People v. Braum

Filed 4/22/20 Modified and Certified for Partial Pub. 5/22/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B289603, B289604
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos.
v. BC467194, BC467495)
DANIEL BRAUM et al., as
Executors, etc., and as Trustees,
etc.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of the
County of Los Angeles, John Shepard Wiley, Jr., Judge.
Affirmed.
Stuart M. Miller, for Defendants and Appellants.
Michael N. Feuer, City Attorney of Los Angeles, Arturo A.
Martinez, Assistant City Attorney, Meredith A. McKittrick and
Andrew K. Wong, Deputy City Attorneys, for Defendant and
Respondent.
I. INTRODUCTION
Michael Braum (Braum)1 leased two commercial properties
in the City of Los Angeles (City) to tenants for use as medical-
marijuana dispensaries and then received notice that the
dispensaries violated the City’s zoning code. The City2 filed two
civil enforcement actions against Braum and the Trust, and the
trial court entered judgments against them imposing civil fines in
excess of $6 million.
Defendants appeal from the judgments, arguing that: the
judgments violated the double jeopardy clause because the City
had previously obtained a criminal conviction against Braum
based on the same offenses underlying the judgments; the $6
million in civil fines violated the excessive fines clauses of the
federal and state constitutions; neither the trial court nor the
City had the authority to require Braum to evict the dispensaries;
the City’s “maze” of medical-marijuana regulations were void for
vagueness under the due process clause; and the trial court erred
in holding Braum personally liable. We affirm.
1 Michael Braum filed this appeal individually and in his
capacity as the trustee of the Braum Family Living Trust (the
Trust). He died while the appeal was pending; and we granted a
motion brought by his sons, Daniel Braum and David Hekmat, to
be substituted as parties on appeal in their respective capacities
as the executors of his estate and successor trustees of the Trust.
We will refer to the newly substituted parties as defendants.
2 The City brought the actions on behalf and in the name of
the People of the State of California.
2
II. REGULATORY AND PROCEDURAL BACKGROUND
A. Overview of State and Local Regulation of Medical
Marijuana3
1. Compassionate Use Act (CUA) (1996)
In 1996, state voters approved the CUA (Proposition 215;
Health & Safety Code § 11362.5), which immunized from
prosecution physicians who recommended marijuana to patients
for medical purposes. (420 Caregivers, supra, 219 Cal.App.4th at
p. 1324.) The CUA also immunized from prosecution patients
and their primary caregivers4 who cultivated and possessed
marijuana that had been physician recommended or approved for
patients. (Ibid.)
2. Medical-Marijuana Program Act (MPA) (2003)
In 2003, the MPA was enacted to clarify the scope of the
CUA and promote its uniform application. (420 Caregivers,
supra, 219 Cal.App.4th at p. 1325.) It expanded the classes of
persons to which immunity from prosecution applied. (Ibid.)
3 The regulatory background is taken from the decisions in
420 Caregivers, LLC v. City of Los Angeles (2012) 219
Cal. App. 4th 1316 (420 Caregivers) and Safe Life Caregivers v.
City of Los Angeles (2016) 243 Cal. App. 4th 1029 (Safe Life).
4 The CUA applied to prosecutions for violations of Health
and Safety Code sections 11357 (possession) and 11358
(cultivation). (Health & Safety Code § 11362.5, subdivision (d).)
3
Among other persons, the MPA immunized qualified caregivers
and persons with identification cards5 who cooperatively
cultivated marijuana for medical purposes. (Ibid.) Pursuant to a
subsequent amendment, the MPA also authorized local
governments to adopt ordinances to regulate the location,
operation, and establishment of medical-marijuana cooperatives
and to engage in criminal and civil enforcement of such
ordinances. (Id. at p. 1326.)
3. The Interim Control Ordinance (ICO) (2007)
In August 2007, the City passed the ICO (no. 179,027) in
response to concerns about the proliferation of storefront medical-
marijuana dispensaries within the City. (420 Caregivers, supra,
219 Cal.App.4th at p. 1326.) The ICO prohibited the
establishment of medical-marijuana dispensaries within City
limits for one year or until a permanent ordinance was enacted.
(Ibid.) But the ICO exempted from its prohibition dispensaries
established before September 14, 2007, as long as those
dispensaries operated in accordance with state law and filed
certain required documents with the City by November 13, 2007.6
(Id. at p. 1327.) Following the City’s exercise of two six-month
5 The MPA created a voluntary program for the issuance of
identification cards to “‘qualified patients,’” i.e., those persons
“‘entitled to the protections’” of the CUA. (420 Caregivers, supra,
219 Cal.App.4th at p. 1325.)
6 Approximately 187 “‘dispensaries’” registered under the
ICO on or before November 13, 2007. (420 Caregivers, supra, 219
4
optional extensions of the ICO’s interim one-year prohibition, and
then the subsequent enactment of a second interim ordinance
(no. 180,749), the ICO’s prohibition against the establishment of
medical-marijuana dispensaries was to remain in force until
March 15, 2010, or until a permanent ordinance was enacted.
(Ibid.)
4. The Permanent Ordinance (2010)
In January 2010, the City enacted the Permanent
Ordinance (no. 181,069; L.A. Mun. Code, former § 45.19.6 et seq.)
which regulated “‘medical[-]marijuana collectives’” and required
them to submit to a new registration and approval process. (420
Caregivers, supra, 219 Cal.App.4th at pp. 1328–1329; Safe Life,
supra, 243 Cal.App.4th at p. 1035.) The Permanent Ordinance
permitted only 70 collectives to operate in the City, but also
included a grandfather clause that allowed existing collectives
that had properly registered under the ICO to remain in
operation. (Safe Life, supra, 243 Cal.App.4th at p. 1035.)
Because there were “substantially more than 70 collectives in
operation that could qualify under the grandfather clause . . . [the
Permanent Ordinance] would likely have had the effect of
prohibiting all collectives that had not previously registered
under the [ICO].” (Id. at pp. 1035–1036.)
Cal.App.4th at p. 1327.) Over 30 of those “‘dispensaries’”
conducted business under names that included the terms
‘collective’ or ‘cooperative.’” (Ibid.) As used in this opinion, the
terms dispensary, collective, or cooperative will refer to any
entity engaged in the cultivation and distribution of medical
marijuana.
5
5. The Preliminary Injunction and
the Urgency Measure (2011)
In response to the Permanent Ordinance, certain medical-
marijuana collectives filed suit seeking an injunction on the
grounds that the ordinance denied equal protection to collectives
that had not previously registered under the ICO. (Safe Life,
supra, 243 Cal.App.4th at p. 1036.) When a trial court issued the
requested injunction, the City enacted an Urgency Measure (no.
181,530) which modified the Permanent Ordinance to provide
that all collectives that had been in operation prior to
September 14, 2007, were eligible to register for a lottery from
which 100 collectives would be chosen for inspection and
registration. (Ibid.)
The City appealed from the injunction against the
Permanent Ordinance and, in July 2012, the Court of Appeal
issued its opinion in 420 Caregivers, supra, 243 Cal. App. 4th
1036, reversing the injunction and upholding the Permanent
Ordinance. (Safe Life, supra, 243 Cal.App.4th at pp. 1338–1339.)
Due to a grant of review, however, the decision in 420 Caregivers
did not become final until November 2013. (Safe Life, supra, 243
Cal.App.4th at pp. 1036–1037.)
