Birke

INTRODUCTION

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. In a prior opinion, we reversed the trial court’s order sustaining Oakwood’s demurrer to the nuisance cause of action alleged in Birke’s first amended complaint without leave to amend. (Birke v. Oakwood (2009) 169 Cal.App.4th 1540 (Birke I).) As Birke’s first appeal was from the trial court’s ruling on demurrer, we accepted the factual allegations of the operative complaint as true. “Whether or not her claims can survive a properly supported summary judgment motion, let alone prevail following a trial,” we found Birke had stated a cause of action for public nuisance sufficient to withstand demurrer. (Birke I, supra, 169 Cal.App.4th at p. 1543.) “To be sure,” we noted, “Birke may not be able to prove the seriousness of the harm she has alleged or establish the harm outweighs the social utility of Oakwood’s conduct.” (Id. at p. 1551, citation omitted.)…