Tehama County's Ordinance Governing Cultivation of Medical Marijuana not in Conflict With Either Compassionate Use Act or Medical Marijuana Program

The Third DCA has held that a Tehama County ordinance regulating the cultivation of medical marijuana was not facially invalid as conflicting with either the Compassionate Use Act or the Medical Marijuana Program.

To address citizen concerns about the unregulated cultivation of marijuana, the Board of Supervisors of Tehama County passed Ordinance No. 1936. Among other things, the Ordinance declared it a nuisance to cultivate more than a certain number of marijuana plants, depending upon premises size; declared it a nuisance to cultivate plants within 1,000 fee of certain areas, such as schools and churches; required marijuana cultivators to register with the County; and imposed requirements for outdoor growers, such as the installation of opaque fencing around growing areas and adherence to setback requirements.

Jason Browne and other individuals (collectively, Brown) who used medical marijuana petitioned for a writ of mandate or prohibition, contending the Ordinance was unconstitutional on its face because it conflicted with the Compassionate Use Act (CUA) and the Medical Marijuana Program (MMP). The trial court sustained the County’s demurrer without leave to amend and dismissed the petition.

Browne appealed, contending the Ordinance was unconstitutional because it impermissibly amended the CUA and conflicted with the MMP by imposing restrictions, and in some cases a ban, on the right to cultivate marijuana for medical purposes.

The court of appeal affirmed, holding that Browne failed to demonstrate that the Ordinance was invalid on its face.

The court of appeal noted that Browne's challenge to the Ordinance was facial rather than as applied. The precise standard governing facial challenges has been disputed within the court, but under any of the applicable tests, whether lenient or strict, in this instance the result was the same.

First, the Ordinance was not unconstitutional as an unlawful amendment of the CUA without the consent of the electors. Only the Legislature may amend a state statute, the court explained, rendering Browne's argument inapposite.

Nor was the Ordinance unconstitutional as in conflict with the MMP. Case authority has upheld local regulations regarding, for instance, medical marijuana dispensaries, including local regulations with restrictions similar to those at issue here. The MMP has been amended subsequent to such decisions, signaling legislative approval of the decisions and of local regulation of the use of medical marijuana.

There were no similar amendments expressly on the issue of local regulation of medical marijuana cultivation, so the court considered specifically whether the Ordinance should be considered invalid as preempted by the CUA and the MMP.

Browne's argument that the Ordinance fatally conflicted with the CUA suffered a fundamental flaw arising from his incorrect view that the CUA created or granted unrestricted rights. The CUA does not grant every qualified patient the right to cultivate marijuana for medical use within their home, at any privately owned residence or location. The only “right” created by the CUA is the right of a qualified patient or his primary caregiver to possess or cultivate marijuana for personal medical purposes, upon recommendation or approval of a physician, without becoming subject to criminal punishment. Because the CUA does not create a right to cultivate medical marijuana, the court said, restrictions on such cultivation do not conflict with the CUA.

The court observed that the CUA does not expressly preempt the regulation of cultivation amounts and location of medical marijuana on particular parcels of property. Further, and simply put, for its part the Ordinance does not prohibit the cultivation of medical marijuana by qualified patients.

Browne was flatly wrong when he repeatedly characterized the Ordinance as a complete ban on the cultivation of medical marijuana. Instead, it merely regulated and restricted growing locations and amounts that could be grown on particular parcels. Such regulations have been routinely upheld, the court said. Thus Browne entiely failed to show that the Ordinance was in conflict with the CUA as part of their facial challenge.

The Ordinance did not run afoul of the MMP. That law permits local governing bodies to enact laws that are consistent with the MMP, and case authority clearly established that “consistent with” did not mean “the same as.” That is, local laws are not constrained to impose only those limitations already set out in the MMP.

Browne was likewise incorrect in arguing that the MMP preempted the County from using nuisance abatement law to bar the use of property for medical marijuana purposes. Browne cited MMP sections that provided qualified patients and their primary caregivers, as well as those who associate to cultivate marijuana for medical purposes, immunity from criminal liability and sanctions. However, the limited statutory immunity from prosecution afforded did not prevent application of the Ordinance’s nuisance provisions. None of the activities regulated in that way fell within the scope of the acts protected by the limited statutory immunity from prosecution.

