Diamond v. Superior Court , 217 Cal. App. 4th 1172 ( 2013 )

Filed 6/18/13; pub. & mod. order (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
ARLYNE M. DIAMOND, H038734
(Santa Clara County
Petitioner, Super. Ct. No. CV099053)
v.
THE SUPERIOR COURT OF
SANTA CLARA COUNTY,
Respondent;
CASA DEL VALLE HOMEOWNERS
ASSOCIATION,
Real Party in Interest.
I. INTRODUCTION
Petitioner Arlyne M. Diamond owns a townhouse-style unit in the Casa Del Valle
common interest development, which is managed by real party in interest Case Del Valle
Homeowners Association (Association). After Diamond failed to pay a $9,750 special
assessment by the due date, the Association‟s collection efforts included recording an
assessment lien on her townhouse property and filing the instant action for judicial
foreclosure. Diamond moved for summary judgment on the ground that the Association
could not foreclose because the assessment lien was not valid, since the Association had
not complied with the pre-lien and pre-foreclosure notice requirements set forth in the
Davis-Stirling Common Interest Development Act (Davis-Sterling Act), Civil Code
sections 1367.1 and 1367.4.1 The trial court denied the summary judgment motion,
finding that the Association had substantially complied with the statutory notice
requirements.
On appeal, Diamond argues that a homeowners‟ association must strictly comply
with the notice requirements of sections 1367.1 and 1367.4 in order to perfect an
assessment lien and foreclose on a homeowner‟s property in a common interest
development. For the reasons stated below, we agree. Since the Association‟s failure to
strictly comply with all of the statutory notice requirements is undisputed, we will issue a
peremptory writ of mandate directing the trial court to vacate its order denying
Diamond‟s motion for summary judgment and enter a new order granting the motion.
II. FACTUAL BACKGROUND
Our factual summary is drawn from Diamond‟s separate statement of facts, the
Association‟s response, and the evidence submitted by the parties in connection with
Diamond‟s motion for summary judgment.
In 1978, Diamond purchased a unit in the Casa Del Valle common interest
development, which is managed by the Association through its board of directors
(Board). The Association‟s current governing documents are the 1998 Amended and
Restated Covenants, Conditions and Restrictions (CC&Rs). The CC&Rs provide that the
Board may levy a special assessment to raise funds for “unexpected operating or other
costs . . . or such other purposes as the Board in its discretion considers appropriate.”
Where a levied assessment is delinquent, the CC&Rs also provide that the Association
“may record a notice of delinquent Assessment and establish a lien against” the owner‟s
lot, and may enforce the assessment lien by any manner permitted by law, including
judicial foreclosure.
1
All further statutory references are to the Civil Code unless otherwise indicated.
2
In 2006, the Board decided to replace all of the roofs in the development and
engage in other repair projects. Since the Association‟s reserve funds were insufficient,
the Board determined that a special assessment was needed to raise funds to pay for the
roof replacement and the repair projects. In March 2007, a special assessment in the
amount of $9,750 per unit was approved in a special election by a majority of the voting
members of the Association.
Due to her financial situation, Diamond was unable to pay the special assessment
by the May 2007 due date. She then attempted to negotiate a payment plan by contacting
members of the Board. According to Diamond, her communications with the Board‟s
president resulted in a payment plan agreement that was reached during their meeting on
May 14, 2007. Diamond believed that payment plan agreement required her to execute a
promissory note for $9,750 plus interest, make a down payment of $1,000, and make
monthly payments of $100 until her financial situation improved and she could make
larger monthly payments.
After Diamond made the $1,000 down payment and a couple of monthly
payments, she received a June 19, 2007 pre-lien letter from the Association‟s attorney.
The letter did not refer to the payment plan that Diamond believed she had negotiated
with the Board president. Instead, the letter stated in part: (1) the total outstanding
charges were $10,225; (2) the Association would “record a Notice of Assessment (lien
claim)” against her “condominium unit” if her account was not brought current within
30 days; (3) she was entitled to inspect the Association‟s accounting books and records;
(4) she could submit a written request to the Board to discuss a payment plan; (5) she had
the right to dispute the assessment debt by submitting a written request for dispute
resolution to the Association pursuant to the Association‟s “ „meet and confer‟ program”
or, alternatively, she could request alternative dispute resolution with a a neutral third
party pursuant to section 1369.510; and (6) “IMPORTANT NOTICE: IF YOUR
SEPARATE INTEREST IS PLACED IN FORECLOSURE BECAUSE YOUR ARE
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[sic] BEHIND IN YOUR ASSESSMENTS, IT MAY BE SOLD WITHOUT COURT
ACTION.”
Diamond responded to the pre-lien letter by sending the Association‟s attorney a
letter dated July 18, 2007, in which she stated that the Board president had agreed to a
payment plan due to her hardship situation, she had complied with the payment plan, and
she had offered to sign a promissory note “in lieu of a lien.” She also advised that she
could not pay the special assessment without the payment plan.
On July 26, 2007, the Association recorded a notice of assessment against
Diamond‟s townhouse property, which stated that the amount of the assessment lien was
$12,010.23. The Association sent a copy of the recorded notice of assessment to
Diamond 28 days later as an enclosure in the August 22, 2007 letter mailed to her by the
Association‟s attorney. The August 22, 2007 letter also informed Diamond that the
Board had approved a 12-month payment plan that consisted of a monthly payment of
$989.17 and maintenance of the assessment lien on her property until her account was
paid in full.
Diamond met with the Association‟s attorney on September 10, 2007, regarding
her proposal for a payment plan. As indicated in the September 13, 2007 letter to
Diamond, the Association‟s attorney requested that Diamond supply documentation
regarding her financial condition and corroboration of her claim that she had previously
reached a payment plan agreement with the Board president. Thereafter, the Board
offered Diamond a different payment plan, as stated in the October 18, 2007 letter from
the Association‟s attorney. Although the copy of the October 18, 2007 letter included in
the record is incomplete, it appears that the Board accepted Diamond‟s prior down
payment of $1,000, her prior monthly payments of $100 for five months in 2007, and
agreed to accept monthly payments of $250 for the two months remaining in 2007. The
balance of the proposed payment plan is not reflected in the record.
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Now represented, Diamond sent an October 23, 2007 letter to the Association‟s
attorney requesting that the parties meet and confer and stating that if the matter could
not be resolved, she requested alternative dispute resolution, specifically mediation, as
provided in section 1367.1, subd. (c)(1)(B). The Association rejected Diamond‟s request
to meet and confer and also rejected her request for alternative dispute resolution, stating
in its letter of November 21, 2007, that “the [Association] has already met and conferred
with Dr. Diamond on September 10, 2007. Dr. Diamond is entitled to either meet and
confer with the [Association] or engage in Alternative Dispute Resolution, but not both.”
