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Court of Appeal, Second District, Division 5, California.

MARINA POINT, LTD., Plaintiff and Respondent, v. Stephen WOLFSON and Lois Wolfson, Defendants and Appellants.

Civ. 55216.

Decided: September 26, 1979

Richard F. Hamlin, Marina Del Rey, for plaintiff and respondent. Goller, Gillin, Gottesman & Menes and Eugene C. Gratz, Los Angeles, for defendants and appellants. David E. Frank and Fred Okrand, Los Angeles, for ACLU Foundation of Southern California, amici curiae. Evelle J. Younger, Atty. Gen., Warren J. Abbott, Asst. Atty. Gen., Los Angeles, Carole A.R. Kornblum, Deputy Atty. Gen., San Francisco, David S. Chaney, Deputy Atty. Gen., Los Angeles, for Division of Fair Employment Practices, amici curiae. Eugene Roy Salmonsen, Jr., Santa Monica, for Fair Housing for Children Coalition, amici curiae. Richard L. Friedman, Santa Ana, for Orange County Fair Housing Council, amici curiae.

This is an unlawful detainer action which poses issues respecting a landlord's right to refuse to rent to a family with children or to refuse to renew the lease of a tenant to whom a child is born during the term of a tenancy.   The matter is before us on transfer from the appellate department of the superior court pursuant to rule 62(a) of the California Rules of Court.


Plaintiff, Marina Point, Ltd., is a privately owned apartment complex, built on land which is owned by and leased from the County of Los Angeles.   Defendants, Stephen and Lois Wolfson, first leased an apartment from plaintiff on February 1, 1974.   Although plaintiff's rental policy at that time was to accept families with children, the printed form lease which defendants signed provided that no minors under the age of 18 could reside in the leased premises without the prior written consent of the lessor.   Defendants then had no children.

In October 1974, plaintiff altered its rental policy to exclude families with children.   There were then perhaps 66 families with children living in Marina Point, Ltd.1  A decision was made to allow those children already in Marina Point to remain there, but not to rent to new families with children, nor to pregnant women.2

On February 1, 1975, defendants renewed their lease.   The new lease contained the same clause with respect to children as was contained in the original lease.   On September 25, 1975, a son, Adam, was born to defendants.   On February 1, 1976, defendants renewed their lease for another year.   The lease again forbade use of the premises by children absent prior consent by the lessor.   There was no reference to Adam in the lease.

 In November 1976, Pat Willard, plaintiff's manager, met Lois Wolfson and Adam in the hallway outside defendants' apartment.   Ms. Willard asked if Adam lived there.   Lois said that he was just visiting.3  On November 30, 1976, defendants were notified that their lease, due to expire January 31, 1977, would not be renewed.   Inquiries disclosed that plaintiff's sole reason for refusing to renew the lease was Adam's presence on the premises.   Negotiations between plaintiff and defendants resulted in defendants' being given a three month extension on their lease.   The lease extension, which again contained the same proviso against children as had the earlier ones, specified that the premises would be occupied by defendants and their infant son.   On April 11, 1977, Stephen wrote Ms. Willard that he and his wife were having difficulty finding other housing and requested an additional month's extension of the lease.   By letter dated April 18, 1977, Ms. Willard advised defendants that a one month's extension had been granted and that they were expected to vacate their apartment no later than May 31, 1977.   When defendants failed to vacate the premises at the conclusion of the extended lease period, plaintiff filed the present unlawful detainer action.   By way of affirmative defense, the Wolfsons contended that landlords are constitutionally and statutorily prohibited from discriminating against children.   This issue, bearing directly on the right to immediate possession of the premises, was a proper defense to the unlawful detainer action.  (Green v. Superior Court, 10 Cal.3d 616, 634, 111 Cal.Rptr. 704, 517 P.2d 1168;  see also, Abstract Investment Co. v. Hutchinson, 204 Cal.App.2d 242, 22 Cal.Rptr. 309.)

