In addition to late charges and interest, an association is permitted to charge its “[r]easonable costs incurred in collecting [a] delinquent assessment” from a member, “including reasonable attorney’s fees.” (Civ. Code § 5650(b)(1).) Those collection fees and costs, late fees, and interest are then incorporated into the member’s debt, and may be secured through recording an assessment lien against the member’s property. (Civ. Code §§ 5650(a), 5675(a);See also “Duty to Pay Assessments.”)
Fees Imposed by Management & Collection Vendors Civil Code Section 5600(b) prohibits an association from imposing or collecting a fee “that exceeds the amount necessary to defray the costs for which it is levied.” However, this restriction applies to associations, not their managing agents or collection vendors. An association’s management company or collection vendor is permitted to earn a profit on the collection fees it charges for generating pre-lien letters, assessment liens, etc.:
“…the duty to refrain from the conduct prohibited by [Section 5600(b)] is imposed solely on the ‘association,’ the nonprofit entity designated by statute as having the responsibility to manage the affairs of the common interest development. [Section 5600(b)] has no application to an association’s vendors…the [association’s managing agent] is not prohibited from earning a profit, or from charging any fee the competitive market will bear.” (Brown v. Professional Community Management, Inc. (2005) 127 Cal.App.4th 532, 539-540.)
[Assessments & Collection; Collection Fees] An association’s vendors are permitted to earn a profit on the fees it charges in connection with collecting delinquent assessments owed to the association.
Richard Paul Herman for Cross-complainant and Appellant. Fiore, Racobs & Powers, John R. MacDowell, Michael C. Fettig; Jackson, DeMarco & Peckenpaugh and Paul E. Van Hoomissen for Cross-defendants and Respondents.
OPINION
IKOLA, J.-
Cross-complainant Sabina Brown cross-complained against her homeowners association, Lake Forest Keys (LFK), and its property management company, Professional Community Management, Inc. (PCM). She alleged under various legal theories that she, and the class she purported to represent, had been charged assessments or fees exceeding the amount necessary to defray the costs for which the assessments or fees had been levied. In her “Corrected Third Amended Cross-Complaint” (cross-complaint), Brown claimed the alleged conduct of both LFK and PCM violated Civil Code section 1366.1 fn. 1 and gave rise to remedies against both cross-defendants for negligence, a violation of section 52.1 and article I of the California Constitution, civil conspiracy, and a violation of sections 1750 et seq., the Consumers Legal Remedies Act. [536]
The court sustained PCM’s demurrer to Brown’s cross-complaint without leave to amend, and entered a judgment of dismissal on the cross-complaint as to PCM. Brown contends the court erred by concluding PCM owed no duty to Brown under section 1366.1. She also contends the litigation privilege, section 47, subdivision (b)(2), does not apply to the alleged conduct. fn. 2 We disagree with Brown’s first contention, find it unnecessary to reach the second, and affirm the judgment.
FACTS
Our factual summary “accepts as true the facts alleged in the complaint, together with facts that may be implied or inferred from those expressly alleged.” (Barnett v. Fireman’s Fund Ins. Co.(2001) 90 Cal.App.4th 500, 505.) Brown’s cross-complaint is not a model of clarity. But she appears to challenge the legality of certain fees charged by PCM for providing collection services to LFK, which fees are then passed along to the delinquent homeowner. We extract from her cross-complaint the following material allegations.
PCM is in the business of providing services to homeowners associations such as LFK. The homeowners associations serviced by PCM levy “various fees, fines, liens, imposts, charges, [and] interest charges . . . against thousands of homeowners. . . .” In connection with its services to LFK, PCM prepares “‘late letters’ and ‘lien letters’ for which it charges a fee and therefore shares in the profits of these illegal fees.” The subject fees, “under whatever name, exceed ‘the amount necessary to defray the cost for which they are levied’ in violation of Civil Code, section 1366.1.” Brown alleges the fees in excess of those permitted by section 1366.1 have been charged negligently by PCM (first cause of action), the excessive charges entitle Brown to damages under section 52.1 (second cause of action), PCM conspired with LFK to charge excessively and shared in the “profits” by charging a “late letter fee” (third cause of action), and PCM has “represented that transaction [sic] involves rights, remedies or obligations which does not have or involve and which are specifically prohibited by flaw [sic] under Civil Code, Section 1366.1, in violation of Civil Code, Section 1770(a)(14)” (fourth cause of action).[537]
DISCUSSION
[1] “In determining whether plaintiff properly stated a claim for relief, our standard of review is clear: ‘”We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment; if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.'” Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.
Section 1366.1 Does Not Limit PCM’s Fees
[2] At the outset, we note that Brown offers no argument as to why the demurrer to her third cause of action should have been overruled. Her third cause of action alleged entitlement to a remedy under section 52.1, presumably on the ground that imposition of PCM’s fees constituted an infringement of rights secured to her by the federal and state Constitutions. We decline to address the third cause of action. “When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.” (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) We turn to the other three causes of action, each of which is premised on conduct alleged to violate section 1366.1. fn. 3
[3] Because this case turns on the language of section 1366.1, and an understanding of the conduct it prohibits, we begin with the words of the statute. “An association shall not impose or collect an assessment or fee that exceeds the amount necessary to defray the costs for which it is levied.” (Italics added.) Section 1366.1 is part of the Davis-Stirling Common Interest Development Act (the Act), section 1350 et seq. Under the Act, an “‘association’ means a nonprofit corporation or unincorporated association created for the purpose of managing a common interest development.” [538] (§ 1351, subd. (a).) The Act requires that “[a] common interest development shall be managed by an association which may be incorporated or unincorporated.” (§ 1363, subd. (a).) An “association” is charged under the Act with many specific duties, responsibilities, and restrictions, one of which is set forth in section 1366.1 — not to charge an assessment or fee in excess of the amount necessary to defray the costs for which it is levied.
[4] In construing section 1366.1, “‘”as with any statute, we strive to ascertain and effectuate the Legislature’s intent”‘ [Citations.] ‘Because statutory language “generally provide[s] the most reliable indicator” of that intent [citations], we turn to the words themselves, giving them their “usual and ordinary meanings” and construing them in context [citation].’ [Citation.] If the language contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs.” (People v. Robles (2000) 23 Cal.4th 1106, 1111.)
[5]Here, the language of section 1366.1, in context, contains no ambiguity. The statute prohibits an “association” from charging fees or assessments in excess of the costs for which the fee or assessment is charged. As noted ante, an “association” is a defined term under the Act, and the definition requires the “association” to be a nonprofit entity. In contrast, the Act imposes separate duties on a managing agent. (See §§ 1363.1 & 1363.2.) And those statutory duties are owed to the “association” and its board of directors, not to individual owners of separate property interests in the common interest development. (Ibid.) Significantly, the Act does not require a managing agent to be a nonprofit entity. It is clear, both from the definitions in the Act and from the separately imposed duties, the Legislature meant “association,” when it used that term, and it meant “managing agent,” when it used that term.
[6] Thus, we understand the section 1366.1 prohibition, which runs expressly against an “association,” to mean, for example, that fees or assessments levied against homeowners for the purpose of defraying the cost of mowing the grass in the common areas, or of painting the association’s clubhouse, or of replacing the deck of the association’s swimming pool, or any other of the myriad of the association’s management and maintenance responsibilities, may not exceed the cost to the association for providing those services.
The Act contemplates the officers and directors of an association will be volunteer homeowners. (See § 1365.7 [limiting liability of volunteer officers and directors].) Surely, the individual homeowners acting as volunteer officers [539] and directors are not expected to perform all of the required services personally, and at no cost. Instead, the association must either hire employees or contract with others to provide the services. Landscape maintenance contractors are hired to mow the grass, painters are hired to paint the clubhouse, swimming pool contractors are hired to repair the pool deck, and managing agents, such as PCM, are hired to make these arrangements, and, importantly, to collect the fees and assessments levied against the homeowners. The costs incurred by the association, for which it levies an assessment or charges a fee, necessarily include the fees and profit the vendor charges for its services. While section 1366.1 prohibits an association from marking up the incurred charge to generate a profit for itself, the vendor is not similarly restricted. Plaintiff would have it that no vendor selling its services to an association could charge a fee, or, indeed, continue in business as a profit making enterprise. That cannot be the law.
Indeed, section 1366, subdivision (e), authorizes an association to charge homeowners the very type of fees challenged by plaintiff. “If an assessment is delinquent the association may recover all of the following: (1) Reasonable costs incurred in collecting the delinquent assessment, including reasonable attorney’s fees. [] (2) A late charge not exceeding 10 percent of the delinquent assessment or ten dollars ($10), whichever is greater, . . . [] (3) Interest on all sums imposed in accordance with this section, including the delinquent assessments, reasonable fees and costs of collection, and reasonable attorney’s fees, at an annual interest rate not to exceed 12 percent . . . . ” (Italics added.) In spite of this statutory authorization, Brown alleges that PCM prepares “‘late letters’ and ‘lien letters’ for which it charges a fee and therefore shares in the profits of these illegal fees.” The allegation is circular. The fees are not “illegal” unless they exceed the association’s costs, costs that necessarily include the fee charged for the service. And section 1366 contemplates that the association will incur reasonable costs in connection with its collection efforts.
[7]We conclude the duty to refrain from the conduct prohibited by section 1366.1 is imposed solely on the “association,” the nonprofit entity designated by statute as having the responsibility to manage the affairs of the common interest development. Section 1366.1 has no application to an association’s vendors. Competitive forces, not the statute, will constrain the vendors’ fees and charges.[540]
The Conspiracy Allegations Do Not Create a Duty Where None Exists
[8] Perhaps recognizing section 1366.1 applies only to an association, Brown nevertheless attempts to impose liability on PCM by alleging it conspired with the association to violate section 1366.1. The effort is unavailing. In Doctor’s Co. v. Superior Court(1989) 49 Cal.3d 39 (Doctor’s Company), the California Supreme Court held: “A cause of action for civil conspiracy may not arise . . . if the alleged conspirator, though a participant in the agreement underlying the injury, was not personally bound by the duty violated by the wrongdoing . . . .” (Id. at p. 44, italics added.) Thus, in Doctor’s Company, attorneys and expert witnesses hired by an insurance company could not be held liable for conspiring with the insurance company to violate a statutory duty owed only by the insurance company. (Id. at p. 49.)
[9] The rule established by Doctor’s Company is plain enough. But it was firmly cemented into our law in Applied Equipment Corp. v. Litton Saudi Arabia Ltd.(1994) 7 Cal.4th 503. “The invocation of conspiracy does not alter [the] fundamental allocation of duty. Conspiracy is not an independent tort; it cannot create a duty or abrogate an immunity. It allows tort recovery only against a party who already owes the duty and is not immune from liability based on applicable substantive tort law principles.” (Id. at p. 514, italics added.)
Having concluded PCM does not owe an independent duty under section 1366.1, we need only follow the high court’s precedent. PCM cannot be liable in tort for conspiring with LFK to charge fees in excess of the amount necessary to defray LFK’s costs. If, as Brown alleges, PCM “shares” in the “profits” represented by the fees for “late letters” and “lien letters,” PCM violates no duty owed by it, either to the association or its members, because it is not prohibited from earning a profit, or from charging any fee the competitive market will bear. On the other hand, if LFK is, in fact, “sharing” in the fees charged by PCM (i.e., kickbacks), LFK may be violating section 1366.1, but to the detriment, not the advantage, of PCM.
Since we conclude PCM owed no duty, we do not reach the issue whether the alleged conduct was privileged under section 47, subdivision (b)(2), the so-called litigation privilege. The demurrer was properly sustained without leave to amend as to all causes of action of Brown’s cross-complaint.[541]
DISPOSITION
The judgment is affirmed. PCM shall recover its costs on appeal.
