This article was posted on Friday, Sep 01, 2017

Hello everybody.  Let me confess at the outset that I detest the smell of cigarette smoke.  I don’t like to be in a room where someone is smoking and I learned as early as high school that I didn’t even like to kiss someone who was a smoker.

Still, I am a strong believer in the right of owners of private enterprises to adopt (or chose not to adopt) rules and regulations relative to the operation of their businesses, including those pertaining to smoking.  In general, my view is that if customers do not like the way a company operates its business, then they can shop elsewhere.

Yet, when one mixes secondhand smoke with the operation of a business enterprise, such as an apartment building, I have competing feelings.  On the one hand, if an owner wants to allow his tenants to smoke in the outdoor courtyard of his complex, then I believe he should not be told by local city government or anyone else that he is required to ban smoking.

On the other hand, because of my antipathy to smoke, it is difficult for me to be anguished by a government tribunal that passes an ordinance or enacts a law which prohibits smoking on the premises of a multi-family residential property.

While it is bad enough, in my view, that government can control the operation of an apartment building, my column this month deals with the issue of whether a tenant can sue a landlord to obtain a court order banning smoking in the outdoor common areas of a building, such as courtyards, walkways, and patios.

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More generally, the issue in this discussion is not whether state or local governments should have a right to prohibit such smoking, but whether a tenant in the apartment complex should be allowed to seek and obtain a court order which mandates a smoke-free environment in the outdoor common areas.

The Case Against Oakwood Apartments

In Melinda Birke v. Oakwood Worldwide (169 Cal.App.4th 1540), the California Court of Appeal ruled on that precise issue with respect to the Oakwood Apartments located in Woodland Hills, California.

Oakwood had a longstanding policy prohibiting smoking in all indoor units and indoor common areas.  However, it permitted smoking in the outdoor common areas to accommodate tenants and guests who smoked.

Oakwood declined previous requests of one of its tenants, John Birke, to ban smoking in the outdoor common areas.

Thereafter, John’s daughter, five-year-old Melinda Birke, filed a lawsuit (through her father, who was also an attorney) seeking to prevent Oakwood from permitting smoking in the outdoor areas of the complex.  Essentially, Melinda sought a court order compelling Oakwood to ban all smoking in those areas.

Melinda claimed that the smoking was a nuisance because, among other things, the secondhand smoke which she smelled was harmful to health, indecent and offensive to the senses, and interfered with her comfortable enjoyment of life at the property.  She also claimed that the smoke was a public nuisance because it adversely affected all those persons that happened to be on the grounds of the complex when someone outdoors was smoking.

Oakwood, through a legal procedure known as a demurrer, moved to dismiss the litigation.

YOU BE THE JUDGE:  Should the case be dismissed or should Melinda be allowed to pursue the litigation in an effort to obtain a court order compelling Oakwood to ban outdoor smoking within its complex?

Please think about that question before reading further. If you decided that the litigation should be dismissed, the Superior Court agreed with you, as it dismissed the suit on various technical grounds.

If you thought that Melinda should be allowed to pursue her litigation, then you are in agreement with California Court of Appeal which, after the lower court’s dismissal of the action, reinstated the case based on the following reasoning.

The appellate court noted that California’s public nuisance doctrine is aimed at the protection and redress of community interests as it embodies a kind of collective ideal of civil life which the courts have vindicated by equitable remedies for centuries.

To qualify as a public nuisance, and thus be restrainable, the interference must be both substantial and unreasonable. The court said it is an obvious truth that each individual in a community must put up with a certain amount of annoyance and inconvenience, and must take a certain amount of risk in order that all may get along together.

The appellate court went on to explain that Oakwood, as a landlord, has a duty to maintain its premises in a reasonably safe condition.  It then ruled: “The issue presented is not whether Oakwood has a duty to ban smoking, an otherwise legal activity in Woodland Hills, but whether, given its indisputable duty to take reasonable steps to maintain its premises in a reasonably safe condition, and its failure to impose any type of limitation on smoking in common areas, including swimming pools and the children’s playground which Melinda has a right to use and enjoy, breached that duty.”

Thus, the Court of Appeal determined that five-year-old Melissa had the right to pursue a lawsuit against the building owner so as to prove that the smoking was a public nuisance for which the court should fashion an order preventing Oakwood Apartments from further allowing smoking in the common areas. The appellate court then remanded the case to the Superior Court for trial.


