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Court of Appeal, Second District, Division 2, California.

John P. O'CONNOR, Denise R. O'Connor and Gavin John O'Connor, a minor, by John P. O'Connor, his Guardian ad Litem, Plaintiffs and Appellants, v. VILLAGE GREEN OWNERS ASSOCIATION, Defendant and Respondent.

VILLAGE GREEN OWNERS ASSOCIATION, an unincorporated association, Plaintiff and Respondent, v. John P. O'CONNOR, Denise R. O'Connor, and Gavin John O'Connor, Defendants and Appellants.

Civ. 61853, Civ. 63079.

Decided: May 25, 1982

Jean E. Kidwell and Frank S. Pestana, Los Angeles, for appellants. Boren, Elperin, Howard & Sloan, a Professional Corporation, William Elperin, Steven J. Revitz, Los Angeles, for respondents. Ira Reiner, City Atty., Thomas C. Bonaventura, Senior Asst. City Atty., Colin Chiu, Asst. City Atty., for Amicus Curiae City of Los Angeles.

In this consolidated appeal we are presented with the question of the validity and enforceability of a provision in the covenants, conditions and regulations (CC & Rs) of a condominium project, limiting residency to persons over the age of 18 years.

This case was previously considered by us and we filed an opinion upholding the validity of the regulation.   The Supreme Court, however, granted a hearing.   While the matter was pending before the Supreme Court, that court filed its opinion in Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 640 P.2d 115, 180 Cal.Rptr. 496, which held that Civil Code section 51 et seq., the so-called Unruh Civil Rights Act, prohibited discrimination against children in rental housing.

Subsequently, this case was transferred to this court with directions to reconsider the matter in light of the holding in Marina Point, Ltd. v. Wolfson, supra.   Our reading of the Supreme Court's opinion in Marina Point leads us to conclude that our original holding in this case was correct.   Hence we again uphold the regulation in question.

The appeals which have been consolidated here arise out of two separate actions for declaratory and injunctive relief between the same parties filed in the Superior Court of Los Angeles County.



In this action, the first to be filed, John P. O'Connor, his wife, Denise, and their minor son, Gavin, owners of a unit in Village Green, a condominium development in the City of Los Angeles, sought to have the above mentioned regulation declared invalid and to enjoin its enforcement.   The trial court sustained, without leave to amend, a demurrer to the first amended complaint and dismissed the action.   The O'Connors noticed an appeal.



After the filing of the notice of appeal in the first action, the Village Green Owners Association filed its action seeking to enjoin the O'Connors from residing in the condominium with Gavin.   The trial court granted a preliminary injunction but stayed its enforcement for 90 days to allow the O'Connors to find other housing.

 The O'Connors noticed an appeal from that order.   Since the preliminary injunction was mandatory in effect, requiring the O'Connors to relocate, enforcement was stayed by the appeal.

Initially we will focus our attention on the appeal in case No. 316203, and refer to the O'Connors as the plaintiffs, and the Village Green Owners Association as the Association.


The Association is the governing body of a 600 unit condominium development located in the Baldwin Hills area of Los Angeles.   Plaintiffs purchased a unit in the development in February 1975.   In so doing, they became members of the Association and agreed to be bound by the covenants, conditions and restrictions (CC & Rs) which had been adopted according to law.

Those CC & Rs provide, inter alia, that occupancy of the premises is limited to persons over 18 years of age.   There is no question but that plaintiffs were well aware of the CC & Rs, agreed to them voluntarily and had no reservation as to their validity.   In July of 1979, Gavin was born.   Shortly thereafter, the Association gave written notice of the violation of the CC & Rs if the child continued to reside on the premises and of the Association's intent to enforce the provisions of the CC & Rs.

According to the complaint, plaintiffs did not intend to violate the CC & Rs but, because of the unavailability of other suitable housing, which they unsuccessfully attempted to obtain, they have decided to remain in the condominium unit.   They so advised the Association.   When the Association expressed its intent to enforce compliance, they instituted this action.

