HOUSING AUTHORITY CITY AND COUNTY OF SAN FRANCISCO v. AGUILA (1993)

Petitioner, the Housing Authority of the City and County of San Francisco (“Housing Authority”), a public entity providing low-income housing to residents of San Francisco, seeks a writ of mandate to compel respondent superior court to set aside the judgments it entered in favor of the 25 real parties in interest and to enter new judgments in favor of the Housing Authority.   We conclude a peremptory writ should issue, although the claims of three of the real parties must be remanded for a new trial, limited specifically to the issue of a noise nuisance occasioned by a barking dog.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs are current or former residents of a 60–unit apartment building located at 300 Buchanan Street in San Francisco.   The building is directly across the street from the Hayes Valley Apartments, one of the low-income public housing projects operated by the Housing Authority.   Frustrated by crime and violence in their neighborhood, which they attributed to the presence, management and design of the Housing authority project, plaintiffs formed a tenant committee.   Plaintiff Stroll, an attorney, informed his fellow tenants “of what we could do as a group” and later acted as an informal spokesperson for the group in both pre-litigation correspondence and in court.²  (See post, pp. 235–236.)

On March 22, 1990, plaintiffs filed claims in the small claims division of the Municipal Court of the City and County of San Francisco.   Although each plaintiff filed his or her claim individually, the claims were filed as a group on the same day.   Each plaintiff alleged the same basis for recovery—that the Housing Authority was “maintaining a private and public nuisance, and [was] keeping public property in a dangerous condition, at the Hayes Valley Public Housing Development.”   On April 27, 1990, after trial, the small claims court entered individual judgments in favor of each of the 25 plaintiffs in amounts ranging from $250 to $2,000,³ for a total damage award of $25,555.

Following the rendition of the small claims court judgments, the Housing Authority appealed to respondent superior court.  (See former Code Civ.Proc., § 117.8, subd. (b), now § 116.710, subd. (b).) ⁴  On June 8, 1990, the superior court sua sponte ordered the 25 claims consolidated for the purposes of trial de novo.  (See former Code Civ.Proc., § 117.10, now § 116.770, subd. (a).) ⁵  This consolidated trial de novo took place over a three-day period, October 29–31, 1990.   The testimony presented at trial varied considerably from plaintiff to plaintiff, with some plaintiffs testifying they had been victims of crime, some plaintiffs testifying they lived in constant fear of crime, and some plaintiffs testifying they were subjected to excessive noise and garbage on a continuous basis.   We save a more detailed analysis of the testimony for our discussion below.

On November 1, 1990, the day after the trial de novo ended, the superior court entered judgments in favor of each of the 25 plaintiffs.   Each of these judgments was identical in every respect to the judgment previously entered by the small claims court;  none of the judgments indicated the theory on which the superior court awarded damages.   The superior court expressly declined plaintiff Stroll's request that it prepare a statement of decision, noting such a statement was not required in small claims actions.  (See Code Civ.Proc., § 116.770, subd. (b).)

The Housing Authority then applied to the superior court for an order certifying the claims for transfer to this court.  (See Cal.Rules of Court, rule 63(a).) ⁶  After certification was denied, the Housing Authority petitioned this court for a writ of mandate.   We summarily denied the petition.   We summarily denied the petition.   The Housing Authority then petitioned for review in the Supreme Court.   On April 11, 1991, the Supreme Court granted review and directed this court to hear the matter on calendar.   Accordingly, on April 17, 1991, we ordered plaintiffs to show cause why a peremptory writ of mandate should not issue as prayed for in the petition.   The Housing Authority subsequently amended its petition to incorporate the transcript from the superior court trial, and plaintiffs then filed a return to our order to show cause.⁷

II. DISCUSSION

Although the trial court did not issue a statement of decision explaining the basis for its decision, the parties agree plaintiffs' claims falls into two general categories of liability—dangerous condition of public property and nuisance.”   In order to determine whether a tort claim may be maintained against a public entity, the paradigm for analysis ordinarily requires we proceed by first identifying a duty on the part of the entity, then ascertain a statutory basis for liability, and then finally determine whether any statutory immunities are applicable.  (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 723 [230 Cal.Rptr. 823].)”  (Crow v. State of California (1990) 222 Cal.App.3d 192, 203, 271 Cal.Rptr. 349.)   Having no reason to depart from this framework, we first examine whether the Housing Authority owed a duty to plaintiffs under the circumstances of this case.

A. Existence And Scope Of The Housing Authority's Duty Towards Plaintiffs

As might be expected, the claims and testimony of 25 plaintiffs describing the anti-social behavior of numerous unidentified individuals over several months in a heavily populated, low income neighborhood has produced a record which complicates analysis and discussion of the issues involved in this litigation.   The fact-specific individual allegations are many;  they vary with each plaintiff in number, time, place and description of the offending condition or conduct.   Clearly, it is impractical for this court to deal with every allegation made, particularly where there is no demonstrated relevance to the theories of nuisance or dangerous condition of public property.⁸

Following a painstaking review of the record, we discern three general categories of claims relevant to the nuisance and dangerous condition tort theories advanced in the presentation of these small claims actions.   Specifically:  (1) damages resulting from the tortious, often criminal, conduct of third parties:  (2) damages resulting from the collection and placement of garbage from the Housing Authority project;  and (3) damages resulting from noise emanating from or associated with the Housing Authority project.

1. Damages Resulting From The Tortious Conduct Of Third Parties

The vast majority of plaintiff's claims involve damages resulting from the tortious, often criminal, conduct of third parties who bear no relationship to the Housing Authority.   We cite as examples of this claims category the incidents involving eight plaintiffs who were awarded the then statutory maximum of $2,000 in damages.   Plaintiff Levin was mugged at a bus stop;  plaintiff Royce was struck by a pellet;  plaintiff Troy was mugged at a bus stop and in the lobby of the 300 Buchanan Street apartment building;  plaintiff Stagner was struck by a pellet while in the middle of the street;  plaintiff Hall was mugged while in his apartment's garage and again while entering the 300 Buchanan Street apartment building;  plaintiff Edna Gourley was mugged at a bus stop (parenthetically, we note this event took place three years prior to her claim);  plaintiff Walner was mugged in his apartment's garage;  plaintiff Smith was “held up” at the doorway to the 300 Buchanan Street apartment building.

Significantly, none of the above plaintiffs/victims identified a Housing Authority tenant, agent or employee as the perpetrator of the crime.   In fact, our careful review of the record reveals no single instance in which a plaintiff has identified a Housing Authority tenant, agent or employee as the perpetrator of any tortious act against a plaintiff, whether criminal or otherwise.

Nor is there any basis in the record for assuming Housing Authority tenants were responsible for the crime and noise problems which plagued plaintiffs' neighborhood.   To the contrary, in a pre-litigation letter to the executive director of the Housing Authority on behalf of residents of the 300 Buchanan Street apartment building, plaintiff Stroll expressly stated “tenants appear not to be the major source of crime, noise and vandalism.”   His sentiments were echoed in a petition signed by 49 residents of plaintiffs' apartment building, including most of the plaintiffs herein, which stated “we understand that most crime is committed by nontenants against both project tenants as well as neighbors like us.” ⁹

The evidence presented at the superior court trial was in accord.   Plaintiff Kennedy testified “the residents aren't the nuisance that are maintained there.   The people living there have children and so forth, but it's the people who are waiting around the projects for one reason or another, people who have [no] business there, the loiterers.   It's not the residents that are the problem.”   Plaintiff Stroll agreed, concluding his direct testimony with the following caveat:  “I do want to stress that as far as I am concerned, my lawsuit is not directed against the tenants of the project.   I think—as somebody else said—many of the tenants are young women who have children.   They seem to be completely lawabiding and as much victims as I have been, if not much more so.   The problem may not necessarily lie with residents in the project, but with people who use the grounds as a refuge.”   In fact, plaintiffs went so far as to suggest the solution to the crime and noise problems was to install locked gates at every entrance to the Housing Authority project and to post guards at one or two of these entrances to check identification cards issued to Housing Authority tenants, thereby preventing nontenants (the source of the problem) from accessing the project.

The fact that most of plaintiffs' complaints involve the tortious conduct of third parties squarely raises the issue of duty, “The issue whether a duty exists is a question of law to be determined by the court, and is reviewable de novo.  (See, e.g., Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124 [211 Cal.Rptr. 356, 695 P.2d 653].)”  (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 385, 243 Cal.Rptr. 627;  see also Ballard v. Uribe (1986) 41 Cal.3d 564, 572–573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)  “In considering whether one owes another a duty of care, several factors must be weighed including among others:  [T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.   When public agencies are involved, additional elements include the extent of [the agency's] powers, the role imposed upon it by law and the limitations imposed upon it by budget.”   (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806, 205 Cal.Rptr. 842, 685 P.2d 1193 (hereafter Peterson ), citations and internal quotation marks omitted;  see also Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124–125, 211 Cal.Rptr. 356, 695 P.2d 653;  Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 363, 178 Cal.Rptr. 783, 636 P.2d 1121;  Rowland v. Christian (1968), 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561.)

[1] Based on the above authorities, plaintiffs argue “the victim's status as neighbor, invitee, licensee, or trespasser” is no longer relevant in determining whether a duty exists.   This argument misstates California law.”   [A]lthough we no longer adhere to the rigid classifications of duty based on status, plaintiff's status is relevant under certain circumstances to the question of liability.”  (Peterson, supra, 36 Cal.3d at p. 808, fn. 5, 205 Cal.Rptr. 842, 685 P.2d 1193, emphasis added.)   One circumstance in which the status of the plaintiff is relevant in determining whether a duty exists is the circumstance presented in this case—namely, where the plaintiff seeks damages based on the tortious acts of a third party.   As our Supreme Court explained in Peterson, “[a]s a general rule one has no duty to control the conduct of another, and no duty to warn those who may be endangered by such conduct.   A duty may arise, however, where (a) a special relation exists between the [defendant] and the third person which imposes a duty upon the [defendant] to control the third person's conduct, or (b) a special relation exists between the [defendant] and the [plaintiff] which gives the [plaintiff] a right to protection.”  (Id. at p. 806, 205 Cal.Rptr. 842, 685 P.2d 1193, citations and internal quotation marks omitted.)

[2] Undaunted, plaintiffs persist in their assertion “the victim's status in Peterson was not necessary to Peterson's holding.”   We disagree.   In concluding the defendants owed a duty to the plaintiff in that case, the Peterson court held “[u]nder the circumstances of this case, plaintiff, an enrolled student using the parking lot in exchange for a fee, was an invitee to whom the possessor of the premises would ordinarily owe a duty of due care.”  (Peterson, supra, 36 Cal.3d at pp. 808–809, 205 Cal.Rptr. 842, 685 P.2d 1193, emphasis added and footnotes omitted.)   Since Peterson, appellate courts have followed the Supreme Court's lead and have invariably looked to whether a special relationship exists in determining whether a defendant owes a plaintiff a duty to control the tortious conduct of a third party.  (See, e.g., Martinez v. Pacific Bell (1990) 225 Cal.App.3d 1557, 1567–1568, 275 Cal.Rptr. 878;  Crow v. State of California, supra, 222 Cal.App.3d at pp. 207–208, 271 Cal.Rptr. 349;  Yanase v. Automobile Club of So. Cal. (1989) 212 Cal.App.3d 468, 474, 260 Cal.Rptr. 513;  Balard v. Bassman Event Security, Inc. (1989) 210 Cal.App.3d 243, 247, 258 Cal.Rptr. 343;  Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 719, 246 Cal.Rptr. 199;  Gray v. Kircher (1987) 193 Cal.App.3d 1069, 1072–1073, 236 Cal.Rptr. 891;  Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 505–506, 238 Cal.Rptr. 436;  Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 712–713, 230 Cal.Rptr. 828.)   The special relationship requirement is grounded in the general reluctance of the law to impose liability for nonfeasance.  (Crow v. State of California, supra, 222 Cal.App.3d at pp. 207–208, 271 Cal.Rptr. 349.)

[3] In this case, no special relationship exists between plaintiffs and the Housing Authority.   As Justice Peterson aptly explained in Martinez v. Pacific Bell, supra, 225 Cal.App.3d at page 1567, 275 Cal.Rptr. 878, plaintiffs relationship to the Housing Authority “was no different from any other person in the vicinity, whether passerby or neighbor;  no special relationship existed giving rise to a duty.”   Plaintiffs advance no argument to the contrary.   Instead, they merely repeat their assertion “plaintiffs' status should not affect the judgments in their favor,” an argument we have already rejected.¹⁰

[4] Nor is there any special relationship between the third parties engaging in the tortious conduct at issue and the Housing Authority so as to impose a duty on the Housing Authority to control that conduct.   As discussed above, there is simply no evidence tenants of the Housing Authority were the perpetrators of any of the crimes for which plaintiffs sought compensation.¹¹  (See ante, pp. 223–224.)   Likewise, as mentioned above and discussed in greater detail hereafter, the evidence demonstrates Housing Authority tenants were not the source of the noise problem in the neighborhood, with the possible exception of a barking dog.  (See ante, pp. 223–224;  post, pp. 232–236.)

Absent a special relationship, the Housing Authority was under no duty to control the tortious conduct of third parties.   Our holding no duty exists is dispositive of plaintiffs' dangerous condition of public property claims, which seek to hold the Housing Authority liable for the crimes of third parties on the grounds it maintained a dangerous condition on its property that “facilitates crime.” ¹²  It is also dispositive of plaintiffs' nuisance claims to the extent those claims seek to hold the Housing Authority liable for crimes committed by third parties bearing no relationship to the Housing Authority and for noise generated by those third parties.

2. Damages Resulting From Alleged Garbage And Noise Nuisances

Having disposed of plaintiffs' dangerous condition of public property theory in its entirety, we turn next to what remains of plaintiffs' nuisance claims, which fall into two categories—garbage and noise.   Plaintiffs allege the Housing Authority maintained a garbage nuisance by placing garbage in burlap sacks on the streets in front of the project and by permitting garbage to accumulate on and about its premises.   They also allege noise generated by Housing Authority tenants amounts to a nuisance.   To the extent these allegations involve conduct not of the Housing Authority but of its tenants, they again require an analysis of the issue of duty.

