Filed 6/28/13; pub. order 7/25/13 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                             DIVISION THREE


ROSCOE LITTLEFIELD et al.,
         Plaintiffs and Appellants,
                                                          A135628
v.
COUNTY OF HUMBOLDT,                                       (Humboldt County
                                                          Super. Ct. No. DR090888)
         Defendant and Respondent.


         Sheriff‟s deputies seized and destroyed approximately 1,500 pounds of marijuana
under cultivation in a remote area of Humboldt County (the County). Plaintiffs Roscoe,
Sylvia, Richard, Timothy and Jeffery Littlefield, each of whom has a written physician‟s
recommendation for up to two ounces of marijuana per day, sued the County for
conversion and violation of their constitutional and statutory rights to be free from
unreasonable search and seizure and deprivation of property without due process. On
cross-motions for summary judgment, the trial court found the deputies had probable
cause for the seizure, that the County lawfully destroyed the cannabis, and that plaintiffs
failed to proffer admissible evidence that their possession was lawful. It accordingly
granted the County‟s motion and denied plaintiffs‟ motion. We agree, and affirm.
                                              BACKGROUND
         The facts are largely undisputed. Humboldt County Sheriff‟s deputies, assisted
by CAMP (Campaign Against Marijuana Planting) agents, conducted open field
marijuana eradication operations in a remote area of Humboldt County. Following aerial
surveillance, deputies and CAMP agents entered a garden that contained 118 marijuana


                                                      1
plants ranging from three to eight feet tall with an average diameter of six to seven feet.
The flowering plants were heavily laden with buds. A loaded rifle with an attached 50
round “banana clip” was found in a small tent inside the garden.
       Four medical marijuana recommendations written by Dr. Norman Bensky, for
Sylvia Littlefield, Timothy Littlefield, Roscoe Littlefield, and Jeffrey Libertini, were
posted on the front gate and inside the garden. The recommendations for Sylvia,
Timothy and Roscoe Littlefield indicated the use of up to two ounces of cannabis per day,
the equivalent of 45.6 pounds per year. The recommendation for Libertini was not issued
by Dr. Bensky, and did not identify a dose or the ailment or symptoms to be treated with
cannabis. Sylvia‟s recommendation specified it was for degenerative joint disease and
glaucoma, Roscoe‟s specified degenerative joint disease and low back pain, and
Timothy‟s specified low back pain and anxiety.
       A well-worn footpath led from the site to a second plot on the Littlefield property,
where deputies located an additional 96 flowering marijuana plants from three to eight
feet tall and averaging four to six feet wide. Medical marijuana recommendations for
Richard Littlefield and Summer Brown, each of which indicated up to two ounces daily
for degenerative joint disease and low back pain, were posted in this garden. Deputies
observed a number of other marijuana plots on the Littlefield property, but left them
undisturbed.
       Timothy Littlefield arrived during the search and told Deputy Fulton that the
medical recommendations allowed each of the posted users to possess 45.6 pounds of
marijuana per year. Deputy Fulton provided this information by radio to Sergeant Wayne
Hanson, who responded that he believed the recommendations were invalid and the
marijuana should be seized.
       Hanson determined that the aggregated canopies of both gardens clearly exceeded
the 100 square foot canopy per person limitation determined to be reasonable under
County guidelines for medical marijuana prosecutions. The total canopy of the two
gardens was approximately 5,862 square feet, or 977 square feet of canopy per person,
nearly 10 times more than the 100 square foot canopy considered reasonable under the