The November 21, 2007 letter also returned three $100 checks that Diamond had sent to
the Association.
The Board met in executive session on November 7, 2007, to vote on whether to
initiate foreclosure proceedings on Diamond‟s property. Foreclosure proceedings were
approved by a majority vote, as stated in the minutes of the executive session.
III. PROCEDURAL BACKGROUND
A. The Complaint
On November 15, 2007, the Association filed a complaint against Diamond
seeking judicial foreclosure on her Casa Del Valle property and application of the sales
proceeds to pay a judgment in the amount of $10,064.88 plus costs, interest, and
attorney‟s fees. The Association personally served the summons, complaint, and notice
of Board action (decision to initiate foreclosure proceedings) on Diamond on
December 9, 2007.
B. The Motion for Summary Judgment
Diamond subsequently filed a motion for summary judgment, combined with a
“motion to expunge lien,” in April 2012. She generally argued that it was undisputed that
the Association had failed to comply with all of the notice requirements set forth in
sections 1367.1 and 1367.4 that a homeowners association must meet in order to perfect
an assessment lien and foreclose on a homeowner‟s property, and absent compliance with
5
the statutory notice requirements, the Association‟s foreclosure action lacked merit as a
matter of law.
Specifically, Diamond asserted that the Association had (1) failed to send her a
copy of the recorded notice of delinquent assessment by certified mail within 10 days of
the recording (§ 1367.1, subd. (d)); (2) failed give her a pre-foreclosure notice of her
right to demand alternative dispute resolution (§§ 1367.1, subd. (c)(1)(B), 1367.4,
subd. (c)(1)); (3) failed to record the Board‟s executive session vote to initiate foreclosure
proceedings on her property in the minutes of the next meeting of the Board open to all
members (§ 1367.4, subd. (c)(2)); and (4) failed to personally serve her with the notice of
the Board‟s vote to foreclose prior to commencement of the foreclosure action (§ 1367.5,
subd. (c)(3)).
Since the Association had failed to comply with these statutory notice
requirements, Diamond argued that the lien was “invalid to the extent it includes any sum
other than the principal amount of the lien, less all sums paid to date by [Diamond]” and
therefore the lien should be expunged and summary judgment granted.
C. Opposition to the Motion for Summary Judgment
In opposition to the motion for summary judgment, the Association argued that the
evidence showed that it had sufficiently complied with the statutory notice requirements
and therefore the motion should be denied.
First, although the Association admitted that it had not sent Diamond a copy of the
recorded notice of delinquent assessment by certified mail within 10 days of the
recording, as required by section 1367.1, subdivision (d), the Association argued that this
was a “technical violation” because Diamond had received actual notice and the Civil
Code did not provide any consequences for the violation.
Second, the Association argued that it had given Diamond adequate pre-
foreclosure notice of her right to demand alternative dispute resolution, as required by
sections 1367.1, subdivision (c)(1)(B) and 1367.4, subdivision (c)(1), in its pre-lien letter
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of June 19, 2007. According to the Association, the Civil Code does not require separate
notices of the right to pre-lien or pre-foreclosure alternative dispute resolution.
Third, the Association also admitted that it had failed to record the Board‟s
executive session vote to initiate foreclosure proceedings on Diamond‟s property in
the minutes of the next meeting of the Board open to all members, as required by
section 1367.4, subdivision (c)(2). However, the Association contended that under the
circumstances of this matter, including its efforts to negotiate a payment plan with
Diamond, “this technical violation should be excused by the court.”
Finally, the Association disputed Diamond‟s claim that it had failed to personally
serve her with the notice of the Board‟s vote to foreclose prior to commencement of the
foreclosure action, as required by section 1367.4, subdivision (c)(3). The Association
explained that it had complied with this requirement by personally serving her with the
notice of the Board‟s vote to foreclose along with the summons and complaint on
December 9, 2007. The Association further explained that section 1367.4,
subdivision (c)(3) does not specify the timing for serving the notice of the Board‟s vote to
foreclose.
D. The Trial Court’s Order
The record on appeal does not contain a signed and filed court order ruling on
Diamond‟s motion for summary judgment. The only record we have of the trial court‟s
ruling is a copy of the undated tentative ruling and the reporter‟s transcript of the
August 16, 2012 hearing on the motion. However, the parties have not raised any issues
with respect to the omission of a signed and filed order denying the motion for summary
judgment.
In its tentative ruling, the trial court denied the motion for summary judgment
and the motion to expunge the lien, stating in part: “[Diamond] fails to meet her initial
burden to produce evidence that [the Association‟s] action is barred by the provisions of
Civil Code sections 1367.1 and 1367.4. [The Association] substantially complied
7
with the requirements of section 1367.1, subdivision (d) because [Diamond] received
actual notice of the fact that a lien was recorded on her property in sufficient time to
allow her to work with [the Association] to resolve this dispute before [the Association‟s]
lawsuit was filed. [Citations.] Prior to initiating this action, [the Association] also
complied with the requirement of sections 1367.1, subdivision (c)(1)(B) and 1367.4,
subdivision (c)(1) to provide notice of [Diamond‟s] right to meet and confer or
participate in ADR. [Citation.] Additionally, [the Association] complied fully with
section 1367.4, subdivision (c)(3)‟s requirement that [Diamond] receive notice of the
board‟s decision to initiate the action. [Citation.] Finally, insofar as [the Association]
failed to comply strictly with the requirements of section 1367.4, subdivision (c)(2),
the statutory purpose to protect [Diamond‟s] right to privacy was not frustrated by the
failure of the board to note its decision to foreclose in the minutes of a regular board
meeting. Insofar as subdivision (c)(2) also functions to effectuate the requirements of
Civil Code section 1363.05, subdivision (c), [Diamond] was not aggrieved by the
board‟s omission any differently than any other member of the association, and her
remedy as a member of the association was to pursue a timely action under Civil Code
section 1363.09.”
The trial court adopted its tentative ruling at the conclusion of the August 16, 2012
hearing on the motion for summary judgment.
IV. DISCUSSION
After the trial court denied her motion for summary judgment, Diamond filed a
petition for a writ of mandate directing the trial court to vacate its order and enter a new
order granting her motion for summary judgment. The Association filed preliminary
opposition to the petition, to which the Diamond replied. We issued an order to show
cause why a peremptory writ should not issue as requested in the petition for a writ of
mandate and a temporary stay of all trial court proceedings while the writ petition was
pending. Having received further briefing from the parties and granted the application of
8
the American Association of Retired Persons (AARP) for leave to file an amicus curiae
brief in support of petitioner, and having provided an opportunity for oral argument, we
turn to the merits of the writ petition, beginning with our standard of review.
