0048303

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION THREE
MARTIN MODIANO, AN INDIVIDUAL; HELAINE JONES, AN
INDIVIDUAL; KEVIN BUTCHER, AN INDIVIDUAL; MARLA JAMES;
AN INDIVIDUAL; AND PATIENT MED-AID, A NON-PROFIT GROUP
OF PATIENTS ASSOCIATED TOGETHER UNDER CA. HEALTH &
SAFETY CODE 11362.775,
Plaintiffs and Appellants,
VS.
CITY OF ANAHEIM, A CALIFORNIA MUNICIPAL CORPORATION;
TOM TAIT, IN HIS CAPACITY AS MAYOR OF ANAHEIM; HENRY W.
STERN, IN HIS CAPACITY AS CITY TREASURER OF ANAHEIM,
Defendants and Respondents.
Appeal from Orange County Superior Court; Judgment entered
March 14, 2013; Case No. 30-2012 00601853-CU-CR-CJC
RESPONDENTS' BRIEF
Michael R.W. Houston, City Attorney

Assistant City Attorney, # 118769
200 S. Anaheim Boulevard, Suite 356
California 92805
(714) 765-5169
(714) 765-5123 FAX
mjohnson @ anaheim.net
Attorneys for Defendants and
Respondents
TO BE FILED IN THE COURT OF APPEAL
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION
A TIORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address).
Michael R.W. Houston, City Attorney
- Moses W. Johnson, IV, Assistant City Attorney
200 S. Anaheim Blvd., Suite 356
Anaheim, CA 92805
THREE
TELEPHONE NO,: 714-765-5 J 69 FAX NO. (Optional). 714-765-5123
E-MAJLADDRESS (Optional): mjohnson@anaheim.net
ATTORNEY FOR (Name) Respondents City of Anaheim) et al.
APPELLANT/PETITIONER: Martin Modiano, et aJ
RESPONDENT/REAL PARTY IN INTEREST: City of Anaheim, et a1.
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
(Check one): INITIAL CERTIFICATE SUPPLEMENTAL CERTIFICATE
APP008
Court 01 Appeal Csse Number:
G048303
Supenor Court Case Number
30-2012006018S3-CJ-CR-CJC
FOR COURT USE ONL Y
Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial
certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a
motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may
also use this form as a supplemental certificate when you learn of changed or additional information that must
be disclosed.
1. This form is being submitted on behalf of the following party (name): City of Anaheim, Tom Tait and Henry W. Stem
2. a. There are no interested entities or persons that must be listed in this certificate under rule 8.208.
b. Interested entities or persons required to be listed under rule 8.208 are as follows:
(1 )
(2)
(3)
(4)
(5)
Full name of interested
entity or person
D Continued on attachment 2.
Nature of interest
(Explain):
The undersigned certifies that the abovelisted persons or entities (corporations, partnerships, firms, or any other
association, but not including government entities or their agenCies) have either (1) an ownership interest of 10 percent or
more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices
should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).
Date: September 12, 2013
Moses W. Johnson, IV
(TYPE OR PRINT NAME)
Form App"Oved for Optional Use
JudiCIal Clluncll of California
APP-Ooa IRev, January 1, 2oo9l
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Page 1 of1
Cal Rules of Court, rules 8.:208 8..4S8
WM<W coortin/o.ca,goll
G048303
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
MARTIN MODIANO, AN INDIVIDUAL; HELAINE JONES, AN
INDIVIDUAL; KEVIN BUTCHER, AN INDIVIDUAL; MARLA JAMES;
AN INDIVIDUAL; AND PATIENT MED-AID, A NON-PROFIT GROUP
OF PATIENTS ASSOCIATED TOGETHER UNDER CA. HEALTH &
SAFETY CODE 11362.775,
Plaintiffs and Appellants,
vs.
CITY OF ANAHEIM, A CALIFORNIA MUNICIPAL CORPORATION;
TOM TAIT, IN HIS CAPACITY AS MAYOR OF ANAHEIM; HENRY W.
STERN, IN HIS CAPACITY AS CITY TREASURER OF ANAHEIM,
Defendants and Respondents.
Appeal from Orange County Superior Court; Judgment entered
March 14, 2013; Case No. 30-2012 00601853-CU-CR-CJC
RESPONDENTS' BRIEF
Michael R.W. Houston, City Attorney
Moses W. Johnson, IV
Assistant City Attorney, #118769
200 S. Anaheim Boulevard, Suite 356
Anaheim, California 92805
(714) 765-5169
(714) 765-5123 FAX
mjohnson @anaheim.net
Attorneys for Defendants and
Respondents
TABLE OF CONTENTS
INTRODUCTION .......................................................................................... 1
A. ISSUE PRESENTED ................................................................. 5
B. STATE AND FEDERAL LAWS REGARDING
MARIJUANA ............................................................................ 5
C. STATEMENT OF THE CASE .................................................. 7
1. FACTS ALLEGED .......................................................... 9
2. TRIAL COURT'S DECISION ....................................... 11
a. Standing ............................................................... 12
b. The Claims ........................................................... 14
ARGlTMENT ................................................................................................ 20
A. STANDARD OF REVIEW ..................................................... 20
B. MMD BAN IS NOT DISABILITY DISCRIMINATION ....... 23
C. DPA DOESN'T PROTECT MEDICAL MARIJUANA .......... 28
D. NO CLAIM UNDER FEDERAL ADA OR STATE DPA ..... 33
E. FACTUAL CHALLENGE SHOULD BE REJECTED .......... 41
F. NO STANDING TO CHALLENGE CITY'S BAN ON
MMDS ...................................................................................... 42
G. NO CLAIM UNDER GOVT. CODE 11135 AND
12926 ........................................................................................ 45
H. NO CLAIM UNDER CIVIL CODE 54 OR UNRUH
ACT .......................................................................................... 46
1. MMD BAN DOES NOT CONFLICT WITH STATE
LAW ......................................................................................... 49
11
J. CITY CAN COOPERATE WITH THE FEDERAL
GOVT ....................................................................................... 51
CONCLUSION ............................................................................................. 56
CERTIFICATE OF WORD COUNT [CRC 14(C)(1)] ................................ 58
APPENDIX ................................................................................................... 59
111
TABLE OF AUTHORITIES
State Cases
Adams v. Pac. Bell Directory
(2003, 4th Dist. Div. 3) 111 Cal.App.4th 93, 97-98 .................................... 4
Auto Equity Sales, Inc. v. Sup.Ct.
(1962) 57 Ca1.2d 450, 455 .................................................................... oo .. 32
Avila v. Cant'} Airlines, Inc.
(2008) 165 Cal.App.4th 1237, 1248, 82 Cal.Rptr.3d 440,450 ................ 32
Baughman v. Walt Disney Wor1d Co.
(2013; 4th Dist. Div. 3) 217 Cal.App.4th 1438, 1446,
159 Cal.Rptr.3d 825, 831 .......................................................................... 34
Blank v. Kirwan
(1985) 39 CalJd 311, 318, 216, Ca1.Rptr. 718, 721 ................................ 22
Browne v. County of Tehama
(2013) 213 Cal.App.4th 704,717,153, Cal.Rptr.3d 62,70 ..................... 42
Californians for Disability Rights v. Mervyn IS LLC
(2008) 165 Cal.App.4th 571, 580-581 .................... oo ............................... 15
City of Claremont v. Kruse
(2009) 177 Cal.App.4th 1153, 1177 ......................................................... 52
City of Garden Grove v. Superior Court
(2007) 157 Cal.App.4th 355, 366 ............................................................. 12
City of Riverside v. Inland Empire Patients Health and
Wellness Center, Inc
(2013) 56 Cal.4th 729, 738, 752 ............................................. 31,40,49, 50
Coffman Specialties, Inc. v. Department of Transportation
(2009) 176 Cal.App.4th 1135, 1145 ......................................................... 42
IV
Coral Construction Inc. v. City & County of San Francisco
(2004) 116 Cal.App.4th 6, 15-16 .............................................................. 12
Coronado v. Cobblestone Vill. Cmty. Rentals, L.P.
(2008) 163 Cal.App.4th 831,844 ............................................................. 47
County of Los Angeles v. Hill
(2011) 192 Cal.App.4th 861, 868-869 ...................................................... 16
County of San Diego v. San Diego NORML
(2008) 165 Cal.App.4th 798,813 814 .......................................... 12,42,43
Crisales v. Estrada
(2012) 204 Cal.App.4th Supp. 1,7 ............................................................. 4
Donald v. Sacramento Valley Bank
(1989) 209 Cal.App.3d 1183, 1186--1187 ................................................ 15
Eller v. City of Santa Rosa
(N.D. CaL 2009) WL 3517610 ................................................................. 15
Evans v. City of Berkeley
(2006) 38 Ca1.4th 1, 5,40 Cal.Rptr.3d 205,208 ...................................... 22
Fundin v. Chicago Pneumatic Tool Co.
(1984) 152 Cal.App.3d 951, 955, 199 Cal. Rptr. 789,792 ....................... 22
Grosset v. Wenaas
(2008) 42 Cal.4th 1100, 1108,72 Cal.Rptr.3d 129 .................................. 44
Hankins v. El Torito Restaurants, Inc.
(1998) 63 Cal.App.4th 510, 515 ............................................................... 15
Harris v. Capital Growth Investors XIV
(1991) 52 Ca1.3d 1142, 1153 ................................................................... 33
Jankey v. Song Koo Lee
(2012) 55 C4th 1038, 1043-1045 ........................................................ 36,38
v
Lockyer v. City & County of San Francisco
(2004) 33 CaI.4th 1055, 1139 ................................................................... 52
Marina Point, Ltd. v. Wolfson
(1982) 30 C3d 721, 731 ............................................................................ 33
McClain v. Octagon Plaza, LLC
(2008) 159 Cal.App.4th 784, 792, 71 Cal.Rptr.3d 885, 891 .................... 22
Mercury Cas. Co. v. Scottsdale Indem. Co.
(2007) 156 CaI.App.4th 1212, 1218, 68 Cal.Rptr.3d 123, 127 ................ 21
Molski v. Arciero Wine Group
(2008) 164 Cal.App.4th 786,792, 79 Cal.Rptr.3d 574 ...................... 37,38
Moore v. Regents of Univ. of Calif.
(1990) 51 C3d 120,125,271 CR 146,147 ............................................... 22
Munson v. Del Taco, Inc.
(2009) 46 Cal.4th 661,668-669,673, 674, 675 ................................. 36,37
PeopJe ex reI. v. Beaumont Investment, Ltd.
(2003) 111 Cal.App.4th 102, 113 ............................................................. 20
People v. Mentch
(2008) 45 CaI.4th 274, 286 ......................................................................... 6
People v. Mower
(2002) 28 CaI.4th 457,473 ......................................................................... 6
People v. Tapia
(1994) 25 Cal.App.4th 984, 1030,30 Cal.Rptr.2d 851 ............................ 52
People v. Urziceanu
(2005) 132 Ca1.App.4th 747,773 ............................................................. 17
People v. Wright
(2006) 40 Cal.4th 81, 90 ............................................................................. 6
VI
Qualified Patients Association v. City of Anaheim
(2010) 187 Cal.App.4th 7 3 4 ~ 756-757, 760-761, 763-765,
115 Cal. Rptr. 3d at 105, 111 ....................................... 1 4 ~ 3 5 ~ 49, 54, 55, 56
Rental Housing Owners Ass'n of Southern Alameda County, Inc. v. City of
Hayward
(2011) 200 CaLApp.4th 81, 90, 133 Cal.Rptr.3d 155, 162 ...................... 22
Ross v. Ragingwire Telecommunications, Inc.
(2008) 42 Cal.4th 920, 924, 926-930,
931,933,174 P.3d 200,207 .......... 6, 14,16,29,30,31,32,35,40,48,53
Ross v. Ragingwire Telecommunications, Inc.
(Cal. 2008) 174 P.3d 200, 207, 42 C4th 920, 931 ................................... 40
Sanchez-Scott v. Alza Phannaceuticals
(2001) 86 Cal.App.4th 365, 3 7 1 ~ 103 CaLRptr.2d 410,414 .................... 22
Schaffer v. San Francisco
(2008) 168 Cal.App.4th 992, 1003,85 Cal.Rptr.3d 880, 888 .................. 55
Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074, 1081, 6 Cal.Rptr.3d 457,460 ............................ 22
Silva v. City of Cypress
(1962) 204 Cal.App.2d 374,377, 22 Cal.Rptr. 453 ................................. 45
Sznyter v. Malone
(2007) 155 Cal.App.4th 1152, 1160 ......................................................... 55
Tobe v. City of Santa Ana
(1995) 9 Cal.4th 1069, 1084 ............................................................... 21, 41
Torres v. City of Yorba Linda
(1993) 13 Cal.App.4th 1035, 1045-1046 .................................................. 12
Turner v. Association of American Medical Colleges
(2008) 167 Cal.App.4th 1401, 1412-1413 .................................... 14, 15, 34
VB
Turner v. Association of American Medical Colleges
{201l) 193 Cal.App.4th at 1059 ............................................................... 38
Urhausen v. Longs Drug Stores California, Inc.
