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DUBREUIL v. WEST WINDS MOBILE LODGE

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Court of Appeal, Fourth District, Division 1, California.

Chris DUBREUIL, et al., Plaintiffs and Appellants, v. WEST WINDS MOBILE LODGE, etc., et al., Defendants and Respondents.

D001164.

Decided: April 11, 1985

J. Warren Beall, Oceanside, for plaintiffs and appellants. Douglas M. Butz and K. Elizabeth Dunn, San Diego, for defendants and respondents.

Chris and Theresa Dubreuil (Dubreuils) appeal an order denying them damages, an injunction and declaratory relief against their landlord, West Winds Mobile Lodge (West Winds).   Dubreuils contend Civil Code 1 section 798.76, permitting adults-only mobilehome parks, is invalid under the Unruh Civil Rights Act (§ 51) and is unconstitutional.

Dubreuils are tenants in West Winds, a mobilehome park.   West Winds is a general partnership composed of Francis Cohen, Richard Wesselink and Norman Tolstad (collectively, West Winds).   In 1982, West Winds restricted tenancy to adults only (§ 798.76).

In 1983, Dubreuils agreed to sell their mobilehome to a family with two minor children (Purchaser).   Purchaser wanted to keep the mobilehome at West Winds.   Therefore, the sale was made contingent on West Winds' approving Purchaser's tenancy.  (See § 798.74.)   West Winds rejected Purchaser's residency application because Purchaser wanted to live at West Winds with the minor children.   West Winds told Purchaser his application was denied because “it lists minor children which would be occupying the space.   West Winds has an eighteen (18) year old age limit.”   Dubreuils' sale to Purchaser was not consummated.

Asserting West Winds' adults-only rule violates the Unruh Civil Rights Act (§ 51), Dubreuils sought damages for their lost sale (see § 52).   Dubreuils additionally sought declaratory and injunctive relief, alleging West Winds' rule violates both the California and Federal Constitutions.   The court denied Dubreuils any remedy.

I

Section 51 states, in part:  “All persons ․ are entitled to the full and equal accommodations ․ in all business establishments.”

Section 798.76 states:  “The management may require that a purchaser of a mobilehome which will remain in the park, comply with any rule or regulation limiting residence to adults only.”

 Section 51 prohibits arbitrary age discrimination in apartment and condominium housing.  (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115;  O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427;  see § 51.2 [added by Stats.1984, ch. 787, § 1];  § 51.3, subd. (c)(3) [added by Stats.1984, ch. 1333, § 1].)   Relying on Marina Point and O'Connor, Dubreuils contend section 51 similarly prohibits West Winds' arbitrary age discrimination here.   Asserting section 798.76 is “unconstitutional because it violates plaintiff's civil rights as guaranteed by ․ section 51,” Dubreuils contend the court should have awarded them damages under section 52.   The short answer to this contention is section 51 is a statute, not part of the Constitution.   A statute adopted by one Legislature cannot prevent a subsequent Legislature from adopting a contrary statute, not even by referring to the first statute as a Civil Rights Act.   Here, the Legislature has adopted section 798.76 giving West Winds the right to limit its mobilehome park to adults only, in plain clear language not susceptible to misunderstanding.   Since some misunderstanding has nevertheless been cited, we engage in the following discussion.

 A special statute dealing expressly with a particular subject controls over a more general statute covering the same subject.  (Marsh v. Edwards Theatres Circuit, Inc. (1976) 64 Cal.App.3d 881, 890, 134 Cal.Rptr. 844.)   Here, section 798.76 is a special statute dealing expressly with age discrimination in mobilehome park tenancies.   Section 51 is a general statute prohibiting all arbitrary discrimination by businesses.  (See O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d 790, 794, 191 Cal.Rptr. 320, 662 P.2d 427.)   As a matter of statutory construction, section 798.76 exempts adults-only age restrictions in mobilehome park leases from section 51's general prohibition against arbitrary discrimination.  (See 65 Ops.Atty.Gen. 559, 560 (1982).)

Asserting section 51 and section 798.76 do not address the same subject, Dubreuils contend section 798.76 does not supplant section 51.   (Adamson Companies v. Zipp (1984) 163 Cal.App.3d Supp. 1, 210 Cal.Rptr. 165.)   In Zipp, the court noted section 798.76 was enacted in 1978, the same year the Legislature enacted Health and Safety Code sections 50540 to 50547.   These Health and Safety Code sections create state financed mobilehome park residences for the elderly as a demonstration project.   Believing the purpose of section 798.76 is to implement Health and Safety Code sections 50540 to 50547, Zipp concluded “the Unruh Civil Rights Act [§ 51], the Mobilehome Parks Act [Health & Saf.Code §§ 50540–50547], and the Mobilehome Residency Law [§ 798.76] have distinct statutory purposes.”  (Adamson Companies v. Zipp, supra, at Supp. 20, 210 Cal.Rptr. 165.)  Zipp held:  “Our analysis ․ provides no support for [the] contention that the Mobilehome Residency Law ․ supplanted the Unruh Civil Rights Act with reference to age restrictions in mobilehome-parks tenancies.”   (Ibid.)

 Contrary to the court's conclusion in Zipp, section 798.76 was not intended to implement Health and Safety Code sections 50540 to 50547.   In determining whether section 51 and section 798.76 address the same subject, the controlling consideration is the Legislature's intent.   (See Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 256, 104 Cal.Rptr. 761, 502 P.2d 1049.)   A statute's legislative history is a recognized interpretive aid.  (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836.)

