Opinion
H035876
10-25-2011
CITY OF GILROY, Plaintiff and Respondent, v. GOYKO G. KUBUROVICH et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super.Ct.No. CV157867)
Individuals operating a nonprofit corporation opened a medical marijuana dispensary in November 2009 in the City of Gilroy. They had previously applied for a business license and a conditional use permit, which applications were denied by the city. The entity, its principals, and landlords were sued by Gilroy in an action to abate a public nuisance. Gilroy prevailed after filing a motion for summary judgment and the court thereafter entered a judgment that included a permanent injunction.
Appellants assert various claims of error, including claims that the use of the property as a medical marijuana dispensary was a permitted use under the local zoning ordinance and that application of the ordinance to prohibit their dispensary operation was unconstitutional. We reject appellants' challenges and conclude that the court properly found that Gilroy was entitled to judgment on its public nuisance claim. Accordingly, we will affirm the judgment.
PROCEDURAL HISTORY
On November 20, 2009, Gilroy filed a complaint against MediLeaf, a California corporation; MediLeaf's principals, Goyko G. Kuburovich, Patricia E. Kuburovich, Neil J. Forrest; and MediLeaf's landlords, Mike Atkar and Kulwinder Kaur Atkar (collectively, appellants). Gilroy asserted one cause of action to enjoin a public nuisance per se with respect to MediLeaf's operation as a medical marijuana dispensary at 1321-B First Street in Gilroy (premises). Gilroy alleged in the complaint that appellants' operation of the medical marijuana dispensary within the city was in violation of (1) the Gilroy Municipal Code because appellants had failed to procure a business license; (2) federal law; and (3) the Gilroy Zoning Ordinance because use of the premises as a medical marijuana dispensary was not a permitted use. It alleged further that the operation was a public nuisance because of the absence of a license and because it was in contravention of applicable zoning restrictions. Gilroy sought a temporary restraining order, a preliminary injunction, and a permanent injunction preventing appellants from maintaining or operating a medical marijuana dispensary at the premises or at any other location in the city.
On March 18, 2010, Gilroy filed a motion for summary judgment, which appellants opposed. After hearing argument, the court issued its order on July 21, 2010, granting the motion for summary judgment in favor of Gilroy. A judgment was thereafter entered, which included the issuance of a permanent injunction against appellants' operation of a medical marijuana dispensary at the premises or at any other location in Gilroy. Appellants filed a timely appeal from the judgment.
After filing the appeal, appellants filed a motion to stay enforcement of the judgment in the trial court, which was denied. Appellants filed a petition for writ of supersedeas and request for temporary stay in this court, which petition was denied.
FACTS
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.)
On May 8, 2009, MediLeaf, through its principal, Goyko Kuburovich, submitted an application for a business license to Gilroy for the operation of a medical marijuana dispensary to be located at 1207 First Street. MediLeaf later withdrew the application. On June 8, 2009, MediLeaf submitted a second application for a business license for the operation of a medical marijuana dispensary located at 7581 Monterey Street. Gilroy denied the application. It advised MediLeaf that, under section 13.44(a) of the Gilroy Municipal Code, a condition for approval of a business license was that the applicant show that its proposed business complied with all federal, state, and local laws, and that MediLeaf's business of a medical marijuana dispensary contravened federal law. Appellants did not challenge Gilroy's denial of the business license application by filing a mandamus proceeding. Gilroy never issued a business license to MediLeaf or to any of its principals for the operation of a medical marijuana dispensary.
In connection with its summary judgment motion, Gilroy filed a request that the court take judicial notice, pursuant to Evidence Code section 452, subdivision (b), of, among other things, certain provisions of the Gilroy Municipal Code, the Gilroy Zoning Ordinance, and Gilroy Ordinance No. 2010-03. The court granted the request. We likewise take judicial notice of these legislative enactments of a municipality. (Evid. Code, §§ 452, subd. (b), 459, subd. (a); see also Madain v. City of Stanton (2010) 185 Cal.App.4th 1277, 1280, fn. 1.)
On September 14, 2009, MediLeaf, through its representative, James Suner, submitted an application to Gilroy for a conditional use permit (CUP) to operate a medical marijuana dispensary at a third proposed location, 7101 Monterey Road. On September 24, 2009, Gilroy returned the CUP application—effectively rejecting it— because (1) Gilroy's Zoning Ordinance did not list a medical marijuana dispensary as a category of use, and (2) the City Code did not allow a business to operate that could not show compliance with all laws and the proposed use did not comply with federal law or Gilroy's Zoning Ordinance. Appellants did not challenge Gilroy's rejection of the CUP application by filing a mandamus proceeding.
The city council held three meetings between August and October 2009 in which it considered the adoption of a medical marijuana dispensaries ordinance. Forrest, Goyko Kuburovich, Suner, and appellants' attorney spoke at the three city council meetings on behalf of MediLeaf in favor of the operation of medical marijuana dispensaries in Gilroy. The city council decided at the third meeting not to adopt a new ordinance specifically regulating the operation of medical marijuana dispensaries.
On November 9, 2009, Gilroy became aware that MediLeaf had opened as a medical marijuana dispensary at the premises. Two days later, Gilroy served a cease and desist letter on Goyko Kuburovich and Forrest. In the letter, it contended that MediLeaf was operating in violation of federal law and in violation of Gilroy's Municipal Code and Zoning Ordinance. On November 16, 2009, the city council adopted a resolution directing the city attorney to commence an action to enjoin MediLeaf's continued operation of the premises as a medical marijuana dispensary.
The premises are located in a zoning district classified as "C3 Shopping Center Commercial District" (C3). Gilroy's Zoning Ordinance provides that property under the C3 classification may be used as specifically provided in the "Commercial Use Table" (Gilroy Zoning Ord., § 15.20); that Table identifies specific uses that are permitted for C3 property and uses that are permitted only after a CUP is issued by the City's Planning Commission (§ 19.13(a)). The Table does not include the sale of marijuana as an authorized use for C3 property. Gilroy interprets the Table as meaning that all uses other than those specified in the Table as being permitted or permitted after obtaining a CUP are prohibited uses. A provision of the Zoning Ordinance allows a party to make a written request for a determination from the Planning Commission that a use not listed in the Table "is similar in character to a described use for the purpose of applying the district regulations and conditions." (§ 19.12.) MediLeaf made no such request for a similar use determination with respect to its proposed operation of a medical marijuana dispensary.
