinked into responding to a purported emergency by issuing a stay the next morning after the firm delivered over 1000 sheets of paper to the intake window. Eighty percent of the exhibits were improperly filed as they do not relate to the writ below. Attorney Robert Williamson verified the petition testifying The facts alleged in the Petition are within my own knowledge and I know these facts to be true. [Petition: 13] Williamson knew many of his stated facts were patently false; yet he signed it under oath. For example, he testified It is undisputed that Shipley, who is under the age of 55, occupies the mobilehome owned by her attorneyunder an unapproved lease/sublease... [Petition:6]

Williamson knew this alleged undisputed fact was disputed as Shipley lives under share agreementnot a sublease, and evidence submitted in MSJ proved exactly the opposite. Williamson failed to rebut Shipley & McCarrons declarations with counter declarations. Williamson failed to file a Statement of Disputed Facts to rebut Shipleys Statement of Undisputed Facts and Williamson failed to file even one contra affidavit with his opposition. His perjury was enhanced by falsely testifying Shipley acquired exclusive use and occupancy:

Petition, page 28, fn 4

If the research attorney who so rapidly recommended a stay the next morning after filing had bothered to check a few references he/she would have recognized the fraud and perjury. Juxtaposing his cited reference [1 PE, Exh.2, p.59] to the actual document proves the fraud.

22-23 Attorney Williamson had the share occupancy agreement produced at both depositions. The Appellate Division expressed a finding that Shipley & McCarron shared the home.

Real.P. Exh.7:58 This is just one example of attorney perjury and deceit to hoodwink this court into a stay. Laurie Moan filed a perjured, deceptive proof of service to sabotage real party. Petitioner had to serve the petition by personal delivery like a summons. CCP 1070. The courts website directs filers seeking immediate stays to personally serve the petition. The proof of service recites real party was served by mail, which did not arrive for 3 days. Then Ms. Moan filed a perjured, amended proof of service testifying that the parties had a pre-existing agreement to serve each other by email. It was a knowingly false statement:

Rel.P.Exh. 8.68 Williamson knew he had refused to agree to email service yet suborned Moans perjury. At a 1/22/13 hearing, refusing to agree to email service, he forced us to serve per code.

Real.P.Exh. 2.24 The firm never called to notify us they sought a stay the day before our writ was final. Williamson intended to sabotage real party by obtaining a stay before we even realized a writ petition had been filed. Shipley was precluded from filing any opposition to a stay. Williamson intentionally served by regular mail, with no telephone or fax notice, and sent an email late in the day, hoping & gambling counsel might not see it that night, so he could obtain a stay without any notice, depriving real party of due process. These abusive tactics, intended to sabotage, have been used regularly by this firm for over a year in this litigation. Williamson verified under oath that all exhibits filed are true copies of original documents on file with Respondent Appellate Division. [Petition 5]. Shipleys Exhibit No. 4 proves the above statement was perjury, knowing he altered documents. Page 4.42 shows Williamson verified his return on her writ petition on information and belief, which rendered our petition allegations uncontroverted, entitling her to writ relief by default. 13 Real party objected to the invalid verification and moved to strike the return as follows:

13

Star Motor Imports v. Superior Court (1979) 88 Cal.App.3d 201 10

PE913 Williamson knew we would object here, using the same argument. He tried to avoid a finding by this court that his unverified return requires this court to affirm the Opinion. Williamson opted to defraud this court by altering the verification he filed with this writ.

Page 4.43 is the fax cover sheet transmitted by the Appellate Division on 6/21/13, with a copy of the verification page from Stubblefields Opposition/Return filed in their court. It is identical to Page 4.42 (the verification page served to Shipleys counsel on 4/9/13). THE COURT MUST COMPARE THEM TO ITS COPY ON FILE [PE Vol. 2 PE548]. PE548 is a purported verification now signed by Thomas Parrish, on information & belief. Williamson manufactured & backdated this new verification and substituted it as PE548. Fabrication fails as verification on information & belief is worthless fodder not evidence. DIRECT FRAUD ON THE APPELLATE COURT MUST BE ADDRESSED. Notwithstanding a lack of merit, the petition should be denied on this basis alone to send a clear message to all parties and attorneys that this court will not tolerate fraud. Attorney Williamson misrepresented the urgency of stay relief. The OPINION was not a final order, as defined by CCP 904.2 and case law. It was not final until the trial court vacated its order denying summary judgment and entered a new order granting the motion. 11

Finally, in his perjured pertinent facts Williamson lied by omission in artfully failing to discuss the declaration of Maury Priest supporting summary judgment motion. Although it was buried in 971 pages submitted as Exhibits [filed to confuse & obfuscate] the declaration was there. However selected pages were omitted. Real party submits the Declaration of Maury Priest as filed in the Appellate Division and the trial court. [RP Exh.1] THIS IS THE MOST IMPORTANT EXHIBIT THIS COURT NEEDS TO REVIEW Williamson artfully omitted any mention of Maury Priest in his statement of facts. Maury Priest is a lobbyist who has personal knowledge of exactly what our legislators intended when they amended Civil Code 798.75 in 1987 to add subsection [c] and [d]. Priest testified that he attended every 1987 session when legislators revised Civil 798.75. Shipley supported her summary judgment motion with Maury Priests declaration [RP Exh. 1] Priest testified that legislators never intended subsection [c] and [d] to apply universally to all park residents or their guests. Priest testified park owner lobbyists included forcible detainer language in the initial draft which resulted in heated arguments during the final sessions. Legislators refused to sign the amendment until forcible detainer words were deleted. THE COURT MUST READ PRIESTs TESTIMONY. IT IS ACTUAL EVIDENCE.

Real P. Exh. 1.2 After counsel contacted Maury Priest, discovered he had attended every legislative session held in 1987, and remembered what happened vividly, counsel got his testimony. Maury Priest was the only witness with personal knowledge of what legislators intended. Counsel notified the court on 1/22/13 that she had the smoking gun for summary judgment.

12

RP 2.20 The court should have granted summary judgment based on Maury Priests testimony. Williamson failed to file any declaration countering the testimony of witness Maury Priest. Williamson is trying to pull a rabbit out of a hat by arguing this court should even entertain a statutory analysis after a witness testified about what legislators intended in 1987. Williamsons unadulterated speculation and conjecture on what they intended is hogwash. Williamson violated ethics by concealing Maury Pries testimony as admonished in Jones: 14 Without disclosure of the omitted facts, inclusion of any reporter's transcripts or resort to a crystal ball, we had no way of divining the real issue-whether the court properly exercised its discretionWhen transcripts are not available, rule 56 requires that counsel include along with the petition a declaration "fairly summarizing the proceedings ... and the basis of the trial court's decision ...." As an officer of the court and member of the bar, the lawyer is obligated to use only such means as are consistent with truth: he may not seek to mislead a judge by artifice or suppress evidence he has a legal obligation to reveal. (Rules Prof. Conduct, rules 5-220, 5-200(A), (B).) In the final analysis, we cannot accept the notion that a selective recitation of facts satisfies the rules: half the truth in this case is just as misleading as a complete fabrication.

