Opinion

City of Monterey v. Carrnshimba

Court: California Court of Appeal
Filed: Apr 26, 2013
Status: Published
Cited by: 0 cases
Authority: More cited than 28.9%

The opinion

Filed 3/27/13; pub. order 4/25/13 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

CITY OF MONTEREY, H036475

(Monterey County

Plaintiff and Respondent, Super. Ct. No. M103860)

JHONRICO CARRNSHIMBA et al.,

Defendants and Appellants.

___________________________________

In December 2009, Jhonrico Carrnshimba, operating a nonprofit corporation,

MyCaregiver Cooperative, Inc. (collectively, appellants), opened a collective to dispense

medical marijuana (Dispensary; Dispensaries) in the City of Monterey (City or

Monterey).1 Shortly before incorporation of MyCaregiver, Carrnshimba applied for a

business license with the City. He failed to disclose that he intended to operate a

Dispensary in either the application or in subsequent communications in which the City

sought clarification of the nature of his intended business. Shortly afterward, City

personnel learned that appellants were dispensing medical marijuana. The City‘s

Assistant City Manager advised Carrnshimba that he had failed to disclose his intention

to operate a Dispensary in the City; the operation of a Dispensary was not a permitted use

under the City Code; the use was therefore prohibited; his business license application

Appellants make a distinction between dispensaries and cooperatives that

dispense medical marijuana. While such a distinction may be of significance in a case

involving questions concerning compliance with State medical marijuana laws, that is not

an issue present here. We will accordingly refer broadly to any organization dispensing

medical marijuana as a Dispensary.

was denied; and he was to immediately cease and desist operating the Dispensary

business. Eight days later (January 19, 2010), the City passed an ordinance declaring a

moratorium temporarily prohibiting the operation of any Dispensaries.

On February 8, 2010, the City brought an action against appellants to abate a

public nuisance. After obtaining a preliminary injunction prohibiting appellants from

dispensing medical marijuana, the City successfully moved for summary judgment. The

court thereafter entered a judgment that included a permanent injunction prohibiting

appellants from operating a Dispensary as long as there was a citywide moratorium

prohibiting such an operation.

Appellants assert that the City ordinance creating a moratorium prohibiting

businesses from dispensing medical marijuana, adopted after appellants had commenced

their operation, could not be applied retroactively against them. They also challenge the

City‘s positions below that their business operation was a public nuisance because (1)

they failed to obtain a business license; and (2) a Dispensary was not an expressly

permitted use under the City Code and was therefore a prohibited use of property.

Neither of these two public nuisance theories was addressed by the trial court in granting

summary judgment.

We conclude that the controversy is moot because the permanent injunction

entered against appellants expired, and appellants vacated the Monterey property where

they operated the Dispensary. But because this case involves issues that are important

and of continuing public interest, we will exercise our discretion to consider the merits of

the appeal. We decide that the use of property in the City as a Dispensary was an

impermissible use under the pre-moratorium City Code and appellants‘ operation of a

Dispensary therefore constituted a public nuisance per se. We hold further that because

appellants acquired no vested right to operate their illegal Dispensary, the trial court

properly found that appellants‘ continued post-moratorium operation of its Dispensary

was a public nuisance per se. Accordingly, we will affirm the judgment.

PROCEDURAL HISTORY

On February 8, 2010, Monterey filed a complaint against Carrnshimba and

MyCaregiver, a California corporation.2 The City asserted one cause of action to enjoin a

public nuisance per se with respect to appellants‘ operation of a Dispensary at 554

Lighthouse Avenue in Monterey (premises). Monterey sought and obtained a

preliminary injunction.

On July 22, 2010, Monterey filed a motion for summary judgment, which

appellants opposed. After hearing argument, the court issued its order on October 25,

2010, granting the City‘s motion for summary judgment. A judgment was thereafter

entered, which included the issuance of a permanent injunction, effective for the duration

of the City‘s moratorium, against appellants‘ operation of a Dispensary at the premises or

at any other location in Monterey. Appellants filed a timely appeal from the judgment.

At oral argument, we were advised by the City‘s counsel that MyCaregiver‘s

status as a corporate entity had been suspended. We requested that the parties provide

supplemental briefs concerning MyCaregiver‘s corporate status and, if suspended, the

legal effect thereof upon this ongoing appeal. We received correspondence from the

parties; appellants acknowledged that MyCaregiver had been suspended by the Secretary

of State. Because a suspended corporation may not prosecute or defend an action, nor

may it prosecute an appeal from an adverse judgment (Grell v. Laci Le Beau Corp.

(1999) 73 Cal.App.4th 1300, 1306), we directed appellant MyCaregiver to show cause

why its appeal should not be dismissed. Through its counsel, MyCaregiver responded on

February 11, 2013, indicating that earlier that month, the corporation had filed tax returns

for 2009, 2010, and 2011, had paid back taxes, and had applied to the California

Franchise Tax Board for a certificate of revivor. Two days later, Carrnshimba submitted

to this court correspondence enclosing a copy of the certificate of revivor, effective

February 12, 2013, reinstating the corporation‘s powers under the name ―MyCaregiver

Patient‘s Cooperative, Inc.‖ Accordingly, the concerns regarding MyCaregiver‘s

corporate status brought to the attention of this court at oral argument no longer exist, and

the corporation‘s appeal may proceed. (Peacock Hill Assn. v. Peacock Lagoon Constr.

Co. (1972) 8 Cal.3d 369, 373-374 [suspended corporation which revives its corporate

powers by payment of back taxes may proceed with its appeal].)

FACTS3

In November or December 2009, Carrnshimba leased the premises for a term of

two years. The premises are located in a zoning district containing the classification of a

―C-2 Community Commercial District‖ under the City‘s Zoning Ordinance.4 On

December 10, 2009, Carrnshimba, listing his name as Jhonrico Carr and identifying

himself as ―director‖ of a business named ―MyCaregiver Inc.,‖ submitted to the City an

application for a business license. Under penalty of perjury, he described the business he

intended to operate out of the premises as: ―healthcare cooperative/individual & family

services.‖ (Capitalization omitted.)

Tricia Wotan, an employee of the City‘s planning department, reviewed the

application and, because she found Carrnshimba‘s description of the business to be

―vague,‖ asked for more information about it. Carrnshimba responded to Wotan in an e-

mail dated December 20, 2009, indicating: ―The primary function of our corporation is

the member[-]based retail of various health and beauty products, natural vitamins, aroma

therapy products and instructional books and DVDs (extended list of products below). . . .

[¶] . . .[¶] . . . We operate in the same fashion as a Costco co-op or the Davis food co-op

on a smaller-scale specializing in healthcare products.‖ Carrnshimba identified 16 kinds

of products his business would sell; medical marijuana was not among the products

We present the essential relevant facts as taken from the papers filed in support

of and in opposition to the motion for summary judgment. ― ‗Because this case comes

before us after the trial court granted a motion for summary judgment, we take the facts

from the record that was before the trial court when it ruled on that motion. [Citation.]

. . . We liberally construe the evidence in support of the party opposing summary

judgment and resolve doubts concerning the evidence in favor of that party. [Citation.]‘

[Citation.]‖ (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717.)

Monterey‘s Zoning Ordinance is found in Chapter 38 of the City Code. (City

Code, § 38-1.) Since the Zoning Ordinance is within the City Code, we will refer to

provisions found in Chapter 38 interchangeably as the City Code and the Zoning

Ordinance.

listed. Wotan approved the business use of the premises, unaware that the actual use

would be for a Dispensary. She would not have given her approval if she had known the

true use of the premises because Monterey has no regulation which permits the use of

property as a Dispensary.

Before the business license was issued by the City‘s revenue department, and on

or about January 5, 2010, the City learned through publicity generated by Carrnshimba

that he was operating a Dispensary. Fred Cohn, as Assistant City Manager, determined

that the operation of a Dispensary was not an existing permitted use under Monterey‘s

Zoning Ordinance. He therefore concluded that appellants use of the premises ―was

expressly prohibited under Monterey City Code § 38-29(B).‖ Cohn sent a letter to

Carrnshimba on January 11, 2010, (1) advising him that he had ―withheld . . . [a] critical

piece of information from the City,‖ namely, that he was operating a Dispensary;

(2) informing him that such use was not an enumerated land use, could not be categorized

under any existing permitted use, and was therefore prohibited; (3) stating that he could

seek a code amendment to allow the use of Dispensaries in Monterey; (4) indicating that

his business license was rejected; and (5) demanding that he ―cease and desist operations

immediately.‖ Cohn also advised in the letter that Carrnshimba could appeal Cohn‘s

determinations to the Planning Commission.

