Opinion

People v. Braum

Court
California Court of Appeal
Filed
May 22, 2020
Status
Published
Cited by
0 cases
Authority
More cited than 11.7%

The opinion

Filed 4/22/20 Modified and Certified for Partial Pub. 5/22/20 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B289603, B289604

Plaintiff and Respondent, (Los Angeles County

Super. Ct. Nos.

v. BC467194, BC467495)

DANIEL BRAUM et al., as

Executors, etc., and as Trustees,

etc.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of the

County of Los Angeles, John Shepard Wiley, Jr., Judge.

Affirmed.

Stuart M. Miller, for Defendants and Appellants.

Michael N. Feuer, City Attorney of Los Angeles, Arturo A.

Martinez, Assistant City Attorney, Meredith A. McKittrick and

Andrew K. Wong, Deputy City Attorneys, for Defendant and

Respondent.

I. INTRODUCTION

Michael Braum (Braum)1 leased two commercial properties

in the City of Los Angeles (City) to tenants for use as medical-

marijuana dispensaries and then received notice that the

dispensaries violated the City’s zoning code. The City2 filed two

civil enforcement actions against Braum and the Trust, and the

trial court entered judgments against them imposing civil fines in

excess of $6 million.

Defendants appeal from the judgments, arguing that: the

judgments violated the double jeopardy clause because the City

had previously obtained a criminal conviction against Braum

based on the same offenses underlying the judgments; the $6

million in civil fines violated the excessive fines clauses of the

federal and state constitutions; neither the trial court nor the

City had the authority to require Braum to evict the dispensaries;

the City’s “maze” of medical-marijuana regulations were void for

vagueness under the due process clause; and the trial court erred

in holding Braum personally liable. We affirm.

1 Michael Braum filed this appeal individually and in his

capacity as the trustee of the Braum Family Living Trust (the

Trust). He died while the appeal was pending; and we granted a

motion brought by his sons, Daniel Braum and David Hekmat, to

be substituted as parties on appeal in their respective capacities

as the executors of his estate and successor trustees of the Trust.

We will refer to the newly substituted parties as defendants.

2 The City brought the actions on behalf and in the name of

the People of the State of California.

2

II. REGULATORY AND PROCEDURAL BACKGROUND

A. Overview of State and Local Regulation of Medical

Marijuana3

1. Compassionate Use Act (CUA) (1996)

In 1996, state voters approved the CUA (Proposition 215;

Health & Safety Code § 11362.5), which immunized from

prosecution physicians who recommended marijuana to patients

for medical purposes. (420 Caregivers, supra, 219 Cal.App.4th at

p. 1324.) The CUA also immunized from prosecution patients

and their primary caregivers4 who cultivated and possessed

marijuana that had been physician recommended or approved for

patients. (Ibid.)

2. Medical-Marijuana Program Act (MPA) (2003)

In 2003, the MPA was enacted to clarify the scope of the

CUA and promote its uniform application. (420 Caregivers,

supra, 219 Cal.App.4th at p. 1325.) It expanded the classes of

persons to which immunity from prosecution applied. (Ibid.)

3 The regulatory background is taken from the decisions in

420 Caregivers, LLC v. City of Los Angeles (2012) 219

Cal.App.4th 1316 (420 Caregivers) and Safe Life Caregivers v.

City of Los Angeles (2016) 243 Cal.App.4th 1029 (Safe Life).

4 The CUA applied to prosecutions for violations of Health

and Safety Code sections 11357 (possession) and 11358

(cultivation). (Health & Safety Code § 11362.5, subdivision (d).)

3

Among other persons, the MPA immunized qualified caregivers

and persons with identification cards5 who cooperatively

cultivated marijuana for medical purposes. (Ibid.) Pursuant to a

subsequent amendment, the MPA also authorized local

governments to adopt ordinances to regulate the location,

operation, and establishment of medical-marijuana cooperatives

and to engage in criminal and civil enforcement of such

ordinances. (Id. at p. 1326.)

3. The Interim Control Ordinance (ICO) (2007)

In August 2007, the City passed the ICO (no. 179,027) in

response to concerns about the proliferation of storefront medical-

marijuana dispensaries within the City. (420 Caregivers, supra,

219 Cal.App.4th at p. 1326.) The ICO prohibited the

establishment of medical-marijuana dispensaries within City

limits for one year or until a permanent ordinance was enacted.

(Ibid.) But the ICO exempted from its prohibition dispensaries

established before September 14, 2007, as long as those

dispensaries operated in accordance with state law and filed

certain required documents with the City by November 13, 2007.6

(Id. at p. 1327.) Following the City’s exercise of two six-month

5 The MPA created a voluntary program for the issuance of

identification cards to “‘qualified patients,’” i.e., those persons

“‘entitled to the protections’” of the CUA. (420 Caregivers, supra,

219 Cal.App.4th at p. 1325.)

6 Approximately 187 “‘dispensaries’” registered under the

ICO on or before November 13, 2007. (420 Caregivers, supra, 219

4

optional extensions of the ICO’s interim one-year prohibition, and

then the subsequent enactment of a second interim ordinance

(no. 180,749), the ICO’s prohibition against the establishment of

medical-marijuana dispensaries was to remain in force until

March 15, 2010, or until a permanent ordinance was enacted.

(Ibid.)

4. The Permanent Ordinance (2010)

In January 2010, the City enacted the Permanent

Ordinance (no. 181,069; L.A. Mun. Code, former § 45.19.6 et seq.)

which regulated “‘medical[-]marijuana collectives’” and required

them to submit to a new registration and approval process. (420

Caregivers, supra, 219 Cal.App.4th at pp. 1328–1329; Safe Life,

supra, 243 Cal.App.4th at p. 1035.) The Permanent Ordinance

permitted only 70 collectives to operate in the City, but also

included a grandfather clause that allowed existing collectives

that had properly registered under the ICO to remain in

operation. (Safe Life, supra, 243 Cal.App.4th at p. 1035.)

Because there were “substantially more than 70 collectives in

operation that could qualify under the grandfather clause . . . [the

Permanent Ordinance] would likely have had the effect of

prohibiting all collectives that had not previously registered

under the [ICO].” (Id. at pp. 1035–1036.)

Cal.App.4th at p. 1327.) Over 30 of those “‘dispensaries’”

conducted business under names that included the terms

‘collective’ or ‘cooperative.’” (Ibid.) As used in this opinion, the

terms dispensary, collective, or cooperative will refer to any

entity engaged in the cultivation and distribution of medical

marijuana.

5

5. The Preliminary Injunction and

the Urgency Measure (2011)

In response to the Permanent Ordinance, certain medical-

marijuana collectives filed suit seeking an injunction on the

grounds that the ordinance denied equal protection to collectives

that had not previously registered under the ICO. (Safe Life,

supra, 243 Cal.App.4th at p. 1036.) When a trial court issued the

requested injunction, the City enacted an Urgency Measure (no.

181,530) which modified the Permanent Ordinance to provide

that all collectives that had been in operation prior to

September 14, 2007, were eligible to register for a lottery from

which 100 collectives would be chosen for inspection and

registration. (Ibid.)

The City appealed from the injunction against the

Permanent Ordinance and, in July 2012, the Court of Appeal

issued its opinion in 420 Caregivers, supra, 243 Cal.App.4th

1036, reversing the injunction and upholding the Permanent

Ordinance. (Safe Life, supra, 243 Cal.App.4th at pp. 1338–1339.)

Due to a grant of review, however, the decision in 420 Caregivers

did not become final until November 2013. (Safe Life, supra, 243

Cal.App.4th at pp. 1036–1037.)