All further unlabeled section references are to the Gilroy Zoning Ordinance unless otherwise indicated.
As of March 16, 2010 (two days before Gilroy filed its summary judgment motion), MediLeaf was still operating as a medical marijuana dispensary at the premises.
DISCUSSION
I. Standard of Review
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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).)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).) Once that 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.)In ascertaining whether one or more triable issues of material fact exist, the declarations and other evidence offered in opposition to summary judgment are liberally construed, while the movant's evidence is construed strictly. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.) 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.) In doing so, we "consider[] all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) 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.)
Judicial interpretation of a municipal ordinance involves a question of law and is subject to independent review. (People ex rel. v. Beaumont Investment, Ltd. (2003) 111 Cal.App.4th 102, 113.) Likewise, the issue of whether a municipal ordinance is preempted by state law is a legal question subject to de novo review. (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2006) 136 Cal.App.4th 119, 129.)
II. Whether Summary Judgment Motion Was Premature
We first address a procedural issue that appellants raise. They argue, as they did below, that Gilroy failed to comply with the requirements of the Code of Civil Procedure because the motion for summary judgment was filed less than 60 days after appellants generally appeared in the case. Section 437c, subdivision (a) of the Code of Civil Procedure provides that a motion for summary judgment or summary adjudication "may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed . . . ." Appellants argue that because they filed their answer to the complaint on January 22, 2010, and Gilroy's motion was filed on March 18, 2010, the motion was premature under Code of Civil Procedure section 437c and should not have been considered by the court. Appellants' argument is without merit.
The 60-day hold for bringing a summary judgment motion under Code of Civil Procedure section 437c centers on the date of the general appearance of the opposing party or parties. (Code Civ. Proc., § 437c, subd. (a).) "A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority of the court to proceed. It does not require any formal or technical act. [Citations.]" (Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1756 (Mansour)[counsel's appearance at case management conference constituted general appearance].) For example, a defendant's conducting discovery in order to oppose an application for preliminary injunction on its merits constitutes a general appearance. (Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 251 (Factor Health); see also Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 53-54 [collecting cases finding existence of general appearance in various circumstances].)
Here, appellants filed written opposition to Gilroy's application for preliminary injunction, which application was denied after a hearing on December 15, 2009. This opposition is evidenced further by the fact that the order denying the application for preliminary injunction, filed January 12, 2010—which was approved as to form by appellants' counsel (and appears to have been drafted by appellants' counsel as well)— recited that the individual defendants and MediLeaf were represented by counsel in connection with that proceeding. This activity plainly constituted "participat[ion] in an action in some manner which recognize[d] the authority of the court to proceed." (Mansour, supra, 38 Cal.App.4th at p. 1756.) Thus, appellants' general appearance occurred more than 60 days before the filing of the summary judgment motion. Gilroy's motion was not prematurely filed under Code of Civil Procedure section 437c, subdivision (a).
Gilroy points out that even before appellants filed opposition to the preliminary injunction application, MediLeaf committed acts constituting a general appearance— namely, applying for an order shortening time to take depositions necessary to oppose the injunction application. While this action would constitute a general appearance on behalf of MediLeaf (Factor Health, supra, 132 Cal.App.4th at p. 251), it would not apply to the individual appellants who were not named in the discovery application.
Gilroy also argues that under Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1054, a summary judgment motion is deemed "made" when it is heard by the court; since the motion was not heard until July 1, 2010, it was made more than 60 days after appellants' January 22, 2010 answer to the complaint and was thus not premature. While this would furnish a basis for rejecting appellants' prematurity claim, since appellants generally appeared in the case by opposing the preliminary injunction application in December 2009, we need not decide the matter under Sadlier.
III. 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.)
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 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. Whether Gilroy Was Entitled to Judgment
Appellants argue that the Gilroy Zoning Ordinance should be construed in a manner that did not prohibit their operation of a medical marijuana dispensary. They assert further that the ordinance, to the extent that it is construed as prohibiting medical marijuana dispensaries, is in conflict with, and is preempted by state law. They also argue that the ordinance violates their federal constitutional right to equal protection under the law.
We note that appellants' challenge to the city's administrative actions (denial of business license and CUP applications) and to the constitutionality of the Gilroy Zoning Ordinance here 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 [medical marijuana 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 Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734 (Qualified Patients)[medical marijuana 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 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.)
In County of Sonoma v. Superior Court, supra, 190 Cal.App.4th 1312, 1330, the court reversed a trial court's decision that the ordinance violated equal protection, concluding that the dispensary's action was barred under Government Code section 65009, subdivision (c)(1)(B), because the mandamus proceeding was not filed within 90 days of the effective date of the challenged ordinance.
It is undisputed that appellants did not challenge the denial of their September 2009 CUP application by, for instance, filing an administrative mandamus proceeding. Further, appellants did not bring suit to challenge the validity of the Zoning Ordinance. Instead of challenging the city's actions directly, appellants opened their dispensary in defiance of local laws, resulting in the city's filing of this abatement action. Thus, our review of the Gilroy Zoning Ordinance, including interpretation of the law and discussion of appellants' constitutional claims, is limited to making a determination of whether the city established below that operation of MediLeaf constituted a nuisance per se, i.e., whether a violation of the ordinance occurred and whether the ordinance is constitutional. (City of Costa Mesa v. Soffer, supra, 11 Cal.App.4th at pp. 382-383.) We therefore do not consider more global issues such as whether a municipality may enact or enforce an ordinance absolutely prohibiting the establishment and operation of a medical marijuana dispensary, as that issue is not properly before us. (See Qualified Patients, supra, 187 Cal.App.4th at p. 753 [court declines to determine whether city ordinance is preempted by state medical marijuana laws].)
