The reason I work on medical marijuana appeals

Yesterday I attended a Career Fair at Whittier Law School.  It's been almost 34 years since I was a law student.  A lot has changed, especially the percentage of women.  When I attended, women comprised only 10% of the classes, so it is a real victory for everyone to see more women in law school.

The students walked around the room and were able to visit with attorneys according to their specialty or law firm.  Needless to say, appellate attorneys were not high on their list, although a lot of students asked for advice on writing briefs and oral argument.  I was very happy to help them.  There were a handful of students who were interested in appellate law, but a much larger group was interested in why I made a decision to practice in this area and how I developed my practice.  They also asked about the types of cases I worked on.

One area of my practice always gets a smile and that is handling civil appeals dealing with medical marijuana cases.  At first, my colleagues would smirk when I mentioned these cases and sooner or later would voice an opinion that usually went like this:  "Isn't it true that medical marijuana is really a hoax and a means to obtain drugs for people who simply want to get loaded?"   Quite often this question is asked over a glass of wine or alcoholic beverage that the speaker has ordered "to take off the edge."

Here's my response:  I didn't think too much about marijuana for years.  About two years ago, my boyfriend was diagnosed with esophageal cancer, stage III, and we were looking at months of chemo, radiation, and surgery.   Not to mention the painful recovery from all of this life-saving medicine.  He started on radiation, but the terrible effects did not hit him until later because radiation treatments are cumulative.  Then he started on the chemo and ran around with a container that gave him a constant infusion.  That is when the real suffering began.  He was always sick and found it hard to keep food down.  In fact, he had trouble keeping down the pills that were meant to ease his symptoms.  He started losing weight but still had no appetite.  The surgery was a big trauma for his body and he ended up losing over 50 lbs.!  Medical marijuana helped with this symptoms, quieting his stomach and enhancing his appetite.  It also allowed him to sleep and helped with the pain that had become a constant companion.  He did not get loaded nor did he have a good time on his marijuana.

A few years earlier, our young neighbor, who had been on the planet for all of eight years, was diagnosed with brain cancer.   At his tender age, he went through radiation, chemo, and surgery.  The treatment, which was meant to save his life, almost killed him several times.  The chemo was so hard on him that he had to be hospitalized just to be treated.  He shrunk away and he too lost his appetite even though food was necessary to replenish him.  His family is very religious and belongs to a supportive church, but medical marijuana still raises a few eyebrows.  He seemed to recover, but then a few years ago, about the time my boyfriend became ill, his cancer returned.  This time the family resorted to medical marijuana in the form of a tincture.  It helped in a way that the traditional medications did not, and it was a natural substance that did not have any side effects.  The family was a little concerned about what their church would think, but of course, the health of your child will always win out.  And now that he is fourteen years of age, no one can say that he is just doing this to get loaded.  On the contrary, he is lucky if he can get through the day without throwing up and losing weight.

Of course, these are the more serious cases.  People use medical marijuana for a variety of ills, some of them very painful, while others may have a use that causes society to question the need for marijuana.  For instance, if someone takes it for anxiety or insomnia, and it relieves those symptoms, should their needs be taken less seriously?  And if someone with those same symptoms opts to use a natural substance in lieu of sleeping pills and anti-depressants, which have many side effects, can we honestly criticize that choice?  One of the complaints I hear from medical marijuana patients is that they did not want to use Vicodin or Oxycontin because it caused too many side effects, was addictive, and made them into zombies.

Some of us fight for the right to use marijuana without criminal penalties (which I support), but at this point, I am willing to fight this battle so that sick and injured people can find some relief in using marijuana.

A case on genital herpes and special verdict forms

In Behr v. Redmond (2011), No. E048333, plaintiff Patricia Behr sued defendant Thomas Redmond for damages caused by the transmission of genital herpes.  Using a special verdict, the jury found Behr had suffered compensatory damages of over $4 million, including $2.5 million for future medical expenses.  The jury also awarded Behr punitive damages of $2.75 million.  Redmond appealed, alleging a number of errors, including insufficiency of evidence to show Behr contracted herpes prior to Redmond's disclosure to her of the disease and a claim that the special verdict was fatally defective.

