Public Nuisance Law Definition Elements

Definition

A cause of action for public nuisance exists if an act or omission constituting a nuisance substantially and unreasonably interferes with the interests of the public. (People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 80.) While a private nuisance is designed to vindicate individual land ownership interests, a public nuisance is not dependent on an interference with any particular rights of land. The public nuisance doctrine aims at the protection and redress of community interests. (Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 358.)

Public nuisance and private nuisance “have almost nothing in common except the word “nuisance” itself. Whereas private nuisance is designed to vindicate individual land ownership interests, the public nuisance doctrine has historically distinct origins and aims at “the protection and redress of community interests.” With its roots tracing to the beginning of the 16th century as a criminal offense against the crown, public nuisances at common law are “offenses against, or interferences with, the exercise of rights common to the public,” such as public health, safety, peace, comfort, or convenience. (Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 358.)

Standing

A public nuisance action may be maintained by the State or by private persons whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance. (Cal. Civ. Proc. Code, § 731.) Private persons seeking redress for public nuisances must allege and prove that the nuisance was “specially injurious” to him or her, i.e., the injuries were different in kind as well as degree from that suffered by other members of the general public. (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 269.)

A public nuisance can be abated by a civil, criminal, or administrative action instituted by government officials.  A private citizen has no direct remedy against a public nuisance unless it is specially injurious to him or her. To be specially injurious, the damage suffered must be different in kind and not merely in degree from that suffered by other members of the public. (Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 297.)

Element 1: Nuisance

A nuisance is any act or omission which substantially and unreasonably interferes with the interests of the community. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1105.) A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. (Cal. Civ. Code, § 3480.)

Whether a particular use is a nuisance cannot be determined by any fixed general rule; it depends upon the facts of each particular case, such as the nature of the use, the extent and frequency of the injury, the effect upon the enjoyment of health and property, and other similar factors. (Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263.)

For a private party to enjoin an alleged public nuisance on the ground of fear of future injury, the party must, at a minimum, establish facts to prove that the apprehension of injury is well founded. The proof cannot be speculative and must amount to more than the conclusory opinions of experts; the plaintiff must demonstrate an actual and unnecessary hazard. (Beck Development Co. v. Southern Pacific Transp. Co. (1996) 44 Cal.App.4th 1160, 1213.)

Even a use expressly allowed in a valid use permit is subject to a nuisance abatement action if the business is operated in such a way as to be injurious to persons living and working in the area. (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153.)

The exhibition of obscene magazines and films qualified as an activity that was indecent or offensive to the senses, and which interfered with the comfortable enjoyment of life of a considerable number of persons, within the statutory definition of public nuisance. (People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 49.)

Adult bookstores may be considered public nuisances when sexual activity takes place on the premises within public view by a person who knows or should know of the presence of persons who may be offended by the conduct. (People v. Adult World Bookstore (1980) 108 Cal.App. 3d 404, 409, 410 [citing Pryor v. Municipal Court (1979) 25 Cal.3d 238, 244].)

Maintenance of a fire hazard was a menace to public health and safety and constituted a public nuisance within the meaning of Civil Code Section 3480. (City of Los Angeles v. Shpegel-Dimsey, Inc. (1988) 198 Cal.App.3d 1009, 1017.)

Emissions from a fiberglass manufacturing plant constituted a public nuisance because the emissions contained waste matter that severely polluted the air, injured the health of the citizens of the county, and obstructed the public’s view of the surrounding hills. (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 121.)

Gang members’ conduct constituted a public nuisance where they congregated on lawns, sidewalks and in front of apartment complexes at all hours of the day and night, openly drinking, smoking marijuana and snorting cocaine, subjecting residents to loud talking, loud music, vulgarity, profanity, brutality, fist-fights and the sound of gunfire echoing in the streets; they intimidated and annoyed neighborhood residents known to have complained about gang activities; they obstructed neighborhood residents from using their property and obstructed the free passage and use of public streets. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1120.)

Provision of preliminary injunction prohibiting gang members from “standing, sitting, walking, driving, bicycling, gathering or appearing anywhere in public view with any other known gang member” was constitutional abatement of public nuisance; however, provision restricting gang members from “using or possessing pagers or beepers in any public place” was unconstitutionally overbroad. (In re Englebrecht (1998) 67 Cal.App.4th 486, 489, 496.)

