Safe Life Caregivers v. City of Los Angeles

Filed 1/13/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
SAFE LIFE CAREGIVERS et al., B257809
Plaintiffs and Appellants, (Los Angeles County
v. Super. Ct. No. BC521581)
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County. Amy
Hogue, Judge. Affirmed.
Law Offices of Stanley H. Kimmel and Stanley H. Kimmel for Plaintiffs and
Appellants.
Michael N. Feuer, City Attorney, Terry P. Kaufmann-Macias, Assistant City
Attorney, and Steven M. Blau, Deputy City Attorney, for Defendant and Respondent.
__________________________
*
The opinion is certified for publication with the exception of sections C.2.-C.14 of
the Discussion.
In this appeal we reiterate what other appellate courts, including our Supreme
Court, have already held – there is no constitutional or statutory right to possess,
cultivate, distribute, or transport marijuana for medical purposes. (City of Riverside v.
Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, 739
(Riverside).) We apply that rule of law to appellants’ challenge to Proposition D (Prop
D), the current medical marijuana ordinance of the City of Los Angeles (the City),
enacted by voters in 2013. We conclude for that and other reasons the trial court
correctly dismissed appellants’ complaint.
By way of further introduction, this is the first of two related appeals challenging
the medical marijuana ordinances in the City. In this appeal, nearly 20 medical marijuana
collectives and a handful of medical marijuana patients, who are officers of the
collectives, bring numerous challenges to Prop D.1 None of the appellants’ arguments
relies on any facts specific to any individual appellant; we therefore consider their
arguments collectively. The sole defendant is the City. The City prevailed on a demurrer
to appellants’ first amended complaint. Appellants seek leave to amend their complaint
to raise a previously unpled challenge to Prop D. We conclude that Prop D was a
properly enacted ordinance, reject all of appellants’ other arguments, and affirm.
1 Appellants here are: (1) Safe Life Caregivers; (2) Optimal Global Healing;
(3) 420 Caregivers; (4) Ultracure; (5) Collective Growers Foundation; (6) La Luna
Collective; (7) Mid-City Med Center, Inc.; (8) Practical Cure, Inc.; (9) Circle G Health
Group; (10) Quality Genetix; (11) Alternameds; (12) Associated Patients Collective;
(13) Precision Medical Caregivers, Inc.; (14) LA Collective Herbal, Inc.; (15) Green
Cross LAX; (16) Pacific Highway Caregivers, Inc.; (17) View Park Care Givers, Inc.;
(18) Midcity Wellness Center; (19) Demarcio Posey; (20) Jose Fernandez; (21) Eugene
Wale; (22) Shon Killman; (23) Jana Cahn; (24) Cesar Aguirre; and (25) Manuel
Madrigal.
In the related matter, Melrose Quality Pain Relief v. City of Los Angeles,
B257789, a single collective and its owners bring challenges to the City’s prior
ordinances and Prop D, and assert several causes of action arising out of a raid on the
premises.
2
FACTUAL AND PROCEDURAL BACKGROUND
Appellants’ principal charge on appeal is a multi-faceted attack on the process by
which Prop D was enacted. They also challenge the substantive provisions of the
ordinance, particularly as those terms relate to registration under the City’s prior medical
marijuana ordinances. The factual history of this case is, as it turns out, the legal history
of medical marijuana in Los Angeles.
A. State Statutes – CUA and MMPA
The history of legalizing medical marijuana in California begins with the
Compassionate Use Act of 1996 (CUA) enacted by statewide initiative. The CUA is
codified at Health and Safety Code section 11362.5. It provides that two specific
criminal penalties (relating to the possession and cultivation of marijuana) “shall not
apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates
marijuana for the personal medical purposes of the patient upon the written or oral
recommendation or approval of a physician.” (Health & Saf. Code, § 11362.5, subd. (d).)
While subdivision (a) of the statute sets forth broad purposes for the statute – “[t]o ensure
that seriously ill Californians have the right to obtain and use marijuana for medical
purposes where that medical use is deemed appropriate and has been recommended by a
physician . . .” – the substantive provisions of the law are actually quite narrow,
providing not an affirmative right, but merely a limited criminal immunity. (Riverside,
supra, 56 Cal.4th at p. 739; Conejo Wellness Center, Inc. v. City of Agoura Hills (2013)
214 Cal.App.4th 1534, 1544 (Conejo).)
In 2003, the Legislature followed the CUA with the Medical Marijuana Program
Act (MMPA). (Health & Saf. Code, § 11362.7 et seq.) The MMPA expands the criminal
immunities of the CUA; qualified patients are now immune from liability for violating
six different sections of the Health and Safety Code. (Health & Saf. Code, § 11362.765.)
The MMPA also discusses, for the first time, the collective cultivation of marijuana. It
provides that qualified patients and their primary caregivers “who associate within the
State of California in order collectively or cooperatively to cultivate marijuana for
3
medical purposes, shall not solely on the basis of that fact be subject to state criminal
sanctions” under the same six specified sections of the Health and Safety Code. (Health
& Saf. Code, § 11362.775.)
Together, the CUA and MMPA constitute “limited exceptions to the sanctions of
this state’s criminal and nuisance laws in cases where marijuana is possessed, cultivated,
distributed, and transported for medical purposes.” (Riverside, supra, 56 Cal.4th at
p. 739.) They have no effect on the federal ban on marijuana use. (Id. at p. 740.) Nor do
they create a state statutory right to use, cultivate, or collectively cultivate medical
marijuana. (Id. at p. 762; 420 Caregivers, LLC v. City of Los Angeles (2012)
219 Cal.App.4th 1316, 1342 (420 Caregivers); County of Los Angeles v. Hill (2011)
192 Cal.App.4th 861, 869 (Hill); People v. Urziceanu (2005) 132 Cal.App.4th 747, 773
(Urziceanu).)
B. The City’s First Attempt at Legislation – Interim Control Ordinance
In 2007, the City made its first attempt to regulate medical marijuana dispensaries,
“[i]n response to citizen complaints and law enforcement concerns about the proliferation
of storefront medical marijuana dispensaries within City limits.” (420 Caregivers, supra,
219 Cal.App.4th at p. 1326.) City Ordinance No. 179027 provided as a temporary
measure that no “Medical Marijuana Dispensaries” could be established or operated
within the City. “Medical Marijuana Dispensary” was broadly defined to mean “any use,
facility or location, including but not limited to a retail store, office building or structure
that distributes, transmits, gives, dispenses, facilitates or otherwise provides marijuana in
any manner, in accordance with State law, in particular [the CUA and MMPA]
inclusive.” The ordinance came with a major exception: its prohibition did not apply to
any dispensary established before the ordinance’s effective date (September 14, 2007)
and operating in accordance with state law, if the owner or operator of the dispensary
were to register with the City Clerk by filing certain identified documents within 60 days
(by November 13, 2007). (420 Caregivers, at pp. 1326-1327.) This Interim Control
4
Ordinance was intended to allow the City the time it needed to develop a comprehensive
strategy for regulating medical marijuana dispensaries.2
C. The City’s Second Attempt – Grandfather Prior Registrant Ordinance
In 2010, the City passed its second attempt to regulate dispensaries. City
Ordinance No. 181069 was the City’s try at a more permanent ordinance. It imposed
regulations on medical marijuana collectives.3 It defined a “collective” as an
“association, composed solely of four or more qualified patients . . . and designated
primary caregivers . . . who associate at a particular location to collectively or
cooperatively cultivate marijuana for medical purposes, in strict accordance with [the
CUA and MMPA].” (L.A. Mun. Code, fmr. § 45.19.6.1.) The ordinance required all
collectives to register, and facially capped the maximum number of collectives in the City
at 70, to be proportionally distributed by population. (L.A. Mun. Code, fmr. § 45.19.6.2.)