Sills, P. J., and O’Leary, J., concurred.
FN 1. All further statutory references are to the Civil Code unless otherwise stated.
FN 2. The notice of appeal also purports to appeal from the denial of a motion for class certification. Because Brown has not briefed these issues, she has waived her appeal from the order denying class certification. (See People v. Stanley(1995) 10 Cal.4th 764, 793 [“‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]'”].)
Notice of Delinquent Assessment (“Assessment Lien”) Assessment payments become the legal debt of the owner at the time the assessments are levied by the association. (Civ. Code § 5650; See also “Duty to Pay Assessments.”) Where the owner fails to remit payment within a timely fashion, an association’s governing documents allow for the association to record a Notice of Delinquent Assessment (an “assessment lien”) against a member’s property to act as security for the payment of the member’s assessment debt. (Civ. Code § 5675(a).) The assessment lien effectively prevents the member from transferring title to the member’s property and potentially from re-financing the property without first satisfying the member’s assessment debt and having the assessment lien released.
Abstract of Judgment (“Judgment Lien”) An abstract of judgment (a “judgment lien”) is a court-ordered lien that is placed upon a judgment debtor’s property. Where an owner fails to pay assessments and/or monetary penalties imposed by an association, the association may file a lawsuit against a member in Small Claims or Superior Court (depending upon the amount owed) and obtain a money judgment for that amount. The association will then record an abstract of judgment to secure the judgment debt in the event the member refuses to pay the judgment amount. (See “Money Judgments (Assessment Collection).”)
The architectural control provisions of an association’s governing documents may permit the association to, in extraordinary circumstances, issue a member a variance from compliance with one or more of the association’s architectural standards. An association’s decision to issue a variance has been held to be analogous to the issuance of a zoning variance by an administrative agency, and must therefore be limited to unique and extraordinary circumstances where substantial evidence would justify the desired variance:
“In the zoning context as well as here, a departure from the master plan in the Declaration stands to affect most adversely those who hold rights in neighboring property. Hence, what the California Supreme Court has stated with regard to judicial review of grants of variances applies equally well to the Association’s actions herein: ‘[C]ourts must meaningfully review grants of variances in order to protect the interests of those who hold rights in property nearby the parcel for which a variance is sought. A zoning scheme, after all, is similar in some respects to a contract; each party foregoes rights to use its land as it wishes in return for the assurance that the use of neighboring property will be similarly restricted, the rationale being that such mutual restriction can enhance total community welfare. [Citations.] If the interest of these parties in preventing unjustified variance awards for neighboring land is not sufficiently protected, the consequence will be subversion of the critical reciprocity upon which zoning regulation rests.’ (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517-518 [113 Cal.Rptr. 836, 522 P.2d 12].) For nearly identical reasons, we conclude that the courts must be available to protect neighboring property interests from arbitrary actions by homeowner associations.” (Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 652.)
Variance Requirements Subject to any additional restrictions or requirements in an association’s governing documents, an architectural variance may typically be issued where:
Extraordinary circumstances exist that justify the variance. Association governing documents often describe such extraordinary circumstances as those involving topography, natural obstructions, hardship or other environmental considerations;
The variance is not in conflict with the governing documents; and
Proper notice is provided. Such notice may include notice to: (a) applicable city or county building departments (i.e., if the variance involves setbacks or building code issues), (b) the board of directors (i.e., in situations where the body issuing the variance is separate from the board, such as an architectural committee), and (c) surrounding homeowners.
[Zoning Variance] An administrative agency must render findings supporting its decision to issue a zoning variance, and such findings must be supported by substantial evidence.
Amdur, Bryson, Caplan & Morton and David L. Caplan for Plaintiff and Appellant. John D. Maharg, County Counsel, Joe Ben Hudgens, John W. Whitsett and David H. Breier, Deputy County Counsel, for Defendants and Respondents.
Arnold J. Provisor for Real Parties in Interest.
OPINION -TOBRINER, J.
We examine, in this case, aspects of the functions served by administrative agencies in the granting of zoning variances and of courts in reviewing these proceedings by means of administrative mandamus. We [510] conclude that variance boards like the ones involved in the present case must render findings to support their ultimate rulings. We also conclude that when called upon to scrutinize a grant of a variance, a reviewing court must determine whether substantial evidence supports the findings of the administrative board and whether the findings support the board’s action. fn. 1 We determine in the present case that the last of these requisites has not been fulfilled.
The parties in this action dispute the future of approximately 28 acres in Topanga Canyon located in the Santa Barbara Mountains region of Los Angeles County. A county ordinance zones the property for light agriculture and single family residences; fn. 2 it also prescribes a one-acre minimum lot size. Upon recommendation of its zoning board and despite the opposition of appellant-petitioner — an incorporated nonprofit organization composed of taxpayers and owners of real property in the canyon — the Los Angeles County Regional Planning Commission granted to the Topanga Canyon Investment Company a variance to establish a 93-space mobile home park on this acreage. fn. 3 Petitioner appealed without success to the county board of supervisors, thereby exhausting its administrative remedies. Petitioner then sought relief by means of administrative mandamus, again unsuccessfully, in Los Angeles County Superior Court and the Court of Appeal for the Second District.
In reviewing the denial of mandamus below, we first consider the proper role of agency and reviewing court with respect to the grant of variances. We then apply the proper standard of review to the facts of the case in order to determine whether we should sustain the action of the Los Angeles County Regional Planning Commission.[511]
1. An administrative grant of a variance must be accompanied by administrative findings. A court reviewing that grant must determine whether substantial evidence supports the findings and whether the findings support the conclusion that all applicable legislative requirements for a variance have been satisfied.
A comprehensive zoning plan could affect owners of some parcels unfairly if no means were provided to permit flexibility. Accordingly, in an effort to achieve substantial parity and perhaps also in order to insulate zoning schemes from constitutional attack, fn. 4 our Legislature laid a foundation for the granting of variances. Enacted in 1965, section 65906 of the Government Code establishes criteria for these grants; it provides: “Variances from the terms of the zoning ordinance shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification [¶] Any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is situated.” fn. 5
Applicable to all zoning jurisdictions except chartered cities (Gov. Code, § 65803), section 65906 may be supplemented by harmonious local legislation. fn. 6 We note that Los Angeles County has enacted an ordinance which, [512] if harmonious with section 65906, would govern the Topanga Canyon property here under consideration. Los Angeles County’s Zoning Ordinance No. 1494, section 522, provides: fn. 7 “An exception [variance] may … be granted where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance, and in the granting of such exception the spirit of the ordinance will be observed, public safety secured, and substantial justice done.”
Both state and local laws thus were designed to establish requirements which had to be satisfied before the Topanga Canyon Investment Company should have been granted its variance. Although the cases have held that substantial evidence must support the award of a variance in order to insure that such legislative requirements have been satisfied fn. 8 (see, e.g., Siller v. Board of Supervisors (1962) 58 Cal.2d 479, 482 [25 Cal.Rptr. 73, 375 P.2d 41]; Bradbeer v. England (1951) 104 Cal. App.2d 704, 707 [232 P.2d 308]), they have failed to clarify whether the administrative agency must always set forth findings and have not illuminated the proper relationship between the evidence, findings, and ultimate agency action. fn. 9
One of the first decisions to emphasize the importance of judicial scrutiny of the record in order to determine whether substantial evidence supported administrative findings that the property in question met the legislative variance requirements was that penned by Justice Molinari in [513] Cow Hollow Improvement Club v. Board of Permit Appeals (1966) 245 Cal.App.2d 160 [53 Cal.Rptr. 610]. Less than one year later, we followed the approach of that case in Broadway, Laguna etc. Assn. v. Board of Permit Appeals (1967) 66 Cal.2d 767 [59 Cal.Rptr. 146, 427 P.2d 810], and ordered that a zoning board’s grant of a variance be set aside because the party seeking the variance had failed to adduce sufficient evidence to support administrative findings that the evidence satisfied the requisites for a variance set forth in the same San Francisco ordinance.
Understandably, however, the impact of these opinions remained uncertain. The San Francisco ordinance applicable in Cow Hollow and Broadway explicitly required the zoning board to specify its subsidiary findings and ultimate conclusions; this circumstance raised the question whether a court should require findings and examine their sufficiency in a case in which the applicable local legislation did not explicitly command the administrative body to set forth findings. Indeed language in Broadway intimated that such a case was distinguishable. (Broadway, Laguna etc. Assn. v. Board of Permit Appeals, supra, at pp. 772-773. See also Stoddard v. Edelman (1970) 4 Cal.App.3d 544, 549 [84 Cal.Rptr. 443]. Cf. Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 270 [104 Cal.Rptr. 761, 502 P.2d 1049].) Further, neither Cow Hollow nor Broadway confronted Government Code section 65906, since both cases concerned a chartered city. fn. 10 There thus also remained uncertainty with respect to cases involving zoning jurisdictions other than chartered cities.
Nevertheless, in an opinion subsequent to Broadway; Hamilton v. Board of Supervisors (1969) 269 Cal.App.2d 64 [75 Cal.Rptr. 106], a Court of Appeal set aside the grant of a variance by a planning commission under circumstances different from those in Broadway and Cow Hollow. The zoning jurisdiction involved in that controversy was a county, not a chartered city, and the court’s opinion did not suggest that any applicable ordinance required administrative findings. Deeming Government Code section 65906 “concededly controlling,” (Hamilton v. Board of Supervisors, supra, at p. 67), the court undertook the task of squaring the findings announced by the commission with the commission’s grant of the variance and concluded that the findings were insufficient to sustain the variance.
[1] Consistent with the reasoning underlying these cases, we hold that [514] regardless of whether the local ordinance commands that the variance board set forth findings, fn. 11 that body must render findings sufficient both to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the board’s action. [2] We hold further that a reviewing court, before sustaining the grant of a variance, must scrutinize the record and determine whether substantial evidence supports the administrative agency’s findings and whether these findings support the agency’s decision. In making these determinations, the reviewing court must resolve reasonable doubts in favor of the administrative findings and decision.
Our analysis begins with consideration of Code of Civil Procedure section 1094.5, the state’s administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. [3] Without doubt, this provision applies to the review of variances awarded by bodies such as the Los Angeles County zoning agencies that participated in the present case. fn. 12 [4] Section 1094.5 clearly contemplates that at minimum, the reviewing court must determine both whether substantial evidence supports the administrative [515] agency’s findings and whether the findings support the agency’s decision. Subdivision (b) of section 1094.5 prescribes that when petitioned for a writ of mandamus, a court’s inquiry should extend, among other issues, to whether “there was any prejudicial abuse of discretion.” Subdivision (b) then defines “abuse of discretion” to include instances in which the administrative order or decision “is not supported by the findings, or the findings are not supported by the evidence.” (Italics added.) Subdivision (c) declares that “in all … cases” (italics added) other than those in which the reviewing court is authorized by law to judge the evidence independently, fn. 13 “abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.” (See Zakessian v. City of Sausalito (1972) 28 Cal.App.3d 794, 798 [105 Cal.Rptr. 105].)
[5] We further conclude that implicit in section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. If the Legislature had desired otherwise, it could have declared as a possible basis for issuing mandamus the absence of substantial evidence to support the administrative agency’s action. By focusing, instead, upon the relationships between evidence and findings and between findings and ultimate action, the Legislature sought to direct the reviewing court’s attention to the analytic route the administrative agency traveled from evidence to action. In so doing, we believe that the Legislature must have contemplated that the agency would reveal this route. Reference, in section 1094.5, to the reviewing court’s duty to compare the evidence and ultimate decision to “the findings” (italics added) we believe leaves no room for the conclusion that the Legislature would have been content to have a reviewing court speculate as to the administrative agency’s basis for decision.
