Thomas R. Curry, #50348
City Attorney
Daniel G. Sodergren, #144182
Assistant City Attorney
Gabrielle P. Whelan, #173608
Deputy City Attorney
3500 Robertson Park Road
Livermore, California 94550
Telephone: (925)373-5120
Attorneys for Defendants
CITY OF LIVERMORE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA

TABLE OF CONTENTS

TABLE OF AUTHORITIES

I. INTRODUCTION

II. ARGUMENT

A. Plaintiff Offers a Tortured Interpretation of Section 230 of the Federal Communications Decency Act

1. Plaintiff's Reliance on Mainstream Loudoun is Misplaced

a. The Immunity at Issue in Maintream Loudoun is Not the Same Type of Immunity at Issue Here

b. Mainstream Loudoun Involves a Fundamentally Different Issue

c. Mainstream Loudoun Cannot be Read to Suggest that Libraries Do Not Fall Under the Scope of Section 230 or That the Section's Immunities Do Not Apply to State Law Causes of Action

2. Plaintiff Appears to be Confused Over the Distinction Between Civil and Criminal Liability

3. Plaintiff's "Public Exhibitor" Hypotheticals Confirm That She is Confused Over the Distinction Between Criminal and Civil Liability

B. The First Cause of Action for Waste of Public Funds Cannot Be Cured By Way of Amendment

C. Plaintiff Cannot State a Public Nuisance Cause of Action

1. Plaintiff Cannot Allege a Special Injury Different in Kind From That Suffered by the General Public

2. A Public Nuisance Action is Precluded by Civil Code Section 3482, Because Unrestricted Internet Access is Specifically Contemplated in the Library 's Internet Policy

D. In Spite of Plaintiff's Refusal to Acknowledge the California Tort Claims Act, the Act Precludes Plaintiff 's "Premises Liability" Cause of Action by the California Tort Claims Act

III. CONCLUSION

Blumenthal v. Drudge (D.D.C. 1998) 992F.Supp. 44 3

Mainstream Loudoun v. Board of Trustees of the LoudounCounty Library (E.D.Va. 1998) ___ F.Supp.___ (1998 WL 164330) 1, 2, 3, 4

St. Joseph Stock Yards Company v. United States (1936) 298 U.S. 38, 52 56 S.Ct.720, 726, 80 L.Ed. 1033 4

Zeran v. America Online, Inc. (4th Cir. 1997)129 F.3d 327 2, 3, 4, 5

FEDERAL STATUTES

47 U.S.C.A. section 230 1, 2, 3, 4, 5, 6, 10

STATE CASES

Beck Devlopment Company v. Southern Pacific Transportation Company (1996) 44Cal.App.4th 1160 8

Brown v. Petrolane, Inc. (1980) 102 Cal.App.3d 720 8

Buchanan v. Los Angeles County Flood Control Distict (1976) 56 Cal.App.3d 757 8

County of Los Angeles v. Superior Court (1967) 253 Cal.App.2d 670 6

Fort Emory Cove Boatowners Association v. Cowett (1990) 221 Cal.App.3d 508 7

Institoris v. City of Los Angeles (1989) 210 Cal.App.3d 10 8

Koll-Irvine Center Property Owners Association v. County of Orange (1994) 24Cal.App.4th 1036 8

Minsky v. City of Los Angeles (1974) 11 Cal.3d 113 10

National Organization for Reform of Marijuana Laws v. Gain (1979) 100Cal.App.3d 586 6

People ex rel. Busch v. Projection Room Theatre (1976) 17 Cal.3d 42 7

Sackett v. Wyatt (1973) 32 Cal.App.3d 492 10

Vater v. County of Glenn (1958) 49 Cal.2d 815 10

Venuto v. Owens-Corning Fiberglas Corporation (1971) 22 Cal.App. 116 8

Code of Civil Procedure

Section 526a 6, 7

Civil Code

Section 731 7

Section 3482 9

Section 3493 7

Government Code

Section 810 9

Penal Code

Section 313.1 6

I.  INTRODUCTION

In the Opposition to the Demurrer of the City of Livermore("Opposition"), Plaintiff concedes that her Complaint forInjunctive Relief ("Complaint") should be dismissed, but requests that theCourt allow her to amend the Complaint. (Opposition, pp. 4-5 and 10.) Allowing leave toamend in this case would be futile and a waste of time for both parties and the Court.This is not a case where anything can be accomplished by adding any facts or pleading in adifferent manner. This is a case where Plaintiff is asking for something the law does notprovide.

