No.

: G048303
IN THE
<!tourt of ppeaI
ST A TE OF CALIFORNIA DEC 0 3 2013
FOURTH APPELLATE DISTRICT
DMSION THREE Oep.styCJelk
MARTIN MODIANO, an individual; HELAINE JONES,
an individual; KEVIN BUTCHER, an individual; MARLA
JAMES, an individual; and PATIENT MED-AID,
a non-profit group of patients associated together under
Ca. Health & Safety Code 11362.775,
Plain tiffs/ Appellants.,
vs.
CITY OF ANAHEIM, a California municipal corporation;
TOM TAIT, in his capacity as Mayor of Anaheim; HENRY W.
STERN) in his capacity as City Treasurer of Anaheim,
Defendants/Respondents.
Hon. David Chaffee, Judge
Superior Court of Orange County
Judgment entered March 14,2013
No.30-2012-00601853-CU-CR-CJC
APPELLANTS' SECOND MOTION
FOR JUDICIAL NOTICE
Matthew Pappas, SBN: 171860
Lee Durst, SBN: 69704
22762 Aspan Street, #202-107
Lake Forest, CA 92630
Telephone: (949) 382-1486
Facsimile: (949) 242-2605

REQUEST FOR JUDICIAL NOTICE

Appellants hereby move this Court for an order taking judicial notice of:
ITEM #1
Item 1, California Assembly Bill 2279, 2007-2008 Legislative Session,
meets all the requirements for judicial notice by an appellate court. (See Ca. Ev.
Code 459; Ca. Rule of Court 8.252(a).) It is properly the subject of judicial
notice because it is an official Act of the Legislative branch of the government of
California and as such is one of the official acts of the legislative, executive,
and judicial departments of the United States and of any state of the United
States under Ev. Code 452(c). Although the referenced bill was vetoed by
the governor, who is the executive branch of the state government, it remains an
official Act on the records of the legislative department. It is also properly the
1. California Assembly Bill 2279, Feb. 21, 2008 as amended
April 21, 2008, Introduced by Assemblyman Mark Leno,
An act to amend Section 11362.785 of, and to add Section
11362.787 to, the Health and Safety Code, relating to
medical marijuana;

2.
Bill History, California Assembly Bill 2279, 2007-2008
Legislative Session;

3.
Bill Status, California Assembly Bill 2279, 2007-2008
Legislative Session;
4.
Bill Analysis, California Assembly Bill 2279, 2007-2008
Legislative Session.

subject of judicial notice under Ca. Ev. Code 451(a) because it is the
decisional, constitutional, and public statutory law of this state and of the
United States and the provisions of any charter described in Section 3, 4, or 5 of
Article XI of the California Constitution. It meets the relevance requirements
in Rule 8.252(a)(2)(A) because it shows the branch of the state government that
represents the People of the State of California voted and approved a law
providing employment discrimination protection for medical cannabis patients.
It further shows disagreement by the Legislature with the decision in Ross v.
Raging Wire Telecommunications (2008) 70 Cal.Rptr.3d 382, 42 Cal.4th 920, 174
P.3d 200. Item 1 is included as Exhibit 1 with this Motion pursuant Rule
8.252(a)(3).
ITEM #2
Item 2 is a true and correct copy of the official bill history from the
California Legislature website for AB 2279 from the 2007-2008 legislative
session. This document meets all the requirements for judicial notice by an
appellate court. (See Ca. Ev. Code 459; Ca. Rule of Court 8.252(a).) It is
properly the subject of judicial notice under Ca. Ev. Code 451(a) because it is
the history of decisional, constitutional, and public statutory law of this state
and of the United States and the provisions of any charter described in Section
3, 4, or 5 of Article XI of the California Constitution. The California
legislature is the legislative department of the state government and the subject

