Opinion
H044629
05-22-2018
MATTHEW SUNDT, Plaintiff and Appellant, v. TANIMURA SOUTH LLC, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 16CV000475)
This is an action brought by a private citizen, appellant Matthew Sundt, to abate a public nuisance. Sundt is a bicyclist who rides along Blanco Road in Monterey County. Respondent Tanimura South LLC ("Tanimura") owns property that abuts Blanco Road, and deposits soil onto the road in connection with agricultural operation on its property. Sundt alleges he is at risk for injury when riding on Blanco Road because the soil deposits affect his ability to ride his bicycle safely.
On July 27, 2017, Tanimura filed a request for judicial notice that Blanco Road in Monterey County is a public road. We deferred consideration of this request for decision with the appeal. In support of the request for judicial notice, Tanimura's counsel provides only a declaration stating that he has lived in Monterey County for 30 years, and has personal knowledge that Blanco Road is a public road. Tanimura's request for judicial notice is denied. We may not take judicial notice of the truth of assertions in declarations alone. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 864.)
Following Tanimura's successful demurrers, the court dismissed the action on the ground that Sundt did not have standing as a private citizen to bring an action to abate a public nuisance because he did not suffer a special injury as required by Civil Code section 3493. We affirm the judgment.
All unspecified statutory references are to the Civil Code.
I. STATEMENT OF THE CASE
Sundt filed his original complaint on February 11, 2016 against Tanimura and other owners of agricultural property abutting Blanco Road. The complaint alleged that Blanco Road has a designated bike path. Since 2005, as a result of agricultural operations on their property, defendants have deposited soil onto Blanco Road that makes bicycle travel through portions of the road "impossible." The soil deposits create obstructions that require Sundt to deviate from the bike lane on Blanco Road and enter the lane of traffic. This deviation creates an unsafe condition, and presents a danger of Sundt colliding with a car. The damage is different in kind and degree from that suffered by the general public traversing the road in a motorized vehicle.
The parties stipulated that since all of the defendants are similarly situated, only Tanimura would respond to the complaint. --------
The complaint further alleged that in November 2013, Sundt sent a letter to the defendants demanding that they abate the nuisance caused by the soil deposits along Blanco Road, and they failed to do so.
Finally, the complaint alleged that the soil deposits along Blanco Road create a public nuisance within the meaning of section 3479, and are a violation of Vehicle Code section 23112, which prohibits the dumping of material on a street or highway.
Tanimura demurred to the complaint on the ground that as a private citizen, Sundt did not have standing to bring an action to abate a public nuisance because he did not suffer a special injury within the meaning of section 3493. On December 6, 2016, the court sustained the demurrer with leave to amend.
Sundt filed a first amended complaint nearly identical to the original complaint with the addition of following language: "The most common users of Blanco Road are motorists who suffer little damage from debris. The damages to cyclists cannot be said to be of the kind suffered by the general public using Blanco Road in a motorized vehicle. The damages suffered by [Sundt] as a cyclist are different in kind and degree from nuisances suffered by the general public traversing Blanco Road in a motorized vehicle and he is therefore entitled to bring this action pursuant to . . . [s]ection 3493 as he is specially injured."
Tanimura again demurred on the ground that Sundt lacked standing. On February 17, 2017, the court sustained Tanimura's demurrer without leave to amend.
The court dismissed the action against all of the defendants on March 14, 2017. Sundt filed a notice of appeal on April 20, 2017.
II. DISCUSSION
Sundt asserts that the trial court erred in sustaining Tanimura's demurrer to the first amended complaint without leave to amend because as a bicyclist he has standing to bring suit to abate the public nuisance on Blanco Road. Specifically, Sundt argues that the potential of physical harm and the fear that he could encounter soil deposits that might cause him to lose control of his bicycle are special injuries that support his standing to maintain an action to abate a public nuisance. Sundt also asserts that bicycle riders as a whole should not be segmented into a subgroup of "the public" for the purpose of determining the existence of a special injury. Finally, he urges this court to eliminate the special injury requirement for a private citizen to have standing to bring an action to abate a public nuisance.
