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Van Tonder v. Chevron Corporation2/25/2003
d by the defendant is an element of loss of enjoyment. [Citations.]'" (Ibid.)
Nothing in any of these words undermines in the slightest what common sense tells us: the degree of any such "annoyance, inconvenience, and discomfort," as well as the damages suffered thereby, will necessarily vary from one occupant of land to another. This is precisely the point made in City of San Jose, Fuhrman and Rose, as well as by this trial court.
Finally, San Diego G&E;was a case involving the primary jurisdiction of the Public Utilities Commission. (See San Diego G&E; supra, 13 Cal.4th at pp. 902-903.) In it, a unanimous court affirmed a court of appeal decision ordering the superior court to sustain a demurrer to a complaint alleging, among other things, trespass, nuisance and inverse condemnation from the action of the defendant utility in allegedly running high levels of current through lines traversing the plaintiffs' property. (Id. at pp. 914, 951.) In the middle of a 70-plus-page decision involving arcane issues of PUC jurisdiction, the court included a couple of pages sustaining the utility's demurrer to the nuisance cause of action. (Id. at pp. 937-939.) In so doing, it cited a secondary text for the proposition that, in a nuisance case, the "degree of harm is to be judged by an objective standard." (Id. at p. 938.) Based on this, and about six or seven other premises, the court held that the plaintiffs' nuisance claim fell within the PUC's primary jurisdiction.
Somehow, the majority deduces from this reference the principle that the amount of inconvenience suffered by members of a putative class of real property dwellers subject to a form of nuisance or trespass is thus "legally significant, whatever the idiosyncrasies of the individual plaintiffs." (Maj. opn. at p. 17.) As best as I can understand the majority's puzzling reliance on San Diego G&E; it seems to be saying that as and when there is such a "legally significant" intrusion, the inevitable variance in the impact on and the damages suffered by the putative class members as a result of that intrusion is legally irrelevant for class certification purposes. But, clearly, the much more pertinent ruling of the court was delivered in a case which explicitly involved class certification in the context of alleged intrusions on the enjoyment of various and sundry pieces of real property. That case, City of San Jose, says something drastically different from what the majority is saying here.
In the present case, whether one labels the defendants' actions which allegedly created liability to the members of the putative class as (1) the infliction of "inconvenience" or "discomfort" or (2) some type of nuisance or trespass, clearly what is involved is conduct that, at least for purposes of adjudging its suitability for class treatment, is similar to the conduct involved in City of San Jose, Fuhrman, Rose, Altman, D'Amico, and Stilson. As such, the trial court acted within its discretion in concluding, as it did in its second order, that " ndividual sensibilities as to inconvenience may vary just as greatly as they do as to emotional distress" and, on that basis, denying class certification.
Haerle, J.
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