Birke v. Oakwood Worldwide
Filed 5/29/13 Birke v. Oakwood Worldwide CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
MELINDA BIRKE, a minor, etc.,
Plaintiff and Appellant,
v.
OAKWOOD WORLDWIDE et al.,
Defendants and Respondents.
B234296
(Los Angeles
County
Super. Ct.
No. LC075094)
APPEAL
from a judgment and order of the Superior
Court of
County. Louis Meisinger, Judge. Affirmed.
Law
Office of Michael R. Sohigian, Michael R. Sohigian and Johnny Birke for
Plaintiff and Appellant Melinda Birke.
Kinsella
Weitzman Iser Kump & Aldisert, Dale F. Kinsella, Gregory P. Korn and Amber
H. Melius for Defendants and Respondents.
________________________________________
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.†(
that she had failed to meet her burden of proof and entered judgment in
Oakwood’s favor. Thereafter, the trial
court denied Birke’s motion for attorney fees pursuant to Code of Civil
Procedure section 1021.5. Birke appeals
from the judgment as well as the order denying her request for attorney
fees. We affirm.
FACTUAL AND
PROCEDURAL SUMMARY
“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 long-standing 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.†(Birke I, supra, 169 Cal.App.4th at p. 1543.)
At the time Birke, through her
guardian ad litem, filed her original complaint against Oakwood in 2006, she
was five years old and living with her parents at the Oakwood complex in
Woodland Hills.
title="">[1] She alleged “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 United States 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 from the aggravation of allergies and asthmatic symptoms
that Birke suffered from.†(
1544, original italics.)
In response to Oakwood’s original
demurrer, Birke filed a first amended complaint, repleading her public nuisance
cause of action, but also asserting the conditions at Oakwood constituted a
“private nuisance,†stating: “‘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.’†(Birke
I, supra, 169 Cal.App.4th at p. 1545.)
She also added several additional Oakwood-related entities as
defendants. (Ibid.) The allegations were
virtually identical to the original complaint, with the addition of an
allegation that a private security guard for Oakwood smoked a cigarette in the
pool area on one occasion. (Ibid.)
“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 rights
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.’†(
1545.)
After we reversed the trial
court’s order (Hon. Richard B. Wolfe) sustaining Oakwood’s demurrer to Birke’s
nuisance cause of action and remanded for further proceedings, Birke and Oakwood
filed motions for summary judgment. Both
motions were denied.
Then, in February 2011, the matter
proceeded to a six-day bench trial.
name="_ftnref2" title="">[2] Birke (then 10) continued to live at the
Oakwood Apartments with her parents.
As a preliminary matter, the trial
court addressed Birke’s requests for judicial notice of the CARB Staff Report
and the January 2006 and December 2010 Surgeon General Reports referenced in
the first amended complaint as well as ordinances in other California cities
(Calabasas, Santa Monica and Dublin) prohibiting smoking in outdoor areas. The court took judicial notice “of the
request to also judicially notice “and
accept as true the factual findings of the various city councils adopting
these ordinances and of the agencies issuing the reports.†(Original italics.)
As set forth in the trial court’s
statement of decision, the following evidence was presented at trial: The Oakwood apartment complex where Birke
lived with her parents is “situated on twenty acres and comprises thirteen
separate apartment buildings. Among its
amenities, the property has a main pool, two ‘satellite’ pools, a hydromassage,
six tennis courts, a full-size basketball court, a sandbox equipped with
children’s equipment, and a barbeque area.
Dining areas are situated adjacent to many of these facilities and also
near the rental office/activities center.
Concrete walkways traverse the grounds and grassy areas are located
throughout.
“At any given time, as many as 1,200
to 1,800 tenants (including approximately 150 children) occupy apartments at
[Oakwood], and, throughout the year, as many as 6,000 due to the number of
short-term residents.