With perjury, artful omissions & altered documents the court should distrust his arguments. DEMURRER, MOTION TO QUASH/STRIKE CRC 8.487(b)(1) [return below]

14

Jones v. Superior Court (People) (1994) 26 CA.4th 92, 99-100 13

Court Lacks Jurisdiction to Act on Unverified Petition (the party) Only a party to a proceeding may file a petition. Curle 15 Petition for Writ of Review

must be verified. CCP 1069. An unverified Petition for Review must be dismissed. 16 It is inappropriate for attorney to appear as petitioner or verify a writ proceeding. Mannheim 17 It secondarily raises the issue of a petitioner's right to relief by prerogative writ upon a defectively
verified petition we discharge the writ without reaching the legal issues Krueger 18

Petitioners' petition for prerogative writ is fatally defective in form as well as in substance. A petition for writ of mandate must be verified. (Code Civ. Proc., 1086; Cal. Rules of Court, rule 56.)A fatally defective verification "is treated as a failure to verify." (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, 356, p. 2020.). While prerogative writs are commonly described as granted or denied at the discretion of the court (5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, 123, p. 3899), we view the discretion as one that must, to the extent possible, be exercised so that similarly situated litigants be given equal treatment. To permit petitioners to proceed on their petition for prerogative writ which is: 1. defectively verified in a fatal respect would be to afford petitioners preferred treatment denied to other litigants. The petition for peremptory writ is denied. Krueger @ 939-940 The court in Star Motors19 dismissed a writ petition verified by counsel as improper. But our subsequent and closer examination of the writ application revealed that as to all of its allegations, the "verification" required by Code of Civil Procedure section 1086 was made by counsel "under penalty of perjury, ..." "verification" is an affidavit verifying the truth of the matters covered by it. (Code Civ. Proc., 2009; {..cites} "Its object is to assure good faith in the averments or statements of a party" to litigation. {..cites} The unverified petition is fatally defective and must be dismissed under mandatory authority.

15 16

Curle v. Supr. Ct (2001) 24 C4th. 1057 Benjamin Franklin B & L Corp. v. Schmidt (1933) 132 CA.39; Star Motor Imports v. Sp. Ct. (1979) 88 CA.3d 201; County of San Mateo v. W.C.A.B.(1981) 46 Cal. Comp. Cases 496 17 Mannheim v. Superior Court (1970) 3 Cal.3d 678, 683 18 Krueger v. Superior Court (Sec. Pac. Natl. Bank) (1979) 89 CA.3d 934, 936 19 Star Motor Imports v. Superior Court (1979) 88 CA3d 201, 203-204 14

If the court authorizes reply counsel will argue CCP 446 authorized his verification. This argument fails as only a party can verify a writ petition and it must be under oath. The Star Motor court explained why 446 applies to pleadings but not to writ petitions: We have not overlooked the provision of Code of Civil Procedure section 446 This provision, insofar as it purports to permit verification on "information or belief," palpably refers to pleadings that join issues, such as the common complaint and answer of a lawsuit. {cites} Where the verification, or affidavit, is to be "used as evidence" of facts, " Section 446 [Code Civ. Proc.] does not apply." {cites} Star Motor Imports @ 204-205 Williamsons perjury as shown above is why his verification is invalid. Shipley moves to dismiss the petition as Williamson has no personal knowledge of the facts. Williamsons verification of Stubblefields return below on information and belief rendered the return invalid fodder entitling Shipley to writ relief by default. Shipley objected to the invalid return but the court failed to rule on it, probably because the court granted the petition so the issue became moot. A courts failure to rule on an objection does not waive it. Reid v. Google 20 Shipley objects again to this petition and the fatally defective return filed below. As allegations were uncontroverted Shipley was entitled to relief by default below. The court should affirm the order. CCP1069.1 The provisions of Section 1089 as to a return by demurrer or answer apply to a proceeding pursuant to this chapter. CRC 8.487(b)(1) Demurrer can include a motion to quash for lack of jurisdiction (fail to personally serve) and to strike improper matter. II
21

Court Lacks Jurisdiction Where Service Failed to Comply with Codes & Rules Shipley moves to quash the writ petition because the court lacks jurisdiction to grant

relief where a petitioner failed to comply with the basic requirements of personal service. The writ must be served in the same manner as a summons in civil action, except when otherwise expressly directed by the court. CCP 1073. We never agreed to email service.
20 21

Reid v. Google (2010) 50 C4th.517, 527 Joeger v Superior Court (1934) 2 CA2d 360, 363 15

A court has no jurisdiction to render a personal judgment against one not personally served with process Pennoyerv. Neff
22

This court has no jurisdiction to waive statutory

requirements on valid process of service for any party, preferred or otherwise. CCP 583.110. Definitions (f) Service includes return of summons. You are required to serve a petition that requests an immediate stay by personal delivery or by an expeditious method consented to in advance by the real party. If you do not comply with the service requirement, absent a showing of good cause, the court will not act on the request for five days except to deny it summarily. (See Cal. Rules of Court, rule 8.486 and Ct. App., Fourth Dist., Div. One, Local Rule 1(a) for specific requirements.) CCP 1011 governs personal service requirements and recites that personal service means by delivery to the party or attorney on whom the service is required to be made. CCP 410.50 governs jurisdiction over a party by summons (required on writ petitions) Jurisdiction over party; Service of summons, and general appearance; Continuance of jurisdiction over parties and subject matter (a) Except as otherwise provided by statute, the court in which an action is pending has jurisdiction over a party from the time summons is served on him as provided by Chapter 4 (commencing with Section 413.10). .. Shipley specially appears to quash service and moves to strike improper matter, asking the court to dismiss the petition for any of the fatal defects. If the court does not dismiss the petition a return is included to serve as her answer, denying all improperly verified allegations in the unmeritorious petition, with supporting Points & Authorities to affirm. Counsel was forced to spend her birthday (and first anniversary) driving from Highland to Williamsons Santa Ana office (a 3 hour return trip) to personally serve papers because he refused to accept service by fax or email. We did not agree to email service as asserted.

22

Pennoyer v. Neff, 95 U.S.714; Abelleira v. Dist. Ct of Appeal (1941) 17 C.2d 280, 288 16

III. Petitioner Has Seven other Plain, Speedy Remedies in the Ordinary Course of Law A writ will not be issued where petitioner has a plain, speedy, adequate remedy at law. The first question to be determined is whether petitioner had another adequate remedy. Section 1086 of the Code of Civil Procedure provides that the writ of mandate "must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law." Although the statute does not expressly forbid the issuance of the writ if another adequate remedy exists, it has long been established as a general rule that the writ will not be issued if another such remedy was available to petitioner.{cites} Phelan v Sup Ct 23 The burden, of course, is on the petitioner to show that he did not have such a remedy. Id Stubblefield did not need to evict Shipley who was sharing the home with the owner. Appellate Division recited Stubblefields plain, speedy remedy in its order. [RP Exh.7.63]:

RP Exh. 7.63 The court also noted that Stubblefield was not in privity of contract with Shipley.

23

Phelan v. Superior Court (1950) 35 Cal.2d 363 17

Accordingly, Stubblefield could not evict Shipley directly but was required to evict the owner for any purported violations of the unreasonable rules enforced by GOLIATH law firm with specific intent to drive owners out to filch the mobile homes for park rentals. In addition to the plain, speedy, adequate remedy expressed by the Appellate Division, Stubblefield has no less than seven other speedy and adequate remedies available to evict. The GOLIATH law firm, who has represented park owners for over 30 years throughout the Western United States are fully aware of a multitude of available eviction remedies: REMEDY 1: MRL Article 1 General Provisions [ Civil 798.11] recites the definition of resident.

Stubblefield could have filed a declaratory relief action to let a court decide if petitioner lawfully occupied the mobile home at space #333 as a resident. REMEDY 2: MRL Article 3 Rules and Regulations [Civil 798.23.5] recites sub-leasing rules.

