Filed 10/14/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

HUNTINGTON CONTINENTAL TOWNHOUSE ASSOCIATION, INC., Plaintiff and Respondent,

v. JOSEPH A. MINER, Individ ually and as Trustee, etc. , Defendant and Appellant. G049624
(Super. Ct. No. 30

- 2011

- 00466754)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County,
Robert H. Gallivan, Judge. (Retired judg e of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded

.

Sam Walker for Defendant and Appellant.
Barbara Jones for AARP as Amicus Curiae on behalf of Defendant and Appellant.
Noah Zi nn er for Housing and Economic Rights Advocates as Amicus Curiae on behalf of Defendant and Appellant.2 Kent Qian for National Housing Law Project as Amicus Curiae on behalf of Defendant and Appellant.

Feldsott & Lee, Stanley Feldsott and Jacqueline Pagano f or Plaintiff and Respondent.
Law Offices of Tom Fier and Tom Fier as Amicus Curiae on behalf of Plaintiff and Respondent.

Larry Rothman & Associates and Larry Rothman as Amicus Curiae on behalf of Plaintiff and Respondent.

SwedelsonGottlieb and Joan Lew is

- Heard for ALS L ien Services as Amicus Curiae on behalf of Plaintiff and Respondent.
* * *
I NTRODUCTION
T he Orange County Superior Court , after a decision by the a ppellate
d ivision ( Huntington Continental Town House Assn., I nc. v. Miner (2014) 222 Cal.App.4th Supp. 13 ( Huntington Continental ) ) , certified this case for transfer to this

court pursuant to rule 8.1005(a)(1) of the California Rules of Court to address a single question . Th e question is whether a homeowners associ ation is required by the
Davis

- Stirling Common Interest Development Act (Civ. Code, § 4000 et seq.) ( the
Davis

- Stirling Act) to accept partial payments from a n owner of a separate interest , who is delinquent in paying his or he r assessments , after a lien h as been recorded against the
owner’s separate interest to secure payment of delinquent assessments and other charges.
We ordered the case transferred to this court for hearing and decision.

We agree with the decision of the a ppellate d ivision of the supe rior court in Huntington Continental , and h old that under Civil Code section 5655, subdivision (a) (section 5655(a)) , a homeowners association (an association) must accept a partial payment made by an owner of a separate interest in a common interest devel opment and must apply that payment in the order prescribed by statute . The obligation to accept3

partial payments continues after a lien has been recorded against an owner ’ s separate interest for collection of delinquent assessments

. The remedies availabl e to an association under Civil Code section 5720 depend upon the amount and the age of the balance of delinquent assessments following application of the partial payment.

F ACTS AND P ROCEDURAL H ISTORY Joseph A. Miner, as trustee of The JM Trust, D ated Ja nuary 1, 2005 (the Trust) , owns a separate interest in a common interest development subject to the management of the Huntington Continental Townhouse Association, Inc. ( HCTA) , which is an association within the meaning of Civil Code section 4080. 1 HCTA c harges owners of separate interests regular assessments, which are due on the first day of each month.

For nearly every month f rom 2003 to the beginning of 2009, Miner timely paid HCTA assessments for the Trust ’s separate interest . He failed to pay the assessment due on April 1, 2009, and , thereafter , the Trust was delinquent in paying assessments. On
October 13, 2010, HCTA sent a letter to the Trust , notifying it that assessments were delinquent in the amount of $3,864.96. Receiving no response to the letter, HCTA ’s
b oard of d irectors adopted a resolution to record a lien against the Trust ’s separate interest for the delinquent assessments. A lien in the amount o f $4,827.81 was recorded on January 7, 2011. Of that amount, $4,136 was for unpaid assess ments and the rest was for late charges, interest, collection costs, and a return ed check fee.

Four days after the lien was recorded, HCTA sent a notice to the Trust that the matter would be forwarded to legal counsel if the entire balance of the account w as not paid within 30 days. On January 25 , 2011, HCTA ’s b oard of d irectors adopted a
resolution to foreclose the delinquent assessment lien. Two months later, HCTA ’ s attorneys, Feldsott & Lee (Feldsott), sent a letter to the Trust , notifying it o f HCTA ’ s

1 “‘Association’ means a nonprofit corporation or unincorporated association created for the purpose of managing a common interest development.” (Civ. Code, § 4080.)4

intent to in itiate foreclosure proceedings. The letter state d the total amount of delinquency was $6,197.11 , of which $5,434.11 was for delinquent assessments and the

rest was for attorney fees, costs, release of lien fee, and “file set up” fees.