Our ruling in this regard finds support in persuasive policy considerations. (See generally 2 Davis, Administrative Law Treatise (1958) § 16.05, pp. 444-449; Forkosch, A Treatise on Administrative Law (1956) § 253, pp. 458-464.) According to Professor Kenneth Culp Davis, the requirement that administrative agencies set forth findings to support their adjudicatory decisions stems primarily from judge-made law (see, e.g., Zieky v. Town Plan and Zon. Com’n of Town of Bloomfield (1963) 151 Conn. 265 [196 A.2d 758]; Stoll v. Gulf Oil Corp. (1958) 79 Ohio L.Abs. 145 [155 N.E.2d 83]), and is “remarkably uniform in both federal and state [516] courts.” As stated by the United States Supreme Court, the “accepted ideal … is that ‘the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.’ (S.E.C. v. Chenery Corp. (1943) 318 U.S. 80, 94.)” (2 Davis, supra, § 16.01, pp. 435-436. See also Saginaw Broadcasting Co. v. Federal C. Com’n (1938) 96 F.2d 554, 559 [68 App.D.C. 282].)
Among other functions, a findings requirement serves to conduce the administrative body to draw legally relevant sub-conclusions supportive of its ultimate decision; the intended effect is to facilitate orderly analysis and minimize the likelihood that the agency will randomly leap from evidence to conclusions. (See 2 Cooper, State Administrative Law (1965) pp. 467-468; Feller, Prospectus for the Further Study of Federal Administrative Law (1938) 47 Yale L.J. 647, 666. Cf. Comment, Judicial Control Over Zoning Boards of Appeal: Suggestions for Reform (1965) 12 U.C.L.A. L.Rev. 937, 952.) fn. 14 In addition, findings enable the reviewing court to trace and examine the agency’s mode of analysis. (See California Motor Transport Co. v. Public Utilities Com. (1963) 59 Cal.2d 270, 274 [28 Cal.Rptr. 868, 379 P.2d 324]; Swars v. Council of City of Vallejo (1949) 33 Cal.2d 867, 871 [206 P.2d 355].)
Absent such roadsigns, a reviewing court would be forced into unguided and resource-consuming explorations; it would have to grope through the record to determine whether some combination of credible evidentiary items which supported some line of factual and legal conclusions supported the ultimate order or decision of the agency. fn. 15 [6] Moreover, [517] properly constituted findings fn. 16 enable the parties to the agency proceeding to determine whether and on what basis they should seek review. (See In re Sturm (1974) ante, pp. 258, 267 [113 Cal.Rptr. 361, 521 P.2d 97]; Swars v. Council of City of Vallejo, supra, at p. 871.) They also serve a public relations function by helping to persuade the parties that administrative decision-making is careful, reasoned, and equitable.
By setting forth a reasonable requirement for findings and clarifying the standard of judicial review, we believe we promote the achievement of the intended scheme of land use control. Vigorous and meaningful judicial review facilitates, among other factors, the intended division of decision-making labor. [7] Whereas the adoption of zoning regulations is a legislative function (Gov. Code, § 65850), the granting of variances is a quasi-judicial, administrative one. (See Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 74 [187 P.2d 686]; Kappadahl v. Alcan Pacific Co. (1963) 222 Cal.App.2d 626, 634 [35 Cal.Rptr. 354].) If the judiciary were to review grants of variances superficially, administrative boards could subvert this intended decision-making structure. (See 1 Appendix to Sen. J. (1970 Reg. Sess.) Final Rep. of the Joint Committee on Open Space Land (1970) pp. 102-103.) They could “[amend] … the zoning code in the guise of a variance” (Cow Hollow Improvement Club v. Board of Permit Appeals, supra, at p. 181), and render meaningless, applicable state and local legislation prescribing variance requirements.
Moreover, courts must meaningfully review grants of variances in order to protect the interests of those who hold rights in property nearby the parcel for which a variance is sought. [8] A zoning scheme, after all, is similar in some respects to a contract; each party foregoes rights to use its land as it wishes in return for the assurance that the use of neighboring property will be similarly restricted, the rationale being that such mutual restriction can enhance total community welfare. (See, e.g., 1 Appendix to Sen. J. (1970 Reg. Sess.) Final Rep. of the Joint Committee on Open Space Land (1970) p. 91; Bowden, Article XXVIII — Opening the Door to Open Space Control (1970) 1 Pacific L.J. 461, 501.) If the interest of [518] these parties in preventing unjustified variance awards for neighboring land is not sufficiently protected, the consequence will be subversion of the critical reciprocity upon which zoning regulation rests.
Abdication by the judiciary of its responsibility to examine variance board decision-making when called upon to do so could very well lead to such subversion. fn. 17 Significantly, many zoning boards employ adjudicatory procedures that may be characterized as casual. (See Comment, Judicial Control over Zoning Boards of Appeal: Suggestions for Reform (1965) 12 U.C.L.A. L.Rev. 937, 950. Cf. Bradbeer v. England (1951) 104 Cal. App.2d 704, 710 [232 P.2d 308].) The availability of careful judicial review may help conduce these boards to insure that all parties have an opportunity fully to present their evidence and arguments. Further, although we emphasize that we have no reason to believe that such a circumstance exists in the case at bar, the membership of some zoning boards may be inadequately insulated from the interests whose advocates most frequently seek variances. (See e.g., 1 Appendix to Sen. J. (1970 Reg. Sess.) Final Rep. of the Joint Committee on Open Space Land (1970) p. 100.) Vigorous judicial review thus can serve to mitigate the effects of insufficiently independent decision-making.
2. The planning commission’s summary of “factual data” — its apparent “findings” — does not include facts sufficient to satisfy the variance requirements of Government Code section 65906.
As we have mentioned, at least two sets of legislative criteria appear applicable to the variance awarded: Government Code section 65906 and Los Angeles County Zoning Ordinance No. 1494, section 522. [9] The variance can be sustained only if all applicable legislative requirements have been satisfied. Since we conclude that the requirements of section 65906 have not been met, the question whether the variance conforms with the criteria set forth in Los Angeles County Zoning Ordinance No. 1494, section 522 becomes immaterial. fn. 18 [519]
We summarize the principal factual data contained in the Los Angeles County Regional Planning Commission’s report, which data the commission apparently relied on to award the variance. fn. 19 The acreage upon which the original real party in interest fn. 20 sought to establish a mobile home park consists of 28 acres; it is a hilly and in places steep parcel of land. At the time the variance was granted, the property contained one single-family residence. Except for a contiguous area immediately to the southeast which included an old and flood-damaged subdivision and a few commercial structures, the surrounding properties were devoted exclusively to scattered single-family residences.
The proposed mobile home park would leave 30 percent of the acreage in its natural state. An additional 25 percent would be landscaped and terraced to blend in with the natural surroundings. Save in places where a wall would be incompatible with the terrain, the plan contemplated enclosure of the park with a wall; it further called for rechanneling a portion of Topanga Canyon Creek and anticipated that the developers would be required to dedicate an 80-foot-wide strip of the property for a proposed realignment of Topanga Creek Boulevard. [520]
The development apparently would partially satisfy a growing demand for new, low cost housing in the area. Additionally, the project might serve to attract further investment to the region and could provide a much needed fire break. Several data indicate that construction on the property of single-family residences in conformance with the zoning classification would generate significantly smaller profits than would development of the mobile home park. Single-family structures apparently would necessitate costly grading, and the proposed highway realignment would require a fill 78 feet high, thereby rendering the property unattractive for conventional residential development. Moreover, the acreage is said not to be considered attractive to parties interested in single-family residences due, in the words of the report’s summary of the testimony, to “the nature of the inhabitants” in the vicinity and also because of local flood problems.
These data, we conclude, do not constitute a sufficient showing to satisfy the section 65906 variance requirements. That section permits variances “only when, because of special circumstances applicable to the property, … the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification.” (Italics added.) [10] This language emphasizes disparities between properties, not treatment of the subject property’s characteristics in the abstract. (See Minney v. City of Azusa (1958) 164 Cal. App.2d 12, 31 [330 P.2d 255]; cf. In re Michener’s Appeal (1955) 382 Pa. 401 [115 A.2d 367, 371]; Beirn v. Morris (1954) 14 N.J. 529 [103 A.2d 361, 364]; Note, Administrative Discretion in Zoning (1969) 82 Harv. L.Rev. 668, 671-672.) It also contemplates that at best, only a small fraction of any one zone can qualify for a variance. (See generally 3 Anderson, American Law of Zoning (1968) § 14.69, pp. 62-65.)
The data contained in the planning commission’s report focus almost exclusively on the qualities of the property for which the variance was sought. In the absence of comparative information about surrounding properties, these data lack legal significance. Thus knowledge that the property has rugged features tells us nothing about whether the original real party in interest faced difficulties different from those confronted on neighboring land. fn. 21 Its assurances that it would landscape and terrace parts of the property and leave others in their natural state are all well and good, but they bear not at all on the critical issue whether a variance [521] was necessary to bring the original real party in interest into substantial parity with other parties holding property interests in the zone. (See Hamilton v. Board of Supervisors, supra, at p. 66.)
The claim that the development would probably serve various community needs may be highly desirable, but it too does not bear on the issue at hand. Likewise, without more, the data suggesting that development of the property in conformance with the general zoning classification could require substantial expenditures are not relevant to the issue whether the variance was properly granted. Even assuming for the sake of argument that if confined to the subject parcel and no more than a few others in the zone, such a burden could support a variance under section 65906, for all we know from the record, conforming development of other property in the area would entail a similar burden. Were that the case, a frontal attack on the present ordinance or a legislative proceeding to determine whether the area should be rezoned might be proper, but a variance would not. (1 Appendix to Sen. J. (1970 Reg. Sess.) Final Rep. of the Joint Committee on Open Space Land (1970) p. 95; Bowden, Article XVIII — Opening the Door to Open Space Control (1970) 1 Pacific L.J. 461, 506.)
Although they dispute that section 65906 requires a showing that the characteristics of the subject property are exceptional, the current real parties in interest would nevertheless have us speculate that the property is unlike neighboring parcels. They point out that the plot has rugged terrain and three stream beds fn. 22 and that the Topanga Creek Boulevard realignment would bisect the property. [11] Speculation about neighboring land, however, will not support the award of a variance. The party seeking the variance must shoulder the burden of demonstrating before the zoning agency that the subject property satisfies the requirements therefor. (Tustin Heights Association v. Board of Supervisors (1959) 170 Cal.App.2d 619, 627 [339 P.2d 914].) Thus neither an administrative agency nor a reviewing court may assume without evidentiary basis that the character of neighboring property is different from that of the land for which the variance is sought. fn. 23 [522]
[12] Moreover, the grant of a variance for nonconforming development of a 28-acre parcel in the instant case is suspect. Although we do not categorically preclude a tract of that size from eligibility for a variance, we note that in the absence of unusual circumstances, so large a parcel may not be sufficiently unrepresentative of the realty in a zone to merit special treatment. By granting variances for tracts of this size, a variance board begins radically to alter the nature of the entire zone. Such change is a proper subject for legislation, not piecemeal administrative adjudication. (See Sinclair Pipe Line Co. v. Village of Richton Park (1960) 19 Ill.2d 370 [167 N.E.2d 406]; Appeal of the Catholic Cemeteries Association (1954) 379 Pa. 516 [109 A.2d 537]; Civil City of Indianapolis v. Ostrom R. & Construction Co. (1931) 95 Ind.App. 376 [176 N.E. 246].) [13] Since there has been no affirmative showing that the subject property differs substantially and in relevant aspects from other parcels in the zone, we conclude that the variance granted amounts to the kind of “special privilege” explicitly prohibited by Government Code section 65906.
