Judge: Layne H. Melzer, Case: 2022-01257983, Date: 2022-11-03 Tentative Ruling
Petitioner Harbor Lofts Community Association
Motion - Other (Petition for Publication of Notice of Default and Vote to Foreclose)
Before the court is Petitioner Harbor Lofts Community Association’s Petition for publication of the Board's intent to foreclose on Respondents Daniel H. Kim and Christine J. Kim’s property for failure to pay Association dues since at least April of 2017.
Respondents own the real property located at 435 W. Center Street Promenade, Unit 326, Anaheim, California, 92805, subject to the CC&Rs. (Gillet Decl., Ex. 1, Grant Deed.)
The court issued an Order in this matter on October 25, 2022 asking for proof of the Pre-Lien letter and notice of the lien. (ROA 20.)
Petitioner has now filed all of the document as requested.
Thus, the Petition is granted.
The first step in a residential common interest development's association imposing a lien upon the lot or unit to collect a past due assessment under Civil Code § 5675 and Civ. Code § 5660 is to mail to the delinquent owner by certified mail, a written pre-lien statement at least 30 days prior to recording a lien that sets forth the information as stated in the statute. (Civil Code § 5660.)
Petitioner now provides evidence that it notified the Respondents via a pre-lien letter served by certified mail. The pre-lien letter meets all of the requirements delineated in Civil Code §§ 5660(a) through (f) and 5670. (See ROA 25, Lewis-Heard Decl., Ex. 1.)
On March 19, 2020, a Notice of Delinquent Assessment (Lien) was recorded on the Property in the amount of $23,865.42, with the assessments alone totaling $16,856.42. (Lewis-Heard Decl., Ex. 2.) As of April 21, 2022 when this Petition was filed, the amount of assessments owing totals $25,499.64. (See also Gillet Decl., Ex. 5.)
Petitioner also now provides evidence to show that within 10 days of the recordation of the lien, on March 20, 2020, it mailed notice to all owners of the owner's interest in the common interest development as shown in the association's records pursuant to Civ. Code §§ 5675(e), 6814(e). (Lewis-Heard Decl., Ex. 3.)
On July 16, 2021, Petitioner recorded a Notice of Default and Election to Sell. (Gillet Decl., Ex. 3.)
The Board met on September 6, 2021 to authorize and initiate foreclosure. (Gillet Decl., Ex. 4.)
Service by Publication
Civil Code Section 5705(d) provides, in relevant part:
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) 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 or to the owner's legal representative, if the board votes to foreclose upon the separate interest. The board shall provide written notice to an owner of a separate interest who does not occupy the separate interest by first class mail, postage prepaid, and at the most current address shown on the books of the association. In the absence of written notification by the owner to the association, the address of the owner's separate interest may be treated as the owner's mailing address.
(Emphasis added).
Code of Civil Procedure Section 415.50 states in relevant part:
(a) A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either:
(1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.
(2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.
(b) The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served. If the party to be served resides or is located out of this state, the court may also order the summons to be published in a named newspaper outside this state that is most likely to give actual notice to that party. The order shall direct that a copy of the summons, the complaint, and the order for publication be forthwith mailed to the party if his or her address is ascertained before expiration of the time prescribed for publication of the summons. Except as otherwise provided by statute, the publication shall be made as provided by Section 6064 of the Government Code unless the court, in its discretion, orders publication for a longer period.
Here, the efforts made to personally serve Respondents are extensive. There are over 31 attempts made on different dates at three other locations that were identified various databases based on testimony of a private investigator. There were 9 attempts made at the Subject Property, with a surveillance unit deployed from 12 pm to 5 pm and 4 evening attempts at service made and no answer. (See Frias Decl.)
Thus, the Petition is now granted. In addition to publication, the Notice shall be mailed to Respondent at the subject property.