O n Ap ril 13, 2011 , HCTA fil e d a limited jurisdiction comp lain t against the
Trust and Miner , as trustee , asserting causes of action for account stated (first cause of action), open book account (second cause of action), and foreclosure of assessment lien (third cause of action)

. (Later, an amendment to the complaint named Miner as a defendant in his individual capacity

. ) Soon after the complaint was filed, Miner requested and received from Feldsott an itemized statement of the sums due for delinquent assessment s and other fees. According to the itemized sta tement, the total due as of May 2, 2011 was $8,012.58 , of which $5,923

. 58 was for delinquent assessments through May 31, 2011.

On May 6, 2011 , Miner sent an e

- mail to HCTA , proposing a payment plan
under wh ich the Trust would make monthly payments of $1,500 to $2,000

. He se nt a $2,000 check to HCTA , which accepted it

. Feldsott drafted a payment plan agreement calling for an initial payment of $2,000 followed by monthly payments of $1,500. The agreement wa s se nt to the Trust, but Miner never signed it. The Trust thereafter made

two payments totaling $1,500.

On October 17, 2011, Feldsott notified Miner that the Trust had failed to
make the September and October payments under the payment plan agreement an d failure to make those payments or reinstate the plan within 10 days would lead to its
cancellation. On several occasions, Miner request ed a line

- item accounting from the
HCTA. On November 15 and December 12, 2011, Miner tendered the regular monthly

as sessments of $188. On December 1 6, Feldsott returned the checks o n the ground it was “unable to accept partial payments.” Three days later, Feldsott provided Miner a5

statement of delinquent assessments and fees , a ccording to which the total due was $6,41 8.47.
Miner mailed a cashier ’ s check for $3,500 , dated December 29 , 2011 , to the
home address of the HCTA president

. On January 3, 2012, the HCTA president told
Miner he would have Feldsott apply the $3,500 payment to the Trust’s account and have
the HCT A provide the Trust wit h an updated accounting. In a letter dated January 5 , 2012, Feldsott informed Miner the $3,500 check was being returned because “[o]ur office is unable to accept partial payments without first establishing a payment plan approved by the Board of Directors.” This letter included an account statement reflecting a total of $9,226.13 in charges, $3,568 in payments (not including the returned check for $3,500) , and a balance of $ 5,658.13. On February 15, 2012 , Feldsott sent a new accoun t statement showing a total due of $6,837.68

.

After a bench trial, the trial court found the Trust owed HCTA $5,715.39 as of September 2012, and HCTA had complied with the relevant statutory requirements to foreclose its lien. The judgment awarded HCTA damages of $5 , 715. 93 on the first and
second causes of action and ordered foreclosure of its lien under the third cause of action

. The Trust and Miner timely filed a notice of appeal.

The s uperior c ourt a ppel late d ivision, in a unanimous opinion authore d by Judge Griffin, reversed the judgment as to the third cause of action and reversed and
remand ed as to the first and second causes of action. ( Huntington Continental , supra , 222 Cal.App.4th at pp. Supp. 17, 18.) The a ppellate d ivision concluded the
Da vis

- Stirling Act compelled HCTA to accept the $3,500 check even though it constituted a partial payment of the total amount owed on the account. ( Huntington
Continental , supra , at pp. Supp. 15, 17.) Under the Davis

- Stirling Act, an a ssociation may not se ek to collect through judicial or nonjudicial foreclosure delinquent assessments in an amount less than $1, 800. (Civ. Code, § 5720, subd. (b) (section 5720(b) .) If HCTA had accepted the $3,500 check when tendered in December 2011, the total amount of6

unp aid assessments would have been less than $1,800

. Therefore, the a ppellate d ivision held HCTA could not pursue foreclosure of the assessment lien. ( Huntington
Continental , supra , at p. Supp. 17.)

