Preview
MICHAEL S. DANKO, ESQ. SBN 111359 Electronically
mdanko@dankolaw.com
DANKO MEREDITH by Superior Court of California, County of San Mateo
333 Twin Dolphin Drive, Suite 145 ON 3/22/2021
Redwood Shores, CA 94065
Telephone: (650) 453-3600 By. /s/ Joel Lacey
Deputy Clerk
Facsimile: (650) 394-8672
Attorneys for Plaintiffs
BRYAN TRUJILLO and CINDY TRUJILLO
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
UNLIMITED CIVIL JURISDICTION
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11 BRYAN TRUJILLO and CINDY TRUJILLO, Case No. 18CIV01901
12 Plaintiffs, PLAINTIFFS’ SUPPLEMENTAL BRIEF IN
SUPPORT OF PLAINTIFFS’ MOTIONS IN
13 v LIMINE EXCLUDING EVIDENCE THAT
THE SUBJECT NUISANCE IS OF A
14 STEPHEN MAGEE, SAC AERO FLYING CONTINUING NATURE AND/OR HAS
CLUB, INC., AND DOES |- 50, BEEN ABATED
15
Defendants
16 Trial Date: TBD
Time: TBD
17 Dept.: 4
18 Complaint filed: April 17, 2018
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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PURSUANT TO A REQUEST OF THE COURT Plaintiffs submit this supplemental brief in
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support of Plaintiffs’ motions in limine excluding evidence that the subject nuisance and trespass are
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of a continuing nature and/or have been abated.
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I LEGAL ARGUMENT
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“Tt does not lie in the mouth of the wrongdoer to demand that his victim be limited to that
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cause of action which is most beneficial to the wrongdoer.” (Gherman v. Colburn (1977) 72
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Cal.App.3d 544, 565.)
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PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ MOTIONS IN LIMINE
EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE
CONTINUING OR HAVE BEEN ABATED
A. Plaintiffs Have the Right to Elect Their Remedy
A plaintiff may choose between alternate theories of recovery. (Navarro v. Perron (2004) 122
Cal.App.4" 797, 799 [where there is more than one appropriate remedy for a wrong, the party who
is wronged has the election of remedies”].) This is true where a plaintiff brings an action in tort and
under a statute. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253 [“once the verdict is
returned, plaintiffs, if they prevail, may then elect whether to accept the . . . statutory penalties or the
punitive damages award”].) This is also true where a plaintiff sues in tort, breach of contract, and in
equity. (Gherman v. Colburn, supra, 72 Cal.App.3d 544, 565 [“the victim at least has alternative
remedies: he may waive tort or breach and sue to specifically enforce’’].)
10 In this case, plaintiffs have available remedies under theories of both of permanent and
11 continuing nuisance. Remedies available under continuing nuisance include an order for the
12 restoration of the property, a remedy in equity, while those available under permanent nuisance
13 include monetary damages, a remedy in law. Plaintiffs have elected to pursue the remedy for
14 permanent nuisance, including monetary damages reflecting the diminution in value of the property.
15 Defendant may not subvert the election as “it is . . . axiomatic that where a civil wrong gives rise to
16 two or more causes of action, the choice of remedy is vested in the victim, not in the wrongdoer.”
17 (Gherman v. Colburn, supra, 72 Cal.App.3d 544, 564.)
18 B. Plaintiffs Have the Right to Pursue the Remedies for Permanent Nuisance
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1. The California Supreme Court Has Held that a Plaintiff Has the Right to Pursue
20 the Remedies Available for Permanent Nuisance
The California Supreme Court has explicitly recognized a plaintiff's right to elect the
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permanent nuisance. In Spaulding v. Cameron (1952) 38 Cal.2d 265, defendant caused a mudslide
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that damaged plaintiff's property. Defendant’s negligence was established at trial, and plaintiff was
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awarded the diminution in value of its property. The trial court also ordered defendant to abate the
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nuisance. The defendant appealed the damages award, contending it was inconsistent with the
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court’s finding that the nuisance could be abated. Plaintiff, for its part, argued the award of damages
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for diminution in value was proper because “there is in reality no way in which defendant can abate
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PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ MOTIONS IN LIMINE
EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE
CONTINUING OR HAVE BEEN ABATED
the nuisance and that it was therefore proper for the trial court to award damages.” (Spaulding v.
Cameron (1952) 38 Cal.2d 265, 267.)
The California Supreme Court recognized the difficulty of definitively categorizing a nuisance
as either permanent or continuing and the consequences of doing so, as “to attempt categorically to
classify such a nuisance as either permanent or not may lead to serious injustice to one or the other
of the parties.” (Spaulding v. Cameron, supra, 38 Cal.2d 265, 268.) With these considerations in
mind, the California Supreme Court held “in doubtful cases the plaintiff should have an election to
treat the nuisance as either permanent or not.” (/d.) The holding of Spaulding remains intact to
present day and is a current statement of the law of nuisance.
10 The California Supreme Court’s reasoning in Spaulding further emphasizes that the choice of
11 whether a successful plaintiff should be afforded the remedies available under a theory of permanent
12 nuisance or continuing is the plaintiff's to make. The court noted that where the plaintiff elects to
13 pursue the remedies allowed for nuisance that are continuing, “defendant... cannot complain if the
14 plaintiff elects to bring successive actions.” Further, in the case that plaintiff chooses a theory of
15 permanent nuisance, “the plaintiff should not be left to the troublesome remedy of successive
16 actions.” (Spaulding v. Cameron, supra, 38 Cal.2d 265, 268-9.)
17 2. Plaintiff's Pre-Trial Election Controls Unless Unsupported by Any Facts
18 Facts that support a claim for continuing nuisance may in some cases also support a claim for
19 a permanent nuisance. Thus, in theory, a plaintiff could prove both a permanent and a continuing
20 nuisance at trial and elect their measure of damages after verdict. Courts have recognized these
21 situations by labeling them as “doubtful cases.” (Baker v. Burbank-Glendale-Pasadena Airport
22 Authority (1985) 39 Cal.3d 862, 870 [‘in case of doubt as to the permanency of the injury the
23 plaintiff may elect whether to treat a particular nuisance as permanent or continuing” citing
24 Spaulding v. Cameron, supra, 38 Cal.2d 265, 268; Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480,
25 1492 [because the nuisance in the present case has characteristics of both a permanent and
26 continuing nuisance or trespass, the plaintiffs should be allowed to elect whether to treat the nuisance
27 as continuing or permanent”’].)
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EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE
CONTINUING OR HAVE BEEN ABATED
Plaintiff's election is to be given significant deference by the trial court. (Beck Development
Co. v. S. PACIFIC TRANSP. CO. (1996) 44 Cal.App.4th 1160, 1217 [“a plaintiff's election of
remedies is entitled to deference in doubtful cases, that choice must nevertheless be supported by
evidence that makes it reasonable under the circumstances”].) As a matter of law, a plaintiff may
elect to pursue a permanent nuisance theory of recovery, and that choice can be rejected only where
there is no evidence to support plaintiff's theory of recovery. This is a matter of law for the court, not
the jury. In this case, some aspects of the harm continued and will continue for an indefinite period
of time, while other aspects of the harm are permanent, although not literally so, as in this context,
“permanency... does not mean forever—indefinitely long is sufficient.” Santa Fe Partnership v.
10 ARCO Products Co. (1996) 46 Cal.App.4th 967, 981. Therefore, because plaintiff's choice to the
11 treat the nuisance in this case as permanent is reasonably supported by the facts of the case, that
12 choice must be respected.
13 C. Plaintiff Must Prove to the Jury That Its Election Is Factually Supported Only
14 Where The Statute Of Limitations Is at Issue
15 In groundwater contamination cases, a plaintiff may elect to treat the nuisance as either
16 permanent or continuing, unless the three-year statute of limitations has run on the permanent
17 nuisance claim. (Code Civ. Pro. § 338(b).) If the statute of limitations has run, then to prevail the
18 courts impose on plaintiffs a burden to prove at trial that the nuisance is continuing. The reasoning
19 for this rule is obvious: if a plaintiff's election was entitled to the same deference in cases where the
20 statute of limitations has run as it is when plaintiff's claim was timely filed, the statute of limitations
21 would be eviscerated. See, Santa Fe Partnership, supra 46 Cal.App.4th 967, 980 [To accept
22 [plaintiffs'] reasoning would permit parties seeking recovery for time-barred. . . claims to avoid the
23 statute of limitations simply by recharacterizing them as. . . continuing nuisance claims”].)
24 Mangini v. Aerojet-General Corp. (1996) Cal.4th 1087, illustrates this burden shifting
25 analysis. In Mangini, plaintiffs failed to file a claim for nuisance within the three-year statute of
26 limitations and so sought relief under a continuing nuisance theory. (Mangini v. Aerojet-General
27 Corp. (1996) Cal.4th 1087, 1104.) Prevailing at trial, plaintiffs proved that defendants’ industrial
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EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE
CONTINUING OR HAVE BEEN ABATED
process caused chemical contamination of their land and were awarded a remedy only available for
continuing nuisances. Applying the abatability test, the California Supreme Court noted
that “plaintiffs had failed to present any substantial evidence that the contamination. . . was capable
of being abated at a reasonable cost.” (/d. at 1090.) The onus of proving that the nuisance was
abatable, and therefore continuing, fell to plaintiffs.
Mangini, however, applies only to a case where a plaintiff does not file a nuisance claim
within the three-year statutory period and thus seeks relief under the theory that the nuisance was
continuing. Plaintiffs here timely filed their suit and thus do not seek the remedies afforded under a
continuing nuisance theory. Therefore, the holding of Mangini does not apply, and plaintiffs are
10 under no obligation to prove to the jury that the nuisance is permanent.
