Preview
Exemptft·omfees (Govt. Code § 6103)
1 CYNTHIA J. ZIMMER, District Attorney
County of Kem
2
By: GREGORY J. KOHLER, (SBN 144063)
3 Deputy District Attorney
1215 Truxtun Avenue, 4th Floor
4
Bakersfield, California 93301
5 (661) 868-2340 Fax (661) 868-2700
6
Attorneys for Plaintiff
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF KERN - METROPOLITAN DIVISION
10 *********
11 THE PEOPLE OF THE STATE OF CALIFORNIA, Case No.:
12 Plaintiff, File No.: CF-5320
13
vs. COMPLAINT FOR ABATEMENT,
14 PERMANENT INJUNCTION,
OCTAVIO GONZALEZ, an individual; and CIVIL PENALTIES,
15
DOES 1 through 100, inclusive, RESTITUTION, AND OTHER
16 EQUITABLE RELIEF
17 Defendants. [Verified answer required per C.C.P. §
446 unless exception applies]
18
19
20 THE PEOPLE OF THE STATE OF CALIFORNIA, by and through their attorney, Cynthia J.
21 Zimmer, District Attorney of the County of Kem, on information and belief allege that:
22 SUMMARY OF COMPLAINT
23
24 1. In California, all individuals and businesses engaging in commercial cannabis activity
25 are required to obtain a license from the Department of Cannabis Control, and comply with local
26 regulations, including zoning laws, pursuant to the Medicinal and Adult-Use Cannabis Regulation and
27 Safety Act ("MAUCRSA"), found at Business and Professions Code § 26000 et seq. Section
28 19.08.055(A) of the Kem County Ordinance Code (KCOC) bans all "commercial medicinal and
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COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENAL TIES, RESTITUTION,
AND OTHER EQUITABLE RELIEF
1 recreational cannabis businesses and activities of all kinds that are, the subject of [MAUCRSA] ... "
2 Under KCOC sections l 9.08.055(B)&(C), no state commercial cannabis license can be issued in "any
3 zone district in the unincorporated area of the County of Kem," and all such businesses and activities
4 are illegal. Further, under KCOC l 9.08.055(D), "Any use, structure, or property that is altered,
5 enlarged, erected, established, maintained, moved, or operated contrary to the provisions of this
6 section, is hereby declared to be unlawful and a public nuisance and is subject to the enforcement
7 provisions of subsection (J) of this section, in addition to any other enforcement remedy available to
8 the county under any applicable state or federal statute, the Kem County Ordinance Code, or any other
9 lawful power the county may possess."
10 2. Defendant OCTAVIO GONZALEZ has engaged in, and continues to engage m,
11 commercial cannabis activity (specifically, the operation of an illegal cannabis business), and the sale
12 of illegal psilocybin mushrooms and psilocybin mushroom edibles, at 1031 Mt. Vernon Avenue, in the
13 unincorporated area of Kem County (the Property). Defendant OCTAVIO GONZALEZ does not
14 have a license from the Department of Cannabis Control, nor can he obtain one. Warrants have been
15 served on his business by state enforcement authorities, his inventory of cannabis, cannabis products,
16 psilocybin mushrooms and products and cash seized, yet he continues to engage in illegal commercial
17 cannabis activity, and the sale of illegal psilocybin products.
.,
18 .) . By allowing controlled substances to be unlawfully sold, served, stored, kept,
19 manufactured, or given away at the Property, defendant OCTAVIO GONZALEZ has also maintained
20 the Property in violation of California's Drug Abatement Law (Health and Safety Code sections
21 11570-11587), section 19.08.055 of the Kem County Ordinance Code (KCOC) and California Civil
22 Code section 3479.
23 4. By maintaining the Property in repeated violation of applicable state and local laws and
24 as a public nuisance, defendant OCTAVIO GONZALEZ has demonstrated a pattern and practice of
25 engaging in unfair and unlawful business practices in violation of the Unfair Competition Law
26 ("UCL") (California Business and Professions Code sections 17200-17210.
27 I I I
28 I I I
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COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENAL TIES, RESTITUTION,
AND OTHER EQUITABLE RELIEF
1 THE PARTIES
2 5. Cynthia J. Zimmer, District Attorney of Kem County, brings this action in the public
3 interest in the name of the People of the State of California to enforce the People's police and
4 regulatory powers.
5 6. Defendant OCTAVIO GONZALEZ is an individual who, at all relevant times, a) is and
6 was a resident of Kem County, California; b) operated an illegal cannabis and psilocybin dispensary
7 located in Kem County at 1031 Mt. Vernon A venue in the unincorporated area of Kem County; c) and
8 engaged in business acts and practices within Kem County.
9 7. The true names and capacities, whether individual, corporate, associate, or otherwise, of
10 defendants sued herein as Does 1 through 100, inclusive, presently are unknown to the People, who
11 therefore sue these defendants by their fictitious names pursuant to Code of Civil Procedure § 474.
12 Each fictitiously named defendant is responsible in some manner for the violations of the laws and
13 ordinances alleged herein. Plaintiff will amend this Complaint to add the true names of the fictitiously
14 named defendants once they are discovered.
15 8. Each defendant was the officer, manager, agent, employee, partner, co-conspirator, or
16 representative of each of the remaining defendants, acting within the course and scope of said agency,
17 employment, partnership, conspiracy, or representation, and each defendant has ratified and approved
18 the actions of each of the other defendants alleged herein. In engaging in the conduct described below,
19 defendants were all acting with the express or implied knowledge, consent, authorization, approval or
20 ratification of their co-defendants such that all of the alleged unlawful conduct by any of the
21 defendants was approved and ratified by its/his/her co-defendants.