A. Propriety of Writ Relief and the Standard of Review
An order denying a motion for summary judgment may be reviewed by way of a
petition for a writ of mandate. (Code Civ. Proc., § 437c, subd. (m)(1).) “Where the trial
court‟s denial of a motion for summary judgment will result in a trial on nonactionable
claims, a writ of mandate will issue. [Citation.]” (Prudential Ins. Co. of America, Inc. v.
Superior Court (2002) 98 Cal.App.4th 585, 594 (Prudential).)
The standard of review for an order granting a motion for summary judgment is de
novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The trial
court‟s stated reasons for granting summary judgment are not binding on the reviewing
court, “which reviews the trial court‟s ruling, not its rationale. [Citation.]” (Ramalingam
v. Thompson (2007) 151 Cal.App.4th 491, 498.)
In performing its independent review, the reviewing court applies the same three-
step process as the trial court. “Because summary judgment is defined by the material
allegations in the pleadings, we first look to the pleadings to identify the elements of the
causes of action for which relief is sought.” (Baptist v. Robinson (2006) 143 Cal.App.4th
151, 159 (Baptist).)
“We then examine the moving party‟s motion, including the evidence offered in
support of the motion.” (Baptist, supra, 143 Cal.App.4th at p. 159.) A defendant moving
for summary judgment has the initial burden of showing that a cause of action lacks merit
because one or more elements of the cause of action cannot be established or there is a
complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar,
supra, 25 Cal.4th at p. 850.)
If the defendant fails to make this initial showing, it is unnecessary to examine the
plaintiff‟s opposing evidence and the motion must be denied. However, if the moving
9
papers make a prima facie showing that justifies a judgment in the defendant‟s favor, the
burden shifts to the plaintiff to make a prima facie showing of the existence of a triable
issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th
at p. 849; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)
In determining whether the parties have met their respective burdens, “the court
must „consider all of the evidence‟ and „all‟ of the „inferences‟ reasonably drawn
therefrom [citations], and must view such evidence [citations] and such inferences
[citations], in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th
at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor of the party opposing
the motion in accordance with the applicable standard of proof.” (Id. at p. 850,
fn. omitted.) Thus, a party “cannot avoid summary judgment by asserting facts based on
mere speculation and conjecture, but instead must produce admissible evidence raising a
triable issue of fact. [Citation.]” (LaChapelle v. Toyota Motor Credit Corp. (2002)
102 Cal.App.4th 977, 981.)
In the present case, defendant Diamond moved for summary judgment on the
ground that the foreclosure action lacks merit because the Association cannot establish a
valid assessment lien that is enforceable in a foreclosure action, due to its undisputed
failure to comply with all of the notice requirements set forth in sections 1367.1 and
1367.4. Our independent review of the merits of the summary judgment motion therefore
begins with an overview of the statutory requirements for foreclosure under the Davis-
Sterling Act, including the statutory notice requirements.
B. Foreclosure Under the Davis-Sterling Act
1. The Association’s Authority to Collect an Assessment Debt
“In 1985, the Legislature enacted the [Davis-Stirling Act] as division 2, part 4,
title 6 of the Civil Code, „Common Interest Developments‟ ([§§] 1350-1376; Stats. 1985,
ch. 874, § 14, pp. 2774-2787), which encompasses community apartment projects,
10
condominium projects, planned developments and stock cooperatives ([§] 1351,
subd. (c)).[2] „A common interest development shall be managed by an association
which may be incorporated or unincorporated. The association may be referred to as
a community association.‟ ([§] 1363, subd. (a).)” (Lamden v. La Jolla Shores
Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 253, fn. 1.)
An association‟s authority to levy assessments is set forth in section 1366,
subdivision (a), which provides, with certain exceptions not relevant here, that “the
association shall levy regular and special assessments sufficient to perform its obligations
under the governing documents and [title 6].” “A condominium assessment becomes a
debt of the owner when the assessment is levied by the condominium association.
([§] 1367.1, subd. (a).) „The debt is only a personal obligation of the owner, however,
until the community association records a “notice of delinquent assessment” against the
owner‟s interest in the development. Recording this notice creates a lien and gives the
association a security interest in the lot or unit against which the assessment was
imposed.‟ ([Citation]; see [§] 1367, subd. (d).).” (Diamond Heights Village Assn., Inc. v.
Financial Freedom Senior Funding Corp. (2011) 196 Cal.App.4th 290, 300-301
(Diamond Heights).) “It is generally understood that a lien is not a debt but acts as
„security for payment of a debt or other obligation.‟ ([Citation]; see [§] 2872.) . . . An
assessment lien may be enforced „in any manner permitted by law,‟ including judicial
foreclosure. ([§] 1367, subd. (e).)”3 (Diamond Heights, supra, 196 Cal.App.4th at
p. 301.)
2
Effective January 1, 2014, the Davis-Sterling Act has been comprehensively
reorganized and recodified, including the repeal of sections 1367.1 and 1367.4. (Stats.
2012, ch. 180, § 1; Legis. Counsel‟s Dig., Assem. Bill No. 805 (2011-2012 Reg. Sess.).)
3
The association may not foreclose on an assessment lien unless the amount of the
delinquent assessment secured by the lien exceeds $1,800 or the assessment is more than
12 months delinquent. (§ 1367.4, subd. (b)(2).)
11
Where, as here, the assessment lien was recorded after January 1, 2003,
sections 1367.1 and 1367.4 expressly impose certain conditions that an association must
satisfy before the assessment lien may be enforced by judicial foreclosure. (§ 1367.1,
subd. (m).) These conditions include notice requirements, beginning with the pre-lien
notice mandated by section 1367.1, subdivision (a). The association may initiate
foreclosure of a lien for a delinquent assessment only where the lien “has been validly
recorded.” (§1367.4, subd. (c)(2).)
2. Pre-Lien Notice
After January 1, 2006, “the decision to record a lien for delinquent assessments
shall be made only by the board of directors of the association . . . . The board shall
approve the decision by a majority vote of the board members in an open meeting.
The board shall record the vote in the minutes of that meeting.” (§ 1367.1, subd. (c)(2).)
