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Henry G. Wykowski (State Bar No. 068255)
HENRY G. WYKOWSKI & ASSOCIATES
235 Montgomery Street, Suite 657
San Francisco, CA 94104
Telephone: (415) 788-4545
Facsimile: (415) 788-4546
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Attorneys for Claimant
PATIENTS MUTUAL ASSISTANCE
COLLECTIVE CORPORTATION,
dba HARBORSIDE HEALTH CENTER
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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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No. CV 12-3567 MEJ
UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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REAL PROPERTY AND IMPROVEMENTS
LOCATED AT 1840 EMBARCADERO,
OAKLAND, CALIFORNIA
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Defendant.
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PATIENTS MUTUAL ASSISTANCE
COLLECTIVE CORPORTATION dba
HARBORSIDE HEALTH CENTER
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Claimant.
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H ENRY G.
W YKOWSKI &
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A T T ORNE YS A T L AW
CLAIMANT HARBORSIDE’S OPPOSITION TO MOTION FOR ORDER
United States v. Real Property Improvements., CV 12-3567 MEJ
CLAIMANT PATIENTS MUTUTAL
ASSISTANCE COLLECTIVE
CORPORATION dba
HARBORSIDE HEALTH
CENTER’S OPPOSITION TO
CLAIMANT ANNA CHRETIEN’S
MOTION FOR AN ORDER
PROHIBITING UNLAWFUL USE
OF DEFENDANT PROPERTY
Hearing Date:
Time:
Judge:
12/13/2012
10:00 a.m..
Hon. Maria Elena James
Complaint Filed:
Trial Date:
July 9, 2012
None Set
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TABLE OF CONTENTS
I.
INTRODUCTION .......................................................................................................... 1
II.
STATEMENT OF FACTS ............................................................................................. 3
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a. Legal Use of Medical Cannabis in California .......................................................... 3
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b. Legal Production and Distribution of Medical Cannabis in
California .................................................................................................................. 3
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c. Harborside Health Center ......................................................................................... 4
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d. The Current Forfeiture Action and Landlord’s Motion for
Preliminary Injunction. ............................................................................................. 6
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Related Case City of Oakland v. Holder et. al.. ....................................................... 8
III.
LANDLORD, AS A PRIVATE PARTY, LACKS STANDING TO
ENFORCE THE CONTROLLED SUBSTANCES ACT .............................................. 9
IV.
INJUNCTIONS THAT WOULD ALTER THE STATUS QUO
ARE HIGHLY DISFAVORED .................................................................................. 12
V.
MOVING PARTY HAS NOT MET ITS BURDEN OF SHOWING
A LIKELIHOOD OF IRREPARABLE HARM IF NO PRELIMINARY
INJUNCTION ISSUES AND THE CIVIL FORFEITURE
CONTINUES TO BE LITIGATED ON THE MERITS. ............................................. 13
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a. The Moving Party has an Obligation to Show Irreparable Harm.
No Such Harm is Shown. The Motion Must be Denied
Unless Harm is Shown. .......................................................................................... 14
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b. Landlord’s Attempted Showing of “Irreparable Harm” is Entirely
Illusory and Causally Unrelated to the Injunction She Seeks. ............................... 16
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VI.
THE BALANCE OF EQUITIES WEIGHS AGAINST A
PRELIMINARY INJUNCTION .................................................................................. 17
VII.
THE PUBLIC INTEREST WEIGHS HEAVILY AGAINST
PRELIMINARY INJUNCTION IN THAT CALIFORNIANS
HAVE EXPRESSED THEIR WILL TO MAINTAIN ACCESS
TO LEGAL MEDICAL CANNABIS .......................................................................... 19
VIII.
OAKLAND CANNABIS BUYER’S PROVIDES NO PRECEDENT,
NOR ANYJUSTIFICATION, FOR TRANSFORMING AN IN REM
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CLAIMANT HARBORSIDE’S OPPOSITION TO MOTION FOR ORDER
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CIVIL FORFEITURE INTO AN ACTION FOR INJUNCTION. .............................. 19
IX.
MOVING PARTY’S UNCLEAN HANDS WITH RESPECT TO
THE CONDUCT AT ISSUE ABSOLUTELY PRECLUDES
EQUITABLE, INJUNCTIVE RELIEF ........................................................................ 21
X.
CONCLUSION ............................................................................................................ 23
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CLAIMANT HARBORSIDE’S OPPOSITION TO MOTION FOR ORDER
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TABLE OF AUTHORITIES
Cases
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Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir.2011) ..................................... 17
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Amoco Production Co. v. Village of Gambell, AK, 480 U.S., 531 (1987).................................... 17
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Buckman Co. v. Plaintiff’s Legal Comm., 531 U.S. 341 (2001). .................................................... 9
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California v. Sierra Club, 451 U.S. 287 (1981) .............................................................................. 11
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Durr v. Strickland, 602 F.3d 788 (6th Cir. 2010) ............................................................................. 9
Ellenburg v. Brockway, Inc., 763 F.2d 1091 (9th Cir. 1985) ........................................................ 21
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10
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Freedom Holdings, Inc. v. Spitzer, 408 F3d 112 (2nd Cir. 2005) ................................................. 14
International Church of the Foursquare Gospel v. City of San Leandro,
WL 2904046. (N.D. Cal., Oct. 2, 2007, C 07-3605 PJH) (2007) ................................................... 11
Jones v. Hobbs, 745 F.Supp.2d 886 (E.D. Ark. 2010) ............................................................... 9, 10
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Liveops, Inc. v. Teleo, Inc., WL 83058 (N.D. Cal. 2006).............................................................. 11
Matos v. Clinton School Dist., 367 F.3d 68 (1st Cir. 2004) .......................................................... 16
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McAllister v. Purdue Pharma L.P. 164 F.Supp.2d 783 (S.D.W.Va 2001) ....................................... 9
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Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010). .................................................. 14
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Munaf v. Geren, 553 U.S. 674 (2008) ...................................................................................... 13, 14
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Park Village Apt. Tenants Ass’n v. Mortimer Howard Trust,
636 F3d 1150 (9th Cir. 2011) ....................................................................................... 11, 12, 13, 15
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People v. Jackson, no. D058988, Cal. App. Fourth Dist., Div. One (Oct. 24, 2012) ...................... 7
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Precision Inst. Mfg. Co. v. Automotive Maintenance Mach. Co.,
324 U.S. 806 (1945) ...................................................................................................................... 21
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Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496 (1941). .................................................. 17
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Republic Molding Corp. v. B.W. Photo Utilities,
319 F.2d 347 (9th Cir.1963) .......................................................................................................... 21
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Ringo v. Lombardi, 2010 WL 3310240 (W.D. M.O 2010). ................................................ 9, 10, 11
CLAIMANT HARBORSIDE’S OPPOSITION TO MOTION FOR ORDER
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RoDa Drilling Co. v. Siegal, 552 F.3d 1203 (10th Cir. 2009) ...................................................... 16
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ............................................................. 12
U.S. v. Cannabis Cultivator's Club, WL 1310460
(N.D. Cal., June 10, 2002, C 98-00085 CRB) (2002) .................................................................... 20
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U.S. v. Oakland Cannabis Buyer’s Co-op, 532 U.S. 483 (2001) ............................................ 13, 20
U.S. v. Ferro, 681 F.3d 1105 (9th Cir. 2012) .......................................................................... 16, 20
United States v. Land and Bldg. at 2 Burditt Street, Everett, Mass.,
924 F.2d 383 (1st Cir. 1991) .......................................................................................................... 17
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Weinberger v. Romero–Barcelo, 456 U.S., 305 (1982) ................................................................. 17
West v. Ray, WL 3825672 (M.D. Tenn 2010) ................................................................................. 9
Winter v. Natural Resources Defense Council, Inc., (2008) 555 US 7 (2008) .................... 2, 13. 14
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Statutes, Rules & Other Authorities
21 U.S.C. § 882 ............................................................................................................................... 9
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Fed. Supplemental Rule of Civ. Proc. G 7(a) ............................................................................. 9, 11
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Ca. Health & Saf. Code § 11362.5 ................................................................................................... 3
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Ca. Health & Saf. Code § 11362.76 ................................................................................................. 3
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Ca. Health & Saf. Code §11362.775 ............................................................................................... 4
Ca. Health & Saf. Code § 11362.83 ................................................................................................. 4
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Wright & Miller, Prac. & Proc. Civ. § 2948.1 (2d ed.). ................................................................. 16
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CLAIMANT HARBORSIDE’S OPPOSITION TO MOTION FOR ORDER
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I.
