Wellness and
Filed 8/14/13 Wellness and Pain Management Center v. City of Riverside CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for purposes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
FOURTH APPELLATE DISTRICT
DIVISION TWO
WELLNESS AND PAIN
MANAGEMENT CENTER,
Plaintiff,
Cross-defendant and Appellant,
v.
CITY OF RIVERSIDE,
Defendant,
cross-complainant and Respondent.
E055578
(Super.Ct.No.
RIC1112538)
OPINION
APPEAL
from the Superior Court
of
County. John W.
Vineyard, Judge. Affirmed.
The
Law Offices of Charles M. Farano and Charles M. Farano for Plaintiff,
Cross-defendant and Appellant.
Office
of The City Attorney, Gregory P. Priamos, James E. Brown, and Neil Okazaki;
Best Best & Kreiger, Jeffrey V. Dunn and Lee Ann Meyer, for Defendant,
Cross-complainant and Respondent.
I. INTRODUCTION
Plaintiff Wellness
and Pain Management
Center (Wellness) appeals from an
order of the trial court granting the request of defendant
City of Riverside
(City) for a preliminary injunction
enjoining Wellness from operating a medical marijuana collective
dispensary. Wellness contends: (1) the City’s ordinance that bans medical
marijuana collectives is invalid because it conflicts with or is preempted by
state law, specifically the Compassionate Use Act of 1996 (CUA) (Health &
Saf. Code, § 11362.5) and the Medical Marijuana Program (MMP) (Health
& Saf. Code, § 11362.7 et seq.); (2) the City’s ordinance is void
under Government Code section 65008; and (3) the City’s ordinance violates
Civil Code section 54. We conclude the
trial court did not abuse its discretion in issuing the preliminary injunction,
and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
Wellness
operated a marijuana distribution facility in the City. A City ordinance prohibits medical marijuana
dispensaries in all zones. (Riverside
Municipal Code, § 19.150.020(A).)
Wellness sued the City for declaratory and injunctive relief, alleging
the ordinance was preempted by the CUA and MMP and was otherwise
unconstitutional and invalid. The City
filed a cross-complaint for abatement of a public nuisance. The trial court granted a
matter for a hearing on a preliminary injunction. Following the hearing and additional
briefing, the trial court issued a preliminary injunction enjoining Wellness
from operating a medical marijuana collective dispensary in the City.
Wellness
appealed from that order and filed a petition for writ of supersedeas. This court denied the petition. Wellness filed a petition for stay of appeal
and application for stay of preliminary injunction in the California Supreme
Court. That court denied the petition
and application.
III. DISCUSSION
Request for Judicial Notice
The
City has requested this court to take judicial
notice of various provisions of its municipal code, including Chapter 1.01
(Code Adopted); Chapter 6.15 (Abatement of Public Nuisances), and Chapter
19.020 (Zoning Code Enactment and Applicability. We reserved ruling on the request for
consideration with the merits of the appeal.
The request is granted. (
3; Evid. Code, §§ 452, subds. (b) & (c), 459.)
Standard of Review
“In
deciding whether to issue a preliminary injunction, a court must weigh two
‘interrelated’ factors: (1) the
likelihood that the moving party will ultimately prevail on the merits and (2)
the relative interim harm to the parties from issuance or nonissuance of the
injunction. [Citation.]†(Butt
v. State of California (1992) 4 Cal.4th 668, 677-678.) On appeal, this court determines whether the
trial court’s decision was an abuse of discretion. (Ibid.) To the extent the trial court’s assessment of
the likelihood of success on the merits depends on legal rather than factual
questions, our review is de novo. (
Cal.App.4th 1452, 1463.)
C.
Preemption
Wellness argues
that the local ordinance that bans medical marijuana collectives is invalid
because it conflicts with or is preempted by the CUA and the MMP.
On May 6,
2013, the California Supreme Court issued its opinion in City of Riverside v. Inland Empire Patients Health and Wellness Center,
Inc. (2013) 56 Cal.4th 729, review granted January 18, 2012,
S198638. The court held that “the CUA
and the MMP do not expressly or impliedly preempt Riverside’s
zoning provisions declaring a medical marijuana dispensary, as therein defined,
to be a prohibited use, and a public nuisance, anywhere within the city
limits.†(Id. at p. 752.)
That decision is
binding on us and is dispositive of the preemption issues raised in the current
appeal. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) The trial court did not abuse its
discretion in issuing the preliminary injunction because Wellness had no chance
of success on the merits. Wellness’s
argument that the trial court improperly presumed the existence of irreparable
harm to the City is therefore moot.
D. Government Code Section 65008
and Civil Code Section 54
Wellness contends
the City’s ordinance is void under Government Code section 65008, which
declares an action of a local entity null and void if it denies any individual or
group “the enjoyment of residence, landownership, tenancy, or any other land
use in this state†because of, among other reasons, “[t]he lawful occupation,
age, or any characteristic†of the individual or group. Wellness also contends
the City’s ordinance violates Civil Code section 54 because it establishes “a
policy that substantially impairs access, by a segment of its citizens, to a
substance that has been identified as an accommodation†by the CUA. Civil Code section 54 provides that
individuals with disabilities or medical conditions have the same rights as the
general public to the full and free use of streets, highways, sidewalks,
walkways, public buildings, medical facilities, and other public places.
The City adopted
the applicable ordinance in 2007. A
facial attack to a zoning ordinance must be brought within 90 days of the
adoption of the ordinance. (Gov. Code,
§ 65009, subd. (c)(1)(B);
name="_ftnref1" title="">[1] County
of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, 1326.) In County
of Sonoma, the operators of a medical marijuana dispensary brought an
action against the county to challenge the ordinance that governed the zoning
of such dispensaries. The trial court
sustained the operators’ challenge on the ground that the ordinance was
discriminatory in nature, and the county brought a petition for writ of
mandate. The appellate court held that
the challenge to the ordinance was a facial challenge that was required to be
brought within 90 days of the effective date of the ordinance. (Id.
at p. 1326.)
Here, similarly,
we conclude Wellness’s facial attack on the City’s ordinance was barred under
Government Code section 65009, subdivision (c)(1)(B).
IV. DISPOSITION
The order
appealed from is affirmed. Costs on
appeal are awarded to City.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
KING
J.
name="_ftn1" title=""> [1] “(c)(1)
Except as provided in subdivision (D), no action or proceeding shall be
maintained in any of the following cases by any person unless the action or
proceeding is commenced and service is made on the legislative body within 90
days after the legislative body’s decision:
[¶] . . . [¶]
“(B) To attack, review, set aside, void, or annul
the decision of a legislative body to adopt or amend a zoning ordinance.†(Gov. Code, § 65009, subd. (c)(1)(B).)