Stubblefield could have filed a declaratory relief action to let a court decide whether or not the homeowners alleged subleasing to petitioner violated any park rule. REMEDY 3: MRL Article 3 Rules & Regulations [Civil 798.25.5] recites specific rule application

Real party could have filed declaratory relief to let a court decide if a rule is void or valid. 18

REMEDY 4: MRL Article 3.5 Fees and Charges [Civil 798.34] recites rules on guests

Real party could have filed declaratory relief to let a court decide if a rule were violated. REMEDY 5: MRL Article 3.5 Fees and Charges [Civil 798.34] recites rules on family members

Real party could have for declaratory relief to let a court decide if petitioner is family. REMEDY 6: MRL Article 6 Termination of Tenancy [Civil 798.55;798.56] recites authorized reasons for eviction including subsection (d) failure to comply with reasonable park rules

Real party could have tried to evict the homeowner for violation of a rule---not petitioner. 19

REMEDY 7: MRL Article 8 Actions, Proceedings & Penalties [Civil 798. 88] is injunctive relief:

Petitioner could have moved to enjoin a homeowner from violating a reasonable rule. Legislators expressed their stated goal to encourage injunction rather than eviction: (Legislative intent: This three-year sunset will arguably provide the Legislature with the opportunity to re-evaluate this bill to ensure that the stated goal of encouraging a park owner to pursue a lesser remedy against a resident of a mobilehome park instead of eviction is actually reached without negative unintended consequences.) Civil Code 798.88 Petitioners law firm has represented park owners for 30 years. They know all the MRL provisions and major holdings of California courts related to mobile home parks. Representing that petitioner had no other way to evict a so-called unlawful occupant was nothing less than fraud on this court. They are fully aware of the case entitled, Rancho Santa Paula Mobilehome Park, Ltd. v. Evans (1994) 26 CA.4th 1139, 1146, because petitioner has cited it in every brief for the past year. The law firm tried to distinguish this case in every pleading. It is the case which held that a park could not invoke a new rule precluding sub-leases against a long-term tenant whose lease did not include such prohibition. The court held a park could impose new rules on new tenants but could not impose new unreasonable rules on pre-existing tenants. Because Williamson argued against this case there can be no doubt he read the case. Interestingly this case expressly recites the plain, speedy, adequate remedies park owners can use to evict residents they believe are unlawful occupants: In short, while the MRL limits the eviction rights of mobilehome park owners, it expressly preserves the park owners' ability to secure the quiet enjoyment of mobilehome park tenants by authorizing park owners to pursue eviction or injunctive relief against offending tenants. Andrews v. Mobile Aire Estates (2005)125 Cal.App.4th 578, 592-593. 20

Included in the reasons for eviction is the violation of a "reasonable rule or regulation of the park which is part of the rental agreement or any amendment thereto." (Civ.Code,798.56,subd.(d). Park management can also enforce compliance with regulations by utilizing the lesser remedy of injunction pursuant to Civil Code section 798.88. That section does not state that the rule must have been part of the rental agreement, but does state that the rule must be reasonable. We note that one purpose of the MRL is to protect the homeowner from "actual or constructive eviction." (Civ. Code, 798.55.) Although the MRL permits management to amend park rules and regulations without the consent of the homeowners (Civ. Code, 798.25), such rules must be reasonable to be enforceable. Id Because Williamson has read the case, and argued against it at least 10 times, he surely is aware of the two plain, speedy, and adequate remedies to evict unlawful occupants. Petitioner has seven plain, speedy, adequate remedies to evict unlawful occupants. In addition to the seven statutory remedies recited above Stubblefield could evict under common law trespass or ejectment. Stubblefield can seek injunctions under CCP 798.88 and obtain a hearing in 15 days! If this is not a plain, speedy adequate remedy what is? Stubblefield can move for declaratory relief under any of the above-cited seven statutes or evict the homeowner for an alleged rule violation. Stubblefield has no legal standing to evict the roommate of one of his resident/tenants because Stubblefield is not in privity of contract with such roommate of a tenant who has a valid, existing lease with Stubblefield. To argue that petitioner needs 798.75[c] to evict was a complete fraud on this court.

IV. Petition Fails to Show it is Necessary to Protect a Substantial Right A. Balance of Harm Test Tips in Respondents Favor No Harm to Petitioner Stubblefield woefully fails on the required balance the hardship test. The harm to real party Shipley is that if the writ is granted she will be evicted and become homeless. What is the harm to Stubblefield? That he has to select amongst 7 other statutory remedies, At least two common law remedies, or have to wait 15 days for an injunction hearing? Or is his ticket to filch the other half of the park homes eliminated? Wheres the crying towel? 21

V.

Petition Fails to State Facts Sufficient to Constitute a Cause of Action Elements of a Writ of Review - Petitioner failed to meet the Omaha Factors

The leading case defining the factors for analysis of a petition for writ of review is Omaha 24 1) no adequate remedy 2) irreparable injury balanced against no injury to respondent 3) beneficial interest not signed by petitioner As explained in the three arguments directly above, Stubblefield failed the test on all three. Under Omaha Stubblefield must satisfy all three prongs of the test. If he failed one prong the court would have to deny writ relief under Omaha and its progeny. HE FAILED ALL THREE.

VI. Court Must Strike Irrelevant Matters Not Part of Writ Petition & OPINION below A. Petitioners unappealed MSJ, Lis Pendens & Injunction Docs not Part of Writ One of the most important procedural issues this court must understand is that although Stubblefields MSJ was heard the same day as Shipleys MSJ they were not cross-motions. The court denied both motions on 2/14/2013. [3PE, Exh.11, PE572]. Shipley appealed the denial within 20 days per code. CCP 437c(m)(1) Stubblefield failed to timely appeal. Shipley filed a 300 page appendix including all relevant documents filed by both sides. When the Appellate Division issued a Palma order [RP Exh. 6.50] Williamson tried to transmute Shipleys writ petition into a cross-writ petition for the court to hear both. Williamson tried to nestle his own writ petition within his opposition. [2PE 523-PE 551] Williamson believed he could cures his failure to timely appeal by illegal bootstrapping. This was the 3rd time he tried to nestle motion relief within opposition to Shipleys motion, even after the court had admonished such tactic as show below. Williamson now has the audacity to employ this same improper tactic for the fourth time in this court. THERE IS NO CODE OR REPORTED CASE AUTHORIZING ANY COURT TO TRANSMUTE ONE WRIT PROCEEDING INTO A CROSS-WRIT PROCEEDING.
24

Omaha Indemnity v. Superior Court (Greinke) (1989) 209 CA 3d. 1266, 1269 22

Shipley objected to a third attempt at the improper tactic [4 PE 905-PE 925] shown below:
In an order entered March 26, 2013 this court issued a Palma notice to respondent and real party inviting opposition to the writ. The court did not authorize real party to nestle its de facto writ petition inside opposition to petitioners unilateral writ petition. In a footnote on page 2 real party argued that because the court below considered plaintiff & defendants summary judgment motions as cross motions heard on the same day, this court should transmute this unilateral proceeding into a joint cross-writ proceeding, without citing any authority for such an anomaly. Two counter summary judgment motions were filed separately in the court below and were heard on the same court day. Each party filed a statement of undisputed facts and proffered its own arguments as to why the court should grant summary judgment. The court denied both motions and entered two separate minute orders denying plaintiffs motion and defendants motion. Real party elected not to appeal its denial within 20 days by writ. CCP 437c(M)(1) Petitioner filed a timely writ. Real party waived its right to appeal by not timely filing. There is no court rule, statute, or reported case authorizing an appellate court to transmute a unilateral writ proceeding into a cross-writ proceeding simply because real party nestles a counter writ petition inside its opposition in petitioners unilateral writ proceeding. This is the third time real party tried through an anomaly to tweak court rules. Real party nestled its first summary judgment motion in an opposition to plaintiffs Motion for Judgment on Pleadings. After plaintiff objected to the anomoly the court below rejected the novel trick, holding real party must file its own motion and pay the fees. As shown in an excerpt from a 1/10/13 transcript the court admonished such conduct.

Trans.1/10/13 13:1

23

Real party used the nestling technique again in trying to lift a stay imposed by this court on March 26, 2013-by labeling what should have called a motion-as an application. Instead of filing preliminary opposition to unilateral writ petition real party applied to the court to lift the stay. The court denied real partys second attempt to nestle a request for relief without complying with mandatory motion procedures. CRC 8.809; CCP 1109 For the third time real party nestled relief requests within its opposition to this writ. Petitioner asks the court to strike real partys improper request to consider irrelevant exhibits related to denial of real partys summary judgment--which is not part of this writ. Petitioner filed all papers related to denial of her motion for summary judgment and writ. Petitioner was not required to file papers related to real partys motion it did not appeal. Real party tries to cure its failure to appeal by asking the court to transmute this unilateral writ petition into a cross-writ petition praying for relief as if it had filed a writ.

