1 Filed 2/13/14 Wilson v. Howard CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

SUZANNE V. WILSON, Plaintiff and Appellant,

v. DON HOWARD et al., Defendants and Respondents. A136847
(Mendocino County Super. Ct. No. SCTM CVG 08-52731)

Plaintiff Suzanne Wilson bought a dwelling, which we will refer to as the “Park Model,” from defendant Don Howard. 1 The Park Model occupied a space in a mobilehome park, Point Ca brillo Highlands, owned by defendant Point Cabrillo Highlands Development Corporation, Inc. (PCHDC). Wilson brought this action after Mendocino County ordered PCHDC to remove the Park Model from its space because of various permitting problems. The trial c ourt denied Wilson’s motion for summary adjudication on her two causes of action u nder the Manufactured Housing Act of 1980 (MHA) 2 after concluding that the Park Model is neither a “manufactured home” nor a “mobilehome” as defined in that statute. A jury trial was held on two of Wilson’s other causes of action—for fraud and abuse of pr ocess—and the court entered judgment on

1 Whether the Park Model should be classifi ed under the applicable statutes as a “manufactured home,” a “mob ilehome,” a “recreational vehicle,” a “park trailer,” or some combination of thes e was a central issue litigated by the parties below.

2 Health and Safety Code section 18000 et sequ itur. All further statutory references are to the Health and Safety Code unless otherwise noted.2 these claims in defendants’ favor. The court also awarded defendants costs and attorney fees under the Mobilehome Residency Law (MRL). 3 On appeal, Wilson argues that the trial c ourt erred in holding that the Park Model is not a manufactured home, de nying her motion to reopen her case, and awarding costs and attorney fees to defendants but not to her. We are not persuaded and affirm.
I. F ACTUAL AND P ROCEDURAL B ACKGROUND In July 2007, W ilson purchased the Park Model from Howard, the president of PCHDC, and began renting the space it occupied in Po int Cabrillo Highlands. Several months later, Wilson was told that the space “was not properly permitted.” If true, this could pose, in the trial court’s words, “a big problem for a consumer of the type of housing unit purchased by [Wilson] . While a Park Model is tran sportable, it is costly and inconvenient to move them. Moreover, a signi ficant portion of the value of the unit is linked to the location where it is placed and the expectation that it will remain there for the long term.” In December 2007, Mendocino County issued an abatement order to PCHDC requiring the Park Model to be relocated within 60 days, either to one of the “existing RV sites” within Point Ca brillo Highlands or to another le gal location outside the park. PCHDC appealed the order, but the record does not disclose whether or how the appeal was resolved. The following July, defendants sent Wilson a notice that her tenancy was terminated effective September 1, claimi ng that her behavior was “a substantial annoyance to individuals and disruptive to thos e living and/or working at the [p]ark.” Wilson subsequently moved out of the Park Model, but she did not immediately remove it from Point Cabrillo High lands. There is no indication in the record that defendants forced Wilson to move out in order to comply with the abatement order. Defendants then notified Wilson of their intent to auction the Park Model as abandoned personal property unde r Civil Code section 1988, and Wilson brought this suit