On January 19, 2010, as an interim urgency measure, Monterey adopted

Ordinance number 3441, under which ―no use permit, variance, building permit, business

license or other applicable entitlement for the establishment or operation of a medical

marijuana dispensary [in any City zoning district] shall issue . . .‖5 The ordinance

In connection with its summary judgment motion, Monterey filed a request that

the court take judicial notice, pursuant to Evidence Code section 452, subdivision (b), of,

among other things, certain provisions of Monterey Ordinance numbers 3441 and 3445,

and certain sections of the City Code. The court granted the request. We likewise take

judicial notice of these legislative enactments of a municipality, and we will also take

continued

established a moratorium on Dispensaries for a period of 45 days. The moratorium

period was thereafter extended for a period of 10 months and 15 days (i.e., until on or

about January 20, 2011), pursuant to Ordinance number 3445 adopted March 2, 2010.

On January 20, 2010, Carrnshimba filed an appeal with the Planning Commission

concerning Cohn‘s determination that the Dispensary operation was not a permitted use.

Carrnshimba never applied for a code amendment to allow the use of Dispensaries in

Monterey. Cohn advised Carrnshimba on February 8, 2010, that the appeal could not be

processed because of the moratorium resulting from the adoption of Ordinance number

3441.

Notwithstanding the City‘s cease-and-desist demand, appellants continued to

operate the premises as a Dispensary between December 2009 and June 2010.6

DISCUSSION

I. Post-Judgment History

Before addressing the merits of this appeal, we note some relevant factual and

procedural developments that postdate the entry of judgment.7 On October 19, 2010, the

Monterey City Council adopted Ordinance number 3454, which extended the moratorium

on the establishment and operation of Dispensaries for a period of one year.8 Nearly one

judicial notice of section 38-15 of the City Code, a section referenced by neither party.

(Evid. Code, §§ 452, subd. (b), 459, subd. (a); see also Madain v. City of Stanton (2010)

185 Cal.App.4th 1277, 1280, fn. 1.)

As discussed in part I of the Discussion, post, appellants in fact continued to

operate the Dispensary until August 2011, long after summary judgment was granted and

judgment (which included a permanent injunction) was entered in favor of the City.

We are aware of these developments as a result of documents included in

respondent‘s appendix, and documents filed herein by the parties in connection with

various requests for judicial notice, which requests were granted by this court.

The court below did not consider this ordinance, which was adopted nine days

before the granting of summary judgment.

year later, on September 6, 2011, Monterey adopted Ordinance number 3465, which

banned all Dispensaries within all zones of the City, effective 30 days after its adoption.

In the meantime, in February 2011, Monterey filed an application seeking to hold

appellants and Marc Rowland9 in contempt based upon their having allegedly violated the

terms of the permanent injunction by continuing to operate a Dispensary at the

premises.10 As a result of the City‘s application and supplemental papers it filed, the

court issued orders to show cause re contempt in February and April 2011, respectively.

In July 2011, a judgment of unlawful detainer was entered in favor of Jerald

Heisel and Debra R. Heisel, Trustees of the Heisel Family Trust (the Heisels) and the

owners of the premises, against appellants and Rowland. The judgment provided that the

Heisels were entitled to possession of the premises and that the lease between the parties

was declared forfeited. A return on a writ of possession issued in the eviction action was

filed on or about August 10, 2011, indicating that appellants and Rowland had vacated

the premises on or about August 1, 2011.

II. Mootness

Monterey filed a motion to dismiss this appeal, arguing that the case was moot and

that, in any event, the appeal should be dismissed based upon appellants‘ having violated

the trial court‘s permanent injunction. Appellants opposed the motion, arguing that ―[t]he

appeal is not moot because appellants‘ defense of the pending contempt proceeding

hinges on a ruling from this court that the trial court‘s ruling was invalid.‖ They argued

further that the appeal should not be dismissed due to any violation of the preliminary

Rowland is a director of MyCaregiver.

In support of the application, Monterey Police Officer Mike Bruno indicated in

a declaration that, when he assisted in the execution of a civil inspection warrant relative

to the premises on February 11, 2011, Carrnshimba and Rowland ―admitted that they

[were] operating a medical marijuana cooperative and that they [would] continue to do so

despite the injunction since they have an appeal pending.‖

injunction resulting in them having been charged with (but not yet found in) contempt,

because ―if the trial court‘s ruling is not valid, then appellants[] cannot be held in

contempt for disobeying that ruling.‖ We denied the City‘s motion to dismiss the appeal.

As explained below, although we agree that the issue is now moot, this appeal presents

issues of continuing public interest and we will therefore exercise our discretion to decide

the controversy.

The appeal is moot for two reasons. First, by its own terms, the permanent

injunction was only effective for the duration of the City‘s moratorium, which expired

October 19, 2011.11 ―If relief granted by the trial court is temporal, and if the relief

granted expires before an appeal can be heard, then an appeal by the adverse party is

moot. [Citation.]‖ (Environmental Charter High School v. Centinela Valley Union High

School Dist. (2004) 122 Cal.App.4th 139, 144.)12 The controversy is therefore moot.

(See Covina Union High School v. California Interscholastic (1934) 136 Cal.App. 588,

589-590 [challenge to issuance of permanent injunction issued for specified school year

was moot because school year had ended while appeal was pending].) Second, appellants

are no longer tenants or occupants of the premises, the use of which as a Dispensary is

the subject of the appeal. (See Pittenger v. Home Sav. and Loan Assn. of Los Angeles

In reality, the moratorium ended approximately two weeks before October 19,

2011, as a result of the adoption of Ordinance number 3465 banning all Dispensaries

within all zones of the City.

In Environmental Charter High School v. Centinela Valley Union High School

Dist., supra, 122 Cal.App.4th at page 144, the challenged order required the appellant

school district to make certain facilities available to a charter school for the 2003-2004

school year. The case was technically moot because the 2003-2004 school year court

ended while the appeal was pending. (Ibid.) The appellate court elected to overlook the

mootness of the case because of a likelihood of the recurrence of a similar dispute

between the parties concerning the charter school‘s request for facilities in future school

years. (Ibid.; see also Bullis Charter School v. Los Altos School Dist. (2011) 200

Cal.App.4th 1022, 1034-1035.)

(1958) 166 Cal.App.2d 32, 36-37 [where case involved alleged misconduct by holder of

secured note, the holder‘s transfer of that interest where the transferee‘s actions were not

claimed to be improper rendered case moot].)

One exception to the doctrine of mootness authorizes the court to decide a case

―when a material question remains for the court‘s determination [citation].‖

(Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000)

82 Cal.App.4th 473, 480.) ― ‗[W]henever the judgment, if left unreversed, will preclude

the party against whom it is rendered as to a fact vital to his rights, such as to the validity

of a contract upon which his rights are based, it cannot properly be said that there is left

before the appellate court but a moot question, even though on account of changed

conditions the relief originally sought by appellant cannot be granted upon the reversal of

such judgment.‘ ‖ (Hartke v. Abbott (1930) 106 Cal.App. 388, 394.) Appellants have

argued that because there are contempt proceedings pending below against them arising

out of their alleged violation of the terms of the permanent injunction, the case is not

moot. Were it the case that contempt proceedings remain pending against appellants, we

would conclude that the resolution of the validity of the underlying permanent injunction

presented a question ― ‗vital to [appellants‘] rights‘ ‖ (Hartke v. Abbott, at p. 394) insofar

as those contempt proceedings were concerned. But we were advised at oral argument

that the City subsequently dismissed the contempt proceedings; therefore, this exception

to mootness has no application here.13

Although an order made in excess of the court‘s jurisdiction may not form the

basis of a contempt order (People v. Gonzalez (1996) 12 Cal.4th 804, 817 [―a void order

cannot be the basis for a valid contempt judgment‖]), a party may not defy a legally

erroneous court order and then challenge it collaterally in proceedings brought to enforce

the order (Wanke, Industrial, Commercial, Residential, Inc. v. Keck (2012) 209

Cal.App.4th 1151, 1172, citing Signal Oil & Gas Co. v. Ashland Oil & Refining Co.

(1958) 49 Cal.2d 764, 776, fn. 6). Appellants‘ challenge to the permanent injunction here

appears to be on the ground that it is legally erroneous (rather than it being made in

continued

But an appellate court may exercise its discretion to decide a moot controversy

when the case presents ― ‗important issues of substantial and continuing public

interest. . .‘ ‖ (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 868-869, fn. 8.)