“From at least the year 2000 through
2009, the Birkes have signed written leases for their apartment. (Exhibits 1001-1011.) As addenda, the leases include House Rules
(Exhibit 3) which in relevant part provide:
“‘Smoking: In order to make
our environment healthier and safer for all residents and employees, no smoking
is permitted in the clubhouse lobby, conference rooms, party room, TV theatre,
gyms, restrooms, elevators, hallways, stairwells, or any other enclosed
area. Smoking is permissible only inside
apartments or in outdoor common areas.’
“Each lease (Paragraph 5(c))
incorporates the House Rules, and tenants agree they ‘shall comply with each of
such rules.’ (See e.g., Exhibit 1011 at p. 2.)
The Birkes acknowledged reading the House Rules and agreeing to comply
with them. (Exh. X, No. 2.)
“In substance, the House Rules
forbid smoking in [Oakwood’s] indoor common areas but permit it in the outdoor
common areas. This policy is consistent
with California and local law. Oakwood
places ashtrays at various locations in the outdoor common areas (e.g., five
around the main pool, two at each of the satellite pools, and two near the
hydromassage.)[] For four months in 2008
(February and June through August), [Oakwood] distributed to tenants a newsletter
stating ‘You have a right to smoke.’
(Exhibits 127-129, 141.)[]
“Before [Birke] was born and began
using the outdoor common areas, her parents did not complain about Oakwood’s
policy of permitting smoking in these areas.
[Birke’s father’s] concern since then stems from his belief [Birke]
suffers from asthma and is particularly sensitive to [secondhand smoke
(SHS)]. The parties stipulated that
[Birke] has been diagnosed by a medical doctor as having asthma and has been
prescribed a home nebulizer and Albuterol. . . .[
“With the exception of the tennis
courts and grassy areas, the Birkes have occasionally observed smokers at each
of the outdoor common areas, including smokers standing or dangling their feet
in the main pool and the satellite pool near [Birke’s] residence. [Birke] introduced photographs (Exhibit 140)
showing as many as eight to twelve simultaneous smokers around the main pool in
close proximity to a child or to children.[
exposure to outdoor SHS, the Birkes have, on occasion, removed [Birke] from
certain of the outdoor common areas (main pool, satellite pool, hydromassage,
sandbox, and dining area), avoided using them (main pool, satellite pool and
hydromassage), or moved to another part of the same facility (main pool). During summer months, as many as 250 people
may congregate in and around the main pool, and, on a typical summer weekend
day, as many as 100 people may use the main pool at a given time.
“Since 2003, Oakwood has declined
requests by the Birkes and at least one other tenant to prohibit or limit
smoking in the outdoor common areas.[
California cities have enacted laws prohibiting or regulating smoking in
outdoor areas within city limits. (Six
cities have done so since this lawsuit was filed in June 2006.) The Court also takes judicial notice of the
existence and content (but not the truth) of the 2006 CARB report and of the
2006 and 2010 Surgeon General’s reports.
For the avoidance of doubt, the Court has not considered these reports
or the ordinances or findings of any municipality on the issue of the fact or
gravity of harm due to exposure to outdoor SHS.â€
The trial court heard expert
testimony regarding the “basis science†of outdoor SHS. “There are material differences between
exposure to SHS from indoor and outdoor smoking. Indoors, cigarette smoke mixes with the air
and decays slowly over time, meaning that high concentrations of SHS can
persist for long periods unless an outside air source is introduced. These characteristics of indoor SHS affect
the ‘dose’ of exposure to nonsmokers; ‘dose’ being defined as the concentration
level of SHS multiplied by the duration of exposure.
“By contrast, in an outdoor setting,
tobacco smoke does not mix with the ambient air. Instead, it travels in an elliptical plume
and always in a downwind direction. To
be exposed outdoors, a subject must be downwind and in the plume. There is
no or only minimal exposure to a subject upwind from a smoker, even at close
proximity. In an outside environment,
the concentration level of SHS drops to ‘background’ levels (essentially to
nothing) soon after a cigarette is extinguished. This is unlike an indoor setting where the
smoke mixes with stagnant air, causing concentration levels to remain elevated
even after active smoking has stopped.
