County of Los Angeles v. Acme Silver Place CA2/2

Filed 5/23/16 County of Los Angeles v. Acme Silver Place CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION TWO
COUNTY OF LOS ANGELES, B262874
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC555178)
v.
ACME SILVER PLACE et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Rita Miller, Judge. Affirmed.
Matthew Pappas and Charnel James for Defendants and Appellants.
Mary C. Wickham, County Counsel, Elaine M. Lemke, Acting Assistant County
Counsel, Sari J. Steel, Principal Deputy County Counsel, Tracy Swann, Deputy County
Counsel, for Plaintiff and Respondent.
___________________________________________________
The defendants operate a medical marijuana dispensary in an unincorporated area
of Los Angeles County. The trial court enjoined defendants’ operation because the
County Code bans marijuana dispensaries. Defendants have not shown that they have
standing to claim disability discrimination, and their challenge to the legality of the
County Code has no merit. We affirm.
FACTS AND PROCEDURAL HISTORY
In August 2014, the County of Los Angeles filed a complaint for injunctive relief
to abate a public nuisance.1 The complaint alleges that defendants operate a medical
marijuana dispensary (MMD) in Hacienda Heights, an unincorporated County area.
Zoning enforcement officers entered the property on numerous occasions in 2013 and
2014 to confirm that defendants were operating a MMD, in violation of the County Code.
A hearing was scheduled on the County’s request for a preliminary injunction.
Defendants’ opposition, filed the day before the hearing, did not reach the courtroom in
time. The trial court did not consider the untimely opposition because the County was
prejudiced by its inability to respond. The court denied defendants’ request for a
continuance, noting that the County had waited “a long time for a hearing,” owing to the
court’s congested calendar.
After argument, the court determined that the County is entitled to a preliminary
injunction because it is likely to prevail on the merits at trial and the interim harm to the
County is greater than the harm to the defendants. The court signed an order on
January 21, 2015, finding that defendants made additions and alterations to their property
without obtaining required building permits, and are operating a MMD in an
unincorporated area in violation of the County Code. The appeal is timely.
1 Defendants are Acme Silver Place; LPC Center, Inc. dba The Clinic; Marcos R.
Granado; Yona Mizrachi; Eva Fitzhugh; and Valerie G. Lundsford, as trustee of the
Estella L. Sanders Trust.
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DISCUSSION
1. Appeal and Review
The trial court’s order granting the County’s request for an injunction is
appealable. (Code Civ. Proc., § 904.1, subd. (a)(6).) The question is whether the court
abused its discretion in weighing two interrelated factors: (1) the likelihood that the
plaintiff will prevail on the merits at trial, and (2) the interim harm that the plaintiff is
likely to sustain if the injunction were denied, as compared to the harm the defendant is
likely to suffer if the preliminary injunction were issued. (People ex rel. Gallo v. Acuna
(1997) 14 Cal.4th 1090, 1109.)
Issues of fact are subject to review under the substantial evidence standard.
(People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at pp. 1136-1137; People ex rel. Feuer
v. Nestdrop, LLC (2016) 245 Cal.App.4th 664, 672.) “[I]f the ‘likelihood of prevailing
on the merits’ factor depends upon the construction of a statute or another question of
law, rather than evidence to be introduced at trial, our review of that issue is independent
or de novo.” (Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202
Cal.App.4th 1250, 1261; Field v. Bowen (2011) 199 Cal.App.4th 346, 353.) The trial
court need not expressly state that the validity of an ordinance was within the scope of its
ruling. (North Coast Coalition v. Woods (1980) 110 Cal.App.3d 800, 805.)
2. State Laws Regarding Medical Marijuana
Marijuana use by “serious ill Californians” is decriminalized if “recommended by
a physician,” under the Compassionate Use Act. (Health & Saf. Code, § 11362.5, subds.
(b)(1)(A), (d).) The Medical Marijuana Program, enacted in 2003, enhances the access of
qualified patients to medical marijuana. (City of Riverside v. Inland Empire Patients
Health & Wellness Center, Inc. (2013) 56 Cal.4th 729, 739.) These state laws have no
effect on federal law, which prohibits the possession, distribution or production of
marijuana. (Id. at p. 740; United States v. Oakland Cannabis Buyers’ Cooperative (2001)
532 U.S. 483; Gonzales v. Raich (2005) 545 U.S. 1.) There is no constitutional or
statutory right to possess, cultivate, distribute or transport medical marijuana. (Safe Life
Caregivers v. City of Los Angeles (2016) 243 Cal.App.4th 1029, 1032.)