6. Proposition D (2013)
The City then passed an ordinance (no. 182,443) calling for
a special election for a public vote on Proposition D. (Safe Life,
supra, 243 Cal.App.4th at p. 1037.) In May 2013, City voters
approved Proposition D which enacted a new ordinance (no.
182,580) relating to the regulation of medical marijuana. (Ibid.)
6
Proposition D made it “‘unlawful to own, establish, operate, use,
or permit the establishment or operation of a
medical[-]marijuana business[7] . . .’ in the City. ([L.A.] Mun.
Code, § 45.19.6.2, subd. A.)” (Ibid.) Proposition D also included
an exception for medical-marijuana businesses that met general
requirements, including that the business must have timely
registered under both the ICO and the Permanent Ordinance.
(Ibid.)
B. The Leases
1. The Emerald Dispensary Lease (July 2007)
On June 21, 2005, the Trust took title to the real property
located at 13321 Ventura Boulevard, Sherman Oaks. On
June 22, 2007, “Braum Real Estate,” as lessor, leased that
property to two individual lessees. The lease granted the lessees
the right to use the premises for the purpose of “SALES OF
MEDICAL CANNABIS.” Braum executed the lease as
“LESSOR.” Emerald Triangle Collective, Inc. (Emerald) operated
a “medical[-]marijuana dispensary” at the location. The monthly
rent for the dispensary was $1,660.
7 “Under Prop[osition] 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.’” (Safe Life, supra, 243 Cal.App.4th at
p. 1037.)
7
2. The Ventura Dispensary Lease (January 2009)
On June 21, 2005, the Trust took title to the real property
located at 11306 Ventura Boulevard in Studio City. On
January 7, 2009, Braum Real Estate, as lessor, leased that
property to a lessee, for the express purpose of operating
“MEDICAL[-]MARIJUANA COLLECTIVES.” Braum executed
the lease as “LESSOR” in his capacity as “OWNER.” A
“medical[-]marijuana dispensary,” dba City Organic Remedies,
conducted business at that location and was owned and operated
by Ventura Herbal Center, Inc. (Ventura). The monthly rent for
the dispensary was $3,000
C. Emerald and Ventura Actions
1. Cease and Desist Letters (2010–2011)
On May 4, 2010, the City sent Braum a letter advising him,
among other things, that “[t]he establishment at the above
referenced address [the Emerald dispensary was] operating as a
medical[-]marijuana provider and did not register with the City
Clerk prior to November 13, 2007. Consequently, the
establishment does not, and cannot, comply with the
requirements of [the Los Angeles Municipal Code]. Under
[s]ection 45.19.6.7, this establishment must therefore
immediately cease its operations.” On March 7, 2011, the City
sent Braum a second letter with substantially the same
advisement and demand. And, on May 11, 2011, the City sent
Braum a similar cease and desist letter regarding the Ventura
dispensary.
8
2. Civil Enforcement Complaints (2011)
On August 10, 2011, the City filed two substantially similar
civil enforcement complaints against Braum, individually and as
trustee of the Trust.8 In addition to Braum, the first complaint
named as defendants Emerald and four of its individual officers
and/or directors (Emerald dispensary defendants). The second
complaint against Braum also named as defendants Ventura and
two of its individual officers and/or directors (Ventura dispensary
defendants).
As against Braum, each of the complaints alleged two
causes of action for: (1) using a building without a required
permit, in violation of Los Angeles Municipal Code section
12.21 A.1(a) (zoning violation),9 and (2) maintaining a nuisance,
namely, a building used for unlawful narcotics activity, in
8 According to defendants, the two actions against Braum
were among 41 such civil enforcement actions brought by the
City against medical-marijuana dispensaries, their
owners/operators, and landlords. Those actions were
consolidated by the trial court.
9 Los Angeles Municipal Code section 12.21 A.1(a) provides:
“No building or structure shall be erected, reconstructed,
structurally altered, enlarged, moved, or maintained, nor shall
any building, structure, or land be used or designed to be used for
any use other than is permitted in the zone in which such
building, structure, or land is located and then only after
applying for and securing all permits and licenses required by all
laws and ordinances.”
9
violation of Health and Safety Code section 11570 et seq.
(narcotics abatement).10
Other than the respective start dates of the alleged
statutory violations, the City alleged identical facts in support of
the zoning violation cause of action in each complaint: “Since at
least June 1, 2010, [or January 26, 2009,] [d]efendants . . . have
been using and maintaining the building or structure at the
[p]roperty for a medical[-]marijuana use, a use which is not
permitted in that zone and are in violation of [Los Angeles
Municipal Code] section 12.21 A.1(a). Violation of section
12.21 A.1(a) constitutes a public nuisance under [Los Angeles
Municipal Code] section 11.00 (l).[11] [¶] [] [D]efendant Braum
10 Health and Safety Code section 11570 provides: “Every
building or place used for the purpose of unlawfully selling,
serving, storing, keeping, manufacturing, or giving away any
controlled substance, precursor, or analog specified in this
division, and every building or place wherein or upon which those
acts take place, is a nuisance which shall be enjoined, abated,
and prevented, and for which damages may be recovered,
whether it is a public or private nuisance.”
11 Los Angeles Municipal Code section 11.00 (l) provides, in
pertinent part: “In addition to any other remedy or penalty
provided by this Code, any violation of any provision of this Code
is declared to be a public nuisance and may be abated by the City
or by the City Attorney on behalf of the people of the State of
California as a nuisance by means of a restraining order,
injunction or any other order or judgment in law or equity issued
by a court of competent jurisdiction. The City or the City
Attorney, on behalf of the people of the State of California, may
seek injunctive relief to enjoin violations of, or to compel
10
. . . knew that the use of the [p]roperty was in violation of the Los
Angeles Municipal Code but nevertheless provide[d] substantial
assistance to [the d]ispensary [d]efendants . . . and aided and
abetted violations of [Los Angeles Municipal Code] section
12.21 A.1 (a) by renting and/or leasing the [p]roperty to [the
d]ispensary [d]efendants . . . for use as a medical[-]marijuana
dispensary.”
Other than the respective start dates for the alleged
statutory violations, the City alleged identical facts in support of
the narcotics abatement cause of action in each complaint. “The
[p]roperty was, and is, being used, from an exact date unknown
but at least since at least [sic] June 1, 2010, [or
January 26, 2009,] for the purposes of unlawfully selling, serving,
storing, keeping, manufacturing or giving away controlled
substances and is a building or place wherein or upon which
those acts take place. [¶] [Braum] knew or should have known of
the nuisance activity at the [p]roperty and did nothing to abate it,
allowing the unlawful activity to occur. [¶] . . . [¶] Since on or
about June 1, 2010, [or January 26, 2009,] to the present, [Braum
has] maintained the [p]roperty which is being used as a
medical[-]marijuana dispensary and permitted the operation of a
medical[-]marijuana dispensary at the [p]roperty in clear
violation of Los Angeles Municipal Code section 12.21 A.1[](a)
compliance with, the provisions of this Code or seek any other
relief or remedy available at law or equity . . . . [¶] Violations of
this Code are deemed continuing violations and each day that a
violation continues is deemed to be a new and separate offense
and subject to a maximum civil penalty of $2,500 for each and
every offense.”
11
and permitted the unlawful selling, storing, distributing and
giving away of a controlled substance, to wit, marijuana.”