[5] Generally, “a landlord is not responsible to other parties for the misconduct or injurious acts of his tenant to whom his estate has been leased for a lawful and proper purpose when there is no nuisance or illegal structure upon it at the time of the leasing.”  (Anderson v. Souza (1952) 38 Cal.2d 825, 831, 243 P.2d 497.)   There are certain recognized exceptions to this general rule, however.   A landlord may be held liable when he “participated in the wrongful act by authorizing or permitting it to be done” (Kalis v. Shattuck (1886) 69 Cal. 593, 600, 11 P. 346), when the lease “contemplated or necessarily involved a nuisance or a wrongful use” (Gould v. Stafford (1891) 91 Cal. 146, 153, 27 P. 543), or when the landlord fails to conduct a reasonable inspection of the premises before renewing a lease (Burroughs v. Ben's Auto Park, Inc. (1945) 27 Cal.2d 449, 453–454, 164 P.2d 897).   Likewise, in the wake of Rowland v. Christian, supra, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, which adopted a more flexible approach to determining the existence or nonexistence of a duty, it is appropriate to impose a duty on a landlord where he has actual notice his tenant is maintaining a nuisance and the opportunity and ability to prevent the tenant from continuing the nuisance by, for example, terminating the tenancy under a provision of the lease.  (Cf. Bisetti v. United Refrigeration Corp. (1985) 174 Cal.App.3d 643, 648–649, 220 Cal.Rptr. 209;  Rosales v. Stewart, supra, 113 Cal.App.3d at pp. 134–135, 169 Cal.Rptr. 660;  Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514, 118 Cal.Rptr. 741.)

Having defined the parameters of the Housing Authority's duty towards plaintiffs as a legal matter, we now turn to the statutory basis for maintaining a nuisance action against a public entity, including the issue of whether plaintiffs have met their burden of proving the existence of one of the above exceptions to the general rule of nonliability as a factual matter.   (See Ballard v. Uribe, supra, 41 Cal.3d at pp. 572–573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624 [drawing a distinction between legal and factual determinations];  Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 507, fn. 6, 238 Cal.Rptr. 436 [same].)

B. Statutory Basis For Plaintiffs' Nuisance Claims

[6] In some states, nuisance law is governed by common law tort principles.   (Prosser, Private Action for Public Nuisance (1966) 52 Va.L.Rev. 997, 1003.)   In California, by contrast, “nuisance law is a creature of statute.”   (Mangini v. Aerojet–General Corp. (1991) 230 Cal.App.3d 1125, 1134, 281 Cal.Rptr. 827.)  Civil Code section 3479 defines a nuisance as “[a]nything 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, or unlawfully obstructs 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.”   Under certain prescribed circumstances, which we discuss in detail below, a private party may bring a civil action against a landowner maintaining a nuisance.  (See Civ.Code, §§ 3491, 3493, 3501.)   In Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 937, 101 Cal.Rptr. 568, 496 P.2d 480, the California Supreme Court held these statutes provide a basis for maintaining nuisance actions against public entities, “conclud[ing] that section 815 of the Government Code does not bar nuisance actions against public entities to the extent such actions are founded on section 3479 of the Civil Code or other statutory provision[s] that may be applicable.” ¹³

At trial plaintiffs asserted the Housing Authority was maintaining a public nuisance.  Civil Code section 3480 defines a public nuisance as “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”   Plaintiffs describe their public nuisance theory as follows:  “In this case, the disturbances emanating from the housing project had all the earmarks of a public nuisance.   The project violated publicly held rights to have a minimal level of civility, security and tranquility in one's neighborhood and to be free from excessive noise, harassment, offensive sights and odors.  [Citation.]  The nuisances were also public in that their effects were widespread and were suffered not only by the 25 [plaintiffs] in this case, but by the entire neighborhood.”   The parties vigorously dispute plaintiffs' standing to maintain such a public nuisance action, and, therefore, we begin our analysis with a discussion of standing.

1. “Special Injury” Requirement Of Civil Code Section 3493

In its petition for a writ of mandate, the Housing Authority argues “as to the existence of noise and uncollected garbage, [plaintiffs] are alleging a public nuisance as to which they have no standing to complain.”   The Housing Authority's argument is based on Civil Code section 3493, which provides “[a] private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.”   In implementing this requirement, courts have generally held “a plaintiff suing on [a public nuisance theory] must show special injury to himself of a character different in kind—not merely in degree—from that suffered by the general public.   [Citation.]”  (Institoris v. City of Los Angeles (1989) 210 Cal.App.3d 10, 20, 258 Cal.Rptr. 418, emphasis in original;  see also Baker v. Burbank–Glendale–Pasadena Airport Authority (1990) 220 Cal.App.3d 1602, 1610, 270 Cal.Rptr. 337.)

The Housing Authority seizes on language in plaintiffs' return to our order to show cause which states “[plaintiffs'] immediate proximity to the housing project exposed them to [the] nuisances ․ to a greater degree than those more remote from the project.”  (Emphasis added.)   According to the Housing Authority, this language demonstrates plaintiffs' failure to satisfy the special injury requirement and, hence, their lack of standing to maintain an action based on a public nuisance theory.   What the Housing Authority ignores is the very next sentence of plaintiffs' return, which states “[plaintiffs] experienced these nuisances in ways that often radically interfered with the quiet enjoyment of their tenancies.”  (Emphasis added.)

[7] California courts have never interpreted the special injury requirement of Civil Code section 3493 so narrowly as to preclude a private right of action when a public nuisance invades a distinct private property right, such as the right to free use and enjoyment of property.   In the seminal case of Fisher v. Zumwalt (1900) 128 Cal. 493, 61 P. 82, for example, the plaintiff and the defendant were neighboring landowners.   The defendant built a creamery on his land, which produced “vile and noxious odors and gases.”  (Id. at p. 495, 61 P. 82.)   When the plaintiff filed a nuisance action, the defendant offered the following defense:  “defendant claims that it is a public nuisance, and that it affects all the people of the neighborhood, and that the nuisance is not especially injurious to plaintiff;  that the damage is not different in kind or character from that suffered by the general public, and that for this reason the plaintiff in his private capacity cannot maintain the action.”   (Ibid.)

The Supreme Court rejected this defense, reasoning as follows:  “There is no doubt that there are many nuisances which may occasion an injury to an individual for which an action will not lie by him in his private capacity, unless he can show special damage to his person or property differing in kind and degree from that which is sustained by other persons who are subjected to similar injury.   Among such may be mentioned the invasion of a common and public right, which everyone may enjoy, such as the use of a highway, or canal, or public landing-place.   But this class of nuisances is confined in most cases to where there has been an invasion of a right which is common to every person in the community, and not to where the wrong has been done to private property, or the private rights of individuals, although many individuals may have been injured in the same manner and by the same means.   In the one case the invasion is of a public right which injures many individuals in the same manner, although it may be in different degrees.   In the other case no public or common right is invaded, but by the one nuisance the private rights and property of many persons are injured.   Because the nuisance affects a great number of persons in the same way, it cannot conclusively be said that it is a public nuisance and nothing more.   The fact that a nuisance is public does not deprive the individual of his action in cases where, as to him, it is private and obstructs the free use and enjoyment of his private property.   [Citations.]”  (Fisher v. Zumwalt, supra, 128 Cal. at p. 495–496, 61 P. 82, emphasis added.)

The court went on explain “ ‘[t]he defense set up is entirely without foundation.   If a man were to sally forth into the public streets of a town and commit an assault and battery upon every person he met, it would hardly be competent for him, in a suit by an individual for special damages, to set up as a defense that he had not only beat the plaintiff, but had also beat the whole town.   Or, if a man was to poison a reservoir of water for the supply of a city, and thereby create a general sickness among the inhabitants, it would not be seriously contended that the magnitude of the offense was a bar to a private action;  or, in other words, that the defendant might exculpate himself by proving that he had not only poisoned the plaintiff, but had poisoned all the inhabitants of the city.’ ”  (Fisher v. Zumwalt, supra, 128 Cal. at p. 499, 61 P. 82, citation omitted.)

[8, 9] The rule enunciated in Fisher v. Zumwalt, supra, 128 Cal. 493, 61 P. 82, is now hornbook nuisance law in California.  “ ‘It is settled that, regardless of whether the occupant of land has sustained physical injury, he may recover damages for the discomfort and annoyance of himself and the members of his family and for mental suffering occasioned by fear for the safety of himself and his family when such discomfort or suffering has been proximately caused by a trespass or a nuisance.  [Citations]’ (Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328, 337 [5 Cal.Rptr. 686, 353 P.2d 294];  Alonso v. Hills (1950) 95 Cal.App.2d 778, 787–788 [214 P.2d 50].)  ‘Damages recoverable in a successful nuisance action for injuries to real property include not only diminution in market value but also damages for annoyance, inconvenience, and discomfort [citation]․’ (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 464 [115 Cal.Rptr. 797, 525 P.2d 701, 76 A.L.R.3d 1223];  Smart v. City of Los Angeles (1980) 112 Cal.App.3d 232, 239–240 [169 Cal.Rptr. 174].)  ‘[M]ental distress caused by the nuisance created and maintained by the defendant is an element of loss of enjoyment.   [Citations.]’  (Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 323 [331 P.2d 1072].)” ¹⁴  (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 287–288, 262 Cal.Rptr. 754.)   It is equally well-established a tenancy for a term or a leasehold is a sufficient interest in property to support a nuisance claim seeking damages for interference with that interest.  (Institoris v. City of Los Angeles, supra, 210 Cal.App.3d at p. 20, 258 Cal.Rptr. 418;  Venuto v. Owens–Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 125, 99 Cal.Rptr. 350.)

On the other hand, we decline to accept plaintiffs' invitation to jettison the special injury requirement altogether in favor of “more contemporary notions of standing,” which would require only “that the plaintiff plead and prove injury-in-fact, proximately caused by defendants' nuisance actions.”   Plaintiffs contend this new standard would reflect “modern concepts of justice and social utility [by] requir[ing] that enterprises fully internalize their costs to maximize resource allocation among competing users.”   There are several problems with this argument.   First, the special injury requirement is a statutory requirement of the California Civil Code passed by the Legislature.   It is fundamental that in the absence of some constitutional infirmity we are not free to abolish legislation based upon our perceptions as to the ultimate wisdom of that legislation.   Second, plaintiffs offer no explanation as to why or how their “resource allocation” model should be applied to the Housing Authority, a public entity operating low-income housing projects on scant resources.   Indeed, this so-called model is nothing more than legal gobbledegook, wholly devoid of substance.   Finally, and perhaps most significantly, the special injury requirement plays an important role in our jurisprudence.

“The reasons for the requirement of particular damage have been stated many times.   The plaintiff did not and could not represent the king, and the vindication of royal rights was properly left to his duly constituted officers.   This is no less true when the rights of the crown have passed to the general public.   Defendants are not to be harassed, and the time of the courts taken up, with complaints about public matters from a multitude who claim to have suffered.”  (Prosser, Private Action for Public Nuisance, supra, 52 Va.L.Rev. 997, 1007.)   Cast in a slightly different light, the purpose of the special injury requirement is to empower the executive and legislative branches of our government to determine which ventures are socially useful without undue interference on the part of the judiciary.

The importance of judicial restraint in this area is well-illustrated by the facts of this case.   It is clear from the evidence presented in the court below that what many of the plaintiffs actually desired was closure of the low-income housing project operated by the Housing Authority.   In the words of one plaintiff, “I think this is the basis of this suit, is that the projects, once they are built, create a zone for the people who live there, a nightmare.   It's integration-proof.   There will never be any integration in the projects.   And violence is a stew inside the project and swarms outside and infects and invades the lives of the people living around the project.  [¶] The question is:  Why do those things exist in the first place?  [¶] And, second is:  If they do exist, why do we have to suffer the violence that pours out of them?”   He later continued “[i]f those projects didn't exist, those conditions and those people would not be running around there chasing us around.”   Likewise, the petition signed by 49 residents of plaintiffs' apartment building prior to the commencement of this litigation stated “[i]n the long term, we want the demolition of the project entirely so it can be turned into a retirement village.”   Whatever the wisdom of public housing may be, if this is plaintiffs' ultimate goal, it must be sought through the executive and legislative branches of our government and not through the judiciary.   Were we to hold otherwise, the courts would soon be filled with the cry “not in my backyard.”

[10, 11] In short, we hold that plaintiffs' claims are governed by the special injury requirement as traditionally formulated.¹⁵  To the extent plaintiffs seek nuisance damages based on interference with the use and enjoyment of their tenancies and/or for diminution in the market value of those tenancies, they have met the standing requirements of Civil Code section 3493.   In this context, they have standing to bring causes of action for both “specially injurious” public nuisance and private nuisance.  (See Venuto v. Owens–Corning Fiberglas Corp., supra, 22 Cal.App.3d at p. 123, 99 Cal.Rptr. 350.)   However, to the extent plaintiffs seek damages based on interference with nonproperty interests, they must demonstrate some other special injury to recover on a public nuisance theory.  (Civ.Code, § 3493.)   A private nuisance theory is unavailable in this context because it requires an interference with property interests.  (See Venuto v. Owens–Corning Fiberglas Corp., supra, 22 Cal.App.3d at pp. 124–125, 99 Cal.Rptr. 350.)   With these principles in mind, we examine plaintiffs' noise and garbage nuisance claims.

2. Noise Nuisance Claims

Plaintiffs assert the Housing Authority was responsible for maintaining a noise nuisance.   As stated above, the evidence indicates tenants of the Housing Authority were not responsible for most of the noise giving rise to plaintiffs' claims and, thus, that noise cannot provide a basis for holding the Housing Authority liable.  (See ante, pp. 223–226.)   However, since a few plaintiffs did present evidence of some noise generated by Housing Authority tenants, we must conduct a further evaluation of the noise nuisance claims.

In conducting our evaluation, we are instructed by the principles set forth in City of San Jose, supra, 12 Cal.3d 447, 115 Cal.Rptr. 797, 525 P.2d 701.   In that case the plaintiffs filed an action against the defendant alleging its airport operations constituted an actionable nuisance.  (Id. at pp. 452–453, 115 Cal.Rptr. 797, 525 P.2d 701.)   The plaintiffs sought class certification as to all real property owners situated in the flight pattern of the airport, which the trial court granted.  (Ibid.) On appeal, the California Supreme Court held the trial court had abused its discretion by certifying the class because the representative plaintiffs had failed to demonstrate a sufficient community of interest between themselves and the absent class members.  (Id. at pp. 458–463, 115 Cal.Rptr. 797, 525 P.2d 701.)