Section 798.76 originally derives from section 789.10 enacted in 1973.   (Stats.1973, ch. 785, § 1, p. 1404.)   This 1973 statute did not affect management's “right to require prior approval of a purchaser if the mobilehome will remain located in the mobilehome park.”   The 1973 statute does not contain any adults-only provision.   The adults-only provision first appears in the 1975 amendment to section 789.10.  (Stats.1975, ch. 146, § 3, pp. 280–281.)

Limiting management's power to disapprove new tenants, the 1975 version states approval cannot be withheld if the purchaser “has the financial ability to pay the rent” unless management “reasonably determines” the purchaser will disobey park rules.   The 1975 statute states “[t]he ownership or management may require that the purchaser as a prospective tenant comply with any rule and regulation of the mobilehome park limiting residence within the park to adults only.”

Thus, it is apparent in 1973, section 789.10 did not limit management's authority to disapprove mobilehome park tenants.   The 1975 amendment changes this in two areas.   First, the 1975 amendment prohibits management's arbitrary disapproval.   This protection to tenants parallels the protection given by the Unruh Act (§ 51).   However, the 1975 statute makes one exception to its rule against arbitrary disapproval:  the management may require compliance with a rule limiting the mobilehome park residents to adults only.

In 1976, the Legislature amended section 789.10, making changes not relevant here.  (Stats.1976, ch. 438, § 2, pp. 1144–1145.)

In 1978, the Legislature repealed section 789.10, adding section 798.76 to replace section 789.10's adults-only provision.  (Stats.1978, ch. 1031, § 1, pp. 3178, 3183.)   This 1978 legislation did not substantively change the 1976 adults-only provision.   The 1975 and 1976 version of section 789.10 states, in part:  “The ownership or management may require that the purchaser as a prospective tenant comply with any rule and regulation of the mobilehome park limiting residence within the park to adults only.”   The 1978 statute, renumbered as section 798.76, states:  “The management may require that a purchaser of a mobilehome which will remain in the park, comply with any rule or regulation limiting residence to adults only.”

 Because the adults-only provision first appeared in 1975, it did not implement 1978 Health and Safety Code sections.  (Cf. Garcia v. State of California (1967) 247 Cal.App.2d 814, 816–817, 56 Cal.Rptr. 80 [chronology of two statutes to discern legislative intent].)   Moreover, the 1978 enactment (§ 798.76) does not support Zipp 's conclusion.   This 1978 legislation only renumbered section 789.10.   The Legislature made no substantive change;  the language of both sections is almost identical.   Further, the Legislative Counsel's Digest 2 to 1978 Senate Bill 2119, which added section 798.76 and repealed section 789.10, states:  “Existing law contains a comprehensive scheme of regulation of tenancies in a mobilehome park.   This bill would repeal and recodify this scheme of regulation without substantive change.”   Because the language of the adults-only provision has not substantively changed since its 1975 inception, and because the 1978 legislation was only organizational, not substantive, the Legislature did not intend section 798.76 merely implement Health and Safety Code sections 50540 to 50547.   To the contrary, this 1978 legislation expresses no substantive legislative intent.   Specifically, section 798.76 was intended to continue the Legislature's 1975 determination that adults-only mobilehome parks were not contrary to public policy.

 Section 51 generally prohibits arbitrary housing discrimination.   Section 798.76 permits age discrimination in mobilehome parks.   The two statutes concern the same general subject.   However, section 798.76, a later enacted specific statute, prevails over section 51, a general provision applicable to the same situation.  (See People v. Encerti (1982) 130 Cal.App.3d 791, 796, 182 Cal.Rptr. 139.)

Our holding the Legislature intended to permit adults-only mobilehome parks, despite section 51, is reinforced by 1984 legislation.   Section 51.2 (Stats.1984, ch. 787, § 1, p. ––––) states, in part:  “Section 51 shall be construed to prohibit a business establishment from discriminating in the sale or rental of housing based upon age.”   Section 51.2 contains an express cross-reference to section 51.3.   Section 51.3, subdivision (c)(3), states:  “For the purposes of this section, the following definitions apply:  ․ (3) ‘Housing’ means all residential accommodations other than mobilehome developments.”  (Stats.1984, ch. 1333, § 1, p. ––––.)  These statutes confirm the Legislature intends to treat mobilehome parks differently from all other types of housing.

Despite section 798.76, citing Marina Point, Ltd. v. Wolfson, supra, and O'Connor v. Village Green Owners Assn., supra, Dubreuils contend section 51 applies here.   The court in Marina Point held section 51 prohibits arbitrary age discrimination in apartment housing.  (30 Cal.3d 721, 740, 180 Cal.Rptr. 496, 640 P.2d 115.)   The O'Connor court similarly applied section 51 to condominiums.  (33 Cal.3d 790, 792, 191 Cal.Rptr. 320, 662 P.2d 427.)   However, these cases do not involve section 798.76 or any other statute authorizing or even addressing adults-only rules.   Here, the specific provisions of section 798.76 control the general provisions of section 51 with respect to adults-only rules in mobilehome parks.3  Because section 51 is inapplicable here, Marina Point and O'Connor are inapposite.   The court in Marina Point acknowledges as much, stating, “mobile home parks constitute the only housing facilities in which the California Legislature has explicitly authorized ‘adult only’ restrictions.”  (30 Cal.3d 721, 743, fn. 11, 180 Cal.Rptr. 496, 640 P.2d 115.)

II

Discriminating between adults and minors, section 798.76 limits Dubreuils' access to housing.   Dubreuils contend this statute denies them equal protection.