Evidence was introduced at trial concerning plaintiff's decision to exclude children from their premises and concerning Adam's behavior.   Ms. Willard testified that plaintiff had no special facilities suitable for use by children and no suitable place for them to play.   She further testified as to plaintiff's experiences in renting to children which caused plaintiff to decide to exclude them.   She cited various incidents which ranged from children who had been locked out of their apartments soliciting snacks from plaintiff's office staff, to acts of arson, and included roller skating and batting practice in hallways and skateboarding in garages.   Expert evidence was adduced that children generally cause more wear and tear on property than do adults, thereby causing increased maintenance costs for landlords who rent to families with children.

Plaintiff presented no evidence that Adam engaged in annoying or disruptive behavior or that he had damaged plaintiff's property in any way.   Defendants presented testimony from their upstairs and adjacent neighbors that Adam's presence was not annoying to them.4  Although it made no formal finding of fact on the subject, during trial the court stated that it was satisfied, from the evidence presented, that Adam had created no problem on the premises.


The court's formal findings of fact included the following:  The land comprising the area known as Marina del Rey is owned by the County of Los Angeles, which originally acquired it in whole or in part through its powers of eminent domain for the purpose of constructing a small craft harbor.   Rental of parcels of land to lessees such as plaintiff is ancillary to the county's primary purpose.   Although plaintiff leases the land on which its apartment stands from the county, the premises were constructed and are maintained without any form of government assistance or subsidy.   No state action was or is involved in construction, maintenance or operation of plaintiff or in establishment of its rental practices.5  Families with children have a harder time finding housing than families without children, but there are apartments available which do rent to children.   Children in an apartment complex cause more damage to apartments and landscaping than do adults;  children are noisier, more boisterous and more disruptive to other tenants than adults and they cause higher maintenance costs than adults.   Plaintiff's facilities are designed for adults, not children, and pose dangers to children not accompanied by adults.6  Plaintiff's exclusion of children is rationally related to the lack of facilities for children and to the noise and damage caused by children, and proceeds from a reasonable economic motive.


The trial court's conclusions of law included the following:  Defendants were unlawfully detaining plaintiff's premises;  plaintiff's refusal to rent to defendants did not violate the Due Process or Equal Protection clauses of the United States or California Constitutions;  plaintiff's refusal to rent to defendants did not violate the Unruh Act (Civil Code, §§ 51, 52) or the Rumford Fair Housing Act 7 (Health & Saf.Code, §§ 35700–35745).

A judgment was entered awarding plaintiff possession of the premises, damages for the period for which defendants held over the premises, costs and attorneys' fees.   Defendants appealed.


We consider first the question of whether a landlord's refusal to rent to families with children violates either the Unruh Civil Rights Act or the Fair Housing Law.   Because of the emotional nature of the issue and the publicity which this case has already garnered, we deem it advisable to stress that in addressing these particular questions we are concerned not with what the Legislature can do, nor with what it should do, but solely with what it has done.

Discrimination against children is not expressly prohibited by either the Unruh Civil Rights Act 8 or the Fair Housing Law.9  This obvious fact does not end our inquiry, however, as we must look not merely to the language of these statutes, but to their history and to earlier judicial constructions of the extent of their coverage to resolve the issue before us.   (In re Cox, 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992.)


California first enacted a civil rights act in 1897.   It provided:  “That all citizens within the jurisdiction of this State shall be entitled to the full and equal accommodations, advantages, facilities, and privileges of inns, restaurants, hotels, eating-houses, barber-shops, bath-houses, theaters, skating-rinks, and all other places of public accommodation or amusement, subject only to the conditions and limitations established by law and applicable alike to all citizens.”  (Stats.1897, ch. 108, p. 137, § 1.)   This statute codified a duty of nondiscrimination which the common law imposed upon certain businesses “affected with a public interest.”  (In re Cox, supra, 3 Cal.3d 205, 212, 90 Cal.Rptr. 24, 474 P.2d 992.)   The 1897 statute and the amendments thereto prior to 1959,10 all focused on the types of businesses to which the duty of nondiscrimination applied;  they did not seek to define the types of discrimination which the law prohibited.

