COLONY v. MASOOD

Filed 9/15/06

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Story continue from Part I ………

In Pagard, supra, 115 Cal.App.3d 782, a city ordinance prohibited more than three unrelated persons from living together. At issue there were several communal households that were occupied by between 4 and 24 unrelated persons. (Id. at p. 791.) This court, in accordance with Adamson, held the ordinance was invalid as it had "but at most a tenuous relationship to the alleviation of the problems mentioned," such as overcrowding, minimizing traffic and congestion and avoiding undue financial burden on the school system. (Id. at p. 793.)

Adamson and Pagard, however, involved governmental action, in contrast to this case. In Schmidt v. Superior Court (1989) 48 Cal.3d 370 (Schmidt), the court upheld the constitutionality of a mobilehome park owner's rule that excluded persons under the age of 25 from residing in the park. The court rejected the plaintiffs' argument, based on Adamson, supra, 27 Cal.3d 123, that the rule violated their right of privacy. The court explained the restriction in Adamson "was a state-imposed rule directly limiting an individual's right to live with whom he or she wanted; in [that] case, a governmental body had made the substantive decision to limit individual living arrangements within a community." (Schmidt, supra, 48 Cal.3d at p. 388.) Further, the court explained a park owner's authority to adopt an age-based housing rule "arises from its general common law property rights in the mobilehome park. . . . Nothing in Adamson . . . suggests that constitutional guarantees are violated by the enactment of a statute which simply recognizes the continuing existence of a private property owner's authority in this respect." (Ibid.)[1]

Indeed, Ghamaty states in his opening brief that the "clear rule is . . . that the State may not utilize its power to interfere with a person's choice of cohabitants, absent some compelling public interest or reasonable necessity for doing so." (Italics added.) Ghamaty cites no authority for the proposition that a private developer may not impose on its project use restrictions such as those in paragraphs 2.6 and 2.7.8 of the Declaration. "A decision is authority only for the point actually passed on by the court and directly involved in the case. General expressions in opinions that go beyond the facts of the case will not necessarily control the outcome in a subsequent suit involving different facts." (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 985; Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195.)

Moreover, Adamson and Pagard pertained to the number of unrelated persons allowed to reside together. In Adamson, the evidence showed the residents were committed to each other and engaged in communal living by sharing expenses, chores, meals and travel. (Adamson, supra, 27 Cal.3d at pp. 127-128.) The court found the city's ordinance defining "family" as including only five or fewer related persons living as " 'a single housekeeping unit in a dwelling' " (id. at p. 127) violated the plaintiffs' right to live together as an "alternate family" because of the numerical limitation. (Id. at pp. 128, 134.)

Similarly, in Pagard, the unrelated persons lived in "religious family households" or "communal households." (Pagard, supra, 115 Cal.App.3d at pp. 787, 788.) The city's definition of family included " 'a group of not more than three persons . . . who need not be related, living in a dwelling unit as a single housekeeping unit and using common cooking facilities.' " (Id. at p. 789.) The families lived in single housekeeping units, and this court struck down the ordinance because of the numerical limitation. (Id. at p. 793.)

In contrast, the injunction here includes no numerical limitation. Rather, it precludes Ghamaty from using his home for purposes other than a single-family dwelling, and in determining the meaning of "family," the court used the definition Ghamaty submitted. Again, that definition is "unrelated persons who jointly occupy and have 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.) As discussed, Ghamaty presented no evidence he and his various renters functioned together as an integrated economic unit. The injunction's requirements that Ghamaty may enter into only one lease of his property at a time, and that lessees shall be jointly and severally liable for the lease payment, are reasonably intended to ensure the lessees are an "integrated economic unit." The court employed practical means to preclude the serial renting of rooms, which, when considered on a larger scale, could destroy the single-family character of Colony Hill.

