ROSALES v. HUNTINGTON BY THE SEA MOBILEHOME PARK (1987)

OPINION

 The superior court determined adults only restrictions in mobilehome parks do not violate the Unruh Civil Rights Act or the state and federal Constitutions.   We agree and affirm.

I

George and Cynthia Rosales moved to the adults only Huntington-By-The-Sea Mobilehome Park in November 1981.   They had good news in August 1983, the birth of their first child.   The bad news was management's direction to move on because of the adults only rule.   Appropriate statutory eviction notices followed, succeeded in due course by an unlawful detainer action.   The Rosales countered with a complaint for declaratory relief challenging Civil Code section 798.76, a statute which expressly permits mobilehome parks to restrict residency to persons eighteen years and older.¹

The parties agreed to abate prosecution of the unlawful detainer action in order to obtain a judgment in the declaratory relief action.   That matter was tried to the court on stipulated facts.   It determined section 798.76 violates neither the Unruh Civil Rights Act (Civ.Code, § 51 et seq.) nor the state and federal constitutional guarantees of due process and equal protection.²  This appeal ensued.

II

During the 1970's, the Legislature adopted a series of statutes pertaining to the rights of mobilehome park tenants.   The centerpiece, the Mobilehome Residency Law (Civ.Code, § 798 et seq.), was approved in 1978.   It sets forth a comprehensive scheme for the regulation of mobilehome park management and a codification of residents' rights.   The Mobilehome Residency Law incorporated a provision originally added in 1975 which authorized management to restrict mobilehome park residency to adults only.³  (Civ.Code, § 798.76 (former Civ.Code, § 789.10) Stats. 1975, ch. 146, p. 280, § 3;  see also Health & Saf. Code, § 18300, subd. (g)(1), authorizing local public entities to establish zoning requirements for “family mobilehome parks” and “adult mobilehome parks.”)   The reference to “adults” in the statute means all persons eighteen years of age or older.  (Civ.Code, § 25.1.)   A resident's failure to comply with an adults only rule justifies the termination of the tenancy.  (Civ.Code, § 798.56, subd. (c).)

The Rosales, however, argue the anti-discrimination mandates of the Unruh Civil Rights Act must prevail over the permissive adults only restriction of section 798.76.   At the most, they assert, section 798.76 may validly authorize senior citizen mobilehome parks.

In one form or another, the Unruh Civil Rights Act has been part of California's statutory heritage since 1905.⁴  Its guarantees of “full and equal accommodations, advantages, [and] privileges” extend to prohibit arbitrary discrimination against families with children in condominium and rental housing.  (O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427;  Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115.)   In Marina Point, however, the court did sanction “the age-limited admission policies of retirement communities or housing complexes reserved for older citizens.”  (Id., at p. 742, 180 Cal.Rptr. 496, 640 P.2d 115.)

In order to implement Marina Point and O'Connor, the Legislature enacted Civil Code sections 51.2 and 51.3 in 1984.  Section 51.2 declares that the Unruh Civil Rights Act “shall be construed to prohibit ․ [discriminat[ion] in the sale or rental of housing based upon age․” ⁵  But, following Marina Point's lead, it specifically exempts “accommodations [ ] designed to meet the physical and social needs of senior citizens․”  Section 51.3 sets forth criteria to define senior citizen housing developments for that purpose.   That section explicitly eliminates mobilehome parks from its scope, however.  (Civ.Code, § 51.3, subd. (c)(4).) ⁶

Because Civil Code section 51 is broader in its application, the Rosales claim it must prevail over the more restrictive provisions of section 798.76.   Not so.   The law on this point is well settled:  “ ‘ “A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.” ’  [Citation.]”  (People v. Encerti (1982) 130 Cal.App.3d 791, 796, 182 Cal.Rptr. 139;  see also Finn v. Superior Court (1984) 156 Cal.App.3d 268, 271, 202 Cal.Rptr. 732.)   Moreover, as the predecessor to section 798.76 (former Civ.Code, § 789.10) was added in 1975, decades after section 51, we must presume the Legislature did intend to exempt access to mobilehome parks based on age from its reach.

