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, Individually 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 judge 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 Zinner 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 for 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 Lewis-Heard for ALS Lien Services as 

Amicus Curiae on behalf of Plaintiff and Respondent.

* * *

INTRODUCTION

The Orange County Superior Court, after a decision by the appellate 

division (Huntington Continental Town House Assn., Inc. 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. The question is whether a homeowners association is required by the 

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

Davis-Stirling Act) to accept partial payments from an owner of a separate interest, who 

is delinquent in paying his or her assessments, after a lien has 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 appellate division of the superior court in 

Huntington Continental, and hold 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 development and 

must apply that payment in the order prescribed by statute. The obligation to accept 
3

partial payments continues after a lien has been recorded against an owner’s separate 

interest for collection of delinquent assessments. The remedies available 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.

FACTS AND PROCEDURAL HISTORY

Joseph A. Miner, as trustee of The JM Trust, Dated January 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 charges owners 

of separate interests regular assessments, which are due on the first day of each month. 

For nearly every month from 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 

board of directors adopted a resolution to record a lien against the Trust’s separate 

interest for the delinquent assessments. A lien in the amount of $4,827.81 was recorded 

on January 7, 2011. Of that amount, $4,136 was for unpaid assessments and the rest was 

for late charges, interest, collection costs, and a returned 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 was

not paid within 30 days. On January 25, 2011, HCTA’s board of directors 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 of 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 initiate foreclosure proceedings. The letter stated 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. 

On April 13, 2011, HCTA filed a limited jurisdiction complaint 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 assessments and other fees. According to the itemized statement, 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 which the Trust would make monthly payments of $1,500 to $2,000. He sent 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 was sent 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 and 

failure to make those payments or reinstate the plan within 10 days would lead to its 

cancellation. 

On several occasions, Miner requested a line-item accounting from the 

HCTA. On November 15 and December 12, 2011, Miner tendered the regular monthly 

assessments of $188. On December 16, Feldsott returned the checks on the ground it was 

“unable to accept partial payments.” Three days later, Feldsott provided Miner a 
5

statement of delinquent assessments and fees, according to which the total due was 

$6,418.47. 

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 HCTA provide the Trust with 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 account 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 superior court appellate division, in a unanimous opinion authored by 

Judge Griffin, reversed the judgment as to the third cause of action and reversed and 

remanded as to the first and second causes of action. (Huntington Continental, supra,

222 Cal.App.4th at pp. Supp. 17, 18.) The appellate division concluded the 

Davis-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 association 

may not seek 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 of 
6

unpaid assessments would have been less than $1,800. Therefore, the appellate division 

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 $3500 payment been 

applied to the account, the remaining balance would have been $760 and change.” Based 

on exhibits presented at trial, the appellate division 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 appellate 

division’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 $7,264.57 and payment of $3,000 from funds 

held in trust. 

DISCUSSION

I.

Standard of Review and

Principles of Statutory Interpretation

General standards of appellate review apply to appeals transferred from the 

superior court appellate division 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 

superior court, 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 

Legislature’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. (Ibid.) The statutory 
7

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, 582.) We read the statute 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.)

II.

Relevant Provisions of the Davis-Stirling Act

The Davis-Stirling Act is codified as part 5 of division 4 of the Civil Code. 

Articles 1, 2, and 3 of chapter 8 of part 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-Stirling 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 chapter 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, reasonable 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 section 5655 addresses allocation of payments against the debt. 

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 interest.” (Italics 

added.) This section does not state an association has the discretion to decline to follow 

the procedure set forth in the statute.

Under Civil Code section 5675, the 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 interest in the 

common interest development once the association causes to be recorded 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 an association 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 includes the information 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 ability 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 of a 

charge or sum levied by the association, the owner may pay the disputed amount, 

including collection costs, and, in addition to pursuing alternative dispute resolution, may 
9

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

subd. (a).)

Article 3 of chapter 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 recordation 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., § 5705, 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 significant to this case is Civil Code section 5720, which places 

limits on foreclosure. Relevant parts of section 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 and costs of collection, attorney’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 ways 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 liens 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 Partial 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 analysis 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 

interest.” 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 association to 

accept a partial payment?
11

On the first issue, the plain language of section 5655(a) unambiguously 

permits partial payments. The Davis-Stirling Act permits an association to impose late 

charges, reasonable fees and costs of collection, reasonable attorney 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, the 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, section 5655(a) 

states, “[a]ny payments made by the 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 word ‘may’ as permissive and the word ‘shall’ as mandatory, 

‘particularly’ when a single statute uses both terms.” (Tarrant Bell Property, LLC v. 

Superior Court (2011) 51 Cal.4th 538, 542.) In Diamond v. Superior Court (2013) 217 

Cal.App.4th 1172, 1189-1190, the court concluded the 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 language 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 article 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 manner 
12

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, 

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

contrary, 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 various 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 monthly 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 without 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 interest 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 asserts, “[t]he remedy is to pay all 
13

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 foreclose its lien.

B. Section 5720(b)

Section 5720(b) prohibits an association from foreclosing 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 delinquent 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 section 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 homes when they fail to pay relatively small 

assessments to their common interest development associations.’” (Id. at p. 1190.) “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 
14

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 

delinquent 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 owner is delinquent in paying assessments in an amount 

under $1,800.

We disagree with the assertion made by HCTA and the amici curiae 

appearing on its behalf that requiring an association to accept partial payments will 

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

assessments are both necessary to the functioning of an 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 Act. (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 

assessments 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 court

. . . .”; (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 association 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 of 
15

section 5720(b)(2) had been met, the lien itself is a powerful 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 amici curiae appearing on its behalf assert that requiring an

association to accept partial payments bringing the amount of delinquent assessments to 

less than $1,800 would permit delinquent owners to abuse the system by accepting the 

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 assessments 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 loss 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. Code, § 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 lien 
16

foreclosures, 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 foreclosures, 

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 section 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 Legislature intended for section 5655(a), requiring 

an association to accept partial payments, and section 5720(b), limiting foreclosure, to 

apply to both judicial and nonjudicial foreclosure and to prevail to the extent of any 

conflict with Civil Code section 2924c, 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 amici curiae appearing on its 

behalf assert the Trust is not a struggling homeowner but owns the home as an 

investment, and Miner made a calculated decision not to pay assessments. Amici curiae 

AARP, Housing and Economic Rights Advocates, and National Housing Law Project 

argue that “use of foreclosure as an enforcement tool on those having difficulty paying 

homeowner assessments can be both unjust and extremely damaging” and “[t]he 

consequences of foreclosure are particularly severe for older homeowners.” 

The code sections of the Davis-Stirling Act dealing with assessment 

payments, delinquency, and assessment collection (Civ. Code, §§ 5650-5740) use the 
17

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 assessments, 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 language 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 apply that payment first to assessments owed. That 

requirement continues after recordation of a lien pursuant to Civil Code sections 5673 

and 5675.

Accordingly, in this case, HCTA was required to accept the Trust’s check 

for $3,500 when tendered in December 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 delinquent at the time the Trust tendered the $3,500 check. 

Thus, under section 5720(b), HCTA could not pursue judicial foreclosure of the lien, and 

the trial court erred by issuing a decree of foreclosure.

The superior court appellate division’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 to address that 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).) 

DISPOSITION

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 appellant. The judgment of the trial court as to the first and second causes of 

action is reversed and the matter is remanded in accordance with the judgment of the 

appellate division of the superior court. Appellant shall recover costs incurred on appeal.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

THOMPSON, J.