33 Cal.Rptr.2d 63

63 USLW 2157

(Cite as: 8 Cal.4^th 361, 878 P.2d 1275, 33 Cal.Rptr.2d 63)

Supreme Court of California,

In Bank.

Natore A. NAHRSTEDT, Plaintiff and Appellant,

v.

LAKESIDE VILLAGE CONDOMINIUM ASSOCIATION, INC., et al.,

Defendants and

Respondents.

No. S029132.

Sept. 2, 1994.

. . . .

. . . .

*390 ARABIAN, Justice, dissenting.

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

[FN1]

FN1. Albert Schweitzer.

I respectfully dissent. While technical merit may commend the majority’s analysis, [FN2] its application to the facts presented reflects a narrow, indeed chary, view of the law that eschews the human spirit in favor of arbitrary efficiency. In my view, the resolution of this case well illustrates the conventional wisdom, and fundamental truth, of the Spanish proverb, “It is better to be a mouse in a cat’s mouth than a man in a lawyer’s hands.”

FN2. The majority invest substantial interpretive significance regarding the enforceability of condominium restrictions in the replacement of “where reasonable” in former Civil Code section 1355 with “unless unreasonable” in Civil Code section 1354. (See maj. opn., ante, at p. 74 of 33 Cal.Rptr.2d, p. 1286 of 878 P.2d.) Other than the statutory language itself, however, they cite no evidence the Legislature considered this a “material alteration” or intended a “marked change” in the statute’s interpretation. Although I fail to see other than a semantical distinction carrying little import as to legislative intent, I find the pet restriction at issue here unenforceable under either standard.

As explained below, I find the provision known as the “pet restriction” contained in the covenants, conditions, and restrictions (CC & R’s) governing the Lakeside Village project patently arbitrary and unreasonable within the meaning of Civil Code section 1354. Beyond dispute, human beings have long enjoyed an abiding and cherished association with their household animals. Given the substantial benefits derived from pet ownership, the undue burden on the use of ***81 **1293 property imposed on condominium owners who can maintain pets within the confines of their units without creating a nuisance or disturbing the quiet enjoyment of others substantially outweighs whatever meager utility the restriction may serve in the abstract. It certainly does not promote “health, happiness [or] peace of mind” commensurate with its tariff on the quality of life for those who value the companionship of animals. Worse, it contributes to the fraying of our social fabric. [FN3]

FN3. The majority imply that if enough owners find the restriction too oppressive, they can act collectively to alter or rescind it. (Maj. opn., ante, at p. 80 of 33 Cal.Rptr.2d, p. 1292 of 878 P.2d.) However, realistically speaking, implementing this alternative would only serve to exacerbate the divisiveness rampant in our society and to which the majority decision itself contributes.

1. The pleadings.

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

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

The majority acknowledge that under their interpretation of Civil Code section 1354 “the test for determining when the harmful effects of a land–use restriction are disproportionate to benefit ‘is necessarily vague.’ [Citation.]” (Maj. opn., ante, at p. 75 of 33 Cal.Rptr.2d, p. 1288 of 878 P.2d.) Nevertheless, in their view the foregoing allegations are deficient because they do not specifically state facts to “support a finding that the burden on the affected property is so disproportionate to its benefit that the restriction is unreasonable and should not be enforced.” (Maj. opn., ante, at p. 78 of 33 Cal.Rptr.2d, p. 1290 of 878 P.2d.) They also fail to make “any reference to the effect on the condominium development as a whole….” (Ibid.) This narrow assessment of plaintiff’s complaint does not comport with the rule of liberal construction that should prevail on demurrer. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245, 74 Cal.Rptr. 398, 449 P.2d 462.) When considered less grudgingly, the pleadings are sufficient to allege that the pet restriction is unreasonable as a matter of law.

