City of Brea v. Cloud 9 CA4/3

Filed 1/15/14 City of Brea v. Cloud 9 CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CITY OF BREA,

G046638

Plaintiff and Respondent,

(Super. Ct. No. 30-2011-00444494)

v.

OPINION

CLOUD 9, Inc.,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, David R.

Chaffee, Judge. Affirmed.

Law Offices of Matthew S. Pappas, Mathew S. Pappas; Anthony Curiale,

John J. Murphy, III, and Donna Bader for Defendant and Appellant.

James L. Markman, City Attorney; Richards Watson & Gershon,T. Peter

Pierce and Julie A. Hamill for Plaintiff and Respondent.

* * *

Under Code of Civil Procedure section 731, which authorizes city officials

to file a nuisance abatement action under Civil Code section 3480 in the name of the

People of California, the City of Brea (the city) filed a nuisance cause of action against

Cloud 9, Inc. (Cloud 9) for operating a medical marijuana dispensary in violation of a

city ordinance banning such property uses. On summary judgment, the trial court upheld

the ban against Cloud 9’s claim it was preempted by state medical marijuana law, found

Cloud 9’s dispensary activities therefore constituted a per se nuisance based on the ban,

entered a permanent injunction against the dispensary, and Cloud 9 now appeals. During

the pendency of this appeal, the California Supreme Court concluded in City of Riverside

v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729 (Inland

Empire) that local governments may ban medical marijuana dispensaries without

triggering preemption by the voters’ enactment of the Compassionate Use Act of 1996

(CUA; Health & Saf. Code, § 11362.5; all further statutory references are to this code

unless noted) or California’s Medical Marijuana Program (MMP; § 11362.7 et seq.).

In supplemental briefing, Cloud 9 contends Inland Empire is not dispositive

because it did not resolve whether state medical marijuana law preempts local

governments from enforcing dispensary bans with misdemeanor penalties typically used

to enforce other zoning bans. In a similar vein, Cloud 9 argues Inland Empire left

unanswered other related questions, including: (1) whether a city “can remove a

defense[] created by the MMP[]”; (2) ”whether Brea can do indirectly what it cannot do

directly;” (3) whether Brea’s ordinance “burdens criminal defenses allowed by the

MMP[]”; and (4) whether the city’s ordinance is “overbroad.” Cloud 9 also argues the

city’s ban is preempted because it amounts to discrimination against seriously ill patients

in violation of the Disabled Persons Act (DPA; Civil Code § 54 et seq.). These

2

contentions, however, are simply variations on Cloud 9’s core preemption claim. Inland

Empire determined state medical marijuana law does not preempt total local bans, and we

are bound by that conclusion. (Auto Equity Sales, Inc. v. Superior Court (1962)

57 Cal.2d 450, 455 (Auto Equity).) We therefore affirm the judgment.

Having noted the relevant background at the outset, including the city’s

initiation of nuisance proceedings in the People’s name and Cloud 9’s claim the People

intended in the CUA and MMP to promote the very activity the city banned as a

nuisance, we turn to our discussion.

I

DISCUSSION

A. Cloud 9 Fails to Distinguish Inland Empire

As noted at the outset, Inland Empire’s authorization of total local bans on

medical marijuana dispensaries requires that we affirm the judgment. (Auto Equity,

supra, 57 Cal.2d at p. 455.) Cloud 9’s attempts to distinguish Inland Empire are

unavailing.

Cloud 9 argues that the immunities the MMP provides from criminal

prosecution for state law offenses “bars local governments from using penal legislation to

prohibit the use of property for medical marijuana purposes.” The city’s municipal code

banning dispensaries provides that “[t]he violation of any of the provisions of this code

. . . constitutes a nuisance, and may be abated by the city through civil process by means

of [a] restraining order, preliminary or permanent injunction, or in any other manner

provided by law for the abatement of such nuisances,” including criminal misdemeanor

penalties. (Brea City Code, § 1.04.010, italics added.)