Before recording a lien for a delinquent assessment, the association must give the
homeowner an opportunity to engage in dispute resolution. Section 1367.1,
subdivision (c)(1)(A) provides: “Prior to recording a lien for delinquent assessments, an
association shall offer the owner and, if so requested by the owner, participate in dispute
resolution pursuant to the association‟s „meet and confer‟ program required in Article 5
(commencing with Section 1363.810) of Chapter 4.” (§ 1367.1, subd. (c)(1)(A).)
The association must also give the homeowner a pre-lien notice as specified by
section 1367.1. Subdivision (a) of section 1367.1 provides: “At least 30 days prior to
recording a lien upon the separate interest of the owner of record to collect a debt that is
past due . . . , the association shall notify the owner of record in writing by certified mail
of the following: [¶] (1) A general description of the collection and lien enforcement
procedures of the association . . . . [¶] (2) An itemized statement of the charges owed by
the owner, including items on the statement which indicate the amount of any delinquent
assessments . . . . [¶] (3) A statement that the owner shall not be liable to pay the
charges, interest, and costs of collection, if it is determined the assessment was paid on
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time to the association. [¶] (4) The right to request a meeting with the board as provided
by paragraph (3) of subdivision (c) [meeting to discuss a payment plan]. [¶] (5) The
right to dispute the assessment debt by submitting a written request for dispute resolution
to the association pursuant to the association‟s „meet and confer‟ program . . . . [¶]
(6) The right to request alternative dispute resolution with a neutral third party . . . before
the association may initiate foreclosure against the owner‟s separate interest, except that
binding arbitration shall not be available if the association intends to initiate a judicial
foreclosure.”
3. Notice After Recording the Assessment Lien
The lien (for the amount of the delinquent assessment, costs of collection, late
charges, and interest) is recorded when the association causes a notice of delinquent
assessment to be recorded with the county recorder in the county in which the owner‟s
separate interest is located. (§ 1367.1, subd. (d).)
The method and timing of the transmission of the notice of delinquent assessment
to the homeowner is specified in section 1367.1, subdivision (d): “A copy of the
recorded notice of delinquent assessment shall be mailed by certified mail to every
person whose name is shown as an owner of the separate interest in the association‟s
records, and the notice shall be mailed no later than 10 calendar days after recordation.”
4. Pre-Foreclosure Notices
To collect a delinquent special assessment secured by a lien on the owner‟s
property, an association may use judicial foreclosure, subject to several conditions.
(§ 1367.4, subd. (c).)
First, an association must offer dispute resolution before initiating foreclosure.
“Prior to initiating a foreclosure on an owner‟s separate interest, the association shall
offer the owner and, if so requested by the owner, participate in dispute resolution
pursuant to the association‟s „meet and confer‟ program . . . or alternative dispute
resolution . . . . The decision to pursue dispute resolution or a particular type of
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alternative dispute resolution shall be the choice of the owner . . . .” (§§ 1367.4,
subd. (c)(1), 1367.1, subd. (c)(1)(B).)
Second, the board of directors of the association must vote to approve foreclosure.
“The decision to initiate foreclosure of a lien for delinquent assessments that has been
validly recorded shall be made only by the board of directors of the association . . . . The
board shall approve the decision by a majority vote of the board members in an executive
session. The board shall record the vote in the minutes of the next meeting of the board
open to all members. The board shall maintain the confidentiality of the owner or owners
of the separate interest by identify the matter in the minutes by the parcel number of the
property, rather than the name of the owner or owners. . . .” (§ 1367.4, subd. (c)(2).)
Third, the board must provide notice of the Board‟s decision to initiate foreclosure
to the homeowner in the manner specified by section 1367.4, subdivision (c)(3): “The
board shall provide notice by personal service in accordance with the manner of service
of summons . . . to an owner of a separate interest who occupies the separate interest or to
the owner‟s legal representative, if the board votes to foreclose upon the separate
interest. . . .”
5. Remedies for Failure to Comply
Section 1367.1 provides remedies for an association‟s failure to comply with the
mandatory pre-lien and pre-foreclosure procedures and notice requirements set forth in
sections 1367.1 and 1367.4.
Where the assessment lien has not yet been recorded: “An association that fails to
comply with the procedures set forth in this section [§ 1367.1] shall, prior to recording a
lien, recommence the required notice process.” (§ 1367.1, subd. (l)(1).)
After the assessment lien has been recorded: “If it is determined that a lien
previously recorded against the separate interest was recorded in error, the party who
recorded the lien shall, within 21 calendar days, record or cause to be recorded in the
office of the county recorder in which the notice of delinquent assessment is recorded a
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lien release or notice of rescission and provide the owner of the separate interest with a
declaration that the lien filing or recording was in error and a copy of the lien release or
notice of rescission.” (§ 1367.1, subd. (i).)
C. The Association’s Failure to Comply with Statutory Notice Requirements
1. The Parties’ Contentions
In her writ petition, Diamond reiterates her contentions below that it is undisputed
that the Association failed to comply with the Davis-Sterling Act‟s statutory notice
requirements by (1) failing to send her a copy of the recorded notice of delinquent
assessment by certified mail within 10 days of the recording (§ 1367.1, subd. (d));
(2) failing to give her a pre-foreclosure notice of her right to demand alternative dispute
resolution (§§ 1367.1, subd. (c)(1)(B), 1367.4, subd. (c)(1)); (3) failing to record the
Board‟s executive session vote to initiate foreclosure on her property in the minutes of
the next meeting of the Board open to all members (§ 1367.4, subd. (c)(2)); and
(4) failing to personally serve her with the notice of the Board‟s vote to foreclose prior to
commencement of the foreclosure action (§ 1367.4, subd. (c)(3)).
Diamond further contends that the Legislature intended, in enacting
sections 1367.1 and 1367.4, to protect homeowners from abuse of the foreclosure process
by homeowners‟ associations. For that reason, she argues that strict compliance with the
statutory notice requirements is necessary and the trial court erred in deeming substantial
compliance to be sufficient for a valid assessment lien and enforcement of the lien in a
judicial foreclosure action.
The Association responds that (1) although it failed to send Diamond a copy of the
recorded notice of delinquent assessment with 10 days of the recording as required by
section 1367.1, subdivision (d), it is anticipated that the evidence will show Diamond was
out of the country during the 10-day period and therefore timely notice was not possible;
(2) its pre-lien letter of June 19, 2007, advising Diamond of her right to request dispute
resolution constituted pre-foreclosure notice of Diamond‟s right to demand alternative
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dispute resolution as required by sections 1367.1, subdivision (c)(1)(B) and 1367.4,
subdivision (c)(1); (3) its admitted failure to record the Board‟s executive session
foreclosure vote in the minutes of the next Board meeting open to all members, as
required by section 1367.4, subdivision (c)(2) “is of no consequence” because
Diamond was aware that if she did not accept the Association‟s proposal for a payment
plan, a foreclosure action would be filed; and (4) it did not violate section 1367.4,
subdivision (c)(3) by personally serving Diamond with the notice of the Board‟s vote to
foreclose at the same time it personally served her with the summons and complaint for
the foreclosure action, since she “did not lose a single second of time in which to defend
her interests.”