Although the City of San Jose case involved class certification, the Supreme Court's observations in holding there was an insufficient community of interest are particularly apropos to this case:  “[T]he present action for nuisance and inverse condemnation is predicated on facts peculiar to each prospective plaintiff.   An approaching or departing aircraft may or may not give rise to actionable nuisance or inverse condemnation depending on a myriad of individualized evidentiary factors.   While landing or departure may be a fact common to all, liability can be established only after extensive examination of the circumstances surrounding each party.   Development, use, topography, zoning, physical condition, and relative location are among the many important criteria to be considered.   No one factor, not even noise level, will be determinative as to all parcels.

“․

“․ Given the many recognized factors combining to make up the uniqueness of each parcel of land, the number of subclassifications into which the class would be required to be divided to yield any meaningful result would be substantial.   Then, because liability is here predicated on variables like the degree of noise, vapor, and vibration, the problem is compounded by the factors of distance and direction affecting these variables.   The result becomes a statistical permutation, and the requisite number of subclassifications quickly approaches the total number of parcels in the class.   Under such circumstances, there is little or no benefit in maintaining the action as a class.

“Conversely, these uniqueness factors weigh heavily in favor of requiring independent litigation of the liability to each parcel and its owner.   Because liability here is predicated on the impact of certain activities on a particular piece of land, the factors determinative of the close issue of liability are the specific characteristics of that parcel.   The grouping and treating of a number of different parcels together, however, necessarily diminishes the ability to evaluate the merits of each parcel.   The superficial adjudications which class treatment here would entail could deprive either the defendant or the members of the class—or both—of a fair trial.   Reason and the constitutional mandates of due process compel us to deny sanction to such a proceeding.”  (City of San Jose, supra, 12 Cal.3d at pp. 460–462, 115 Cal.Rptr. 797, 525 P.2d 701, footnote omitted and emphasis in original.)

The concerns expressed in City of San Jose are no less important in the context of group small claims actions, such as this case.   Commentators have advocated such actions as a means to “transform[ ] the courts, where litigants often feel powerless, into an arena for community organizing and empowerment,” describing the actions as “another arrow in the quivers of both litigators and social activists.”  (Freeman & Farris, Grassroots Impact Litigation:  Mass Filing of Small Claims (1992) 26 U.S.F.L.Rev. 261, 261, 280.)   But accompanying this new arrow is the danger it will be shot directly into the heart of financially strapped public entities as a form of coercion, a concern that has been amplified by the recent increase in the jurisdictional limit of small claims court from $2,000 to $5,000 per plaintiff.   The dangers of abuse are graphically illustrated by the reaction of the plaintiffs in another group small claims action after losing on appeal:  “The neighbors were exhausted and disappointed after losing the appeal, but were not defeated.   Learning that the airport paid [a private law firm] over $800,000 to defend their suits temporarily elated the neighbors:  ‘By God, we're putting pressure on these bastards.’ ”  (Id. at p. 269, footnote omitted;  see also Kanner, Fining the Victim—Don't Blame Landlords for Crime Even Cops Can't Stop, S.F. Daily Journal (June 26, 1992) p. 4, cols. 3–5.)

Here, as in City of San Jose, the Housing Authority's liability to each of the 25 plaintiffs “depend[s] on a myriad of individualized evidentiary factors.”  (City of San Jose, supra, 12 Cal.3d at p. 461, 115 Cal.Rptr. 797, 525 P.2d 701.)   One of the most important variables is the location of the plaintiff's apartment vis-a-vis the street.   Plaintiff Dan Gourley, whose apartment is on the back side of the apartment building, testified “I hear about a tenth of the stuff that the other folks hear.”   In a similar vein, plaintiffs Hall and Carmody testified they were able to alleviate the noise problems they had suffered by moving from apartments in the front of the building to apartments in the rear.   A related variable is the extent to which the noise complained of interfered with each plaintiff's tenancy.   Compare, for example, the testimony of plaintiff Carmody, who lived at the rear of the building and described a barking dog which “did not disturb me,” to the testimony of plaintiff Stroll, who lived at the front of the building and described a barking dog which was “just an indescribable annoyance” and “a tremendous problem.”   Moreover, unlike in City of San Jose, plaintiffs' claims did not even involve the same type and source of noise.   Plaintiffs complained of a number of different types of noise (barking dogs, alarms, screams, shouting, loud music, horn honking, gunshots, fireworks, fights, and breaking glass), coming from a variety of sources (the street, a public park, cars, the common areas of the Housing Authority project, and the apartments of Housing Authority tenants).   Plaintiff Stroll candidly acknowledged that for the most part he was “unable to tie specific problems to specific individuals in the Housing Authority.”

This case provides a textbook example of the mischief which which inevitably results when the admonitions set forth in City of San Jose are not heeded.   In spite of the evident lack of similarity between plaintiffs' claims, the superior court sua sponte ordered the claims consolidated for the purposes of trial.   As the Supreme Court warned, “[t]he grouping and treating of a number of different [tenancies] together ․ necessarily diminishe[d] the ability [of the superior court] to evaluate the merits of each [tenancy].”  (City of San Jose, supra, 12 Cal.3d at p. 462, 115 Cal.Rptr. 797, 525 P.2d 701.)

[12] By our comments, we do not mean to suggest consolidation is never appropriate in group small claims actions but only that courts trying such actions must always institute precautions to ensure each plaintiff has established his or her entitlement to damages.   Despite its label, $5,000 is not, by any stretch of the imagination, a “small” claim.   It has the potential to bankrupt a modest wage earner or a financially strapped public entity, particularly where, as here, several “small” claims are consolidated to form a huge aggregate claim.  (See, e.g., Power of the Purse, the Recorder (April 13, 1992) p. 2, cols. 3–4 [41 residents living near residential hotel awarded $164,500 in “small claims” damages].)   While we are aware of the relative informality of small claims court hearings (see Sanderson v. Niemann (1941) 17 Cal.2d 563, 110 P.2d 1025;  Code Civil Proc., § 116.110 et seq.) and “[u]rge the trial courts to be innovative” in this area, they cannot be “unmindful of the accompanying dangers of injustice” (City of San Jose, supra, 12 Cal.3d at pp. 458–459, 115 Cal.Rptr. 797, 525 P.2d 701).   Due process demands no less. (id. at p. 462, 115 Cal.Rptr. 797, 525 P.2d 701.)

The superior court in this case failed to institute any procedures to ensure each plaintiff established his or her entitlement to damages.   Instead, the court routinely permitted plaintiffs to testify as to matters well beyond the scope of their claims (see post, p. 237, fn. 24) and as to wholly irrelevant matters lacking any foundation whatsoever (see post, p. 235, fn. 21).   Reviewing the claims of each plaintiff individually, as in this instance we must, it is apparent most of the plaintiffs do not have viable noise nuisance claims.¹⁶

Plaintiffs Levin, Troy, Lockhart, Walner, Koval, Wagner, Briedenbach, Lewis, and Smith offered no testimony as to a noise nuisance and, thus, cannot recover on this basis.

[13] Plaintiff Vallas testified to “constant gunfire” over a one to two-month period and to “excessive noise.”   However, she offered no evidence this noise was generated by Housing Authority tenants or even on the premises of the Housing Authority.   Whatever the extent of the Housing Authority's liability for maintaining a noise nuisance might be, that liability certainly cannot encompass unidentified noise in the neighborhood.  (See ante, pp. 223–226.)   In addition, Vallas failed to indicate whether or how the noise interfered with the use and enjoyment of her tenancy so as to give her standing to maintain a nuisance action.  (See ante, pp. 227–230.)

Plaintiff Meyer described “gunshots” and “screams at all hours of the night” coming from unidentified locations and “noise that comes from the projects.”   Although he did testify to interference with the use and enjoyment of his tenancy—namely, that he had “lost many nights' sleep” and found it “difficult ․ to study at home because of the noise “—Meyer failed to establish the existence of a duty on the part of the Housing Authority in the initial instance.   He offered no evidence any of the noise was generated by Housing Authority tenants, suggesting it may have been generated by “trespassers.”   Nor did he offer any evidence the Housing Authority had actual notice of a noise nuisance on the part of its tenants and the opportunity and ability to prevent the tenants from continuing the nuisance.¹⁷  Under these circumstances, the Housing Authority simply cannot be held liable.  (See ante, pp. 223–226.)

[14] Plaintiff Royce testified to “noise [that] has always been a problem, but something I can put up with” and to “gunshots that are fired at all hours of the night.”   Since he did not identify the source of the noise or any tangible interference with the use and enjoyment of his tenancy, he is not entitled to recover.

Plaintiff Dan Gourley testified to two types of noise—“screams” and “gunshots or fireworks.”   He was unable to identify the source of either, other than to state the screams came, not from the Housing Authority project, but from the street or from a public park.   This public park was adjacent to the 300 Buchanan Street apartment complex and across the street from the Housing Authority project.   Once again, the Housing Authority cannot be held liable for unidentified noise in the neighborhood.

Plaintiff Stagner claimed that over a five-month period “[i]t was like living in Beirut, literally.   There were cherry bombs going off at least every 60—I am not exaggerating—every 60 seconds, sometimes for 24 hours in a row.”   His failure to offer any evidence as to the source of this noise is fatal to his claim.

[15] Plaintiff Hall testified “[s]ince [January 1985] I have had to move to another apartment on the back side because of the noise.”   He did not identify the source of the noise or indicate whether it occurred during the time period covered by his claim.¹⁸  Hall also testified “[t]he fire alarm used to go off and at times it still does go off.   I used to call the housing project to report that.”   He offered no evidence the alarms were false alarms, that they resulted from some malfunction in the alarm system, or that they interfered with the use and enjoyment of his tenancy.   Nor did he offer any evidence the Housing Authority failed to respond promptly to his calls.   In the absence of some affirmative showing of misuse, such as an identifiable tenant regularly setting of false alarms, a fire alarm, functioning as intended, simply cannot give rise to an actionable nuisance claim.

In addition, hall described “a dog barking at the period of time that we are suing for.   Constantly barking day and night.”   The record is unclear as to whether this was the same dog as to which plaintiff Stroll lodged a complaint with the Housing Authority (see post, p. 236) or whether the dog's barking bothered Hall while he was in his apartment.¹⁹  Assuming it was the same dog and that its barking interfered with the use and enjoyment of Hall's tenancy, factual issues we cannot resolve on the record before us, Hall may be entitled to recover.   Accordingly, we remand this aspect of Hall's noise nuisance claim for retrial in accordance with the principles discussed below.  (See post, pp. 236–237.)

Plaintiff Carmody testified “I used to live in the front of the building and specifically requested to be moved to the back of the building because the sound from the project was so loud that I could not sleep.”   Not only did he fail to link this noise to Housing Authority tenants, but he also stated his claim was limited to the period of time he was living at the back of the building.   While living there, he noticed a barking dog but stated “[t]he barking noise did not disturb me ․ but I would hear the noise as I went out.”   Carmody suffered neither the special injury required to maintain a public nuisance action nor the injury to property necessary to support a private nuisance action.

Plaintiff Edna Gourley complained of “ ‘screaming in the park all hours of the night and early morning,’ ” something for which the Housing Authority cannot be held liable.   She also heard the sound of a barking dog coming from the apartment of a Housing Authority tenant who was later murdered.   But, like plaintiff Carmody, she did not live at the front of the building and heard the barking as she exited the apartment building, not while she was in her apartment.   Thus, she lacks standing to maintain a nuisance action.

[16] Plaintiff Berger complained “[t]he noise from the project itself, from the residents shouting down to the cars below, is constant.   It never stops.   All hours of the night.”   He also testified “there was a dog that barked.   It was mentioned yesterday.   It barks constantly.   Since the man was murdered, he was brought out—it was a Sunday morning during the period we are suing for.   The dog was left in a bedroom with the light on all night long and barked constantly.   It never stopped until the man died.   They took the dog away.   It's gone now.”   Berger is the only one of the 25 plaintiffs to complaint of a problem with shouting residents and readily admitted he failed to report any of the noise problems he experienced to the Housing Authority.   In the absence of any evidence the Housing Authority had actual notice of a problem with shouting residents and the opportunity and ability to prevent the problem from continuing, Berger has failed to establish the requisite duty on the part of the Housing Authority.   As to the barking dog, there is evidence the problem was reported to the Housing Authority by plaintiff Stroll.   Thus, we remand this aspect of Berger's noise nuisance claim for retrial in accordance with the principles discussed below.²⁰  (See post, pp. 236–237.)

Plaintiff tucker testified to “a lot of screaming and yelling [and] loud music” coming from the project on “an abnormal number of days out of the week.”   Tucker offered no evidence as to whether or how the noise interfered with his tenancy and admitted he never reported the problem to the Housing Authority.   Nor did he identify Housing Authority tenants as the source of the noise.   Under these circumstances, he cannot recover.

Plaintiff Fishman described “excessive noise that comes from the building in the form of alarms that are left on for hours at a time.   Boom boxes.   People with boom boxes partying directly across from our building.   And the windows actually vibrate in my apartment.”   Fishman did not indicate whether the alarms complained of were fire alarms, burglar alarms, or care alarms or whether the “[p]eople with boom boxes partying” were tenants of the Housing Authority.   Nor did he report any of these problems to the Housing Authority.   Having failed to establish the source of the noise and the Housing Authority's responsibility therefor, he cannot prevail.

Plaintiff Aguila complained “some nights sometimes you will be awakened by noises coming from the project;  and especially on the week of Independence Day, the whole week and sometimes even more, it's continuous fireworks.   And you don't know if it is fireworks or guns and you will be awakened by those firecrackers.”   But, like the other plaintiffs, Aguila failed to identify Housing Authority tenants as the source of the noise and admitted he did not report the noise problem to the Housing Authority.

