By John B. Fraher, Esq. of Gordon Rees Scully Mansukhani, LLP PokA(C)mon Go has quickly become a global phenomenon, but no one seems to be asking, "is placing virtual creatures on the property of others legal?" PokA(C)mon Go is an app for mobile devices that places virtual PokA(C)mon, PokeStops and Gyms on a computer generated map. PokA(C)mon are virtual creatures that players try to catch by throwing virtual balls at them by using the touchscreen of their phone. Pokestops are basically signposts that appear on the map where players collect the balls to throw at PokA(C)mons and other items that enhance game play. Gyms are where players battle each other with their PokA(C)mons. This type of game is a new genre called augmented reality. Sounds like fun. But letaEUR(TM)s imagine Sid, is the owner of a shopping center and within days of the gameaEUR(TM)s release, packs of children and young adults swarmed it, taking up residence on the sidewalk, while waiting for PokA(C)mon to appear on their phones. Due to the large number of teenagers hanging out on the sidewalk, customers were having a hard time getting into stores, forcing Sid to hire an extra security guard to ask the players not to block entrances. Imagine further this went on for months and as the bills began to mount for the extra security patrols, Sid wanted the PokA(C)mon off his property. What can he do? In California, Sid may have at least two options: sue the game maker for 1) nuisance, and 2) trespass. A nuisance is a condition created by another that interferes with a property owners use or enjoyment of their property to which they did not consent.¹ "Liability for nuisance does not require proof of damage to the plaintiffaEUR(TM)s property; proof of interference with the plaintiffaEUR(TM)s use and enjoyment of that property is sufficient.aEUR? ² Here, the gamers hanging out on the sidewalk are a nuisance, as they are interfering with SidaEUR(TM)s ability to use his property to effectively sell products to paying customers. Whereas under these facts, the trespass would be the act of the game maker causing the game players to enter SidaEUR(TM)s property to capture PokA(C)mon without his permission, resulting in harm to Sid.³ Further, aEURoe[a]n intent to damage is not necessaryaEUR?.⁴ Here, Sid has been harmed by having to pay for extra security patrols. Thus, it seems likely Sid wins both his nuisance and trespass claims. Or does he? What if the company making the game has no contacts in California? Does a court in California have personal jurisdiction over the game maker for placing virtual creatures around SidaEUR(TM)s shopping center? That has yet to be decided, in the meantime, welcome to the brave new world of augmented reality. ^{1 Judicial Council of California Civil Jury Instructions (2016), No. 2021. 2 San Diego Gas & Elec. Co. v. Superior Court (1996) 13 Cal.4th 893, 937. 3 Judicial Council of California Civil Jury Instructions (2016), No. 2000. 4 Meyer v. Pacific Employers Insurance Co. (1965) 233 Cal.App. 2d 321, 326.} For additional information, please contact John at jfraher@gordonrees.com or (619) 696-6700