                                              2
guidelines. The combined weight of the marijuana in both fields was approximately
1,508 pounds.1
       Officers removed a 10-pound bulk cannabis sample and five subsamples. The
remaining cannabis was removed from the two plots and destroyed pursuant to Health
and Safety Code section 11479.2 Deputy Cyrus Silva executed an affidavit on
information and belief that the destruction complied with section 11479. It states: “The
Sheriff of Humboldt County has determined that it is not reasonably possible to preserve
the marijuana in place or at another location. This determination was based on the fact
that Humboldt County does not have adequate storage facilities, or sufficient personnel to
guard the marijuana. In addition, recently harvested marijuana gives off great volumes of
heat and may erupt into fire. [¶] On 9:30, 2008, all of the marijuana [in] excess of ten
pounds was destroyed. The remaining marijuana is retained by the Humboldt County
Sheriff‟s Office at Eureka, California.”
       No arrests or criminal charges resulted from the raid, but the Littlefields sued the
County for damages for, among other things, the replacement value of the confiscated
cannabis, physical and mental suffering, emotional distress, and medical expenses.
Plaintiffs estimate its replacement value between $683,724 and $1,367,448.
       Plaintiffs and the County filed cross-motions for summary judgment. Following
briefing and argument, the trial court issued an 12-page ruling granting the County‟s
motion and denying appellants‟. The court identified the critical question as “whether the
officers engaged in the marijuana eradication operation possessed, at the time the
marijuana here was seized, „facts as would lead a man of ordinary caution or prudence to
believe, and conscientiously entertain a strong suspicion of the guilt of the accused.‟ ”
The probable cause inquiry, the court observed, “must include the officer‟s consideration
of the individual‟s status as a qualified medical marijuana patient.” The court concluded


       1
        This is approximately 24,128 ounces per person, or enough of a supply for two
ounces of cannabis daily for six people for five and one-half years.
      2
        All further statutory references are to the Health and Safety Code unless
otherwise indicated.

                                             3
that, despite the posted medical marijuana recommendations, “[t]he amounts possessed
were of such a quantity to lead a person of ordinary caution or prudence to believe, and
conscientiously entertain a strong suspicion of the guilt of the accused. The amounts
possessed were so well beyond the standards promulgated by state and local authorities to
lead a reasonable person to believe that the marijuana was possessed for unlawful
purposes.”
       The court rejected appellants‟ contention that the presentation of a medical
marijuana recommendation immunizes a user from its seizure by law enforcement.
“While plaintiffs assert that the mere presentation of a medical marijuana
recommendation immunizes a qualified user from arrest, seizure or prosecution,
independent of the quantity, the case law has not quite caught up with such an
unequivocal assertion. The First District in People v. Strasburg (2007) 148 Cal.App.4th
1052 . . . states: „the status of [a] qualified patient does not confer an immunity from
arrest. Law enforcement officers may arrest a qualified patient for marijuana offenses
where they have probable cause, based on all of the surrounding facts including qualified
patient status, when they have reason to believe, for instance, that the arrestee does not
possess marijuana for his personal medical purposes.‟ ”
       The court also rejected plaintiffs‟ claim that they lawfully possessed the seized
cannabis. “The reasonably possessed amount must be based upon the patients‟ current
medical needs as determined by the trier of fact,” but plaintiffs had not offered the
opinion of a qualified medical expert to show the amount of cannabis seized was
reasonably related to their medical needs. Instead, plaintiffs had submitted testimony
from Jason Browne, an expert in the areas of medical cannabis quantification, value, and
reasonable usage, that the quantity of cannabis taken from the Littlefields‟ property was
“reasonable and within the limits of the parties‟ medical cannabis recommendations.”
The court found that while Browne could testify generally about the needs of average
users, he lacked the expertise to render a medical opinion as to plaintiffs‟ specific needs.
Plaintiffs‟ medical marijuana recommendations were also insufficient to establish that the
amount of marijuana was reasonable because they were hearsay for that purpose.


                                              4
Therefore, the court noted, “the lack of such qualified medical testimony in a case
involving such substantial quantities of marijuana leaves a gaping hole in plaintiffs‟
case.” Plaintiffs‟ conversion claim failed because the seizure and destruction of the
marijuana were lawful and because plaintiffs failed to produce evidence that their
possession was lawful.
       Based on its findings, the court found it unnecessary to address plaintiffs‟
additional constitutional and equitable claim, denied plaintiffs‟ summary judgment
motion, and granted summary judgment for the County. Plaintiffs timely appealed.
                                       DISCUSSION
                           A. Summary Judgment Standards
       “ „To secure summary judgment, a moving defendant may prove an affirmative
defense, disprove at least one essential element of the plaintiff‟s cause of action
[citations] or show that an element of the cause of action cannot be established
[citations]. [Citation.] The defendant “must show that under no possible hypothesis
within the reasonable purview of the allegations of the complaint is there a material
question of fact which requires examination by trial.” [Citation.] [¶] „The moving
defendant bears the burden of proving the absence of any triable issue of material fact,
even though the burden of proof as to a particular issue may be on the plaintiff at trial.
[Citation.] . . . Once the moving party has met its burden, the opposing party bears the
burden of presenting evidence that there is any triable issue of fact as to any essential
element of a cause of action.‟ ” (Ochoa v. Pacific Gas & Electric Co. (1998) 61
Cal.App.4th 1480, 1485.)
       “In reviewing the propriety of a summary judgment, the appellate court must
resolve all doubts in favor of the party opposing the judgment. [Citation.] The reviewing
court conducts a de novo examination to see whether there are any genuine issues of
material fact or whether the moving party is entitled to summary judgment as a matter of
law. ” (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 703-704.) “We accept as
true the facts alleged in the evidence of the party opposing summary judgment and the
reasonable inferences that can be drawn from them. [Citation.] However, to defeat the