6. Proposition D (2013)

The City then passed an ordinance (no. 182,443) calling for

a special election for a public vote on Proposition D. (Safe Life,

supra, 243 Cal.App.4th at p. 1037.) In May 2013, City voters

approved Proposition D which enacted a new ordinance (no.

182,580) relating to the regulation of medical marijuana. (Ibid.)

6

Proposition D made it “‘unlawful to own, establish, operate, use,

or permit the establishment or operation of a

medical[-]marijuana business[7] . . .’ in the City. ([L.A.] Mun.

Code, § 45.19.6.2, subd. A.)” (Ibid.) Proposition D also included

an exception for medical-marijuana businesses that met general

requirements, including that the business must have timely

registered under both the ICO and the Permanent Ordinance.

(Ibid.)

B. The Leases

1. The Emerald Dispensary Lease (July 2007)

On June 21, 2005, the Trust took title to the real property

located at 13321 Ventura Boulevard, Sherman Oaks. On

June 22, 2007, “Braum Real Estate,” as lessor, leased that

property to two individual lessees. The lease granted the lessees

the right to use the premises for the purpose of “SALES OF

MEDICAL CANNABIS.” Braum executed the lease as

“LESSOR.” Emerald Triangle Collective, Inc. (Emerald) operated

a “medical[-]marijuana dispensary” at the location. The monthly

rent for the dispensary was $1,660.

7 “Under Prop[osition] D, a ‘medical[-]marijuana business’ is

defined as any ‘location where marijuana is cultivated, processed,

distributed, and delivered, or given away to a qualified patient

. . . or a primary caregiver.’” (Safe Life, supra, 243 Cal.App.4th at

p. 1037.)

7

2. The Ventura Dispensary Lease (January 2009)

On June 21, 2005, the Trust took title to the real property

located at 11306 Ventura Boulevard in Studio City. On

January 7, 2009, Braum Real Estate, as lessor, leased that

property to a lessee, for the express purpose of operating

“MEDICAL[-]MARIJUANA COLLECTIVES.” Braum executed

the lease as “LESSOR” in his capacity as “OWNER.” A

“medical[-]marijuana dispensary,” dba City Organic Remedies,

conducted business at that location and was owned and operated

by Ventura Herbal Center, Inc. (Ventura). The monthly rent for

the dispensary was $3,000

C. Emerald and Ventura Actions

1. Cease and Desist Letters (2010–2011)

On May 4, 2010, the City sent Braum a letter advising him,

among other things, that “[t]he establishment at the above

referenced address [the Emerald dispensary was] operating as a

medical[-]marijuana provider and did not register with the City

Clerk prior to November 13, 2007. Consequently, the

establishment does not, and cannot, comply with the

requirements of [the Los Angeles Municipal Code]. Under

[s]ection 45.19.6.7, this establishment must therefore

immediately cease its operations.” On March 7, 2011, the City

sent Braum a second letter with substantially the same

advisement and demand. And, on May 11, 2011, the City sent

Braum a similar cease and desist letter regarding the Ventura

dispensary.

8

2. Civil Enforcement Complaints (2011)

On August 10, 2011, the City filed two substantially similar

civil enforcement complaints against Braum, individually and as

trustee of the Trust.8 In addition to Braum, the first complaint

named as defendants Emerald and four of its individual officers

and/or directors (Emerald dispensary defendants). The second

complaint against Braum also named as defendants Ventura and

two of its individual officers and/or directors (Ventura dispensary

defendants).

As against Braum, each of the complaints alleged two

causes of action for: (1) using a building without a required

permit, in violation of Los Angeles Municipal Code section

12.21 A.1(a) (zoning violation),9 and (2) maintaining a nuisance,

namely, a building used for unlawful narcotics activity, in

8 According to defendants, the two actions against Braum

were among 41 such civil enforcement actions brought by the

City against medical-marijuana dispensaries, their

owners/operators, and landlords. Those actions were

consolidated by the trial court.

9 Los Angeles Municipal Code section 12.21 A.1(a) provides:

“No building or structure shall be erected, reconstructed,

structurally altered, enlarged, moved, or maintained, nor shall

any building, structure, or land be used or designed to be used for

any use other than is permitted in the zone in which such

building, structure, or land is located and then only after

applying for and securing all permits and licenses required by all

laws and ordinances.”

9

violation of Health and Safety Code section 11570 et seq.

(narcotics abatement).10

Other than the respective start dates of the alleged

statutory violations, the City alleged identical facts in support of

the zoning violation cause of action in each complaint: “Since at

least June 1, 2010, [or January 26, 2009,] [d]efendants . . . have

been using and maintaining the building or structure at the

[p]roperty for a medical[-]marijuana use, a use which is not

permitted in that zone and are in violation of [Los Angeles

Municipal Code] section 12.21 A.1(a). Violation of section

12.21 A.1(a) constitutes a public nuisance under [Los Angeles

Municipal Code] section 11.00 (l).[11] [¶] [] [D]efendant Braum

10 Health and Safety Code section 11570 provides: “Every

building or place used for the purpose of unlawfully selling,

serving, storing, keeping, manufacturing, or giving away any

controlled substance, precursor, or analog specified in this

division, and every building or place wherein or upon which those

acts take place, is a nuisance which shall be enjoined, abated,

and prevented, and for which damages may be recovered,

whether it is a public or private nuisance.”

11 Los Angeles Municipal Code section 11.00 (l) provides, in

pertinent part: “In addition to any other remedy or penalty

provided by this Code, any violation of any provision of this Code

is declared to be a public nuisance and may be abated by the City

or by the City Attorney on behalf of the people of the State of

California as a nuisance by means of a restraining order,

injunction or any other order or judgment in law or equity issued

by a court of competent jurisdiction. The City or the City

Attorney, on behalf of the people of the State of California, may

seek injunctive relief to enjoin violations of, or to compel

10

. . . knew that the use of the [p]roperty was in violation of the Los

Angeles Municipal Code but nevertheless provide[d] substantial

assistance to [the d]ispensary [d]efendants . . . and aided and

abetted violations of [Los Angeles Municipal Code] section

12.21 A.1 (a) by renting and/or leasing the [p]roperty to [the

d]ispensary [d]efendants . . . for use as a medical[-]marijuana

dispensary.”

Other than the respective start dates for the alleged

statutory violations, the City alleged identical facts in support of

the narcotics abatement cause of action in each complaint. “The

[p]roperty was, and is, being used, from an exact date unknown

but at least since at least [sic] June 1, 2010, [or

January 26, 2009,] for the purposes of unlawfully selling, serving,

storing, keeping, manufacturing or giving away controlled

substances and is a building or place wherein or upon which

those acts take place. [¶] [Braum] knew or should have known of

the nuisance activity at the [p]roperty and did nothing to abate it,

allowing the unlawful activity to occur. [¶] . . . [¶] Since on or

about June 1, 2010, [or January 26, 2009,] to the present, [Braum

has] maintained the [p]roperty which is being used as a

medical[-]marijuana dispensary and permitted the operation of a

medical[-]marijuana dispensary at the [p]roperty in clear

violation of Los Angeles Municipal Code section 12.21 A.1[](a)

compliance with, the provisions of this Code or seek any other

relief or remedy available at law or equity . . . . [¶] Violations of

this Code are deemed continuing violations and each day that a

violation continues is deemed to be a new and separate offense

and subject to a maximum civil penalty of $2,500 for each and

every offense.”

11

and permitted the unlawful selling, storing, distributing and

giving away of a controlled substance, to wit, marijuana.”