Where there is more than one source of SHS—as from two or more
simultaneous smokers—a downwind, non-smoking subject may be exposed to multiple
plumes of SHS at the same time.
“Outdoors, the concentration level
of SHS to which a downwind subject is exposed depends on a number of
factors. The highest concentration
levels exist on the plume line (axis) and become lower toward the periphery of
the plume. As windspeed increases, the
concentration level declines because the wind carries the SHS more quickly past
a downwind subject. The concentration
level also decreases with less stable air—stability being primarily a function
of air temperature. Most influential,
however, is the proximity of the subject to the SHS sources—the closer the
downwind subject is to the smoker, the higher the level of exposure.
“SHS concentration levels are
measured in micrograms of particulate matter (p.m.) per meter cubed (e.g., 5
ug/m3). Particulate matter
refers to one phase of emissions from tobacco and other forms of combustion.[
“Inside a home, it is not uncommon
for SHS concentration levels to persist at levels as high as or higher than 30
ug/m3. Outdoors, a nonsmoker
would have to be downwind, in the plume axis and in close proximity to a smoker
to be subjected to the same exposure.
This is borne out by two experiments performed by [Birke’s] expert,
Professor Repace. His studies show that
at distances greater than 3 meters downwind, concentrations of smoke from a
single cigarette dropped below 5 ug/m3, a fraction of a typical
indoor exposure level. Professor Repace
also performed outdoor SHS concentration calculations under conditions assumed
to exist at [Oakwood].[
name="_ftnref8" title="">[8]] For a subject on the plume axis, he concluded
that exposure from a single cigarette would drop below 5 ug/m3 at a
downwind distance of 13 feet and at a downwind distance of 40 to 50 feet from
four smokers in a group. If a subject
were not on the plume line, exposures in each case would be lower at even
lesser distances.
“Professor Repace fairly relied on a
third-party study by Neil Klepeis, et al., to corroborate his own opinion that
under certain circumstances concentration levels of outdoor SHS can rival
levels in indoor settings.[
name="_ftnref9" title="">[9]] The Court does not disagree with this
conclusion; the key, however, being under what circumstances
nonetheless, somewhat curious since Klepeis concluded that ‘OTS [outdoor
tobacco smoke] levels are highly dependent on sources proximity ‘and [a]t
distances of >2m, levels near single cigarettes were generally close to
background.’
“For the most part, the parties do
not disagree about what has been said so far on the science of outdoor SHS
dispersion and concentration levels. But
they have irreconcilably opposite views on the case-dispositive issue of
whether the presence of outdoor SHS produces health or other consequences
sufficient to constitute an actionable public nuisance.â€
“In Los Angeles, outdoor smoking is
regulated only in defined areas such as restaurants and bars. (L.A. Mun. Code § 41.50 A.7.a, A.7[.]b.) Throughout the State, indoor smoking is prohibited
in places of employment. (Lab[.] Code[,]
§ 6404.5.) Smoking is also illegal
within 20 feet of the entrance to a public building (Gov[.] Code[,] § 7596 et
seq.) and . . . within 25 feet of a public children’s
playground (H[ealth] & S[af.] Code[,] § 104495).â€
In the end, the trial court
concluded Birke’s public nuisance claim ultimately failed because she had not
established conditions at Oakwood which were substantially and unreasonably
harmful to health or other enumerated statutory conditions. (Civ. Code, § 3479; Birke I, supra, 169 Cal.App.4th at p. 1552; CACI No. 2020.) In its detailed, 72-page statement of
decision, the trial court noted, in her complaint, Birke referred to the health
consequences of exposure to environmental SHS and had alleged the harm
attendant to these conditions is serious; “‘[t]hus, the public injury resulting
from [Oakwood’s] alleged acts and omissions includes substantially increased
risk of developing heart disease and lung cancer.’†However, she produced no competent proof of
these provocative allegations; neither the CARB and Surgeon General’s Reports
nor the ordinances (or legislative findings) of nine municipalities in
California were admitted for their truth.