Plaintiff Waggoner testified “[m]usic was extremely loud at all hours of the night which affected my sleep so badly I had to move my bed into the closet.   That still didn't stop the noise because there is also a window from my closet into the park.   From that window you can see clearly into the park and I could see drug dealings going on.   You could hear gunshots at all hours of the night.  [¶] New Year's Eve of 1990, I was at home.   When the clock struck 12:00, machine gun fire went off.   All kinds of guns went off inside the project.”   He also described hearing screams from a woman being assaulted on the street.   Like the other plaintiffs, Waggoner did not report any of these problems to the Housing Authority.   While Waggoner's testimony demonstrates plaintiffs lived in a noisy and dangerous neighborhood, it graphically illustrates the noise and danger did not emanate from a single source.   Waggoner alone identified three different sources for the noise and crime—a public park, the street, and the project.   Having failed to make any showing the source of the noise was Housing Authority tenants or that the Housing Authority had the opportunity and ability to control what he described as “[j]ust random gunfiring at night,” Waggoner has not stated a viable nuisance claim.

Plaintiff hayes stated “ ‘[n]oise around [the] project is continuous day and night from honking cars, cars playing radios, boom boxes, gunfire fights.’ ”   Like the other plaintiffs, however, she did not identify the source as Housing Authority tenants.   And, like the other plaintiffs, she admitted she had not reported the noise problem to the Housing Authority, insisting “it has been reported by other people in the building.”   Needless to say, she did not identify the person who had made the report.   In fact, there is no evidence any such report had been made.  (See post, pp. 235–236.)

Plaintiff Kennedy described calling the police to report “[t]he screams of rape victims, generally.   Generally I remember loud fighting which you get at 2:00 o'clock in the morning when people have been kicked out of the bars and they go by the projects and they are frustrated when they can't get what they want.   They are frustrated and drunk and [have] no place to go.   And there is a lot of breaking glass, a lot of girl fights.”   While this testimony is quite vivid, its lack of foundation is self-evident.²¹  Moreover, fatal to Kennedy's noise nuisance claim is her admission “[i]t's not the residents that are the problem.”

Plaintiff Stroll was the last plaintiff to testify and indicated “I want to fill in one key evidentiary thing that maybe hasn't been brought out very well․ [The Housing Authority's attorney] has been asking whether the Housing Authority has been notified of these problems.”   Stroll went on to testify he had personally given such notice to the Housing Authority.   However, the notice Stroll gave to the Housing Authority did not include notice of a general noise problem on the part of Housing Authority tenants.   To the contrary, Stroll's pre-litigation letter to the executive director of the Housing Authority expressly stated “tenants appear not to be the major source of crime, noise and vandalism.”   Similarly, Stroll's earlier letter to former San Francisco May Art Agnos, complained of drug and crime problems, not of a noise problem, much less a noise problem on the part of identifiable Housing Authority tenants.

As to his personal complaints involving noise, Stroll testified to hearing a number of different types of noise from a variety of different sources, including “a man standing on the corner of Haight and Buchanan firing a pistol into the air,” “honking that would go on on Buchanan Street that was part of what appeared to be drug transactions.” “[t]he dog to which other witnesses have referred [which] was directly across the street from me in the project,” “firecrackers or gunshots from the project premises,” and “a constant barrage of noise just coming from the general premises of the project.” but Stroll admitted he was “unable to tie specific problems to specific individuals in the Housing Authority with a few exceptions.”   He identified two such exceptions.

First, Stroll stated “[t]here was one apartment that I could see from my—the windows of my apartment from which I—from which drug dealing had to be regularly taking place.   That was one I could look directly across at and it had a constant stream of visitors at all hours of the day and night.   And I believe, as best I can recall, that it was also linked with the horn honking that would go on in the street because people would run back and forth.”   Stroll admitted, however, he never complained to the Housing Authority about this activity.   In the absence of any evidence the Housing Authority had actual notice of the problem and the opportunity and ability to prevent its continuation, the Housing Authority cannot be held liable.  (See ante, pp. 226–227.)

Second, Stroll testified the barking dog was the same dog “to which other witnesses have referred [and] was directly across the street from me in the project.”   Plaintiffs Edna Gourley and Berger identified this dog as a dog belonging to a Housing Authority tenant who was later murdered.   Plaintiffs Hall and Carmody also described barking dogs, but the record is unclear as to whether they were talking about the same dog.

Stroll testified he reported the dog he heard to Housing Authority officials and that these officials attempted to locate the dog.   At this point, there is a conflict in the evidence.   Jim Williams, district manager for the Housing Authority, acknowledged Housing Authority leases prohibit tenants from keeping dogs in their apartments and also acknowledged receiving complaints regarding a barking dog;  however, he stated the Housing Authority investigated and was unable to locate the dog.   Stroll, on the other hand, stated that although he never heard back from Mr. Williams “somebody from the Authority told me that there was nothing that can be done about it because the tenant had the legal right to a dog because he had been a tenant for many years.   And the dog simply could not be removed from the premises.”

Given this conflict in the evidence, we must remand the claims of plaintiffs Stroll, Hall, and Berger for a retrial on the following issues:  (1) whether a tenant of the Housing Authority was maintaining a nuisance by keeping a barking dog in his apartment (see Wilms v. Hand (1951) 101 Cal.App.2d 811, 226 P.2d 728),²² (2) whether plaintiffs have established one of the exceptions to the general rule of nonliability on the part of a landlord for the acts of its tenant (see ante, pp. 226–227), (3) whether the nuisance interfered with the use and enjoyment of plaintiffs' tenancies so as to enable them to maintain a public or a private nuisance action (see ante, pp. 227–230),²³ and (4) if so, the damages to which plaintiffs are entitled.²⁴

3. Garbage Nuisance Claims

Plaintiffs also contend the Housing Authority maintained a nuisance by placing garbage in burlap sacks on the streets in front of the project and by permitting garbage to accumulate on and about its premises.   Plaintiffs Levin, Vallas, Meyer, Royce, Troy, Stagner, Lockhart, Aguila, Briedenbach, Kennedy, and Lewis offered no testimony whatsoever regarding a garbage nuisance and, hence, are not entitled to any recovery on this theory.

[17, 18] As to those plaintiffs who did offer testimony regarding an alleged garbage nuisance, none was able to articulate any interference with his or her tenancy or any other special injury arising from the nuisance.   None of the plaintiffs complained of any odors emanating from the garbage.   None of the plaintiffs complained the garbage impaired their access to their apartments.   Indeed, plaintiffs Hall, Wagner, Hayes, Smith, and Stroll expressly admitted garbage did not impair their access.   And, although plaintiffs Hall, Carmody, Edna Gourley, Walner, and Tucker testified garbage occasionally occupied parking spaces on the public streets, none testified he or she was ever unable to find a parking space because of the garbage.   Even if they had offered such testimony, it would not have provided a basis upon which to distinguish them from the parking public generally.   Thus, assuming the Housing Authority was maintaining a garbage nuisance, an issue we need not and do not decide, plaintiffs have demonstrated neither the special injury required to give them standing to maintain a public nuisance action nor the injury to property necessary to support a private nuisance action.  (See Venuta v. Owens–Corning Fiberglas Corp., supra, 22 Cal.App.3d at pp. 124–125, 99 Cal.Rptr. 350.)

C. Statutory Immunity

The Housing Authority asserts it is statutorily immune from liability to the extent plaintiffs' claims are based upon its alleged failure to provide adequate police protection.  Government Code section 845 provides “[n]either a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.”   The purpose of such immunity is “to protect the budgetary and political decisions which are involved in hiring and deploying a police force.  [Citation.]”  (Peterson, supra, 36 Cal.3d at p. 815, 205 Cal.Rptr. 843, 685 P.2d 1193;  see also Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 792, 221 Cal.Rptr. 840, 710 P.2d 907.)   Police protection immunity provides an alternative basis for many of our holdings above.

[19] Despite their protestations to the contrary, it is clear the alleged failure to provide adequate police protection lies at the heart of most of the plaintiffs' claims.   As plaintiff Stroll explained in his pre-litigation letter to former San Francisco Mayor Art Agnos “[o]ther residents and I have spoken to the police on several occasions.   They say they are understaffed and that police resources have been diverted from our neighborhood to try to control the critical situation in Hunter's Point and Visitation Valley.”   Similarly, the petition signed by most of the plaintiffs states:  “More police protection, patrol, and undercover, is clearly the most obvious, and seemingly the easiest answer.”   These are precisely the types of policy decisions the statute granting police protection immunity is designed to protect.

Apparently recognizing the troubles posed by police protection immunity, plaintiffs attempted to distance themselves from these earlier statements at trial.   In closing argument, Stroll argued “as far as I'm concerned my suit has nothing to do with failure to provide police services.”   In fact, his claims, and the claims of the other plaintiffs, cannot be so easily recast.   This becomes readily apparent when we review the testimony of plaintiffs at trial.   Plaintiff Meyer complained the Housing Authority was “not insuring the safety of their own tenants and people in the neighborhood.”   Plaintiff Dan Gourley, who had lived at the 300 Buchanan Street apartments for 10 or 11 years, specifically correlated rises and falls in the crime rate to police presence.   Plaintiff Aguila explained “I am suing the Housing Authority because I think it's their responsibility to keep peace and order in that area.”   Plaintiff Wagner, when asked why the Housing Authority should be held liable for drug dealing in the public park, responded “I think somebody should be held responsible for it.   It's not safe around there.   You can't go anyplace, really, and expect, you know, I mean, to be secure.”   And, asked why the Housing Authority should be liable for the fact a wheel was stolen off her car by some unidentified third person while it was parked on the public street, plaintiff Kennedy stated “[t]here should be somebody on duty and accessible who makes rounds.”

[20] The immunity granted in section 845 provides yet another ground for our holding the Housing Authority cannot be held liable for the tortious acts of third parties in the neighborhood of its project.²⁵  (See ante, pp. 223–226.)

D. Response To Dissenting Opinion

Before concluding our opinion, we are compelled to respond to certain charges leveled against us in the dissenting opinion.   Among other things, the dissent charges us with “antagonism to the consolidation of small claims actions against public agencies,” with failing to be “solicitous” of the problems “of persons with colorable claims against [public] agencies,” and with being “indifferent both to the facts and the law,” (Dis. opn., post, pp. 243–244, 246.)  “We plead not guilty.”  (Prudential Reinsurance Co. v. Superior Court (1992) 3 Cal.4th 1118, 1142, 14 Cal.Rptr.2d 749, 842 P.2d 48.)

Our dissenting colleague begins his analysis by chastising us for reviewing the evidence on which the judgments in this case were based.   He claims the Housing Authority did not expect us to review the evidence and that “[i]ndubitably” the Supreme Court did not intend us to do so.  (Dis. opn., post, p. 242.)   This is simply wrong.   When we initially denied the petition for a writ of mandate, the reporter's transcript from the superior court trial had not been lodged.   In connection with its petition for review, the Housing Authority lodged a copy of the transcript with the Supreme Court and expressly requested that court to “[a]t a minimum, remand to the Court of Appeal with directions to issue the alternative writ [which] will allow the petitioner to put before the Court of Appeal a transcript that clearly reveals that the awards in this case were made in error.”   The Supreme Court then directed us to issue an alternative writ.

On remand, the Housing Authority amended its petition to incorporate the trial transcript.   Contrary to the dissent's assertion that the Housing Authority's “claim that the action of the trial court went beyond the scope of discretion is not based on an asserted failure of the evidence” (dis. opn., post, p. 242), the Housing Authority's amended petition expressly avers that the superior court abused its discretion by entering the judgments at issue because the evidence presented at trial did not establish its liability.   Indeed, plaintiffs themselves have asked us to review the evidence presented at trial, requesting that we file and consider the transcript lodged by the Housing Authority, which they cite extensively throughout their brief.   Certainly, the Supreme Court did not intend, nor do the parties expect, that we address the important legal issues presented in this case in a factual vacuum.

Only our dissenting colleague advocates that we ignore the evidence in this case.   The reason is clear.   The evidence simply does not support the legal conclusions reached by the dissent.   Accordingly, the dissent relies on broad, unsubstantiated generalizations regarding the evidence, such as the “typical testimony” of “virtually every plaintiff.”  (E.g., dis. opn., post, p. 242.)   The dissent then uses these generalizations to reach incorrect conclusions of law.   For example, the dissent argues City of San Jose, supra, 12 Cal.3d 447, 115 Cal.Rptr. 797, 525 P.2d 701, is inapposite because “the community of interest among the plaintiffs in this case is virtually indisputable.”  (Dis. opn., post, p. 244.)   To the contrary, it is undeniable that the alleged nuisances at issue affected each of the plaintiffs quite differently.  (See ante, pp. 232–236.)   Likewise, the dissent makes the unsubstantiated assertion that “few if any San Franciscans are continuously subjected to the level of ․ constant noise plaintiffs must daily endure” to reach the erroneous conclusion plaintiffs as a group satisfied the special injury requirement of nuisance law.  (Dis. opn., post, p. 243, fn. 2, emphasis in original.)   As discussed above, the extent to which the alleged noise nuisances interfered with the use and enjoyment of each plaintiff's tenancy varied considerably from plaintiff to plaintiff.  (See ante, pp. 232–236.) ²⁶

Apparently recognizing the gaping holes in the evidence, the dissent retreats to the position “[p]laintiffs' failure to name the individuals who torment them is unimportant ․ because the Housing Authority ․ never denied that its tenants committed the type of dangerous acts that injured plaintiffs.”  (Dis. opn., post, p. 252;  see also dis. opn., post, pp. 243, 250–251.)   This statement manifests a fundamental misunderstanding of the burden of proof at a trial.   It was plaintiffs' burden to establish tenants of the Housing Authority were somehow responsible for their injuries and not vice versa.   Plaintiffs failed to carry this burden.  (See ante, pp. 223–226.)