The prayers for relief against Braum were identical in each

complaint. On the zoning violations, the City sought: to enjoin

Braum from using or permitting medical-marijuana use of the

properties; to assess a civil penalty in the amount of $2,500 per

day pursuant to Los Angeles Municipal Code section 11.00 (l);

and to enjoin Braum from violating section 12.21 A.1(a). On the

narcotics abatement causes of action, the City sought, among

other relief: a declaration that the properties constituted a public

nuisance that must be permanently abated; a preliminary and

permanent injunction and order of abatement; an order

prohibiting Braum from permitting or sanctioning the operation

of any type of “marijuana[-]related venture” on the properties; an

order closing the properties for use for any purpose under the

control of the trial court or, in the alternative, ordering Braum to

pay the City the fair market rental value of the properties for one

year; an order assessing Braum a $25,000 civil penalty; and an

order requiring Braum to “file an unlawful detainer action to

evict [the tenants of the properties] and diligently pursue the . . .

action until [he had] retaken possession of the [properties].”

3. Preliminary Injunction: Emerald Dispensary (2012)

On November 14, 2012, the trial court held a hearing on

the City’s motion for preliminary injunction against, among

others, Braum as owner of the property upon which the Emerald

dispensary was located. Following the hearing, the court granted

the motion and issued an injunction against Braum as to the

12

Emerald dispensary only.12 Braum was ordered: (1) not to

“allow the use of the [p]roperty for a medical[-]marijuana”

purpose; (2) not to “lease or otherwise allow anyone to use the

[p]roperty for a medical[-]marijuana” purpose; and (3) not to

allow “any signage on the [p]roperty to remain which advertises a

medical[-]marijuana dispensary.”

4. Order to Show Cause: Emerald Dispensary (2013)

On August 20, 2013, the City applied for an order to show

cause (OSC) regarding contempt against Braum and others.

According to the City, Braum had failed to comply with the

preliminary injunction. On that same date, following a hearing

on the application, the trial court issued an OSC, which required

Braum to appear on September 25, 2013, and show cause why he

should not be ordered to, among other things, evict the “current

medical[-]marijuana dispensary” from his property. On March

14, 2014, the parties entered into a settlement, in which Braum

agreed to pay the City $10,000 in exchange for the OSC being

taken off calendar. The court therefore did not issue an order

requiring an eviction.

5. Criminal Complaint

On November 12, 2013, the City filed a misdemeanor

complaint against Braum and others, including Downtown

12 The preliminary injunction concerning the Ventura

property did not contain any provisions directed at Braum

individually or in his capacity as trustee of the Trust.

13

Discount Center, Inc. and 1123 West 7th Street, LLC.13 The

complaint charged Braum with six counts of violating Los

Angeles Municipal Code section 45.19.6.2A14 and six counts of

violating section 12.21 A.1(a). The crimes allegedly occurred on

specific dates between and including August 23, 2013 and

October 11, 2013.15 On January 7, 2014, Braum pleaded no

contest to each count, the trial court placed him on a “formal

diversion for a period of 12 months,”16 and ordered him to pay

13 According to filings with the Secretary of State, Braum was

the sole member and/or manager of 1123 West 7th Street, LLC

from November 2008 through November 2016.

14 As of May 2013, following the passage of Proposition D,

section 45.19.6.2 provided: “SEC. 45.19.6.2. PROHIBITED

ACTIVITIES. [¶] A. It is unlawful to own, establish, operate,

use, or permit the establishment or operation of a medical[-

]marijuana business, or to participate as an employee, contractor,

agent or volunteer, or in any other manner or capacity in any

medical[-]marijuana business. [¶] B. The prohibition in

Subsection A, above, includes renting, leasing, or otherwise

permitting a medical[-]marijuana business to occupy or use a

location . . . .”

15 Defendants contend that “Count I was a generic accusation

regarding medical marijuana dispensaries applicable to every

possible location within the City as well as every possible activity

and time.” Defendants then quote from a portion of that count.

The entirety of the count, however, makes clear that the violation

was alleged to have occurred on August 23, 2013.

16 “[D]iversion is generally understood to mean ‘the

suspension of criminal proceedings for a prescribed period of time

14

$500 and not to rent to a “marijuana business.” The court

continued the matter to January 7, 2015, for “disposition and

resetting.” We have no further record of the proceedings in the

criminal matter.

6. City’s Summary Judgment Motion (2014)

On or about March 10, 2014, the City filed its motion for

summary judgment, or, in the alternative, summary

adjudication, against, among others, Braum based on his and/or

the Trust’s ownership of the two properties upon which the

Emerald and Ventura dispensaries were located. The City

argued that there was no triable issue of fact as to the zoning

violation because Braum engaged in, permitted, or allowed or

aided the sale or distribution of marijuana at the properties, and

such activity was an unpermitted use in violation of Los Angeles

Municipal Code, section 12.21 A.1(a). The City also argued that

Braum assisted and participated in “the illegal marijuana use

onsite” by “‘handing over the keys to the dispensaries,’”—i.e.,

providing them a place of business—and cashing the lease

checks. According to the City, Braum was “‘on actual and inquiry

notice when leasing to a business having to do with marijuana.”

Regarding the narcotics abatement claim, the City argued

that there was no triable issue of fact as to whether Braum

engaged in, permitted, allowed, or aided the sale or distribution

of marijuana at the properties and such conduct constituted an

unlawful use in violation of the narcotics abatement law. The

with certain conditions.’” (People v. Craine (2019) 35 Cal.App.5th

744, 751.)

15

City maintained that any purported lack of knowledge of the

statutory nuisance was irrelevant to the imposition of liability

under Health and Safety Code section 11570.

The City supported its requests for summary adjudication

against Braum with, among other evidence, documents showing

the dispensaries’ occupation of the Sherman Oaks and Studio

City properties, documents showing the Trust’s ownership of

those properties, and declarations of police officers establishing

sales of marijuana at the Emerald and Ventura dispensaries.

Braum opposed the motion, arguing that as of May 2010,

the medical-marijuana dispensaries were legal based on the

City’s zoning administrator’s interpretation;17 the statutes relied

upon by the City to show liability were ambiguous; the City failed

to show that he aided and abetted the conduct of the

dispensaries; the action was moot because both dispensaries had

vacated the properties; the civil enforcement actions violated

Braum’s double jeopardy rights because he had been criminally

convicted for the same offense; and Braum was immune from

liability under Health and Safety Code section 11362.775.

Braum supported his opposition with his declaration that

he believed the two leases were for businesses that filled

prescriptions for medical marijuana and, as such, were

considered pharmacies, i.e., permitted uses of his commercial

17 On May 6, 2010, the City issued a zoning administrator’s

interpretation concerning medical-marijuana collectives. The

interpretation concluded that “[m]edical[-m]arijuana [c]ollectives

are permitted in any zone, subject to all applicable provisions of

State law, the Zoning Code and [the Permanent Ordinance n]o.

181,069 [Los Angeles Municipal Code former section 45.19.6 et

seq.].”

16

properties; lawyers he consulted advised him that he “was acting

within the law” by leasing to the dispensaries; he allowed the

dispensaries to use his properties in reliance on the City’s May

2010 zoning administrator’s interpretation that medical

marijuana was a permitted use; the Ventura dispensary closed in

January 2013, and once the decision in 420 Caregivers, supra,

219 Cal.App.4th 1316 became final, he began taking steps to evict

the Emerald dispensary which closed in September 2013.