The complaint alleges that the Association's restriction against children under 18 violates article I, section 1, of the California Constitution 1 and the Fourteenth Amendment to the United States Constitution, the California Civil Rights Act (Civ.Code, § 51 et seq.), the California Fair Housing Law (Health & Saf.Code, § 35700 et seq.) and Los Angeles Municipal Code section 45.52, which prohibits discrimination in rental housing on the basis of age, parenthood, pregnancy or the potential or actual tenancy of a minor child.

 The regulation in question is a private contract.   Thus constitutional provisions which necessarily deal only with state action are not involved.   Of course, in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, the United States Supreme Court held that judicial enforcement of private covenants amounted to state action and offended constitutional protections when enforcement of those covenants resulted in constitutionally prohibited racial discrimination.

Neither the United States nor California Constitutions specifically prohibit discrimination on the basis of age.   Hence, if the regulation is to be declared invalid and unenforceable, we must look elsewhere for a reason.

It is significant that the Supreme Court in Marina Point, Ltd. v. Wolfson, supra, grounded its holding squarely on Civil Code section 51 et seq., and that court's previous interpretation of the legislative intent as expressed in In re Cox, 3 Cal.3d 205, 474 P.2d 992, 90 Cal.Rptr. 24.

 In re Cox, supra, declared that the Legislature's intent in enacting the Unruh Civil Rights Act was to bar all forms of arbitrary discrimination in public accommodations and business establishments.   The real significance of the holding in Marina Point then is that an apartment house or similar form of rental housing is a type of public accommodation subject to the provisions of the Unruh Civil Rights Act and that the barring of children from such public accommodations is an arbitrary discrimination within the purview of that Act.

The absence of any constitutional issue in this area is highlighted by both the majority and dissenting opinions in Marina Point.   The majority, for example, cites with approval Civil Code sections 798.76 and 799.5, which authorizes “adult only” restrictions in mobile home parks because such facilities correlate with the needs of “older” citizens.   Further in responding to a point raised by the dissent, the majority states “Thus, contrary to the suggestion of the dissent ․ this opinion does not bar age-limited admission policies of retirement communities or housing complexes reserved for older citizens.”  (Marina Point, Ltd. v. Wolfson, supra, at page 743, fn. 12, 640 P. 115, 180 Cal.Rptr. 496.)

Although the majority in Marina Point appears to consider it unreasonable for persons generally to seek or for landlords to provide housing where there are no children, the above cited portion of the opinion indicates that at some point, i.e., upon retirement or becoming “older” it becomes reasonable for persons, for whatever reason, to seek and obtain a “child free” environment in the place where they reside.

Since persons retire at different ages, some at a fairly early age, and since the definition of what is an “older” citizen varies with the perspective of the individual (for many purposes, anyone over 50 years of age is a “senior citizen”) any legislative definition of those criteria must necessarily be arbitrary and such criteria itself would contain the seeds for a claim of discrimination by persons who fall short by a few days of attaining the requisite status.

 Having thus concluded that discrimination on the basis of age is not, under all circumstances, arbitrary or unreasonable, we thus address the question of whether the Unruh Civil Rights Act pertains to condominium development.

The owners of units in a condominium development, whether that development be a high rise building or a cluster of one-story buildings, are not in the business of providing public accommodations.   Each is simply the owner of a single family residence sharing the use of certain common areas in a compact and confined setting.   In this regard, condominium developments have much in common with mobile home parks.

 Since the Unruh Civil Rights Act, by its history and language, is applicable only to businesses and public accommodations, it is not applicable to the operation of a condominium development.   Hence the holding of Marina Point, Ltd. v. Wolfson, supra, is inapplicable to the case at bench.

The resolution of the issue now confronting us turns on whether the Legislature has in some other enactment barred discrimination in private housing on the basis of age.

