Fresno cannabis lawsuit - ex parte application

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 1 EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE; REQUEST FOR JUDICIAL NOTICE.

SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO CENTRAL DIVISION – UNLIMITED CIVIL CASE

MICHAEL S. GREEN, and DOES 1 through 20, inclusive, Plaintiffs, v. CITY OF FRESNO, a political subdivision of the State of California; JERRY P. DYER, in his official capacity as Chief of Police for the City of Fresno; MARK SCOTT, in his official capacity as Director of Development and Resource Management for the City of Fresno; and DOES 1 through 20, inclusive, Defendants

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Case No.: 12CECG01334 MWS EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE; REQUEST FOR JUDICIAL NOTICE.

[C.C.P. Sec. 52.1(b), 526, 527; C.R.C. Rules 3.1201, 3.1202, 3.1203, 3.1204, and 3.1206]

HEARING 1130 O Street, Fresno, California 93721 DATE: May 1, 2012 TIME: 3:30 p.m. DEPT.: 403

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I. APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE Plaintiff applies for a temporary restraining order restraining Defendants and their/his/her agents, servants and employees from enforcing Ordinance 2012-3, and an order to show cause why a preliminary injunction should not be granted enjoining Defendants from enforcing the above-described ordinance during the pendency of this action. Plaintiff has not previously submitted an application for this relief. This Application is made on the grounds that Ordinance 2012-3 on its face, and as applied, constitutes an ex-post facto law which results in the taking of Plaintiff’s, and others’ similarly situated, vested property rights without due process. This Application is made on the further grounds that Ordinance 2012-3 on its face, and as applied, declares as a nuisance per se activities that were expressly declared not to be a nuisance by the California Legislature in the Medical Marijuana Program Act, namely, Plaintiff's authorized outdoor cultivation of medical marijuana, and said ordinance is therefore pre-empted by state law. This Application is made on the further grounds that Ordinance 2012-3 on its face, and as applied, declares as a current and immediate threat to public health and safety the exact same conduct by Plaintiff and others similarly situated that was expressly declared by the California Legislature not to be a threat to public health and safety. The ordinance was enacted purportedly pursuant to Government Code Sec. 65858, but in a manner not permitted by that statute. This Application is further made upon the allegations contained within the verified complaint filed and served herewith, on the attached Memorandum of Points and Authorities, any oral argument which may be before this court regarding this matter, and on the further grounds that great and irreparable injury will result to Plaintiff before the matter can be heard on notice or before this action is resolved at trial. // // // // // //
- 2 EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE; REQUEST FOR JUDICIAL NOTICE.

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II. REQUEST FOR JUDICIAL NOTICE Please take notice that Plaintiff will, and hereby does, request the court to take judicial notice of: • City staff report and text of Ordinance 2011-41, which was duly enacted by the Fresno City Council on or about December 15, 2011, a true and complete copy of which is attached to Plaintiff's Verified Complaint as Exhibit “A.” • Relevant portions of the official minutes of the Fresno City Council meetings of December 15, 2011, and January 26, 2012, a true and complete copy of which is attached to Plaintiff's Verified Complaint as Exhibit “B.” • Ordinance 2007-42, which was duly enacted by the Fresno City Council on or about May 1, 2007, a true and complete copy of which is attached to Plaintiff's Verified Complaint as Exhibit “C.” The request is made on the ground that the above records are subject to judicial notice under Evidence Code Secs. 452(b) and 453.

Dated:

Respectfully submitted, MICHAEL S. GREEN IN PRO PER By: _________________________________ Michael S. Green, In Pro Per

- 3 EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE; REQUEST FOR JUDICIAL NOTICE.

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