(2007) 155 Cal.App.4th 254,261 ............................................................. 14
Wilson v. Murillo
(2008) 163 Cal.App.4th 1124, 1131 ......................................................... 37
Zubarau v. City of Palmdale
(2011) 192 Cal.App.4th 289,307-308, 121 Cal.Rptr.3d 172, 186-187 .. 21
State Statutes
Cal. Code of Civ. Proc. 51 .................................................................... 33,36
Cal. Code of Civ. Proc. 51(b) ............................................................... 33,36
Cal. Code of Civ. Proc. 51 (D ................................................................ 33,36
Cal. Code of Civil Proc. 52 ......................................................................... 33
Cal. Code of Civ. Proc. 54-55.3 ............................................................... 36
Cal. Code of Civ. Proc. 54 ........................................................ 28,35,46,47
Cal. Code of Civ. Proc. 54(a) ................................................................ 37, 46
Cal. Code of Civ. Proc. 54(a)(I) ................................................................. 37
Cal. Code of Civ. Proc. 54(c) ...................................................................... 37
Cal. Code of Civ. Proc. 54.1(d) .................................................................. 37
Cal. Code of Civ. Proc. 54.3 ....................................................................... 37
Cal. Code of Civ. Proc. 55 ...................................................... 7, 8, 11, 14,37
Cal. Code of Civ. Proc. 526a .................................................................... 7,8
Cal. Code of Civ. Proc. 1060 .............................................................. 7, 8, 45
Vlll
Cal. Gov't Code 11135 .................................................... 8,11,19,20,45,46
Cal. Gov't Code 12926 .......................................................................... 45,46
Cal. Gov't Code 12926(1)(6) ...................................................................... 47
Cal. Gov't Code 12926(k) ........................................................................... 32
Cal. Health & Safety Code 11362.5 ........................................................... 15
Cal. Health & Safety Code 11362.5(b)(I)(C) ............................................... 7
Cal. Health & Safety Code 11362.5 (d) ......................................................... 1
Cal. Health & Safety Code 11362.7 ............................................................. 7
Cal. Health & Safety Code 11362.775 ................................................. 15,50
Cal. Health & Safety Code 11362.81 (d) ..................................................... 13
Cal. Health & Safety Code 11362.83 ......................................................... 11
Cal. Code Regs. Tit. 22 98010 ........................... ........................................ 20
Other Authorities
AMC 4.20.030, Ordinance 6067 ........................................................... 10, 11
Cal. Canst. Art XI 7 .................................................................................... 11
Federal Cases
Assenberg v. Anacortes Hous. Auth.
(9
th
Cir. 2008) 268 Fed.Appx. 643, 644 .............................................. 18, 28
Barber v. Gonzales
(E.n.Wash. July 1,2005) No. CV-05-0173-EFS,
2005 WL 1607189 .................................................................................... 25
IX
Bay Area Addiction v. City of Antioch
(9
th
Cir. 1999) 179 F.3d 725 ..................................................................... 17
Benedict v. Central Catholic High School
(N.D. Ohio 2007) 511 F.Supp.2d 854,859-860 ....................................... 19
Burka v. New Yark City Transit Authority
(S.D.N.Y. 1988) 680 F.Supp. 590, 600 .................................................... 19
City of Cleburne v. Cleburne Living Center
(1985) 473 U.S. 432 .................................................................................. 17
Cooper v. Aaron
(1958) 358 U.S. 1, ] 8, 78 S.Ct. 1401, 1410 .............................................. 51
County of Santa Cruz v. Ashcroft
(N.D. Cal. 2003) 279 F.Supp.2d 1192, 1197 ............................................ 26
Crowder v. Kitagawa
(9
th
Cir. 1986) 81 F.3d 1480, 1484 ..................................................... 17, 27
Fleming v. Yuma Regional Medical Center
(9
th
Cir. 2009) 587 F.3d 938, 940-941 ...................................................... 18
Gonzales v. Raich
(2005) 545 U.S. 1, 12-15 ...................................................................... 5, 53
Grimes v. U.S. Postal Service
(W.D. Missouri 1994) 872 F.Supp. 668, 674-675 .................................... 18
Marla James v. City of Costa Mesa
(9
th
Cir. 2012) 700 F.3d 394,397-398,402,403,
133 S. Ct. 2396 (U.S. 2 0 1 3 ) ~ ............................... 4, 8, 17, 25, 28,38,39,40
Thompson v. Davis
(9
th
Cir. 2002) 295 F.3d 890, 895 ............................................................. 24
United States v. Oakland Cannabis Buyers' Cooperative
(2001) 532 U.S. 483,490-491,486, 121 S.Ct. 1711 ............................ 5,26
x
Federal Statutes
21 U.S.C. 801 (1)-(6) ................................................................................... 5
21 U.S.C. 812(b)(1)(A)-(C) ........................................................................ 26
21 U.S.C. 812(b)(1)(8) ........................................................................... 2,9
21 U.S.C. 812(c) ........................................................................................... 5
21 U.S.C. 812(c) sched. I(c)(lO) ............................................................. 2,9
21 U.S.C. 823(f) ...................................................................................... 5, 26
21 U.S.C. 829 .............................................................................................. 26
21 U.S.C. 841(a) ................................................................................... 2,5, 9
21 U.S.C. 844(a) ....................................................................................... 2, 9
29 U.S.C. 701 ................................................................................................ 8
29 U.S.C. 794 .............................................................................................. 18
42 U.S.C. 12101 ...................................................................... 7,8,11,17,23
42 U.S.C. 12102(1) ..................................................................................... 24
42 U.S.C. 12131 .......................................................................................... 24
42 U.S.C. 12131(1)(A) ................................................................................ 24
4 2 U.S. C. 12131 (2) ..................................................................................... 24
42 U. S . C. 12132 . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . .. . . . . . .. . . .. 3, 23, 24
42 U. S . C. 12133 .......................................................................................... 24
42 U.S.C. 12134 .......................................................................................... 24
Xl
42 U.S.C. 12182(a) ..................................................................................... 33
42 U.S.C. 12182(b)(2)(A)(ii) ...................................................................... 34
42 U.S.C. 12210 .......................................................................................... 25
42 U.S.C. 12210(a) ....................................................................................... 3
42 U.S.C. 12210(d)(I) ............................................................................ 3,25
42 U.S.C. 1221 O(d)(2) ................................................................................ 25
XlI
INTRODUCTION
The City of Anaheim bans storefront "medical marijuana
dispensaries" (MMDs) defined as any facility where medical marijuana is
made available or distributed. The Cityts MMD ban does not impermissibly
discriminate against disabled individuals in violation of the federal
Americans with Disabilities Act (ADA) and/or California's Disabled
Persons Act (DPA). This is a state case of first impression. No state
appellate court has yet addressed "access" to medical marijuana through the
DPA.
Appellants allege that they are severely disabled California residents.
They allege that conventional medical services, drugs and medications have
not alleviated the pain caused by their impairments. Each of them has
therefore obtained a recommendation from a medical doctor to use
marijuana to treat their pain. This medical marijuana use has been
decriminalized under California law. Health & Safety Code 11362.5( d)
(suspending state-law penalties for marijuana possession and cultivation for
seriously ill Californians and their caregivers who "possess[ ] or cultivate[ ]
marijuana for the personal medical purposes of the patient upon the written
or oral recommendation or approval of a physician"). However, this use is
1
prohibited by the federal Controlled Substances Act (CSA), 21 U.S.C.
812(b )(1 )(B), 812( c) sched. I( c )(10), 841 (a), 844(a).
Appellants obtain medical marijuana through a collective located in
Anaheim. The City, however, has taken steps to close MMDs operating
within its boundaries. Anaheim adopted an ordinance excluding MMDs
completely in 2007. Anaheim Ordinance 6067 (August 7,2007). Some
MMDs, including the Appellant collective, continued to operate despite the
ordinance. Appellants allege that Anaheim and the federal government have
acted to close operating marijuana collectives operating within city limits.
Concerned about the shutdown of the collective they rely on to obtain
medical marijuana, Appellants brought this action in state court, alleging
that the City's actions violate Title II of the ADA, which prohibits
discrimination in the provision of public services. The trial court sustained
the City's demurrer without leave to amend on the ground that the ADA does
not protect against discrimination on the basis of marijuana use, even
medical marijuana use supervised by a doctor in accordance with state law,
unless that use is authorized by federal law .
Congress has made clear that the ADA defines "illegal drug use" by
reference to federal, rather than state, law, and federal law does not authorize
2
Appellants' medical marijuana use. Therefore, the Appellants' medical
marijuana use is not protected by the ADA.
Title II of the ADA prohibits public entities from denying the benefit
of public services to any "qualified individual with a disability." 42 U.S.C.
12132. Appellants allege that, by interfering with their access to the
medical marijuana they use to manage their impairments, Anaheim has
effectively prevented them from accessing public services, in violation of
Title II. As the trial court recognized, however, the ADA also provides that
"the term 'individual with a disability' does not include an individual who is
currently engaging in the illegal use of drugs, when the covered entity acts
on the basis of such use." Id. 12210(a). This case turns on whether the
Appellants' medical marijuana use constitutes "illegal use of drugs" under
12210(d)(1) and/or the state DPA.
The Ninth Circuit rejected Appellants' ADA claims: The federal
district court Itdenied their application for preliminary injunctive relief on the
ground that the ADA does not protect against discrimination on the basis of
marijuana use, even medical marijuana use supervised by a doctor in
accordance with state law, unless that use is authorized by federal law. 'J[We
affirm. ... Congress has made clear ... that the ADA defines 'illegal drug
use' by reference to federal, rather than state, law, and federal law does not
3
authorize the plaintiffs' medical marijuana use. We therefore necessarily
conclude that the plaintiffs' medical marijuana use is not protected by the
ADA.1t Marla James v. City of Costa Mesa (9
th
Cir. 2012) 700 F.3d 394,
397, cert. denied 133 S.Ct. 2396 (2013).
"[A]lthough not binding, we give great weight to federal appellate
court decisions. (Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316,
320, 93 Cal.Rptr.2d 36, 993 P.2d 366.) This is particularly true in the
context of their determination of federal law , as happened here. (See
Spellman v. Securities, Annuities & Ins. Services, Inc. (1992) 8 Cal.App.4th
452, 459, 10 Cal.Rptr.2d 427 [federal court decisions are especially
persuasive in interpretation offederallaw].).tI Adams v. Pac. Bell Directory
(2003, 4th Dist. Div. 3) 111 CaLApp.4th 93, 97-98.
"[W]e find the [Ninth Circuit] court's analysis ... to be persuasive,
well-reasoned, and precisely on point, (citation); Travelers Cas. & Sur. Co.
v. Superior Court (1998) 63 CaLApp.4th 1440, 1454,75 CaLRptr.2d 54
[following "the well-reasoned and on-point decisions of the Ninth Circuit"]'
Accordingly, we find it appropriate to apply the same principles to the
instant matter." Crisales v. Estrada (2012) 204 Cal.App.4th Supp. 1,7.
This Court should follow James v. Costa Mesa and affirm the trial
court's order sustaining of the City'S demurrer without leave to amend.
4
A. ISSUE PRESENTED
Whether the City's MMD ban impermissibly discriminates against
disabled individuals in violation of the federal ADA and/or the state's
Disabled Persons Act?
B. STATEANDFEDERALLAWSREGARDING
MARI,JUANA
In 1970, Congress passed the federal Controlled Substances Act
(CSA) in an effort to "control the legitimate and illegitimate trafficking in
controlled substances" and "prevent the diversion of drugs from legitimate
to illicit channels." 21 U.S.C. Gonzales v. Raich (2005) 545
U.S. 1, 12-13, fn. 20-21. Congress designated marijuana as a Schedule I
drug, 21 U.S.C. 812(c), which makes the possession, cultivation, or
distribution of marijuana a criminal offense. 21 U.S.C. 823(f), 841(a);
United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S.
483, 490. Although proponents of the use of marijuana for medicinal
purposes have repeatedly challenged Congress' classification of marijuana as
a Schedule I drug, those challenges have all been rejected. Raich, 545 U.S.
at 14-15, fn. 23. Thus, under federal law, all marijuana is contraband per se,
and may not be possessed, cultivated, or distributed for any lawful purpose.
5
In 1996, proponents of the use of medical marijuana sought to provide
legal protection to seriously ill Californians who possessed or cultivated
marijuana for legitimate medical purposes. However, proponents of medical
marijuana were walking a "delicate tightrope." While they wanted a
measure that would provide some legal protection, they also needed to craft
a measure that a majority of voters would support. Ross v. Ragingwire
Telecommunications, Inc. (2008) 42 Cal.4th 920, 930. That strategy
resulted in the Compassionate Use Act (CVA), placed on the November
1996 ballot as Proposition 215. Proponents of Proposition 215 described it
as a narrow measure that would only allow individuals charged with
unlawfully possessing or cultivating marijuana a potential criminal defense
under California law.
The Supreme Court has repeatedly confinned that Proposition 215 did
not, and could not, provide Californians with a "right" to possess, cultivate
or distribute marijuana. People v. Mower (2002) 28 Ca1.4th 457,473 (CUA
decriminalizes "conduct that would otherwise be criminal."); People v.