In its reply, the City argued that Braum’s understanding

that the dispensaries were pharmacies, and therefore permitted

uses, was unreasonable and irrelevant; the dispensaries violated

the City’s zoning code because they were not expressly permitted

uses; the law regarding permitted uses and marijuana

dispensaries was not ambiguous or unclear; Braum’s reliance on

the advice of counsel did not immunize him from the zoning and

nuisance violations; the civil enforcement actions were not moot;

double jeopardy did not apply because the criminal conviction

upon which that defense was based involved a different property;

and the undisputed evidence showed that Braum, as landlord,

assisted and participated in the businesses of his dispensary

tenants.

7. Hearing and Rulings on Motion (2015)

On October 29, 2015, the trial court held a further

hearing18 on the City’s motion for summary judgment. Following

18 Following an initial hearing on May 29, 2014, the trial

court denied the City’s motion for summary adjudication on the

grounds that the City had failed to demonstrate that there were

17

argument, the trial court took the matter under submission and,

on December 1, 2015, the court issued a written order granting

the City’s motion against Braum in the two actions against him,

as well as against others in the consolidated actions.

8. Hearing and Rulings on Remedies Phase (2018)

On January 10, 2018, the City submitted “remedies briefs”

for the Emerald and Ventura actions. According to the City,

Braum was liable for the maximum penalty of $2,500 per day

under Los Angeles Municipal Code section 11.00 (l) for the zoning

violations at the Emerald property for the period from

June 1, 2010, through at least November 14, 2012, for a total of

897 days. And, for the zoning violations at the Ventura property,

the City maintained that Braum was liable for the maximum

civil penalty of $2,500 per day under section 11.00 (l) for the

period from January 26, 2009, through at least February 4, 2013,

for a total of 1,470 days. In addition, the City argued that Braum

was liable for the maximum penalty of $25,000 for each property

under Health and Safety Code section 11581, subdivision (b)(2)

based on the nuisance violations established under section 11570.

no triable issues of fact on the issues of entitlement to and

amount of civil penalties, which the court concluded were

essential elements of the City’s two claims. In March 2015,

however, that ruling was vacated by the decision of People ex rel

Feuer v. Superior Court (Cahuenga’s the Spot) (2015) 234

Cal.App.4th 1360, 1364, which held that although civil penalties

were available remedies, they were not elements of the City’s

causes of action.

18

In support of its request for penalties, the City submitted,

among others, documents filed with the Secretary of State

regarding Braum’s membership in the limited liability company,

1123 West 7th Street LLC. Among other declarations, the City

submitted a declaration from a Deputy City Attorney describing

the cease and desist letters sent to Braum regarding the Emerald

and Ventura dispensaries. The City also submitted a declaration

from a City paralegal who researched Braum’s real property

holdings and concluded that Braum was the trustee of two trusts

that together held title to 13 properties in Los Angeles County.

The paralegal also concluded that Braum was an officer or

managing member of various entities that owned two multi-unit

apartment or condominium complexes and approximately 11

other properties in Los Angeles County. In addition, the

paralegal discovered that Braum was a manager of another LLC

that owned nine properties. And, a City investigator determined

that the Emerald dispensary was located an impermissible 35

feet from a grade school.

In opposition to the civil penalties claimed against him,

Braum argued: He could not be held individually liable for the

alleged zoning violations because only the owner of the property,

i.e., the Trust, could be liable, and the summary judgment orders

entered were only against Braum as an individual; there was no

zoning ordinance in effect between September 2007 through

August 2012 that prevented a landlord from renting to a medical-

marijuana dispensary and therefore the penalties for the zoning

violation at the Emerald and Ventura properties should only be

imposed from August 2012 to the dates when the dispensaries

stopped operating; because the settlements with the other

defendants ranged from $1,500 to $150,000, the penalties

19

imposed in the two cases should not exceed $150,000; current

law, Proposition 64, allowed for the sale of both medical and

recreational marijuana.

Braum supported his opposition with his declaration

explaining that the Trust, as landlord, did not intend to violate

any laws and was advised by former counsel that the

dispensaries could lawfully occupy the properties; both

dispensaries had ceased to operate, one in 2012 and the other in

2013; and the trial court should demonstrate leniency and award

penalties that were in line with the penalties imposed in other

cases. Braum, however, did not submit any evidence showing his

inability to pay the proposed penalties.

In reply, the City argued that Braum was attempting to

relitigate liability issues already decided against him on

summary judgment; substantial penalties were warranted for the

entire time periods specified; the penalties should reflect the

egregious facts of Braum’s conduct in response to both the cease

and desist letters and the civil enforcement actions against him;

and a permanent injunction was warranted.

On February 22, 2018, the trial court conducted the

remedies phase hearing. Following argument, the court ruled in

favor of the City and indicated that it would sign the City’s

proposed judgments as submitted. The court rejected Braum’s

argument that he should be assessed penalties that were similar

to the penalties paid by a different landlord who had settled its

case, noting that a penalty that was the result of a negotiated

compromise involved an “entirely different situation” from the

case at issue. The court stated that the penalties sought by the

City were appropriate, and adopted the reasoning argued by the

City. It also observed that a hefty penalty was appropriate

20

because of what it characterized as Braum’s “flagrant”

disobedience of the law. In the court’s view, it was “quite obvious

that there was a bet that the political current, the policy climate

would change in the future. And if we just ride this thing out and

defy it long enough we’ll end up, as that expression says, ‘better

to ask for forgiveness than permission.’ [¶] Well, I don’t think

that is a good way to run a city where citizens believe [they can

do] what is profit maximizing although illegal and later [they

can] ask for forgiveness.”

9. Judgments (2018)

On February 22, 2018, the trial court entered substantially

similar judgments against Braum in the Emerald and Ventura

actions. The findings in support of each judgment provided that

Braum had conducted and maintained a nuisance on the

properties in violation of Los Angeles Municipal Code section

12.21 A.1(a) and Health and Safety Code section 11570. The

judgment and order of abatement provided that it was “binding

on . . . Braum, individually and in his capacity as [t]rustee of [the

Trust] . . . .” Based on the finding that each property maintained

a public nuisance, the court ordered abatement. In addition to

issuing injunctions against Braum preventing the use of the

properties for any medical-marijuana related use, the judgments

each imposed for the nuisance violation a $25,000 penalty

pursuant to Health and Safety Code section 11581, subdivision

(b)(2). The judgment in the Emerald action also imposed for the

zoning violation a civil penalty of $2,242,500 pursuant to Los

Angeles Municipal Code section 11.00 (l); and the judgment in

the Ventura action imposed a penalty of $3,675,000 for the zoning

21

violation in that case. The judgments in both actions further

imposed against Braum awards of investigative costs, attorney

fees, and court costs that are not at issue in this appeal.

III. DISCUSSION

A. Double Jeopardy

1. Background

As explained, after the two civil enforcement actions were

filed, but while they were still pending, the City filed a criminal

misdemeanor complaint against Braum, his limited liability

company, a corporation, and two other individuals. The

complaint charged six counts based on alleged violations of Los

Angeles Municipal Code section 45.19.6.2.A and six counts based

on alleged violations of section 12.21 A.1(a). The allegations of

each count, however, were boilerplate in nature and did not

provide any specific facts about the alleged offenses, other than

the specific dates upon which they occurred.

Defendants contend that the entry of the judgments in the

two civil actions, after Braum had been convicted in the criminal

proceeding, violated the federal and state double jeopardy

clauses. According to defendants, the general allegations of

misconduct asserted in the criminal complaint described conduct

substantially similar to the conduct upon which liability was

subsequently imposed in the two civil actions following summary

judgment. They therefore conclude that the same offenses were

at issue in both the criminal and civil actions.