II.   ARGUMENT

A. Plaintiff Offers a Tortured Interpretation of Section 230 of the Federal Communications Decency Act.

Plaintiff argues that section 230 of the Communications Decency Act (47 U.S.C.A. section 230) does not apply in this casebecause: (1) the federal district court in MainstreamLoudoun v. Board of Trustees of the Loudoun County Library (E.D.Va 1998) 2F.Supp.2d 783, refused to apply the section to a public library (Opposition, p. 2); (2)section 230 does not affect the enforcement of obscenity and child pornography statutes (Id.at p. 3); and (3) Congress could not have intended to provide what Plaintiff terms"public exhibitor" immunity (Id. at pp. 3-4). These arguments are basedon an incomplete and confused reading of the law.

1.  Plaintiff's Reliance on Mainstream Loudoun is Misplaced.

Plaintiff relies heavily on the court's opinion in Mainstream Loudoun to supporther argument that section 230 is inapplicable. (Opposition, p. 2.) Mainstream Loudouninvolves the constitutionality of a county library policy that requires site-blockingsoftware be installed on the library's computers. (Mainstream Loudoun v. Board ofTrustees of the Loudoun County Library, supra, 2 F.Supp. 783, 787.) Inthat case, the court correctly concludes that section 230 does not immunize publiclibraries from constitutional challenges to their Internet filtering policies. (Id.at p. 790.)

Plaintiff's blind reliance on this language to support her arguments is misplaced. Asdescribed below, the court in Mainstream Loudoun is not only dealing with adifferent type of immunity, it is dealing witha different issue altogether. Without taking into account the context of the court'sopinion in Mainstream Loudoun, Plaintiff relies on dicta in the court's opinion toform an interpretation of the case that contradicts the plain meaning of section 230.

a.  The Immunity at Issue in Mainstream Loudoun is Not the Same Type of Immunity at Issue Here.

As explained by the court in Zeran v. AmericaOnline, Inc. (4th Cir. 1997) 129 F.3d 327, the Congressional purpose in enactingsection 230 was twofold. First, section 230 was enacted to ". . . maintain the robustnature of Internet communication and, accordingly, to keep government interference in themedium to a minimum." (Id. at p. 330; 47 U.S.C.A. § 230, subds. (b) (1) and(2).¹) Second, section 230 was enacted to ". . .encourage service providers to self-regulate the dissemination of offensive material over their services." (Zeran v. America Online,Inc., supra, 129 F.3d 327, 331; 47 U.S.C.A. § 230, subds. (b) (3) and (4).)

The twofold purpose in enacting section 230 is embodied in two distinct forms ofimmunity. First, subdivision (c) (1) of section 230 establishes what may be termed"content provider" immunity:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Second, subdivision (c) (2) of section 230 establishes what may be termed"filtering provider" immunity:

No provider or user of an interactive computer service shall be held liable on account of - -

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

The "content provider" immunity derived from subdivision (c) (1) of section230 is the type of immunity at issue in Zeran v. America Online, supra, 129F.3d 327 and Blumenthal v. Drudge(D.D.C. 1998) 992 F.Supp. 44. Both of these cases involve the transmission of offensivestatements over the Internet via the service provider America Online.

Unlike Zeran and Blumenthal, the type of immunity at issue in MainstreamLoudoun is the "filtering provider" immunity derived from subdivision (c)(2) of section 230. The type of immunity at issue in this case is "contentprovider" immunity, not the "filteringprovider" immunity at issue in Mainstream Loudoun.

b.  Mainstream Loudoun Involves a Fundamentally Different Issue.