Browne v. Tehama County; __ Cal.App.4th __ (Feb. 2, 2013)

No Wrongful Termination of Employee Who Failed to Cooperate in Internal Investigation

An at-will employee may be terminated for the unprotected activity of being uncooperative or deceptive in an employer’s internal investigation of a discrimination claim.

John McGrory worked as an at-will managerial employee of Applied Signal Technology, Inc. Dana Thomas, a female who reported to McGrory, filed a complaint against him with Applied Signal’s human resources department. Thomas alleged gender and sexual orientation discrimination by McGrory.

The accusation led to an investigation of McGrory by an outside female attorney, who interviewed McGrory and many of his subordinates. The attorney exonerated McGrory of the discrimination charges but found that he and one of his subordinates had been uncooperative and untruthful during her investigation.

Applied Signals terminated McGrory for his conduct during the investigation and disciplined his subordinate. A co-worker who asked about McGrory’s termination was told that he was fired for not cooperating with the investigation.

McGrory sued Applied Signals, alleging in pertinent part that he was unlawfully terminated for being male and based on his participation in Applied Signal’s internal investigation. He also alleged defamation based on the explanation provided to his former co-worker about why he was terminated.

The court of appeal turned first to McGrory’s argument that he was terminated in violation of public policy based on his participation in Applied Signal’s internal investigation. The Fair Employment and Housing Act (FEHA), specifically Gov’t Code §12940(h), makes it an unlawful employment practice for an employer to discharge a person because the person testified or assisted in any “proceeding under this part.” McGrory assumed that Applied Signal’s internal investigation was a “proceeding under this part,” so that his participation was a protected activity for which he could not be terminated. This was wrong, the court said. Instead, and in keeping with analogous authority interpreting Title VII of the Federal Civil Rights Act of 1964, FEHA §12940(h) does not shield an employee against termination or lesser discipline for either lying or withholding information during an employer’s internal investigation of a discrimination claim.

Thus, because McGrory’s conduct was unprotected, he failed to present a claim for unlawful termination in violation of public policy in that regard.

McGrory also failed to present a triable claim that he was discharged for being male. In essence, his claim of anti-male discrimination was belied by evidence of record. Among other things, Applied Signals meted out discipline to male and female employees in keeping with the outside attorney’s findings, and there was no evidence that the attorney had an anti-male bias or that her investigation was flawed and biased. In short, there was no evidence of express antipathy to males and no evidence of disparate discipline. Instead, there was nothing more than rank speculation on McGrory’s part that the investigating attorney was biased against males. No reasonable inference of a discriminatory motive could be drawn from such evidence, the court said.

Finally, the allegedly defamatory statement challenged by McGrory was, under the facts, protected by the common interest privilege, which applies to statements by management and coworkers to other coworkers explaining why an employer disciplined an employee.

McGory v. Applied Signal Technology, Inc.; January 24, 2013

Broad Release Language Upheld

A plaintiff is bound by the express terms of a written release of liability that extended not only to the signatories, but also to “all other persons, firms, corporations, associations or partnerships.”

Heriberto Rodriguez was injured in a car accident purportedly caused by Takeshi Oto. Oto was driving a rental car provided by Hertz Corporation. Unbeknownst to Rodriguez, Oto was driving from an event related to his employment with Toshiba America, Inc.

Some seven months after the accident, Rodriguez settled with Hertz for $25,000, the limit of its coverage for bodily injury or death. As part of the settlement he executed a written release in favor of “Takeshi Oto and The Hertz Corporation, its employees, agents, servants, successors, heirs, executors, administrators and all other persons, firms, corporations, associations or partnerships (hereafter Releasees).” Rodriguez was represented by counsel when he signed the release. He later asserted it was his understanding, at the time, that he was releasing only Oto and Hertz.

Rodriguez later sued Oto and Toshiba for his injuries.

Summary judgment in favor of Oto and Toshiba was proper as the release explicitly exonerated Oto from further liability and also extended to Toshiba.  The court found Rodriguez’s undisclosed intentions to release only Oto and Hertz insufficient to raise a triable issue of fact, and the extrinsic evidence established no ambiguity. 