22

2. Legal Principles

“The Fifth Amendment to the United States Constitution

provides that ‘[n]o person shall . . . be subject for the same offense

to be twice put in jeopardy of life or limb . . . .’ This guarantee is

applicable to the states through the Fourteenth Amendment.

[Citations.] Similarly, article I, section 15, of the California

Constitution provides: ‘Persons may not twice be put in jeopardy

for the same offense . . . .’” (People v. Saunders (1993) 5 Cal.4th

580, 592–593.) “Although in some contexts article I, section 15, of

the California Constitution may provide a level of protection

higher than that afforded by its federal counterpart” (id. at

p. 596), neither party suggests that, in this case, the California

double jeopardy clause should be interpreted differently than the

federal clause.

The Double Jeopardy Clause “protects against a second

prosecution for the same offense after conviction.” (People v.

Sloan (2007) 42 Cal.4th 110, 120–121, italics added.) The

defendant bears the burden of demonstrating that double

jeopardy applies. (People v. Newell (1923) 192 Cal. 659, 667;

People v. Mason (1962) 200 Cal.App.2d 282, 285.)19

19 In certain “unique circumstances,” such as “when the

prosecution’s charging decisions and the charges themselves

necessitate,” the burden shifts to the prosecution “once defendant

makes a nonfrivolous showing that an indictment or information

charges him with an offense for which he was formerly placed in

jeopardy;” for instance, “when a defendant is being retried on a

conspiracy charge for which defendant maintains he has been

convicted or acquitted.” (People v. Smith (2005) 132 Cal.App.4th

1537, 1549, fn. omitted.) Defendant does not contend that the

23

“The [Double Jeopardy] Clause protects only against the

imposition of multiple criminal punishments for the same

offense, [citations], and then only when such occurs in successive

proceedings . . . . [¶] Whether a particular punishment is

criminal or civil is, at least initially, a matter of statutory

construction” and depends on: (1) “whether the legislature

‘. . . indicated, either expressly or impliedly a preference for one

label or the other’” and (2) “‘whether the statutory scheme was so

punitive either in purpose or effect,’ [citation], as to ‘transform

what was clearly intended as a civil remedy into a criminal

penalty.’” (Hudson v. United States (1997) 522 U.S. 93, 99.)

3. Analysis

Defendant contends in his opening brief that he “pled nolo

contendere and was convicted on all charges.” But, as we discuss

above, the record on appeal does not indicate whether defendant

was sentenced on January 15, 2015, or whether, at the conclusion

of a 12-month period of diversion, the charges were dismissed.

(See, e.g., Penal Code, § 1001.7.) We will assume for purposes of

this opinion that Braum could establish that jeopardy attached

when he entered his no contest plea to the criminal complaint,

even though he was not sentenced in that case. (But see Liang v.

Superior Court (2002) 100 Cal.App.4th 1047, 1055 [jeopardy did

not attach when a defendant entered a plea of no contest as part

of a conditional offer that required his codefendants to also plead

circumstances of this case relieved him of the burden or

otherwise warranted shifting it to the City.

24

guilty and court then vacated no contest plea, over the

defendant’s objection, prior to sentencing].)

We will further assume that defendants could demonstrate

that the penalties imposed in the civil complaints at issue

constituted criminal, rather than civil, penalties. Even giving

defendants the benefit of these assumptions, we reject their

double jeopardy claim because they still have not met their

burden of demonstrating that the conduct at issue in the criminal

complaint constituted the “same offense” as the conduct at issue

in the civil complaints.

According to the criminal complaint submitted by Braum in

opposition to the summary judgment motion, the offenses in that

action occurred on specific dates between August 23, 2013, and

October 11, 2013. The complaint in the Emerald action alleged

that the conduct forming the basis for the zoning- and nuisance-

based claims against Braum began in June 2010; and the

complaint in the Ventura action alleged that the conduct

underling the zoning and nuisance claims asserted in that action

began in January 2009. The City argued that Braum’s liability

for the Emerald dispensary ended on November 14, 2012, and his

liability for the Ventura dispensary ended on February 4, 2013.

Thus, the only documents on this issue submitted by Braum in

opposition to summary judgment, which were the criminal

complaint and minute order, demonstrated that there was no

overlap in the dates at issue in the criminal complaint and the

civil complaints.

Nor did Braum submit any evidence that the conduct at

issue in the criminal complaint occurred at the same location as

the conduct at issue in the civil complaints. Although all three

complaints charged that the conduct occurred in Los Angeles, it

25

appears from the caption of the criminal complaint that the

charged offenses involved a dispensary—Downtown Discount

Center, Inc.—and a property—1123 West 7th Street—that are

not mentioned in either the civil complaints or the evidence in

support of the summary judgment motion.

The allegations and evidence before the trial court were

therefore insufficient to show that the criminal complaint was

based on the same offenses as the civil actions. (See, e.g.,

Blockburger v. United States (1932) 284 U.S. 299, 301 [two

narcotics sales, “although made to the same person, were distinct

and separate sales made at different times”]; People v. Cuevas

(1996) 51 Cal.App.4th 620, 624 [no bar to successive prosecutions

where “offenses committed at different times and at different

places”].)

B. Excessive Fines

1. Background

Defendants contend the penalties imposed, which totaled

$5,967,500, were unconstitutionally excessive under the Eighth

Amendment because: the penalties were grossly disproportionate

to the offenses; the trial court failed to properly consider the four

factors mandated by United States v. Bajakajian (1998) 524 U.S.

321 (Bajakajian); and the imposition of daily penalties is suspect

and disfavored.

26

2. Legal Principles

“The Eighth Amendment to the United States Constitution

states: ‘Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.’ (Italics

added.) ‘[T]he Due Process Clause of the Fourteenth Amendment

to the Federal Constitution . . . makes the Eighth Amendment’s

prohibition against excessive fines and cruel and unusual

punishments applicable to the States. [Citation.] The Due

Process Clause of its own force also prohibits the States from

imposing “grossly excessive” punishments . . . .’ [Citation.] [¶]

The California Constitution contains similar protections.

Article I, section 17, prohibits ‘cruel or unusual punishment’ and

‘excessive fines;’ article I, section 7, prohibits the taking of

property ‘without due process of law.’” (People ex rel Lockyer v.

R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 727–728 (R.J.

Reynolds).)

“The leading United States Supreme Court case on the

Eighth Amendment’s prohibition of excessive fines is

[Bajakajian, supra,] 524 U.S. 321 . . . , which involved a federal

statute (31 U.S.C. § 5316(a)) requiring any person transporting

more than $10,000 out of the United States to file a report with

the United States Customs Service. Bajakajian attempted to

take $357,144 out of the country without filing a report. The

government claimed that the entire $357,144 was forfeited. [¶]

The high court pointed out that ‘[t]he touchstone of the

constitutional inquiry under the Excessive Fines Clause is the

principle of proportionality.’ (Bajakajian, supra, 524 U.S. at

p. 334.) It then set out four considerations: (1) the defendant’s

culpability; (2) the relationship between the harm and the

27

penalty; (3) the penalties imposed in similar statutes; and (4) the

defendant’s ability to pay. (Id. at pp. 337–338; see City and

County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302,

1320–1322 . . . (Sainez).) After reviewing those considerations,

the high court held that the forfeiture of Bajakajian’s currency

constituted an ‘excessive fine’ barred by the Eighth Amendment.”

(R.J. Reynolds, supra, 37 Cal.4th at p. 728.)

