to terminate after the supreme court decision then they fined five hundred plants and then when they went they had to play up there but they stopped the optional operations of the plant that were still there was still there but they made him in a suburb grown start growing and trivial point i don't know what it is exactly the same they have live plants on the property and over the course of four months somebody had to have watered and you know the whatever there is a do give them lights voided understand your answer i know you started with a pointer you said that starkiller he sees i have no idea what you mean by that what i mean is they started making arrangements to sell the building and they were scaling down the c r c about selling the building and getting rid of their interest and the city believes that that was going to happen shortly and there was actual actual buyer that was getting ready to buy one of putting the children's gym in the building so they're actually actually making club did not have any specific patients who had serious illnesses and the supreme court decision in the open case left open the possibility that there may still be a common necessity defense for those type of person so the city was waiting for the remains and to the district courts determine whether there was in fact going to be a an exemption in that injunction leaving open for the judge there to be asking and that is whether or not the city here had the rights under its illegality provision to a girl or a demands that these people seize that illegal activity or that they would for cause and now my understanding that you have to exhaust all possibilities of all defenses alibi and whatever in order to give that kind of provision that you don't you don't have to be one hundred percent sure that there will be a conviction i mean i let's say you you think they are own you know without without a license for a small house i gather that you would not take the position that you have to wait until the all defense is so exhausted with an actual conviction before you could necessity offense existed as to west hollywood which didn't just oakland you could have but a temporary restraining order to restrain the non judicial foreclosure that was not a lot of things could have been done by either side but the city had been working closely with the sheriff's office and it was the city's understanding that proposition two fifteen was still viable in the state and that these people might still have the people who are members of the cooperated might still here that governments don't move quickly in every case the fact that at their peril let me try something else on you you lost on summary judgment on the right record and what you're really telling us among other things is that you're able to raise a genuine issue of material fact on the unison or defense record i'm having problems with that because if you look at the n s a in order defense you have to be able to demonstrate or create or pass the threshold that you were reasonably without  cause so it really doesn't make much of a difference what you actually believed after evaluating your situation is whether you were reasonably without cause and here you talk about the sheriff's department as far as i can tell the sheriff's department told you at all times that this was against federal what was going on it didn't make any difference what state law was that federal law prohibited this and there's no dispute about that at all in in the record as far as i can tell that you were told it was against federal law that's the end of it and so to provide an exemption but the city understood is this is irrelevant it's whether you were with without cause and you had cause question when you were still in the sheriff's department was there any discussion about whether federal law still prohibited marijuana growing in distribution even though state law permit it yes did you communicate that i communicated that to everybody i communicated at the west hollywood city representatives while i was still kept in the sheriff's office so you had cause you were told federal law gets you w difficult to believe that's what the statutes we have without cause to believe not so your belief becomes irrelevant your analysis becomes irrelevant it's whether you had cause or you didn't argue it cost you because you knew that no matter what federal it was going to be coming down on you but the congress put the word believe in the statute for some reason your are cause to believe cause to believe and and they had cause to believe that the nice circuit a understand that it happened the next day or you know even a week after when you say gee we didn't have time to do anything but four months later it seems to me here you you have plenty of cost to believe and and you have plenty of the court should consider one is what i said before which is the the l s t r c was in the process of selling the building to terminate to you so there was no read reason to take a throw the default action of in fact they're going to go ahead sell the building and they were in the process of it's corroborate it's corroborating evidence of the subjective belief of the city that the federal government took absolutely no action whatsoever the only action to cross the country our consarn across the state was a civil injunction against a club that was very different from the one in west hollywood so in their reports which are profitable we're not saying that the city knew read these reports but they show that that the federal government itself believed that the law was not settled law was not final and they took no action because of that in the city testimony in the record is that we relied on the inaction by relying on the fact that they had no interest and do in doing anything with regard to the property up to the point for years they had no interest after the decision no interest press no interest whatsoever in suddenly out of the blue four months later there's a raid on the property your honor we're not talking about drug dealers here your honor we're talking about a city and who works cooperate in a cooperative to plea with other government presumably and a phone call from the u s attorney to the city attorney of los of west hollywood i think would have thought that but i don't know that the city have to go and call call around make phone calls and say what should we do in this  i believe it's in the record that they've