item also meets the requirements of Ca. Ev. Code 452. The Bill History item
meets the relevance requirements in Rule 8.252(a)(2)(A) because it shows AB
2279 was passed by both houses of the California Legislature. The document is
included as Exhibit 2 with this motion. (See Ca. Rule of Court 8.252(a)(3); Rule
8.486(c)(1).)
ITEM #3
Item 3 is a true and correct copy of the official Bill Status for AB 2279
from the 2007-2008 legislative session as provided on the California Legislature
website. This document meets all the requirements for judicial notice by an
appellate court. (See Ca. Ev. Code 459; Ca. Rule of Court 8.252(a).) It is
properly the subject of judicial notice under Ca. Ev. Code 451(a) because it is
the history of decisional, constitutional, and public statutory law of this state
and of the United States and the provisions of any charter described in Section
3, 4, or 5 of Article XI of the California Constitution. The California
legislature is the legislative department of the state government and the subject
item also meets the requirements of Ca. Ev. Code 452 because it is an official
report of the California Legislature. The Bill Status item meets the relevance
requirements in Rule 8.252(a)(2)(A) because it shows AB 2279 was passed by
both houses of the California Legislature. The Bill Status is further relevant
because it shows the reason for veto by the Governor was that, Employment
protection was not a goal of the initiative as passed by the People in 1996.

While employment protection may not have been a goal, the voters specifically
and repeatedly referred to seriously ill and disabled Californians in the same
1996 voter-passed initiative. The Bill Status comments by the Governor further
show the Disabled Persons Act and Unruh Act section 51(f) are different than
and not the subject of the Ross, supra, case. The document is included as
Exhibit 3 with this motion. (See Ca. Rule of Court 8.252(a)(3); Rule
8.486(c)(1).)
ITEM #4
Item 4 is a true and correct copy of the official Bill Analysis for AB 2279
from the 2007-2008 legislative session as provided on the California Legislature
website. This document meets all the requirements for judicial notice by an
appellate court. (See Ca. Ev. Code 459; Ca. Rule of Court 8.252(a).) It is
properly the subject of judicial notice under Ca. Ev. Code 451(a) because it is
the history of decisional, constitutional, and public statutory law of this state
and of the United States and the provisions of any charter described in Section
3, 4, or 5 of Article XI of the California Constitution. The California
legislature is the legislative department of the state government and the subject
item also meets the requirements of Ca. Ev. Code 452 because it is an official
report of the California Legislature. The Bill Analysis item meets the relevance
requirements in Rule 8.252(a)(2)(A) because it reports the California Supreme
Court decision in Ross, supra, provided, Nothing in the text or history of the

Compassionate Use Act suggests the voters intended the measure to address the
respective rights and duties of employers and employees and that Ross did not
address the clear intent of the People to provide for seriously ill and disabled
Californians as set forth in the plain language of the voter-passed initiative. The
document is included as Exhibit 4 with this motion. (See Ca. Rule of Court
8.252(a)(3); Rule 8.486(c)(1).)
CONCLUSION
For the foregoing reasons, Appellants hereby request that the Court
grant their motion requesting judicial notice of the four (4) aforementioned
items.
Respectfully submitted on December 3, 2013:


_________________________________
Matthew Pappas, SBN: 171860

EXHIBIT 1

AMENDED IN ASSEMBLY APRIL 21, 2008
AMENDED IN ASSEMBLY APRIL 14, 2008
AMENDED IN ASSEMBLY APRIL 2, 2008
california legislature200708 regular session
ASSEMBLY BILL No. 2279
Introduced by Assembly Member Leno
(Coauthors: Assembly Members Berg, Hancock, and Saldana)
February 21, 2008
An act to amend Section 11362.785 of, and to add Section 11362.787
to, the Health and Safety Code, relating to medical marijuana.
legislative counsel