In light of the Association‟s admission that it did not comply with all of the notice
requirements of sections 1367.1 and 1367.4, the crucial issue in this case is whether, as
the trial court ruled, substantial compliance is sufficient for the assessment lien on
Diamond‟s property to be valid and enforceable in a judicial foreclosure action. To
resolve the issue, we must construe the relevant provisions of sections 1367.1 and 1367.4
under the rules governing statutory interpretation.
2. Rules of Statutory Interpretation
Statutory interpretation involves purely legal questions to which we apply the
independent standard of review. (Burden v. Snowden (1992) 2 Cal.4th 556, 562; accord
Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502,
1521.) In performing our independent review, we apply well-settled rules.
“[O]ur fundamental task is to ascertain the Legislature‟s intent so as to effectuate
the purpose of the statute. [Citation.] We begin with the language of the statute, giving
the words their usual and ordinary meaning. [Citation.] The language must be construed
„in the context of the statute as a whole and the overall statutory scheme, and we give
“significance to every word, phrase, sentence, and part of an act in pursuance of the
legislative purpose.” ‟ [Citation.] In other words, „ “we do not construe statutes in
16
isolation, but rather read every statute „with reference to the entire scheme of law of
which it is part so that the whole may be harmonized and retain effectiveness.‟
[Citation.]” ‟ [Citation.] If the statutory terms are ambiguous, we may examine extrinsic
sources, including the ostensible objects to be achieved and the legislative history.
[Citation.] In such circumstances, we choose the construction that comports most closely
with the Legislature‟s apparent intent, endeavoring to promote rather than defeat the
statute‟s general purpose, and avoiding a construction that would lead to absurd
consequences. [Citation.]” (Smith v. Superior Court (2006) 39 Cal.4th 77, 83.)
Additionally, we may “ „examine the history and background of the statutory
provision in order to ascertain the most reasonable interpretation of the measure.‟
[Citation.]” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 543 (Doe).) Even where
the plain language of the statute dictates the result, the legislative history may provide
additional authority confirming the court‟s interpretation of the statute. (Id. at p. 544.)
3. Analysis
Having reviewed the statutory provisions in question, for reasons that we will
discuss we determine that the plain language of sections 1367.1 and 1367.4 and the
legislative history show that the Legislature intended the notice requirements to be
strictly construed. We will address in turn each of the four notice requirements that
Diamond asserts the Association did not satisfy.
Failure to Properly Transmit Notice of Recorded Assessment Lien
Section 1367.1, subdivision (d) provides, “A copy of the recorded notice of
delinquent assessment shall be mailed by certified mail to every person whose name is
shown as an owner of the separate interest in the association‟s records, and the notice
shall be mailed no later than 10 calendar days after recordation.”
It is undisputed that the notice of delinquent assessment in this case was recorded
on July 26, 2007, and the Association mailed Diamond a copy of the recorded notice of
assessment to Diamond 28 days later as an enclosure in the August 22, 2007 letter. The
17
Association admits that it did not comply with section 1367.1, subdivision (d) because it
did not send a copy of the recorded notice of delinquent assessment to Diamond either by
certified mail or within 10 calendar days after the recordation.
The trial court ruled that the Association had substantially complied with the
requirements of section 1367.1, subdivision (d) because Diamond received actual notice
of the recorded assessment lien in sufficient time to allow her to resolve the assessment
dispute with the Association before the foreclosure action was filed.
To determine whether substantial compliance is sufficient, we first examine the
plain language of the statute. Section 1367.1, subdivision (d), states that the recorded
notice of delinquent assessment “shall be mailed by certified mail,” and that the notice
“shall be mailed no later than 10 calendar days after recordation.” (Italics added.) The
California Supreme Court has stated the general rule regarding the interpretation of the
word “shall”: “[T]he word „shall‟ in a statute is ordinarily deemed mandatory, and „may‟
permissive. [Citation.]” (California Correctional Peace Officers Assn. v. State
Personnel Bd. (1995) 10 Cal.4th 1133, 1143 (Peace Officers).) The general rule
therefore requires that section 1367.1, subdivision (d), be strictly construed to mandate
that the homeowner receive a copy of the recorded notice of delinquent assessment by
certified mail within 10 calendar days after the recordation, and that substantial
compliance is insufficient.
“Nonetheless, in construing the statute, the court must ascertain the legislative
intent. „ “In the absence of express language, the intent must be gathered from the terms
of the statute construed as a whole, from the nature and character of the act to be done,
and from the consequences which would follow the doing or failure to do the particular
act at the required time. [Citation.] When the object is to subserve some public purpose,
the provision may be held directory or mandatory as will best accomplish that purpose
[citation]. . . .” [Fn. omitted.]‟ [Citation.]” (Peace Officers, supra, 10 Cal.4th at
p. 1143.)
18
We find an expression of the Legislature‟s intent regarding the public purpose of
the sections 1367.1 and 1367.4 and the statutory notice requirements in the legislative
history. Section 1367.1 was added to the Civil Code in 2002 (Stats. 2002, ch. 1111, § 8)
and amended in 2005, when section 1367.4 was added (Stats. 2005, ch. 452, § 5). In
2005, the Senate Judiciary Committee‟s bill analysis stated: “This bill protects owners‟
equity in their homes when they fail to pay relatively small assessments to their common
interest development associations.” (Sen. Com. on Judiciary, Analysis of Sen. Bill
No. 137 (2005-2006 Reg. Sess.) as amended Sept. 1, 2005, p. 1.)
The Assembly Committee on Judiciary similarly stated: “This bill goes to the
heart of home owner rights, touching upon the key issue of when, if ever, a homeowners‟
association should have the right to force the sale of a member‟s home when the home
owner falls behind on paying overdue assessments or dues. . . . [¶] . . . [This bill]
[s]eeks to protect a condominium owner‟s property and equity when he or she misses
payment on relatively small assessments imposed by their common interest development
(CID) association.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 137 (2005-
2006 Reg. Sess.) as amended Apr. 5, 2005, pp. 1-2.)
Thus, the legislative history indicates that the public purpose of sections 1367.1
and 1367.4, including the notice requirements, was to protect the interest of a homeowner
who has failed to timely pay an assessment levied by a homeowners‟ association. The
legislative history further indicates that to accomplish this purpose, the notice
requirements were intended to be mandatory.