Generically stated, plaintiff challenges this restriction to the extent it precludes not only her but anyone else living in Lakeside Village from enjoying the substantial pleasures of pet ownership while affording no discernible benefit to other unit owners if the animals are maintained without any detriment to the latter’s quiet enjoyment of their own space and the common areas. In essence, she avers that when pets are kept out of sight, do not make noise, do not generate odors, and do not otherwise create a nuisance, reasonable expectations as to the quality of life within the condominium project are not impaired. At the same time, taking into consideration the well–established and long–standing historical and cultural relationship between human beings and their pets and the value they impart (cf. *392Evid.Code, § 452, subd. (g)), enforcement of the restriction significantly and unduly burdens the use of land for those deprived of their companionship. Considered from this perspective, I find ***82 **1294 plaintiff’s complaint states a cause of action for declaratory relief. [FN4]

FN4. At the very least, plaintiff should be permitted to amend her pleadings. Under the judicial authority prevailing at the time she filed her complaint, the type of allegations now required by the majority’s holding were unnecessary to state a cause of action for declaratory relief when challenging enforcement of CC & R’s under the present circumstances. (See Portola Hills Community Assn. v. James (1992) 4 Cal.App.4th 289, 5 Cal.Rptr. 2d 580; Bernardo Villas Management Corp. v. Black (1987) 190 Cal.App.3d 153, 235 Cal.Rptr. 509.) Thus, in fairness, she should have the opportunity to rectify the deficiency in light of the majority’s disapproval of these decisions. (See Youngman v. Nevada Irrigation Dist., supra, 70 Cal.2d at p. 245, 74 Cal.Rptr. 398, 449 P.2d 462.)

2. The burden.

Under the majority’s construction of Civil Code section 1354, the pet restriction is unreasonable, and hence unenforceable, if the “burdens [imposed] on the affected land … are so disproportionate to the restriction’s beneficial effects that the restriction should not be enforced.” (Maj. opn., ante, at p. 75 of 33 Cal.Rptr.2d, p. 1287 of 878 P.2d.) What, then, is the burden at issue here?

Both recorded and unrecorded history bear witness to the domestication of animals as household pets. [FN5] Throughout the ages, dogs and cats have provided human beings with a variety of services in addition to their companionship—shepherding flocks, guarding life and property, hunting game, ridding the house and barn of vermin. Of course, the modern classic example is the assist dog, which facilitates a sense of independence and security for disabled persons by enabling them to navigate their environment, alerting them to important sounds, and bringing the world within their reach. [FN6] Emotionally, they allow a connection full of sensation and delicacy of feeling.

FN5. Archeologists in Israel found some of the earliest evidence of a domesticated animal when they unearthed the 12,000–year–old skeleton of a woman who was buried with her hand resting on the body of her dog. (Clutton–Brock, Dog (1991) p. 35.) Romans warned intruders “Cave canem” to alert them to the presence of canine protectors. (Id., 34.) Cats were known to be household pets in Egypt 5,000 years ago and often mummified and entombed with their owners. (Clutton–Brock, Cat (1991) p. 46.) According to the English Nuns Rule in 1205, “Ye shall not possess any beast, my dear sisters, except only a cat.” Crimmins, The Quotable Cat (1992) p. 58.)

. . . .

3. The benefit.

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

To the extent such animals are not seen, heard, or smelled any more than if they were not kept in the first place, there is no corresponding or concomitant benefit. Pets that remain within the four corners of their owners’ condominium space can have no deleterious or offensive effect on the project’s common areas or any neighboring unit. Certainly, if other owners and residents are totally unaware of their presence, prohibiting pets does not in any respect foster the “health, happiness [or] peace of mind” of anyone except the homeowners association’s board of directors, who are thereby able to promote a form of sophisticated bigotry....

. . . .

Moreover, unlike most conduct controlled by CC & R’s, the activity at issue here is strictly confined to the owner’s interior space; it does not in any manner invade other units or the common areas. Owning a home of one’s own has always epitomized the American dream. More than simply embodying the notion of having “one’s castle,” it represents the sense of freedom and self–determination emblematic of our national character. Granted, those who live in multi–unit developments cannot exercise this freedom **1297 **85 to the same extent possible on a large estate. But owning pets that do not disturb the quiet enjoyment of others does not reasonably come within this compromise. Nevertheless, with no demonstrated or discernible benefit, the majority arbitrarily sacrifice the dream to the tyranny of the “commonality.”

5. Conclusion.

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

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

I would affirm the judgment of the Court of Appeal.

END OF DOCUMENT