If a substance underlying someone’s land comes into contact with water on or in the land, the substance may be a nuisance if it has, or is likely to have, invaded the public water supply with effects that are injurious to health, indecent or offensive to the senses, or if it obstructs the free use of property so as to interfere with the comfortable enjoyment of life or property. (Beck Development Co., Inc. v. Southern Pacific Transp. Co. (1996) 44 Cal.App.4th 1160, 1211.)

The unlawful barricading of a public street, by means of a locked gate, constitutes a public nuisance for which a person may maintain an action. (Tucker v. Watkins (1967) 251 Cal.App.2d 327; see also Cal. Civ. Code, § 3479.)

Obstruction of a sidewalk was a public nuisance. (Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344.)

The emission of sound waves alone might constitute an actionable nuisance when the emissions cause substantial interference with the use and enjoyment of land. (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248; Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 233.)

        Statutory “Per Se” Nuisances:

The concept of a nuisance per se arises when a legislative body with appropriate jurisdiction, in the exercise of police power, expressly declares a particular object, substance, activity, or circumstance to be a nuisance. (Beck Development Co. v. Southern Pacific Transp. Co. (1996) 44 Cal.App.4th 1160, 1206.)

A legislatively declared public nuisance constitutes a nuisance per se, against which an injunction may issue without an allegation or proof of irreparable injury. (People ex rel. Dep’t of Transp. v. Outdoor Media Group (1993) 13 Cal.App.4th 1067, 1076, 1077 [if legislature determines that a defined condition or activity is a nuisance, court is limited to determining whether a statutory violation exists, and whether the statute is constitutionally valid].)

The obstruction of a public right of way is an abatable nuisance. (Cal. Civ. Code, §§ 3479, 3480, 3491.) A city may prohibit and prevent encroachments upon or obstruction in or to any sidewalks, street, alley, lane, court, park, or other public place and provide for the removal of such encroachment or obstruction. (Cal. Gov’t Code, § 38775.)

Every building or place used to unlawfully sell, serve, store, keep, manufacture, or give away controlled substances constitutes either a public or private nuisance that will be enjoined, abated, or prevented. (Cal. Health & Safety Code, § 11570.)

A minor’s defacement of property by graffiti is a nuisance. (Cal. Gov’t Code, § 38772, subd. (a).) Erecting a billboard without a permit is a nuisance per se. (Cal. Bus. & Prof. Code, §§ 1350, 5461.)

Every building or place used for the purpose of unlawfully selling, serving or giving away alcoholic liquor, and every building or place in or upon which such liquors are unlawfully sold, served or given away, is a nuisance which will be enjoined, abated and prevented, whether it is a public or private nuisance. (Cal. Penal Code, § 11200.)

Every building or place used for the purpose of illegal gambling, lewdness, assignation, or prostitution, and every building or place in which or upon which such acts occur, is a nuisance which will be abated, enjoined, and prevented, and for which damages may be recovered, whether it is a public or private nuisance. (Cal. Penal Code, § 11225, subd. (a).)

A bathhouse which encourages or permits conduct that can transmit AIDS is a nuisance which will be abated, enjoined or prevented, and for which damages may be recovered, whether it is a public or private nuisance. (Cal. Penal Code, §11225, subd. (b).)

Under the red light abatement law, places of illegal gambling and prostitution and bathhouses that permit or encourage conduct that can transmit AIDS, are a statutory nuisance per se. (Cal. Penal Code, §§ 11225 et seq.)

Water pollution occurring as a result of treatment or discharge of waste is a public nuisance per se. (Cal. Water Code, § 13050, subd. (m); see also Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 341.)

Element 2:  Permanent or Continuing

The distinction to be drawn between “permanent nuisances” and a “continuing nuisance” is between encroachments of a permanent nature erected upon one’s lands, and a complaint made, not of the location of the offending structures, but of the continuing use of such structures; the former are permanent, the latter is not. (Gehr v. Baker Hughes Oil Field Operations, Inc. (2008) 165 Cal.App.4th 660.)