However, the ordinance provided that the number of collectives could in fact exceed 70,
as it included a grandfather clause that allowed previously existing collectives to remain
if they were, among other things, properly registered under the Interim Control
Ordinance.4 It appeared that there were substantially more than 70 collectives in
operation which could qualify under the grandfather clause; as such, if it had become
2 Because the ordinance is called an “Interim Control Ordinance,” the parties refer
to it as the “ICO.” In the interests of clarity, we use acronyms to refer only to the state
statutes (such as CUA and MMPA) as those shorthands are used regularly in appellate
opinions, but, to avoid acronym glut, we use descriptive titles for the City’s series of
ordinances.
3 As we shall discuss, appellants find it significant that the Interim Control
Ordinance applied to dispensaries while the Grandfather Prior Registrant Ordinance
applied to collectives. It is not. (420 Caregivers, supra, 219 Cal.App.4th at pp. 1339-
1340.)
4 Other requirements included that the grandfathered collective had continuously
operated under the same ownership and had not been cited by the City for a nuisance or
public safety violation.
5
fully operational, the Grandfather Prior Registrant Ordinance would likely have had the
effect of prohibiting all collectives which had not previously registered under the Interim
Control Ordinance.
D. The City’s Third Attempt – The Grandfather/Lottery Ordinance
Many collectives brought suit against the City, challenging the terms of the
Grandfather Prior Registrant Ordinance.5 The collectives sought a preliminary
injunction, and the trial court concluded, among other things, that the Grandfather Prior
Registrant Ordinance denied equal protection to collectives which had not registered
under the Interim Control Ordinance. (420 Caregivers, supra, 219 Cal.App.4th at
p. 1330.)
The City then enacted a third ordinance, as an urgency measure, to modify the
Grandfather Prior Registrant Ordinance to respond to the trial court’s ruling while the
City’s appeal of the preliminary injunction was pending. City Ordinance No. 181530
changed the grandfathering provision of the Grandfather Prior Registrant ordinance to
allow all collectives which had been in operation on or before September 14, 2007 to
register for the right to participate in a lottery, from which 100 collectives would be
chosen for inspection and, if all other requirements were satisfied, registration. Pursuant
to the terms of the ordinance, all collectives that met the prerequisites for the lottery were
required to register for it shortly after the ordinance became effective.6 We call this the
Grandfather/Lottery Ordinance.
E. Appeal of the Injunction
The City appealed the preliminary injunction against the Grandfather Prior
Registrant Ordinance, and, on July 3, 2012, we issued our opinion in 420 Caregivers
reversing the preliminary injunction and upholding the original grandfathering provision
5 At least some of those collectives are appellants in this case.
6 It is unclear whether the lottery ever occurred.
6
of the Grandfather Prior Registrant Ordinance. (420 Caregivers, supra, 219 Cal.App.4th
at pp. 1338-1339.) Specifically, we recognized that straightforward grandfathering
provisions generally survive rational relation equal protection review, and we concluded
that the further requirement of compliance with prior registration laws was a similarly
valid basis on which to distinguish between businesses. (Ibid.) The case was not
immediately final, however; review was granted on September 19, 2012, while the
Supreme Court was considering, in Riverside, issues of state law preemption of local
medical marijuana regulation. Ultimately, the Supreme Court would conclude that state
law does not preempt local medical marijuana regulation, and upheld a city’s total ban on
collectives. (Riverside, supra, 56 Cal.4th at p. 762.) As a result, it dismissed review in
420 Caregivers and, in November 2013, ordered partial publication of the 420 Caregivers
opinion.7
F. The City’s Fourth Attempt – A Brief Ban
In July 2012, prior to Riverside and finality of 420 Caregivers, the City enacted
City Ordinance No. 182190, which banned nearly all collectives. A referendary petition
was brought to the City Council regarding the ordinance and, after considering
comments, objections and proposals from the public, the City Council repealed the ban
on October 9, 2012. (L.A. Ord. No. 182286.) This particular ordinance has no effect on
our disposition of the appeal. It is included only for historical completeness.
G. The Enactment of Prop D
It was in this environment that Prop D came to be. On January 29, 2013, some
four months after the repeal of the prior ban on collectives, the City Council introduced,
and on February 5, 2013, it passed, an ordinance calling a special election for a public
7 The Supreme Court excluded from publication this court’s discussion of
preemption issues which the Supreme Court resolved in Riverside.
7
vote on Prop D. (L.A. Ord. No. 182443.) On May 21, 2013, the voters approved Prop D
by majority vote.
Prop D enacted City Ordinance No. 182580, which repealed the existing sections
of the municipal code relating to medical marijuana, and enacted new provisions. Under
Prop D, a “medical marijuana business” is defined as any “location where marijuana is
cultivated, processed, distributed, and delivered, or given away to a qualified patient . . .
or a primary caregiver.” (L.A. Mun. Code, § 45.19.6.1, subd. A.) Prop D then provides
that it is “unlawful to own, establish, operate, use, or permit the establishment or
operation of a medical marijuana business . . .” in the City. (L.A. Mun. Code,
§ 45.19.6.2, subd. A.) The next section of Prop D, however, provides an exception for
medical marijuana businesses that meet a litany of requirements, the most important of
which for our purposes is that the medical marijuana business must have timely
registered under both the Interim Control Ordinance and the Grandfather/Lottery
Ordinance. (L.A. Mun. Code, § 45.19.6.3, subds. B & C.) Other requirements include
restrictions on hours of operation, limits on proximity to land zoned residential, and
limits on proximity to schools, parks, religious institutions, and other medical marijuana
businesses. (L.A. Mun. Code, § 45.19.6.3, subds. G, K & L.)
Just as the CUA and MMPA provide only immunities against certain criminal
statutes, not a right to use and collectively cultivate medical marijuana, (Riverside, supra,
56 Cal.4th at pp. 739, 762-763), Prop D does not provide a right for these excepted
medical marijuana businesses to operate, but only limited immunity. Los Angeles
Municipal Code section 45.19.6.3 provides as follows: “Notwithstanding the activities
prohibited by this Article, and notwithstanding that the medical marijuana business is not
and shall not become a permitted use in the City for as long as this Article remains in
effect, a medical marijuana business shall not be subject to the remedies set forth in Los
Angeles Municipal Code Sections 11.00 [public nuisance and misdemeanor] or 12.27.1
[administrative nuisance abatement proceedings] solely on the basis of: (1) an activity
prohibited by Section 45.19.6.2 [Prop D’s ban on medical marijuana businesses]; and
(2) the fact that medical marijuana business is not a permitted use in the City, . . . only if
8
that medical marijuana business does not violate any of the [enumerated] medical
marijuana business restrictions.”
H. Appellants’ Operative Complaint
Appellants filed their complaint on September 16, 2013, and their operative first
amended complaint two days later. The operative complaint contains 15 causes of action
challenging Prop D. Briefly stated, the complaint alleges that Prop D:
First Cause of Action: denies appellants procedural and substantive due process;
Second Cause of Action: violates their right to equal protection;
Third Cause of Action: is an unconstitutional special law that favors old
collectives over new ones (Cal. Const., art. IV, § 16);
Fourth Cause of Action: unconstitutionally grants special privileges and
immunities to some pre-existing non-conforming collectives, but not others (Cal. Const.,
art. 1, § 7(b));
Fifth Cause of Action: is preempted by Health and Safety Code section 11570,
governing drug house abatement;
Sixth Cause of Action: is not a proper exercise of local regulatory power under
Riverside;
Eight Cause of Action: violates appellants’ rights to privacy and association;
Ninth Cause of Action: constitutes improper land use discrimination based on
disability (Gov. Code, § 65008);
Tenth Cause of Action: constitutes improper discrimination by a business
establishment (the City) on the basis of medical condition (Civ. Code, § 52);
Eleventh Cause of Action: threatens appellants with criminal sanctions for
exercising their state rights to use and collectively cultivate medical marijuana (Civ.
Code, § 52.1);
Twelfth Cause of Action: constitutes disability discrimination by the City (Gov.