Further, her lone expert (Professor Repace) was not qualified to opine
about risks of disease associated with exposure to SHS and testified he had not
been asked to render an opinion on the “‘increased risks of long-term
illness.’â€
“By contrast, defense expert, James
Seltzer, M.D., testified without contradiction, that intermittent, transient
exposure to SHS at [Oakwood’s] outdoor facilities did not present a
significant, increased risk of lung cancer for [Oakwood] tenants.[
General’s Report which reported an increased risk of lung disease was based on
studies involving subjects who had been chronically exposed to indoor
SHS—circumstances quite different from the infrequent outdoor exposure in this
case. Again, this testimony was
uncontroverted. Finally, at the
Post-trial Hearing, [Birke’s] counsel made a belated and terminal concession:[]
“‘So we did not prove, I think, that
there are long-term consequences to exposure to second-hand smoke in these
outdoor common areas. There just isn’t
the science there to draw that conclusion . . . [.]’
“The Court agrees. This leaves [Birke] with the theory that
outdoor SHS exposure is injurious to health or offensive to the senses because
it produces near-term (essentially instantaneous) irritation to the eyes, nose
and throat.[
title="">[11]]†The trial court concluded, however, that no
persuasive evidence was produced to establish that outdoor SHS increases the
risk of short-term, acute injury. Birke
elicited a conclusion from Professor Repace that concentration levels at
Oakwood exceeded an irritation threshold (4.4 ug/m3) identified in
the “Junker Study.†As Professor Repace
was not referring to the study to corroborate his own independent opinion, but
rather simply adopted the Junker Study “irritation threshold†findings as if
they were true and grafted them onto his own SHS concentration level findings,
the trial court found his opinion was not competent in this regard and did not
credit it.
Dr. Seltzer, however, explained that
at sufficient concentration levels—much higher than the “so-called Junker
thresholdâ€â€”SHS exposure can cause nasal congestion and eye and throat
irritation, but Dr. Seltzer would not expect to find irritation at the low
levels Professor Repace adopted from the Junker study. He pointed out (1) that other studies
(Koller) have put the level much higher (103.3 ug/m3); (2) according
to the Air Quality Management District, the average annual concentration level
of particulate matter in the West San Fernando Valley is 11.4 ug/m3;
and (3) the National Air Quality acceptable standard for particulate matter is
35 ug/m3. The trial court
found Dr. Seltzer had credibly testified that both dose and frequency of
exposure to SHS are important and occasional exposure to outdoor SHS (as when
using Oakwood’s outdoor amenities) by a person of average health and who does
not intentionally place himself downwind in near proximity to smokers, poses
less of an irritation risk than breathing ambient air in Los Angeles. As Birke’s parents did, Dr. Seltzer testified
he would move a child away from direct downwind exposure to SHS, not out of
health concerns but just to avoid any discomfort from odor or irritation if
they occurred.
“The Court does not find sufficient
evidence, and certainly not preponderating evidence, that in any realistic
scenario supported by the record infrequent and transient exposure to SHS at
the outdoor common area venues of [Oakwood] poses an increased risk of
long-term chronic illness (lung cancer or heart disease) or short-term, acute
injury to health or sensibilities (irritation).
This conclusion alone would require entry of judgment for Oakwood. But [Birke’s] burden was even greater. To be actionable as a public nuisance, the
invasion of the common interest (interference with life or property) must be
both substantial and unreasonable.â€
Addressing these factors, the trial
court noted: “To begin, there was scant
evidence that significant levels of smoking were recurrent at [Oakwood] except
at the main pool,†and in this regard, “even if the risk of harm was a measure
beyond what the record actually shows, the Court does not find a substantial
interference with the ‘comfortable enjoyment of life or property’ . . . .†Birke devoted most of her case to the main
pool area. According to Birke’s father,
it would be uncommon to see as many as eight people smoking there on a summer
weekend or five on a summer weekday, and no substantial harm or interference
had been proven. Had the Junker study
been admitted, the trial court observed, “even those subjects reported only
‘weak’ to ‘very weak’ reactions to more frequent and sustained exposures to SHS
than would be experienced in an outdoor environment.†“Even having to remain vigilant for smokers
is a measure of inconvenience and annoyance.