The Senate Judiciary Committee‟s bill analysis, prepared before section 1367.1
was enacted in 2002, states: “This bill [Assem. Bill 2289] would make numerous
changes to the procedures followed by homeowners‟ associations when a homeowner is
delinquent on fees and assessments. These changes would include a waiting period prior
to the notice of recordation of a lien, a meeting by the association‟s board with the
homeowner to discuss the matter upon the homeowner‟s request, and additional
19
mandatory disclosures and notices throughout the process.” (Sen. Com. on Judiciary,
Analysis of Assem. Bill No. 2289 (2001-2002 Reg. Sess.) June 25, 2002, p. 1, italics
added.) In 2005, when section 1367.1 was amended and section 1367.4 was added, the
Senate Floor Analysis stated, “This bill also requires the owner to be notified in specified
ways if the board has voted to foreclose.” (Sen. Rules Com., Off. of Sen. Floor Analyses,
3d reading analysis of Sen. Bill No. 137 (2005-2006 Reg. Sess.) as amended April 5,
2005, p. 2, italics added.)
Since the legislative history shows that the Legislature‟s intent in enacting
sections 1367.1 and 1367.4 was to protect the homeowner‟s interest by, among other
things, requiring that a homeowners‟ association give mandatory notices to the
homeowner before foreclosing on an assessment lien, it provides additional authority
confirming our determination that the plain language of section 1367.1 and its notice
requirements be strictly construed. (See Doe, supra, 42 Cal.4th at p. 544.) We have
found no indication in the legislative history that the Legislature intended that substantial
compliance with the statutory notice requirements would be sufficient to protect the
homeowner‟s interest.
Also supporting our strict construction of section 1367.1, subdivision (d) is the
inclusion in the statute of a penalty for failure to comply with the post-lien notice
requirements. “[T]ime limits are generally directory, but when the statute provides a
consequence or penalty for failure to act within the prescribed time, they have been
construed as mandatory. [Citation.]” (Peace Officers, supra, 10 Cal.4th at p. 1143.)
Here, section 1367.1, subdivision (i) provides the penalty: “If it is determined that
a lien previously recorded against the separate interest was recorded in error, the party
who recorded the lien shall, within 21 calendar days, record or cause to be recorded in the
office of the county recorder in which the notice of delinquent assessment is recorded a
lien release or notice of rescission and provide the owner of the separate interest with a
20
declaration that the lien filing or recording was in error and a copy of the lien release or
notice of rescission.”
The legislative history further indicates the Legislature‟s intent that a lien
“recorded in error” (§ 1367.1, subd. (i)) and therefore subject to release or rescission
includes a lien recorded without strict compliance with the statutory notice requirements.
Prior to the enactment of section 1367.1 in 2002, the Assembly bill analysis stated: “[I]f
that lien were placed [sic] and any of the notification requirements of this bill were not
met the association would have to rescind the lien, re-notify and wait 30 days to replace
the lien.” (Assem. Bill Analysis, Concurrence in Senate Amendments, Assem. Bill
No. 2289 (2001-2002 Reg. Sess.), as amended Aug. 21, 2002, pp. 3-4.) We therefore
determine that unless a homeowner‟s association strictly complies with the notice
requirements of section 1367.1, the assessment lien is not valid, was recorded in error,
and may not be enforced by judicial foreclosure. (§1367.4, subd. (c)(2) [foreclosure
action may be initiated only where assessment lien was validly recorded].)
The trial court relied on section 4 in determining that substantial compliance with
the statutory notice requirements is sufficient. Section 4 provides: “The rule of the
common law, that statutes in derogation thereof are to be strictly construed, has no
application to this code. The code establishes the law of this state respecting the subjects
to which it relates, and its provisions are to be liberally construed with a view to effect its
objects and to promote justice.” However, the California Supreme Court has instructed
that “ „[e]ven as to the [Civil] code, “liberal construction” does not mean enlargement or
restriction of a plain provision of a written law. If a provision of the code is plan and
unambiguous, it is the duty of the court to enforce it as it is written.‟ ” (Li v. Yellow Cab
Co. (1975) 13 Cal.3d 804, 815.)
The trial court also relied on the decision in Kim v. JF Enterprises (1996) 42
Cal.App.4th 849 (Kim), which concerned mechanic‟s liens, as support for the liberal
construction of the sections 1367.1 and 1367.4 statutory notice requirements. In Kim, the
21
issue was whether the plaintiffs‟ failure to serve and file a preliminary 20-day notice, as
required by former section 3097, prevented them from foreclosing on their mechanics‟
liens. (Kim, supra, 42 Cal.App.4th at pp. 854-855.) The court stated that “[s]trict
compliance with [former] section 3097 is required.” (Id. at p. 855.) Rejecting the
plaintiffs‟ contention that they were not required to give a preliminary notice under the
former section 3097, subdivision (a) exception for a claimant “ „under direct contract
with the owner,‟ ” the court ruled that this exception only applies where the owner has
actual knowledge of the construction. (Kim, supra, at pp. 855, 859.)
Since the decision in Kim concerned the express statutory exception set forth in
former section 3097, subdivision (a) to the preliminary notice requirement for a valid
mechanic‟s lien, and there is no analogous statutory exception to the section 1367.1
notice requirements, Kim is inapplicable here. We also observe that in the mechanic‟s
lien context it has been held that “where the Legislature has provided a detailed and
specific mandate as to the manner or form of serving notice upon an affected party that its
property interests are at stake, any deviation from the statutory mandate will be viewed
with extreme disfavor.” (Harold L. James, Inc. v. Five Points Ranch, Inc. (1984) 158
Cal.App.3d 1, 6; see also Casa Eva I Homeowners Assn. v. Ani Construction & Tile, Inc.
(2005) 134 Cal.App.4th 771, 780 [judgment lien statutes are strictly construed]; Bank of
America v. Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260, 270 [statutes governing
attachment of property are strictly construed] ; San Joaquin Blocklite, Inc. v. Willden
(1986) 184 Cal.App.3d 361, 365-366 [former section 3098‟s preliminary notice
requirement for recovery under a stop notice strictly construed].) These decisions are
consistent with the California Supreme Court‟s long-ago ruling that “ „a lien which is the
creature of statute can be enforced only in the manner prescribed by the statute.‟
[Citation.]” (Chase v. Putnam (1897) 117 Cal. 364, 367-368.)