At trial, HCTA ’s counsel had conceded that “had that $35 00 payment been applied to the account, the remaining balance would have been $760 and change.” Based on exhibits presented at trial, the a ppellate d ivision of the superior court prepared an accounting of assessments only. ( Huntington Continental , supra , 222 Cal.App.4th at
p. Supp. 16, fn. 1.) According to that accounting, attached as an appendix to the a ppellate
d ivision’s opinion, as of December 1, 2011, the total amount of unpaid assessments was $2,704 and as of September 1, 2012, the total amount of unpaid assessments was $4,441. ( Id. at pp. Supp. 19, 20.) Feldsott’s statement of account , dated December 19, 2011 , showed total delinquent assessments of $7,2 6 4.57 and payment of $3,000 from funds
held in trust.
D ISCUSSION I. Standard of Review and Pr inciples of Statutory Interpretation General standards of appellate review apply to appeals transferred from the

s uperior c ourt a ppellate d ivision for decision in the Court of Appeal. ( People v. Disandro (2010) 186 Cal.App.4th 593, 599.) In resolving the issue certified to this court by the

s uperior c ourt, we must interpret provisions of the Davis

- Stirling Act. We review issues of statutory interpretation de novo. ( Kavanaugh v. West Sonoma County Union High
School Dist . (2003) 29 Cal.4th 911, 916 .)

The fundamental task of statutory interpretation is to ascertain the
Le gislature’s intent to effectuate the statute’s purpose. ( Smith v. Superior Court (2006) 39 Cal.4th 77, 83.) In ascertaining the Legislature’s intent, we first consider the language of the statute itself, giving the words used their ordinary meaning. ( Ib id. ) The statutory7

language must be construed in the context of the statute as a whole and the overall statutory scheme, giving significance to every word, phrase, sentence, and part of the

statute . ( Ibid. )

If the statutory language is unambiguous, the plain meaning controls and consideration of extrinsic sources to determine the Legislature’s intent is unnecessary. ( Kavanaugh v. West Sonoma County Union High School Dist. , supra , 29 Cal.4th at
p. 919.) “When the words are susceptible to more than one reasonable interpretation, we consider a variety of extrinsic aids, including the statutory context and the circumstances of the statute’s enactment, in determining legislative intent.” ( Levy v. Superior Court (1995) 10 Cal.4th 578, 58 2 .) We read the sta tute as a whole to harmonize and give effect to all parts. ( Ste. Marie v. Riverside County Regional Park & Open

- Space Dist. (2009)
46 Cal.4th 282 , 289 .)
I I.

Relevant Provisions of the Davis

- Stirling Act
The Davis

- Stirling Act is codified as p art 5 of d ivi sion 4 of the Civil Code.
Articles 1, 2, and 3 of c hapter 8 of p art 5 of division 4 of the Civil Code (Civ

. Code , §§ 5650

- 5740) set forth comprehensive rules, restrictions , and procedures for imposing, paying, collecting, and enforcing regular and special assessments.

The Davis

- Stirl ing Act requires an association to levy regular and special assessments “sufficient to perform its obligations under the governing documents and this act.” (Civ. Code, § 5600, subd. (a).) Article 2 of c hapter 8 of part 5 of division 4 of the
Civil Code addresses payment and delinquency in payment of assessments. Civil Code
section 5650, subdivision (a) (section 5650(a)) states: “A regular or special assessment and any late charges, reasonable fees and costs of collection, r easonable attorney ’s fees, if any, and interest, if any, as determined in accordance with subdivision (b), shall be a debt of the owner of the separate interest at the time the assessment or other sums are levied.”8 Civil Code s ection 5655 addresses alloc ation of payments against the debt.
S ection 5655 (a) states: “ Any payments made by the owner of a separate interest toward a
debt described in subdivision (a) of Section 5650 shall first be applied to the assessments owed, and, only after the assessments owed are paid in full shall the payments be applied to the fees and costs of collection, attorney ’ s fees, late charges, or interest. ” (Italics added.) This section does not state an association has the discretion to decline to follow the procedure set fo rth in the statute.

Under Civil Code section 5675, t he amount of the assessment, “ plus any costs of collection, late charges, and interest assessed in accordance with subdivision (b)
of Section 5650 , ” becomes a lien on the owner of record’ s separate intere st in the common interest development once the association causes to be record ed a notice of delinquent assessment setting forth certain required information (Civ. Code, § 5675,
subd. (a)), together with an itemized statement of charges ( id. , § 5675, subd. (b))

. The
board of a n associa t ion may, by majority vote in an open meeting, decide to record a lien for delinquent assessments. ( Id. , § 5673

. )

Before recording the lien, an association must provide the owner of record
notice that includ es the informat ion set forth in subdivisions (a) through (f) of Civil Code
section 5660, including the right to request a meeting with the board to request a payment plan under Civil Code section 5665. (Civ. Code, § 5660.) Payment plans do not impede an association’s a

bility to record a lien on the owner’s separate interest ( id. , § 5665,
subd. (d)), and , “[i]n the event of a default on any payment plan, the association may resume its efforts to collect the delinquent assessments from the time prior to entering
into the payment plan” ( id. , § 5665, subd. (e)).