11 In Mangini, The California Supreme Court had the opportunity to elaborate on its holding in
12 Spaulding v. Cameron stating, “in doubtful cases the plaintiff should have an election to treat the
13 nuisance as either permanent or not.” (Mangini v. Aerojet-General Corp, supra, 12 Cal.4th 1087,
14 1106-7, citing Spaulding v. Cameron, supra, 38 Cal.2d 265, 268.) The Mangini Court clarified that,
15 “we express no opinion on the question whether a plaintiff who has filed a timely nuisance action is
16 required to prove that abatement can be accomplished at a "reasonable cost" in order to be entitled to
17 an injunction requiring the wrongdoing party to remedy the damage to the property.” (/d. at 1090.)
18 The Supreme Court then went on to hold that “we emphasize, however, that our ruling in this case is
19 confined to the statute of limitations issue before us.” (/d.) Therefore, the holding in Spaulding
20 remains intact and plaintiffs who file a timely claim have the right to pursue the remedies available
21 for permanent nuisance.
22 D. Plaintiffs’ Timely Filing Forecloses Defendant from “Proving” That the Nuisance Is
23 Abatable and Thus Permanent
24 1. Defendant May Not Litigate Abatability at Trial
25 Where plaintiff has missed the three-year statute, defendant may raise the statute of limitations
26 as an affirmative defense. Thus, the defendant may seek to prove to the jury abatability to show the
27 nuisance is permanent, not continuing, and that plaintiffs’ claims are therefore time-barred. The
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EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE
CONTINUING OR HAVE BEEN ABATED
abatability test, however, is at issue only where defendant is entitled to assert the statute of
limitations as a defense to a permanent nuisance claim. (See, e.g., Mangini v. Aerojet-General Corp,
supra, 12 Cal.4th 1087; See, e.g., Beck Development Co. v. S. PACIFIC TRANSP. CO., supra, 44
Cal.App.4th 1160; See, e.g., Santa Fe Partnership, supra, 46 Cal.App.4th 967; See, e.g., Gehr v.
Baker (2008) 81 Cal.App.4"" 660; See, e.g., McCoy v. Gustafson (2009) 180 Cal. App.4th 56.) In this
case, plaintiffs brought their claim within three years of the crash, and it is thus unquestionably
timely. Therefore, the statute of limitations defense is not at issue and defendant is not entitled to
litigate whether the nuisance was abatable.
2. A Nuisance Cannot Be Made Continuing By Abating the Nuisance before Trial
10 Defendants contend that the nuisance has now been abated, and that therefore it must be
11 characterized as having been continuing, not permanent. As noted above, whether the nuisance has
12 been abated is not relevant in this case because there are no issue concerning the statute of
13 limitations. Even if there were such issues, an abatement of a nuisance while litigation is pending
14 will not control the ultimate issue of whether plaintiff has a remedy. In Spar v. Pacific Bell (1991)
15 235 Cal.App.3d 1480, plaintiff discovered that defendant had placed underground telephone
16 facilities on its land without permission. Plaintiff discovered the nuisance well after the three-year
17 statute of limitations had run. Therefore, to recover, plaintiff had to show that the nuisance was
18 properly characterized as continuing. Prior to trial, defendant removed the lines, and thus abated the
19 nuisance. Plaintiff argued that the nuisance was therefore “abatable,” and met the definition ofa
20 nuisance that had been continuing rather than permanent. The court rejected the argument. While
21 recognizing “the voluntary act of defendant in abating the nuisance” (Spar v. Pacific Bell (1991) 235
22 Cal.App.3d 1480, 1488), the court held that the nuisance was nonetheless permanent, ruling that “we
23 cannot say that this solitary fact [of abatement]... transformed the nuisance into a continuing
24 nuisance.” (/d. at 1486.)
25 In the present case, plaintiffs’ claim is timely. In such cases, a plaintiff is not burdened to
26 show that the nuisance is continuing in order to proceed. Nor must plaintiff prove the nuisance is
27 permanent. Rather, plaintiff is free to elect the remedy. But even if there were statute of limitation
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issues, any argument that pre-trial abatement transformed the nuisance to a continuing one must be
rejected, just as in Spar v. Pacific Bell.
3. Defendant Cannot Deprive Plaintiffs of the Remedy They Elect By Showing That
the Nuisance Could Also Be Characterized As Continuing
Defendant would argue that to recover for permanent nuisance, plaintiff must disprove their
entitlement to recover for continuing nuisance. Not so. Because permanent and continuing nuisances
are not mutually exclusive, even ifa nuisance could be characterized as continuing, that does not
automatically preclude the same set of facts from supporting a permanent nuisance theory.
Furthermore, simply showing that a nuisance has some characteristics ofa continuing nuisance does
not hinder plaintiffs ability to elect their desired theory of recovery. Plaintiffs may proceed under
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the theory they choose. (See, Polin v. Chung Cho (1970) 8 Cal. App.3d 673, 677 [the rule of
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permanent nuisance “is for the benefit of plaintiff, plaintiff should not be compelled to treat a
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condition as ‘permanent’ when plaintiff prefers not to so treat it"].)
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Defendant is free to argue the merits of the case. Defendants may argue that they are not
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responsible for the contamination or that the contamination did not affect the property’s value
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immediately after the crash. However, defendant may not seek to prove that the nuisance in this case
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cannot properly be characterized as permanent by showing that the nuisance could also be
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considered continuing.
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E. Because Evidence That the Nuisance Is Continuing Would Be Irrelevant, Confusing,
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and Prejudicial, It Should Be Excluded from Trial
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Because a plaintiffs choice between continuing and permanent nuisance in a timely suit
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affects the measure of damages, this choice invokes the Election of Remedies Doctrine. (Starrh and
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Starrh Cotton Growers v. Aera Energy LLC (2007) 63 Cal.Rptr.3d 165, 168, [“The distinction
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between continuing and permanent trespass comes up when considering. . . what is the correct
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measure of damages?”].) “In its ‘conventional form,’ the doctrine of election of remedies is stated as
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follows: where a person has two concurrent remedies to obtain relief on the same state of facts, and
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these remedies are inconsistent, he must choose or elect between them; and if he has clearly elected
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EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE
CONTINUING OR HAVE BEEN ABATED
to proceed on one, he is bound by this election and cannot thereafter pursue the other.” (Denevi v.
LGCC (2004) 18 Cal.Rptr.3d 276, 281.) Because plaintiffs are bound by their election, “there need
not be a trial on both the legal and the equitable remedy. . . resolution of one renders the other moot. ”
(Walton y. Walton (1995) 31 Cal.App.4" 277, 293.) Defendants are not unduly prejudiced by
plaintiffs’ choice of relief in this matter as plaintiff waives any right to pursue damages under a
continuing nuisance theory. Therefore, evidence that the nuisance in the case can be characterized as
continuing is properly excluded from trial.
F. The Applicable Jury Instructions Do Not Differentiate Between Continuing and
Permanent.
10 To prevail, plaintiffs must prove a nuisance or trespass. Consistent with the above analysis, the
11 CACTI instructions do not in the first instance distinguish between whether the nuisance or trespass is
12 continuing or permanent. In a case where there are no statute of limitations issues, the nature of the
13 trespass is not a question for the jury. (See, e.g., CACI No. 2021 (May 2020) Private Nuisance —
14 Essential Factual Elements, p. 1225; See, e.g., CACI No. 2000 (May 2020) Trespass — Essential
15 Factual Elements, p. 1202.)
16 The only time the distinction between permanent and continuing is to be submitted to the jury
17 is where the defendant contends plaintiffs have missed the statute for permanent trespass or
18 nuisance. (CACI No. 2030 (May 2020) Affirmative Defense—Statute of Limitations—Trespass or
19 Private Nuisance p. 1238.) Because the plaintiffs in this case have filed a timely claim, CACI 2030
20 cannot be read. The question of whether the nuisance is “properly considered” continuing or
21 permanent is not at issue and is not to be submitted to the jury, and any evidence about the
22 nuisance’s continuing or permanent nature is irrelevant and must be excluded.
23 IL. CONCLUSION
24 For these reasons, defendant should be precluded from presenting evidence at trial that the
25 nuisance should be characterized as continuing. Furthermore, the jury should be instructed on the
26 elements of trespass as stated in CACI No. 2000. Because defendants have no evidence or argument
27 suggesting that the statute of limitations has run, the court cannot read CACI No. 2030. CACI No.
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CONTINUING OR HAVE BEEN ABATED
2030 is the only instruction that makes the distinction between permanent and continuing nuisances
and is not applicable here. Thus, such distinction is irrelevant to the trial. Therefore, the court should
properly exclude all evidence that the nuisance is continuing as such evidence would be irrelevant,
confusing, and prejudicial.
DATED: March 21, 2020 DANKO MEREDITH
By: ‘e
MICHAEL S: DANI!
Attorney for Plaintiffs
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2000. Trespass—Essential Factual Elements
[Name of plaintiff| claims that [name of defendant] trespassed on [his/her/
nonbinary pronoun/its] property. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] [owned/leased/occupied/controlled] the
property;
That [name of defendant] [intentionally/, although not intending to
do so, [recklessly [or] negligently] entered [name of plaintiff]’s
property] [or]
[intentionally/, although not intending to do so, [recklessly [or]
negligently]] caused [another person/[insert name of thing]] to
enter [name of plaintiff|’s property];
3. That [name of plaintiff] did not give permission for the entry [or
that [name of defendant] exceeded [name of plaintiff\’s permission];
That [name of plaintiff] was [actually] harmed; and
That [name of defendant]’s [entry/conduct] was a substantial
factor in causing [name of plaintiff)’s harm.
