COLONY v. MASOOD

Filed 9/15/06

CERTIFIED FOR PARTIAL PUBLICATION^*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Linda B. Quinn, Judge. Affirmed in part; dismissed in part.

Rutan & Tucker, LLP, Stephen A. Ellis and Gerard M. Mooney, Jr. for Defendant and Appellant.

Hecht Solberg Robinson Goldberg & Bagley LLP, Jerold H. Goldberg and Joshua A. Sonné for Plaintiff and Respondent.

Defendant Masood Ghamaty appeals a judgment for plaintiff Colony Hill on its

declaratory relief action. Ghamaty contends the trial court erred by finding the serial rental of rooms in his condominium violated Colony Hill's restriction limiting the home's use to single-family dwelling purposes, and the use restriction is unreasonable and may not be maintained. We affirm the judgment and discuss this issue in the unpublished portion of this opinion.

Ghamaty also contends the court improperly granted Colony Hill contractual attorney fees under Civil Code section 1717. In the published portion of this opinion we dismiss the attorney fees issue for lack of jurisdiction because Ghamaty did not file a notice of appeal from the postjudgment order on the matter.

FACTUAL AND PROCEDURAL BACKGROUND

Colony Hill, a common interest subdivision located in the Mount Soledad area of La Jolla, California, consists of 40 condominiums, or "lots," owned by the residents. Colony Hill is managed by the Board of Governors (the Board) of the homeowners association. Colony Hill is governed by a declaration of covenants, conditions and restrictions (the Declaration), as amended in 1983. The two relevant paragraphs of the Declaration read as follows:

" '2.6 Each Lot shall be improved, used and occupied for private, single-family dwelling purposes only, and no portion thereof nor any portion of the Common Area shall be used for any commercial purpose whatsoever.' " (Italics added.)

" '2.7.8 Each Owner shall have the right to lease his [or her] Lot, provided the following conditions are satisfied: (a) each such lease shall be in writing and shall be submitted to the Board if requested; (b) each lease shall provide that the tenant shall be bound by and obligated to the provisions of this Declaration, the Bylaws and the rules and regulations promulgated by the Board and shall further provide that any failure to comply with the provisions of such documents shall be a default under the lease; (c) the name of each person residing upon a Lot pursuant to any such lease shall be provided to the Board; and (d) no Owner shall lease his [or her] Lot for transient or hotel purposes.' "

In 2000 Ghamaty became an owner of a four-bedroom, three-bathroom home at Colony Hill. Ghamaty occupies the home himself, and he has also rented rooms to six persons at various times, for periods of between two months and two years. Ghamaty charged rents of between $300 and $550 per month, plus a share of the utilities. Each renter had the exclusive use of a bedroom and a bathroom, and the nonexclusive use of the living room and kitchen. The shortest-term renter was a cousin of Ghamaty, but the other renters were unrelated to him. The rental agreements were oral and Ghamaty did not notify Colony of his tenants' names.

In early 2002 the Board notified Ghamaty it had learned he had one or more renters at his home in violation of the Declaration's requirement that it be used only as a single-family dwelling. The Board demanded that Ghamaty "return the property to a private single-family dwelling status immediately." Ghamaty disagreed with the Board, taking the position he could rent rooms to whomever he wished under paragraph 2.7.8 of the Declaration. The parties exchanged more correspondence on the matter to no avail.

In a May 2003 letter, the Board notified Ghamaty a resident had complained about a party at his residence, during which guests parked in no-parking areas and blocked driveways and loud music was played. The letter stated that if the Board received any additional complaint of excessive noise it would require "that all non-family members cease living at your house." In a July 2003 letter, the Board notified Ghamaty about some type of incident with one of his renter's cars. The letter reminded Ghamaty that homes were to be used for single-family purposes only and "suggest[ed] that you or your father sell the house and you move to a neighborhood where renters are allowed."