1. Whether nuisance per se was established
Appellants contend that when the Gilroy Zoning Ordinance is read as a whole, MediLeaf's medical marijuana dispensary operation should be construed as a permitted use of the C3-zoned premises. They argue that its "usage is consistent with permitted uses when viewed as a whole." Gilroy argues that MediLeaf's operation on the premises constituted an unpermitted use under the Zoning Ordinance and therefore a public nuisance because (1) the operation of a medical marijuana dispensary was not a permitted use (or use subject to permission through a CUP application) of C3-zoned property, and (2) appellants did not apply for and obtain from the Planning Commission a similar use determination. We disagree with appellants and conclude that the evidence, in light of our interpretation of the Zoning Ordinance, clearly established Gilroy's public nuisance per se claim.
a. interpretation of Gilroy Zoning Ordinance
Courts interpret municipal ordinances in the same manner and pursuant to the same rules as 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., supra, 111 Cal.App.4th at p. 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.)
There is a recital in the Gilroy Zoning Ordinance that it "is a specific statement of permissible uses of land by zoning district designed to control the use, type, bulk, height, space and location of buildings and land. The Zoning Ordinance is the primary tool by which the City implements the policies of the General Plan." (§ 1.41.) Section 3.10 identifies 26 classes of zoning districts, C3 being one of them. It is undisputed that the premises where MediLeaf operated were zoned C3.
Gilroy's Zoning Ordinance provides, under the heading "Permitted Uses and Conditional Uses," as follows: "Land in the C3 Shopping Center Commercial District may be used as provided in the Commercial Use Table, Section 19.10 of this Ordinance. Conditional uses may be permitted with a conditional use permit, which may be issued by the Planning Commission . . . ." (§ 15.20.) The Table lists some 54 specific approved uses of C3 property, and eight specific uses that may be allowed through submission of a CUP application. (§ 19.13(a).) There is no listing in the Table for a use of C3-zoned property as a medical marijuana dispensary.
As explained in the Zoning Ordinance: "The intent of [the] Commercial Use Table is to clearly and precisely designate permitted uses and conditional uses within each of the following districts: [¶] . . . [¶] C3 Shopping Center Commercial . . ." (§ 19.11.) (Caps. omitted.) Further, there is a provision in the Zoning Ordinance, apparently intended to ameliorate any inflexibility in the application of the Table, allowing for uses similar to ones specifically designated in the Table. "The Commercial Use Table indicates whether a variety of uses are unconditionally permitted, permitted only with a conditional use permit from the Planning Commission, or permitted only under special conditions. The Planning Commission, or its designee, shall determine, upon written request, whether or not any use not listed in the Commercial Use Table is similar in character to a described use for the purpose of applying the district regulations and conditions." (§ 19.12.) It is undisputed that MediLeaf made no written request to the Planning Commission for a similar use determination with respect to its proposed operation of a medical marijuana dispensary. And section 53.30 of the Zoning Ordinance provides that ". . . any use of any land, building or premises 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 and the City Attorney of the City shall, upon order of the City Council, immediately commence action or proceedings for the abatement and removal and enjoinment thereof in the manner provided by law . . . ."
As noted, the Zoning Ordinance provides that the Table is intended "to clearly and precisely designate permitted uses and conditional uses within" the C3 zoning district (among other districts). (§ 19.11.) It would be pointless for the city to have such a regulatory scheme—including a Table identifying permitted and conditionally permitted uses, and a procedure for making a determination that other uses not specified in the Table are permitted uses because they are similar to specified approved uses—unless it were construed as defining permitted uses with the corollary that unlisted uses are not permitted.
This intent is evidenced further by the manner in which the city has interpreted and applied the Zoning Ordinance. The zoning administrator, David Bischoff—who is charged with the responsibility of interpreting the Zoning Ordinance (§ 49.10)— interprets the Table to provide that any use not specifically enumerated as being permitted or permitted subject to obtaining a CUP is a prohibited use. According to Bischoff, defining permitted and unpermitted uses of particularly zoned property "is one of the key purposes of the . . . Table." This evidence of the city's interpretation of its own Zoning Ordinance "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 a conditional use permit, has applied the Zoning Ordinance consistently with its interpretation that uses not listed in the Table as permitted uses or uses subject to obtaining a CUP are prohibited uses of C3-zoned property.
We conclude that the language of the Zoning Ordinance presents a clear and unmistakable intent by the city to control the uses of C3-zoned property and to limit the uses to those expressly identified in the Table (at section 19.13(a)) as permitted uses or conditionally permitted uses.
b. Naulls and Kruse decisions
City of Corona v. Naulls (2008) 166 Cal.App.4th 418 (Naulls)closely parallels our case and is therefore instructive. There, the City of Corona, like Gilroy here, had zoning laws that identified particular uses that were permitted in particular zoning areas and did not specify a medical marijuana 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—as is the case in Gilroy—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 medical marijuana dispensary, had misled the city 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 marijuana dispensaries were not a land use permitted under its zoning laws. (Ibid.)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.)
The city 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 medical marijuana dispensary. (Id. at p. 424.) The trial court noted that the defendants had concealed from the city 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 the City'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 the City as a nonpermitted, nonconforming use." (Id. at p. 425.) The trial court held that "because any nonenumerated use is presumptively prohibited under the City'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 the city's municipal code; as such, the operation was a nuisance per se. (Ibid.; see also id. at pp. 429, 432.) The appellate court held that the city's zoning ordinance demonstrated "an intent by the City 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 medical marijuana dispensary—was required to comply with 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. . . .' [Citation.]" (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.)
The defendants in Naulls also noted that a Kern County zoning ordinance specifically provided that any use not expressly permitted was a prohibited use; because Corona's municipal code had no provision, the defendants argued that unlisted permitted uses were therefore not prohibited. (Naulls, supra, 166 Cal.App.4th at p. 431, fn. 7.) The court rejected this argument, finding it "unpersuasive" in light of its application of the expressio unius est exclusio alterius canon of construction. (Id. at p. 433.) Similarly, the fact that the Gilroy Zoning Ordinance did not have the language found in the Kern County ordinance does not alter our view that it was intended under the law at issue here that any uses not expressly listed in the Table as permitted uses or conditionally permitted uses would be deemed prohibited.
