Diamond v. Superior Court



















Filed 6/18/13 Diamond v. Superior Court CA6



















>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




>

ARLYNE M. DIAMOND, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; CASA DEL VALLE HOMEOWNERS ASSOCIATION, Real Party in Interest.

H038734 (Santa Clara County Super. Ct. No. CV099053)

>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 href="http://www.fearnotlaw.com/">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.href="#_ftn1" name="_ftnref1" title="">[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.

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 [>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.

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 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 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 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 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 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, condominium projects, planned
developments and stock cooperatives ([§] 1351, subd. (c)).^{[href="#_ftn2" name="_ftnref2" title="">[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. name="sp_4041_301"> name="citeas((Cite_as:_196_Cal.App.4th_290,_*3">([§] 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).)”href="#_ftn3" name="_ftnref3" title="">[3] (Diamond
Heights, supra, 196 Cal.App.4th
at p. 301.)

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 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 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 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 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 href="http://www.fearnotlaw.com/">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 name="citeas((Cite_as:_39_Cal.4th_77,_*83,_137">purpose.” ’ [Citation.]
In other words, ‘ “we do not construe statutes in 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 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 name="SR;5484">‘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 href="http://www.mcmillanlaw.com/">delinquent assessment by certified mail
within 10 calendar days after the recordation, and that substantial compliance
is insufficient.

“Nonetheless,
in construing name="sp_661_86">name="citeas((Cite_as:_10_Cal.4th_1133,_*1143,">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.)

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 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 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 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 “name="SDU_368"> ‘a lien which is the creature of statute can be name="sp_660_206">name="citeas((Cite_as:_117_Cal._364,_*368,_49_">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 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. 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
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 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)^{[href="#_ftn4" name="_ftnref4" title="">[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 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 [name=B22018865938>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 (§ 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.











___________________________________________

Bamattre-Manoukian, J.













WE CONCUR:













__________________________

PREMO,
ACTING P.J.













__________________________

GROVER, J.