                                              5
motion for summary judgment, the plaintiff must show „ “specific facts,” ‟ and cannot
rely upon the allegations of the pleadings. ” (Horn v. Cushman & Wakefield Western,
Inc. (1999) 72 Cal.App.4th 798, 805.)
                  B. The Seizure Was Supported by Probable Cause
                         1. The Limits of Marijuana Legalization
       Over 15 years ago in People v. Trippet (1997) 56 Cal.App.4th 1532, Division Two
of this district declined a criminal defendant‟s invitation to interpret California‟s medical
marijuana statutes “as a sort of „open sesame‟ regarding the possession, transportation
and sale of marijuana in this state.” (Id. at p. 1546.) We will do the same. To explain
why, we revisit the interface between the Compassionate Use Act (CUA) and Medical
Marijuana Program (MMP), which together enable the use and possession of medically
indicated marijuana, and laws of considerably longer standing that more generally control
the seizure and destruction of contraband.
       In People v. Kelly (2010) 47 Cal.4th 1008, 1012-1013, our Supreme Court
explained: “In 1996, the California electorate approved Proposition 215 and adopted the
CUA, which provides: „Section 11357, relating to the possession of marijuana, and
Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a
patient‟s primary caregiver, who possesses or cultivates marijuana for the personal
medical purposes of the patient upon the written or oral recommendation or approval of a
physician. [Citation.] By this and related provisions, the CUA provides an affirmative
defense to prosecution for the crimes of possession and cultivation. [Citations.] The
CUA does not grant immunity from arrest for those crimes, however. So long as the
authorities have probable cause to believe that possession or cultivation has occurred, law
enforcement officers may arrest a person for either crime regardless of the arrestee‟s
having a physician‟s recommendation or approval. [Citation.] [¶] Nor does the CUA
specify an amount of marijuana that a patient may possess or cultivate; it states instead
that the marijuana possessed or cultivated must be for the patient‟s „personal medical
purposes.‟ [Citation.] An early decision construed this provision of the CUA as
establishing „that the quantity possessed by the patient or the primary caregiver, and the


                                              6
form and manner in which it is possessed, should be reasonably related to the patient’s
current medical needs.” (Ibid., fn. omitted; see also People v. Mower (2002) 28 Cal.4th
457, 467.)
       In 2003 the Legislature enacted the MMP (§ 11362.7 et seq.) “ „to [c]larify the
scope of the application of the [CUA] and facilitate the prompt identification of qualified
patients and their designated primary caregivers in order to avoid unnecessary arrest and
prosecution of these individuals and provide needed guidance to law enforcement
officers.‟ ” (People v. Kelly, supra, 47 Cal.4th at p. 1014, italics omitted.) Kelly
invalidated the MMP‟s restrictions on the quantity of medical marijuana that may legally
be possessed as an unconstitutional legislative amendment to a voter enacted initiative,
but left its collateral provisions in place. (Id. at pp. 1043, 1046-1049.) Therefore, as the
trial court in this case observed, in the post-Kelly world we are once again left with the
“reasonable amount” standard that controlled before the Legislature enacted the MMP.
Fortunately, we are not without guidance on its meaning and application.
       People v. Trippet, supra, 56 Cal.App.4th 1532, cited with approval in People v.
Kelly, supra, 47 Cal.4th at p. 1043, fn. 60 and 1047, sheds some light on the topic. The
court said: “[W]e are not remotely suggesting that, even with a physician‟s
„recommendation or approval,‟ a patient may possess an unlimited quantity of marijuana.
The ballot arguments of the proponents . . . are simply inconsistent with the proposition
that either the patient or the primary caregiver may accumulate indefinite quantities of the
drug. The statute certainly does not mean, for example, that a person who claims an
occasional problem with arthritis may stockpile 100 pounds of marijuana just in case it
suddenly gets cold. The rule should be that the quantity possessed by the patient or the
primary caregiver, and the form and manner in which it is possessed, should be
reasonably related to the patient‟s current medical needs. What precisely are the
„patient‟s current medical needs‟ must, of course, remain a factual question to be
determined by the trier of fact. One (but not necessarily the only) type of evidence
relevant to such a determination would be the recommending or approving physician‟s