 Our initial inquiry is to determine the appropriate level of scrutiny applicable to Dubreuils' equal protection challenge.  (See Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 798, 187 Cal.Rptr. 398, 654 P.2d 168.)   Statutes involving suspect classifications or touching on fundamental interests are subject to strict scrutiny.  (See Darces v. Woods (1984) 35 Cal.3d 871, 885, 201 Cal.Rptr. 807, 679 P.2d 458.)   Contrary to Dubreuils' assertion, there is no fundamental right to housing.  (Vil. of Arlington Hts. v. Metro. Housing Dev. (1977) 429 U.S. 252, 259, fn. 5, 97 S.Ct. 555, 560, 50 L.Ed.2d 450;  see Darces v. Woods, supra, 35 Cal.3d at pp. 892–893, fn. 23, 201 Cal.Rptr. 807, 679 P.2d 458;  Adams v. Superior Court (1974) 12 Cal.3d 55, 61, 115 Cal.Rptr. 247, 524 P.2d 375.)   Contrary to Dubreuils' assertion, age is not a suspect class.  (Kubik v. Scripps College (1981) 118 Cal.App.3d 544, 551, 173 Cal.Rptr. 539;  see Taxpayers Ass'n of Weymouth Tp. v. Weymouth Tp. (1976) 80 N.J. 6, 364 A.2d 1016, 1033–1034, approved in Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 742, fn. 10, 180 Cal.Rptr. 496, 640 P.2d 115.)   Therefore, section 798.76 is valid under the equal protection clause if rationally related to a legitimate public purpose.  (See Darces v. Woods, supra, 35 Cal.3d at p. 885, 201 Cal.Rptr. 807, 679 P.2d 458.)

 Section 798.76 is rationally related to a legitimate public purpose.   Older citizens have “special” housing needs.  (See Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 742–743, fns. 10–11, 180 Cal.Rptr. 496, 640 P.2d 115.)   Assisting these citizens is a valuable and legitimate public purpose.  Section 798.76 directly accomplishes this end:  “These special features of mobile home parks, which correlate closely with the special needs of older citizens, may well explain [why] the California Legislature has explicitly authorized ‘adult only’ restrictions.”  (30 Cal.3d 721, 743, fn. 11, 180 Cal.Rptr. 496, 640 P.2d 115.)

Section 798.76 permits “adults” only mobilehome park tenancy.   Section 25.1 defines “adult” as a person “18 years of age and older.”   Consistent with these statutes, West Winds excludes persons under 18 years old.   Asserting this 18-year-old restriction does not rationally further state interests in “older citizens” and their “age-homogenous environment” (Marina Point Ltd. v. Wolfson, supra, 30 Cal.3d 721, 743, fn. 11, 180 Cal.Rptr. 496, 640 P.2d 115), Dubreuils contend section 798.76 is unconstitutional as applied.

 Section 798.76 is constitutional as applied.   Assisting senior citizens is not the only legitimate purpose the Legislature could rationally further under section 798.76.   The statute permits mobilehome park owners to prevent children from living in a mobilehome park.   A legitimate purpose is to create a quiet, peaceful neighborhood of single family dwellings in close physical proximity.   Effectively limiting residence to working or retired adults, the statute is rationally related to a legitimate interest in providing quiet property enjoyment by eliminating the noise and distractions children cause.  (See Riley v. Stoves (1974) 22 Ariz.App. 223, 526 P.2d 747, 752–753, cited with approval in Ritchey v. Villa Nueva Condominium Assn. (1978) 81 Cal.App.3d 688, 693, 146 Cal.Rptr. 695.)   Where, as here, the statute does not affect a fundamental right or discriminate with respect to a suspect class, the statute does not violate equal protection if “ ‘․ any set of facts reasonably can be conceived that would sustain it.’ ”   (Estate of Horman (1971) 5 Cal.3d 62, 75, 95 Cal.Rptr. 433, 485 P.2d 785.)   Here, section 798.76 as applied rationally implements a legitimate public purpose.

III

 Section 711 states:  “Conditions restraining alienation, when repugnant to the interest created, are void.”   Section 711 applies to personal property (Dubreuils' mobilehome).  (See Bay Shore Motors v. Baker (1949) 90 Cal.App.2d Supp. 895, 896, 202 P.2d 865;  44 Cal.Jur.3d Mobilehomes, § 1, p. 512.)   Dubreuils contend West Winds' adults-only rule violates section 711.   However, section 711 prohibits only unreasonable restraints.  (Cohen v. Ratinoff (1983) 147 Cal.App.3d 321, 329, 195 Cal.Rptr. 84.)   Part II, supra, shows West Winds' adults-only rule is reasonable.   The rule is consistent with a right expressly recognized by statute.   Here, Dubreuils make no showing regarding the number of persons West Winds excludes or the effect of West Winds' excluding families with children.  (See Taormina Theosophical Community, Inc. v. Silver (1983) 140 Cal.App.3d 964, 973, 190 Cal.Rptr. 38.)   On this record, balancing the justification for the restriction against the quantum of restraint (Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 949, 148 Cal.Rptr. 379, 582 P.2d 970), the restriction is reasonable.  (See also Ritchey v. Villa Nueva Condominium Assn., supra, 81 Cal.App.3d 688, 694–695, 146 Cal.Rptr. 695 [holding a condominium bylaw restricting occupancy to 18-year-olds and over a reasonable restraint on alienation;  distinguished in Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 738, fn. 8, 180 Cal.Rptr. 496, 640 P.2d 115, as not involving the Unruh Act].)