3 Civil Code section 798 et sequitur.3 to prevent them from proceedi ng with the auction and to obtain other relief. She soon obtained a preliminary injuncti on preventing defendants from au ctioning the Park Model, and she then removed it from Po int Cabrillo Highlands. Co ntinuing to prosecute the case, she filed a first amended complaint allegi ng seven causes of action: (1) alter ego; (2) injunctive relief; (3) abuse of process; (4) fraud by concealment; (5) reduction of services under the MRL; (6) improper escrow under the MHA; and (7) failure to deliver disclosures under the MHA. Wilson moved for summary adjudication of four of these claims, but the motion was denied. It was denied as to the two cl aims brought under the MHA because the trial court concluded that the Park Model was a “ ‘[r]ecreational vehicle’ ” but not a “manufactured home” or a “mobilehome” within the meaning of the statute. (§§ 18007, 18008, 18010.) The motion was denied as to the claim for reduction of services under the MRL and as to the claim for abuse of proce ss because the court found that both claims presented disputed issues of material fact. Before trial, Wilson abandon ed her claim for reduction of services under the MRL. Two of the remaining claims—for fraud and a buse of process—were tried to a jury. After Wilson rested, the trial court granted n onsuit in favor of both defendants on the fraud cause of action because W ilson had failed to prove that defendants knew about any permitting problems when Howard sold the Park Model to he r. The court also granted nonsuit in favor of Howard, but not PCHDC, on the cause of action for abuse of process. Wilson later moved to reopen her case to present the testimony of a retired building inspector, James McCleary, who she claimed would prove that defendants were aware of permitting problems before she purc hased the Park Model. The trial court denied the motion, as well as Wilson’s la ter request to reconsider this ruling. At the end of trial, the trial court gran ted a directed verdict in favor of PCHDC on the abuse-of-process claim. Th e court then entered final ju dgment in defendants’ favor on the fraud and abuse-of-process causes of ac tion. It also granted defendants’ motion for costs and attorney fees under the MRL and denied Wilson’s cross-motion for the same. Wilson timely appealed.4 II. D ISCUSSION A. The Judgment Entered After Tria l Is Amended to Render It Final. We first consider whether the judgment entered after trial was final and, thus, appealable. The judgment disposed of th e fraud and abuse-of-process claims, and then stated that “[a]ll other causes of action in Plaintiff’s First Amended Complaint were resolved in favor of Defendants by summary judgment prior to trial.” But the record reflects that this statement is inaccurate b ecause the other causes of action were not disposed of when summary adjudication was considered. The alter-ego and injunctiverelief claims were not part of Wilson’s mo tion for summary adjudication. The reductionof-services claim was part of the moti on for summary adjudi cation, but summary adjudication of it was denied because the cour t concluded that it involved a disputed issue of material fact. The two claims under the MHA were also part of the motion for summary adjudication, and the court concluded that they failed as a matter of law. But defendants never moved for summary adjudication of those claims, and the order denying summary adjudication did not enter final judgm ent on them. As a result, the judgment entered after trial was not final because it “d ispose[d] of fewer than all the causes of action framed by the complaint.” ( Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 307.) This conclusion, however, does not end ou r analysis. “An appeal from a judgment that is not final violates the one final judg ment rule and must therefore be dismissed [citations], unless the violation can be cured by amending the judgment.” ( Sullivan v. Delta Air Lines, Inc. , supra , 15 Cal.4th at pp. 307-308.) In particular, “[w]hen ‘the trial court’s failure to dispose of all causes of action results from inadvertence or mistake rather than an in tention to retain the remaining causes of action for trial’ [citation], the appellate court has discretion to ‘preserve th e appeal by amending the judgment to reflect the manifest intent of the trial court’ [citations].” ( Id. at p. 308.) This principle permits us to amend the judgment under the circumstances presented here. The two MHA claims were not tried because the trial court’s order5 denying summary adjudication of them effectively disposed of them as a matter of law. And, as Wilson concedes, the injunctive-relie f claim became moot after she removed the Park Model from the mobilehome park, and the reduction-in-services claim was abandoned before trial. Finally, given the reso lution of all the other claims in defendants’ favor, the cause of action for alter ego provid ed no possible remedy because the claim “is a procedural device,” not “a clai m for substantive relief.” ( Leek v. Cooper (2011) 194 Cal.App.4th 399, 418-419.) We conclude that the trial court clearly intended to dispose of all of Wilson’s causes of action in defendants’ favor. Therefore, we amend the judgment to reflect this intention, rendering it final and appealable. B. Wilson’s MHA and Fraud Claims Need Not Be Rein stated Even if the Park Model Is Also a “Manufactured Home.”
Wilson concedes that the Park Model is a “recreational vehicle” within the meaning of the MHA, but she argues that th e trial court erred in ruling that the Park Model was not also a “manufactured home” under that statute and that the causes of action for fraud, improper escrow, and failure to provide disclosures therefore should not have been resolved against her. We are not persuaded. We begin by rejecting defendants’ argumen t that Wilson cannot challenge the trial court’s resolution of the MHA claims because she failed to appeal from the order denying summary adjudication. An order denying su mmary adjudication is not appealable, but it may be reviewed on appeal from the final judgment. ( Cale v. Transamerica Title
Insurance (1990) 225 Cal.App.3d 422, 428, fn. 2.) Although the court denied summary adjudication of the MHA claims when it co ncluded that the Park Model was not a manufactured home, the court did not enter final judgment against Wilson on those two claims (or on any othe rs). As a result, Wilson could not have appealed from the order denying summary adjudication, and she may ch allenge the court’s holding about the Park Model’s status in an appeal from the judgment, as amended. We review de novo the trial court’ s denial of Wilson’s motion for summary adjudication. ( Buss v. Superior Court (1997) 16 Cal.4th 35, 60.) Even if the court erred in denying summary adjudication, however, “t hat error cannot result in reversal of the6 final judgment unless that error resulted in prejudice to” the moving party. ( Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) Unde r this standard, the judgment is not disturbed unless “the appellant can show resulting prejudic e, and the probability of a more favorable outcome, at trial . . . . [E]rror may lead to reversal only if we are persuaded ‘upon an examination of the entire ca use’ that there has been a miscarriage of justice.” ( Ibid. , italics in original; accord Buckner v. Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th 522, 539.) Although we conclude that Wilson’s challenge is properly raised, we need not and do not resolve on the merits he r claim that the Park Model is a “ ‘manufactured home’ ” under section 18007. We need not resolve this issue to d ecide the cause of action for improper escrow because the trial court gave an alternative reason for rejecting the claim. It is true that the court first held that Wilson had no claim for improper escrow under section 18035 because the Park Model was no t a manufactured home or a mobilehome. (See § 18035, subd. (a) [escrow only required for transactions involving “new or used manufactured home or mobilehome subject to registration under th is part”].) But the court also held that Howard was not a “d ealer” who was required to establish escrow under the statute. (See § 18035, subd. (a) [e scrow only required for transactions “by or through a dealer”].) Since Wilson has not challenged the latter holdi ng, we must affirm the resolution of the improper-escrow claim against her on that basis. We also need not resolve th e issue as to the claims fo r fraud and failure to provide disclosures because, even assu ming the Park Model is a recreational vehicle (as Wilson concedes) and also a manufactured home (as she contends), Wilson has not demonstrated any prejudice from the trial court’s orde r denying summary adjudication. Our determination that no prejudice was shown tu rns on the effect of the court’s granting nonsuit on the fraud claim. 4 This ruling established that there were no actionable nondisclosures about permitting issues stem ming from the Park Model’s status as a