The California Fair Housing Act relied on by plaintiffs has since been repealed.   The subject matter is now covered by Government Code section 12900 et seq.   Neither the repealed sections of the California Fair Housing Act nor the pertinent Government Code sections mention discrimination in housing based on age.

 The intent of the Legislature to exclude age as a protected class in housing becomes certain when one examines the difference in treatment for discrimination in employment.  Section 12920 of the Government Code includes age in declaring the state's policy against discrimination in employment, yet omits the word age in its declaration of policy against housing discrimination.   The statute in pertinent part states:

“[T]he practice of discrimination because of race, color, religion, sex, marital status, national origin, or ancestry in housing accommodations is declared to be against public policy.”  (Gov.Code, § 12920;  emphasis added.)

The Legislature, obviously aware of age as a possible category for consideration in addressing the problem of discrimination, chose to omit age as a factor in prohibiting housing discrimination.   This distinction between housing and employment is repeated throughout the code.  Government Code sections 12941 and 12942 likewise provide protection against discrimination in employment on the basis of age.   Other relevant sections dealing with discrimination in housing, however, again make no mention of age.   Section 12955 defines unlawful discrimination in housing as “to discriminate against any person because of the race, color, religion, sex, marital status, national origin, or ancestry of such person.”

While In re Cox, supra, held that a similar listing in Civil Code section 51 was merely illustrative rather than restrictive, and that the legislative intent was to bar all arbitrary discrimination, we believe that the clear legislative intent in the area of housing not covered by the Unruh Act was to limit the forms of prohibited discrimination to those enumerated in Government Code section 12955.

As was observed in Marina Point, Ltd. v. Wolfson, a number of bills have in the recent past been introduced in the Legislature to specifically prohibit discrimination against children in all forms of housing;  these bills have all been rejected.  (Marina Point, Ltd. v. Wolfson, supra, at page 735, fn. 7, 640 P.2d 115, 180 Cal.Rptr. 496.)

More significantly, however, the Legislature in 1974 endorsed the Supreme Court's interpretation of Civil Code section 51 as contained in In re Cox, supra (see Marina Point, Ltd. v. Wolfson, at p. 735, 640 P.2d 115, 180 Cal.Rptr. 496.)   On the other hand Government Code section 12955 remains unamended and Government Code section 12993 provides:  “(a) ․ Nothing contained in this part shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age․ (c) While it is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of this part, exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state, nothing contained in this part shall be construed, in any manner or way, to limit or restrict the application of Section 51 of the Civil Code.”  (Emphasis added.)

The above quoted statute would be redundant if the sweep of Government Code section 12955 was intended to be coextensive with that of Civil Code section 51, as interpreted in Marina Point, Ltd. v. Wolfson.   Further, in those relevant cited provisions of the Government Code, the Legislature demonstrated that when it intended to refer to age, it knew how to do so.

It cannot be seriously argued that the Legislature is ignorant or unaware of the overall housing situation in California or the specific problem faced by families with children.   As was pointed out in Marina Point, at page 743, 640 P.2d 115, 180 Cal.Rptr. 496, the Legislature stated in 1979 “ ‘The Legislature finds and declares that the state's housing problems are substantial, complex and now of crisis proportions․ The Legislature finds and declares that the greatest need for housing is experienced by residents at the lower end of the economic scale.   Many moderate and low income households with children cannot normally find decent, safe and suitable housing at prices they can afford․’  (Stats.1979, ch. 1043, §§ 1, 2, pp. 3643–3644.)”

Hence, in our opinion, the failure of the Legislature to include age in the list of prohibited forms of discrimination in housing is a clear indication that, as of this date, it does not intend to extend that protection to children in other than public accommodations.

