Nahrstedt v. Lakeside Village Condominium Assn.

*390 ARABIAN, J., Dissenting.

—“There are two means of refuge from the misery of life: music and cats.” 1

I respectfully dissent. While technical merit may commend the majority’s analysis, 2 its application to the facts presented reflects a narrow, indeed chary, view of the law that eschews the human spirit in favor of arbitrary efficiency. In my view, the resolution of this case well illustrates the conventional wisdom, and fundamental truth, of the Spanish proverb, “It is better to be a mouse in a cat’s mouth than a man in a lawyer’s hands.”

As explained below, I find the provision known as the “pet restriction” contained in the covenants, conditions, and restrictions (CC&R’s) governing the Lakeside Village project patently arbitrary and unreasonable within the meaning of Civil Code section 1354. Beyond dispute, human beings have long enjoyed an abiding and cherished association with their household animals. Given the substantial benefits derived from pet ownership, the undue burden on the use of property imposed on condominium owners who can maintain pets within the confines of their units without creating a nuisance or disturbing the quiet enjoyment of others substantially outweighs whatever meager utility the restriction may serve in the abstract. It certainly does not promote “health, happiness [or] peace of mind” commensurate with its tariff on the quality of life for those who value the companionship of animals. Worse, it contributes to the fraying of our social fabric. 3

1. The pleadings.

I begin my analysis with the plaintiff’s pleadings, the allegations of which must be accepted as true on review of an order sustaining a demurrer. (Long Beach Equities, Inc. v. County of Ventura (1991) 231 Cal.App.3d 1016, 1024 [ 282 Cal.Rptr. 877 ].) Moreover, in evaluating the sufficiency of the complaint at this stage of the proceedings, a reviewing court must “look to *391 substance, not to form” (Menefee v. Oxnam (1919) 42 Cal.App. 81, 96 [ 183 P. 379 ]; see, e.g., Universal By-Product, Inc. v. City of Modesto (1974) 43 Cal.App.3d 145,151 [ 117 Cal.Rptr. 525 ]), construing the pleadings liberally, “with a view to substantial justice between the parties” (Code Civ. Proc., §452).

In relevant part, plaintiff has alleged that she is the owner of a condominium unit located in Lakeside Village; that she has three cats which she brought with her when she moved there; that she maintains her cats entirely within the confines of her unit and has “never released [them] in any common area”; that they are “noiseless, create no nuisance, [and] have not destroyed any portion of [her] unit, or the common area”; and that they provide her companionship. She further alleges the homeowners association is seeking to enforce a recorded restriction that prohibits keeping any pets except domestic fish and birds.

The majority acknowledge that under their interpretation of Civil Code section 1354 “the test for determining when the harmful effects of a land-use restriction are disproportionate to benefit ‘is necessarily vague.’ [Citation.]” (Maj. opn., ante, at p. 382.) Nevertheless, in their view the foregoing allegations are deficient because they do not specifically state facts to “support a finding that the burden of the restriction on the affected property is so disproportionate to its benefit that the restriction is unreasonable and should not be enforced.” (Maj. opn., ante, at pp. 386-387.) They also fail to make “any reference to the effect on the condominium development as a whole . . . .” (Maj. opn. ante, at p. 387.) This narrow assessment of plaintiff’s complaint does not comport with the rule of liberal construction that should prevail on demurrer. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245 [ 74 Cal.Rptr. 398 , 449 P.2d 462 ].) When considered less grudgingly, the pleadings are sufficient to allege that the pet restriction is unreasonable as a matter of law.

Genetically stated, plaintiff challenges this restriction to the extent it precludes not only her but anyone else living in Lakeside Village from enjoying the substantial pleasures of pet ownership while affording no discernible benefit to other unit owners if the animals are maintained without any detriment to the latter’s quiet enjoyment of their own space and the common areas. In essence, she avers that when pets are kept out of sight, do not make noise, do not generate odors, and do not otherwise create a nuisance, reasonable expectations as to the quality of life within the condominium project are not impaired. At the same time, taking into consideration the well-established and long-standing historical and cultural relationship between human beings and their pets and the value they impart (cf. Evid. *392 Code, § 452, subd. (g)), enforcement of the restriction significantly and unduly burdens the use of land for those deprived of their companionship. Considered from this perspective, I find plaintiff’s complaint states a cause of action for declaratory relief. 4

2. The burden.

Under the majority’s construction of Civil Code section 1354, the pet restriction is unreasonable, and hence unenforceable, if the “burdens [imposed] on the affected land ... are so disproportionate to the restriction’s beneficial effects that the restriction should not be enforced.” (Maj. opn., ante, at p. 382.) What, then, is the burden at issue here?