3. Analysis

“[O]ur review of the ruling on the constitutional question

[under the Eighth Amendment’s excessive fines clause] is

independent judgment, or de novo (Townsel v. San Diego

Metropolitan Transit Development Bd. (1998) 65 Cal.App.4th 940,

946 . . .), but with deference to underlying factual findings, which

we review for substantial evidence, viewing the record in the

light most favorable to the ruling (Ojavan Investors, Inc. v.

California Coastal Com. (1997) 54 Cal.App.4th 373, 395 . . . ;

cf. People v. Dillon (1983) 34 Cal.3d 441, 455–456, 477–478 . . .

[cruel or unusual punishment]).” (Sainez, supra, 77 Cal.App.4th

at p. 1313.) Contrary to defendants’ assertion, when applied to

the facts in this case, the four-part Bajakajian test shows that

the imposition of the civil fines did not violate the excessive fines

clause.

a. Braum’s Culpability

During the remedies phase, the City produced evidence

that Braum was notified prior to the filing of the two civil

actions—in May 2010 and again in March and May 2011—that

28

the Emerald and Ventura dispensaries operating on his

properties were not permitted under Los Angeles Municipal Code

section 45.19.6.7 and that they must cease operations. Braum

took no action in response to the notice and instead continued to

lease the two properties to his dispensary tenants. The City then

filed civil actions against Braum in August 2011 to compel

compliance with its zoning code and the nuisance abatement law,

but the dispensaries continued to operate under the Trust’s

leases. Over a year after filing the actions against Braum, the

City sought and obtained in November 2012 a preliminary

injunction in the Emerald action which ordered him not to allow

the Sherman Oaks property to be used as a marijuana

dispensary. Notwithstanding the preliminary injunction, the

Emerald dispensary continued to operate. As a result, in August

2013, the City sought and obtained an OSC regarding contempt

against Braum which he ultimately settled in March 2014.

In addition, during the remedies phase, the City submitted

evidence of a citizen complaint that the Emerald dispensary was

also being used as a “grow.” According to the complainant, “there

was a smell of marijuana being emitted” from the property, and

the complainant observed “large grow lights and other such

improvements.” But when the complainant raised the issue with

Braum, he denied the existence of the grow or the smell of

marijuana at his property. The City also submitted evidence that

the Emerald dispensary was impermissibly operating within 35

feet of an elementary school, notwithstanding the requirement in

Los Angeles Municipal Code section 45.19.6.3 A.2(a) that

marijuana dispensaries were not permitted within “a 1,000-foot

radius of a school . . . .”

29

Based on the evidence presented to it, the trial court

concluded that Braum’s disobedience of the City’s ordinances and

the court’s orders was “flagrant.”20 That conclusion was amply

supported by the record on the remedies hearing which clearly

demonstrates Braum’s culpability for the continuing offenses on

his two properties.

b. Relationship Between the Harm and

the Penalty

The City had a valid and strong interest in regulating uses

within the City, including medical-marijuana uses, and in

abating nuisances defined by state law to address the perceived

harms underlying its zoning regulations and the statewide

nuisance abatement law. (Sainez, supra, 77 Cal.App.4th at

p. 1315 [securing obedience to code requirements through

penalties is a legitimate exercise of the police power].) By

20 Defendants maintain that the trial court ignored the

evidence of Braum’s “good faith,” including his testimony that he

relied on the advice of counsel and had no intention of violating

the medical-marijuana laws, which laws he characterized as

ambiguous, at best. But the record reflects that the court was

well aware of the long procedural history of the actions against

Braum and his responses to them. It was therefore within the

purview of the court, sitting as the trier of fact during the

remedies phase, to determine the weight, if any, to be given to

Braum’s evidence in opposition to the remedies sought against

him by the City. There is nothing in the record to suggest that

the court failed to engage in such a weighing process before

deciding to give more weight to the ample evidence submitted by

the City in support of those remedies.

30

consistently resisting the City’s enforcement efforts and instead

allowing the unpermitted uses and nuisances to continue on his

Trust’s properties, Braum increased the risk of the harm the City

was endeavoring to enjoin and abate. Because, as the landlord, it

was within his power to comply in a timely manner with the

City’s enforcement efforts, and thereby mitigate the amount of

the penalties imposed, his own conduct dictated that the amount

of penalties necessary to achieve the City’s legitimate

enforcement goals would be substantial. (See Sainez, supra, 77

Cal.App.4th at p. 1316 [defendants had it within their control

first to prevent and then to stop the accumulation of penalties;

thus, they “had their own intransigence to blame” for the amount

of the penalties].)

c. Penalties Imposed in Similar Statutes

As the City points out, there are no published cases

showing the amounts of penalties imposed on landlords of

medical-marijuana dispensaries. But the cases cited by the City

are sufficiently analogous to show that the penalties imposed in

this case are not dissimilar to those imposed under other

regulatory statutes. (See, e.g., People v. Overstock.Com, Inc.

(2017) 12 Cal.App.5th 1064, 1087–1088 [trial court imposed a

daily penalty of $2,000 for a total of $6,828,000 in civil penalties

under Business and Professions Code sections 17206,

subdivision (b) for unfair competition and 17536, subdivision (b)

for false advertising] and cases cited therein at pp. 1089–1090.)

31

d. Ability to Pay

Defendants argue that the City did not produce any

evidence of Braum’s ability to pay the amount of civil penalties

sought. The City counters that it was Braum’s burden in the

trial court to raise and demonstrate his inability to pay the

penalties, citing, among other cases, People v. First Federal

Credit Corp. (2002) 104 Cal.App.4th 721, 729.)

To the extent it was Braum’s burden to show an inability to

pay the penalties, he failed to carry that burden because his

opposition did not raise the issue, much less submit evidence

concerning his financial status. But, even it was the City’s

burden to make a prima facie showing of Braum’s ability to pay,

its evidence in support of its remedies briefs, showing that

Braum controlled a substantial amount of commercial and

residential real estate in Los Angeles County, satisfied that

burden. Based on the evidence submitted, the trial court could

have reasonably inferred that Braum had the financial ability to

pay the penalties.

C. Order to Evict

Defendants claim that the trial court’s liability findings

against Braum for the alleged zoning and statutory nuisance

violations were all driven by his conduct in failing to file and

diligently pursue unlawful detainer actions against the Emerald

and Ventura dispensaries. According to defendants, because

neither the City nor the court had authority to order Braum to

evict his tenants, he could not be held liable for failing to so in

32

response to the filing of the civil actions, the entry of the

preliminary injunction, or the issuance of the OSC.

As an initial matter, Braum did not oppose the summary

judgment motion on the grounds that neither the City nor the

trial court had the authority to order him to file and diligently

pursue an unlawful detainer action. His failure to raise the issue

in the first instance with the trial court therefore forfeited the

issue on appeal. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247,

264–265.)

Even assuming Braum had preserved the issue for appeal,

defendants’ argument is based upon a faulty premise. The trial

court’s liability findings against Braum were made on summary

judgment and, contrary to Braum’s assertion, the allegations and

evidence upon which the court’s liability determinations were

made did not include any mention of his failure to file unlawful

detainer actions in response to the City’s demands or court

orders. Although the preliminary injunction and OSC issued

against him were based, in part, on evidence that he had failed to

take any action to prevent the unpermitted uses and nuisances

on his Trust’s properties, none of that evidence was before the

court at the summary judgment hearing.

