The opinion
Filed 6/24/14 City of Fontana v. QualityGenetix CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
CITY OF FONTANA et al.,
Plaintiffs and Respondents, E056280
v. (Super.Ct.No. CIVDS1200668)
QUALITY GENETIX et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Donna G. Garza,
Judge. Affirmed.
Law Offices of Lawrence R. Bynum and Lawrence R. Bynum for Defendants and
Appellants, Quality Genetix and Eugene Walde.
Best Best & Krieger, Kira L. Klatchko and Jeffrey Ballinger for Appellants and
Respondents, City of Fontana and The People of the State of California.
The City of Fontana (City) filed a nuisance action against Quality Genetix and its
director Eugene Walde (collectively, appellants). The City sought a preliminary
injunction to prohibit appellants from operating a medical marijuana dispensary (MMD)
in Fontana because it violated the relevant portions of Fontana’s City Code (FCC) and
business licensing laws. The trial court granted the preliminary injunction motion against
appellants finding that their MMD was a nuisance per se.
Appellants argue on appeal that the City cannot completely ban a lawful activity
through the guise of zoning and that the FCC was unlawful. They contend (1) the FCC
does not preempt the distribution of marijuana as provided by the state-wide
Compassionate Use Act of 1996 (CUA) (Health and Saf. Code, § 11362.5) and Medical
Marijuana Program (MMP) (Health & Saf. Code, § 11362.7 et seq.); (2) the FCC violates
“regional welfare”; (3) the FCC violates equal protection; (4) the FCC violates rights of
privacy; and (5) the FCC violates due process.
While this appeal was pending, the California Supreme Court decided City of
Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th
729 (City of Riverside), holding that the CUA and MMP do not preempt local bans on
MMDs. (Id. at pp. 737, 744-763.) In its reply brief, appellants acknowledge that the
issues raised in the appeal would be resolved and superseded by City of Riverside. We
affirm the order granting the City’s preliminary injunction.
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I
FACTUAL AND PROCEDURAL BACKGROUND
The CUA was enacted to ensure that “seriously ill Californians” had a right to use
marijuana for medical purposes. (City of Riverside, supra, 56 Cal.4th at p. 744.) To
protect that right, the CUA declared that no physician could be punished for prescribing
medical marijuana to a patient and cultivating it for the patient’s use. (Ibid.) The MMP
established a program for identification cards and granted specified persons engaged in
specified conduct certain immunities from criminal prosecution. (Id. at p. 745.)
On July 24, 2007, the City adopted Ordinance No. 1559 (Ordinance) to amend the
FCC in order to ban the establishment and operation of MMDs in the city limits. The
Ordinance provided that no person shall operate a business in the City in violation of
state, federal, county or city law. It also provided that “Notwithstanding any other
provision of this Code, medical marijuana dispensaries shall be a prohibited use in all
zones of the City.” An MMD was defined as any facility or location where medical
marijuana is made available and/or distributed.
On January 23, 2012, the City filed a complaint against appellants, Santos Molina
and Rubidia Lopez.1 The City averred that appellants operated an MMD located at
10557 Juniper Avenue, Unit D in Fontana. The City stated that the FCC prohibited the
operation of an MMD in the city limits of Fontana. In their complaint they raised the
causes of action of public nuisance in violation of the FCC, public nuisance under the
1 These two other parties named in the complaint had not been served. They
are not a subject of the instant appeal.
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Civil Code, and a third cause of action under the Drug Abatement Act pursuant to the
Health and Safety Code. They also filed a motion for a preliminary injunction to stop
appellants from operating the MMD because it was a public nuisance. The City insisted
it would prevail on the complaint.
Appellants filed a response to the complaint arguing the FCC was unlawful. They
also filed a response to the motion for preliminary injunction on the grounds that the FCC
was unlawful, had an unreasonable affect on the regional welfare of medical marijuana
patients, violated equal protection, privacy rights, and due process. The City responded
that the operation of the MMD violated the FCC.
At the hearing on the matter on April 26, 2012, the City clarified it was seeking a
preliminary injunction on a theory of nuisance per se. The trial court found that
appellants’ operation of an MMD violated the FCC. It granted the preliminary
injunction. It denied a stay pending the filing of an appeal.
On May 8, 2012, appellants filed a notice of appeal. Thereafter, they filed a
petition for writ of supersedeas in this court. We denied the petition for writ of
supersedeas on June 7, 2012.
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II
PRELIMINARY INJUNCTION
City of Riverside is dispositive of all of the arguments raised on appeal by
appellants.
A. Standard of Review
Ordinarily we review an order granting a preliminary injunction under the abuse of
discretion standard. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109.)
However, when injunctive relief depends upon a question of whether the trial court
correctly interpreted or applied the law, we review it de novo. (Alliant Ins. Services, Inc.
v. Gaddy (2008) 159 Cal.App.4th 1292, 1300.)
B. Analysis
In City of Riverside, the California Supreme Court considered whether the CUA
and MMP preempt a local ban on facilities that distribute medical marijuana. (Id. at p.
737.) It concluded, after reviewing the language in the CUA and the MMP, that neither
statute created a ‘“broad right’” of access to medical marijuana. (Id. at pp. 744-745,
753.) It concluded, based on the modest objectives and the narrow scope of both the
CUA and the MMP, that neither statute expressly or impliedly preempted a zoning
provision that prohibited an MMD anywhere within the city limits. (Id. at p. 752.) The
court found that although the MMP exempts “the cooperative or collective cultivation
and distribution of medical marijuana by and to qualified patients and their designated
caregivers from prohibitions that would otherwise apply under state law,” the MMP does
not “mandate that local governments authorize, allow, or accommodate the existence of
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such facilities.” (Id. at p. 759, italics omitted.) Local decisions to prohibit MMDs “do
not frustrate the MMP’s operation.” (Id. at p. 761.)
Of course, this court is bound by City of Riverside. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) Here, the trial court properly granted the
City’s preliminary injunction based on the determination that the City could ban MMDs
in the city limits and that such ban was not preempted by the CUA and MMP.
Appellants’ additional claims that the FCC is an unconstitutional exercise of the
City’s police power under the “regional welfare” doctrine and that the ordinance also
violates their equal protection, privacy, and substantive due process rights lack merit
because they have no state or federal constitutional rights to cultivate or distribute
marijuana. (See Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984; People v.
Urziceanu (2005) 132 Cal.App.4th 747, 774.)
III
DISPOSITION
We affirm the order granting the preliminary injunction. In the interests of justice,
the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
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