s digest
AB 2279, as amended, Leno. Medical marijuana: qualied patients
and primary caregivers: employment discrimination.
Existing law, the Compassionate Use Act of 1996, provides that a
patient or a patients primary caregiver who possesses or cultivates
marijuana for personal medical purposes of the patient upon the written
or oral recommendation or approval of a physician is not subject to
conviction for offenses relating to possession and cultivation of
marijuana.
Existing law requires the State Department of Public Health to
establish and maintain a voluntary program for the issuance of
identication cards to patients qualied to use marijuana for their
personal medical purposes, and to their primary caregivers, if any.
Existing law states, however, that these provisions do not require any
accommodation of any medical use of marijuana on the property or
premises of any place of employment or during the hours of
employment.
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This bill, notwithstanding existing law, would declare it unlawful for
an employer to discriminate against a person in hiring, termination, or
any term or condition of employment or otherwise penalize a person,
if the discrimination is based upon the persons status as a qualied
patient or primary caregiver, or a positive drug test for marijuana,
except as specied. The bill would authorize a person who has suffered
discrimination in violation of the bill to institute and prosecute a civil
action for damages, injunctive relief, and any other appropriate equitable
relief, as specied. The bill would provide that it would not prohibit an
employer from terminating the employment of, or taking other corrective
action against, a person who is impaired on the property or premises of
the place of employment, or during the hours of employment, because
of the medical use of marijuana.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
The people of the State of California do enact as follows:
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SECTION 1. Section 11362.785 of the Health and Safety Code
is amended to read:
11362.785. (a)Nothing in this article shall require any
accommodation of any medical use of marijuana on the property
or premises of any place of employment or during the hours of
employment, except as provided in Section 11362.787, or on the
property or premises of any jail, correctional facility, or other type
of penal institution in which prisoners reside or persons under
arrest are detained.
(b)Notwithstanding subdivision (a), a person shall not be
prohibited or prevented from obtaining and submitting the written
information and documentation necessary to apply for an
identication card on the basis that the person is incarcerated in a
jail, correctional facility, or other penal institution in which
prisoners reside or persons under arrest are detained.
(c)Nothing in this article shall prohibit a jail, correctional
facility, or other penal institution in which prisoners reside or
persons under arrest are detained, from permitting a prisoner or a
person under arrest who has an identication card, to use marijuana
for medical purposes under circumstances that will not endanger
the health or safety of other prisoners or the security of the facility.
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2 AB 2279
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(d)Nothing in this article shall require a governmental, private,
or any other health insurance provider or health care service plan
to be liable for any claim for reimbursement for the medical use
of marijuana.
SEC. 2. Section 11362.787 is added to the Health and Safety
Code, to read:
11362.787. (a)Notwithstanding subdivision (a) of Section
11362.785, and except as provided in subdivision (c), it is unlawful
for an employer to discriminate against a person in hiring,
termination, or any term or condition of employment or otherwise
penalize a person, if the discrimination is based upon either of the
following:
(1)The persons status as a qualied patient or a designated
primary caregiver.
(2)The persons positive drug test for marijuana, provided the
person is a qualied patient and the medical use of marijuana, as
dened in Section 11362.7, does not occur on the property or
premises of the place of employment or during the hours of
employment, as required by Section 11362.785.
(b)A person who has suffered discrimination in violation of
subdivision (a) may institute and prosecute in his or her own name
and on his or her own behalf a civil action for damages, injunctive
relief, and any other appropriate equitable relief to protect the
peaceable exercise of the right or rights secured.
(c)(1)Paragraph (2) of subdivision (a) shall not apply when
an employer employs a person in a safety-sensitive position.
(2) For purposes of this section, a safety-sensitive position
means a position in law enforcement, as dened in subdivision (d)
of Section 13951 of the Government Code, or a position in which
means a position in which medical cannabis-affected performance
could clearly endanger the health and safety of others. A
safety-sensitive position shall have all of the following general
characteristics:
(A)Its duties involve a greater than normal level of trust,
responsibility for, or impact on the health and safety of others.
(B)Errors in judgment, inattentiveness, or diminished
coordination, dexterity, or composure while performing its duties
could clearly result in mistakes that would endanger the health and
safety of others.
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AB 2279 3
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(C)An employee in a position of this nature works
independently, or performs tasks of a nature that it cannot safely
be assumed that mistakes like those described in subparagraph (B)
could be prevented by a supervisor or another employee.
(3)Safety-sensitive position also includes a position that
involves the performance of a safety-sensitive function, as
described in Section 655.4 of Title 49 of the Code of Federal
Regulations, and a position in law enforcement, as dened in
subdivision (d) of Section 13951 of the Government Code.
(d)Nothing in this section shall prohibit an employer from
terminating the employment of, or taking other corrective action
against, a person who is impaired on the property or premises of
the place of employment or during the hours of employment,
because of the medical use of marijuana.
O
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4 AB 2279