On July 17, 2003, Ghamaty appeared at a Board meeting. A resident voiced concerns about parking issues, renters and a loud party at Ghamaty's home. The resident complained that Ghamaty's renting out rooms was a commercial enterprise the Declaration does not allow. Ghamaty told the Board he had spoken with an attorney regarding the single-family residence language in the Declaration, and Ghamaty "considers his renters as family." The Board approved a motion finding that renting or leasing to multiple occupants constitutes a commercial enterprise not allowed under the Declaration.

The Board meeting did not resolve the matter, and in April 2004, after unsuccessfully seeking binding arbitration, Colony Hill sued Ghamaty for breach of the Declaration, injunctive relief and declaratory relief. A bench trial was held on February 25, 2005. In lieu of live testimony, the parties stipulated to certain facts and exhibits and submitted the matter for a tentative judgment before presenting closing arguments. In his trial brief, Ghamaty relied on the San Diego Municipal Code's definition of "family," which is "two or more persons related through blood, marriage or legal adoption . . . or unrelated persons who jointly occupy and have equal access to all areas of a dwelling unit and who function together as an integrated economic unit." (San Diego Mun. Code, § 113.0103.)

In its tentative ruling, the court found Ghamaty's rentals violated the Declaration. The court determined that under paragraphs 2.6 and 2.7.8^[1] of the Declaration the "only commercial activity allowed is the right to lease a unit under specific conditions which [Ghamaty] failed to meet." The court relied on the San Diego Municipal Code definition that Ghamaty submitted, and determined that by renting rooms he was not using the home for single-family purposes. The court ruled that under the Municipal Code definition, Ghamaty "may lease his entire unit to tenants who are responsible for the entire unit jointly and severally and who function as an integrated economic unit; i.e.[,] one lease whereby all tenants are jointly and severally responsible for all obligations under the lease, including rent."

The court explained that if Ghamaty's position were accepted, "one of the tenants may be violating the Rules and Regulations by emanating loud noise from his bedroom and [Colony Hill] could only enforce the rule against that individual person rather than all tenants of one unit. Other dwellers of the unit could claim no violation as they had no responsibility for the acts in the one bedroom. [Colony Hill] is not required to relate to each dweller as though [Ghamaty] were operating an apartment building within the unit." The ruling further states that Colony Hill "is entitled to a copy of a written lease whereby each occupier (competent adult) agrees under one lease document to follow the [Declaration], By-laws, and Rules and Regulations of [Colony Hill] jointly and severally as to the entire unit and common areas and it is entitled to the names of all the dwellers of the unit. [Colony Hill] is also entitled to one lease document under which all competent adult dwellers are an 'integrated economic unit[,]' i.e. jointly and severally liable for the lease payment for the unit."

After arguments, the court confirmed its tentative ruling and adopted it as a statement of decision. The court entered judgment for Colony Hill on April 18, 2005, which declared Ghamaty was in violation of paragraphs 2.6 and 2.7.8^[2] of the Declaration, and permanently enjoins him "from renting his unit to multiple renters other than in compliance with the declaration of this Court."

Colony Hill then moved as the prevailing party for $29,987.50 in attorney fees, under paragraph 6.6 of the Declaration and section 1717 of the Civil Code, and $1,729.60 in other costs. The court awarded the full amount requested.

DISCUSSION

I

Single-Family Dwelling

Ghamaty cursorily contends that because he lives in his Colony Hill home and is "fully subject" to the Declaration's rules and regulations, the trial court erred by finding he was not using it for single-family dwelling purposes within the meaning of paragraph 2.6 of the Declaration. He asserts he did not violate the Declaration by merely engaging in the "incidental renting of rooms in his home to friends [he] considers to be like 'family.' "

Ghamaty cites no authority from any jurisdiction to support the notion that the seriatim renting of rooms in one's home constitutes single-family dwelling use. "Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion." (People v. Ham (1970) 7 Cal.App.3d 768, 783, disapproved on another ground in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3; People v. Sierra (1995) 37 Cal.App.4th 1690, 1693, fn. 2.)