22 9. Unless otherwise indicated specifically in this Complaint, any reference to
23 "Defendants" shall be read to include all defendants, including both named and fictitiously named
24 defendants.
25 JURISDICTION AND VENUE
26
27 10. Cynthia J. Zimmer, District Attorney of Kem County, brings this action in the public
28 interest in the name of the People of the State of California to enforce the People's police and
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COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENAL TIES, RESTITUTION,
AND OTHER EQUITABLE RELIEF
1 regulatory powers pursuant to Health and Safety Code section 11571; Business and Professions Code
2 sections 17203, 17204, 17206, and 26038; Code of Civil Procedure section 731, and the Kern County
3 Ordinance Code, including but not limited to sections 19.08.055 and 19.114.080. The People seek to
4 abate and enjoin defendants from violating the laws related to the regulation of commercial cannabis
5 activity and engaging in the unlawful business practices alleged herein, and further seek statutory
6 penalties and other relief.
7 11. Venue is proper in this county pursuant to Code of Civil Procedure section 393(a), in
8 that the violations alleged in this Complaint occurred in the County of Kern. Venue is also proper in
9 this county pursuant to Code of Civil Procedure 395(a) because some or all of the defendants reside
10 here.
11 CALIFORNIA'S REGULATION OF COMMERCIAL CANNABIS ACTIVITY
12
13 12. The basic framework for licensing, oversight and enforcement of cannabis businesses in
14 California is laid out in the Medicinal and Adult Use Cannabis Regulation and Safety Act
15 (MAUCRSA), codified at Business and Professions Code section 26000 et seq.
16 13. The MAUCRSA prohibits any person from "engaging in commercial cannabis activity
17 without a license ...."(Bus. & Prof. Code, § 26038.)
18 14. "Commercial cannabis activity" is defined to "include the cultivation, possession,
19 manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation,
20 delivery, or sale of cannabis and cannabis products as provided for in this division, or acting as a
21 cannabis event organizer for temporary cannabis events." (Bus. & Prof. Code,§ 26001, subd. G).)
22 15. The MAUCRSA vests the Department of Cannabis Control (DCC) with the authority to
23 administer and enforce the MAUCRSA, including issuing licenses to engage in commercial cannabis
24 activity.
25 16. The MAUCRSA also explicitly states that it "shall not be interpreted to supersede or
26 limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate businesses
27 licensed under this division, including, but not limited to, local zoning and land use requirements,
28 business license requirements, and requirements related to reducing exposure to secondhand smoke, or
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COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENALTIES, RESTITUTION,
AND OTHER EQUITABLE RELIEF
1 to completely prohibit the establishment or operation of one or more types of businesses licensed
2 under this division within the local jurisdiction. (Bus. & Prof. Code, § 26200, italics added.)
3 17. Business and Professions Code 26055(d) states that "[t]he department shall not approve
4 an application for a state license under this division if approval of the state license will violate the
5 provisions of any local ordinance or regulation adopted in accordance with Section 26200."
6 18. Kem County has exercised its own authority to "ban commercial medicinal and
7 recreational cannabis businesses and activities of all kinds that are the subject of the Medicinal and
8 Adult-Use Cannabis Regulation and Safety Act. .. in order to promote the health, safety, and general
9 welfare of the citizens of the county." (KCOC, § 19.08.055, subd. (A).) To that end, the Kem County
10 Ordinance Code contains sections specifically prohibiting businesses conducting "commercial
11 recreational cannabis activity" (KCOC, § 19.08.055, subd. (B)) and "commercial medicinal cannabis
12 activity" (KCOC, § 19.08.055, subd. (C)) in all zone districts. These provisions are contained within
13 Title 19 of the Kem County Ordinance Code, which applies "to all property in unincorporated Kem
14 County." (KCOC, § 19.020.030.) "Any use, structure, or property that is altered, enlarged, erected,
15 established, maintained, moved, or operated contrary to" the KCOC's cannabis prohibitions is
16 declared a public nuisance under the ordinance code. (KCOC, § 19.08.055, subd. (D).)
17 FACTUAL ALLEGATIONS
18
19 19. From May 5, 2021 to the present, defendant OCTAVIO GONZALEZ has been the sole
20 tenant of the Property, pursuant to a written lease agreement, and has been in possession and control of
21 the Property during all relevant times herein.
22 20. From an exact date unknown but not later than May 5, 2021, and continuing to the
23 present, defendant OCTAVIO GONZALEZ, has operated an illegal commercial cannabis and
24 psilocybin dispensary on the Property and engaged in illegal commercial cannabis activity and the sale
25 of psilocybin mushrooms and psilocybin products on the Property.
26 21. Neither the Department of Cannabis Control nor its predecessor, the Bureau of
27 Cannabis Control, has issued a license to defendant OCTAVIO GONZALEZ or any other individual
28 or entity to engage in commercial cannabis activity at the Property.
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COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENALTIES, RESTITUTION,
AND OTHER EQUITABLE RELIEF
1 22. From an exact date unknown but not later than May 5, 2021, and continuing to the
2 present, defendant OCTAVIO GONZALEZ, and Does 1-100, have engaged in the sales of illegal
3 psilocybin mushrooms/mushroom edibles.