1. Permanent

A nuisance is permanent if a single occurrence causes permanent injury. (Wilshire Westwood Ass’n v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732, 744.) Permanent nuisances may involve a solid structure, such as a building encroaching upon the plaintiff’s land (Rankin v. DeBare (1928) 205 Cal. 639), or a steam railroad operating over plaintiff’s land (Williams v. Southern Pacific R.R. Co. (1907) 150 Cal. 624, 626.)

A permanent nuisance is a permanent injury to property for which damages are assessed once; however, the plaintiff is permitted to recover both past and prospective damages. (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868-69.)

1. Continuing

A nuisance is continuing if it may be discontinued or abated at any time. (McCoy v. Gustafson (2009) 180 Cal.App.4th 56; see also Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1090, 1103 [to prove continuing nuisance in contamination cases, the plaintiff must present substantial evidence that the nuisance is both subject to remediation and that the cost of clean-up is reasonable].)

Prospective damages are unavailable for continuing nuisances. Recovery is limited to actual injury suffered prior to the commencement of each successive action. (Baker v. Burbank-Glendale Pasadena Airport Authority (1985) 39 Cal.3d 862, 868-69.)

A continuing nuisance is considered to be a series of successive injuries for which the plaintiff must bring successive actions. (Baker v. Burbank-Glendale Pasadena Airport Authority (1985) 39 Cal.3d 862, 868-69.) Each repetition of a continuing nuisance is considered a separate wrong which commences a new period in which to bring an action for recovery based on the new injury. (Beck Development Co. v. Southern Pacific Transp. Co. (1996) 44 Cal.App.4th 1160, 1217.)

Element 3: Affects Public

A public nuisance is one that affects an entire community or neighborhood or any considerable number of persons at the same time, although the extent of the annoyance or damage inflicted upon individuals may be unequal. (Cal. Civ. Code, § 3480.)

The plaintiff must show that the defendant’s actions or omissions affected community interests or those of the general public, not just those of the plaintiff. (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540.)

The community aspect of the public nuisance, reflected in the civil and criminal counterparts of the California Code, distinguishes it from its private cousin, and makes possible its use, by means of the equitable injunction, to protect the quality of organized social life. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1105.)

In determining whether something is a public nuisance, the focus must be on whether an entire neighborhood or community or at least a considerable number of persons are affected in the manner and by the factors that make the thing a nuisance under Civil Code § 3479. (Beck Development Co., Inc. v. Southern Pacific Transp. Co. (1996) 44 Cal.App.4th 1160, 1209.)

A nuisance is any act or omission which interferes with the interests of the community or the comfort and convenience of the general public. (Venuto v. Owens-Corning Fiberglass Corp. (1971) 22 Cal.App.3d 116, 123, 131 [valid complaint alleged that emissions from fiberglass manufacturing plant caused air pollution that injured health of citizens of Santa Clara County and interfered with the comfortable enjoyment of life and property of every person in the county].)

Element 4: Substantial and Unreasonable Interference

A public nuisance cause of action is established by proof that a defendant knowingly created or assisted in the creation of a substantial and unreasonable interference with a  a public right. (People v. ConAgra Products Co. (2017) 17 Cal.App.5th 51, 79.)

“Of course, not every interference with collective social interests constitutes a public nuisance. To qualify . . . the interference must be both substantial and unreasonable.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1105.)

“It is substantial if it causes significant harm and unreasonable if its social utility is outweighed by the gravity of the harm inflicted.” (People v. ConAgra Products Co. (2017) 17 Cal.App.5th 51, 112.)

• Substantial

Substantial interference requires proof of significant harm; a real and appreciable invasion of the plaintiff’s interests that is definitely offensive, seriously annoying, or intolerable. The measure is an objective one; if normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1105 [citing Restatement (Second) of Torts §821F, comments c, d].)

• Unreasonable

The unreasonableness of a given interference represents a judgment reached by comparing the social utility of an activity against the gravity of the harm it inflicts, taking into account a handful of relevant factors. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1105 [citing Restatement (Second) of Torts §821F, comments c, d].)

