Filed 9/17/15 Smith v. City of Berkeley CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


CHRISTOPHER SMITH,
         Plaintiff and Appellant,
                                                                         A145281
v.
CITY OF BERKELEY et al.,                                                 (Alameda County
                                                                          Super. Ct. No. RG15757423)
         Defendants and Respondents.


         Appellant Christopher Smith appeals from a trial court order denying his petition
for writ of mandate to vacate and set aside City of Berkeley Resolution No. 66,911-N.S.
Respondent City of Berkeley has moved to dismiss this appeal as premature. For reasons
set forth below, we agree with respondent that appellant’s appeal is not properly before
us at this time and, thus, dismiss it.

                        FACTUAL AND PROCEDURAL BACKGROUND
         Appellant leases property located at 1820-1828 San Pablo Avenue in the City of
Berkeley, where he operates Forty Acres Medical Marijuana Growers’ Collective, a
cannabis collective. Following the issuance to appellant of a notice of public nuisance
and a public hearing before the Berkeley City Council on January 20, 2015, the Berkeley
City Council issued Resolution No. 66,911-N.S., which declared appellant’s cannabis
operation at 1820-1828 San Pablo Avenue a public nuisance under Berkeley Municipal
Code (BMC) 23B.64.020(A) and (B), and ordered it abated.
         On February 5, 2015, appellant filed a Petition for Writ of Mandate and Complaint
for Administrative Mandamus and Traditional Mandamus and Request for Immediate

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Stay; Complaint for Damages and Injunctive Relief. He filed a First Amended Petition
and Complaint on March 5, 2015, seeking the following: (1) a writ of mandate to vacate
and set aside Berkeley City Council Resolution No. 66,911-N.S (first cause of action);
(2) damages under 42 USC section 1983 based upon the denial of due process under the
Fifth and 14th Amendments of the United States Constitution (second cause of action);
(3) damages based upon the denial of due process under Article I, section 7, of the
California Constitution (third cause of action); (4) damages under 42 USC section 1983
based upon the denial of equal protection under the 14th Amendment of the United States
Constitution (fourth cause of action); and (5) damages based upon the denial of equal
protection under Article I, section 7, of the California Constitution (fifth cause of action).
       On April 1, 2015, the trial court entered an order that, inter alia, denied plaintiff’s
cause of action for a writ of mandate on the grounds that the City of Berkeley’s hearing
process comported with due process and that substantial evidence supported its finding of
a public nuisance in this case. In the order, the trial court indicated its intention to assign
the remaining causes of action to a single assignment department of the Superior Court.
Before trial could be held on appellant’s remaining causes of action, however, he filed a
notice of appeal.
                                       DISCUSSION
       As noted above, appellant’s petition for writ of mandate was accompanied by a
complaint for damages, which is still pending. Respondent thus contends this appeal
from the order dismissing the petition for writ of mandate violates the single judgment
rule and must be dismissed. In doing so, respondent relies upon Morehart v. County of
Santa Barbara (1994) 7 Cal.4th 725 (Morehart), which held that “an appeal cannot be
taken from a judgment that fails to complete the disposition of all the causes of action
between the parties even if the causes of action disposed of by the judgment have been
ordered to be tried separately, or may be characterized as ‘separate and independent’
from those remaining.” (Id. at p. 743.) Having reviewed this California Supreme Court
authority, as well as cases that have followed it, we agree with respondent that dismissal
is necessary on the ground that this appeal is not yet ripe. (Ibid.; accord City of Santa


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Monica v. Stewart (2005) 126 Cal.App.4th 43, 59 [an action does not become ripe until
“it reaches, ‘but has not passed, the point that the facts have sufficiently congealed to
permit an intelligent and useful decision to be made’ ”].) Simply put, in direct conflict
with the holding of Morehart, appellant is attempting to appeal a judgment that fails to
complete the disposition of all the causes of action between the parties, given that a
separate trial, estimated to last seven days, is set to go forward on four surviving causes
of action pursuant to which appellant seeks damages based upon alleged violations of his
due process and equal protection rights.1 As such, dismissal of his appeal as premature is
appropriate.
       In so concluding, we acknowledge the California Supreme Court in Morehart,
after deciding the appeal was premature under the single judgment rule, ultimately
decided to reach the merits of the case by treating the appeal as a petition for writ of
mandate. The California Supreme Court based its decision in this regard on the unusual
circumstances presented in that case, including (1) the existence of a significant body of
prior case law indicating the appeal was proper, (2) the fact that both parties, as well as
amici curiae, had fully briefed the controversy on appeal, and (3) the significant impact
the case was expected to have throughout California. (Morehart, supra, 7 Cal.4th at
pp. 744-746.) Here, however, we are not presented with such unusual circumstances.
Despite the fact that respondent fully addressed the issue of the lack of unusual
circumstances in this case when moving to dismiss, appellant has declined to offer any
contrary showing. Nor are we aware of any particular circumstance in this case that
would influence us to treat this appeal as a petition for writ of mandate. Accordingly, for
the reasons provided, we conclude this appeal is premature under Morehart, supra, 7
Cal.4th 725, and must be dismissed.
                                      DISPOSITION
       The appeal is dismissed.

1
       As respondent notes, discovery has yet to begin with respect to the remaining
causes of action and, as such, the parties likely will not be ready for trial for several
months.

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                                               _________________________
                                               Jenkins, J.


We concur:


_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.




Christopher Smith v. City of Berkeley et al., A145281




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