4 We requested and received supplemental brie fing on this issue under Government Code section 68081.7 recreational vehicle, but it did not establish whether there we re actionable nondisclosures about permitting issues related to manufactu red homes because the court had already determined that the Park Model was not on e. Still, even thou gh the ruling granting nonsuit did not address permitting issues related to the Pa rk Model’s arguable status as a manufactured home, Wilson has not convince d us that there were such issues. Wilson’s first argument is based on se ction 18613, subdivision (a)(1), which requires a permit “each time a manufactured home . . . is to be located, installed, or reinstalled, on any site for the purpose of hu man habitation or occupa ncy as a dwelling.” But section 18613 also provides that it “ does not apply to recreational vehicles or commercial coaches.” (§ 18 613, subd. (g).) Assuming that Wilson is correct that a dwelling can be both a manufactu red home and a recreational ve hicle, we must examine whether subdivision (a) or subdivision (g) controls whether a permit was required to install the Park Model. “ ‘It is well settled . . . that a general pr ovision is controlled by one that is special, the latter being treated as an exception to th e former. A specific provision relating to a particular subject will govern in respect to that subject, as agai nst a general provision, although the latter, standing al one, would be broad enough to include the subject to which the more particular provision relates.” ( San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 577.) When two statutory pr ovisions “can be reconciled, they must be construed ‘in refere nce to each other, so as to “harmonize the two in such a way that no part of either becomes surplusage.” ’ ” ( Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1118, quoting DeVita v. County of Napa (1995) 9 Cal.4th 763, 778-779.) We ca n harmonize subdivisions (a) and (g) of section 18613 if we interpret them to mean that a permit is required to install a manufactured home unless it is also a recreationa l vehicle. In contrast, were we to agree that a permit is required merely because th e Park Model is a manufactured home, then subdivision (g)’s exemp tion for recreational vehicles woul d be rendered surplusage. We conclude that, regardless whether the Park Model is a manufactured home, its conceded8 status as a recreational vehicle means that section 18613 did not re quire a permit for its installation. Wilson’s second argument about permitting issues related to the Park Model’s arguable status as a manufactured home is th at under section 18500 a “use permit” was required for the space the Park Model occupi ed. Among other things, that statute requires a permit to construct or alter “lots” in a mobilehome park and to occupy or rent “lots” that have been construc ted or altered without a permit. 5 (§ 18500, subds. (b), (c); see § 18214.1.) Although the record does not reveal the trial court’s reasoning in granting the motion for nonsuit on the fraud claim, Wilson represents that the court concluded that even though the space was not properly permitted when she bought the Park Model, defendants’ “belief that th e non-conforming land us e for a ‘recreational vehicle’ . . . was ‘grandfathered in’ ” defeat ed the fraud claim. (U nderlining omitted.) If it is true that the court concluded that defe ndants had such a belief, as Wilson claims, we do not perceive how section 18500 gives rise to a permitting issue that the court could have found actionable. Wilson cites no author ity to establish that a manufactured home, much less one that is also a recreational vehi cle, could not lawfully be placed in a space whose use for recreational vehicles was not a circumstance defendants were required to disclose. As a result, she has not provided any basis fo r us to conclude that the disposition of the causes of action for fraud and failure to provide disclosures would have been more favorable had the court ruled th at the Park Model was also a manufactured home.

