SAN CLEMENTE – A woman born with cerebral palsy, epilepsy and blindness has sued Dana Point attempting to stop the city from closing a medical marijuana dispensary that her attorney and family say has been her lifeline for several months.
After Malinda Traudt, 29, of San Clemente, got osteoporosis in the last two years her pain could not be managed with medication, but using marijuana brought her dramatic relief, her attorney Jeff Schwartz says.
“Although numerous lawsuits have been filed by dispensaries, Malinda’s is the first by a patient alleging that the (city’s) ban unconstitutionally interferes with her fundamental rights to life and safety, under the California Constitution,” Schwartz said in a news release.
Her doctors had told the family to look into a hospice when Traudt turned to marijuana, said Schwartz.
Traudt’s mother pushes her wheelchair to the Beach Cities Collective in Dana Point to obtain her “life-saving medicine,” he said.
Dana Point in March sued six medical marijuana dispensaries in town to shut them down saying they’re operating illegally because the establishments are not permitted under the city’s municipal code.
If the dispensary where Traudt gets marijuana is closed, his client will not be able to get the medicine she needs anywhere in Orange County, Schwartz said.
So, Traudt is asking in the suit filed in Orange County Superior Court on Tuesday that Dana Point’s ban and efforts to shut down the collective be declared unconstitutional, and more broadly that the city’s efforts to shut down all the dispensaries be declared as such. Traudt is also seeking a permanent injunction preventing the city from attempting to shut down the collective.
A Superior Court judge issued a ruling last week allowing Lake Forest to shut down all medical marijuana dispensaries. Judge David Chaffee’s ruling is in response to lawsuits filed by Lake Forest seeking a preliminary injunction to stop dispensaries from operating. The city argued the dispensaries violate zoning laws.
“When a dispensary challenges a ban, the city simply has to show that the ban serves a legitimate purpose, such as reducing crime, loitering, or traffic. Cities always win that battle,” Schwartz said in the release. “However, when a city interferes with a person’s fundamental, constitutional rights, it must prove that the ban serves a compelling public interest and is narrowly-tailored to avoid interfering with other civil rights. And, the city almost always loses.”
City representatives could not immediately be reached for comment.
In a telephone interview, Schwartz said that marijuana made his client’s pain manageable without any side effects and her quality of life improved significantly.
“She takes no pain medication now other than the medical marijuana,” he said. “She was nearing the end.”
The California Compassionate Use Act, also known as Proposition 215, which was approved by voters in 1996, allows for the use of marijuana for medicinal purposes.
Patients can legally use marijuana with permission from doctors under that law. However, federal law still forbids marijuana possession in most cases, which officials and lawyers say creates conflicts.
Traudt’s suit is “Based on the Compassionate Use Act but also based on the California Constitution, which grants everyone the right to life and safety,” her attorney said. “In Malinda’s case life requires medicine and the city of Dana Point is interfering with that … When the government is interfering or attempting to interfere, all of that gives us standing.”
At her home in San Clemente on Wednesday, Shelly White fed her daughter peanut butter balls made with hash butter and coated with chocolate when she complained of pain.
White said she lives in fear that the dispensary that is helping her child will be shut down.
“I have lost more sleep worrying about whether or not I am going to get my (daughter’s) medicine,” she said, “wondering in the morning ‘is today the last day when we will have peanut butter balls, is today when my dispensary will close down?’ “
She has no idea what she will do if the dispensary is shut down because it is clear to her that her daughter has been helped by taking marijuana for about the last six months, White said.
“I guess I’ll have to buy it from the drug dealers,” she said. “For 30 years I have been her advocate and I am not going to stop now.”
Traudt was born with cerebral palsy, epilepsy, total blindness, and severe cognitive delays.
“She is the face of the (Compassionate Use Act). If I could put her picture on the billboard, that’s what I’d do,” attorney Schwartz said.
“She has been in a wheelchair her entire life. Recently, she was diagnosed with severe osteoporosis, a degenerative bone disease. Malinda’s doctor gave her pain medication but, within hours, her kidneys began shutting down, her lungs filled with fluid causing pneumonia, she developed a high fever, and vomited for three straight days. Malinda’s physician recommended that her mother contact hospice to arrange for Malinda’s final hours,” the release said.
Attorney Jacek Lentz, who represents Beach Cities Collective in its separate battle to keep business and client records that Dana Point has been trying to obtain from the dispensaries before earlier this year filing suits to shut them down, said Traudt’s suit is timely.
“I welcome the development,” he said. “It’s about time that the patients took control of the situation rather than allowing the city to just run roughshod over their rights. Patients who really care for safe access to their rights to medicine need to take charge of the situation and seek redress … Ultimately it is not about anybody making money.”
By VIK JOLLY