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Nuisance in small claims court

Sunnyvale, CA |

Can I sue in small claims court neighbor who who operates towing business from home- i.e.driving few times day\night on his towing truck in our residential neighborhood.

Attorney Answers 2

Posted

Only if he is violating any zoning laws/ordinances. If he has a legal right to do it, your suit will probably not be successful. Check with the city and county.

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13 comments

Asker

Posted

this is LDR VS zoning and operating such business in it not allowed, the problem is that he is trying to make it look like that he is just commuting on this towing truck and there is no ordinances about it .

Golnar Sargeant

Golnar Sargeant

Posted

I don't know what "LDR" is so I can not comment. To sue him yourself you would have to show you are suffering damages. The best thing to do is to find out if it is a violation of any city or county codes or if there is an enforcement body for this "LDR".

Asker

Posted

LDR means low density residence, VS means visual sensitivity as I said before there is ordinance against such business but department do not want to use it because they consider it as commuting. Are the damages from noise of the truck during the night enough?

Golnar Sargeant

Golnar Sargeant

Posted

Get other neighbors to complain to the department responsible for enforcing the ordinance, there is strength in numbers. If they still do not want to enforce, there is not much that can be done because those codes are meant for government, and not private enforcement. Just based on what you present, I do not think the noise from the truck at night is enough. For a private right of action for Nuisance, it must be something he does not have the legal right to do (and if the authorities are not deeming it a problem, then he's going to argue he is not violating any laws), and it also has to deprive you of the quiet enjoyment of your property (this is a legal term of art, and the term "quiet" does not mean being quiet as in no noise, it means depriving you of the full enjoyment of your property. People's sensitivities are not taken into account, and a "reasonable person" standard is used--would a reasonable average person be so bothered by this noise that they would be deprived from the fully enjoyment of their residence? If it's just you, and other neighbors are not going to join the fight, it may look like you're just being sensitive. There are 2 types of lawsuits: for damages (but what damages can you show to collect?) and equitable relief as in a restraining order--but again, if he can show the government authorities have not deemed his conduct illegal or violative, then you many have a hard time winning--there has to be some actionable conduct to "restrain".

Asker

Posted

thank you for good answer. The problem is that though other neighbors do not like this situation as well they will not complain because they are afraid of him He used to harass people who are trying to go against him. Do you know what commuting includes- is it only two times a day drive to work and back, or it can be numerous times a day? If it is only 2 times I can prove that he does not have legal rights to go few times a day and it really not commuting but operating business from home which is prohibited in this area.

Golnar Sargeant

Golnar Sargeant

Posted

We have freedom of movement in this country, so I am not aware of any laws defining what a "commute" is. I'm also not sure if driving his tow truck is going to be deemed "operating a business from home". If his business is a tow truck business, people can just call his cell presumably and he can go pick them up. That is different from having an office in your house. I'm not sure what law you are relying on to say that he can not operate a business out of his house. In today's world, a significant amount of the population work from home due to technology such as VPN

Golnar Sargeant

Golnar Sargeant

Posted

rest of my comment: and gotomypc. I am not aware of any such law other than those in violation of zoning laws i.e., someone literally puts up an office building where it is zoned for residential. There is no way for someone to monitor if someone is working from home--so what about real estate agents? Many due most of their work from home, and then put the "open house" signs in their car and drive to the site. There is just no such thing that I've heard of other than someone violating zoning laws--but working from home and operating a business from home is different than putting up a sign on the house that says "come here for tow truck services" where people are driving up to the house and using the house as an office (and even then, he'd have to violate zoning laws in most jurisdictions). The only difference would be if you lived in an HOA. Then, if the HOA's CC&Rs does not allow commercial type vehicles on HOA property, he'd have to park it outside the HOA. That would be taken care of through the HOA board.

Asker

Posted

yes it's about zoning's codes and they show which kind of business can be operated from home based on the inconvenience it can produce for others. If business include a lot car driving in the residential neighborhood it will be prohibited there and one tow truck can be counted as a lot of regular car.

Golnar Sargeant

Golnar Sargeant

Posted

The zoning codes are for government enforcement as I explained above, you can not enforce them. As you previously stated, the government officials have not cited him. Many people own business that require a certain type of vehicle and they are perfectly free to drive that vehicle home. That is not a nuisance. One of my neighbors has a business where she drives a little bus because she runs a day care and she transports the kids in it--she can drive that vehicle anywhere she wants and can park it in front of her house. That does not mean she runs the day care out of her house--she does not. As I previously explained, what you have described, does not rise to the level of a nuisance. You can sue him and see if you win, but based on what you have presented, I do not think you will be successful. Then, after you lose, he is going to be even more empowered because then he'll know conclusively there is nothing you can do to him. If you feel strongly, then you'll have to get a consultation with a local attorney and see if he/she can fashion some case for you. I'm going off what you have presented here.

Asker

Posted

and what do you think about the fact that the door he is driving is private door and all 14 residents of the street are the owners. Can I as owner of 1\14 of the street prohibit him to drive this truck through the street?

Golnar Sargeant

Golnar Sargeant

Posted

I don't know what you mean by "private door". You make it sound like you live in an HOA. I said from the very beginning in my previous response that if you live in an HOA, then you have to read the CC&Rs of the HOA to see if this type of vehicle can be on HOA streets, and if not, then the board should take whatever action they can take per the CC&Rs. If you do not live in an HOA, then the reference of "private" street or door make no sense.

Asker

Posted

sorry- it's should be road. Not it's not a HOA, just we have private street and street association.

Golnar Sargeant

Golnar Sargeant

Posted

I don't know how you have that without it being an HOA. Whatever "it" is that you have, see if there are bylaws/CC&Rs, and if there are, and this type of vehicle is prohibited, then the rules can say what the penalty is, but there has to be a board, such as an HOA board to enforce it. Again, I have never heard of something called a "street association". If there is a board that governs it, and there are rules against it, the board should enforce it. But I can not comment specifically because the premise does not make sense to me.

Posted

Ms. Sargeant is correct. You need to check with your local zoning ordinance laws. You also may want to check into acceptable noise levels at different times of the night and day and see if he is violating the noise ordinance.
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1 comment

Asker

Posted

Thank you ,yes I was thinking to measure the noise level.

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