5 “ ‘Lot’ ” is defined as “any area or trac t of land or portion of a mobilehome park designated or used for the occupancy of one manufactured home, mobilehome, or recreational vehicle.” (§ 18210.)9 C. The Trial Court Did Not Abuse Its Discretion in Denying Wilson’s Motion to Reopen Her Case.
Wilson also contends that the trial court erred by denying her motion to reopen her case to introduce James McCleary’s testimony. 6 A motion to reopen the case to take further evidence is “entrusted to a trial cour t’s considerable discretion,” and the court’s ruling is reviewed for abuse of discretion. ( Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1222.) In applying this standard, we determine “whether the trial court’s decision exceeded the bounds of reason.” ( Horning v. Shilberg (2005) 130 Cal.App.4th 197, 208-209.) “[D]enial of a motion to reopen will be upheld if the moving party fails to show diligence or that [she was] misled by the other party.” ( Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 428; see also Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 265; 7 Wi tkin, Cal. Procedure (5th ed. 2008) Trial, § 166, p. 202.) After the trial court granted defendan ts’ motion for nonsuit on the fraud cause of action, and after Wilson’s mo tion for reconsideration of th is ruling was denied, Wilson moved to reopen her case to present the te stimony of McCleary, who previously worked as a building inspector for Mendocino Count y. During the tria l, Wilson had been permitted to present the testimony of a cu rrent Mendocino County building inspector, who brought with him Mendocin o County’s records about the site she had leased. This testimony had been insufficient to prove th at defendants knew of permitting problems (stemming from the Park Model’s status as a re creational vehicle) that they were required to disclose when Wils on bought the Park Model. In movi ng to reopen the case, Wilson’s counsel claimed that she learned McCleary had retired when she contacted Mendocino