City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153 (Kruse)likewise involved a public nuisance claim against a medical marijuana dispensary. There, as here, the defendants' business permit application was denied (id. at p. 1159), and Claremont advised that they needed to seek a code amendment authorizing the nonconforming use (id. at p. 1158). This denial and advice notwithstanding, the defendants opened their medical marijuana dispensary. (Id. at p. 1159.) They did not apply for a code amendment, nor did they request a determination from the city that their use of property was similar to uses authorized under a table contained in the city's land use code. (Ibid.)The city brought an action to abate a public nuisance and prevailed after a trial. (Id. at pp. 1161-1162.) The appellate court affirmed, concluding that the trial court correctly found the existence of a public nuisance per se because (1) Claremont's municipal code prohibited the operation of a business without it having first obtained a tax certificate; (2) the defendants commenced the operation without a business license or tax certificate; (3) the city's land use code expressly prohibited any use of property not specifically enumerated as a permitted use; (4) a medical marijuana dispensary was not an enumerated permitted use; and (5) the municipal code authorized the city to abate as a public nuisance any condition that constituted a violation of the code. (Id. at pp. 1164-1165.)
The trial court in Kruse also held that the dispensary could be enjoined as a public nuisance because it violated the federal Controlled Substances Act (21 U.S.C. § 801 et seq.). (Kruse, supra, 177 Cal.App.4th at p. 1164, fn. 3.) The appellate court declined to decide whether the granting of the injunction on this additional basis was proper; it concluded that the court properly enjoined the dispensary because it was in violation of Claremont's municipal code. (Ibid.)Similarly, here, although Gilroy denied appellants' application for a business license because the proposed business contravened federal law, the court did not decide the case on the basis that MediLeaf's operation violated the Controlled Substances Act. Because the operation of MediLeaf was a nuisance per se in that it violated the Gilroy Zoning Ordinance, we need not decide whether it was a nuisance for the additional reason that the operation violated federal law.
Naulls, Kruse, and the present case therefore involve similar ordinances and similar claims that, notwithstanding zoning laws identifying permitted uses of property that did not mention medical marijuana dispensaries, the defendants' dispensary operation was nonetheless a permitted use under local law. We find Naulls and Kruse to be on point and we adopt the reasoning of those decisions in concluding that MediLeaf's operation as a medical marijuana dispensary was a prohibited use under the Gilroy Zoning Ordinance and therefore constituted a nuisance per se.
The court held further that appellants' operation of a medical marijuana dispensary without a business license constituted a violation of section 13.2 of the Gilroy Municipal Code, and this violation—apart from whether it constituted a public nuisance—provided a separate ground for finding that Gilroy was entitled to injunctive relief. Because we have concluded that Gilroy established that the operation of MediLeaf in violation of the zoning ordinance was a public nuisance per se entitling the city to injunctive relief, we need not address whether injunctive relief was also proper based upon the asserted violation of the municipal code. (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].)
2. Constitutional claim: state law preemption
Appellants contend that state law preempts Gilroy's Zoning Ordinance to the extent that the latter excludes as a permitted use of property the operation of a medical marijuana dispensary. They argue that exclusion of medical marijuana dispensaries is contrary to both the intent of the voters in the passage of 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; (CUA)), and the intent of the Legislature in its enactment of the 2003 Medical Marijuana Program (Health & Saf. Code, § 11362.7 et seq.; (MMP)). Appellants' preemption challenge is without merit.
a. state law preemption generally
The California Constitution provides that "[a] county or city may 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.) Regulation of land use in this state is traditionally viewed as a function of local governments in their exercise of the police power granted under article XI, section 7 of the California Constitution. (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1151 (Big Creek Lumber); see also IT Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal.4th 81, 89: "The power of cities and counties to zone land use in accordance with local conditions is well entrenched.") "In enacting zoning ordinances, the municipality performs a legislative function, and every intendment is in favor of the validity of such ordinances." (Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 460.)
Local legislation that is otherwise valid but which conflicts with state law is preempted and void. (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885.) " 'A conflict exists if the local legislation " '[1] duplicates, [2] contradicts, or [3] enters an area fully occupied by general law, either expressly or by legislative implication.' " ' [Citations.]" (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897 (Sherwin-Williams).)"Local legislation is 'duplicative' of general law when it is coextensive therewith" and "is 'contradictory' to general law when it is inimical thereto." (Id. at pp. 897-898.) The local law contradicts the general law when it "prohibit[s] what the statute commands or command[s] what it prohibits." (Id. at p. 902.) Under the third form of preemption. "local legislation enters an area that is 'fully occupied' by general law when the Legislature has expressly manifested its intent to 'fully occupy' the area [citation], or when it has impliedly done so in light of one of the following indicia of intent: '(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the' locality [citations]." (Id. at p. 898.)
"[W]hen local government regulates in an area over which it traditionally has exercised control, such as the location of particular land uses, California courts will presume, absent a clear indication of preemptive intent from the Legislature, that such regulation is not preempted by state statute. [Citation.]" (Big Creek Lumber, supra, 38 Cal.4th at p. 1149.) The party asserting the claim that the local ordinance is preempted by statute has the burden of proving the existence of preemption. (Ibid.)
b. preemption by the CUA
The CUA provides limited immunity from criminal prosecution for possession of marijuana (Health & Saf. Code, § 11357) and cultivation of marijuana (Health & Saf. Code, § 11358) for two limited classes of persons, those who qualify as medical marijuana patients, and persons who constitute caregivers of such patients. (Health & Saf. Code, § 11362.5, subd. (d); see People v. Mower (2002) 28 Cal.4th 457, 470-471.) The CUA contains no provision requiring a public entity to accommodate medical marijuana dispensaries in its jurisdiction. Indeed, medical marijuana dispensaries are not even mentioned in the CUA. Appellants argue nonetheless that because one of the findings and declarations of the CUA is "[t]o encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana" (Health & Saf. Code, § 11362.5, subd. (b)(1)(C)), the CUA preempts municipalities from land use regulation regarding medical marijuana dispensaries. This contention is without merit.