The prayers for relief against Braum were identical in each
complaint. On the zoning violations, the City sought: to enjoin
Braum from using or permitting medical-marijuana use of the
properties; to assess a civil penalty in the amount of $2,500 per
day pursuant to Los Angeles Municipal Code section 11.00 (l);
and to enjoin Braum from violating section 12.21 A.1(a). On the
narcotics abatement causes of action, the City sought, among
other relief: a declaration that the properties constituted a public
nuisance that must be permanently abated; a preliminary and
permanent injunction and order of abatement; an order
prohibiting Braum from permitting or sanctioning the operation
of any type of “marijuana[-]related venture” on the properties; an
order closing the properties for use for any purpose under the
control of the trial court or, in the alternative, ordering Braum to
pay the City the fair market rental value of the properties for one
year; an order assessing Braum a $25,000 civil penalty; and an
order requiring Braum to “file an unlawful detainer action to
evict [the tenants of the properties] and diligently pursue the . . .
action until [he had] retaken possession of the [properties].”
3. Preliminary Injunction: Emerald Dispensary (2012)
On November 14, 2012, the trial court held a hearing on
the City’s motion for preliminary injunction against, among
others, Braum as owner of the property upon which the Emerald
dispensary was located. Following the hearing, the court granted
the motion and issued an injunction against Braum as to the
12
Emerald dispensary only.12 Braum was ordered: (1) not to
“allow the use of the [p]roperty for a medical[-]marijuana”
purpose; (2) not to “lease or otherwise allow anyone to use the
[p]roperty for a medical[-]marijuana” purpose; and (3) not to
allow “any signage on the [p]roperty to remain which advertises a
medical[-]marijuana dispensary.”
4. Order to Show Cause: Emerald Dispensary (2013)
On August 20, 2013, the City applied for an order to show
cause (OSC) regarding contempt against Braum and others.
According to the City, Braum had failed to comply with the
preliminary injunction. On that same date, following a hearing
on the application, the trial court issued an OSC, which required
Braum to appear on September 25, 2013, and show cause why he
should not be ordered to, among other things, evict the “current
medical[-]marijuana dispensary” from his property. On March
14, 2014, the parties entered into a settlement, in which Braum
agreed to pay the City $10,000 in exchange for the OSC being
taken off calendar. The court therefore did not issue an order
requiring an eviction.
5. Criminal Complaint
On November 12, 2013, the City filed a misdemeanor
complaint against Braum and others, including Downtown
12 The preliminary injunction concerning the Ventura
property did not contain any provisions directed at Braum
individually or in his capacity as trustee of the Trust.
13
Discount Center, Inc. and 1123 West 7th Street, LLC.13 The
complaint charged Braum with six counts of violating Los
Angeles Municipal Code section 45.19.6.2A14 and six counts of
violating section 12.21 A.1(a). The crimes allegedly occurred on
specific dates between and including August 23, 2013 and
October 11, 2013.15 On January 7, 2014, Braum pleaded no
contest to each count, the trial court placed him on a “formal
diversion for a period of 12 months,”16 and ordered him to pay
13 According to filings with the Secretary of State, Braum was
the sole member and/or manager of 1123 West 7th Street, LLC
from November 2008 through November 2016.
14 As of May 2013, following the passage of Proposition D,
section 45.19.6.2 provided: “SEC. 45.19.6.2. PROHIBITED
ACTIVITIES. [¶] A. It is unlawful to own, establish, operate,
use, or permit the establishment or operation of a medical[-
]marijuana business, or to participate as an employee, contractor,
agent or volunteer, or in any other manner or capacity in any
medical[-]marijuana business. [¶] B. The prohibition in
Subsection A, above, includes renting, leasing, or otherwise
permitting a medical[-]marijuana business to occupy or use a
location . . . .”
15 Defendants contend that “Count I was a generic accusation
regarding medical marijuana dispensaries applicable to every
possible location within the City as well as every possible activity
and time.” Defendants then quote from a portion of that count.
The entirety of the count, however, makes clear that the violation
was alleged to have occurred on August 23, 2013.
16 “[D]iversion is generally understood to mean ‘the
suspension of criminal proceedings for a prescribed period of time
14
$500 and not to rent to a “marijuana business.” The court
continued the matter to January 7, 2015, for “disposition and
resetting.” We have no further record of the proceedings in the
criminal matter.
6. City’s Summary Judgment Motion (2014)
On or about March 10, 2014, the City filed its motion for
summary judgment, or, in the alternative, summary
adjudication, against, among others, Braum based on his and/or
the Trust’s ownership of the two properties upon which the
Emerald and Ventura dispensaries were located. The City
argued that there was no triable issue of fact as to the zoning
violation because Braum engaged in, permitted, or allowed or
aided the sale or distribution of marijuana at the properties, and
such activity was an unpermitted use in violation of Los Angeles
Municipal Code, section 12.21 A.1(a). The City also argued that
Braum assisted and participated in “the illegal marijuana use
onsite” by “‘handing over the keys to the dispensaries,’”—i.e.,
providing them a place of business—and cashing the lease
checks. According to the City, Braum was “‘on actual and inquiry
notice when leasing to a business having to do with marijuana.”
Regarding the narcotics abatement claim, the City argued
that there was no triable issue of fact as to whether Braum
engaged in, permitted, allowed, or aided the sale or distribution
of marijuana at the properties and such conduct constituted an
unlawful use in violation of the narcotics abatement law. The
with certain conditions.’” (People v. Craine (2019) 35 Cal. App. 5th
744, 751.)
15
City maintained that any purported lack of knowledge of the
statutory nuisance was irrelevant to the imposition of liability
under Health and Safety Code section 11570.
The City supported its requests for summary adjudication
against Braum with, among other evidence, documents showing
the dispensaries’ occupation of the Sherman Oaks and Studio
City properties, documents showing the Trust’s ownership of
those properties, and declarations of police officers establishing
sales of marijuana at the Emerald and Ventura dispensaries.
Braum opposed the motion, arguing that as of May 2010,
the medical-marijuana dispensaries were legal based on the
City’s zoning administrator’s interpretation;17 the statutes relied
upon by the City to show liability were ambiguous; the City failed
to show that he aided and abetted the conduct of the
dispensaries; the action was moot because both dispensaries had
vacated the properties; the civil enforcement actions violated
Braum’s double jeopardy rights because he had been criminally
convicted for the same offense; and Braum was immune from
liability under Health and Safety Code section 11362.775.
Braum supported his opposition with his declaration that
he believed the two leases were for businesses that filled
prescriptions for medical marijuana and, as such, were
considered pharmacies, i.e., permitted uses of his commercial
17 On May 6, 2010, the City issued a zoning administrator’s
interpretation concerning medical-marijuana collectives. The
interpretation concluded that “[m]edical[-m]arijuana [c]ollectives
are permitted in any zone, subject to all applicable provisions of
State law, the Zoning Code and [the Permanent Ordinance n]o.
181,069 [Los Angeles Municipal Code former section 45.19.6 et
seq.].”
16
properties; lawyers he consulted advised him that he “was acting
within the law” by leasing to the dispensaries; he allowed the
dispensaries to use his properties in reliance on the City’s May
2010 zoning administrator’s interpretation that medical
marijuana was a permitted use; the Ventura dispensary closed in
January 2013, and once the decision in 420 Caregivers, supra,
219 Cal. App. 4th 1316 became final, he began taking steps to evict
the Emerald dispensary which closed in September 2013.
In its reply, the City argued that Braum’s understanding
that the dispensaries were pharmacies, and therefore permitted
uses, was unreasonable and irrelevant; the dispensaries violated
the City’s zoning code because they were not expressly permitted
uses; the law regarding permitted uses and marijuana
dispensaries was not ambiguous or unclear; Braum’s reliance on
the advice of counsel did not immunize him from the zoning and
nuisance violations; the civil enforcement actions were not moot;
double jeopardy did not apply because the criminal conviction
upon which that defense was based involved a different property;
and the undisputed evidence showed that Braum, as landlord,
assisted and participated in the businesses of his dispensary
tenants.