Redmond learned he had genital herpes in 1975 and knew the disease was contagious, although the risk of infection varied depending on whether he was experiencing an outbreak.  Behr and Redmond met in 2001 and their relationship progressed to a sexual one, although he did not tell her had herpes until February 12, 2004.  When Redmond decided he was not having an outbreak, he assured it was okay to have sex, which they did on Valentine's Day.  After they returned from a trip to Spain in April 2004, the relationship apparently ended.  Behr later realized in February 2005 that she had herpes, although she probably had her first outbreak in March 2004.

Behr filed a lawsuit, alleging  fraud, intentional and negligent infliction of emotional distress, and negligence.  The jury returned a special verdict in Behr's favor.  The jury verdict asked whether Redmond informed Behr prior to having sexual intercourse that he was infected, to which the jury responded no.  The jury form also asked the jury to specify the amount of damages.  The form also included a question whether Redmond fraudulently concealed his herpes before sexual conduct, to which the jury responded in the affirmative.

The appellate court affirmed that "People who know or should know they have genital herpes generally have a duty to avoid sexual contact with unaffected persons or to warn potential partners before sexual contact occurs."  This duty exists even if the person is not experiencing an outbreak, because the risk of infection is still present.  Here, Redmond made a disclosure and the parties still had sex.  He  argues he cannot be liable if Behr contracted herpes after the date of disclosure and he argued there was no substantial evidence that Behr contracted herpes before his disclosure.

The court rejected his argument.  After disclosure, Redmond said it was okay to have sex because he was not having an outbreak.  These assurances supported a finding that he negligently or intentionally misled Berk into believing there was no risk of getting herpes.  Because of these assurances, the court found the jury could reasonably conclude Redmond's conduct constituted negligence and fraudulent concealment, and it did not matter at what point in time the disease was transmitted.

The court held that any defect in the special verdict as to the timing of the transmission was waived because Redmond failed to object.  "'If the verdict is ambiguous the party adversely affected should request a more formal and certain verdict.  Then, if the trial judge has any doubts on the subject, he may send the jury out, under proper instructions, to correct the informal or insufficient verdict.'"  Since Redmond believed the timing of the infection was an important fact in determining liability, it was incumbent on him to ensure that findings on this issue were included in the verdict.  Behr claimed that Redmond's attorney prepared the verdict form and both stipulated to its use.  Redmond also failed to seek any correction or clarification of the verdict at any time.   Thus, this objection was waived, but considering the fact that the court found he could be still be liable after disclosure if he assured Behr it was okay to have sex, it probably would not have changed the outcome.

On the flip side, the court found that the special verdict did not support a judgment for fraud by misrepresentation because the jury was not requested to make special findings as to whether Redmond made any affirmative misrepresentation.  "When a special verdict is used and there is no general verdict, we will not imply findings in favor the prevailing party . . . If a fact necessary to support a cause of action is not included in such a special verdict, judgment on that cause of action cannot stand."  Thus, the court reversed the judgment as to the cause of action for fraudulent misrepresentation, reduced the compensatory damages, modified the trial court's order regarding costs, but it refused to disturb the punitive damages award.

Reading unpublished opinions by the courts of appeal

Even though unpublished California opinions cannot be cited in appellate briefs, there is a value in reading them.  The courts file more unpublished opinions than published ones, and there is a good possibility you can find out how a specific court, or even a justice, views certain issues.  You can also test your legal research against the research in the opinion. For instance, I came across a decision by the Fourth Appellate District, Division Three that I thought might be helpful to those of you seeking a continuance in motions for summary judgment.  In Shelton v. Lions Eye Institute for Transplant and Research, Case No. G042372, the plaintiff appealed from a summary judgment on her negligence claims arising from the transplant of an infected cornea in her eye.

