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Malinda Traudt v. City of Dana Point

September 30, 2011


Appeal from a judgment of the Superior Court of Orange County, B. Tam Nomoto Schumann, Judge. (Super. Ct. No. 30-2010-00373287)

The opinion of the court was delivered by: Aronson, J.



Appeal dismissed.

Malinda Traudt appeals from a judgment of dismissal after the trial court sustained, without leave to amend, the City of Dana Point's demurrer to Traudt's declaratory judgment complaint. Traudt filed suit to obtain a court declaration that Dana Point (City) zoning ordinances that did not expressly recognize medical marijuana dispensaries as permitted uses constituted a zoning ban on dispensaries and that state law, specifically the Compassionate Use Act (CUA) (Health & Saf. Code, § 11362.5)*fn1 and the Medical Marijuana Program Act (MMPA) (§ 11362.7 et seq.), preempts cities from adopting zoning bans on dispensaries. Traudt alleged declaratory judgment on the zoning question was necessary to: (1) vindicate a statutory right of access to medical marijuana at dispensaries under state law, which provides for cooperative and collective cultivation of medical marijuana (§ 11362.775), (2) to ensure that medical marijuana patients receive equal legal protection to access their medication at a dispensary as authorized by state law, similar to patients using other legal medications, and (3) to ensure a right of privacy and autonomy for patients to make personal medical decisions to access marijuana at a dispensary as authorized by state law.

As we explain, an individual medical marijuana patient is not the proper party to challenge generally applicable zoning provisions because -- whatever the contours of the right to engage in cooperative or collective medical marijuana activity (see, e.g., § 11362.775) -- the Legislature invested this right in cooperative and collective groups and entities, not in individuals. We therefore conclude that, similar to the rule for shareholder actions in corporate law, an individual dispensary stakeholder or patron does not have standing to challenge an alleged infringement of a right belonging to the group as a whole. The group, as a whole or through its duly appointed agents, must determine how to assert or defend its rights. Traudt concedes she holds no ownership or control in the dispensary to which she belongs,*fn2 or in any other dispensary. She therefore lacks standing to challenge the City's asserted zoning ban on dispensaries and, consequently, her lack of standing requires that we dismiss her appeal.


Traudt's condition is tragic and presents perhaps the most compelling case imaginable for individual standing. She is blind and suffers from cerebral palsy, epilepsy, and acute cognitive delays. Her complaint reflects she lived life as a "smiling, happy girl" until she developed osteoporosis in her 20's, which "devastated her body." Her bones became "so brittle that her femur (the strongest bone in the body) broke and portions of her tailbone . . . disintegrated," causing her "chronic and intolerable pain, far beyond anything she had previously experienced or can handle." Her doctor prescribed pain medications to no avail, including OxyContin, which immediately caused her kidneys to "begin shutting down" and resulted in a high fever and her lungs filling with fluid, leading to pneumonia. Her breathing became very shallow and her physician recommended that her mother, Shelly White, "contact hospice to arrange for Malinda's final hours. Shelly began planning her daughter's funeral."

As reflected in Traudt's complaint, "[i]n a last-ditch effort to keep Malinda alive while managing her pain, Shelly and Malinda's pain specialist agreed to try replacing Malinda's pain medication with medical marijuana." According to the complaint, "[a]lmost immediately, Malinda's fever subsided, she stopped vomiting, and her suffering lessened. Within three days, she began to recover." Traudt's complaint identifies her as "a 'last resort patient,' one for whom traditional pain medications have completely failed." Her condition "is irreversible," "her health is declining," and "[n]o medication, pharmaceutical or natural, can reverse that decline." Nevertheless, "[t]hrough the continued use of medical marijuana, Malinda's kidneys regained function, she became lucid, she was able to eat, and she began smiling again. Her pain became manageable and her quality of life improved significantly."

Traudt's mother has attempted to grow medical marijuana for her daughter's needs, but "due to the elements, insects, disease, mold, and Shelly's lack of experience, her efforts, thus far, have been unsuccessful." Traudt lives with her mother in San Clemente, near its border with Dana Point. Choosing among six dispensaries operating in Dana Point at the time of Traudt's complaint, "Shelly chose the Beach Cities Collective . . . in part because she could push Malinda there and back in her wheelchair, making it a fun outing."

Traudt also obtains medical marijuana from a dispensary or dispensaries in Los Angeles County. Traudt herself cannot endure the trip because of her fragile health and increased pain when riding in her mother's van for longer than 15-20 minutes. Nor can Traudt's mother make the drive, since she "needs to be near Malinda constantly, to monitor her health and stand ready to use their Portable Suction Machine or other devices and techniques to manage the frequent problems that suddenly develop in Malinda's precarious condition." Accordingly, Traudt's mother "never leaves Malinda for the approximately two hours required to drive to Los Angeles, obtain medicine, and return."

On March 10, 2010, the City filed a nuisance abatement action seeking to shut down the Beach Cities Collective (Beach Cities). Approximately a week later, Traudt filed this action, alleging the City was "attempting to close all of the collectives in Dana Point," including Beach Cities. As noted, Traudt premised her declaratory judgment action on claims of preemption under California medical marijuana law and that those state laws afforded her a right of access to medical marijuana through a dispensary. In a separate lawsuit, Traudt sought and was denied permission to intervene on behalf of Beach Cities as an additional party in the City's nuisance abatement action against the dispensary. In the action presently before us in this appeal, the trial court granted the City's demurrer to Traudt's declaratory judgment complaint, and she now appeals entry of judgment in the City's favor.*fn3


We conclude Traudt lacks standing to challenge a zoning ordinance said to ban cooperative or collective entities engaged in the production and distribution of marijuana to their members for medicinal purposes (medical marijuana). These entities are commonly known as medical marijuana dispensaries, which the Attorney General has concluded may operate lawfully under state law, provided they do so in conformity with the CUA and MMPA. (See Cal. Atty. Gen., "Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use" (Aug. 25, 2008), available at <_http3a_""> (as of Sept. 15, 2011) (A.G. Guidelines or Guidelines).) Specifically, while "dispensaries, as such, are not recognized under the law," "a ...

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