If an association and an owner of a separate interest dispute the validity o f a charge or sum levied by the association, the owner m ay pay the disputed amount , including collection costs, and, in addition to pursuing alternative dispute resolution, may9

commence a small claims action to recoup the disputed amount paid. (Civ. Code, § 5658,
subd

. (a) .)
Article 3 of c hapter 8 of part 5 of division 4 of the Civil Code concerns collection of assessments and enforcement of liens. Under Civil Code section 5700,
subdivision (a), a lien created by Civil Code section 5675 may be enforced “in any manner permitted by law,” including judicial or nonjudicial foreclosure, after the expiration of 30 days following the record ation of the lien. (Civ. Code, § 5700,
subd. (a).) The decision to initiate foreclosure of a lien for delinquent assessments must be made by a majority vote of the board of directors of an association in an executive
session ( id. , § 5705, subd. (c)) , and must be preceded by an offer to the owner to participate in dispute resolution ( id. , § 570 5 , subd. ( b ))

.

In the event an association’s board decides to pursue nonjudicial foreclosure, “[a] ny sale by the trustee shall be conducted in accordance with
Sections 2924, 2924b, and 2924c applicable to the exercise of powers of sale in mortgages and deeds of trust. ” (Civ. Code, § 5710, subd. (a).)

Particularly s ignificant to this case is Civil Code section 5720, which places
limits on foreclosure. Relevant parts of s ecti on 5720(b) state: “ An association that seeks to collect delinquent regular or special assessments of an amount less than one thousand eight hundred dollars ($1,800), not including any accelerated assessments, late charges,
fees an d costs of collection, at torney’ s fees, or interest, may not collect that debt through judicial or nonjudicial foreclosure, but may attempt to collect or secure that debt in any of the following ways

. . . . ”

Section 5720(b) identifies three way s to collect or secure delinquent assessments in an amount less than $1,800. The first is “a civil action in small claims

court

. . . .” (§ 5720(b)(1).) The second is “[b] y recording a lien on the owner ’ s separate interest upon which the association may not foreclose until the amount of the delinquent assessments secured by the lien, exclusive of any accelerated assessments, late charges,10

fees and costs of collection, attorney ’ s fees, or interest, equals or exceeds one thousand eight hundred dollars ($1,800) or the assessments secured by the lien are more than 12 months delinquent. ” (§ 5720(b)(2).) The third is “[a] ny other manner provided by law, except for judicial or nonjudicial foreclosure. ” (§ 5720(b)( 3 ).)

The limitation on foreclosure of assessment lie n s for amounts under $1,800 does not apply to “[a]ssessments secured by a lien that are more than 12 months delinquent.” (Civ. Code, § 5720, subd. (c)(1).) (HCTA does not contend the assessments secured by its lien were more than 12 months delinquent at the time the Trust tendered the $3,500 check.)
III

.

An Association Must Accept a Part ial Payment Made by an Owner of a Separate Interest After a Lien

Has Been Recorded.
Two statutes within the Davis

- Stirling Act, section 5655(a) and Civil Code
section 5720, are the focus of our analy sis and central to our holding an association must accept a partial payment. Another, Civil Code section 5710 , also warrants additional
discussion.
A. Section 5655(a)

Section 5655(a) states: “ Any payments made by the owner of a separate
interest toward a debt described in subdivision (a) of Section 5650 shall first be applied to the assessments owed, and, only after the assessments owed are paid in full shall the payments be applied to the fees and costs of collection, attorney ’ s fees, late charges, or
i nterest. ” Two issues arise in interpreting section 5655(a). First, does it permit an owner to make a partial payment , that is, a payment which does not cover the owner’s entire
debt under section 5650(a) ? Second, does section 5655(a) require an associat ion to accept a partial payment ?11 On the first issue, the plain language of section 5655(a) unambiguous ly permits partial payments. The Davis

- Stirling Act permits an association to impose late charges, reasonable fees and costs of collection, reasonable a ttorney fees, if any, and interest on delinquent assessments. (§ 5650(a).) By creating an order of allocation,
section 5655 (a), in effect , recognizes a payment might not cover the full amount of the delinquency and other charges.