Code, § 11135); and
9
Thirteenth Cause of Action: constitutes an improper taking without just
compensation.
The complaint also alleges:
Fourteenth Cause of Action: that the City’s passage of a motion to instruct the
Los Angeles Police Department (LAPD) to work with the federal government to create a
citywide enforcement strategy is a waste of public funds;
Fifteenth Cause of Action: certain document disclosure provisions of Prop D
violate appellants’ Fifth Amendment right against self-incrimination; and
Sixteenth Cause of Action: Prop D unnecessarily regulates access to medical
marijuana without a rational basis or compelling reason.8
The City demurred, arguing, in large part, that the court decisions in Riverside and
420 Caregivers barred many of appellants’ causes of action. Additional arguments
addressed other causes of action.
I. Appellants’ New Theory – City Charter Section 558
After the City demurred, but before appellants opposed the demurrer, appellants
moved ex parte for a temporary restraining order (TRO) prohibiting enforcement of
Prop D. The basis for appellants’ motion was their new theory that Prop D was void ab
initio because it was adopted in violation of City Charter section 558. That section sets
forth procedures to be applied “to the adoption, amendment or repeal of ordinances,
orders or resolutions by the Council” concerning zoning or land use. Among other
procedures, Charter section 558, subdivision (b)(2) requires that, after initiation, such a
proposed ordinance is to be referred to the City Planning Commission before action by
the City Council. Appellants argued that, because Prop D was not referred to the
Planning Commission, it was void.
8 The complaint actually alleges 17 causes of action. One, alleging Prop D violates
the single subject rule (7th cause of action), was voluntarily dismissed on appellants’
motion. Another, seeking attorney’s fees under Code of Civil Procedure section 1021.5
(17th cause of action), is concededly seeking only a remedy and is not a valid cause of
action standing alone. We therefore do not consider those causes of action further.
10
The City opposed the application for a TRO arguing that Charter section 558
applies to the adoption of ordinances “by the Council,” while Prop D was adopted by the
electorate. The City therefore took the position that no submission to the Planning
Commission was required, and Prop D was properly adopted. The trial court denied the
TRO.9
J. The Court Sustains the Demurrer
In response to the City’s demurrer, appellants argued that Riverside and 420
Caregivers were distinguishable – in part because appellants had a right that the City
would comply with Charter section 558. In other words, appellants incorporated their
argument that Prop D was void ab initio into an argument that Prop D’s substantive
provisions violated their rights.10 At the hearing on the demurrer, the trial court
specifically asked appellants’ counsel how the complaint would be amended if leave were
granted. Counsel responded that appellants would flesh out their argument based on
Charter section 558. The court replied that it was accepting appellants’ allegations
regarding Charter section 558 and considering them as if formally made.
The court sustained the demurrer without leave to amend. The court addressed
each cause of action and concluded none stated a claim. Specifically, the court found that
most of appellants’ complaint was barred by Riverside and 420 Caregivers. The court
rejected appellants’ Charter section 558 argument, concluding the provision simply did
not apply to ordinances adopted by referendum.
9 On appeal, appellants do not challenge the denial of their request for a TRO. They
claim the trial court erred by subsequently sustaining the City’s demurrer despite their
Charter section 558 argument and by refusing to allow them leave to amend to better
plead that theory.
10 At the hearing on the demurrer, appellants’ counsel repeated appellants’ Charter
section 558 argument. When the court asked to which causes of action the argument
applied, counsel replied, “I think it’s an overarching problem for all the causes of action.”
11
K. The Court Denies Appellants’ Motion for Reconsideration
Appellants then moved for reconsideration, in an attempt to better allege their
Charter section 558 argument. The court denied the motion.
L. Judgment and Appeal
Judgment of dismissal was entered on June 6, 2014. Appellants filed a timely
notice of appeal.11
M. Appellants’ New Theory on Appeal – Government Code Section 65804
On appeal, appellants argue for the first time they should be granted leave to
amend to assert a new theory -- that Prop D was adopted in violation of Government
Code section 65804, a section of the state Zoning Act, which imposes minimal
procedural standards for city zoning hearings. This argument was not advanced either in
opposition to the demurrer or in support of the TRO. We consider this argument in our
Discussion section.
It is not entirely clear from appellants’ briefing which causes of action, and which
arguments, appellants intend to pursue on appeal.12 In an abundance of caution – and
because we conclude none of appellants’ arguments has merit – we address each of
them. We first consider appellants’ arguments based on the alleged improper enactment
of Prop D – including the Charter section 558 and Government Code section 65804
arguments to which appellants devote the bulk of their briefing. We then turn to the
11
On appeal, the City filed a request for judicial notice of numerous City ordinances,
Charter provisions, municipal code provisions, and other legislative materials.
Appellants filed no opposition. We grant the request.
12 For example, the argument section of appellants’ opening brief on appeal does not
mention Charter section 558 at all. (The only reference to Charter section 558 is on
page 6, where appellants simply indicate the basis for the trial court’s ruling on the City’s
demurrer.) However, after the City argued in its respondent’s brief that Prop D did not
violate Charter section 558, appellants picked up the argument appellants made in the
trial court and addressed it at length in their reply brief.
12
challenges to the substance of Prop D on which appellants’ complaint was in fact
founded.
DISCUSSION
A. Standard of Review
“In reviewing the sufficiency of a complaint against a general demurrer, we are
guided by long-settled rules. ‘We treat the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law.
[Citation.] We also consider matters which may be judicially noticed.’ [Citation.]
Further, we give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context. [Citation.] When a demurrer is sustained, we determine whether
the complaint states facts sufficient to constitute a cause of action. [Citation.] And when
it is sustained without leave to amend, we decide whether there is a reasonable possibility
that the defect can be cured by amendment: if it can be, the trial court has abused its
discretion and we reverse; if not, there has been no abuse of discretion and we affirm.
[Citations.] The burden of proving such reasonable possibility is squarely on the
plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To meet [the]
burden of showing abuse of discretion, the plaintiff must show how the complaint can be
amended to state a cause of action. [Citation.] However, such a showing need not be
made in the trial court so long as it is made to the reviewing court.” (William S. Hart
Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1621.)
B. Prop D was Lawfully Enacted by Referendum
Appellants’ challenge to the enactment of Prop D encompasses four different
arguments. First, appellants argue that Prop D was enacted in violation of Government
Code section 65804. Second, appellants argue that recently enacted legislation supports
their Government Code section 65804 argument. Third, appellants argue that Prop D was
enacted in violation of Charter section 558. Fourth, appellants argue that Prop D grants
the equivalent of a conditional use permit or variance to the grandfathered collectives,
13
without satisfying the requirements for a conditional use permit or variance. Each
argument is unavailing.
1. Prop D’s Enactment Did Not Violate Government Code Section 65804
Government Code section 65804 provides for certain minimal procedural
requirements for all local zoning hearings.13 The statute is part of the state’s Zoning Act.
While the bulk of the Zoning Act’s requirements do not apply to charter cities, such as
Los Angeles (§ 65803), the minimal procedures of section 65804 do.
By its terms, the Zoning Act is intended “to provide only a minimum of limitation
in order that counties and cities may exercise the maximum degree of control over local
zoning matters.” (§ 65800.) It provides that the legislative body of any county or city
may adopt zoning ordinances, which establish restrictions on land use.14 (§ 65850.)
When zoning ordinances are adopted or amended, certain procedures must be followed.
(§ 65853.)