In 1951 the Supreme Court held that coverage of the act extended to a racetrack and that the act prohibited the exclusion of a potential patron because he had a reputation as a person of “immoral character.”  (Orloff v. Los Angeles Turf Club, 36 Cal.2d 734, 227 P.2d 449.)   Shortly thereafter the Supreme Court held that a bar or restaurant could not exclude a patron merely because he was homosexual.  (Stoumen v. Reilly, 37 Cal.2d 713, 234 P.2d 969.)   In 1959 the statute was renamed the Unruh Civil Rights Act (hereinafter Act);  its coverage was extended to “all business establishments of every kind whatsoever;” 11  and, for the first time, particular categories of discrimination—race, color, religion, ancestry and national origin—were specifically prohibited.  (Stats.1959, ch. 1866, p. 4424, § 1.)

In 1970, in In re Cox, supra, the Supreme Court dealt with the exclusion of a patron from a shopping center because he was in the company of a young man “who wore long hair and dressed in an unconventional manner.”  (3 Cal.3d at p. 210, 90 Cal.Rptr. at p. 26, 474 P.2d at p. 994.)   The Court reviewed the legislative and judicial history of the Act.   Although it recognized that a legislature considering civil rights legislation in the late 1950's would have been especially sensitive to discrimination against racial minorities, the Court nonetheless held that it was not the intention of the Legislature, by enumerating specific categories of discrimination in the Act, to exclude from its coverage other forms of arbitrary discrimination previously prohibited by judicial decision.   The Court held that the enumerated categories were illustrative, rather than restrictive and that Civil Code, section 51 continued to bar all arbitrary discrimination.

In 1971, the court of appeal considered the applicability of the Act to a landlord who refused to rent to a particular category of children—boys over five.   In holding that this was not arbitrary discrimination within the meaning of the Act, as interpreted by In Re Cox, supra, the court stated:  “Because the independence, mischievousness, boisterousness and rowdyism of children vary by age and sex, Burnham, as landlord, seeks to limit the children in its apartments to girls of all ages and boys under five.   Regulating tenants' ages and sex to that extent is not unreasonable or arbitrary.”   (Flowers v. John Burnham & Co., 21 Cal.App.3d 700, 703, 98 Cal.Rptr. 644, 645.)

 In 1974 the Act was again amended, this time to add sex to the enumerated prohibited categories of discrimination.  (Stats.1974, ch. 1193, § 1.)   Here again, as it had in 1959, the Legislature demonstrated a concern with a particular form of discrimination which was the focus of current political attention.   More importantly for our purposes, the Legislature must be presumed to have acted in 1974 with an awareness of the decisions in Flowers and Cox.  (In re Cox, supra, 3 Cal.3d 205, 215, 90 Cal.Rptr. 24, 474 P.2d 992;  Richfield Oil Corp. v. Public Utilities Com., 54 Cal.2d 419, 6 Cal.Rptr. 548, 354 P.2d 4.)   The Legislature's failure expressly to restrict coverage of the Act to the enumerated categories of discrimination must be interpreted as a basic agreement with the ruling in Cox that the Act applies to all arbitrary discrimination.   The inclusion of sex within the prohibited categories must be read as a disagreement with the view adopted in Flowers, supra, that distinctions between boys and girls are not arbitrary, just as the exclusion of any reference to age in the 1974 amendment must be regarded as a legislative agreement with the view expressed in Flowers that a landlord's refusal to rent to children is not arbitrary discrimination.12

 Further evidence that discrimination by landlords against children is not presently covered by the Act is to be found in the fact that legislation to prohibit such discrimination was introduced in the State Senate in 1977 (SB 359) and again in 1979 (SB 440).   SB 359 failed of passage on January 27, 1978.   SB 440 is presently in the Senate inactive file.   Significantly, the legislation would not simply amend Civil Code section 51 to bar discrimination on the basis of age.   Rather it would add new sections to that code barring discrimination against children in the rental of housing, strictly tailoring the statute to the particular requirements of the rental industry and exempting from its coverage senior citizens' homes, nursing and convalescent homes, mobile home parks, and college and university dormitories.

