Facts: MALINDA TRAUDT v. CITY OF DANA POINT (sad)

FACTUAL AND PROCEDURAL BACKGROUND

 

Traudt’s condition is tragic and presents perhaps the most compelling case imaginable for individual standing. She is blind and suffers from cerebral palsy, epilepsy, and acute cognitive delays. Her complaint reflects she lived life as a “smiling, happy girl” until she developed osteoporosis in her 20’s, which “devastated her body.” Her bones became “so brittle that her femur (the strongest bone in the body) broke and portions of her tailbone . . . disintegrated,” causing her “chronic and intolerable pain, far beyond anything she had previously experienced or can handle.” Her doctor prescribed pain medications to no avail, including OxyContin, which immediately caused her kidneys to “begin shutting down” and resulted in a high fever and her lungs filling with fluid, leading to pneumonia. Her breathing became very shallow and her physician recommended that her mother, Shelly White, “contact hospice to arrange for Malinda’s final hours. Shelly began planning her daughter’s funeral.”

As reflected in Traudt’s complaint, “[i]n a last-ditch effort to keep Malinda alive while managing her pain, Shelly and Malinda’s pain specialist agreed to try replacing Malinda’s pain medication with medical marijuana.” According to the complaint, “[a]lmost immediately, Malinda’s fever subsided, she stopped vomiting, and her suffering lessened. Within three days, she began to recover.” Traudt’s complaint identifies her as “a `last resort patient,’ one for whom traditional pain medications have completely failed.” Her condition “is irreversible,” “her health is declining,” and “[n]o medication, pharmaceutical or natural, can reverse that decline.” Nevertheless, “[t]hrough the continued use of medical marijuana, Malinda’s kidneys regained function, she became lucid, she was able to eat, and she began smiling again. Her pain became manageable and her quality of life improved significantly.”

Traudt’s mother has attempted to grow medical marijuana for her daughter’s needs, but “due to the elements, insects, disease, mold, and Shelly’s lack of experience, her efforts, thus far, have been unsuccessful.” Traudt lives with her mother in San Clemente, near its border with Dana Point. Choosing among six dispensaries operating in Dana Point at the time of Traudt’s complaint, “Shelly chose the Beach Cities Collective . . . in part because she could push Malinda there and back in her wheelchair, making it a fun outing.”

Traudt also obtains medical marijuana from a dispensary or dispensaries in Los Angeles County. Traudt herself cannot endure the trip because of her fragile health and increased pain when riding in her mother’s van for longer than 15-20 minutes. Nor can Traudt’s mother make the drive, since she “needs to be near Malinda constantly, to monitor her health and stand ready to use their Portable Suction Machine or other devices and techniques to manage the frequent problems that suddenly develop in Malinda’s precarious condition.” Accordingly, Traudt’s mother “never leaves Malinda for the approximately two hours required to drive to Los Angeles, obtain medicine, and return.”

On March 10, 2010, the City filed a nuisance abatement action seeking to shut down the Beach Cities Collective (Beach Cities). Approximately a week later, Traudt filed this action, alleging the City was “attempting to close all of the collectives in Dana Point,” including Beach Cities. As noted, Traudt premised her declaratory judgment action on claims of preemption under California medical marijuana law and that those state laws afforded her a right of access to medical marijuana through a dispensary. In a separate lawsuit, Traudt sought and was denied permission to intervene on behalf of Beach Cities as an additional party in the City’s nuisance abatement action against the dispensary. In the action presently before us in this appeal, the trial court granted the City’s demurrer to Traudt’s declaratory judgment complaint, and she now appeals entry of judgment in the City’s favor.

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