3

The MMP does not preempt this punishment. The Legislature expressly

amended the MMP in 2011 to state that “[n]othing in this article shall prevent a city or

other local governing body from . . . [¶] (a) Adopting local ordinances that regulate the

location, operation, or establishment of a medical marijuana collective” [and] “(b) The

civil and criminal enforcement of” valid local ordinances. (§ 11362.83.) Dispensary

bans are valid under Inland Empire, and Cloud 9’s contention therefore fails. (Inland

Empire, supra, 56 Cal.4th at p. 753, fn. 8 [quoting amended § 11362.83 providing for

criminal enforcement of local ordinances].)

Cloud 9 raises other arguments that are simply a variation on its original

claim that state medical marijuana law preempted the city’s dispensary ban. Cloud 9

argues that a city cannot remove defenses created by the MMP, cannot “burden[]” the

immunities provided by the MMP, cannot “do indirectly what it cannot do directly,” and

that the ordinance is constitutionally overbroad. Under Inland Empire, however, a city is

fully authorized to take direct action against dispensaries by banning them altogether; it

need not resort to any indirect measures. Ensuing misdemeanor prosecution does not

remove or burden any defenses created by the MMP because the punishment is for

violation of a valid city ordinance, not state criminal law. Inland Empire also summarily

rejected in a footnote any notion the ban impinged on sick patients’ due process rights or

constitutional right to travel by concluding the right of cities and counties to reject a

“‘one size fits all’” local distribution plan in the MMP would not “so impede the ability

of transient citizens to obtain access to medical marijuana . . . .” (Inland Empire, supra,

56 Cal.4th at p. 756, fn. 10.) Finally, QPA’s assertion the city improperly “amended” the

MMP is misplaced. The city did not purport to amend the MMP, but instead passed a

valid ordinance that under Inland Empire is not preempted by state medical marijuana

4

law. As they do not affect the controlling nature of Inland Empire, the parties’ requests

for judicial notice are all denied, including as noted specifically in footnote 1 below.

C. The City’s Ban Does Not Violate the Disabled Persons Act

Cloud 9 argues the city’s dispensary ban violates the DPA by

discriminating against disabled and seriously ill persons who establish a medical need for

marijuana based on a physician’s recommendation. Cloud 9 distinguishes between

discrimination and accommodation, noting the latter “requires more than simply not

doing something,” and instead involves “positive action that requires an expenditure or

change.” (Cloud 9’s italics.) Cloud 9 observes that portions of the DPA “require[] that

certain government entities and businesses positively accommodate the disabled,” but

Cloud 9 notes it relies only on “the parts of the DPA that prohibit discrimination on the

basis of disability.” Specifically, Cloud 9 relies on the DPA’s “sweeping prohibition of

practices by local governments that discriminate against people with disabilities”

(Cloud 9’s italics) by providing in Civil Code section 54, subdivision (c), that “no

qualified individual with a disability shall . . . be subjected to discrimination by any such

entity.”

The problem with Cloud 9’s position is that the Supreme Court has

determined the medical marijuana activities “authorized by law” under California’s

medical marijuana program (§ 11362.768, subd. (e)) may be countermanded by local

government bans. The court held in Inland Empire that a city ban on medical marijuana

dispensaries is not preempted by California medical marijuana law. The practical effect

of Inland Empire is that a disabled person may not look to a dispensary as a source of

lawful medical marijuana because its medical marijuana activities are not “authorized by

law” until they are ratified by local law. In other words, state medical marijuana law not

5

only incorporates local dispensary regulations and restrictions (§ 11362.768, subd. (e)),

but also outright bans. Cloud 9 complains this interpretation of state medical marijuana

law effectively grants local authorities a license to discriminate against disabled persons

by foreclosing a lawful source of medical marijuana to treat their conditions. But under

Inland Empire, a source is not lawful unless endorsed by local officials. We are bound

by that conclusion.1 (Auto Equity, supra, 57 Cal.2d at p. 455.)

III

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

1 We deny as irrelevant Cloud 9’s request filed on October 16, 2013, for

judicial notice of a revised U.S. Department of Justice memorandum and other

documents suggesting a more lenient federal approach to dispensaries that are not

engaged in drug trafficking but instead serve the medical needs of their patients. The

documents do nothing to affect the conclusion in Inland Empire that state law does not

preempt local bans on dispensaries.

6