Cross-writ petitions are not authorized by any court rule, statute, or reported state case. Real party cavalierly prays for relief [leave to file a first amended complaint, order lifting the stay, and an order to set a trial date below]. A writ petition is required to seek relief

This court is without jurisdiction to transmute this writ petition for review of an Appellate Division order into a bootstrapped cross-writ petition. There is no such anomaly under the law and there is no jurisdiction to create such anomaly. Williamson dumped over 1000 sheets of paper at the Appellate Court intake window, just like he dumped 1000 sheets at this courts intake window, all designed to confuse, obfuscate and divert the courts attention from the SOLE ISSUE ON THE WRIT! The other 1000 sheets of paper dumped at the Appellate Division all related to non-issues. Shipley objected to Williamsons improper tactic below [2 PE PE 502-PE 511] RECORDED LIS PENDENS Real party whines about a lis pendens petitioner recorded on January 28, 2013. THAT WAS SIX WEEKS AGO! Real partys law firm received a copy of lis pendens by certified mail, return receipt requested on January 29, 2013. [McCarron Affidavit, 6]. The firm had six weeks to move to expunge. Instead the firm sat on it for six weeks.

24

The firm now expects overworked appellate staff to push aside all the cases it is currently reviewing to focus all of its energy on real partys newly invented emergency. This court should not jump through hoops to reward counsel for his own lack of due diligence. Secondly, the lis pendens was never part of the court file below. Counsel only had a copy because the mailman delivered it January 29, 2013 after his secretary signed for it. A party cannot just attach documents to counsels declaration for submission to the court. Judicial Notice of a document not contained in the court file below must be submitted in a Separate Motion asking the Court to take Judicial Notice. Rule 8.809. The request to take Judicial Notice must be submitted together with a proposed order. Under 8.809(a)(2) the motion must state why it is relevant to the appeal, whether it was presented to the trial court below, whether the court below took notice, and whether the matter to be noticed relates to proceedings occurring after the order or judgment that is the subject of the appeal. Obviously, the answer to all of these questions is NO, which is exactly why counsel cleverly failed to comply with the rule, electing to try to slide it through under the guise of an attachment to his declaration. The court should not fall for this clever disguise. The court should ignore the lis pendens as not part of the record and because it has absolutely nothing to do with the pending writ petition. Finally, the court should see through counsels failure to brief the lis pendens issue, or failure to explain what irreparable harm it will be suffer if it is not expunged forthwith. Real party did not, and cannot plead, any exigent circumstances warranting expunging it. Quite the contrary. Real party [plaintiff] was required to record a lis pendens because it prayed for possession of premises in a complaint putting title at issue. CCP 761.010(b) Petitioner [defendant] filed the lis pendens to prevent Stubblefield from selling, renting, hypothecating or transferring the subject premises to any innocent party. Recording a lis pendens precludes a transferee from obtaining BFP status or from innocently acquiring title to a property embroiled in a vitriolic litigation. Real party must live with the fact that it put title & possession of real property at issue invoking lis pendens. CCP 405.4

25

An appellate court may not consider a post-judgment matter. Sadler REAL PARTYs FRIVOLOUS INJUNCTION REQUEST

25

Real party whines about its purported emergency for an injunction hearing below. There is no emergency. This involves a one-sentence email sent to Mr. Freeman a few months ago which he forwarded to attorney Williamson. Petitioners opposition to the motion outlines the various procedural and substantive deficiencies. The motion lacked merit which is why the court below denied real partys ex parte motion. At some point courts must stop catering to each whimsical demand real party presents as an emergency. This matter is moot because the employee involved no longer works for Stubblefield. Even if it were not moot there are no grounds under Alpha Beta v. Superior Court: 26 When an employee has been a witness to matters which require communication to the corporate employer's attorney, and the employee has no connection with those matters other than as a witness, he is an independent witness; and the fact that the employer requires him to make a statement for transmittal to the latter's attorney does not alter his status or make his statement subject to the attorney-client privilege; ..." The one-sentence email from Timothy McCarron to Marvin Freeman, sent 4 months ago in February, with no response, is shown at [RP Exh.5.46]. Attorney Williamson trumped up completely bogus charges against real partys counsel to obfuscate and confuse the court with various side-issues to divert attention from the real issue. Real partys counsel objects to Williamsons continued ad hominem attacks against the character of real partys counsel for some perceived advantage he hopes to gain. Counsel has an impeccable reputation, with 30 years experience as a broker, 20 years as an attorney, 7 years as an arbitrator for Better Business Bureau, 7 years as a Notary Public, and 7 years service as a pro tem judge.
25

Peoples Home S&L v. Sadler (1905) 1 CA 189, 193. Marriage of Fonstein (1976) 17 C3d 800, 813 26 Chadbourne, Inc. v. Superior Court, supra,60 Cal.2d 723, 736-737. Jefferson, 2 Cal. Evidence Benchbook (2d ed.1982) 40.2.; Alpha Beta v. Supr Ct., 157 CA.3d 818, 825 26

Counsel was recognized by the Presiding Judge of the Riverside Superior Court for her service as a Pro Tem Judge. [R.P. Exh. 9.72-9.73 ] Counsel asks this court

to disregard the ad hominem attacks, and all the superfluous documents related to the unmeritorious request for an injunction. DOCUMENTS NOT BEFORE A COURT CANNOT BE USED ON APPEAL Documents not properly before the court below cannot be included as a part of the record on appeal. [6 Witkin, Cal. Proc. (2d ed.1971) Appeal, 218, pp. 4208-4209.) A summary of pertinent facts is limited to only matters properly before the lower court. Provide a summary of the significant facts limited to matters in the record. (Subd (a) amended effective January 1, 2006.) Doers 27 See also CRC 8.204(a)(2)(C) The only exception to the rule is that documents submitted which were not properly before the court can be used as admissions against the party who improperly filed it. ONLY RECORDS BELOW WHEN THE WRIT WAS FILED MAY BE USED As a reviewing court, we usually consider only matters that were part of the record when the judgment was entered. (Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 444, fn. 3.) We have denied Ragland's request for judicial notice; we therefore decline to consider those passages of the appellant's opening brief, noted in the margin, which are supported solely by citations to exhibits attached to that request or to Web sites outside the appellate record. 28 Here, Williamson dumped 1000 sheets of paper at the intake window of this court. At least 75% of them are irrelevant to this writ review of one Appellate Division order. The issue of Lis Pendens was never before the trial court or the Appellate Division. The issue of the unmeritorious injunction for a lip lock was never before the court below.