4 FIRST CAUSE OF ACTION
Violation of the Drug Abatement Act
5 (Health and Safety Code sections 11570-11587)
6 (Against Defendant OCTAVIO GONZALEZ, and Does 1-100)
7 23. Plaintiff hereby incorporates by reference paragraphs 1 through 22 of this Complaint
8 and makes them part of this First Cause of Action, as if fully set forth herein.
9 24. From an exact date unknown but not later than May 5, 2021, and continuing to the
10 present, Defendants and their employees and agents have permitted the unlawful sale, storage,
11 possession, manufacture, consumption or distribution of controlled substances at the Property. Such
12 conduct constitutes a nuisance as a matter oflaw pursuant to Health and Safety Code section 11570.
13 25. Pursuant to Health and Safety Code section 11581, Plaintiff requests that this Court
14 close the Property for one year, impose civil penalties of $25,000.00 against defendant OCTAVIO
15 GONZALEZ and any subsequently added Doe defendant, and make further orders as necessary to
16 prevent Defendants from continuing to maintain a nuisance at the Property.
17 26. Previous enforcement efforts have failed to stop the illegal conduct of Defendants.
18 Unless the nuisance is abated, Defendants will continue to violate the law resulting in illegal drug
19 transactions in Kern County.
20 27. Plaintiff has no adequate remedy at law in that damages alone are insufficient to protect
21 the public from the present injury and harm caused by the conduct described above.
22 SECOND CAUSE OF ACTION
Abatement of Public Nuisance Per Se
23 (Against Defendant OCTA VIO GONZALEZ, and Does 1-100)
24
25 28. Plaintiff hereby incorporates by reference paragraphs 1 through 22 of this Complaint
26 and makes them part of this Second Cause of Action, as if fully set forth herein.
27 29. Civil Code section 34 79 states in part: "Anything which is lllJur10us to health,
28 including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the
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COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENALTIES, RESTITUTION,
AND OTHER EQUITABLE RELIEF
1 senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment
2 of life or property ... is a nuisance. [Emphasis added.]"
3 30. Government Code section 25845(a) grants municipal governments the power to enact
4 ordinances for the abatement of a nuisance.
5 31. KCOC section 19.08.055 provides that no business conducting commercial recreational
6 cannabis activity or commercial medicinal cannabis activity is permitted within the unincorporated
7 areas of Kern County.
8 32. KCOC section 19.08.055 further states that "[a]ny use, structure, or property that is
9 altered, enlarged, erected, established, maintained, moved, or operated contrary to the provisions of
10 this section, is hereby declared to be unlawful and a public nuisance . ... "
11 33. At all times relevant hereto, Defendants have knowingly operated or permitted the
12 operation of a business conducting commercial recreational cannabis activity or commercial medicinal
13 cannabis activity on the Property, and the sale of illegal psilocybin mushrooms/psilocybin edibles.
14 34. Plaintiff is entitled to injunctive relief and abatement of the public nuisance pursuant to
15 KCOC sections 19.114.080 and 19.114.090 and pursuant to Civil Code section 3491.
16 35. Unless Defendants are restrained and enjoined by order of the court, they will continue
17 to unlawfully use or allow to be used the Property for commercial recreational cannabis activity or
18 commercial medicinal cannabis activity in violation of KCOC section 19.08.055, and they will
19 continue to allow, permit, and encourage this public nuisance on the Property.
20 THIRD CAUSE OF ACTION
Violation of MAUCRSA (Business and Professions Code Section 26000 et seq.)
21 (Against Defendant OCTAVIO GONZALEZ, and Does 1-100)
22
23 36. Plaintiff hereby incorporates by reference paragraphs 1 through 22 of this Complaint
24 and makes them part of this Third Cause of Action, as if fully set forth herein.
25 37. From an exact date unknown but not later than May 5, 2021, and continuing to the
26 present, Defendants and their employees and agents have engaged in illegal commercial cannabis
27 activity on the Property within the meaning of and in violation of Business and Professions Code
28 section 26038 et seq., by knowingly allowing, authorizing or participating in the unlawful sale,
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COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENAL TIES, RESTITUTION,
AND OTHER EQUITABLE RELIEF
1 storage, possession, manufacture, consumption or distribution of controlled substances at the Property.
2 38. Defendants and their employees and agents are causing unlicensed commercial
3 cannabis activity to occur on the property by knowingly allowing or participating in the unlawful sale,
4 storage, possession, manufacture, consumption or distribution of controlled substances at the Property.
5 39. Defendants are also unjustly enriched to the extent that they are deriving revenue from
6 unlicensed commercial cannabis activity in violation of state law.
7 FOURTH CAUSE OF ACTION
Violation of Unfair Competition Law (Business and Professions Code Section 17200 et seq.)
8 (Against Defendant OCTAVIO GONZALEZ, and Does 1-100)
9
IO 40. Plaintiff hereby incorporates by reference paragraphs 1 through 39 of this Complaint
11 and makes them part of this Fourth Cause of Action, as if fully set forth herein.
12 41. From an exact date unknown but not later than May 5, 2021, and continuing to the
13 present, Defendants, and each of them, have either engaged in, aided and abetted, and/or conspired to
14 engage in acts or practices that constitute unfair competition as defined in Business and Professions
15 Code section 17200. Such acts or practices are described above and include, but are not limited to
16 violation of the following laws:
17 a. Health and Safety Code section 11570 to 11587 by permitting the unlawful
18 sale, storage, possession, manufacture, consumption or distribution of
19 controlled substances at the Property;
20 b. Business and Professions Code section 26038 by engaging in commercial
21 cannabis activity without a license;
22 c. Health and Safety Code section 11366.5(a), which makes it a criminal offense
23 to knowingly rent, lease, or otherwise make the property available for the
24 purpose of unlawfully manufacturing, storing, or distributing a controlled
25 substance;
26 d. Health and Safety Code section 11359 - Sale of cannabis.