When you think about it, the above quoted language from the court’s decision is amazing and has potentially astonishing repercussions.

Basically, the court said that it will leave to the trial judge the question of whether secondhand smoke in the outdoors of the complex is sufficiently harmful that a court restraining order should be issued.  In other words, the complaint of just a single tenant, supported by evidence at trial, might convince the trial judge to issue an injunction which compels an apartment owner to implement a policy preventing outdoor smoking at its complex at all times in the future.

Bear in mind that some other judge deciding some other case involving similar secondhand smoking in the outdoor common areas of an apartment complex may determine that the smoking does not render the premises unsafe, and thereby deny any request for injunctive relief.

Thus, allowing individual judges to determine whether outdoor secondhand smoke constitutes a public nuisance on the basis that such smoking is in violation of the landlord’s duty to maintain the premises in a reasonably safe condition, could result in inconsistent rulings from building to building as well as cities to cities throughout California.

In my view, the Court of Appeal focused on the wrong issue.  Instead, it should have either (1) (preferably) determined that only the California State Legislature (or at a minimum, a local government authority) is allowed to institute a ban on outdoor smoking, or (2) (as a less favored alternative) have determined, as a general finding applicable to all residential complexes in California, that outdoor smoking does or does not violate the landlord’s duty to maintain his premises in a reasonably safe condition.

Had the Court adopted alternative (2), it should have focused on whether or not all California landlords have a duty to ban outdoor smoking on their properties, not whether a singled-out landlord, on a case by case basis, breaches the duty to maintain safe premises when allowing such smoking.  In my view, this is a statewide social issue that is too important to be potentially treated inconsistently by different trial court judges.

In contrast, I would not have a problem if we were talking about dense black smoke emitted from an industrial smoke stack which blew into the courtyard area of a nearby apartment building.  There, I would support a court order which shuts down the plant until it is able to confine its noxious smoke to its own property.

But where the smoke is for all intents and purposes confined to the property at which it is created (e.g., an apartment complex), I am troubled over the fact that any one tenant can file a lawsuit seeking to compel, and any one judge can issue an order which does compel, the owner of the property to implement a no-smoking policy for the outdoor common areas of the complex.

I am also troubled by the potential for inconsistent decisions where many tenants file separate actions throughout the State of California before many different judges with some judges permitting the smoking and others banning it.

In my opinion, the decision to allow or prohibit smoking in outdoor common areas of an apartment building should be left to the discretion of each apartment owner.  Short of that, I believe that if a mandate is issued to disallow such smoking on such an important social issue, it should be by the California State Legislature, not the courts.

Incidentally, in the Oakwood Apartments case, after the Court of Appeal ruled that Melissa could proceed with her lawsuit, the matter was tried before a judge in the Los Angeles Superior Court.  I am told by the attorney who represented Melissa that she lost because she did not prove she was damaged by the common area smoking.

In a similar type of case recently decided in Orange County, an opposite result occurred.  There, the jury awarded $15,000 against the condominium association and management for failing to abate smoking on the patio of the neighbor’s condo after that secondhand smoke repeatedly entered the next door unit and exacerbated the child’s asthma.  (Chauncey v. Bella).


The bottom line is that because landlords may be liable for damages sustained by tenants from secondhand smoke in the common areas of an apartment building, a wise step might be for AOA members to implement a smoke-free rule that pertains to the outdoor common areas of the complex.


Dale Alberstone is a prominent litigation and transactional real estate attorney who has specialized in real property law for the past 40 years.  He has been appointed to periodically serve as a judge pro tem of the Los Angeles Superior Court and is a former arbitrator for the American Arbitration Association.  He also testifies as an expert witness for and against other attorneys who have been accused of legal malpractice.

Mr. Alberstone has been awarded an AV rating from Martindale-Hubbell.  An AV rating reflects an attorney who has reached the heights of professional excellence and is recognized for the highest levels of skill and integrity.       

The foregoing article was authored on August 1, 2017.  It is intended as a general overview of the law and may not apply to the reader’s particular case.  Readers are cautioned to consult an advisor of their own selection with respect to any particular situation.

Questions of a general nature are warmly invited.  Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 1900 Avenue of the Stars, Suite 650, Los Angeles, California 90067.  Phone:  (310) 277-7300.