In any event, Ghamaty's contention lacks merit. The court used the definition of "family" that Ghamaty submitted for its consideration, which in relevant part is "unrelated persons who jointly occupy and have equal access to all areas of a dwelling unit and who function together as an integrated economic unit." (San Diego Mun. Code, § 113.0103, italics added.) The parties have not cited us to any definition of "integrated economic unit" in the context of residential living arrangements, and we have found none in our independent research. Under the facts here, however, the term cannot reasonably be interpreted to include Ghamaty and his renters. Ghamaty adduced no evidence he had any prior relationship with five of six of the renters, or that any of the renters had any prior relationship with each other. Ghamaty conceded he found one of the renters by placing an ad in the newspaper. The renters all had separate oral month-to-month agreements and they lived at Ghamaty's home for various periods, with some of the renters not even present during the terms of other renters. One of the renters was a cousin of Ghamaty, but he lived at the home only sporadically for two months.

The term "integrate" means "to form, coordinate, or blend into a function or unified whole." (Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 650.) The mere payment of rent and a share of the utilities to Ghamaty did not blend the group into any type of unified whole. Beyond Ghamaty's self-serving statement at the Board meeting that he considered his renters "family," he produced no evidence suggesting he shared meals with or had any type of relationship with the renters, with the exception of the familial relationship with his cousin. The court properly ruled that by renting out rooms Ghamaty was not using his home for single-family dwelling purposes.

II

Reasonableness of Use Restriction

A

Applicable Law

Ghamaty's principal challenge is to the legality of the Declaration's restriction of use to single-family dwelling purposes. The matter is governed by the provisions of the Davis-Stirling Common Interest Development Act, which was enacted in 1985. (Civ. Code, § 1350.) Civil Code section 1354, subdivision (a) provides the "covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development." (Italics added.)

"Use restrictions are an inherent part of any common interest development and are crucial to the stable, planned environment of any shared ownership arrangement." (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 372 (Nahrstedt).) "The restrictions on the use of property in any common interest development may limit activities conducted in the common areas as well as in the confines of the home itself. [Citations.] Commonly, use restrictions preclude alteration of building exteriors, limit the number of persons that can occupy each unit, and place limitations on -- or prohibit altogether -- the keeping of pets." (Id. at p. 373.)

In Nahrstedt, the court was required to determine what standard or test governs the enforceability of recorded equitable servitudes in common interest developments, a matter of legislative intent. (Nahrstedt, supra, 8 Cal.4th at pp. 375, 378-379.) The court held: "An equitable servitude will be enforced unless it violates public policy; it bears no rational relationship to the protection, preservation, operation or purpose of the affected land; or it otherwise imposes burdens on the affected land that are so disproportionate to the restriction's beneficial effects that the restriction should not be enforced." (Id. at p. 382.)

The court also held that by using the term "unless unreasonable" in Civil Code section 1354, subdivision (a), the Legislature created a presumption of reasonableness and shifted the burden of proving otherwise to the party challenging the use restriction. (Nahrstedt, supra, 8 Cal.4th at p. 380.) Further, the court held "the reasonableness or unreasonableness of a condominium use restriction that the Legislature has made subject to [Civil Code] section 1354 is to be determined not by reference to facts that are specific to the objecting homeowner, but by reference to the common interest development as a whole." (Nahrstedt, supra, 8 Cal.4th at p. 386.)^[3]

B

Ghamaty's Showing

1

To prevail, Ghamaty was required to prove the single-family dwelling use restriction is "arbitrary, that it is substantially more burdensome than beneficial to the affected properties, or that it violates a fundamental public policy." (Nahrstedt, supra, 8 Cal.4th at p. 386.) Further, he must do so in the context of Colony Hill as a whole. (Id. at p. 387.)