A. Standard of Review
The standard of review governing an appeal from the judgment after the trial court sustains a demurrer without leave to amend is well established. " 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
B. Nuisance
Section 3479 defines a nuisance as follows: "Anything which is injurious to health, including, but not limited to . . . [that which] unlawfully obstructs the free passage or use, in the customary manner, of . . . any public park, square, street, or highway, is a nuisance." Section 3480 provides, "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." The interference must be both substantial and unreasonable to qualify as a public nuisance. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1105; County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 305.)
A public entity has the right to bring an action to abate a public nuisance because the harm caused by the nuisance is common to all members of the public. (Code of Civ. Proc. § 731; Liebman v. Richmond (1930) 103 Cal.App. 354, 358.) When a private citizen seeks to abate a public nuisance, he or she must allege a special injury that is different in kind, rather than degree, than that suffered by the general public. (§ 3493; Venuto v. Owens-Corning Fiberglass Corp. (1971) 22 Cal.App.3d 116, 124 (Venuto).) Without the special injury requirement, individual members of the public could bring separate claims to abate a public nuisance, leading to an endless multiplicity of identical lawsuits. (Venuto, at p. 124; Rest.2d Torts, § 821C.)
The special injury requirement for private citizens seeking to abate a public nuisance was discussed in Venuto, supra. In Venuto, the plaintiffs claimed that air pollution caused by the defendant's fiberglass manufacturing operation aggravated their allergies and respiratory disorders. The court found that the plaintiffs had not suffered a special injury to satisfy . . . section 3493. The court stated: "Assuming, arguendo, that we may infer from the allegations of the complaint that the public is suffering from a general irritation to the respiratory tract and that plaintiffs are suffering a more severe irritation to such tract, such allegations merely indicate that plaintiffs and the members of the pubic are suffering from the same kind of ailments but that plaintiffs are suffering from them to a greater degree . . . . Accordingly, these facts do not support an action based on a public nuisance." (Venuto, supra, 22 Cal.App.3d at p. 125.)
C. Potential of Physical Harm as Special Injury
Sundt did not suffer physical injury while riding his bicycle along Blanco Road where there were soil deposits. However, he argues that the potential of physical harm from the soil deposits on Blanco Road is sufficient to establish a special injury.
Sundt offers no authority for the proposition that the potential for physical harm could be a special injury to establish standing. However, Sundt cites Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540 (Birke), because it criticizes the Venuto court's analysis of special injury.
In Birke, the plaintiff was a tenant in an apartment complex where secondhand tobacco smoke permeated the outdoor common areas of the complex, aggravating her asthma and interfering with her use and enjoyment of the complex. The court found that plaintiff's injuries were different in kind from those of the other residents of the apartment complex. The court concluded that the aggravation of asthma and allergies is not similar to the increased risks of heart disease and lung cancer that the general public living in the apartment complex faced by breathing secondhand tobacco smoke. (Birke, supra, 169 Cal.App.4th at p. 1550.)
In addition, the Birke court found that the plaintiff's allegation that the secondhand tobacco smoke had interfered with her use and enjoyment of the complex's outdoor facilities established a private nuisance. The court noted, "when the nuisance is a private as well as a public one, there is no requirement the plaintiff suffer damage different in kind from that suffered by the general public." (Birke, supra, 169 Cal.App.4th at p. 1551.)
Sundt asserts that the because Birke criticized the Venuto court's analysis of special injury, it provides some authority for his position that the potential for physical harm is a special injury under section 3493. Sundt points to the Birke court's statement: "to the extent Venuto, supra, 22 Cal.App.3d 116 can be read as precluding an action to abate a public nuisance by a private individual who has suffered personal injuries as a result of the challenged condition, we believe it is an incorrect statement of the law." (Birke, supra, 169 Cal.App.4th at p. 1550.) Sundt extrapolates from this that "[a]n injury to a person's health and comfort as an individual is in its nature special and peculiar and is not a damage which can properly be said to be common or public."