Wright (2006) 40 Cal.4th 81, 90 ("The CUA provides a defense for
physician-approved possession and cultivation of marijuana."); People v.
Mentch (2008) 45 Cal.4th 274,286 ("The Act is a narrow measure with
narrow ends."); Ross, supra, 42 CaL4th at 930 ("Instead of attempting the
6
impossible," California's voters "merely exempted medical users and their
primary caregivers from criminal liability under two specifically designated
statutes. ").
The CUA sought "[t]o encourage the federal and state governments to
implement a plan to provide for the safe and affordable distribution of
marijuana to all patients in medical need of marijuana. II Health & Safety
Code 11362.5(b)(1 )(C). This joint distribution plan never occurred.
In 2004, the Legislature supplemented the CVA by enacting the MMP
[Health & Safety Code 11362.7 et seq.] with the stated purpose to
"[e]nhance the access of patients and caregivers to medical marijuana
through collective, cooperative cultivation projects." The MMP provides
that specified persons "who associate ... in order collectively or
cooperatively to cultivate marijuana for medical purposes" have criminal
immunity, with respect to specific activities, from state laws, including
Section 11570 ("quasi-criminal") that make those activities criminal.
c. STATEMENT OF THE CASE
On October 1, 2012, Appellants filed their complaint for: 1) Injunctive
Relief-Civil Code 55; 2) Injunctive Relief-CCP 5 2 6 a ~ 3) Declaratory
Relief-CCP 1060; 4) Title II, ADA 42 U.S.C. 12101; 5) Sec. 504,
7
Rehabilitation Act, 29 U.S. C. 701; and 6) Govt. Code 11135 [CT 14-49
(CT means Clerk's Transcript)].
On November 8,2012, Respondents filed their demurrer arguing that
the City's MMD ban does not impermissibly discriminate against disabled
individuals. (CT 50-87). A copy of Chapter 4.20 Medical Marijuana
Dispensaries was attached to the City's demurrer. (CT 71-72). On
December 3,2012, Appellants filed their late opposition. (CT 88-107).
On December 7, 20] 2, a hearing was held (RTI-8) and the tria] court
issued a minute order sustaining the City's demurrer with 10 days leave to
amend. (CT 108-111). On December 10, 2012, Respondents filed their
Notice of Ruling. (CT 112-119).
On December 28,2012, Appellants filed their First Amended
Complaint (FAC) for: 1) Injunctive Relief-Civil Code 55; 2) Injunctive
Relief-CCP 526a; 3) Declaratory Relief-CCP 1060; 4) Title II, ADA 42
U.S.C. 12101; 5) Sec. 504, Rehabilitation Act, 29 U.S.C. 701; and
6) Govt. Code 11135 (CT 120-163).
On January 24, 2013, Respondents filed their demurrer to the FAC.
(CT 164-203). A copy of Chapter 4.20 Medical Marijuana Dispensaries was
attached (CT 186-187) as well as a copy of Marla James v. City of Costa
Mesa (9
th
Cir. 2012) 700 F.3d 394 (CT 188-202). On February 15, 2013,
8
Appellants filed their opposition (CT 204-226). On February 21,2013,
Respondents filed their Reply (CT 227-239).
A hearing was held on March 1, 20] 3 (R T 9-17). The trial court
issued a minute order ruling that the City's MMD ban did not discriminate
against Appellants under the federal ADA and/or state DPA and sustained
the demurrer without leave to amend. (CT 240-244) (Copy attached in
Appendix). On March 6, 2013, Respondents filed their Notice of Ruling.
(CT 245-256).
On March 14,2013, Judgment was entered by the Court. (CT 257-
258). On March 21, 2013, Respondents filed their Notice of Entry of
Judgment. (CT 259-262). On April 10, 2013, Appellants appealed. (CT
263-264).
1. FACTS ALLEGED
In the FAC [CT 120-163] Appellants allege that they are disabled
Orange County residents and each of them has obtained a recommendation
from a medical doctor to use marijuana to treat their symptoms. 'I['J[1-5, 12.
[CT 121-122]. Appellants admit that medical marijuana use is prohibited by
the federal Controlled Substances Act (CSA), 21 U.S.C. 812(b)(I)(B),
812(c) sched. I(c)(10), 841(a), 844(a). Cfi119. [CT 141].
9
Appellants obtain medical marijuana through the Patient Med-Aid
collective located in the City of Anaheim. 1[1[6, 10. [CT 121-122]. The
City, however, has taken steps to close MMDs operating within Anaheim.
The City adopted an ordinance prohibiting MMDs completely in 2007.
AMC 4.20.030, Ordinance 6067 (Aug. 7,2007). <)I1[57,88. [CT 129, 135].
Appellants allege that police have "harass[ed] patients of [the] Collective."
][100. [CT 138].
Appellants further allege that the federal government, at the request of
the City, sent a letter requiring the collective to be shut-down. <)[108. [CT
139]. Due to the shutdown of the collective where Appellants obtained their
medical marijuana, the Appellants brought this action alleging that the City's
actions violate the federal ADA, and state DP A which prohibits
discrimination in the provision of public services.
Appellants added the following allegations in their F AC:
'1[1: Appellant Modiano has A I D S ~ '1[2: Appellant Modiano resides in
Anaheim; 1[6: Articles of Incorporation of Patient Med-Aid were filed on
June 3, 2011. [CT 121]. <)[7: Patient Med-Aid is located in the City of
Anaheim; Cfl8: Patient Med-Aid is owned by its members. [CT 122]. 1[1[9,
11, 77: Patient Med-Aid paid a business license tax to the City. [CT 122,
133]. ][72: The City refused to issue a business license to the MMD; JI73:
10
MMD is allegedly a non-profit corporation; <JI74: Each patient is a member
of the MMD; <JI75: Each patient regularly visits the MMD pursuant to its
bylaws. [CT 132-133]. cmI83-84: By calling in the federal government, the
City caused Appellants harm. [CT 134-135].
2. TRIAL COURT1S DECISION
Demurrer to FAC. 1st COA: Civil Code 55. 2nd COA: Injunctive
Relief. 3rd eOA: Declaratory Relief. 4th eOA: ADA (42 U.S.C. 12101).
5th COA: The Rehabilitation Act. 6th COA: Govt. Code 11135. [CT 240].
On 12/02/11, in the remand of Qualified Patients v. City of Anaheim,
this Court ruled that Anaheim's local ordinance 4.20.030 was a valid
exercise of its sovereign powers. See Cal. Const. Art XI 7; H&S Code
11362.83. That judgment is currently up on appeal before the 4th DCA,
which is simultaneously awaiting a ruling from our Supreme Court in the
Inland Empire MMD cases.
In this lawsuit, plaintiffs set their sights on the same ordinance,
claiming that 4.20.030 violates various "discrimination" statutes (state and
federal). The operative p]eading is phrased as a facial attack, but the
opposition papers suggest this is more of an "as applied" attack since the
ordinance only applies to seriously ill patients with medical permission to
use marijuana.... [R]egardless of how framed, no cause of action is stated.
11
a. Standing
This Court previously observed that plaintiffs failed to demonstrate
standing. To have standing to challenge legislative action, the plaintiff must
possess a special interest or a particular right over and above the interest
held in common with the public at large. County of San Diego v. San Diego
NORML (2008) 165 Cal.App.4th 798,813 n.5. This test, which is based on
the federa1 "injury in fact" rule, requires a party to prove by a preponderance
of the evidence that she has suffered an invasion of a legally protected
interest that is (a) concrete and particularized; and (b) actual or imminent,
not conjectural or hypothetical. City of Garden Grove v. Superior Court
(2007) 157 Cal.App.4th 355, 366 [tangential interests are insufficient]; in
accord, Torres v. City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1045-
1046. As explained by the Court of Appeal in Coral Construction Inc. v.
City & County of San Francisco (2004) 116 Cal.App.4th 6, 15-16:
"An action challenging a legislative act cannot be brought by any
individual or entity that disagrees with it. In order to invoke the aid of the
courts ... we consider whether the plaintiffs face a realistic danger of
sustaining a direct injury as a result of the statute's operation or enforcement,
or whether the alleged injury is too imaginary or speculative to support
jurisdiction ... Where a petitioner seeks declaratory or injunctive relief, it is
12
insufficient that he has been injured in the past; he must instead show a very
significant possibility of future harm in order to have standing."
[] The standing issue is not about [plaintiffs] health, but rather upon
the individualized impact closing Anaheim dispensaries might have on them
personally.
[] Collective alleges that it is a proper cooperative in accordance with
the Attorney General's Guidelines for the Security and Non-Diversion of
Marijuana Grown for Medical Use (as implemented per H&S Code
11362.81(d)) .... [T]he FAC still lacks ultimate facts showing compliance
therewith ... Plaintiffs have not alleged that 4.20.030 caused any
substantial reduction in their ability to obtain medical marijuana, and of
course nothing of their ability to grow medical marijuana themselves ....
Plaintiffs Butcher and James do not have standing since they do not
live in Anaheim (or even close by) and have not alleged the absence of
available co-ops closer to their respective homes. James is wheelchair
bound and resides in Huntington Beach; Butcher lives in Mission Viejo.
The impact of an Anaheim prohibition on them is too speculative to support
standing. Leave to amend for Butcher and James is denied.
13
b. The Claims
[1st CGA: Civil Code 55]
. .. Plaintiff's 1 st cause of action is based on a violation of Civil Code
55, which is part of the Disabled Persons Act ("DPA"). The DPA is part of
a larger body of laws aimed at avoiding discrimination. Generally speaking,
courts have declined to swaddle medical marijuana usage with the warm
comfort of state discrimination statutes. See, Ross v. Ragingwire
Telecommunications, Inc. (2008) 42 Ca1.4th 920, 926-930 [use not protected
under FEHA]; Qualified Patients Association v. City of Anaheim (2010) 187
Cal.App.4th 734,764 [Unruh Act "does not apply to [Anaheim's] enactment
of legislation" regarding medical marijuana]. While no appellate court has
yet addressed "access" to medical marijuana through the DP A ... this Court
sees no reason to treat the DPA differently.
The DP A is intended to secure to disabled persons the same right as
the general public to the full and free use of facilities open to the pUblic.
Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254,
261. Its focus is upon physical access to public places. Turner v.
Association of American Medical Colleges (2008) 167 Ca1.App.4th 1401,
1412. Challenges under the DPA involve challenges of physically disabled
individuals denied access to some public site or service due to their
14
disability. See, Californians for Disability Rights v. Mervyn's LLC
(2008) 165 Cal.App.4th 571, 580-581 [claim that store did not provide
adequate pathways, making merchandise inaccessible to persons using
wheelchairs or other mobility devices]; Hankins v. El Torito Restaurants,
Inc. (1998) 63 CaLApp.4th 510,515 [patron on crutches denied pennission
to use the only bathroom on first floor, which was reserved for employees];
Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1186-
1187 [quadriplegic could not access bank's automatic teller machine from
wheelchair due to the steps in front of it].
The DPA does not entitle a disabled individual to greater access than
the public at large. Turner v. Association of American Medical Colleges
(2008) 167 CaLApp.4th 1401, 1413; in accord, Eller v. City of Santa
WL 3517610 at *3-4 (N.D. Cal. 2009). As matter of simple logic, the DPA
cannot be used as a vehicle to give plaintiffs what they seek.
Decriminalization of possession and cultivation of marijuana is limited to
"seriously ill Californians" and their primary caregivers (see H&S Code
11362.5, 11362.77 5)--and NOT the general public at large. Since the
DP A is supposed to level the playing field between able-bodied and disabled
persons, it cannot be used to augment possession/use/cultivation if doing so
only inures to the benefit of "seriously ill" persons. This would in theory
15
result in reverse discrimination to able-bodied persons interested in
possessing marijuana. Even plaintiffs acknowledge that the goal of the DPA
is to provide those with disabilities lithe same right as the general public"
(opp brl2:18[CT 212])-not greater, special rights.
As to the precise allegations herein, the FAC contains no allegations
suggesting that plaintiffs were denied use of a public place, or access to a
public accommodation, on account of any disability. The F AC is further
bereft of allegations showing disparate treatment between those with
disability and those without. A ban on medical marijuana dispensaries
applies equally across the board to able-bodied persons and those with
disabilities alike. Plaintiffs' contention that the CUA and MMPA only apply
to disabled persons, and thus any infringement is per se discriminatory, is
bootstrapping at best. Decriminalizing possession and transport of medical
marijuana means plaintiffs are free to grow their own or travel outside their
immediate City to purchase some from a co-op. There is no inalienable right
to publicly access or use medical marijuana. See Ross v. Ragingwire
Communications, Inc. (2008) 42 Ca1.4th 920, 933 [medical self-
determination right does not extend to use/access to medical marijuana];
County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 868-869 [there
is no Uunfettered righf' to cultivate or dispense marijuana, and dispensaries
16
are not similarly-situated to pharmacies under the Equal Protection clause];
People v. Urziceanu (2005) 132 Cal.App.4th 747, 773 [CUA and MMPA
provide limited defense to criminal prosecution, not constitutional right to
use/access ].
The cases cited by plaintiffs in opposition to the demurrer are
unavailing. In City of Cleburne v. Cleburne Living Center (1985) 473 U.S.
