>Case No. 78701, Ventura v. Pomeroy, 5/17/13
>Case No. 78231, Lockyer v. County of Nevada, 5/17/2013
>Case No. C09-011, Aday v. Pouncie, 5/17/2013
>Case No. 75175, Pendola v. Pan Pacific, 5/17/2013 Judge Thomas Anderson
>Case No. 78691, Americans for Safe Access v. County of Nevada, 5/17/2013
>Case No. 70418, Atwood v. Bates, 5/17/2013 Judge Thomas Anderson
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Case No. 78701, Ventura v. Pomeroy, 5/17/13
Appearances are required for hearing on Plaintiff’s Motion to Continue Trial.
Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.
Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.
EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3
Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”
This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.
Case No. 78231, Lockyer v. County of Nevada, 5/17/2013
Respondents’ Demurrer to the Corrected Second Amended Petition is overruled.
Over Petitioners’ objection, a stay in this case was granted on May 25, 2012 and remained in place until the filing of the stipulation and order permitting the filing of the Second Amended Petition on December 6, 2012. The Second Amended Petition was filed one day later, on December 7, 2012. Petitioners were prevented from filing the amended petition with the new allegations challenging CUP AP12-001 (which replaced U11-003) Mitigated Negative Declaration EIS 12-005, approved by Resolution 12-455, until the stay was lifted. Thus, there was no violation of Public Resources Code § 21167(b)) or Government Code § 65009(c)(1)(E).
Any Answer must be served and filed by May 27, 2013.
Petitioners’ attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.
This is the Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s law and motion secretary at (530) 265-1273 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.
Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.
EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3
Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”
This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.
Case No. C09-011, Aday v. Pouncie, 5/17/2013
The Motion to Dismiss is granted. The case is dismissed for failure to prosecute under Code of Civil Procedure § 583.410.
Defendant is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.
This is the Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s law and motion secretary at (530) 265-1273 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.
Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.
EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3
Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”
This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.
Case No. 75175, Pendola v. Pan Pacific, 5/17/2013 Judge Thomas Anderson
The Motion for Summary Judgment/Adjudication is continued on the court’s own motion to Friday, May 24, 2013, at 1:30 p.m., in Department VI, to be heard by Judge Thomas Anderson. CourtCall will be permitted at the continued hearing. The court apologizes for any inconvenience.
Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.
Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.
EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3
Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”
This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.
Case No. 78691, Americans for Safe Access v. County of Nevada, 5/17/2013
Defendant’s Motion for Summary Adjudication
Requests for Judicial Notice
Defendant’s request for judicial notice is granted in its entirety.
Plaintiffs’ request for judicial notice is also granted in its entirety. However, as to requests 2, 3, and 4, the court grants the request as to the fact that such documents are records of this court. However, the court does not take judicial notice of its contents as true.
Standard of Review
The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing
party demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th 289, 294.
Analysis
Defendant’s Motion for Summary Adjudication of Count Two of the First Cause of Action for Violation of Privacy is granted.
Article I, section 1 of the California Constitution guarantees, among, other things, a right to privacy. There are three elements of a privacy violation which a plaintiff must demonstrate: (1) the existence of a legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) a serious invasion of that privacy interest. Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39–40, 26 Cal.Rptr.2d 834, 865 P.2d 633 ( Hill v. NCAA ).)
A defendant may prevail by negating any one of the above three elements or by asserting the affirmative defense that any invasion of privacy was justified by one or more legitimate but competing interests. Id. at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.
A plaintiff may rebut the showing of a competing interest by demonstrating the availability of feasible alternatives with a lesser impact on the privacy interest. Ibid.
Even when a legally cognizable privacy interest exists, circumstances may be present which affect whether an expectation of privacy remains reasonable. ( Ibid.) Customs, practices, and physical settings surrounding particular activities may create or inhibit reasonable expectations of privacy. “A ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” ( Id. at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
Actionable invasions of privacy “must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of social norms underlying the privacy right.” ( Hill v. NCAA, supra, 7 Cal.4th at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Thus, the extent of the invasion is necessary when evaluating an alleged invasion of privacy.
Further, the invasion of a privacy interest is not a constitutional violation if it is justified by a legitimate competing interest. ( Hill v. NCAA, supra, 7 Cal.4th p. 38, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
Whether a legally recognized privacy interest exists is a question of law. Hill v. NCAA, supra, 7 Cal.4th at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
Ordinary pharmacies dispensing traditional prescription drugs are closely regulated businesses. (People v. Doss, 4 Cal.App.4th at p. 1598, 6 Cal.Rptr.2d 590.) Consequently, they are required to maintain records of the type described by the Ordinance and present them to “authorized officers of the law” without a warrant. See Bus. & Prof.Code, §§ 4081, subd. (a), 4333, subd. (a).)
This court finds no reason to accord qualified patients greater privacy with respect to the information at issue here. They are engaged in the cultivation and perhaps, distribution, of a substance, illegal under state law except as a basis for the prosecution of specified offenses under the specified conditions set forth in the CUA and the MMPA. Furthermore, marijuana is a Schedule I controlled substance still entirely illegal under federal law. ( Ross, supra, 42 Cal.4th at p. 926, 70 Cal.Rptr.3d 382, 174 P.3d 200; see also Gonzales v. Raich (2005) 545 U.S. 1, 14–15, 25–27, 125 S.Ct. 2195, 162 L.Ed.2d 1.)