We therefore determine that the notice requirements of sections 1367.1 and 1367.4
are mandatory. Pursuant to section 1367.1, subdivision (d), the Association was required
22
to send Diamond a copy of the recorded notice of delinquent assessment by certified mail
no later than 10 calendar days after the recordation. Since the Association admittedly
failed to satisfy this notice requirement, the assessment lien recorded on Diamond‟s
property is not valid and may not be enforced in a judicial foreclosure action.
(§1367.4, subd. (c)(2).)
Failure to Give Notice of the Pre-Foreclosure Right
to Demand Alternative Dispute Resolution
Diamond contends that the Association failed to give her the pre-foreclosure
notice of her right to demand alternative dispute resolution that is mandated by the
statutory scheme for foreclosure on an assessment lien. The Association contends that its
pre-lien letter of June 19, 2007, was sufficient to comply with the statutory requirements
for notification of the right to alternative dispute resolution.
Section 1367.1, subdivision (a) expressly requires an association to give the
homeowner the written notice specified in the statute at least 30 days before recording an
assessment lien on a homeowner‟s separate interest. The dispute resolution notice
requirements are set forth in subdivisions (a)(5) and (a)(6) of section 1367.1.
Subdivision (a)(5) of section 1367.1 requires the notice to notify the owner of the
following: “The right to dispute the assessment debt by submitting a written request for
dispute resolution to the association pursuant to the association‟s „meet and confer‟
program required in Article 5 (commencing with Section 1363.810) of Chapter 4.”
Subdivision (a)(6) of section 1367.1 requires the notice to also notify the owner of
the following regarding alternative dispute resolution: “The right to request alternative
dispute resolution with a neutral third party pursuant to Article 2 (commencing with
Section 1369.510) of Chapter 7 before the association may initiate foreclosure against the
owner‟s separate interest . . . .”
The notice requirements set forth in subdivisions (a)(5) and (a)(6) of
section 1367.1 are not stated in the disjunctive; the word “or” does not appear.
23
Section 1367.1, subdivision (a) expressly requires that the homeowner be notified “of
the following,” without indicating that any of the notice requirements are in the
alternative or otherwise optional. Consequently, to satisfy the notice requirement of
section 1367.1, subdivision (a), the pre-lien notice to the homeowner must include (1)
notice of the right to meet and confer as provided by subdivision (a)(5); and (2) notice of
the right to alternative dispute resolution with a neutral third party as provided by
subdivision (a)(6).
We find that the June 19, 2007 pre-lien letter did not comply with the
section 1367.1, subdivisions (a)(5) and (a)(6) notice requirements. The June 19, 2007
letter states in pertinent part: “You have the right to dispute the assessment debt by
submitting a written request for dispute resolution to the Homeowners‟ Association
pursuant to the Homeowner‟s Association‟s „meet and confer‟ program, or as an
alternative, you have the right to request alternative dispute resolution with a neutral third
party as set forth in the Civil Code beginning with . . . [s]ection 1369.510.” (Italics
added.) Thus, the June 19, 2007 letter incorrectly notified Diamond that her right to
dispute resolution consisted of (1) meet and confer to dispute the assessment debt
pursuant to the Association‟s meet and confer program; or (2) alternative dispute
resolution with a neutral third party.
Since the June 19, 2007 letter did not satisfy the statutory pre-lien notice
requirements of section 1367.1, subdivision (a), we determine for this additional reason
that the assessment lien is not valid and may not be enforced in a judicial foreclosure
action. (§1367.4, subd. (c)(2).)
Failure to Properly Record the Board’s Executive Session Vote
to Initiate Foreclosure
Section 1367.4, subdivision (c)(2) provides: “The decision to initiate foreclosure
of a lien for delinquent assessments that has been validly recorded shall be made only by
the board of directors of the association and may not be delegated to an agent of the
24
association. The board shall approve the decision by a majority vote of the board
members in an executive session. The board shall record the vote in the minutes of the
next meeting of the board open to all members. The board shall maintain the
confidentiality of the owner or owners of the separate interest by identifying the matter in
the minutes by the parcel number of the property, rather than the name of the owner or
owners. A board vote to approve foreclosure of a lien shall take place at least 30 days
prior to any public sale.” (Italics added.)
The Association admits that it failed to record the Board‟s executive session
foreclosure vote in the minutes of the next Board meeting open to all members, as
required by section 1367.4, subdivision (c)(2). However, the Association contends that
its failure “is of no consequence” because Diamond was aware that a foreclosure action
would be filed if she did not accept the Association‟s proposal for a payment plan.
The Association provides no authority for the proposition that it may disregard the
notice requirement of section 1367.4, subdivision (c)(2) where the homeowner has actual
knowledge that foreclosure is a possibility. To the contrary, as we have determined, the
plain language of section 1367.4 and its legislative history shows that the statute‟s notice
requirements are mandatory. We reiterate that prior to the enactment of section 1367.4 in
2005, the Senate Floor Analysis stated, “This bill also requires the owner to be notified in
specified ways if the board has voted to foreclose.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Sen. Bill No. 137, supra, at p. 2, italics added.)
Since the Association did not comply with the notice requirement of
section 1367.4, subdivision (c)(2), for that additional reason the assessment lien on
Diamond‟s property is not valid and may not be enforced in a judicial foreclosure action.
Failure to Properly Serve Notice of the Board’s Foreclosure Vote
Diamond contends that the Association failed to personally serve her with the
notice of the Board‟s vote to foreclose prior to commencement of the foreclosure action
(§ 1367.4, subd. (c)(3)). The Association responds that it complied by personally serving
25
Diamond with the notice of the Board‟s vote to foreclose at the same time it personally
served her with the summons and complaint for the foreclosure action, since she “did not
lose a single second of time in which to defend her interests.”
Section 1367.4, subdivision (c)(3) provides in part: “An association that seeks to
collect delinquent regular or special assessments . . . may use judicial or nonjudicial
foreclosure subject to the following conditions: [¶] . . . [¶] The board shall provide
notice by personal service in accordance with the manner of service of summons in
Article 3 (commencing with Section 415.10)[4] of Chapter 4 of Title 5 of Part 2 of the
Code of Civil Procedure to an owner of a separate interest who occupies the separate
interest . . . if the board votes to foreclose upon the separate interest.”
According to Diamond, the notice requirement of section 1367.4,
subdivision (c)(4) is a condition precedent to filing a judicial foreclosure action, and since
the Association personally served the notice on her after it filed the instant judicial
foreclosure action, it failed to comply with section 1367.4, subdivision (c)(4). Diamond
relies upon the definition of “condition precedent” set forth in section 1436: “A
condition precedent is one which is to be performed before some right dependent thereon
accrues, or some act dependent thereon is performed.”
