A Wolf in Sheep's Clothing is Still a Wolf: Court Denies Medical Marijuana Case on Statute of Limitations Grounds

By Cori Badgley

Regardless of the substantive merits of a case, the procedural requirements of the statute of limitations first must be met. In County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, the owners of a medical marijuana dispensary (“plaintiff”) attempted to cast their lawsuit as an as-applied challenge to the county’s local ordinance regulating dispensaries. However, the appellate court held that the challenge was actually a facial challenge, and plaintiff failed to bring the challenge within 90 days of the effective date of the ordinance. Therefore, plaintiff was barred from bringing its lawsuit.

Unlike the appellate court, the trial court agreed with plaintiff that the lawsuit fell within the appropriate limitations period because the lawsuit was brought within 90 days of the county’s issuance of a stop work order in October 2009. The ordinance on which the stop work order was based was effective in 2007. The county appealed the trial court’s decision arguing that the statute of limitations began to run in 2007.

The appellate court agreed with the county. The court found that the only valid challenges brought by plaintiff were to the face of the ordinance, not as applied to plaintiff. Additionally, plaintiff had not attempted to obtain a use permit as required by the ordinance, which made any as-applied challenge not ripe for review. Despite plaintiff’s statements that the suit was an as-applied challenge and could therefore include certain facial challenges under Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, the appellate court found that the challenge was in fact a facial challenge, and plaintiff’s statements were not dispositive. What mattered were the grounds on which the lawsuit was based, which were overwhelmingly facial in nature. Therefore, the court held that the statute of limitations began to run into 2007 upon the effective date of the ordinance, and the lawsuit was barred.

As the old saying goes, a wolf in sheep’s clothing is still a wolf. No matter how you dress it up, the underlying legal theories do not change.

Cori M. Badgley is an associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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