EXHIBIT 2

AB2279Medicalmarijuana:qualifiedpatientsandprimarycaregivers:employmentdiscrimination. (20072008)
Date Action
09/30/08 VetoedbyGovernor.
09/18/08 EnrolledandtotheGovernorat11a.m.
08/29/08 Senateamendmentsconcurredin.Toenrollment.(Ayes41.Noes34.Page7031.)
08/29/08 InAssembly.ConcurrenceinSenateamendmentspending.
08/20/08 Readthirdtime,passed,andtoAssembly.(Ayes21.Noes15.Page5184.)
07/02/08 Readsecondtime,amended,andtothirdreading.
07/01/08 Fromcommittee:Amend,anddopassasamended.(Ayes3.Noes2.).
06/05/08 ReferredtoCom.onJUD.
05/29/08 InSenate.Readfirsttime.ToCom.onRLS.forassignment.
05/28/08 Readthirdtime,passed,andtoSenate.(Ayes41.Noes35.Page5450.)
05/19/08 (Ayes42.Noes29.Page5216.)
05/19/08 Actionrescindedandrecordexpungedwherebythebillwasreadthirdtimeandwherebyafinalrollcallvotewastaken.
04/28/08 Readsecondtime.Tothirdreading.
04/24/08 Withdrawnfromcommittee.Orderedplacedonsecondreadingfile.
04/22/08 RereferredtoCom.onAPPR.
04/21/08 Readsecondtimeandamended.
04/17/08 Fromcommittee:Amend,dopassasamended,andrerefertoCom.onAPPR.(Ayes6.Noes2.)(April17).
04/15/08 RereferredtoCom.onL.&E.
04/14/08 Readsecondtimeandamended.
04/10/08 Fromcommittee:Amend,dopassasamended,andrerefertoCom.onL.&E.(Ayes6.Noes3.)(April8).
04/03/08 RereferredtoCom.onJUD.
04/02/08 Fromcommitteechair,withauthor'samendments:Amend,andrerefertoCom.onJUD.Readsecondtimeandamended.
04/01/08 Incommittee:Hearingpostponedbycommittee.
03/05/08 ReferredtoComs.onJUD.andL.&E.
02/22/08 Fromprinter.MaybeheardincommitteeMarch23.
02/21/08 Readfirsttime.Toprint.

EXHIBIT 3

Measure:
LeadAuthors:
PrincipalCoauthors:
Coauthors:
Topic:
31stDayinPrint:
Title:
HouseLocation:
EnrolledDate:
LastAmendedDate:
AB2279Medicalmarijuana:qualifiedpatientsandprimarycaregivers:employmentdiscrimination. (20072008)
Senate: 1st Cmt 2nd 3rd Pass
Assembly: 1st Cmt 2nd Cmt 2nd Cmt 2nd 3rd Pass Pass Veto
BillStatus
AB2279
Leno(A)

Berg(A),Hancock(A),Saldana(A)
Medicalmarijuana:qualifiedpatientsandprimarycaregivers:employmentdiscrimination.
03/23/08
AnacttoamendSection11362.785of,andtoaddSection11362.787to,theHealthandSafetyCode,relatingto
medicalmarijuana.
Assembly
09/08/08
07/02/08
TypeofMeasure
InactiveBillVetoed
MajorityVoteRequired
NonAppropriation
NonFiscalCommittee
NonStateMandatedLocalProgram
NonUrgency
NonTaxlevy
Last5HistoryActions
Date Action
09/30/08 VetoedbyGovernor.
09/18/08 EnrolledandtotheGovernorat11a.m.
08/29/08 Senateamendmentsconcurredin.Toenrollment.(Ayes41.Noes34.Page7031.)
08/29/08 InAssembly.ConcurrenceinSenateamendmentspending.
08/20/08 Readthirdtime,passed,andtoAssembly.(Ayes21.Noes15.Page5184.)
Governor'sVetoMessage
TotheMembersoftheCaliforniaStateAssembly:
IamreturningAssemblyBill2279withoutmysignature.
Thisbillattemptstoshieldqualifiedmedicalmarijuanapatientsemployedinnonsafetysensitivepositionsfromemploymentdiscrimination.
However,Iamconcernedwithinterferenceinemploymentdecisionsastheyrelatetomarijuanause.Employmentprotectionwasnotagoal
oftheinitiativeaspassedbyvotersin1996.
Forthesereasons,Iamreturningthisbillwithoutmysignature.
Sincerely,
ArnoldSchwarzenegger