IV

 Article I, section 1, of the California Constitution states, in part:  “All people ․ have inalienable rights.   Among these are ․ acquiring, possessing, and protecting property.”   Dubreuils' ability to sell their property is a fundamental aspect of property ownership.   (Gregory v. City of San Juan Capistrano (1983) 142 Cal.App.3d 72, 88, 191 Cal.Rptr. 47.)   Here, Dubreuils contend section 798.76 improperly impinges upon their rights under the state Constitution.   However, rights in property are subject to reasonable legislation.  (See People v. Byers (1979) 90 Cal.App.3d 140, 147, 153 Cal.Rptr. 249;  5 Witkin, Summary of Cal.Law, § 456, p. 3753.)   Here, the infringement upon Dubreuils' property rights is the unavoidable byproduct of section 798.76's legitimate purposes.  (See Gregory v. City of San Juan Capistrano, supra, 142 Cal.App.3d at p. 89, 191 Cal.Rptr. 47.)  Section 798.76 permits mobilehome park landlords to cater to the special needs and desires of the state's adult citizens.   Because section 798.76 reasonably limits Dubreuils' rights in property, the statute is constitutional.

Adamson Companies v. Zipp, supra, 163 Cal.App.3d Supp. 1, 210 Cal.Rptr. 165, is disapproved to the extent it is inconsistent with our views expressed here.  (See Cotton v. Municipal Court (1976) 59 Cal.App.3d 601, 607, 130 Cal.Rptr. 876.)

Judgment affirmed.

I respectfully dissent.

The circulating opinion is contrary to the express language, definitions and reasoning of the Supreme Court decisions in Marina Point, Ltd. v. Wolfson (Marina Point), 30 Cal.3d 721, 742–743, 180 Cal.Rptr. 496, 640 P.2d 115, and O'Connor v. Village Green Owners Assn., 33 Cal.3d 790, 794, 191 Cal.Rptr. 320, 662 P.2d 427, and conc. opn. p. 799, fn. 2, as well as the well-reasoned, square holding in Adamson Companies v. Zipp, 163 Cal.App.3d Supp. 1, 210 Cal.Rptr. 165 (App.Dept.Super.Ct.).

Two California statutes allow mobilehome parks to be limited to “adults only.”   First, Civil Code section 798.76 permits management of mobilehome parks to restrict their occupancy to “adults only.”  Health and Safety Code section 18300 is a general statewide law regarding conditions in mobilehome parks.  Section 18300, subdivision (g)(1), excepts from this law establishing “types of uses and locations including family mobilehome parks, adult mobilehome parks․”  Mobile home park owners argue these sections demonstrate a legislative intent to amend and thereby exempt mobilehome parks generally from the Unruh Act.   The Supreme Court interpreted the two statutes authorizing mobile homes to restrict their occupancy to “adults only” to be limited to older citizens who may have special housing needs more common to the “older,” “senior citizens.”  (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 743, fns. 11, 12, 180 Cal.Rptr. 496, 640 P.2d 115.)

I

The following rules of statutory construction when viewed in light of the legislative history point to the inevitable conclusion the Legislature did not intend to amend the Unruh Civil Rights Act (Civ.Code, § 51 et seq.) by implication, did not intend to exclude mobilehomes generally from the Unruh Act thereby allowing arbitrary discrimination against families with children in any and all mobilehome parks.

Rules of statutory construction require a court to presume the Legislature has knowledge of existing judicial decisions and to enact statutes in light thereof.  (Allis-Chalmers Corp. v. City of Oxnard (1981) 126 Cal.App.3d 814, 819, 179 Cal.Rptr. 159.)   When the Legislature fails to make changes in a particular respect when the subject is before it and changes are made in other respects, it is presumed the Legislature intended to leave the law unchanged in that respect.  (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 65, 81 Cal.Rptr. 465, 460 P.2d 137.)

Secondly, “ ‘Without the most cogent and convincing evidence, a court will never attribute to the Legislature the intent to disregard or overturn a sound rule of public policy.’ ”  (In re Cox (1970) 3 Cal.3d 205, 215, 90 Cal.Rptr. 24, 474 P.2d 992, quoting Interinsurance Exchange v. Ohio Cas. Ins. Co. (1962) 58 Cal.2d 142, 152, 23 Cal.Rptr. 592, 373 P.2d 640.)   Specifically, this proscription applies to rights declared by statutes and sanctioned by public policy.  (Ibid.)  This rule includes interpretations of the Unruh Act made by the courts.  (See In re Cox, supra, 3 Cal.3d 205, 215, 90 Cal.Rptr. 24, 474 P.2d 992.)   Further, repeals by implication are disfavored.   They are recognized only from express declaration of legislative intent or by necessary implication.  (In re Thierry S. (1977) 19 Cal.3d 727, 744, 139 Cal.Rptr. 708, 566 P.2d 610;  Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7, 128 Cal.Rptr. 673, 547 P.2d 449;  see also Palmer v. Agee (1978) 87 Cal.App.3d 377, 383, 150 Cal.Rptr. 841.)

II

In re Cox, supra, 3 Cal.3d 205, 216, 90 Cal.Rptr. 24, 474 P.2d 992, held the Unruh Act was intended to prohibit “all ” businesses from engaging in arbitrary discrimination.   The particular bases of discrimination listed in the act—sex, color, race, religion, ancestry and national origin—are “illustrative rather than restrictive.”  (Ibid.)

The California Supreme Court in Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115, and O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427, construed the Unruh Act's prohibition against arbitrary discrimination to prohibit discrimination against families with children from rental housing, apartments in Marina Point, owned condominiums in O'Connor.   The Supreme Court observed:

“A society that sanctions wholesale discrimination against its children in obtaining housing engages in suspect activity.   Even the most primitive society fosters the protection of its young;  such a society would hardly discriminate against children in their need for shelter.”  (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 744, 180 Cal.Rptr. 496, 640 P.2d 115.)

