SUNRISE COUNTRY CLUB ASSN. v. PROUD
(1987) 190 Cal.App.3d 377
Ronald R. Easton for Defendants and Appellants.
Bock & Stoddard and Leonard A. Bock for Plaintiff and Respondent.
Defendants Ernest Proud, Carol Proud, Bert Gassman and Mildred Gassman appeal from a judgment determining a declaration of [190 Cal.App.3d 379]
covenants, conditions and restrictions (CC&Rs) affecting a
condominium development and a notice of association rules and
designation of adult and family regions issued pursuant thereto are
valid and enforceable and enjoining defendants from violating the
Sunrise Country Club is a sizable condominium development in Rancho
Mirage consisting of some 746 condominium units. It has 21 swimming
pools. Plaintiff Sunrise Country Club Association, Inc. (the
Association) is a nonprofit corporation in the nature of a homeowners'
association and is the managing body of the condominium development.
Article 6.7 of the CC&Rs recorded in 1973 is entitled "Association
Rules" and provides in relevant part: "The Board [board of directors]
shall adopt, amend, enforce and repeal such rules and regulations as
shall be necessary and proper for the operation of the Common Area and
all Association Property (the 'Association Rules').... At the outset,
with respect to each Phase or portion of a Phase, the Association Rules
shall contemplate Residential Common Area uses in each case establishing
the character of such Phase or portion of a Phase as being wholly an
'adult' community or a 'family' community. The Association Rules shall
define the features, the existence or absence of which shall determine
whether a Phase or portion of a Phase is to be considered an 'adult'
community or a 'family' community."
Pursuant to section 6.7 of the CC&Rs the board of directors of
Sunrise Country Club Association, Inc. caused to be recorded on December
20, 1976, a "Notice of Association Rules and Designation of 'Adult' and
'Family' regions Affecting: [¶] All of Tract 5031" with the exception
of certain enumerated lots.
Attached to the recorded notice was a copy of the Association Rules
(Rules) which provided in relevant part that all of tract 5031 except
for the enumerated lots "are divided into separate regions which are
officially designated by the Board of Directors of the Sunrise Country
Club Association, Inc., as either 'Adult' or 'Family' areas. All
condominiums are subject to certain rules and use restrictions.
Condominiums in 'Adult' areas must never be sold or rented to persons
with children under 16 years of age; and owners and personal guests of
owners may have children reside in 'Adult' areas for brief periods, but
the children under 16 years of age must not use the 'Adult' swimming
pools. Children should be taken to any 'Family' swimming pool, or to the
large clubhouse pool." [190 Cal.App.3d 380]
The result of these instruments is that Sunrise Country Club is divided
into "Adult" regions comprising 331 units with 10 swimming pools and
"Family" regions comprising 415 units with 11 swimming pools.
Although units were available in the "Family" regions, on March 23,
1984, defendants purchased a condominium unit at 81 La Cerra Drive
within an "Adult" region of Sunrise Country Club. Defendants Bert and
Mildred Gassman are apparently the parents of defendant Carol Proud. At
the time they purchased the property apparently neither the Gassmans nor
the Prouds had children under the age of 16 years. However, after
purchasing the unit Mr. and Mrs. Proud commenced adoption proceedings
for Kimberly, age five at the time of trial, and have also become the
court-appointed guardians of Jacob, age two at the time of trial. Mr.
and Mrs. Proud now reside in the condominium unit with the two minors,
and as found by the trial court, the defendants have intentionally
violated the CC&Rs and the Association Rules by permitting the
minors to reside in the unit at 81 La Cerra Drive and by permitting the
minors to use the adult swimming pools rather than the family swimming
The injunction issued by the court restrained defendants and their
privies from permitting minors under the age of 16 to reside in the unit
and from permitting such minors to use any of the adult swimming pools.
The court further found defendants' use of their condominium unit in
violation of the CC&Rs and the Rules constitutes both a breach of
contract and a nuisance.
Contentions, Issues and Discussion
Defendants contend section 6.7 of the CC&Rs and the portion of the
Association Rules designating separate adult and family regions are
invalid because they are in violation of the Unruh Civil Rights Act,
Civil Code section 51 et seq. (All further statutory references will be
to the Civil Code unless otherwise specified.) The Association contends
that a homeowners' association such as it is not a business
establishment within the meaning of Civil Code section 51 and urges that
the decision to the contrary in O'Connor v. Village Green Owners Assn.
(1983) 33 Cal.3d 790
[191 Cal.Rptr. 320, 662 P.2d 427] should be reexamined. Failing that,
the Association contends the Unruh Civil Rights Act does not prohibit
reasonable differences in treatment or accommodations afforded based on
actual characteristic differences or differences in needs of users, but
only unreasonable, arbitrary or invidious discrimination.
This court, of course, has no authority to reexamine decisions of the
California Supreme Court, but in our view no reexamination of the
O'Connor decision is required for the decision of this appeal.  We
agree with the [190 Cal.App.3d 381] Association and the trial
court that the Unruh Civil Rights Act prohibits only unreasonable,
arbitrary or invidious discrimination, not differential treatment based
on actual characteristic differences or differences in need of users. As
the California Supreme Court had occasion to point out in a different
context in J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1,
31 [160 Cal.Rptr. 710, 603 P.2d 1306]: "'[I]t is as old in philosophy
at least as Aristotle, and it is settled in the law as well, that the
application of an apparently uniform rule may in reality engender unfair
discrimination when like measures are applied to unlike cases.'" (Id,
quoting from International Union of E., R. & M. W., AFL-CIO v.
N.L.R.B. [Tiidee Products] (D.C. Cir. 1970) 426 F.2d 1243, 1250.)