7. Hearing and Rulings on Motion (2015)
On October 29, 2015, the trial court held a further
hearing18 on the City’s motion for summary judgment. Following
18 Following an initial hearing on May 29, 2014, the trial
court denied the City’s motion for summary adjudication on the
grounds that the City had failed to demonstrate that there were
17
argument, the trial court took the matter under submission and,
on December 1, 2015, the court issued a written order granting
the City’s motion against Braum in the two actions against him,
as well as against others in the consolidated actions.
8. Hearing and Rulings on Remedies Phase (2018)
On January 10, 2018, the City submitted “remedies briefs”
for the Emerald and Ventura actions. According to the City,
Braum was liable for the maximum penalty of $2,500 per day
under Los Angeles Municipal Code section 11.00 (l) for the zoning
violations at the Emerald property for the period from
June 1, 2010, through at least November 14, 2012, for a total of
897 days. And, for the zoning violations at the Ventura property,
the City maintained that Braum was liable for the maximum
civil penalty of $2,500 per day under section 11.00 (l) for the
period from January 26, 2009, through at least February 4, 2013,
for a total of 1,470 days. In addition, the City argued that Braum
was liable for the maximum penalty of $25,000 for each property
under Health and Safety Code section 11581, subdivision (b)(2)
based on the nuisance violations established under section 11570.
no triable issues of fact on the issues of entitlement to and
amount of civil penalties, which the court concluded were
essential elements of the City’s two claims. In March 2015,
however, that ruling was vacated by the decision of People ex rel
Feuer v. Superior Court (Cahuenga’s the Spot) (2015) 234
Cal. App. 4th 1360, 1364, which held that although civil penalties
were available remedies, they were not elements of the City’s
causes of action.
18
In support of its request for penalties, the City submitted,
among others, documents filed with the Secretary of State
regarding Braum’s membership in the limited liability company,
1123 West 7th Street LLC. Among other declarations, the City
submitted a declaration from a Deputy City Attorney describing
the cease and desist letters sent to Braum regarding the Emerald
and Ventura dispensaries. The City also submitted a declaration
from a City paralegal who researched Braum’s real property
holdings and concluded that Braum was the trustee of two trusts
that together held title to 13 properties in Los Angeles County.
The paralegal also concluded that Braum was an officer or
managing member of various entities that owned two multi-unit
apartment or condominium complexes and approximately 11
other properties in Los Angeles County. In addition, the
paralegal discovered that Braum was a manager of another LLC
that owned nine properties. And, a City investigator determined
that the Emerald dispensary was located an impermissible 35
feet from a grade school.
In opposition to the civil penalties claimed against him,
Braum argued: He could not be held individually liable for the
alleged zoning violations because only the owner of the property,
i.e., the Trust, could be liable, and the summary judgment orders
entered were only against Braum as an individual; there was no
zoning ordinance in effect between September 2007 through
August 2012 that prevented a landlord from renting to a medical-
marijuana dispensary and therefore the penalties for the zoning
violation at the Emerald and Ventura properties should only be
imposed from August 2012 to the dates when the dispensaries
stopped operating; because the settlements with the other
defendants ranged from $1,500 to $150,000, the penalties
19
imposed in the two cases should not exceed $150,000; current
law, Proposition 64, allowed for the sale of both medical and
recreational marijuana.
Braum supported his opposition with his declaration
explaining that the Trust, as landlord, did not intend to violate
any laws and was advised by former counsel that the
dispensaries could lawfully occupy the properties; both
dispensaries had ceased to operate, one in 2012 and the other in
2013; and the trial court should demonstrate leniency and award
penalties that were in line with the penalties imposed in other
cases. Braum, however, did not submit any evidence showing his
inability to pay the proposed penalties.
In reply, the City argued that Braum was attempting to
relitigate liability issues already decided against him on
summary judgment; substantial penalties were warranted for the
entire time periods specified; the penalties should reflect the
egregious facts of Braum’s conduct in response to both the cease
and desist letters and the civil enforcement actions against him;
and a permanent injunction was warranted.
On February 22, 2018, the trial court conducted the
remedies phase hearing. Following argument, the court ruled in
favor of the City and indicated that it would sign the City’s
proposed judgments as submitted. The court rejected Braum’s
argument that he should be assessed penalties that were similar
to the penalties paid by a different landlord who had settled its
case, noting that a penalty that was the result of a negotiated
compromise involved an “entirely different situation” from the
case at issue. The court stated that the penalties sought by the
City were appropriate, and adopted the reasoning argued by the
City. It also observed that a hefty penalty was appropriate
20
because of what it characterized as Braum’s “flagrant”
disobedience of the law. In the court’s view, it was “quite obvious
that there was a bet that the political current, the policy climate
would change in the future. And if we just ride this thing out and
defy it long enough we’ll end up, as that expression says, ‘better
to ask for forgiveness than permission.’ [¶] Well, I don’t think
that is a good way to run a city where citizens believe [they can
do] what is profit maximizing although illegal and later [they
can] ask for forgiveness.”
9. Judgments (2018)
On February 22, 2018, the trial court entered substantially
similar judgments against Braum in the Emerald and Ventura
actions. The findings in support of each judgment provided that
Braum had conducted and maintained a nuisance on the
properties in violation of Los Angeles Municipal Code section
12.21 A.1(a) and Health and Safety Code section 11570. The
judgment and order of abatement provided that it was “binding
on . . . Braum, individually and in his capacity as [t]rustee of [the
Trust] . . . .” Based on the finding that each property maintained
a public nuisance, the court ordered abatement. In addition to
issuing injunctions against Braum preventing the use of the
properties for any medical-marijuana related use, the judgments
each imposed for the nuisance violation a $25,000 penalty
pursuant to Health and Safety Code section 11581, subdivision
(b)(2). The judgment in the Emerald action also imposed for the
zoning violation a civil penalty of $2,242,500 pursuant to Los
Angeles Municipal Code section 11.00 (l); and the judgment in
the Ventura action imposed a penalty of $3,675,000 for the zoning
21
violation in that case. The judgments in both actions further
imposed against Braum awards of investigative costs, attorney
fees, and court costs that are not at issue in this appeal.
III. DISCUSSION
A. Double Jeopardy
1. Background
As explained, after the two civil enforcement actions were
filed, but while they were still pending, the City filed a criminal
misdemeanor complaint against Braum, his limited liability
company, a corporation, and two other individuals. The
complaint charged six counts based on alleged violations of Los
Angeles Municipal Code section 45.19.6.2.A and six counts based
on alleged violations of section 12.21 A.1(a). The allegations of
each count, however, were boilerplate in nature and did not
provide any specific facts about the alleged offenses, other than
the specific dates upon which they occurred.
Defendants contend that the entry of the judgments in the
two civil actions, after Braum had been convicted in the criminal
proceeding, violated the federal and state double jeopardy
clauses. According to defendants, the general allegations of
misconduct asserted in the criminal complaint described conduct
substantially similar to the conduct upon which liability was
subsequently imposed in the two civil actions following summary
judgment. They therefore conclude that the same offenses were
at issue in both the criminal and civil actions.
