Kirby v. County of Fresno
242 Cal. App. 4th 940
| Cal. Ct. App. | 2015Background
- Fresno County adopted Ordinance No. 14-001 banning medical marijuana dispensaries, cultivation and storage in all zoning districts and treating violations as public nuisances and misdemeanors; it limited legal medical marijuana use to qualified patients at their personal residences.
- Diana Kirby, a disabled resident and qualified medical marijuana patient, sued to invalidate the ordinance, alleging it conflicted with the Compassionate Use Act (CUA) and the Medical Marijuana Program (MMP), including §11362.71(e) (prohibition on arrest of cardholders).
- The County demurred, the trial court sustained the demurrer without leave to amend, and Kirby appealed.
- The appellate court analyzed (1) whether the land‑use ban on cultivation is preempted by state law and (2) whether the ordinance’s criminalization (misdemeanor) provision is preempted; it also addressed federal preemption and the request for leave to amend.
- Court’s holdings: the county’s land‑use ban on cultivation and dispensaries is not preempted by the CUA/MMP; however, the provision classifying violations as misdemeanors is preempted by California’s criminal scheme and the MMP prohibition on arrest/prosecution for qualifying cardholders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the County’s ban on personal cultivation and dispensaries is preempted by the CUA/MMP | Kirby: MMP/CUA create a statutory right to possess and cultivate (e.g., up to six plants) that prevents local bans | County: CUA/MMP provide limited defenses to state prosecution only and do not restrict local land‑use authority | Held: No preemption—land use regulation presumption favors local control; CUA/MMP do not clearly show intent to preempt land‑use bans |
| Whether classifying ordinance violations as misdemeanors (local criminalization) is preempted by state criminal law and MMP §11362.71(e) | Kirby: §11362.71(e) bars arrest of cardholders and preempts local criminal penalties and prosecutions | County: Mower and prior authority limit immunities to state law; local criminalization is permitted | Held: Preempted—MMP/UCSA occupy criminal field for marijuana; §11362.71(e) prohibits arrests/prosecutions of qualifying cardholders, so local misdemeanor provision is invalid |
| Whether federal Controlled Substances Act preempts the MMP/this ruling | County: Allowing state preemption conflicts with federal CSA (marijuana illegal federally) | Kirby: State statutes and §903 of CSA permit coexistence unless positive conflict | Held: No federal preemption—no positive conflict or obstacle; federal law does not compel local officers to enforce CSA so state protections stand |
| Whether Kirby should have been given leave to amend after demurrer | Kirby: Should be allowed to amend to state additional facts/theories | County: Demurrer proper; plaintiff must show how amendment would cure defect | Held: Denied—plaintiff failed to identify additional facts or a new legal theory to justify leave to amend |
Key Cases Cited
- City of Riverside v. Inland Empire Patients Health & Wellness Ctr., 56 Cal.4th 729 (Cal. 2013) (local zoning ban on dispensaries upheld; local land‑use authority preserved)
- Maral v. City of Live Oak, 221 Cal.App.4th 975 (Cal. Ct. App. 2013) (upheld city ban on all cultivation within city)
- Browne v. County of Tehama, 213 Cal.App.4th 704 (Cal. Ct. App. 2013) (upheld county restrictions on cultivation)
- People v. Mower, 28 Cal.4th 457 (Cal. 2002) (CUA provides a trial defense but did not address MMP’s later arrest‑prohibition)
- People v. Kelly, 47 Cal.4th 1008 (Cal. 2010) (interpreting MMP’s quantity limits as a safe harbor; limits’ constitutional issues)
- O’Connell v. City of Stockton, 41 Cal.4th 1061 (Cal. 2007) (UCSA occupies the field of defining drug crimes and penalties)
- Gonzales v. Raich, 545 U.S. 1 (U.S. 2005) (federal CSA applies to intrastate marijuana production but does not compel state/local enforcement)