432, the ordinance at issue singled out a residential care facility for mentally
retarded persons from other residential facilities. In Bay Area Addiction v.
City of Antioch (9
th
Cir. 1999) 179 F.3d 725, the ordinance at issue signed
out methadone clinics from other medical care clinics. In Crowder v.
Kitagawa (9
th
Cir. 1986) 81 F.3d 1480 , the quarantine policy was actually
causing harm to disabled persons.
Demurrer sustained to the 1 st cause of action without leave to amend.
[4th COA: ADA (42 U.S.C. 12101)]
Plaintiffs' 4th cause of action is for violation of the federal ADA--
which is the functional equivalent of plaintiffs' first cause of action. For
that, federal courts have already spoken. James v. City of Costa Mesa, 700
F.3d 394, 397 (9
th
Cir. 2012) ["marijuana use permitted by state law, but
prohibited by federal law , is an illegal use of drugs for purposes of the ADA,
17
and that the plaintiffs' federally proscribed medical marijuana use therefore
brings them within the ADA's illegal drug exclusion"].
Demurrer sustained to the 4th cause of action without leave to amend.
[5th COA: The Rehabilitation Act]
Plaintiffs' 5
th
cause of action is based on 29 U.S.C. 794-commonly
referred to as The Rehabilitation Act. The Rehabilitation Act was the first
major federal statute designed to protect the rights of disabled persons, and
creates a private right of action for individuals subjected to disability
discrimination by any program or activity receiving federal financial
assistance. Fleming v. Yuma Regional Medical Center 587 F.3d 938,940-
941 (9
th
Cir. 2009). It provides that "no otherwise qualified individual with
a disability shall, solely by reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity recei ving Federal financial
assistance." Federa1 courts have already concluded that the Rehabilitation
Act does not protect marijuana use or possession. See, Assenberg v.
Anacortes Housing Authority (9
th
Cir. 2008) 268 Fed.Appx. 643, 644;
Grimes v. U.S. Postal Service (W.D. Missouri 1994) 872 F.Supp. 668, 674-
675; Burka v. New York City Transit Authority (S.D.N.Y. 1988) 680
18
F.Supp. 590, 600; in accord, Benedict v. Central Catholic High School (N.D.
Ohio 2007) 511 F.Supp.2d 854, 859-860.
Demurrer sustained to the 5
th
cause of action without leave to amend.
[6th COA: Govt. Code 11135]
Plaintiffs 6
th
cause of action is based on Government Code 11135.
Pursuant thereto, "no person in the State of California shall, on the basis of
race, national origin, ethnic group identification, religion, age, sex, sexual
orientation, color, genetic infonnation, or disability, be unlawfully denied
full and equal access to the benefits of, or be unlawfully subjected to
discrimination under, any program or activity that is conducted, operated, or
administered by the state or by any state agency, is funded directly by the
state, or receives any financial assistance from the state." The regulations
implementing section 11135 define "program or activity" in the following
manner: "any project, action or procedure undertaken directly by recipients
of State support or indirectly by recipients through others by contracts,
arrangements or agreements, with respect to the public generally or with
respect to any private or public entity. Such programs or activities include,
but are not limited to, the provisions of employment or goods; the
procurement of goods or services; the provision of education, training,
health, welfare, rehabilitation, housing or other services; the provision of
19
cash or loan or the provision of facilities for furnishing services,
financial aid or other benefits. It Cal. Code Regs. Tit. 22 98010. Plaintiffs
have not alleged any government-based program in which they have been
wrongfully excluded. Are plaintiffs alleging that the City of Anaheim has a
program for dispensing marijuana to some residents, but has denied these
plaintiffs similar access? Of course not. Section 11135 is this state's
functional equivalent of The Rehabilitation Act, and federal cases dealing
with the Rehabilitation Act are instructive.
Demurrer sustained to the 6
th
cause of action without leave to amend.
[2nd COA: Injunctive Relief/3rd COA: Declaratory Relief]
Plaintiffs' 2nd and 3rd causes of action for injunctive and declaratory
relief are both founded upon the aforementioned disability statutes. Since
those statutes do not support viable causes of action, the derivative claims
fail as well. Demurrer sustained to the 2
nd
and 3 rd causes of action without
leave to amend. [CT 240-244].
ARGUMENT
A. STANDARD OF REVIEW
Judicial interpretation of a municipal ordinance involves a question of
law and is subject to independent review. People ex reI. v. Beaumont
Investment, Ltd. (2003) 11] Cal.App.4th 102, 113.
20
When considering Appellants' facial challenge to the City's ordinance,
the court considers only "the text of the measure itself, not its application to
the particular circumstances of an individual. [Citation.] 'To support a
determination of facial unconstitutionality, voiding the statute as a whole,
[appellants] cannot prevail by suggesting that in some future hypothetica]
situation constitutional problems may possibly arise as to the particular
application of the statute .... Rather, [appellants] must demonstrate that the
act's provisions inevitably pose a present total and fatal conflict with
applicable constitutional prohibitions. '" Tobe v. City of Santa Ana (1995)
9 Ca1.4th 1069, 1 084 [camping ban in public areas].
Thus, the constitutionality or facial validity of legislation is subject to
independent appellate review. Zubarau v. City of Palmdale (2011) 192
Cal.App.4th 289,307-308,121 Cal.Rptr.3d 172,186-187 [constitutionality
of local ordinance--"All presumptions and intendments favor the validity of
a statute ... Statutes must be upheld unless their unconstitutionality clearly,
positively and unmistakably appears" (internal quotes omitted)]; Mercury
Cas. Co. v. Scottsdale Indem. Co. (2007) 156 Cal.App.4th 1212, 1218,68
Ca1.Rptr.3d 123, 127 ["statutes are presumed to be valid and a court will not
strike down a legislative enactment unless its invalidity is clearly
established" (internal quotes and brackets omitted)]; Rental Housing Owners
21
Ass'n of Southern Alameda County, Inc. v. City of Hayward (2011) 200
Cal.App.4th 81, 90, 133 Cal.Rptr.3d 155, 162.
But review of the trial court's failure to grant leave to amend is
conducted under the abuse of discretion standard. The appellate court will
reverse for abuse of discretion only if it determines there is a reasonable
possibility the pleading can be cured by amendment; otherwise, the trial
court's decision will be affirmed for lack of abuse. Schifando v. City of Los
Angeles (2003) 31 Cal.4th 1074, 1081, 6 Cal.Rptr.3d 457,460; Blank v.
Kirwan (1985) 39 Ca1.3d 311, 3 1 8 ~ 216 Cal.Rptr. 718,721.
Courts do not assume the truth of contentions, deductions or
conclusions of fact or law alleged [Evans v. City of Berkeley (2006) 38
Ca1.4th 1,5,40 Cal.Rptr.3d 205,208; Moore v. Regents ofUniv. of Calif.
(1990) 51 C3d 120, 125,271 CR 146, 147] and may disregard allegations
that are contrary to the law or to a fact of which judicial notice may be taken.
Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951,955,
199 CR 789, 792; McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th
784, 792,71 Cal.Rptr.3d 885, 891; Sanchez-Scott v. Alza Phannaceuticals
(2001) 86 Cal.App.4th 365,371,103 Cal.Rptr.2d 410, 414.
22
Appellants' F AC is full of conclusions of fact and law that their use of
medical marijuana is "legal" under state law. Those "allegations" were not
admitted by the Citys demurrer.
B. MMD BAN IS NOT DISABILITY DISCRIMINATION
Appellants rely on federal case law under the ADA, 42 U.S.C.
12l0l et seq. But Appellants have not, however, offered any authority for
its premise that Anaheim's MMD ban discriminates against anyone. The
ordinance does not permit some people to obtain marijuana while excluding
those with disabilities or medical conditions. Rather, no one can obtain it
from an Anaheim MMD. If anything, the ordinance is completely neutral on
its face.
To the extent Appellants seek the protection of the ADA in
challenging Anaheim's ordinance, it cannot succeed. Appellants rely on
Title II of the ADA. Title II provides that "no qualified individual with a
disability shall, by reason of such disability, be excluded from participation
in or be denied the benefit of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity." 42 U.S.C.
12132. The ADA defines a "qualified individual with a disability" as "an
individual with a disability who, with or without reasonable modifications to
rules, policies, or practices, the removal of architectural, communication, or
23
transportation barriers, or the provision of auxiliary aids and services, meets
the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity." 42
U.S.C. 12131(2). The term "public entity" includes local governments,
such as Anaheim. 42 U.S.C. 12131(1)(A).
Under Title II of the ADA [42 U.S.C. 12131-12134], a claim of
disability discrimination requires four elements: "(1) the plaintiff is an
individual with a disability; (2) the plaintiff is otherwise qualified to
participate in or receive the benefit of some public entity's services,
programs, or activities; (3) the plaintiff was either excluded from
participation in or denied the benefits of the public entity's services,
programs, or activities, or was otherwise discriminated against by the public
entity; and (4) such exclusion, denial of benefits, or discrimination was by
reason of the plaintiffs disability." Thompson v. Davis (9
th
Cir. 2002) 295
F.3d 890, 895, citing Weinreich v. L.A. County Metro. Transp. Auth. (9
th
Cir. 1997) 114 F.3d 976, 978. "Disability" under the ADA means one of
three things: "(A) a physical or mental impairment that substantially limits
one or more major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impainnent. ... "
42 U.S.C. 12102(1).
24
Appellant Collective cannot even satisfy the first element: whether it
was or is an "individual[] with a disability." Leaving aside the fact that
Patient Med-Aid is an entity, not an individual, the ADA expressly excludes
one "who is currently engaging in the illegal use of drugs, when the covered
entity acts on the basis of such use." Marla James v. City of Costa Mesa (9
th
Cir. 2012) 700 F.3d 394, 397, cert. denied, 133 S. Ct. 2396 (U.S. 2013); 42
U.S.C. 12210. The Act then defines "illegal use of drugs" as "the use of
drugs, the possession or distribution of which is unlawful under the
Controlled Substances Act [21 U.S.C 812J. Such tenn does not include the
use of a drug taken under supervision by a licensed health care professional,
or other uses authorized by the Controlled Substances Act or other
provisions of Federal law." 42 U.S.C. 12210(d)(1); Marla James, supra,
700 F.3d at 397-398. Congress imported the CSA into the ADA through the
very definition of a "drug," meaning "a controlled substance, as defined in
schedules I through V of section 202 of the Controlled Substances Act [21
U.S.C. 812J." 42 U.S.C. 12210(d)(2). By its terms, Title II requires that
for this exception to apply, "the use of the drug taken under the supervision
of a licensed health care professional [must] be consistent with the [CSA]."
Barber v. Gonzales (E.D. Wash. 2005) 2005 WL 1607189 at * 1.
25
Marijuana is a "Schedule I" controlled substance under the CSA--
most restricted: it has a high potential for abuse, possesses no currently
accepted medical use in treatment in the United States, and accepted safety
for use of the drug under medical supervision is lacking. 21 U.S.C.
812(b)(J)(A)-(C). As a Schedule I substance, marijuana cannot even be
dispensed by prescription. 21 U.S.C. 829 [listing only substances on
schedules II through V].
The only authorized use of marijuana under the CSA is under a
strictly regulated research program. 21 U.S.C. 823(f). "Schedule I drugs
may be obtained and used lawfully only by doctors who submit a detailed
research protocol for approval by the Food and Drug Administration and
who agree to abide by strict recordkeeping and storage rules." County of
Santa Cruz v. Ashcroft (N.D. Cal. 2003) 279 F.Supp.2d 1192, 1197 (quoting
Alliance for Cannabis Therapeutics v. Drug Enforcement Admin. (D.C. Cir.
1994) 15 F.3d 1131, 1133.) As the Supreme Court observed, "the
Controlled Substances Act ... reflects a determination that marijuana has no
medical benefits worthy of an exception (outside the confines of a
Government-approved research project.)" United States v. Oakland
Cannabis Buyers' Cooperative (2001) 532 U.S. 483,491. The question thus
becomes whether, as admitted users of illegal drugs, Appellants are
26
nevertheless entitled to the protections of the AD A in the first instance.
They can only succeed if the ADA authorizes, independent of the Controlled
Substances Act, their use of marijuana under a doctor's supervision. But the
ADA gives no such authorization.
Appellants try to analogize marijuana to the guide dogs and
quarantine policy at issue in Crowder v. Kitagawa (9
th
Cir. 1996) 81 F.3d
1480. There, plaintiffs were a class of visually impaired individuals who
relied on guide dogs to access public services. They sued the state of
Hawaii, claiming the state's 120-day quarantine on carnivorous animals
violated their rights under the ADA and the U.S. Constitution. Significantly,
the court in Crowder was not confronted with the threshold issue here of
whether plaintiffs were qualified individuals with a disability, but rather with
the question of whether the quarantine discriminated against the plaintiffs by
reason of their disability. Id. at 1484. Further, Appellants cite no authority
to establish that the ADA requires a "reasonable accommodation" for
marijuana use. In Assenberg v. Anacortes Housing Auth., the Ninth Circuit
stated liThe Fair Housing Act, Americans with Disabilities Act, and
Rehabilitation Act all expressly exclude illegal drug use, and AHA did not
have a duty to reasonably accommodate Assenberg's medical marijuana use.