As discussed below, the legality of the operation of medical marijuana dispensaries under

California‘s medical marijuana laws—specifically, in this case, the question of whether a

dispensary is a permitted use under a particular municipal zoning ordinance—are matters

of continuing public interest. We will therefore exercise our discretion to decide the

merits of the controversy, notwithstanding the mootness of the case. (See In re William

M. (1970) 3 Cal.3d 16, 23 [court may exercise discretion to decide moot case involving

―issue of broad public interest that is likely to recur‖]; see also Morehart v. County of

Santa Barbara (1994) 7 Cal.4th 725, 746.)

III. Standard of Review

―The purpose of the law of summary judgment is to provide courts with a

mechanism to cut through the parties‘ pleadings in order to determine whether, despite

their allegations, trial is in fact necessary to resolve their dispute.‖ (Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) As such, the summary judgment

statute, Code of Civil Procedure section 437c, ―provides a particularly suitable means to

test the sufficiency of the plaintiff‘s prima facie case and/or of the defendant‘s [defense].‖

(Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) A

summary judgment motion must demonstrate that ―material facts‖ are undisputed. (Code

Civ. Proc., § 437c, subd. (b)(1).) ―The materiality of a disputed fact is measured by the

pleadings.‖ (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244,

1250.)

excess of the court‘s jurisdiction). Since the contempt proceedings have been dismissed,

we need not decide that question.

A ―motion for summary judgment shall be granted if all the papers submitted

show that there is no triable issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.‖ (Code Civ. Proc., § 437c, subd. (c).) The

moving party ―bears the burden of persuasion that there is no triable issue of material fact

and that he is entitled to judgment as a matter of law.‖ (Aguilar, supra, 25 Cal.4th at p.

850, fn. omitted.) A plaintiff moving for summary judgment establishes the absence of a

defense to a cause of action by proving ―each element of the cause of action entitling the

party to judgment on that cause of action.‖ (Code Civ. Proc., § 437c, subd. (p)(1).) The

plaintiff need not, however, disprove any affirmative defenses alleged by the defendant.

(Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170

Cal.App.4th 554, 565.) Once the plaintiff‘s burden is met, the burden of proof shifts to

the defendant ―to show that a triable issue of one or more material fact exists as to that

cause of action or defense thereto.‖ (Ibid.) In meeting this burden, the defendant must

present ―specific facts showing‖ the existence of the triable issue of material fact. (Ibid.)

An action for public nuisance is a proper claim upon which a plaintiff may bring a

summary judgment motion. (See People v. Schlimbach (2011) 193 Cal.App.4th 1132;

People ex rel. Dept. of Transportation v. Outdoor Media Group (1993) 13 Cal.App.4th

1067 (Outdoor Media).)

Since summary judgment motions involve pure questions of law, we review the

granting of summary judgment or summary adjudication de novo to ascertain from the

papers whether there is a triable issue of material fact. (Chavez v. Carpenter (2001) 91

Cal.App.4th 1433, 1438.) Judicial interpretation of a municipal ordinance involves a

question of law and is also subject to independent review. (People ex rel. Kennedy v.

Beaumont Investment, Ltd. (2003) 111 Cal.App.4th 102, 113.) We need not defer to the

trial court and are not bound by the reasons in its summary judgment ruling; we review

the ruling of the trial court, not its rationale. (Kids’ Universe v. In2Labs (2002) 95

Cal.App.4th 870, 878.)

The decision of the trial court granting ―a permanent injunction rests within its

sound discretion and will not be disturbed without a showing of a clear abuse of

discretion. [Citation.] ‗Generally, in reviewing a permanent injunction, we resolve all

factual conflicts and questions of credibility in favor of the prevailing party and indulge

all reasonable inferences that support the trial court‘s order. [Citation.] However, where

the ultimate facts are undisputed, whether a permanent injunction should issue becomes a

question of law, in which case the appellate court may determine the issue without regard

to the conclusion of the trial court. [Citation.]‘ ‖ (People v. ex rel. Trutanich v. Joseph

(2012) 204 Cal.App.4th 1512, 1520, quoting Cabrini Villas Homeowners Assn. v.

Haghverdian (2003) 111 Cal.App.4th 683, 688-689; see also Shapiro v. San Diego City

Council (2002) 96 Cal.App.4th 904, 912.)

IV. Issues on Appeal

Although Monterey raised three grounds below in support of its public nuisance

theory, the court relied on only one ground in granting summary judgment. The court

held ―that the City‘s moratorium applies to [appellants‘] use of the premises as a medical

marijuana dispensary/cooperative. A violation of the moratorium is a nuisance per se

under Monterey City Code § 38-222(A). . . .‖ Appellants challenge the granting of

summary judgment on this basis, contending that the court erred in giving retroactive

effect to Ordinance number 3441, extended by Ordinance number 3454.

Appellants request that this court resolve two other matters which the trial court

declined to decide, namely, the two other bases upon which the City sought an order

granting summary judgment. The City argued that the operation of a Dispensary on the

premises was a nuisance per se because appellants failed to comply with the local

governmental requirement of obtaining a business license. Appellants contend here, as

they did below, that MyCaregiver, as a nonprofit corporation, was not required under the

City Code to obtain a business license and that therefore its operation out of the premises

was not unlawful.14 In addition, appellants ask us to decide the City‘s third contention

below upon which the trial court declined to rule: Whether the operation of a Dispensary

was an impermissible use of property under Monterey‘s Zoning Ordinance, and that

therefore appellants‘ use of the premises for that purpose constituted a nuisance per se.

We address, to the extent necessary to resolve this appeal, these claims below.

V. Summary of Medical Marijuana Laws

Although this case does not present a challenge to this state‘s medical marijuana

laws, we believe it is helpful to provide a brief overview of the 1996 voter‘s initiative

known as ―the Compassionate Use Act‖ (CUA) and the Medical Marijuana Program

(MMP) legislation enacted in 2003.

In November 1996, the California voters passed Proposition 215, the

Compassionate Use Act of 1996 (Prop. 215, § 1, as approved by electors, Gen. Elec.

(Nov. 5, 1996) adding Health & Saf. Code, § 11362.5).15 The CUA provides limited

immunity from criminal prosecution for possession of marijuana (§ 11357) and

cultivation of marijuana (§ 11358) for two limited classes of persons: those who qualify

as medical marijuana patients, and persons who constitute caregivers of such patients.

(§ 11362.5, subds. (d), (e); see People v. Mower (2002) 28 Cal.4th 457, 470-471.) It was

enacted with the twin goals of ―ensuring that seriously ill Californians have the right to

Appellants also assert that ―[a] conditional use permit was issued to

MyCaregiver‖ and that later ―the City revoked the permit.‖ These assertions are

unsupported by the record. At most, the record shows that Carrnshimba applied for a

business license on December 10, 2009, the City‘s Fire Department and Planning

Department signed off on the application, but the license was never issued. There is no

evidence in the record that appellants sought or obtained a conditional use permit from

the City.

All further statutory references are to the Health and Safety Code unless

otherwise specified.

obtain and use marijuana for medical purposes where that medical use is deemed

appropriate and has been recommended by a physician‖ for the treatment of illnesses for

which marijuana provides relief (§ 11362.5, subd. (b)(1)(A)); and of safeguarding

qualified patients and their primary caregivers from criminal prosecution for obtaining

and using medical marijuana (§ 11362.5, subd. (b)(1)(B)). (People v. Colvin (2012) 203

Cal.App.4th 1029, 1034-1035.) There is no mention of Dispensaries in the CUA. (See

City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1173 (Kruse) [―[t]he CUA

does not authorize the operation of a medical marijuana dispensary‖].)

The Supreme Court has explained that ―[t]he [CUA] is a narrow measure with

narrow ends.‖ (People v. Mentch (2008) 45 Cal.4th 274, 286, fn. 7 (Mentch); see also id.

at p. 286 [rejecting expansive definition of ― ‗caretaker‘ ‖ under the CUA]; Ross v.

RagingWire Telcommunications, Inc. (2008) 42 Cal.4th 920, 930 [because the CUA has

―modest objectives,‖ it did not require employers to accommodate marijuana use by

medical marijuana patient].) Because of the narrowness of the scope of the statute, courts

have held that the CUA does not exempt persons from criminal liability in a number of

different contexts. The CUA has been held not to offer a defense in connection with

(1) the transportation of marijuana allegedly for use for medical purposes (People v.

Young (2001) 92 Cal.App.4th 229, 237; People v. Trippet (1997) 56 Cal.App.4th 1532,

1550); (2) the sale of medical marijuana to patients and their caregivers, even if the sales

are not for profit (People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1394);

(3) the cultivation or personal use of marijuana where the defendant receives postarrest

medical approval (People v. Rigo (1999) 69 Cal.App.4th 409, 412); (4) the cultivation of

marijuana for the person‘s own use and for a cannabis buyers‘ cooperative (People v.