The Association points out that Civil Code section 51 does not on its
face prohibit discrimination on the basis of age, declaring unlawful
only discrimination by business establishments on the basis of sex,
race, color, religion, ancestry or national origin. It also urges that
Civil Code section 51.2 prohibiting business establishments from
discriminating in the sale or rental of housing on the basis of age,
which was enacted in 1984 to become effective January 1, 1985, cannot be
applied retroactively to impair the contractual rights of other Sunrise
Country Club homeowners created by the CC&Rs and Association Rules.
Defendants counter with the argument that such contractual rights can
be lawfully impaired by the state in the proper exercise of its police
power. We do not believe, however, that it is necessary to get enmeshed
in these issues because the Unruh Civil Rights Act does not purport to
prohibit all differences in treatment or accommodations offered, only
unreasonable, arbitrary or invidious discrimination. (See Koire v. Metro
Car Wash (1985) 40 Cal.3d 24, 30-31, 37-38 [219 Cal.Rptr. 133, 707 P.2d 195]; O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d 790, 794; Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 736, 737, 741-743 [180 Cal.Rptr. 496, 640 P.2d 115, 30 A.L.R.4th 1161].)
As stated in Koire, "Although the Unruh Act proscribes 'any form of
arbitrary discrimination' (O'Connor v. Village Green Owners Assn. (1983)
33 Cal.3d 790,
794 [191 Cal.Rptr. 320, 662 P.2d 427]), certain types of discrimination
have been denominated 'reasonable' and, therefore, not arbitrary ....
[¶] In certain contexts, it has been said that the Act is inapplicable
to discrimination between patrons based on the 'nature of the business
enterprise and of the facilities provided.' (O'Connor v. Village Green
Owners Assn., supra, 33 Cal.3d at p. 794, see Marina Point, supra, 30
Cal.3d at p. 741; Wynn v. Monterey Club (1980) 111 Cal.App.3d 789,
796-798 [168 Cal.Rptr. 878].) " (Koire v. Metro Car Wash, supra, 40
Cal.3d at p. 30; see also Ross v. Forest Lawn Memorial Park (1984) 153 Cal.App.3d 988, 993 [203 Cal.Rptr. 468, 42 A.L.R.4th 1049].) [190 Cal.App.3d 382]
The trial court determined and we agree that the division of Sunrise
Country Club into adult and family regions where over one-half the
living units and swimming pools are designated for family use does not
constitute an unreasonable or arbitrary age discrimination. First and
foremost there is no blanket exclusion of children under the age of 16
(hereafter children) from Sunrise Country Club; some 415 units out of
746 are designated for families with children. Families with children
have the use of at least 11 swimming pools and it is not unreasonable or
arbitrary to set aside 10 swimming pools for use by adults only. The
absence of a total exclusion and the reasonable provision of housing and
recreational facilities for families with children make this case
fundamentally distinguishable from O'Connor v. Village Green Owners
Assn., supra, 33 Cal.3d 790 and Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721.
In both those cases the exclusion sought to be enforced was complete
and absolute. The decision of this court in Park Redlands Covenant
Control Committee v. Simon (1986) 181 Cal.App.3d 87 [226 Cal.Rptr. 199] also involved a complete and absolute exclusion and is therefore inapplicable.
In addition, the evidence disclosed a surplus of family housing
accommodations in the cities of Rancho Mirage and Palm Desert and there
was evidence that children playing in streets of the family areas are in
less danger of injury than in the adult area and that children's
welfare and health is promoted by their not using the adult jacuzzis.
Finally, there was evidence that the adult areas were largely populated
by retired or semiretired adults.
As pointed out by the court in Koire, "Numerous statutes in California
provide for differential treatment of children and adults. (See, e.g.,
Welf. & Inst. Code, § 200 et seq. [the Arnold-Kennick Juvenile Court
Law]; Civ. Code, § 1556 [limitation on minors' capacity to contract];
Veh. Code, § 12507 [no person under 16 years of age may be licensed to
drive].)" (Koire, supra, 40 Cal.3d 24, 37; see also O'Connor v. Village Green Owners Assn., supra, 33 Cal.3d 790, 800-801 [dis. opn. of Mosk, J., concurred in by Richardson, J.].)
 The appeal does present one problem not addressed by the parties in
their briefs but raised and discussed at oral argument. Although the
injunction issued by the court only restrained defendants from
permitting minors under the age of 16 to reside in the unit and from
permitting such minors to use the adult swimming pools, in the
declaratory portion of the judgment the court declared valid both the
CC...Rs and the Association Rules. The rules contain a prohibition
against the sale or rental of condominiums in adult areas to persons
with children under the age of 16 years. The prohibition against rental,
interpreted as a prohibition against rental for occupancy by families
with children under the age of 16 years is rationally related to [190 Cal.App.3d 383]
purposes of the restriction and is reasonable. However, as this court
pointed out in Laguna Royale Owners Assn. v. Darger (1981) 119 Cal.App.3d 670,
685 [174 Cal.Rptr. 136] ownership of a condominium has no necessary
relationship to its use. Persons may own a condominium unit for
investment purposes or for use by less than all members of a family.
Thus, the outright prohibition on sale of a condominium to an owner
having children under the age of 16 years may not be upheld. The
judgment must be modified accordingly.
The judgment is modified to provide that the CC&Rs and the
Association Rules are valid except to the extent the rules contain an
outright prohibition on ownership of a condominium in an adult area by
an owner having children under 16 years of age. As so modified the
judgment is affirmed. Respondent shall recover costs on appeal.
Campbell, P. J., and McDaniel, J., concurred.