As stated above, the court in Mainstream Loudoun correctly concludes that the"filtering provider" immunity ofsection 230 cannot be applied so as to immunize government regulation of Internet speechfrom constitutional review. (Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, supra, 2F.Supp. 783, 790 [". . . § 230 was not enacted to insulate government regulation ofInternet speech from judicial review."].) This conclusion is firmly rooted in thebasic principle that ". . . [u]nder our system [of government] there is no warrantfor the view that the judicial power of a competent court can be circumscribed by anylegislative arrangement designed to give effect to administrative action going beyond thelimits of constitutional authority." (St. Joseph Stock Yards Company v. UnitedStates (1936) 298 U.S. 38, 52 56 S.Ct. 720, 726, 80 L.Ed. 1033.)

Unlike Mainstream Loudoun, the instant case does not involve governmentregulation of Internet speech, nor does it involve the constitutionality of suchregulation. This case involves a challenge to the City's policy of not regulatingInternet speech based on state statutory grounds. The City's nonregulation of the Internet fits squarely withinthe "content provider" immunity of section 230 and directly furthers theCongressional intent behind that immunity: to ". . . maintain the robust nature ofInternet communication and, accordingly, to keep government interference in the medium toa minimum." (Zeran v. America Online, Inc., supra, 129 F.3d 327,330; 47 U.S.C.A. § 230 subds. (b) (1) and (2).) Congress's intent behind the immunities contained in section230 was not to provide a shield against constitutional review, but to provide a shieldagainst challenges based on state law such as is the case here.

c.  Mainstream Loudoun Cannot be Read to Suggest that Libraries Do Not Fall Under the Scope of Section 230 or That the Section's Immunities Do Not Apply to State Law Causes of Action.

Plaintiff relies on dicta in Mainstream Loudoun to argue that section 230 wasnot enacted to protect government entities from judicial review or to bar actions fordeclaratory and injunctive relief. (Opposition, p. 2; Mainstream Loudoun v. Board ofTrustees of the Loudoun County Library, supra, 783 F.Supp. 783, 790 [". . . [e]ven if § 230 were construed to apply to public libraries , defendants citeno authority to suggest that the 'tort-based' immunity to 'civil liability' described by§ 230 would bar the instant action, which is for declaratory and injunctiverelief."]

Plaintiff's hasty interpretation of this language, outside of the context of the factsand issues involved in Mainstream Loudoun, contradicts the plainmeaning of section 230.

As described in the City's initial Memorandum of Points and Authorities in Support of its Demurrer("Initial Memorandum"), libraries expressly fall within the scope ofsection 230. (Initial Memorandum, pp. 5-6.) The definition of the term "interactive computer service" contained in subdivision (e) (2) of section 230includes ". . . any information service,system, or access software provider that provides or enables computer access by multipleusers to a computer server, including specifically a service or system that providesaccess to the Internet and such systems operated or services offered by libraries oreducational institutions. (Emphasis added.)."

Also, as described in the City's InitialMemorandum, subdivision (d) (3) of section 230 extends the scope of the section's preemption to both "liability"and "causes of action" regardless of whether the relief requested isfor damages or for injunctive and declaratory relief. (Initial Memorandum, p.5; 47U.S.C.A. § 230, subd. (d) (3) ["No cause of action may be brought and noliability may be imposed under any State or local law that is inconsistent with thissection."]; Zeran v. America Online, Inc.,supra, 129 F.3d 327, 330 ["By itsplain language, § 230 creates a federalimmunity to any cause of action that would make service providers liable forinformation originating with a third-party user of the service." (Emphasis added.).) Injunctive relief is simplya remedy and not a cause of action, and a cause of action must exist before injunctiverelief may be granted. (Id.) Or, stated another way, injunctive relief cannot begranted in a vacuum. If Congress wanted to limit section 230's scope to damage actions, itwould not have included the words "[n]ocause of action may be brought . . ." insubdivision (d) (3).