22
2. Legal Principles
“The Fifth Amendment to the United States Constitution
provides that ‘[n]o person shall . . . be subject for the same offense
to be twice put in jeopardy of life or limb . . . .’ This guarantee is
applicable to the states through the Fourteenth Amendment.
[Citations.] Similarly, article I, section 15, of the California
Constitution provides: ‘Persons may not twice be put in jeopardy
for the same offense . . . .’” (People v. Saunders (1993) 5 Cal. 4th
580, 592–593.) “Although in some contexts article I, section 15, of
the California Constitution may provide a level of protection
higher than that afforded by its federal counterpart” (id. at
p. 596), neither party suggests that, in this case, the California
double jeopardy clause should be interpreted differently than the
federal clause.
The Double Jeopardy Clause “protects against a second
prosecution for the same offense after conviction.” (People v.
Sloan (2007) 42 Cal. 4th 110, 120–121, italics added.) The
defendant bears the burden of demonstrating that double
jeopardy applies. (People v. Newell (1923) 192 Cal. 659, 667;
People v. Mason (1962) 200 Cal. App. 2d 282, 285.)19
19 In certain “unique circumstances,” such as “when the
prosecution’s charging decisions and the charges themselves
necessitate,” the burden shifts to the prosecution “once defendant
makes a nonfrivolous showing that an indictment or information
charges him with an offense for which he was formerly placed in
jeopardy;” for instance, “when a defendant is being retried on a
conspiracy charge for which defendant maintains he has been
convicted or acquitted.” (People v. Smith (2005) 132 Cal. App. 4th
1537, 1549, fn. omitted.) Defendant does not contend that the
23
“The [Double Jeopardy] Clause protects only against the
imposition of multiple criminal punishments for the same
offense, [citations], and then only when such occurs in successive
proceedings . . . . [¶] Whether a particular punishment is
criminal or civil is, at least initially, a matter of statutory
construction” and depends on: (1) “whether the legislature
‘. . . indicated, either expressly or impliedly a preference for one
label or the other’” and (2) “‘whether the statutory scheme was so
punitive either in purpose or effect,’ [citation], as to ‘transform
what was clearly intended as a civil remedy into a criminal
penalty.’” (Hudson v. United States (1997) 522 U.S. 93, 99.)
3. Analysis
Defendant contends in his opening brief that he “pled nolo
contendere and was convicted on all charges.” But, as we discuss
above, the record on appeal does not indicate whether defendant
was sentenced on January 15, 2015, or whether, at the conclusion
of a 12-month period of diversion, the charges were dismissed.
(See, e.g., Penal Code, § 1001.7.) We will assume for purposes of
this opinion that Braum could establish that jeopardy attached
when he entered his no contest plea to the criminal complaint,
even though he was not sentenced in that case. (But see Liang v.
Superior Court (2002) 100 Cal. App. 4th 1047, 1055 [jeopardy did
not attach when a defendant entered a plea of no contest as part
of a conditional offer that required his codefendants to also plead
circumstances of this case relieved him of the burden or
otherwise warranted shifting it to the City.
24
guilty and court then vacated no contest plea, over the
defendant’s objection, prior to sentencing].)
We will further assume that defendants could demonstrate
that the penalties imposed in the civil complaints at issue
constituted criminal, rather than civil, penalties. Even giving
defendants the benefit of these assumptions, we reject their
double jeopardy claim because they still have not met their
burden of demonstrating that the conduct at issue in the criminal
complaint constituted the “same offense” as the conduct at issue
in the civil complaints.
According to the criminal complaint submitted by Braum in
opposition to the summary judgment motion, the offenses in that
action occurred on specific dates between August 23, 2013, and
October 11, 2013. The complaint in the Emerald action alleged
that the conduct forming the basis for the zoning- and nuisance-
based claims against Braum began in June 2010; and the
complaint in the Ventura action alleged that the conduct
underling the zoning and nuisance claims asserted in that action
began in January 2009. The City argued that Braum’s liability
for the Emerald dispensary ended on November 14, 2012, and his
liability for the Ventura dispensary ended on February 4, 2013.
Thus, the only documents on this issue submitted by Braum in
opposition to summary judgment, which were the criminal
complaint and minute order, demonstrated that there was no
overlap in the dates at issue in the criminal complaint and the
civil complaints.
Nor did Braum submit any evidence that the conduct at
issue in the criminal complaint occurred at the same location as
the conduct at issue in the civil complaints. Although all three
complaints charged that the conduct occurred in Los Angeles, it
25
appears from the caption of the criminal complaint that the
charged offenses involved a dispensary—Downtown Discount
Center, Inc.—and a property—1123 West 7th Street—that are
not mentioned in either the civil complaints or the evidence in
support of the summary judgment motion.
The allegations and evidence before the trial court were
therefore insufficient to show that the criminal complaint was
based on the same offenses as the civil actions. (See, e.g.,
Blockburger v. United States (1932) 284 U.S. 299, 301 [two
narcotics sales, “although made to the same person, were distinct
and separate sales made at different times”]; People v. Cuevas
(1996) 51 Cal. App. 4th 620, 624 [no bar to successive prosecutions
where “offenses committed at different times and at different
places”].)
B. Excessive Fines
1. Background
Defendants contend the penalties imposed, which totaled
$5,967,500, were unconstitutionally excessive under the Eighth
Amendment because: the penalties were grossly disproportionate
to the offenses; the trial court failed to properly consider the four
factors mandated by United States v. Bajakajian (1998) 524 U.S.
321 (Bajakajian); and the imposition of daily penalties is suspect
and disfavored.
26
2. Legal Principles
“The Eighth Amendment to the United States Constitution
states: ‘Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.’ (Italics
added.) ‘[T]he Due Process Clause of the Fourteenth Amendment
to the Federal Constitution . . . makes the Eighth Amendment’s
prohibition against excessive fines and cruel and unusual
punishments applicable to the States. [Citation.] The Due
Process Clause of its own force also prohibits the States from
imposing “grossly excessive” punishments . . . .’ [Citation.] [¶]
The California Constitution contains similar protections.
Article I, section 17, prohibits ‘cruel or unusual punishment’ and
‘excessive fines;’ article I, section 7, prohibits the taking of
property ‘without due process of law.’” (People ex rel Lockyer v.
R.J. Reynolds Tobacco Co. (2005) 37 Cal. 4th 707, 727–728 (R.J.
Reynolds).)
“The leading United States Supreme Court case on the
Eighth Amendment’s prohibition of excessive fines is
[Bajakajian, supra,] 524 U.S. 321 . . . , which involved a federal
statute (31 U.S.C. § 5316(a)) requiring any person transporting
more than $10,000 out of the United States to file a report with
the United States Customs Service. Bajakajian attempted to
take $357,144 out of the country without filing a report. The
government claimed that the entire $357,144 was forfeited. [¶]
The high court pointed out that ‘[t]he touchstone of the
constitutional inquiry under the Excessive Fines Clause is the
principle of proportionality.’ (Bajakajian, supra, 524 U.S. at
p. 334.) It then set out four considerations: (1) the defendant’s
culpability; (2) the relationship between the harm and the
27
penalty; (3) the penalties imposed in similar statutes; and (4) the
defendant’s ability to pay. (Id. at pp. 337–338; see City and
County of San Francisco v. Sainez (2000) 77 Cal. App. 4th 1302,
1320–1322 . . . (Sainez).) After reviewing those considerations,
the high court held that the forfeiture of Bajakajian’s currency
constituted an ‘excessive fine’ barred by the Eighth Amendment.”
(R.J. Reynolds, supra, 37 Cal.4th at p. 728.)