27 e. Health and Safety Code section 11366 - Maintain a place to sell controlled
28 substances.
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COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENAL TIES, RESTITUTION,
AND OTHER EQUITABLE RELIEF
1 f. Health and Safety Code 113 78 - Sale of controlled substance.
2 g. California Civil Code section 3479 and KCOC section 19.08.055 by
3 maintaining a public nuisance at the Property.
4 42. As a direct and proximate result of the foregoing acts and practices, Defendants have
5 received income, profits, and other benefits, which they would not have received if Defendants had not
6 engaged in the violations of the Unfair Competition Law described in this Complaint.
7 43. Plaintiff has no adequate remedy at law in that damages are insufficient to protect the
8 public from the harm caused by the conditions described in this Complaint.
9 44. Unless injunctive relief is granted, Defendants will continue to unlawfully use or allow
10 the Property to be used for commercial recreational cannabis activity or commercial medicinal
11 cannabis activity in violation California Civil Code section 3479 and KCOC section 19.08.055, and
12 they will continue to allow, permit, and encourage this public nuisance on the Property.
13 45. By engaging in the unlawful business practices described herein, Defendants are each
14 subject to civil penalties in the amount of $2,500.00 per violation, pursuant to California Business and
15 Professions Code section 17206.
16 PRAYER
17 WHEREFORE, plaintiff prays for judgment against Defendants, and each of them, that:
18 ON THE FIRST CAUSE OF ACTION
19 1. The Property be declared a public nuisance in violation of Health and Safety Code
20 sections 11570-11587.
21 2. The public nuisance be preliminarily and permanently abated m accordance with
22 California Health and Safety Code sections 11570-11587.
23 3. The court issue an order directing the removal from the Property of all fixtures, and
24 other movable property used in conducting, maintaining, aiding, or abetting the nuisance and shall
25 direct their sale in the manner provided for the sale of chattels under execution.
26 4. The Property be closed for one year pursuant to Health and Safety Code section 11581.
27 5. The Court order each defendant to pay a civil penalty of $25,000.00 pursuant to Health
28 and Safety Code section 11581.
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COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENALTIES, RESTITUTION,
AND OTHER EQUITABLE RELIEF
1 ON THE SECOND CAUSE OF ACTION
2 6. The Property be declared a public nuisance in violation ofKCOC section 19.08.055.
3 7. That, under the authority ofKCOC sections 19.114.080 and 19.114.090 and pursuant to
4 Civil Code section 3491, Defendants, their successors, agents, representatives, employees, assigns, and
5 all persons who act in concert with Defendants be permanently enjoined from using or permitting the
6 use of the Property for any commercial cannabis activity or sale of illegal psilocybin products, and
7 from renting, leasing, or otherwise permitting any cannabis or psilocybin dispensary to occupy or
8 remain on the Property.
9 ON THE THIRD CAUSE OF ACTION
10 8. That, under the authority of Business and Professions Code section 26038, the Court
11 asses a civil penalty in the amount of three times the amount of the license fee, for an amount subject
12 to proof but no less than $12,000, for each day that Defendants have operated or permitted the
13 operation of a Cannabis Dispensary at the Property in violation of the MAUCRSA, both before and
14 after the filing of this complaint.
15 9. That, under the authority of Business and Professions Code§ 26038(a), the Court issue
16 an order authorizing Plaintiff to seize and destroy all cannabis and cannabis products associated with
17 the violations alleged herein in accordance with section 114 79 of the Health and Safety Code.
18 ON THE FOURTH CAUSE OF ACTION
19 10. That, under the authority of Business and Professions Code section 17203, Defendants,
20 their successors, agents, representatives, employees, assigns, and all persons who act in concert with
21 Defendants be permanently enjoined from engaging in unfair competition as defined in Business and
22 Professions Code section 17200 (including the acts and practices alleged in this Complaint).
23 11. That, under the authority of Business and Professions Code section 17203, the Court
24 make such orders or judgments as may be necessary (including preliminary injunctive and ancillary
25 relief) to prevent the use or employment by any Defendant of any practice that constitutes unfair
26 competition as defined in Business and Professions Code section 17200 et seq.
27 12. That, under the authority of Business and Professions Code section 17206, the Court
28 assess a civil penalty of $2,500.00 against each defendant, jointly and severally, for each violation of
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COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENAL TIES, RESTITUTION,
AND OTHER EQUITABLE RELIEF
1 Business and Professions Code sections 17200 et seq., in an amount according to proof, but as of
2 August 15, 2023, no less than $2,800,000 as to as to defendant OCTAVIO GONZALEZ, with further
3 daily penalties in the minimum amount of $2,500 a day from August 15, 2023 to the date of a
4 judgment in favor of Plaintiff..
5 ON EACH CAUSE OF ACTION:
6 13. For costs of suit incurred herein.
7 14. For reasonable expenses incurred in the investigation and prosecution of this action,
8 including an award of attorney's fees where permitted by law.
9 15. For such other and further relief as the court may deem just, proper or equitable.