But these impositions are not so substantial as to warrant judicial
intervention.†After setting out the law
applicable to a public nuisance cause of action and applying it to the evidence
presented, the trial court concluded that “smoking in the outdoor common areas
of [Oakwood] does not create conditions sufficiently offensive, annoying or
unhealthy to constitute an appreciable invasion of [Oakwood’s] residents’ life
or their enjoyment of these outdoor facilities.[]â€
“The Court has determined that the
likelihood and degree of long- or short-term ill effects from casual exposure
to outdoor SHS at [Oakwood] do not meet the substantiality threshold for public
nuisance liability. This finding alone
would be fatal to [Birke’s] public nuisance claim. Independently, but equally dispositive, this
de minimis harm is not unreasonable; that is, the ‘gravity of such harm does
not outweigh the social utility of defendant’s conduct.’ (S[an
]D[iego ]G[as ] &[]
Co. v. Superior Court (1996)] 13 Cal.4th [893,] 938.)†On the record, the trial court noted (and
Oakwood did not disagree) smoking itself had no social utility. However, Oakwood’s tenants had the right to
select living accommodations matching their personal preferences and legal
habits; Oakwood tenants and their guests had at least a qualified “right†to
smoke there and also to choose whether they wished to smoke; Oakwood, as a
property owner, had the right to adopt a legal business model and to regulate,
or not, the non-private activities and behaviors of tenants and guests; and
Oakwood had the right to respect and not to interfere with the personal, legal
choices of its tenants and invitees.
Finding Birke had failed to carry
her burden of proof, the trial court
entered judgment in favor of Oakwood.
Birke filed a motion to recover her
attorney fees pursuant to Code of Civil Procedure section 1021.5 which the
trial court denied.
Birke appeals from the judgment and
denial of her motion for attorney fees.
Judgment Is Supported by Substantial Evidence.
of Review.
Birke argues she proved the elements
of a public nuisance, but in conducting a substantial evidence review, we “must
consider all of the evidence in the light most favorable to the prevailing
party, giving it the benefit of every reasonable inference, and resolving
conflicts in support of the judgment.†(
Cal.App.4th 621, 630, citations omitted.)
“It is not our task to weigh conflicts and disputes in the evidence;
that is the province of the trier of fact.
Our authority begins and ends with a determination as to whether, on the
entire record, there is any
substantial evidence, contradicted or uncontradicted, in support of the
judgment. Even in cases where the
evidence is undisputed or uncontradicted, if two or more different inferences
can reasonably be drawn from the evidence this court is without power to
substitute its own inferences or deductions for those of the trier of fact,
which must resolve such conflicting inferences in the absence of a rule of law
specifying the inference to be drawn. We
must accept as true all evidence and all reasonable inferences from the
evidence tending to establish the correctness of the trial court’s findings and
decision, resolving every conflict in favor of the judgment.†(Id. at
pp. 630-631, original italics.)
Nuisance Law.
As we stated in Birke I, supra, 169 Cal.App.4th 1540, “‘The public nuisance
doctrine is aimed at the protection and redress of community interests and, at least in theory, embodies a kind of collective
ideal of civil life which the courts have vindicated by equitable remedies
since the beginning of the 16th century.’
(People ex rel. Gallo v. Acuna
(1997) 14 Cal.4th 1090, 1103 [60 Cal. Rptr. 2d 277, 929 P.2d 596] (
‘To qualify, and thus be enjoinable, the interference [with collective
social interests] must be both substantial
and unreasonable. . . . ‘“ . . .
It is an obvious truth that each individual in a community must put up with a
certain amount of annoyance, inconvenience and interference and must take a
certain amount of risk in order that all may get on together.’â€â€™â€ ([Acuna,
supra, 14 Cal.4th] at p. 1105[,
original italics].)
