LAKE COUNTY, Calif. – A state appellate court has upheld a 2013 ruling by a Lake County Superior Court judge denying attorney's fees to a man who sued the county over a temporary medical marijuana ordinance.
The First Appellate District Court filed the nine-page decision in Merrill v. County of Lake on May 21.
“This case is precisely the type of case that warrants the award of attorney's fees under California's Private Attorney General Statute, as the preliminary injunction obtained in this case in 2012 vindicated an important constitutional right for the citizens of Lake County that year,” said attorney Joe Elford, who represented Don Merrill and three anonymous plaintiffs in the case.
Elford filed suit against the county on his clients' behalf in July 2012 following the Board of Supervisors' passage of a temporary ordinance limiting plant numbers according to parcel size.
The following month, Judge David Herrick granted Merrill and his three co-plaintiffs a preliminary injunction against enforcement of the ordinance that lasted until Jan. 1, 2013, allowing anyone with plants in the ground who was growing in accordance with Proposition 215 to complete the growing season.
That delay in enforcement resulted from Herrick's finding that the plaintiffs' assertion that the ordinance interfered with vested rights because the marijuana cultivation season already had begun was likely to succeed at trial.
However, Herrick had denied part of the petition, noting that Lake County's numerical limits on plants “appear to be reasonable in the same way that the set backs and screening requirements in the ordinance appear to be reasonable. The ordinance does not appear to be an unconstitutional usurpation of the Compassionate Use Act or the State’s Medical Marijuana Program. Nor does the court find that the numerical limits on plants to be an unconstitutional amendment of the Compassionate Use Act,” according to case documents.
In June 2013, before the case got to the permanent injunction phase, Merrill dropped the suit on the day he was due to respond to a motion filed by the County Counsel's Office seeking summary judgment.
The case was dropped about a month after the California Supreme Court issued a decision in the City of Riverside v. Inland Empire Patients Health and Wellness Center Inc., which upheld local governments' land use planning powers.
Later that summer, Merrill filed a request seeking attorney's fees, arguing that his success in getting the preliminary injunction entitled him to fees, which Judge Arthur Mann denied, stating in a one-sentence decision in December 2013 that Merrill's request for attorney's fees did not meet required criteria for reimbursement requests.
The appellate court found that the case presented “a reasonable basis for the court's denial of fees.”
While Merrill and his co-plaintiffs were able to get a temporary injunction, the appellate court concluded that they failed to establish that the county's ordinance violated any rights they possessed under the Compassionate Use Act or California's Medical Marijuana Program.
Referring to case law, the court said fee awards may be justified in cases where the action has served to “vindicate an important right.”
“Here, plaintiffs failed to vindicate their claim that the Ordinance contravened state medical marijuana law,” the court said.
The justices also found that the local court could reasonably find that the plaintiffs failed to show the preliminary injunction satisfied another element needed to receive fees – that it significantly benefited the public or a large class of people.
The case's plaintiffs had claimed that “countless” patients were cultivating marijuana in compliance with state law and many of them benefited from the preliminary injunction, with “hundreds, if not thousands, of medical marijuana patients and the public in general” benefiting from the action, according to the appellate ruling.
However, the appellate court noted that they produced no evidence to support those claims, and the justices didn't agree with the plaintiffs' suggestion that an Aug. 1, 2012, memo from Community Development Director Rick Coel to the Board of Supervisors proved the injunction benefited a large class of people.
That memo had stated that the county had removed approximately 2,000 marijuana plants under the ordinance before the preliminary injunction was issued. The appellate court said the document provided no evidence of changes – if any – that the county instituted in its eradication efforts after the preliminary injunction was issued.
The injunction Herrick granted, the justices noted, did not require the county to stop eradicating outdoor marijuana grows that were noncompliant with state law.
Merrill's fee motion also could have been rejected based on the fact that he did not show the court that the “'financial burden of private enforcement' outweighed the monetary value of benefits that could be obtained in pursuing this litigation.” In other words, his declaration did not compare the expense of the litigation to the economic value of the 2012 harvest to the plaintiffs or the costs to replace it.
County Counsel Anita Grant had told Lake County News that Merrill originally had sought approximately $145,320, with court documents later indicating an additional request of $10,000.
The justices said Merrill incurred lodestar attorney fees – based on a computation of a reasonable hourly rate – of $74,000, adding, “it would be speculative on this record for the trial court to conclude that the cost of Merrill's victory greatly transcended his personal stake in the litigation.”
The ruling concluded, “In short, nothing in this record compels a finding that the short-lived preliminary injunction significantly benefited the general public or a large class of individuals. The
trial court’s denial of attorneys’ fees was not an abuse of its discretion.”
Elford said he intends to appeal the appellate court's decision.
Grant said he's entitled to do that if he wants to.
“I think the appellate opinion was very clear,” she said.
John Jensen contributed to this report.
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Appellate court upholds local judge's ruling, denies attorney's fees to plaintiff in marijuana lawsuit
- Elizabeth Larson
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