Homeowners Allowed To Amend Complaint To Include Valid Cause Of Action For Public Nuisance Against City

In Kempton v. City of Los Angeles, (— Cal.Rptr.3d —, 2008 WL 3412200, Cal.App. 2 Dist., Aug. 13, 2008), a California Court of Appeal considered whether homeowners could amend their complaint to include a cause of action for public nuisance against a city even though the original claim did not include the public nuisance claim and the homeowners did not request, nor did the trial court offer, leave to amend the complaint. The Court of Appeal concluded the city was on notice of the alleged public nuisance based on the facts alleged in the complaint, and a specific request to amend was not required for the Court of Appeal to review the trial court’s order on appeal.


Kimberly Kempton and Charles Kinney own a home on Fernwood Avenue in Los Angeles, California. The garage of the residence has access onto another street, Cedar Lodge Terrace. In a pre-lawsuit claim filed with the City of Los Angeles (“City”), Kempton and Kinney alleged their neighbors erected fences on City property fronting Cedar Lodge Terrace. The claim asserted hazards created by the fences and asked the City to cause the fences removal, but the City rejected the claim.

Next, Kempton and Kinney filed a lawsuit against the City seeking damages and an injunction requiring the City to force the neighbors to remove the fences from the City’s right of way. The complaint alleged that the fences diminished sightlines when entering and exiting the garage on Cedar Lodge Terrace, causing Kempton and Kinney to be fearful while driving. The complaint also alleged that the fences blocked pedestrian access to a portion of walkway on Cedar Lodge Terrace, thereby creating a dangerous condition for people walking down the street, and causing Kempton and Kinney to suffer emotional distress while walking.

The City successfully moved for judgment on the pleadings by arguing that the complaint failed to allege any actual injury. Kempton and Kinney appealed the judgment.


The Court of Appeal began by explaining it would review the facts as alleged in the complaint to see if the facts could support any valid cause of action against the City, and if not, could the complaint be reasonably amended to do so. Further, the court pointed out that “Leave to amend is liberally allowed,” and a specific request for a leave to amend is not required for the court to review the trials court’s decision not to grant the leave to amend.

In examining the complaint, the court noted the “essential allegation . . . is that these conditions,” caused by the fences, “amounted to negligent infliction of emotional distress.” The court found a claim of emotional distress did not apply because the claim was shared by all members of the public, and there has not been any actual physical injury in the present case.

The court noted in the original claim filed by Kempton and Kinney, they asserted diminution of property value as a result of the fences. However, the court dismissed this possible alternative source of injury because the fences were erected before Kempton and Kinney purchased the property, and therefore they could not claim a diminution of property value since their purchase of the property.

As a result, the court said the only possible remedy available to Kempton and Kinney is “in equity for an injunction on a theory of public nuisance.” The court defined a public nuisance as a nuisance “which affects at the same time an entire community or neighborhood, or any considerable number of persons.” Relevant to this case, “blocking a public sidewalk constitutes a public nuisance per se.” The court pointed out the complaint specifically alleged the fences blocked the sidewalk portion of a public right-of-way.

Next, the court explained how an individual may bring a claim of public nuisance. Specifically, an individual bringing the claim must have suffered a different kind of damage “from that suffered by other members of the public.” Here, the fences caused the unique fear of a collision for Kempton and Kinney with cars on the road or pedestrians on the sidewalk upon their entrance or exit from their property onto Cedar Lodge Terrace. For the public at large, the fences caused the fear of injury for pedestrians using the sidewalk public right of way. Therefore, the court concluded, the complaint sufficiently alleged two different types of damage necessary for a public nuisance claim.

In conclusion, the Court of Appeal explained the complaint need not have alleged the public nuisance cause of action for Kempton and Kinney to be allowed to amend their complaint to include the public nuisance cause of action. The complaint included sufficient facts to support the assertions for “both a public nuisance per se and specific injury.” Therefore, Kempton and Kinney were entitled to amend the complaint to allege the cause of action for public nuisance.