The above referenced Los Angeles Municipal Ordinance, like Civil Code section 51 et seq. applies only to rental housing in prohibiting discrimination against children and thus is not directly applicable to the facts of this case.   Plaintiffs, however, make the claim that since, as a result of that ordinance, they could not be prevented from leasing their condominium to persons with children under 18, it is unreasonable to deny them the right to occupy their own condominium with their own minor child.

The City Attorney for the City of Los Angeles has filed an amicus curiae brief which not only defends the validity of the ordinance but urges its application to condominium developments.   The effect of such application would, of course, nullify the effect of all age restrictions in condominium developments in the City of Los Angeles.

 It would appear that, as to rental housing, as a result of the holding in Marina Point, Ltd. v. Wolfson, supra, the field is preempted by state law.   As to housing not covered by the decision in Marina Point, the area is specifically preempted by Government Code section 12993.   Beyond that the regulation of condominiums is preempted by state law.

The state's regulation in the field of condominium development and conversion is broad and pervasive.  (See Bus. & Prof.Code, § 11,000 et seq.;   Gov.Code, § 66410 et seq.)   Controlling of the issue here is Civil Code section 1355, which specifically provides that lawfully adopted CC & Rs in condominium housing are enforceable as equitable servitudes so long as they are reasonable.

 Implicit in the state statutes dealing with discrimination in housing is a determination by the Legislature that (1) discrimination in housing is a matter of statewide concern, and (2) restrictions in housing based on age are reasonable and non-discriminatory.   Implicit in the language of Civil Code section 1355 is the legislative intent that in the absence of an express legislative declaration, the question of whether a particular restriction is or is not reasonable is to be determined by the courts and not by the various pronouncements of local governmental entities.

“At all times since adoption of the Constitution in 1879, section 11 of article XI has specified that ‘Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.’   In 1896 section 6 article XI was amended to provide a limited amount of autonomy for freeholders' charter cities, and in 1914 sections 6 and 8 of article XI were amended to permit such cities, by appropriate charter amendments, to acquire autonomy with respect to all municipal affairs.   A city which adopted such ‘home rule’ amendments thereby gained exemption, with respect to its municipal affairs, from the ‘conflict with general laws' restrictions of section 11 of article XI.   ¶  As to matters which are of statewide concern, however, home rule charter cities remain subject to and controlled by applicable general state laws regardless of the provisions of their charters, if it is the intent and purpose of such general laws to occupy the field to the exclusion of municipal regulation (the preemption doctrine).”  (Bishop v. City of San Jose, 1 Cal.3d 56, at pp. 63–64, 460 P.2d 137, 81 Cal.Rptr. 465.)

The state Constitution does not further define “municipal affairs” or matters of “statewide concern.”   Hence it has become necessary on a case-by-case basis for the courts to decide into which category a particular subject of regulations falls.  (Bishop v. City of San Jose, supra;  Professional Fire Fighters, Inc. v. City of Los Angeles, 60 Cal.2d 276, 384 P.2d 158, 32 Cal.Rptr. 830, Butterworth v. Boyd, 12 Cal.2d 140, 82 P.2d 434.)

It has been widely recognized that the condominium form of housing, which has recently developed into a significant part of our housing pattern, partly because of its economical use of land, presents unique problems and challenges to our traditional concepts of property ownership and use.

Because of the closeness to one's neighbors and the use of common facilities and areas which are factors unique to condominium living, each owner must necessarily surrender a certain amount of freedom of action to the regulatory authority of the other owners as a group.  (Laguna Royale Owners Assn. v. Darger, 119 Cal.App.3d 670, 174 Cal.Rptr. 136 ;  see generally, Ritchey v. Villa Nueva Condominium Assn. (1978) 81 Cal.App.3d 688, 146 Cal.Rptr. 695, see Riley v. Stoves (1974) 22 Ariz.App. 223, 536 P.2d 747.)

On the other hand persons who purchase condominiums and thus surrender their own freedom of action have the right to rely on the fact that the other owners will be similarly restricted.