INTRODUCTION
This case is a civil forfeiture action by the United State government against a res in
Oakland, California. The complaint contains no claim for injunctive relief. Yet preliminary
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injunction is now requested by the owner of the property, a sophisticated commercial landlord,
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who claims that even though the subject property lease openly states that its purpose is for tenant
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to operate a medical cannabis dispensary, she somehow believed until the time the forfeiture
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action was filed that this purpose was not controversial under federal law.
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The instant preliminary injunction motion is a copycat of a motion filed on August 29,
2012 by the landlord in the related case against Harborside’s San Jose property location. If
granted, would shut down the Oakland operations of Harborside Health Center, which to its
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knowledge is the largest, most intensely studied, and most State-law compliant medicinal
cannabis dispensary in the State of California.
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The timing of the instant motion makes it inherently suspect. If the Oakland landlord’s
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harm truly were “irreparable” (which is the standard for injunctive relief), then she would have
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filed this motion immediately on the heels of the San Jose motion—not two and a half months
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later. This motion should be denied for all of the reasons stated in Harborside’s opposition to the
San Jose motion, plus additional reasons that make denial of the instant motion even a stronger
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imperative than that one. Harborside will be fully prepared to litigate the forfeiture action,
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including discovery, motions for summary judgment, and trial on the merits. Entering the
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requested injunction would effectively give the Government the victory it seeks (via a back door
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route through the landlord no less) without it going through the orderly process of litigating the
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action it chose to file.
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Injunction is an equitable remedy. The Court must weigh all of the equities pursuant to
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CLAIMANT HARBORSIDE’S OPPOSITION TO MOTION FOR ORDER
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the four-factor test set out by the Supreme Court in Winter v. Natural Resources Defense Council,
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Inc., (2008) 555 US 7, 129 S.Ct. 365. The Court may enter a preliminary injunction only after a
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moving party has demonstrated the “likelihood of irreparable harm” should the request be denied.
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Id. Here, the moving papers argue only that there is a future possibility of harm in that if the
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forfeiture were to succeed, the landlord would be dispossessed of her property. However, there is
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no causal relationship between the injunction Landlord requests against Harborside and the
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future result of the forfeiture action against her. Furthermore, there is no showing whatsoever
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that “irreparable harm” would occur if the parties simply continued to litigate the forfeiture action
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through trial, to its natural conclusion. No other “equity” is even discussed in the moving papers.
If the “equities” are discussed (in moving party’s reply papers or elsewhere), Harborside would
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require the opportunity to rebut such a showing, and would request that an evidentiary hearing be
held at a later date so it could do so.
In addition, this motion has been brought by a party without standing—a private party that
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seeks to enforce the Controlled Substances Act (which is enforceable only by the federal
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government). That private party, the Landlord, had notice through the lease itself of the acts that
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it now contends violated the CSA. This constitutes an additional powerful reason that issuing the
requested injunction would be both procedurally improper and entirely inequitable. For all of the
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reasons discussed in this Opposition, the instant preliminary injunction motion should be denied.
Finally, the moving party, Ms. Chretien, seeks equitable relief from this Court despite
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transacting business with Harborside for over six years with her eyes wide open to the legal risks
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that are now coming to a head through this forfeiture action. “[S]he who comes into equity must
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come with clean hands.” Ms. Chretien’s unclean hands absolutely close the courthouse door to
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this equitable motion. For all of these reasons, and others discussed infra, the Court should deny
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CLAIMANT HARBORSIDE’S OPPOSITION TO MOTION FOR ORDER
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this motion in its entirety.
II.
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STATEMENT OF FACTS
a. Legal Use of Medical Cannabis in California.
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In 1996, California voters adopted Proposition 215, the “Compassionate Use Act” Health
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& Saf. Code § 11362.5. The Act is intended to “ensure that seriously ill Californians have the
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right to obtain and use marijuana for medical purposes where that medical use is deemed
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appropriate and has been recommended by a physician who has determined that the person’s
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health would benefit from the use of marijuana”; “ensure that patients and their primary
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caregivers who obtain and use marijuana for medical purposes upon the recommendation of a
physician are not subject to criminal prosecution or sanction”; and “encourage the federal and
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state governments to implement a plan to provide for the safe and affordable distribution of
marijuana to all patients in medical need of marijuana.” Health & Saf. Code, § 11362.5(b)(1)(A)(C).
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b. Legal Production and Distribution of Medical Cannabis in California.