On the second issue, t he plain language of section 5655(a) requires an association to accept an owner’s partial payment. Section 5655(a) does not refer to any payment made by the owner and accepted by an association

. Instead, s ection 5655(a)

states , “[a]ny payments made by th e owner” toward a debt described in section 5650(a)

“ shall ” (italics added) be applied in the order set forth. Use of the word “ shall ” connotes a mandatory act. “ Under ‘ well

- settled principle[s] of statutory construction, ’ we

‘ ordinarily ’ construe the wo rd ‘ may ’ as permissive and the word ‘ shall ’ as mandatory ,

‘ particularly ’ when a single statute uses both term s.” ( Tarrant Bell Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542 .) In Diamond v. Superior Court (2013) 217 Cal.App.4th 1172, 1189

- 119 0, the court conclude d th e word “shall” in the Davis

- Stirling Act, Civil Code former section 1367.1 , subdivision (d), created a mandatory obligation to

serve an owner of a separate interest with notice of delinquent assessment. Under the statutory languag e of section 5655(a) , if an owner of a separate interest makes any payment, the association cannot reject it, but is required to (“shall”) apply that payment to
the debt in the statutory order of allocation. Quite simply, an association does not have
the discretion to refuse to follow the statute’s mandate.

Nothing in the Davis

- Stirling Act provides that the rights and duties under
section 5655(a) end when an association takes action to record a lien. Although
section 5655(a) is in a rticle 2 of chapter 8 of part 5 of division 4 of the Civil Code, entitled “Assessment Payment and Delinquency,” and not in article 3, entitled “Assessment Collection,” the headings in the Davis

- Stirling Act “do not in any manner12

affect the scope, meaning, or intent of this act” (Civ. Code, § 4005)

. In the order of allocation, section 5655 (a) includes “costs of collection” and “attorney fees,” thereby recognizing an owner can make a partial payment after an association has commenced measures, such as recording a lien, to collect the delinquency.

HCTA argues partial payments under section 5655(a) are permitted only when made pursuant to a payment plan under Civil Code section 5665. By its terms,

s ection 5655(a) is not limited to payments made pursuant to a payment plan. To the

c ontrary, section 5655(a) refers to payments “toward a debt described in subdivision (a)
of Section 5650,” which describes a debt as “[a] regular or special assessment and any late charges, reasonable fees and costs of collection, reasonable attorney ’s fees , if any, and interest, if any” (§ 5650(a)). In a similar vein, HCTA asserts , “[i]f an association were required to accept partial payments at the whim of a delinquent homeowner, then
there would be no reason for the [Davis

- Stirling] Act to include variou s provisions relating to payment plans.” There are very good reasons for payment plans under
section 5665(a) , notwithstanding an association’s obligation to accept partial payments

. To the owner of a separate interest , a payment plan might reduce the mon thly assessment obligation to an affordable amount, thereby avoiding further delinquency, reducing or eliminating late fees, and preventing the amount secured by the lien from increasing. To

an association, the payment plan provides an income stream witho ut having to undertake collection procedures.

HCTA argues that permitting partial payments under section 5655(a) would
be inconsistent with Civil Code section 5658, subdivision (a), which provides , “[i]f a dispute exists between the owner of a separate in terest and the association regarding any disputed charge or sum levied by the association

. . . , the owner of the separate interest may, in addition to pursuing dispute resolution .

. . , pay under protest the disputed
amount and all other amounts levied

. . . , and commence an action in small claims court.” If the owner disputes a charge, HCTA a sserts , “[t]he remedy is to pay all13

amounts in full, under protest, and to file a small claims suit or otherwise pursue resolution of the disputed sums.” Section 5658, subdivision (a) applies only when an owner disputes the validity or amount of a charge or sum, which is different from just not paying it. The Trust is not disputing any of the assessments or fees and, by not invoking the procedure of section 5658, subdivision (a), has forfeited any such claim. In other words, the Trust is not disputing it owes the assessments levied, but contends its tender of $3,500 reduced the balance of assessments owed to an amount lower than the threshold
for HCTA to foreclos e its lien.
B. Section 5720(b)

Section 5720(b) prohibits an association from foreclos ing a lien when the amount of delinquent assessments alone is less than $1,800. In this case, if HCTA had accepted the Trust’s check for $3,500
, then the amount of delin quent assessments would
have been less than $1,800 and, under section 5720(b), HCTA would not have been able to pursue foreclosure to collect the debt.