Galambos (2002) 104 Cal.App.4th 1147, 1152); and (5) the formation of a cooperative to

collectively cultivate and possess marijuana for qualified patients and primary caregivers

(People v. Urziceanu (2005) 132 Cal.App.4th 747, 767 (Urziceanu)).

In 2003, the Legislature enacted the MMP (§ 11362.7 et seq.). The intent of the

Legislature in enacting the MMP was to: ―(1) Clarify the scope of the application of the

[CUA] and facilitate the prompt identification of qualified patients and their designated

primary caregivers in order to avoid unnecessary arrest and prosecution of these

individuals and provide needed guidance to law enforcement officers. [¶] (2) Promote

uniform and consistent application of the act among the counties within the state. [¶

And] (3) Enhance the access of patients and caregivers to medical marijuana through

collective, cooperative cultivation projects.‖ (Stats. 2003, ch. 875, § 1, subd. (b)(1)-(3).)

The high court has explained the role of the MMP in clarifying the scope of the

CUA as follows: ―As part of its effort to clarify and smooth implementation of the

[CUA], the [MMP] immunizes from prosecution a range of conduct ancillary to the

provision of medical marijuana to qualified patients. [Citation.]‖ (Mentch, supra, 45

Cal.4th at p. 290.) The MMP, under section 11362.765, subdivision (b), granted

immunity from criminal prosecution to qualified patients or caregivers for the

transportation or processing of medical marijuana for the patient‘s personal use, and to

those who assist qualified patients or caregivers in the administration of, or teaching how

to cultivate, medical marijuana. (Mentch, at p. 291.) The MMP, under section 11362.1,

addressed the goal of identifying persons qualified under the CUA by establishing a

voluntary identification card program to facilitate ― ‗the prompt identification of qualified

patients and their designated primary caregivers.‘ ‖ (People v. Wright (2006) 40

Cal.4th 81, 93.)

The MMP, in an effort to foster uniform and consistent application of the law,

specified the maximum amount of marijuana a patient or caregiver could possess or

cultivate for personal medical uses, authorized physicians to prescribe greater amounts in

certain instances, and authorized cities and counties to establish guidelines that exceeded

the specified base amounts. (See § 11362.77.)16

The Legislature, under section 11362.775, in seeking to improve access to medical

marijuana, ―also exempted those qualifying patients and primary caregivers who

collectively or cooperatively cultivate marijuana for medical purposes from criminal

sanctions for possession for sale, transportation or furnishing marijuana, maintaining a

location for unlawfully selling, giving away, or using controlled substances, managing a

location for the storage, distribution of any controlled substance for sale, and the laws

declaring the use of property for these purposes a nuisance.‖ (Urziceanu, supra, 132

Cal.App.4th at p. 785.) In the view of the Urziceanu court, the MMP ―represent[ed] a

dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana

for persons who are qualified patients or primary caregivers. Its specific itemization of

the marijuana sales law indicates it contemplates the formation and operation of

medicinal marijuana cooperatives that would receive reimbursement for marijuana and

the services provided in conjunction with the provision of that marijuana.‖ (Ibid.; but see

People v. ex rel. Trutanich v. Joseph, supra, 204 Cal.App.4th at p. 1523 [MMP ―does not

cover dispensing or selling marijuana‖]; Kruse, supra, 177 Cal.App.4th at p. 1175 [MMP

makes no mention of Dispensaries or the licensing or location of them].)17

The Supreme Court held in People v. Kelly (2010) 47 Cal.4th 1008 that, to the

extent section 11362.77 of the MMP amended the CUA to burden a defense otherwise

available under the CUA by establishing specific quantitative limitations for marijuana

possession and cultivation by qualified patients and their caregivers, it was

unconstitutional.

As pointed out recently by the Fourth District Court of Appeal, Division One,

the notion that the MMP, and specifically section 11362.775, does not address the

dispensing or sale of medical marijuana is at odds with (1) guidelines concerning medical

marijuana promulgated by the Attorney General at the specific direction of the

Legislature under section 11362.81, subdivision (d) (see California Attorney General‘s

Guidelines for the Security and Non–Diversion of Marijuana Grown for Medical Use

continued

Several courts have rejected Dispensaries‘ claims that local regulation of medical

marijuana distribution is preempted by the voters‘ and Legislature‘s adoption of the CUA

and the MMP, respectively.18 For instance, in Kruse, supra, 177 Cal.App.4th at pages

1168 to 1176, the appellate court held that neither the CUA nor the MMP preempted the

field to preclude the city in that case from adopting a moratorium temporarily prohibiting

the operation of Dispensaries within city limits. Likewise, the Second District Court of

Appeal, Division One, recently rejected a claim by a Dispensary—which, like appellants

here, had commenced operations without having first obtained a business license,

conditional use permit, or zoning variance—that Los Angeles County‘s zoning, permit,

and licensing restrictions applicable to Dispensaries were preempted by the MMP.

(County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 867; see also Browne v.

County of Tehama (2013) 213 Cal.App.4th 704 [neither CUA nor MMP preempted

county from adopting ordinance regulating cultivation of medical marijuana]; cf.

Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 754-755

(Qualified Patients) [court expressly declines to decide whether MMP preempted local

legislation].) And at least two courts have rejected claims that State medical marijuana

laws were preempted by the federal Controlled Substances Act (21 U.S.C. §§ 801-904.)

(Aug.2008) [http:// ag.ca.gov /cms_attachments/press/pdfs/n1601_

medicalmarijuanaguidelines.pdf] (Attorney General‘s Guidelines)); and (2) the

Legislature‘s subsequent adoption of section 11362.768, which provides in part, in

subdivision (e), that ― ‗a medical marijuana cooperative, collective, dispensary, operator,

establishment, or provider that is authorized by law to possess, cultivate, or distribute

medical marijuana and that has a storefront or mobile retail outlet which ordinarily

requires a local business license‘ may not be located within a 600–foot radius of a

school.‖ (People v. Jackson (2012) 210 Cal.App.4th 525, 537.)

We provide this information as necessary background to our discussion of

medical marijuana laws, noting that appellants here do not assert a preemption claim.

(Qualified Patients, at pp. 756-763; County of San Diego v. San Diego NORML (2008)

165 Cal.App.4th 798, 819-828.)19

VI. Propriety of Summary Judgment Order

A. Public Nuisances Generally

A city is constitutionally authorized to ―make and enforce within its limits all

local, police, sanitary, and other ordinances and regulations not in conflict with general

laws.‖ (Cal. Const., art. XI, § 7.) It may by legislative declaration state what activities or

conditions may constitute a nuisance. (Gov. Code, § 38771; see also Amusing Sandwich,

Inc. v. City of Palm Springs (1985) 165 Cal.App.3d 1116, 1129.) Thus, a city council

may, by ordinance, declare what it deems to constitute a public nuisance. (Flahive v. City

of Dana Point (1999) 72 Cal.App.4th 241, 244.)

An act or condition legislatively declared to be a public nuisance is ― ‗a nuisance

per se against which an injunction may issue without allegation or proof of irreparable

injury.‘ [Citation.]‖ (Outdoor Media, supra, 13 Cal.App.4th at p. 1076.) ―[T]o rephrase

the rule, to be considered a nuisance per se the object, substance, activity or circumstance

at issue must be expressly declared to be a nuisance by its very existence by some

As seen from a number of decisions filed within the past year, California

appellate courts are divided on the question of whether a local governmental entity may

impose an outright ban on the establishment of Dispensaries within its jurisdiction.

Several cases are presently pending before the California Supreme Court concerning

whether (1) a local government‘s attempt to ban or regulate Dispensaries is a matter

preempted by state law under the CUA and the MMP, and (2) local ordinances regulating

or banning Dispensaries are preempted by federal law. (See County of Los Angeles v.

Alternative Medicinal Cannabis (2012) 207 Cal.App.4th 601, review granted Sept. 19,

2012, S204663; 420 Caregivers, LLC v. City of Los Angeles (2012) 207 Cal.App.4th 703,

review granted Sept. 19, 2012, S204684; City of Lake Forest v. Evergreen Holistic

Collective (2012) 203 Cal.App.4th 1413, review granted May 16, 2012, S201454; City of

Riverside v. Inland Empire Patient’s Health & Wellness Center, Inc. (2011) 200

Cal.App.4th 885, review granted Jan. 18, 2012, S198638; People v. G3 Holistic, Inc.,

review granted Jan. 18, 2012, S198395.)

applicable law.‖ (Beck Development Co. v. Southern Pacific Transportation Co. (1996)

44 Cal.App.4th 1160, 1207.) Thus, the only issues for the court‘s resolution in a nuisance

per se proceeding are whether the statutory violation occurred and whether the statute is

constitutional. (City of Bakersfield v. Miller (1966) 64 Cal.2d 93, 100; see also City of

Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 382-383.)

