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Birke v. Oakwood Worldwide

January 12, 2009

MELINDA BIRKE, A MINOR, ETC., PLAINTIFF AND APPELLANT,
v.
OAKWOOD WORLDWIDE ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Los Angeles County. Richard B. Wolfe, Judge. Reversed in part, affirmed in part and remanded. (Los Angeles County Super. Ct. No. LC075094).

The opinion of the court was delivered by: Woods, J.

CERTIFIED FOR PUBLICATION

Appellant Melinda Birke (Birke), through her father and guardian ad litem John Birke, filed suit against Oakwood Worldwide (Oakwood) alleging a nuisance cause of action arising out of the failure of Oakwood to limit secondhand smoke in the outdoor common areas of the residential apartment complex where the Birke family resided. The trial court sustained Oakwood's demurrer to the first amended complaint without leave to amend.

Whether or not her claims can survive a properly supported summary judgment motion, let alone prevail following a trial, this court believes Melinda Birke has pleaded a cause of action for public nuisance sufficient to withstand a demurrer. (See Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 922 [in evaluating the sufficiency of a complaint, "'the question of plaintiff's ability to prove [her] allegations, or the possible difficulty in making such proof does not concern the reviewing court'"].) Accordingly, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Oakwood manages and operates numerous apartment complexes including the Oakwood Apartments in Woodland Hills, California where Birke and her parents resided. Oakwood has had a longstanding policy prohibiting smoking in all indoor units and indoor common areas but permits smoking in the outdoor common areas to accommodate tenants and guests who smoke. Oakwood declined previous requests of the father John Birke to ban smoking in the outdoor common areas.

The Initial Complaint

On June 29, 2006, Birke by and through her guardian ad litem, filed a complaint against Oakwood alleging a single cause of action for public nuisance. At that time Birke was a five-year-old girl who lived with her parents in the Oakwood complex. 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" including near the swimming pools, common barbeque areas, playground areas, and outdoor dining areas. The complaint asserted that secondhand smoke was "harmful to health," "indecent and offensive to the senses," and "obstructed the free use of the property, so as to interfere with the comfortable enjoyment of life or property by residents of [Oakwood]." The complaint also cited California Air Resources Board (CARB) and Surgeon General findings that secondhand smoke is "an airborne toxic substance that may cause and/or contribute to death or serious illness," "there is no risk-free level of exposure to secondhand smoke," and that nonsmokers have increased risks of heart disease and lung cancer when exposed to secondhand smoke. The complaint did not allege that the general public suffered from respiratory distress, rather it alleged the general public suffers an increased risk of heart disease and lung cancer and those are different in kind than the aggravation of allergies and asthmatic symptoms that Birke suffered from.

Oakwood's Demurrer

On September 18, 2006, Oakwood demurred to the complaint for public nuisance claiming that Birke lacked standing under Civil Code section 3493 which provides that individuals may assert claims for public nuisance only where they have suffered a special injury that is different in kind, not just degree, from the general public. The demurrer noted that even if Birke were to assert a private nuisance claim, as a minor with no personal tenancy interest in the Oakwood apartment, she would lack standing there also. Oakwood further argued that to the extent Birke has standing, Oakwood did not have a legal duty to prohibit smoking in the outdoor common areas of the complex and thus could not be liable for failing to abate the alleged nuisance.

Ruling on the Demurrer to the Initial Complaint

On December 5, 2006, the court ruled that while the complaint alleged Birke suffered asthma and allergic reactions as a result of the smoke, there were insufficient facts to show why her asthma and allergeric symptoms were of a different kind rather than a different degree. The court relied on Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116 which found that allergies and respiratory disorders are a matter of degree. In addition, the court ruled that while the complaint alleged Oakwood allowed smoking to take place, there were insufficient facts to show Oakwood created or assisted in the creation of the nuisance. The court sustained the demurrer with leave to amend the complaint on or before February 2, 2007.

The First Amended Complaint

In January 2007, Birke filed a first amended complaint and repled the claim for public nuisance. Although denominated as a claim for public nuisance, Birke also argued within the first amended complaint that the conditions constituted a "private nuisance." Specifically, the first amended complaint stated "Also, the nuisance conditions Defendants created, allowed, encouraged and approved constitute a private nuisance, because they substantially interfered as alleged with Melinda's enjoyment of land she occupied." Furthermore, claims under the Americans with Disabilities Act (ADA) and California Fair Employment and Housing Act (FEHA) were added, as were several additional Oakwood-related entities as defendants. The allegations were virtually identical to the initial complaint but an allegation was added that a private security guard for Oakwood smoked a cigarette in the pool area on one occasion.

The allegations of the first amended complaint also included statements that the California primary outdoor air regulatory agency and the highest public health officer in the United States had found secondhand smoke to be a toxin and carcinogen that increases the risk of lung cancer and heart disease at any amount of exposure, and that a growing number of California cities such as Calabasas, Santa Monica and Dublin now prohibit smoking in outdoor public areas as a public nuisance. The complaint alleged that the effect of secondhand smoke on Birke's asthma, which led to three bouts of pneumonia, was a noxious, hazardous and offensive condition which would offend, annoy or disturb an ordinary reasonable person.

The complaint further alleged secondhand smoke in the outdoor common areas interfered with the rights of a substantial community of persons and caused her a different kind of injury, i.e., aggravation of asthma and allergies, than it caused the community (i.e. heightened risk of heart disease and lung cancer); and that the conditions created by Oakwood in the outdoor common areas interfered with the use and enjoyment of those areas by Birke and others. Also, it was alleged that Oakwood's refusal to abate the nuisance was "demonstrably malicious and oppressive, and in frank disregard of the right and safety of others, and warrant[ed] imposing against Defendants punitive damages, to punish and make examples of Defendants and to deter them and others from similar future acts."

Demurrer to the First Amended Complaint Oakwood Demurred to the First Amended Complaint Claiming

Birke again failed to plead facts demonstrating she suffered a special injury, different in kind from that of the general public, necessary to support a public nuisance claim. Moreover, Oakwood argued Birke failed to plead sufficient facts supporting the allegation that Oakwood created a public nuisance and the ADA violation claim ...


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