                                              7
opinion regarding the frequency and amount of dosage the patient needs.” (Trippet,
supra, at p. 1549.)
       Ten years later, after Mower but before Kelly, City of Garden Grove v. Superior
Court (2007) 157 Cal.App.4th 355, 363, 388-389 held that Garden Grove was required to
return less than a third of an ounce of lawfully possessed marijuana to the user from
whom it had been seized. The analysis primarily concerned the interplay of state and
federal law, but the Fourth District recognized, as in Trippet, that the CUA does not
establish a right to possess unlimited amounts of marijuana. The court distinguished its
earlier ruling in Chavez v. Superior Court (2004) 123 Cal.App.4th 104, as follows. “In
[Chavez], the police seized over 10 pounds of marijuana and 46 marijuana plants from
the defendant, but charges against him were dismissed in the furtherance of justice
because he was already serving time on another case. [Citation.] The defendant sought
the return of a „reasonable amount‟ of marijuana for medicinal purposes, but it was
clear—based on the amount of marijuana he had—he was not a qualified user under the
CUA. [Citation.] That being the case, he was not in lawful possession of the marijuana
for purposes of section 11473.5, and therefore the marijuana had to be destroyed.
[Citation.] In so holding, this court also noted that nothing in the CUA „requires, or
authorizes, the . . . return [of] confiscated marijuana.‟ [Citation.] However, even if it did,
it would not have helped the defendant in Chavez because, given the amount of marijuana
found in his possession, he was not entitled to the CUA‟s protections in the first place.”
(Garden Grove, supra, at pp. 387-388.) The Garden Grove court had no trouble
distinguishing the small amount seized from the petitioner there with the unlawful (at
least under the post-MMP, pre-Kelly scheme) quantity seized in Chavez.
                                        2. Application
       Here, the trial court distilled from these cases “[t]he principle . . . that while a
reasonable amount is a flexible standard based upon the individual user, it is not without
reasonable limits that include consideration of quantity.” We agree. “[T]he status of
qualified patient does not confer an immunity from arrest. Law enforcement officers may
arrest a qualified patient for marijuana offenses where they have probable cause, based on


                                               8
all of the surrounding facts including qualified patient status, when they have reason to
believe, for instance, that the arrestee does not possess marijuana for his personal medical
purposes.” (People v. Strasburg, supra, 148 Cal.App.4th at p. 1058; see Giannis v. City
and County of San Francisco (1978) 78 Cal.App.3d 219, 225 [probable cause is properly
decided on summary judgment].)
       The most salient fact here is the vast quantity of marijuana found growing on the
Littlefields‟ property. Even Browne, plaintiffs‟ medical marijuana expert, tacitly
acknowledged that quantity can be considered in distinguishing between lawful and
unlawful possession when he stated that “dispensaries generally do not provide „pounds‟
of cannabis to their members at any given time . . . as it could rightly be perceived as
diversion into the criminal market.‟ ” On the undisputed facts, the trial court reasonably
found that “[t]he amounts possessed were of such a quantity to lead a person of ordinary
caution or prudence to believe, and conscientiously entertain a strong suspicion of the
guilt of the accused. The amounts possessed were so well beyond the standards
promulgated by state and local authorities to lead a reasonable person to believe that the
marijuana was possessed for unlawful purposes.”
       There is no merit in plaintiffs‟ contention that any reasonable suspicion of
unlawful possession the officers may have initially harbored was necessarily vitiated
when they found the medical recommendations. The CUA protects the possession of
marijuana only in an amount reasonably related to the user‟s current medical needs.
(People v. Kelly, 47 Cal.4th at p. 1043.) To this end, when a user has a written
recommendation from a physician, the Attorney General‟s 2008 Guidelines for the
Security and Non-Diversion of Marijuana Grown for Medical Use (Guidelines) direct
that police officers “should use their sound professional judgment to assess the validity of
the person‟s medical-use claim” based on the totality of the circumstances, including the
quantity of marijuana present and the presence of weapons.3