The Supreme Court acknowledged precisely that in Marina Point.   There, in rejecting the landlord's argument that the Legislature did not intend section 51 to apply to apartment complexes or rental housing in general, the majority cited the passage of section 798.76 to illustrate the point that the Legislature knows how to exempt a particular form of housing from the Unruh Act.  (Marina Point v. Wolfson, supra, 30 Cal.3d at pp. 736, fn. 7, 743, fn. 11, 180 Cal.Rptr. 496, 640 P.2d 115.)   The Attorney General has reached a similar conclusion:  “Mobilehome parks, by reason of their purpose, operation or physical design, may or may not wish to exclude children as residents.   The Marina Point court has determined that the Legislature, in Civil Code section 798.76, has carved out an exception to the Unruh Act which would permit such an exclusion.”  (65 Ops.Cal. Atty.Gen. 559, 562 (1982).)

The Legislature itself appears to have recognized that statutes in this area occasionally collide.  Government Code section 12993, part of the California Fair Employment and Housing Act, provides, “․ 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 ․ age.”   (Emphasis added.)

Similarly, section 51.2, enacted after section 798.76, addresses the issue of housing in general terms only;  and section 51.3 carries the specific exemption for mobilehome parks.   Consequently, we must presume the Legislature did not intend to disturb the more specific adults only option of section 798.76.  (People v. Encerti, supra, 130 Cal.App.3d 791, 796, 182 Cal.Rptr. 139.)

Civil Code section 798.76, as the Supreme Court noted in Marina Point, is a legislative exception to Civil Code section 51.   Nothing has occurred since its passage to change that.   Legally and logically, therefore, adults only restrictions in mobilehome parks cannot violate the Unruh Civil Rights Act.   It may be poor social policy in the view of many, but it is rather clearly the policy the Legislature has chosen.

 There is also no support for the Rosales' contention that the “adults only” language in section 798.76 must be construed to apply to senior citizens only.   The word “adult” in post March 4, 1972 legislation unquestionably refers to persons eighteen years of age or older.  (Civ.Code, § 25.1.)   In recognition of this fact, the Attorney General has determined, and we agree, that a municipal ordinance which would purport to interpret the “adults only” language in section 798.76 to mean “persons 62 years of age or older” would be unlawful.  (65 Ops.Cal.Atty.Gen. at p. 559, supra.)

III

Next, the Rosales challenge the constitutionality of section 798.76 on due process and equal protection grounds under both the state and federal Constitutions.   There is no question that, as we interpret the law, mobilehome parks are treated differently from all other forms of housing.   Thus, the first question we must resolve is the appropriate standard of review:  Must section 798.76 further a compelling state interest or need it merely bear a rational relationship to a legitimate state purpose?

Citing Moore v. City of East Cleveland, Ohio (1977) 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531, the Rosales claim strict scrutiny is required because they have a fundamental right to housing.  Moore, however, addressed a considerably different and far more sweeping question, the constitutionality of legislation regulating the categories of related persons who could legally live together as a family in the entire city.   The notion that there is a fundamental right to housing was specifically rejected by the United States Supreme Court in Lindsey v. Normet (1972) 405 U.S. 56, 73–74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 and Village of Arlington Hts. v. Metro. Housing Dev. (1977) 429 U.S. 252, 260, fn. 5, 97 S.Ct. 555, 560, fn. 5, 50 L.Ed.2d 450.

Nonetheless, while the California Supreme Court accepted the federal position years ago in Adams v. Superior Court (1974) 12 Cal.3d 55, 61, 115 Cal.Rptr. 247, 524 P.2d 375, the Legislature may have reached a contrary determination.   For example, Government Code section 65580, subdivision (a) declares, “The availability of housing is of vital statewide importance, and the early attainment of decent housing and a suitable living environment for every California family is a priority of the highest order.”