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In 2003, the Legislature added the “Medical Marijuana Program Act,” article 2.5,
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(“MMPA”), to the Health and Safety Code. The purposes of the MMPA include “[promoting]
uniform and consistent application of the [Compassionate Use Act] among counties within the
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state” and “[enhancing] the access of patients and caregivers to medical marijuana through
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collective, cooperative cultivation projects.” Stats. 2003, ch. 875, § 1, subd. (b). The statute
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includes guidelines for the implementation of the Compassionate Use Act. Among other things,
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it provides that qualified patients and their primary caregivers have limited immunity from
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prosecution for violation of various sections of the Health and Safety Code regulating marijuana
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including the “drug den” abatement law. §§ 11362.765, 11362.775. This portion of the Act is
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CLAIMANT HARBORSIDE’S OPPOSITION TO MOTION FOR ORDER
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expressly intended to exempt dispensaries from prosecution under section 11570 that provides:
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“Every building or place used for the purpose of unlawfully selling, serving, storing, keeping,
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manufacturing, or giving away any controlled substance … is a nuisance which shall be enjoined,
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abated, and prevented, and for which damages may be recovered, whether it is a public or private
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nuisance.” Additionally, the MMPA provides: “Nothing in this article shall prevent a city or other
local governing body from adopting and enforcing laws consistent with this article.” § 11362.83.
c. Harborside Health Center.
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Harborside Health Center (“Harborside”) is California’s largest medical cannabis
dispensary. It is also one of the most compliant with the Compassionate Use Act and with the
MMPA.
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Harborside’s location, 1840 Embarcadero, Oakland, California, was fully permitted by the
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City of Oakland as a medical cannabis dispensary in 2006 after a competitive process that
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resulted in permits being granted to only four dispensaries citywide. Since Harborside
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commenced operations, it has paid city, state and federal taxes. It has grown to employ at least
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eighty-two individuals, all of whom receive a fair salary and full health benefits, and for whom
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Harborside has paid all payroll taxes. DeAngelo Decl. ¶ 3-4. The federal government has received
Harborside’s tax payments since the dispensary’s inception. Federal government employees have
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toured Harborside’s Oakland dispensary.1 In 2011, Harborside paid approximately $1,081,450 in
taxes to the City of Oakland and was the City’s second largest retail taxpayer. DeAngelo Decl. ¶ 6.
As Landlord admits in its moving papers, all parties to the lease were aware from the
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beginning that the object of the lease was to operate a medical cannabis dispensary at the subject
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property. It was written into the lease itself that the purpose was to operate a medical cannabis
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In 2010, the I.R.S. began an audit of Harborside’s taxes, which is still ongoing.
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dispensary. Harborside has paid its rent monthly and Landlord never voiced any complaints
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about Harborside as a tenant.
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Landlord, Ms. Chretien, was and is a highly sophisticated businesswoman. She had
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seasoned advisors helping her negotiate the lease. DeAngelo Decl. ¶ 7. Her company, ABC
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Security, has offices in both Oakland and Sacramento. Id. The company has a contract to provide
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security services to the Port of Oakland and Oakland International Airport. Id. Ms. Chretien counts
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many local politicians amongst her friends. Id. Contrary to her attorneys’ tortuously-worded
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statement that “at the time the lease was executed, Ms. Chretien understood that the business
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operations of Harborside were consistent with all controlling legal statutes and authorities”
(Motion, 2:23-25), in reality Ms. Chretien knew at all times that being a landlord to a medical
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cannabis dispensary exposed her and her business to legal risks.
Harborside’s CEO, Steve DeAngelo, expressly told Ms. Chretien during the initial lease
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negotiations that Harborside’s operations would not be considered legal by the federal government,
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and expressly reminded her of that on several subsequent occasions. DeAngelo Decl. ¶ 10. Mr. De
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Angelo also told Ms. Chretien during lease negotiations that he felt the rent she was asking for
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was above market, but that he was prepared to pay it, in order to secure a relationship with a
supportive landlord. Ms. Chretien replied that she felt she was taking a risk and should be
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compensated for it. DeAngelo Decl. ¶ 11. Moreover, in 2007, Mr. DeAngelo sent an email to
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Ms. Chretien, discussing federal raids then being conducted against cannabis dispensaries in
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California, and suggesting that Ms. Chretien enlist the support of her friend, Oakland City
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Council member Ignacio De La Fuente, to take action to support and protect Oakland’s cannabis
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dispensaries. DeAngelo Decl. ¶ 12.
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Thus, despite the picture Ms. Chretien seeks to paint of being a naïve, hapless victim in
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CLAIMANT HARBORSIDE’S OPPOSITION TO MOTION FOR ORDER
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this case, the facts show that at all times, she has built her commercial relationship with
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Harborside while being fully aware of the risks. Her hands are thus “unclean” with respect to the
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equitable relief that she seeks.
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d. The Current Forfeiture Action and Landlord’s Motion for Preliminary
Injunction.
The harmony between Landlord and Harborside was interrupted on July 9, 2012, when the
United States, without warning, filed an action seeking civil forfeiture of the subject property.
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(The complaint contained no claim or prayer for injunctive relief.) The action was particularly
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surprising because until then, it appeared that the United States government (and certainly the
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U.S. Attorney for the Northern District of California) had targeted only dispensaries that clearly
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were noncompliant with the Compassionate Use Act and the MMPA, or were in violation of
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some land use regulation such as being too close to a park or a school. However, the forfeiture
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complaint in this action (and the related action against the San Jose property) contained no such
allegations against Harborside—only that there were violations of the federal Controlled
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Substances Act (CSA) taking place on the subject properties. Recognizing the sharp departure
from prior policy, the United States Attorneys’ Office issued the following press release just two
days after filing the actions:
“On Monday, July 9, this office filed civil forfeiture actions against
1840 Embarcadero, Oakland, California, and 2106 Ringwood
Avenue, San Jose, where Harborside, a marijuana dispensary
claiming over 108,000 customers, operates. This office has used its
limited resources to address those marijuana dispensaries that
operate close to schools, parks and playgrounds. As I have said in
the past, this is a non-exclusive list of factors relevant to whether
we should commence civil forfeiture actions against marijuana
properties, and circumstances may require us to address other
situations. I now find the need to consider actions regarding
marijuana superstores such as Harborside. The larger the operation,
the greater the likelihood that there will be abuse of the state’s
medical marijuana laws, and marijuana in the hands of individuals
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who do not have a demonstrated medical need. The filing of the
civil forfeiture complaints against the two Harborside properties is
part of our measured effort to address the proliferation of illegal
marijuana businesses in the Northern District of California.”2
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The Landlord, for her part, now claims that even though the lease openly states
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Harborside would operate a medical cannabis dispensary, she believed until the time the
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forfeiture action was filed “that one could lawfully operate a medical cannabis dispensary in the
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State of California.” Chretien Declaration, ¶ 5. The implication of this statement—that Landlord
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was completely unaware of the CSA or that the federal government considered cannabis to be a
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controlled substance—is highly suspect, is contradicted directly by the evidence disclosed in
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Steve DeAngelo’s declaration, and will be the subject of discovery as the forfeiture action
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proceeds.