We agree that personal service on the homeowner of the board‟s vote to foreclose
on the homeowner‟s separate interest is a statutory condition precedent to the filing of an
action for judicial foreclosure on an assessment lien. Section 1367.4, subdivision (c)(4)
expressly provides that an association may use judicial foreclosure “subject to the
following conditions,” which include “personal service in accordance with the manner of
4
Code of Civil Procedure section 415.10 provides: “A summons may be served
by personal delivery of a copy of the summons and of the complaint to the person to be
served. Service of a summons in this manner is deemed complete at the time of such
delivery. [¶] The date upon which personal delivery is made shall be entered on or
affixed to the face of the copy of the summons at the time of its delivery. However,
service of a summons without such date shall be valid and effective.”
26
service of summons . . . to an owner of a separate interest who occupies the separate
interest . . . if the board votes to foreclose upon the separate interest.” Thus, the plain
language of section 1367.4, subdivision (c)(4), which we must strictly construe, requires
an association to satisfy certain conditions before filing a judicial foreclosure action,
including personal service of the notice of the board‟s vote to foreclose. (See, e.g.,
Center for Self-Improvement & Community Development v. Lennar Corp. (2009) 173
Cal.App.4th 1543, 1551 [statutory notice is a mandatory condition precedent to
establishing a citizen‟s right to commence a Proposition 65 enforcement action in the
public interest].)
In the present case, the Association filed the instant judicial foreclosure action on
November 15, 2007. It personally served notice of the Board‟s November 7, 2007 vote to
foreclose on the assessment lien on Diamond‟s property nearly one month later, on
December 9, 2007. Since it is undisputed that the Association did not personally serve
the notice required by section 1367.4, subdivision (c)(4) before filing the judicial
foreclosure action, the lack of compliance with this statutory condition precedent is fatal
to the judicial foreclosure action. (See, e.g., In re Franklin (2008) 169 Cal.App.4th 386,
392 [absence of the statutory condition precedent to lawful sexually violent predator civil
commitment proceeding is a fatal flaw].)
4. Conclusion
In summary, we have determined that the notice requirements set forth in the
Davis-Sterling Act at sections 1367.1 and 1367.4 for judicial foreclosure on an
assessment lien must be strictly construed, pursuant to the plain language of the statutes
and their legislative history. We have also determined on the undisputed facts that the
Association failed to comply with the Davis-Sterling Act‟s statutory notice requirements
by (1) failing to send Diamond a copy of the recorded notice of delinquent assessment by
certified mail within 10 days of the recording (§ 1367.1, subd. (d)); (2) failing to give her
the required pre-lien notice of her right to demand alternative dispute resolution
27
(§ 1367.1, subds. (a)(5), (a)(6)); (3) failing to record the Board‟s executive session vote to
initiate foreclosure on her property in the minutes of the next meeting of the Board open
to all members (§ 1367.4, subd. (c)(2)); and (4) failing to personally serve her with the
notice of the Board‟s vote to foreclose prior to commencement of the foreclosure action
(§ 1367.4, subd. (c)(3)).
Since the Association failed to strictly comply with all of the mandatory notice
requirements, the assessment lien that the Association recorded on Diamond‟s property
is not valid and may not be enforced in a judicial foreclosure action. (§1367.4,
subd. (c)(2).) The instant judicial foreclosure action therefore lacks merit as a matter of
law and Diamond‟s motion for summary judgment should be granted.
To prevent a trial on non-actionable claims, we will grant Diamond‟s petition for a
writ of mandate and direct the trial court to vacate its order denying Diamond‟s motion
for summary judgment and to enter a new order granting the motion. (See Prudential,
supra, 98 Cal.App.4th at p. 594.) Our ruling is without prejudice to further proceedings
in the trial court with respect to the assessment lien.
V. DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate the
order denying petitioner Arlyne M. Diamond‟s motion for summary judgment and to
enter a new order granting the motion. Upon finality of this decision, the temporary stay
order is vacated. Costs in this original proceeding are awarded to petitioner.
28
___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
PREMO, ACTING P.J.
__________________________
GROVER, J.
29
Filed 7/12/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
ARLYNE M. DIAMOND, H038734
(Santa Clara County
Petitioner, Super. Ct. No. CV099053)
v. ORDER MODIFYING OPINION
AND DENYING REHEARING,
THE SUPERIOR COURT OF CERTIFYING OPINION FOR
SANTA CLARA COUNTY, PUBLICATION
[NO CHANGE IN JUDGMENT]
Respondent;
CASA DEL VALLE HOMEOWNERS
ASSOCIATION,
Real Party in Interest.
THE COURT:
It is ordered that the opinion filed herein on June 18, 2013, be modified as follows:
1. On page 9, change “the American Association of Retired Persons (AARP)” to
“AARP” so that the sentence beginning on page 8, second full paragraph, line seven, and
continuing to the first line of page 9 reads:
Having received further briefing from the parties and granted the application of
the AARP for leave to file an amicus curiae brief in support of petitioner, and having
provided an opportunity for oral argument, we turn to the merits of the writ petition,
beginning with our standard of review.
30
2. On page 9, second full paragraph, first line, delete the sentence beginning “The
standard of review . . . .” and replace it with the following sentence:
The standard of review for an order granting or denying a motion for summary
judgment is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860
(Aguilar).)
3. On page 21, in line eight of the second full paragraph, the word “plan” is
changed to “plain” so that the sentence reads:
If a provision of the code is plain and unambiguous, it is the duty of the court to
enforce it as it is written. (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 815.
There is no change in the judgment.
Real Party in Interest‟s petition for rehearing is denied.
The opinion in the above-entitled matter filed on June 18, 2013, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.
_________________________________________
BAMATTRE-MANOUKIAN, J.
__________________________________________
PREMO, ACTING P.J.
___________________________________________
GROVER, J.
31
Trial Court: Santa Clara County Superior Court
Superior Court No.: CV099053
Trial Judge: Hon. Mark H. Pierce
Attorney for Petitioner: Law Offices of Louis Spitters
Arlyne M. Diamond Laurence Louis Spitters
Attorneys for Real Parties in Interest: Edward F. Cullen
Casa Del Valle Homeowners
Association Law Offices of Charles L. Morrone
Charles L. Morrone
Amicus Curiae on behalf of Petitioner: Barbara A. Jones
AARP
Diamond v. Superior Court
H038734