Though medical marijuana may be legal in California, cities thus far have no obligation to ensure that patients have ready access to cannabis-based medicines. There have been several attempts by medical marijuana dispensary proponents to get the courts to recognize the right of prospective proprietors and co-ops to establish dispensaries, regardless of what the local zoning code allows. Thus far, these attempts have failed. The most recent attempt in Traudt v. City of Dana Point (2011) 199 Cal.App.4th 886, is no different. This time the court did not even make it to the merits, but struck the case down at the demurrer stage for lack of standing.

Plaintiff Malinda Traudt developed osteoporosis in her 20's, and from that point on, lived a life of pain and constant illness, until she began taking medical marijuana. Traudt is also blind and suffers from several neurological conditions and chronic pain. According to Traudt's complaint, medical marijuana saved her life because it alleviated some of her pain. Due to her condition, Traudt cannot venture far from her house and must be accompanied by her mother, who is her caretaker. Her mother is also unable to leave her alone because she too is in fragile condition. Fortunately for Traudt, a dispensary opened up within walking distance from her home, and her mother could take her in her wheelchair to the dispensary. 

Unfortunately for Traudt, the City of Dana Point began shutting down the dispensaries within city limits because they are not permitted under the local zoning code. This included Traudt's dispensary. Although the dispensary brought suit against the city, Traudt decided to initiate a lawsuit of her own, which was dismissed on demurrer for lack of standing, even though lack of standing had not been asserted by the city. Traudt appealed, and the appellate court agreed with the trial court. 

As the appellate court readily admitted, "Traudt's condition is tragic and presents perhaps the most compelling case imaginable for individual standing." Nevertheless, according to the appellate court, "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 cooperate or collective medical marijuana activity (see e.g., § 11362.775) – the Legislature invested this right in cooperative and collective groups and entities, not individuals." Therefore, Traudt had no standing to bring an action against the city, and she will just have to wait and see if the dispensary has any more success.

The Case: 

Traudt v. City of Dana Point (2011) 199 Cal.App.4th 886. Filed and published Sept. 30, 2011. 

The Attorneys: 

Schwartz Law and Jeffrey M. Schwartz for Plaintiff and Appellant.

Rutan & Tucker, A. Patrick Muñoz, Douglas J. Dennington and Jennifer Farrell for Defendant and Respondent.

Cori Badgley is an attorney with Abbott & Kindermann, LLP, Sacramento.