Civil code s ection 5720 was added by statute in 2005 as Civil Code former
section 1367.4 . ( Diamond v. Superior Court , supra , 217 Cal.App.4th at p. 1190.) The purpose of former section 1367.4 was to protect the interest of an owner who has failed to timely pay an assessment levied by an association. ( Diamond v. Superior Court , supra , at pp

. 1190

- 1191.) “ In 2005, the Senate Judiciary Committee’s bill analysis stated: ‘This bill protects owners’ equity in their home s when they fail to pay relatively small assessments to their common interest development associations.’” ( Id

. at p. 1190.) “ The Assembly Com mittee 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 relatively14

small assessments imposed by their common interest development

. . . association. ’” ( Ibid. ) Requiring an association to accept a partial payment reducing the amount of delinquent assessments to less than $1,800 is consistent with this stated legislative policy of protecting owners from losing their home equity over small amounts of
delin quent assessments. Permitting an association to reject a partial payment could lead

to the very situation the Legislature sought to avoid: foreclosure and loss of the owner’s equity in the home when the o wner is delinquent in paying assessments in an amo unt under $1,800. We disagree with the assertion made by HCTA and the a mici c uriae appearing on its behalf that requiring an association to accept partial payments will

“ seriously impede” an association’s ability to collect assessments. We recognize

asses sments are both necessary to the functioning of a n association and required by the
Davis

- Stirling Act to be in an amount sufficient to perform an association ’s obligations under the governing documents and the Davis

- Stirling A ct. (Civ. Code, § 5600,
subd. (a); see Park Place Estates Homeowners Assn

. v. Naber (1994) 29 Cal.App.4th 427, 431

- 432 [associations “ must assess fees on the individual owners in order to maintain the complexes”].)

An association has remedies , however, when the amount of delinquent

a ssessments falls below $1,800. Section 5720(b) identifies three ways to collect or secure delinquent assessments in an amount less than $1,800 as well as to collect additional fees, collection costs, and interest : (1) “a civil action in small claims cour t

. . . .” ; (2) “ recording a lien on the owner ’ s separate interest

. . . . ” ; and (3) “[a] ny other manner provided by law, except for judicial or nonjudicial foreclosure. ” (§ 5720(b)(1), (2) & ( 3 ).) Thus, in the situation presented by this case, an associ ation would be able to
maintain a lien on the owner’s separate interest and could pursue a small claims action to recover the debt. Although the lien could not be foreclosed until the conditions of15

section 5720(b)(2) had been met, the lien itself is a pow erful coercion mechanism; for instance, the lien would have to be satisfied to permit the sale of the home. Further, an association may foreclose a lien securing assessments in any amount that are more than 12 months delinquent. (Civ. Code, § 5720, subd. (c)(1)

. )

HCTA and the a mici c uriae appearing on its behalf assert that requiring an association to accept partial payments bringing the amount of delinquent assessment s to less than $1,800 would permit delinquent owners to abuse the system by accept ing t he benefits of living in a common interest development at the expense of the other owners. It is possible for a situation to arise in which a clever and unscrupulous owner would be able to dodge foreclosure of a lien by making partial payments designed to bring the delinquent assessment s under $1,800 in amount and less than 12 months in age. As we
read the Davis

- Stirling Act, the Legislature engaged in a balancing process and chose to accept that risk in order to protect owners from foreclosure and the lo ss of equity in their homes when the delinquent assessments are under $1,800 or less than 12 months delinquent. And, as we have explained, section 5720(b) grants an association various
remedies to collect the debt.
C. Civil Code Section 5710

In the event the board of an association decides to pursue nonjudicial foreclosure, “[a] ny sale by the trustee shall be conducted in accordance with
Sections 2924, 2924b, and 2924c applicable to the exercise of powers of sale in mortgages and deeds of trust. ” (Civ. C ode, § 5710, subd. (a).) Under Civil Code
section 2924c, subdivision (a)(1), the trustor or mortgagor may reinstate a loan once foreclosure proceedings have begun by paying the entire amount due

— including principal, interest, taxes, assessments, and costs incurred in enforcing the obligation

— at any time before entry of the decree of foreclosure.