2.  Plaintiff Appears to be Confused Over the Distinction Between Civil and Criminal Liability.

Plaintiff contends that section 230 does not apply here because subdivision (d) (1) ofthe section provides that it should not be construed to impair the enforcement of criminallaws.² (Opposition,p. 3.) Plaintiff goes on to state that "[t]hegravamen of this suit is that the defendant library is knowingly soliciting, aiding thetransmission of, and providing obscene and harmful images, transmitted from both withinthe state and from without the state, to minors."(Id.)

If Plaintiff is contending that library employees are violating federal or statecriminal laws the appropriate course of action would be for her to file a complaint withthe United States Attorney's Office or with theAlameda County District Attorney's Office. TheComplaint she brought against the City alleges civil causes of action and requests a civilremedy.

Furthermore, to the extent the Plaintiff is contending that the City has negligentlyallowed or is allowing third-party criminal activity to occur at its library, she is alsoalleging a civil cause of action against the City. (See discussion in Initial Memorandumat pp. 13-15.)

3.  Plaintiff's "Public Exhibitor" Hypotheticals Confirm That She is Confused Over the Distinction Between Criminal and Civil Liability.

Plaintiff offers two hypothetical fact situations to support her argument that Congressnever intended section 230 to provide what she calls "publicexhibitor" immunity. (Opposition at pp.3-4.) Both hypotheticals involve men engaging in criminal activity with children. (Id.)Nothing in section 230 would preclude the criminal prosecution of the men under eitherfederal or state law. (47 U.S.C.A. § 230, subd.(d) (1) ["Nothing in this section shall beconstrued to impair the enforcement of . . . any . . . Federal criminal statute."].)³  Onceagain, Plaintiff has failed to recognize that the causes of action she is advancing are civilin nature.

B.  The First Cause of Action for Waste of Public Funds Cannot Be Cured By Way of Amendment.

Plaintiff concedes that she has not alleged sufficient facts to state a cause of actionunder Code of Civil Procedure section 526a for waste of public funds. (Opposition, pp.4-5.) At the same time, Plaintiff has asked this court for leave to amend in order thatshe attempt to properly allege standing under the section. (Id. at p.10.)

In this case, allowing the Plaintiff to amend her Complaint is futile because standingis only part of her problem. In order to allege a cause of action under section 526a, thetaxpayer must plead facts sufficient to show that the expenditure of public funds is infact illegal. (County of Los Angeles v. Superior Court (1967) 253 Cal.App.2d670, 678; National Organization for Reform of Marijuana Laws v. Gain (1979) 100 Cal.App.3d 586, 598; Fort EmoryCove Boatowners Association v. Cowett (1990) 221 Cal.App.3d 508, 515.)

The Complaint does not allege (see Complaint, pp. 3-4), nor could it be amended toallege, that spending public funds to provide unfettered Internet access is illegal. Theallegations in the Complaint clearly establish that the Plaintiff is unhappy with the City's Internet Policy and thinks it is a waste of publicfunds to provide unfettered access, but under section 526a that is not sufficient to statea legal cause of action. For obvious reasons, section 526a does not provide relief tothose taxpayers who are simply unhappy with the policy choices of the City and thinkimplementation of those policies is a waste of money. If a taxpayer is not satisfied withthe policies choices of the City, his or her remedy is at the ballot box. In order toinvoke section 526a there must be some illegality.

C.  Plaintiff Cannot State a Public Nuisance Cause of Action.

1.  Plaintiff Cannot Allege a Special Injury Different in Kind From That Suffered by the General Public.

In the Opposition, Plaintiff correctly points out that whether or not she has standingto bring a public nuisance action depends upon whether she has alleged a "special injury."(Opposition, p.5; Civil Code § 3493 ["A private person may maintain an action for apublic nuisance, if it is specially injurious to himself, but not otherwise."].)⁴  Plaintiffclaims that she has satisfied the special injury requirement of Civil Code section 3493because she has alleged that her son ". . .suffered actual psychological injury by being repeatedly exposed to material deemed obscene material and material 'harmful to minors'." (Opposition, p. 5.) This is not sufficient tostate a legal cause of action.