See 42 U.S.C. 3602(h), 12210(a); 29 U.S.C. 705(20)(C)(i)." Assenberg
27
v. Anacortes Hous. Auth. (9
th
Cir. 2008) 268 Fed.Appx 643,644. While it is
not precedent, Anaheim submits that the Ninth Circuifs prior consideration
and determination of this issue is highly persuasive and should be adopted
by the Court in this case.
The Ninth Circuit invited the view of the United States as amicus
curiae in Marla James. The United States filed an amicus brief supporting
the cities' interpretation: "The proper interpretation of the term 'illegal use
of drugs,' as defined in 42 U.S.C. []12210(d), includes the use of marijuana
taken under doctor supervision, unless that use is authorized by the CSA or
another federal law , which is not the case here. Federal law makes clear that
medical marijuana use does not receive special protection under the ADA.
Brief for the United States as Amicus Curiae at 10. II Marla James, supra,
700 F.3d at 402, fn. 9.
C. DPA DOESN'T PROTECT MEDICAL MARIJUANA
Appellants argue that California's version of the ADA (referred to
throughout their brief as the California "Disabled Persons Act" or "DPA"
Civil Code 54 et seq.) incorporates and expands upon the "rights" and
"protections" afforded to medical marijuana users under the federal ADA.
However, the ADA actually does not afford any protections for medical
28
marijuana users, since marijuana is not recognized as a legal drug under
federal law .
The City does not dispute that some medical marijuana users are
provided an affirmative defense in this state for the use of marijuana in some
criminal contexts. However, the narrow scope of the CUA and MMP do not
bring those same medical marijuana users under the protective umbrella of
the DP A, and they are not entitled to "reasonable accommodation" and/or
"access" under the DPA because of their medical marijuana use.
Appellants argue that: 1) medical marijuana users are protected by the
federal A D A ~ 2) that the state DPA provides even further protections; and
3) that when read together, the ADA and DPA preclude the City from
enacting an MMD ban. However, Appellants set forth no cogent argument
as to why such a sweeping "accommodation" and/or" access" should be
made.
In Ross v. Ragingwire Telecommunications, Inc., (2008) 42 Ca1.4th
920, the plaintiff brought a disability based discrimination action under the
California Fair Employment and Housing Act (FEHA), alleging that his
employer violated FEHA when the employee was terminated after testing
positive for marijuana that was being used by the employee pursuant to the
provisions of the CU A. The employee alleged that the company violated the
29
FEHA by discharging him rather than making reasonable accommodation
for his use of medical marijuana to relieve symptoms of his disability. Id.
In holding that the employee was not entitled to the relief requested and that
the employee could not state a cause of action for wrongful tennination in
violation of public policy, the Supreme Court recognized the narrow scope
of the CU A and refused to extend its protections beyond the scope of the
CUA itself. Id. In R o s s ~ the Supreme Court held that the employee's
position "might have merit if the Compassionate Use Act gave marijuana the
same status as any legal prescription drug. But the act's effect is not so
broad. No state law could completely legalize marijuana for medical
purposes because the drug remains illegal under federal law (21 U .S.C.
812, 844(a)), even for medical users (see, Gonzales v. Raich, supra, 545
U.S. 1,26-29, 125 S.Ct. 2195, 162 L.Ed.2d 1 ~ United States v. Oakland
Cannabis Buyers' Cooperative, supra, 532 U.S. 483, 491-495, 121 S.Ct.
1711, 149 L.Ed.2d 722). Instead of attempting the impossible ...
California's voters merely exempted medical users and their primary
caregivers from criminal liability under two specifically designated state
statutes." Ross, supra, 42 Cal.4th at 926.
The Supreme Court further stated in recognizing the limited scope of
the CUA that: "To the contrary the only 'right' to obtain and use marijuana
30
created by the [COAl is the right of a 'patient, or ... a patient's primary
caregiver, [to] possess or cultivate marijuana for the personal medical
purposes of the patient upon the written or oral recommendation or approval
of a physician' without thereby becoming subject to punishment under
sections 11357 and 11358 of the Health and Safety Code." Ross v.
Ragingwire, supra, at 929. Finally, the Supreme Court concluded that
"given the Compassionate Use Act's modest objectives and the manner in
which it was presented to the voters for adoption, we have no reason to
conc]ude the voters intended to speak so broadly, and in a context so far
removed from the criminal law, as to require [cities] to accommodate
marijuana use." Ross, supra, 42 Ca1.4th at 930.
There is nothing in either the CO A or MMP to suggest that local
governments do not have the right to ban MMDs. On May 6, 2013, the
California Supreme Court issued its opinion in City of Riverside v. Inland
Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729.
The Supreme Court held that ''the CUA and the MMP do not expressly or
impliedly preempt Riverside's [ordinance] declaring a medical marijuana
dispensary '" to be a prohibited use, and a public nuisance, anywhere within
the city limits." Id. at p. 752. That decision is binding and is dispositive of
31
the preemption issues raised in this appeal. Auto Equity Sales. Inc. v.
Sup.Ct. (1962) 57 Ca1.2d 450,455.
Under Govt. Code 12926(k), '''[t]he touchstone of a qualifying
[physical] disability is an actual ... disorder which affects a major body
system and limits the individual's ability to participate in one or more major
life activities.'" (citations) "Physical disabilities do not include' ... disorders
resulting from the current unlawful use of controlled substances or other
drugs: (12926, subd. (k)(6)." Avila v. Conel Airlines, Inc. (2008) ]65
Cal.App.4th 1237, 1248,82 Cal.Rptr.3d 440,450.
The City has not prevented Appellants from having "access" to
marijuana. Defendant has only banned MMDs in Anaheim. To assert that
defendant's refusal to permit MMDs affects Appellants "access to marijuana
is merely to restate the argument that the Compassionate Use Act (Health &
Safe Code, 11362.5) gives plaintiff a right to use marijuana free of
hindrance or inconvenience, enforceable against third parties. That argument
we have already rejected." Ross, supra, 42 Cal.4th at 933.
Thus, the ADA and DPA cannot be wielded as a sword to prevent
cities from banning MMDs.
32
D. NO CLAIM UNDER FEDERAL ADA OR STATE DPA
Appellants claim the City's banning on MMDs violates rights
protected by the Unruh Act, Civil Code 51. Emanating from and modeled
upon traditional "public accommodations" legislation, the Unruh Act
expanded the reach to include "all business establishments." Marina Point,
Ltd. v. Wolfson (1982) 30 C3d 721, 731.
The Unruh Civil Rights Act provides: "All persons within the
jurisdiction of this state are free and equal, and no matter what their ...
disability, [or] medical condition ... are entitled to the full and equal
accommodations, advantages, facilities, privileges, or services in an business
establishments of every kind whatsoever." Civil Code 51 (b). Section 52 of
the Civil Code is the "enforcement mechanism" of the Unruh Civil Rights
Act. Harris v. Capital Growth Investors XIV (1991) 52 Ca1.3d 1142, 1153.
Civil Code 51(f) states: "A violation of the right of any individual
under the federal [ADA] shall also constitute a violation of this section."
The ADA provides in pertinent part: "No individual shall be discriminated
against on the basis in the full and equal enjoyment of the goods, services,
facilities, advantages, or accommodations of any place of public
accommodation by any person who ... operates a place of public
accommodation." 42 U.S.C. 12182(a). The ADA defines discrimination as
33
"a failure to make reasonable modifications in policies, practices, or
procedures, when such modifications are necessary to afford such goods,
services, facilities, privileges, advantages, or accommodations to individuals
with disabilities, unless the entity can demonstrate that making such
modifications would fundamentally alter the nature of such goods, services,
facilities, privileges, advantages or accommodations." 42 U.S.C.
12182(b )(2)(A)(ii).
"Like the Unruh Civil Rights Act, the DPA incorporates the ADA to
the extent that 'A violation of the right of an individual under the Americans
with Disabilities Act of 1990 (Public Law 101-336) also constitutes a
violation of this section.' (Civ. Code, 54, subd. (c).)" Turner v. Association
of American Medical Colleges (2008) 167 Cal.App.4th 1401, 1413;
Baughman v. Walt Disney World Co. (2013; 4th Dist. Div. 3) 217
Cal.App.4th 1438, 1446,159 Cal.Rptr.3d 825,831.
But "the Unruh Act does not apply to the city's enactment of
legislation .... 'By its plain language, the Act bars discrimination based on
' ... disability' by 'business establishments.' [Citation.] Nothing in the Act
precludes legislative bodies from enacting ordinances which make ... [such]
distinctions .... ' (citation). Because a city enacting legislation is not
functioning as a 'business establishment[ ],' we conclude the Unruh Act does
34
not embrace plaintiffs' claims against the city for discrimination based on a
disability or medical condition calling for the use of medical marijuana ....
[I]t does not follow that enacting legislation, as here, transforms the
governmental entity into a 'business establishment[J' that is subject to a
lawsuit under the express terms of the act. Because the terms of the Unruh
Act expressly apply to 'business establishments; we see no room for its
application to the city's legislative action here. Accordingly, ... [t]he Unruh
Act does not apply to the city in the circumstances [alleged] here. H
Qualified Patients, supra, 187 CA4th at 763-765.
Appellants also fail to state a cause of action under Civil Code 54.
In Ross v. Ragingwire Telecomms., Inc. (2008) 42 C4th 920, the Supreme
Court held that the CUA did not dictate protection of medical marijuana
users under the state's version of the ADA. The state disability statutes,
unlike the federal ADA, do not address, one way or the other, whether
medical marijuana users are entitled to the protections of those statutes.
Ross, supra, 42 C4th at 924 [not cause of action against employer for
disability-based discrimination under FERA], held that the fact that use of
medical marijuana is not a criminal offense in California does not
necessarily speak to its status under an anti-discrimination laws.
35
The California Supreme Court summarized the ADA in Jankey v.
Song Koo Lee (2012) 55 C4th 1038, 1043-1045. The ADA prohibits
discrimination on the basis of disability in the enjoyment of ItpubHc
accommodations.1t Munson v. Del Taco, Inc. (2009) 46 Ca1.4th 661, 669
(Civil Code 54-55.3 is commonly referred to as the "Disabled Persons
Act,1t although it has no official title. 46 Ca1.4th at 674, fn. 8.
In 1992, shortly after passage of the ADA, the Legislature amended
the state's disability protections '''to strengthen California law in areas where
it is weaker than the [ADA] and to retain California law when it provides
more protection for individuals with disabilities than the [ADA]. '" Munson,
supra, 46 Ca1.4th at 669 quoting Stats. 1992, ch. 913, 1, p. 4282. Two
overlapping laws, the Unruh Civil Rights Act (Civil Code 51) and the
Disabled Persons Act (Civil Code 54-55.3), are the principal sources of
state disability access protection.
The Unruh Civil Rights Act broadly outlaws arbitrary discrimination
in public accommodations and includes disability as one among many
prohibited bases. Civil Code 51(b). As part of the 1992 reformation of
state disability law, the Legislature amended the Unruh Civil Rights Act to
incorporate by reference the ADA, making violations of the ADA per se
violations of the Unruh Civil Rights Act. Civil Code 51 (f); Munson, supra,
36
46 Ca1.4th at 668-669. This amendment was intended to extend to disabled
individuals aggrieved by an ADA violation the full panoply of Unruh Civil
Rights Act remedies. Munson, supra, 46 Ca1.4th at 673.
The Disabled Persons Act substantially overlaps with and
complements the Unruh Civil Rights Act. Munson, supra, 46 Ca1.4th at 675.
More narrow in focus than the Unruh Civil Rights Act, it generally
guarantees people with disabilities equal rights of access public
buildings, facilities and services, as well as common carriers, housing and
places of public accommodation." Munson, supra, 46 Ca1.4th at 674, fn. 8;
54(a), 54.1(a)(I). As with the Unruh Civil Rights Act, the Legislature
amended the Disabled Persons Act to incorporate ADA violations and make
them a basis for relief under the act. Civil Code 54(c), Munson,
supra., 46 Ca1.4th at 674; Wilson v. Murillo (2008) 163 Cal.App.4th 1124,
1131.
Civil Code 55 is part of the Disabled Persons Act, but it offers an
independent basis for relief. Molski v. Arciero Wine Group (2008) 164
Cal.App.4th 786, 792, 79 Cal.Rptr.3d 574. It is broader in two respects than
the private right of action authorized by Civil Code 54.3: Section 55
extends standing to those "potentially aggrieved," not just those who have
been actually denied access. Civil Code 55; Turner v. Association of
37
American Medical Colleges (2011) 193 Cal.App.4th at 1059; Molski, 164
Cal.App.4th at 792; Jankey v. Song Koo Lee (2012) 55 CaL4th 1038, 1043-
1045.
Thus, it is clear that the state DP A is generally limited to "access" to
"public accommodations."