B. Nuisance—Impermissible Use Under (Pre-Moratorium) City Code

Monterey asserted that appellants‘ use of the premises constituted a nuisance per

se because the operation of a Dispensary was not a permitted use under the City Code as

it existed before the Dispensary moratorium was adopted. Although the court below did

not decide this question, we will address it here because we deem it both dispositive and

to be an issue related to the ground upon which the court based its ruling (i.e., that

appellants‘ operation was in violation of the Dispensary moratorium).

1. Monterey City Code

Courts interpret municipal ordinances in the same manner and pursuant to the

same rules applicable to the interpretation of statutes. (Russ Bldg. Partnership v. City

and County of San Francisco (1988) 44 Cal.3d 839, 847, fn. 8; People ex rel. Kennedy v.

Beaumont Investment, Ltd. (2003) 111 Cal.App.4th 102, 113; Carson Harbor Village,

Ltd. v. City of Carson Mobilehome Park Rental Review Bd. (1999) 70 Cal.App.4th 281,

290.) Although statutory interpretation is ultimately a judicial function, ― ‗the

contemporaneous construction of a statute by an administrative agency charged with its

administration and interpretation, while not necessarily controlling, is entitled to great

weight and should be respected by the courts unless it is clearly erroneous or

unauthorized [citations].‘ ‖ (Anderson v. San Francisco Rent Stabilization & Arbitration

Bd. (1987) 192 Cal.App.3d 1336, 1343.) As with any statutory interpretation, ―our first

task . . . is to ascertain the intent of the Legislature so as to effectuate the purpose of the

law.‖ (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379,

1386 (Dyna-Med).) In attempting to ascertain such intent, we begin by looking at the

language of the statute itself. (Ibid.) ―The words of the statute must be construed in

context, keeping in mind the statutory purpose, and statutes or statutory sections relating

to the same subject must be harmonized, both internally and with each other, to the extent

possible. [Citations.]‖ (Id. at p. 1387.)

The City Code provides that ―any use of any land, building, or premise

established, conducted, operated, or maintained contrary to the provisions of this

ordinance shall be, and the same is hereby declared to be unlawful and a public

nuisance.‖ (City Code, § 38-222(A).) That section authorizes the City Attorney to

commence litigation to abate such a declared public nuisance, including applying for

injunctive relief. (Ibid.)

The premises were located within the C-2 Community Commercial District (C-2

District) designated by Monterey. In the City Code, there is a recital that the C-2 District

―is intended to provide sites for retail shopping areas containing a wide variety of

commercial establishments, including: retail stores and businesses selling home

furnishings, apparel, durable goods, and specialty items; restaurants; commercial

recreation; service stations; and business, personal, and financial services.‖ (City Code,

§ 38-29(A).) That section of the City Code lists a number of examples (50) of

commercial use classifications, identifying 18 as permitted uses in the C-2 District and 32

as ones which may be allowed upon the City‘s approval of a use permit. The operation of

a Dispensary is not listed among the 50 examples of such classifications. (City Code,

§ 38-29(B).)

The City Code empowers the Deputy City Manager of Plans and Public Works

(Deputy City Manager) to ―determine whether a specific use shall be deemed to be within

one or more use classifications or not within any use classification in this chapter. The

Deputy City Manager of Plans and Public Works may determine that a specific use shall

not be deemed to be within a classification, whether or not named within the

classification, if its characteristics are substantially incompatible with those typical uses

named within the classification.‖ (City Code, § 38-12.) A decision by the Deputy City

Manager may be appealed to the City Planning Commission. (Ibid.)

2. Appellants’ Failure to Exhaust Administrative Remedies

Appellants‘ challenges center around the applicability of the City‘s moratorium on

the establishment or operation of Dispensaries; the significance of their failure to obtain a

business license; and whether under the City Code (pre-moratorium), their use of the

premises was prohibited. Although appellants request that we decide in their favor that

the operation of a Dispensary was a permissible use under the pre-moratorium City Code,

the City argues that appellants are procedurally barred. The City contends that

appellants‘ failure to bring a mandamus proceeding to challenge the City‘s use

determination and their failure ―to make use of the administrative process to challenge

the City‘s determination that a marijuana dispensary is not a use classified in the City‘s

zoning ordinance,‖ precludes their assertion on appeal that their pre-moratorium use of

the premises as a Dispensary was a permitted use. This argument has some facial

appeal.20

We note that appellants‘ challenges do not occur through the more conventional

means of a mandamus proceeding or declaratory relief action. (See, e.g., County of

Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312 [Dispensary, after county issued

stop order due to absence of required permit, brought mandamus and declaratory relief

action challenging ordinance on equal protection grounds]; Qualified Patients, supra, 187

Cal.App.4th 734 [Dispensary challenged local ordinance on preemption grounds by suit

for declaratory relief].) Judicial review of an administrative decision involving land use,

such as the denial of a conditional use permit, is exclusively through an administrative

As appellants filed no reply brief, they did not respond to this, or any other

point, raised by the City in the respondent‘s brief.

mandamus action under Code of Civil Procedure section 1094.5. (SP Star Enterprises,

Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 459, 468.) Similarly, a determination

on a variance application is an adjudicative decision (Arnel Development Co. v. City of

Costa Mesa (1980) 28 Cal.3d 511, 522) and is subject to being challenged through a

petition for administrative writ of mandamus. (See 1 Cal. Land Use Practice

(Cont.Ed.Bar 2011) § 7.24, p. 332.4.) And a party may test the validity of a zoning

ordinance by bringing an action for declaratory relief. (Zubarau v. City of Palmdale

(2011) 192 Cal.App.4th 289, 308.)

Here, Cohn, on behalf of the City— exercising his powers as Deputy City

Manager under City Code section 38-12—advised Carrnshimba on January 11, 2010, that

he (Cohn) had determined that the operation of a Dispensary ―was not an enumerated use

under the City‘s Zoning Ordinance, and that it could not be categorized under any

existing permitted use‖; and appellants‘ use of the premises for that purpose was

therefore expressly prohibited under City Code section 38-29(B). Although Carrnshimba

filed an administrative appeal of Cohn‘s determination, the City effectively rejected that

appeal by advising Carrnshimba 19 days after filing of the appeal that it would not be

processed because of the City‘s adoption of the moratorium (Ordinance number 3441).

Appellants did not judicially challenge the City‘s denial of the administrative

appeal or Cohn‘s underlying determination that appellants‘ operation of the premises as a

Dispensary constituted an unpermitted use. Likewise, appellants did not seek a code

amendment or variance authorizing the use of the premises as a Dispensary.21 And

We note that although appellants also failed to apply for a code amendment or

variance authorizing the use of the premises as a Dispensary, this proposed action would

have likely been futile; had they filed such an application, once the City adopted

Ordinance number 3441 on January 19, 2010, the application would have been

summarily rejected based upon the existence of the Dispensary moratorium. (See Alta

Loma School Dist. v. San Bernardino County Com. on School Dist. Reorganization

continued

appellants did not employ the traditional method of mandamus to challenge the agency‘s

land use decision. (See, e.g., County of Sonoma v. Superior Court, supra, 190

Cal.App.4th 1312; Qualified Patients, supra, 187 Cal.App.4th 734.) Appellants could

have filed a petition for writ of mandamus once they were notified by the City that it

would not proceed with the administrative appeal of Cohn‘s adverse determination. But

they elected to not do so, and instead continued to operate the Dispensary in defiance of

the City‘s cease and desist letter.

Kruse, supra, 177 Cal.App.4th 1153 offers support for the City‘s position. There,

the defendants‘ applications for a business permit and business license to operate a

Dispensary were denied on the ground that the proposed use was not allowed under the

Claremont city code. (Id. at pp. 1158-1159.) The city (similar to the circumstances

here), relied on a table contained in its land use code which enumerated permitted uses to

conclude that the defendants‘ proposed use as a Dispensary was not allowed under the

city code. (Id. at p. 1159.) Claremont advised that the defendants needed to seek a code

amendment authorizing the nonconforming use. (Id. at p. 1158.) The defendants, like

appellants here, nonetheless opened their Dispensary, and neither applied for a code

amendment nor requested a determination from Claremont that their use was similar to

uses authorized in the land use code. (Id. at p. 1159.) Claremont prevailed after a trial in

their nuisance abatement action (id. at pp. 1161-1162), and the appellate court affirmed

(id. at pp. 1164-1165). The Kruse court observed that the defendants in that case could

not pursue an appellate challenge to the denial of their business license and permit

applications ―because they chose to commence operating without obtaining the requisite

approvals to do so, in violation of applicable city laws. Moreover, after [Claremont]

dismissed defendants‘ administrative appeal from the denial of their applications for a

(1981) 124 Cal.App.3d 542, 555 [exhaustion of administrative remedies not required

where pursuing administrative process to conclusion would have been futile].)

business license and permit, defendants‘ proper recourse was to file a petition for writ of

mandate. [Citations.] They did not do so. Instead, they continued to operate illegally,

despite [Claremont‘s] repeated directives to cease and desist from doing so.

