City of Lake Forest v. Evergeen Holistic Collective CA4/3 ( 2014 )

Filed 1/15/14 City of Lake Forest v. Evergeen Holistic Collective CA4/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 LAKE FOREST,
Plaintiff and Respondent, G043909
v. (Super. Ct. No. 30-2009-00298887)
EVERGREEN HOLISTIC COLLECTIVE, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, David R.
Chaffee, Judge. Affirmed.
D|R Welch Attorneys at Law and David R. Welch for Defendant and
Appellant.
Best Best & Krieger, Jeffrey V. Dunn and Laura A. Dahl for Plaintiff and
Respondent.
* * *
Evergreen Holistic Collective contends local bans on medical marijuana
dispensaries are preempted because the Legislature made clear its policy determination in
Health and Safety Code section 11362.775 that the cultivation of marijuana for sick
Californians by qualified cooperative or collective associations is not a nuisance, and
therefore, what the Legislature has authorized, the City of Lake Forest (the city) may not
ban. We agreed in a published opinion, and because the trial court granted the city’s
injunction request solely on the basis of the city’s dispensary ban, we reversed the
preliminary injunction and remanded the matter for further proceedings. The Supreme
Court granted the city’s petition for review and later 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 Compassionate Use Act of 1996 (Health & Saf. Code,
§ 11362.5) or California’s Medical Marijuana Program (Health & Saf. Code, § 11362.7 et
seq.). The high court transferred this case back to us to consider in light of Inland
Empire, and because that decision is controlling authority (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal. 2d 450, 455), we affirm the preliminary injunction. The
parties shall bear their own costs on appeal.
ARONSON, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
FYBEL, J.
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