27 28

Doers v. Golden Gate Dist (1979) 23 C.3d 180,184, fn1 Ragland v. U.S. Bank National Assn. (2012)209 Cal.App.4th 182 ,195 27

NEITHER OF THESE ISSUES ARE RELEVANT TO WHETHER THIS COURT SHOULD AFFIRM OR REVERSE ONE ORDER FROM THE COURT BELOW. This court is not the forum to rule on a potpourri of irrelevant, invented gripes. The rules on what an appendix must not include are clear: An appendix must not: Contain documents or portions of documents filed in superior court that are unnecessary for proper consideration of the issues. CRC 8.124(b) (3) (A) CRC 8.124 (g) Inaccurate or noncomplying appendix Filing an appendix constitutes a representation that the appendix consists of accurate copies of documents in the superior court file. The reviewing court may impose monetary or other sanctions for filing an appendix that contains inaccurate copies or otherwise violates this rule. Rule 8.18. Documents violating rules not to be filed Except as these rules provide otherwise, the reviewing court clerk must not file any record or other document that does not conform to these rules. Rule 8.18 amended and renumbered effective January 1, 2007; repealed and adopted as rule 46 effective January 1, 2005. This court should not cowtow to a runaway counsel just because his client is a billionaire. SANCTIONS ARE WARRANTED ON SERIOUS RULE VIOLATIONS "Where the appeal is frivolous or taken solely for the purpose of delay or where any party ... has been guilty of any other unreasonable infraction of the rules governing appeals, the reviewing court may impose upon offending attorneys or parties such penalties ... as the circumstances of the case and the discouragement of like conduct in the future may require." (Rule 26(a), Cal. Rules of Court.) Gilbert v. Municipal Court 29 This court should consider sanctions for the frivolous filing of over 100 sheets of paper. The only proper pleadings petitioner filed which are documents in Volume 1, which is the APPENDIX Shipley filed with her writ petition (summary judgment papers including all pleadings filed by both sides, and all transcripts of three related hearings hearings), and Stubblefields Opposition to Writ, without all the superfluous attached documents.
29

Gilbert v. Municipal Court (4th. Dist. Div. 2-1977) 73 CA.3d, 723, 734-735 28

Shipleys Appendix, with transcripts and the appealed order, are the only documents this court should review. The tsunami of papers following the writ, and the tsunami of papers filed in this court, are irrelevant to the one and only issue this court must resolve: DID THE APPELLATE COURT EXCEED ITS JURISDICTION? THE REAL CHRONOLOGY OF PERTINENT EVENTS (RETURN) This court should grant real partys request to dismiss the writ petition for any of the various reasons included in the preceding demurrer, motion to quash improper service, and motion to strike irrelevant documents submitted to this court which have absolutely nothing to do with whether the Appellate Division exceeded its jurisdiction ----the ONLY ISSUE THIS COURT HAS JURISDICTION TO REIEW. If the court does not dismiss the petition and issues an order for cause then the following serves as Shipleys return on such cause.

RETURN TO THE CAUSE (IF ONE IS ISSUED BY THE COURT) Shipley objects to allegations made by Attorney Williamson because not only is it improper for an attorney to verify the petition instead of the party, but also because he has absolutely ZERO personal knowledge of the facts in this cause constituting the evidence. As to the allegations Shipley responds as follows, using the number recited in the petition: 1. DENY that all exhibits accompanying the petition are true copies of original documents

[2PE - PE548] This verification on information and belief signed by Thomas Parrish is false. Willliamson fabricated and back-dated this document, and filed it with this court as genuine. [see arguments above on page 8 of this opposition and Real Partys Exh. 4, page 4.4-4.45] Counsel inserted a fabricated duplicate page 3 in the trial court [Real.Party Exh. 5.546-5.49] Because we have caught Williamson several times altering documents we must DENY. 2. ADMIT Stubblefield Properties is the Plaintiff in the trial court below. 3. ADMIT Shipley is named as the real party in interest. DENY she is an unlawful occupant under Civil 798.75(c). It does not apply as she is not a purchaser or transferee, as expressly found in the order. DENY Shipley is in violation of any park rule. Shipley is a lawful coresident on a shared occupancy lease pursuant to the owners contractual and statutory right. 29

Clause 10 of the owners lease with Stubblefield and her statutory right to a co-resident under Civil Code 798.34(b). DENY Shipley needed the parks approval because it was not required under clause 10 of the lease and/or under the owners statutory rights under Civil 798.34. 4. 5. ADMIT Shipley filed a writ petition in the Appellate Division after denial of her MSJ. ADMIT petitioner commenced a forcible detainer action against Shipley on 8/27/2012.

ADMIT petitioner contends Shipley is an unlawful occupant but DENY it is unlawful. DENY that it is undisputed that Shipley occupies the mobilehome on an unauthorized lese/sublease. Shipley resides in the home under a shared occupancy agreement. DENY that the purported guidelines apply because they are not the guidelines the owner agreed to when she signed a lease in 2005. DENY that McCarron does not regularly occupy the mobilehome. This evidentiary issue was found in real partys favor. [RP Exh. 7.57-7.58] There were no counter affidavits filed by Stubblefield to create a triable issue on this fact. 6. 7. 8. ADMIT that Shipley filed a Motion for Summary Judgment in the trial court. ADMIT petitioner filed its Motion for Summary Judgment to be heard the same day. DENY that petitioner and Shipley filed objections, opposition and reply papers in connection with the two MSJ. Each party filed papers separately against the other party directed to the opposing partys filed papers. This was not a cross-motion for SJ. Each motion was separately filed, separately opposed, and entered on two minute orders. 9. DENY that Shipleys MSJ was heard only on February 14, 2013. There were 3 separate hearings on the pending motions. One was the MSJ OSC set by the court for 1/22/13. [RP Exh. 2 see transcript]. A second hearing was held 1/31/13 [RP Exh. 3 see transcript] A third and final hearing was conducted on 2/14/13. [3PE, Exh. 11, pp.560-583]. 10. DENY the trial court found triable issues. The court invented one triable issue that was not a triable issue because there was no evidence countering the affidavits submitted by Shipley on this evidentiary issue; i.e. Shipley & McCarron affidavits. 11. ADMIT that the trial court found Civil 798.75[c] is not limited to purchasers and

transferees, although this finding was clearly erroneous, which is why it was reversed. ADMIT the court denied the motions because it found there was a triable issue as to whether McCarron regularly occupied the mobilehome. 30

12. 13.

This was error as there was no triable issues where no counter affidavits were filed. ADMIT Shipley filed a writ petition in the Appellate Division contending denial of

MSJ was improper because Civil 798.75[c] only applies to purchasers and transferees.. DENY that Shipley contended this was only a matter of law. Shipley contended it was error also she submitted the Declaration of Maury Priest with the MSJ and he testified that legislators intended subsection [c] to apply only to purchasers and transferees, and that they NEVER intended it to be used universally against any resident, and also testified that the forcible detainer remedy propounded in the initial proposal had to be deleted from the final version because legislators would not sign it unless it was deleted. The current version contains no forecible detainer language. This proves the action filed was a complete SHAM because it was not authorized under Civil 798.75 even if Shipley were a purchaser or transferee. 14. 15. ADMIT on March 5, 2013 the Appellate Division issued a stay in the Action. ADMIT that on March 12, 2013 petitioner filed an Application for Clarification of and Relief from stay DENY remainder of paragraph as misrepresentations of facts. 16. 17. ADMIT Shipley opposed the March 12, 2013 application. ADMIT on March 26, 2013 the Appellate Division issued its PALMA ORDER inviting the Trial Court to vacate its order denying summary judgment and enter a new order granting summary judgment, and dismissing the action against Shipley. [the SHAM] DENY petitioners interpretation about the import of the courts order. ADMIT the court invited additional briefing by April 9, 2013. 18. 19. ADMIT the Appellate Division denied petitioners application for stay relief 3/27/13. ADMIT petitioner filed notice of Intent to File Opposition on 3/28/13. ADMIT that petitioner filed what was labeled as pertinent exhibits but DENY pertinence. THESE DOCUMENTS HAD ABSOLUTELY ZERO RELEVANCE TO SHIPLEYs MOTION FOR SUMMARY JUDGMENT. They related to Stubblefields MSJ which was not the subject of the writ petition, matters regarding Lis Pendens, which was not the subject of the writ petition, and matters regarding a motion for injunction, which was not the subject of the writ petition. These documents were irrelevant to the writ petition.

31

20.

ADMIT the stated papers were filed by the parties but DENY the import attributed to them and counsels arguments which are clearly erroneous. DENY the arguments.

21.

ADMIT on May 6, 2013 the Appellate Division issued its OPINION, and that the court granted the relief Shipley requested in the writ petition. DENY counsels arguments. ADMIT the filing of papers, but DENY counsels arguments as to its import. DENY that the issue presented in this writ petition is whether Respondent Appellate Division erred in its order. MISREPRESENTS THE STANDARD OF REVIEW. [see Points & Authorities in the next section following this return, for arguments showing the only authorized STANDARD OF REVIEW [Did the court exceed its jurisdiction?] The arguments in P& A below are incorporated herein by reference. DENY arguments counsel made, not only because they are wrong, but because they are not facts.