10
11 Dated: August 15, 2023 CYNTHIA J. ZIMMER
District Attorney
12
13
14 By: ~lk'
org lKohler,
15 Deputy District Attorney
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COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENAL TIES, RESTITUTION,
AND OTHER EQUITABLE RELIEF
Preview
Exemptft·omfees (Govt. Code § 6103) 1 CYNTHIA J. ZIMMER, District Attorney County of Kem 2 By: GREGORY J. KOHLER, (SBN 144063) 3 Deputy District Attorney 1215 Truxtun Avenue, 4th Floor 4 Bakersfield, California 93301 5 (661) 868-2340 Fax (661) 868-2700 6 Attorneys for Plaintiff 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF KERN - METROPOLITAN DIVISION 10 ********* 11 THE PEOPLE OF THE STATE OF CALIFORNIA, Case No.: 12 Plaintiff, File No.: CF-5320 13 vs. COMPLAINT FOR ABATEMENT, 14 PERMANENT INJUNCTION, OCTAVIO GONZALEZ, an individual; and CIVIL PENALTIES, 15 DOES 1 through 100, inclusive, RESTITUTION, AND OTHER 16 EQUITABLE RELIEF 17 Defendants. [Verified answer required per C.C.P. § 446 unless exception applies] 18 19 20 THE PEOPLE OF THE STATE OF CALIFORNIA, by and through their attorney, Cynthia J. 21 Zimmer, District Attorney of the County of Kem, on information and belief allege that: 22 SUMMARY OF COMPLAINT 23 24 1. In California, all individuals and businesses engaging in commercial cannabis activity 25 are required to obtain a license from the Department of Cannabis Control, and comply with local 26 regulations, including zoning laws, pursuant to the Medicinal and Adult-Use Cannabis Regulation and 27 Safety Act ("MAUCRSA"), found at Business and Professions Code § 26000 et seq. Section 28 19.08.055(A) of the Kem County Ordinance Code (KCOC) bans all "commercial medicinal and -1- COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENAL TIES, RESTITUTION, AND OTHER EQUITABLE RELIEF 1 recreational cannabis businesses and activities of all kinds that are, the subject of [MAUCRSA] ... " 2 Under KCOC sections l 9.08.055(B)&(C), no state commercial cannabis license can be issued in "any 3 zone district in the unincorporated area of the County of Kem," and all such businesses and activities 4 are illegal. Further, under KCOC l 9.08.055(D), "Any use, structure, or property that is altered, 5 enlarged, erected, established, maintained, moved, or operated contrary to the provisions of this 6 section, is hereby declared to be unlawful and a public nuisance and is subject to the enforcement 7 provisions of subsection (J) of this section, in addition to any other enforcement remedy available to 8 the county under any applicable state or federal statute, the Kem County Ordinance Code, or any other 9 lawful power the county may possess." 10 2. Defendant OCTAVIO GONZALEZ has engaged in, and continues to engage m, 11 commercial cannabis activity (specifically, the operation of an illegal cannabis business), and the sale 12 of illegal psilocybin mushrooms and psilocybin mushroom edibles, at 1031 Mt. Vernon Avenue, in the 13 unincorporated area of Kem County (the Property). Defendant OCTAVIO GONZALEZ does not 14 have a license from the Department of Cannabis Control, nor can he obtain one. Warrants have been 15 served on his business by state enforcement authorities, his inventory of cannabis, cannabis products, 16 psilocybin mushrooms and products and cash seized, yet he continues to engage in illegal commercial 17 cannabis activity, and the sale of illegal psilocybin products. ., 18 .) . By allowing controlled substances to be unlawfully sold, served, stored, kept, 19 manufactured, or given away at the Property, defendant OCTAVIO GONZALEZ has also maintained 20 the Property in violation of California's Drug Abatement Law (Health and Safety Code sections 21 11570-11587), section 19.08.055 of the Kem County Ordinance Code (KCOC) and California Civil 22 Code section 3479. 23 4. By maintaining the Property in repeated violation of applicable state and local laws and 24 as a public nuisance, defendant OCTAVIO GONZALEZ has demonstrated a pattern and practice of 25 engaging in unfair and unlawful business practices in violation of the Unfair Competition Law 26 ("UCL") (California Business and Professions Code sections 17200-17210. 27 I I I 28 I I I -2- COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENAL TIES, RESTITUTION, AND OTHER EQUITABLE RELIEF 1 THE PARTIES 2 5. Cynthia J. Zimmer, District Attorney of Kem County, brings this action in the public 3 interest in the name of the People of the State of California to enforce the People's police and 4 regulatory powers. 5 6. Defendant OCTAVIO GONZALEZ is an individual who, at all relevant times, a) is and 6 was a resident of Kem County, California; b) operated an illegal cannabis and psilocybin dispensary 7 located in Kem County at 1031 Mt. Vernon A venue in the unincorporated area of Kem County; c) and 8 engaged in business acts and practices within Kem County. 9 7. The true names and capacities, whether individual, corporate, associate, or otherwise, of 10 defendants sued herein as Does 1 through 100, inclusive, presently are unknown to the People, who 11 therefore sue these defendants by their fictitious names pursuant to Code of Civil Procedure § 474. 12 Each fictitiously named defendant is responsible in some manner for the violations of the laws and 13 ordinances alleged herein. Plaintiff will amend this Complaint to add the true names of the fictitiously 14 named defendants once they are discovered. 15 8. Each defendant was the officer, manager, agent, employee, partner, co-conspirator, or 16 representative of each of the remaining defendants, acting within the course and scope of said agency, 17 employment, partnership, conspiracy, or representation, and each defendant has ratified and approved 18 the actions of each of the other defendants alleged herein. In engaging in the conduct described below, 19 defendants were all acting with the express or implied knowledge, consent, authorization, approval or 20 ratification of their co-defendants such that all of the alleged unlawful conduct by any of the 21 defendants was approved and ratified by its/his/her co-defendants. 