[Entry can be on, above, or below the surface of the land.]
[Entry may occur indirectly, such as by causing vibrations that damage
the land or structures or other improvements on the land.]
New September 2003; Revised June 2013, May 2020
Directions for Use
With regard to element 2, liability for trespa: may be imposed for conduct that is
intentional, reckless, negligent, or the result of an extra-hazardous activity. (Staples
v. Hoefke (1987) 189 Cal.App.3d 1397, 1406 [235 Cal.Rptr. 165].) However, intent
to tre: means only that the person intended to be in the particular place where
the trespa: is alleged to have occurred. (Miller v. National Broadcasting Corp.
(1986) 187 Cal.App.3d 1463, 1480-1481 [232 Cal.Rptr. 668].) Liability may be also
based on the defendant’s unintentional, but negligent or reckless, act, for example,
an automobile accident. An intent to damage is not necessary. (Meyer v. Pacific
Employers Insurance Co. (1965) 233 Cal.App.2d 321, 326 [43 Cal.Rptr. 542].)
It is no defense that the defendant mistakenly, but in good faith, believed that the
defendant had a right to be in that location. (Cassinos v. Union Oil Co. (1993) 14
Cal.App.4th 1770, 1780 [18 Cal.Rptr.2d 574].) In such a case, the word
“intentionally” in element 2 might be confusing to the jury. To alleviate this possible
confusion, give the third option to CACI No. 2004, “Intentional Entry” Explained.
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Tf plaintiff is seeking nominal damages as an alternative to actual damages, insert
the following paragraph above element 4, add “and” at the end of element 2, and
adjust punctuation accordingly:
Tf you find all of the above, then the law assumes that [name of plaintiff] has
been harmed and [name of plaintiff] is entitled to a nominal sum such as one
dollar. [Name of plaintiff] is entitled to additional damages if [name of plaintiff]
proves the following:
The last sentence of the above paragraph, along with the final two elements of this
instruction, should be omitted if plaintiff is seeking nominal damages only. Read
“actually” in the fourth element only if nominal damages are also being sought.
Nominal damages alone are not available in cases involving intangible intrusions
such as noise and vibrations; proof of actual damage to the property is required:
“[T]he rule is that actionable trespass may not be predicated upon nondamaging
noise, odor, or light intrusion . ..” (San Diego Gas & Electric Co. v. Superior
Court (1996) 13 Cal.4th 893, 936 [55 Cal.Rptr.2d 724, 920 P.2d 669], internal
citation omitted.)
For an instruction on control of property, see CACI No. 1002, Extent of Control
Over Premises Area, in the Premises Liability series.
Sources and Authority
“Generally, landowners and tenants have a right to exclude persons from
trespassing on private property; the right to exclude persons is a fundamental
aspect of private property ownership.” (Ralphs Grocery Co. v. Victory
Consultants, Inc. (2017) 17 Cal.App.Sth 245, 258 [225 Cal.Rptr.3d 305].)
“ “Trespas s an unlawful interference with poss sion of property.’ The
elements of trespass are: (1) the plaintiff's ownership or control of the property;
(2) the defendant intentional, reckless, or negligent entry onto the property; (3)
lack of permission for the entry or acts in excess of permission; (4) harm; and
(5) the defendant’s conduct was a substantial factor in causing the harm. (See
CACI No. 2000.)” (Ralphs Grocery Co., supra, 17 Cal.App.Sth at pp. 261-262,
internal citation omitted.)
“{I]n order to state a cause of action for tresp: a plaintiff must allege an
unauthorized and tangible entry on the land of another, which interfered with the
plaintiff's exclusive possessory rights.” (McBride v. Smith (2018) 18 Cal.App.Sth
1160, 1174 [227 Cal.Rptr.3d 390].)
“The emission of sound waves which cause actual physical damage to property
constitutes a trespass. Liability for trespass may be imposed for conduct which is
intentional, reckless, negligent or the result of an extra-hazardous activity.”
(Staples, supra, 189 Cal.App.3d at p. 1406, internal citations omitted.)
“California’s definition of tresp: is considerably narrower than its definition of
nuisance. ‘ “A trespass an invasion of the interest in the exclusive poss sion
of land, as by entry upon it . .. A nuisance is an interference with the interest
in the private use and enjoyment of the land and does not require interference
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with the possession.” ’ California has adhered firmly to the view that ‘[t]he cause
of action for trespass is designed to protect possessory—not necessarily
ownership—interests in land from unlawful interference.’ ” (Capogeannis v.
Superior Court (1993) 12 Cal.App.4th 668, 674 [15 Cal.Rptr.2d 796], internal
citations omitted.)
“In the context of a trespass action, ‘possession’ is synonymous with
‘occupation’ and connotes a subjection of property to one’s will and control.”
(Veiseh v. Stapp (2019) 35 Cal.App.Sth 1099, 1105 [247 Cal.Rptr.3d 868].)
“ TA] trespass may be committed by the continued presence on the land of a
structure, chattel, or other thing which the actor has tortiously placed there,
whether or not the actor has the ability to remove it.’ Under this definition,
‘tortious conduct’ denotes that conduct, whether of act or omis: n, which
subjects the actor to liability under the principles of the law of torts.” (Newhall
Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 345 [23
Cal.Rptr.2d 377], internal citations omitted.)
The common-law distinction between direct and constructive trespass is not
followed in California. A trespass may be committed by consequential and
indirect injuries as well as by direct and forcible harm. (Gallin v. Poulou (1956)
140 Cal.App.2d 638, 641 [295 P.2d 958].)
“Tt is a well-settled proposition that the proper party plaintiff in an action for
trespass to real property is the person in actual possession. No averment of title
in plaintiff is necessary. [Citations.]’. . . ‘A defendant who is a mere stranger to
the title will not be allowed to question the title of a plaintiff in possession of
the land. It is only where the trespasser claims title himself, or claims under the
real owner, that he is allowed to attack the title of the plaintiff whose peaceable
possession he has disturbed.’ ” (Veiseh, supra, 35 Cal.App.Sth at p. 1104,
internal citation omitted.)
“An action for trespass may technically be maintained only by one whose right
to possession has been violated; however, an out-of-possession property owner
may recover for an injury to the land by a trespasser which damages the
ownership interest.” (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769,
774 [184 Cal.Rptr. 308], internal citation omitted.)
“Under the forcible entry statutes the fact that a defendant may have title or the
right to posse sion of the land is no defense. The plaintiff's interest in peaceable
even if wrongful possession is secured against forcible intrusion by conferring
on him the right to restitution of the premises, the primary remedy, and
incidentally awarding damages proximately caused by the forcible entry.” (Allen
v. McMillion (1978) 82 Cal.App.3d 211, 218-219 [147 Cal.Rptr. 77], internal
citations omitted.)
“Where there is a consensual entry, there is no tort, because lack of consent is
an element of the wrong.” (Civic Western Corp. v. Zila Industries, Inc. (1977) 66
Cal.App.3d 1, 16-17 [135 Cal.Rptr. 915].)
. “ “A conditional or restricted consent to enter land creates a privilege to do so
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only insofar as the condition or restriction is complied with.’ ” (Civic Western
Corp., supra, 66 Cal.App.3d at p. 17, quoting Rest.2d Torts, § 168.)
“Where one has permission to use land for a particular purpose and proceeds to
abuse the privilege, or commits any act hostile to the interests of the lessor, he
becomes a trespasser. [{]] ‘A good faith belief that entry has been authorized or
permitted provides no excuse for infringement of property rights if consent was
not in fact given by the property owner whose rights are at issue. Accordingly,
by showing they gave no authorization, [plaintiffs] established the lack of
consent necessary to support their action for injury to their ownership
interests.’ ” (Cassinos, supra, 14 Cal.App.4th at p. 1780, internal citations
omitted.)
we [T]he intent required as a basis for liability as a trespasser is simply an intent
to be at the place on the land where the tresp; allegedly occurred. . .. The
defendant is liable for an intentional entry although he has acted in good faith,
under the mistaken belief, however reasonable, that he is committing no
wrong.’ ” (Miller, supra, 187 Cal.App.3d at pp. 1480-1481, internal citation
omitted.)
“The general rule is simply that damages may be recovered for annoyance and
distress, including mental anguish, proximately caused by a tresp: S. ” (Armitage
v. Decker (1990) 218 Cal.App.3d 887, 905 [267 Cal.Rptr. 399], internal citations
omitted.)
“Causes of action for conversion and trespass support an award for exemplary
damages.” (Krieger v. Pacific Gas & Electric Co. (1981) 119 Cal.App.3d 137,
148 [173 Cal.Rptr. 751], internal citation omitted.)
“Tt is true that an action for tresp: s will support an award of nominal damages
where actual damages are not shown. However, nominal damages need not be
awarded where no actual loss has occurred. ‘Failure to return a verdict for
nominal damages is not in general ground for reversing a judgment or granting a
new trial.’ ” (Staples, supra, 189 Cal.App.3d at p. 1406, internal citations
omitted.)
“Trespass may be ‘ “by personal intrusion of the wrongdoer or by his failure to
leave; by throwing or placing something on the land; or by causing the entry of
some other person. me A trespass may be on the surface of the land, above it, or
below it. The migration of pollutants from one property to another may
constitute a trespass, a nuisance, or both.” (Martin Marietta Corp. v. Insurance
Co. of North America (1995) 40 Cal.App.4th 1113, 1132 [47 Cal.Rptr.2d 670],
internal citations omitted.)
