Renz

Plaintiffs own and reside on real property which lies south of the San Benito County Fairgrounds (hereafter the fairgrounds). Defendant *63 is the governmental entity which owns and operates the fairgrounds. Defendant began utilizing the fairgrounds for non-fair-time motorcycle races in the mid-1980’s. Plaintiffs complained about these races, and they became increasingly annoyed by noise and fumes emanating from the fairgrounds during these non-fair-time motorcycle races. Plaintiffs asked defendant to rectify this problem. Defendant assured plaintiffs that it was working on the problem. Instead, however, defendant changed its noise limit to permit the motorcycle races to produce significantly more noise. Plaintiffs continued to complain about the noise, and defendant continued to indicate that-it was working to rectify the problem. After allowing defendant a significant amount of time to resolve the problem without apparent success, plaintiffs filed a claim in 1990 with the State Board of Control and thereafter brought suit against defendant seeking an injunction and damages for nuisance and inverse condemnation. The action was tried to the court, and the court issued a…

Concurring.—I agree with the result my colleagues reach. In particular I agree that, where a plaintiff seeks both an injunction and damages as remedies for a continuing nuisance, it is proper, in the interests of justice, to award damages for harm caused by continuation of the nuisance after the action is filed and until the nuisance is actually enjoined. But I would reach this conclusion by somewhat different reasoning.

The common law has long recognized, as a general rule, that although the facts constituting the plaintiff’s claim (or “cause of action”) must have occurred before his or her complaint is filed, the plaintiff should be entitled to recover damages for all harms resulting from the actionable facts, including harms resulting while the action is pending and even harms reasonably certain to occur in the future. (McCormick, Law of Damages (1935) § 13, p. 47.) Civil Code section 3283 codifies this well-established rule of damages.

Continuing nuisance presents a special situation. As explained and rationalized in several of the cases my colleagues have discussed, every repetition of a continuing nuisance is considered a separate wrong for which the person injured may…

[Opinion certified for partial publication. [‡] ]

OPINION

MIHARA, J.

Plaintiffs own and reside on real property which lies south of the San Benito County Fairgrounds (hereafter the fairgrounds). Defendant is the governmental entity which owns and operates the fairgrounds. Defendant began utilizing the fairgrounds for non-fair-time motorcycle races in the mid-1980's. Plaintiffs complained about these races, and they became increasingly annoyed by noise and fumes emanating from the fairgrounds during these non-fair-time motorcycle races. Plaintiffs asked defendant to rectify this problem. Defendant assured plaintiffs that it was working on the problem. Instead, however, defendant changed its noise limit to permit the motorcycle races to produce significantly more noise. Plaintiffs continued to complain about the noise, and defendant continued to indicate that it was working to rectify the problem. After allowing defendant a significant amount of time to resolve the problem without apparent success, plaintiffs filed a claim in 1990 with the State Board of Control and thereafter brought suit against defendant seeking an injunction and damages for nuisance and inverse condemnation.…