City of Brea v. Cloud 9

 

 

 

 

 

 

Filed 1/15/14 
City of Brea v. Cloud 9 CA4/3

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

 

California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b).  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH
APPELLATE DISTRICT

 

DIVISION
THREE

 
>

CITY OF BREA,         Plaintiff and Respondent,               v.   CLOUD 9, Inc.,         Defendant and Appellant.

G046638            (Super. Ct. No. 30-2011-00444494)            O P I N I O N

                        Appeal
from a judgment of the Superior Court of
Orange County, David R. Chaffee, Judge. 
Affirmed.

                        Law Offices of Matthew
S. Pappas, Mathew S. Pappas; Anthony Curiale, John J. Murphy, III, and Donna
Bader for Defendant and Appellant.

                        James L. Markman, City
Attorney; Richards Watson & Gershon,T. Peter Pierce and Julie A. Hamill for
Plaintiff and Respondent.

*                      *                      *

                        Under href="http://www.fearnotlaw.com/">Code of Civil Procedure section 731,
which authorizes city officials to file a nuisance abatement action under Civil
Code section 3480 in the name of the People of California, the City of
Brea (the city) filed a nuisance cause of action against Cloud 9, Inc. (Cloud
9) for operating a medical
marijuana dispensary in violation of a city ordinance banning such property
uses.  On summary judgment, the trial
court upheld the ban against Cloud 9’s claim it was preempted by state
medical marijuana law, found Cloud 9’s dispensary activities therefore
constituted a per se nuisance based on the ban, entered a permanent injunction
against the dispensary,
and Cloud 9 now appeals.  During the
pendency of this appeal, the California
Supreme Court concluded in City of
Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013)
56 Cal.4th 729 (Inland Empire)
that local governments may ban medical marijuana dispensaries without
triggering preemption by the voters’ enactment of the Compassionate Use Act of
1996 (CUA; Health & Saf. Code, § 11362.5; all further statutory
references are to this code unless noted) or California’s Medical
Marijuana Program (MMP; § 11362.7 et seq.).

                        In supplemental
briefing, Cloud 9 contends Inland Empire
is not dispositive because it did not resolve whether state medical
marijuana law preempts local governments from enforcing dispensary bans with
misdemeanor penalties typically used to enforce other zoning bans.  In a similar vein, Cloud 9 argues >Inland Empire left unanswered other
related questions, including:  (1) whether
a city “can remove a defense[] created by the MMP[]”; (2) â€whether Brea
can do indirectly what it cannot do directly;” (3) whether Brea’s
ordinance “burdens criminal defenses allowed by the MMP[]”; and
(4) whether the city’s ordinance is “overbroad.”  Cloud 9 also argues the city’s ban is
preempted because it amounts to discrimination against seriously ill patients
in violation of the Disabled Persons Act (DPA; Civil Code § 54 et
seq.).  These contentions, however, are
simply variations on Cloud 9’s core preemption claim.  Inland Empire
determined state medical marijuana law does not preempt total local bans, and
we are bound by that conclusion.  (>Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455 (Auto Equity).)  We therefore affirm the judgment.

                        Having noted the
relevant background at the outset, including the city’s initiation of nuisance
proceedings in the People’s name and Cloud 9’s claim the People intended
in the CUA and MMP to promote the very activity the city banned as a nuisance,
we turn to our discussion.     

I

DISCUSSION

A.        Cloud 9 Fails to Distinguish >Inland Empire

                        As noted at the outset, >Inland Empire’s authorization of total local bans on medical marijuana
dispensaries requires that we affirm the judgment.  (Auto
Equity, supra, 57 Cal.2d at
p. 455.)  Cloud 9’s attempts to
distinguish Inland Empire are
unavailing.

                        Cloud 9 argues that
the immunities the MMP provides from criminal prosecution for state law
offenses “bars local governments from using penal legislation to prohibit the
use of property for medical marijuana purposes.”  The city’s municipal code banning dispensaries
provides that “[t]he violation of any of the provisions of this code . . .
constitutes a nuisance, and may be abated by the city through civil process by
means of [a] restraining order, preliminary or permanent injunction, >or in any other manner provided by law for
the abatement of such nuisances,” including criminal misdemeanor penalties.  (Brea City Code, § 1.04.010, italics
added.)