The minimal procedural requirements all cities (including charter cities like Los
Angeles) must follow in section 65804, include the following, “All local city and county
13 Section 65804 provides, in pertinent part: “The following procedures shall govern
city and county zoning hearings: [¶] (a) All local city and county zoning agencies shall
develop and publish procedural rules for conduct of their hearings so that all interested
parties shall have advance knowledge of procedures to be followed. The procedural rules
shall incorporate the procedures in Section 65854. [¶] (b) When a matter is contested
and a request is made in writing prior to the date of the hearing, all local city and county
planning agencies shall insure that a record of all their hearings shall be made and duly
preserved, a copy of which shall be available at cost. The city or county may require a
deposit from the person making the request. [¶] (c) When a planning staff report exists,
the report shall be made public prior to or at the beginning of the hearing and shall be a
matter of public record. [¶] (d) When any hearing is held on an application for a change
of zone for parcels of at least 10 acres, a staff report with recommendations and the basis
for those recommendations shall be included in the record of the hearing.”
All future undesignated statutory references are to the Government Code.
14 Due to the broad scope of section 65850, we consider Prop D, at least in part, a
zoning ordinance.
14
zoning agencies shall develop and publish procedural rules for conduct of their hearings
so that all interested parties shall have advance knowledge of procedures to be followed.
The procedural rules shall incorporate the procedures in Section 65854.” (Italics added.)
The “procedures in Section 65854,” include a planning commission hearing. Appellants
argue that such a hearing is required before a zoning ordinance is adopted; the City does
not appear to disagree in principle.
The City argues, however, that the Zoning Act requirements apply only to the
enactment of ordinances by local legislative bodies and not to the enactment of
ordinances by initiative or referendum (whether in a charter city or general law city).
The City is correct. In 1976, the Supreme Court concluded that Zoning Act “notice and
hearing provisions govern only ordinances enacted by city council action and do not limit
the power of municipal electors, reserved to them by the state Constitution, to enact
legislation by initiative.” (Associated Home Builders, Inc. v. Livermore (1976) 18 Cal.3d
582, 588 (Associated Home Builders).) In rejecting previous authority (e.g., Hurst v.
Burlingame (1929) 207 Cal. 134), the court stated that “the Legislature never intended
the notice and hearing requirements of the zoning law to apply to the enactment of zoning
initiatives.” (Associated Home Builders, at p. 594.)15
15 Most cases use the term “initiative” for the situation in which the electors propose
an enactment and, if sufficient electors support it, it will be placed on the ballot for a
vote. (E.g., Cal. Const., art. II, § 8.) “Referendum” usually refers to the situation where
an enactment has been initially passed by the legislative body and, if sufficient electors
oppose the enactment, it will be placed on the ballot for a vote. (E.g., Cal. Const., art. II,
§ 9.) The City Charter provides for an alternative type of referendum, in which the City
Council proposes the enactment and decides to submit the proposed law to the electors
for a vote. (L.A. Charter, § 460.) Prop D was enacted in this manner. This type of
referendum is, in some ways, more like an initiative, in that the proposed enactment is
placed on the ballot without having been enacted by the legislative body. There is no
difference between either type of referendum or initiative for our purposes. In each
method, “it is the vote of the electors at the ballot box that finally determines whether or
not a proposed measure shall be a law at all, and it can make no difference in principle
whether the proposition originates with electors or with the council.” (In re Pfahler
(1906) 150 Cal. 71, 76.)
15
Appellants try to distinguish Associated Home Builders by arguing that the case
applies only to matters of strictly municipal concern, whereas the Zoning Act’s notice
and hearing requirements are themselves matters of statewide concern. Appellants rely
on Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 511
(Committee of Seven Thousand) for the proposition that Associated Home Builders was
limited to matters of municipal, not statewide, concern. Dicta in Associated Home
Builders had suggested that if the Zoning Act were interpreted to extend to matters
enacted by initiative, that conclusion itself would be of doubtful constitutionality, as
interfering with the constitutional right of municipal initiative. (Associated Home
Builders, supra, 18 Cal.3d at pp. 494-595.) Committee of Seven Thousand held that this
language in Associated Home Builders was limited to the context of matters of municipal
concern; that is, a state law cannot interfere with the constitutional right of municipal
initiative on wholly municipal matters, but can override the power of municipal initiative
on statewide matters. (Committee of Seven Thousand, at p. 511.) That the power of
municipal initiative can be limited by the state in matters of statewide concern is an
adjunct of the law of state/local preemption. Committee of Seven Thousand made no
attempt to limit the holding of Associated Home Builders – that the notice and hearing
provisions set forth in the Zoning Act did not limit the power of municipal initiative
because the Zoning Act had never been intended to apply to local initiatives. (Committee
of Seven Thousand, at p. 510.) That the Zoning Act, like nearly every other state statute,
reflects a matter of statewide concern does not mean that it was intended to apply to
initiatives. Putting it another way, the holding of Associated Home Builders is that when
the Legislature enacted the Zoning Act as a matter of statewide concern, it chose not to
apply its procedural protections to municipal initiatives.
In their reply brief, appellants place reliance on language from Taschner v. City
Council (1973) 31 Cal.App.3d 48, 64 (Taschner) stating that presenting one’s case to the
electorate in the course of an initiative or referendum is no match for presenting one’s
case to the planning commission. But Taschner was expressly disapproved in Associated
Home Builders, supra, 18 Cal.3d at page 596, footnote 14. The same argument was also
16
rejected in Arnel Development Co. v. Costa Mesa (1980) 28 Cal.3d 511, 524, which
concluded that landowners’ rights are adequately protected. “When zoning is enacted by
the city council, landowners by statute are entitled to notice and hearing. [Citation.]
When zoning is enacted by initiative, landowners have the same opportunity as their
opponents to present their case to the electorate.” (Ibid.)
We conclude that any failure to follow the Zoning Act notice and hearing
requirements for council-enacted ordinances has no effect on the validity of Prop D.16
2. Recent State Legislation – Medical Marijuana Regulation and Safety Act
While this appeal was pending, California enacted the Medical Marijuana
Regulation and Safety Act (MMRSA), which, among other things, creates a state
licensing scheme for medical marijuana. (Bus. & Prof. Code, § 19300 et seq., added by
Stats. 2015, ch. 689, § 4.) We sought additional briefing on whether this act had any
impact on this appeal. In response, appellants argue that MMRSA demonstrates that
regulation of medical marijuana is now a matter of statewide concern, which therefore
preempts municipal regulation by initiative without a planning commission hearing. The
conclusion does not follow. If regulation of medical marijuana is a matter of statewide
concern, Prop D, which regulates medical marijuana solely within the City’s borders, is
still a municipal initiative on a wholly municipal matter – which was properly enacted
without a planning commission hearing.
3. Prop D’s Enactment Did Not Violate City Charter Section 558
Pursuant to the Zoning Act, charter cities may develop their own procedures for
adopting and amending zoning ordinances. (§ 65803.) The City did so. (See L.A.
Charter §§ 550-566.) As part of its responsibilities, the City Planning Commission is
required to “make recommendations concerning . . . proposed zoning ordinances in
accordance with [Section] 558.” (L.A. Charter, § 551.)
16 The Appellate Division of the Los Angeles County Superior Court recently
reached the same conclusion in People v. Optimal Global Healing, Inc. (2015)
241 Cal.App.4th Supp. 1.
17
City Charter section 558, subdivision (a) states: “The requirements of this section
shall apply to the adoption, amendment or repeal of ordinances, orders or resolutions by
the Council concerning” a list of matters, including zoning. Subdivision (b) of that
section states “Procedures for the adoption, amendment or repeal of ordinances, orders or
resolutions described in subsection (a) shall be prescribed by ordinance, subject to the
following limitations:” Appellants direct our attention to subdivision (b)(2), which
provides that, after initiation, “the proposed ordinance . . . shall be referred to the . . .
Planning Commission for its report and recommendation . . . .” Appellants argue that
Prop D is void because it was enacted in violation of Charter section 558, as it was not
referred to the Planning Commission.
The flaw in appellants’ argument is that Charter section 558, by its plain language,
does not apply to ordinances enacted by referendum, such as Prop D. “ ‘Generally, the
same principles of construction applicable to statutes apply to the interpretation of
municipal charters. [Citations.] The courts must always look first to the express
language of the [law] to ascertain its meaning.’ [Citation.]” (City of San Diego v.