[Claremont‘s] discretionary decision to deny defendants‘ applications is not at issue in

this action to enjoin defendants from operating in violation of [Claremont‘s] municipal

code.‖ (Id. at p. 1165.)

Appellants here, as was the case with the defendants in Kruse, failed to exhaust

their administrative remedies after Monterey determined under its pre-moratorium City

Code that appellants‘ operation of a Dispensary was not a permitted use and after the City

rejected appellants‘ administrative appeal of that determination. We therefore conclude

that appellants should not be allowed to challenge—as a defense to the public nuisance

claim—the City‘s determination that their use of the premises was not permissible.

Notwithstanding appellants‘ failure to exhaust their administrative remedies, we will

address the merits of the question raised in their appeal.

3. Appellants’ Use Violated Pre-Moratorium City Code

Although appellants‘ have failed to exhaust their administrative remedies, we

nonetheless conclude on the merits that their operation of the premises as a Dispensary

was not a permitted use under the pre-moratorium City Code. As noted, 50 commercial

use classifications are specified under City Code section 38-29 as being available for

property located in a C-2 District, either as permitted uses or as uses of property

permitted after the City‘s approval of a use permit. Such a regulatory scheme would be

pointless unless it were construed as defining permitted commercial uses of property in a

C-2 District with the corollary that unlisted commercial uses that cannot reasonably be

included in any listed use classification are not permitted.

This intent is evidenced further by the manner in which the City has interpreted

and applied the City Code in this instance. Cohn—the Deputy City Manager charged

with the responsibility of interpreting the City Code by determining whether a specific

use should be deemed to be within a use classification identified in any ordinance (City

Code, § 38-12)—concluded that the operation of a Dispensary could not be categorized

under any use classification specified in City Code section 38-29(B), and appellants‘ use

was therefore not permitted. This evidence of the City‘s interpretation of its own City

Code ―is entitled to deference‖ in our independent review of the meaning or application

of the law. (MHC Operating Limited Partnership v. City of San Jose (2003) 106

Cal.App.4th 204, 219.) And the City, as evidenced by its actions here in denying

appellants‘ application for a business license and in demanding that it cease its

Dispensary operations, acted consistently with its interpretation that uses not listed in

section 38-29(B) of the City Code as permitted uses or uses subject to obtaining a use

permit, are prohibited uses of C-2 District property.

Appellants, however, assert that the operation of a Dispensary is a use which falls

within three of the listed commercial use classifications under City Code section 38-

29(B), namely, ―Personal Services,‖ ―Retail Sales,‖ and ―Pharmacies and Medical

Supplies.‖ They contend that the characteristics of a Dispensary are not ―substantially

incompatible with those typical uses named within the [use] classification‖ (City Code,

§ 38-12), and therefore Cohn‘s determination was erroneous. We reject appellants‘

contentions.

A personal service is ―[a]n act done personally by an individual. In this sense, a

personal service is an economic service involving either the intellectual or manual

personal effort of an individual, as opposed to the salable product of the person‘s skill.‖

(Black‘s Law Dict. (9th ed. 2009), p. 1260, col. 1.) Further, Monterey—under the

general heading in its Zoning Ordinance, ―Commercial Use Classifications‖—describes

―personal services‖ as follows: ―Provision of recurrently needed services of a personal

nature. This classification includes barber and beauty shops, seamstresses, tailors, shoe

repair shops, dry cleaning agencies (excluding bulk processing plants), photocopying,

self-service laundries, massage establishments, and escort services. (Ord. 3438 § 2,

2009)‖ (City Code, § 38-15(X).)

The operation of a Dispensary does not fit into the classification of ―personal

services‖ under either definition above. Under the MMP, qualified medical marijuana

patients and primary caregivers are allowed to ―associate within the State of California in

order collectively or cooperatively to cultivate marijuana for medical purposes . . .

[without being made] solely on the basis of that fact . . . subject to state criminal

sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.‖

(§ 11362.775.) Although the precise parameters of a Dispensary operating lawfully

under California law remain undefined by case law or statute, the operation of a

Dispensary, under which qualified patients and caregivers may ―come together to

collectively or cooperatively cultivate physician-recommended marijuana‖ (Attorney

General Guidelines, p. 8) does not fall within the term ―personal services.‖22 We identify

that term with activities involving a person or persons providing labor of a manual or

intellectual type in exchange for payment, such as mechanics, contractors, barbers,

tailors, accountants, financial planners, or attorneys.

We also find that the operation of a Dispensary does not fall within the use

classification of retail sales. The term ―retail‖ connotes ―[t]he sale of goods or

commodities to ultimate consumers, as opposed to the sale for further distribution or

processing.‖ (Black‘s Law Dict. (9th ed. 2009) p. 1430, col. 1.) And under the City

Code, ―Retail Sales‖ is defined as ―[t]he retail sale of merchandise not specifically listed

under another [commercial] use classification. This classification includes department

We are assisted by the 2008 guidelines of the Attorney General, which provide

considerable discussion on the subject of Dispensaries. (Attorney General Guidelines,

pp. 8-11; see also Freedom Newspapers, Inc. v. Orange County Employees Retirement

System (1993) 6 Cal.4th 821, 829 [opinions of the Attorney General are not binding, but

―are entitled to considerable weight‖].)

stores, clothing stores, and furniture stores, and businesses retailing the following goods:

toys, hobby materials, handcrafted items, jewelry, cameras, photographic supplies,

electronic equipment, records, sporting goods, kitchen utensils, hardware, appliances, art,

antiques, art supplies and services, paint and wallpaper, carpeting and floor covering,

office supplies, bicycles, and new automotive parts and accessories (excluding service

and installation).‖ (City Code, § 38-15(Z).) Although medical marijuana is certainly a

good or commodity, it stretches beyond its limits the meaning of a retail sale to include

within that category the noncommercial circumstances under which a collective of

patients and caregivers qualified under the CUA and MMP come together to cultivate

medical marijuana.

Moreover, we reject appellants‘ contention that their dispensary fell within the

commercial use classification of a pharmacy or medical supply house. As defined in the

Business and Professions Code, a ― ‗[p]harmacy‘ means an area, place, or premises

licensed by the [State Board of Pharmacy] in which the profession of pharmacy is

practiced and where prescriptions are compounded. ‗Pharmacy‘ includes, but is not

limited to, any area, place, or premises described in a license issued by the [State Board

of Pharmacy] wherein controlled substances, dangerous drugs, or dangerous devices are

stored, possessed, prepared, manufactured, derived, compounded, or repackaged, and

from which the controlled substances, dangerous drugs, or dangerous devices are

furnished, sold, or dispensed at retail.‖ (Bus. & Prof. Code, § 4037, subd. (a).) Further, a

prescription under the same article 2 of the Pharmacy Law is an order that is written, oral,

or made by electronic transmission which includes, among other information, the name of

the prescriber, the name of the patient, the name and quantity of the drug or device

prescribed, and the date of issuance of the order. (Bus. & Prof. Code, § 4040, subd. (a).)

The City defines ―Pharmacies and Medical Supplies‖ as ―[e]stablishments primarily

selling prescription drugs, medical supplies, and equipment.‖ (City Code, § 38-15(Z)(2).)