6 Wilson’s notice of appeal states that she appealed from the trial court’s order denying her motion for reconsideration of the order denying her moti on to reopen her case, which is not an appealable order. (Code Civ. Pr oc., § 1008, subd. (g).) After defendants moved to dismiss the appeal, we ruled that we woul d construe her appeal as being from the order denying her motion to reopen th e trial, which is reviewable in an appeal from the judgment. ( Walker v. Los Angeles County Me tropolitan Transpor tation Authority (2005) 35 Cal.4th 15, 18.)10 County, 12 days before the trial started, in an attempt to subpoena him. Counsel apparently did not start trying to locate McCl eary until the day before the trial started, however, and she only succeeded in speaking to him four days after the court granted the motion for nonsuit on the fraud claim. Counsel claimed that when she finally spoke with McCleary she was told that the file brought to trial by the current building inspector was incomplete and should have contained notes that would ha ve established that Howard knew about permitting prob lems two months before Wilson bought the Park Model. The court denied Wilson’s motion to reopen on th e basis that Wilson (through her attorney) had not been sufficiently diligent in attempti ng to locate McCleary. We cannot conclude on this record that the trial court abused its discretion by denying Wilson’s motion. The court found that Wilson’s counsel had subpoenaed McCleary for a previously scheduled trial da te seven months earlier, but there is no indication that counsel attempted to speak to him then or at any time before the actual trial. The failure to make a serious effort to locate Wilson until the day before trial started and the delay in cont acting him until four days af ter the motion for nonsuit was granted were sufficient justifi cations for the trial court to refuse to allow Wilson to reopen her case. D. The Trial Court Properly Awarded Costs and Attorney Fees Under the MRL to Defendants and Properly Denied Them to Wilson. Finally, Wilson argues that the trial cour t erred by awarding costs and attorney fees to defendants under Civil Code section 798.85 (section 798.85). She contends that costs and attorney fees should have been awarded to her in stead because she obtained a preliminary injunction preventing the defendan ts from auctioning the Park Model. We disagree with both contentions. Under section 798.85, the “prevailing party” in “any action arising out of” the MRL “shall be entitled to reasonable attorney’s fe es and costs. A party shall be deemed a prevailing party . . . if the judgment is rende red in his or her favor or where the litigation is dismissed in his or her fa vor prior to or during the tria l, unless the parties otherwise agree in [a] settlement or comp romise.” An action arises out of the MRL if it “directly11 involve[s] the application of MRL provisions in specific f actual contexts addressed by the MRL,” such as disputes between mobile home-park residents and management. ( MHC Financing Limited Partnership Two v. City of Santee (2005) 125 Cal.Ap p.4th 1372, 1398 ( MHC ).) Although “ ‘[a]n order grantin g or denying an award of at torney fees is generally reviewed under an abuse of discretion standa rd of review,’ ” the issue “ ‘whether the criteria for an award of attorney fees and cost s [under section 798.85] have been met’ . . . is a question of law subject to de novo review.” ( MHC , supra , 125 Cal.App.4th at p. 1397.) Because Wilson’s only arguments are that defendants failed to meet the criteria for an award under the MRL and that she did meet those criteri a, our review is therefore de novo. 1. The trial court properly awar ded costs and attorney fees to defendants because they were the prevailing parties on at least two causes of action “arising under” the MRL.
Wilson contends that the trial court erre d by awarding costs and attorney fees to defendants because only th e causes of action for injunc tive relief and reduction in services arose under the MRL, and defendants were not the prevailing parties on either claim. But she does not argue that fees shoul d be allocated should we find that costs and attorney fees were properly aw arded as to some causes of action but not others. (See Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal. App.4th 525, 555-556 [“a court may not award fees for legal work that is unrelated to a cause of action for which fees are auth orized”]; but see also Del Cerro Mobile Estates v. Proffer (2001) 87 Cal.App.4th 943, 945, 951 [w here all causes of action “ar[i]se from a common core of operative facts,” a trial “court [is] not required to apportion the attorney fees incurred . . . between those causes of action”].) Because W ilson has waived the argument that the trial court’s award should be