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Since being served with the forfeiture, Landlord has had little choice but to buckle to the
will of the United States and to become its fast friend. Landlord “has committed to take all
reasonable measures to cause Harborside to cease dispensing marijuana from my property.”3
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Chretien Declaration, ¶ 12. Landlord’s first response to the forfeiture action was to serve on
Harborside a 3-Day Notice to Quit. This now has been followed by an unlawful detainer lawsuit
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The United States Attorney is squarely wrong in its theory that “the larger the operation the
greater the likelihood that there will be abuse of the State’s medical marijuana laws.”
California’s Fourth District Court of Appeal has recently held that “there is nothing in the MMPA
[California’s Medical Marijuana Program Act] which suggests where such a numerical limit
should be placed and in any event a numerical limit would be somewhat at odds with one of the
express purposes of the MMPA, to wit: enhancing access to medical marijuana.” People v.
Jackson, no. D058988, Cal. App. Fourth Dist., Div. One (Oct. 24, 2012).
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Actually, Ms. Chretien has declined to take several “reasonable measures” within her power,
presumably because taking such measures would run counter to her business interests. For
example, ABC Security also provides security services to Harborside. Since this lawsuit was filed,
ABC has continued to provide security services to Harborside and has continued to accept $6,020
per month payment from Harborside for these services. In addition, Ms. Chretian continues to
accept $2,706 per month from Harborside for use of the parking area at 1840 Embarcadero.
DeAngelo Decl. ¶ 8.
CLAIMANT HARBORSIDE’S OPPOSITION TO MOTION FOR ORDER
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in California Superior Court, County of Alameda. Id. Harborside is vigorously contesting the
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unlawful detainer. As of the date of this Opposition Brief, Judge Emilio Grillo of the Alameda
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Court has taken under submission Harborside’s motion to quash the unlawful detainer action in
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its entirety, on the ground that medical cannabis is legal under California state law.
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The instant Motion for Preliminary Injunction based on the CSA was filed by Landlord on
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November 7, 2012. The motion contained insufficient evidence or explanation regarding the
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“likelihood of irreparable injury” to Landlord should preliminary injunction be denied, and the
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matter simply proceed to trial as it was instituted—as a civil forfeiture case. Neither did it
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contain any analysis of the Supreme Court’s “traditional four factor test” for injunctive relief.
The United States, which has now reciprocated its fast friendship with the Landlord, filed
12
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15
16
17
18
19
a “Notice of Joinder” in the Landlord’s motion the day after the motion itself was filed. The
United States has filed no motion of its own, nor submitted any paperwork other than the onepage Notice.
e. Related Case City of Oakland v. Holder et.al.
Since the San Jose landlord filed its preliminary injunction but before the filing of the
instant motion, the City of Oakland filed the related case of City of Oakland v. Eric Holder, et.al.,
case no. C12-5245 MEJ. The Complaint in that case specifically alleges that Oakland will suffer
20
21
irreparable harm if Harborside were to be shuttered, because “medical patients served [by
22
Harborside] will resort to the black market, creating a public safety hazard for themselves,
23
Oakland, and its residents.” Id. at ¶ 32. “This will increase crime and divert scarce Oakland
24
Police Department resources from addressing violent crime, illegal guns, and other public safety
25
crises that are causing the loss of many lives in Oakland.” Id. at ¶ 33. The City of Oakland case
26
alleges irreparable harm exactly opposite the allegations made by the Landlord in the instant
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motion. Thus, a preliminary injunction would hasten the very harm that the City has gone to
2
Court to prevent, and would essentially render that case moot.
3
III.
4
LANDLORD, AS A PRIVATE PARTY, LACKS STANDING TO ENFORCE
THE CONTROLLED SUBSTANCES ACT.
5
In support of its motion Chretien relies on Supplemental Rule G 7(a) and 21 U.S.C. § 882,
6
7
a portion of the Federal Controlled Substances Act (“CSA”). While section 882 does confer
8
jurisdiction upon U.S. District Courts to hear and grant injunctive relief for violations of the CSA,
9
Chretien fails in her motion to acknowledge that this injunctive power is reserved solely for the
10
11
executive branch, and cannot be invoked by private parties.4 In fact, federal courts that have
examined this issue have overwhelmingly found that private parties lack any standing whatsoever
12
13
14
to enforce the CSA. See Durr v. Strickland, 602 F.3d 788 (6th Cir. 2010) (adopting lower court
ruling that no private right of action exists under the CSA); No. 2:10-cv-288, 2010 WL 1610592
15
(S.D.Ohio April 15, 2010); see also West v. Ray, WL 3825672 (M.D. Tenn 2010); Jones v.
16
Hobbs, 745 F.Supp.2d 886, 890 (E.D. Ark. 2010); McAllister v. Purdue Pharma L.P. 164
17
F.Supp.2d 783, 793 n. 16 (S.D.W.Va 2001).5
18
19
In Ringo v. Lombardi, the U.S. District Court for Western Missouri provided one of the
most in-depth analyses of private rights of action under the CSA. In concluding that the CSA
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4
Even under moving party’s proposed “injury in fact” test for standing, this motion still must be
denied. As the moving papers concede, one prong of “injury in fact” is “that a favorable ruling
on the motion will prevent or redress that imminent injury in fact.” (Motion, 8:9-10.) Moving
party fails to analyze how a favorable ruling would “prevent or redress” any claimed injury to her.
And indeed, this motion would not “prevent or redress” any possible injury to Ms. Chretien in
that the forfeiture action against her could, and presumably would, continue to be prosecuted
against all parties. See infra, § V.b.
5
The U.S. Supreme Court has already determined that the Federal Food, Drugs, and Cosmetics
Act (an act closely analogous to the CSA in its scope purpose and remedies) confers no private
right of action whatsoever, and can only be enforced by the executive branch. See Buckman Co.
v. Plaintiff’s Legal Comm., 531 U.S. 341, 349 (2001).
CLAIMANT HARBORSIDE’S OPPOSITION TO MOTION FOR ORDER
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provided no right of private enforcement, the court stated, in pertinent part, that:
“Consideration of the text of the CSA in its entirety indicates that
Congress did not expressly provide a private right of action and did
not intend to imply a private right of action. When a statute
provides specified remedies, courts must use great caution in
expanding its sweep to add unspecified ones. Alexander v.
Sandoval, 532 U.S. 275, 291, 121 S.Ct. 1511, 149 103 L.Ed.2d 539
(1989). The CSA does provide specified remedies. The CSA gives
the Attorney General power to enforce its provisions … The CSA
does not specify a private remedy for those aggrieved by violations
of the CSA …‘Statutes that focus on the person regulated rather
than the individuals protected create no implication of an intent to
confer rights on a particular class of persons.’ [Id. at 289.] Statutes
which focus on the conduct of the persons who are doing the
regulating – rather than those who are regulated or protected – are
even one step further away from creating rights giving rise to
private rights of action. See id. The CSA focuses on administrative
requirements that must be met by those handling drugs, including
issues such as drug classifications and schedules, 21 U.S.C § 811.