Both recorded and unrecorded history bear witness to the domestication of animals as household pets. 5 Throughout the ages, dogs and cats have provided human beings with a variety of services in addition to their companionship—shepherding flocks, guarding life and property, hunting game, ridding the house and bam of vermin. Of course, the modem classic example is the assist dog, which facilitates a sense of independence and security for disabled persons by enabling them to navigate their environment, alerting them to important sounds, and bringing the world within their reach. 6 Emotionally, they allow a connection full of sensation and delicacy of feeling.

*393 Throughout the ages, art and literature, as well as mythology, depict humans in all walks of life and social strata with cats and dogs, illustrating their widespread acceptance in everyday life. 7 Some religions have even incorporated them into their worship. 8 Dogs and cats are also admired for the purity of their character traits. 9 Closer to home, our own culture is populated with examples of the well-established place pets have found in our hearts and homes. 10

In addition to these historical and cultural references, the value of pets in daily life is a matter of common knowledge and understanding as well as extensive documentation. People of all ages, but particularly the elderly and the young, enjoy their companionship. Those who suffer from serious disease or injury and are confined to their home or bed experience a therapeutic, even spiritual, benefit from their presence. 11 Animals provide comfort at the death of a family member or dear friend, and for the lonely can offer a reason for living when life seems to have lost its meaning. 12 In recognition of these benefits, both Congress and the state Legislature have expressly guaranteed that elderly and handicapped persons living in public-assistance housing cannot be deprived of their pets. (12 U.S.C. § 1701r-l; Health & Saf. Code, § 19901.) Not only have children and animals always been natural companions, children learn responsibility and discipline from pet *394 ownership while developing an important sense of kindness and protection for animals. 13 Single adults may find certain pets can afford a feeling of security. Families benefit from the experience of sharing that having a pet encourages. While pet ownership may not be a fundamental right as such, unquestionably it is an integral aspect of our daily existence, which cannot be lightly dismissed and should not suffer unwarranted intrusion into its circle of privacy.

3. The benefit.

What is gained from an uncompromising prohibition against pets that are confined to an owner’s unit and create no noise, odor, or nuisance?

To the extent such animals are not seen, heard, or smelled any more than if they were not kept in the first place, there is no corresponding or concomitant benefit. Pets that remain within the four comers of their owners’ condominium space can have no deleterious or offensive effect on the project’s common areas or any neighboring unit. Certainly, if other owners and residents are totally unaware of their presence, prohibiting pets does not in any respect foster the “health, happiness [or] peace of mind” of anyone except the homeowners association’s board of directors, who are thereby able to promote a form of sophisticated bigotry. In light of the substantial and disproportionate burden imposed for those who must forego virtually any and all association with pets, this lack of benefit renders a categorical ban unreasonable under Civil Code section 1354.

The proffered justification is all the more spurious when measured against the terms of the pet restriction itself, which contains an exception for domestic fish and birds. A squawking bird can readily create the very kind of disturbance supposedly prevented by banning other types of pets. At the same time, many animals prohibited by the restriction, such as hamsters and the like, turtles, and small reptiles, make no sound whatsoever. Disposal of bird droppings in common trash areas poses as much of a health concern as cat litter or rabbit pellets, which likewise can be handled in a manner that avoids potential problems. Birds are also known to carry disease and provoke allergies. Neither is maintaining fish without possible risk of interfering with the quiet enjoyment of condominium neighbors. Aquarium water must be changed and disposed of in the common drainage system. Leakage from a fish tank could cause serious water damage to the owner’s unit, those below, and common areas. Defendants and the majority purport such solicitude for the “health, sanitation and noise concerns” of other unit owners, but *395 fail to explain how the possession of pets, such as plaintiff’s cats, under the circumstances alleged in her complaint, jeopardizes that goal any more than the fish and birds expressly allowed by the pet restriction. This inconsistency underscores its unreasonableness and discriminatory impact. 14

4. The majority’s burden/benejit analysis.

From the statement of the facts through the conclusion, the majority’s analysis gives scant acknowledgment to any of the foregoing considerations but simply takes refuge behind the “presumption of validity” now accorded all CC&R’s irrespective of subject matter. They never objectively scrutinize defendants’ blandishments of protecting “health and happiness” or realistically assess the substantial impact on affected unit owners and their use of their property. As this court has often recognized, “deference is not abdication.” (Pe ople v. McDonald (1984) 37 Cal.3d 351, 377 [ 208 Cal.Rptr. 236 , 690 P.2d 709 , 46 A.L.R.4th 1011 ].) Regardless of how limited an inquiry is permitted under applicable law, it must nevertheless be made.

