Plaintiff Eventually Lost at Trial Based On Expert Proof of No Harm on Nuisance Claim.
Plaintiff, in Birke v. Oakwood Worldwide, Case No. B234296 (2d Dist., Div. 7 May 29, 2013) (unpublished) (Birke II), had won an earlier appeal resulting in a published decision (Birke I) by which a without leave demurrer on a nuisance claim was reversed in the context of a secondhand smoking issue in a residential apartment complex setting. However, the appellate court in the earlier decision cautioned that plaintiff might not be able to prove her public nuisance claim.
A sermon without words. 1906. Library of Congress.
That prediction came to fruition in Birke II. Following a bench trial replete with expert testimony, the trial judge concluded plaintiff failed to meet her burden of proof and entered a defense judgment.
The merits determination was affirmed on appeal, but she also challenged the denial of attorney’s fees under the CCP § 1021.5, the private attorney general statute. That challenge, too, was rejected because she was not a successful party in the statutory sense of the word. Although she did obtain a clarifying published decision in the area, plaintiff lost the trial so that this defeat provided the trial court with discretion to determine she was not successful.