                        The MMP does not preempt
this punishment.  The Legislature expressly
amended the MMP in 2011 to state that “[n]othing in this article shall prevent
a city or other local governing body from . . . [¶] (a)  Adopting local ordinances that regulate the
location, operation, or establishment of a medical marijuana collective” [and] “(b)  The civil and
criminal enforcement of” valid local ordinances.  (§ 11362.83.)  Dispensary bans are valid under >Inland Empire, and Cloud 9’s contention therefore fails.  (Inland
Empire, supra, 56 Cal.4th at
p. 753, fn. 8 [quoting amended § 11362.83 providing for criminal
enforcement of local ordinances].)

                        Cloud 9 raises
other arguments that are simply a variation on its original claim that state
medical marijuana law preempted the city’s dispensary ban.  Cloud 9 argues that a city cannot remove
defenses created by the MMP, cannot “burden[]” the immunities provided by the
MMP, cannot “do indirectly what it cannot do directly,” and that the ordinance
is constitutionally overbroad.   Under Inland Empire,
however, a city is fully authorized to take direct action against dispensaries
by banning them altogether; it need not resort to any indirect measures.  Ensuing misdemeanor prosecution does not
remove or burden any defenses created by the MMP because the punishment is for
violation of a valid city ordinance, not state criminal law.  Inland
Empire also summarily rejected in a footnote any notion the ban impinged on
sick patients’ due process rights or constitutional right to travel by
concluding the right of cities and counties to reject a “‘one size fits all’” local
distribution plan in the MMP would not “so impede the ability of transient
citizens to obtain access to medical marijuana . . . .”  (Inland
Empire, supra, 56 Cal.4th at
p. 756, fn. 10.)  Finally, QPA’s
assertion the city improperly “amended” the MMP is misplaced.  The city did not purport to amend the MMP, but
instead passed a valid ordinance that under >Inland Empire is not preempted by state medical marijuana law.  As they do not affect the controlling nature
of Inland
Empire, the parties’ requests for
judicial notice are all denied, including as noted specifically in footnote 1
below.

C.        The City’s Ban Does Not Violate the Disabled Persons Act

                        Cloud 9 argues the
city’s dispensary ban violates the DPA by discriminating against disabled and
seriously ill persons who establish a medical need for marijuana based on a
physician’s recommendation.  Cloud 9
distinguishes between discrimination and accommodation, noting the latter “requires
more than simply not doing something,” and instead involves “>positive action that requires an
expenditure or change.”  (Cloud 9’s
italics.)  Cloud 9 observes that
portions of the DPA “require[] that certain government entities and businesses
positively accommodate the disabled,”
but Cloud 9 notes it relies only on “the parts of the DPA that prohibit
discrimination on the basis of disability.”  Specifically, Cloud 9 relies on the DPA’s
“sweeping prohibition of practices by local governments that >discriminate against people with
disabilities” (Cloud 9’s italics) by providing in Civil Code
section 54, subdivision (c), that “no qualified individual with a
disability shall . . . be subjected to discrimination by any
such entity.” 

                        The problem with Cloud
9’s position is that the Supreme Court has determined the medical marijuana
activities “authorized by law” under California’s medical marijuana program
(§ 11362.768, subd. (e)) may be countermanded by local government
bans.  The court held in >Inland Empire that a city ban on medical marijuana dispensaries is not preempted
by California medical marijuana law.           The
practical effect of Inland Empire is that a
disabled person may not look to a dispensary as a source of lawful medical
marijuana because its medical marijuana activities are not “authorized by law”
until they are ratified by local law.  In
other words, state medical marijuana law not only incorporates local dispensary
regulations and restrictions (§ 11362.768, subd. (e)), but also outright
bans.  Cloud 9 complains this
interpretation of state medical marijuana law effectively grants local
authorities a license to discriminate against disabled persons by foreclosing a
lawful source of medical marijuana to treat their conditions.  But under >Inland Empire, a source is not lawful unless endorsed by local officials.  We are bound by that conclusion.href="#_ftn1" name="_ftnref1" title="">[1]  (Auto
Equity, supra, 57 Cal.2d at
p. 455.) 

III

DISPOSITION

                        The judgment is affirmed.  The parties shall bear their own costs on
appeal.

 

 

                                                                                   

                                                                                    ARONSON,
J.

 

WE CONCUR:

 

 

 

RYLAARSDAM, ACTING P. J.

 

 

 

FYBEL, J.