Kimberly Kempton et al., v. City of Los Angeles
In the Court of Appeal of the State of California
13 August 2008; B201128

Blocking of Public Sidewalk a Nuisance Per Se

The appellants herein, Kimberly Kempton and Charles Kinney, own a home on Fernwood Avenue in Los Angeles. The garage at the residence has access onto a Cedar Lodge Terrace.

They filed a claim with the City of Los Angeles alleging that their neighbors had erected fences on the City property fronting the Cedar Lodge Terrace. They claim that the fences created hazards and asked the City to remove the fence from its property.

But the City rejected the claim.

Because of this, Kempton and Kinney filed a suit against the City. They seek monetary damages and an injunction to require the City to bring proceedings to force their neighbors to remove the fences from the City’s right of way.

The appellants allege two things in their suit:

1. The fences are constructed on the City’s right of way along the street and that they block public access to the pedestrian walkway area.


2. The fences block the sightlines of drivers entering and exiting appellant’s garage, resulting in hazards to those drivers and to pedestrians.

The City counter-argued saying that the appellants did not state facts sufficient to constitute a cause of action because they failed to allege actual injury and moved for judgment on the pleadings.

The trial court granted the motion and judgment was entered on the pleadings without leave to amend.

On appeal before the California Court of Appeal, Second Appellate District, Kempton and Kinney claim that their complaint was either sufficient to allege a cause of action for nuisance against the City of Los Angeles or, if not, they should have been granted leave to amend their complaint to allege a cause of action for nuisance.

The Court of Appeal held that the government liability under Government Code Section 815 may be based upon public nuisance per se, and blocking a public sidewalk is a nuisance per se.

The Court concluded that the appellants’ two allegations support a public nuisance per se action, as such, that they are entitled to amend their complaint to allege a cause of action for public nuisance.

The judgment on the pleadings was reversed by the Court with directions to grant appellants leave to amend their complaint to allege a cause of action for nuisance.