At issue was whether evidence of the executed release was sufficient to preclude a judgment against Toshiba. The release signed by Rodriguez extended not only to the named releasees Hertz and Oto, and their agents and successors, but to “all other persons, firms, corporations, associations or partnerships.” As a matter of plain logic, Toshiba—along with every other person or corporation in the universe—belonged to the class thus absolved of liability. The question was whether this logic alone was enough to establish, in the absence of countervailing evidence, that Toshiba was entitled to the protection of the release. The answer, the court found, was yes.

Rodriguez v. Oto; January 15, 2013.

2013: New California Employment Laws

1.         Current and Former Employees Get Access to their "Personnel Files" Within 30 days of Request (Labor Code 226 and 1198.5). 

Employers are required to provide current and former employees with copies of their personnel records "relating to the employee's performance or to any grievance concerning the employee" within 30 days of the request.  Failure to comply with this new law may subject an employer to a penalty of $750 per violation, as well as attorneys' fees.

2.         Employers Must Accommodate Religious Dress and Grooming (Government Code 12926 and 12940). 

Employers must accommodate an employee's or job applicant's "religious dress" or "grooming practices."  Religious dress includes the wearing or carrying of religious clothing, head or face coverings, jewelry, and artifacts.  Religious grooming practices include those pertaining to head, facial, or body hair that are part of the observance by an individual of his or her religious creed.  This new law specifically provides that segregating the employee from the public or other employees is not a reasonable accommodation.

3.         Mistakes on Wage Statements Can Cost Employers $4,000 Per Employee (Labor Code 226).

Existing law requires employers to provide nine categories of information on an employee's wage statement.  This new law makes clear that if an employer fails to provide that information, employees are deemed to suffer an "injury" for the purpose of recovering a penalty: $50 for the initial pay period; $100 for each subsequent pay period with a maximum penalty of $4,000, as well as attorneys' fees.  To avoid mistakes, employers should ensure that the following nine pieces of information appear on each employee's wage statement: (1) gross wages earned; (2) total hours worked (except for exempt employees); (3) piece rate units or piece rates (if applicable); (4) all deductions; (5) net wages earned; (6) the inclusive dates of the period for which the employee is paid; (7) employee name and last four digits of the social security number or employee ID; (8) name and address of the legal entity who is the employer; and (9) all applicable hourly rates in effect during the pay period and corresponding number of hours worked. 

4.         New Regulations Related To Pregnancy Disability Leave.

New pregnancy regulations redefine the number of days that employees may take for pregnancy disability leave.  Instead of the previously defined "four months" of leave, the leave is now defined as 17 1/3 weeks to account for the uneven number of days in certain months.  Employers are also required to notify employees in writing when a medical certification is required for the leave of absence.  In light of these changes, employers are required to post new notices in the workplace that notify employees of the changes.  For 50 or more employees, use this notice: http://www.dfeh.ca.gov/res/docs/Publications/NOTICE%20B.pdf.  For fewer than 50 employees, use this notice: http://www.dfeh.ca.gov/res/docs/Publications/NOTICE%20A.pdf .

5.         Employers Are Barred From Requesting Social Media Information Unless Needed For An Investigation of Employee Misconduct (Labor Code Chap 2.5).

Employers are prohibited from asking employees or job applicants to disclose any information related to their personal social media accounts, which includes an employee's e-mail account and text messages.  The law also prohibits employers from retaliating against anyone who refuses to provide such information.  However, the law provides an exception where the employer reasonably believes that the employee has engaged in misconduct or has violated the law, and the social media information is used solely for the purpose of an investigation.

6.         Salaries for Non-exempt Employees Do Not Include Overtime (Labor Code 515).

This law defines a non-exempt employee's "salary" as only including 40 hours per week, not any overtime hours.  The law was enacted to overturn a recent Court of Appeal decision (Arechiga v. Dolores Press) where the employee agreed to a fixed weekly salary that included payment of both regular and overtime hours.  Based on this new law, if any overtime is owed to a non-exempt employee, the employee's hourly rate will be based on 1/40th of any salary paid to calculate owed overtime.  In other words, if the employee's salary is above minimum wage, the employer cannot use the difference in pay to account for owed overtime compensation.

