ORIGINAL PROCEEDING after a judgment of the Superior Court of Butte County, Barbara L. Roberts, Judge. Petition denied. (Super. Ct. No. 137329).
The opinion of the court was delivered by: Raye , J.
CERTIFIED FOR PUBLICATION
Real party in interest David Williams is a qualified medical marijuana patient who uses marijuana upon the recommendation of his physician. Williams belonged to a seven-member collective of medical marijuana patients who agreed to contribute comparable amounts of money, property, and labor to the collective cultivation of marijuana; each then would receive an approximately equal share of the marijuana produced. The marijuana was grown at Williams‟s home.
In September of 2005 a Butte County Sheriff‟s deputy came to Williams‟s home without a warrant. Williams produced copies of medical marijuana recommendations for himself and the other members of the collective. The deputy ordered Williams, under threat of arrest and prosecution, to destroy all but 12 of the 41 medical marijuana plants. Williams complied.
Williams brought suit, alleging various constitutional violations by defendants Butte County, the Butte County Sheriff‟s office, and the deputy involved (collectively, County). County demurred to all causes of action based on a failure to state a cause of action. The trial court overruled the demurrer, rejecting County‟s argument that Williams could assert his right to grow medical marijuana cooperatively only as a defense in a criminal court. County brought a petition for writ of mandate, and we issued an alternative writ.
In its petition for writ of mandate, County argues the trial court‟s ruling provides that individuals have a legal right to medical marijuana that can form the basis for a civil lawsuit against law enforcement officers for money damages. County contends this ruling impermissibly expands Proposition 215 and flies in the face of case law. We shall deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
The Compassionate Use Act -- Proposition 215
Proposition 215, the Compassionate Use Act of 1996 (Act), created Health and Safety Code section 11362.5, which provides that statutes prohibiting possession and cultivation of marijuana "shall not apply to a patient, or to a patient‟s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." (Health & Saf. Code, § 11362.5, subd. (d); all further statutory references are to the Health & Saf. Code.) The Act also states, as one of its purposes: "To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction." (§ 11362.5, subd. (b)(1)(B).)
The Legislature subsequently passed the Medical Marijuana Program Act (MMPA) to clarify and implement the Act. (Stats. 2003, ch. 875, § 2.) The MMPA added section 11362.77, which specifies an individual may possess no more than eight ounces of dried marijuana and maintain no more than six mature or 12 immature marijuana plants per qualified patient. (§ 11362.77, subd. (a).)
The MMPA also added section 11362.775, providing that qualified patients who associate within the state in order collectively or cooperatively to cultivate marijuana for medical purposes will not be subject to state criminal sanctions. Section 11362.775 exempts qualified persons "from criminal sanctions for possession for sale, transportation or furnishing marijuana, maintaining a location for unlawfully selling, giving away, or using controlled substances, managing a location for the storage, distribution of any controlled substance for sale, and the laws declaring the use of property for these purposes a nuisance." (People v. Urziceanu (2005) 132 Cal.App.4th 747, 785.)
Williams‟s complaint alleged the following facts. Williams, a resident of Butte County, is a qualified medical marijuana patient who uses marijuana on the recommendation of his physician. Does 1 through 4 are also qualified medical marijuana patients who use marijuana on the recommendation of their physicians.
Williams and six other patients formed a seven-member collective. Each member of the collective agreed to contribute comparable amounts of money, property, and/or labor to the collective cultivation of medical marijuana, and each would receive an approximately equal share of the marijuana produced. The marijuana was grown at Williams‟s home.
On September 8, 2005, Butte County Deputy Sheriff Jacob Hancock came to Williams‟s home without a warrant. Williams presented Hancock with copies of medical marijuana recommendations for Williams and the six other qualified medical marijuana patients. Williams also informed Hancock that all seven were members of a private patient collective.
Hancock ordered Williams to destroy all but 12 of the 41 medical marijuana plants growing on his property, under threat of arrest and prosecution. Williams complied.
Williams alleged that Hancock‟s action was undertaken pursuant to County‟s policy to allow qualified patients to grow marijuana collectively only if each member actively participates in the actual cultivation of the marijuana by planting, watering, pruning, or harvesting the marijuana.
Williams‟s complaint alleged (1) violation of the constitutional prohibition against municipal laws that conflict with the California Constitution, (2) unreasonable search and seizure, (3) violation of due process, (4) violation of the Tom Bane Civil Rights Act (Civ. Code, § 52.1), and (5) conversion. County demurred to the complaint in its entirety.
In its demurrer, County argued that if Williams believed he was lawfully cultivating all 41 marijuana plants, his only option under the law was to refuse to remove the plants and to prove the legality of the patient collective in criminal court. Instead, County contends, Williams is attempting to convert the limited defense provided to him under the Act into an affirmative right, allowing him to challenge Hancock‟s actions and seek civil damages.
In addition, County argued, under the Act a qualified patient may share his marijuana with another qualified patient only if the supplying patient is the primary caregiver of the second patient.
County also filed a motion to strike Williams‟s complaint. County argued the California Constitution does not authorize a money damages remedy for claims alleging an unreasonable search and seizure.
The trial court overruled County‟s demurrer. The court reviewed the Act and concluded: "[I]t appears that, contrary to the stated policy of the County, the legislature intended collective cultivation of medical marijuana would not require physical participation in the gardening process by all members of the collective, but rather would permit that some patients would be able to contribute financially, while others performed the labor and contributed the skills and "know-how.‟"
The court observed that County, in its demurrer, did not focus on an interpretation of the MMPA, but on their contention that the Act provides a defense in criminal court and nothing more. Under County‟s theory, Williams‟s only recourse was to refuse the deputy‟s order, be arrested, and address the matter in criminal court after criminal charges were brought against him.
The court found County‟s argument without merit. The court explained: "While it is true that the medical marijuana provisions do not specifically authorize an action by a patient for unlawful seizure of his marijuana, the constitution and laws of the state which otherwise protect the rights of citizens may nevertheless provide an avenue for relief. Thus, if plaintiff can show that he had a legal right to possess the marijuana in question, and that his rights were violated, he may bring his action based on generally applicable legal principles. Seriously ill patients certainly should not be required to risk criminal penalties and the stress and expense of a criminal trial in order to assert their rights. The plaintiff states a theory which would allow a civil court, rather than the criminal courts, to interpret and determine what constitutes Compassionate Use, who are qualified patients and what cooperative/collective efforts are included under the statute. The civil court appears to be an equally appropriate forum to address the issues of medical patients‟ rights."
The court did not see any likelihood of inconsistent rulings in this case, since there was no criminal case pending or likely to be brought. In addition, the court rejected County‟s argument, regarding Williams‟s search and seizure claim, that the medical marijuana laws do not prohibit police from investigating possible violations of the law. The court concluded: "This is true, however the complaint is based also on the destruction of the marijuana plants, which was directed by the officer on pain of arrest. This could certainly be considered a seizure, and is sufficient to support the cause of action, even without reference to the alleged warrantless search."
The court also denied County‟s motion to strike. The court found County failed to establish, as a matter of law, that money damages are unavailable: "Because new case authority may be forthcoming, and because the parties have not provided thorough briefing, the court is reluctant to make a final determination at this stage on a matter as to which, at present, there is no clear authority in California."
County filed a petition for writ ...