3. Analysis
“[O]ur review of the ruling on the constitutional question
[under the Eighth Amendment’s excessive fines clause] is
independent judgment, or de novo (Townsel v. San Diego
Metropolitan Transit Development Bd. (1998) 65 Cal. App. 4th 940,
946 . . .), but with deference to underlying factual findings, which
we review for substantial evidence, viewing the record in the
light most favorable to the ruling (Ojavan Investors, Inc. v.
California Coastal Com. (1997) 54 Cal. App. 4th 373, 395 . . . ;
cf. People v. Dillon (1983) 34 Cal. 3d 441, 455–456, 477–478 . . .
[cruel or unusual punishment]).” (Sainez, supra, 77 Cal.App.4th
at p. 1313.) Contrary to defendants’ assertion, when applied to
the facts in this case, the four-part Bajakajian test shows that
the imposition of the civil fines did not violate the excessive fines
clause.
a. Braum’s Culpability
During the remedies phase, the City produced evidence
that Braum was notified prior to the filing of the two civil
actions—in May 2010 and again in March and May 2011—that
28
the Emerald and Ventura dispensaries operating on his
properties were not permitted under Los Angeles Municipal Code
section 45.19.6.7 and that they must cease operations. Braum
took no action in response to the notice and instead continued to
lease the two properties to his dispensary tenants. The City then
filed civil actions against Braum in August 2011 to compel
compliance with its zoning code and the nuisance abatement law,
but the dispensaries continued to operate under the Trust’s
leases. Over a year after filing the actions against Braum, the
City sought and obtained in November 2012 a preliminary
injunction in the Emerald action which ordered him not to allow
the Sherman Oaks property to be used as a marijuana
dispensary. Notwithstanding the preliminary injunction, the
Emerald dispensary continued to operate. As a result, in August
2013, the City sought and obtained an OSC regarding contempt
against Braum which he ultimately settled in March 2014.
In addition, during the remedies phase, the City submitted
evidence of a citizen complaint that the Emerald dispensary was
also being used as a “grow.” According to the complainant, “there
was a smell of marijuana being emitted” from the property, and
the complainant observed “large grow lights and other such
improvements.” But when the complainant raised the issue with
Braum, he denied the existence of the grow or the smell of
marijuana at his property. The City also submitted evidence that
the Emerald dispensary was impermissibly operating within 35
feet of an elementary school, notwithstanding the requirement in
Los Angeles Municipal Code section 45.19.6.3 A.2(a) that
marijuana dispensaries were not permitted within “a 1,000-foot
radius of a school . . . .”
29
Based on the evidence presented to it, the trial court
concluded that Braum’s disobedience of the City’s ordinances and
the court’s orders was “flagrant.”20 That conclusion was amply
supported by the record on the remedies hearing which clearly
demonstrates Braum’s culpability for the continuing offenses on
his two properties.
b. Relationship Between the Harm and
the Penalty
The City had a valid and strong interest in regulating uses
within the City, including medical-marijuana uses, and in
abating nuisances defined by state law to address the perceived
harms underlying its zoning regulations and the statewide
nuisance abatement law. (Sainez, supra, 77 Cal.App.4th at
p. 1315 [securing obedience to code requirements through
penalties is a legitimate exercise of the police power].) By
20 Defendants maintain that the trial court ignored the
evidence of Braum’s “good faith,” including his testimony that he
relied on the advice of counsel and had no intention of violating
the medical-marijuana laws, which laws he characterized as
ambiguous, at best. But the record reflects that the court was
well aware of the long procedural history of the actions against
Braum and his responses to them. It was therefore within the
purview of the court, sitting as the trier of fact during the
remedies phase, to determine the weight, if any, to be given to
Braum’s evidence in opposition to the remedies sought against
him by the City. There is nothing in the record to suggest that
the court failed to engage in such a weighing process before
deciding to give more weight to the ample evidence submitted by
the City in support of those remedies.
30
consistently resisting the City’s enforcement efforts and instead
allowing the unpermitted uses and nuisances to continue on his
Trust’s properties, Braum increased the risk of the harm the City
was endeavoring to enjoin and abate. Because, as the landlord, it
was within his power to comply in a timely manner with the
City’s enforcement efforts, and thereby mitigate the amount of
the penalties imposed, his own conduct dictated that the amount
of penalties necessary to achieve the City’s legitimate
enforcement goals would be substantial. (See Sainez, supra, 77
Cal.App.4th at p. 1316 [defendants had it within their control
first to prevent and then to stop the accumulation of penalties;
thus, they “had their own intransigence to blame” for the amount
of the penalties].)
c. Penalties Imposed in Similar Statutes
As the City points out, there are no published cases
showing the amounts of penalties imposed on landlords of
medical-marijuana dispensaries. But the cases cited by the City
are sufficiently analogous to show that the penalties imposed in
this case are not dissimilar to those imposed under other
regulatory statutes. (See, e.g., People v. Overstock.Com, Inc.
(2017) 12 Cal. App. 5th 1064, 1087–1088 [trial court imposed a
daily penalty of $2,000 for a total of $6,828,000 in civil penalties
under Business and Professions Code sections 17206,
subdivision (b) for unfair competition and 17536, subdivision (b)
for false advertising] and cases cited therein at pp. 1089–1090.)
31
d. Ability to Pay
Defendants argue that the City did not produce any
evidence of Braum’s ability to pay the amount of civil penalties
sought. The City counters that it was Braum’s burden in the
trial court to raise and demonstrate his inability to pay the
penalties, citing, among other cases, People v. First Federal
Credit Corp. (2002) 104 Cal. App. 4th 721, 729.)
To the extent it was Braum’s burden to show an inability to
pay the penalties, he failed to carry that burden because his
opposition did not raise the issue, much less submit evidence
concerning his financial status. But, even it was the City’s
burden to make a prima facie showing of Braum’s ability to pay,
its evidence in support of its remedies briefs, showing that
Braum controlled a substantial amount of commercial and
residential real estate in Los Angeles County, satisfied that
burden. Based on the evidence submitted, the trial court could
have reasonably inferred that Braum had the financial ability to
pay the penalties.
C. Order to Evict
Defendants claim that the trial court’s liability findings
against Braum for the alleged zoning and statutory nuisance
violations were all driven by his conduct in failing to file and
diligently pursue unlawful detainer actions against the Emerald
and Ventura dispensaries. According to defendants, because
neither the City nor the court had authority to order Braum to
evict his tenants, he could not be held liable for failing to so in
32
response to the filing of the civil actions, the entry of the
preliminary injunction, or the issuance of the OSC.
As an initial matter, Braum did not oppose the summary
judgment motion on the grounds that neither the City nor the
trial court had the authority to order him to file and diligently
pursue an unlawful detainer action. His failure to raise the issue
in the first instance with the trial court therefore forfeited the
issue on appeal. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal. 4th 247,
264–265.)
Even assuming Braum had preserved the issue for appeal,
defendants’ argument is based upon a faulty premise. The trial
court’s liability findings against Braum were made on summary
judgment and, contrary to Braum’s assertion, the allegations and
evidence upon which the court’s liability determinations were
made did not include any mention of his failure to file unlawful
detainer actions in response to the City’s demands or court
orders. Although the preliminary injunction and OSC issued
against him were based, in part, on evidence that he had failed to
take any action to prevent the unpermitted uses and nuisances
on his Trust’s properties, none of that evidence was before the
court at the summary judgment hearing.