22. 23.

24. 25.

ADMIT that no appeal may be taken from a judgment. DENY arguments of its import. DENY that because of the Appellate Courts order that park owners will be unable to summarily remove persons who are unlawfully occupying the spaces in their mobilehome parks. THIS IS PATENTLY FALSE. As shown above park owners have seven alternative statutory remedies, two common law remedies, injunctive remedies under Civil 798.88 (in which a hearing is set 15 days after the petition is filed) and declaratory relief remedies.

PETITIONERs PRAYER: DENY petitioner is entitled to any of the relief requested in 1, 2, 3, 4, 5, 6. REAL PARTYS PRAYER: That the petition be DENIED in its entirety for any or all of the above stated procedural deficiencies/improprieties included in the above DEMURRER, MOTION TO QAUSH SERVICE, MOTION TO STRIKE IRRELEVANT MATTER; and/or that the petition be DENIED because: the court below did not exceed its jurisdiction; the OPINION was correct; there was no abuse of discretion; there was no legal error; Shipley was entitled to summary judgment for, among other reasons, MAURY PRIEST, who is the only person who had personal knowledge of what legislators intended in 1987 when they amended Civil 798.75 to add subsection [c] and [d], testified that legislators intended subsection [c] to apply only to purchasers and transferees and not to guests of residents. 32

AFFIRMATIVE DEFENSES: (supported in more detail by arguments above and below) 1. Petitioner failed to state facts upon which relief can be granted. (see demurrer above) 2. Petitioner failed to satisfy the 3 OMAHA prongs [Elements for a Writ of Review] 3. Petitioner has no less than 9 plain, speedy, adequate remedies to evict a resident. 4. This court cannot issue advisory opinions and is not guardian over potential misdeeds. 5. There is but one Standard of review [Did the court exceed its jurisdiction?] 6. Petitioners unclean hands, fraud on the court, perjury, and other misdeeds. 7. Waiver of right to relief by failure to verify petition in this court and the court below. 8. Waiver of right to relief by failure to properly serve the petition pursuant to code 9. Equitable estoppels, retaliatory eviction and discrimination, reservation of other defenses. 10. Failure to state facts sufficient to be entitled to attorney fees or costs

POINTS & AUTHORITIES


I. THE REAL STANDARD OF REVIEW [Did the court exceed its jurisdiction?] A. Right to Appeal is Statutory and Limited to Expressed Legislative Mandates There is no constitutional right to appeal a writ petition granted by the Appellate Division of a Superior Court after a ruling in a limited jurisdiction court, which is an inferior tribunal. The right to appeal is statutorily granted and expressly limited as set forth in CCP 904.3: An appeal shall not be taken from a judgment of the appellate division of a superior court granting or denying a petition for issuance of a writ of mandamus or prohibition directed to the superior court, or a judge thereof, in a limited civil case or a misdemeanor or infraction case. An appellate court may, in its discretion, upon petition for extraordinary writ, review the judgment. The governing statutes for writ review are CCP 1067-1077 as explained in Redlands 30

30

Redlands School District v. S. Ct (1942) 20 Cal.2d. 348, 350-351 33

After an appeal to the superior court from a judgment in a justice's court as provided in Code of Civil Procedure, sections 973-982, no further appeal to the higher courts of the state exists in cases such as the present one under our constitutional and statutory provisions. (Const. art. VI, 4, 4b, 5; Code Civ. Proc., 973-982; 6 Cal.Jur. 10 Yr. Supp. 699-701.) If, therefore, the superior court has exceeded its jurisdiction in this case, the absence of a speedy and adequate remedy by appeal or otherwise entitles petitioners to a writ of review Redlands @ 350-35

B. Writ of Review is Limited to only if Appellate Division exceeded its jurisdiction CCP 1074. The review under the writ, extent of The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer. It is a completed judicial act. See also Melancon v. Superior Court (1954) 42 Cal.2d 698, 704 CCP 1068. Courts that may grant writ (a) A writ of review may be granted by any court when an inferior tribunal, board, or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy.

Statutes mandate a writ of review lies only if a lower court exceeded its jurisdiction. The appellate court is not at liberty to alter a decision from the Appellate Division based on a belief that it could render a better decision. It may only reverse or alter the ruling if the ruling exceeds the bounds of all reason. Denham v. Supr Ct.31 Petitioner has the burden to prove the ruling exceeds all reason and is a manifest injustice. Blank v Kirwan 32

31 32

Denham v Superior Court (1970) 2 Cal.3d 557, 566 Blank v Kirwan (1985) 39 Cal.3d 311, 331; Tidewater Assn Oil v. Supr. Ct (1955) 43 C2d 815, 820; Keating v. Supr. Ct (1955) 45 C2d 440, 443 34

THE DIFFERENCE BETWEEN EXCEEDING JURISDICTION AND ERROR Petitioner did not do this court a favor by misrepresenting the standard of review with a self-serving proclamation that the standard is de novo for error of law. This is not true The Abelleira 33 court pronounced the standard of review is excess of jurisdiction: In our own recent decision, Rodman v. Superior Court, 13 Cal.2d 262, we said: "... some confusion exists with reference to what constitutes an excess, and what constitutes an error, in the exercise of jurisdiction. However, it seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction, and certiorari will lie to correct such excess."... The writ lies to prevent the exercise of any unauthorized power in a case or proceeding of which the subordinate tribunal has jurisdiction, no less than when the entire cause is without its jurisdiction.") Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari. Abelleira @ 290-291 Errors of law within jurisdiction may not be reviewed by certiorari. Hayward 34 The Shuey court held a petitioner must show an Appellate Division made a manifest misapplication of existing principles resulting in substantial injustice before an appellate court is free to disregard the legal determination made in a prior appellate proceeding. No such showing can be made here. People v. Shuey 35 Petitioner argues a manifest injustice has occurred and this court should reverse it. What manifest injustice? That it is more convenient to evict residents on 5-days notice--rather than on 60-days notice and only for 7 authorized reasons enumerated in 798.55-57? Or that billionaire Stubblefield will not be able to filch mobile homes on 5 days notice?
33 34

Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280 Hayward v. Sup. Ct (1933) 130 CA 607, 608; Phelps v. Sr. Ct (1934) 138 CA 570, 572; Parker v. Supr Ct (1936) 16 CA 2d 580, 583; Texas Co.v. Sr Ct (1938 27 CA2d 651, 655; Friedland v Superior Court (1945) 67 CA2d 619, 623 35 People v. Shuey (1975) 13 Cal.3d 835 846 35

On Shipley side a manifest injustice will occur if this court reverses the Opinion below because it will abrogate all statutory protections mobile home owners have had since 1978. Millions of residents will be at risk of losing homes on 5-days notice without just cause. C. Writ of Review Does Not Review Matters Within Appellate Courts Discretion As in every appellate matter, the threshold issue here is the proper standard of review. The hierarchical process and respective roles of the trial and appellate courts involve more than ceremony. GTE36 However convoluted the facts, or complex the issues the standard of review is the compass that guides the appellate court to its decision. It defines and limits the course the court follows in arriving at its destination. Deviations from the path, whether it be one most or least traveled, leave writer and reader lost in the wildernessIf the standard of review is abuse of discretion, the appellate court examines the ruling of the trial court and asks whether it exceeds the bounds of reason or is arbitrary, whimsical or capricious. {..cites} Jackson 37 . this case is easily resolved. The trial court gave detailed and reasoned rulings disclosing its rationale and its concerns balancing the competing interests When the issue is substantial evidence, the reviewing court asks whether the evidence supports the court's findings. Such evidence must be reasonable in nature, credible, and of solid value. People v. Jackson @ 1018

The Appellate Division gave a detailed Opinion and rationale. [RP Exh.7.55-7.65] The court balanced concerns and competing interests, suggesting the plain, speedy, adequate remedy available to Stubblefield; i.e. to take action under the MRL against the owner for alleged rule violations, and in doing so the co-resident would have to move out with her. The Appellate Division found the owner regularly lived in the mobilehome, so there was no triable issue. Although the ruling did not mention the testimony of Maury Priest this court must consider it because it is evidence . Maury Priests testimony was uncontroverted.