       3
      We grant plaintiffs‟ motion for judicial notice of the Guidelines and various
Humboldt County ordinances.

                                              9
       Here, the sheer quantity of marijuana under cultivation could lead a reasonably
prudent officer to conclude that plaintiffs‟ production far exceeded their medical needs.
“Probable cause is a flexible commonsense standard. It merely requires that the facts
available to the officer would warrant a man of reasonable caution to believe that certain
items may be contraband. It does not require a showing that such a belief be correct or
more likely true than false. A „ “practical, nontechnical” ‟ probability that incriminating
evidence is involved is all that is required.” (People v. Holt (1989) 212 Cal.App.3d 1200,
1204.) Dr. Bensky‟s recommendations supplied further reason for skepticism. Each
purports to authorize the use of up to two ounces per person per day, or 45.6 pounds of
cannabis per person per year—15 times the three pounds per year deemed reasonable
under the County‟s Ordinance.4 Officers could also reasonably question the likelihood
that all five of Dr. Bensky‟s patients, including four members of the Littlefield family,
suffered from degenerative bone disease and/or low back pain. We are not surprised that
Sergeant Hansen doubted the validity of Dr. Bensky‟s recommendations.
       It is not entirely clear from plaintiffs‟ briefs whether they also claim the search and
seizure were illegal because the deputies did not obtain a warrant. If they do, they are
wrong. The officers‟ entry onto the property was consistent with the “open fields”
doctrine set forth in Oliver v. United States (1984) 466 U.S. 170, 176-179. “ „[T]he
special protection accorded by the Fourth Amendment to the people in their “persons,
houses, papers, and effects,” is not extended to the open fields. The distinction between
the latter and the house is as old as the common law.‟ ” (Id. at p. 176, quoting Hester v.
United States (1924) 265 U.S. 57, 59, Holmes, J.)

       4
         Plaintiffs argue the County‟s Ordinance is unconstitutional for the reasons
articulated in People v. Kelly, supra, 47 Cal.4th 1008, to the extent it sets limits on the
amount of medical marijuana that may be legally possessed. They are precluded from
raising this claim on appeal because they did not do so in their complaint or in the
summary judgment proceedings. In any event, their claim, regardless of whatever merits
it may or may not have, has no bearing on the question of probable cause. “An arrest
made in good faith reliance on an ordinance (even though) subsequently declared to be
unconstitutional is made with probable cause and is valid.” (In re Hector R. (1984) 152
Cal.App.3d 1146, 1152; Michigan v. DeFillippo (1979) 443 U.S. 31, 37-38.)

                                             10
       We agree with the trial court that the County‟s undisputed evidence established
that the officers had probable cause, based on the amount of marijuana under cultivation
and plaintiffs‟ extremely generous medical marijuana recommendations, to believe the
seized marijuana was unlawfully possessed.
              C. The County Lawfully Destroyed the Seized Marijuana
       Plaintiffs contend the County unlawfully converted their property and violated
their constitutional and statutory property rights when it destroyed the seized marijuana.
Here, too, we disagree.
       Section 11479 addresses the destruction of controlled substances without court
order, as follows: “Notwithstanding Sections 11473 and 11473.5, at any time after
seizure by a law enforcement agency of a suspected controlled substance, that amount in
excess of 10 pounds in gross weight may be destroyed without a court order” provided
the agency satisfies specified requirements. (§ 11479 subds. (a)-(d).)5 Among those
requirements are that the agency make a determination that it is not reasonably possible
to preserve the suspected controlled substance in place, or to relocate it to another

