California Landmark Cases on Public Nuisance

A nuisance is statutorily defined as anything "injurious to health" or "indecent, or offensive to the senses, or an obstruction to the free use of property" that interferes "with the comfortable enjoyment of life or property . . .." (Civ. Code, 3479.) "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." (Civ. Code, 3480.) As the California Supreme Court has explained, "public nuisances are offenses against, or interferences with, the exercise of rights common to the public." (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103.) The interference must be both substantial and unreasonable. (Id. at p. 1105; Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1547.) The elements "of a cause of action for public nuisance include the existence of a duty and causation." (In re Firearm Cases (2005) 126 Cal.App.4th 959, 988; see generally, Birke v. Oakwood Worldwide, supra, 169 Cal.App.4th at p. 1548.) Public nuisance liability "does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance." (City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38; accord, County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 306.) Given "the broad definition of nuisance," the independent viability of a nuisance cause of action "depends on the facts of each case." (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1348.) "Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim." (Id. at p. 1349.) The nuisance claim "stands or falls with the determination of the negligence cause of action" in such cases. (Pamela W. v. Millsom (1994) 25 Cal.App.4th at p. 954, fn. 1.) A taking does not occur if a regulation merely "duplicates the result that could have been achieved in the courts -- by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise." (Lucas v. South Carolina Coast Council (1992) 505 U.S. 1003 at p. 1029.) Under California law, a nuisance is "anything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . ." (Civ. Code, 3479.) A public nuisance is one that substantially and unreasonably interferes with "the exercise of rights common to the public." (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 at p. 1103; see Civ. Code, 3480.) Thus, to justify Chapter 22.90's construction moratorium, the City must prove that rebuilding plaintiffs' homes would pose significant harm to persons or property and that, as a consequence, it could obtain an order enjoining the reconstruction. (Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263 at p. 306; Lucas, supra, 505 U.S. at p. 1029.) To assess whether the City has met this burden, we must consider the degree of harm posed by plaintiffs' proposed activities to public lands and adjacent private property; the social value of the activities and their suitability to the locality in question; the relative ease with which the alleged harm can be avoided; whether a particular use has been long engaged in by similarly situated owners; and whether those similarly situated owners are permitted to continue the use denied to plaintiffs. (Lucas, at pp. 1031-1032; Monks, at p 306.) As Monks points out, there is nothing inherently harmful or dangerous about plaintiffs' desire to use their properties as residences. (Monks, supra, 167 Cal.App.4th at p. 306.) Their lots are zoned for that purpose, and the City has installed the requisite utilities and sewer system. (See ibid.) It is undisputed plaintiffs continuously resided on the properties until their homes were destroyed by a non-geological event; and but for that event, they likely would still be there. Other landowners continue to reside within Slide Mass C and have done so for many years. The City has not ordered them to vacate their properties. Nor are they restricted from renting or selling their homes. They also are not precluded from remodeling the interior of their homes or from making additions to existing structures which do not exceed 150 square feet during any 24-month period. (SBMC, ch. 22.90.030, subd. C.) "The fact that a particular use has long been engaged in by similarly situated owners ordinarily imports a lack of any common-law prohibition . . . ." (Lucas, supra, 505 U.S. at p. 1031.)