In Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, the trial court sustained defendant Oakwood's demurrer to a complaint which alleged, inter alia, that Oakwood violated title III of the ADA by failing to limit secondhand smoke in the outdoor common areas at the residential complex where plaintiff Birke lived. (Birke, supra, 169 Cal.App.4th at pp. 1543-1546.) The common areas at issue included swimming pools and a playground. (Id. at p. 1553.) The Birke appellate court affirmed the trial court's order sustaining the demurrer without leave to amend as to Birke's ADA claim, finding persuasive the "contention that the ADA does not apply to apartments and condominiums" and also citing the dearth of specific facts alleged in the operative complaint. (Birke, at p. 1553.) Presiding Justice Perluss wrote a separate opinion in Birke, dissenting with regard to the majority holding that Birke did not adequately plead a cause of action under the ADA. (Birke, supra, 169 Cal.App.4th at pp. 1553-1556 (conc. & dis. opn. of Perluss, P. J.).) In addition to questioning whether Oakwood's housing complex might constitute "transient lodging" (like boarding houses, dormitories, resorts, hotels, motels, and inns) and therefore qualify as a public accommodation in its entirety, Presiding Justice Perluss also asserted, "the fact a facility such as an apartment complex itself may not fall within the ADA's statutory definition of 'public accommodation' does not mean the site may not contain one or more of the enumerated public accommodations within its confines." (Id. at p. 1554.) Presiding Justice Perluss suggested the common areas at issue "are places of recreation within the meaning of title 42 United States Code section 12181(7)(L) ('a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation') even if the apartment complex itself is a residential property and not a public accommodation." (Id. at p. 1555.) In sum, the court painstakingly discussed the plaintiff's detailed factual allegations of public nuisance. (Id. at pp. 1548, 1551-1552.) It concluded that the plaintiff had "pleaded a cause of action for public nuisance sufficient to withstand a demurrer." (Id. at p. 1543.) The plaintiff's alternate claim that "even if the public nuisance claim fails, Birke alleged facts that stated a cause of action against Oakwood for negligently increasing her risk of cancer ..." was not addressed. (Id. at p. 1547.)