Metropolitan News-Enterprise


Tuesday, January 13, 2009


Page 1


Court of Appeal Revives Secondhand Smoke Nuisance Claim


By SHERRI M. OKAMOTO, Staff Writer


This district’s Court of Appeal yesterday revived a 5-year old Woodland Hills girl’s public nuisance claim against the owner of the apartment building where she resides based on the landlord’s alleged failure to limit secondhand cigarette smoke in the outdoor common areas of the complex.

Div. Seven reversed Los Angeles Superior Court Judge Richard B. Wolfe’s order sustaining Oakwood Worldwide’s demurrer to Melinda Birke’s complaint, ruling that the child had standing to sue and had adequately pled her claim.

Oakwood operates and manages the Oakwood Apartments in Woodland Hills where Birke’s family has lived for over 16 years, the girl’s father, Los Angeles attorney Johnny Birke, told the MetNews.

Common Areas

He recalled that he had encountered secondhand cigarette smoke at the complex’s pool, picnic area, and playground shortly after Melinda had turned 2 and was diagnosed with asthma. Birke asked Oakwood to ban smoking in those areas, but Oakwood declined, and Birke filed suit as guardian at litem for his daughter.

The complaint alleged that Oakwood “allowed, encouraged and approved a toxic, noxious, hazardous, offensive—and in fact carcinogenic—condition to be present in all of the outdoor common areas of the complex,” which “obstructed the free use of the property, so as to interfere with the comfortable enjoyment of life or property by residents.”

It also alleged that Melinda suffered asthma and allergic reactions as a result of her exposure to the smoke, and that the general public suffered from an increased risk of heart disease and lung cancer as a result of the smoke as well.

Oakwood demurred to the complaint, claiming that Melinda lacked standing to sue for public nuisance under Civil Code Sec. 3493 because she did not claim to suffer a special injury that was different in kind from the general public. She also lacked standing to assert a private nuisance claim because she was a minor with no personal tenancy interest in the apartment, Oakwood contended.

General Irritation

Citing Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116—which held general irritation to the respiratory tract suffered by the public at large and an individual’s aggravated allergies and respiratory disorders were simply different degrees of the same kind of ailments—Wolfe found that the complaint stated insufficient facts to demonstrate Melinda’s injury differed in kind from the harm sustained by the general public. He sustained Oakwood’s demurrer with leave to amend.

Melinda then filed an amended complaint asserting a claim for public nuisance and arguing that the conditions also constituted a private nuisance. In addition, the pleading asserted a claim under the Americans with Disabilities Act, and claimed that the exposure to smoke had caused Melinda to develop pneumonia on three occasions.

Indistinguishable Injuries

Oakwood again demurred, and Wolfe sustained the demurrer without leave to amend. Wolfe found that Melinda’s asserted injuries were still not distinguishable from the harm sustained by the general public and that she could not establish a claim for private nuisance because she lacked a tenancy interest.

He also held the ADA was inapplicable because the apartments were not a public accommodation within the meaning of the act.

Writing for the appellate court, Justice Fred Woods explained that when a nuisance is a private as well as public one, there is no requirement that a plaintiff suffer damage different in kind from the general public.

“To the extend Ventuno…can be read as precluding an action to abate a public nuisance by a private individual who has suffered personal injuries as a result of the challenged condition, we believe it is an incorrect statement of the law,” he added.

Based on the Supreme Court’s decision in Acadia California Ltd. v. Herbert (1960) 54 Cal.2d 328—which held that the occupant of land who has sustained physical injury proximately caused by a trespass or a nuisance could recover damages on behalf of himself and his family—Woods reasoned that Melinda had a standing to bring a private nuisance claim based on alleged interference with her right to enjoy the common area of the Oakwood complex.

As a landlord, Oakwood had a duty to maintain its property in a reasonable safe condition, Woods continued. The issue of whether the landlord’s failure to impose a limitation on smoking in common areas that Melinda had a right to use and enjoy breached its duty could not be resolved on a demurrer, Woods wrote.

However, Woods concluded that order sustaining the demurrer without leave to amend for the ADA cause of action was appropriate because the ADA does not apply to residential housing such as apartments and condominiums.

Justice Frank Y. Jackson concurred, but Presiding Justice Dennis M. Perluss disagreed with Woods’ conclusion regarding the ADA.

Perluss explained that the ADA applies to boarding houses, dormitories, resorts, and other places of transient lodging. Noting that allegedly Oakwood offered and advertised temporary-stay, resort-like facilities with fully furnished units, Perluss contended the complex could satisfy the definition of transient lodging.

Additionally, Perluss argued, the common areas at issue were places of recreation to which the act could apply as well.

Melinda was represented on appeal by her father and by Los Angeles attorney Michael R. Sohigian.

Johnny Birke said that he is “very proud” of Melinda, and that he believes Melinda, now 7, “appreciates the significance to a certain extent, about what she’s done, and the wall she’s knocked down for hundreds of thousands of people, if not millions of people, in this case.”

Sohigian said that he believes Melinda’s claim was the first to assert a private right of action for a public nuisance based on outdoor secondhand cigarette smoke and anticipated that yesterday’s decision would  “influence those who own residential rental property to pay more attention to protecting their tenants from that hazard.”

Oakwood was represented by Dale F. Kinsella, Gregory P. Korn, Jeremiah Reynolds and Amber Holley of Kinsella Weitzman Iser Kump & Aldisert. Counsel for Oakwood could not be reached for comment.

The case is Birke v. Oakwood Worldwide, 09 S.O.S. 269.


Copyright 2009, Metropolitan News Company