The CUA reads in its entirety as follows: "(a) This section shall be known and may be cited as the Compassionate Use Act of 1996. [¶] (b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: [¶] (A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. [¶] (B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction. [¶] (C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana. [¶] (2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes. [¶] (c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. [¶] (d) [Health and Safety Code] Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. [¶] (e) For the purposes of this section, 'primary caregiver' means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." (Health & Saf. Code, § 11362.5.)
The Supreme Court has explained that "[t]he [CUA] is a narrow measure with narrow ends." "We must interpret the text with those constraints in mind." (People v. Mentch (2008) 45 Cal.4th 274, 286, fn. 7 (Mentch).)Likewise, the Supreme Court has described the CUA as having "modest objectives." (Ross v. RagingWire Telcommunications, Inc. (2008) 42 Cal.4th 920, 930 [holding CUA did not require employers to accommodate marijuana use by medical marijuana patient].)
The CUA has therefore been construed narrowly by California courts. For instance, the Supreme Court in Mentch rejected a broad reading of the term "responsibility" used to define a caretaker of a patient in Health and Safety Code section 11362.5, subdivision (e), concluding that a person does not satisfy the caretaker role under the statute simply by fulfilling the pharmaceutical need of a patient requiring medical marijuana; rather, the ballot arguments in favor of the initiative suggested that "a caretaking relationship [that was] directed at the core survival needs of a seriously ill patient . . . ." (Mentch, supra, 45 Cal.4th at p. 286; see also People v. Windus (2008) 165 Cal.App.4th 634, 644.) Courts have rejected contentions that the CUA exempted persons from criminal liability in (1) the transportation of marijuana allegedly to be used 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 [had initiative's drafters desired to decriminalize "sale of small amounts of marijuana for approved medical purposes, they could have easily done so"]); and (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).
In People v. Galambos (2002) 104 Cal.App.4th 1147, 1152, the court rejected the defendant's claim that the CUA decriminalized his cultivation of marijuana for his own use and for a cannabis buyers' cooperative, reasoning: "The voter-approved statute carefully delimits the proffered immunity to patients and their primary caregivers. [Citation.] Neither the language of the proposition nor its ballot materials suggest any intent to extend its protections to those who do not qualify thereunder but who purport to supply marijuana to those who do. To the contrary, the proponents' ballot arguments reveal a delicate tightrope walk designed to induce voter approval, which we would upset were we to stretch the proposition's limited immunity to cover that which its language does not." (See also id. at p. 1168 ["ballot materials demonstrate that voters did not intend to extend the immunity to those who distribute marijuana to primary caretakers"].)
Similarly, in People v. Urziceanu (2005) 132 Cal.App.4th 747, 767, the defendant argued that he was permitted under the CUA "to form [a cooperative] to collectively cultivate and possess marijuana for qualified patients and primary caregivers." The court rejected the contention, observing that the language of the statute "lends no support to [the] defendant's contention that 'patients' and their 'caregivers' can collectively pool talents, efforts, and money to create a stockpile of marijuana that is to be collectively distributed." (Id. at p. 768.) In so holding, the court rejected the defendant's argument— also made by appellants here—that the CUA's recitation that it encouraged "federal and state governments to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana" (Health & Saf. Code, § 11362.5, subd. (b)(1)(C)) provided support for his position that the CUA immunized such collectives from criminal liability: "The plan contemplated by this provision is inconsistent with [the] defendant's argument the Compassionate Use Act envisioned the interim proliferation of private enterprises and collectives to provide medical marijuana to patients. To the extent the authors of the initiative wished to include these types of organizations in its ambit, they could have expressly authorized their existence in the statute." (Urziceanu, at p. 769; see also id. at p. 771.)
Clearly, the CUA was intended for the limited purpose of providing immunity from state prosecution for two crimes—possession of marijuana (Health & Saf. Code, § 11357) and cultivation of marijuana (Health & Saf. Code, § 11358)—for qualified patients and their caregivers only. The initiative must be narrowly construed. (Mentch, supra, 45 Cal.4th at p. 286, fn. 7.) In no sense can it be said that the Gilroy Zoning Ordinance is duplicative of (or coextensive with) or contradictory (or inimical) to the CUA. (Sherwin-Williams, supra, 4 Cal.4th at pp. 897-898.) The initiative has nothing to do with land use and makes no mention of medical marijuana dispensaries. Further, there is no basis for claiming that the Zoning Ordinance "enter[ed] an area that is 'fully occupied' by [the CUA because] the [voters have] expressly manifested [their] intent to 'fully occupy' the area [citation], or [because they have] impliedly done so in light of" one of three indicia of intent identified by the Supreme Court. (Id. at p. 898.) There was no expressed intent in connection with the initiative to fully occupy—or even enter—the field of land use, or specifically land use in connection with medical marijuana dispensaries. And no implied intent to occupy the field of land use may be inferred from the initiative.
Given the CUA's narrow focus and the absence of any reference to medical marijuana dispensaries, there is no justification for concluding that the initiative preempted local land use laws, such as Gilroy's Zoning Ordinance. This conclusion is consonant with the reasoning of the Second District Court of Appeal, Division Two. That court similarly held that the CUA neither expressly nor impliedly preempted the zoning and licensing requirements promulgated by the City of Corona that had prevented the defendants from operating a medical marijuana dispensary. (Kruse, supra, 177 Cal.App.4th at pp. 1172-1176.)
c. preemption by the MMP
The MMP, enacted in 2003, "was passed in part to address issues not included in the [CUA], so as to promote the fair and orderly implementation of the [CUA] and to '[c]larify the scope of the application of the [CUA].' [Citations.] 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.) As the court explained, the MMP granted immunity from criminal prosecution to qualified patients and 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 teach how to cultivate, medical marijuana. (Id. at p. 291.)
The legislation also included a voluntary program for the issuance of identification cards to qualified medical marijuana patients and "extended certain protections to individuals who elected to participate in the identification card program . . . , [includ[ing] immunity from prosecution for a number of marijuana-related offenses that had not been specified in the CUA, among them transporting marijuana." (People v. Wright (2006) 40 Cal.4th 81, 93.) And the MMP 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 Health & Saf. Code, § 11362.77.)
