In the 100-page complaint filed Wednesday, Apothio LLC says warrant affidavits from Sheriff’s Sgt. Joshua Nicholson and tape-recorded conversations acquired through discovery show that the plot to destroy the hemp plants goes all the way up to the director of the California Department of Fish and Wildlife.
Katherine Eskovitz of Eskovitz Law, representing Apothio, told Law360 on Thursday that the court allowed Apothio to file the amended complaint after partially denying the county defendants’ motion to dismiss the case in April.
Apothio first accused the state DFW and local law enforcement in an April 2020 lawsuit of destroying 17 million hemp plants, ignoring the company’s status as an approved hemp research organization, while falsifying information to get a warrant to do so.
According to Wednesday’s amended complaint, evidence obtained through discovery includes Nicholson’s warrant affidavit, in which he misrepresented a settlement agreement between Apothio and Newbridge Global Ventures to say it indicated they had conspired to transport marijuana to California.
Nicholson did not provide the agreement to the court, Apothio wrote, saying the settlement instead stated the opposite and had Apothio demanding that Newbridge stop the illegal conduct that Newbridge had unilaterally engaged in.
Nicholson also misrepresented testing of Apothio’s crops in the affidavit, according to the complaint, which says the testing was unreliable and biased, facts that Nicholson omitted when he told the court.
According to the complaint, this led to a warrant that Nicholson and others used to justify the destruction in October 2019 of 500 acres of Apothio’s property, without any notice or opportunity to contest the action, because it grew “hot hemp,” or hemp with elevated levels of THC, to use in medicinal research.
Apothio also alleges a tape-recorded conversation with Nicholson has him stating, in regard to the plot to destroy the plants, “If you think this just stopped with me and my immediate boss, you are wrong. If you think it just stopped with him and his immediate boss, you’re wrong. This went all the way up to his chief, lawyers, my lawyers, my sheriff.”
“Now we know in detail the misleading information and material omissions KCSO intentionally provided to deceive the court to obtain a search warrant for cannabis, which search warrant KCSO then used as a guise to destroy legal hemp that was used for legally protected research into important medical conditions, including to treat a rare form of epilepsy in children,” Eskovitz told Law360 on Thursday.
She added that the evidence also shows that the Kern County Sheriff’s Office didn’t use a certified lab to test the hemp before bulldozing the crops, but instead self-tested the cannabis in the field, using officers who were not trained to do such testing.
“Defendants had already decided that they did not like that Apothio could legally grow hot hemp, so after improperly sampling and testing just 0.000212% of Apothio’s legal hemp plants without the use of any certified lab, they decided, in defendant KCSO Sheriff’s Sergeant Joshua Nicholson’s words: ‘Why not just mow it down?'” Apothio said in the complaint.
Representatives for Kern County and the state DFW declined to comment Thursday.
Apothio is represented by Kyle W. Roche, Edward Normand, Joseph M. Delich and Richard R. Cipolla of Roche Freedman LLP and Katherine Eskovitz and Sean Eskovitz of Eskovitz Law.
Kern County and its sheriff’s office are represented in-house by Andrew C. Thomson and Kathleen Rivera.
The California Department of Fish and Wildlife is represented by Bruce D. McGagin, Ethan A. Turner, Stacey L. Roberts and Kelly T. Smith of the California Attorney General’s Office.
The case is Apothio LLC v. Kern County et al., case number 1:20-cv-00522, in the U.S. District Court for the Eastern District of California.
–Additional reporting by Diana Novak Jones and Grace Dixon. Editing by Janice Carter Brown.