Shapiro (2014) 228 Cal.App.4th 756, 789.) Subdivision (a) of Charter section 558
specifically states that it applies only “to the adoption, amendment or repeal of
ordinances, orders or resolutions by the Council.” Prop D was not adopted by the City
Council.
Appellants claim that referenda must satisfy the requirements of Charter section
558 because of Charter section 460. Charter section 460, entitled “Subject of
Referendum” provides, in pertinent part, that “the Council is authorized to submit to a
vote of the registered voters of the City, at any election for any purpose at which all the
registered voters of the City are entitled to vote, any proposed ordinance, order or
resolution, that the Council itself might adopt.” (Italics added.) They argue that the
emphasized language is a procedural limitation on referenda; that is, the Council may
only submit a proposed ordinance to the voters when that proposed ordinance had
proceeded through all necessary procedures before the Council itself could have adopted
it by Council vote alone. We disagree. Section 460 is concerned with the subject matter
18
of referenda; the emphasized language means only that the City Council cannot submit to
the voters any proposed ordinance which it is not within the lawful jurisdiction of the
Council to enact.
Our conclusion is supported by Charter section 450, entitled “Subject of
Initiative.” Section 450 is identical to section 460’s referendum requirement except it
applies to initiatives. It provides, “Any proposed ordinance which the Council itself
might adopt” may be submitted to the Council by initiative petition. (Italics added.)
Were appellants’ interpretation of the italicized language correct, it would mean that
before an initiative petition could be submitted to the City Council, its proponents would
have to satisfy all of the necessary procedural requirements for enactment of an ordinance
by the Council – an absurd conclusion, and one at odds with the populist spirit of the
initiative process. It is apparent that “which the Council itself might adopt,” as used in
both Charter sections 450 and 460 is simply a limit on substantive subject matter and not
an incorporation of procedural requirements imposed on the Council before the Council
may enact an ordinance.
4. Prop D Does Not Grant the Equivalent of a Conditional Use Permit or
Variance
In their last procedural challenge to the enactment of Prop D, appellants suggest
that Prop D, in effect, grants a conditional use permit or variance to those medical
marijuana businesses qualifying for exemption without satisfying the procedural or
substantive requirements for a conditional use permit or variance.
Conditional use permits and variances differ from each other. (Essick v. Los
Angeles (1950) 34 Cal.2d 614, 623.) A conditional use permit grants the permittee the
right to one of an enumerated list of uses or activities which are allowed only by
individual permit. (L.A. Mun. Code, § 12.24, subds. U, V & W.) Depending on the use
or activity, a different decision maker is authorized to hold a hearing and make an initial
decision on whether to grant the permit. (L.A. Mun. Code, § 12.24, subds. C & D.) In
contrast, a variance grants an individual exception to the City’s zoning ordinances when
strict application of the zoning ordinance would result in practical difficulties or
19
unnecessary hardships (among other requirements). (L.A. Charter, § 562, subd. (c).) An
application for a variance results in a hearing before the Zoning Administrator. (L.A.
Mun. Code, § 12.27, subds. B & C.) The granting of conditional use permits and
variances are administrative or quasi-judicial acts. (Essick, at p. 623.)
Facially, Prop D does not grant either a conditional use permit or a variance. By
definition, it is not a conditional use permit, as medical marijuana businesses are not
among the itemized uses permitted only by conditional use permit. Nor does Prop D
grant a variance; it does not mention any specific parcel of property at all, or make any
determinations regarding any specific parcel. On the contrary, Prop D expressly provides
that a medical marijuana business is not enumerated as a permitted use, and that the
Zoning Administrator “shall not have the authority to determine that the use of any
building, structure, location, premises or land as a medical marijuana business may be
permitted in any zone; to add medical marijuana business to the Official Use List of the
City; or to grant any variance authorizing any medical marijuana business.” (L.A. Mun.
Code, § 45.19.6.5.)
Appellants argue that Prop D effectively grants conditional use permits or
variances because it provides that collectives meeting its requirements “shall not be
subject” to misdemeanor prosecution or nuisance abatement proceedings solely on the
basis of operating a medical marijuana business that is not a permitted use. (L.A. Mun.
Code, § 45.19.6.3.) This is not an affirmative grant of any land use right (permit or
variance) but a limited immunity applicable only when certain conditions are met.
Whether or not this type of immunity is unconstitutionally unfair (an issue we consider
below), the grant of immunity itself was a legislative act, not subject to the administrative
requirements of a conditional use permit or variance.17
17 Appellants rely on Trancas Property Owners Assn. v. City of Malibu (2006)
138 Cal.App.4th 172, 182 and League of Residential Neighborhood Advocates v. City of
Los Angeles (9th Cir. 2007) 498 F.3d 1052, 1052 for the proposition that the City cannot
by settlement or contract grant a conditional use permit or variance and bypass the
procedural requirements for a conditional use permit or variance. In order to fit the
20
C. Prop D Survives All of Appellants’ Substantive Challenges
We now turn to appellants’ substantive challenges to the terms of Prop D. As
discussed above, Prop D bans all medical marijuana businesses, but grants a limited
exemption from civil or criminal liability to collectives meeting a list of requirements,
including registration pursuant to both the Interim Control Ordinance and the
Grandfather/Lottery Ordinance. None of the appellant collectives met those prior-
registration requirements.
We pause to observe that running freely throughout appellants’ arguments as to
each cause of action is appellants’ claim that there is a “right” created by state law to the
use, sale and cultivation of medical marijuana. As we explain: there is no such right.
1. There is No Statutory Right to Medical Marijuana
It is too late in the day for appellants to argue that the CUA and MMPA grant a
statutory right to use and/or collectively cultivate medical marijuana. Our Supreme Court
held in Riverside that: (1) the CUA and MMPA are merely limited exceptions to the
sanctions of the state’s criminal laws (Riverside, supra, 56 Cal.4th at p. 739);
(2) exempting certain activities from state prohibitions does not constitute an
authorization of those activities (id. at p. 758); and (3) the CUA and MMPA do not grant
a right “of convenient access” to medical marijuana (id. at p. 762). In addition, we have
expressly held that neither the CUA nor the MMPA creates “a state right to cultivate,
distribute, or otherwise obtain marijuana collectively, and thereafter to possess and use it,
for medical purposes.” (Conejo, supra, 214 Cal.App.4th at p. 1543.)
Appellants repeatedly assume such a right throughout their brief. For example, the
reply brief states that the CUA “recognizes a ‘right’ for seriously ill Californians with a
square peg of Prop D into the round hole of these cases, appellants must argue that the
immunities granted by Prop D are conditional use permits or variances and that the voter-
approved Prop D was in fact a City contract. Both premises are untrue. Prop D is a
voter-approved referendum which merely grants immunities from City enforcement, in
much the same way the CUA is a voter-approved initiative which grants immunities from
certain criminal liabilities. (See Riverside, supra, 56 Cal.4th at p. 739.)
21
medical recommendation to possess and cultivate marijuana pursuant to a medical
recommendation. [The MMPA] recognizes that collective cultivation is required to
implement the right recognized in [the CUA].” This is an incorrect statement of the law.
Appellants point to the newly-enacted MMRSA as a legislative rejection of the
appellate cases that have held no right to medical marijuana exists. Appellants’ direct our
attention to a section of MMRSA that provides that any advertisement for physician
recommendations for medical marijuana must include a reference to “the right to obtain
and use” medical marijuana.18
This language is taken directly from that part of the CUA found in Health and
Safety Code section 11362.5, subdivision (b)(1)(A), which states the purposes of the
CUA include “to ensure that seriously ill Californians have the right to obtain and use
marijuana for medical purposes where that medical use is deemed appropriate and has
been recommended by a physician who has determined that the person’s health would
benefit from the use of marijuana . . . .” The Supreme Court has already held that this
broad language of intent in the CUA does not change the fact that the actual substantive
provisions of the CUA create only a limited immunity and not a right. (Riverside, supra,
56 Cal.4th at p. 746.) We reject appellants’ suggestion that a newly-enacted statute
setting forth a warning to be included in advertisements somehow constitutes a silent
legislative overruling of Supreme Court and Court of Appeal precedent. (Cf. Even Zohar
Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830,
18 Specifically, MMRSA provides that advertisements for physician
recommendations for medical marijuana must contain the following notice: “NOTICE
TO CONSUMERS: The Compassionate Use Act of 1996 ensures that seriously ill
Californians have the right to obtain and use cannabis for medical purposes where
medical use is deemed appropriate and has been recommended by a physician who has
determined that the person’s health would benefit from the use of medical cannabis.