“The Civil Code defines a
public nuisance and the elements that must be pleaded by a private person suing
to abate it. Civil Code section 3479
provides: ‘Anything which is injurious
to health, including, but not limited to, the illegal sale of controlled
substances, or is indecent or offensive to the senses, or an obstruction to the
free use of property, so as to interfere with the comfortable enjoyment of life
or property . . . is a nuisance.’ Civil Code section 3480 provides: ‘A public nuisance is one which affects at
the same time an entire community or neighborhood, or any considerable number
of persons, although the extent of the annoyance or damage inflicted upon
individuals may be unequal.’ Civil Code
section 3493 provides: ‘A private person
may maintain an action for a public nuisance, if it is specially injurious to
himself, but not otherwise.’†(
1547-1548.)
In order to prove a cause of action
for public nuisance based on the presence of secondhand (or environmental)
tobacco smoke in the outdoor common areas of her apartment complex, Birke was
required to prove: “(1) Oakwood and the various related entities that manage
and operate the apartment complex in Woodland Hills in which the Birke family
resides, by acting or 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 outweighs the social utility of Oakwood’s conduct;
(5) neither Birke nor her parents consented to the conduct; (6) Birke suffered
harm that was different from the type of harm suffered by the general public;
and (7) Oakwood’s conduct was a substantial factor in causing Birke’s
harm. (See Judicial Council of Cal. Civ.
Jury Instns. (2008) CACI No. 2020.)†(
1548.)
As Birke concedes, “‘not every
interference with collective social interests constitutes a public
nuisance. To qualify, and thus be
enjoinable, the interference must be both substantial
and unreasonable.’†(Acuna,
supra, 14 Cal.4th at p. 1105; Melton
v. Boustred (2010) 183 Cal.App.4th 521, 542.) She ignores the evidence credited and
rejected by the trial court supporting the court’s determination she failed to
carry her burden failure of proof, arguing instead the “injury and interference
elements have been established by the Legislature and the agency it created to
classify air pollutants.â€
She says the trial court subverted
the Legislature’s intention to protect Californians from SHS “to the fullest
extent possible†as evidenced by Health and Safety Code section 104350, which
states, in pertinent part, that “Involuntary smoking is a cause of disease,
including lung cancer, in healthy nonsmokers,†and the “elimination of smoking
is the number one weapon against four of the five leading causes of death in
California . . . .â€
It appears Birke has confused a nuisance in fact and a nuisance per
se. As
we noted in Birke I, supra, 169
Cal.App.4th at page 1552, footnote 6, “Significantly, Birke does not allege the
presence of secondhand tobacco smoke is a nuisance per se, which could be
enjoined without proof of its injurious nature or a weighing of the utility of
Oakwood’s conduct against the gravity of the harm.†Citing Lussier
v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 106, footnote
10, we noted that it is for the finder of fact to determine “whether something,
not deemed a nuisance per se, is a nuisance in
fact, i.e., in a particular instance.â€
(Original italics.) “‘[A] nuisance per se arises when a legislative body with appropriate
jurisdiction, in the exercise of the police power, expressly declares a
particular object or substance, activity, or circumstance, to be a
nuisance. . . . [T]o rephrase the rule, to be
considered a nuisance per se the object, substance, activity or circumstance at
issue must be expressly declared to be a nuisance by its very existence by some
applicable law.’ (Beck Development Co. v. Southern Pacific Transportation Co. (1996)
44 Cal.App.4th 1160, 1206–1207 [52 Cal. Rptr. 2d 518].) ‘[W]here the law expressly declares something
to be a nuisance, then no inquiry beyond its existence need be
made . . . .’ (
actual fact of their existence, to establish the nuisance.†[Citations.]’
(City of Costa Mesa v. Soffer
(1992) 11 Cal.App.4th 378, 382 [13 Cal. Rptr. 2d 735], fn. omitted.)†(People
ex rel. Trutanich v. Joseph (2012) 204 Cal.App.4th 1512, 1524.)