Instead, as explained, the City limited its evidentiary

presentation to documentary evidence showing the dispensaries’

occupation of the Sherman Oaks and Studio City properties and

the Trust’s ownership of those two properties, as well as police

officer declarations showing that marijuana was being dispensed

there. Because the trial court’s rulings against Braum on the

summary judgment motions were not based in any way on

evidence that Braum failed to file and pursue unlawful detainer

actions, his arguments and authorities concerning the court’s

33

authority to order him to file and pursue such actions are

irrelevant.

Moreover, even assuming the trial court’s liability findings

were based, in part, on Braum’s failure to comply with the

preliminary injunction against him, the injunction ordered him

not to allow the Trust’s properties to be used for medical-

marijuana purposes or to lease the properties for such purposes.

The injunction did not require that Braum file unlawful detainer

actions or pursue them diligently under court supervision. And,

although the OSC ordered Braum to appear and explain why the

court should not order him to file unlawful detainer actions, no

such order was ever entered against Braum because the OSC was

settled. As Braum was never ordered to file an unlawful detainer

action, the trial court could not find Braum liable for failing to

pursue such actions against the dispensaries. Finally, although

the complaint sought, in its prayer for relief, an order requiring

Braum to file unlawful detainer actions, the judgment did not

include any such order.

D. Due Process: Vagueness

1. Background

According to defendants, at the time Braum executed the

leases for the Emerald and Ventura dispensaries—June 21, 2007,

and January 7, 2009, respectively—the City’s medical-marijuana

regulations were so complex, and their meaning so arcane, that

“it was virtually impossible for any landlord to determine and

prove whether a given dispensary was operating legally, and

34

Braum therefore had no clearly lawful path to follow.” We are

unpersuaded by defendants’ argument.

2. Legal Principles

“‘The vagueness doctrine bars enforcement of “‘a statute

which either forbids or requires the doing of an act in terms so

vague that men of common intelligence must necessarily guess at

its meaning and differ as to its application.’”’” (People v. Navarro

(2016) 244 Cal.App.4th 1294, 1300.) We review vagueness

challenges de novo. (Id. at p. 1301.)

“‘The starting point of our analysis is “the strong

presumption that legislative enactments ‘must be upheld unless

their unconstitutionality clearly, positively, and unmistakably

appears. [Citations.] A statute should be sufficiently certain so

that a person may know what is prohibited thereby and what

may be done without violating its provisions, but it cannot be

held void for uncertainty if any reasonable and practical

construction can be given to its language.’” [Citation.]’ (Williams

v. Garcetti [(1993)] 5 Cal.4th [561,] 568.)” (People v. Mary H.

(2016) 5 Cal.App.5th 246, 260.)

“The degree of vagueness that the Constitution tolerates—

as well as the relative importance of fair notice and fair

enforcement—depends in part on the nature of the enactment.

Thus, economic regulation is subject to a less strict vagueness

test because its subject matter is often more narrow, and because

businesses, which face economic demands to plan behavior

carefully, can be expected to consult relevant legislation in

advance of action. Indeed, the regulated enterprise may have the

ability to clarify the meaning of the regulation by its own inquiry,

35

or by resort to an administrative process. The Court has also

expressed greater tolerance of enactments with civil rather than

criminal penalties because the consequences of imprecision are

qualitatively less severe.” (Village of Hoffman Est. v. Flipside,

Hoffman Est. (1982) 455 U.S. 489, 498–499.)

3. Analysis

We thus begin our analysis under the strong presumption

that the City’s medical-marijuana regulations must be upheld

unless defendants affirmatively demonstrate that those

regulations are clearly unconstitutional.

The zoning ordinances here were neither vague nor

uncertain. The ICO, which became effective on

September 14, 2007 (420 Caregivers, supra, 219 Cal.App.4th at

p. 1326 and fn. 2), plainly prohibited the establishment or

operation of medical-marijuana dispensaries within the City

limits.21 Although the ICO also allowed an exception to this

general prohibition, the requirements of that exception were

21 “Sec. 2. PROHIBITION. Notwithstanding any provisions

of the [Los Angeles Municipal Code] to the contrary, for a period

of one year from the effective date of this ordinance or until a

permanent ordinance is adopted, which establishes permanent

citywide regulations regarding [m]edical[-m]arijuana

[d]ispensaries, whichever occurs first: [¶] A. No person or entity

shall establish a [m]edical[-m]arijuana [d]ispensary. [¶] B. No

person or entity shall operate a [m]edical[-m]arijuana

[d]ispensary.”

36

sufficiently definite to prevent arbitrary or discriminatory

enforcement.22

Although the City’s medical-marijuana regulations were

modified and amended in the years following the enactment of

the ICO, each such modification or amendment maintained in

effect the ICO’s basic requirements concerning the exception to

the City-wide prohibition on medical-marijuana dispensaries: to

operate legally, dispensaries that were in business prior to

September 14, 2007, were required to have registered with the

City within 60 days of that effective date. Thus, landlords such

as Braum were subject to the ICO’s general prohibition and

exception requirements from its effective date throughout the

duration of the Emerald and Ventura leases. The language of the

ICO’s exception contained the reasonable degree of certainty

required under due process to apprise a landlord such as Braum

22 “The prohibitions specified in [s]ection 2 of this ordinance

shall not apply to any [m]edical[-m]arijuana [d]ispensary

established before the effective date of this ordinance and

operated in accordance with State law, if the owner or operator of

the [m]edical[-m]arijuana [d]ispensary complies with the

following requirements: [¶] A. File the form, designated by . . .

the City Clerk, and the following documentation with . . . the City

Clerk within 60 days of the adoption of the [ICO]: [a City tax

registration certificate; a state board of equalization seller’s

permit; the property lease; business insurance; dispensary

membership forms; and, if needed, a county health department

permit] . . . . [¶] B. This exception only applies to a facility that

otherwise meets all the requirements of the [Los Angeles

Municipal Code] and is open for business on the effective date of

this ordinance.”

37

of the practice to be avoided on the properties. It was therefore

not void for vagueness.

To the extent defendants complain that it was burdensome

for landlords to research the ever changing marijuana

regulations, “[t]he mere fact that the owner of premises within [a

particular zone] is required to search the zoning ordinances to

discover the scope of permitted uses, cannot alone render the

ordinance vague and uncertain.” (Sechrist v. Municipal Court

(1976) 64 Cal.App.3d 737, 743.)

E. Individual Liability

1. Background

The City named Braum as a defendant in each civil action,

both in his individual capacity and as the trustee of the Trust.

The City moved for summary judgment against Braum on the

two causes of action asserted against him in each complaint, i.e.,

it sought a determination that Braum had violated the zoning

code and the Health and Safety Code, both as an individual and

as the trustee on behalf of the Trust. In support of its motion, the

City submitted documents showing that the Emerald and

Ventura dispensaries were conducting business operations at the

Sherman Oaks and Studio City properties, that Braum, as

trustee of the Trust, owned both properties, and that each

property was being used to sell or distribute marijuana.

In opposition to the motion, Braum submitted the leases for

both properties executed by him and argued the City had failed to

show that the Trust, as landlord, aided and abetted the

dispensaries in the operation of their businesses. But he did not

38

expressly argue that he was not individually liable for any of the

violations.

Following the hearing on the motion, the trial court issued

an order granting the City’s motion for summary judgment as to

Braum. The court’s order on the motion noted that Braum was a

defendant in the first and second causes of action in the Emerald

and Ventura complaints, but without expressly indicating that

those claims were asserted against him both as an individual and

as the trustee.

During the subsequent remedies phase, Braum opposed the

penalties sought by the City, arguing, among other things, that

he could not be held personally liable for the civil penalties

sought under either the zoning code or the Health and Safety

Code. In its reply briefs, the City argued that Braum could be

held personally liable and that the trial court had already made

that determination.