The Ninth Circuit has rejected Plaintiffs ADA clams: The federal
district court "denied their application for preliminary injunctive relief on the
ground that the ADA does not protect against discrimination on the basis of
marijuana use, even medical marijuana use supervised by a doctor in
accordance with state law, unless that use is authorized by federal law . <JlW e
affirm. ... Congress has made clear ... that the ADA defines 'illegal drug
use' by reference to federal, rather than state, law, and federal law does not
authorize the plaintiffs! medical marijuana use. We therefore necessarily
conclude that the plaintiffs' medical marijuana use is not protected by the
ADA." Marla James v. City of Costa Mesa (9
th
Cir. 2012) 700 F.3d 394,
397.
" [T]he district court recognized [that] the ADA ... provides that 'the
term 'individual with a disability' does not include an individual who is
currently engaging in the illegal use of drugs, when the covered entity acts
38
on the basis of such use.' [42 USC] 122l0(a)." Marla James, supra, 700
F.3d at 397.
U[W]e agree with both district courts that have considered the
question, as well as the Department of Housing and Urban Development and
the United States as amicus curiae, in concluding that doctor-supervised
marijuana use is an illegal use of drugs not covered by the ADA's supervised
use exception. See, James v. City of Costa Mesa (C.D.Cal. Apr. 30, 2010)
No. SACV 10-0402 AG (MLGx), 2010 WL ] 848157, at *4; Barber v.
Gonzales (E.D.Wash. July 1,2005) No. CV-05-0173-EFS, 2005 WL
1607189, at *1; Kanovsky Memo at 5 (,Under ... the ADA, whether a given
drug or usage is 'illegal' is determined exclusively by reference to the
CSA .... While ... the ADA contain[s] language providing a physician-
supervision exemption to the' current illegal drug user' exclusionary
provisions, this exemption does not apply to medical marijuana users,')."
Marla James, supra, 700 F.3d at 403.
" A contrary interpretation of the exception for 'use of a drug taken
under supervision by a licensed health care professional' would allow a
doctor to recommend the use of any controlled substance-including
cocaine or heroin-and thereby enable the drug user to avoid the ADA's
illegal drug exclusion. Congress could not have intended to create such a
39
capacious loophole, especially through such an ambiguous provision. Cf.
Ross v. Ragingwire Telecomms., Inc., [42 C4th 920,931]174 P.3d 200,207
(Ca1.2008) (observing, in interpreting California's employment
discrimination law, that 'given the controversy that would inevitably have
attended a legislative proposal to require employers to accommodate
marijuana use, we do not believe that [the relevant statute] can reasonably be
understood as adopting such a requirement silently and without debate'). II
Marla James, supra, 700 F.3d at 403.
The Supreme Court held in Ross that the CVA did not dictate
protection of medical marijuana users under the state's version of the ADA.
The state disability statute, unlike the federal ADA, does not address, one
way or the other, whether medical marijuana users are entitled to the
protections of the statute. Ross v. Ragingwire Telecommunications Inc.
(2008) 42 Ca1.4th 920, 924 [plaintiff could not state a cause of action against
his employer for disability-based discrimination under FEHA] , held that
under those circumstances, the fact that use of medical marijuana is not a
criminal offense in California does not necessarily speak to its status under
an anti-discrimination law.
Under Ross and Riverside, cities may refuse to harbor within their
borders MMDs. That was the mode of analysis adopted by the Supreme
40
Court in Ross. Neither the federal ADA nor the state DPA requires cities to
allow the distribution of medical marijuana by MMDs.
The Ninth Circuit concluded that Appellant Marla James was not
within the group of disabled individuals protected by the federal ADA.
Thus, the ADA excludes Appellant Marla James and the other individual
Appellants from the class of individuals protected by the federal ADA
andlor state DPA.
E. FACTUAL CHALLENGE SHOULD BE REJECTED
The PAC makes only a facial challenge to the Cityts ban.
When considering a facial challenge to an Ordinance, the Court
considers only "the text of the measure itself, not its application to the
particular circumstances of an individual. [Citation.] '''To support a
determination of facial unconstitutionality, voiding the statute as a whole,
petitioners cannot prevail by suggesting that in some future hypothetical
situation constitutional problems may possibly arise as to the particular
application of the statute .... Rather, petitioners must demonstrate that the
actts provisions inevitably pose a present total and fatal conflict with
applicable constitutional prohibitions.'" Tobe v. City of Santa Ana (1995) 9
Ca1.4th 1069, 1084 [ban on camping in public areas].
41
Thus, the City's MMD ban must be upheld unless the Appellants
establish the Ordinance inevitably poses a present total and fatal conflict
with state law. The Appellants have a heavy burden to show the City's
Ordinance is void in all or most cases, and "cannot prevail by suggesting
that in some future hypothetical situation constitutional problems may
possibly arise as to the particular application of the statute." Coffman
Specialties, Inc. v. Department of Transportation (2009) 176 Cal.App.4th
1135,1145; Browne v. County of Tehama (2013) 213 Cal.App.4th 704, 717,
153 CaLRptr.3d 62, 70 (facial challenge to Ordinance regulating marijuana
cu1tivation). Appellants haven't shown a total and fatal conflict with the
CUAandMMP.
F. NO STANDING TO CHALLENGE CITYS BAN ON
MMDS
To invoke the judicial process, a plaintiff must "be beneficially
interested in the controversy; that is, he or she must have some special
interest to be served or some particular right to be preserved or protected
over and above the interest held in common with the public at large."
County of San Diego v. San Diego NORML (2008) 165 CaLApp.4th 798,
814. "The party must be able to demonstrate that he or she has some such
42
beneficial interest that is concrete and actual, and not conjectural or
hypothetical." Id.
This standing requirement "is not established merely because the
party has been impacted by the statutory scheme to which the assertedly
unconstitutional statute belongs. Instead, the courts have stated that '[a]t a
minimum, standing means a party must "show that he personally has
suffered some actual or threatened injury as a result of the putatively illegal
conduct of the defendant. ", Id.
The City's ban prohibits MMDs from operating within the City. The
individual Appellants do not allege any real injury that they personally will
suffer as a result of the City's ban other than alleged inference with access to
medical marijuana in the City. They do not allege any real facts that they
own any property in the City, own or run the MMD, or are in any way
connected to the MMD except for their allegation that they are "patients" of
Patient Med-Aid. 110. [CT 122].
Appellants allege that the City's ban has "interfered with Plaintiff[s]
... ability to access and obtain medical marijuana .... " ')1106. [CT 138-139].
The individual Appellants, however, have alleged no real facts showing
ownership of Patient Med-Aid, control over the uses of property chosen by
Patient Med-Aid, and no cognizable interest that may be affected by the
43
City's ordinance other than they are "patients. tI Thus, the individual
Appellants are just another "patient" of Patient Med-Aid.
The rules governing corporate standing are pertinent here. "Because a
corporation exists as a separate legal entity, the shareholders have no direct
cause of action or right of recovery against those who have harmed it."
Grosset v. Wenaas (2008) 42 Ca1.4th 1100, 1108, 72 Cal.Rptr.3d 129. In the
context of corporation law, individual stockholders and members may not
maintain an action in their own behalf concerning enterprise rights or
interests because "'such an action would authorize multitudinous litigation
and ignore the corporate entity. '" Grosset, supra, 42 Cal.4th at 1108, fn. 5,
72 Cal.Rptr.3d 129.
These concerns are apt here. A plethora of litigation has erupted
statewide involving MMDs challenging various aspects of 10ca1legislation
concerning medical marijuana, including MMD bans. To recognize standing
in every member of every MMD to assert claims concerning the cooperative
or collective right to medical marijuana would have the practical effect of
swamping the courts with a multitude of separate, overlapping cases,
needlessly impeding the administration of justice and increasing the risk of
inconsistent results.
44
"[A] party who asks relief from a court must be one who is in some
way aggrieved by the act complained of' and, specifically, "must show some
character of actual or potential interference with his rights of person or
property." Silva v. City of Cypress (1962) 204 Cal.App.2d 374, 377, 22
Cal.Rptr. 453 [help plaintiff lacked standing]. Declaratory relief claims
require an "actual controversy relating to the legal rights and duties of the
respective parties .... " CCP 1060. Individual MMD members do not have
standing to pursue individual claims as Appellants are attempted to do here.
If every "member" of a MMD has standing to assert causes of action
regarding the dispensary's alleged right to distribute marijuana, the courts
would be overburdened with overlapping cases. As the FAC is based on the
MMD's purported "right" to distribute marijuana under the CVA and MMP,
the indi vidual Appellants do not have standing to seek a judicial
detennination of the contours of that alleged "right." Silva, supra, 204
Cal.App.2d at 377 (as petitioner did not own any property in the affected
zone, he lacked standing). The individual Appellants lack standing in this
action.
G. NO CLAIM UNDER GOVT. CODE 11135 AND 12926
Appellants also fail to state claim under Govt. Code 11135 and
12926. Appellants vaguely allege that the City's ban on MMDs discriminate
45
against them because of their alleged disability under Govt. Code 12926.
136-37. [CT 126].
Patient Med-Aid cannot state such a cause of action under Govt. Code
11135 and 12926 because it is not an individual with a protected medical
condition or disability. As for the individual Appellants, they do not allege
facts showing that the City's ban discriminates against anyone. The City's
ordinance does not permit some people to operate an MMD in the City while
excluding those with disabilities or medical conditions. Rather, no one can
operate an MMD in the City. If anything, the ordinance is completely
nondiscriminatory on its face.
Thus, Appellants fail to state a cause of action under Govt. Code
11135 and 12926.
H. NO CLAIM UNDER CIVIL CODE 54 OR UNRUH ACT
Appellants also fail to state facts sufficient for a cause of action under
Civil Code 54. That section provides, "Individuals with disabilities or
medical conditions have the same right as the general public to the full and
free use of the streets, highways, sidewalks, walkways, public buildings,
medical facilities, including hospitals, clinics, and physicians' offices, public
facilities, and other public places." Civil Code 54(a).
46
Civil Code 54 has "been construed to mean that all physically
handicapped individuals are entitled to the same right as the able-bodied to
full and free use of public facilities and places, requiring operators of such
public facilities and accommodations to open [their] doors on an equal basis
to all that can avail themselves of the facilities without violation of other
valid laws and regulations." Coronado v. Cobblestone ViII. Cmty. Rentals,
L.P. (2008) 163 Cal.App.4th 831, 844.
As Civil Code 54 applies only to "[i]ndividuals with disabilities or
medical Patient Med-Aid, a corporation, cannot state a cause of
action under Section 54. As for the individual Appellants, they have not
pled any facts that suggest they were physically denied access to any public
facilities by the City, or that persons without a disability or medical
condition were afforded greater access to any public facility by the City.
Accordingly, the individual Plaintiffs also fail to state a cause of action
under Civil Code 54.
Appellants admit that "Physical disability" "does not include ...
disorders resulting from the current unlawful use of controlled substances or
other drugs." Gov't Code 12926(1)(6). 1[45. [CT 127], This is similar to
the federal ADA exemption.
47
Ross v. Ragingwire Telecomms., Inc. (2008) 42 Cal.4th 920, 931 held
that ugiven the controversy that would inevitably have attended a legislative
proposal to require employers to accommodate marijuana use, we do not
believe that [the relevant statute] can reasonably be understood as adopting
such a requirement silently and without debate. II
The Supreme Court held in Ross that the CU A did not dictate
protection of medical marijuana users under the statets version of the ADA.
The state disability statute, unlike the federal ADA, does not address, one
way or the other, whether medical marijuana users are entitled to the
protections of the statute. Ross, supra, 42 Ca1.4th at 924 [plaintiff could not
state a cause of action against his employer for disability-based
discrimination under FEHA] , held that the fact that use of medical marijuana
is not a criminal offense in California does not necessarily speak to its status
under an anti-discrimination law.
Under Ross, employers may ban from employment, and public
entities may refuse to harbor within their borders, MMDs who violate the
CSA, as Congress in no way indicated otherwise. That was the mode of
analysis adopted by the Supreme Court in Ross. Neither the ADA nor state
law requires Cities to allow the distribution of medical marijuana by MMDs.
48
The individual Plaintiffs are not within the group of disabled
individuals protected by the state ADA. Thus, the state ADA excludes
James and the other individual Plaintiffs from the class of individuals
protected by the state ADA.
Lastly, tithe Unruh Act [Civil Code 51] does not embrace plaintiffs'
claims against the city for discrimination based on a disability or medical
condition calling for the use of medical marijuana." Qualified Patients, 187
CA4th at 764, 115 CR3d at 111.
I. MMD BAN DOES NOT CONFLICT WITH STATE LAW
Plaintiffs allege that the City's ordinance banning marijuana
dispensaries "conflicts with state law (CUAlMMP)." C]l139. [CT 143-144].
Appellants alleged that the City'S blanket ban on MMDs conflicts
with, and is preempted by, the CVA (Proposition 215) enacted by the voters
in 1996 authorizing the use of marijuana for medical purposes and the MMP
enacted by the Legislature. Pursuant to the recent California Supreme Court
decision in City of Riverside v. Inland Empire Patients Health & Wellness
Center, Inc. (2013) 56 Ca1.4th 729 (City of Riverside), the City'S blanket ban
on MMDs does not conflict with, and is not preempted by, the CVA or the
MMP, and is thus pennissible.