The Supreme Court rejected the landlord's contention the exclusion of all children from rental housing bore a rational relation to a legitimate interest in preserving an appropriate environment because “ ‘[c]hildren are rowdier, nosier, more mischievious and more boisterous than adults.’ ”  (Id., at p. 737, 180 Cal.Rptr. 496, 640 P.2d 115.)   The Supreme Court reasoned the “Unruh Act does not permit a business enterprise to exclude an entire class of individuals on the basis of a generalized prediction that the class ‘as a whole’ is more likely to commit misconduct than some other class of the public.”  (Id., at p. 739, 180 Cal.Rptr. 496, 640 P.2d 115.)  Marina Point also rejected the landlord's contention that its “no children” policy was justified because of “the nature of the business enterprise and of the facilities provided,” observing “nothing in the nature of an ordinary apartment complex is incompatible with the presence of families with children.” 1 (Id., at p. 741, 180 Cal.Rptr. 496, 640 P.2d 115.)   The court noted a “no children” policy acerbated the state's specialized housing needs for low income household with children.  (Id., at p. 743, 180 Cal.Rptr. 496, 640 P.2d 115.)

III

The Supreme Court next addressed the problem of housing reserved for senior citizens, observing:

“The special housing needs of the elderly in contemporary American society have been extensively chronicled, and both the state and federal governments have enacted specific ‘age-conscious' legislative measures addressed to this problem.  [Citations.]”  (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 742, 180 Cal.Rptr. 496, 640 P.2d 115, fn. omitted.)

The court continued:

“In light of the public policy reflected by these legislative enactments, age qualifications as to a housing facility reserved for older citizens can operate as a reasonable and permissible means under the Unruh Act of establishing and preserving specialized facilities for those particularly in need of such services or environment.  (See, e.g., Taxpayers Ass'n. of Weymouth Tp. v. Weymouth Tp., supra, 80 N.J. 6 [364 A.2d 1016] ․;  58 Ops.Cal.Atty.Gen. 608, 613 (1975).)   Such a specialized institution designed to meet a social need differs fundamentally from the wholesale exclusion of children from an apartment complex otherwise open to the general public.”  (Id., at pp. 742–743, 180 Cal.Rptr. 496, 640 P.2d 115, fns. omitted, italics added.)

The Marina Park court (30 Cal.3d at p. 743, fn. 11) illustrated what it meant by “specialized institution designed to meet a social need” of older citizens by citing Taxpayers Ass'n. of Weymouth Tp. v. Weymouth Tp., 80 N.J. 6, 364 A.2d 1016, where the New Jersey Supreme Court upheld the validity of a municipal zoning ordinance setting aside a portion of land for use as a mobilehome park for older citizens.   The New Jersey Supreme Court observed:

“The role which mobilehome developments can play in satisfying the special needs of the State's senior citizens is evidence.   First, mobilehomes provide a relatively inexpensive form of housing at a time when the demand for such housing is great and its availability is limited․  Second, mobilehome developments afford the elderly the age-homogenous environments which many older persons now seek and desire.   Finally, the size of mobilehomes is ideal for older persons with both physical and financial limitations․”  (364 A.2d at p. 1029.)

The California Supreme Court, after its citation to Weymouth, noted that several attempts to enact legislation barring discrimination against children in rental housing had failed to pass, and commented that unadopted proposals have little value as evidence of legislative intent.   But the failure of these proposals was not to be interpreted as an indication of the Legislature's intent to provide child-free residences.  (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 735–736, fn. 7, 180 Cal.Rptr. 496, 640 P.2d 115;  Civ.Code, § 798.76.)

IV

The Supreme Court holdings in Marina Point and O'Connor received legislative clarification and approval in Civil Code 51.2 (enacted 1984) where the Legislature declared:

“(a) Section 51 shall be construed to prohibit a business establishment from discriminating in the sale or rental of housing based upon age.   Where accommodations are designed to meet the physical and social needs of senior citizens, a business establishment may establish and preserve such housing for senior citizens, pursuant to Section 51.3 of the Civil Code.

“(b) This section is intended to clarify the holdings in Marina Point, Ltd. v. Wolfson (1982), 30 Cal.3d 721 [180 Cal.Rptr. 496, 640 P.2d 115], and O'Connor v. Village Green Owners Association (1983), 33 Cal.3d 790 [191 Cal.Rptr. 320, 662 P.2d 427].”  (Italics added.)

Significantly, at the time the Legislature added section 51.2, it did not modify the “adults only” restrictions applicable to mobilehome parks of sections 798.76 and 799.5.

West Winds asserts the Legislature's failure to modify shows an intent to retain restrictions limiting occupancy to adults (over the age of 18) as defined in section Civil Code section 25.1.   Such a conclusion, however, ignores the settled rules of statutory construction presuming the Legislature's failure to make changes in a particular respect when the subject is before it and it makes other changes, indicates a legislative intent to leave the law unchanged in that respect.  (Bishop v. City of San Jose, supra, 1 Cal.3d 56, 65, 81 Cal.Rptr. 465, 460 P.2d 137.)

In this instance, intervening between the time the “adults only” provisions were enacted in 1975 and the time when the Legislature addressed the subject of “adults only” provisions in housing generally in sections 51.2 and 51.3, the California Supreme Court ascribed to the “adults only” provisions of sections 798.76 and 799.5 the legislative purpose of providing housing not for adults generally, but for “older citizens,” that is, senior citizens with “a specialized institution designed to meet a social need [which] differs fundamentally.”  (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 743, 180 Cal.Rptr. 496, 640 P.2d 115;  Adamson Companies v. Zipp, supra, 163 Cal.App.3d Supp. 1, 20, 210 Cal.Rptr. 165.)   Thus, it must be presumed the Legislature by not modifying the “adults only” provisions of sections 798.76 and 799.5 intended to leave the law, as interpreted by Marina Point equating “adults” with senior citizens, unchanged.

Nor does section 51.3, subdivision (c)(1)'s exclusion of mobilehomes from the definition of “housing,” as West Winds argues, demonstrate a contrary intent.