       5
         Those requirements are: “(a) At least five random and representative samples
have been taken, for evidentiary purposes, from the total amount of suspected controlled
substances to be destroyed. These samples shall be in addition to the 10 pounds required
above. When the suspected controlled substance consists of growing or harvested
marijuana plants, at least one 10 pound sample (which may include stalks, branches, or
leaves) and five representative samples consisting of leaves or buds shall be retained for
evidentiary purposes from the total amount of suspected controlled substances to be
destroyed. [¶] (b) Photographs have been taken which reasonably demonstrate the total
amount of the suspected controlled substance to be destroyed. [¶] (c) The gross weight of
the suspected controlled substance has been determined, either by actually weighing the
suspected controlled substance or by estimating that weight after dimensional
measurement of the total suspected controlled substance. [¶] (d) The chief of the law
enforcement agency has determined that it is not reasonably possible to preserve the
suspected controlled substance in place, or to remove the suspected controlled substance
to another location. In making this determination, the difficulty of transporting and
storing the suspected controlled substance to another site and the storage facilities may be
taken into consideration.” The following and last paragraph requires a law enforcement
agency that destroys suspected contraband pursuant to section 11479 to file an affidavit
describing its compliance with subdivisions (a) through (d) and other specified
information.

                                             11
location (§ 11479, subd. (d).) In addition, the agency must file an affidavit within 30
days after destroying the seized substance reciting the required information “together
with information establishing the location of the suspected controlled substance” and the
date and time of its destruction. (§ 11479, subd. (d).)
        Here, plaintiffs complain the sheriff‟s department did not make the determination
required by section 11479, subdivision (d). Plaintiffs are incorrect. The day after the
raid, Deputy Cyrus Silva filed an affidavit stating “The Sheriff of Humboldt County has
determined that it is not reasonably possible to preserve the marijuana in place or at
another location. This determination was based on the fact that Humboldt County does
not have adequate storage facilities, or sufficient personnel to guard the marijuana. In
addition, recently harvested marijuana gives off great volume of heat and may erupt into
fire.” The affidavit satisfied the statutory requirement.
        Plaintiffs‟ complaint that Deputy Silva‟s affidavit was not file-stamped is
immaterial as Silva‟s declaration was the second page of a two-page document filed, and
file-stamped, on October 8, 2008. Plaintiffs assert the County failed to produce the
affidavit in response to a 2010 discovery request,6 but they did not move to exclude it on
that basis and so cannot now object that the court considered it. (Code Civ. Proc., § 437c,
subd. (b)(5).) To the extent plaintiffs suggest the sheriff‟s department fabricated the
Silva affidavit, citing both the County‟s failure to produce it in discovery and purported
“stylistic differences” between the Silva and Fulton affidavits, we, like the trial court,
find their suspicions far too speculative to approach a genuine and material question of
fact.
        Plaintiffs do, however, correctly observe that the deputies‟ affidavits fail to specify
where the marijuana was seized and the precise date and time of its destruction, as called
for in the last paragraph of section 11479. No matter. Section 11479, subdivision (d)
requires that the law enforcement agency‟s affidavit provide “information establishing

        6
         The County says that was due to a clerical copying error, but provides no factual
support for that explanation. It proffered the Silva declaration with its opposition to
Plaintiffs‟ summary judgment motion.

                                              12
the location of the suspected controlled substance, and specifying the date and time of the
destruction.” Here, there is no question about where the marijuana was seized, and
Silva‟s affidavit shows that it was destroyed before 11:00 the morning after the raid.
There could be no possible prejudice from the lack of more detailed or precise
information. Nor is there any question but that the Department followed all of the
procedures required as a precursor to destroying the suspected contraband. (See § 11479,
subds. (a)-(d).) The County‟s compliance with section 11479 was sufficient. (See
People v. Eckstrom (1986) 187 Cal.App.3d 323, 335 [substantial compliance required];
People v. Superior Court (Calamaras) (1986) 181 Cal.App.3d 901, 905 [substantial
compliance]; see also People v. Wilson (1987) 191 Cal.App.3d 161 [requiring strict
compliance, but finding standard satisfied because police photographs of plants were
comparable to samples of growing plants].)
      D. Plaintiffs Failed to Proffer Admissible Evidence of Lawful Possession
       A plaintiff moving for summary judgment is required to “prove[] each element of
the cause of action entitling the party to judgment on that cause of action. Once the
plaintiff or cross-complainant has met that burden, the burden shifts to the defendant . . .
to show that a triable issue of one or more material facts exists as to that cause of action
. . . .” (Code Civ. Proc., § 437(c)(p)(1).) Here, plaintiffs contend that they satisfied their
burden by proving they lawfully possessed the seized marijuana, and that the trial court
erred when it found that they failed to proffer sufficient competent evidence of such
lawful possession. Not so.
       The court explained its ruling as follows: “Under the Compassionate Use Act . . . ,
the amount of marijuana possessed must be „reasonably related to the patient‟s current
medical needs.‟ (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549.) Conspicuously
absent in the evidence adduced for the cross-motions for summary judgment/adjudication
is any opinion by a qualified medical expert as to the amount of marijuana that the
[plaintiffs] require for treatment of their ailments. There is nothing in the Declaration of
plaintiffs‟ expert Jason Browne establishing that he possesses the requisite expertise to
render a medical opinion as to the specific needs of the plaintiffs.” The court considered