Also, where discrimination in housing is at issue, as it is here, federal and state courts have adopted a more stringent view.  (Moore v. City of East Cleveland, Ohio, supra, 431 U.S. 494, 97 S.Ct. 1932;  City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 164 Cal.Rptr. 539, 610 P.2d 436;  Atkisson v. Kern County Housing Authority (1976) 59 Cal.App.3d 89, 97, 130 Cal.Rptr. 375.)   Indeed, Marina Point itself discusses the adults only issue in terms suggesting that the higher standard must apply:  “Marina Point cannot plausibly claim that its exclusionary policy serves any—compelling state interest [similar to senior citizen housing].”  (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d at p. 743, 180 Cal.Rptr. 496, 640 P.2d 115.)   Accordingly, we believe the safer course is to assume that section 798.76 does run afoul of the principles of due process and equal protection guaranteed by the California Constitution unless it furthers a compelling state interest.   In our view, however, the Legislature had a sound basis to support such a conclusion.

Mobilehome park housing is a thing unto itself.   The term itself is an oxymoron:  Many, if not most, mobilehomes are, for all practical purposes, not mobile (see, e.g., Civ.Code, § 798.55, in which the Legislature has acknowledged that a move is fraught with the potential for significant damage to the structure and that the cost of transplanting a mobilehome may in many instances exceed its value.)

The physical layout of mobilehome parks often makes residents particularly vulnerable to inconsiderate or noisy neighbors.   They live in relatively compact and closely bunched islands with thin walls, generally small yards, and few fences.   Thus, mobilehome parks may be viewed as campgrounds generally comprised of semi-movable condominiums owned by the occupants.   In recognition of these unique features, mobilehome parks have been the subject of comprehensive state regulation (Civ.Code, § 798 et seq.) and local controls as well (Health & Saf. Code, § 18300, subd. (g)(1);  Palos Verdes Shores Mobile Estates, Ltd. v. City of Los Angeles (1983) 142 Cal.App.3d 362, 373–374, 190 Cal.Rptr. 866).

In an era of escalating real property prices, mobilehomes provide a much-needed low cost housing alternative.   On several occasions the Legislature has reaffirmed the importance of the availability of mobilehomes:  “[M]anufactured housing, which includes mobilehomes, offers Californians an additional opportunity to own and live in decent, safe, and affordable housing on a permanent basis.”  (Stats.1980, ch. 1142, § 1, p. 3691 [adding Gov.Code, § 65852.3, which precludes cities and counties from prohibiting installation of mobilehomes on lots zoned for single-family dwellings];  see also Stats.1984, ch. 1443, §§ 1 and 2, pp. 613–614 [adding Gov.Code, § 65852.8, authorizing funding for a study on the implementation of Gov.Code, § 65852.3].)

We realize that families with children are as much in need of affordable housing as adults without children, and probably more so.   But mobilehomes make up a relatively minor portion of the housing stock of the state, and the Legislature appears to have determined the sui generis treatment is required to encourage its growth in light of the unique features of mobilehome occupancy described above.   We see no basis to substitute our judgment as to the compelling state interest involved in that determination.

Judgment affirmed.   Respondent is entitled to costs on appeal.

I dissent.   The majority assumes the Legislature intended to exempt mobile home parks from the general requirements of the Unruh Act.   I cannot agree.

I

Former section 789.10 allowed a park owner, pursuant to certain conditions, to require removal of a mobile home at time of sale.¹  Park owners could force removal if the mobile home was 10 years old or more, less than 10 feet wide, or in a state of disrepair.   The Park owners had absolute discretion in determining whether the mobile home was in a state of disrepair.   If the home was to remain in the park, the park owners were allowed to approve the purchasers.