“Respondent’s plant was located in a zone which permitted its operation. It
comes within the protection of section 731la of the Code of Civil Procedure
which, subject to certain exceptions, generally provides that where a
manufacturing or commercial operation is permitted by local zoning, no private
individual can enjoin such an operation. It has been determined, however, that
this section does not operate to bar recovery for damages for trespassory
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invasions of another’s property occasioned by the conduct of such manufacturing
or commercial use.” (Roberts v. Permanente Corp. (1961) 188 Cal.App.2d 526,
529 [10 Cal.Rptr. 519], internal citations omitted.)
“TA]s a matter of law, [plaintiff] cannot state a cause of action against the
[defendants] for trespassing on the Secondary Access Easement because they
own that land and her easement does not give her a possessory right, not to
mention an exclusive possessory right in that property.” (McBride, supra, 18
Cal.App.Sth at p. 1174.)
“{A] failure to comply with one or more provisions of the California Uniform
Transfers to Minors Act does not render the grantor’s continued possession and
control of the real property unlawful for purposes of the tort of trespass to
realty.” (Veiseh, supra, 35 Cal.App.Sth at p. 1107.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 803-805
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20 (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, §§ 550.11, 550.19
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.20 (Matthew Bender)
1 California Civil Practice: Torts §§ 18:1, 18:4-18:8, 18:10 (Thomson Reuters)
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2021. Private Nuisance—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] suffered harm
because [name of defendant] created a nuisance. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [owned/eased/occupied/controlled] the
property;
2. That [name of defendant], by acting or failing to act, created a
condition or permitted a condition to exist that [insert one or more
of the following:]
[was harmful to health;] [or]
[was indecent or offensive to the senses;] [or]
[was an obstruction to the free use of property, so as to
interfere with the comfortable enjoyment of life or property;]
[or]
[unlawfully obstructed the free passage or use, in the
customary manner, of any navigable lake, or river, bay,
stream, canal, or basin, or any public park, square, street, or
highway;] [or]
[was [a/an] [fire hazard/specify other potentially dangerous
condition] to [name of plaintiff)’s property;]
That [[name of defendant]’s conduct in acting or failing to act was
[intentional and unreasonable/unintentional, but negligent or
reckless}/[the condition that [name of defendant] created or
permitted to exist was the result of an abnormally dangerous
activity];
That this condition substantially interfered with [name of
plaintiff)’s use or enjoyment of [his/her/nonbinary pronoun] land;
That an ordinary person would reasonably be annoyed or
disturbed by [name of defendant]’s conduct;
[6 That [name of plaintiff] did not consent to [name of defendant]’s
conduct;]
7. That [name of plaintiff] was harmed;
That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff)’s harm; and
9. That the seriousness of the harm outweighs the public benefit of
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[name of defendant]’s conduct.
New September 2003; Revised February 2007, December 2011, December 2015,
June 2016, May 2017, May 2018, May 2019
Directions for Use
Private nuisance liability depends on some sort of conduct by the defendant that
either directly and unreasonably interferes with the plaintiff's property or creates a
condition that does so. (Lussier v. San Lorenzo Valley Water Dist. (1988) 206
Cal.App.3d 92, 100 [253 Cal.Rptr. 470].) Element 2 requires that the defendant have
acted to create a condition or allowed a condition to exist by failing to act.
The act that causes the interference may be intentional and unreasonable. Or it may
be unintentional but caused by negligent or reckless conduct. Or it may result from
an abnormally dangerous activity for which there is strict liability. However, if the
act is intentional but reasonable, or if it is entirely accidental, there is generally no
liability. (Lussier, supra, 206 Cal.App.3d at p. 100.)
The intent required is only to do the act that interferes, not an intent to cause harm.
(Lussier, supra, 206 Cal.App.3d at pp. 100, 106; see Rest.2d Torts, § 822.) For
example, it is sufficient that one intend to chop down a tree; it is not necessary to
intend that it fall on a neighbor’s property.
If the condition results from an abnormally dangerous activity, it must be one for
which there is strict liability. (Lussier, supra, 206 Cal.App.3d at p. 100; see Rest.2d
Torts, § 822).
There may be an exception to the scienter requirement of element 3 for at least
some harm caused by trees. There are cases holding that a property owner is strictly
liable for damage caused by tree branches and roots that encroach on neighboring
property. (See Lussier, supra, 206 Cal.App.3d at p.106, fn. 5; see also Mattos v.
Mattos (1958) 162 Cal.App.2d 41, 43 [328 P.2d 269] [absolute liability of an owner
to remove portions of his fallen trees that extend over and upon another’s land]; cf.
City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1236 [176
Cal.Rptr.3d 422] [plaintiff must prove negligent maintenance of trees that fell onto
plaintiffs property in a windstorm].) Do not give element 3 if the court decides that
there is strict liability for damage caused by encroaching or falling trees.
There is some uncertainty as to whether lack of consent is an element (element 6)
or consent is a defense. Cases clearly list lack of consent with the elements. (See
Department of Fish & Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1352
[129 Cal.Rptr.3d 719]; Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540,
1548 [87 Cal.Rptr.3d 602].) However, other cases have referred to consent as a
defense, albeit in the context of a nuisance action involving parties with interests in
the same property. (See Newhall Land & Farming Co. v. Superior Court (1993) 19
Cal.App.4th 334, 341-345, 23 Cal. Rptr. 2d 377; Mangini v. Aerojet-General Corp.
(1991) 230 Cal.App.3d 1125, 1138-1140 [281 Cal.Rptr. 827].)
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If the claim is that the defendant failed to abate a nuisance, negligence must be
proved. (City of Pasadena, supra, 228 Cal.App.4th at p. 1236.)
Element 9 must be supplemented with CACI No. 2022, Private
Nuisance—Balancing-Test Factors—Seriousness of Harm and Public Benefit. (See
Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 160-165
[184 Cal.Rptr.3d 26].) For instruction on control of property, see CACTI No. 1002,
Extent of Control Over Premises Area, in the Premises Liability series.
Sources and Authority
“Nuisance” Defined. Civil Code section 3479.
Acts Done Under Express Authority of Statute. Civil Code section 3482.
“A nuisance is considered a ‘public nuisance’ when it ‘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.’ A ‘private nuisance’ is defined to include any nuisance not covered
by the definition of a public nuisance, and also includes some public nuisances.
‘In other words, it is possible for a nuisance to be public and, from the
perspective of individuals who suffer an interference with their use and
enjoyment of land, to be private as well.’ ” (Mendez v. Rancho Valencia Resort
Partners, LLC (2016) 3 Cal.App.Sth 248, 261-262 [207 Cal.Rptr.3d 532],
internal citations omitted.)
“The elements of a public nuisance, under the circumstances of this case, are as
follows: (1) the 2007 poisoning obstructed the free use of property, so as to
interfere with the comfortable enjoyment of life or property; (2) the 2007
poisoning affected a substantial number of people; (3) an ordinary person would
be unreasonably annoyed or disturbed by the 2007 poisoning; (4) the seriousness
of the harm occasioned by the 2007 poisoning outweighed its social utility; (5)
plaintiffs did not consent to the 2007 poisoning; (6) plaintiffs suffered harm as a
result of the 2007 poisoning that was different from the type of harm suffered by
the general public; and (7) the 2007 poisoning was a substantial factor in
causing plaintiffs’ harm.[{[] The elements of a private nuisance are the same
except there is no requirement that plaintiffs prove a subs intial number of
people were harmed and plaintiffs suffered harm that was different from that
suffered by the general public, but there are additional elements that plaintiffs
owned, leased, occupied or controlled real property, that the 2007 poisoning
interfered with plaintiffs’ use of their property, and that plaintiffs were harmed
thereby” (Department of Fish & Game, supra, 197 Cal.App.4th at p. 1352
[citing this instruction].)
“In their first cause of action, plaintiffs allege the 2007 poisoning adversely
affected tourism for a substantial period of time, caused plaintiffs to suffer
serious losses, obstructed the free use of plaintiffs’ property, and interfered with
plaintiffs’ comfortable enjoyment of their property or their busine: . Strictly
speaking, this does not state a claim for either public or private nuisance. There
is no allegation that plaintiffs did not consent to the 2007 poisoning, that an
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ordinary person would have been annoyed or disturbed by the 2007 poisoning,
or that the seriousness of the harm caused by the 2007 poisoning outweighed its
public benefit.” (Department of Fish & Game, supra, 197 Cal.App.4th at p.
1352.)
“In distinction to trespass, liability for nuisance does not require proof of
damage to the plaintiff's property; proof of interference with the plaintiff's use
and enjoyment of that property is sufficient.” (San Diego Gas & Electric Co. v.
Superior Court (1996) 13 Cal.4th 893, 937 [55 Cal-Rptr.2d 724, 920 P.2d 669].)
“(T]he essence of a private nuisance is its interference with the use and
enjoyment of land. The activity in issue must ‘disturb or prevent the comfortable
enjoyment of property,’ such as smoke from an asphalt mixing plant, noise and
odors from the operation of a refreshment stand, or the noise and vibration of
machinery.” (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 534
[90 Cal.Rptr.2d 491], internal citations omitted.)
“A nuisance is an interference with the interest in the private use and enjoyment
of the land and does not require interference with the possession.” (McBride v.
Smith (2018) 18 Cal.App.5th 1160, 1178 [227 Cal.Rptr.3d 390].)
“TT]o proceed on a private nuisance theory the plaintiff must prove an injury
specifically referable to the use and enjoyment of his or her land. The injury,
however, need not be different in kind from that suffered by the general public.”
(Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24
Cal.App.4th 1036, 1041 [29 Cal.Rptr.2d 664], internal citation omitted.)
“So long as the interference is substantial and unreasonable, and such as would
be offensive or inconvenient to the normal person, virtually any disturbance of
the enjoyment of the property may amount to a nuisance; . ..” (Mendez, supra,
3 Cal.App.Sth at p. 262.)
“The requirements of substantial damage and unreasonableness are not
inconsequential. These requirements stem from the law’s recognition that: ‘ “Life
in organized society and especially in populous communities involves an
unavoidable clash of individual interests. Practically all human activities unless
carried on in a wilderness interfere to some extent with others or involve some
risk of interference, and these interferences range from mere trifling annoyanc
Preview
MICHAEL S. DANKO, ESQ. SBN 111359 Electronically mdanko@dankolaw.com DANKO MEREDITH by Superior Court of California, County of San Mateo 333 Twin Dolphin Drive, Suite 145 ON 3/22/2021 Redwood Shores, CA 94065 Telephone: (650) 453-3600 By. /s/ Joel Lacey Deputy Clerk Facsimile: (650) 394-8672 Attorneys for Plaintiffs BRYAN TRUJILLO and CINDY TRUJILLO SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO UNLIMITED CIVIL JURISDICTION 10 11 BRYAN TRUJILLO and CINDY TRUJILLO, Case No. 18CIV01901 12 Plaintiffs, PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ MOTIONS IN 13 v LIMINE EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE IS OF A 14 STEPHEN MAGEE, SAC AERO FLYING CONTINUING NATURE AND/OR HAS CLUB, INC., AND DOES |- 50, BEEN ABATED 15 Defendants 16 Trial Date: TBD Time: TBD 17 Dept.: 4 18 Complaint filed: April 17, 2018 19 20 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 21 PURSUANT TO A REQUEST OF THE COURT Plaintiffs submit this supplemental brief in 22 support of Plaintiffs’ motions in limine excluding evidence that the subject nuisance and trespass are 23 of a continuing nature and/or have been abated. 24 I LEGAL ARGUMENT 25 “Tt does not lie in the mouth of the wrongdoer to demand that his victim be limited to that 26 cause of action which is most beneficial to the wrongdoer.” (Gherman v. Colburn (1977) 72 27 Cal.App.3d 544, 565.) 28 -1- PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ MOTIONS IN LIMINE EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE CONTINUING OR HAVE BEEN ABATED A. Plaintiffs Have the Right to Elect Their Remedy A plaintiff may choose between alternate theories of recovery. (Navarro v. Perron (2004) 122 Cal.App.4" 797, 799 [where there is more than one appropriate remedy for a wrong, the party who is wronged has the election of remedies”].) This is true where a plaintiff brings an action in tort and under a statute. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253 [“once the verdict is returned, plaintiffs, if they prevail, may then elect whether to accept the . . . statutory penalties or the punitive damages award”].) This is also true where a plaintiff sues in tort, breach of contract, and in equity. (Gherman v. Colburn, supra, 72 Cal.App.3d 544, 565 [“the victim at least has alternative remedies: he may waive tort or breach and sue to specifically enforce’’].) 10 In this case, plaintiffs have available remedies under theories of both of permanent and 11 continuing nuisance. Remedies available under continuing nuisance include an order for the 12 restoration of the property, a remedy in equity, while those available under permanent nuisance 13 include monetary damages, a remedy in law. Plaintiffs have elected to pursue the remedy for 14 permanent nuisance, including monetary damages reflecting the diminution in value of the property. 15 Defendant may not subvert the election as “it is . . . axiomatic that where a civil wrong gives rise to 16 two or more causes of action, the choice of remedy is vested in the victim, not in the wrongdoer.” 17 (Gherman v. Colburn, supra, 72 Cal.App.3d 544, 564.) 18 B. Plaintiffs Have the Right to Pursue the Remedies for Permanent Nuisance 19 1. The California Supreme Court Has Held that a Plaintiff Has the Right to Pursue 20 the Remedies Available for Permanent Nuisance The California Supreme Court has explicitly recognized a plaintiff's right to elect the 21 permanent nuisance. In Spaulding v. Cameron (1952) 38 Cal.2d 265, defendant caused a mudslide 22 that damaged plaintiff's property. Defendant’s negligence was established at trial, and plaintiff was 23 awarded the diminution in value of its property. The trial court also ordered defendant to abate the 24 nuisance. The defendant appealed the damages award, contending it was inconsistent with the 25 court’s finding that the nuisance could be abated. Plaintiff, for its part, argued the award of damages 26 for diminution in value was proper because “there is in reality no way in which defendant can abate 27 28 -2- PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ MOTIONS IN LIMINE EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE CONTINUING OR HAVE BEEN ABATED the nuisance and that it was therefore proper for the trial court to award damages.” (Spaulding v. Cameron (1952) 38 Cal.2d 265, 267.) The California Supreme Court recognized the difficulty of definitively categorizing a nuisance as either permanent or continuing and the consequences of doing so, as “to attempt categorically to classify such a nuisance as either permanent or not may lead to serious injustice to one or the other of the parties.” (Spaulding v. Cameron, supra, 38 Cal.2d 265, 268.) With these considerations in mind, the California Supreme Court held “in doubtful cases the plaintiff should have an election to treat the nuisance as either permanent or not.” (/d.) The holding of Spaulding remains intact to present day and is a current statement of the law of nuisance. 10 The California Supreme Court’s reasoning in Spaulding further emphasizes that the choice of 11 whether a successful plaintiff should be afforded the remedies available under a theory of permanent 12 nuisance or continuing is the plaintiff's to make. The court noted that where the plaintiff elects to 13 pursue the remedies allowed for nuisance that are continuing, “defendant... cannot complain if the 14 plaintiff elects to bring successive actions.” Further, in the case that plaintiff chooses a theory of 15 permanent nuisance, “the plaintiff should not be left to the troublesome remedy of successive 16 actions.” (Spaulding v. Cameron, supra, 38 Cal.2d 265, 268-9.) 17 2. Plaintiff's Pre-Trial Election Controls Unless Unsupported by Any Facts 18 Facts that support a claim for continuing nuisance may in some cases also support a claim for 19 a permanent nuisance. Thus, in theory, a plaintiff could prove both a permanent and a continuing 20 nuisance at trial and elect their measure of damages after verdict. Courts have recognized these 21 situations by labeling them as “doubtful cases.” (Baker v. Burbank-Glendale-Pasadena Airport 22 Authority (1985) 39 Cal.3d 862, 870 [‘in case of doubt as to the permanency of the injury the 23 plaintiff may elect whether to treat a particular nuisance as permanent or continuing” citing 24 Spaulding v. Cameron, supra, 38 Cal.2d 265, 268; Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480, 25 1492 [because the nuisance in the present case has characteristics of both a permanent and 26 continuing nuisance or trespass, the plaintiffs should be allowed to elect whether to treat the nuisance 27 as continuing or permanent”’].) 28 -3- PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ MOTIONS IN LIMINE EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE CONTINUING OR HAVE BEEN ABATED Plaintiff's election is to be given significant deference by the trial court. (Beck Development Co. v. S. PACIFIC TRANSP. CO. (1996) 44 Cal.App.4th 1160, 1217 [“a plaintiff's election of remedies is entitled to deference in doubtful cases, that choice must nevertheless be supported by evidence that makes it reasonable under the circumstances”].) As a matter of law, a plaintiff may elect to pursue a permanent nuisance theory of recovery, and that choice can be rejected only where there is no evidence to support plaintiff's theory of recovery. This is a matter of law for the court, not the jury. In this case, some aspects of the harm continued and will continue for an indefinite period of time, while other aspects of the harm are permanent, although not literally so, as in this context, “permanency... does not mean forever—indefinitely long is sufficient.” Santa Fe Partnership v. 10 ARCO Products Co. (1996) 46 Cal.App.4th 967, 981. Therefore, because plaintiff's choice to the 11 treat the nuisance in this case as permanent is reasonably supported by the facts of the case, that 12 choice must be respected. 13 C. Plaintiff Must Prove to the Jury That Its Election Is Factually Supported Only 14 Where The Statute Of Limitations Is at Issue 15 In groundwater contamination cases, a plaintiff may elect to treat the nuisance as either 16 permanent or continuing, unless the three-year statute of limitations has run on the permanent 17 nuisance claim. (Code Civ. Pro. § 338(b).) If the statute of limitations has run, then to prevail the 18 courts impose on plaintiffs a burden to prove at trial that the nuisance is continuing. The reasoning 19 for this rule is obvious: if a plaintiff's election was entitled to the same deference in cases where the 20 statute of limitations has run as it is when plaintiff's claim was timely filed, the statute of limitations 21 would be eviscerated. See, Santa Fe Partnership, supra 46 Cal.App.4th 967, 980 [To accept 22 [plaintiffs'] reasoning would permit parties seeking recovery for time-barred. . . claims to avoid the 23 statute of limitations simply by recharacterizing them as. . . continuing nuisance claims”].) 24 Mangini v. Aerojet-General Corp. (1996) Cal.4th 1087, illustrates this burden shifting 25 analysis. In Mangini, plaintiffs failed to file a claim for nuisance within the three-year statute of 26 limitations and so sought relief under a continuing nuisance theory. (Mangini v. Aerojet-General 27 Corp. (1996) Cal.4th 1087, 1104.) Prevailing at trial, plaintiffs proved that defendants’ industrial 28 -4- PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ MOTIONS IN LIMINE EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE CONTINUING OR HAVE BEEN ABATED process caused chemical contamination of their land and were awarded a remedy only available for continuing nuisances. Applying the abatability test, the California Supreme Court noted that “plaintiffs had failed to present any substantial evidence that the contamination. . . was capable of being abated at a reasonable cost.” (/d. at 1090.) The onus of proving that the nuisance was abatable, and therefore continuing, fell to plaintiffs. Mangini, however, applies only to a case where a plaintiff does not file a nuisance claim within the three-year statutory period and thus seeks relief under the theory that the nuisance was continuing. Plaintiffs here timely filed their suit and thus do not seek the remedies afforded under a continuing nuisance theory. Therefore, the holding of Mangini does not apply, and plaintiffs are 10 under no obligation to prove to the jury that the nuisance is permanent. 