During oral argument at the remedies hearing, Braum

argued that he was not personally liable for the civil penalties

sought by the City, but the trial court rejected that argument,

ruling that it was awarding all of the penalties the City requested

“as to the individuals . . . .”

In the subsequently entered judgments, the court ruled

that the penalties would be “imposed against [d]efendant Michael

Braum, individually[,] and as [t]rustee of the [Trust].”

2. Legal Principles

“[S]ection 18000 of the Probate Code . . . provides that ‘a

trustee is not personally liable on a contract properly entered into

in the trustee’s fiduciary capacity in the course of administration

39

of the trust unless the trustee fails to reveal the trustee’s

representative capacity or identify the trust in the contract.’

Sections 18001 and 18002 go on to state that ‘[a] trustee is

personally liable for obligations arising from ownership or control

of trust property only if the trustee is personally at fault,’ and

that ‘[a] trustee is personally liable for torts committed in the

course of administration of the trust only if the trustee is

personally at fault.’” (Galdjie v. Darwish (2003) 113 Cal.App.4th

1331, 1343).

A “trustee thus cannot be held personally liable under

[Probate Code] section 18001 for any obligation arising from his

ownership or control of trust property, nor can he be held

personally liable under [Probate Code] section 18002 for any torts

committed in the course of his administration of the trust, unless

the party seeking to impose such personal liability on the trustee

demonstrates that the trustee intentionally or negligently acted

or failed to act in a manner that establishes personal fault.

(§§ 18001, 18002; Cal. Law Revision Com. com., 54A West’s Ann.

Prob. Code, supra, foll. §§ 18001 & 18002, p. 237.) [¶] . . . A

trustee who . . . acted in his representative capacity cannot be

held personally liable under [Probate Code] section 18001 for an

obligation . . . solely upon a showing that the obligation arose out

of his ownership or control of the trust property. The imposition

of such personal liability must also rest on a finding of personal

fault supported by a sufficient showing that the trustee’s conduct

was intentional or negligent. (§§ 18001, 18002; Cal. Law

Revision Com. com., 54A West’s Ann. Prob. Code, supra, foll.

§§ 18001 & 18002, p. 237.)” (Haskett v. Villas at Desert Falls

(2001) 90 Cal.App.4th 864, 877–878 (Haskett).)

40

3. Analysis

The evidence in support of the City’s assertions of personal

liability against Braum for the zoning and Health and Safety

Code violations during the summary judgment proceedings was

limited. We will therefore assume that it was insufficient to

demonstrate that Braum was personally liable for the zoning

code and Health and Safety Code violations.

But the issue of Braum’s personal liability, as opposed to

that of the Trust, for the penalties was revisited by the parties

and the trial court during the penalty phase. At that point, the

City had introduced further evidence showing that, prior to the

filing of the civil actions, Braum had received notice of the

illegality of the dispensaries and demands that they cease

operation. The City’s evidence also showed that the sale and

distribution of marijuana nevertheless continued at each

property, causing the City to file the civil actions against the

dispensaries and Braum. The illegal activity at each property,

however, continued unabated. The City then obtained a

preliminary injunction against Braum concerning the continued

illegal activity by the Emerald dispensary at the Sherman Oaks

property and, when the illegal activity persisted, the City

obtained from the trial court an order to show cause. The City’s

remedies evidence further showed that the Emerald dispensary

was conducting business within 35 feet of an elementary school,

an additional Municipal Code violation, and that at least one

complaint had been made about a grow operation at that

dispensary, the existence of which Braum denied.

When the evidence introduced during the remedies phase is

viewed together with the evidence submitted in support of the

41

summary judgment motion, it supported a reasonable inference

that Braum was personally at fault for the zoning and Health

and Safety Code violations, either because he intentionally

allowed those uses to continue despite notice and demand that

they cease, or because his conduct in response to the notices,

demands, and civil actions rose to the level of negligent disregard

of the ongoing violations. The trial court therefore did not err in

finding Braum personally liable for the civil penalties and other

relief imposed against him in each of the judgments.

IV. DISPOSITION

The judgment is affirmed. Plaintiff is awarded costs on

appeal.

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.

42

Filed 5/22/20

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B289603, B289604

Plaintiff and Respondent, (Los Angeles County

Super. Ct. Nos.

v. BC467194, BC467495)

DANIEL BRAUM et al., as ORDER MODIFYING OPINION

Executors, etc., and as Trustees, AND CERTIFYING OPINION FOR

etc., PARTIAL PUBLICATION

Defendants and Appellants.

THE COURT:

Good cause appearing, the opinion in the above entitled

matter, filed on April 22, 2020, is hereby modified as follows:

1. The caption shall be modified as reflected in the

caption of this order.

1

2. On page 2, second paragraph, second line, replace

“clause” with “clauses of the federal and state

constitutions”.

3. On page 2, footnote 1, delete the first word “Michael”.

4. On page 3, footnote 4, replace “subdivision (d).” with

“subd. (d).”

5. On page 7, first full paragraph, second line, replace

“Boulevard,” with “Boulevard in” and seventh line,

replace “(Emerald)” with “(Emerald dispensary)”.

6. On page 8, first paragraph, seventh line, remove

comma after “dispensary” and remove “dba City

Organic Remedies,” and ninth line insert

“dispensary” after “(Ventura”.

7. On page 9, first paragraph, fourth line, replace

“Emerald” with “the Emerald dispensary” and sixth

line, replace “Ventura” with “the Ventura

dispensary”.

8. On page 13, footnote 12, second line, replace

“property” with “dispensary”.

9. On page 15, last word of the full paragraph, insert

single quotation mark before the final double

quotation mark.

10. On page 16, first full paragraph, first line, replace

“requests for summary adjudication” with “motion”.

11. On page 17, footnote 18, second line, replace

“adjudication” with “judgment”.

12. On page 18, at the only full paragraph, fifth line,

replace “Emerald” with “Sherman Oaks” and seventh

line, replace “Ventura” with “Studio City”.

2

13. On page 19, second paragraph, replace “violation at

the Emerald and Ventura” with “violations at the

Sherman Oaks and Studio City”.

14. On page 20, first line, insert “and” between “;” and

“current”.

15. On page 24, second paragraph, sixth line, replace

“Penal” with “Pen.”.

16. On page 25, second full paragraph, eighth line,

replace “underling” with “underlying”.

17. On page 32, first paragraph, third and fourth lines,

remove “in the trial court” and sixth line, remove

close parenthesis after “729.”

18. On page 40, ninth line, replace “).” with “.)”

19. On page 40, in the full paragraph, in both the ninth

line and 17th line, insert “[Prob. Code,] between “§§”

and “18001”.

20. On page 41, first line, replace “assertions” with

“assertion”.

21. On page 41, last two lines, and page 42, first line,

replace, “When the evidence introduced during the

remedies phase is viewed together with the evidence

submitted in support of the summary judgment

motion, it supported” with “Viewed together, the

evidence introduced during the remedies phase and

during the summary judgment proceedings

supported”.

The filed opinion was not certified for publication in the

Official Reports. Upon application of respondent and a third-

3

party, and for good cause appearing, it is ordered that the opinion

shall be partially published in the Official Reports.

Pursuant to California Rules of Court, rule 8.1105(b), this

opinion is certified for publication with the exception of the

Discussion parts C and D. There is no change in the judgment.

BAKER, Acting P. J. MOOR, J. KIM, J.

4

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.

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