The Supreme Court held in People v. Kelly (2010) 47 Cal.4th 1008 that to the extent a portion of the MMP—namely, Health and Safety Code section 11362.77— amended the CUA to burden a defense otherwise available under the initiative by establishing specific quantitative limitations for marijuana possession and cultivation by qualified patients and their caregivers, it was unconstitutional.
In enacting the MMP, the Legislature, in addition to clarifying the scope of the CUA's application and promoting the uniform application of the CUA within counties in the state, sought to "[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects." (Stats. 2003, ch. 875, § 1(b)(3), p. 2.) Appellants rely on this recital in support of their preemption challenge. We reject that contention.
The MMP makes no mention of medical marijuana dispensaries—either in the context of land use or otherwise. As the court explained in Kruse: "Medical marijuana dispensaries are not mentioned in the text or history of the MMP. The MMP does not address the licensing or location of medical marijuana dispensaries, nor does it prohibit local governments from regulating such dispensaries. Rather, like the CUA, the MMP expressly allows local regulation. [Health and Safety Code s]ection 11362.83 of the MMP states: 'Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article.' " (Kruse, supra, 177 Cal.App.4th at p. 1175.) There is therefore no basis for claiming preemption based upon the Gilroy Zoning Ordinance being duplicative of, or contradictory to, the MMP. (See Sherwin-Williams, supra, 4 Cal.4th at pp. 897-898.)
After oral argument in this case, the Second District Court of Appeal (Division Three) decided a case involving a Long Beach ordinance which regulated the establishment and operation of medical marijuana dispensaries. (See Pack v. Superior Court (2011) ___ Cal.App.4th ___ .) The court held that to the extent that the ordinance required permits for medical marijuana collectives and mandated that medical marijuana be analyzed by independent laboratories, the ordinance was preempted by federal law, the Controlled Substances Act (21 U.S.C. § 801 et seq.). Pack has no application here since this case does not involve an ordinance expressly regulating and permitting medical marijuana dispensaries.
Any claim of preemption based on the view that the MMP "fully occupied" the field is likewise meritless. The Legislature did not expressly manifest its intent to fully occupy—or even occupy at all—the field of land use or the specific use of land to operate medical marijuana dispensaries. (See Sherwin-Williams, supra, 4 Cal.4th at p. 898.) We find no implied intent to occupy the field. The area of land use for the operation of medical marijuana dispensaries was not " '(1) . . . so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) . . . partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) . . . partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the' locality [citations]." (Id. at p. 898.) Further, we do not find implicit that the Legislature, in enacting the MMP, intended to fully occupy the field of medical marijuana to the exclusion of any local laws that in any way touched on the subject. To the contrary, Health and Safety Code section 11362.83 is indicative that the Legislature did not intend to fully occupy the field: "Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article."
We note with interest that while this appeal was pending, the Legislature enacted Health and Safety Code section 11362.768, effective January 1, 2011, which recognizes and regulates to some extent medical marijuana dispensaries. The statute reads in part: "No medical marijuana cooperative, collective, dispensary, operator, establishment, or provider who possesses, cultivates, or distributes medical marijuana pursuant to this article shall be located within a 600-foot radius of a school." (Health & Saf. Code, § 11362.768, subd. (b).) Subdivision (f) of the statute reads: "Nothing in this section shall prohibit a city, county or city and county from adopting ordinances or policies that further restrict the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider." And subdivision (g) of the statute provides: "Nothing in this section shall preempt local ordinances, adopted prior to January 1, 2011, that regulate the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider." While the enactment of Health and Safety Code section 11362.768, and in particular subdivisions (f) and (g), further support our conclusion that the MMP does not preempt the Gilroy Zoning Ordinance, given the lack of support for appellants' position, this new statute is not essential to our conclusion.
Our rejection of appellants' MMP preemption claim mirrors the court's treatment of a similar contention in Kruse, supra, 177 Cal.App.4th 1153. There, the court found that the MMP did not expressly preempt "the City's adoption of a temporary moratorium on issuing permits and licenses to medical marijuana dispensaries, or the City's enforcement of licensing and zoning requirements applicable to such dispensaries." (Id. at p. 1175.) The court also held that the MMP did not impliedly preempt Claremont's licensing and zoning efforts, concluding that the statute did not (1) even address land use, zoning, or business licensing issues (ibid.); (2) partially cover the area of medical marijuana to the extent that there was a clear indication that it was " ' "a paramount state concern [that would] not tolerate further or additional local action" ' [citation]" (id. at p. 1176); or (3) partially cover a subject "that ' "is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit" ' to the City. [Citations.]" (Ibid.). The court concluded: "[T]he MMP [does not] compel[] the establishment of local regulations to accommodate medical marijuana dispensaries. The City's enforcement of its licensing and zoning laws and its temporary moratorium on medical marijuana dispensaries do not conflict with the . . . MMP." (Ibid.)
In addition, the Second District Court of Appeal, Division One, recently addressed and rejected a claim that Los Angeles County's zoning, permit, and licensing restrictions applicable to medical marijuana dispensaries were preempted by the MMP. In County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 865 (Hill), the county brought a nuisance action and obtained a preliminary injunction against the defendants, who had opened a medical marijuana dispensary without having first obtained a business license, conditional use permit, and zoning variance. The defendants argued that the CUA and the MMP "fully occup[ied] the field of [medical marijuana dispensary] regulation and thereby preclude[d] the County from enforcing any additional requirements." (Id. at p. 867.) The court found the challenge to be without merit, relying in part (as have we) on the language in Health and Safety Code section 11362.83, finding that the statute "allows a county to regulate the establishment of [medical marijuana dispensaries] and their locations so long as those regulations are consistent with the provisions of the [MMP] . . . ." (Hill, at p. 867.)