At first, plaintiff filed a complaint against UCI and four physicians, claiming they were negligent in treating her ophthalmological problems and caused the loss of her eye.  She then filed a first amended complaint against Lions, claiming it provided the contaminated cornea.  Lions filed a motion for summary judgment, arguing it met the standard of care, which does not require eye banks to culture tissue.  Instead, eye banks recommend that the surgeon culture the cornea at the time of surgery.  The  UCI surgeon was notified that Lions did not culture the cornea.  As part of its motion, Lions denied the tissue became infected as the result of any act or omission of its part, although it later withdrew its facts in the Separate Statement that the cornea was free from infection at the time it was shipped from Lions to UCI or at the time it arrived at UCI.

Plaintiff then set a number of depositions and the UCI defendants requested a continuance so they could conduct discovery on questions rained by Lions' motion.  Plaintiff joined in that motion for continuance and opposed the summary judgment motion, claiming she could not fully oppose Lions' motion until outstanding discovery had been completed.  Plaintiff's attorney indicated he had not completed his discovery because of a trial and work on another case.  He listed the issues that needed to be addressed and also listed depositions noticed for three separate days.  After Lions withdrew its two statements, the court elected to treat the motion as a motion for judgment on the pleadings.  It granted the motion and allowed plaintiff leave to amend her complaint.

Plaintiff filed a second amended complaint, which was followed by a second motion for summary judgment by Lions.  The trial court also sustained with leave to amend Lions' demurrer to one of plaintiff's causes of action.  Four day later, plaintiff filed a third amended complaint.  In response to Lions' second summary judgment motion, plaintiff simply filed an opposition that argued the motion should be denied or continued to allow plaintiff to complete her discovery.  She did not oppose the motion on its in merits.  Plaintiff's attorney claimed he needed to complete "a considerable amount of discovery" to oppose the motion.  Plaintiff's attorney relied on statements made in his earlier declaration, which was filed over four months before.  The request for a continuance was denied.  The trial court found plaintiff's attorney had not been diligent in conducting discovery and had failed to show good cause for a continuance.  The attorney's declaration also failed to explain why he did not obtain the discovery he previously identified in his earlier declaration.

The Court of Appeal found that the threshold question in a request for a continuance is "Does the supporting affidavit show 'that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented"?  (Code Civ. Proc. sec. 437c(h).)  If the opposing party makes such a showing, then the trial court is required to grant a continuance or deny the motion.  The court stated the following requisites of such a request:

• The declaration must be in good faith.


• It must show "that additional time is needed to obtain facts essential to" the opposition.


• It must show "there is reason to believe such facts may exist" or  it must state facts "establishing a likelihood that controverting evidence may exist."


• The declaration must set forth the reasons why "additional time is needed to obtain these facts."


• The declaration must present the facts and reasons outlined above with particularity as to the particulate essential facts that may exist and the specific reasons why they cannot then be presented.

The reviewing court concluded the declaration provided by plaintiff's attorney was insufficient because it failed to specify "any particular facts which might be obtained by discovery and any reasons why such facts were likely to exist."  The long list provided by plaintiff's counsel was construed to be a "fishing expedition" or "laundry list."  It also found that plaintiff failed to provide adequate justification for her delayed discovery.  It rejected any argument that discovery was deferred at defendant's suggestion to save money pending mediation.  The court concluded that diligence is pursuing discovery is a recognized factor in any motion for a continuance.

While you might not be able to cite this case, you can certainly learn what the trial and appellate courts are looking for in requests for a continuance.  Diligence is important, but don't think that a declaration that lists an exhaustive amount of discovery - which is uncompleted or unscheduled - or facts will help.  The longer the list, the more the trial court might wonder why discovery hadn't been completed earlier, especially if the case has been on the docket for a while.  I believe such a declaration should be more specific and limited than general and all-encompassing.  It should focus on evidence that is essential to oppose the motion, rather than discovery necessary for a full-blown trial.

Tips from Appellate Research Attorneys at the Court of Appeal in Santa Ana

Today I attended a luncheon for the Orange County Bar Association's Appellate Law Section.  Three research attorneys from the Court of Appeal, Fourth Appellate District, Division Three attended.  We listened as Julie Bisceglia, David Hesseltine, and Kevin Phillips gave us some insights into what they have encountered while working at the Court.  These attorneys are relatively new to their positions, but talked about many of the same problems that we have encountered for years.