In the case of a Dispensary, medical marijuana is supplied to qualified patients and

qualified caregivers (for ultimate consumption by qualified patients) as a result of

cooperative or collective cultivation efforts of such patients and caregivers. Under the

CUA, one becomes a qualified patient by virtue of ―possess[ing] or cultivat[ing]

marijuana for the personal medical purposes of the patient upon the written or oral

recommendation or approval of a physician.‖ (§ 11362.5, subd. (d), italics added.) This

cannot reasonably be construed as constituting a prescription for medical marijuana,

because, inter alia, nothing in the statute requires that the physician‘s recommendation or

approval contain a date or indicate a specific quantity required for the patient. (See

People v. Windus (2008) 165 Cal.App.4th 634, 642.) And, most fundamentally, a

Dispensary is not ―licensed by the [State Board of Pharmacy] . . .‖ (Bus. & Prof. Code,

§ 4037, subd. (a).) A Dispensary does not fall within the model under which a pharmacy

or medical supply house conducts retail sales of prescription pharmaceuticals and

medical supplies to customers. A Dispensary, therefore, does not fit within that

designated commercial use classification.23

City of Corona v. Naulls (2008) 166 Cal.App.4th 418 (Naulls) closely parallels

this case. There, the City of Corona, like Monterey here, had zoning laws that identified

particular uses that were permitted in particular zoning areas, but none specified a

Appellants also argue that the City‘s adoption in January 2010 of a Dispensary

moratorium ―is proof that MyCaregiver fits the existing classifications. If the existing

zoning laws were adequate to prevent medical marijuana operations, as the City claims,

then the City Council had no reason to pass the urgency measure, and to extend it for the

maximum time allowed by law. [Citation.]‖ We need not address this claim for which

no supporting legal authority is provided. (Dabney v. Dabney (2002) 104 Cal.App.4th

379, 384 [appellate courts ―need not consider an argument for which no authority is

furnished‖].) In any event, we are unpersuaded by the argument that the City‘s adoption

of Ordinance 3441 (and the succeeding ordinances) signaled that the operation of a

Dispensary was within the specifically designated use classifications contained in the pre-

moratorium City Code.

Dispensary as a permitted use in any area. (Id. at p. 423.) A party seeking to use

property in a manner other than as expressly permitted could apply to have Corona

amend its zoning ordinance or could request a finding that the proposed use was similar

to permitted uses and was therefore itself permitted. (Ibid.) The defendants, intending to

open a Dispensary, had misled Corona by describing their proposed activity in a business

license application as ― ‗Misc. Retail‘ ‖ and had failed to disclose the nature of the

intended business. (Id. at p. 421.) Additionally, the principal of the defendant

organization was informed by Corona that a Dispensary was not a land use permitted

under its zoning laws. (Ibid.) The defendants nonetheless—and without seeking to

amend the zoning ordinance or requesting a similar use finding (id. at p. 423)—

commenced the Dispensary operation. (Id. at pp. 421-422.)

Corona filed suit to abate a public nuisance per se (Naulls, supra, 166

Cal.App.4th at p. 422) and obtained a preliminary injunction preventing the defendants

from operating a Dispensary. (Id. at p. 424.) The trial court noted that the defendants

had concealed the nature of their intended operation and had failed to follow procedures

required for obtaining a variance for a nonconforming use. (Ibid.) And the trial court

―found that [Corona‘s] municipal code is drafted in a permissive fashion, i.e., any use not

enumerated in the code is presumptively prohibited. Thus, because medical marijuana

dispensaries are not enumerated within the code, [the defendants are] operating within

[Corona] as a nonpermitted, nonconforming use.‖ (Id. at p. 425.) The trial court held

that ―because any nonenumerated use is presumptively prohibited under [Corona‘s]

municipal code, the operation of [the defendants] constituted a nuisance per se.‖ (Id. at

p. 424.)

The appellate court affirmed, finding that there was substantial evidence to support

the trial court‘s finding of a nuisance per se. (Naulls, supra, 166 Cal.App.4th at p. 427.)

It emphasized that the defendants had failed to take the necessary steps to obtain city

approval for their nonconforming operation before opening their doors for business,

thereby violating Corona‘s municipal code; as such, the operation was a nuisance per se.

(Ibid.; see also id. at pp. 429, 432.) The appellate court also found that the zoning

ordinance demonstrated ―an intent by [Corona] to prohibit uses not expressly identified.‖

(Id. at p. 432.) It noted that the regulatory scheme provided that specified uses set forth

in a table were either permitted, conditionally permitted, or not permitted, and that a

business owner seeking to use property for a purpose not specifically allowed under the

law—such as a Dispensary—was required to comply with applicable municipal code

provisions by seeking city approval for a proposed similar use. (Ibid.) The court also

relied on the canon of construction, expressio unius est exclusio alterius—meaning ― ‗the

expression of certain things in a statute necessarily involves exclusion of other things not

expressed‘ ‖ (Dyna–Med, supra, 43 Cal.3d at p. 1391, fn. 13)—in reaching the

conclusion that the identification of permissible land uses was an indication that all other

uses of land not expressly permitted were deemed impermissible under the ordinance.

(Naulls, at p. 433; see also Kruse, supra, 177 Cal.App.4th at pp. 1164-1165 [because

Claremont‘s land use code expressly prohibited any use of property not specifically

enumerated as permitted use, and Dispensary was not enumerated permitted use,

defendants‘ operation of Dispensary was public nuisance].)

Here, Monterey‘s City Code specified 50 commercial use classifications for C-2

Districts, designated as ―P‖ as being ―permitted in the C-2 [D]istrict‖ or ―U‖ as being

―allowed on approval of a use permit.‖ (City Code, § 38-29(B).) It provided that the

Deputy City Manager would determine whether a particular use of property fell within

any designated use classification. (City Code, § 38-12.) And—similar to Naulls, where

Corona‘s zoning laws provided that a citizen could request a finding that his or her

proposed use was similar to permitted uses (Naulls, supra, 166 Cal.App.4th at p. 423)—a

person dissatisfied with the Deputy City Manager‘s determination could pursue an

administrative appeal with Monterey‘s Planning Commission. (City Code, § 38-12.)

Drawing on the reasoning of Naulls, Monterey‘s City Code, like Corona‘s, demonstrated

―an intent by the City to prohibit uses not expressly identified‖ (id. at p. 432) or

determined by the Deputy City Manager to fall within a designated use classification.

Because the City Code, and specifically section 38-29 concerning property in the C-2

District, made no mention of a Dispensary, and because the Deputy City Manager

determined that a Dispensary operation did not fall within any designated use

classifications—a determination which we have concluded above to have been

appropriate—appellants‘ Dispensary was a prohibited use under local law. It constituted

a nuisance per se under City Code section 38-22(A). Therefore, although this was not the

basis upon which the court granted summary judgment in favor of the City, we find that

the court‘s ruling was proper because appellants‘ Dispensary operation was not a

permitted use under the pre-moratorium City Code.24

C. Nuisance—Moratorium on Dispensaries

The trial court based its order granting summary judgment on the finding that

appellants‘ operation of a Dispensary violated the City‘s moratorium, as embodied in

Ordinance numbers 3441 and 3445, and that appellants‘ use of the premises therefore

constituted a nuisance per se. Appellants challenge this conclusion, arguing that the court

improperly applied the moratorium retroactively to their operation of a Dispensary.

Code of Civil Procedure section 437c, subdivision (m)(2) provides in part:

―Before a reviewing court affirms an order granting summary judgment or summary

adjudication on a ground not relied upon by the trial court, the reviewing court shall

afford the parties an opportunity to present their views on the issue by submitting

supplemental briefs.‖ In this case, our affirmance of the trial court‘s grant of summary

judgment is in part on a ground not relied upon by the trial court, i.e., that the operation

of a Dispensary was not a permitted use under the pre-moratorium City Code. Both

parties in fact fully briefed this issue on appeal, and appellants, in doing so, specifically

requested that we decide the question. It is therefore debatable whether a supplemental

briefing notice is required. (See Bains v. Moores (2009) 172 Cal.App.4th 445, 471, fn.

39; Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1147.) But we

nonetheless notified the parties that they could elect to submit supplemental briefing on

this issue. Monterey submitted a supplemental brief, which we have considered.

While we have concluded that summary judgment was proper on another ground—i.e.,

that appellants‘ Dispensary was not a permitted use under the pre-moratorium City

Code—we nonetheless conclude that, because appellants‘ use of the premises was

unlawful at the time the moratorium went into effect, the trial court‘s basis for granting

summary judgment was likewise proper.

Absent ―an express retroactivity provision, a statute will not be applied

retroactively unless it is very clear from extrinsic sources that the Legislature or the

voters must have intended a retroactive application.‖ (Evangelatos v. Superior Court

(1988) 44 Cal.3d 1188, 1209 (Evangelatos).) There must be ― ‗express language or clear

and unavoidable implication negativ[ing] the presumption‘ ‖ of nonretroactivity. (Id. at

p. 1208, quoting Glavinich v. Commonwealth Land Title Ins. Co. (1984) 163

Cal.App.3d 263, 272; see also Californians for Disability Rights v. Mervyn’s, LLC (2006)

39 Cal.4th 223, 230.) ―The point of the rule disfavoring retroactivity is to avoid the

unfairness that attends changing the law after action has been taken in justifiable reliance

on the former law. [Citation.]‖ (Mahon v. Safeco Title Ins. Co. (1988) 199 Cal.App.3d

616, 620-621.)