Section 51.3 provides:

“(c) For the purposes of this section, the following definitions apply:  ․ (3) ‘Housing’ means all residential accommodations other than mobilehome developments.”

West Winds asserts this definition shows “the Legislature intends to treat mobilehome parks differently from all other types of housing.”  (Maj. opn., p. 17.)

Viewed in its entirety section 51.3 seeks to clarify and implement the Supreme Court's statement “age qualifications as to a housing facility reserved for older citizens can operate as a reasonable and permissible means under the Unruh Act of establishing and preserving specialized facilities for those particularly in need of such services or environment.”  (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 742–743, 180 Cal.Rptr. 496, 640 P.2d 115.)

Mirroring the Marina Point conclusion, section 51.3, subdivision (a), provides in part:

“[It] is essential to establish and preserve specially designed accessible housing for senior citizens.   There are senior citizens who need special living environments and services, and find that there is an inadequate supply of this type of housing in this state.”  (§ 51.3, subd. (a), italics added.)

The remaining subdivisions of section 51.3 implement this policy expressed in subdivision (a) by clarifying the particulars, including the necessary age qualifications (subds. (b), (c)(1), (d), (e)), the size of the development (subd. (c)(2), “150 dwelling units in a standard metropolitan statistical area or at least 35 dwelling units in any other area”), the restrictions for temporary residents (subd. (e)), what happens if the “qualifying resident” should die, become divorced, be hospitalized or suffer some other prolonged absences (subd. (f)).  As to the type of housing required contemplated to be covered by section 51.3, the “property shall have been developed for, and initially been put to use as, housing for senior citizens, or shall have been substantially rehabilitated or renovated for, and immediately afterward put to use as, housing for senior citizens.”  (Subd. (g), italics added.)

That the Legislature intends to treat mobilehome parks differently may be conceded.   However, it is equally clear the Legislature intended the difference to be an exemption from the detailed regulations of section 51.3, applicable to housing generally and not from the prohibition against arbitrary discrimination in rental housing against families with children found in the Unruh Act.

Support for the position that no repeal by implication was intended of the Marina Point definition of “adults” is to be found in the legislative encouragement of the development of specialized mobilehome parks for the senior citizens (Health & Saf.Code, § 50540) enactment of legislation which promotes mobilehome ownership by senior citizens (Rev. & Tax.Code, § 20639 et seq., the “Senior Citizens Mobilehome Property Tax Postponement Law”).   Furthermore, and most significant in determining legislative intent is this act of the Legislature:  In providing for the development and financing of mobilehome parks for senior citizens, the Legislature attached no conditions similar to that found in section 51.3, subdivision (g), that the mobilehome park must be “developed for, and initially been put to use as, housing for senior citizens, or shall have been substantially rehabilitated or renovated for, and immediately afterward put to use as, housing for senior citizens.”

Nor has the Legislature required a certain number of dwelling units in mobilehome parks in order to qualify as a senior citizen mobilehome park.   By excluding mobilehomes from the definition of “housing” in section 51.3, the Legislature intended to exempt mobilehome parks from section 51.3, subdivision (c)(2), which defines a permitted “ ‘[s]enior citizen housing development’ [as] a residential development consisting of at least 150 dwelling units in a standard metropolitan statistical area or at least 35 dwelling units in any other area.”   Typically, a mobilehome park will contain less units on the average than the other housing contemplated by section 51.3.   Mobile homes, unlike apartments and condominiums, do not have adjoining common walls and are physically separated.   Unlike condominiums and apartments, there are no high-rise mobilehomes.2

V

Coequal with the Legislature's intent to promote the availability of mobilehomes by senior citizens is the legislative concern for making mobilehomes available to the general population (see Stats.1981, ch. 974, § 1 3 ) and in particular to families.  Health and Safety Code section 18300, subdivision (g)(1), encourages cities and counties to create zones for “family mobilehome parks”;  Government Code section 65852.3, authorizes mobilehomes on lots zoned single-family residential, a zone traditionally desirable to families with children.  (See also Gov.Code, §§ 65852.7, 65852.8.)

This legislative intent to make mobilehomes more available appeared in this fact context.   A study done in 1976 showed over 90 percent of California's mobilehome parks had adult-only restrictions.4  (See Note, supra, 13 Golden Gate U.L.Rev. 697, 710, fn. 67.) 5  Thus the limited availability of spaces in mobilehome parks is even more severe than that noted in the rental housing market in Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 728–729, 180 Cal.Rptr. 496, 640 P.2d 115, where families with children were excluded from 60 to 80 percent of the available rental housing.   Thus, as long as adult-only restrictions are construed to permit discrimination against families with children, an affordable housing option—a concept, repeatedly recognized and favored by the Legislature—will be denied to families with children.  (See Note, supra, at p. 710, fn. 67, 180 Cal.Rptr. 496, 640 P.2d 115.)   Such a legislative intent to promote affordable housing for families with children would be thwarted by a construction of “adults only” to mean “adults” as the general adult population—anyone above the age of 18.   (Civ.Code, § 25.)

The recent decision in Adamson Companies v. Zipp, supra, 163 Cal.App.3d Supp. 1, 22, footnote 27, 210 Cal.Rptr. 165, summarized the societal forces causing the legislative concern and acts:

“We cannot ignore the enormous social costs which arise from the shortage of shelter for families with children as a result of discrimination.   These include arbitrary clustering in certain areas, thereby creating dislocations requiring additional schools, transportation, increased police protection and recreational facilities, as well as enhanced burdens upon the control of traffic within such areas.   Moreover, the clustering ‘correlates with the concentration of minorities and women and creates segregated living patterns based on race and sex.  (Fn. omitted.)   Racial imbalance in public schools has intensified as middle-class rentals are forced out of the cities by the unavailability of affordable and desirable housing and as minority renters are excluded from the suburbs by high rents.’   Finally, a family discriminated against in the housing market must compete with other families for the remaining available shelter, thereby forcing families ‘to live in undesirable neighborhoods or to pay higher rents than they would otherwise pay.’  (Note, op. cit. supra, 13 Golden Gate L.Rev. at pp. 700–701.)”

