# O'CONNOR v. Village Green Owners Assn.

> California Supreme Court · May 9, 1983 · 33 Cal. 3d 790

URL: https://www.frixlaw.com/law-library/cases/9792405

## Case

- **Full name:** JOHN P. O’CONNOR Et Al., Plaintiffs and Appellants, v. VILLAGE GREEN OWNERS ASSOCIATION, Defendant and Respondent; VILLAGE GREEN OWNERS ASSOCIATION, Plaintiff and Respondent, v. JOHN P. O’CONNOR Et Al., Defendants and Appellants
- **Court:** California Supreme Court
- **Decided:** May 9, 1983
- **Citations:** 33 Cal. 3d 790; 191 Cal. Rptr. 320; 662 P.2d 427; 1983 Cal. LEXIS 182
- **Precedential status:** Published
- **Opinion:** Concurrence by Broussard
- **Judges:** Kaus, Broussard, Mosk
- **Cited by:** 101 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9792405

## How later opinions describe it (automated extraction)

- finding that a non-profit hospital was a business establishment bécause it charged its patrons substantial fees and finding that a condominium association was a business establishment because it exercised its powers and duties to enhance economic value
- holding homeowners’ association’s actions of 11 employing property management firm, obtaining insurance, repairing common areas, and collecting 12 assessments to enhance property value were traditional landlord-tenant business functions sufficiently 13 indicating “business est…
- finding 18 nonprofit owners association to be a “business establishment” because it “performs all the customary 19 business functions which in the traditional landlord-tenant relationship rest on the landlord’s 20 shoulders”
- holding that condominium owners association could not, under the Unruh Act, enforce restriction prohibiting residency by person under 18 years of age
- holding that restriction in a condominium’s covenants, conditions, and restrictions which prohibited persons younger than 18 violated the Unruh Act