We submit, in summary, that this case illumines two important legal principles. First, by requiring that administrative findings must support a variance, we emphasize the need for orderly legal process and the desirability of forcing administrative agencies to express their grounds for decision so that reviewing courts can intelligently examine the validity of administrative action. Second, by abrogating an unsupported exception to a zoning plan, we conduce orderly and planned utilization of the environment.
We reverse the judgment and remand the cause to the superior court with directions to issue a writ of mandamus requiring the Los Angeles Board of Supervisors to vacate its order awarding a variance. We also direct the superior court to grant any further relief that should prove appropriate.
Wright, C. J., McComb, J., Mosk, J., Burke, J., Sullivan, J., and Clark, J., concurred.
FN 1. We recently held in Strumsky v. San Diego County Employees Retirement Association (1974) 11 Cal.3d 28 [112 Cal.Rptr. 805, 520 P.2d 29], that if the order or decision of a local administrative agency substantially affects a “fundamental vested right,” a court to which a petition for a writ of mandamus has been addressed upon the ground that the evidence does not support the findings must exercise its independent judgment in reviewing the evidence and must find abuse of discretion if the weight of the evidence fails to support the findings. Petitioner does not suggest, nor do we find, that the present case touches upon any fundamental vested right. (See generally Bixby v. Pierno (1971) 4 Cal.3d 130, 144-147 [93 Cal.Rptr. 234, 481 P.2d 242]; Temescal Water Co. v. Dept. Public Works (1955) 44 Cal.2d 90, 103 [280 P.2d 1].)
FN 2. Los Angeles County Zoning Ordinance No. 7276.
FN 3. Originally the real party in interest, the Topanga Canyon Investment Company has been replaced by a group of successoral real parties in interest. We focus our analysis on the building plans of the original real party in interest since it was upon the basis of these plans that the zoning authorities granted the variance challenged by petitioner.
FN 4. 1 Appendix to Journal of the Senate (1970 Reg. Sess.) Final Report of the Joint Committee on Open Space Land (1970) pages 94-95; Bowden, Article XVIII — Opening the Door to Open Space Control (1970) 1 Pacific L.J. 461, 506. See Metcalf v. County of Los Angeles (1944) 24 Cal.2d 267, 270-271 [148 P.2d 645]; Gaylord, Zoning: Variances, Exceptions and Conditional Use Permits in California (1958) 5 U.C.L.A. L.Rev. 179; Comment, The General Welfare, Welfare Economics, and Zoning Variances (1965) 38 So.Cal.L.Rev. 548, 573. See generally Note, Administrative Discretion in Zoning (1969) 82 Harv.L.Rev. 668, 671. The primary constitutional concern is that as applied to a particular land parcel, a zoning regulation might constitute a compensable “taking” of property.
FN 5. A third paragraph added to section 65906 declares: “A variance shall not be granted for a parcel of property which authorizes a use or activity which is not otherwise expressly authorized by the zone regulation governing the parcel of property.” This paragraph serves to preclude “use” variances, but apparently does not prohibit so-called “bulk” variances, those which prescribe setbacks, building heights, and the like. The paragraph became effective on November 23, 1970, 19 days after the Los Angeles County Regional Planning Commission granted the variance here at issue. Petitioner does not contend that the paragraph is applicable to the present case.
FN 6. Government Code section 65800 declares that the code chapter of which section 65906 is a part is intended to provide minimum limitations within which counties and cities can exercise maximum control over local zoning matters. Article XI, section 11 of the California Constitution declares that “[a]ny county, city, town, or township may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.”
FN 7. This section recently was repealed but was in force when the zoning agencies rendered their decisions in the present case. For purposes of more succinct presentation, we refer in text to the section in the present tense.
FN 8. The rule stated finds its source in authorities holding that all adjudicatory determinations of local agencies are entitled to no more than substantial evidence review. As indicated above (fn. 1, ante) those authorities no longer state the law with respect to adjudicatory determinations of such agencies which affect fundamental vested rights. Since no such right is involved in this case, however, the substantial evidence standard remains applicable. We note by way of caution, however, that merely because a case is said to involve a “variance” does not necessarily dictate a conclusion that no fundamental vested right is involved. The term “variance” is sometimes used, for example, to refer to permits for nonconforming uses which predate a zoning scheme. (See Hagman, Larson, & Martin, Cal. Zoning Practice (Cont. Ed. Bar) pp. 383-384.)
FN 9. For descriptions of the history of judicial action in this state with respect to zoning variance grants, see Bowden, Article XVIII — Opening the Door to Open Space Control (1970) 1 Pacific L.J. 461, 507-509; 1 Appendix to Journal of the Senate (1970 Reg. Sess.) Final Report of the Joint Committee on Open Space Land (1970) pages 95-98; Hagman, Larson,& Martin, Cal. Zoning Practice, supra, pages 287-291.
FN 10. See page 511, ante.
FN 11. We note the apparent applicability of section 639 of the Los Angeles County Zoning Ordinance which was in effect at the time respondent granted the variance. That section provided: “After a hearing by a zoning board the said zoning board shall report to the commission its findings and recommend the action which it concludes the commission should take.” As explained in text, however, we rest our ruling upon Code of Civil Procedure section 1094.5.
FN 12. Allen v. Humboldt County Board of Supervisors (1963) 220 Cal.App.2d 877, 882 [34 Cal.Rptr. 232]. See also Siller v. Board of Supervisors (1962) 58 Cal.2d 479, 481 [25 Cal.Rptr. 73, 375 P.2d 41]. The California Judicial Council’s report reflects a clear desire that section 1094.5 apply to all agencies, regardless of whether they are subject to the Administrative Procedure Act and regardless of their state or local character. (See Judicial Council of Cal., 10th Biennial Rep. (1944) pp. 26, 45. See also Temescal Water Co. v. Dept. Public Works (1955) 44 Cal.2d 90, 101 [280 P.2d 1]; Deering, Cal. Administrative Mandamus (1966) p. 7.) “In the absence of compelling language in [a] statute to the contrary, it will be assumed that the Legislature adopted the proposed legislation with the intent and meaning expressed by the council in its report.” (Hohreiter v. Garrison (1947) 81 Cal.App.2d 384, 397 [184 P.2d 323].)
Section 1094.5 makes administrative mandamus available for review of “any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer.” (Italics added.) Government Code section 65901 satisfies these requisites with respect to variances granted by jurisdictions other than chartered cities such as Los Angeles County’s zoning agencies. Section 65901 provides, in part: “The board of zoning adjustment or zoning administrator shall hear and decide applications for conditional uses or other permits when the zoning ordinance provides therefor and establishes criteria for determining such matters, and applications for variances from the terms of the zoning ordinance.”
FN 13. See footnote 1, supra.
FN 14. Although at first blush, judicial enforcement of a findings requirement would appear to constrict the role of administrative agencies, in reality, the effect could be to the contrary. Because, notes Judge Bazelon, it provides a framework for principled decision-making, a findings requirement serves to “diminish the importance of judicial review by enhancing the integrity of the administrative process.” (Environmental Defense Fund, Inc. v. Ruckelshaus (D.C.Cir. 1971) 439 F.2d 584, 598.) By exposing the administrative agency’s mode of analysis, findings help to constrict and define the scope of the judicial function. “We must know what [an administrative] decision means,” observed Mr. Justice Cardozo, “before the duty becomes ours to say whether it is right or wrong.” (United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. (1935) 294 U.S. 499, 511 [79 L.Ed. 1023, 1032, 55 S.Ct. 462].)
FN 15. “Given express findings, the court can determine whether the findings are supported by substantial evidence, and whether the findings warrant the decision of the board. If no findings are made, and if the court elects not to remand, its clumsy alternative is to read the record, speculate upon the portions which probably were believed by the board, guess at the conclusions drawn from credited portions, construct a basis for decision, and try to determine whether a decision thus arrived at should be sustained. In the process, the court is required to do much that is assigned to the board. …” (3 Anderson, American Law of Zoning (1968) § 16.41, p. 242.)
FN 16. Although a variance board’s findings “need not be stated with the formality required in judicial proceedings” (Swars v. Council of City of Vallejo, supra, at p. 872), they nevertheless must expose the board’s mode of analysis to an extent sufficient to serve the purposes stated herein. We do not approve of the language in Kappadahl v. Alcan Pacific Co. (1963) 222 Cal.App.2d 626, 639 [35 Cal.Rptr. 354], and Ames v. City of Pasadena (1959) 167 Cal.App.2d 510, 516 [334 P.2d 653], which endorses the practice of setting forth findings solely in the language of the applicable legislation.
FN 17. See generally Comment, Zoning: Variance Administration in Alameda County (1962) 50 Cal.L.Rev. 101, 107 and footnote 42. See also Note, Administrative Discretion in Zoning (1969) 82 Harv.L.Rev. 668, 672 and sources cited therein.
FN 18. We focus on the statewide requirements because they are of more general application. If we were to decide that the criteria of section 65906 had been satisfied, we would then be called upon to determine whether the requirements set forth in the county ordinance are consistent with those in section 65906 and, if so, whether these local criteria also had been satisfied.
The local criteria need be squared with the state criteria since the section 65906 requirements prevail over any inconsistent requirements in the county ordinance. The stated purpose of title 7, chapter 4, of the Government Code, which includes section 65906, is to provide limitations — albeit minimal ones — on the adoption and administration of zoning laws, ordinances, and regulations by counties and nonchartered cities. (See fn. 6, ante.) Section 65802 of the code declares that “[n]o provisions of [the Government Code], other than the provisions of [chapter 4], and no provisions of any other code or statute shall restrict or limit the procedures provided in [chapter 4] by which the legislative body of any county or city enacts, amends, administers, or provides for the administration of any zoning law, ordinance, rule or regulation.” The clear implication is that chapter 4 does restrict or limit these procedures. (See also Cal. Const., art. XI, § 11.)
If local ordinances were allowed to set a lesser standard for the grant of variances than those provided in section 65906, a county or city could escape the prohibition against granting use variances added to section 65906 in 1970 (see fn. 5, ante) merely by enacting an ordinance which would permit the grant of use variances. Clearly the Legislature did not intend that cities and counties to which the provisions of chapter 4 apply should have such unfettered discretion.
FN 19. We confine our analysis to the relationship between the commission’s fact summary and its ultimate decision; we do not consider the testimonial evidence directly. To sustain the grant of the variance of course would require that we conclude that substantial evidence supports the findings and that the findings support the variance award. Since we decide below, however, that the commission’s fact summary does not include sufficient data to satisfy the section 65906 requirements, we need not take the further step of comparing the transcript to the fact summary. Our basis for so proceeding lies in Code of Civil Procedure section 1094.5, which defines “abuse of discretion,” one of several possible grounds for issuance of a writ of mandamus, to include instances in which “the order or decision [of the administrative agency] is not supported by the findings, or the findings are not supported by the evidence.” (Italics added.)
FN 20. See footnote 3, ante.
FN 21. Indeed, the General Plan for Topanga Canyon suggests that the subject property is not uniquely surfaced; it states that the entire area is characterized by “mountainous terrain, steep slopes and deep canyons interspersed with limited areas of relatively flat or rolling land.”
FN 22. Interestingly, since the witnesses who testified in favor of the variance never mentioned the stream beds, the original real party in interest apparently did not regard the beds as disadvantageous. Rather, a witness who opposed the variance offhandedly mentioned the beds as illustrative of the scenic beauty of the area. The trial court seized upon this testimony and used it in justifying the variance award.
FN 23. In fact, other parcels in the zone may well have the features that the successoral real parties in interest speculate are confined to the subject property. Rugged terrain apparently is ubiquitous in the area (see fn. 21, ante), and because the stream beds and highway must enter and exit the subject property somewhere, they may all traverse one or more neighboring parcels. Further, for all we know from the commission’s findings, stream beds may traverse most parcels in the canyon.