Labeling and packaging, 21 U.S.C. § 825, records and reports 21
U.S.C. § 826, and registration. 21 U.S.C. 823. As discussed above,
it also focuses on the conduct of the Attorney General. The CSA
does not focus on the individuals protected by it.”
Ringo v. Lombardi, 2010 WL 3310240 (W.D. M.O 2010).
16
17
18
In light of these many precedents, the Court should see Claimant’s motion for what it is –
a naked attempt by a private party to enforce the CSA, a power that is left solely to the executive
19
branch. See Jones v. Hobbs, 2010 WL 2985502 (E.D.Ark. 2010) (“to entertain…a cause of
20
action brought by private parties seeking declaration the … CSA has been violated would, in
21
effect evade the intent of congress not to create private rights of action under [the] statute and
22
would circumvent the discretion entrusted to the executive branch in deciding how and when to
23
enforce [the] statutes”).
24
25
In fact, as the Ringo court astutely pointed out “[a]n action based purely on the CSA …
26
that would require Defendants to come into compliance with the CSA … amounts to a private
27
enforcement action not allowed by the statues.” Ringo v. Lombardi, 2010 WL 3310240 (W.D.
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M.O 2010). Here, though Chretien is seeking an injunction rather than a declaratory judgment,
2
because Chretien’s ultimate goal is to require that Harborside remedy alleged violations of the
3
CSA and come into compliance, it is doing nothing more than enforcing the act, regardless of
4
what Claimant chooses to call its enforcement attempt. Chretien’s acts are thus clearly outside of
5
6
7
the enforcement scheme created by congress and cannot be used to support its request for an
injunction.
Moreover, the U.S. Supreme Court has determined that when Congress decides not to
8
9
provide a particular remedy to allegedly aggrieved parties under federal law, then courts are not
10
free to “supplement” that decision in any manner and cannot “engraft” a remedy on to a statute
11
that Congress did not intend to provide. California v. Sierra Club, 451 U.S. 287 – 101 (1981).
12
13
14
Though Supplemental Rule G does allow a court to enjoin alleged criminal activity in forfeiture
actions, the alleged criminal activity in this case (alleged violations of the CSA) is left entirely
15
within the purview of the executive branch to enforce, and thus cannot serve as the basis for
16
Claimant’s request under Rule G. Because of this, Claimant lacks the standing necessary to bring
17
its request for an injunction against Harborside and the court should deny its request in its
18
entirety.6
19
20
21
22
23
24
25
26
6
Either the United States, the Landlord (or both) may attempt to get around the issue of standing
by arguing that, the day after the motion was filed, the United States filed a “Notice of Joinder” in
the Landlord’s motion. Just as with the joinder in the San Jose landlord’s motion, such notice
does not rectify the deficiency of Chretien’s lack of standing. The United States did not file the
Motion for Preliminary Injunction. And by no stretch of logic can the United States “joining” a
failed motion somehow change the motion into a successful one. If the United States, at some
later time, sees fit to file its own request for injunction, that would raise a host of other equitable
considerations that would be addressed by Harborside at the appropriate time. See Liveops, Inc.
v. Teleo, Inc., WL 83058 (N.D. Cal. 2006) at fn. 2 (a joinder merely “adopts the moving papers”
of the party that originally filed the motion).
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2
3
IV.
INJUNCTIONS THAT WOULD ALTER THE STATUS QUO ARE HIGHLY
DISFAVORED.
Both the forfeiture complaint and landlord’s preliminary injunction motion allege that
4
Harborside has been engaging in medical cannabis sales on the subject property since it began to
5
lease the premises in 2006. Thus, this is the status quo ante for purposes of the preliminary
6
injunction motion. Under such circumstances, preliminary injunctions are highly disfavored:
7
8
9
10
11
12
13
14
15
“[B]ecause the basic function of a preliminary injunction is to
preserve the status quo pending a determination of the action on the
merits, Chalk v. U.S. Dist. Court, 840 F.2d 701, 704 (9th Cir.1988),
courts generally require a movant to meet a higher degree of
scrutiny where the movant seeks to alter rather than maintain the
status quo, or where issuance of the injunction will provide the
movant with substantially all of the relief that would be available
after a trial on the merits. See Schwarzer, Tashima & Wagstaffe,
Federal Civil Procedure Before Trial (2007) § 13:78 (citing Tom
Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 33-34 (2nd
Cir.1995)).”
International Church of the Foursquare Gospel v. City of San Leandro,
(N.D. Cal., Oct. 2, 2007, C 07-3605 PJH) 2007 WL 2904046.
Here, injunctive relief is particularly inappropriate in the pending in rem action for civil
16
forfeiture because no party to the case had included such a claim for relief or prayer in any prior
17
18
pleading. Until landlord’s motion was filed, Harborside had been preparing for a trial on the
19
merits of the forfeiture complaint—and such preparation continues. However, issuance of the
20
requested injunction essentially would provide “all of the relief [as against Harborside] that would
21
be available after trial on the merits”. If enjoined from all sales of medical cannabis on the
22
subject property, it would not be financially viable for Harborside to continue as lessee of the
23
premises. Accordingly, under time-honored principles of equity, this Court should refrain from
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issuing the requested injunction, both because it would disrupt the status quo ante and because it
would shortcut the orderly litigation of the civil forfeiture to provide “all of the relief that would
be available after trial on the merits.”
CLAIMANT HARBORSIDE’S OPPOSITION TO MOTION FOR ORDER
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2
V.
MOVING PARTY HAS NOT MET ITS BURDEN OF SHOWING A
LIKELIHOOD OF IRREPARABLE HARM IF NO PRELIMINARY
INJUNCTION ISSUES AND THE CIVIL FORFEITURE CONTINUES TO BE
LITIGATED ON THE MERITS.
3
4
Landlord relies principally on a single case, U.S. v. Oakland Cannabis Buyer’s Co-op, 532
5
6
7
U.S. 483 (2001), in support of its motion for preliminary injunction. However, the parties in
Oakland Cannabis Buyer’s Co-op did not raise, and the Court did not analyze, the issue of what
8
kind of showing of harm the moving party must demonstrate before the Court may issue a
9
preliminary injunction. Nor did Oakland Cannabis Buyer’s Co-op analyze the other equitable
10
11
factors that are prerequisites for injunctive relief in all cases. The holding of Oakland Cannabis
Buyer’s Co-op was extremely narrow: “[W]e hold that medical necessity is not a defense to
12
manufacturing and distributing marijuana.” Id. at 494.