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Although the Compassionate Use Act and the Medical Marijuana Program allow
the use of marijuana by seriously ill persons, these laws do not prevent local authorities
from exercising their police power by enacting ordinances that bar the operation of
MMD’s within their borders. (City of Riverside v. Inland Empire Patients Health &
Wellness Center, Inc., supra, 56 Cal.4th at p. 738; City of Claremont v. Kruse (2009) 177
Cal.App.4th 1153, 1176.)
3. The County Code Does Not Conflict with Disability Laws
The County prohibits the operation of MMD’s in unincorporated areas. The
County Code reads, “This Section is established [ ] [t]o ban medical marijuana
dispensaries in all zones in the County.” (Los Angeles County Code, § 22.56.196
(A)(1).)2 Defendants do not deny that they operated a MMD in an unincorporated area of
the County. They argue, unavailingly, that the County’s ban on MMD’s conflicts with
state and federal laws protecting disabled persons.
a. The California Disabled Persons Act (DPA)
The DPA states, “Individuals with disabilities or medical conditions have the same
right as the general public to the full and free use of the streets, highways, sidewalks,
walkways, public buildings, medical facilities, including hospitals, clinics, and
physicians’ offices, public facilities, and other public places.” (Civ. Code, § 54, subd.
(a).) A case may be made “only if the plaintiff personally encountered the violation on a
particular occasion,” was deterred from accessing a public place, and “experienced
difficulty, discomfort, or embarrassment.” (Civ. Code, § 55.56, subds. (b), (c).)
At the outset, defendants have not shown that they are “individuals with
disabilities or medical conditions” who were personally deprived of access to a public
place. Without citation, the opening brief asserts that Acme Silver Place has standing to
assert the DPA as a “marijuana collective.” There is no evidence that defendants run a
marijuana collective: the record is devoid because defendants failed to submit timely
2 Throughout their brief, defendants cite “Los Angeles County Municipal Code
section 2701” as the target of their legal challenge. It does not exist.
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opposition below or a timely appendix on appeal. Lack of standing is a jurisdictional
defect that can be raised at any time. (Common Cause v. Board of Supervisors (1989) 49
Cal.3d 432, 438-439.)
Apart from defendants’ lack of standing, the DPA is not designed to ensure access
to marijuana. The DPA and the Unruh Civil Rights Act (Civ. Code § 51 et seq.) “afford
disabled persons alternative remedies for discrimination based on architectural barriers to
access.” (Flowers v. Prasad (2015) 238 Cal.App.4th 930, 940; Molski v. Arciero Wine
Group (2008) 164 Cal.App.4th 786, 791-792; Madden v. Del Taco, Inc. (2007) 150
Cal.App.4th 294, 301.) “Its focus is upon physical access to public places.” (Turner v.
Association of American Medical Colleges (2008) 167 Cal.App.4th 1401, 1412.) The
DPA does not apply to defendants’ desire to engage in the business of selling marijuana.
b. The Americans with Disabilities Act (ADA)
The ADA prohibits public entities from denying the benefit of public services to
any “qualified individual with a disability.” (42 U.S.C. § 12132.) Defendants lack
standing to make the ADA claim, as there is no evidence that they are qualified
individuals with disabilities, no evidence that they represent such individuals and no
evidence that they possess attributes that might otherwise grant them standing to assert
the rights of those individuals. As explained above, defendants presented no evidence at
all. Thus, on the record before us, defendants are able-bodied business people hoping to
make money by selling marijuana.
In any event, medical marijuana use is not protected by the ADA. Even as to
plaintiffs “who face debilitating pain,” the legislative history is clear that “the ADA
defines ‘illegal drug use’ by reference to federal, rather than state law, and federal law
does not authorize the plaintiffs’ medical marijuana use. We therefore necessarily
conclude that the plaintiffs’ medical marijuana use is not protected by the ADA.” (James
v. City of Costa Mesa (9th Cir. 2012) 700 F.3d 394, 397.) The 2015 enactment of an
appropriations bill that prohibits the use of federal funds for drug enforcement actions in
states that authorize medical marijuana, does not enlarge the ADA to create a federal
“right” to sell or use marijuana. The ADA does not apply to defendants.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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