7.         Employers Must Provide Employees Written Commission Agreements, But Some Exceptions Apply (Labor Code 2751).

Employers who pay regular commissions must provide employees with an executed written contract setting forth both the formula for calculating commissions, as well as the method of payment.  Failure to comply with this new law may subject an employer to penalties under California's Private Attorney General Act ("PAGA") in the amount of $100 for each affected employee for an initial violation and $200 per employee for each violation thereafter.  The term "commissions" does not include:  (1) short-term productivity bonuses such as those paid to retail clerks; (2) temporary incentives that increase commissions; or (3) bonus or profit-sharing plans, unless they are based on a fixed percentage of sales or profits.

California Supreme Court Applies Primary Assumption of Risk to Bumper Car Activity

The California Supreme Court has held that the doctrine of primary assumption of risk applies to a participant on an amusement park bumper car ride who suffered an injury.

Smriti Nalwa took her son on an amusement park bumper car ride. During the ride, the multidirectional bumper car was struck, in rapid succession, from both the front and the back. When she put her hand on the dashboard to brace herself from the impacts, Nalwa broke her wrist.

Nalwa sued the operator, Cedar Fair, L.P., for her injury. She argued that Cedar Fair knew the risks inherent in multidirectional bumper cars and should have restricted its cars to unidirectional travel only, as many other bumper car operators did. Unidirectional travel would not have prevented rear-end collisions, but would have prevented head-on collisions such as the one suffered by Nalwa immediately prior to her injury.

The California Supreme Court agreed, holding that the doctrine of primary assumption of risk applied.

Some activities, the court explained, are inherently dangerous. As stated in Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, “[i]mposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.” The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity. At issue here was whether a bumper car ride is among the activities to which the doctrine of primary assumption of risk applies.

Amusement park operator Cedar Fair argued that the doctrine of primary assumption of risk is not limited to sports and should apply to amusement park rides that involve inherent risks of injury, including bumper cars. The alternative of requiring operators to minimize inherent risks would tend to change the nature of such rides or cause their abandonment. In Cedar Fair’s view, a duty to minimize the inherent risk of injury from bumper car rides would “requir[e] amusement park operators to eliminate their existing rides and to replace them with rides that are fundamentally different.” Such a result, Cedar Fair contended, would be contrary to the policy motivating the court’s primary assumption of risk decisions: to prevent common law tort rules from undermining Californians’ recreational opportunities. The court agreed.

Although the primary assumption of risk doctrine is most frequently applied to sports, it has been found to apply to certain other recreational activities, as well. Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217 involved an organized, noncompetitive group motorcycle ride and Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650 concerned participation in a fire ritual at a Burning Man festival. Other courts have reached the same result by applying a broad definition of “sport” to include physical but noncompetitive recreational activities. The court agreed with the court in Beninati that the primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities “involving an inherent risk of injury to voluntary participants ... where the risk cannot be eliminated without altering the fundamental nature of the activity.”

The court explained that the primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty would result in the unwanted alteration or abandonment of the activity. Allowing voluntary participants in an active recreational pursuit to sue other participants or sponsors for failing to eliminate or mitigate the activity’s inherent risks would threaten the activity’s very existence and nature. Active recreation, because it involves physical activity and is not essential to daily life, is particularly vulnerable to the chilling effects of potential tort liability for ordinary negligence. And participation in such activities, however valuable to one’s health and spirit, is voluntary in a manner that employment and daily transportation are not.

Accordingly, the court found, it was reasonable to apply the primary assumption of risk doctrine to bumper car collisions, regardless of whether or not one deems bumper cars a “sport.” Low-speed collisions between the padded, independently operated cars are inherent in and, indeed, are the whole point of a bumper car ride. As Nalwa agreed in her deposition: “The point of the bumper car is to bump . . .” While not highly dangerous, such collisions, resulting in sudden changes in speed and direction, do carry an inherent risk of minor injuries, and this risk cannot be eliminated without changing the basic character of the activity.

The court found further that the doctrine applied to the ride here, even though amusement parks are subject to state safety regulations and even though, as to some rides, park owners owe participants the heightened duty of care of a common carrier for reward.

Finally, the court concluded that Cedar Fair’s limited duty of care under the primary assumption of risk doctrine—the duty not to unreasonably increase the risk of injury over and above that inherent in the low-speed collisions essential to bumper car rides—did not extend to preventing head-on collisions between the cars.