49
Appellants alleged that City's total ban on MMDs formed pursuant to
Health & Safety Code 11362.775 was preempted by general principles of
the preemption doctrine. The City contends its ban is a permissible
regulation that is consistent with, and not preempted by, state medical
marijuana laws. In City of Riverside, supra, 56 Cal.4th 729, the Supreme
Court rejected an identical argument regarding Riverside's enactment of an
ordinance prohibiting the use of any land within its jurisdiction as a MMD.
The Supreme Court held, "[T]he CUA and the MMP are but incremental
steps toward freer access to medical marijuana, and the scope of these
statutes is limited and circumscribed. They merely declare that the conduct
they describe cannot lead to arrest or conviction, or be abated as a nuisance,
as violations of enumerated provisions of the Health and Safety Code.
Nothing in the CUA or the MMP expressly or impliedly limits the inherent
authority of a local jurisdiction, by its own ordinances, to regulate the use of
its land, including the authority to provide that facilities for the distribution
of medical marijuana will not be permitted to operate within its borders. We
must therefore reject defendants' preemption argument. ... " Id. at 738.
Applying City of Riverside, the City's blanket ban on MMDs does not
conflict with, and is not preempted by, the CU A or the MMP, and is thus
permissible.
50
The City's ordinance banning MMDs was adopted in 2007. Further,
Appellants do not and cannot allege facts showing that the City's ordinance
discriminates against anyone. The City's ordinance does not pennit some
people to operate a MMD in the City while excluding others with some sort
of protected status. Rather, no one can operate a MMD in the City. The
ordinance is completely nondiscriminatory on its face.
J. CITY CAN COOPERATE WITH THE FEDERAL GOVT
Appellants complain that the City is cooperating with the Federal
Govt. in its enforcement of federal law. <JIl08 (federal letter sent to landlord
at request of City). [CT 139].
In Cooper v. Aaron (1958) 358 U.S. ] 78 S.Ct. 1410, the U.S.
Supreme Court reaffirmed that under the Supremacy Clause, all state
officials must honor federal law , not act in defiance of it. "Every state
legislator and executive and judicial officer is solemnly committed by oath
taken pursuant to Art. VI, '][3 'to support this Constitution.' Chief Justice
Taney, speaking for a unanimous Court ... said that this requirement
reflected the framers' 'anxiety to preserve it [the Constitution] in full force,
in all its powers, and to guard against resistance to or evasion of its
authority, on the part of a State.'" Cooper, supra, 358 U.S. at 18, 78 S.Ct.
1401, 1410. The Court in Cooper, supra, 358 U.S. at 18, went on to observe
51
that: "'No state legislator or executive or judicial officer can war against the
Constitution without violating his undertaking to support it.' The United
States Constitution, itself, immediately commands the unqualified obedience
of state officials in article VI, section 3, which declares that tall executive
and judicial officers, both of the United States and of the several states, shall
be bound by oath or affirmation, to support this Constitution .... ' (Italics
a d d e d ~ see also, Cooper v. Aaron, supra, 358 U.S. at pp. 19-20, 78 S.Ct.
1401.)." Lockyer v. City & County of San Francisco (2004) 33 Ca1.4th
1055, 1139. "No state .. , [judge] can war against the Constitution without
violating his [oath] to support it. ([Cooper] 358 U.S. at p. 18,78 S.Ct. at p.
1410.).11 People v. Tapia (1994) 25 Cal.App.4th 984,1030,30 Cal.Rptr.2d
851.
There is no question that the federal CSA forbids the distribution of
marijuana for all purposes. "The United States Supreme Court addressed
marijuana use in California in United States v. Oakland Cannabis Buyers'
Cooperative, (2001) 532 U.S. 483[, 486, 121 S.Ct. 1711_]. The Supreme
Court held that the federal Controlled Substances Act continues to prohibit
marijuana use, distribution, and possession, and that no medical necessity
exception exists to these prohibitions." City of Claremont v. Kruse (2009)
177 Cal.App.4th 1153, 1177.
52
"No state law could completely legalize marijuana for medical
purposes because the drug remains illegal under federal law (21 U.S.C.
812, 844(a)), even for medical users (see Gonzales v. Raich, supra, 545
U.S. 1,26-29, 125 S.Ct. 2195, 162 L.Ed.2d 1; United States v. Oakland
Cannabis Buyers' Cooperative, supra, 532 U.S. 483,491-495, 121 S.Ct.
1711,149 L.Ed.2d 722)." Ross, supra, 42 Ca1.4th at 926. "Marijuana ...
remains illegal under federal law because of its 'high potential for abuse,' its
lack of any 'currently accepted medical use in treatment in the United States,'
and its 'lack of accepted safety for use ... under medical supervision.' (21
U.S.C. 812(b)(I); see Gonzales v. Raich, supra, 545 U.S. 1, 14, 125 S.Ct.
2195). It Ross, supra, 42 Ca1.4th at 927.
Appellants read state law as nullifying the federal CSA so that City is
not even permitted to contact federal authorities concerning federal CSA
violations of which they are aware. Appellants' assertion of the primary of
"state" law is precisely what Cooper does not allow.
Under federalism, California is free "to create a narrow exception to
the [state's] criminal law. " Ross, supra, 42 Ca1.4th at 929. Similarly, state
officials can't be "commandeered" into enforcing federal law "against" their
will. "In Printz v. United States (1997) 521 U.S. 898, 117 S.Ct. 2365, ...
[t]he United States Supreme Court ... conclude[ed] that 'in [New York v.
53
United States (1992) 505 U.S. 144, 112 S.Ct. 2408, ... we ruled] that
Congress cannot compel the States to enact or enforce a federal regulatory
program. Today we hold that Congress cannot circumvent that prohibition
by conscripting the State's officers directly. The Federal Government may
neither issue directives requiring the States to address particular
nor command the States' officers, or those of their political subdivisions, to
administer or enforce a federal regulatory program. '" Qualified Patients,
supra, 187 CA4th 761. U[T]he proper response-according to New York
and Printz-is to ratchet up the federal regulatory regime. tl Qualified
Patients, supra, 187 Cal.App.4th at 761.
A state is not free to undermine federal law because it disagrees with
federal law . Rather, federal law constitutes a core part of California's law,
binding on state courts, state government officials, and city officials alike.
Thus, Appellants' assertion contradicts the U.S. Supreme Court's
unambiguous holding in "Howlett v. Rose (1990) 496 U.S. 356,367, 110
S.Ct. 2430, 110 L.Ed.2d 332 [that] [I Federal law is enforceable in state
courts ... because the Constitution and laws passed pursuant to it are as
much laws in the States as laws passed by the state legislature. The
Supremacy Clause makes those laws 'the supreme Law of the Land,' and
54
charges state courts with a coordinate responsibility to enforce that law.'].)."
Sznyter v. Malone (2007) 155 Cal.App.4th 1152, 1160.
The federal law does "not" compel the City to enforce federal law.
Thus, there is consequently no "commandeering" issue. Rather, the City
wishes to report violations of federal law to federal officials so that they may
choose to undertake their own actions to enforce federal law. Because state
law incorporates federal law, it does not violate state law for the City to
communicate with federal officials so they can enforce federal law .
City officials have "a First Amendment right to ... ask other law
enforcement agencies to conduct their own investigation. [Citations.] A
contrary holding would impermissibly chil] the exercise of First Amendment
rights. (Bradbury [v. Sup.Ct. (1996) 49 Cal.App.4th], at p. 1116,57
Cal.Rptr.2d 207.)." Schaffer v. San Francisco (2008) 168 Cal.App.4th 992,
1003, 85 Cal.Rptr.3d 880, 888. Any injunction prohibiting City officials
from communicating with federal officials is a prior restraint on speech
prohibited under the 1 st Amendment. "[T]he ... proper response ... is to
ratchet up the federal regulatory regime." Qualified Patients, supra, 187
Cal.App.4th at 761. The Cityls cooperation with the Federal Government
does not violate Appellants alleged /frights."
55
"[T]he Controlled Substances Act (CSA) continues to prohibit the
possession of marijuana even for medical uses (see 21 U.S.C. 812,
8 4 4 ( a ) ~ Gonzales v. Raich (2005) 545 U.S. 1, 26-29, 125 S.Ct. 2195, 162
L.Ed.2d 1 (Gonzales); United States v. Oakland Cannabis Buyers'
Cooperative (2001) 532 U.S. 483,491-495,121 S.Ct. 1711,149 L.Ed.2d
722 (Oakland Cannabis)." Qualified Patients, supra, 187 Cal.App.4th at
756-757, 115 Cal.Rptr.3d at 105.
Qualified Patients also noted the City's argument that: "[T]he
exemption for collectives, which is 'being abused' 'by allowing the diversion
of 'medical ' marijuana to those not qualified to use it. t These
circumstances call for enforcement of the ... law .... tl Qualified Patients,
supra, 187 Cal.App.4th at 760-761. Further, that lithe federal govemment['s]
... proper response ... is to ratchet up the federal regulatory regime."
Qualified Patients, supra, 187 Cal.App.4th at 761. The City took up that
invitation to enforce the law with the assistance of the Federal Govt. This
does not violate Appellants alleged rights in anyway.
CONCLUSION
The City's ability to exercise its constitutional police power under Art.
XI, 7 to ban MMDs is not affected by the MMP, nor the federal ADA
andlor state DPA based on disability discrimination. The trial courfs
56
decision sustaining the City's demurrer without leave to amend should be
affinned.
DATED: Sept. 16,2013
97538vl
MICHAEL R.W. HOUSTON
CITY ATTORNEY
57
CERTIFICATE OF WORD COUNT [CRC 14(C)(1)]
The text of this brief consists of 11,850 words as counted by the Word
2007 word-processing program used to generate the brief.
DATED: Sept. 16, 2013 MICHAEL R.W. HOUSTON
CITY ATTORNEY
58
APPENDIX
59
SUPERJOR COURT OF CALIFOR,NIA!-,-
COUNTY: OF ORANGE
CENTRAL JUSTICE CENTER
MINUTE ORDER
,/' - _"\TE: 03/01/2013 TIME: 09:30:00 AM DEPT: C20
JUDICIAL OFFICER PRESIDING: David Chaffe,e
CLERK: Cora Bolisay
REPORTERIERM: Patrick Richard Brezna CSR# 528'8
BAILIFF/COURT ATTENDANT: Carolyn J Reza
CASE NO: 302012-00601853CU-CR .. CJC CASE INIT.DATE: 10101/2012
CASE TITLE: Modiano vs. City of Anaheim
CASE CATEGORY: Civil - Unlimited CASE TYPE: Civil Rights
EVENT ID/DOCUMENT ID: 71645961
EVENT TYPE: Demurrer to Amended Complaint
MOVING PARTY: Tom Tail, Henry W. Sternj City of Anaheim
CAUSAL DOCUMENT/DATE FILED: Demurrer to Amended Complaint, 01/24/2013
APPEARANCES
Moses W. Johnson IV, from ANAHEIM CITY ATTORNEY'S OFFICE, present for Defendant(s).
Lee H. Durst from The Durst Firm appeared for the plaintiff
The Court hears oral argument and adopts the expanded version of the ruling as follows:
Demurrer to First Amended Complaint
-st Cause Of Action: Civil Code 55
Lnd Cause Of Action: Injunctive Relief
* 3rd Cause Of Action: Relief
'* 4th Cause Of Action: ADA (42 USC 12101)
.,. 5th Cause Of Action: The Rehabilitation Act
'* 6th Cause Of Action: Govt. Code 11135
This is a medical marijuana case.
On 12/02/1.1, in the remand of Qualified Patients v. City of Anaheim, this Court ruled that Anaheim's
local ordinance 4.20.030 was a valid exercise of its sovereign powers. See Cal. Const. Art XI 7; H&S
Code 11362.83. That judgment is currentty up on appeal before the 4th DCA, which tS simultaneously
awaiting a ruling from our Supreme Court in the Inland Empire MMD cases.
In this lawsuit, plaintiffs set their sights on the same ordinance, clalming that 4.20.030 violates various
"discrimination
n
statutes (state and federal). The operative pleading is phrased as a facjal attack, but the
opposition papers suggest this is more of an "as applied" attack since the ordinance only applies to
seriously ill patients with medical permission to use As it turns out the clarification requested
by 'this Court last plearnng round confirms what this Court suspected from the start: regardless of how
framed, no cause of action is stated.
DATE: 03/01/2013
DEPT: C20
MINUTE ORDER
Page 060
Page 1
CalendlJl.bI0 .
Standing
oS Court previously observed that plaintiffs failed to demonstrate standing. To have standing to
challenge legislative action, the plaintiff must possess a special interest or a particular right over and
above the interest held in common with the public at large. County of San Diego v. San Diego NORML
(2008) 165 Cal.App.4th 798
J
813 n.S. This test, which is based on the federal "injury in facf' ,rule.
requires a party to prove by a preponderance of the evidence that she has suffered an invasion of a
legally protected interest that is (a) concrete and particularized; and (b) actual or imminent, not
conjectural or hypothetical. City of C3arden Grove v. Superior Court (2007) 157 Cal.App.4th 3S5, 366
[tangential interests are insuffiCient]: in accord. Torres v. City of Yorba Linda (1993) 13 Cal.AppAth
1035
J
1045-1046. As explained by the Court of Appeal in Coral Construction Inc. v. City & County of
San Francisco (2004) 116 Cal.App.4th 6, 15-16: '
"An action challenging a legislative act cannot be brought by any lndividual or entity that disagrees with
it. In order to invoke the aid of the courts ... we consider whether the plaintiffs face a realistic danger of
sustaining a direct injury as a result of the statutels operation or enforcement, or whether the alleged
injury is too imaginary or speculative to support jurisdiction ... Where a petitioner seeks declaratory or
injunctive reUef, it is insufficient that he has been injured in the past; he must instead show a very
Significant possibility of future harm in order to have standing." ,
Lest there be any doubt this Court did not, and does not, take issue with the contention that plaintiffs are
seripusfy ill individuals with a legitimate need for medical and pharmaceutical assistance. It was
unnecessary for plaintiffs to voluntarily disclose sensitive medical information. The standing issue is not
about their health. but rather upon the indIvidualized impact closing Anaheim dispensaries might have
on them personarly. . .
Here, plaintiffs Modiano, Jones and Collective are all alleged to be residing in the City of Anaheim.
Uective alleges that it is a proper cooperative in accordance with the Attorney General's Guidelines for
~ . d Security. and Non .. Diversion of Marijuana Grown for Medical Use (as implemented per H&S Code
11362.81(d)). Although the FAC still lacks ummate facts showing compliance therewith, an issue of this
nature is best resolved at summary judgment in any event. Plaintiffs have not alleged that 4.20.300
caused any substantial reduction in their ability to obtain medical marijuana, and of course nothing of
their ability to grow medical marijuana themselves. However, for purposes of pleading, standing is
sufficiently shown for Modiano, Jones and Collective.
Plaintiffs Butcher and James do not have standing since they do not live in Anaheim (or even close by)
and have not alleged the absence of available coops closer to their respective homes. James is
wheelchair bound and resides in Huntington Beach; Butcher lives in Mission Viejo. The impact of an
Anaheim prohibition on them is too speculative to support standing. Leave to amend for Butcher and
James is denied.
The Claims
Aside of the standing allegations, little changed from the original complaint to the FAC. For that reason,
much of the analysis will read remarkably familiar.
Plaintiffs 1st cause of action is based on a violation of Civil Code 55) which is part of the Disabled
Persons Act C'DPA"). The DPA is part of a larger body of laws aimed at avoiding discrimination.
DATE: 03/01/2013
DEPT: C20
MINUTE ORDER
Page 061
Page 2
Calend!4 'tJo.
-, , ,....,= ...... " \/1;.," ,:-it, , ",!', J- .
..... ::;-'" :,' vl.J 10. .... , ..... . II Ii " "JO. 3C,a2'01. 2-00601 aS3 .. CU,-CR .. CJC
Generaily speaking-I courts haVE:; decHned 'IO swaddle medical. marijuana usage 'witn the warm comfort 0:
state discrimination statutes. See Ross v. RagingWire Telecommunications, inc. (2008) 42 Cal.4th 920,
" {use not protected under FEHA); Qualified Patients Association v. City of Anaheim (2010) 187
... App.4th 734, 764 [Unruh Act "does not apply to [Anaheim's] enactment of legislation" regarding
medical mqrljuana]. While no appellate court has yet addressed "access" to medical marijuana through
the DPA (this is one of the issues in Pack v. Superior Court, 8197169), this Court sees no reason to
treat the DPA differently.
The DPA is intended to secure to disabled persons the same right as the general public to the full and
free use of facilities open to the public. v. Longs Drug Stores California, Inc. (2007) 155
Cal.App.4th 254, 261. Its focus is upon physical access to public places. Turner v. Association of
American Medical Colleges (2008) 167 Cal.App.4th 1401 J 1412. Challenges under the DPA involve'
challenges of physically disabled individuals denied access to some pub[ic site or service due to their
disability. See, e.g., Californians for Disability Rights v. Mervyn's LLC (2008) 165 Cal.App.4th 571,
580-581 [claim that store did not provide adequate pathways, making merchandise inaccessible to
persons using wheelchairs or other mobility devices]; Hankins v. EI Torito Restaurants, Inc .. (1998) 63
Cal.App.4th 510, 515 [patron on crutches denied permission to use the only bathroom on first floor,
which was reserved for employees]; Donald v. Sacramento VaHey Bank (1989) 209 Cal.App.3d 1183,
1186-1187 [quadriplegic could not access- bankls automatic teller machine from wheelchair due to the
steps in front of it]. .
The DPA does not entitle a disabled individual to greater access than the public at large. Turner v.
Association of American Medical Colleges (2008) 167 Cal.App.4th 1401, 1413; in accord 1 Eller v. City of
Santa Rosa, WL 3517610 at *3-4 (N.D. Cal. 2009). As matter of simple logic, the DPA cannot be used
as a vehicle to give plaintiffs what they' seek. Decriminalization of possession and cultivation of
marijuana is limited to "seriously ill Californians" and thejr primary caregivers (see H&S Code
11362.5
1
11362.775) - arid NOT the general public at large. Since the DPA is supposed to level the
.... Iaying field between able-bodied and disabled persons, it cannot be used to augment
3session/use/cultivation if doing so onl'y inures to the benefit of "seriously ill" persons. This would in
lIleory result in reverse discrimination to able-bodied persons interested in possessing marijuana, Even
plaintiffs acknowledge that the goal of the DPA is to provide those with disabilities "the same right as the
general public" (opp brf 2:18) - not greater, special rights.
As to the precise allegations herein, the FAC contains no allegations suggesting that plaintiffs were
denied use of a public place, or access to a public accommodation, on account of any disability. The
FAC is further bereft of allegations showing disparate treatment between those with disability and those
without. A ban on medical marijuana dispensaries applies equally across the board to able-bodied
persons and those with disabilities alike. Plaintiffs' contention that the CUA and MMPA only apply to
disabled persons, and thus any infringement is per sa discriminatory, is bootstrapping at its best.
Decriminalizing possession and transport of medical marijuana means plaintiffs are free to grow their
own or travel outside their immediate City to purchase some from a coop. There is no inalienable right
to publicly access or use medical marijuana. See Ross v. Ragingwlre Communications, Inc. (2008) 42
Cal.4th 920, 933 [medical self .. determination right does not extend to use/access to medical marijuana];
County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861. 868-869 [there is no lIunfettered right" to
cultivate or dispense marijuana, and dispensaries are not similarly-situated to pharmacies under the
Equal Protection clause]; People v. Urziceanu (2005) 132 Cal.App.4th 7471 n3 [CUA and MMPA
provide limited defense to criminal prosecution. not constitutional right to use/access].
The cases cited by plaintiffs in opposition to the demurrer are unavailing. In City of Cleburne v.
DATE: 03/0112013
DEPT: C20
MINUTE ORDER
Page 062
Page 3

, -:.L,.5:: N-:".: 30-20 12 .. C "
C'leourne liVing Center (1985) 473 J.S. 432,' the ordinancE: at iSsue sirigied out a residential care
for mentally retarded persons from other residential facilities. In Bay Area Addiction v. City of Antioch,
. __ ..79 F .3d 725 (9th Cir. 1999)J the ordinance -at issue signed out methadone clinics from other medical
{ a clinics. In Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1986), the quarantine policy was actually
causing harm to disabled persons.
Demurrer sustained to the 1st cause of action without leave to amend.
Plaintiffs' 4th cause of action if for violation of the federal ADA - which is the functional- equivalent of
plaintiffs' first cause of action. For that, federal courts have already spoken. James v. City of Costa
Mesa, 700 F.3d 394,397 (9th Cir. 2012) ["marijuana use permitted by state law, but prohibited by federal
Jaw, is an illegal use of drugs for purposes of the ADA, and that the plaintiffs' federally proscribed
medical marijuana use therefore brings them within the ADA's illegal drug exclusion"].
Demurrer sustained to the 4th cause of action without leave to amend.
Plaintiffs' 5th cause of action is based on 29 USC 794 - commonly referred to as The Rehabilitation
Act. The Rehabilitation Act was the first major federal statute designed to protect the rights of disabled
persons, and creates a private right of action for individuals subjected to disability discrimination 'by any
program or activity receiving federal financial assistance. Fleming v. Yuma Regional Medical Center,
587 F .3d 938, 940-941 (9th Cir. 2009). It provides that "no othefWise qualified individual with a disability
shall, solely by reason of her or his disability, be excluded from the participation in, be denied the
benefits of! or be subjected to discrimination under any program or activity receiving Federal financial
assistance." Federal courts have already concluded that the Rehabilitation Act does not protect
marijua.na use or possession. See Assenberg v. Anacortes Housing Authority, 268 Fed. Appx. 643, 644
(9th Cir. 2008); Grimes v. US Postal Service, 872 F.Supp. 668, 674-675 (W.D. Missouri 1994); Burka V.
New York City Transit Authority, 680 F.Supp. 590
r
600 (S.D.N.Y. 1988); in accord, Benedict v. Central
Catholic High School, 511 F. Supp.2d 854, 859-860 (N.D. Ohio 2007).
sustained to the 5th cause of action without leave to amend.
Plaintiffs' 6th cause of action is based on Govemment Code 11135. Pursuant thereto, tlno person in
the State of California shall, on the basis of race, national origin, ethnic group identification, religion, age,
sex, sexual orientation, color, genetic information, or disability, be unlawfully denied full and equal
access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that
is conducted, operated, or administered by the state or by any state agencYt is funded directly by the
state, or receives any financial assistance from the state." The regulations implementing section 11135
define "program or activityff in the following manner: "any project, action or procedure undertaken directly
by recipients of State support or indirectly by recipients through others by contracts. arrangements or
agreements, with respect to the public generally or with respect to any private or public entity. Such
programs or activities include, but are not limited tOt the provisions of employment or goods; the
procurement of goods or services; the provision of education, training
l
health, welfare, rehabilitation,
housing, or other services; the provision of cash or loan assistance; or the provision of facilitaes for
fumishing services, financial aid or other benefits." Cal.Code Regs. tit. 22, 98010. Plaintiffs have not
alleged any government-based program in which they have been wrongfully excluded. Are plaintiffs
aUeging that the City of Anaheim has a program for dispensing marijuana to some residents. but has
denied these plaintiffs similar access? Of course not. Section 11135 is this state's functional equivalent
Qf The Rehabmtation Act, and federal cases deaUng with the RehabiHtation Act are instructive.
DATE: 03/01/2013
DEPT: C20
MINUTE ORDER
Page 063
Page 4

30 .. 20 12-00601853 .. CV .. CRCJO .
Demurrer sustained to the 6th cause of action without 'eave to amend.
2nd and 3rd causes of action for injunctive and dedaratory relief are both founded upon the
;ementioned disability statutes. Since those statutes do not support viable causes of action, the
derivative claims fail as well.
Demurrer sustained to the 2nd and 3rd causes of action without leave to amend.
Mr. Johnson IV is ordered to prepare the proposed order/proposed judgment.
DATE: 03/01/2013
DEPT: C20
MINUTE ORDER
Page 064
Page 5

PROOF OF SERVICE
I am employed in the County of Orange, State of California. I am over the age of 18 and
not a party to the within action; my business address is 200 S. Anaheim Boulevard, Suite 356,
Anaheim, California 92805.
On September 16, 2013, I served the foregoing document described as:
CERTIFICIA TE OF INTERESTED ENTITIES OR PERSONS and RESPONDENTS'
BRIEF
on interested parties in this action by placing the original/a true copy thereof enclosed in sealed
envelope(s) addressed as follows:
Charles Schurter ,Esq.
Matthew S. Pappas, Esq.
Jason Thompson, Esq.
Lee H. Durst, Esq.
22762 Aspan Street, #202-107
Lake Forest, CA 92630
Orange County Superior Court
700 Civic Center Drive West
Santa Ana, CA 92701
Office of the State Solicitor General
Attorney GeneralIs Office
California Department of Justice
P.O. Box 944255
Sacramento, CA 94244-2550
949-382-1485
949-242-2605 (fax)
cj schurter@ gmaiLcom
lee.durst@ gmail.com
butchertracie@ gmail.com
Supreme Court of California
350 McAllister Street
San Francisco, CA 94102
VIA ELECTRONIC SERVICE ONLY
[E) BY MAIL: As follows: I am readily familiar with the City's practice of collection and
processing correspondence for mailing with the U.S. Postal Service. Under that practice
correspondence is deposited with U.S. Postal Service on that same day with postage thereon fully
prepaid at Anaheim, California in the ordinary course of business. The correspondence
described above was placed for deposit at 200 S. Anaheim Boulevard, Anaheim, California
92805, on the date set forth above.
o BY FACSIMILE: I caused the contents of said envelope to be delivered by facsimile
transmission to the above addressee(s).
o BY METHOD OF OVERNIGHT DELIVERY: I caused such envelope(s) to be delivered
via Express Mail or other method of delivery providing for overnight delivery to the addressee(s)
designated.
o BY HAND DELIVERY: I caused such envelope(s) to be delivered by hand to the
addressee( s) designated.
I declare under penalty of perjury that the above is true and correct.
Executed at Anaheim, California.
9763lvl