Simply alleging an injury does not meet the requirements of Civil Code section 3493.The special injury must be of a character different in kind and not merely indegree from that suffered by the general public.⁵  (Koll-IrvineCenter Property Owners Association v. County of Orange (1994) 24 Cal.App.4th 1036,1040-1041 ["Koll-Irvine argues itsallegations of mental anguish, risk of higher insurance premiums, diminished propertyvalues and reduced usefulness of its premises constitute unique damages due to itsproximity to the Fuel Farm. But these damages apply to all the homes and businesses in thearea of the airport."]; Institoris v.City of Los Angeles (1989) 210 Cal.App.3d 10, 21 ["Ingeneral, the annoyance and inconvenience suffered by Plaintiff (interruption of televisionand radio communication, interruption of sleep and general annoyance), which is the basisfor the emotional distress claim, is the same kind as that suffered by other residents inthe general vicinity of Plaintiff's property;the only difference is the degree to which a particular resident experiences the aircraftannoyance."]; Brown v. Petrolane,Inc. (1980) 102 Cal.App.3d 720, 726 [Fear of a liquefied petroleum gas storagefacility near plaintiffs' homes, which werelocated in an area of recurring seismic activity, was a fear that differed betweenindividuals within the community, if at all, in degree rather than kind.]; Venuto v.Owens-Corning Fiberglass Corporation (1971) 22 Cal.App.3d 116, 124 -125 ["In essence the complaint alleges nothing morethan that the health of the general public and that of plaintiffs, as members of the public, is being injured because of defendant's activity [manufacturing fiberglass], but that thehealth of each plaintiff is being injured to a greater degree [because of their allergiesand respiratory disorders]. Plaintiffs' allegeddamage is, therefore, not different in kind but only in degree from that shared by thegeneral public."].)

Plaintiff's Complaint makes clear that thealleged injuries suffered by her son are not different in kind from those allegedlysuffered by the general public. (See Complaint, p. 4, &25 ["Moreover, any person who is in thevicinity of the computer and glances at it when obscene images are being displayed will beexposed to obscene material even if they did not intend to view it."].) As was stated in the City's Initial Memorandum, the Library is open to thepublic and Internet access is available to all patrons. (Initial Memorandum, p. 12.) Thealleged injuries suffered by Plaintiff's son maybe different in degree by those allegedly suffered by other library patron, but they arenot different in kind.

2.  A Public Nuisance Action is Precluded by Civil Code Section 3482, Because Unrestricted Internet Access is Specifically Contemplated in the Library's Internet Policy.

The City does not dispute that, under Civil Code section 3482 (which bars an action fornuisance against a public entity where the alleged wrongful acts are expressly authorizedby statute), the statute must contemplate the doing of the very act which occasions theinjury. (Opposition, p. 7.) Plaintiff fails to acknowledge, however, that the allegedwrongful act here (unrestricted Internet access) is specifically contemplated in theLibrary's Internet Policy. Not only does thePolicy expressly contemplate unrestricted Internet access, it also contemplates thatminors will be using the Library's computers:

Parents and guardians are encouraged to work closely with their children. Parents areexpected to monitor and supervise children's useof the Internet in selecting material that is consistent with personal and family values.The Livermore Public Library does not provide this monitoring or supervision.

(See Initial Memorandum, pp. 3-4.)

D.  In Spite of Plaintiff's Refusal to Acknowledge the California Tort Claims Act, the Act Precludes Plaintiff's "Premises Liability" Cause of Action.

Responding to Plaintiff's causes of actionfor declaratory relief and "premises liability" in its Initial Memorandum, the City discussesin detail the requirements of the California Tort Claims Act (the "Tort Claims Act") (Gov. Code, § 810 etseq.). (Initial Memorandum, pp. 8, 13-15.) Despite this discussion, however, Plaintiffdoes not even attempt to delve into the Tort Claims Act in order to justify her "premises liability" theory. (See Opposition, pp.7-8.) Instead, Plaintiff simply offers more hypotheticals which have no bearing to thiscase. (Id. at p. 8.) Whether she likes it or not, Plaintiff is limited to the factsalleged in her Complaint and the law as set forth in the Tort Claims Act.