Finally, in 1983 the Senate Select Committee on Mobilehomes held a series of hearings across the state on “adults-only” restrictions in mobilehome parks.   These hearings focused on the difficulties encountered by mobilehome owners when a park changed from an adults-only park to a family park and vice versa, and on the desirability and need for mobilehome parks for two groups:  (1) families with children 6 and (2) retirees and senior citizens.7  Little or no concern was expressed as to the need to preserve adults-only restrictions for the general adult population who might prefer to live in an environment without children.   This lack of concern expressed further weakens the contention the “adults-only” restrictions show a legislative intent to provide mobilehome parks without children for the general adult population and to permit arbitrary discrimination against families with children.

In light of the Legislature's expressed concern with insuring an adequate supply of affordable housing to families with children as reflected in section 51.2, it is unreasonable to assume the Legislature intended to repeal the Unruh Act by implication, thereby to permit arbitrary discrimination in mobilehome parks and to encourage the resultant gross social dislocations.

VI

Finally, a construction of “adults only” to mean “senior citizens” is to be favored because it avoids confrontation with federal and state constitutional guarantees of equal protection.   The constitutional issues need not be addressed here if we find arbitrary discrimination against children in mobilehomes is prohibited by statute.   This is the lesson from Marina Point.   While it is true age is not a suspect class and there is no fundamental right to housing, numerous commentators have recognized that such discrimination may touch on other fundamental rights, e.g., associational rights, the right to marital privacy and the right to travel.  (See, e.g., Dunaway, Baxter and Blied, Timothy J., Discrimination Against Children in Rental Housing:  A California Perspective, 19 Santa Clara L.Rev. 21, 43–47 (1979);  Stanley, Richard C., Age Restrictions in Housing:  The Denial of the Family's Right to Integrity, 19 Harv.Civ.Rights—Civ.Lib.L.Rev. 61 (1984);  Travalio, Suffer the Little Children But Not in the Neighborhood:  A Constitutional View of Age Restrictive Housing, 40 Ohio St.L.J. 295 (1979);  Apartment for Rent:  Adults Only;  No Children Allowed, 15 Cal.W.L.Rev. 219, 243–245 (1979);  Note, supra, 13 Golden Gate L.Rev. 697, 702, fn. 33, 710, fn. 67;  Note, Housing Discrimination, 17 J. Family L. 167 (1978);  Landlord Discrimination Against Children:  Possible Solutions to a Housing Crisis, 11 Loyola (L.A.) L.Rev. 609, 629 (1978);  Real Property—Prospective Tenant Denied Housing Because of Adults-Only Policy Has Cause of Action Under Fourteenth Amendment and Fair Housing Act—Halet v. Wend Investment Co., 622 F.2d 1305, 23 Santa Clara L.Rev. 965, 972 (1983);  Housing Discrimination Against Families With Children:  A National Concern, 20 Washburn L.J. 307, 310–311 (1981).

VII

The foregoing constellation of binding Supreme Court decisions and persuasive appellate decisions and legislative acts and hearings point to these conclusions:  To find the “adults-only” restrictions in the relevant mobilehome park laws which authorize the park owners to discriminate against families with children, requires our finding the Legislature, by implication, intended to repeal the Unruh Act when applied to mobilehome parks and to arbitrarily segregate all mobilehome parks from other housing facilities so as to allow park owners to discriminate against families with children.   Reaching these conclusions seems far more difficult than avoiding them by interpreting the phrase “adults only” as the Supreme Court did in Marina Point and as the appellate department did in Adamson Companies v. Zipp, supra, 163 Cal.App.3d Supp. 1, 210 Cal.Rptr. 165.

Rules of statutory construction as well as obedience to Auto Equity 8 doctrine requires us to follow the Supreme Court's definitions and conclude a mobilehome park open to the public generally, but not children, is not an “adult” park as that phrase is used in Civil Code section 798.76 and Health and Safety Code section 18300, subdivision (g)(1).

Does West Winds meet the criteria set forth in Marina Point, Ltd., supra, 30 Cal.3d 721, 742–743, 180 Cal.Rptr. 496, 640 P.2d 115, as an age-restricted housing facility reserved for older—senior—citizens and which can “operate as a reasonable and permissible means under the Unruh Act of establishing and preserving specialized facilities for those particularly in need of such services or environment[?]”  (Ibid.)   The answer is no bar.   The record here does not support a reasonable conclusion West Winds meets the criteria;  the judgment should be reversed.

FOOTNOTES

FN1. All statutory references are to the Civil Code unless otherwise specified..  FN1. All statutory references are to the Civil Code unless otherwise specified.

2.   The Legislative Counsel's Digest aids determining legislative intent.  (See Rockwell v. Superior Court (1976) 18 Cal.3d 420, 443, 134 Cal.Rptr. 650, 556 P.2d 1101.)

3.   Section 51 applies to mobilehome parks in other contexts.   (See Winchell v. English (1976) 62 Cal.App.3d 125, 133 Cal.Rptr. 20 [§ 51 applicable to mobilehome park racial discrimination].)