 Although it thus seems clear to us that neither the Legislature nor the courts regard discrimination against children as being within the purview of the Act, we must address the further question, raised by defendants, of whether by failing to include children within the coverage of the Act, the Legislature has drawn an invidious distinction which violates the Equal Protection Clause of either the state or federal Constitution.   A simple answer to this question is that if discrimination against children is not arbitrary within the meaning of Cox, ipso facto failure to include that form of discrimination within the coverage of the Act cannot be a denial of equal protection.   Furthermore, the Fourteenth Amendment does not impose a duty on the state to prohibit private acts of discrimination.  (Hill v. Miller, 64 Cal.2d 757, 759, 51 Cal.Rptr. 689, 415 P.2d 33.)   If the state does choose to bar private discrimination, the choice of whether to exclude some forms of discrimination from all businesses, or all forms of discrimination from some businesses is a legislative one.   By adopting the former approach, the Legislature has not done violence to the Equal Protection Clause.

It should of course be remembered that the Act applies to “all business establishments of every kind whatsoever.”   Defendants' Equal Protection argument therefore must fail unless the Constitution prohibits the exclusion of children from every type of business.   The foolishness of this latter proposition is demonstrated by a few brief examples.   Hospitals regularly prohibit children from visiting patients because their presence is considered to be deleterious or disruptive.   Certain businesses—to wit:  those with on-sale liquor licenses—are required by law to exclude minors.  (Bus. & Prof.Code, § 25665.)   Theaters which show X-rated films exclude minors.   Theaters which show R-rated films exclude minors who are unaccompanied by adults.   The United States Supreme Court has held that a state may prohibit the sale to minors of sexually explicit material which would be constitutionally protected if disseminated to adults.  (Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195.)   Surely, then, it cannot be regarded as a denial of equal protection for the state to fail to prohibit purveyors of sexually explicit material from excluding minors from their premises.


 The provisions and the history of the Fair Housing Law differ markedly from the Unruh Act.   Fair housing legislation was first enacted in this state in 1959.   It forbade discrimination based on race, color, religion, national origin or ancestry in the sale or rental of publicly assisted housing.   (Health & Saf.Code, § 35700 et seq., Stats.1959, ch. 1681.)   That law was repealed in 1963 and replaced with the Rumford Fair Housing Act which continued the prohibitions of the 1959 legislation with respect to publicly assisted housing, and added a prohibition against the enumerated categories of discrimination in any private dwelling consisting of more than four units.   (Health & Saf.Code, §§ 35700, 35720, Stats.1963, ch. 1853.) 13  Also added to the code in 1963 was section 35742 which provided, “Nothing contained in this part shall be construed to prohibit selection based upon factors other than race, color, religion, national origin, or ancestry.”   (Stats.1963, ch. 1853, p. 3829, § 2.)   In 1975, sections 35700, 35720, and 35742 of the Health and Safety Code were amended to prohibit discrimination on the basis of sex or marital status.  (Stats.1975, ch. 1189.)

Not surprisingly, in light of Health and Safety Code section 35742, no court of this state has ever construed the Fair Housing Law to apply to any type of discrimination not specifically enumerated in the statute.   Defendants would have us construe the prohibition against discrimination based upon marital status to include a prohibition of discrimination against children.   Clearly that was neither the intention of the Legislature nor the meaning of the language it chose when it enacted the 1975 amendment to the statute.

Again, as with the Unruh Act, legislation was introduced in 1978 (AB 2979 and AB 3000) 14 which would have made it unlawful to terminate the rental of housing accommodations based upon the tenant's age or the presence of children in the household, unless the facilities were unsafe for the tenant or for children.   Both of these bills died in committee.   It is clear that the present statutory reference to marital status prohibits, purely and simply, discrimination by providers of housing against single individuals or against unwed cohabiting couples (Atkisson v. Kern County Housing Authority, 59 Cal.App.3d 89, 130 Cal.Rptr. 375), just as it would preclude discrimination against married couples, were they the subject of discrimination as a result of that status.   Again, the choice of what forms of private discrimination to prohibit was a legislative one and the selection made does not infringe the Equal Protection Clause.


