California Court of Appeal

In a nuisance case over an apartment complex's obligation to eliminate second hand smoke, grant of demurrer is affirmed in part, reversed in part and remanded where plaintiff properly pleaded a public nuisance complaint by alleging that: 1) defendant, by failing to act, created a condition that was harmful to health or obstructed the free use of the common areas of the apartment complex so as to interfere with the comfortable enjoyment of life or property; 2) the condition affected a substantial number of people at the same time; 3) an ordinary person would be reasonably annoyed or disturbed by the condition; 4) the seriousness of the harm outweighed the social utility of defendant's conduct; 5) neither plaintiff (a minor) nor her parents consented to the conduct; 6) plaintiff suffered harm that was different from the type of harm suffered by the general public because she was a resident of the complex unable to enjoy its outdoor facilities; and 7) defendant's conduct was a substantial factor in causing plaintiff's harm.

Appellate Information

• Decided 01/12/2009
• Published 01/12/2009

Judges

• WOODS, J.

Court

• California Court of Appeal

Counsel

• For Appellant:
  
• Law Office of Michael R. Sohigian, Michael R. Sohigian and Johnny Birke for Plaintiff and Appellant Melinda Birke., Colantuono & Levin, Michael G. Colantuono, Los Angeles, and Michael A. Morguess for Amicus Curiae American Lung Association of California.


• For Appellees:
  
• Kinsella Weitzman Iser Kump & Aldisert, Dale F. Kinsella, Gregory P. Korn, Jeremiah Reynolds and Amber Holley, Santa Monica, for Defendants and Respondents.