Recommendations must come from an attending physician as defined in Section 11362.7
of the Health and Safety Code. Cannabis is a Schedule I drug according to the federal
Controlled Substances Act. Activity related to cannabis use is subject to federal
prosecution, regardless of the protections provided by state law.” (Bus. & Prof. Code,
§ 2525.5, added by Stats. 2015, ch. 719, § 5.)
22
838 [statutes are to be harmonized whenever possible; all presumptions are against repeal
by implication].)
We dispose quickly of appellants’ claim that MMRSA preempts local medical
marijuana regulation in general or Prop D in particular. MMRSA expressly addresses
both issues. It first states that nothing in its regulatory scheme “shall be interpreted to
supersede or limit existing local authority for law enforcement activity, enforcement of
local zoning requirements or local ordinances, or enforcement of local permit or licensing
requirements.” (Bus. & Prof. Code, § 19315, subd. (a), added by Stats 2015, ch. 689,
§ 4.) It then states that issuance of a state medical marijuana license “shall in no way
limit the ability of the City of Los Angeles to prosecute any person or entity for a
violation of, or otherwise enforce, Proposition D . . . .” (Bus. & Prof. Code, § 19325,
subd. (d), added by Stats. 2015, ch. 689, § 4.) We can imagine no clearer legislative
rejection of appellants’ argument.
2. Cause of Action 1 – Due Process Violation
Appellants’ first cause of action alleges that Prop D denies them procedural due
process in that they are deprived of their “right” to collectively cultivate medical
marijuana without due process of law. As appellants have no such statutory right, due
process is not implicated. (Conejo, supra, 214 Cal.App.4th at p. 1562.)
3. Cause of Action 2 – Equal Protection Violation
Appellants’ second cause of action alleges that Prop D denies them equal
protection because collectives who have previously registered under the Interim Control
Ordinance and the Grandfather/Lottery Ordinance (and fulfilled other requirements) are
entitled to immunity from prosecution and nuisance abatement proceedings, while
collectives that have not registered receive no immunity. Equal protection requires that
similarly situated entities receive like treatment under the law. (Hill, supra,
192 Cal.App.4th at p. 871.) As inherently suspect classifications or fundamental rights
are not at issue, rational relation review applies, and the law will be upheld so long as
there is any reasonably conceivable set of facts that provides a rational basis for the
23
distinction.19 (420 Caregivers, supra, 219 Cal.App.4th at pp. 1333-1334.) The burden is
on the party challenging the statute to demonstrate that the difference in treatment is
unrelated to any legitimate government purpose. (Id. at p. 1334.)
We have already concluded in 420 Caregivers that: (1) grandfather clauses based
on past operation pass constitutional muster; and (2) registration under the Interim
Control Ordinance provides a rational basis to further distinguish between collectives as
the City could assume previously registered collectives would continue to act in a law-
abiding manner. (420 Caregivers, supra, 219 Cal.App.4th at pp. 1337-1338.) On appeal,
appellants point out that we did not consider Prop D in 420 Caregivers. This is true, as
the issue was not before us. However, appellants provide no basis for distinguishing our
prior holding. 420 Caregivers held that grandfathering collectives which had registered
under a single prior ordinance did not violate equal protection; grandfathering collectives
which had registered under two prior ordinances does not alter the analysis.
Appellants’ final equal protection argument is that the Interim Control Ordinance
applied by its terms only to medical marijuana dispensaries, and appellants are
collectives who were not required to register. As we stated in 420 Caregivers, the
“extremely broad definition” of “dispensary” in the Interim Control Ordinance is such
that “any collective . . . would or reasonably should have believed itself to be a
‘dispensary’ subject to the registration requirement. . . .” (420 Caregivers, supra,
219 Cal.App.4th at p. 1340.) The Interim Control Ordinance defined “dispensary” as
“any use, facility or location, including but not limited to a retail store, office building or
structure that distributes, transmits, gives, dispenses, facilitates or otherwise provides
marijuana in any manner, in accordance with State law, in particular [the CUA and
MMPA] inclusive.” As collectives “distribute[], . . ., give[], dispense[], . . . or otherwise
19 Appellants’ suggestion, in their reply brief, that strict scrutiny applies because the
right to use medical marijuana is a fundamental right in California is without merit. As
we have discussed, there is no right to use medical marijuana in California.
24
provide[] marijuana . . . in accordance with [the MMPA],” they fall well within this
definition.20
4. Causes of Action 3 and 4 – Unconstitutional “Special” Law
Appellants next argue that Prop D is a special law that arbitrarily favors old
collectives over new ones, in violation of California Constitution, article IV, section 16,
and article I, section 7, subdivision (b). The former provision provides, “(a) All laws of a
general nature have uniform operation. [¶] (b) A local or special statute is invalid in any
case if a general statute can be made applicable.” The latter provides, “A citizen or class
of citizens may not be granted privileges or immunities not granted on the same terms to
all citizens.”
“ ‘Under either provision, the mere production of inequality which necessarily
results to some degree in every selection of persons for regulation does not place the
classification within the constitutional prohibition. The discrimination or inequality
produced, in order to conflict with the constitutional provisions, must be “actually and
palpably unreasonable and arbitrary,” or the legislative determination as to what is a
sufficient distinction to warrant the classification will not be overthrown. [Citations.]
When a legislative classification is questioned, if any state of facts reasonably can be
conceived that would sustain it, there is a presumption of existence of that state of facts,
and the burden of showing arbitrary action rests upon the one who assails the
classification.’ ” (Paul v. Eggman (1966) 244 Cal.App.2d 461, 469-470.)
20 Appellants also argue that the definition of “dispensary” in the Interim Control
Ordinance is paradoxical, in that it includes those locations that dispense marijuana “in
accordance with State law, in particular [the CUA and MMPA] inclusive,” but the
Interim Control Ordinance simultaneously acknowledged that state law did not (then)
specifically address or regulate dispensaries. Appellants conclude that the Interim
Control Ordinance applied only to “[d]ispensaries which are not regulated by state law,
but act in accordance with the law that doesn’t regulate them.” There is no paradox;
dispensaries act in accordance with state law when they dispense medical marijuana to
qualified patients, rather than generally distributing marijuana for recreational use.
25
For the same reasons Prop D does not deny appellants equal protection, it does not
violate these provisions.21
5. Cause of Action 5 – Drug House Abatement
Health and Safety Code section 11570 provides that any place used “for the
purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away
any controlled substance” is a nuisance “which shall be enjoined, abated, and prevented.”
Appellants allege that Prop D has the same purpose as this section and is therefore
preempted by it. But Health and Safety Code section 11571.1, subdivision (a) provides,
“Nothing in this article shall prevent a local governing body from adopting and enforcing
laws, consistent with this article, relating to drug abatement. Where local laws duplicate
or supplement this article, this article shall be construed as providing alternative remedies
and not preempting the field.”
