Venuto v. Owens-Corning Fiberglas Corp., OWENS-CORNING

• Citation: 22 Cal.App.3d 116,99 Cal.Rptr. 350
• Decision Date: 20 December 1971
• Docket Number: OWENS-CORNING
• Court: California Court of Appeals
• Parties: , 3 ERC 1852 Peter B. VENUTO et al., Plaintiffs and Appellants, v.FIBERGLAS CORPORATION, Defendant and Respondent. Civ. 28102.

Page 350

99 Cal.Rptr. 350

22 Cal.App.3d 116, 3 ERC 1852

Peter B. VENUTO et al., Plaintiffs and Appellants, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant and Respondent.

Civ. 28102.

Court of Appeal, First District, Division 1, California.

Dec. 20, 1971.

Collins, Hays, Stewart, Sanford, Berg & Pott, Inc. by Walter V. Hays, San Jose, for plaintiffs-appellants.

Hoge, Fenton, Jones & Appel, Inc. by Paul J. Ten Doesschate and H. R. Lloyd, Jr., San Jose, for defendant-respondent.

MOLINARI, Presiding Justice.

Plaintiffs appeal from a judgment entered upon the sustaining of a general demurrer without leave to amend to a second amended complaint seeking an injunction and damages for a public nuisance. No claim is made by plaintiffs that had they had another opportunity to amend they would have done so or that they could have stated a cause of action by allegations other than as contained in the second amended complaint.

The instant action is brought by four plaintiffs and the subject complaint purports to state a cause of action on behalf of each plaintiff in two separate counts. Each plaintiff alleges that for at least the past 10 years defendant has used its fiberglass manufacturing plant in the City of Santa Clara in a manner as to constitute a continuing public nuisance in that emissions from its plant contain waste matter which severely pollutes the air in the County of Santa Clara, thereby obstructing the public view of the hills surrounding Santa Clara Valley and injuring the health of the citizens of the county. It is further alleged by each plaintiff that 'The combination of these effects threatens to destroy the comfortable enjoyment of life and property of every person in the County.'

The subject complaint alleges, further, that defendant is under the jurisdiction of the Bay Area Pollution Control District (hereinafter 'the District') and that, although defendant complies with the District's regulations, defendant is employing unnecessary and injurious methods in the operation of its business. It is also alleged that defendant knows of methods which will limit the pollution effect of its emissions 'far more than its present controls, yet deliberately refuses to use such methods.'

Three of the plaintiffs alleged that as a result of the maintenance of the alleged nuisance allergies and respiratory disorders suffered by each of them have been aggravated. The fourth plaintiff alleges that he has been specially injured because his view of the Santa Clara Valley and its hills is obscured by such emissions. In this connection it is alleged that plaintiff's principal purpose in leasing certain premises in a building in San Jose was to obtain an unobstructed view of said valley and hills and that he pays a high rent because of such view.

None of the plaintiffs have pleaded that they have suffered compensatory damages in any specific amount, but plaintiffs jointly pray for punitive damages in the sum of $1,000,000 based upon the allegation that the maintenance of the alleged nuisance by defendant is willful, oppressive and malicious. ¹

The trial court concluded that the complaint was not good as against a general demurrer and, accordingly, sustained the demurrer on the ground that it did not state a cause of action. Having so determined, it did not rule upon the special demurrer asserted against the complaint. Our inquiry, therefore, is whether the complaint states A cause of action. In making this determination we examine the complaint in relation to certain well-defined rules. In Holmes v. City of Oakland, 260 Cal.App.2d 378, 382, 67 Cal.Rptr. 197, 200, we stated these rules as follows: "A demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice' (citations); the material and issuable facts pleaded in the complaint must be regarded as true (citations); a demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the complaint (citations), or facts impossible in law (citations), or allegations contrary to facts of which a court may take judicial knowledge. (Citations.)'

We are also guided by the following basic principle: 'All that is necessary against a general demurrer is that, upon a consideration of all the facts stated, it appears that the plaintiff is entitled to Any judicial relief against the defendant, notwithstanding that the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged. (Citations.)' (Holmes v. City of Oakland, supra, 260 Cal.App.2d 378, 382--383, 67 Cal.Rptr. 197, 200.)

