The laws regarding medical marijuana dispensaries are more complicated than ever. Our law office only represents landlords in the evictions of illegal marijuana dispensaries. Although the compassionate use act of 1996 made medical marijuana legal in the state of California, the California Supreme Court unanimously ruled that local governments have the power to ban medical marijuana dispensaries from operating in their city.
What does the ban on marijuana dispensaries mean for Landlords?
The Supreme Court of California’s ruling that municipalities can ban marijuana dispensaries has many serious implications for landlords who are renting their property to dispensaries.
Some of the possible consequences of renting to a medical marijuana dispensary can include the following:
- Fines and administrative penalties
- Civil forfeiture actions
- Criminal charges
- Civil lawsuits from other neighboring businesses under nuisance statutes.
Why is it important to hire an attorney that handles eviction of medical marijuana dispensaries?
Regardless of the fact that many local cities have banned marijuana. The operators or owners of the marijuana dispensaries still generally retain their right to stay in the landlord's premises unless a court order, judgment, and sheriff removes them from the property.
Often times the landlord is even forced by the city to evict the dispensary or else face steep fines or even criminal charges.
Without an eviction proceeding it is usually impossible to remove the dispensaries from your property because the dispensaries are well funded, have an existing client base, and often times retain their own attorneys who fight relentlessly to keep them in business.
Our approach to successfully evicting medical and non-medical marijuana dispensaries.
The first step evicting a dispensary is to have a properly drafted three-day notice to quit that adequately describes the violation that constitutes a nuisance and have it served upon the tenant.
As discussed previously in other posts, it is best if a registered process server or Marshall serves the notice to the tenant, or tenant’s attorney cannot contest service of the 3 day notice.
After service of the three day notice expires, and the tenant is still in possession of the property, our office files an unlawful detainer.
Unfortunately but most importantly, a landlord cannot accept rent after service of the three day notice or unlawful detainer. If a landlord does so and the tenant or their attorney proves the landlord or authorized agent accepted rent past the 3 day notice or unlawful detainer the tenant's attorney can usually successfully argue that the landlord gave up their right to evict the tenant based upon their collection of rent. In law, this is called a waiver.
After we file an unlawful detainer we have it served by a registered process server or sheriff. Most importantly, we have the process server or martial serve what is called a prejudgment claim of right to possession. Service of the prejudgment claim of right makes sure that the tenant can not move in people that were not named in the eviction lawsuit to file a document with the court claiming that they deserve a trial. Basically, once this document is served it ensures that all occupants including the people that may volunteer or work at the dispensary are evicted without any further hearing.
What happens after service of the eviction lawsuit on the dispensary?
Generally, dispensaries make a large income and often hire an attorney to defend them from the eviction. This puts you as a landlord in a precarious position as you are not allowed to accept rent during the entire period of the eviction or risk losing the lawsuit.
The tenant's attorneys are often criminal defense lawyers who have found a profitable niche in defending their same clients from eviction.
The tenant’s attorney will often file what is called what is called a Motion to Quash. A motion to quash is a legal document that challenges the jurisdiction of the court. A court without jurisdiction has NO power to enter a judgment for eviction. The usual grounds for filing such a motion are that the tenant was not properly served. This often used tactic delays the eviction proceeding and often times requires us to bring the sheriff or process server to testify that they actually served the tenant validly.
If the tenant files such a motion and wins the whole process must be started again. In most circumstances, the judge rules the tenant was served and orders the tenant to respond to the eviction lawsuit.
What happens after the dispensary is ordered to respond?
The goal of the dispensary is to stay open as long as possible. Generally, the first responsive document filed after a motion to quash is what is called a demurrer. A demurrer is a legal document that does NOT bring up facts but challenges the sufficiency of the eviction lawsuit. The tenant’s attorney looks for nearly any discrepancy in the lawsuit and often files a motion with the court to have the lawsuit thrown out. Once such a motion is filed it must be opposed.
If the eviction lawsuit is properly drafted and the allegations within it are not subject to this delay tactic the judge will overrule the motion and order the dispensary to respond within a 5 to 10 day period depending on notice requirements.
What does discovery mean in a marijuana eviction?
During the period the dispensary files a demurrer or answer they are entitled to propound discovery on the landlord.
Typical discovery devices are:
- Requests for admissions
- Requests for production of documents
- Request for genuineness of documents
- Form interrogatories
- Special Interrogatories
- Request for Site Inspections
Discovery must be answered or you risk losing the ability to evict the dispensary and also possibly being sanctioned by the judge monetarily or even worse having the judge throw out your case.
In an eviction proceeding, all of these things can be done on 5 days notice. That means that our office must be in constant contact with you to make sure that all forms of discovery are answered or objected to timely. Evictions in California for things like nuisances such as medical marijuana are often the hardest evictions to deal with. Illegal use must be proven by a preponderance of the evidence at trial. If you fail to prove your case you lose costing you valuable time and money.
What happens when the dispensary answers the eviction lawsuit?
According to law, once the dispensary tenant answers the eviction lawsuit, the trial must be held within 20 days of our office's request. Unfortunately, due to budget cuts within the court system, the trials can be delayed. ALso, rarely tenants attorneys request continuances that are granted.
Once trial is set, our office gets notice of the date in the mail and we inform and prepare witness and exhibit lists in order to succeed.
What if the dispensary demands a jury trial?
A jury trial is a right under the California Constitution. If the tenant demands a jury trial on factual issues our office will need to prepare jury instructions, motions to exclude or pre admit evidence, verdict forms, exhibit binders, and possibly demonstrative evidence.
Although judges decide what law goes to the jury, the jury decides facts of the case. If there are no courtrooms for a jury trial your trial date will be delayed or continued. Nevertheless, it is of utmost importance to understand how evicting a medical marijuana dispensary can be done and how the process works.
In conclusion, our office has handled countless evictions for nuisance such as marijuana. If you have an illegal medical marijuana dispensary operating in your building you must act fast. The dispensaries are well funded and the quicker you act, the more likely you are to avoid any problems with local, state, or federal governmental agencies.
Please contact our office today for a consult on how to evict your dispensary tenant.
Please note that we only work for landlords in the eviction of marijuana dispensaries. We do not help tenants.
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