6. Cause of Action 6 – Improper Exercise of Local Regulatory Power
Pursuant to California Constitution, article XI, section 7, “A county or city may
make and enforce within its limits all local, police, sanitary, and other ordinances and
regulations not in conflict with general laws.” In Riverside, the Supreme Court
concluded that the CUA and MMPA did not preempt the authority of cities and counties
“under their traditional land use and police powers, to allow, restrict, limit, or entirely
exclude facilities that distribute medical marijuana. . . .” (Riverside, supra, 56 Cal.4th at
21 For the first time on appeal, appellants argue that Prop D violates yet another
constitutional provision dealing with equal treatment under the law: California
Constitution, article XI, section 7.5, which provides that no local measure proposed by
the legislative body and submitted to the voters for approval may “[i]nclude or exclude
any part of the city . . . from the application or effect of its provisions based upon
approval or disapproval of the . . . measure, or based upon the casting of a specified
percentage of votes in favor of the measure, by the electors of the city, . . . or any part
thereof.” Appellants’ strained interpretation of this section – that it prevents Prop D from
excluding from its ban some collectives and not others—is not persuasive. The provision
is meant to prevent measures from including or excluding from their application only
those areas of the city which voted for or against it. (Ballot Pamp., Primary Elec. (June 2,
1998) analysis of Prop. 219 prepared by the Legislative Analyst, p. 6.)
26
p. 762.) Appellants alleged that Prop D does not fall within the holding of Riverside
because regulation of medical marijuana businesses is not a matter of traditional local
zoning or based on a significant local interest. We reject the argument. By upholding a
complete ban on marijuana dispensaries in Riverside, our Supreme Court at least
implicitly recognized that regulation of medical marijuana businesses was a matter of
traditional local zoning or was based on a significant local interest.
7. Cause of Action 7 – Single Subject Rule (dismissed)22
8. Cause of Action 8 – Violation of Rights of Privacy and Association
Appellants next allege Prop D violates their rights of privacy and association by
limiting the individual patient appellants’ statutory rights to join collectives to only those
collectives eligible for immunity under Prop D. As to privacy, they argue that their
constitutionally-protected privacy rights include the right to make medical decisions and
rely on their belief that the CUA and MMPA grant them a statutory right to medical
marijuana. As we have held, there is no such statutory right; whatever the scope of the
right to make one’s medical decisions, it does not include a right to obtain or collectively
cultivate marijuana.
Appellants’ association argument is based on their desire to associate with other
medical marijuana patients in order to influence legislation on the political issue of
medical marijuana. But Prop D has no effect on appellants’ ability to associate with
anyone to exercise their rights of speech or petition; it simply prevents them from running
illegal medical marijuana businesses. (See Conejo, supra, 214 Cal.App.4th at p. 1564.)
9. Causes of Action 9, 10, & 12 – Disability Discrimination
By these causes of action, appellants claim Prop D improperly discriminates on
the basis of disability or medical condition. They rely on three statutes for this assertion:
Government Code section 65008, prohibiting local governments from denying land use
rights because of any protected characteristic, including disability; Civil Code section 52,
prohibiting business establishments from discriminating on the basis of protected
22
See fn. 8, ante.
27
characteristics, including disability and medical condition; and Government Code section
11135, providing that no program or activity administered by, or receiving financial
assistance from, the state may discriminate on the basis of, among other bases, disability.
We find nothing in Prop D that discriminates on the basis of disability or medical
condition. Prop D lawfully discriminates between registered medical marijuana
businesses that were in business as of September 14, 2007 and all other medical
marijuana businesses. There is a rational basis for this distinction that is unconnected to
disability.
10. Cause of Action 11 – Improper Threats of Criminal Sanctions for
Appellants’ Exercise of Rights
Civil Code section 52.1 prohibits anyone, “whether or not acting under color of
law,” from interfering or attempting to interfere “by threat, intimidation, or coercion”
with the exercise or enjoyment by any individual of rights secured by the Constitution or
laws of the United States or California. Appellants alleged that the City violated this
section with Prop D, in that Prop D threatens them with criminal sanctions for exercising
their statutory rights to use and collectively cultivate medical marijuana. As there is no
such statutory right, there are no threats to the exercise of those rights protected under
Civil Code section 52.1.
Appellants rely on County of Butte v. Superior Court (2009) 175 Cal.App.4th 729,
which held that a medical marijuana patient could bring a civil action against a deputy
who, under threat of arrest and prosecution, ordered him to destroy marijuana plants he
possessed in connection with a small collective he operated out of his home. The court
concluded that the patient could conceivably establish a cause of action if he could
establish that, taking into account his status as a medical marijuana patient, the deputy did
not have probable cause to destroy his property. (Id. at pp. 737-738.) As the City points
out in its respondent’s brief, Appellants’ reliance on this case is puzzling, as there are no
allegations relating to lack of probable cause to order the destruction of property.
Appellants replied that it is not “legally IMPOSSIBLE to allege facts: obviously it is
reasonably possible that facts can be alleged.” On this basis, appellants argue the trial
28
court erred in denying leave to amend. As we discussed above, the plaintiff has the
burden of showing how the complaint can be amended to state a cause of action. A bare
statement that it would be reasonably possible to state relevant facts without identifying
the facts to be alleged and connecting them to a valid cause of action does not satisfy this
burden.23
11. Cause of Action 13 – Taking Without Just Compensation
Appellants also sought declaratory relief that Prop D works a taking of their leased
property without just compensation. Specifically, appellants argued that their collectives
were legal uses of the property that were taken away by Prop D.
If a law effects an unreasonable, oppressive, or unwarranted interference with an
existing property use, the ordinance may be invalid as to that property unless just
compensation is paid. (Conejo, supra, 214 Cal.App.4th at p. 1560.) “ ‘A legal
nonconforming use is one that existed lawfully before a zoning restriction became
effective and that is not in conformity with the ordinance when [the use] continues
thereafter.’ [Citations.] The burden is on the party asserting the right to a
nonconforming use to show the lawful and continuing use in place at the time the new
ordinance is enacted. [Citation.]” (Id. at p. 1561, original italics.) The City’s municipal
code agrees, providing that a building with a nonconforming use “may be maintained
provided the . . . use conformed to the requirements of the zone and any other land use
regulations at the time it was . . . established.” (L.A. Mun. Code, § 12.23.)
The issue, then, is whether appellants can establish their collectives were
permitted uses when they were established. Appellants do not clearly identify the
ordinance under which they claim to have obtained legal nonconforming use rights. The
23 In connection with a different argument, appellants state that they could amend
their complaint to allege “the LAPD confiscates property without compensation based on
no fact except [a medical marijuana business] is not on the City Attorney’s list of
probably compliant collectives.” As we hold that Prop D is valid, we fail to see how a
bald allegation that the LAPD confiscates property from medical marijuana businesses
believed to be in probable violation of Prop D states a cause of action.
29
history of medical marijuana regulation in the City shows generally no legal
nonconforming use has ever been created. Medical marijuana collectives are not an
itemized permitted use in any zone under the City’s zoning plan (L.A. Mun. Code,
§ 12.00 et seq.); in the absence of a medical marijuana ordinance, they were not a legal
use. Thus, prior to the Interim Control Ordinance, no collective was a conforming use.
The Interim Control Ordinance halted the establishment of new collectives. No new
collectives could legally open. Moreover, it required registration of all existing
collectives; without registration, no collective could continue operating. Next, the
Grandfather Prior Registrant Ordinance was designed to grandfather every collective
which had registered under the Interim Control Ordinance – the only possible collectives
which could conceivably claim legal nonconforming use rights. When this ordinance
was enjoined, the City temporarily amended it by adopting the Grandfather/Lottery
Ordinance. This ordinance was designed to ultimately permit only 100 collectives to
operate (as chosen by lottery), but it required all eligible collectives to register for that
lottery. Thus, after the enactment of the Grandfather/Lottery Ordinance, no collective
which had not registered for the lottery could possibly claim legal nonconforming use
rights. This narrowed the class of potential legal nonconforming collectives to those
which had: (1) been established prior to the Interim Control Ordinance; (2) registered
under the Interim Control Ordinance; and (3) registered for the lottery under the
Grandfather/Lottery Ordinance. This is the precise class of collectives to which Prop D
granted limited immunity. Appellants are not within that class.24
24 We do not hold that any collective had legal nonconforming use rights prior to the
enactment of Prop D. We simply state that any collective which could conceivably claim
such rights would have had to be grandfathered under Prop D.