(a) Equal Protection

 Not being prohibited by either the Unruh Act or the Fair Housing Law, a landlord's decision not to rent to families with children is a purely private and unregulated act of discrimination for which the law offers no redress.   (Hill v. Miller, supra, 64 Cal.2d 757, 51 Cal.Rptr. 689, 415 P.2d 33.)   Defendants contend that when a landlord seeks the aid of a court in ousting a tenant from possession, the landlord removes himself from the sphere of private discrimination into the realm of state action (Abstract Investment Co. v. Hutchinson, supra, 204 Cal.App.2d 242, 22 Cal.Rptr. 309.)   Defendants analogize their own situation to that before the United States Supreme Court in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161.

In Shelley the court acknowledged that the Fourteenth Amendment reaches only state action, and that privately adopted restrictive covenants against ownership or occupancy of real property based upon race did not violate the Fourteenth Amendment, so long as the covenants were enforced by voluntary agreement.   The court declared, however, that the action of state courts was to be regarded as action of the state within the meaning of the Fourteenth Amendment, and held that enforcement of racially restrictive covenants by state courts constituted state action violative of the Fourteenth Amendment.

In Abstract Investment Co., supra, the court held, by analogy to Shelley, that judicial enforcement of an eviction because of race was state action in violation of both federal and state guarantees of equal protection.   A claim that the eviction was racially motivated was held to be a valid defense to an action for unlawful detainer.

 Before a defendant can invoke the doctrine of Shelley v. Kraemer he must demonstrate that he is a victim of the type of invidious discrimination which the Equal Protection Clause forbids.   As was discussed above, discrimination against children in housing is neither arbitrary nor unreasonable.   The trial court's factual findings that children generally are noisier, more boisterous and more disruptive of the rights of other tenants than adults and that they cause higher maintenance costs were supported by substantial evidence.   These findings also comport with common experience.   Children have an energy and an exuberance which adults frequently envy, but just as frequently find fatiguing and irritating.   Not to overstate the obvious, children are by definition immature.   As a class they lack the discretion and sensitivity to the rights of others which we expect of adults.   It would be totally unfair to impose upon children the same standards of behavior we apply to adults.   But given the differences between normal adult and childhood behavior, we cannot say that a refusal to rent to children constitutes the type of invidious discrimination which is prohibited by the Fourteenth Amendment.   It therefore is not a denial of equal protection for a state court to enforce a landlord's claim for possession in an unlawful detainer action where the reason for the tenant's ouster is the presence of a child in his household.

Defendants' reliance on Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45, is similarly misplaced.   The hurdle which defendants cannot surmount is not the “state action” hurdle;  it is the “Equal Protection” hurdle.

(b) Procedural Due Process

 Defendants, citing Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63, and Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52, contend that it is a denial of procedural due process for a court to adopt as a conclusive presumption the proposition that children are noisier and rowdier than adults, without allowing defendants to rebut the presumption by showing that their child is quiet, well-mannered and well-behaved.   The cases cited have no factual relevance to the matter before us.   Two cases which are pertinent to our deliberations are Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171, and Massachusetts Board of Retirement v. Murgia, (Massachusetts) 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520, in which the Supreme Court upheld certain mandatory retirement legislation.   In Massachusetts, the Court ruled that age was not a suspect class for purposes of equal protection analysis.  (427 U.S. at p. 313, 96 S.Ct. 2562.)   In both Massachusetts and Vance the Court held that age was an acceptable basis for classification if it was rationally related to the furtherance of a legitimate state interest.  (Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520;  Vance v. Bradley, supra, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171, 176.)