Kevin Phillips has been with the Court for over a year and works for Justice Eileen Moore.  He comes from a predominately criminal background but his work now includes the civil arena.  He talked about "dumbing down" your arguments, because he found that many attorneys wrote as if the justices or research attorneys were already familiar with the law and the facts.  While I might not have used that terminology, I certainly understood what he meant.  He was asking the appellate attorneys to consider their audience.  At the point that you write an appellate brief, you probably know your case better than anyone else.  After all, you have lived with it for months or even years and you've spent many hours learning the law in a particular area.

Don't assume that the justices or research attorneys have that same level of experience in a specific area.  Don't write the brief as if the justice stepped in at the middle of the case or as if you are addressing someone who knows the law and you can jump right to the finer points of an argument.  When you are discussing the law, start off with the basics and then get to the fine points.  If you are discussing the facts, lay them out in a way that tells a complete story from beginning to end.  While you might want to weed out facts that have no relevance to the appeal, that doesn't mean you should jump in at the second act.

Kevin also advised us to be careful with our citations.  A missing pinpoint or erroneous citation requires that the research attorney search the record.  He also cautioned about overstating your case, finding some attorneys really made some outrageous claims.  Better to be realistic.  He was also surprised by the amount of personal attacks on opposing counsel.   Coming from a criminal background, he found some of the criminal lawyers to be more civil than what he encountered in appeals written by civil attorneys.  Finally, he advised attorneys to rely on the California Style Manual, which is followed by the California courts of appeal.

Julie Bisceglia works for Justice William Bedsworth and appears to come from a civil background.  She described the research attorneys as "gatekeepers" or the first ones to see the briefs.  They are also responsible for preparing draft opinions, but she dismissed any thought that the justices merely rubber stamped their work.  Unlike some (and maybe this will change in time) Julie reads every single page of the record, rather than just the cited portions.  "I just want to get it right," she explains.

And when it comes to citations or quotations, "Don't lie to me.  If you lie to me once, your credibility is done, and I will check every citation myself.  Since I don't usually meet the attorneys, I develop a sense of who you are by reading your briefs."   This is yet another reminder of how important credibility is.  She also recommends that the appellate attorney know what is significant for the appeal and stick to about 2-4 issues.  Adding unimportant issues will weaken your appeal.

David Hesseltine works for Justice Richard Aronson.  He was previously in civil litigation and worked as a research attorney in law and motion at the superior court level.   He encouraged the attorneys to think about how to present the case, including being more creative in making the brief as "user-friendly" as possible.  He cautioned against too many acronyms because a brief could end up looking like "alphabet soup."  He added that attorneys are responsible for getting the exhibits to the court and - oh, yes - don't forget those pinpoint citations.

The research attorneys reminded us of the extra material we can add as an appendix to the actual brief.  They even seemed to like the idea of visual aids that might include charts or important exhibits.  Good thinking!  I can remember many times when I had to prepare a chart just to figure out who were the parties.  A chart or other device also breaks up a page filled with words and sometimes is more useful in illustrating certain points.  But - with a nod to Gerry Spence - I think I will avoid writing my briefs as comic strips.

County of Los Angeles v. Hill: The Second District affirms an injunction against a medical marijuana dispensary

In a recent post by Professor Shaun Martin at the University of San Diego, School of Law, at http://calapp.blogspot.com/2011/02/county-of-los-angeles-v-hill-cal-ct-app.html, he raises what I consider to be the "political" aspects of deciding appeals when he discusses the recent decision in County of Los Angeles v. Hill, 2011 Cal.App. LEXIS 161. This case is one of many we are facing and will continue to face in disputes concerning the operation of medical marijuana dispensaries.  I reported on this aspect in my January 21, 2011 post entitled "Is the Supreme Court a 'Highly Respected Institution,' as Justice Scalia Insists?"  If justice were simply black and white, and based on applicable law, then everyone would reach the same decision on the same set of facts.  That we don't, in my opinion, confirms that personality, personal viewpoints, and politics all enter into the decision.