The dissent also misinterprets the Supreme Court's decision in Peterson, supra, 36 Cal.3d 799, 205 Cal.Rptr. 842, 685 P.2d 1193.   According to our dissenting colleague, the special relationship between the plaintiff and the defendant was not “[t]he ultimate reason liability was imposed in Peterson.”  (Dis. opn., post, p. 249.)   He reaches this conclusion only by quoting select passages from Peterson out of context.   For instance, the dissent quotes the following sentence from Peterson:  “ ‘[l]iability will normally be imposed in circumstances where the possessor has reasonable cause to anticipate the misconduct of third persons.  [Citations.]’ ”  (Dis. opn., post, p. 249, emphasis omitted, quoting Peterson, supra, 36 Cal.3d at p. 807, 205 Cal.Rptr. 842, 685 P.2d 1193.)   What the dissent fails to acknowledge is the premise underling the paragraph in which this sentence appears—namely, that the plaintiff was a business invitee of the possessor of the land.  (See Peterson, supra, 36 Cal.3d at p. 807, 205 Cal.Rptr. 842, 685 P.2d 1193.)   Contrary to the dissent's assertion, the plaintiff's status in Peterson was an essential ingredient of its holding.  (See ante, pp. 224–225.) ²⁷

The dissent's conclusion a special relationship exists is similarly mistaken.   In reaching this conclusion, our dissenting colleague relies on the same unsubstantiated factual generalizations which permeate the entire dissenting opinion.   He claims “the noise that made it impossible for plaintiffs to sleep emanated from the housing project” and “most of the dangerous activities in this case ․ took place entirely on premises owned and controlled by the Housing Authority.”  (Dis. opn., post, p. 250 & fn. 6.) Neither of these generalizations is supported by the record in this case.  (See ante, pp. 223–232–236.)

The dissent attributes our decision to “antagonism” to the mass filing and consolidation of small claims actions and contends that it “invites” the routine reweighing of evidence in such actions by the courts of appeal.  (Dis. opn., post, pp. 241, 243–246.)   Not so.   We have simply held that consolidation in small claims actions must be accompanied by sufficient procedural safeguards to ensure each plaintiff establishes his or her entitlement to damages.  (See ante, pp. 232.)   Unlike the dissent, we do not view the “relaxed procedures” employed in small claims actions (dis. opn., post, p. 246) as a springboard for abandoning fundamental requirements of due process.

III. DISPOSITION

[21] “Although this court does not ordinarily interfere in matters arising in the small claims court, there is precedent for intervention in extraordinary situations requiring review of important issues (Davis v. Superior Court (1980) 102 Cal.App.3d 164, 168 [162 Cal.Rptr. 167].”  (Clark v. Superior Court (1980) 113 Cal.App.3d 865, 867, 169 Cal.Rptr. 898.)   This is such a case.  “The Supreme Court's order directing that an alternative writ be issued constitutes a determination that, in the ordinary course of the law, the petitioner is without an adequate remedy.  (Payne v. Superior Court (1976) 17 Cal.3d 908, 925 [132 Cal.Rptr. 405, 553 P.2d 565].)”  (Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1274–1275, 258 Cal.Rptr. 66.)   It also constitutes a determination that the issues raised herein are sufficiently important to warrant review by way of extraordinary writ.²⁸

As to plaintiffs Stroll, Berger, and Hall, let a peremptory writ of mandate issue directing respondent superior court to vacate the judgments rendered after trial de novo on appeal and to remand their claims to the small claims court for a new trial in accordance with the directions set forth in this opinion.   As to the remaining plaintiffs, let a peremptory writ of mandate issue directing respondent superior court to set aside the judgments rendered after trial de novo on appeal and to enter judgments for the Housing Authority.   Each paty to bear its own costs herein.  (Cal.Rules of Court, rule 26(a).)

The granting of a peremptory writ in this case results not simply from an erroneous legal conclusion—that the Housing Authority has no legal duty to protect plaintiffs—but as well from the imposition of evidentiary standards inconsistent with the most fundamental premise of the Small Claims Act. I address this latter issue first, as it affects the majority's entire opinion.

I.

As will be seen, I believe that the evidence in this case amply supports the judgments.   I also believe, however, that we have no right even to inquire into the sufficiency of the evidence.   The majority's criticism of the evidence and the trial court's procedures reflects a basic misunderstanding of the law relating to the small claims process.

A.

As the majority acknowledges, the Court of Appeal “does not ordinarily interfere in matters arising in the small claims court,” but does so only “in extraordinary situations requiring review of important issues.”  (Clark v. Superior Court (1980) 113 Cal.App.3d 865, 867, 169 Cal.Rptr. 898, citing Davis v. Superior Court (1980) 102 Cal.App.3d 164, 168, 162 Cal.Rptr. 167, italics added;  see also rule 63(a), Cal.Rules of Court [authorizing certification of a municipal court case to the Court of Appeal only when it “appears necessary to secure uniformity of decision or to settle important questions of law.”] )   The alleged inadequacy of the evidence received by a small claims court to support its judgment cannot conceivably present the “extraordinary situation” or “important question of law” warranting court of appeal intervention.   If it did, the statutory provision that the judgment of the superior court in a small claims case shall be “final and not appealable” would be meaningless.  (See Adamson v. Superior Court (1980) 113 Cal.App.3d 505, 169 Cal.Rptr. 866;  Eloby v. Superior Court (1978) 78 Cal.App.3d 972, 144 Cal.Rptr. 597.)   The rule of finality accepts the possibility that occasional judicial mistakes will be uncorrectable.  (See Parada v. Small Claims Court (1977) 70 Cal.App.3d 766, 769, 139 Cal.Rptr. 87.)

The inappropriateness of appellate review of the sufficiency of the evidence relates to the very nature of the small claims process.   It cannot be too strongly emphasized that the taking of evidence in a small claims case is markedly different from the process that normally prevails at civil trials.”   The rules of evidence are not observed, and ordinary trial procedure is equally inappropriate.”  (1 Witkin, Cal.Evidence (3d ed.1986), Introduction, § 45, p. 41.)   The Small Claims Act specifically authorizes the presentation of evidence outside the hearing (Code of Civ.Proc., § 116.520, subd. (a)) and even permits the court to “consult witnesses informally and otherwise investigate the controversy with or without notice to the parties.”  (Code of Civ.Proc., § 116.520, subd. (c).)  The extraordinarily relaxed procedures—more like those of a rabbinical than a superior court—apply not only at the original hearing in the small claims court, but at the de novo hearing that takes place in the superior court when the defendant appeals.  (Code of Civ.Proc., § 116.770, subd. (c).)

The informality of small claims proceedings would almost certainly be lost if the possibility existed that a court of appeal might reweigh the evidence a third time, according it the type of review heretofore reserved for conventional civil cases.   In that event, many litigants, particularly corporations, government agencies and wealthy individuals, would insist on a transcript and employ counsel likely to introduce the intimidating formalities the Small Claims Act was designed to avoid.   By accepting and relying upon the transcript of the hearing provided by the Housing Authority—the very existence of which is unusual—and by questioning the sufficiency of the evidence, the majority invites this problem.

Moreover, there can be no assurance that the transcript of the hearing contains all of the evidence properly considered by the trial court.   As noted, the Small Claims Act authorizes the court to engage in an ex parte investigation of the controversy without notice to the parties.  (Code of Civ.Proc., § 116.520, subd. (c).)  Thus, in this case the trial judge may have visited the environs of the project or discussed the issues in the cases with persons he thought might assist him in reaching a just result, as appears to have been done by the judge of the small claims court during the original proceedings.

Because of absence of findings and because the record of a small claims case can never be assumed to be complete, appellate review of a small claims case, whether upon certification (rule 63(a), Cal.Rules of Court) or writ, must be deemed the functional equivalent of a judgment roll appeal.   In such appeals “the evidence is conclusively presumed to support the judgment.”  (9 Witkin, Cal.Procedure (3d ed.   1985) Appeal, § 273, pp. 283–284 and cases there cited.)

Such a presumption would not unduly prejudice the Housing Authority, which presumably anticipated that this court and the Supreme Court would consider only the legal rather than factual contentions that are at the heart of its petition.   Its claim that the action of the trial court went beyond the scope of discretion is not based on an asserted failure of the evidence but on the theory that the trial court transgressed the confines of certain allegedly applicable legal principles.¹  (See City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1298, 255 Cal.Rptr. 704.)   Indubitably, it was these purely legal issues, which are of statewide significance, not the strength or weakness of the evidence in this particular case, that induced the Supreme Court to direct us to issue and alternative writ.

B.

My view that we should not inquire into the sufficiency of the evidence should not be thought to reflect a belief that it is insufficient.   The evidence in this case would be adequate to support the judgments even if the issue was properly before us and even if we could confidently assume that the record was complete.

The testimony of the unrepresented plaintiffs very effectively described the harm suffered as a result of activities clearly associated with the housing project.   The testimony chronicles a modern-day Dante's Inferno.

Shots from the project were fired through the windows of some plaintiffs' apartments, and portions of the facade of the building are riddled with bullet holes.   Several plaintiffs and guests of residents of the building were shot with pellet guns by persons standing on project stairwells, others were assaulted, robbed and raped in front of their building or in its lobby by persons who escaped into the “maze-like” structures of the project, where they invariably obtained “sanctuary.”   Many of the lights illuminating common areas of the project were “broken out” a year earlier and were not replaced.   Plaintiffs and other residents were injured on the sidewalk in front of their building by broken glass from empty bottles hurled from the project.   Garbage from the projects sat in open bags on the street in front of plaintiffs' building, where it obstructed parking.   Plaintiffs had to listen—“at all times of the night and day “—to the noise of gunshots, fights, loud radios, barking dogs, the screams of persons being mugged or raped and the incessant honking of drivers summoning dealers out of the project for drug transactions.

Long-term residents testified that they asked the Housing Authority “time and again to do something about the [crime] pattern,” the noise and the garbage but were simply told to call the police.   In typical testimony, one plaintiff stated that “my mental state about the whole neighborhood has really gone downhill.   And it's because the projects across the street are not managed and screened.   It's not the neighborhood.   It's the project across the street that causes the problem.   It's unsupervised and not managed.”

Although, as indicated, several plaintiffs were assaulted or otherwise physically injured by acts that took place adjacent to the project by unidentified persons who then escaped into the project, virtually every plaintiff suffered at least some injuries caused by acts that took place entirely on project premises;  such injuries resulted from the shooting of firearms or pellet guns, the hurling of glass bottles, the “constant noise,” and the placement of garbage on the street, which obstructed parking in front of plaintiffs' building.

Steven E. Lutes, a “principal analyst” for the Planning and Research Division of the San Francisco Police Department, described a statistical study indicating that a person within the one-half square mile surrounding the project is between five and six times more likely than others in San Francisco to be the victim of a robbery, assault, purse snatch and auto burglary.   Mr. Lutes stated that most of the crimes in this area “occur on the streets either immediately surrounding the project area or ․ somewhat further removed.” ²

If this court is going to subject the evidence in this small claims case to substantial evidence review sua sponte, it ought at the very least grant the judgment below the conventional benefit of any evidentiary doubt.   It has heretofore been an article of faith among the appellate courts of this state that “[i]n reviewing the evidence on ․ appeal all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible.”  (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183;  Alderson v. Alderson (1986) 180 Cal.App.3d 450, 465, 225 Cal.Rptr. 610.)   The majority does the opposite, unjustifiably resolving all evidentiary doubts against the judgment.   For example, the majority says there is no “basis in the record for assuming Housing Authority tenants were responsible for crime and noise problems.”  (Maj. opn. at p. 223.)   This is simply not so.   Among other things, there was undisputed testimony that plaintiffs were awakened from sleep nightly by the honking of horns of drivers attempting to attract the attention of drug dealers that lived in the project.   Moreover, the Housing Authority did not deny that its tenants were responsible for acts that injured plaintiffs;  its position, discussed later (post, at pp. 250–252), was that it could not control these tenants.

C.

The evidentiary gauntlet to which these consolidated cases have inappropriately been subjected results in some measure from the majority's antagonism to the consolidation of small claims actions against public agencies.   Fearing such actions will provide a new arrow in the quiver of “social activists,” the majority thinks “it will be shot directly into the heart of financially strapped public entities as a form of coercion․” (Maj. opn., at p. 231.)   According to the majority, “$5,000 is not, by any stretch of the imagination, a ‘small’ claim.   It has the potential to bankrupt a modest wage earner or a financially strapped public entity, particularly where, as here, several ‘small’ claims are consolidated to form a huge aggregate claim.”  (Id., at p. 232.) ³

These contentions—which have no basis whatsoever in the record of this case or in any reliable empirical evidence and are not being advanced by the Housing Authority—should be addressed to the Legislature;  they cannot be reconciled with the plain language of the Small Claims Act and the judicial interpretation and application of that Act. Moreover, consolidation did not expose the Housing Authority to a greater amount of damages than that to which it would otherwise have been exposed;  it simply permitted it to respond more expeditiously to the claims that would have been made in any event, and to do so at lesser expense.   Finally, we mus be solicitous not only of the problems of public agencies but those of persons with colorable claims against such agencies.   It is noteworthy, in this regard, that the successful plaintiffs in Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329, who commenced their nuisance action against the city in the superior court rather than the small claims court, had to wait 13 years to recover on their judgment and pay attorney fees of $200,000.   (Freeman & Farris, Grassroots Impact Litigation;  Mass Filing of Small Claims (1992) 26 U.S.F.L.Rev. 261, 264.)

The majority's theory that consolidation was inappropriate in this case because of “the evident lack of similarity between plaintiffs' claims” (maj. opn., at pp. 231–232) finds no support in City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 115 Cal.Rptr. 797, 525 P.2d 701, the sole case the majority relies upon.  City of San Jose was commenced as a class action against an airport seeking recovery for diminution in the value of numerous different properties caused by aircraft noise, vapor, dust and vibration on theories of inverse condemnation and nuisance.   The court vacated the order certifying the action as a class suit, first, because there was an insufficient community of interest and, second, because the plaintiffs did not adequately represent all members of the class.  City of San Jose is not only factually distinguishable but legally irrelevant.

The members of the class in City of San Jose owned properties that were extremely diverse and spread out over a large region.  “Within the region are industrial plants, public buildings, body shops, warehouses, gas stations, office buildings, multi-unit apartments, single family residences, and vacant land—some being farmed.   The region is bisected by a major thoroughfare and bounded by a highway.   Finally, a railroad right-of-way passes through a portion of the proposed region.”  (Id., at p. 461, 115 Cal.Rptr. 797, 525 P.2d 701.)   It is hard to imagine a more different situation from that involved in this case.   In stark contrast, the community of interest among the plaintiffs in this case is virtually indisputable, as all plaintiffs reside in the same building, which is immediately adjacent to the premises in question.