The initial determination of what constitutes a nuisance includes a consideration of conflicting interests leading to a conclusion whether the harm suffered outweighs the utility of the conduct. (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1231; see also Restatement (Second) of Torts §826 et seq.].) Once a court determines that an act or omission is a public nuisance it often engages in a further balancing of the relative hardships before deciding whether to enjoin the nuisance or not. (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1248; but see Morgan v. Veach (1943) 59 Cal.App.2d 682, 690 [courts will not engage in this balancing test if the nuisance was willfully created].)

Element 5: Causation and Damages

The elements of a cause of action for public nuisance include the existence of a duty and causation. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542.)

An essential element of a cause of action for nuisance is damage or injury. (Helix Land Co., Inc. v. City of San Diego (1978) 82 Cal.App.3d 932, 950.)

Causation is an essential element of a public nuisance claim. A plaintiff must establish a “connecting element” or a “causative link” between the defendant’s conduct and the threatened harm. (Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 358.)

Remedies

Abatement

The State may seek only abatement when  acting as public representative, but can seek damages where State has property interest at stake. (Cal. Civ. Code, §§3491, 3495; Cal. Civ. Proc. Code, § 731.)

Red Light Abatement Law

Penal Code section 11226 provides a summary method to shut down places where acts of lewdness and prostitution are habitually practiced and carried on as a business. (Cal. Penal Code, § 11226; Nguyen v. Superior Court (1996) 49 Cal.App.4th 1781, 1788.)

Compensatory Damages

Personal harm or property damages are available. (Cal. Civ. Code, §§3281, 3333; Cal. Civ. Proc. Code, § 731; Institoris v. City of Los Angeles (1989) 210 Cal.App.3d 10, 20.)

Injunction

Equitable relief may be available. (Cal. Civ. Code, § 3369; Cal. Civ. Proc. Code, § 731; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1102).

Damages for Annoyance and Discomfort

Once a cause of action for trespass or nuisance is established, an occupant of land may recover damages for annoyance and discomfort that would naturally ensure therefrom, including emotional distress or mental anguish. (Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 272; Hensley v. San Diego Gas & Electric Co. (2017) 7 Cal.App.5th 1337, 1349.)

Statute of Limitations

There is no statute of limitations in an action brought by a public entity to abate a public nuisance. (Beck Development Co., Inc. v. Southern Pacific Transp. Co. (1996) 44 Cal.App.4th 1160, 1216; Cal. Civ. Proc. Code, § 338, subd. (b).)  If a private person brings an action for public nuisance, the statute of limitations differs depending on whether the nuisance is permanent or continuing.

• Permanent Nuisances

The statute of limitations for all past, present and future damages is three years after the permanent nuisance is created if brought by a private party. (Cal. Civ. Proc. Code, § 338, subd. (b).) The statute begins to run on the creation of the nuisance and bars all claims after its passage. (Beck Development Co. v. Southern Pacific Transp. Co. (1996) 44 Cal.App.4th 1160, 1217.) In an action involving tortious injury to property, the injury is considered to be to the property itself rather than to the property owner, and thus the running of the statute of limitations against a claim bars the owner and all subsequent owners of the property. (Wilshire Westwood Ass’n v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732, 740.)

• Continuing Nuisances

A continuing nuisance is considered to be a series of successive injuries for which the plaintiff must bring successive actions. (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868-69.) Each repetition of a continuing nuisance is considered a separate wrong that commences a new period in which to bring an action for recovery based on the new injury. (Beck Development Co. v. Southern Pacific Transp. Co. (1996) 44 Cal.App.4th 1160, 1217.)

Affirmative Defenses

Consent

The defense of consent can bar a landowner from obtaining injunctive relief for a public nuisance. (Beck Development Co. v. Southern Pacific Transp. Co. (1996) 44 Cal.App.4th 1160, 1215.)

Due Care

Due care may be a defense for a landowner when the nuisance is created by another. (Resolution Trust Corp. v. Rossmoor Corp. (1995) 34 Cal.App.4th 93, 100.)

Necessity

Necessity is a complete defense to nuisance. (Farmers Ins. Exchange v. State of California (1985) 175 Cal.App.3d 494, 503.)

Statutory Authority

Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. (Cal. Civ. Code, § 3482; Big Creek Lumber Co. v. County of San Mateo (1995) 31 Cal.App.4th 418, 425.)