Responding to the pleas of mobile home owners, the Legislature in 1978 adopted the Mobilehome Residency Law.  (§ 798, et seq.)   Its purpose was to limit the park owner's control.   Removal can be required only if the home is 15 years or older.   The Park owners must use reasonable discretion in determining whether the mobile home is in a state of disrepair and they may not unreasonably withhold their approval of purchasers.

Additionally, the Act includes the following language:  “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.”  (§ 798.76.)   The statute did not propose to define the content of such rules or to provide a definition of “adults.”

Following the adoption of section 798.76, the California Supreme Court interpreted the Unruh Act to prohibit arbitrary age discrimination in condominium and rental housing.  (O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427;  Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115.)   The court noted in Marina Point:  “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 at p. 744, 180 Cal.Rptr. 496, 640 P.2d 115.)

The court, however, did suggest some age discrimination in narrow circumstances which would be permissible.   The court specifically noted setting aside housing for the unique needs of the elderly is such a special circumstance.  (Id., at pp. 742–743, 180 Cal.Rptr. 496, 640 P.2d 115.)

The Legislature, in order “to clarify the holdings in [Marina Point and O'Connor ]” (§ 51.2, subd. (b)) enacted sections 51.2 and 51.3.   Section 51.2 provides:  “(a) Section 51 ² 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.”

Section 51.3 authorizes the maintenance and construction of housing designed to meet the needs of senior citizens.  Sections 51.2 and 51.3, as originally drafted, were intended to define a senior citizen's community.   Section 51.2, as first contemplated, permitted age restrictions in housing and mobile home parks only if the housing was for persons 62 and older and only if the park was developed specifically for seniors.   Proposed section 51.2 amended section 798.76 to include a senior citizen exception.  Section 51.3 made no mention of mobile home parks.

After the two authors discovered the conflicts of the proposed sections 51.2 and 51.3, both sections were reworded and double joined.  Section 51.2, as enacted, makes no reference to mobile home parks.  Section 51.3, as enacted, defines housing to include all residential housing other than mobile home developments.

II

The Park urges the language of section 798.76 unambiguously allows adult only mobile home parks.   It points to section 25.1 which defines “adult” as any person over 18 years of age and concludes the Legislature enacted section 798.76 as a specific exception to the general language of the Unruh Civil Rights Act.

The Park argues the California Supreme Court, in Marina Point, Ltd. and O'Connor, recognized mobile home parks as an exception to the provisions against age discrimination.   Moreover, it suggests this interpretation is buttressed by the Legislature's enactment of sections 51.2 and 51.3.   The Park contends had the Legislature intended “adult” to mean senior citizen, it would have expressly said so.

Clearly, section 798.76 relates to adults only restrictions.   The statute does not attempt to define that term;  its legislative history is devoid of any discussion of its meaning.   But the mandates of the Supreme Court are clearly expressed in Marina and Wolfson.   The court in Marina Point approved of section's 798.76 adults only exception, but because it defined adults as senior citizens.  (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 743, fn. 11, 180 Cal.Rptr. 496, 640 P.2d 115.)   The court noted the “special features of mobile home parks, which correlate closely with the special needs of older citizens, may well explain the fact that mobile home parks constitute the only housing facilities in which the California Legislature has explicitly authorized ‘adult only ’ restrictions.  [Citations.]”  (Ibid., emphasis added.)

The court stated, “In light of the housing special needs of older citizens, ․ ‘[t]he role which mobile home developments can play in satisfying the special needs of the State's senior citizens is evident.   First, mobile homes provide a relatively inexpensive form of housing at a time when the demand for such housing is great and its availability is limited․  Second, mobile home developments afford the elderly the age-homogenous environments which many older persons now seek and desire.   Finally, the size of mobile homes is ideal for older persons with both physical and financial limitations․'  [Citation.]”  (Ibid., emphasis added.)

And the legislative history of sections 51.2 and 51.3 indicates the Legislature recognized the mandates of the Unruh Act and the Supreme Court.   An April 4, 1984 Assembly Committee report notes “it is highly questionable whether an adults-only policy in mobilehome parks can withstand a constitutional challenge.”