The court in Birke did not address whether the potential of physical harm constitutes a special injury, and the case provides no support for Sundt's argument. Moreover, Birke is not similar in any way to the present case. In Birke the plaintiff alleged that that she had suffered a physical injury; specifically, that the inhalation of secondhand tobacco smoke had aggravated her asthma to such a degree that she had suffered three bouts of pneumonia. (Birke, supra, 169 Cal.App.4th at p. 1545.) Here, on the other hand, Sundt did not suffer physical injury as a result of the soil deposits.
In addition, in Birke, the court found that the plaintiff had established a private nuisance because her property rights had been affected by the secondhand tobacco smoke. (Birke, supra, 169 Cal.App.4th at p. 1551.) As a result, the plaintiff was not required to allege that she had suffered a special injury to bring an action to abate a public nuisance. (Ibid.) Unlike the plaintiff in Birke, Sundt does not allege that he suffered any interference with his property rights, and as a result, cannot establish the existence of a private nuisance that would obviate the special injury requirement. (Ibid.)
Sundt's allegation that the potential of physical harm is a special injury under section 3493 is without merit.
D. Fear of Harm as Special Injury
Sundt argues that his fear that he will be harmed if he encounters soil on Blanco Road while he is riding his bicycle is "a reasonable apprehension warranting protection" under nuisance law.
At the outset Sundt acknowledges that fear of future harm does not satisfy the special injury requirement for a private party to maintain a claim to abate a public nuisance. (Brown v. Petrolane, Inc. (1980) 102 Cal.App.3d 720, 726.) Yet Sundt still maintains that fear of future harm is a special injury, citing Beck Development Co., Inc. v. Southern Pacific Transporation Co. (1996) 44 Cal.App.4th 1160 (Beck).
While the court in Beck did discuss fear of future harm, it was in the context of whether such fear could constitute an injury sufficient to establish a nuisance in the first instance. The court did not address whether a plaintiff's fear of harm could be a special injury so that as a private citizen, he or she would have standing to bring an action to abate a public nuisance. (Beck, supra, 44 Cal.App.4th at p. 1213.)
There is no authority for Sundt's position that his fear of future harm qualifies as a special injury under section 3493.
E. Bicyclists as a Group
Sundt next argues that bicyclists cannot be considered a subgroup of the general public for the purpose of determining special injury. He states: "there is no reported case where the court approved a division of the user public into sub-units of the public depending upon how they traversed the public roadway to determine whether there existed special damages." However, Sundt's complaint in fact asked the court to treat cyclists as a special group: "The damages to cyclists cannot be said to be of the kind suffered by the general public using Blanco Road in a motorized vehicle."
We need not address the inherent contradictions in Sundt's argument. As stated above, neither the potential of physical harm nor the fear of future harm qualifies as a special injury for the purpose of standing to assert an action to abate a public nuisance.
F. Reconsideration of the Special Injury Requirement
Sundt urges this court to reevaluate nuisance law and the meaning of "special injury." He states: "[t]his court is urged to find that the 'special injury' references in . . . [s]ection 3493 is injury in fact, regardless of how many other people experienced the injury."
Sundt cites David Hodas's article, Private Actions for Public Nuisance: Common Law Citizen Suits for Relief from Environmental Harm, (1989) 16 Ecology L.Q. 883, wherein the author opines that courts should eliminate the special injury rule. Hodas writes, "modern concepts of justice and social utility require that enterprises fully internalize their costs to maximize resource allocation among competing uses, thus tortfeasors who impose their externalities on society should not be shielded from liability by the special injury rule." (Id. at p. 889, fn. omitted.)
However, the California Supreme Court has held that a private person cannot maintain an action to enjoin a public nuisance unless it is "specially injurious to himself." (Frost v. City of Los Angeles (1919) 181 Cal. 22, 30.) We are bound by the Supreme Court's decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
G. Conclusion
Sundt's allegations that the potential of physical harm and the fear that he could be harmed if he encountered soil deposits on Blanco Road are not sufficient to establish a special injury within the meaning of section 3493. Having suffered no special injury, Sundt lacks standing to maintain an action as a private citizen to abate a public nuisance. (Venuto, supra, 22 Cal.App.3d at p. 125.) The trial court properly sustained Tanimura's demurrer to Sundt's first amended complaint without leave to amend.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.