11 In Mangini, The California Supreme Court had the opportunity to elaborate on its holding in 12 Spaulding v. Cameron stating, “in doubtful cases the plaintiff should have an election to treat the 13 nuisance as either permanent or not.” (Mangini v. Aerojet-General Corp, supra, 12 Cal.4th 1087, 14 1106-7, citing Spaulding v. Cameron, supra, 38 Cal.2d 265, 268.) The Mangini Court clarified that, 15 “we express no opinion on the question whether a plaintiff who has filed a timely nuisance action is 16 required to prove that abatement can be accomplished at a "reasonable cost" in order to be entitled to 17 an injunction requiring the wrongdoing party to remedy the damage to the property.” (/d. at 1090.) 18 The Supreme Court then went on to hold that “we emphasize, however, that our ruling in this case is 19 confined to the statute of limitations issue before us.” (/d.) Therefore, the holding in Spaulding 20 remains intact and plaintiffs who file a timely claim have the right to pursue the remedies available 21 for permanent nuisance. 22 D. Plaintiffs’ Timely Filing Forecloses Defendant from “Proving” That the Nuisance Is 23 Abatable and Thus Permanent 24 1. Defendant May Not Litigate Abatability at Trial 25 Where plaintiff has missed the three-year statute, defendant may raise the statute of limitations 26 as an affirmative defense. Thus, the defendant may seek to prove to the jury abatability to show the 27 nuisance is permanent, not continuing, and that plaintiffs’ claims are therefore time-barred. The 28 5. PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ MOTIONS IN LIMINE EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE CONTINUING OR HAVE BEEN ABATED abatability test, however, is at issue only where defendant is entitled to assert the statute of limitations as a defense to a permanent nuisance claim. (See, e.g., Mangini v. Aerojet-General Corp, supra, 12 Cal.4th 1087; See, e.g., Beck Development Co. v. S. PACIFIC TRANSP. CO., supra, 44 Cal.App.4th 1160; See, e.g., Santa Fe Partnership, supra, 46 Cal.App.4th 967; See, e.g., Gehr v. Baker (2008) 81 Cal.App.4"" 660; See, e.g., McCoy v. Gustafson (2009) 180 Cal. App.4th 56.) In this case, plaintiffs brought their claim within three years of the crash, and it is thus unquestionably timely. Therefore, the statute of limitations defense is not at issue and defendant is not entitled to litigate whether the nuisance was abatable. 2. A Nuisance Cannot Be Made Continuing By Abating the Nuisance before Trial 10 Defendants contend that the nuisance has now been abated, and that therefore it must be 11 characterized as having been continuing, not permanent. As noted above, whether the nuisance has 12 been abated is not relevant in this case because there are no issue concerning the statute of 13 limitations. Even if there were such issues, an abatement of a nuisance while litigation is pending 14 will not control the ultimate issue of whether plaintiff has a remedy. In Spar v. Pacific Bell (1991) 15 235 Cal.App.3d 1480, plaintiff discovered that defendant had placed underground telephone 16 facilities on its land without permission. Plaintiff discovered the nuisance well after the three-year 17 statute of limitations had run. Therefore, to recover, plaintiff had to show that the nuisance was 18 properly characterized as continuing. Prior to trial, defendant removed the lines, and thus abated the 19 nuisance. Plaintiff argued that the nuisance was therefore “abatable,” and met the definition ofa 20 nuisance that had been continuing rather than permanent. The court rejected the argument. While 21 recognizing “the voluntary act of defendant in abating the nuisance” (Spar v. Pacific Bell (1991) 235 22 Cal.App.3d 1480, 1488), the court held that the nuisance was nonetheless permanent, ruling that “we 23 cannot say that this solitary fact [of abatement]... transformed the nuisance into a continuing 24 nuisance.” (/d. at 1486.) 25 In the present case, plaintiffs’ claim is timely. In such cases, a plaintiff is not burdened to 26 show that the nuisance is continuing in order to proceed. Nor must plaintiff prove the nuisance is 27 permanent. Rather, plaintiff is free to elect the remedy. But even if there were statute of limitation 28 -6- PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ MOTIONS IN LIMINE EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE CONTINUING OR HAVE BEEN ABATED issues, any argument that pre-trial abatement transformed the nuisance to a continuing one must be rejected, just as in Spar v. Pacific Bell. 3. Defendant Cannot Deprive Plaintiffs of the Remedy They Elect By Showing That the Nuisance Could Also Be Characterized As Continuing Defendant would argue that to recover for permanent nuisance, plaintiff must disprove their entitlement to recover for continuing nuisance. Not so. Because permanent and continuing nuisances are not mutually exclusive, even ifa nuisance could be characterized as continuing, that does not automatically preclude the same set of facts from supporting a permanent nuisance theory. Furthermore, simply showing that a nuisance has some characteristics ofa continuing nuisance does not hinder plaintiffs ability to elect their desired theory of recovery. Plaintiffs may proceed under 10 the theory they choose. (See, Polin v. Chung Cho (1970) 8 Cal. App.3d 673, 677 [the rule of 11 permanent nuisance “is for the benefit of plaintiff, plaintiff should not be compelled to treat a 12 condition as ‘permanent’ when plaintiff prefers not to so treat it"].) 13 Defendant is free to argue the merits of the case. Defendants may argue that they are not 14 responsible for the contamination or that the contamination did not affect the property’s value 15 immediately after the crash. However, defendant may not seek to prove that the nuisance in this case 16 cannot properly be characterized as permanent by showing that the nuisance could also be 17 considered continuing. 18 E. Because Evidence That the Nuisance Is Continuing Would Be Irrelevant, Confusing, 19 and Prejudicial, It Should Be Excluded from Trial 20 Because a plaintiffs choice between continuing and permanent nuisance in a timely suit 21 affects the measure of damages, this choice invokes the Election of Remedies Doctrine. (Starrh and 22 Starrh Cotton Growers v. Aera Energy LLC (2007) 63 Cal.Rptr.3d 165, 168, [“The distinction 23 between continuing and permanent trespass comes up when considering. . . what is the correct 24 measure of damages?”].) “In its ‘conventional form,’ the doctrine of election of remedies is stated as 25 follows: where a person has two concurrent remedies to obtain relief on the same state of facts, and 26 these remedies are inconsistent, he must choose or elect between them; and if he has clearly elected 27 28 -7- PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ MOTIONS IN LIMINE EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE CONTINUING OR HAVE BEEN ABATED to proceed on one, he is bound by this election and cannot thereafter pursue the other.” (Denevi v. LGCC (2004) 18 Cal.Rptr.3d 276, 281.) Because plaintiffs are bound by their election, “there need not be a trial on both the legal and the equitable remedy. . . resolution of one renders the other moot. ” (Walton y. Walton (1995) 31 Cal.App.4" 277, 293.) Defendants are not unduly prejudiced by plaintiffs’ choice of relief in this matter as plaintiff waives any right to pursue damages under a continuing nuisance theory. Therefore, evidence that the nuisance in the case can be characterized as continuing is properly excluded from trial. F. The Applicable Jury Instructions Do Not Differentiate Between Continuing and Permanent. 10 To prevail, plaintiffs must prove a nuisance or trespass. Consistent with the above analysis, the 11 CACTI instructions do not in the first instance distinguish between whether the nuisance or trespass is 12 continuing or permanent. In a case where there are no statute of limitations issues, the nature of the 13 trespass is not a question for the jury. (See, e.g., CACI No. 2021 (May 2020) Private Nuisance — 14 Essential Factual Elements, p. 1225; See, e.g., CACI No. 2000 (May 2020) Trespass — Essential 15 Factual Elements, p. 1202.) 16 The only time the distinction between permanent and continuing is to be submitted to the jury 17 is where the defendant contends plaintiffs have missed the statute for permanent trespass or 18 nuisance. (CACI No. 2030 (May 2020) Affirmative Defense—Statute of Limitations—Trespass or 19 Private Nuisance p. 1238.) Because the plaintiffs in this case have filed a timely claim, CACI 2030 20 cannot be read. The question of whether the nuisance is “properly considered” continuing or 21 permanent is not at issue and is not to be submitted to the jury, and any evidence about the 22 nuisance’s continuing or permanent nature is irrelevant and must be excluded. 