allocated, we may a ffirm as long as defendants were entitled to costs and attorney fees on any cause of action. (See Ritter & Ritter, Inc. Pension & Profit Plan v. The Church ill Condominium Assn. (2008) 166 Cal.App.4th 103, 128-12912 [appellants waived challenge to trial court’s fa ilure to allocate attorney fees by not raising issue in opening brief].) We conclude that the trial court’s award was proper at least as to the causes of action for abuse of process and reduction of services. First, both causes of action “arose under” the MRL within the m eaning of section 798.85. W ilson concedes this about the reduction-in-services claim. As to the ab use-of-process claim, it was based on the allegation that “[d]efendants misused the ju dicial process by which abandoned personal property is sold by public auction, in that they [w ere] attempting to sell [Wilson]’s mobilehome without applying the protections provided by the [MRL].” While Wilson argues that abuse of process is “a tort acti on which [is] separate and distinct from an action arising from the [MRL],” the fact th at the action was not specifically brought under the MRL is not de terminative. (See Palmer v. Agee (1978) 87 Cal.App.3d 377, 386-387 [unlawful detainer ac tion arose out of MRL because defendants raised defense that relied on application of MRL].) Th e abuse-of-process claim required Wilson to show that defendants needed to proceed under the MRL, specifically Civil Code section 798.61, in order to auction the Park Model as “abandoned.” This claim thus “directly involv[ed] the application of MRL prov isions” to a relevant “factual context[].” ( MHC , supra , 125 Cal.App.4th at p. 1398.) Second, defendants prevailed on both ca uses of action. Wilson does not claim otherwise as to the abuse-of-p rocess claim, on which the tria l court entered judgment in defendants’ favor after the claim was fully litigated and tried to a jury. As to the reduction-in-services claim, she argues that defendants were not the prevailing parties because she “never pursu ed” the claim. But Wilson cites no authority to suggest that her abandonment of the claim prevented defendan ts from prevailing on it. While she states that defendants “did not iden tify any attorney’s fees expe nded on the fifth cause of action,” she does not explain why this fact is relevant to determining whether defendants were the prevailing parties. We affirm the court’s award of costs and fees to defendants because they prevailed on some causes of action arising under the MRL.13 2. The trial court properly denied costs and attorney fees to Wilson because she was not the prevailing party on any cau se of action. Wilson argues that she was the prevaili ng party on the claim for injunctive relief because by obtaining a preliminary injunc tion, she “achieved he r primary goal” of “enjoining PCHDC from selling her [Park Model] at a public auction. ” Section 798.85 is clear, however, that, absent the parties’ agre ement otherwise, a party is only considered “prevailing” in one of two situations: “if the judgment is rendered in his or her favor” or if “the litigation is dismissed in his or her fa vor prior to or during the trial.” Wilson does not explain how her obtaini ng a preliminary injunction through a claim later rendered moot is the equivalent of a judgment or dismissal in her favor. She cites other feeshifting statutes and cases that interpret them , but those authorities are not applicable to determining what “prevailing party” means under the MRL given its plain language. (See Code Civ. Proc., § 1032, subds. ( a)(4 ), (b) [providing defin ition of “ ‘[p]revailing party’ ” “[e]xcept as otherwise expressly provided by statute”]; Hensley v. Eckerhart (1983) 461 U.S. 424, 433 [interpreting “pre vailing party” under 42 U.S.C. § 1988]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1285, 1 290-1292 [considering entitlement to attorney fees under Code of Civ. Proc., § 1021.5, which applies to private-attorneygeneral actions]; Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 315, 317-319 [same]; Westside Community for Indepe ndent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 352- 353 [same].) Because judgment was not en tered in Wilson’s favor on any cause of action, we conclude that the trial court co rrectly denied her cross-motion for costs and attorney fees under the MRL.
III. D ISPOSITION The judgment is amended to reflect the resolution in defendant s’ favor of counts one, two, five, six, and seven, all nunc pro tunc as of July 30, 2012. As so amended, the judgment is affirmed. The or der awarding and denying costs and attorney fees under the MRL is also affirmed. Defendants are awarded their costs on appeal.14 _ ____________ ____________ Humes, J.

We concur:

_____________ ____________ Ruvolo, P.J.

_____________ ____________ Reardon, J.