City of San Jose is, in any event, inapposite, because the propriety of class certification (Code Civ.Proc., § 382), turns primarily on whether the named plaintiffs can adequately represent others in the class (Salton City etc.   Owners Assn. v. M. Penn Phillips Co. (1977) 75 Cal.App.3d 184, 189, 141 Cal.Rptr. 895), an issue not presented in connection with consolidation.   Consolidation of “actions involving a common question of law or fact” (Code of Civ.Proc., § 1048, subd. (a), italics added) is authorized where a joint hearing or trial “may tend to avoid unnecessary costs or delay.”  (Ibid.) It may take one of two forms.   The first, which was not used here, is referred to as “complete consolidation;” it results in a single action, in which the pleadings are regarded as combined and there is but a single set of findings and judgment.  (4 Witkin, Cal.Procedure, supra, Pleading, § 298, p. 351.)   The second and more common form, which was utilized in this case, is the consolidation of separate actions for trial, “in which the pleadings, verdicts, findings and judgments are kept separate, so that the actions remain distinct in form and disposition, but are tried together.   This is allowable under a broad statutory authorization where, though the parties are not identical or the causes could not have been joined, there are basic issues common to the actions.  [Citations.]”  (Id., at pp. 351–352.)

Consolidation of the present actions would be far beyond appellate reproach even if the Housing Authority were now objecting, as it is not.   The exercise of trial court discretion with respect to consolidation is exceptionally broad and “will not be reviewed except in a case of palpable abuse.”  (Realty etc.   Mtg. Co. v. Superior Court (1913) 165 Cal. 543, 547, 132 P. 1048;  Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 867, 245 P.2d 608;  Carpenson v. Najarian (1967) 254 Cal.App.2d 856, 862, 62 Cal.Rptr. 687.)   Because the circumstances calling for consolidation are so variable and there is no workable test, it has been said that “[t]he discretion of the trial judge, either in granting or denying, is almost invariably upheld.  [Citations.]”  (4 Witkin, Cal.Procedure, supra, Pleading, § 302, pp. 353–354.)

It was much less costly and less time-consuming for the Housing Authority to defend itself in a single proceeding than it would have been in separate proceedings against 25 plaintiffs presenting similar claims and virtually identical legal questions.

D.

Language in the majority opinion suggests my colleagues are as concerned about the mass filing of small claims against a public entity as they are about the consolidation of such claims.   This use of the small claims court has been decisively upheld, however.

In City and County of San Francisco v. Small Claims Court (1983) 141 Cal.App.3d 470, 190 Cal.Rptr. 340, one hundred seventy plaintiffs filed claims in small claims court against the City and County as the owner of San Francisco International Airport, alleging that noise from the airport constituted a continuing nuisance causing damages in the then-jurisdictional limit of the small claims court.   The cases were consolidated, judgment was entered in behalf of 116 plaintiffs, and defendant appealed.   The same plaintiffs then filed another 183 claims, and the defendant sought prohibition in the superior court, to restrain the small claims court from hearing or deciding then pending nuisance actions or any similar actions arising from the same subject matter.   The theory of the petition was that the small claims court does not have jurisdiction to decide “complex cases” filed in “waves” of “mass claims” against a public entity.  (Id., at p. 473, 190 Cal.Rptr. 340.)   The superior court rejected this theory, as did the Court of Appeal.   Focussing on the phrase “individual minor civil disputes” that appears in the provision of the Small Claims Act expressing the legislative intent (Code of Civ.Proc., § 116.120), another division of this court unanimously concluded that the word “minor” “refers to the financial value of the claim to the individual plaintiff” (id., at p. 474, 190 Cal.Rptr. 340), not to the defendant.   In response to San Francisco's complaint that its ultimate liability might exceed $135,000, the court pointed out that “[i]t is well settled that the jurisdictional amount limitations apply to each plaintiff's individual claim, so that in a consolidated action the fact that the aggregate amount of the claims is greater does not create a jurisdictional defect.  [Citation.]”  (Id., at p. 477, 190 Cal.Rptr. 340.)   The court also pointed out that thought “airport nuisance cases ․ are indeed relatively complex compared to many matters heard in small claims court,” they could not be thrown out for that reason.  (Id., at p. 475, 190 Cal.Rptr. 340.)

City and County of San Francisco points out that the plaintiff that invokes the relaxed procedures of the small claims court elects to accept its limitations and must accept the court's decision as final.  (Code of Civ.Proc., § 116.710.) The defendant, on the other hand, has the right to appeal to the superior court for a trial de novo.  (Ibid.) The court also observed that “if there is no appeal from the small claims court's judgment, the parties are protected against any inappropriate extension of that decision, since issues resolved in that court may not operate as an estoppel in a later action.”  (141 Cal.App.3d at p. 476, 190 Cal.Rptr. 340, citing Sanderson v. Niemann (1941) 17 Cal.2d 563, 110 P.2d 1025.)

Unlike the Housing Authority in the present case, the public entity in City and County of San Francisco did raise the social policy issues my colleagues have raised on their own, claiming that the “ ‘broad social policy impact’ of the airport nuisance cases also makes them inappropriate for an initial resolution in small claims court.”  (Id., 141 Cal.App.3d at p. 476, 190 Cal.Rptr. 340.) the court rejected this view, stating that “[i]n view of the Legislature's explicit recognition that small claims cases have ‘significant social and economic consequence collectively’ [Code of Civ.Proc., § 116.120, subd. (a) ] this cannot be the basis for a jurisdictional challenge.   Indeed the Supreme Court in City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 532 [183 Cal.Rptr. 86, 645 P.2d 137] ․ (holding that municipalities may not sue for malicious prosecution) said that filing suit against a governmental entity is an aspect of the constitutional right to petition for the redress of grievances.   In addition, ‘the right encompasses the act of filing a lawsuit solely to obtain monetary compensation for individualized wrongs, as well as filing suit to draw attention to issues of broader public interest or political significance.’  (Id., at p. 534 [183 Cal.Rptr. 86, 645 P.2d 137], italics added by the court in city and County of San Francisco.)   The right to access to the courts which the Supreme Court emphatically defends in Bozek (id., at p. 533 [183 Cal.Rptr. 86, 645 P.2d 137] ) includes the right of access to small claims courts.”  (141 Cal.App.3d at pp. 476–477, 190 Cal.Rptr. 340, italics added.)

The views expressed in City and County of San Francisco, which were properly raised in that case and well considered by the court, simply cannot be reconciled with the views expressed by the majority in the present case.

Our resolution of this case should not be based upon a reweighing of the evidence or concerns about misuse of the small claims process;  we should concern ourselves only with the legal issues presented, to which I now turn.

II.

The Housing Authority's chief legal contention, with which the majority agrees, is that it cannot be found negligent because it has no “special relationship” with plaintiffs.   According to the Housing Authority, its duty to keep its premises free of dangerous activities “extends only to those whom it has invited to the property, or who must use the property.”   This argument is indifferent both to the facts and the law.

A.

The seminal case on the question whether a possessor of land has a duty to another remains Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561.   After Rowland, the question whether a landlord has such a duty cannot be separated from the question whether he acted reasonably to protect another person.  Rowland stands for the principle that the “proper test” of the liability of the possessor of land “is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the [foregoing] facts giving rise to such status have some bearing on the question of liability, the status is not determinative.”  (Id., at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561.)   Whether a landowner exercised reasonable care in the circumstances depends upon “the balancing of a number of considerations;  the major ones are [1] the foreseeability of harm to the plaintiff, [2] the degree of certainty that the plaintiff suffered injury, [3] the closeness of the connection between the defendant's conduct and the injury suffered, [4] the moral blame attached to the defendant's conduct, [5] the policy of preventing future harm, [6] the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and [7] the availability, cost, and prevalence of insurance for the risk involved.”   (Rowland v. Christian, supra, 69 Cal.2d at pp. 112–113, 70 Cal.Rptr. 97, 443 P.2d 561.)

Foreseeability is clearly the most important of the various considerations identified in Rowland as bearing upon the existence of a duty.   (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 712, 230 Cal.Rptr. 823;  Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 307–308, 191 Cal.Rptr. 704.)   The “general principle” is that a defendant owes a duty of care “to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.”  (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399, 115 Cal.Rptr. 765, 525 P.2d 669.)

The evidence is clearly sufficient to support a finding that the harm plaintiffs suffered was foreseeable.   They live immediately adjacent to the project and there was abundant evidence of prior similar injuries over a relatively long period of time, which is strongly indicative of foreseeability.  (Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d 112, 129–130, 211 Cal.Rptr. 356, 695 P.2d 653.)   Moreover, responsible Housing Authority officials acknowledged actual notice that criminal or careless acts on project premises resulted in harm to residents of the building in which plaintiffs resided.   In any case, “[i]t is well established that foreseeability is ordinarily a question of fact.  [Citations.]  ‘It may be decided as a question of law only if, “under the undisputed facts there is no room for a reasonable difference of opinion.”  [Citations.]’ ”  (Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at p. 126, 211 Cal.Rptr. 356, 695 P.2d 653, quoting Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 56, 192 Cal.Rptr. 857, 665 P.2d 947.)   This is clearly not such a case.

Just as the evidence amply supports the trial court's implied findings of foreseeability, so too does it show that plaintiffs suffered injury and the connection between their injuries and the conduct of the Housing Authority.   At the very least, these and the other Rowland issues present questions of fact, not of law.   The inferences and conclusions we must deem the court to have drawn from the evidence do not exceed the legal bounds of the court's discretion.

The Housing Authority's duty to plaintiffs is not vitiated as a matter of law, as the Housing Authority claims, by the fact that plaintiffs were not invitees, and indeed were injured off the premises, or by the fact that their injuries were inflicted by third persons.  Rowland stresses that status as an invitee is not determinative.  (Rowland v. Christian, supra, 69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561.)   Moreover, the standard jury instruction adopted in the wake of that opinion, set forth in its entirety in the margin below,⁴ permits the jury to be told that the landowner's duty to exercise ordinary care in the management of his property to avoid exposing persons to an unreasonable risk of harm “exists even when the unreasonable risk of harm is caused by the criminal conduct of a third person which, in the exercise of reasonable care, is or should be foreseeable” or where the owner “maintains the property in such a way as to increase the risk of criminal activity.”  (BAJI No. 8.00.)   This instruction reflects repeated declarations of the California Supreme Court that “[i]t is of no consequence that the injury to plaintiffs was brought about the criminal act of a third person.  ‘If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act, whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.’ ”  (Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d 112, 131, 211 Cal.Rptr. 356, 695 P.2d 653, accord Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, 58, 192 Cal.Rptr. 857, 665 P.2d 947;  Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 47, 123 Cal.Rptr. 468, 539 P.2d 36.)   The Restatement takes the same position, stating that if the location of the premises, “or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, [a landlord] may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.”  (Rest.2d Torts, § 344, com. f.)

In cases such as this involving the dangerous acts of third persons, California juries are also instructed that the landowner's duty is not confined to persons on the owner's premises, but is also owed “to persons off the premises.”  (BAJI No. 8.00.)   The rationale for this instruction is that where “the foreseeable harm to others from a landlord's failure to exclude a predictably dangerous tenant extends beyond the physical boundaries of the landlord's property, the resulting liability imposed on the landlord should not be artificially circumscribed to those injuries caused while the tenant is on the property.   The landlord's property is relevant to the proposed duty only because it is by exercising control over the property that the landlord can exercise control over the tenant;  there is no justification for the property also to define the scope of the landlord's duty of care.”  (Note, (1978) The Duty of a Landlord to Exercise Reasonable Care in the Selection and Retention of Tenants, 30 Stan.L.Rev. 725, 758, fns. omitted.)

The majority takes the position that where, as here, damages are sought on the basis of the tortious conduct of a third party, the rule of reasonableness set forth in Rowland v. Christian, supra, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 has been modified by the additional requirement of a special relationship between the parties or between the defendant landowner and the third person.   The majority finds this requirement in the following statement in Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 205 Cal.Rptr. 842, 685 P.2d 1193:  “As a general rule one has no duty to control the conduct of another, and no duty to warn those who may be endangered by such conduct.  [Citations.]  A duty may arise, however, where ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.’  [Citations.]”  (Id., at p. 806, 205 Cal.Rptr. 842, 685 P.2d 1193, quoting Rest.2d Torts, § 315.)

My colleagues suggest that the requirement of a “special relation” means that the plaintiff's status as an invitee or licensee does not merely “have some bearing on the question of liability,” as allowed under Rowland, 69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561, but is now once again determinative of liability.   Thus, the majority claims I have misinterpreted Peterson by ignoring what was assertedly the “essential ingredient” of the opinion:  that the plaintiff was a business invitee of the defendant.  (Maj. opn., at pp. 239–240.)   If, as my colleagues say, the plaintiff's status as an invitee was “essential” to the imposition of duty in Peterson, then the opinion in that case has effectively overruled Rowland, which explains at considerable length why the plaintiff's status often bears little if any relationship to the factors that deserve to be considered on the issue of duty.  (69 Cal.2d at p. 117, 70 Cal.Rptr. 97, 443 P.2d 561.)   This was the reason the Rowland court made it clear that “although the plaintiff's status as a[n] ․ invitee may ․ have some bearing on the question of liability, the status is not determinative.”  (Ibid., italics added.)  Peterson explicitly reaffirms this principle, stating that although “under certain circumstances” a plaintiff's status may be relevant to the question of liability, “[a]s explained in Rowland ․, we no longer adhere to the rigid classifications of duty based on status․” (Peterson, supra, 36 Cal.3d at p. 808, fn. 5, 205 Cal.Rptr. 842, 685 P.2d 1193.)   The majority's conclusion that duty cannot as a matter of law be imposed on the Housing Authority in this case because the plaintiffs' status is not comparable to that of an invitee repudiates this settled principle.