Furthermore, statutes already allow the disclosure of patient contact information by traditional health care providers upon demand. Absent a formal written request by a patient to the contrary, ordinary health care providers may already release, upon request, contact information and a description of the reason for treatment, the general nature of the condition requiring treatment, and the general condition of the patient. (Civ.Code, § 56.16; see Garrett v. Young (2003) 109 Cal.App.4th 1393, 1406, 1 Cal.Rptr.3d 134.) Pharmacies are already required to make patient prescriptions—which themselves must contain patient contact information—available for inspection by “authorized officers of the law.” (Bus. & Prof.Code, §§ 4040, subd. (a)(1), 4333, subd. (a).) Insofar as Schedules II, III, and IV controlled substances (drugs which may be legally prescribed) are concerned, pharmacies are already required weekly to provide the state Department of Justice with the names, addresses, and phone numbers of prescribed users. (Health & Saf.Code, § 11165, subd. (d)(1).) This information, in turn, may be given to state, local, or federal agencies for purposes of criminal or disciplinary investigations. (Health & Saf.Code, § 11165, subd. (c).)
In conclusion, even where the privacy rights of individual collective members or qualified patients are concerned, the information sought is extremely limited and is not intimate in nature and the information—plus more—is typically already subject to disclosure in the context of more traditional health care treatments and providers. There is no reason to give medical marijuana users greater privacy rights than patients utilizing more traditional health care providers and more traditional prescription drugs. In fact, because the continued illegal nature of marijuana under most circumstances, even more substantial invasions of privacy would likely be justified under the current state of the law. Whether analyzed as an unreasonable expectation of privacy or a reasonably justified invasion of a reasonable expectation of privacy, this court finds no violation of the right to privacy.
Thus, the motion for summary adjudication is granted.
Motion for Judgment on the Pleadings
Request for Judicial Notice
Defendant’s request for judicial notice is granted in its entirety.
Standard of Review
“The grounds for a motion for judgment on the pleadings must appear on the face of the
complaint or from a matter of which the court may take judicial notice.” Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App. 4th 1056, 1061. Accord Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1202; Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2010) ¶7:292. A motion for judgment on the pleadings involves the same type of procedures that apply to a general demurrer. Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App. 4th 1056, 1061; Burnett v. Chimney Sweep (2004) 123 Cal. App. 4th 1057, 1064. In considering a motion for judgment on the pleadings, courts consider whether properly pled factual allegations, assumed to be true and liberally construed, are sufficient to constitute a cause of action. Stone Street Capital, LLC v. Cal. State Lottery Com'n (2008) 165 Cal.App.4th 109, 116; Fire Ins. Exchange v. Sup. Ct. (2004) 116 Cal. App. 4th 446, 452-53.
Analysis
In the present case, Plaintiffs present only a “limited opposition.” First, they concede that the amended ordinance resolves the preemption question regarding the ability of qualified patients and their primary caregivers to collectively cultivate on parcels where they do not reside.
Plaintiffs, however, contend that an actual controversy regarding preemption based on the complete prohibition of collective cultivation continues to exist. However, as set forth by the California Supreme Court in City of Riverside v. Inland Empire Patients Health and Wellness Center Inc. (2013) 2013 WL 1859214, “the CUA and the MMP are careful and limited forays into the subject of medical marijuana, aimed at striking a delicate balance in an area that remains controversial, and involves sensitivity in federal-state relations. We must take these laws as we find them, and their purposes and provisions are modest. They remove state-level criminal and civil sanctions from specified medical marijuana activities, but they do not establish a comprehensive state system of legalized medical marijuana; or grant a “right” of convenient access to marijuana for medicinal use; or override the zoning, licensing, and police powers of local jurisdictions; or mandate local accommodation of medical marijuana cooperatives, collectives, or dispensaries.” Id at *20.
Thus, this court concludes “that neither the CUA nor the MMP expressly or impliedly preempts the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit, or entirely exclude facilities that distribute medical marijuana, and to enforce such policies by nuisance actions. Accordingly, we reject defendants' challenge to [Plaintiffs’] MMD ordinances.” Id. [Emphasis added.]
Based upon the foregoing, the court grants the motion for judgment on the pleadings and dissolves the injunction.
The City of Riverside case makes clear this cause of action cannot be amended. Thus, a judgment of dismissal of this action with prejudice shall issue.
Defendant’s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.
This is the Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s law and motion secretary at (530) 265-1273 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.
Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.
EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3
Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”
This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.
Case No. 70418, Atwood v. Bates, 5/17/2013 Judge Thomas Anderson
The hearing on the Receiver’s Report and Distribution of Funds is dropped.
This Court’s Revised Statement of Decision filed April 30, 2013 set a new hearing date on the Receiver’s Report and any objections thereto for August 9, 2013, at 1:30 p.m. in Department IV.
No appearances are required.
Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.
Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.
EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3
Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”
This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.
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