Davorge

In this case of first impression, we decide whether a developer can use a declaration of covenants, conditions and restrictions (CC&R’s) containing a binding arbitration clause as a device to preclude homeowners, and the homeowners association of which they are members, from pursuing an action for construction or design defect damages in a court of law. When homeowners purchase property subject to CC&R’s, they agree to be bound by those CC&R’s, including any arbitration clause contained therein. But that agreement, like any other, will not be enforced if it is *823 unconscionable. Code of Civil Procedure section 1298.7 provides home buyers the right to bring a judicial action for construction or design defect damages even when the purchase agreement contains a binding arbitration clause. Public policy will not permit a developer, who is unable to use a purchase agreement to block a home buyer’s access to a judicial forum, to cut off that access by circuitous means—the CC&R’s.

I

Facts

II Davorge, a California limited partnership, was the developer of the Villa Milano condominium complex located in Huntington Beach. In order to create a “condominium project” governed by…