Ghamaty asserts the injunction "impermissibly speaks to the relationship between the residents of [his] home, rather than to the use of the [r]esidence itself." (Original emphasis.) In both Adamson and Pagard, however, the residents had relationships with each other and they satisfied the ordinances' requirements that they constitute single housekeeping units. Ghamaty, by providing the court with a definition for "family," effectively conceded he could not lease his property unless he and his lessees formed an "integrated economic unit." (San Diego Mun. Code, § 113.0103.) In Pagard, this court explained the city was free to enact "an appropriately drawn ordinance, having due regard for the constitutional barriers to attain the municipality's laudable stated goal to protect and promote family style living. [This] . . . may include for example a redefinition of 'family' to specify a concept more rationally and substantially related to the legitimate aim of maintaining a family style of living. Such definition of family should treat a 'group that bears the generic' characters of a family unit as a relatively permanent family household on an equal basis with the blood related family and thus should be equally entitled to occupy a single-family dwelling as its biologically related neighbor." (Pagard, supra, 115 Cal.App.3d at pp. 796-797.)

Ghamaty's situation did not pertain to "family" in any sense of the word. Rather, he engaged in commercial activity prohibited by paragraph 2.6 of the Declaration, and the injunction is rationally related to Colony Hill's right to maintain its family character by prohibiting uses other than for single-family dwelling purposes. Ghamaty did not meet his burden of showing the Declaration's use restriction is unreasonable. (Nahrstedt, supra, 8 Cal.4th at p. 378.)

2

Additionally, Ghamaty contends the injunction violates his right to contract under the state Constitution. Article I, section 9 of the California Constitution provides that a "bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed." (Italics added; see also U.S. Const., art. I, § 10 ["No state shall . . . pass any . . . law impairing the obligation of contracts"].) " 'A law or ordinance which substantially impairs a contractual obligation nonetheless may be constitutional. As the United States Supreme Court has noted, "[a]lthough the language of the Contract Clause is facially absolute, its prohibition must be accommodated to the inherent police power of the State 'to safeguard the vital interests of its people.' [Citation.]" ' " (Mendly v. County of Los Angeles (1994) 23 Cal.App.4th 1193, 1210.)

"Although the federal contract clause has been interpreted to be 'directed only against impairment by legislation and not by judgment of courts' [citation], . . . the state contract clause has been construed also to apply to judicial action." (White v. Davis (2003) 30 Cal.4th 528, 548, citing Bradley v. Superior Court (1957) 48 Cal.2d 509, 519.)

"[A] court cannot lawfully disregard the provisions of . . . contracts or deny to either party his [or her] rights thereunder." (Bradley v. Superior Court, at p. 519.)

Ghamaty concedes he has found no case applying the contracts clause in the context of a permanent injunction. He relies on Barrett v. Dawson (1998) 61 Cal.App.4th 1048, in which the issue was whether a retroactive statute impaired the right to contract. The court explained that under federal law there is a three-step analysis. "The first and threshold step is to ask whether there is any impairment at all, and, if there is, how substantial it is. [Citation.] If there is no 'substantial' impairment, that ends the inquiry. If there is substantial impairment, the court must next ask whether there is a 'significant and legitimate public purpose' behind the state regulation at issue. [Citation.] If the state regulation passes that test, the final inquiry is whether means by which the regulation acts are of a 'character appropriate' to the public purpose identified in step two." (Id. at pp. 1054-1055, citing Energy Reserves Group v. Kansas Power & Light (1983) 459 U.S. 400, 410-412.)

Ghamaty asserts the injunction destroys his "existing contractual relationships." In support, he cites stipulated facts that six persons rented rooms from him for various terms. He cites no evidence that when the injunction issued any rental agreements were in force. In a deposition held approximately seven months before trial, Ghamaty testified that within the following few weeks he was going to terminate the two existing rental agreements and become the sole occupant of his home.

Ghamaty also complains that the injunction precludes him from "entering into separate contracts and dictates specific terms under which [he] must contract." He essentially asserts the joint and several requirement of the injunction makes it impossible for him to rent out rooms as he did in the past. He claims it is unfair that he "would be required to locate renters willing to share liability for (a) the rent to be paid by all of the lessees and (b) any violations of [Colony Hill's] rules and regulations and the [Declaration]."

