Birke v. Oakwood Worldwide, et al.

A father sued on behalf of his 5-year-old asthmatic daughter, alleging in a “Complaint for Public Nuisance,” that “Defendants have 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 [apartment] complex, including enclosed areas.”  See “Asthmatic’s Father Sues Over Secondhand Smoke, Los Angeles Times, June 30, 2006, B4.  On December 5, 2006, a judge dismissed the lawsuit, ruling that the girl did not have the legal standing needed for the lawsuit to proceed.  The judge also gave Sohigian two months to file an amended complaint or appeal the ruling.  On appeal, the Court of Appeal of the State of California, Second Appellate District, at 169 Cal.App.4th 1540,  87 Cal.Rptr.3d 602, 2009 Cal. App. LEXIS 19, reversed the trial court’s order sustaining Oakwood’s demurrer to the complaint.  The Court of Appeal ruled that Melinda Birke “has pleaded a cause of action for public nuisance sufficient to withstand a demurrer” since she alleged that her asthmatic and allergic symptoms after being exposed to secondhand smoke were of a different kind rather than a different degree, compared to the harm suffered by the community from such exposure to secondhand smoke.  The Court of Appeal sustained Oakwood’s demurrer as to the cause of action for a violation of the Americans With Disabilities Act.   See McKee, M., “Calif. Court Revives Secondhand Smoke Case Against Apartment Complex,” The Recorder, January 14, 2009.

(Calif. Superior Court, Los Angeles County, Northwest District, Docket No. LC075094, 2006).