EXHIBIT 4

BILL ANALYSIS
AB 2279
Page 1
ASSEMBLY THIRD READING
AB 2279 (Leno)
As Amended April 21, 2008
Majority vote
JUDICIARY 6-3 LABOR AND EMPLOYMENT
6-2

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|Ayes:|Jones, Evans, Feuer, |Ayes:|Swanson, DeSaulnier, |
| |Laird, Levine, Lieber | |Fuentes, Laird, Leno, |
| | | |Ruskin |
|-----+--------------------------+-----+--------------------------|
|Nays:|Tran, Adams, Keene |Nays:|Strickland, Gaines |
| | | | |
-----------------------------------------------------------------
SUMMARY : Prohibits employers from discriminating against an
employee on the basis that the employee is a qualified medical
marijuana patient. Specifically, this bill provides that:
1)It is unlawful for an employer to discriminate against a
person in hiring, termination, or any term or condition of
employment or otherwise penalize a person, if the
discrimination is based upon either of the following:
a) The person's status as a qualified patient or a
designated primary caregiver; or,
b) The person's positive drug test for marijuana, provided
the person is a qualified patient and the medical use of
marijuana does not occur on the property or premises of the
place of employment or during the hours of employment.
2)A person who has suffered discrimination may institute and
prosecute in his/her own name and on his/her own behalf a
civil action for damages, injunctive relief, and any other
appropriate equitable relief to protect the peaceable exercise
of the right or rights secured.
3)These provisions against discrimination shall not apply when
an employer employs a person in a safety-sensitive position,
defined to mean a position in which medical cannabis-affected
performance could clearly endanger the health and safety of
others and having all of the following general
AB 2279
Page 2
characteristics:
a) Its duties involve a greater than normal level of trust,
responsibility for, or impact on the health and safety of
others;
b) Errors in judgment, inattentiveness, or diminished
coordination, dexterity, or composure while performing its
duties could clearly result in mistakes that would endanger
the health and safety of others; and,
c) An employee in a position of this nature works
independently, or performs tasks of a nature that it cannot
safely be assumed that mistakes like those described could
be prevented by a supervisor or another employee.
4)A "safety-sensitive position" also includes law enforcement
and a position that involves the performance of a safety
sensitive function as federally defined.
5)Nothing in this section shall prohibit an employer from
terminating the employment of a person who is impaired on the
property or premises of the place of employment or during the
hours of employment, because of the medical use of marijuana.
EXISTING LAW :
1)Provides, under Proposition 215 of 1996, the Compassionate Use
Act, the right to obtain and use marijuana for medical
purposes where medical use is deemed appropriate and has been
recommended by a physician and ensures that patients and their
primary caregivers are not subject to criminal prosecution or
sanction. Protects physicians from punishment for
recommending marijuana to a patient for medical purposes.
2)Requires the State Department of Health Services to establish
and maintain a voluntary program for the issuance of
identification cards to qualified patients and establishes
procedures under which a qualified patient with an
identification card may use marijuana for medical purposes.
Specifies the department's duties in this regard, including
developing related protocols and forms, and establishing
application and renewal fees for the program.
AB 2279
Page 3
3)Provides that employment having no specified term may be
terminated at the will of either party on notice to the other.