## Opinion text

BROUSSARD, J.
I fully concur in the majority opinion. I would also rest our holding, however, on Civil Code section 53 as well as on Civil Code section 51. 1
Section 51 prohibits discrimination by a “business establishment” on grounds of “sex, race, color, religion, ancestry, or national origin . . . .” Section 53 deals more specifically with the problem of discriminatory restrictions on the use of real property. It provides in part: “(a) Every provision in a written instrument relating to real property which purports to forbid or restrict the conveyance, encumbrance, leasing, or mortgaging of such real property to any person of a specified sex, race, color, religion, ancestry, or national origin, is void and every restriction or prohibition as to the use or occupation of real property because of the user’s or occupier’s sex, race, color, religion, ancestry, or national origin is void, [1f] (b) Every restriction or prohibition, whether by way of covenant, condition upon use or occupation, or upon transfer of title to real property, which restriction or prohibition directly or indirectly limits the acquisition, use or occupation of such property because of the acquirer’s, user’s, or occupier’s sex, race, color, religion, ancestry, or national origin is void. [H] ...” Thus, section 53 nullifies the arbitrarily discriminatory restriction itself. Since the restriction is void, no party to it may enforce it, regardless of whether that party constitutes a “business establishment” under section 51.
Section 53 includes the same critical phrase as section 51: “sex, race, color, religion, ancestry, or national origin.” In In re Cox (1970) 3 Cal.3d 205, 216 [ 90 Cal.Rptr. 24 , 474 P.2d 992 ], we interpreted this phrase as used in section 51 as being “illustrative rather than restrictive. . . . Although the legislation *798 has been invoked primarily by persons alleging discrimination on racial grounds, its language and its history compel the conclusion that the Legislature intended to prohibit all arbitrary discrimination by business establishments.” Thus, in Cox , we determined that section 51 necessarily applies to young men wearing long hair and unconventional dress, despite the lack of specification of “hippie” in the critical phrase.
In Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721 [ 180 Cal.Rptr. 496 , 640 P.2d 115 ], we reaffirmed our view in Cox that the critical phrase was merely illustrative and not all-inclusive. In holding that section 51 applied to prohibit arbitrary discrimination against families with children in renting housing, we noted that even the Legislature has recognized that the critical phrase in section 51 is merely illustrative. “In 1974, the Legislature amended section 51, reenacting the prior provisions of the statute and adding ‘sex’ to the specifically enumerated bases of discrimination listed in the Unruh Act. In sending the bill to the Governor for his signature, the Chairman of the Select Committee on Housing and Urban Affairs explained: ‘The purpose of the bill is to bring it to the attention of the legal profession that the Unruh Act provides a remedy for arbitrary discrimination against women (or men) in public accommodations which are business enterprises. This bill does not bring such discrimination under the Unruh Act because that Act has been interpreted as making all arbitrary discrimination illegal, on whatever basis. The listing of possible bases of discrimination has no legal effect, but is merely illustrative.’ (Original italics.) The chairman attached to his letter a copy of a legislative counsel opinion, discussing our decision in Cox and confirming the chairman’s view of the legislation. [!]... Instead [of altering preexisting language to expressly reject our Cox interpretation], the Legislature reenacted the previously construed language verbatim, simply adding an explicit reference to sex discrimination to highlight the statute’s application in that area. Under the numerous authorities cited above, this action represents a legislative endorsement of Cox’s interpretation of section 51.” (Wolfson, supra, at pp. 734-735 ; fn. omitted.)
Section 51, originally enacted in 1905 (Stats. 1905, ch. 413, § 1, p. 553) had been substantially amended to resemble more closely its current form in 1959 (Stats. 1959, ch. 1866, § 1, p. 4424). Two years later, section 53 was enacted (Stats. 1961, ch. 1877, § 1, pp. 3976-3977) and placed in close proximity to section 51 in part 2 of the Civil Code, entitled “Personal Rights.” Section 53 contained the same critical phrase embodied in section 51 at that time. The critical phrase in section 53 has been amended only once since its enactment, and in the same 1974 legislation which amended the same clause in section 51. (Stats. 1974, ch. 1193, § 1, p. 2568.)
These legislative actions clearly indicate that the Legislature has intended the critical phrase of section 53 to receive the same illustrative reading as is given *799 to the identical phrase of section 51. Such an illustrative reading must similarly prohibit the arbitrary discrimination against families with children found to violate section 51 in Wolfson. 2
An illustrative reading of section 53 is not barred by our previous decision in Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458 [ 156 Cal.Rptr. 14 , 595 P.2d 592 ]. In that case, we refused to give an expansive interpretation to former Labor Code section 1410 et seq. (formerly entitled the California Fair Employment Practices Act (FEPA); currently enacted as Gov. Code, § 12920 et seq., entitled the Fair Employment and Housing Act), which prohibited discrimination in employment on the grounds of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex or age. We rejected the argument that discrimination against homosexuals was barred by the act, and distinguished the act from section 51 as interpreted in Cox . “[WJhereas the Unruh Act represented a codification of the common law principle barring all discrimination by public accommodations in the provision of services, the prohibitions on employment discrimination contained in the FEPA are in no sense declaratory of preexisting common law doctrine but rather include areas and subject matters of legislative innovation, creating new limitations on an employer’s right to hire, promote or discharge its employees. Under these circumstances, the rationale of Cox is inapplicable to the FEPA, and the specifically enumerated categories as to which discrimination is prohibited cannot be viewed as simply ‘illustrative.’ Indeed, the fact that the Legislature has repeatedly amended the FEPA in recent years, protecting successively the categories of sex (Stats. 1970, ch. 1508, § 4, p. 2995), age (Stats. 1972, ch. 1144, § 1, p. 2211; Stats. 1977, ch. 851, § 2, p. 2553), physical handicap (Stats. 1973, ch. 1189, § 6, p. 2501), medical condition (Stats. 1975, ch. 431, § 5, p. 925) and marital status (Stats. 1976, ch. 1195, § 5, p. 5461), affords a rather strong indication that the Legislature itself does not regard the original 1959 act as a bar to all forms of arbitrary discrimination.” (Gay Law Students, supra, at p. 490 .)
The history of former Labor Code section 1410 et seq. (FEPA) is quite distinguishable from that of section 53. First, the former FEPA was originally enacted in 1959 (Stats. 1959, ch. 121, § 1, pp. 1999-2005), the same year that section 51 was substantially amended, yet FEPA was placed in the Labor Code and not in the Civil Code as was section 53 two years later.
Second, the former FEPA was the subject of numerous amendments setting forth additional categories of barred discrimination. By contrast, both section 51 and 53 were amended but once, in the same legislation.
*800 Third, when the former FEPA was repealed (Stats. 1980, ch. 992, § 11, p. 3166), it was reenacted with substantial changes as the Fair Employment and Housing Act (Stats. 1980, ch. 992, § 4, pp. 3140-3165; Gov. Code, § 12900 et seq.): a combination of prohibitions of discrimination in employment and housing in the same legislation. The Legislature did not, however, repeal section 53, which nullifies discriminatory restrictions on the use or occupation of real property, but left that section intact.
Thus, it is abundantly clear that the Legislature did not intend section 53 to receive the narrowing interpretation given both the former FEPA and the current Fair Employment and Housing Act. Instead, section 53, remaining untouched and in close physical proximity to section 51, and containing identical language to section 51 in its critical phrase, must be given the same broad interpretation as received by section 51 in Cox and Wolfson . Therefore, I would also hold that section 53 invalidates any covenant, code or restriction which discriminates against families with children in the conveyance, occupation and use of real property.
Unless otherwise indicated, all references hereinafter are to the Civil Code.
Thus, as in Wolfson , restricting occupancy in a particular neighborhood to the elderly to create a senior environment may prove to be rationally related to a legitimate purpose, and not constitute arbitrary discrimination under section 53.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9792405. Public record. Not legal advice.