                                              13
Dr. Bensky‟s written medical marijuana recommendations for their effect on a reasonable
officer assessing the existence of probable cause, but excluded their use as hearsay to
prove legal possession.
       The ruling is sound. “What precisely are the „patient‟s current medical needs‟
must, of course, remain a factual question to be determined by the trier of fact.” (People
v. Trippet, supra, 56 Cal.App.4th at p. 1549.) Plaintiffs failed to adduce competent
evidence of their medical needs or the quantity of marijuana reasonably needed for their
treatment. Jason Browne apparently has considerable experience in the field of medical
cannabis cultivation, use, and advocacy, but he is not qualified to give an expert opinion
as to plaintiffs‟ medical conditions and medical needs. “ „[T]he qualifications of an
expert must be related to the particular subject upon which he is giving expert testimony.‟
[Citations.] Consequently, „the field of expertise must be carefully distinguished and
limited‟ [citation], and „[q]ualifications on related subject matter are insufficient.‟ ”
(Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1115; see also
Hayman v. Block (1986) 176 Cal.App.3d 629, 642-644 [trial court must consider
competency of evidence presented on summary judgment].) As the court observed, the
lack of competent medical evidence that the quantity of marijuana was reasonably related
to plaintiffs‟ current needs “leaves a gaping hole in plaintiffs‟ case.” Neither their status
as qualified patients nor Dr. Bensky‟s written recommendations sufficed to fill that gap.
       Plaintiffs‟ failure to proffer competent evidence showing they had a legal right to
possess the seized marijuana was fatal to their common law, statutory and constitutional
claims for interference with their property rights. (See Burlesci v. Petersen (1998) 68
Cal.App.4th 1062, 1065 [conversion]; cf. County of Butte v. Superior Court (2009) 175
Cal.App.4th 729, 734, see id. at pp. 744-745 (dis. opn. of Morrison, J.)[basis for
conversion and related property claims if plaintiff can show legal right to possession];
People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 286 [due process].)
Accordingly, the trial court properly denied plaintiffs‟ motion for summary judgment and
entered summary judgment in favor of the County.



                                              14
                                 DISPOSITION
     The judgment is affirmed.

                                          _________________________
                                          Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Jenkins, J.




                                     15
Filed 7/25/13
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION THREE


ROSCOE LITTLEFIELD et al.,                        A135628
        Plaintiffs and Appellants,
                                                  (Humboldt County
v.                                                Super. Ct. No. DR090888)
COUNTY OF HUMBOLDT,
                                                 ORDER CERTIFYING OPINION
        Defendant and Respondent.                FOR PUBLICATION


THE COURT:

       The opinion in the above-entitled matter filed on June 28, 2013, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.




Date:                                    ____________________________ P. J.




                                            1
Trial Court:                                     Humboldt County Superior Court


Trial Judge:                                     Hon. Christopher G. Wilson


Counsel for Plaintiffs and Appellants:           Karen Diane Olson
     Roscoe Littlefield, et. al.
                                                 Donna Bader


Counsel for Defendant and Respondent:            William Forrest Mitchell
     County of Humboldt                          MITCHELL BRISSO DELANEY &
                                                 VRIEZE




Littlefield v. County of Humboldt, A135628




                                             2