The court in Hill also rejected the defendants' preemption argument based upon Health and Safety Code section 11362.775—under which qualified patients and caregivers who associate "in order collectively or cooperatively to cultivate marijuana for medical purposes" are given limited immunity from prosecution for various crimes, including liability for maintaining a nuisance under drug den laws (Health & Saf. Code, § 11570). (Hill, supra, 192 Cal.App.4th at pp. 868-869.) "The limited statutory immunity from prosecution under the 'drug den' abatement law provided by [Health and Safety Code] section 11362.775 does not prevent the County from applying its nuisance laws to [medical marijuana dispensaries] that do not comply with its valid ordinances." "By its terms, the statute exempts qualified patients and their primary caregivers (who collectively or cooperatively cultivate marijuana for medical purposes) from nuisance laws 'solely on the basis of [the] fact' that they have associated collectively or cooperatively to cultivate marijuana for medical purposes. (Italics added.) The statute does not confer on qualified patients and their caregivers the unfettered right to cultivate or dispense marijuana anywhere they choose. The County's constitutional authority to regulate the particular manner and location in which a business may operate [citation] is unaffected by [Health and Safety Code] section 11362.775." (Id. at pp. 868-869.)
"Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570." (Health & Saf. Code, § 11362.775.)
Absent a clear showing that the Legislature intended to preempt the field, we will not find that general laws preempt local ordinances, particularly ones dealing with land use, a matter which is customarily the function of local government. (Big Creek Lumber, supra, 38 Cal.4th at p. 1149; see also Action Apartment Assn, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1242.) No such showing, let alone a clear showing, has been made here. Like the court in Kruse, supra, 177 Cal.App.4th 1153, and Hill, supra, 192 Cal.App.4th 861, we find that the MMP did not preempt the zoning ordinance at issue here.
Appellants state vaguely that Qualified Patients, supra, 187 Cal.App.4th 734 supports their preemption argument. They apparently rely on dictum in that case in which the court found it "odd" that the Legislature would provide, in Health and Safety Code sections 11362.765 and 11362.775, limited statutory immunity from prosecution under the drug den law (Health & Saf. Code, § 11570), "but intend that local legislators could side with their federal—instead of state— counterparts in prohibiting and criminalizing property uses 'solely on the basis' of medical marijuana activities. [Citations.]" (Qualified Patients, at p. 754.) But the court in Qualified Patients expressly declined to reach the question of whether the MMP preempted local legislation (id. at pp. 754-755), and the court's discussion on the subject is merely dictum by which we are not bound. (See Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1155.) Moreover, the circumstances in Qualified Patients are distinguishable. There, the ordinance made it a misdemeanor to own, manage, operate, or participate in the operation of, a medical marijuana dispensary (Qualified Patients, at pp. 741-742.) Here, we are concerned not with criminal sanctions; rather, the issue is one of civil enforcement of a zoning ordinance to abate a public nuisance.
3. Constitutional claim: equal protection
Appellants assert an additional constitutional claim that the Gilroy Zoning Ordinance violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. This contention likewise lacks merit.
An equal protection challenge is generally reviewed under the deferential rational basis standard. As explained by the United States Supreme Court in connection with a challenge to a municipal ordinance regulating food vendors in the French Quarter of New Orleans: "Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude. Legislatures may implement their program step by step, [citation], in such economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations. [Citation.]" (City of New Orleans v. Dukes (1976) 427 U.S. 297, 303.) As explained further, "The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. [Citations.] When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, [citations], and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes." (City of Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 440; see also Hernandez v. City of Hanford (2007) 41 Cal.4th 279, 299 (Hernandez)[equal protection challenge to zoning ordinance evaluated under rational basis standard].)
Since appellants are not members of a protected class, their equal protection challenge here will be successful only if they have "been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." (Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564.) The United States District Court for the Northern District of California has similarly held the rational basis standard applicable to an equal protection challenge to a city's refusal to let a plaintiff open a storefront medical marijuana dispensary. (See Phillips v. City of Oakland (N.D.Cal. Dec. 14, 2007) 2007 U.S. Dist. Lexis 94651 (Phillips).)When courts address equal protection challenges, local legislation " 'carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality.' [Citation.]" (Kadrmas v. Dickinson Public Schools (1988) 487 U.S. 450, 462.) And it is appellants who bear the burden of establishing the invalidity of the classification. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 17.)
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, supra, 41 Cal.4th at p. 296.) As recited in the Zoning Ordinance, the law was intended, among other things, "to assist in providing a definite comprehensive plan for sound and orderly development, and to guide and regulate each development . . . ." (Gilroy Zoning Ord. 1.10(a).) In relation to the General Plan, which "designates appropriate locations and densities for residential, commercial, industrial, agricultural, public, and open space uses . . . , the Zoning Ordinance is a specific statement of permissible uses of land by zoning district designed to control the use, type, bulk, height, space and location of buildings and land. . . . The Zoning Ordinance is intended to be applied to the City based on land use designations established in the General Plan." (Gilroy Zoning Ord. 1.41.) The Zoning Ordinance provides further that "[t]he intent of the C3 Shopping Center Commercial District is to provide areas in the city suitable for commercial uses of a high intensity and of a City or regional character. [C3 b]usinesses . . . should be restricted to those which cater to residents of the entire City and its surrounding region. . . ." (Gilroy Zoning Ord. 15.10.) And, as discussed, ante, the Table to which the Zoning Ordinance refers in section 15.20 in defining permitted uses of C3-zoned property is intended "to clearly and precisely designate permitted uses and conditional uses" within the C3 district (among other districts). (Gilroy Zoning Ord. 19.11.)
The specific equal protection challenge to the Zoning Ordinance is unclear from appellants' brief. Contrary to appellants' claim, the Ordinance does not specifically target medical marijuana collectives. It simply—in keeping with its stated intentions— describes more specifically the different zoning districts, including the C3 district, and identifies particular uses that are permitted and conditionally permitted in the different zoning districts. Such an approach is within Gilroy's police powers and there is a rational basis for the differing treatment that the Zoning Ordinance effects with respect to various proposed uses of property. And to the extent that the Zoning Ordinance, in defining the permitted uses of C3-zoned property, does not list a medical marijuana dispensary, the omission is not arbitrary. Gilroy's failure to list it as a permitted use of C3-zoned property—assuming it to be an intentional omission—finds justification in the record. For instance, a staff report to the city council presented anecdotal evidence of a variety of negative secondary impacts associated with medical marijuana dispensaries operating in other jurisdictions, including public marijuana smoking, resale of marijuana obtained in the dispensary, driving under the influence incidents involving dispensary customers, and some other incidents of crime.