The majority's mistake, which undoes Rowland v. Christian in a significant class of cases, is to think that the existence of a “special relation” can be determined independently of the rule of reasonableness.   As Peterson recognizes, the question whether a “special relation” exists is simply another way of asking whether a legal duty may be imposed;  that is, is the relationship between the plaintiff and the defendant landowner or between the latter and the third party such that it would be reasonable to impose a duty of care on the defendant.   The ultimate reason liability was imposed in Peterson was not because the plaintiff was an invitee (though that may have had some bearing on the question), but because the danger was foreseeable.   As stated in Peterson, “[l]iability will normally be imposed in circumstances where the possessor has reasonable cause to anticipate the misconduct of third persons.  [Citations.]”  (Peterson, supra, 36 Cal.3d at p. 807, 205 Cal.Rptr. 842, 685 P.2d 1193, italics added.)   Later in its opinion the Peterson court reiterates that if, as in the present case, “ ‘the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the [possessor] negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the [possessor] from being liable for harm caused thereby.’ ”  (Id., at p. 808, 205 Cal.Rptr. 842, 685 P.2d 1193, quoting Compodonico v. State Auto Parks, Inc. (1970) 10 Cal.App.3d 803, 808, 89 Cal.Rptr. 270;  accord Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d 112, 131, 211 Cal.Rptr. 356, 695 P.2d 653, accord Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, 58, 192 Cal.Rptr. 857, 665 P.2d 947;  Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 47, 123 Cal.Rptr. 468, 539 P.2d 36.)   Accordingly, Peterson concludes “that intervening criminal conduct cannot absolve the defendant of liability where as here the plaintiff alleges that defendants maintained the property in such a way as to increase the risk of criminal activity.”   (Peterson, supra, 36 Cal.3d at p. 812, 205 Cal.Rptr. 842, 685 P.2d 1193.) ⁵  For the foregoing reasons, I believe it is the majority that misinterprets Peterson, not I.

In any event, putting aside the question whether the language in Peterson regarding a “special relation” can be deemed to overrule the rule of reasonableness for which Rowland stands, I believe a special relation exists in this case.

According to the majority, plaintiffs' relationship to the Housing Authority is not special because it is “ ‘no different from [that of] any other person in the vicinity, whether passerby or neighbor.’ ”  (Maj. opn., p. 225, quoting Martinez v. Pacific Bell (1990) 225 Cal.App.3d 1557, 1567, 275 Cal.Rptr. 878.)   I cannot agree.   The Housing Authority knew criminal and tortious activities regularly took place on project premises, knew that persons who lived immediately across the street from the project had been injured by those dangerous activities, of which they had constantly complained, and knew that plaintiffs remained exposed to the continuing danger.   This case is thus completely different from those in which a special relationship was found not to exist because the danger was not obvious and the injury unexpected.  (See, e.g., Crow v. State of California (1990) 222 Cal.App.3d 192, 208, 271 Cal.Rptr. 349;  Balard v. Bassman Event Security, Inc. (1989) 210 Cal.App.3d 243, 250, 258 Cal.Rptr. 343;  Gray v. Kircher (1987) 193 Cal.App.3d 1069, 236 Cal.Rptr. 891;  Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 238 Cal.Rptr. 436.)

The majority also claims that there is no special relationship between the Housing Authority and the third parties engaging in the tortious conduct at issue because “there is simply no evidence tenants of the Housing Authority were the perpetrators of any of the crimes for which plaintiffs sought compensation.”  (Maj. opn., at p. 226.)   Again I disagree.

First of all, the question is not whether the third parties involved were tenants, but whether their criminal and tortious acts occurred on premises controlled by the Housing Authority and were foreseeable.   As to this there is no real dispute.   As noted, for example, numerous plaintiffs testified that guns were shot at plaintiffs' building from project stairwells and bottles thrown at them from various places in the project.   Nor was it disputed that the noise that made it impossible for plaintiffs to sleep emanated from the housing project.⁶

In any event, the Housing Authority's defense at trial—that it was unable to control its tenants—implicitly acknowledged significant tenant involvement in the dangerous activities complained of.   Moreover, as will be seen, this defense does not wash.

The key witnesses for the Housing Authority were Karen Moone, deputy executive director of the agency in charge of “housing operations” and Jim Williams, the district manager who oversees management of the project and visits the project daily.   Acknowledging that tenants who sold drugs, possessed guns, or engaged in other illegal or dangerous activities on project premises violated provisions of the standard lease and could theoretically be evicted, Ms. Moone testified that this remedy was frustrated by regulations of the United States Department of Housing and Urban Development (HUD), which create an elaborate grievance procedure and permit a tenant to name a representative to the three-person panel that ultimately decides whether he or she should be evicted.   Ms. Moone also testified that the Housing Authority does not provide security services in any of its housing projects.

Jim Williams, the district manager, acknowledged that criminal and other activity injuring others often occurred on the premises of the housing project.   He received frequent complaints about this and about loud noise emanating from the project from neighbors of the project, including residents of plaintiffs' building.   He looked primarily to the police to solve these problems.   Williams reiterated Karen Moone's testimony that the Housing Authority was often unable to evict tenants who violated lease provisions, such as that prohibiting the possession of guns in the project, because of HUD regulations.   According to Williams, the Housing Authority has been unsuccessful in evicting disorderly tenants because tenant representatives on the hearing panels “go along” with the tenant.   The Housing Authority has no procedure for removing nontenants who act disruptively on project premises, relying entirely on the police department.

The trial court was obviously unimpressed with this defense.   So am I.

The federal government, which finances and regulates public housing agencies, not only contemplates that such agencies have the responsibility to protect the public against the dangerous acts of tenants but have given them tools to control such conduct.⁷  Furthermore, federal law requires public housing agencies to utilize leases which specify that activity that threatens the health or safety of others, or their right to the peaceful enjoyment of their premises—specifically referring to “drug related criminal activity on or near [public housing] premises”—shall be cause for eviction.  (42 U.S.C. § 1437(d)(l )(5).)   HUD regulations implementing this statute require public housing agencies to restrict from public housing projects persons who have “[a] record of disturbance of neighbors,” particularly those who have “[a] history of criminal activity involving crimes of physical violence to persons or property and other criminal acts which would adversely affect the health, safety or welfare of other tenants.”  (24 CFR § 960.205(b)(2)(3).)

HUD regulations providing a grievance procedure for tenants sought to be evicted do not prevent the eviction of tenants who threaten the safety of others.   Under the regulations the tenant's representative and that of the Housing Authority select the third member of the panel;  if they cannot agree the third member is selected by an independent arbitration association.  (24 CFR § 966.55(b)(1).)   The Housing Authority has not explained how a single member of a three-person panel can frustrate eviction.   In any case, even if tenants could somehow control decisions of the hearing panel such decisions may be set aside under the HUD regulations of the governing body of a public housing authority “determines within a reasonable period of time, and promptly notifies the [tenant] of its determination that [the decision of the hearing panel] is contrary to applicable Federal, State or local law, HUD regulations or requirements of the annual contributions contract between HUD and the [public housing authority].”  (24 CFR § 966.57(b)(2).)   In short, the Housing Authority has the power to evict disruptive tenants.   It could also avoid or minimize risk that others will commit dangerous acts on project premises simply by employing security guards and replacing the numerous broken lights designed to illuminate common areas of the project.  (See Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d 112, 130, 211 Cal.Rptr. 356, 695 P.2d 653;  Musgrove v. Ambrose Properties (1978) 87 Cal.App.3d 44, 53, 150 Cal.Rptr. 722;  Rest.2d Torts, § 344, com. (f)), for which federal funds have been provided.  (See fn. 7, ante.)

The courts of this state should expect housing authorities to exert the same level of control over tenants as they are empowered to exercise under governing federal law.   The imposition of liability in this case is fully consistent with state policy to encourage public entities to comply with applicable federal statutes and regulations designed to protect against the risk of injury (cf., Gov.Code, § 815.6) as well as the strong state polices of compensation injured parties and preventing future harm.

B.

The majority makes much of the fact that, as it reads the record, plaintiffs failed to identify “a Housing Authority tenant, agent or employee as the perpetrator of any tortious act against a plaintiff, whether criminal or otherwise.”  (Maj. opn., at p. 223.)   Plaintiffs' failure to name the individuals who torment them is unimportant, first of all, because the Housing Authority, which never denied that its tenants committed the type of dangerous acts that injured plaintiffs, and did not dispute the relationship between project premises and the acts in question, never rested on plaintiff's failure to specifically identify the individuals that committed the acts in question.

Plaintiffs failure to identify the particular individuals who committed the acts in question is unimportant for the additional reason that the injury they allege results not simply from particular past acts but from omissions that create a continuing fear of further injury.   An actionable nuisance can be created by the act or omission of a possessor of land or a condition of land that creates a reasonable fear of physical danger.   For example, in County of San Diego v. Carlstrom (1961) 196 Cal.App.2d 485, 16 Cal.Rptr. 667 it was held that the presence in a residential area of an unnecessarily extreme fire hazard was a public nuisance.   The court explained that “[j]ust as all people living in communities must endure some unwelcome situations [that interfere] with the happiness of their lives, so much they endure those normal and ordinary dangers of fire which are present in the reasonable and necessary activities of life in every social order.   The use of fire and heat in innumerable forms for the comfort and needs of humanity makes this inevitable.”  (Id., at p. 490, 16 Cal.Rptr. 667.)   However, the court went on to say, a member of the community may not conduct his affairs unreasonable so as to create excessive danger that unbearably excites the fears of his neighbors.”   The happiness and joy of life are inextricably interwoven with man's emotions.   No one is naive enough not to understand that the constant pressure of serious fear can and often does destroy all happiness in life and property.   All sane adults are aware of the latent danger of fire, and their fears are quickly aroused by the unnecessary creation of extremely hazardous situations.   The presence in a settle residential community of an unnecessarily extreme fire hazard can well create and maintain that fear in the lives of the people of that community and make of the hazard a public nuisance.”  (Id., at p. 491, 16 Cal.Rptr. 667.)

The same reasoning was adopted in People v. Oliver (1948) 86 Cal.App.2d 885, 195 P.2d 926, which also involved fire hazard.   The court there recognized that “[w]hen people live in urban and congested areas they acquire certain rights against, and they assume certain responsibilities towards, their neighbors.   While they have the right to use their property, within certain limits, as they see fit, even if it annoys the neighbors or depreciates the value of adjoining property, they have no legal right to put their land to an unnatural use and to create thereon an unnecessary hazard to other properties.   In a very real sense there must be a balancing of conveniences and of rights.   Where the danger to an entire neighborhood is demonstrated, as it was in this case, and where the condition created is unnecessary and can be remedied, prudence, common sense, fair play and justice require that the danger to the entire neighborhood be eliminated.   In such a situation the condition may be found to be a nuisance and abated.”  (Id., at p. 890, 195 P.2d 926.)

The hazards created by the Housing Authority's failure to prevent the tortious and criminal acts on its premises that endanger plaintiffs “interfere with the comfortable enjoyment of life or property” (Civ.Code, § 3479) as much as the hazard of fire.   The Housing Authority has not satisfactorily shown that it cannot control the noise, crime and other disruptive activities on its premises that have made a nightmare of plaintiffs' lives.   The law of torts does not impose liability for damages in every case in which one person's conduct has some detrimental effect on another.   As the case law explains, such liability is imposed only where the harm or risk to the plaintiff is greater than he or she ought to be required to bear under the circumstances, at least without compensation.   These are such cases.   The failure of the Housing Authority to take more serious measures to protect plaintiffs and others residing near the project from the injuries they have long endured is unreasonable in a civilized society.

I am not indifferent to the fact that the Housing Authority ministers to the needs of low-income persons, as I recognize that the social utility of an activity is a factor to be weighed in the assessment of reasonableness.   Nonetheless, there is no showing that public housing projects invariably or even usually result in the risks created in this case or that the Housing Authority is powerless to reduce those risks.   In any event, the law relating to nuisance does not allow the costs of an unquestionably useful or charitable enterprise to be inordinately visited upon the residents of a single neighborhood.  (See, e.g., Armory Park v. Episcopal Community Services (1985) 148 Ariz. 1, 712 P.2d 914, 921.)   Airports are also essential to life in modern society and, like housing projects, are authorized by statute and subject to considerable federal and state regulation;  yet the activities of airports have often been declared an actionable nuisance.  (See, e.g., Greater Westchester Homeowners Assn. v. City of Los Angeles, supra, 26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329;  Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 101 Cal.Rptr. 568, 496 P.2d 480;  see also City and County of San Francisco v. Small Claims Court, supra, 141 Cal.App.3d 470, 190 Cal.Rptr. 340.)   Our Supreme Court has repeatedly held that, “ ‘in governmental tort cases “the rule is liability, immunity is the exception.”  ․ Unless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail.’ ”  (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 792–793, 221 Cal.Rptr. 840, 710 P.2d 907, quoting Ramos v. County of Madera (1971) 4 Cal.3d 685, 692, 94 Cal.Rptr. 421, 484 P.2d 93.)

For the foregoing reasons, I conclude that it was legally within he discretion of the trial court to find that the Housing Authority was under a duty to exercise ordinary care in the management of the project in order to avoid exposing plaintiffs to the harms they suffered and that it failed to exercise such care.   Accordingly, I would deny the writ.

FOOTNOTES

1.   For case of reference, we refer to the 25 real parties in interest collectively as “plaintiffs.”   Where it is necessary to identify individual plaintiffs, we refer to them by their last names.

2.   Plaintiff Stroll made it clear at the outset of the superior court trial he was representing only himself.   However, since he is an attorney, the court nonetheless required him to present the argument on motions, to conduct the examination and cross-examination of nonplaintiff witnesses, and to present closing argument.

3.   At the time plaintiffs filed their claims, the jurisdictional limit of small claims court was $2,000;  the limit has subsequently been increased to $5,000.  (Compare former Code Civ.Proc., § 116.2, subd. (a), to Code Civ.Proc., § 116.220, subd. (a)(1).)

4.   Code of Civil Procedure section 116.710, subdivision (b), provides “[t]he defendant with respect to the plaintiff's claim, and a plaintiff with respect to a claim of the defendant, may appeal the judgment to the superior court in the county in which the action was heard.”

5.   Code of Civil Procedure section 116.770, subdivision (a) provides “[t]he appeal to the superior court shall consist of a new hearing.”

6.   California Rules of Court, rule 63(a), provides, in pertinent part, as follows:  “The superior court on application of a party or on its own motion may certify that the transfer of a case to the Court of appeal appears necessary to secure uniformity of decision or to settle important questions of law.”

7.   The return was filed on behalf of 14 of the 25 plaintiffs, who retained a private law firm to represent them in this writ proceeding.   Three of the remaining plaintiffs later retained the same law firm to represent them and, presumably, join in the prior return filed by that firm.   The remaining plaintiffs continue to represent themselves in propria persona and have not filed any return to our order to show cause.

