On June 28, 2006, Melinda Birke, a five-year old girl who suffers from asthma, and "a minor by and through her Guardian ad Litem," sued Oakwood Garden Apartments [OGA] in Woodland Hills, California, asking the Los Angeles County Superior Court to issue "an order enjoining Defendants from permitting the acts alleged in this Complaint to have caused special injury to Plaintiff and to have affected a substantial number of residents and guests of the OGA."
The "acts alleged" in the case relate to allowing other tenants in the OGA complex to smoke tobacco products in open common areas within the apartment complex, where the plaintiff has encountered, and, absent judicial action, will continue to encounter, second-hand tobacco smoke, causing her harm.
an interview with Michael Sohigian, plaintiff's attorney in Birke v. Oakwood Garden Apartments
California Politics Today spoke this morning with Michael Sohigian, who is representing Melinda Birke in
Birke v. Oakwood Garden Apartments, a lawsuit which seeks redress for the five-year old plaintiff under the legal principle that tenants of a landlord have a common law right, which is being asserted by the plaintiff in this case, to the free enjoyment of the grounds leased, and the right to be free of nuisances, such as the presence of toxic and carcinogenic environmental tobacco smoke (ETS)/secondhand smoke, on the property owned by, and under the control of, their landlord and leased to them.
You can watch and listen to that interview with attorney for plaintiff Melinda Birke in the case of
Birke v. Oakwood Garden Apartments Michael Sohigian by clicking on the appropriate button in the Brightcove Player below:
scientific testimony in support of the contention that secondhand smoke is dangerous to life and health
During that interview, Mr. Sohigian referenced a report, issued on June 27, 2006, the day before he filed this lawsuit, entitled
The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. This report is also cited in
the initial brief filed in this case in Van Nuys, California, in the Superior Court for the State of California, County of Los Angeles, Northwest District (Case No. LC075094) on June 28th.
Paragraph 13 of that brief alleges that:
"On June 27, 2006, the Office of the Surgeon General of the United States (the "Surgeon General"), the nation's highest public health officer, issued
a comprehensive scientific report which concludes that there is no risk-free level of exposure to secondhand smoke, and that nonsmokers exposed to secondhand smoke at home or work increase their risk of developing heart disease by 25 to 30 percent and lung cancer by 20 to 30 percent, a finding the Surgeon General described as "of major public health concern due to the fact that nearly half of all nonsmoking Americans are still regularly exposed to secondhand smoke."
Also cited in that brief is the scientific conclusion on the subject of secondhand smoke by the California Air Resources Board (CARB), which issued
a press release on January 26, 2006 in which it identified environmental tobacco smoke (ETS), or second-hand smoke, as a Toxic Air Contaminant: "an airborne toxic substance that may cause and/or contribute to death or serious illness."
wider implications of this non-class action lawsuit
Mr. Sohigian also indicated during the interview that while this particular case is not a class action lawsuit—it seeks relief only in the case of alleged asthma-sufferer Melinda Birke—and, if won, would have no precedential status absent an appeal to, and a victory for his side in, a higher court of appeal, that he felt a victory in this case for his client would have a positive impact generally in terms of the rights of tenants to enjoy their tenancies free of noxious, toxic, and carcinogenic secondhand tobacco smoke now allowed in apartment complex common areas owned by, and under the control, of landlords.
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