Instead, as explained, the City limited its evidentiary
presentation to documentary evidence showing the dispensaries’
occupation of the Sherman Oaks and Studio City properties and
the Trust’s ownership of those two properties, as well as police
officer declarations showing that marijuana was being dispensed
there. Because the trial court’s rulings against Braum on the
summary judgment motions were not based in any way on
evidence that Braum failed to file and pursue unlawful detainer
actions, his arguments and authorities concerning the court’s
33
authority to order him to file and pursue such actions are
irrelevant.
Moreover, even assuming the trial court’s liability findings
were based, in part, on Braum’s failure to comply with the
preliminary injunction against him, the injunction ordered him
not to allow the Trust’s properties to be used for medical-
marijuana purposes or to lease the properties for such purposes.
The injunction did not require that Braum file unlawful detainer
actions or pursue them diligently under court supervision. And,
although the OSC ordered Braum to appear and explain why the
court should not order him to file unlawful detainer actions, no
such order was ever entered against Braum because the OSC was
settled. As Braum was never ordered to file an unlawful detainer
action, the trial court could not find Braum liable for failing to
pursue such actions against the dispensaries. Finally, although
the complaint sought, in its prayer for relief, an order requiring
Braum to file unlawful detainer actions, the judgment did not
include any such order.
D. Due Process: Vagueness
1. Background
According to defendants, at the time Braum executed the
leases for the Emerald and Ventura dispensaries—June 21, 2007,
and January 7, 2009, respectively—the City’s medical-marijuana
regulations were so complex, and their meaning so arcane, that
“it was virtually impossible for any landlord to determine and
prove whether a given dispensary was operating legally, and
34
Braum therefore had no clearly lawful path to follow.” We are
unpersuaded by defendants’ argument.
2. Legal Principles
“‘The vagueness doctrine bars enforcement of “‘a statute
which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at
its meaning and differ as to its application.’”’” (People v. Navarro
(2016) 244 Cal. App. 4th 1294, 1300.) We review vagueness
challenges de novo. (Id. at p. 1301.)
“‘The starting point of our analysis is “the strong
presumption that legislative enactments ‘must be upheld unless
their unconstitutionality clearly, positively, and unmistakably
appears. [Citations.] A statute should be sufficiently certain so
that a person may know what is prohibited thereby and what
may be done without violating its provisions, but it cannot be
held void for uncertainty if any reasonable and practical
construction can be given to its language.’” [Citation.]’ (Williams
v. Garcetti [(1993)] 5 Cal.4th [561,] 568.)” (People v. Mary H.
(2016) 5 Cal. App. 5th 246, 260.)
“The degree of vagueness that the Constitution tolerates—
as well as the relative importance of fair notice and fair
enforcement—depends in part on the nature of the enactment.
Thus, economic regulation is subject to a less strict vagueness
test because its subject matter is often more narrow, and because
businesses, which face economic demands to plan behavior
carefully, can be expected to consult relevant legislation in
advance of action. Indeed, the regulated enterprise may have the
ability to clarify the meaning of the regulation by its own inquiry,
35
or by resort to an administrative process. The Court has also
expressed greater tolerance of enactments with civil rather than
criminal penalties because the consequences of imprecision are
qualitatively less severe.” (Village of Hoffman Est. v. Flipside,
Hoffman Est. (1982) 455 U.S. 489, 498–499.)
3. Analysis
We thus begin our analysis under the strong presumption
that the City’s medical-marijuana regulations must be upheld
unless defendants affirmatively demonstrate that those
regulations are clearly unconstitutional.
The zoning ordinances here were neither vague nor
uncertain. The ICO, which became effective on
September 14, 2007 (420 Caregivers, supra, 219 Cal.App.4th at
p. 1326 and fn. 2), plainly prohibited the establishment or
operation of medical-marijuana dispensaries within the City
limits.21 Although the ICO also allowed an exception to this
general prohibition, the requirements of that exception were
21 “Sec. 2. PROHIBITION. Notwithstanding any provisions
of the [Los Angeles Municipal Code] to the contrary, for a period
of one year from the effective date of this ordinance or until a
permanent ordinance is adopted, which establishes permanent
citywide regulations regarding [m]edical[-m]arijuana
[d]ispensaries, whichever occurs first: [¶] A. No person or entity
shall establish a [m]edical[-m]arijuana [d]ispensary. [¶] B. No
person or entity shall operate a [m]edical[-m]arijuana
[d]ispensary.”
36
sufficiently definite to prevent arbitrary or discriminatory
enforcement.22
Although the City’s medical-marijuana regulations were
modified and amended in the years following the enactment of
the ICO, each such modification or amendment maintained in
effect the ICO’s basic requirements concerning the exception to
the City-wide prohibition on medical-marijuana dispensaries: to
operate legally, dispensaries that were in business prior to
September 14, 2007, were required to have registered with the
City within 60 days of that effective date. Thus, landlords such
as Braum were subject to the ICO’s general prohibition and
exception requirements from its effective date throughout the
duration of the Emerald and Ventura leases. The language of the
ICO’s exception contained the reasonable degree of certainty
required under due process to apprise a landlord such as Braum
22 “The prohibitions specified in [s]ection 2 of this ordinance
shall not apply to any [m]edical[-m]arijuana [d]ispensary
established before the effective date of this ordinance and
operated in accordance with State law, if the owner or operator of
the [m]edical[-m]arijuana [d]ispensary complies with the
following requirements: [¶] A. File the form, designated by . . .
the City Clerk, and the following documentation with . . . the City
Clerk within 60 days of the adoption of the [ICO]: [a City tax
registration certificate; a state board of equalization seller’s
permit; the property lease; business insurance; dispensary
membership forms; and, if needed, a county health department
permit] . . . . [¶] B. This exception only applies to a facility that
otherwise meets all the requirements of the [Los Angeles
Municipal Code] and is open for business on the effective date of
this ordinance.”
37
of the practice to be avoided on the properties. It was therefore
not void for vagueness.
To the extent defendants complain that it was burdensome
for landlords to research the ever changing marijuana
regulations, “[t]he mere fact that the owner of premises within [a
particular zone] is required to search the zoning ordinances to
discover the scope of permitted uses, cannot alone render the
ordinance vague and uncertain.” (Sechrist v. Municipal Court
(1976) 64 Cal. App. 3d 737, 743.)
E. Individual Liability
1. Background
The City named Braum as a defendant in each civil action,
both in his individual capacity and as the trustee of the Trust.
The City moved for summary judgment against Braum on the
two causes of action asserted against him in each complaint, i.e.,
it sought a determination that Braum had violated the zoning
code and the Health and Safety Code, both as an individual and
as the trustee on behalf of the Trust. In support of its motion, the
City submitted documents showing that the Emerald and
Ventura dispensaries were conducting business operations at the
Sherman Oaks and Studio City properties, that Braum, as
trustee of the Trust, owned both properties, and that each
property was being used to sell or distribute marijuana.
In opposition to the motion, Braum submitted the leases for
both properties executed by him and argued the City had failed to
show that the Trust, as landlord, aided and abetted the
dispensaries in the operation of their businesses. But he did not
38
expressly argue that he was not individually liable for any of the
violations.
Following the hearing on the motion, the trial court issued
an order granting the City’s motion for summary judgment as to
Braum. The court’s order on the motion noted that Braum was a
defendant in the first and second causes of action in the Emerald
and Ventura complaints, but without expressly indicating that
those claims were asserted against him both as an individual and
as the trustee.