In their reply brief, appellants assert, for the first time, that a May 6, 2010 opinion
of a Zoning Administrator concluded that “medical marijuana was determined to be a
permitted use in all zones of the City.” In a letter brief subsequently filed with the court,
the City attached a copy of that “Zoning Administrator’s Interpretation.” In it, the
Zoning Administrator did not state that medical marijuana was an unqualified permitted
use in all zones; instead, the Zoning Administrator stated that, based on the City
Council’s adoption of the Grandfather Prior Registrant Ordinance, medical marijuana
30
12. Cause of Action 14 – Waste of Public Funds
Appellants alleged the City’s passage of an August 2013 City Council resolution
to instruct the LAPD to work with the federal government to create a citywide
enforcement strategy to respond to collectives constituted a waste of public funds. The
City’s demurrer was sustained on the basis that there is nothing unlawful about
cooperating with the federal government. On appeal, appellants do not pursue this
argument, but instead argue that money expended on enforcing Prop D is a waste of
funds because Prop D itself violates zoning law and the California Constitution. As Prop
D is not invalid, this cause of action falls.
13. Cause of Action 15 – Fifth Amendment Right/Privacy
Medical marijuana collectives in the City pay a City tax. The City therefore
possesses information from collectives regarding their gross receipts and taxes paid.
Prop D contains a provision regarding the confidentiality of this information. It provides
that the City shall not disclose information or documents to the federal government
“regarding the gross receipts declared and taxes paid to the City” by any collective
entitled to limited immunity under Prop D without “a grand jury subpeona, civil or
administrative subpoena, warrant, discovery request, summons, court order or similar
process authorized under law which seeks the involuntary disclosure of such information
and documents.” If the City receives such a request seeking involuntary disclosure to the
federal government, “the City shall provide a copy of the [request] to the medical
marijuana business whose information and documents are sought.” The collective shall
have ten days within which to obtain and serve on the City a protective order from a court
of competent jurisdiction. (L.A. Muni. Code, § 45.19.6.4.)
collectives were a permitted use in any zone, “so long as these Collectives comply with
State law, the regulations set forth in [the Grandfather Prior Registrant Ordinance], and
all applicable provisions of the Zoning Code.” Thus, this letter is not an independent
source for the proposition that a collective was a permitted use; the letter simply stated
that a collective was a permitted use if it was in compliance with governing law.
31
In their complaint, appellants alleged that this provision has the result of violating
the individual patients’ constitutional rights against self-incrimination by disclosing
incriminating documents to the federal government without first obtaining a waiver of the
Fifth Amendment privilege. The court sustained the City’s demurrer to this cause of
action on the basis that there is nothing testimonial in the disclosure of documents
regarding the gross receipts declared and taxes paid to the City.
On appeal, appellants do not pursue this theory, but instead seek leave to amend to
assert invasion of privacy. They argue that Prop D contemplates the disclosure of
“sensitive privileged documents.” Although, at one point, appellants suggest the
information at issue is “business confidential information,” they argue that the documents
at risk of being disclosed include “private personal records which may reflect medical
conditions, frequency of use of medical marijuana, and may be used to terminate
employment . . . .” They argue that Prop D denies “reasonable protection for private
records of a qualified patient,” and suggest that the procedures to be followed in
connection with a subpoena duces tecum for personal records of a consumer (Code Civ.
Proc., § 1985.3) should be applied to this setting.
The plain language of Prop D defeats this argument. The document disclosure
provision relates only to disclosure to the federal government of documents “regarding
the gross receipts declared and taxes paid to the City.” These are not private patient
records. Appellants make no argument demonstrating how the disclosure of gross
receipts declared and taxes paid to the City for any collective would violate the privacy
rights of any of its individual members.
14. Cause of Action 16 – Unnecessary Regulation Without Rational
Basis/Unfair Stigma
Appellants’ 16th cause of action seeks declaratory relief that Prop D unnecessarily
regulates access to medical marijuana without a rational basis or compelling reason. We
reject this argument for reasons stated in our discussion of due process and equal
protection. (Discussion, sections C.2 and C.3, ante.)
32
Appellants seek leave to amend their 16th cause of action to assert that Prop D
“stigmatizes” them. They point to Prop D’s statement of intent:
“It is also the purpose of this Article to stem the negative impacts and secondary
effects associated with the ongoing medical marijuana businesses in the City, including
but not limited to the extraordinary and unsustainable demands that have been placed
upon scarce City policing, legal, policy, and administrative resources; neighborhood
disruption, increased transient visitors, and intimidation; the exposure of school-age
children and other sensitive residents to medical marijuana; drug sales to both minors and
adults; fraud in issuing, obtaining or using medical marijuana recommendations; and
murders, robberies, burglaries, assaults, drug trafficking and other violent crimes.” (L.A.
Muni Code, § 45.19.6.)
Appellants assert that they “deserve an opportunity to clear their names and obtain
a judicial declaration that there are no facts to support this name-calling, that it is
unjustified.”
We see no viable cause of action stated. The challenged language in Prop D
simply states that one of the goals of Prop D is to stem these negative effects of medical
marijuana businesses; it does not state that every medical marijuana collective shut down
because of noncompliance with Prop D causes these negative effects, and no reasonable
person reading it could conclude that it does. More fundamentally, appellants cite no
authority for the proposition that a cause of action exists for individuals or entities who
claim that they have been unlawfully stigmatized by an ordinance’s language.
15. Cause of Action 17 – Attorney’s Fees (Remedy Only)25
D. Appellants are Not Entitled to Leave to Amend
The trial court did not abuse is discretion in denying leave to amend. Before the
trial court, appellants argued for leave to amend in order to state new theories; they did
not indicate any new facts they could allege if leave to amend were granted. The same is
25 See fn. 9, ante.
33
true on appeal as appellants continued to raise even more new theories. We have rejected
all of those theories, which are for the most part new facial challenges to Prop D.26 As
for potential new factual allegations, the occasional references appellants make to facts
that might be alleged if leave to amend were granted contain no clear statement of those
facts, only that there are facts. We see no factual allegations that appellants could make
that could state a cause of action.
DISPOSITION
The judgment is affirmed. The City is to recover its costs on appeal.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J. FLIER, J.
26 While this case was pending on appeal, the Fifth District Court of Appeal decided
Kirby v. County of Fresno (2015) 242 Cal.App.4th 940 [195 Cal.Rptr.3d 815]. At
appellants’ request, we allowed the parties to brief the impact of the Kirby decision on
this appeal. Kirby was concerned with state preemption (by means of the CUA and
MMPA) of local regulation of medical marijuana. The Kirby court concluded that a very
narrow portion of the county ordinance at issue was preempted; specifically, the county’s
absolute ban on individual cultivation, punishable as a misdemeanor, was preempted by
that portion of the MMPA which protects qualified patients with valid medical marijuana
identification cards from arrest for possession or cultivation of medical marijuana.
(Health & Saf. Code, § 11362.71, subd. (e); Kirby, supra, at p. ___ [195 Cal.Rptr.3d 815,
829].) The MMPA’s protection of those individuals against arrest prohibits prosecutions
under local ordinances for the same conduct. (Kirby, supra, at p. ___ [195 Cal.Rptr.3d
815, 829].) Kirby confirmed, however, that local ordinances could still prohibit this
conduct as a matter of land use. (Kirby, supra, at p. ___ [195 Cal.Rptr.3d 815, 832].) To
the extent appellants argue that they should be granted leave to amend their complaints to
argue that Prop D is preempted under Kirby, we disagree. Prop D’s criminal penalties
apply only to medical marijuana businesses; the MMPA does not provide immunity from
arrest or prosecution generally for the collective cultivation of marijuana.
34