22 9. Unless otherwise indicated specifically in this Complaint, any reference to 23 "Defendants" shall be read to include all defendants, including both named and fictitiously named 24 defendants. 25 JURISDICTION AND VENUE 26 27 10. Cynthia J. Zimmer, District Attorney of Kem County, brings this action in the public 28 interest in the name of the People of the State of California to enforce the People's police and -3- COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENAL TIES, RESTITUTION, AND OTHER EQUITABLE RELIEF 1 regulatory powers pursuant to Health and Safety Code section 11571; Business and Professions Code 2 sections 17203, 17204, 17206, and 26038; Code of Civil Procedure section 731, and the Kern County 3 Ordinance Code, including but not limited to sections 19.08.055 and 19.114.080. The People seek to 4 abate and enjoin defendants from violating the laws related to the regulation of commercial cannabis 5 activity and engaging in the unlawful business practices alleged herein, and further seek statutory 6 penalties and other relief. 7 11. Venue is proper in this county pursuant to Code of Civil Procedure section 393(a), in 8 that the violations alleged in this Complaint occurred in the County of Kern. Venue is also proper in 9 this county pursuant to Code of Civil Procedure 395(a) because some or all of the defendants reside 10 here. 11 CALIFORNIA'S REGULATION OF COMMERCIAL CANNABIS ACTIVITY 12 13 12. The basic framework for licensing, oversight and enforcement of cannabis businesses in 14 California is laid out in the Medicinal and Adult Use Cannabis Regulation and Safety Act 15 (MAUCRSA), codified at Business and Professions Code section 26000 et seq. 16 13. The MAUCRSA prohibits any person from "engaging in commercial cannabis activity 17 without a license ...."(Bus. & Prof. Code, § 26038.) 18 14. "Commercial cannabis activity" is defined to "include the cultivation, possession, 19 manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, 20 delivery, or sale of cannabis and cannabis products as provided for in this division, or acting as a 21 cannabis event organizer for temporary cannabis events." (Bus. & Prof. Code,§ 26001, subd. G).) 22 15. The MAUCRSA vests the Department of Cannabis Control (DCC) with the authority to 23 administer and enforce the MAUCRSA, including issuing licenses to engage in commercial cannabis 24 activity. 25 16. The MAUCRSA also explicitly states that it "shall not be interpreted to supersede or 26 limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate businesses 27 licensed under this division, including, but not limited to, local zoning and land use requirements, 28 business license requirements, and requirements related to reducing exposure to secondhand smoke, or -4- COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENALTIES, RESTITUTION, AND OTHER EQUITABLE RELIEF 1 to completely prohibit the establishment or operation of one or more types of businesses licensed 2 under this division within the local jurisdiction. (Bus. & Prof. Code, § 26200, italics added.) 3 17. Business and Professions Code 26055(d) states that "[t]he department shall not approve 4 an application for a state license under this division if approval of the state license will violate the 5 provisions of any local ordinance or regulation adopted in accordance with Section 26200." 6 18. Kem County has exercised its own authority to "ban commercial medicinal and 7 recreational cannabis businesses and activities of all kinds that are the subject of the Medicinal and 8 Adult-Use Cannabis Regulation and Safety Act. .. in order to promote the health, safety, and general 9 welfare of the citizens of the county." (KCOC, § 19.08.055, subd. (A).) To that end, the Kem County 10 Ordinance Code contains sections specifically prohibiting businesses conducting "commercial 11 recreational cannabis activity" (KCOC, § 19.08.055, subd. (B)) and "commercial medicinal cannabis 12 activity" (KCOC, § 19.08.055, subd. (C)) in all zone districts. These provisions are contained within 13 Title 19 of the Kem County Ordinance Code, which applies "to all property in unincorporated Kem 14 County." (KCOC, § 19.020.030.) "Any use, structure, or property that is altered, enlarged, erected, 15 established, maintained, moved, or operated contrary to" the KCOC's cannabis prohibitions is 16 declared a public nuisance under the ordinance code. (KCOC, § 19.08.055, subd. (D).) 17 FACTUAL ALLEGATIONS 18 19 19. From May 5, 2021 to the present, defendant OCTAVIO GONZALEZ has been the sole 20 tenant of the Property, pursuant to a written lease agreement, and has been in possession and control of 21 the Property during all relevant times herein. 22 20. From an exact date unknown but not later than May 5, 2021, and continuing to the 23 present, defendant OCTAVIO GONZALEZ, has operated an illegal commercial cannabis and 24 psilocybin dispensary on the Property and engaged in illegal commercial cannabis activity and the sale 25 of psilocybin mushrooms and psilocybin products on the Property. 26 21. Neither the Department of Cannabis Control nor its predecessor, the Bureau of 27 Cannabis Control, has issued a license to defendant OCTAVIO GONZALEZ or any other individual 28 or entity to engage in commercial cannabis activity at the Property. -5- COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENALTIES, RESTITUTION, AND OTHER EQUITABLE RELIEF 1 22. From an exact date unknown but not later than May 5, 2021, and continuing to the 2 present, defendant OCTAVIO GONZALEZ, and Does 1-100, have engaged in the sales of illegal 3 psilocybin mushrooms/mushroom edibles. 4 FIRST CAUSE OF ACTION Violation of the Drug Abatement Act 5 (Health and Safety Code sections 11570-11587) 6 (Against Defendant OCTAVIO GONZALEZ, and Does 1-100) 7 23. Plaintiff hereby incorporates by reference paragraphs 1 through 22 of this Complaint 8 and makes them part of this First Cause of Action, as if fully set forth herein. 