During the subsequent remedies phase, Braum opposed the
penalties sought by the City, arguing, among other things, that
he could not be held personally liable for the civil penalties
sought under either the zoning code or the Health and Safety
Code. In its reply briefs, the City argued that Braum could be
held personally liable and that the trial court had already made
that determination.
During oral argument at the remedies hearing, Braum
argued that he was not personally liable for the civil penalties
sought by the City, but the trial court rejected that argument,
ruling that it was awarding all of the penalties the City requested
“as to the individuals . . . .”
In the subsequently entered judgments, the court ruled
that the penalties would be “imposed against [d]efendant Michael
Braum, individually[,] and as [t]rustee of the [Trust].”
2. Legal Principles
“[S]ection 18000 of the Probate Code . . . provides that ‘a
trustee is not personally liable on a contract properly entered into
in the trustee’s fiduciary capacity in the course of administration
39
of the trust unless the trustee fails to reveal the trustee’s
representative capacity or identify the trust in the contract.’
Sections 18001 and 18002 go on to state that ‘[a] trustee is
personally liable for obligations arising from ownership or control
of trust property only if the trustee is personally at fault,’ and
that ‘[a] trustee is personally liable for torts committed in the
course of administration of the trust only if the trustee is
personally at fault.’” (Galdjie v. Darwish (2003) 113 Cal. App. 4th
1331, 1343).
A “trustee thus cannot be held personally liable under
[Probate Code] section 18001 for any obligation arising from his
ownership or control of trust property, nor can he be held
personally liable under [Probate Code] section 18002 for any torts
committed in the course of his administration of the trust, unless
the party seeking to impose such personal liability on the trustee
demonstrates that the trustee intentionally or negligently acted
or failed to act in a manner that establishes personal fault.
(§§ 18001, 18002; Cal. Law Revision Com. com., 54A West’s Ann.
Prob. Code, supra, foll. §§ 18001 & 18002, p. 237.) [¶] . . . A
trustee who . . . acted in his representative capacity cannot be
held personally liable under [Probate Code] section 18001 for an
obligation . . . solely upon a showing that the obligation arose out
of his ownership or control of the trust property. The imposition
of such personal liability must also rest on a finding of personal
fault supported by a sufficient showing that the trustee’s conduct
was intentional or negligent. (§§ 18001, 18002; Cal. Law
Revision Com. com., 54A West’s Ann. Prob. Code, supra, foll.
§§ 18001 & 18002, p. 237.)” (Haskett v. Villas at Desert Falls
(2001) 90 Cal. App. 4th 864, 877–878 (Haskett).)
40
3. Analysis
The evidence in support of the City’s assertions of personal
liability against Braum for the zoning and Health and Safety
Code violations during the summary judgment proceedings was
limited. We will therefore assume that it was insufficient to
demonstrate that Braum was personally liable for the zoning
code and Health and Safety Code violations.
But the issue of Braum’s personal liability, as opposed to
that of the Trust, for the penalties was revisited by the parties
and the trial court during the penalty phase. At that point, the
City had introduced further evidence showing that, prior to the
filing of the civil actions, Braum had received notice of the
illegality of the dispensaries and demands that they cease
operation. The City’s evidence also showed that the sale and
distribution of marijuana nevertheless continued at each
property, causing the City to file the civil actions against the
dispensaries and Braum. The illegal activity at each property,
however, continued unabated. The City then obtained a
preliminary injunction against Braum concerning the continued
illegal activity by the Emerald dispensary at the Sherman Oaks
property and, when the illegal activity persisted, the City
obtained from the trial court an order to show cause. The City’s
remedies evidence further showed that the Emerald dispensary
was conducting business within 35 feet of an elementary school,
an additional Municipal Code violation, and that at least one
complaint had been made about a grow operation at that
dispensary, the existence of which Braum denied.
When the evidence introduced during the remedies phase is
viewed together with the evidence submitted in support of the
41
summary judgment motion, it supported a reasonable inference
that Braum was personally at fault for the zoning and Health
and Safety Code violations, either because he intentionally
allowed those uses to continue despite notice and demand that
they cease, or because his conduct in response to the notices,
demands, and civil actions rose to the level of negligent disregard
of the ongoing violations. The trial court therefore did not err in
finding Braum personally liable for the civil penalties and other
relief imposed against him in each of the judgments.
IV. DISPOSITION
The judgment is affirmed. Plaintiff is awarded costs on
appeal.
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
42
Filed 5/22/20
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B289603, B289604
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos.
v. BC467194, BC467495)
DANIEL BRAUM et al., as ORDER MODIFYING OPINION
Executors, etc., and as Trustees, AND CERTIFYING OPINION FOR
etc., PARTIAL PUBLICATION
Defendants and Appellants.
THE COURT:
Good cause appearing, the opinion in the above entitled
matter, filed on April 22, 2020, is hereby modified as follows:
1. The caption shall be modified as reflected in the
caption of this order.
1
2. On page 2, second paragraph, second line, replace
“clause” with “clauses of the federal and state
constitutions”.
3. On page 2, footnote 1, delete the first word “Michael”.
4. On page 3, footnote 4, replace “subdivision (d).” with
“subd. (d).”
5. On page 7, first full paragraph, second line, replace
“Boulevard,” with “Boulevard in” and seventh line,
replace “(Emerald)” with “(Emerald dispensary)”.
6. On page 8, first paragraph, seventh line, remove
comma after “dispensary” and remove “dba City
Organic Remedies,” and ninth line insert
“dispensary” after “(Ventura”.
7. On page 9, first paragraph, fourth line, replace
“Emerald” with “the Emerald dispensary” and sixth
line, replace “Ventura” with “the Ventura
dispensary”.
8. On page 13, footnote 12, second line, replace
“property” with “dispensary”.
9. On page 15, last word of the full paragraph, insert
single quotation mark before the final double
quotation mark.
10. On page 16, first full paragraph, first line, replace
“requests for summary adjudication” with “motion”.
11. On page 17, footnote 18, second line, replace
“adjudication” with “judgment”.
12. On page 18, at the only full paragraph, fifth line,
replace “Emerald” with “Sherman Oaks” and seventh
line, replace “Ventura” with “Studio City”.
2
13. On page 19, second paragraph, replace “violation at
the Emerald and Ventura” with “violations at the
Sherman Oaks and Studio City”.
14. On page 20, first line, insert “and” between “;” and
“current”.
15. On page 24, second paragraph, sixth line, replace
“Penal” with “Pen.”.
16. On page 25, second full paragraph, eighth line,
replace “underling” with “underlying”.
17. On page 32, first paragraph, third and fourth lines,
remove “in the trial court” and sixth line, remove
close parenthesis after “729.”
18. On page 40, ninth line, replace “).” with “.)”
19. On page 40, in the full paragraph, in both the ninth
line and 17th line, insert “[Prob. Code,] between “§§”
and “18001”.
20. On page 41, first line, replace “assertions” with
“assertion”.
21. On page 41, last two lines, and page 42, first line,
replace, “When the evidence introduced during the
remedies phase is viewed together with the evidence
submitted in support of the summary judgment
motion, it supported” with “Viewed together, the
evidence introduced during the remedies phase and
during the summary judgment proceedings
supported”.
The filed opinion was not certified for publication in the
Official Reports. Upon application of respondent and a third-
3
party, and for good cause appearing, it is ordered that the opinion
shall be partially published in the Official Reports.
Pursuant to California Rules of Court, rule 8.1105(b), this
opinion is certified for publication with the exception of the
Discussion parts C and D. There is no change in the judgment.
BAKER, Acting P. J. MOOR, J. KIM, J.
4