23 IL. CONCLUSION 24 For these reasons, defendant should be precluded from presenting evidence at trial that the 25 nuisance should be characterized as continuing. Furthermore, the jury should be instructed on the 26 elements of trespass as stated in CACI No. 2000. Because defendants have no evidence or argument 27 suggesting that the statute of limitations has run, the court cannot read CACI No. 2030. CACI No. 28 -8- PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ MOTIONS IN LIMINE EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE CONTINUING OR HAVE BEEN ABATED 2030 is the only instruction that makes the distinction between permanent and continuing nuisances and is not applicable here. Thus, such distinction is irrelevant to the trial. Therefore, the court should properly exclude all evidence that the nuisance is continuing as such evidence would be irrelevant, confusing, and prejudicial. DATED: March 21, 2020 DANKO MEREDITH By: ‘e MICHAEL S: DANI! Attorney for Plaintiffs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’ MOTIONS IN LIMINE EXCLUDING EVIDENCE THAT THE SUBJECT NUISANCE AND TRESPASS WERE CONTINUING OR HAVE BEEN ABATED 2000. Trespass—Essential Factual Elements [Name of plaintiff| claims that [name of defendant] trespassed on [his/her/ nonbinary pronoun/its] property. To establish this claim, [name of plaintiff] must prove all of the following: 1. That [name of plaintiff] [owned/leased/occupied/controlled] the property; That [name of defendant] [intentionally/, although not intending to do so, [recklessly [or] negligently] entered [name of plaintiff]’s property] [or] [intentionally/, although not intending to do so, [recklessly [or] negligently]] caused [another person/[insert name of thing]] to enter [name of plaintiff|’s property]; 3. That [name of plaintiff] did not give permission for the entry [or that [name of defendant] exceeded [name of plaintiff\’s permission]; That [name of plaintiff] was [actually] harmed; and That [name of defendant]’s [entry/conduct] was a substantial factor in causing [name of plaintiff)’s harm. [Entry can be on, above, or below the surface of the land.] [Entry may occur indirectly, such as by causing vibrations that damage the land or structures or other improvements on the land.] New September 2003; Revised June 2013, May 2020 Directions for Use With regard to element 2, liability for trespa: may be imposed for conduct that is intentional, reckless, negligent, or the result of an extra-hazardous activity. (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406 [235 Cal.Rptr. 165].) However, intent to tre: means only that the person intended to be in the particular place where the trespa: is alleged to have occurred. (Miller v. National Broadcasting Corp. (1986) 187 Cal.App.3d 1463, 1480-1481 [232 Cal.Rptr. 668].) Liability may be also based on the defendant’s unintentional, but negligent or reckless, act, for example, an automobile accident. An intent to damage is not necessary. (Meyer v. Pacific Employers Insurance Co. (1965) 233 Cal.App.2d 321, 326 [43 Cal.Rptr. 542].) It is no defense that the defendant mistakenly, but in good faith, believed that the defendant had a right to be in that location. (Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1780 [18 Cal.Rptr.2d 574].) In such a case, the word “intentionally” in element 2 might be confusing to the jury. To alleviate this possible confusion, give the third option to CACI No. 2004, “Intentional Entry” Explained. 1202 Copyright Judicial Council of California TRESPASS CACTI No. 2000 Tf plaintiff is seeking nominal damages as an alternative to actual damages, insert the following paragraph above element 4, add “and” at the end of element 2, and adjust punctuation accordingly: Tf you find all of the above, then the law assumes that [name of plaintiff] has been harmed and [name of plaintiff] is entitled to a nominal sum such as one dollar. [Name of plaintiff] is entitled to additional damages if [name of plaintiff] proves the following: The last sentence of the above paragraph, along with the final two elements of this instruction, should be omitted if plaintiff is seeking nominal damages only. Read “actually” in the fourth element only if nominal damages are also being sought. Nominal damages alone are not available in cases involving intangible intrusions such as noise and vibrations; proof of actual damage to the property is required: “[T]he rule is that actionable trespass may not be predicated upon nondamaging noise, odor, or light intrusion . ..” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 936 [55 Cal.Rptr.2d 724, 920 P.2d 669], internal citation omitted.) For an instruction on control of property, see CACI No. 1002, Extent of Control Over Premises Area, in the Premises Liability series. Sources and Authority “Generally, landowners and tenants have a right to exclude persons from trespassing on private property; the right to exclude persons is a fundamental aspect of private property ownership.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.Sth 245, 258 [225 Cal.Rptr.3d 305].) “ “Trespas s an unlawful interference with poss sion of property.’ The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm. (See CACI No. 2000.)” (Ralphs Grocery Co., supra, 17 Cal.App.Sth at pp. 261-262, internal citation omitted.) “{I]n order to state a cause of action for tresp: a plaintiff must allege an unauthorized and tangible entry on the land of another, which interfered with the plaintiff's exclusive possessory rights.” (McBride v. Smith (2018) 18 Cal.App.Sth 1160, 1174 [227 Cal.Rptr.3d 390].) “The emission of sound waves which cause actual physical damage to property constitutes a trespass. Liability for trespass may be imposed for conduct which is intentional, reckless, negligent or the result of an extra-hazardous activity.” (Staples, supra, 189 Cal.App.3d at p. 1406, internal citations omitted.) “California’s definition of tresp: is considerably narrower than its definition of nuisance. ‘ “A trespass an invasion of the interest in the exclusive poss sion of land, as by entry upon it . .. A nuisance is an interference with the interest in the private use and enjoyment of the land and does not require interference 1203 Copyright Judicial Council of California CACI No. 2000 TRESPASS with the possession.” ’ California has adhered firmly to the view that ‘[t]he cause of action for trespass is designed to protect possessory—not necessarily ownership—interests in land from unlawful interference.’ ” (Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 674 [15 Cal.Rptr.2d 796], internal citations omitted.) “In the context of a trespass action, ‘possession’ is synonymous with ‘occupation’ and connotes a subjection of property to one’s will and control.” (Veiseh v. Stapp (2019) 35 Cal.App.Sth 1099, 1105 [247 Cal.Rptr.3d 868].) “ TA] trespass may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor has tortiously placed there, whether or not the actor has the ability to remove it.’ Under this definition, ‘tortious conduct’ denotes that conduct, whether of act or omis: n, which subjects the actor to liability under the principles of the law of torts.” (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 345 [23 Cal.Rptr.2d 377], internal citations omitted.) The common-law distinction between direct and constructive trespass is not followed in California. A trespass may be committed by consequential and indirect injuries as well as by direct and forcible harm. (Gallin v. Poulou (1956) 140 Cal.App.2d 638, 641 [295 P.2d 958].) “Tt is a well-settled proposition that the proper party plaintiff in an action for trespass to real property is the person in actual possession. No averment of title in plaintiff is necessary. [Citations.]’. . . ‘A defendant who is a mere stranger to the title will not be allowed to question the title of a plaintiff in possession of the land. It is only where the trespasser claims title himself, or claims under the real owner, that he is allowed to attack the title of the plaintiff whose peaceable possession he has disturbed.’ ” (Veiseh, supra, 35 Cal.App.Sth at p. 1104, internal citation omitted.) “An action for trespass may technically be maintained only by one whose right to possession has been violated; however, an out-of-possession property owner may recover for an injury to the land by a trespasser which damages the ownership interest.” (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 774 [184 Cal.Rptr. 308], internal citation omitted.) “Under the forcible entry statutes the fact that a defendant may have title or the right to posse sion of the land is no defense. The plaintiff's interest in peaceable even if wrongful possession is secured against forcible intrusion by conferring on him the right to restitution of the premises, the primary remedy, and incidentally awarding damages proximately caused by the forcible entry.” (Allen v. McMillion (1978) 82 Cal.App.3d 211, 218-219 [147 Cal.Rptr. 77], internal citations omitted.) “Where there is a consensual entry, there is no tort, because lack of consent is an element of the wrong.” (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16-17 [135 Cal.Rptr. 915].) . “ “A conditional or restricted consent to enter land creates a privilege to do so 1204 Copyright Judicial Council of California TRESPASS CACTI No. 2000 only insofar as the condition or restriction is complied with.’ ” (Civic Western Corp., supra, 66 Cal.App.3d at p. 17, quoting Rest.2d Torts, § 168.) “Where one has permission to use land for a particular purpose and proceeds to abuse the privilege, or commits any act hostile to the interests of the lessor, he becomes a trespasser. [{]] ‘A good faith belief that entry has been authorized or permitted provides no excuse for infringement of property rights if consent was not in fact given by the property owner whose rights are at issue. Accordingly, by showing they gave no authorization, [plaintiffs] established the lack of consent necessary to support their action for injury to their ownership interests.’ ” (Cassinos, supra, 14 Cal.App.4th at p. 1780, internal citations omitted.) we [T]he intent required as a basis for liability as a trespasser is simply an intent to be at the place on the land where the tresp; allegedly occurred. . .. The defendant is liable for an intentional entry although he has acted in good faith, under the mistaken belief, however reasonable, that he is committing no wrong.’ ” (Miller, supra, 187 Cal.App.3d at pp. 1480-1481, internal citation omitted.) “The general rule is simply that damages may be recovered for annoyance and distress, including mental anguish, proximately caused by a tresp: S. ” (Armitage v. Decker (1990) 218 Cal.App.3d 887, 905 [267 Cal.Rptr. 399], internal citations omitted.) “Causes of action for conversion and trespass support an award for exemplary damages.” (Krieger v. Pacific Gas & Electric Co. (1981) 119 Cal.App.3d 137, 148 [173 Cal.Rptr. 751], internal citation omitted.) “Tt is true that an action for tresp: s will support an award of nominal damages where actual damages are not shown. However, nominal damages need not be awarded where no actual loss has occurred. ‘Failure to return a verdict for nominal damages is not in general ground for reversing a judgment or granting a new trial.’ ” (Staples, supra, 189 Cal.App.3d at p. 1406, internal citations omitted.) “Trespass may be ‘ “by personal intrusion of the wrongdoer or by his failure to leave; by throwing or placing something on the land; or by causing the entry of some other person. me A trespass may be on the surface of the land, above it, or below it. The migration of pollutants from one property to another may constitute a trespass, a nuisance, or both.” (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1132 [47 Cal.Rptr.2d 670], internal citations omitted.) “Respondent’s plant was located in a zone which permitted its operation. It comes within the protection of section 731la of the Code of Civil Procedure which, subject to certain exceptions, generally provides that where a manufacturing or commercial operation is permitted by local zoning, no private individual can enjoin such an operation. It has been determined, however, that this section does not operate to bar recovery for damages for trespassory 1205 Copyright Judicial Council of California CACI No. 2000 TRESPASS invasions of another’s property occasioned by the conduct of such manufacturing or commercial use.” (Roberts v. Permanente Corp. (1961) 188 Cal.App.2d 526, 529 [10 Cal.Rptr. 519], internal citations omitted.) “TA]s a matter of law, [plaintiff] cannot state a cause of action against the [defendants] for trespassing on the Secondary Access Easement because they own that land and her easement does not give her a possessory right, not to mention an exclusive possessory right in that property.” (McBride, supra, 18 Cal.App.Sth at p. 1174.) “{A] failure to comply with one or more provisions of the California Uniform Transfers to Minors Act does not render the grantor’s continued possession and control of the real property unlawful for purposes of the tort of trespass to realty.” (Veiseh, supra, 35 Cal.App.Sth at p. 1107.) Secondary Sources 5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 803-805 2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20 (Matthew Bender) 48 California Forms of Pleading and Practice, Ch. 550, Trespass, §§ 550.11, 550.19 (Matthew Bender) 22 California Points and Authorities, Ch. 225, Trespass, § 225.20 (Matthew Bender) 1 California Civil Practice: Torts §§ 18:1, 18:4-18:8, 18:10 (Thomson Reuters) 1206 Copyright Judicial Council of California 2021. Private Nuisance—Essential Factual Elements [Name of plaintiff] claims that [he/she/nonbinary pronoun] suffered harm because [name of defendant] created a nuisance. To establish this claim, [name of plaintiff] must prove all of the following: 1. That [name of plaintiff] [owned/eased/occupied/controlled] the property; 2. That [name of defendant], by acting or failing to act, created a condition or permitted a condition to exist that [insert one or more of the following:] [was harmful to health;] [or] [was indecent or offensive to the senses;] [or] [was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property;] [or] [unlawfully obstructed the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway;] [or] [was [a/an] [fire hazard/specify other potentially dangerous condition] to [name of plaintiff)’s property;] That [[name of defendant]’s conduct in acting or failing to act was [intentional and unreasonable/unintentional, but negligent or reckless}/[the condition that [name of defendant] created or permitted to exist was the result of an abnormally dangerous activity]; That this condition substantially interfered with [name of plaintiff)’s use or enjoyment of [his/her/nonbinary pronoun] land; That an ordinary person would reasonably be annoyed or disturbed by [name of defendant]’s conduct; [6 That [name of plaintiff] did not consent to [name of defendant]’s conduct;] 7. That [name of plaintiff] was harmed; That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff)’s harm; and 9. That the seriousness of the harm outweighs the public benefit of 1225 Copyright Judicial Council of California CACI No. 2021 TRESPASS [name of defendant]’s conduct. New September 2003; Revised February 2007, December 2011, December 2015, June 2016, May 2017, May 2018, May 2019 Directions for Use Private nuisance liability depends on some sort of conduct by the defendant that either directly and unreasonably interferes with the plaintiff's property or creates a condition that does so. (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 100 [253 Cal.Rptr. 470].) Element 2 requires that the defendant have acted to create a condition or allowed a condition to exist by failing to act. The act that causes the interference may be intentional and unreasonable. Or it may be unintentional but caused by negligent or reckless conduct. Or it may result from an abnormally dangerous activity for which there is strict liability. However, if the act is intentional but reasonable, or if it is entirely accidental, there is generally no liability. (Lussier, supra, 206 Cal.App.3d at p. 100.) The intent required is only to do the act that interferes, not an intent to cause harm. (Lussier, supra, 206 Cal.App.3d at pp. 100, 106; see Rest.2d Torts, § 822.) For example, it is sufficient that one intend to chop down a tree; it is not necessary to intend that it fall on a neighbor’s property. If the condition results from an abnormally dangerous activity, it must be one for which there is strict liability. (Lussier, supra, 206 Cal.App.3d at p. 100; see Rest.2d Torts, § 822). There may be an exception to the scienter requirement of element 3 for at least some harm caused by trees. There are cases holding that a property owner is strictly liable for damage caused by tree branches and roots that encroach on neighboring property. (See Lussier, supra, 206 Cal.App.3d at p.106, fn. 5; see also Mattos v. Mattos (1958) 162 Cal.App.2d 41, 43 [328 P.2d 269] [absolute liability of an owner to remove portions of his fallen trees that extend over and upon another’s land]; cf. City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1236 [176 Cal.Rptr.3d 422] [plaintiff must prove negligent maintenance of trees that fell onto plaintiffs property in a windstorm].) Do not give element 3 if the court decides that there is strict liability for damage caused by encroaching or falling trees. There is some uncertainty as to whether lack of consent is an element (element 6) or consent is a defense. Cases clearly list lack of consent with the elements. (See Department of Fish & Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1352 [129 Cal.Rptr.3d 719]; Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548 [87 Cal.Rptr.3d 602].) However, other cases have referred to consent as a defense, albeit in the context of a nuisance action involving parties with interests in the same property. (See Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 341-345, 23 Cal. Rptr. 2d 377; Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1138-1140 [281 Cal.Rptr. 827].) 1226 Copyright Judicial Council of California TRESPASS CACI No. 2021 If the claim is that the defendant failed to abate a nuisance, negligence must be proved. (City of Pasadena, supra, 228 Cal.App.4th at p. 1236.) Element 9 must be supplemented with CACI No. 2022, Private Nuisance—Balancing-Test Factors—Seriousness of Harm and Public Benefit. (See Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 160-165 [184 Cal.Rptr.3d 26].) For instruction on control of property, see CACTI No. 1002, Extent of Control Over Premises Area, in the Premises Liability series. Sources and Authority “Nuisance” Defined. Civil Code section 3479. Acts Done Under Express Authority of Statute. Civil Code section 3482. “A nuisance is considered a ‘public nuisance’ when it ‘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.’ A ‘private nuisance’ is defined to include any nuisance not covered by the definition of a public nuisance, and also includes some public nuisances. ‘In other words, it is possible for a nuisance to be public and, from the perspective of individuals who suffer an interference with their use and enjoyment of land, to be private as well.’ ” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.Sth 248, 261-262 [207 Cal.Rptr.3d 532], internal citations omitted.) “The elements of a public nuisance, under the circumstances of this case, are as follows: (1) the 2007 poisoning obstructed the free use of property, so as to interfere with the comfortable enjoyment of life or property; (2) the 2007 poisoning affected a substantial number of people; (3) an ordinary person would be unreasonably annoyed or disturbed by the 2007 poisoning; (4) the seriousness of the harm occasioned by the 2007 poisoning outweighed its social utility; (5) plaintiffs did not consent to the 2007 poisoning; (6) plaintiffs suffered harm as a result of the 2007 poisoning that was different from the type of harm suffered by the general public; and (7) the 2007 poisoning was a substantial factor in causing plaintiffs’ harm.[{[] The elements of a private nuisance are the same except there is no requirement that plaintiffs prove a subs intial number of people were harmed and plaintiffs suffered harm that was different from that suffered by the general public, but there are additional elements that plaintiffs owned, leased, occupied or controlled real property, that the 2007 poisoning interfered with plaintiffs’ use of their property, and that plaintiffs were harmed thereby” (Department of Fish & Game, supra, 197 Cal.App.4th at p. 1352 [citing this instruction].) “In their first cause of action, plaintiffs allege the 2007 poisoning adversely affected tourism for a substantial period of time, caused plaintiffs to suffer serious losses, obstructed the free use of plaintiffs’ property, and interfered with plaintiffs’ comfortable enjoyment of their property or their busine: . Strictly speaking, this does not state a claim for either public or private nuisance. There is no allegation that plaintiffs did not consent to the 2007 poisoning, that an 1227 Copyright Judicial Council of California CACI No. 2021 TRESPASS ordinary person would have been annoyed or disturbed by the 2007 poisoning, or that the seriousness of the harm caused by the 2007 poisoning outweighed its public benefit.” (Department of Fish & Game, supra, 197 Cal.App.4th at p. 1352.) “In distinction to trespass, liability for nuisance does not require proof of damage to the plaintiff's property; proof of interference with the plaintiff's use and enjoyment of that property is sufficient.” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937 [55 Cal-Rptr.2d 724, 920 P.2d 669].) “(T]he essence of a private nuisance is its interference with the use and enjoyment of land. The activity in issue must ‘disturb or prevent the comfortable enjoyment of property,’ such as smoke from an asphalt mixing plant, noise and odors from the operation of a refreshment stand, or the noise and vibration of machinery.” (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 534 [90 Cal.Rptr.2d 491], internal citations omitted.) “A nuisance is an interference with the interest in the private use and enjoyment of the land and does not require interference with the possession.” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1178 [227 Cal.Rptr.3d 390].) “TT]o proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. The injury, however, need not be different in kind from that suffered by the general public.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041 [29 Cal.Rptr.2d 664], internal citation omitted.) “So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance; . ..” (Mendez, supra, 3 Cal.App.Sth at p. 262.) “The requirements of substantial damage and unreasonableness are not inconsequential. These requirements stem from the law’s recognition that: ‘ “Life in organized society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyanc