Birke

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 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 [ 216 Cal.Rptr. 345 , 702 P.2d 503 ] [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,…

I fully agree with the majority’s analysis of Melinda Birke’s claim for public nuisance based on the presence of secondhand (or environmental) tobacco smoke in the outdoor common areas of her apartment complex and concur in its holding the *1554 trial court erred in sustaining Oakwood Worldwide’s demurrer to that cause of action. However, I respectfully dissent from its conclusion Birke has not adequately pleaded a cause of action for violation of the Americans with Disabilities Act of 1990 ( 42 U.S.C. § 12101 et seq.) (ADA).

The majority accurately states a number of federal cases have held, while transient lodging like inns, hotels and motels is covered by the ADA ( 42 U.S.C. § 12181 (7)(A)), 2 residential housing such as apartments and condominiums is not. (See, e.g., Indep. Housing Services v. Fillmore Ctr. (N.D.Cal. 1993) 840 F.Supp. 1328, 1344, fn. 14 [“[T]he legislative history of the ADA clarifies that ‘other place of lodging’ does not include residential facilities. H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 383 (1990).”]; accord, Phibbs v. Am. Prop. Mgmt. (D. Utah, Mar. 19, 2008, No. 2:02CV00260 DB) 2008 U.S.Dist. Lexis 21879; Lancaster v. Phillips Investments,…

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 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 [ 216 Cal.Rptr. 345 , 702 P.2d 503 ] [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.

Oakwood manages and operates numerous apartment complexes including the Oakwood Apartments in Woodland Hills, California where Birke and her parents resided.…