13
14
Subsequent to Oakland Cannabis Buyer’s Co-op, the Supreme Court did address the issue
15
of what showing of “harm” a party moving for a preliminary injunction must make, insofar as it
16
held that a “possibility” of harm standard was too lenient even after the moving party had
17
demonstrated a strong likelihood of prevailing on the merits. Winters v. Natural Resources
18
Defense Council, Inc., 555 U.S. 7, 21-22 (2008). Furthermore, recent Ninth Circuit cases make
19
clear that “simply because a defendant violates a statute that authorizes injunctive relief”, it does
20
not amount to a showing of irreparable harm, and in every case the moving party has an
21
22
affirmative obligation to demonstrate a likelihood of irreparable harm. Such harm is never
23
presumed. Park Village Apt. Tenants Ass’n v. Mortimer Howard Trust, 636 F3d 1150, 1162 (9th
24
Cir. 2011).
25
26
A preliminary injunction is an extraordinary remedy never awarded as of right. Munaf v.
Geren, 553 U.S. 674, 689-690, 128 S.Ct. 2207, 2218–2219 (2008). A plaintiff seeking a
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preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is
2
likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of
3
equities tips in his favor, and [4] that an injunction is in the public interest. Winter v. Natural Res.
4
Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 374 (2008); see Munaf, 553 U.S., at 689-690,
5
6
128 S.Ct., at 2218–2219. In all cases--including those involving violations of statutes--“[i]t is not
7
enough for a court considering a request for injunctive relief to ask whether there is a good reason
8
why an injunction should not issue; rather, a court must determine that an injunction should issue
9
under the traditional four-factor test set out above.” Monsanto Co. v. Geertson Seed Farms, 130
10
11
S. Ct. 2743, 2757 (2010).
12
a. The Moving Party has an Obligation to Show Irreparable Harm. No Such
Harm is Shown. The Motion Must be Denied Unless Harm is Shown.
13
In Winter, the Supreme Court affirmed its “frequently reiterated standard” that requires
14
15
plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence
of an injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, 375,
16
17
18
19
20
21
22
23
(2008). Resolving a conflict among circuits, the Court held that it is never proper for a Court to
issue a preliminary injunction if Plaintiff makes any showing lower than a “likelihood of
irreparable harm.” The Court stated:
“Issuing a preliminary injunction based only on a possibility of
irreparable harm is inconsistent with our characterization of
injunctive relief as an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such
relief.”
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S. Ct.
365, 375-76 (2008)
24
See also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (“[t]o the extent that our
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cases have suggested a lesser standard [than likelihood of irreparable harm], they are no longer
controlling, or even viable.”); Freedom Holdings, Inc. v. Spitzer, 408 F3d 112, 114 (2nd Cir.
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2005) (irreparable injury is “the single most important prerequisite for the issuance of a
2
preliminary injunction”.)
3
Following Winter, the Ninth Circuit has also recently reiterated another basic principle
4
regarding preliminary injunctions: that Courts “’do not presume irreparable harm’ simply because
5
6
a defendant violates a statute that authorizes injunctive relief.” Park Vill. Apartment Tenants
7
Ass'n v. Mortimer Howard Trust, 636 F.3d 1150, 1162 (9th Cir. 2011) cert. denied, 132 S. Ct. 756
8
(U.S. 2011). The Park Village Apartment court overturned a preliminary injunction ordered by
9
the federal district court on the ground “that those seeking injunctive relief, not those opposing
10
that relief, are responsible for showing irreparable injury.” The Court explained:
11
“By examining the legally irrelevant question of whether
Defendants were likely to suffer harm if they were ordered to
execute HAP contracts with the Oakland Housing Authority, the
district court failed to make the essential finding that Plaintiffs are
likely to suffer irreparable harm unless Defendants are ordered to
enter HAP contracts with the Oakland Housing Authority.”
12
13
14
Under the standards of Winter and progeny, Landlord has not even gotten past the starting
15
16
line with respect to its request for preliminary injunction. No theory has been articulated as to
17
how denial of an injunction would present a “likelihood of irreparable harm” to the Landlord.
18
Ms. Chretien claims in her declaration that until the United States filed its forfeiture suit,
19
Landlord “believed that a business such as Harborside could lawfully operate a cannabis
20
21
dispensary in the State of California.” 7 Chretien Decl., ¶ 5. Landlord claims that since learning
22
that Harborside’s activity at the Property violates federal law, she “has committed to take all
23
reasonable measures to cause Harborside to cease dispensing marijuana from my property.”
24
Chretien Decl., ¶ 12. In the abstract, this stated goal could appear worthy. However, it does not
25
satisfy Landlord’s burden of showing a “likelihood of irreparable injury”. This is especially so
26
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Harborside intends to take vigorous discovery in the forfeiture action regarding this improbable
claim by Landlord.
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given the fact that Landlord admits she always had knew Harborside would use the Property
2
solely to dispense medical cannabis. No truly “irreparable harm” has been alleged or is borne out
3
by analyzing the evidence. Thus, in addition to standing and other procedural issues, there are no
4
“equities” that could justify issuing a preliminary injunction.
5
b. Landlord’s Attempted Showing of “Irreparable Harm” is Entirely
Illusory and Causally Unrelated to the Injunction She Seeks.
6
7
8
Moving party attempts to argue that she is suffering “irreparable harm” because “if the
Government successfully obtains a forfeiture, the harm to Ms. Chretien is irreparable.” (Motion,
9
10
9:19-20.) The strained, grammatically incorrect wording8 of this statement demonstrates that the
11
supposed “harm” is illusory: There is no harm being suffered that an injunction would even begin
12
to address.
13
14
15
Wright & Miller explain: “Perhaps the single most important prerequisite for the issuance
of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to
suffer irreparable harm before a decision on the merits can be rendered.” Wright & Miller, §
16
2948.1 Grounds for Granting or Denying a Preliminary Injunction—Irreparable Harm, 11A Fed.
17
18
Prac. & Proc. Civ. § 2948.1 (2d ed.). Ms. Chretien does not satisfy this prerequisite. She argues
19
only that she might suffer harm if forced to attend a trial on the merits of the case. This is not
20
sufficient as a matter of law. If a trial on the merits can be conducted before the claimed injury
21
would occur there is no basis for interlocutory relief. RoDa Drilling Co. v. Siegal, 552 F.3d 1203,
22
1210 (10th Cir. 2009); Matos v. Clinton School Dist., 367 F.3d 68, 74 (1st Cir. 2004).