“Enforcement [of the CC & Rs] thus fosters condominium development by attracting buyers seeking a stable, planned environment.   Enforcement also protects the contractual interests ․ of buyers who purchase their units in reliance on the existence of a restrictive scheme and who may pay a premium to obtain restrictions.”  (Condominium Rulemaking, 94 Harv.L.Rev., 647, at 653.)

We can think of no area which is of greater statewide concern than housing and the ability of persons to acquire it in accordance with their needs and desires.   Nor can the matter be said to be of local concern because of the economic differences between urban and rural areas.   The factors which induce or compel persons to seek housing in urban areas apply with equal force to purchasers of condominiums and persons who seek other forms of housing.

 Furthermore, laws dealing with various forms of estates in real property and equitable servitudes are clearly matters for state legislation and not local ordinances.

In regard to the regulation of condominiums and the enforceability of the equitable servitudes upon which condominium purchasers rely, the need for statewide uniformity is manifest.   To make enforceability of these equitable servitudes depend upon the vageries of the individual cities and counties would result in chaos and deal a severe blow to the condominium form of housing.

We thus turn to the basic issue in the case and that is the reasonableness of the restriction which limits occupancy to persons over 18 years of age.

In Ritchey v. Villa Nueva Condominium Assn., supra, the Court of Appeal in the First District specifically upheld a restriction similar to the one here involved.   The court there held that the authority of a condominium association reasonably involves the power to impose regulations to prevent activities that might be annoying or disturbing to the entire group of occupants.

The noise and laughter of children at play may be music to the ears of their parents and others who are kindly disposed toward children.   That noise, laughter and occasional boisterousness, however, can be greatly disturbing to those not so favorably disposed.   Those latter individuals have the right, by lawful means, to insulate themselves from such disturbance, especially in the selection of a place to live.

Plaintiffs contend that Gavin, being of such tender years, does not, at this time, have the potential for disturbing the neighbors.   Of course that will change with the passage of time.   The restriction is of course designed to avoid the difficulty of enforcing the restriction on a case-by-case basis, according to the conduct of the particular children involved.

We are here dealing with individual homeowners who have contracted with each other to relinquish certain freedom of action in order to achieve an atmosphere of tranquility.   This is a situation markedly different from that of a landlord who, for his own economic interests, seeks to restrict the type of tenant to whom he will rent.

 We conclude that, Marina Point, Ltd. v. Wolfson, supra, notwithstanding, the restriction in question is a reasonable one and is not subject to attack as being either arbitrary, discriminatory or contrary to public policy.   It clearly violates no statute and its enforcement does not involve the court, and thereby the state, in any constitutionally prohibited activity.

 Plaintiffs' complaint in fact is pregnant with the admission that under ordinary circumstances, the restriction would be reasonable.   Certain allegations of the complaint, however, introduce a dimension which was not considered in any of the authorities which have dealt with this problem.   That dimension is the current state of the housing and rental market, and plaintiffs' alleged inability to move.

It is a matter of common knowledge that at present the rental market, whether for adults or children, is “tight” and that purchasing a home is extremely difficult as a result of inflation and high interest rates charged for financing the purchase of a home.

Our duty in interpreting and applying the law as to the validity of the restriction, however, is to endeavor to develop a rule which will have general and lasting application.   Thus, our decision cannot turn on the existence of a transitory economic phenomenon which is unrelated to the question of whether the regulation itself is or is not reasonable.   Beyond that we observe that plaintiffs' allegations as to their inability to relocate are perfunctory and purely conclusionary.   The demurrer was properly sustained and the judgment of dismissal is affirmed.

It follows from our affirmance of the order of dismissal in Case No. 316203, that the order for a preliminary injunction in Case No. 342278 must also be affirmed.


1.   California Constitution, article I, section 1 provides:  “All people are by nature free and independent and have inalienable rights.   Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

COMPTON, Associate Justice.

ROTH, P. J., and BEACH, J., concur.

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