In this instance, Ordinance number 3441, made effective immediately upon its

adoption on January 19, 2010, contains no statement to the effect that it is to be applied

retroactively. Likewise, neither of the two ordinances extending the duration of the

moratorium (Ordinance numbers 3445 and 3454) indicates that the Dispensary

moratorium is to be applied retroactively to a date prior to January 19, 2010.25 And there

Appellants‘ Dispensary operation is, however, expressly mentioned in the

declaration section of Ordinance number 3441: ―. . . because a significant portion of

Monterey County has prohibited or heavily regulated medical marijuana dispensaries,

there is a substantially increased likelihood that establishments, in addition to

MyCaregiver, Inc., will seek to locate in Monterey.‖ In addition, both of the ordinances

extending the moratorium refer ―to the City‘s one illegal medical marijuana dispensary,‖

which is presumably the one that was operated by appellants.

is nothing from which we may infer that the City Council intended the moratorium to

apply retroactively. We conclude that the presumption that the ordinance only operates

prospectively applies in this instance. (Evangelatos, supra, 44 Cal.3d at p. 1209.)

But noting that the moratorium did not apply retroactively does not end our

analysis. In the analogous area of permitting, where ―a property owner has performed

substantial work and incurred substantial liabilities in good faith reliance upon a permit

issued by the government, he acquires a vested right to complete construction in

accordance with the terms of the permit. [Citations.] Once a landowner has secured a

vested right the government may not, by virtue of a change in the zoning laws, prohibit

construction authorized by the permit upon which he relied.‖ (Avco Community

Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 791 (Avco).) In

Avco, the court rejected the developer‘s argument that it acquired vested rights to a

building permit because it had subdivided and graded property and expended sums for

storm drains, culverts and street improvements; it concluded that ―neither the existence of

a particular zoning nor work undertaken pursuant to governmental approvals preparatory

to construction of buildings can form the basis of a vested right to build a structure which

does not comply with the laws applicable at the time a building permit is issued.‖ (Id. at

p. 793; see also Autopsy/Post Services, Inc. v. City of Los Angeles (2005) 129

Cal.App.4th 521, 527-529 (Autopsy/Post Services) [expenditure of funds to buy property

and renovation of building insufficient to create vested right to building permit].)

Here, appellants failed to disclose to Monterey in the application for a business

license or in response to a follow-up inquiry that they intended to operate a Dispensary.

(See Autopsy/Post Services, supra, 129 Cal.App.4th at pp. 524, 527 [owner failed to

disclose in building permit applications its intent to use property to perform autopsies];

Avco, supra, 17 Cal.3d at p. 794 [before date statute‘s requirements became effective,

developer failed to apply to county for building permits or even to disclose ―elementary

details‖ concerning buildings].) And, as we have discussed, any use of the premises as a

Dispensary prior to January 19, 2010, was not a permissible use under the pre-

moratorium City Code, so it cannot be said that appellants obtained any vested rights to

operate a Dispensary when such use constituted a nuisance per se. (See Acker v. Baldwin

(1941) 18 Cal.2d 341, 346 [―[n]o vested right to violate an ordinance may be acquired by

continued violations‖].)

In Kruse, supra, 177 Cal.App.4th 1153, Claremont dismissed the defendants‘

administrative appeal of the denial of their business license and permit applications based

upon a subsequently enacted citywide moratorium against the establishment of

Dispensaries. (Id. at p. 1178.) The defendants argued that this dismissal was a violation

of their due process rights. (Ibid.) The court disagreed: ―[Claremont‘s] reliance on the

moratorium as the basis for dismissing defendants‘ appeal did not deprive defendants of

any vested right. At the time the moratorium was enacted, defendants‘ applications for a

business license and permit had already been denied. The trial court found that

defendants did not incur substantial expenses prior to the denial of their applications, and

substantial evidence supports that finding. After [Claremont] denied defendants‘

applications for a business license and permit, and after [Claremont] representatives told

defendants that their proposed use would not be permitted, defendants commenced

operating a medical marijuana dispensary without a license or permit, in violation of

[Claremont‘s] municipal code. That violation was the subject of the injunction issued by

the trial court. Neither the issuance of the injunction nor the dismissal of defendants‘

administrative appeal deprived defendants of any vested right.‖ (Id. at pp. 1178-1179.)

Similarly, under the circumstances presented here, application of the City‘s

moratorium to appellants‘ preexisting but unlawful Dispensary operation was proper and

did not deprive appellants of any vested right. (Kruse, supra, 177 Cal.App.4th at

pp. 1178-1179.) The trial court, in applying the City‘s moratorium to find that

appellants‘ use of the premises constituted a nuisance per se, correctly granted summary

judgment.26

D. Claim that City Code Is Discriminatory As Applied

As a final contention, appellants assert that the City Code, as applied here by

Monterey, was ―unreasonable, arbitrary and therefore discriminatory.‖ They argue in a

most cursory fashion that ―[g]iven the broad use classifications set forth in the City Code,

and the stated purposes and activities of MyCaregiver that easily fit the

classifications, . . . the City is discriminating against a lawful organization for no valid

reason.‖

Appellants fail to develop their ―discriminatory as-applied‖ argument beyond the

very general statement quoted above. ―We are not bound to develop appellants‘

arguments for them.‖ (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814,

830.) We therefore need not consider undeveloped challenges. (Ibid.; see Niko v.

Foreman (2006) 144 Cal.App.4th 344, 368 [absence of legal argument and citation to

authorities in support of contention results in its forfeiture].) Even were we to consider

the merits of appellants‘ claim, it nonetheless fails.

Our high court has noted that ― ‗[i]t is well settled that a municipality may divide

land into districts and prescribe regulations governing the uses permitted therein, and that

zoning ordinances, when reasonable in object and not arbitrary in operation, constitute a

justifiable exercise of police power.‘ [Citations.]‖ (Hernandez v. City of Hanford (2007)

Because we have concluded that Monterey established that appellants‘ operation

of a Dispensary on the premises was in violation of the City Code and also in violation of

the moratorium (Ordinance number 3441 and its successors) and thus constituted a public

nuisance per se entitling the City to injunctive relief, we need not address whether

injunctive relief was also proper based upon appellants‘ failure to obtain a business

license. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 845, fn. 5

[appellate courts will not address issues whose resolution is unnecessary to disposition of

appeal].)

41 Cal.4th 279, 296; see also Wilkins v. San Bernardino (1946) 29 Cal.2d 332, 337.) The

City Code here set forth 50 commercial use classifications potentially available for

property located in a C-2 District. The mere fact that a Dispensary was not included as

one of those specified use classifications does not render the City Code discriminatory.

Nor does the fact that the Deputy City Manager made the determination that a Dispensary

was not within any of those specified use classifications mean that the City Code was

discriminatory as applied to appellants. As we have discussed (see pt. V.B.3, ante), in

light of the unusual, if not unique, characteristics of a Dispensary, such a use of property

does not fall within any of the specific commercial use classifications identified in the

City Code for C-2 District property, and the Deputy City Manager‘s conclusion was

therefore reasonable. Thus, the central premise underlying appellants‘ challenge—that

their Dispensary operation was a use of property ―that easily fit the [specified commercial

use] classifications‖—is insupportable. We therefore reject appellants‘ claim that the

City Code, as applied to their use of the premises, was ―unreasonable, arbitrary and

therefore discriminatory.‖

DISPOSITION

The judgment is affirmed.

Márquez, J.

WE CONCUR:

Premo, Acting P.J.

Mihara, J.

Filed 4/25/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

CITY OF MONTEREY, H036475

(Monterey County

Plaintiff and Respondent, Super. Ct. No. M103860)

JNONRICO CARRNSHIMBA et al.,

Defendant and Respondent.

BY THE COURT:

The opinion which was filed on March 27, 2013, is certified for publication.

_____________________________

Marquez, J.

_____________________________

Premo, Acting P.J.

_____________________________

Mihara, J.

The written opinion which was filed on March 27, 2013, has now been certified for

publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is therefore

ordered that the opinion be published in the official reports.

Dated: _____________________________

Premo, Acting P.J.

Trial Court: Monterey County

Superior Court No.: M103860

Trial Judge: The Honorable Lydia Villarreal

Attorney for Defendant and Appellant Richard Rosen

Jhonrico Carrnshimba et al.:

Jeanine G. Strong

Attorneys for Plaintiff and Respondent Jeffrey V. Dunn

City of Monterey: Best Best & Krieger

City of Monterey v. Carrnshimba, et al.

H036475

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.