received some of their fourth and i think maybe it was a third of the amount of their lean back from the government as part of the settlement and said he would not settle out there he said he believed in their position and a other with the ongoing relationship with the sheriff and and as far as relying on the the in action by the federal government there's nothing in the record supporting wells fargo's clay as opposed to the city in the city's cooperation with the government issue on that issue i would say initially that mr hoenig stated up here that there were indications after the supreme court case that the city wanted to sell the property i don't recall anything in the record or anything arising in the course of the case that indicates that that occurred and in fact the property did not sell until january of two thousand and three which continued to receive payments on its mortgage so to extent that mr hahn it argues that there was evidence in the record that supports their position that the city did something affirmative to try to meet the minor point of correction i would say that that's actually a little more than five miles by my calculation i think the supreme court decision in oakland cannabis came down may fourteenth two thousand and one and then  was clearly a city in a situation where they did hold a mortgage and they could have exercised as your honor observed the right to foreclose whether judicial or not judicial but you have much more in this case you have a situation where the city see excuse me approached the commander at west hollywood and asked how would you feel if the cannabis club came to west hollywood and then from then on they pretty much brokered this gentleman's agreement  whereby the sheriff's department would shut to close down the cannabis resource center they have to develop some sort of an operating procedural plan and that point of all this is with respect to the innocent underneath us the point that i'm leading up to your honor is that this is a situation where the commission was in a very unique position not only was it someone who held the right to default but it was someone who  hand the city was an entity that actually passed a resolution even before property fifteen was passed in favor of this issue and pretty much  fostering a relationship with the cannabis resource center but i think some disputed that the city was not acting by any stretch of the imagination within federal law when it did that and i think that's why we're here because because of the difference between federal law  state law and i think in that respect the city's innocent don't have the fence fails because under federal law they fail to do anything really but they certainly failed to do fail to meet the requirement them down they would be just in a position of someone holding a commercial paper exercising their right now and i think that what i see is what you're what you're saying is that would have been nothing like they would have passed a person ordinance or something that would some level i would agree that there is probably some obligation that the united states government owes to the city to try to attempt to treat the city with some courtesy and respect but for for purposes of this case i think that because this is a very unique circumstance in which the city basically aligned itself with the can of this resource center contrary to federal law and same thing with the sheriff's department i think there is evidence in the record that indicates that normally the d a would be joining forces with the sheriff's deputies and and trying to enforce federal law but this is a very unique and different situation in which  don't know that we can second guess the d a s enforcement decision at this point but they felt in the exercise of their law enforcement duties that they could not in good faith  give advance warning through las and therefore chose not to do so in this case and i think given the record in this case of how closely aligned the city was with not only those in the sheriff's department but with i c r c i'm not sure that we are in a good position to second guess the d a on that point i suppose that in some other situation probably the more appropriate thing to do would have been to make a phone call as mr when he suggested that i don't think that th makes it clear that it is they say the city's burden to shoot to show that they did everything that they could reasonably do to terminate the use of the property or  be without reasonable cause to know that the property is subject to for sure and the best argument your honor is that the the facts are undisputed on on that issue they had ample notice and they did nothing each before the supreme court decision certainly and even after the supreme court decision and even up until the time of the sale on january thirty first two thousand and one to do anything to terminate these for the property so that's why this case was improper for s then as far as up both of these examples that were provided in the in this in order to facts and that's another point these are examples that are given these are not statutory  are who created the examples congress created an example but it's not definitive saying these are the only ways that an innocent owner can show that they did what they could in a devious interest specifically there is a permission to revoke the power revoke permission to use the property just to use for it being used for illegal purposes it's some point where it's clear that that was happening and the court below on the other side says you didn't raise a finger did you know you whether the city acted in a timely manner based on the on subtle nature of the law the question is timeliness and i don't believe as a matter of law and there's no no body of law at this point i don't believe as a matter of law the supreme court decision in oakland in the open kind of a skate and justice stevens concurring opinion and that in that case said we're fighting a very narrow issue here iraq that there are open questions still remaining as to possible defense of here so did the city as a matter of law act reasonably and waiting during the four or five months time period a city a governmental en o i believe the city reasonably waited see what could happen on the remained and understanding that nothing was happening no action was that the explanation that the city as a matter of law it says that the city did not act in the time