Here, such inquiry should start with an evaluation of the interest that will suffer upon enforcement of the pet restriction. In determining the “burden on the use of land,” due recognition must be given to the fact that this particular “use” transcends the impersonal and mundane matters typically regulated by condominium CC&R’s, such as whether someone can place a doormat in the hallway or hang a towel on the patio rail or have food in the pool area, and reaches the very quality of life of hundreds of owners and residents. Nonetheless, the majority accept uncritically the proffered justification of preserving “health and happiness” and essentially consider only one criterion to determine enforceability: was the restriction recorded in the original declaration? 15 If so, it is “presumptively valid,” unless in violation of public policy. Given the application of the law to the facts alleged and by an *396 inversion of relative interests, it is difficult to hypothesize any CC&R’s that would not pass muster. 16 Such sanctity has not been afforded any writing save the commandments delivered to Moses on Mount Sinai, and they were set in stone, not upon worthless paper.

Moreover, unlike most conduct controlled by CC&R’s, the activity at issue here is strictly confined to the owner’s interior space; it does not in any manner invade other units or the common areas. Owning a home of one’s own has always epitomized the American dream. More than simply embodying the notion of having “one’s castle,” it represents the sense of freedom and self-determination emblematic of our national character. Granted, those who live in multi-unit developments cannot exercise this freedom to the same extent possible on a large estate. But owning pets that do not disturb the quiet enjoyment of others does not reasonably come within this compromise. Nevertheless, with no demonstrated or discernible benefit, the majority arbitrarily sacrifice the dream to the tyranny of the “commonality.”

5. Conclusion.

Our true task in this turmoil is to strike a balance between the governing rights accorded a condominium association and the individual freedom of its members. To fulfill that function, a reviewing court must view with a skeptic’s eye restrictions driven by fear, anxiety, or intolerance. In any community, we do not exist in vacuo. There are many annoyances which we tolerate because not to do so would be repressive and place the freedom of others at risk.

In contravention, the majority’s failure to consider the real burden imposed by the pet restriction unfortunately belittles and trivializes the interest at stake here. Pet ownership substantially enhances the quality of life for those who desire it. When others are not only undisturbed by, but completely unaware of, the presence of pets being enjoyed by their neighbors, the balance of benefit and burden is rendered disproportionate and unreasonable, rebutting any presumption of validity. Their view, shorn of grace and guiding philosophy, is devoid of the humanity that must temper the interpretation and application of all laws, for in a civilized society that is the source *397 of their authority. As judicial architects of the rules of life, we better serve when we construct halls of harmony rather than walls of wrath.

I would affirm the judgment of the Court of Appeal.

Albert Schweitzer.

The majority invest substantial interpretive significance regarding the enforceability of condominium restrictions in the replacement of “where reasonable” in Civil Code former section 1355 with “unless unreasonable” in Civil Code section 1354. (See maj. opn., ante, at p. 380.) Other than the statutory language itself, however, they cite no evidence the Legislature considered this a “material alteration” or intended a “marked change” in the statute’s interpretation. Although I fail to see other than a semantical distinction carrying little import as to legislative intent, I find the pet restriction at issue here unenforceable under either standard.

The majority imply that if enough owners find the restriction too oppressive, they can act collectively to alter or rescind it. (Maj. opn., ante, at p. 389.) However, realistically speaking, implementing this alternative would only serve to exacerbate the divisiveness rampant in our society and to which the majority decision itself contributes.

At the very least, plaintiff should be permitted to amend her pleadings. Under the judicial authority prevailing at the time she filed her complaint, the type of allegations now required by the majority’s holding were unnecessary to state a cause of action for declaratory relief when challenging enforcement of CC&R’s under the present circumstances. (See Portola Hills Community Assn. v. James (1992) 4 Cal.App.4th 289 [ 5 Cal.Rptr.2d 580 ]; Bernardo Villas Management Corp. v. Black (1987) 190 Cal.App.3d 153 [ 235 Cal.Rptr. 509 ].) Thus, in fairness, she should have the opportunity to rectify the deficiency in light of the majority’s disapproval of these decisions. (See Youngman v. Nevada Irrigation Dist., supra, 70 Cal.2d at p. 245 .)

Archeologists in Israel found some of the earliest evidence of a domesticated animal when they unearthed the 12,000-year-old skeleton of a woman who was buried with her hand resting on the body of her dog. (Clutton-Brock, Dog (1991) p. 35.) Romans warned intruders “Cave canem” to alert them to the presence of canine protectors. (Id., p. 34.) Cats were known to be household pets in Egypt 5,000 years ago and often mummified and entombed with their owners. (Clutton-Brock, Cat (1991) p. 46.) According to the English Nuns Rule in 1205, “Ye shall not possess any beast, my dear sisters, except only a cat.” (Crimmins, The Quotable Cat (1992) p. 58.)