36 37

Clothesrigger v. GTE (1987) 191 CA3d. 605, 611 People v. Jackson (2005) 128 CA4th. 1009 1018 36

On certiorari we do not review matters within the discretion of the lower court It is not the function of an appellate court to weigh the evidence or to pass upon the reasonableness of conflicting inferences which may be drawn from the evidence even if that evidence is undisputed Kay 38... all conflicts must be resolved in favor of respondent, and all legitimate and reasonable inferences indulged.Kay @ 227 D. Writ of Prohibition Never Issues To Restrain Lower Court from Error A Writ of Review never issues to restrain a lower tribunal from error in deciding a question properly before it. If the lower court has the power to make a correct ruling it has the power to make an incorrect ruling. Redlands, supra @ 360. It is clear, therefore, that the determination whether there was sufficient evidence upon which to base the order lies within the discretion of the lower court. It is not reviewable on certiorari. Kay @ 218 Findings of the court founded on substantial evidence are conclusive on appeal. Tupman 39 The judgment must be affirmed or modified so the litigation can be terminated. Id The appellate court must conclusively presume that the evidence is sufficient to support the findings, since no record of the oral proceedings is before this court. Kompf 40 II. Courts Cannot Issue Advisory Opinions Or Guard over Potential Misdeeds Courts may not render advisory opinions. Bishop 41 It is, of course, the corresponding duty of the appellate courts to refuse to decide issues not properly before them. Id. At petition, page 3 Williamson whines about needing a speedy way to evict occupants listing a potpourri of purported mischief makers; i.e. gang members playing loud music parents of adult children who purchase and let the adult children occupy without a lease caregivers who stay on the resident dies. Shipley is not any of the characters listed!

38

Estate of Kay (1947) 30 Cal.2d. 215, 225-226; Treadwell v. Nickel, 194 Cal. 243; Bancroft-Whitney v. McHugh, 166 C.140;Crawford v. So Pac(1935) 3 Cal.2d 427, 429 39 Tupman v. Haberkern (1929) 208 Cal.256, 270 40 Kompf v. Morrison, 73 Cal.App.2d 284, 286
41

Bishop v. Merging Capital (1996) 49 Cal.4th1803, 1809 37

The notion that this court should reverse the ruling to provide a remedy for a potpourri of hypothetical scenarios is absurd. Moreover, as shown above Stubblefield has seven

other statutory remedies, two common law remedies, and injunctive relief for such hypos. This court is not at liberty to grant relief based on some hypothetical situation. This court has a duty to deny the petition because it cannot issue an advisory opinion. Courts are not charged with guardianship against all hypothetical misdeeds by miscreants. Abelleira,306

III. Appellate Courts Have a Duty to Uphold Legislative Intent Appellate courts review is limited by doctrines governing its role as intermediate appellate court. We may not sit as a superlegislature. Rotolo 42 The duty to uphold legislative power is as much the duty of appellate courts as it is of trial courts, and under the doctrine of separation of powers neither the trial nor appellate courts are authorized to 'review' legislative determinations. The only function of courts is to determine whether the exercise of legislative power has exceeded constitutional limitations." Eye Dog 43 It is the prerogative of the Legislature, not the courts, to correct any flaws in a statutory scheme. Citibank 44

Shipley submitted the declaration of Maury Priest with her MSJ, in which he testified that legislators never intended Civil 798.75 [c] to apply universally to all residents and intended it only to apply to purchasers and transferees. RP Exh. 1.1-1.11] Given that legislators enacted Civil 798.55 57 to protect mobilehome owners from arbitrary eviction in 1978, and reaffirmed their abhorrence to arbitrary evictions in 2012 by revising 798.88 (to provide speedy injunctive relief to park owners; i.e. a hearing in 15 days) it is inconceivable that they would revise a statute to provide for the very evictions they abhor and provided protection against; i.e. summary evictions without due process.

42 43

Christine Rotolo v. San Jose Sports And Entertainment, LLC,151 CA.4th 307, 316 Eye Dog Found. v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536 545 44 Citibank v. Tabalon (2012) 209 CA 4th. Supp.16, 21 38

IV. Appellate Division Did Not Exceed its Jurisdiction - Opinion is Correct A. Opinion is Presumed Correct Appellate Court Cannot Reweigh Evidence The action taken by the court below is presumed to be correct and this presumption obtains even though the reasons given may be bad. Power 45 The rule applies whether findings are express or implied. Burlington
46

The rule is well established that a

reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue. Unless this is done, the error assigned is deemed to be waived. It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings. Fink 47 Petitioner never mentioned any evidence. A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient{cites} Where a party presents only facts and inferences favorable to his or her position, "the contention that the findings are not supported by substantial evidence may be deemed waived." Schmidlin
48

Petitioner failed to point to any Appellate Division finding (express or implied) which failed to support its ruling. Instead petitioner regurgitated the same lame arguments below; that the court should do an in depth analysis of legislative intent and adopt petitioners speculation and conjecture about what legislators intended when they revised 798.75.
45

Power v. Fairbanks, supra, 146 Cal. 611, 615; Davey v. So Pac Co., 116 Cal. 325, 330, Yarrow v.California (1960) 53 C.2d 427, 438; County of Santa Clara v. Superior Court (1971) 4 Cal.3d 545,553
46

Burlington v. Sante Fe Ry Co (2004) 121 CA4th. 452, 462; Marriage of Ditto (1988) 206 CA3d 643, 647 47 In re Marriage of Fink (1979) 25 Cal.3d 877, 887 48 Schmidlin v. City of Palo Alto (2007)157 Cal.App.4th 728 39

Testimony based on speculation and conjecture must be disregarded. Lesley v Perry 49 A court will not indulge inferences based on pure speculation, conjecture, especially where rebuttal is by clear, positive, and uncontroverted evidence. Kuhn 50 This court may not disregard Maury Priests testimony and adopt petitioners wild speculation and conjecture. Petitioner never mentioned Maury Priests testimony or that he was a witness at every legislative session so he had personal knowledge of what legislators discussed in 1987. When the sole issue raised by a writ is whether the trial courts ruling on an issue of law was erroneous, the appellate court need not address whether any triable issues of material fact exist. Henricksen 51 Maury Priests testimony was impliedly found true by the court. If the issue involves facts and law deference to lower court must be applied. Ghirardo 52 On a substantial evidence or abuse of discretion rule a lower court is presumed correct. Ambiguities must be resolved in favor of affirmance. Denham 53

When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court." Juanita Scott 54 If there is sufficient evidence. An appellate court must ``view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . .'' Jessup 55 Needless to say, a party ``raising a claim of insufficiency of the evidence assumes a 'daunting burden' one that simply has not been met in this case. Wilson v. City of Orange 56 So long as there is some showing in support of the lower court's action, the quantum of proof cannot be considered or weighed on certiorari. Howard 57
49

Leslie G v. Perry & As. (1996) 43 CA 4th 472, 487; Roddenberry v. Roddenberry (1996) 44 CA 4th. 634, 651 50 Kuhn v. Dept. Gen. Svs. (1994) 22 CA4th. 1627, 1632 51 Henriksen v. City of Rialto (1993) 20 CA. 4th 1612, 1617 n 2. [4th. Dist. Div 2] 52 Ghirardo v. Antonioli (1994) 8 Cal.4th.791, 800-801 53 Denham ve. Supr. Ct. (1970) 2 C3d. 557, 564 54 Green Trees Entr. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal. 2d 782, 784-785; Juanita Scott v. City of San Bernardino (1996) 44 CA 4th. 684, 689 [citing Green Tree] 55 Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660 56 Wilson v County of Orange (2009) 169 CA 4th 1185, 1188 40