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8
To be grammatically correct, the sentence should be in the subjunctive (“would be
irreparable”). This distinction actually is an important one. It points to a concerted effort on the
part of Ms. Chretien’s attorneys to obscure the fact that Ms. Chretien is not suffering any
irreparable injury presently. Neither could she suffer any “irreparable injury” until after a future
trial in the forfeiture action which may (or may not) result in a judgment against her. In any
event, the sentence is also logically incorrect.
CLAIMANT HARBORSIDE’S OPPOSITION TO MOTION FOR ORDER
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2
3
4
5
6
7
After Winter, “plaintiffs must establish that irreparable harm is likely, not just possible, in
order to obtain a preliminary injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir.2011). Moving party cannot meet this standard. There simply is no
proximate causal connection shown between the injunctive relief being sought and the supposed
“irreparable harm” because if the requested injunction is denied, the only result will be that the
case will proceed to a trial on the merits.9 On this ground, Claimant’s motion is both logically
and legally unsound, and the Court must deny the relief requested.
8
VI.
9
10
11
THE BALANCE OF EQUITIES WEIGHS AGAINST A PRELIMINARY
INJUNCTION.
In each preliminary injunction case, courts “must balance the competing claims of injury
and must consider the effect on each party of the granting or withholding of the requested relief.”
12
13
14
Amoco Production Co., 480 U.S., at 542, 107 S.Ct. 1396. “In exercising their sound discretion,
courts of equity should pay particular regard for the public consequences in employing the
15
extraordinary remedy of injunction.” Romero–Barcelo, 456 U.S., at 312, 102 S.Ct. 1798; see also
16
Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643 (1941).
17
18
Because Landlord has not made any showing pertinent to the “likelihood of irreparable
injury”, it should not be necessary to address the remaining factors of the “traditional four-part
19
test” for injunctive relief. Nevertheless, Harborside has made a compelling (albeit abbreviated)
20
21
22
23
24
25
26
showing that if an injunction were issued, serious economic injury would be sustained because
each of its eighty-two (82) employees would be laid off and their salaries (including full medical
9
Conversely, there is no showing that if the requested injunction were granted, the Government
would drop its forfeiture case as a quid pro quo. Under the law, the Government certainly still
could prosecute a forfeiture action against both landlord and tenant even if the alleged controlled
substance violation has ceased. United States v. Land and Bldg. at 2 Burditt Street, Everett,
Mass., 924 F.2d 383 (1st Cir. 1991).
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benefits) would be lost. DeAngelo Decl., ¶ 5. This is not like the Apple v. Samsung case, where
2
the most grievous harm Samsung could suffer would be that it would be enjoined from selling
3
several products in a well-diversified product line. In contrast, one of Harborside’s reasons for
4
existence (which was disclosed openly to Landlord) has always been to dispense medical
5
6
7
8
9
10
11
cannabis, pursuant to the will of California voters as expressed in the California Compassionate
Use Act and California Senate Bill 420.
Additionally, the City of Oakland would suffer serious injury if Harborside were forced
by this motion to cease operations. Harborside is the City of Oakland’s second-largest retail
taxpayer and it paid approximately $1,081,450 in taxes to the City last year. DeAngelo Decl., ¶ 6.
Moreover, the Complaint in the related case of City of Oakland v. Eric Holder, et.al., case no.
12
13
14
C12-5245 MEJ, specifically alleges that Oakland will suffer irreparable harm if Harborside were
to be shuttered, because “medical patients served [by Harborside] will resort to the black market,
15
creating a public safety hazard for themselves, Oakland, and its residents.” Id. at ¶ 32. “This will
16
increase crime and divert scarce Oakland Police Department resources from addressing violent
17
crime, illegal guns, and other public safety crises that are causing the loss of many lives in
18
19
Oakland.” Id. at ¶ 33. In the face of the City of Oakland’s powerful allegations of irreparable
hardship that would occur in the opposite direction, this Court certainly has ample justification to
20
21
deny a preliminary injunction that would hasten the very harm that the City has gone to Court to
22
prevent. Both this case and the City of Oakland case should proceed to trial on the merits. That
23
is the only equitable result given the strong competing allegations of irreparable harm.
24
25
26
Thus, the hardship that would be suffered as a result of an injunction is formidable. Due
to the paucity of evidence submitted by the moving party, Harborside has not gone to great
lengths to compile a tilting-at-windmills-type evidentiary presentation of its own. However,
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should the Court be inclined to fully “balance of hardships” involved in issuing an injunction,
2
Harborside would request an evidentiary hearing at a future date, following further briefing by all
3
parties.
4
VII.
5
6
7
THE PUBLIC INTEREST WEIGHS HEAVILY AGAINST PRELIMINARY
INJUNCTION IN THAT CALIFORNIANS HAVE EXPRESSED THEIR WILL
TO MAINTAIN ACCESS TO LEGAL MEDICAL CANNABIS.
The final Winter prerequisite for preliminary injunctive relief is that the injunction must
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be in “the public interest”. Here, the moving party blithely states that “in light of the
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Government’s assertion that Harborside is violating 21 U.S.C. § 841(a), the public interest in
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halting the alleged sale of controlled substances is compelling.” (Motion, 9:25-27.) This
statement does not withstand scrutiny, in view of the fact that this case is not a criminal
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prosecution. In fact, by passing Proposition 215, the California voting public has spoken that its
“public interest” is enhancing access to medical cannabis within California. See MMPA, Stats.
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2003, ch. 875, § 1, subd. (b). Granting the requested injunctive relief would serve only to frustrate
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the will of the People of California. This is an additional powerful reason to deny the requested
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preliminary injunction.
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VIII. OAKLAND CANNABIS BUYER’S PROVIDES NO PRECEDENT, NOR ANY
JUSTIFICATION, FOR TRANSFORMING AN IN REM CIVIL FORFEITURE
INTO AN ACTION FOR INJUNCTION.
In its moving papers, Landlord attempts to liken this case to Oakland Cannabis Buyer’s
Co-op on the ground that in both “criminal enforcement of the CSA is certainly an alternative
means of ensuring compliance with the statute.” Motion, 6:26-27. However, to Defendant’s
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knowledge, the CSA injunctive provision has never been employed before in a civil forfeiture
action, and this is not a use contemplated by Congress. Moreover, Landlord’s comparison
disguises a crucial, yet obvious distinction between Oakland Cannabis Buyer’s Co-op and this
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case that strongly militates against issuance of the requested injunction here.
Oakland Cannabis Buyer’s Co-op, from the day it was filed, was always an action by the
United States “seeking to enjoin the Cooperative from distributing and manufacturing marijuana.”
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Oakland Cannabis Buyer’s Co-op, supra, 121 S.Ct. at 1715. Therefore, after the Supreme Court
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had issued its decision and [District Court] Judge Breyer was in a position to rule on the United
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States’ motion for permanent injunction, the District Court’s only options were 1) issuing the
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injunction; 2) declining to issue the injunction on the basis that the United States should file
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criminal charges against the Defendant dispensaries instead; or 3) not enforcing the CSA at all.