Although it is possible only to estimate the total, well in excess of 10,000 individuals avail themselves of the benefits of guide, alert, and service dogs in California alone. (See Sen. Subcom. Interim Hg. on Guide, Signal, and Service Dogs (Nov. 15,1990) pp. 1-42.) State law guarantees them the right to live with their animals free from discrimination on that basis. (See Gov. Code, § 12955, subd. (1) [impermissible discrimination under the Fair Employment and Housing Act (FEHA) “includes . . . restrictive covenants, zoning laws, denial of use permits, and other actions . . . that make housing opportunities unavailable.” (Italics *393 added.)]; see also Civ. Code, § 53; cf. 42 U.S.C. §§ 3601 , 3604(f)(3)(B) [federal fair housing act].) Thus, to the extent the pet restriction contains no exception for assist dogs, it clearly violates public policy. At oral argument, counsel for the association allowed that an individual who required assistance of this kind could seek a waiver of the pet restriction, although he in no manner assured that the association’s board would necessarily accede to such an effort to enforce the mandate of FEHA. In any event, this “concession” only serves to prove the point of discriminatory impact: disabled persons who have dogs to assist them in normalizing their daily lives do not have the equal access to housing guaranteed under state law if they must go, hat in hand as an Oliver Twist supplicant, to request an association board’s “permission” to live as normal a life as they are capable of with canine assistance.

For example, poetry runs the gamut from the doggerel of Ogden Nash to T.S. Eliot’s “Old Possum’s Book of Practical Cats.”

Eastem religions often depict dogs as gods or temple guards. (See Clutton-Brock, Dog, supra, p. 35.) Ancient Egyptians considered the cat sacred, and their religion included the cat goddess Bastet. (See Clutton-Brock, Cat, supra, p. 47.)

For example, the Odyssey chronicles the faithfulness of Odysseus’s dog. The legendary terrier “Greyfriars’ Bobby” is synonymous with loyalty. In 1601, when the Earl of Southampton was being held in the Tower of London, his cat is reputed to have located his master’s cell and climbed down the chimney to join him during his imprisonment. (Clutton-Brock, Cat, supra, p. 16.) And military annals document the wartime bravery and coinage of dogs in the K-9 Corps.

The President and his family often set a national example in this regard. Chelsea Clinton’s cat “Socks” is only the latest in a long line of White House pets, including Franklin Roosevelt’s “Fala” and the Bushes’ “Millie.”

See, e.g., Siegel, Companion Animals: In Sickness and in Health (1993) 49 Journal of Social Issues 157.

See, e.g., Waltham Symposium 20, Pets, Benefits and Practice (BVA Publications 1990).

See, e.g., Melson, The Benefits of Animals to Our Lives (Fall 1990) People, Animals, Environment at pages 15-17.

On a related point, the association rules and regulations already contain a procedure for dealing with problems arising from bird and fish ownership. There appears no reason it could not be utilized to deal with similar concerns about other types of pets such as plaintiff’s cats.

The majority purport to rely on several out-of-state cases to support their conclusions as to the validity of the pet restriction. These decisions are either distinguishable or reflect the same lack of objective analysis. Hidden Harbour Estates, Inc. v. Norman (Fla.Dist.Ct.App. 1975) 309 So.2d 180 [ 72 A.L.R.3d 305 ], involved a prohibition against the consumption of alcoholic beverages in the condominium project club house, one of the common areas used by all the owners. Hidden Harbour Estates v. Basso (Fla.Dist.Ct.App. 1981) 393 So.2d 637 likewise did not concern a restriction on pets but a ban on the construction of private wells, which had the potential for creating serious salination problems in the common drinking water. Of those cases involving pet restrictions, only Noble v. Murphy (1993) 34 Mass.App. 452 [ 612 N.E.2d 266 ] dealt with a categorical prohibition (See Dulaney Towers Maintenance v. O'Brey (1980) 46 Md.App. 464 [ 418 A.2d 1233 ]; Wilshire Condominium Ass’n, Inc. v. Kohlbrand (Fla.Dist.Ct.App. 1979) 368 So.2d 629 .) The court there also failed to give any consideration to the qualitative nature of the restriction or the burden it imposed on those *396 arbitrarily deprived of the opportunity to own pets that could be confined to their units and kept without disturbing the quiet enjoyment of other unit owners.

Under the facts of this case, the majority do more than simply accord the restriction a presumption of reasonableness. They encourage and endorse the enforcing body to disregard the privacy interests of law-abiding property owners. If pets are maintained in the manner alleged in plaintiff’s complaint, then only snoopers are in a position to claim a violation of the restriction. .