The Legislature adopted section 51.2 to prohibit arbitrary age discrimination in housing except in the case of specially designed senior citizens communities.  Section 51.3 was adopted to implement the senior citizen exception of 51.2 by setting standards for senior citizen communities.  Section 51.3(c)(3) exempted mobile homes from the requirements of section 51.3 because few, if any of the parks, could meet the minimum number of dwelling units required by section 51.3.   The Legislature was content to allow mobile home park management to set their own standards for senior citizens communities under section 798.76 as interpreted by Marina Point.   In the absence of a clear and unambiguous expression of legislative intent to the contrary, it would be unreasonable to hold the Legislature intended otherwise.   The Legislature was aware the Supreme Court had found adult only housing impermissible.   To prohibit this restriction in all housing but mobile homes would be senseless.   This is particularly true in light of the Supreme Court's recognition of mobile home parks' suitability to the needs of the elderly.   Certain mobile home parks may well be able to demonstrate they are designed for the elderly and entitled to limit residency to “senior citizens”;  but that does not equate to a blanket exemption for all parks to arbitrarily age discriminate.³

I would reverse the judgment.

FOOTNOTES

1.   Civil Code section 798.76 provides, “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.”

2.   The Supreme Court has accepted two cases on this issue.   Division One of this court determined section 798.76 does not violate the Unruh Civil Rights Act.  (Dubreuil v. West Winds Mobile Lodge (1985), review granted Aug. 15, 1985 (L.A. 32095), reprinted at 192 Cal.App.3d 1576, 213 Cal.Rptr. 12 to permit tracking.)   Division Six of the Second District reached a contrary result.  (Schmidt v. Superior Court (1985), review granted Sept. 25, 1986, reprinted at 185 Cal.App.3d 31, 215 Cal.Rptr. 840 to permit tracking.)  Adamson Companies v. Zipp (1984) 163 Cal.App.3d Supp. 1, 210 Cal.Rptr. 165, an opinion in which an appellate department determined section 798.76 violates the Unruh Civil Rights Act, remains “on the books.”   For the reasons expressed below, we disapprove of its analysis and holding.

3.   It has been reported that more than ninety percent of mobilehome parks in California are restricted to adults only.  (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 L.Rev. 697, 710, fn. 67.)

4.   See Civil Code section 51 et seq.   The short title was added in 1959.  (Stats.1959, ch. 1866, p. 4424, § 1.)  Section 51 states, “[¶] All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever․”

5.   Mobilehome parks typically rent spaces upon which a structure owned by the tenant is located.   To this extent many are not literally engaged in the “sale or rental of housing,” only of the ground under the resident's unit.

6.   The rationale for the exemption of mobilehome parks was not, to our knowledge, explained by the Legislature when Civil Code section 51.3 was adopted.   It could be, and has been, argued that the exemption merely relieves senior citizen mobilehome parks from the detailed regulation of senior citizen housing in general.   Perhaps so.   In any event, we do not deal with a senior citizen mobilehome park.

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

2.   Adopted in its present form in 1959, the Unruh Civil Rights Act, section 51, provides in pertinent part:  “All persons within the jurisdiction of this state are free and equal, and ․ are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

3.   Because I would decide the issue on statutory mandates, I need not discuss the constitutional issues.   Nevertheless, I question my colleagues' conclusion the statute, as interpreted, is constitutional.They concede mobilehome parks are treated differently from all other forms of housing.   They accept section 798.76 must be reviewed in light of a compelling state interest.   However, they suggest the sui generis treatment is justified by the unique features of mobilehome occupancy.   Why?  Because the Legislature has said so.   Nonsense!Far from finding disparate treatment permissible based on state compelling interests, I would decide this age discrimination in housing, because it is not tied to the needs of the elderly, to be arbitrary and therefore unconstitutional.

CROSBY, Associate Justice.

TROTTER, P.J., concurs.