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U.S. v. Cannabis Cultivator's Club (N.D. Cal., June 10, 2002, C 98-00085 CRB) 2002 WL
1310460. Option 3 (non-enforcement of the CSA) was not acceptable to Judge Breyer. (“This
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Court cannot decline to issue the injunction in favor of non-enforcement of the statute.”)
Moreover, at least one defendant conceded that they preferred that the District Court proceed with
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the injunction rather than criminal prosecution. Id. Thus, the District Court had no viable
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alternative to issuing the requested injunction.
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Here, in sharp contrast, this Court's "Option 4" is simply to proceed with the property
forfeiture—which was of course the type of action the United States chose to file in the first
place. If the forfeiture action proceeds to trial and the Government prevails against Harborside, it
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would have the identical effect of enforcing the CSA, with respect to the subject property, that
that an injunction would have. Furthermore, the forfeiture context allows the Court to consider a
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different set of procedures, safeguards and equitable standards, including, as just one example, the
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effect of the Eighth Amendment Excessive Fines Clause after balancing the “gravity of the harm”
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posed by the Defendant. See United States v. Ferro, 681 F.3d 1105, 1115 – 1118 (9th Cir. 2012).
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The Court should therefore deny this motion and thereby retain the status quo pending orderly
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adjudication of the forfeiture action. This would be consistent with the principles of Oakland
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Cannabis Buyer’s Co-op, but would also give due consideration to the unique procedural context
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of this forfeiture case.
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MOVING PARTY’S UNCLEAN HANDS WITH RESPECT TO THE
CONDUCT AT ISSUE ABSOLUTELY PRECLUDES EQUITABLE,
INJUNCTIVE RELIEF.
The unclean hands doctrine derives from the equitable maxim that “he who comes into
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equity must come with clean hands.” Precision Inst. Mfg. Co. v. Automotive Maintenance Mach.
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Co., 324 U.S. 806, 814, 65 S.Ct. 993, 997 (1945). This maxim “closes the doors of a court of
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equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks
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relief, however improper may have been the behavior of the defendant.” Ibid. In applying the
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doctrine, “[w]hat is material is not that the plaintiff's hands are dirty, but that he dirtied them in
acquiring the right he now asserts, or that the manner of dirtying renders inequitable the assertion
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of such rights against the defendants.” Republic Molding Corp. v. B.W. Photo Utilities, 319 F.2d
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347, 349 (9th Cir.1963). Thus, equity requires that those seeking its protection shall have acted
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fairly and without fraud or deceit as to the controversy in issue. Ellenburg v. Brockway, Inc., 763
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F.2d 1091, 1097 (9th Cir. 1985). Here, based on the evidence, it is doubtful whether the moving
party has approached this Court with the requisite “clean hands” in relation to the subject matter
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of the lawsuit. Under such circumstances, it would be drastically premature to grant the
equitable, injunctive relief that she seeks.
Contrary to Ms. Chretien’s deftly-worded declaration, she has known since the time she
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first entered into lease negotiations with Harborside that its cannabis-related activities were
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considered illegal by the U.S. Government. DeAngelo Decl. ¶¶ 7-14. She dealt with Harborside
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from the beginning, fully cognizant of the risks, yet believing them to be outweighed by the
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potential benefits to her business. Id., ¶ 14. The evidence reflects the following:
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Mr. DeAngelo expressly told Ms. Chretien during initial lease negotiations
In 2006 that Harborside’s operations would not be considered legal by the
federal government, and he expressly reminded her of that on several subsequent
occasions;
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During lease negotiations Mr. DeAngelo expressed that the rent Ms. Chretien
was asking for the property was above market. Ms. Chretien replied that she
felt she was taking a risk and should be compensated for it.
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In 2007, Mr. DeAngelo sent an email to Ms. Chretien, discussing federal raids
then being conducted against cannabis dispensaries in California, and suggesting
that Ms. Chretien enlist the support of her friend, Oakland City Council member
Ignacio De La Fuente, to take action to support and protect Oakland’s cannabis
dispensaries.
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In discussions Ms. Chretien has had with Mr. De Angelo since the forfeiture action
was commenced, she never expressed surprise that the federal government still
considered cannabis to be illegal, or that the government had taken legal action
against the property.
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Contrary to Ms. Chretien’s sworn statement that since learning of the forfeiture
action, she “[has] been committed to taking all reasonable measures to cause
Harborside to cease dispensing marijuana from [her] property”, Since this lawsuit
was filed, her company has continued to provide security services to Harborside and
has continued to accept $6,020 per month payment from Harborside for these
services. In addition, Ms. Chretian continues to accept $2,706 per month from
Harborside for use of the parking area at 1840 Embarcadero.
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Thus, it is abundantly clear that if the Government’s forfeiture case against Harborside’s
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leasehold interest has merit (which Harborside vigorously denies), it has just as much merit
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against Ms. Chretien’s property interest as well. Ms. Chretien’s relationship with Harborside has
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at all times been maintained with her knowledge both that Harborside was operating a cannabis
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dispensary on the property and that the federal government considered this to be illegal. Her eyes
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were fully open, yet focused on a profit motive. To this day, Ms. Chretien continues to accept
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money and thus profit from the very activity she seeks to enjoin. Under these facts, it would be
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severely inequitable and unjust for this sophisticated landlord to push the entire blame onto its
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tenant, despite her own sullied hands.
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X.
CONCLUSION
For all of the foregoing reasons, Claimant Harborside Health Center requests that the
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Court deny the instant motion for preliminary injunction in favor of permitting this civil forfeiture
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case to be decided on the merits. In the alternative, if moving party (in its reply papers or
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otherwise) makes an evidentiary showing regarding the equitable factors pertinent to an
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injunction decision, Harborside would request that a new briefing schedule and new hearing date
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be assigned so that there is fair opportunity for Harborside to rebut the evidence.
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Dated: November 20, 2012
HENRY G. WYKOWSKI & ASSOCIATES
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By:
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CLAIMANT HARBORSIDE’S OPPOSITION TO MOTION FOR ORDER
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/s/ Henry G. Wykowski
HENRY G. WYKOWSKI
Attorneys for Claimant
PATIENTS MUTUAL ASSISTANCE
COLLECTIVE dba HARBORSIDE
HEALTH CENTER
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CERTIFICATE OF SERVICE
I certify that copies of the above document was served electronically on November 20,
2012 on counsel of record in compliance with Federal Rule of Civil Procedure 5 and the local
rules of the Northern District, by use of the Court’s ECF system.
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/s/ Henry G. Wykowski
Henry G. Wykowski
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