The state law under review in Massachusetts mandated retirement of uniformed state police officers at age 50.   In Vance, an Act of Congress required foreign service personnel to retire at 60.   In both cases the Court held that advancing age was rationally related to job performance.   In both cases, the age selected for retirement was arbitrary in the sense that some other age might have been selected with equal justification.   Yet both statutes were upheld in the face of objections that some individuals who fell within the affected classes were physically vigorous and fully able to perform their jobs.

Surely no more stringent standards can be applied to a private property owner than to the state.   As we have already discussed, the trial court in the present case found, with justification, that the boisterousness of children generally and the wear and tear which they cause to property provide a rational economic motive for a landlord's refusing to rent to them.   Just as the Legislature may rely upon the general characteristics of a group when it draws classifications based upon age, so too may a landlord rely upon the general propensities of children as a group without evaluating the specific behavior of the particular child seeking to rent his premises.

Indeed, in all situations in which the law draws or permits classifications based upon age, individual members of the excluded class are not permitted to escape the restrictions imposed upon the class by proving personal characteristics which distinguish them from other members of the excluded class.   Just as the vigorous older person cannot escape a mandatory retirement law, so too mature 20–year–olds with a high tolerance for alcohol are not permitted to buy or consume liquor;  politically informed and sophisticated 17–year–olds are not permitted to vote;  and precocious 3–year–olds are not permitted to enroll in school when the minimum age for enrollment is fixed at 5.   The factor which permits the exclusion in each of these cases is age, not individual behavior.   Similarly, in the case before us, Adam is being excluded because he is a child.   Plaintiff, as noted, made no attempt to prove that Adam is unruly.15  The court did not employ a conclusive presumption that Adam is rowdy.   It merely enforced plaintiff's legal right to draw a blanket distinction based upon age.

(c) Substantive Due Process

Defendants also contend that they have a substantive right to bear and raise children which is protected from state interference by the Due Process Clause of the Fourteenth Amendment.   Although not specifically articulated by defendants, presumably the corollary to this proposition is that the doctrine of Shelley v. Kraemer, supra, applies to a private denial of a substantive due process right as well as to a private act of invidious discrimination.   This latter proposition has surface appeal, but does not withstand thoughtful analysis.   Where there is a denial of equal protection, one of the parties is, by definition, guilty of arbitrary, unreasonable and invidious discrimination.   There is no cognizable legal right to court assistance in facilitating or effectuating such behavior.

By contrast, in the due process area, the court is called upon to adjudicate between competing rights each of which is entitled to legal recognition.   Thus while the Wolfsons' familial rights are protected against direct state interference, absent a compelling state interest, so too are Marina Point's property rights protected by the Due Process Clause.  Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531, relied upon by defendants, is distinguishable from the instant case precisely because the Court in Moore was not called upon to adjudicate between competing personal and property rights.   Rather in Moore the legislature, through its zoning powers, had interfered in the private sphere of personal choice in family living arrangements where no competing constitutionally guaranteed right was asserted.

 At the conclusion of a tenancy, a tenant has a right to attempt to renegotiate a further tenancy and if unsuccessful in that endeavor, he has a right not to be ousted from possession except in a manner which complies with statutory law and which affords him procedural due process.   He has no other property rights in the rented premises.   From the Wolfsons' point of view they have been ousted from possession of their apartment 16 solely because of Adam's presence.   But examining the reverse side of that coin, from plaintiff's point of view, the Wolfsons' lease having expired, they have no right to further possession of the premises and are attempting to use Adam's presence to manufacture a right which would not otherwise exist.

 In the panoply of personal liberties guaranteed by our laws and our Constitution none is more basic nor more essential to human survival than an infant's unfettered right to cry when it is hungry.   But in a court of law, that right stands on an equal footing with a landlord's right to the quiet enjoyment of his property.   The Wolfsons' constitutional right to bear children does not encompass the right to raise them in plaintiff's apartment, against plaintiff's wishes, and in contravention of a covenant to which they themselves agreed.17

The judgment is affirmed.

HASTINGS, Associate Justice.

KAUS, P.J., and ASHBY, J., concur.

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