1.   The determining factor in the Marina Point decision was the court's recognition of housing needs of families with children as well as social and economic problems created by discrimination against them.   (Id., 30 Cal.3d at p. 743, 180 Cal.Rptr. 496, 640 P.2d 115.)   Several factors coalesced to create the current rental housing shortage.   Among them are population growth, high interest rates and building costs which have constricted new apartment construction and the ability of many families to buy a home, condominium conversions, the deterioration of existing housing stock, and the growing divorce rate which requires two shelters to house persons formerly living in one unit.  (See Note, Marina Point, Ltd. v. Wolfson:  A Victory for Children in Rental Housing—Implications for Further Expansion of the Unruh Civil Rights Act (1983) 13 Golden Gate U.L.Rev. 697, 699–700, fns. 9–14 (hereafter Note).)

2.   These conclusions are supported by documentation submitted at a hearing on “adults only” restrictions mobilehomes conducted by the Senate Select Committee on Mobilehomes on February 15, 1983, in Sacramento, showing the mobilehome parks in Santa Cruz County where the number of spaces was known, less than 12 percent contained more than 155 spaces and nearly 25 percent contained less than 35 spaces.  (See Appendix to the report and transcript of hearing of the Senate Select Committee on Mobilehomes (Sacramento, Cal., Feb. 15, 1983) (hereafter Sacramento Hearing).)

3.   Statutes 1981, chapter 974, section 1, provided:  “The Legislature finds and declares that an intensifying shortage of mobilehome park spaces in many areas of the state degrades the quality of life of many Californians now living in mobilehome parks, and narrows the housing options open to many other Californians who cannot afford conventional single-family homes.   The Legislature further finds and declares that there is a need to eliminate the distinctions between mobilehome park developments and conventional forms of residential land use.”Chapter 974, section 2 was enacted as Government Code section 65852.7 which deemed a mobilehome park as “permitted land use on all land planned and zoned for residential land use.”In Statutes 1984, chapter 1443, section 1, the Legislature provided in pertinent part:  “The Legislature finds and declares that a manufactured housing offers Californians the opportunity to own and live in decent, safe, and affordable housing on a permanent basis.”Section 2 of chapter 1443 was enacted as Government Code section 65852.8 which directs the Department of Housing and Community Development to conduct a study regarding mobilehome zoning.

4.   Following the Supreme Court's decision in Marina Point many mobilehome parks changed their adults-only restrictions to age qualifications consistent with ages common to retirees/senior citizens.   (See appendix to Sacramento Hearing, letter submitted by Zona M. Hargiss, Owner, Carefree Living Homes.)

5.   At the Sacramento Hearing, Dora Ashford, the Executive Director of the Fair Housing for Children Coalition of California, testified that a recent survey in the San Fernando Valley found 98 percent of the mobilehome parks would not permit children.  (Pp. 33–34.)   At the same hearing, Marilyn Brown, an associate with the Human Rights-Fair Housing Commission of the City and County of Sacramento, testified a telephone survey completed the week before found of the 80 mobilehome parks contacted in Sacramento, only 22 permitted children.

6.   See, e.g., testimony at Sacramento Hearing by Harry Snider, West Coast Director for Consumers Union, pages 4–8;  Jim Morales, staff attorney of the National Center for Youth Law, pages 8–21;  Anita Arreloa, attorney for Public Advocates, Inc., pages 21–30;  Dora Ashford, Executive Director of the Fair Housing for Children Coalition of California, pages 31–42;  Marilyn Brown, associate of the Human Rights-Fair Housing Commission of the City and County of Sacramento, pages 60–83;  and testimony at the hearing of the Senate Select Committee on Mobilehomes (San Diego, Cal., Aug. 1, 1983) (hereafter San Diego Hearing) by Mary Hough, mobilehome park resident, page 14.

7.   See, e.g., testimony at Sacramento Hearing by Maurice Priest, member of the Golden State Mobilehome Owners League (GSMOL):  “I think we can safely categorize GSMOL membership as being predominantly senior citizens, most of which live in ‘adult only’ parks.”  (P. 68.)  “If there were abundant spaces statewide in mobilehome parks and families with children could find places, and seniors who wanted senior only parks could find them, I don't think we'd address this problem․”  (P. 70.)   Douglas Gaeta, mobilehome park manager:  “[N]ow we're not fighting against the young people surviving—we're fighting against our being able to survive and live the way we want to live as senior citizens.”)  (P. 75.)   Loyd Zimmerman, GSMOL State President:  “The few words are that we have a problem for children and we have a problem for senior citizens.”  (P. 82.)   See also testimony at the San Diego Hearing by Loyd Zimmeraman:  “[S]houldn't older citizens have rights?”  (P. 7.)   Joe Sarno, mobilehome park resident:  “The majority of ‘adults only’ parks were incepted, built, and operated as such because they served the needs and wants of the elderly․  A simple reclassification from ‘adults only’ to senior citizen villas, retirement haven, or whatever name desired to convey a specific age group, might solve the problem being faced by the true ‘adults only’ parks.”  (P. 18.)   Steve Balkam, GSMOL Associate Director-At-Large:  “It is not right for youngsters in those families to be held up close, one home to another, with an elderly little lady—I know of one 89 years old, living alone, and determined that she is going to stay alone, but on both sides of her are three kids in the family next door and two in the other, young kids.”  (P. 47.)   See also Sacramento Hearing testimony by Ted Voet, GSMOL Chapter President and retiree:  “Therefore, that means that if we are forced to go into family-type living, the cost of these amenities which the senior citizen or the adult, whatever you may want to call them․”  (Pp. 72–73.)   See also San Diego Hearing by Craig Biddle, Western Mobilehome Association:  “[O]ur Association policy is that you should have either 18-year old or senior citizen.”  (P. 26.)

8.   Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.

LEWIS, Associate Justice.

GERALD BROWN, P.J., concurs.

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