Another important guide is the definition of a cause of action. In Colvig v. RKO General, Inc., 232 Cal.App.2d 56, 65--66, 42 Cal.Rptr. 473, we stated: 'The essence of a cause of action is the existence of a primary right and one violation of that right, i.e., it arises out of an antecedent primary right and corresponding duty, and a breach of such primary right and duty by the person upon whom the duty rests. (Citations.) The primary right and duty and the delict or wrong constitute the cause of action in the legal sense. (Citations.) 'The cause of action is simply the obligation sought to be enforced.' (Citations.)'

A cause of action must be distinguished, however, from the remedy which is simply the means by which the obligation or corresponding duty is effectuated and also from the relief sought. (O'Hagen v. Board of Zoning Adjustment, 19 Cal.App.3d 151, 163, 96 Cal.Rptr. 484; Frost v. Witter, 132 Cal. 421, 426, 64 P. 705; Merlino v. West Coast Macaroni Mfg. Co., 90 Cal.App.2d 106, 115, 202 P.2d 748.)

In the instant case plaintiffs purport to plead a cause of action predicated upon the claim that defendant is conducting and maintaining a business which constitutes a public nuisance. Accordingly, they must allege sufficient facts to show that the operation of defendant's business constitutes a public nuisance. Civil Code section 3479, in pertinent part, defines a nuisance as 'Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, . . .' A public nuisance is defined in Civil Code section 3480 as '. . . one which affects at the same time an entire community or the comfort and convenience siderable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.'

Within the meaning of these statutes plaintiffs have pleaded facts stating a Public nuisance. In essence they plead the pollution of the air as a result of defendant's operation of its business has and is injuring the health of the citizens of Santa Clara County and is and has interfered with the comfortable enjoyment of the life and property of every person in the county. As observed by Prosser, the term 'public nuisance' comprehends an act or omission which interferes with the interests of the community or the comfort and convenience of the general public and includes interference with the public health, comfort and convenience. (Prosser on Torts (3d ed.) pp. 605--606.)

We apprehend that the facts alluded to in the preceding paragraph, which suffice to state acts and conduct embraced within the definition of a public nuisance, would also suffice to state a cause of action if the instant action had been brought by a public body or officer authorized by law since they allege a primary right of the public to enjoy life and property and a corresponding duty in defendant not to use his property so as to interfere with that right.

The remedies against a public nuisance, i.e., the redress for the wrong to the community, are by indictment or information, a civil action, or abatement. (Civ.Code, § 3491.) Adverting specifically to the remedy by way of a civil action, since this is the remedy with which we are here concerned, we apprehend the law of this state to be that such action is ordinarily properly left to the appointed representative of the community and may be maintained by a private person Only if the public nuisance is specially injurious to him. (Civ.Code, § 3493; see Code Civ.Proc., § 731; and see Prosser on Torts (3d ed.) at p. 608.) Section 3493 of the Civil Code specifically provides that 'A private person may maintain an action for a public nuisance, If it is specially injurious to himself, but not otherwise.' (Emphasis added.) The genesis of this rule is found in the common law which recognized that 'the action would lie if the plaintiff could show that he had suffered special damage over and above the ordinary damage caused to the public at large by the nuisance.' (Prosser on Torts (3d ed.) at p. 608.)

In applying the rule articulated in section 3493 to a particular case, cognizance must be taken as to whether the public nuisance alleged is also a private nuisance, since this factor is important in determining how the statute is to be applied. The difference becomes important in view of the fundamental principle that a private nuisance is a civil wrong based on disturbance of rights in land while a public nuisance is not dependent upon a disturbance of rights in land but upon an interference with the rights of the community at large. (Prosser on Torts (3d ed.) at p. 594.)

Where the nuisance alleged is not also a private nuisance as to a private individual he does not have a cause of action on account of a public nuisance unless he alleges facts showing special injury to himself in person or property of a character different In kind from that suffered by the general public. (Ward v. Oakley Co., 125 Cal.App.2d 840, 850, 271 P.2d 536; Donahue v. Stockton Gas, etc., Co., 6 Cal.App. 276, 279--280, 92 P. 196; Wallace v. Mac-Donough Theater Co., 34 Cal.App. 498, 499, ...