The Americans with Disabilities Act (ADA) contains various requirements pertaining to the accessibility, construction and operation of commercial facilities and places of “public accommodation.” Associations are private communities and are generally not subject to ADA requirements. (See Indep. Housing Servs. Of San Francisco v. Fillmore Center Assocs. (N.D. Cal 1993) 840 F.Supp. 1328, 1344 fn. 14: (“…the legislative history of the ADA clarifies that ‘other place of lodging’ does not include residential facilities.”).) However, the ADA may apply to certain areas of an association that are open to the public, including areas such as a “sales or rental office receiving public traffic, or commercial facilities that are part of a residential project.” (Carolyn v. Orange Park Community Assn. (2009) 177 Cal.App.4th 1090, 1103; See also Coronado v. Cobblestone Village Community Rentals (2009) 163 Cal.App.4th 831; See also “Americans with Disabilities Act (ADA).”)
Modifications to Units & Common Area Notwithstanding the foregoing, Civil Code Section 4760 allows for a member within an association to “[m]odify the member’s [unit], at the member’s expense, to facilitate access for persons who are blind, visually handicapped, deaf, or physically disabled, or to alter conditions which could be hazardous to these persons.” (Civ. Code § 4760(a)(2).) Such modifications may include “modifications of the route from the public way to the door of the [unit] [(i.e., to the common area)] if the [unit] is on the ground floor or already accessible by an existing ramp or elevator.” (Civ. Code § 4760(a)(2).)
The member’s right to perform such modifications to the member’s unit or to the common area route to the door of the unit are subject to the following conditions:
The modifications must comply with applicable building code requirements;
The modifications must be consistent with the association’s governing documents with respect to safety or aesthetics;
Modifications to the exterior of the unit must not prevent reasonable passage by other residents, and must be removed by the member when the unit is no longer occupied by the disabled persons requiring the modifications; and
The member must submit plans and specifications to the association for review prior to constructing the modifications, in order for the association to determine whether the modifications will be consistent with the requirements under Civil Code Section 4760(a). The association may not deny approval of the proposed modifications “without good cause.” (Civ. Code § 4760(a)(2)(A)-(D).)
[Discrimination; ADA Compliance] Americans with Disabilities Act (ADA) and related federal regulations implementing the ADA do not apply to portions of private residential facilities that are not open to the general public.
Oren & Oren, Inc. and Charles D. Oren for Plaintiff and Appellant. Prindle, Decker & Amaro and Jack C. Nick for Defendants and Respondents.
OPINION
KANE, J.-
Plaintiff Joseph Coronado, a disabled man who is wheelchair-bound, decided to rent a particular apartment at Cobblestone Village, a multi-unit complex owned and operated by defendants Cobblestone Village Community Rentals, L.P. and Equity Residential Properties Management Corporation. fn. 1 A barrier to wheelchair access existed on the path outside the apartment. Specifically, the concrete sidewalk leading from plaintiff’s apartment to the parking area ended in a raised curb with no access ramp for wheelchairs. Plaintiff was subsequently injured when his wheelchair toppled over while his wife tried to maneuver it off of the raised curb. Plaintiff sued defendants for violation of the Unruh Civil Rights Act (Civ. Code, § 51) fn. 2 and the Disabled Persons Act (§ 54 et seq.). After plaintiff’s case was presented at [836] trial, the trial court ruled that the above causes of action would not go to the jury because the statutory provisions were inapplicable to private residential apartments. Plaintiff appeals from that nonsuit order. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Cobblestone Village is an apartment complex located in the City of Fresno along both sides of Fruit Avenue. It was constructed in 1982 to 1983 using exclusively private funds. No substantial structural modifications or additions that would require a building permit have occurred since the original construction. The complex is owned and/or managed by defendants.
The leasing office for Cobblestone Village is open to the general public and a wheelchair access ramp is provided at that location. fn. 3 The apartments and common areas around the apartments are reserved for use by tenants and guests of tenants only, although other persons might enter the complex since defendants’ employees do not patrol the grounds. Vehicles are able to enter the apartment complex by means of a private driveway that connects with Fruit Avenue and winds through the interior of the complex.
Plaintiff is a quadriplegic. He has some use of his arms and can push his manual wheelchair to some extent, but a certain balance must always be maintained because he lacks upper torso control. He is able to get up a curb ramp in his wheelchair, but with no ramp a raised curb is an access barrier.
Cobblestone Village has apartment units that are fully accessible to disabled persons; however, such units were already rented at the time plaintiff and his wife, Krystal Coronado, were looking for an apartment. Plaintiff and his wife were shown apartment number Coro117 (the apartment) by one of the defendants’ leasing agents. The apartment was not designed for disability access, but the interior was adequate for plaintiff’s needs. There is a concrete path or sidewalk leading from the front door of the apartment to a common use parking area. This path or sidewalk ends at a raised curb next to plaintiff’s assigned parking spot. When plaintiff observed the raised curb at the time he was first shown the apartment, he informed defendants’ leasing agent that a wheelchair ramp would be needed. The agent indicated he would have to check with management, but he did not think it would be a problem. [837]
At the time plaintiff and his wife moved into the apartment in October of 2002, fn. 4 a temporary wooden ramp had been placed in the parking lot at the location of the raised curb at the end of the path leading to the apartment. The wooden ramp was placed there at the instruction of defendants’ apartment manager. It was constructed out of plywood and two-by-fours by defendants’ maintenance employee, who also repaired or replaced it on at least one occasion.
Plaintiff asserted at trial that defendants made numerous promises to put in a concrete wheelchair ramp at the curb. Plaintiff, his wife and a paralegal testified that assurances were given by several of defendants’ employees that a concrete ramp would in fact be built at defendants’ expense. Plaintiff and his wife also testified that they were ready and willing at all times to pay the expense themselves of putting in the concrete ramp, and made this fact known to defendants.
Defendants’ leasing agents who dealt with plaintiff and his wife denied ever promising a permanent concrete ramp. Linda Kelley, the apartment manager, testified that she told plaintiff and his wife that they had the option of putting in a permanent ramp at their own expense. According to Ms. Kelley, plaintiff and/or his wife never came forward and said “‘Yes[, we] want to put a ramp in.'” Eventually the wooden ramp, which was put in as a temporary convenience only, had to be removed. Thus, defendants’ position was that plaintiff simply failed to take advantage of the option of putting in a concrete ramp at plaintiff’s expense.
In spring of 2003, for reasons that are not entirely clear, fn. 5 the wooden ramp was removed by defendant Equity Residential Properties Management Corporation. On June 18, 2003, plaintiff’s wife was helping plaintiff get down the curb to the parking area in his wheelchair. In the process, the wheelchair tipped over and plaintiff and his wife were injured.
Plaintiff’s complaint was filed on February 17, 2005. A first amended complaint set forth the following causes of action: (1) premises liability, (2) constructive eviction, (3) violation of the Unruh Civil Rights Act (§ 51), (4) violation of the Disabled Persons Act (§ 54.1), and (5) injunctive relief under the Disabled Persons Act (§ 55.1). [838]
On the eighth day of trial and shortly before it would be time to instruct the jury, the trial court ruled on its own motion that the Unruh Civil Rights Act and the Disabled Persons Act were inapplicable in the circumstances of this case and therefore the statutory causes of action would not go to the jury. fn. 6 As explained by the trial court from the bench, even though the defendants’ leasing office was a public accommodation (and hence subject to the disability access provisions), that fact did not convert the entirety of the apartment complex — including residential areas — into a public accommodation for purposes of the relevant statutes. The minute order stated as follows:
“The Court determines, given the law, the research the Court has conducted and the authorities that have been provided for the Court’s consideration … it does not appear, given the law, nor does there appear to be any facts that would cause an interpretation of the law that would cause or allow the plaintiff’s causes of action under any of the disabled persons statutes or discriminatory behavior statutes to go to the jury…. [A]nd so, I do not intend to give instructions that pertain to those statutes. [¶]…[¶] The Court advises the parties a determination has been made that the corporate entity or partnership of Cobblestone Village is a business, they maintain a business office on the premises and the office is located on the opposite side of the street from the plaintiff’s unit in a different section of the apartment complex. The business office is a public accommodation, but the private apartments are not public accommodations within the meaning of any of the statutes cited.”
After the conclusion of the trial, the jury returned a defense verdict on the premises liability and constructive eviction causes of action. Judgment in favor of defendants was entered on July 13, 2007. Plaintiff timely appealed from the trial court’s order of dismissal or nonsuit of the causes of action under the Unruh Civil Rights Act and the Disabled Persons Act.[839]
DISCUSSION
I. Standard of Review
Plaintiff appeals from the equivalent of a “nonsuit” order entered after the presentation of plaintiff’s evidence. (Code Civ. Proc., § 581c.) Thus, we review whether the trial court was correct in concluding that the evidence, when viewed most favorably toward plaintiff’s case, afforded no basis for a cause of action under either the Unruh Civil Rights Act or Disabled Persons Act as a matter of law. (See Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 639.) “We will not sustain the judgment ‘”unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.”‘ [Citations.]” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)
The substance of plaintiff’s appeal is that the trial court erred because defendants had a statutory duty to install a wheelchair ramp at the location of the raised curb so that plaintiff would have access on the only path of travel between the apartment and the parking area (and beyond). The interpretation and application of statutes present a question of law that we review de novo. (Sutco Construction Co. v. Modesto High School Dist. (1989) 208 Cal.App.3d 1220, 1228; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 317, p. 355.) Similarly, the issue of whether a statutory scheme such as the Unruh Civil Rights Act is applicable in a particular context is a question of law that is reviewed de novo. (Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 607, fn. 7 [question of whether private club was business enterprise under statute was one of law].)
[1] We consider questions of statutory interpretation in accordance with well-established principles of statutory construction. “[C]ourts must begin with the language of a given statute as the purest expression of legislative intent.” (Gunther v. Lin (2006) 144 Cal.App.4th 223, 233.) Our task is “to ascertain the Legislature’s intent so as to effectuate the purpose of the law. [Citation.] Toward this end, we must accord a reasonable and commonsense interpretation consistent with the Legislature’s purpose. [Citation.]” (Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 176-177.) “Moreover, ‘every statute should be construed with reference to the whole system of law of which it is a part, so that all may be harmonized and have effect.’ [Citation.] Statutes relating to the same subject matter are to be read together insofar as reasonably possible. [Citation.]” (Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1190.)[840]
II. Causes of Action Based on Structural Barrier Under Unruh Civil Rights Act and Disabled Persons Act
As noted, plaintiff contends that the existence of the particular structural barrier (i.e., lack of a curb ramp) on the pathway outside the apartment denied his right to full and equal access to a public accommodation, which was therefore actionable under the Unruh Civil Rights Act and the Disabled Persons Act. Defendants counter that the trial court properly granted nonsuit because the barrier did not constitute a violation of any structural access standard applicable to residential facilities. We now address these respective arguments by considering the statutes in question
A. Unruh Civil Rights Act
[2] Section 51, also known as the Unruh Civil Rights Act, provides in part: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability… are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (§ 51, subd. (b), italics added.) This section “shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike” to all persons. (§ 51, subd. (c).) [3] Section 52, subdivision (a), authorizes recovery of damages to persons denied the rights that are protected under section 51. However, a plaintiff seeking to establish a cause of action for damages under the Unruh Civil Rights Act “must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act.” (Harris v. Capital Growth Investors XIV(1991) 52 Cal.3d 1142, 1175, italics added; see Hankins v. El Torito Restaurants, Inc.(1998) 63 Cal.App.4th 510, 518 [damages under § 52 require intentional violation of § 51];Gunther v. Lin,supra, 144 Cal.App.4th at pp. 247, 257 [same].) fn. 7
[4] The provisions of the Unruh Civil Rights Act, “in light of its broad application to ‘all business establishments,’ have been held to apply with full force to the business of renting housing accommodations.” (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 731.) Thus, the residential apartment complex in Marina Point correctly conceded that “like other business establishments that deal with the public, its freedom or authority to exclude ‘customers,’ i.e., prospective tenants, from the goods and services it offers, i.e., rental units, is limited by the provisions of the [841] Unruh Act.” (Ibid., fn. omitted; O’Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 794-796 [private condominium association was a “business establishment” covered by the Unruh Act].) It is clear from Marina Point and O’Conner that section 51 is fully applicable to defendants’ apartment complex business in the present case, i.e., Cobblestone Village. The question then is not whether section 51 applies to the business enterprise of renting apartments (it does), but whether a cause of action for violation of section 51 may be established in this case under plaintiff’s evidence presented at trial.
[5] We therefore consider whether section 51 may have been violated by the existence of the structural barrier (i.e., no curb ramp) — a theory that depends on a conclusion that defendants were required to make a structural modification to the property. Subdivision (d) of section 51 states: “Nothing in this section shall be construed to require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law, to any new or existing establishment, facility, building, improvement, or any other structure….” (Italics added.) Subdivision (e) of section 51 further declares that “A violation of the right of any individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) [ADA] shall also constitute a violation of this section.” Thus, on the question of whether a particular structural modification (such as a wheelchair ramp) is required in a given context, section 51 by its own terms looks to other provisions of law.
It follows from the above discussion that a cause of action in which a plaintiff seeks damages for disability discrimination under section 51 based on a structural or architectural barrier requires a showing that the barrier existed due to an intentional violation of an applicable law relating to disability access standards. (See Gunther v. Lin,supra, 144 Cal.App.4th at p. 247 [§ 51 violation may be founded on structural and architectural barriers that are intentional violation of ADA].) Plaintiff contends that defendants were required to construct a wheelchair ramp in the present case under the following provisions of law: (1) Government Code section 4450 et seq. and Health and Safety Code section 19955 et seq., and (2) the ADA. We will shortly turn our attention to these statutory schemes to determine if plaintiff is correct. At this point, we emphasize that plaintiff’s cause of action under section 51 premised on the existence of a structural barrier depends on whether the lack of a wheelchair ramp at the subject curb constituted an intentional violation of one of these other provisions of law relating to disability access.[842]
B. Disabled Persons Act
In 1968, the Legislature enacted sections 54, 54.1 and 54.3 as one of two statutory schemes that were specifically designed to prevent discrimination against the physically disabled. (People ex rel.Deukmejian v. CHE, Inc. (1983) 150 Cal.App.3d 123, 131-134.) The other statutory scheme, which we address later, consisted of Government Code section 4450 et seq. and Health and Safety Code section 19955 et seq. (People ex. rel. Deukmejian v. CHE, Inc., supra, at pp. 131-134.)
Sections 54 through 55.2 are now commonly referred to as the Disabled Persons Act and are “intended to secure to disabled persons the ‘same right as the general public to the full and free use’ of facilities open to the public. [Citation.]” (Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 261.) As originally enacted, violation of sections 54 or 54.1 constituted a misdemeanor as stated in former section 54.3, and enforcement was by government prosecution. (Marsh v. Edwards Theatres Circuit, Inc. (1976) 64 Cal.App.3d 881, 887 (Marsh).) In 1974, section 55 was added to give individuals aggrieved by violation of sections 54 or 54.1 a right to obtain injunctive relief; and in 1976, section 54.3 was amended to allow such individuals a right to maintain a civil cause of action for damages. (Donald v. Cafe Royale, Inc., supra, 218 Cal.App.3d at p. 179 [summarizing statutory history].) These additional enforcement methods were included by the Legislature to “guarantee compliance with equal access requirements” and to help remove “impediments to the physically handicappeds’ interaction in community life….” (Ibid.)
The Disabled Persons Act (§§ 54-55.2) differs from the Unruh Civil Rights Act (§§ 51 & 52) in at least two respects: (1) there is no intent element under the Disabled Persons Act (Donald v. Cafe Royale, Inc., supra, 218 Cal.App.3d at p. 177), but intentional discrimination is a required element for recovery of damages under the Unruh Civil Rights Act; and (2) each Act provides for a distinct measure of statutory penalties (cf. §§ 52 & 54.3;Gunther v. Lin, supra, 144 Cal.App.4th at p. 257). Due to these significant differences, a plaintiff must elect between seeking damages under sections 52 or 54.3. (§ 54.3, subd. (c); Gunther v. Lin, supra, 144 Cal.App.4th at p. 257.) fn. 8
Section 54, subdivision (a), declares that “Individuals with disabilities have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’ offices, public facilities, and other [843] public places.” Section 54.1, subdivision (a)(1), states in similar fashion that “Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, … privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public conveyances or modes of transportation, … telephone facilities, adoption agencies, private schools, hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law … and applicable alike to all persons.” Both sections 54 and 54.1 were amended in 1996 to add a provision declaring that “A violation of the right of an individual under the [ADA] also constitutes a violation of this section….” (§§ 54, subd. (c) & 54.1, subd. (c); see Stats. 1996, ch. 498, §§1 & 1.5.)
Subdivision (b)(1) of section 54.1 includes a specific provision relating to housing accommodations that declares as follows: “Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to all housing accommodations offered for rent, lease, or compensation in this state, subject to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons.” “‘Housing accommodations’ means any real property, or portion thereof, that is used or occupied, or is intended, arranged, or designed to be used or occupied, as the home, residence, or sleeping place of one or more human beings, but shall not include any accommodations included within subdivision (a) or any single-family residence the occupants of which rent, lease, or furnish for compensation not more than one room therein.” (§ 54.1, subd. (b)(2).)
[6] In addition to declaring that the protections of the Disabled Persons Act apply to housing accommodations, subdivision (b) of section 54.1 affirmatively requires that those who rent, lease or otherwise provide such housing do the following: (1) make reasonable accommodations in rules, policies, practices, or services, when necessary to afford individuals with a disability equal opportunity to use and enjoy the premises (§ 54.1, subd. (b)(3)(B)), and (2) permit a disabled tenant to make reasonable modifications at his or her own expense to the rented premises when necessary to afford that tenant full use and enjoyment of the rented premises, which modifications may be conditioned on the tenant entering into a written agreement to restore the interior of the premises to the original condition (§ 54.1, subd. (b)(3)(A)). fn. 9 Finally, it is provided that “Nothing in this subdivision shall require any person renting, leasing or providing for compensation real property to modify his or her property in any way or provide a [844] higher degree of care for an individual with a disability than for an individual who is not disabled.” (§ 54.1, subd. (b)(4), italics added.) The latter section clarifies that subdivision (b) does not by itself mandate the owner or operator of the real property to make any structural modifications, which is consistent with the interpretation that the courts have generally given the Disabled Persons Act, as we discuss below.
[7] Historically, sections 54 and 54.1 have been construed to mean that “all physically handicapped are entitled to the same right as the able-bodied to full and free use of public facilities and places,” requiring operators of such public facilities and accommodations to “‘open [their] doors on an equal basis to all that can avail themselves of the facilities without violation of other valid laws and regulations.'” (People ex. rel. Deukmejian v. CHE, Inc., supra, 150 Cal.App.3d at p. 133, citing Marsh, supra, 64 Cal.App.3d at p. 892.) It has been held that these provisions do not, by themselves, require that a business owner structurally modify his or her facilities. (Marsh, supra, at pp. 886, 891 [§ 54.1 “does not require affirmative action by way of modifying existing structures”].) As the Marsh court concluded following an analysis of the legislative history, “the operator of a business of a type enumerated in Civil Code section 54.1 is not required by the force of that section alone to modify its facilities to allow for their use by handicapped persons.” (Marsh, supra, at p. 892; see Hankins v. El Torito Restaurants, Inc.,supra, 63 Cal.App.4th at p. 522 [acknowledging Marsh rule “that a structural impediment to access does not violate Civil Code section 54.1 unless the impediment also violates a structural access standard”].)
We know of no reason to depart from the analysis in Marsh on this issue. In fact, there are at least two sound reasons to follow it. First, it is clear that the Legislature adopted a distinct statutory scheme in 1968-1969 (i.e., Gov. Code § 4450 et seq. and Health & Saf. Code § 19955 et seq.) to address the separate matter of building access standards and structural modifications. (See, e.g.,People ex. rel. Deukmejian v. CHE,Inc.,supra, 150 Cal.App.3d at pp. 131-134 [structural access standards, applicable to new construction or modification of existing facilities, were enacted to “give meaning” to §§ 54 & 54.1];Donald v. Sacramento Valley Bank,supra, 209 Cal.App.3d at pp. 1190-1192 [same].) This fact strongly indicates sections 54 and 54.1 were not themselves intended to require business owners to modify the structure of their premises, as other statutes were adopted for that purpose. Second, the Legislature specifically responded to one aspect of the holding in Marsh (i.e., that there was no private cause of action for damages) by amending section 54.3 to authorize a private cause of action for specified damages (Stats. 1976, ch. 971, § 2; Stats. 1976, ch. 972, § 2.5; and Stats. 1977, ch. 881, § 3), but left fully intact Marsh’s fundamental interpretation of the statutory scheme that a structural barrier does not violate sections 54 or 54.1 unless it also violates a separate structural access standard. (See [845] Gunther v. Lin, supra, 144 Cal.App.4th at p. 236 [legislative acquiescence in prior judicial construction of statutory language creates inference that Legislature agreed with that construction].)
[8] We conclude that in order to state a cause of action for violation of sections 54 or 54.1 based on a structural or architectural barrier, the existence of the barrier must be in violation of a separate provision of law relating to structural access standards. This means that, as was true in our analysis of section 51, we must look to other provisions of law before we can determine whether a cause of action on this theory was sufficiently supported by the evidence.
We now proceed to consider those other laws.
C. Government Code Section 4450 et seq. and Health and Safety Code Section 19955 et seq.
As noted, Government Code section 4450 et seq. and Health and Safety Code section 19955 et seq. were enacted in 1968 and 1969 respectively as means of providing structural access standards in regard to public buildings and facilities. The scope and purpose of these provisions have been aptly summarized as follows: “To give meaning to the public accommodation law prohibiting discrimination against the handicapped, the Legislature enacted Government Code section 4450 et seq. providing for the establishment of standards for buildings constructed with public funds designed to insure accessibility by the handicapped. A year later, the Legislature expanded these requirements to facilities constructed with private funds ([Health & Saf. Code, ]§ 19955 et seq.) and, with certain limited exceptions, required conformance with the same standards set forth within Government Code section 4450 et seq. The underlying legislative intent of these statutory schemes is to require affirmative conduct so as to guarantee access to the physically handicapped upon construction of new facilities or with the repair and alteration of existing facilities. [Citation.]” (People ex. rel. Deukmejian v. CHE, Inc., supra, 150 Cal.App.3d at p. 133.) That is, disability access standards were first implemented with respect to public buildings or facilities constructed with public funds (Gov. Code, §§ 4450-4458), and were later expanded to include public buildings or facilities constructed with private funds (Health & Saf. Code, §§ 19955-19959;Donald v. Sacramento Valley Bank, supra, 209 Cal.App.3d at p. 1191).
Since Cobblestone Village was constructed with private funds, plaintiff’s contention is that Health and Safety Code section 19955 et seq. required the construction of a curb ramp at the location where the incident occurred. Defendants respond that the walkway outside plaintiff’s apartment is not a [846] public facility, and therefore Health and Safety Code section 19955 is inapplicable. As explained below, we conclude defendants are correct.
[9] Health and Safety Code section 19955, subdivision (a), explains that the purpose of Part 5.5 of the code (including sections 19955 to 19959.5) is “to insure that public accommodations or facilities constructed in this state with private funds adhere to the provisions of Chapter 7 (commencing with Section 4450) of Division 5 of Title 1 of the Government Code.” The same section defines the term “‘public accommodation or facilities'” as follows: “a building, structure, facility, complex, or improved area which is used by the general public and shall include auditoriums, hospitals, theaters, restaurants, hotels, motels, stadiums, and convention centers.” (Health & Saf. Code, § 19955, subd. (a), italics added.) Similarly, Health and Safety Code section 19956.5, which relates to public curbs and sidewalks constructed with private funds, states that it applies to “Any curb or sidewalk intended for public use….” (Italics added.)
In the present case, there was no evidence to suggest that the cement walkway outside plaintiff’s apartment was an area used by the general public or that it was intended for use by the general public. The relevant testimony on this issue indicated that although the general public was invited to the leasing office, only tenants and guests of tenants were supposed to be in residential areas and common areas around the residential areas. Additionally, there was no evidence to indicate that the private lane or driveway going through the interior of defendants’ complex, as a means of vehicular access, was intended for use by the general public. Thus, the curb located on the walkway outside plaintiff’s apartment was not a public facility or public sidewalk to which the provisions of Health and Safety Code sections 19955 and 19956.5 would apply.
This determination is in accord with a well-reasoned 1982 Attorney General Opinion concluding that a mobilehome park recreational building is not a public accommodation or facility within the meaning of the above statutes. (65 Ops.Cal.Atty.Gen. 72, 75 (Jan. 26, 1982).) As explained by that opinion:
“Undoubtedly that facility is open to a more general class than the residents of the park, for surely it is available to their families and invited guests. Use by the expanded group of persons in our view, however, does not reach the use ‘by the general public’ spoken of in [Health and Safety Code] section 19955. There are still meaningful restrictions on who may use the facilities, which considerably narrows their amenability to user from being generally available to the public — as is the case with an auditorium, hospital, theater, restaurant, hotel, motel, stadium or convention center — to being available to a select and definable few. Furthermore, unlike those facilities, the purpose for whose creation is based upon their being made continuously available to the [847] general public and whose economic viability cannot survive without their being so available, the recreation center at a mobilehome park is neither so created nor dependent. Rather, it is a secondary appendage to another unit, the park itself which, like it, neither contemplates nor needs accessibility of continuous use by the general public for its sustenance. Thus, we do not believe the fact that a recreational building in a mobilehome park might well be used by the residents’ families, friends, and invited guests makes it ‘a building … or facility used by the general public’ or a ‘public facility or accommodation’ within the meaning of [Health and Safety Code] section 19955.”
Of further interest in our present case, the same Attorney General Opinion rejected an argument that the presence of a commercial office within the mobilehome park converted all structures or areas in the park into a commercial establishment within the meaning of Health and Safety Code section 19955.5. “The main office of the park might be considered engaging in a commercial activity, but surely the individual mobilehomes cannot be so considered, nor do we believe the recreation building itself can be so considered…. Thus, while the office of the mobilehome park would be covered by [Health and Safety Code] section 19955.5, since commercial activity is performed within it, that does not extend to the park’s recreation building and it would not be covered by the section’s mandate.” (65 Ops.Cal.Atty.Gen. 72, 76 (Jan. 26, 1982).)
[10] In granting the nonsuit order in the present case, the trial court explained that even though defendants’ leasing office was a public accommodation (and hence subject to the structural access standards), that fact would not convert the entirety of the apartment complex — including residential areas — into a public accommodation for purposes of the relevant statutes. We concur with the trial court’s analysis on this point — which is also suggested in the above referenced Attorney General Opinion. In a multi-use complex such as this, where there is a commercial office open to the general public but also residential and common areas that are not open to the general public, it is appropriate to consider the particular area in question when attempting to determine the applicability of statutes that provide for structural access standards. We conclude that these statutory provisions did not require defendants to install a curb ramp at the location where plaintiff fell.
D. Americans With Disabilities Act
[11] Plaintiff claims that removal of the structural barrier in this case was required by the ADA. As noted previously, the California Legislature has declared that a violation of the ADA constitutes a violation of the Unruh Civil [848] Rights Act and the Disabled Persons Act. fn. 10 The ADA provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. § 12182(a).) The ADA defines discrimination in a place of public accommodation to include “a failure to remove architectural barriers … in existing facilities … where such removal is readily achievable ….” (42 U.S.C. § 12182(b)(2)(A)(iv).) The term “readily achievable” means “easily accomplishable and able to be carried out without much difficulty or expense.” (42 U.S.C. § 12181(9).)
“Thus, under the ADA, the duty to remove such barriers from public accommodations now extends beyond initial construction and significant alterations of existing structures. ‘A public accommodation shall remove architectural barriers in existing facilities, … where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.’ [Citation.]” (Madden v.Del Taco, Inc. (2007) 150 Cal.App.4th 294, 302 (Madden).) In Madden, the Court of Appeal held that a restaurant was required to remove a structural barrier (i.e., a cement trash container blocking an accessible route of travel to an entrance) based on the requirement in the ADA to remove barriers where such removal is readily achievable. (Madden, supra, at pp. 302-303.) fn. 11 This was so even though the restaurant was otherwise in compliance with structural access standards and had not engaged in any triggering alterations. fn. 12 (Madden, supra, at p. 302)[849]
Plaintiff contends that Madden directly applies here because the installation of a curb ramp, as a means of removal of a structural barrier to access, was readily achievable in this case, especially when the evidence that plaintiff was willing to pay for the installation is considered. Defendants argue that Madden is inapplicable because it involved a place of public accommodation as defined under the ADA, while the instant case did not. We agree with defendants’ position.
Section 12181 of the ADA defines the term “public accommodation” in terms of “12 extensive categories, which the legislative history indicates ‘should be construed liberally’ to afford people with disabilities ‘equal access’ to the wide variety of establishments available to the nondisabled.” (PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 676-677, fns. omitted.) Section 12181(7) of the ADA states:
“The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce
“(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
“(B) a restaurant, bar, or other establishment serving food or drink;
“(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
“(D) an auditorium, convention center, lecture hall, or other place of public gathering;
“(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
“(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
“(G) a terminal, depot, or other station used for specified public transportation;
“(H) a museum, library, gallery, or other place of public display or collection;[850]
“(I) a park, zoo, amusement park, or other place of recreation;
“(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
“(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
“(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.”
[12] Plaintiff argues the category “inn, hotel, motel, or other place of lodging” (42 U.S.C. § 12181(7)(A)) should be interpreted to include a residential apartment complex. Even when liberally construed, the wording cannot reasonably stretch that far. The described category of “inn, hotel, motel, or other place of lodging” obviously entails places that provide only short-term or transient lodging, not places of residence. This is confirmed by congressional legislative history that explicitly states only nonresidential facilities were intended to be covered by the ADA. (H.R.Rep. 101-485 (II), 2d Sess., p. 303 (1990), reprinted in 1990 U.S. Code Cong. & Admin. News, p. 383.) Finally, federal courts addressing the issue have consistently held that the ADA does not apply to residential facilities such as apartments or condominiums. (Regents of Mercers. College v. Rep. Franklin Ins. (3d Cir. 2006) 458 F.3d 159, 165-166, fn. 8 [“residential facilities such as apartments and condominiums are not transient lodging and, therefore, not subject to ADA compliance”]; Lancaster v. Phillips Investments, LLC (M.D.Ala. 2007) 482 F.Supp.2d 1362, 1367;Indep. Housing Services v. Fillmore Ctr. (N.D.Cal. 1993) 840 F.Supp. 1328, 1344, fn. 14; Mabson v. Assn. of Apt. Owners (D.Hawaii August 13, 2007, Civ. No. 06-00235DAE-LEK) 2007 U.S. Dist. LEXIS 59260 at *30;Phibbs v. Am. Prop. Mgmt. (D.Utah March 19, 2008, No. 2:02CV00260DB) 2008 U.S. Dist. LEXIS 21879 at **6-8.) We concur with the reasoning and conclusions expressed in these cases.
We hold that the portions of Cobblestone Village that are a residential apartment complex are not a public accommodation under the ADA, and therefore are not subject to compliance with the ADA or federal regulations implementing the ADA. Consequently, defendants were not required by the ADA to install a curb ramp at the location outside plaintiff’s apartment.
[13] As was the case with the California discrimination statutes, the mere fact that there was a business office in the apartment complex does not change our conclusion. The legislative history of the ADA indicates it was not intended to apply to portions of a multi-use facility that are residential in character. The 1990 House Report relating to the ADA stated: “Only nonresidential facilities are covered by this title. For example, in a large hotel that [851] has a residential apartment wing, the residential wing would be covered under the Fair Housing Act … rather than by this title. The nonresidential accommodations in the rest of the hotel would be covered by this title.” (H.R.Rep. 101-485 (II),supra, at p. 303, reprinted in 1990 U.S. Code Cong. & Admin. News, p. 383.) Accordingly, the ADA should be reasonably construed and applied in accordance with this intent. This means that where there is a multi-use facility in which there is a commercial office open to the general public but also residential and common areas that are not open to the general public, it is appropriate to consider the particular area in question when attempting to determine the applicability of ADA structural access standards or other ADA requirements. (See also 28 C.F.R § 36, Appen. B [indicating that in a mixed use facility the residential portion thereof would not be covered by ADA]; Indep. Housing Services v. Fillmore Ctr., supra, 840 F.Supp. at p. 1344 [ADA held inapplicable to residential portions of the larger facility].)
E. Summary of Conclusion Regarding Structural Barrier Causes of Action
[14] As explained herein above, a plaintiff seeking to establish a cause of action under the Unruh Civil Rights Act or the Disabled Persons Act based solely on the existence of a structural barrier must be able to show that the failure to remove the barrier constituted a violation of a structural access standard set forth in other provisions of law. In the instant case, none of the statutes that were referred to by plaintiff as the source of such structural access standards was applicable to the residential and common areas of the apartment complex. We have also observed that this result is not affected in this case by the fact that the apartment complex had a leasing office within the facility. Accordingly, no structural barrier cause of action was presented under the allegations and facts of this case as a matter of law and the trial court correctly kept such causes of action from the jury.
In reaching this conclusion regarding the scope of the various statutory schemes, we emphasize that our role is to construe and apply the legislation as it is. This court is not insensitive to the hardships suffered by individuals who have disabilities, but these are peculiarly legislative matters. As aptly stated by the court in Marsh, supra, 64 Cal.App.3d at page 888: “The varied and distinctive nature of the numerous handicaps from which so many people suffer suggests … that the problem is one which the legislative branch of government is uniquely equipped to solve. It is in the legislative halls where the numerous factors involved can be weighed and where the needs can be properly balanced against the economic burdens which of necessity will have to be borne by the private sector of the economy in providing a proper and equitable solution to the problem.”[ 852]
DISPOSITION
The judgment is affirmed. Costs are awarded to defendants.
Cornell, Acting P.J., and Hill, J., concurred.
FN 1. For simplicity, we refer to these entities jointly as defendants unless it seems helpful to the discussion to refer to one defendant separately.
FN 2. Unless otherwise indicated, all further statutory references are to the Civil Code.
FN 3. The leasing office is located on the other side of Fruit Avenue from plaintiff’s apartment. In addition to the leasing office, the swimming pool area and at least two of the apartment units had full disability access.
FN 4. Plaintiff and his wife began renting the apartment in late October of 2002 and moved out in August of 2003.
FN 5. There was some testimony to the effect that the ramp was removed because it did not appear to be safe or it was in poor condition. Other testimony reflects it may have been mistakenly thrown out because it appeared to be a skateboard ramp or a piece of wood that did not belong there.
FN 6. Plaintiff points out that the trial court failed to comply with standard procedures governing nonsuit motions (see Code Civ. Proc., § 581c). Although the trial court’s sua sponte order was unusual, no basis for reversal is shown. First, it is clear the trial court was acting to fulfill its judicial duty to ensure the jury was properly instructed on the law applicable to the case. Once the trial court concluded the disability access statutes were inapplicable in the context of this case, and hence claims based thereon could not as a matter of law go to the jury, it promptly informed the parties of its decision. Second, plaintiff made no objection below on grounds of procedural error or unfairness, and it is apparent the parties understood this was a legal issue that had to be resolved in the case. Third, since the instant appeal requires us to resolve the same legal issues as the trial court faced, and we agree that no cause of action existed under the statutes in question, it would be an idle act for us to reverse the case on procedural grounds simply to have the trial court enter a dismissal. (See § 3532.)
FN 7. In contrast, recovery under the Disabled Persons Act (§§ 54-55.2) does not require an intentional violation. (Donald v. Cafe Royale, Inc., supra, 218 Cal.App.3d at p. 177;Gunther v. Lin, supra, 144 Cal.App.4th at pp. 240-241.)
FN 8. Another difference is that the Unruh Civil Rights Act has an express provision authorizing punitive damages (§ 52, subd. (b)(1)), but the Disabled Persons Act does not.
FN 9. Plaintiff does not argue that this section is applicable to his claim that a curb ramp should have been installed. This is correct, since the curb is situated in a common area that is not part of plaintiff’s apartment.
FN 10. Of course, in the case of the Unruh Civil Rights Act, the violation must be an intentional discrimination or an intentional violation of a structural access standard, as previously discussed.
FN 11. Madden suggests that California building standards would now, like the ADA, require removal of architectural barriers in existing public accommodations that come within the scope of Government Code section 4450 and Health and Safety Code 19955 et seq. (Madden, supra, 150 Cal.App.4th at p. 302, fn. 3.)
FN 12. When a public accommodation that was constructed prior to the effective date of the ADA is altered or a part of it is altered, the ADA requires that the alterations be made such that “the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.” (42 U.S.C. § 12183(a).) Similar provisions for applicability of access standards to post-construction alteration are set forth in Health and Safety Code section 19959 and Government Code section 4456 regarding buildings constructed prior to the effective dates thereof. These standards are applied to “new facilities or with the repair and alteration of existing facilities.” (People ex rel. Deukmejian v. CHE, Inc., supra, 150 Cal.App.3d at p. 133.) This is presumably what the Madden court meant by a “triggering alteration.” The concept of a triggering alteration is not at issue here because, as explained herein, the referenced statutes do not apply to the residential apartment complex or common areas thereof, and in any event there is no evidence of any significant alteration to Cobblestone Village.
An association’s governing documents (i.e., architectural standards) may not prohibit, or include conditions that have the effect of prohibiting, “the use of low water-using plants as a group or as a replacement of existing turf.” (Civ. Code § 4735(a)(1).) Additionally, the governing documents may not have the effect of prohibiting or restricting compliance with either:
Any regulation or restriction on the use of water adopted pursuant to Section 353 or 357 of the Water Code. (Civ. Code § 4735(a)(3).)
Civil Code Section 4735 also restricts an association’s ability to fine homeowners for failing to water their landscaping during government-declared drought periods. (See “Watering During Droughts.”)
Artificial Turf (Artificial Grass)
Homeowners within associations have rights to install artificial turf (artificial grass) on their properties regardless of any provisions in an association’s governing documents to the contrary. (See “Artificial Turf (Artificial Grass).”)
(1) To the extent funds are appropriated, not later than January 1, 2009, by regulation, the department shall update the model water efficient landscape ordinance adopted pursuant to Chapter 1145 of the Statutes of 1990, after holding one or more public hearings. The updated model ordinance shall be based on the recommendations set forth in the report prepared pursuant to Chapter 682 of the Statutes of 2004 and shall meet the requirements of Section 65596.
(2) Before the adoption of the updated model ordinance pursuant to paragraph (1), the department shall prepare and submit to the Legislature a report relating to both of the following:
(A) The extent to which local agencies have complied with the model water efficient landscape ordinance adopted pursuant to Chapter 1145 of the Statutes of 1990.
(B) The department’s recommendations regarding the landscape water budget component of the updated model ordinance described in subdivision (b) of Section 65596.
(b) Not later than January 31, 2009, the department shall distribute the updated model ordinance adopted pursuant to subdivision (a) to all local agencies and other interested parties.
(c) On or before January 1, 2010, a local agency shall adopt one of the following:
(1) A water efficient landscape ordinance that is, based on evidence in the record, at least as effective in conserving water as the updated model ordinance adopted by the department pursuant to subdivision (a).
(2) The updated model ordinance described in paragraph (1).
(d) If the local agency has not adopted, on or before January 1, 2010, a water efficient landscape ordinance pursuant to subdivision (c), the updated model ordinance adopted by the department pursuant to subdivision (a) shall apply within the jurisdiction of the local agency as of that date, shall be enforced by the local agency, and shall have the same force and effect as if adopted by the local agency.
(e) Nothing in this article shall be construed to require the local agency’s water efficient landscape ordinance to duplicate, or to conflict with, a water efficiency program or measure implemented by a public water system, as defined in Section 116275 of the Health and Safety Code, within the jurisdictional boundaries of the local agency.
“Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property, and any provision of a governing document, as defined in Section 4150 or 6552, that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable.” (Civ. Code § 714(a).)
A “solar energy system” means either of the following:
Any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for space heating, space cooling, electric generation, or water heating; or
Any structural design feature of a building, whose primary purpose is to provide for the collection, storage, and distribution of solar energy for electricity generation, space heating or cooling, or for water heating. (Civ. Code §§ 714(d)(2), 801.5(a)(1)-(2).)
“Reasonable Restrictions” Permitted Civil Code Section 714(b) permits “reasonable restrictions” on the installation or use of solar energy systems. Reasonable restrictions on solar energy systems are “those restrictions that do not significantly increase the costs of the system or significantly decreases its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits.” (Civ. Code § 714(b).)
The term “significantly” has different meanings depending on the type of solar energy system being used (i.e., whether it is solar panels or a solar water heating system):
Photovoltaic Systems (Solar Panels): $1000 Cost Increase or 10% Efficiency Reduction
For photovoltaic systems (solar panels) that comply with state and federal law, “significantly” means:
“an amount not to exceed one thousand dollars ($1,000) over the system cost as originally specified and proposed,” or
“a decrease in the system efficiency of an amount not exceeding 10 percent as originally specified and proposed.” (Civ. Code § 714(d)(1)(B).)
Solar Water Heating Systems: 10%/$1,000 Cost Increase or 10% Efficiency Reduction
For “solar domestic water heating systems or solar swimming pool heating systems” that comply with state and federal law, “significantly” means:
“an amount exceeding 10 percent of the cost of the system, but in no case more than one thousand dollars ($1,000),” or
“decreasing the efficiency of the solar energy system by an amount exceeding 10 percent, as originally specified and proposed.” (Civ. Code § 714(d)(1)(A).)
Application & Timeline for Approval: 45 Day Maximum
Where association approval for the installation or use of a solar energy system is required, the application must be processed and approved in a manner consistent with that utilized for approving an application for modifications to the owner’s property. (Civ. Code § 714(e)(1); See also “Architectural Application & Approval Process.”) Approval or denial must be in writing. If no approval or denial is received within forty-five (45) days from the date of receipt of the application, the application will be deemed approved unless the delay is due to a reasonable request for the owner to provide additional information. (Civ. Code § 714(e)(2)(A)-(B).)
Additionally, Civil Code Section 714.1(b) allows an association to impose reasonable provisions that require the owner to obtain association approval for the installation of a solar energy system in a separate interest owned by another.
System & Owner Requirements
The solar energy system proposed by an owner must:
Meet applicable health and safety standards and requirements imposed by state and local permitting authorities, consistent with Government Code Section 65850.5;
For solar water heating systems, the system must be certified by an accredited listing agency as defined in the Plumbing and Mechanical Codes; and
Additionally, Civil Code Section 714.1 allows an association to impose reasonable provisions which:
Restrict the installation of solar energy systems installed in common areas to those systems approved by the association;
Require the owner of a separate interest to obtain the approval of the association for the installation of a solar energy system in a separate interest owned by another;
Provide for the maintenance, repair, or replacement of roofs or other building components; and/or
Require installers of solar energy systems to indemnify or reimburse the association or its members for loss or damage caused by the installation, maintenance, or use of the solar energy system. (Civ. Code § 714.1(a)-(d).)
Solar Energy Systems Installed in Common Area Civil Code Section 4746 grants owners rights to install solar energy systems on common area roofs, garages and carports, subject to certain limitations discussed below.
Association Requirements
When reviewing a request to install a solar energy system on a multifamily common area roof shared by more than one homeowner, the association must require (Civ. Code § 4746(a)):
that the applicant/owner notify each owner of a unit in the building sharing the roof of the application, and
the owner and each successive owner to maintain a homeowner liability coverage policy at all times and provide the association with the corresponding certificate of insurance within 14 days of approval of the application and annually thereafter.
Reasonable Restrictions Which May be Imposed
When reviewing a request to install a solar energy system on a common area roof as described above, the association may also impose reasonable provisions which (Civ. Code § 4746(b)):
require the applicant to submit a solar site survey showing the placement of the solar energy system, which also includes a determination of the equitable allocation of the usable solar roof area among all owners sharing the same roof, garage or carport;
require the owner and each successive owner of the solar energy system to be responsible for costs of (i) damage to the common area, exclusive use common area or separate interests resulting from the installation, maintenance repair, removal or replacement of the system, (ii) costs of maintenance, repair and replacement of the system until it has been removed and for the restoration of the area after removal; and
require the owner to disclose to prospective buyers the existence of the owner’s system and his corresponding responsibilities described above.
Aesthetic Considerations
In reviewing an application for a proposed solar energy system, an association is permitted to consider the aesthetic impacts of the proposed system, provided that such consideration does not violate Civil Code Section 714’s requirements with regard to “significant” increases in the system’s costs or decreases in the system’s efficiency or specified performance:
“Nothing in the language of section 714 prohibits the consideration of aesthetic impacts. To the contrary, the provision in section 714 that “the application for approval shall be processed and approved by the appropriate approving entity in the same manner as an application for approval of an architectural modification to the property” indicates that the Legislature specifically anticipated that an evaluation of a proposed solar energy system–just as any other proposed improvement–would involve the consideration of aesthetics.” (Tesoro del Valle Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 633.)
No Requirement for Association to Propose Alternative System
If an association justifiably denies an application for a proposed solar energy system, the association is not required to then propose a comparable alternative system that would satisfy the association’s approval requirements:
“We are likewise unpersuaded by [the homeowners’] argument that [the association] had the burden to propose a comparable alternative system at the time it denied [the homeowners’] application. Again, nothing in the language of section 714 imposes such a burden on a homeowners association. The statute requires only that the denial of a solar energy system application be in writing and in a timely manner. (§ 714, subd. (e)(2).) Nor do the CC&R’s or Design Guidelines require that the [association] redesign a solar energy system that fails to garner approval. Instead, the burden is on the homeowner to submit an application that is complete and sufficient to generate approval…once the [association] informed [the homeowners] of the bases of its denial, it was [the homeowners’] burden to reapply for approval of a solar energy system utilizing an application that satisfied the procedural requirements in the CC&R’s and that addressed the [association’s] concerns about location, safety and aesthetics.” (Tesoro del Valle Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 633.)
Violation & Enforcement of Section 714
An association that “willfully violates” the requirements of Civil Code Section 714 is liable to the applicant or other party for actual damages and a civil penalty in an amount not to exceed one thousand dollars ($1,000.00). (Civ. Code § 714(f).) In an action to enforce compliance with Civil Code Section 714, the “prevailing party shall be awarded reasonable attorney’s fees.” (Civ. Code § 714(g).)