In its Initial Memorandum, the City liberally construed the Plaintiff's allegations inorder to somehow find some basis for them in the Tort Claims Act. (Initial Memorandum, p.14.) If Plaintiff knew of some other argument under the Act, she should have mentioned itin her Opposition. The fact remains that, at best, the Plaintiff is arguing that providingunfettered Internet access to minors is a dangerous condition of public property becauseit increases the possibility that minors will be exposed to obscene and harmful materialposted on the Internet by third-parties. (See id. ) The fact also remains that,under the Tort Claims Act, in order for liability to be imposed in such a case, thethird-party conduct must be coupled with a physical defect of the property. (See id.)Such a defect does not exist here.

III.  CONCLUSION

The City realizes that, even if the Court grants the Demurrer, it must allow leave toamend if there is a reasonable possibility that the defects in the Complaint can be curedby amendment. (Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118.)However, where as in this case, there is no reasonable possibility that the defects can becured by amendment because of the substantive law involved, sustaining a demurrer withoutleave to amend is clearly merited and is not an abuse of discretion. (Vater v. Countyof Glenn (1958) 49 Cal.2d 815, 821; Sackett v. Wyatt (1973) 32 Cal.App.3d 592,603.)

In this case, Plaintiff's claims are precluded by the both the plain language ofsection 230 and all applicable statestatutes. The issue the Plaintiff has identified is one of policy, not a legal one.Internet access policies only raise legal issues if they mandate affirmative governmentrestrictions on Internet speech. This is not the case here. Allowing leave to amend wouldbe futile and allowing this case to go any further would be a waste of time for bothparties and the Court.

Date: ___________________

Respectfully submitted ____________________ Daniel G. Sodergren Assistant City Attorney Attorney for Defendant City of Livermore

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1  47 U.S.C.A. section 230, subdivision (b) provides as follows:

It is the policy of the United States - -

(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;

(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;

(4) to remove the disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and

(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

2  It should be noted that the exemption the Plaintiff relies on (subdivision (d) (1)) applies only to federal criminal statutes. (47 U.S.C.A. § 230, subd. (d) (1) ["Nothing in this section shall be construed to impair the enforcement of section 223 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any other Federal criminal statute."] Certainly this narrow exemption does not apply to the state civil causes of action at issue here.

3  Even though this subsection only speaks to federal criminal statutes, enforcement of state criminal statutes (including Penal Code section 313.1, as cited by the Plaintiff in her hypothetical) is in no way prevented by section 230. (See 47 U.S.C.A. § 230, subd. (d) (3) ["Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section."].)

4  Plaintiff cites People ex rel. Busch v. Projection Room Theatre (1976) 17 Cal.3d 42 to support her standing argument. (Opposition, p. 5.) The public nuisance action in the Busch case was ". . . brought by public officials acting on behalf of the public generally and proceeding under provisions (see Code Civ. Proc., § 731) which expressly confer standing upon them." (Id. at p. 51.) This case is inapplicable here, where the issue is whether a private person has standing to bring a public nuisance action.

5  Plaintiff cites Buchanan v. Los Angeles County Flood Control District (1976) 56 Cal.App.3d 757 and Beck Development Company v. Southern Pacific Transportation Company (1996) 44 Cal.App.4th 1160 to support her claim of special injury. (Opposition, pp. 5-6.) Both of these cases involved physical interference with the enjoyment of the plaintiffs' land. In Buchanan it was erosion of the plaintiff's land through improper activity of a flood control district. (56 Cal.App.3d at 768.) In Beck it was contamination under the plaintiffs property. (44 Cal.App.4th at 1214.) Therefore, both of these cases also involved private nuisances. Where the nuisance is a private as well as public, as in these cases, there is no requirement that the plaintiff suffer damage different in kind from that of the general public. (Venuto v. Owens-Corning Fiberglass, supra, 22 Cal.App.3d 116, 124.) These cases are inapplicable here, where there is no interference with the Plaintiff's property and therefore no private nuisance. Here, the Plaintiff must still suffer damages different in kind from that of the general public.