9 24. From an exact date unknown but not later than May 5, 2021, and continuing to the 10 present, Defendants and their employees and agents have permitted the unlawful sale, storage, 11 possession, manufacture, consumption or distribution of controlled substances at the Property. Such 12 conduct constitutes a nuisance as a matter oflaw pursuant to Health and Safety Code section 11570. 13 25. Pursuant to Health and Safety Code section 11581, Plaintiff requests that this Court 14 close the Property for one year, impose civil penalties of $25,000.00 against defendant OCTAVIO 15 GONZALEZ and any subsequently added Doe defendant, and make further orders as necessary to 16 prevent Defendants from continuing to maintain a nuisance at the Property. 17 26. Previous enforcement efforts have failed to stop the illegal conduct of Defendants. 18 Unless the nuisance is abated, Defendants will continue to violate the law resulting in illegal drug 19 transactions in Kern County. 20 27. Plaintiff has no adequate remedy at law in that damages alone are insufficient to protect 21 the public from the present injury and harm caused by the conduct described above. 22 SECOND CAUSE OF ACTION Abatement of Public Nuisance Per Se 23 (Against Defendant OCTA VIO GONZALEZ, and Does 1-100) 24 25 28. Plaintiff hereby incorporates by reference paragraphs 1 through 22 of this Complaint 26 and makes them part of this Second Cause of Action, as if fully set forth herein. 27 29. Civil Code section 34 79 states in part: "Anything which is lllJur10us to health, 28 including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the -6- COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENALTIES, RESTITUTION, AND OTHER EQUITABLE RELIEF 1 senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment 2 of life or property ... is a nuisance. [Emphasis added.]" 3 30. Government Code section 25845(a) grants municipal governments the power to enact 4 ordinances for the abatement of a nuisance. 5 31. KCOC section 19.08.055 provides that no business conducting commercial recreational 6 cannabis activity or commercial medicinal cannabis activity is permitted within the unincorporated 7 areas of Kern County. 8 32. KCOC section 19.08.055 further states that "[a]ny use, structure, or property that is 9 altered, enlarged, erected, established, maintained, moved, or operated contrary to the provisions of 10 this section, is hereby declared to be unlawful and a public nuisance . ... " 11 33. At all times relevant hereto, Defendants have knowingly operated or permitted the 12 operation of a business conducting commercial recreational cannabis activity or commercial medicinal 13 cannabis activity on the Property, and the sale of illegal psilocybin mushrooms/psilocybin edibles. 14 34. Plaintiff is entitled to injunctive relief and abatement of the public nuisance pursuant to 15 KCOC sections 19.114.080 and 19.114.090 and pursuant to Civil Code section 3491. 16 35. Unless Defendants are restrained and enjoined by order of the court, they will continue 17 to unlawfully use or allow to be used the Property for commercial recreational cannabis activity or 18 commercial medicinal cannabis activity in violation of KCOC section 19.08.055, and they will 19 continue to allow, permit, and encourage this public nuisance on the Property. 20 THIRD CAUSE OF ACTION Violation of MAUCRSA (Business and Professions Code Section 26000 et seq.) 21 (Against Defendant OCTAVIO GONZALEZ, and Does 1-100) 22 23 36. Plaintiff hereby incorporates by reference paragraphs 1 through 22 of this Complaint 24 and makes them part of this Third Cause of Action, as if fully set forth herein. 25 37. From an exact date unknown but not later than May 5, 2021, and continuing to the 26 present, Defendants and their employees and agents have engaged in illegal commercial cannabis 27 activity on the Property within the meaning of and in violation of Business and Professions Code 28 section 26038 et seq., by knowingly allowing, authorizing or participating in the unlawful sale, -7- COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENAL TIES, RESTITUTION, AND OTHER EQUITABLE RELIEF 1 storage, possession, manufacture, consumption or distribution of controlled substances at the Property. 2 38. Defendants and their employees and agents are causing unlicensed commercial 3 cannabis activity to occur on the property by knowingly allowing or participating in the unlawful sale, 4 storage, possession, manufacture, consumption or distribution of controlled substances at the Property. 5 39. Defendants are also unjustly enriched to the extent that they are deriving revenue from 6 unlicensed commercial cannabis activity in violation of state law. 7 FOURTH CAUSE OF ACTION Violation of Unfair Competition Law (Business and Professions Code Section 17200 et seq.) 8 (Against Defendant OCTAVIO GONZALEZ, and Does 1-100) 9 IO 40. Plaintiff hereby incorporates by reference paragraphs 1 through 39 of this Complaint 11 and makes them part of this Fourth Cause of Action, as if fully set forth herein. 12 41. From an exact date unknown but not later than May 5, 2021, and continuing to the 13 present, Defendants, and each of them, have either engaged in, aided and abetted, and/or conspired to 14 engage in acts or practices that constitute unfair competition as defined in Business and Professions 15 Code section 17200. Such acts or practices are described above and include, but are not limited to 16 violation of the following laws: 17 a. Health and Safety Code section 11570 to 11587 by permitting the unlawful 18 sale, storage, possession, manufacture, consumption or distribution of 19 controlled substances at the Property; 20 b. Business and Professions Code section 26038 by engaging in commercial 21 cannabis activity without a license; 22 c. Health and Safety Code section 11366.5(a), which makes it a criminal offense 23 to knowingly rent, lease, or otherwise make the property available for the 24 purpose of unlawfully manufacturing, storing, or distributing a controlled 25 substance; 26 d. Health and Safety Code section 11359 - Sale of cannabis. 