Ghamaty contends the permanent injunction violates his right of privacy under the California Constitution, article I, section 1.^[4] "[A] land-use restriction in violation of a state constitutional provision presumably would conflict with public policy" (Nahrstedt, supra, 8 Cal.4th at p. 387), and the question is whether the right to privacy implicitly guarantees owners in a common interest development the right to rent out rooms in their

homes under circumstances such as those here. (Ibid.)

As the Supreme Court has held, "the privacy provision in our state Constitution does not 'encompass all conceivable assertions of individual rights' or create 'an unbridled right' of personal freedom. [Citation.] The legally recognized privacy interests that fall within the protection of the state Constitution are generally of two classes: (1) interests in precluding dissemination of confidential information (' "informational privacy" '); and (2) interests in making personal decisions or in conducting personal activities free of interference, observation, or intrusion (' "autonomy privacy" '). [Citation.] The threshold question in deciding whether 'established social norms safeguard a particular type of information or protect a personal decision from public or private intervention,' . . . must be determined from 'the usual sources of positive law governing the right to privacy -- common law development, constitutional development, statutory enactment, and the ballots arguments accompanying the Privacy Initiative.' " (Nahrstedt, supra, 8 Cal.4th at p. 387, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-36.)

Ghamaty relies on City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123 (Adamson), and its progeny, City of Chula Vista v. Pagard (1981) 115 Cal.App.3d 785 (Pagard). Those cases, however, are inapplicable.

In Adamson, a city ordinance required that all occupants of a home be members of a family, and it defined family in relevant part as a group not to exceed five persons, excluding servants, " 'living together as a single housekeeping unit in a dwelling unit.' " (Adamson, supra, 27 Cal.3d at p. 127.) The appellant's household consisted of a group of 12 unrelated adults who lived in a 24-room, 10-bedroom, 6-bathroom home. The evidence showed the residents "have become a close group with social, economic, and psychological commitments to each other. They share expenses, rotate chores, and eat evening meals together. . . . Emotional support and stability are provided by the members to each other; they enjoy recreational activities such as a trip to Mexico together; they have chosen to live together mainly because of their compatibility." (Id. at pp. 127-128.)

In Adamson, the court held the city lacked a compelling public interest in restricting communal living to groups of five or fewer persons. The court found the ordinance's "rule-of-five" did not promote the stated goals of " 'serv[ing] the public health, safety, comfort, convenience and general welfare and . . . provid[ing] the economic and social advantages resulting from an orderly planned use of land resources, and encourag[ing], guid[ing] and provid[ing] a definite plan for future growth and development' " of the city, or prohibiting activities of a commercial nature and developing and sustaining a suitable environment " 'for family life where children are members of most families.' " (Adamson, supra, 27 Cal.3d at pp. 131-132.)

The court noted the "rule-of-five is not pertinent to noise, traffic or parking congestion, kinds of activity, or other conditions that conceivably might alter the land-use-related 'characteristics' or 'environment' " of the city. (Adamson, supra, 27 Cal.3d at pp. 132-133.) The court found the city's stated goals could be satisfied by less restrictive means, such as regulating population density based on floor space and facilities, regulating noise by enforcing ordinances and criminal statutes, and regulating traffic and parking by limiting the number of cars permitted a household and by off-street parking requirements. (Adamson, supra, 27 Cal.3d at p. 133.)

To be continue as Part II ………

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^* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts I and II.

^[1] The tentative ruling erroneously cites paragraph 2.7.9 of the Declaration.

^[2] The judgment also erroneously cites paragraph 2.7.9 of the Declaration.

^[3] In Nahrstedt, supra, 8 Cal.4th 361, the court concluded a use restriction that prohibited cats and dogs, but allowed domestic fish and birds, was reasonable. (Id. at pp. 369, fn. 3, 386.)

^[4] That provision states: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."