Yet, several of
Birke’s arguments on appeal amount to claims she had no obligation to provide
proof of anything other than the fact Oakwood allowed smoking to take place in
its outdoor common areas, without a statutory determination of smoking as a
nuisance per se on which to rely.
Health and Safety Code section
104350 does not establish smoking as a nuisance per se.
notwithstanding the language of section 104350, Birke ignores the fact
that while Health and Safety Code section 104495, subdivision (b), for example,
prohibits smoking within 25 feet of any playground or tot lot sandbox area,
subdivisions (f) and (g) specify that this prohibition “shall not apply to
private property†and “shall not apply to a public sidewalk located within 25
feet of a playground or a tot lot sandbox area.â€
smoking to be a nuisance per se, it follows Birke was required to establish the
nuisance she alleged resulted from smoking in the outdoor common areas at
Oakwood to constitute “a nuisance in
fact, i.e., in a particular instance.â€
(See Lussier v. San Lorenzo Valley
Water Dist., supra, 206 Cal.App.3d at p. 106, fn. 10, original
italics.)
Similarly,
she says the trial court was required to take judicial notice of the truth of
findings by some California cities—cities
other than the city where her Oakwood apartment was located—“many of which
define outdoor [SHS] as a nuisance†and says Evidence Code section 664, which
states (as relevant) that “[i]t is presumed that official duty has been
regularly performed,†creates a presumption the ordinances of these other
cities declaring SHS harmful are true.
She has no authority for such a proposition, and the trial court
properly rejected it.
Birke also
argues the trial court exceeded its jurisdiction by issuing a decision
countermanding the CARB’s findings of harm from outdoor SHS. She says the trial court had no authority to
require proof of harm apart from the CARB’s findings and then reached a result
abrogating the CARB’s findings and authority in violation of the separation of
powers doctrine. We disagree. Again, the CARB report findings (which Birke
does not even cite or identify in the record) are not a substitute for evidence
of the elements of Birke’s public nuisance cause of action. “‘[T]he taking of judicial notice of the
official acts of a governmental entity does not in and of itself require
acceptance of the truth of factual matters which might be deduced therefrom,
since in many instances what is being noticed, and thereby established, is no
more than the existence of such acts and not, without supporting evidence, what
might factually be associated with or flow therefrom.’†(Mangini
v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064, overruled
on another ground in In re Tobacco Cases
II (2007) 41 Cal.4th 1257, 1276.)
For the reasons the trial court explained in its statement of decision,
Birke simply failed to carry her burden of proof.
Birke
says Dr. Seltzer’s opinion was irrelevant because he did not testify that he
had conducted studies of his own, but given his qualifications as a medical
doctor with expertise in asthma, allergies and immunology as well as
environmental pollution, she fails to establish any error in the trial court’s
acceptance of this expert’s opinion evidence where appropriate (as the trial
court properly considered Professor Repace’s opinions as they related to his
expertise in the field of physics). (
Cal.App.4th at pp. 630-632.) For the reasons given by the trial court, it was
within its fact-finding role to credit or reject the expert witnesses’ evidence
as it did. (Beck Development Co. v. Southern Pacific Transportation Co., supra,
44 Cal.App.4th at p. 1206.)
Birke says the trial court
improperly denied her request to reopen her case. We disagree.
The trial court did not err in declining to allow Birke to recall
Professor Repace to testify as to long-term risk of illness given the fact he
had not been asked to give an opinion in this regard and further was not
qualified, as a physicist, to do so.
Moreover, she made no offer of proof to reopen her case as to other
Oakwood defendants.
Birke Has Failed to Demonstrate Error in the Trial Court’s Denial of
her Motion for Attorney Fees.