To any extent the three-part test discussed in Barrett v. Dawson, supra, 161 Cal.App.4th 1048 is arguably applicable in a judicial context, it is unhelpful to Ghamaty. The injunction does not substantially impair Ghamaty's contract right, because under paragraphs 2.6 and 2.7.8 of the Declaration he must use his home only for single-family dwelling purposes, and he has no right to rent out rooms of his home when he and the renters do not function as an "integrated economic unit," a definition he chose and the court adopted. As the court concluded in Nahrstedt, supra, 8 Cal.4th at pages 383-384, "our social fabric is best preserved if courts uphold and enforce solemn written instruments [here the Declaration] that embody the expectations of the parties rather than treat them as 'worthless paper' . . . . Our social fabric is founded on the stability of expectation and obligation that arises from the consistent enforcement of the terms of deeds, contracts, wills, statutes, and other writings. To allow one person to escape obligations under a written instrument upsets the expectations of all the other parties governed by that instrument . . . that [it] will be uniformly and predictably enforced.

The salutary effect of enforcing written instruments and the statutes that apply to them is particularly true in the case of the declaration of a common interest development."

III

Attorney Fees

Ghamaty contends the award of attorney fees to Colony Hill should be reversed because Colony Hill only partially prevailed on its claims against him, as it did not recover any damages, and the court refused its request for a declaration that it was entitled to approve any lessee of Ghamaty. Alternatively, Ghamaty asserts the fee award should be substantially reduced.

We conclude, however, that we lack jurisdiction to consider the matter because Ghamaty did not appeal the postjudgment order awarding attorney fees.[2] "An appellate court has no jurisdiction to review an award of attorney fees made after entry of the judgment, unless the order is separately appealed." (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284.) " '[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified--in either a single notice of appeal or multiple notices of appeal--in order to be reviewable on appeal.' " (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.)

The judgment here was entered on April 18, 2005, and it stated, "Award of attorney's fees and costs shall be determined by post-judgment application." On May 27, 2005, Colony Hill moved for an award of fees and costs; on June 17, Ghamaty filed a notice of appeal of the judgment, and it did not refer to the pending motion on attorney fees or otherwise address the issue; on July 29, the court issued a tentative ruling granting the motion, and on August 8, the court affirmed its ruling. Ghamaty did not then file a notice of appeal from the order on fees.

In asserting his notice of appeal includes the postjudgment order on attorney fees, Ghamaty relies on Grant v. List & Lathrop (1992) 2 Cal.App.4th 993 (Grant). In Grant, the judgment expressly awarded attorney fees to certain parties, and the amounts of the

awards were left blank for later insertion by the court clerk. Thereafter, the trial court set the amounts of the awards. The Court of Appeal rejected the argument it lacked jurisdiction over the fee issue, holding that "when a judgment awards costs and fees to a prevailing party and provides for the later determination of the amounts, the notice of appeal subsumes any later order setting the amounts of the award." (Id. at p. 998.)

Here, in contrast to Grant, the judgment did not expressly award attorney fees to Colony Hill. Rather, it left the issues of entitlement and amount for later proceedings. In considering the applicability of the Grant exception, the court in DeZerega v. Meggs, supra, 83 Cal.App.4th at page 44, explained: "The issue . . . is not whether fees were ultimately recovered 'as costs' but whether the entitlement to fees was adjudicated by the original judgment, leaving only the amount for further adjudication." Were we to extend Grant in the manner Ghamaty urges, a prevailing party would never have to file a separate appeal from a postjudgment order granting attorney fees. That of course, would be contrary to law.

Although notices of appeal must be liberally construed (Cal. Rules of Court, rule 1(a)(2)), we cannot construe Ghamaty's notice of appeal to include the postjudgment order on fees. "The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders. [Citation.] 'Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be considered adequate if it completely omits any reference to the judgment [or order] being appealed.' " (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47.)

Ghamaty also contends we should consider the merits of the attorney fees issue because Colony Hill addressed the merits and did not raise the jurisdictional issue, and thus it would suffer no prejudice. Prejudice to a party, however, is not the test of whether we have jurisdiction to consider an issue.

DISPOSITION

The judgment is affirmed. The purported appeal of the attorney fees award is dismissed. Colony Hill is entitled to costs on appeal.

CERTIFIED FOR PARTIAL PUBLICATION

McCONNELL, P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

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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] In Schmidt, former Civil Code section 798.76 was at issue. It provided that the " 'management [of a mobilehome park] may require that a purchaser of a mobilehome which will remain in the park, comply with any rule or regulation limiting residence to adults only.' " (Schmidt, supra, 48 Cal.3d at p. 379.)

[2] The parties did not address this issue, and we requested supplemental briefing from them on it. We have taken their responses into consideration.