After this public nuisance action was filed, on January 25, 2010, the city council adopted Ordinance No. 2010-03. That law amended the City Code to add a new section 13.65, which provides that a medical marijuana dispensary is a prohibited use of property. (Gilroy City Code, § 13.65(C).) The new ordinance states that it "is declaratory of, clarifies, and affirms existing law." (Gilroy Ord. No. 2010-03, § III.) This subsequent enactment by Gilroy is not a subject matter of this proceeding and we therefore do not address it further in this opinion.
Based upon the record before us, we conclude that the challenged Zoning Ordinance is "reasonable in object and not arbitrary in operation." (Hernandez, supra, 41 Cal.4th at p. 296.) We therefore reject appellants' equal protection challenge. (See Phillips, supra, 2007 U.S. Dist. Lexis, slip opn. at pp. *5-*6 [rejecting plaintiff's claim that city's refusal to allow him to open medical marijuana dispensary violated equal protection].)
4. Other constitutional claims
In addition to preemption and equal protection, appellants make the briefest of references to several other constitutional questions. They refer to "the First Amendment"; "reasonable alternative avenues of communication" (City of Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 50); Medileaf having "property rights and due process rights at issue here"; and "[t]he right to engage in services and the like." Appellants fail to make any cogent constitutional argument with citation to authority on these quoted matters. "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 will not consider these undeveloped, forfeited constitutional 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]; Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 [appellate courts "need not consider an argument for which no authority is furnished"].)
C. Claimed Overbreadth of Permanent Injunction Order
Appellants contend that the permanent injunction that was part of the court's judgment was fatally vague, ambiguous and overly broad. In particular, they assert that (1) portions of the injunction restraining them from maintaining or using the premises for a business in violation of the Gilroy Zoning Ordinance and from operating a business at the premises without a license were "nothing more than an impermissible 'obey the law' injunction"; (2) the portion of the injunction that prohibits appellants from operating a medical marijuana dispensary anywhere in Gilroy is overly broad; and (3) there was no factual basis for enjoining Patricia Kuburovich, Forrest, Mike Atkar, or Kulwinder Kaur Atkar. We reject these challenges.
The portion of the judgment objected to enjoins appellants from "(b) [m]aintaining or using the premises located at 1321-B First Street, Gilroy, California, for business purposes in violation of the Gilroy Zoning Ordinance, including Sections 53.20 and 53.30; and [¶] (c) [o]perating a business at the premises located at 1321-B First Street, Gilroy, California, without a business license in violation of the Gilroy City Code, including Section 13.2 and 13.44(a)."
The portion of the injunction appellants object to here enjoins appellants from "(a) [m]aintaining, using, or operating a medical marijuana dispensary or from otherwise selling marijuana at the premises located at 1321-B First Street, Gilroy, California, or at any other premises in the City of Gilroy."
As pointed out by Gilroy, the record does not reflect that appellants asserted any objection below to the form of the permanent injunction. The prayer of the complaint, insofar as the injunctive relief sought was delineated, contained language virtually identical to that appearing in the judgment. The notice of motion for summary judgment likewise indicated that Gilroy was seeking summary judgment and entry of judgment on its complaint for permanent injunction, with language in the proposed judgment identical to the permanent injunction language ultimately contained in the judgment. Moreover, the judgment contains the signature of appellants' counsel approving the order as conforming with the court's order. Appellants failed to raise any issues it may have had concerning the scope or proposed wording of the permanent injunction in either their opposition to the summary judgment motion, or at the hearing on the motion. Appellants have forfeited their objection to the form of the permanent injunction.
As appellants filed no reply brief, they did not respond to this, or any other point, raised in respondent's brief.
As our high court has explained: " 'An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.' [Citation.]" (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, original italics (Doers).)This principle of forfeiture has been applied to a variety of challenges not raised until the time of appeal. (See, e.g., In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134 [objection to ambiguities in proposed statement of decision]; K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 949-950 [objection to pretrial procedure used by trial court to dispose of claims barred by preemption]; Saville v. Sierra College (2005) 133 Cal.App.4th 857, 872-873 [unasserted issue in opposing summary judgment motion; if forfeiture doctrine not applied, losing parties "could attempt to embed grounds for reversal on appeal into every case by their silence"].)
Appellants had ample opportunity to object that the form of injunction Gilroy sought would improperly restrain them from simply disobeying the law, was too broad, or should not apply to certain individual defendants. Had they timely raised the objections, Gilroy would have had an opportunity to respond to them and the court would have had the ability to address them. Appellants' objections to the form of the injunction have therefore been forfeited. (Doers, supra, 23 Cal.3d at pp. 184-185, fn. 1.)
Even were we to address the merits of appellants' forfeited claims, we would reject them. For instance, the claim that the injunction was overly broad in that it prohibited appellants from operating a medical marijuana dispensary at any other locale in Gilroy besides the premises is without merit. "The trial court's decision to grant a permanent injunction rests within its sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. [Citation.]" (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) Here, it was undisputed that appellants opened the dispensary on the premises after applications for a business license and CUP were denied. Their opening of the dispensary without a CUP or a similar use determination was in defiance of the city and in violation of its Zoning Ordinance. It was thus entirely appropriate for the court to enjoin appellants from operating a dispensary at the premises or anywhere else in Gilroy. The court in Kruse, supra, 177 Cal.App.4th 1153, reached a similar conclusion where the defendants had gone forward with opening a medical marijuana dispensary in violation of local laws: "That the injunction encompasses the entire City, rather than just the specific location where CANNABIS was operated, does not make it overbroad. Given defendants' disregard of the City's licensing and zoning laws, and Kruse's stated intent to operate and actual operation of CANNABIS in violation of those laws, the injunction issued was not an abuse of the trial court's discretion. [Citation.]" (Id. at p. 1180.)
DISPOSITION
The judgment is affirmed.
Duffy, J. WE CONCUR:
Rushing, P.J.
Judge of the Monterey County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.