8.   As examples:  plaintiff Vallas complained, inter alia, of an unidentified woman coming to her apartment door, asking for money, and leaving when the request was denied;  plaintiff Stagner described, inter alia, youths yelling slurs at him and spraying graffiti on the 300 Buchanan Street apartment building;  plaintiff Dan Gourley referred, inter alia, to prostitutes congregating at the corner of Haight and Buchanan Streets, and plaintiff Lockhart stated he was followed by a prostitute;  plaintiff Carmody testified to being bothered by “ ‘push panhandlers' ”;  plaintiff Berger had to wait to use his garage while two men urinated on the garage door;  plaintiff Berger's car was scratched while parked on a public street.   We do not seek to demean plaintiffs' justifiable annoyance with the conduct and events they described.   We report these episodes only to illustrate why we are selective in our treatment of evidence proffered on the issues of nuisance and dangerous condition of public property.

9.   The petition and letters referred to throughout this opinion were attached as an exhibit to plaintiff Stroll's superior court trial brief.   Stroll expressly referenced the letters in his testimony.

10.   During closing argument in the court below, plaintiff Stroll asserted a special relationship between plaintiffs and the Housing Authority “is created under Government Code 830, which provides protection for people using adjacent property.”   This argument “put[s] the liability cart before the duty horse.”  (Crow v. State of California, supra, 222 Cal.App.3d at p. 203, 271 Cal.Rptr. 349.)   Nothing in Government Code section 830 creates a duty on the part of landowners to control the tortious conduct of third parties.   Thus, in Peterson, it is only after concluding a special relationship (and, hence, a duty) existed, that the Supreme Court turned to the question of “whether the provisions of the Tort Claims Act preclude the imposition of such a duty on the defendants under the circumstances of this case.”  (Peterson, supra, 36 Cal.3d at p. 809, 205 Cal.Rptr. 842, 685 P.2d 1193, emphasis added.)

11.   Even if plaintiffs had presented such evidence, the extent of the Housing Authority's duty to control its tenants' criminal conduct would require additional analysis.  (See Rosales v. Stewart (1980) 113 Cal.App.3d 130, 134–135, 169 Cal.Rptr. 660 [landlord under no duty to prevent tenant from firing gun on leased premises absent actual knowledge of tenant's conduct plus opportunity and ability to prevent continuation of that conduct];  see also Tanja H. v. Regents of University of California (1991) 228 Cal.App.3d 434, 438, 278 Cal.Rptr. 918;  Crow v. State of California, supra, 222 Cal.App.3d at pp. 208–209, 271 Cal.Rptr. 349;  Davis v. Gomez (1989) 207 Cal.App.3d 1401, 1406, 255 Cal.Rptr. 743;  Gray v. Kircher, supra, 193 Cal.App.3d at pp. 1074–1075, 236 Cal.Rptr. 891.)

12.   Having reached this conclusion, we do not address the Housing Authority's contention plaintiffs have failed to establish liability on a dangerous condition of public property theory as a statutory matter.  (See Gov.Code, §§ 830, 835;  see also Martinez v. Pacific Bell, supra, 225 Cal.App.3d at pp. 1561–1563, 275 Cal.Rptr. 878 [defendant not liable on dangerous condition of property theory for crimes committed by third parties on nearby premises].)   Likewise, we do not address the Housing Authority's contention it is statutorily immune from such liability.  (See Gov.Code, § 830.6 [immunity for design approved in advance of construction];  Civ.Code, § 3482 [immunity for acts taken under express authority of statute].)

13.   Government Code section 815 provides, in pertinent part, as follows:  “Except as otherwise provided by statute:  (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”

14.   The cases in this area do not draw a distinction between public and private nuisances.   When a plaintiff proves that a nuisance has interfered with his right to the use and enjoyment of his private property or has decreased the market value of that property, he is entitled to seek damages regardless of whether the nuisance is characterized as a “specially injurious” public nuisance or as a private nuisance.

15.   The principles of nuisance law developed at an early point in our jurisprudence, at a time when our state was much less densely populated.  (See Fisher v. Zumwalt, supra, 128 Cal. at pp. 494–495, 61 P. 82 [“This creamery is located near a public highway and in a thickly populated portion of the county of Tulare, there being many farmhouses in the vicinity and some eighty people living within a radius of three miles therefrom.”].) The limitations developed in the early cases are even more important today, at a time when land is being put to an ever-increasing number of competing uses.  (Cf. City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 462–462, 115 Cal.Rptr. 797, 525 P.2d 701 (hereafter City of San Jose ) [although the maxim that each parcel of land is unique “was created at common law, the very factors giving it vitality in the simple days of its genesis take on added significance in this modern era of development.   Simply stated, there are now more characteristics and criteria by which each piece of land differs from every other.”].)

16.   We review plaintiffs' testimony in the same order it was presented at the superior court trial.

17.   Although actual notice can be proven by circumstantial evidence (Uccello v. Laudenslayer, supra, 44 Cal.App.3d at p. 514, fn. 4, 118 Cal.Rptr. 741), there is no evidence, direct or circumstantial, that the Housing Authority had actual notice of a general noise problem on the part of its tenants.   Indeed, the only evidence in the record is to the contrary.  (See pp. 232–236.)

18.   In fact, the tort claim Hall filed with the Housing Authority makes no reference whatsoever to his having had to move or to any expenses he incurred thereby.

19.   Plaintiffs Carmody and Edna Gourley, for example, testified they heard barking not while they were in their apartments but as they were leaving the building.

20.   Berger did not offer any evidence as to whether he heard the barking while he was in his apartment or whether, as other plaintiffs testified, he heard the barking only as he was exiting the building.   On remand, he will need to establish the barking interfered with the use and enjoyment of his tenancy in order to recover.

21.   Near the beginning of the trial, the superior court made a “blanket ruling” that “[a]ny testimony that is not responsive or relevant will be stricken.”   In light of this ruling, it is impossible to determine whether the court considered this testimony in assessing damages.   As noted above, such blanket rulings are inappropriate in group small claims actions because they make individualized damage assessments virtually impossible.  (See ante, pp. 231–233.)

22.   Since the record contains evidence of many different types of noise that the Housing Authority was under no duty to control, we cannot determine on the confused record before us whether the barking dog itself constituted an actionable nuisance.   In determining whether a nuisance exists, the court should bear in mind “[u]nder the law of nuisances, where personal discomfort is the basis of the complaint the test of liability is the effect of the alleged interference on the comfort of normal persons of ordinary sensibilities in the community.”  (Venuto v. Owens–Corning Fiberglas Corp., supra, 22 Cal.App.3d at p. 126, 99 Cal.Rptr. 350.)

23.   Since the testimony of plaintiffs Edna Gourley and Carmody affirmatively demonstrates their lack of standing (see ante, p. 234), we need not remand their claims.

24.   The damages sought must have been the subject of a timely tort claim by each plaintiff to the Housing Authority.”   In actions for damages against local public entities, the claims statutes require timely filing of a proper claim as condition precedent to the maintenance of the action.   (Gov.Code, §§ 905, 945.4.)   Compliance with the claims statutes is mandatory;  and failure to file a claim is fatal to the cause of action.   [¶] The claims statutes provisions apply to actions brought ․ for nuisance.”  (City of San Jose, supra, 12 Cal.3d at p. 454, 115 Cal.Rptr. 797, 525 P.2d 701, case citations omitted.)   At the beginning of the trial below, the superior court erroneously ruled the failure of a plaintiff to include the complaint on which his action is based in his tort claim “goes to the credibility of the evidence and not to the materiality.”

25.   As to the specific issue we are remanding, however, police protection immunity does not provide a defense.   The Housing Authority's alleged failure to evict a tenant with a barking dog has nothing to do with the presence or absence of police at the project or in the neighborhood.

26.   Indeed, it is our dissenting colleague's consistent pattern of articulating unfounded generalization as to the content of the record in this case which necessitated the exhaustive scope of our evidentiary review, a review the dissent then faults us for having conducted.

27.   The dissent avoids other important legal issues as well.   For instance, the dissent contends the Housing Authority “could also avoid or minimize [the] risk that others will commit dangerous acts on project premises simply by employing security guards” (dis. opn., post, p. 251) without bothering to address the Housing Authority's statutory immunity for its alleged failure to provide adequate police protection.  (See ante, pp. 237–238.)

28.   We reject plaintiffs' contention extraordinary relief in small claims cases is available only “when the questions of law are peculiar to small claims court, and thus would not arise in the usual Superior Court cases.”   The courts have never imposed such a limitation.  (See, e.g., Schweiger v. Superior Court (1970) 3 Cal.3d 507, 517–518, 90 Cal.Rptr. 729, 476 P.2d 97;  Calvao v. Superior Court (1988) 201 Cal.App.3d 921, 922, fn. 1, 247 Cal.Rptr. 470.)

1.   The Housing Authority essentially makes three legal claims:  (1) that it cannot be liable for intentional acts of third persons injuring others on premises it does not control;  (2) that plaintiffs lack standing to maintain causes of action for public nuisance;  and (3) that it is statutorily immune under Government Code section 830.6 and Civil Code section 3482.

2.   The Housing Authority argues that plaintiffs lack standing to sue for public nuisance because their injuries are different only in degree, not in kind, from those suffered by numerous others.   I disagree for two reasons.   First, modern cases acknowledge that “[d]egree cannot ․ be left entirely out of account in determining difference in kind.”  (Prosser, Law of Torts, (4th ed.1971) ch. 15, § 88, p. 588;  Rest.2d Torts, § 821C(c), p. 96.)   Further, plaintiffs injuries are different in kind.   Despite the appalling prevalence of urban crime, few if any San Franciscans are continuously subjected to the level of violence and constant noise plaintiffs must daily endure.   The requirement that the alleged nuisance be “specially injurious” (Civ.Code, § 3493) “does not mean damage peculiar, exclusive or unique to the plaintiff.   It has often been held that the fact that other individuals suffer the same kind of damage, and even in greater degree, does not prevent any of them from recovering for it.   A considerable class of persons, such as landowners near a factory who are inconvenienced in their dwellings by its dust, smoke and odors, may sue and recover.   It is only when the class becomes so large and general as to include all members of the public who come in contact with the nuisance, that the private action will fail.”  (Prosser, Private Action for Public Nuisance (1966) 52 Va.L.Rev. 997, 1008–1009, fn. omitted.)   Finally, whether plaintiffs suffered the particular damage essential for them to maintain causes of action for public nuisance is irrelevant to their ability to maintain causes of action for private nuisance.

3.   There is no evidence that the Housing Authority or any other public entity is threatened with bankruptcy as a result of the mass filings of small claims or that small claims are more economically threatening than any other form of civil claims that might alternatively be made.   Moreover, unlike the nonprofit housing corporation in Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal.App.3d 538, 134 Cal.Rptr. 29, disapproved in part in Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653, the Housing Authority does not claim it needs or is unable to obtain insurance against the risk of liability.   Nor would the expense liability might entail be passed on by the Housing Authority to its low-income tenants, whose rents are controlled by law.  (42 U.S.C. § 1437a.)   As is ordinarily true with respect to public safety, the cost would be borne by the whole community.

4.   BAJI No. 8.00 provides as follows:“The [owner] [occupant] [lessor] of premises is under a duty to exercise ordinary care in the [use] [maintenance] [or] [management] of such premises in order to avoid exposing [persons] [or] [other property] to an unreasonable risk of harm.  [Such duty exists whether the risk of harm is caused by the natural condition of such premises or by an artificial condition created on such premises.]  [Such duty exists even when the unreasonable risk of harm is caused by the criminal conduct of a third person which, in the exercise of reasonable care, is or should be foreseeable [or where the [owner] [occupant] [lessor] of the premises maintains the property in such a way as to increase the risk of criminal activity].]  [Such duty is owed to persons on the premises and to persons off the premises.]   A failure to fulfill this duty is negligence.“[Ordinary care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.]“[This duty of care is owed only to such persons as the [owner] [occupant] [lessor], as a reasonably prudent person under the same or similar circumstances, should have foreseen would be exposed to such a risk of harm.]“[You shall determine whether a person under the same or similar circumstances as the defendant _ should have foreseen that the plaintiff _ would be exposed to an unreasonable risk of harm.   If you so find, you are instructed that the defendant _ owed plaintiff _ such a duty of care and you should determine if the defendant exercised such care, considering all the surrounding circumstances shown by the evidence.]”

5.   The Restatement takes the same position, stating that if the location of the premises, “or his past experience, is such that he should reasonable anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, [a landlord] may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.”   (Rest.2d Torts, § 344, com. f.)

6.   Reliance by the Housing Authority and the majority on our recent opinion in Martinez v. Pacific Bell, supra, 225 Cal.App.3d 1557, 275 Cal.Rptr. 878 is misplaced, because that case did not involve a landlord's duty of care and turned on the inability of the defendant to control the premises in question.   In Martinez the operator of a parking lot who had been assaulted by persons loitering about public telephone booths near the lot asked the telephone company to remove the phones because they were being used by dangerous persons to conduct illegal drug transactions.   The phone company ignored the request and the parking lot operator was again shot and robbed on his own premises by unknown persons.   The trial court sustained the telephone company's demurrer to the complaint and dismissed the action.   We affirmed, holding that the company could not be held vicariously liable for the intentional torts of third parties in the vicinity of the public phones because the phones were not the proximate cause of the plaintiff's injury and because the company could not be held responsible for activities occurring on land it did not own or control.   (Id., at pp. 1565–1567, 274 Cal.Rptr. 878.) unlike Martinez most of the dangerous activities in this case—the shooting of people and apartment windows, the hurling of bottles and the creation of incessant noise—took place entirely on premises owned and controlled by the Housing Authority.

7.   Among other things, Congress has permitted public housing agencies “to allow peace officers and other security personnel (who are not otherwise eligible for residence in public housing) to reside in public housing dwelling units” in order to increase security (42 U.S.C. § 1437a–1), and has provided funds to increase security services at public housing projects above the level provided by local law enforcement services, which may include (but are not limited to) the installation of lighting systems, the reconfiguration of common areas to discourage drug-related crime, the employment of persons to investigate drug-related crime on project premises, and the creation of tenant patrols to work in conjunction with local law enforcement agencies.  (24 CFR § 961.10.)

BENSON, Associate Justice.

PETERSON, J.,* concurs.