This case has something to offer appellate practitioners on the procedural aspects of appeals.  In Hill, defendants Martin Hill and the Alternative Medicinal Collective of Covina appealed from an order granting a preliminary injunction, prohibiting them from dispensing medical marijuana in any unincorporated area of Los Angeles County without first obtaining the necessary license and permits required by the County ordinances.  The court of appeal affirmed the injunction order.  While the decision may not appear to be a "death knell" to defendants' operation of their dispensary, given the County's past conduct and new ordinances, it effectively banned dispensaries in these areas.

Defendants argued they were not required to obtain permits and licenses because the entire area of medical marijuana dispensaries is preempted by state law, the ordinances are inconsistent with state law, and they are being discriminated against.    The court noted that in Health and Safety Code section 11362.5(b)(2), the Compassionate Use Act does not supersede legislation that prohibits persons "from engaging in conduct that endangers others . . ."   The question of what "endangers" others certainly involves point of view and even politics.  Section 11362.83 also allows a city or other local government to adopt and enforce laws "consistent" with this article.  In addition,new legislation became effective January 1, 2011, which attempted to partially regulate dispensaries and noted that they "ordinarily require[s] a local business license."  (Health & Safety Code section 11362.768.)   Subsection (e) prohibits a dispensary within a 600-foot radius of a school, but the city could enact more restrictive provisions, extending that limitation to a 1000' radius.

The County of Los Angeles adopted an ordinance in June 2006, which required a conditional use permit.  The County ordinances also required that a dispensary obtain a business license.  The defendants began operating their dispensary in an unincorporated area of the County, but they failed to obtain a business license, a conditional use permit, and a zoning variance (because the dispensary was located within a 1000' radius of a public library).  The defendants did not deny they failed to perform these acts; rather, they argued these requirements were preempted by state law.   After the trial court granted the preliminary injunction, the defendants filed a timely appeal rather than seeking these permits and licenses.

An order granting a preliminary injunction is reviewed on an abuse of discretion standard of review and is analyzed as to (1) plaintiff's likelihood of success on the merits at trial, and (2) the balance of harm to the parties.  The defendants did not address the balance of harm factor, choosing to focus solely on the first factor.  And despite the language of the Compassionate Use Act and the Medical Marijuana Program Act, defendants argued the ordinances were totally preempted and were inconsistent with state law.  The court of appeal disagreed.

The defendants then argued that even if the CUA and MMPA are facially consistent, the ordinances are so restrictive when they are applied that it is practically impossible to open a dispensary.  The court concluded the defendants' evidence did not support defendants' argument.  First, defendants claimed the $11,500 fee for a conditional use permit was prohibitive.  The court stated defendants did not produce evidence that the County charged a higher fee to dispensaries than other businesses or that the fee was unreasonable.  As to the zoning restrictions, defendants' attorney then submitted a declaration based on information and belief, rather than personal knowledge, that no dispensary could exist without violating the ordinance.  The defendants attempted to request judicial notice of a map of the County's zones, but that request was denied because there was no showing it was offered to the trial court below.  While the court found the County's evidence was also insufficient, it noted the C-1 zones permit a number of other businesses to operate, and this refuted defendants claim that dispensaries were relegated to remote and unreasonably inconvenient locations.

Finally, the defendants argued that the County had never approved a single permit for a dispensary.  The County did not dispute this fact, but offered an explanation as to the two previous applications.  Moreover, the court refused to consider defendants' argument on this point - including a claim that others were deterred from applying by the hearing officers' unfettered discretion - because they raised it for the first time in a reply brief.  The court rejected any argument that the ordinances violated the equal protection clause of the California Constitution and rejected an argument that dispensaries and pharmacies are "similarly situated."  It concluded the County, which offered expert testimony that would suggest a dispensary's activities "endanger" others, provided a rational basis for the zoning restrictions.