As
relevant, Code of Civil Procedure section 1021.5 provides: “Upon
motion, a court may award attorneys fees to a successful party against one or
more opposing parties in any action which has resulted in the enforcement of an
important right affecting the public interest if: (a) a significant benefit,
whether pecuniary or nonpecuniary, has been conferred on the general public or
a large class of persons, (b) the necessity and financial burden of private
enforcement, or of enforcement by one public entity against another public
entity, are such as to make the award appropriate, and (c) such fees should not
in the interest of justice be paid out of the recovery, if any.â€
As a preliminary matter, private
attorney general fees are available under section 1021.5 only to a “successfulâ€
party. (Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, 439.) Birke essentially argues she was partially
successful because she obtained this court’s published decision in
a result she says, regardless of the outcome in her own case, she vindicated
the important public right of apartment residents to require landlords to
answer in court “for taking a laissez faire approach to smoking on their
properties.†We disagree.
Although the terms “prevailing
party†and “successful party,†as used in section 1021.5, are synonymous, it is
also true that in the context of section 1021.5, the plaintiff’s action need
not have resulted in a favorable final judgment—as long as the plaintiff has
achieved its litigation objectives. (
34 Cal.4th 553, 570-571 (DaimlerChrysler).)
In all cases, however, “whether a
party has been successful is measured by the resolution of the
litigation. (See, e.g.,
modifying the defendant’s behavior, not whether it results in a final judgment,
that is determinative of whether a plaintiff is successful under § 1021.5];
32 Cal.3d 668, 684–685 [186 Cal. Rptr. 589, 652 P.2d 437] [a plaintiff may be
successful party in action under § 1021.5 even though the defendant’s
motion for summary adjudication of certain claims was resolved in the
defendant’s favor; success is determined not on ‘appearance,’ but ‘“whether or
not the action served to vindicate an
important rightâ€â€™ (italics added)]; Woodland
Hills Residents Assn., Inc.[ v. City
Council (1979)] 23 Cal.3d [917,] 938 [§ 1021.5 award of attorneys fees to
the plaintiff proper even where the plaintiff won the case on a
preliminary issue].)†(
Food Markets, Inc. (2005) 127 Cal.App.4th 387, 402-403, original
italics.)
In this
case, notwithstanding our decision to publish our opinion in the prior appeal,
Birke cannot claim her lawsuit was a “‘catalyst
motivating defendant[ Oakwood] to provide the primary relief [she] sought,’†or
that she “‘activat[ed] defendant[ Oakwood] to modify [its] behavior.’†(Westside
Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 353,
original italics, citation omitted.) In
properly supported summary judgment motion, let alone prevail following a
trial,†Birke had stated a cause of action for public nuisance sufficient to
withstand demurrer. (
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.) Indeed,
at trial, she was not “successful†by any definition.
As the
court in Ebbetts Pass Forest Watch v.
Department of Forestry & Fire Protection (2010) 187 Cal.App.4th 376,
387-388, stated: “Here, plaintiffs lost
because the record did not justify their winning under the law. While it may be argued that their contentions
resulted in clarification of legal issues, the fact remains that contentions do
not supplant evidence. The real problem is that regardless of the
expansion of the law, they did not have a factually meritorious lawsuit and,
when the dust settled, their only victory was in a statement of law that when
applied to the record clarified why they should lose.†(See also id.
at p. 387 [it would be “anomalous that a party could bring a lawsuit, lose the
lawsuit and effectively lose with respect to the goal of their lawsuit and
still require the [defendant] to pay for their attorney feesâ€].) It follows that the trial court did not abuse its discretion in denying Birke’s motion
for attorney fees. (Id. at p. 388.) Birke cannot
be considered a successful party, and she was not entitled to an award of
attorney fees under Code of Civil Procedure section 1021.5. (Ibid.;
Woodbury v. Brown-Dempsey, supra, 108 Cal.App.4th at p. 439.)
DISPOSITION
The judgment is affirmed. The order denying Birke’s motion for attorney
fees is affirmed. Oakwood is to recover
its costs on appeal.
WOODS,
J.
We concur:
PERLUSS, P. J. JACKSON,
J.
mother replaced her father as guardian ad litem; Birke’s father acted as
co-counsel in the case at trial.
the death of Judge Wolfe in August 2010, the matter was reassigned to the Hon.
Louis Meisinger.