4)Provides that it shall be an unlawful employment practice, to
discriminate based on race, religious creed, color, national
origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, or sexual
orientation.
FISCAL EFFECT : None
COMMENTS : According to the author's office, the California
Supreme Court ruled recently that an employee using medical
marijuana with a doctor's recommendation may be fired because of
their status as a medical cannabis patient. The sponsor,
Americans for Safe Access, states that California already
prohibits the use of medical marijuana by qualified patients on
the property or premises of any place of employment or during
the hours of employment. The sponsor explains that this bill
clarifies that an employer may not discriminate against an
employee in hiring, termination, or any term or condition of
employment, if the discrimination is based on the employee's
status as a qualified medical cannabis patient who uses their
doctor recommended medication outside of work and not during
working hours in compliance with existing law.
In 1996, California voters passed Proposition 215, "to ensure
that seriously ill Californians have the right to obtain and use
marijuana for medical purposes." In 2003, SB 420
(Vasconcellos), Chapter 875, Statutes of 2003, was signed into
law to address issues that had arisen following the passage of
Proposition 215, including the establishment of a qualified
patient's right to use medical marijuana outside the workplace.
In September 2001, Gary Ross, a 45 year old disabled Air Force
veteran, was fired for failing an employer-mandated drug test
despite informing his employer in advance that he was using
medical cannabis outside the workplace under his doctor's
recommendation. Ross sued and his case was eventually heard
before the California Supreme Court. On January 24, 2008, the
California Supreme Court ruled that an employee using medical
marijuana with a doctor's recommendation as permitted by
California law may be fired solely because of their status as a
AB 2279
Page 4
medical cannabis patient. In its ruling, the Court stated,
"Nothing in the text or history of the Compassionate Use Act
suggests the voters intended the measure to address the
respective rights and duties of employers and employees. Under
California law, an employer may require preemployment drug tests
and take illegal drug use into consideration in making
employment decisions." Since the Compassionate Use Act was
silent regarding employment, the Court concluded that an
employer was legally permitted to fire an employee based on the
employee's use of medical marijuana. [Ross v. RagingWire
Telecommunications (2008) 42 Cal. 4th 920.]
Under the traditional common law rule, codified in Labor Code
Section 2922, employment in California having no specified
duration may be terminated at will of either party. This
presumption may be superseded by a contract, express or implied,
limiting the employer's right to discharge the employee. Absent
any contract, however, the employment is "at will," and the
employee can be fired with or without good cause. The right of
an employer to terminate an employee for any reason, or for no
reason, is limited only by public policy as reflected in statute
or other law. [Foley v. Interactive Data Corp. (1988) 47 Cal 3d
654.] In other words, in the absence of an explicit legal
limitation, employees in California can be discharged for any
reason or for no reason at all. This bill would add a new
limitation on the right of employers to fire an employee at
will. But the scope of that limitation is specified precisely
in the bill - discrimination based on the employee's status as a
medical marijuana patient or primary caregiver or a positive
drug test by a qualified patient if the medical marijuana use
does not occur in the workplace or during the hours of
employment. This bill does not, therefore, prevent an employer
from firing an employee who is intoxicated at work.
According to the California Hospital Association, employers have
a legitimate interest in determining whether applicants are
using illegal drugs. Despite the existence of the Compassionate
Use Act, allowing for the legal use of medical marijuana, the
California Chamber of Commerce likewise opposes this bill
because, it argues, marijuana is absolutely illegal.
Analysis Prepared by : Manuel Valencia / JUD. / (916) 319-2334
AB 2279
Page 5
FN: 0004256

PROOF OF SERVICE BY MAIL

I, Daniel Reeves, am a citizen of the United States and resident of Mission
Viejo, California. My address is 22762 Aspan St., #202-107, California. On December
3, 2013, I served the Appellants Second Request for Judicial Notice on the
interested parties in this case shown below by depositing separate envelopes addressed
to each of them in which the aforementioned documents were enclosed and postage
paid and affixed into the U.S. Mail at Lake Forest, California:


Moses Johnson, IV
Asst. City Attorney
Anaheim City Attorney
200 S. Anaheim Blvd., Suite 356
Anaheim, CA 92805

Clerk of the Orange County Superior Court
For: Hon. David Chaffee
700 Civic Center Drive West
Santa Ana, CA 92701

Jeffrey Dunn
Best, Best, and Kreiger
18101 Von Karman Ave, Ste. 1000
Irvine, CA 92612

Office of the California Attorney General
1300 I Street
P.O. Box 944255
Sacramento, CA 94244-2550

I declare under penalty of perjury under the laws of the United States and the
laws of the state of California that the aforementioned is true and correct:

EXECUTED this 3
rd
day of December, 2013 at Lake Forest, CA, United States
of America.


_______________________________
Daniel Reeves