Appellate courts do not reweigh evidence or reassess the credibility of witnesses..{cites}... Put another way`[t]he Court of Appeal is not a second trier of factFLIR Systems v. Parrish We have no power on appeal to weigh the evidence, consider credibility of witnesses, or resolve conflicts in evidence or reasonable inferences that may be drawn from evidence. 59 B. Court May Not Assess Credibility of a Witness The appellate court has cannot substitute its deductions for those of the lower court. Ana 60 One witness is considered substantial evidence Mix61 An appellate court may not reevaluate testimony. Evje 62 This is true even if it is inherently improbable. there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination dependsin some 40 civil cases collected in 2 McKinney's Digest, Appeal and Error, section 1267. only in one of these cases did the appellate court actually reject as unbelievable testimony The testimony be "wholly unacceptable to reasonable minds" "unbelievable per se" an appellate court will not substitute its evaluation of the evidence or its opinion as to the credibility of the witnesses[Evje]. Troche v Daly 63 "Where a motion for summary judgment has been granted and there is a sufficient ground to support the judgment entered thereon, it will be upheld regardless of the grounds .. Troche, 407 A judicial admission is not merely evidence of a fact; it is a conclusive concession of the truth of a matter which has the effect of removing it from the issues. ...'"Troche@409 Counsel admitted facts were undisputed. .[RP Exh.2.14-ln5]
58

57 58

Howard v. Superior Court (1944) 25 Cal.2d 784, 789 Marriage of Balcof (2006) 141 CA 4th.1509, 1531; FLIR Systems v. Parrish (2009) 174 CA 4th. 1270, 1276 [citing Marriage of Balcof] 59 Navarro v. Perron (2004) 122 CA4th 797, 803 pet. for review to S. C. denied 1/12/05 60 In re Ana C (2012) 204 CA 4th. 1317, 1329 61 Marriage of Mix (1975) 14 C3d 604, 614 62 Evje v. City Title Co. (1953) 120 CA 2d. 488, 492-494 63 Troche v Daly (1990) 217 CA3d 403, 407 41

Failure to File Statement of Disputed Facts or Contra Affidavits is Fatal Stubblefields failure to file a statement of disputed facts or counter declarations to Shipleys statement of undisputed facts and declaration of Maury Priest (on 798.75) and Shipley & McCarron declarations testifying that McCarron regularly occupies the home and they lived under a sharing agreement, was fatal to his defense on the motion. Stubblefield must accept the consequences of the poor judgment of his attorney. V. CONCLUSION The court should sustain demurrer for petitioners failure to verify; it fails to state a cause of action because petitioner has at least nine plain, speedy, adequate remedies, failed to show irreparable harm to itself and no harm to real party; failed to show the Appellate Division exceeded its jurisdiction in reversing an erroneous ruling. The court should dismiss the petition because attorney Williamson altered documents, filed a knowingly false statement of facts (of which he had no personal knowledge), had his staff file a perjured proof of service, and intentionally omitted the crucial, material fact that Maury Priest testified that legislators never intended 798.75[c] to apply universally. This evidence was enough to grant summary judgment, so it was concealed in the petition. The court should grant the motion to quash for failure to serve as required by code. The court should strike or refuse to consider and documents past Volume 1 of petitioners exhibits because they are irrelevant and were filed for malicious reasons to paint counsel in a bad light. The court should refuse to transmute this writ petition into a cross-writ petition wherein this court considers any of petitioners documents related to the denial of his MSJ which he failed to timely appeal by writ petition. If the court does not dismiss the petition for any of the multitude of procedural deficiencies, then the court should affirm the well-reasoned opinion of the Appellate Division, who followed mandatory Supreme Court authority in correctly interpreting 798.65[c] and [d]. Petitioner failed to show the Appellate Division exceeded its jurisdiction---the only grounds upon which its opinion could be reversed. 42

The court should find that because Maury Priest testified that he attended every legislative session in 1987 when 8798.75 was amended, and that legislators never intended subsection [c] to apply universally but was to apply & to purchasers and transferees. Because a witness with personal knowledge testified to legislators7intent, there was no justification for this court to guess at what was intended. Even without Priest's testimony the proper analysis would result in the only conclusion that makes sense--2j798.75 applies only to purchasers and transferees, and does not apply universally to any resident. CERTIFICATE OF WORDCOUNT Opposition contains 13,875 words (excluding tables). I relied on a word count generated by MS Word 2007 in status bar.

Attorney for-RealParty VERIFICATION OF REAL PARTY'S ATTORNEY

I, NANCY D MCCARRON, declare:


I am the Real Party's attorney in this proceeding. I have read the foregoing OPPOSITION to Stubblefield Properties Writ Petition, and know the contents; the same is true of my own personal knowledge, except to any matter which is stated on information or belief, and as to those matters I believe them to be true. I declare under penalty of perjury, and the laws of the State of California that the foregoing is true and correct and this Verification was executed on 6/24/20 13 at Santa Barbara, California.

NANCY B M C C A ~ Z O N ,Attorney for Real Party Bonnie Shipley

-I,-

- -

-, -

VERIFICATION OF REAL PARTY BONNIE SHIPLEY

I, BONNIE SHIPLEY, declare:

I am the Real Party in this proceeding. I have read the foregoing OPPOSITION
to Stubblefield Properties Writ Petition, and know the contents; the same is true of my own personal knowledge, except to any matter which is stated on information or belief, and as to those matters I believe them to be true. I declare under penalty of perjury, and the laws of the State of California that the foregoing is true and correct and this Verification was executed on 6/24/2013 at Highland, California.

PI

7 3 u -3
BONNIE SHIPLEY, Real Party

PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN BERNARDINO Stubblefield Properties v. Appellate Division of San Bernardino County Superior Court Civ. E058852 Bonnie Shipley v. San Bernardino Countv Superior Court CIVDS1302013 Stubblefield Properties v. Bonnie Shipley UDDS 1204130 I am counsel for Real Party. My address is 950 Roble Lane, Santa Barbara, CA 93 103 805-450-0450 fax 805-965-3492 nancyduffjrsb@yahoo.com On the date recited below I sewed the following document in the manner indicated below: Real Party's OPPOSITION to Petition for Writ of Mandate, Prohibition and/or Certiorari Real Party's EXHIBITS 1-8

[XI (By Personal Delivery) to the parties below as follows:


Respondent: Appellate Division, Won. Gilbert G. Ochoa (served to clerk) (Petition Only) 401 N. Arrowhead Ave. San Bernardino, CA 924 15-0063 Tel: (909) 52 1-3574 Trial Court: Superior Court, Dept. S-32 Hon. Donald Alvarez (Petition Only) 303 W. Third St. San Bernardino, CA 924 15-0205 (909)708-8690
[ ] (By Fax) Fax machine used complied with Rule 2003(3) and no error was reported by the machine. Pursuant to Rule CRC, 2008 [c](4. I caused the machine to maintain a record of same.

[XI (By Electronic) to Supreme Court of California with copy to nancyduffysb@yahoo.com [XI (By Mail) 5 1013a, 520 15.5 CCP. I deposited documents in a pre-paid stamped envelope to:
Robert Williamson, Hart, King & Coldren, Attornev for Petitioner 4 Hutton Center Drive, Suite 900 Santa Ana, CA 92707 7 14-432-8700 fax 7 14-546-7457 I am familiar with mail collection in San Bernardino. I deposited the envelope in the mail at San Bernardino CA. 1 am aware on a motion of the party served, service is presumed invalid if postal cancellation date is more than one day after deposit date on affidavit.

[H(STATE) I declare under penalty of perjury and laws of California that the above is true.
Executed in San Bernardino CA on June 24,201 3
A

~ a n ' D. c~ accarron, Atty for Real Party