Couple sue neighbors over backyard smoking

Published online on Sunday, Nov. 01, 2009

Conflict with neighbors was the last thing Donna and Richard Ganguet expected to encounter when they moved into a gated community for people 55 and older.

"In a senior community, you think we'll all be compatible and have the same values," said Richard Ganguet, a retired El Dorado County sheriff's deputy.

But three years after settling into their single-family home in El Dorado Hills' Four Seasons development, the Ganguets are suing their next-door neighbor over cigar and cigarette smoke they say wafts into their backyard and house.

Because of the smoke, the couple say, they no longer sit on their patio. They also try to sandwich in swims in the side-yard lap pool between their neighbors' smoking sessions.

Doug Smith, attorney for the neighboring homeowner, Florence Solone, said the issue is a trivial one that should be resolved by neighbors talking with each other, not with a lawsuit in El Dorado Superior Court.

But disputes between neighbors over secondhand smoke are increasingly making their way into courtrooms and city council chambers.

With smoking banned in workplaces, restaurants and bars, Californians are less willing to tolerate the smell of smoke in their houses or backyards, said Robin Salsburg, a staff attorney with the Oakland-based Public Health Institute's Public Health Law and Policy program.

Nearly 87% of California residents are nonsmokers, she said.

"The social norm is changing faster than I can blink," said Serena Chen, regional director of policy and tobacco control for the American Lung Association in Emeryville. In 2006, she helped persuade the East Bay city of Dublin to define secondhand smoke as a nuisance in its city code.

The majority of litigation related to secondhand smoke involves apartments and condominiums with shared walls. But Chen said the Dublin City Council's action was prompted by a woman living in a single-family home whose health was compromised by smoke drifting from her neighbor's yard.

When the Ganguets moved into their home in 2006, they were the first on the block. The pool was in place before there were neighbors.

They say residents and visitors at Solone's home smoke in the backyard at all hours of the day and night. Several people puffing away at once has resulted in smoke settling in their backyard like a low fog, Richard Ganguet said.

When he or his wife open windows or operate the whole-house fan, he said, smoke is drawn into the house.

They've tried dispersing the smoke, first with a small fan set near the fence. When that didn't work, they rented an industrial fan to blow the smoke up and out of the yard. But the fan is noisy and potentially disturbing to other neighbors.

The Ganguets said they rarely see Solone and tried to talk with her by phone, but they believe their calls were screened. They followed up with letters, but said they received no response, orally or in writing.

"Nothing changed," Richard Ganguet said, until they filed the lawsuit.

A man who answered the door at the Solone home last week identified himself as Steve Solone, Florence Solone's son. Steve Solone said he, his sister and brother-in-law live with his mother, and he and his brother-in-law smoke outside.

"My mother doesn't allow smoking in the house," he said.

Steve Solone said he smokes about a pack and a half of cigarettes a day, but he wasn't aware the smoke was an issue for the Ganguets until his mother was notified of the lawsuit. Steve Solone said he didn't think the smoke would travel outside the yard.

Florence Solone did not respond to requests for comment.

Smith, her attorney, said he advised her not to discuss the lawsuit.

The smoking, Smith said, occurs in a three-walled patio area with fans.

"Florence Solone is like everybody's grandmother," said Smith, who said he has known the Solones for years. "She's genuinely nice."

The Solones want to live peacefully with their neighbors, Smith said. He characterized the Ganguets' letters as intimidating because they threatened a lawsuit. Smith said he sought a meeting with the Ganguets' through their attorney, David Trapani, before the lawsuit was filed Oct. 1 but was rebuffed.

Trapani said his goal is to resolve the issue before the case goes to trial, but because the Ganguets filed a lawsuit, any settlement would be enforceable by the court.