HCTA argues, based on Civil Code section 5710, subdivision (a), that Civil
Code section 2924c, subdivision (a)(1) applies to nonjudicial assessment lien16

foreclos ures, requires payment in full to forestall foreclosure, and permits an association to decline partial payments after foreclosure has been initiated. Further, HCTA argues, an association’s right to decline partial payments must extend to judicial foreclos ures, otherwise, as an unintended consequence, “[a]ssociations wishing to recover the fees and costs incurred in foreclosure would turn to private sale, which would undermine the objectives of the [Davis

- Stirling] Act as well as the public interest served by promoting judicial foreclosures.”

Civil Code s ection 5710, subdivision (a) states, in plain language, that “[a]ny sale by the trustee ” (italics added) shall be conducted in accordance with the Civil Code sections applicable to the exercise of powers of sale in mortgages and deed of trust. In this case, HCTA pursued judicial foreclosure. The unintended consequence foretold by HCTA suggests not that the Legislature intended for an association to be able to decline partial payments. Instead, the Legisla ture intended for section 5655(a), requiring an association to accept partial payments, and section 5720(b), limiting foreclosure, to appl y to both judicial and nonjudicial foreclosure and to prevail to the extent of any
conflict with Civil Code section 29 24c, subdivision (a)(1).
D. Policy Arguments

The parties and, in particular, the amici curiae raise policy considerations that are not based on statutory language. HCTA and the a mici c uriae appearing on its behalf assert the Trust is not a struggling hom eowner but owns the home as an investment, and Miner made a calculated decision not to pay assessments. Amici c uriae AARP, Housing and Economic Rights Advocates, and National Housing Law Project argue that “use of foreclosure as an enforcement tool on tho se having difficulty paying homeowner assessments can be both unjust and extremely damaging” and “ [ t ] he consequences of foreclosure are particularly severe for older homeowners.”

T he code sections of the Davis

- Stirling Act dealing with assessment payments , delinquency , and assessment collection (Civ

. Code , §§ 5650

- 5740) use the17

word “owner” or the term “owner of a separate interest” and do not distinguish between owners who occupy their separate interests and owners who do not . Nor do those code
sections make any distinctions in treatment based on an owner’s age or wealth

. Foreclosure of a lien is recognized by the Davis

- Stirling Act as a legitimate means by which an association may seek to collect delinquent assessment s , fees, charges, collection
costs, and interest. The issues presented to us are a matter of statutory interpretation, and our task has been only to discern the Legislature’s intent through application of accepted principles of statutory construction.
IV.
Conclusion After considering the la nguage of section 5655(a) and its context within the
Davis

- Stirling Act, we conclude an association must accept a partial payment made by an owner of a separate interest in a common interest development toward a debt described in
section 5650(a) and must a pply that payment first to assessments owed. That requirement continues after recordation of a lien pursuant to Civil Code section s 5673
and 5675. Accordingly, in this case, HCTA was required to accept the Trust’s check for $3,500 when tendered in Decembe r 2011. Had HCTA accepted the check and applied
it in the order prescribed by section 5655(a) , the amount of delinquent assessments would have been less than $1,800. HCTA does not contend the assessments secured by its lien
were more than 12 months delin quent at the time the Trust tendered the $3,500 check. Thus, under section 5720(b), HCTA could not pursue judicial foreclos ur e of the lien, and the trial court erred by issuing a decree of foreclosure.

The superior court a ppellate d ivision’s opinion also addressed the sufficiency of the evidence to support the damages awarded under the first and second
causes of action. ( Huntington Continental , supra , 222 Cal.App.4th at p. Supp. 17.) The
matter was not certified and transferred to this court t o address t hat issue and, therefore,18

we decline to do so , and decline to address any other issues raised in the appellate briefs

. (See Cal. Rules of Court , rule 8.1012(e).)

D ISPOSITION The judgment of the trial court is reversed as to the third cause of action
and the matter is remanded with directions to enter judgment on that cause of action in
favor of a ppellant . The judgment of the trial c ourt as to the first and second causes of
action is reversed and the matter is remanded in accordance with the judgment of the

a ppellate d ivision of the s uperior c ourt. Appellant shall recover costs incurred on appeal.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

THOMPSON, J.