27 e. Health and Safety Code section 11366 - Maintain a place to sell controlled 28 substances. -8- COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENAL TIES, RESTITUTION, AND OTHER EQUITABLE RELIEF 1 f. Health and Safety Code 113 78 - Sale of controlled substance. 2 g. California Civil Code section 3479 and KCOC section 19.08.055 by 3 maintaining a public nuisance at the Property. 4 42. As a direct and proximate result of the foregoing acts and practices, Defendants have 5 received income, profits, and other benefits, which they would not have received if Defendants had not 6 engaged in the violations of the Unfair Competition Law described in this Complaint. 7 43. Plaintiff has no adequate remedy at law in that damages are insufficient to protect the 8 public from the harm caused by the conditions described in this Complaint. 9 44. Unless injunctive relief is granted, Defendants will continue to unlawfully use or allow 10 the Property to be used for commercial recreational cannabis activity or commercial medicinal 11 cannabis activity in violation California Civil Code section 3479 and KCOC section 19.08.055, and 12 they will continue to allow, permit, and encourage this public nuisance on the Property. 13 45. By engaging in the unlawful business practices described herein, Defendants are each 14 subject to civil penalties in the amount of $2,500.00 per violation, pursuant to California Business and 15 Professions Code section 17206. 16 PRAYER 17 WHEREFORE, plaintiff prays for judgment against Defendants, and each of them, that: 18 ON THE FIRST CAUSE OF ACTION 19 1. The Property be declared a public nuisance in violation of Health and Safety Code 20 sections 11570-11587. 21 2. The public nuisance be preliminarily and permanently abated m accordance with 22 California Health and Safety Code sections 11570-11587. 23 3. The court issue an order directing the removal from the Property of all fixtures, and 24 other movable property used in conducting, maintaining, aiding, or abetting the nuisance and shall 25 direct their sale in the manner provided for the sale of chattels under execution. 26 4. The Property be closed for one year pursuant to Health and Safety Code section 11581. 27 5. The Court order each defendant to pay a civil penalty of $25,000.00 pursuant to Health 28 and Safety Code section 11581. -9- COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENALTIES, RESTITUTION, AND OTHER EQUITABLE RELIEF 1 ON THE SECOND CAUSE OF ACTION 2 6. The Property be declared a public nuisance in violation ofKCOC section 19.08.055. 3 7. That, under the authority ofKCOC sections 19.114.080 and 19.114.090 and pursuant to 4 Civil Code section 3491, Defendants, their successors, agents, representatives, employees, assigns, and 5 all persons who act in concert with Defendants be permanently enjoined from using or permitting the 6 use of the Property for any commercial cannabis activity or sale of illegal psilocybin products, and 7 from renting, leasing, or otherwise permitting any cannabis or psilocybin dispensary to occupy or 8 remain on the Property. 9 ON THE THIRD CAUSE OF ACTION 10 8. That, under the authority of Business and Professions Code section 26038, the Court 11 asses a civil penalty in the amount of three times the amount of the license fee, for an amount subject 12 to proof but no less than $12,000, for each day that Defendants have operated or permitted the 13 operation of a Cannabis Dispensary at the Property in violation of the MAUCRSA, both before and 14 after the filing of this complaint. 15 9. That, under the authority of Business and Professions Code§ 26038(a), the Court issue 16 an order authorizing Plaintiff to seize and destroy all cannabis and cannabis products associated with 17 the violations alleged herein in accordance with section 114 79 of the Health and Safety Code. 18 ON THE FOURTH CAUSE OF ACTION 19 10. That, under the authority of Business and Professions Code section 17203, Defendants, 20 their successors, agents, representatives, employees, assigns, and all persons who act in concert with 21 Defendants be permanently enjoined from engaging in unfair competition as defined in Business and 22 Professions Code section 17200 (including the acts and practices alleged in this Complaint). 23 11. That, under the authority of Business and Professions Code section 17203, the Court 24 make such orders or judgments as may be necessary (including preliminary injunctive and ancillary 25 relief) to prevent the use or employment by any Defendant of any practice that constitutes unfair 26 competition as defined in Business and Professions Code section 17200 et seq. 27 12. That, under the authority of Business and Professions Code section 17206, the Court 28 assess a civil penalty of $2,500.00 against each defendant, jointly and severally, for each violation of -10- COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENAL TIES, RESTITUTION, AND OTHER EQUITABLE RELIEF 1 Business and Professions Code sections 17200 et seq., in an amount according to proof, but as of 2 August 15, 2023, no less than $2,800,000 as to as to defendant OCTAVIO GONZALEZ, with further 3 daily penalties in the minimum amount of $2,500 a day from August 15, 2023 to the date of a 4 judgment in favor of Plaintiff.. 5 ON EACH CAUSE OF ACTION: 6 13. For costs of suit incurred herein. 7 14. For reasonable expenses incurred in the investigation and prosecution of this action, 8 including an award of attorney's fees where permitted by law. 9 15. For such other and further relief as the court may deem just, proper or equitable. 10 11 Dated: August 15, 2023 CYNTHIA J. ZIMMER District Attorney 12 13 14 By: ~lk' org lKohler, 15 Deputy District Attorney 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- COMPLAINT FOR ABATEMENT, PERMANENT INJUNCTION, CIVIL PENAL TIES, RESTITUTION, AND OTHER EQUITABLE RELIEF