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




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE

CITY OF BREA,
                                                                       G046638
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. 30-2011-00444494)
         v.
                                                                       OPINION
CLOUD 9, Inc.,

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, David R.
Chaffee, Judge. Affirmed.
                   Law Offices of Matthew S. Pappas, Mathew S. Pappas; Anthony Curiale,
John J. Murphy, III, and Donna Bader for Defendant and Appellant.
                   James L. Markman, City Attorney; Richards Watson & Gershon,T. Peter
Pierce and Julie A. Hamill for Plaintiff and Respondent.
                                          *                  *                  *
              Under Code of Civil Procedure section 731, which authorizes city officials
to file a nuisance abatement action under Civil Code section 3480 in the name of the
People of California, the City of Brea (the city) filed a nuisance cause of action against
Cloud 9, Inc. (Cloud 9) for operating a medical marijuana dispensary in violation of a
city ordinance banning such property uses. On summary judgment, the trial court upheld
the ban against Cloud 9’s claim it was preempted by state medical marijuana law, found
Cloud 9’s dispensary activities therefore constituted a per se nuisance based on the ban,
entered a permanent injunction against the dispensary, and Cloud 9 now appeals. During

the pendency of this appeal, the California Supreme Court concluded in City of Riverside
v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729 (Inland
Empire) that local governments may ban medical marijuana dispensaries without
triggering preemption by the voters’ enactment of the Compassionate Use Act of 1996
(CUA; Health & Saf. Code, § 11362.5; all further statutory references are to this code
unless noted) or California’s Medical Marijuana Program (MMP; § 11362.7 et seq.).

              In supplemental briefing, Cloud 9 contends Inland Empire is not dispositive
because it did not resolve whether state medical marijuana law preempts local
governments from enforcing dispensary bans with misdemeanor penalties typically used

to enforce other zoning bans. In a similar vein, Cloud 9 argues Inland Empire left
unanswered other related questions, including: (1) whether a city “can remove a
defense[] created by the MMP[]”; (2) ”whether Brea can do indirectly what it cannot do

directly;” (3) whether Brea’s ordinance “burdens criminal defenses allowed by the
MMP[]”; and (4) whether the city’s ordinance is “overbroad.” Cloud 9 also argues the
city’s ban is preempted because it amounts to discrimination against seriously ill patients

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

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contentions, however, are simply variations on Cloud 9’s core preemption claim. Inland
Empire determined state medical marijuana law does not preempt total local bans, and we
are bound by that conclusion. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455 (Auto Equity).) We therefore affirm the judgment.
              Having noted the relevant background at the outset, including the city’s
initiation of nuisance proceedings in the People’s name and Cloud 9’s claim the People
intended in the CUA and MMP to promote the very activity the city banned as a
nuisance, we turn to our discussion.

                                             I
                                       DISCUSSION
A.     Cloud 9 Fails to Distinguish Inland Empire
              As noted at the outset, Inland Empire’s authorization of total local bans on
medical marijuana dispensaries requires that we affirm the judgment. (Auto Equity,
supra, 57 Cal.2d at p. 455.) Cloud 9’s attempts to distinguish Inland Empire are

unavailing.
              Cloud 9 argues that the immunities the MMP provides from criminal
prosecution for state law offenses “bars local governments from using penal legislation to

prohibit the use of property for medical marijuana purposes.” The city’s municipal code
banning dispensaries provides that “[t]he violation of any of the provisions of this code
. . . constitutes a nuisance, and may be abated by the city through civil process by means

of [a] restraining order, preliminary or permanent injunction, or in any other manner
provided by law for the abatement of such nuisances,” including criminal misdemeanor
penalties. (Brea City Code, § 1.04.010, italics added.)



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              The MMP does not preempt this punishment. The Legislature expressly
amended the MMP in 2011 to state that “[n]othing in this article shall prevent a city or
other local governing body from . . . [¶] (a) Adopting local ordinances that regulate the
location, operation, or establishment of a medical marijuana collective” [and] “(b) The
civil and criminal enforcement of” valid local ordinances. (§ 11362.83.) Dispensary
bans are valid under Inland Empire, and Cloud 9’s contention therefore fails. (Inland
Empire, supra, 56 Cal.4th at p. 753, fn. 8 [quoting amended § 11362.83 providing for
criminal enforcement of local ordinances].)

              Cloud 9 raises other arguments that are simply a variation on its original
claim that state medical marijuana law preempted the city’s dispensary ban. Cloud 9
argues that a city cannot remove defenses created by the MMP, cannot “burden[]” the
immunities provided by the MMP, cannot “do indirectly what it cannot do directly,” and
that the ordinance is constitutionally overbroad. Under Inland Empire, however, a city is
fully authorized to take direct action against dispensaries by banning them altogether; it

need not resort to any indirect measures. Ensuing misdemeanor prosecution does not
remove or burden any defenses created by the MMP because the punishment is for
violation of a valid city ordinance, not state criminal law. Inland Empire also summarily

rejected in a footnote any notion the ban impinged on sick patients’ due process rights or
constitutional right to travel by concluding the right of cities and counties to reject a
“‘one size fits all’” local distribution plan in the MMP would not “so impede the ability

of transient citizens to obtain access to medical marijuana . . . .” (Inland Empire, supra,
56 Cal.4th at p. 756, fn. 10.) Finally, QPA’s assertion the city improperly “amended” the
MMP is misplaced. The city did not purport to amend the MMP, but instead passed a

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

                                               4
law. As they do not affect the controlling nature of Inland Empire, the parties’ requests
for judicial notice are all denied, including as noted specifically in footnote 1 below.

C.     The City’s Ban Does Not Violate the Disabled Persons Act
              Cloud 9 argues the city’s dispensary ban violates the DPA by
discriminating against disabled and seriously ill persons who establish a medical need for

marijuana based on a physician’s recommendation. Cloud 9 distinguishes between
discrimination and accommodation, noting the latter “requires more than simply not
doing something,” and instead involves “positive action that requires an expenditure or
change.” (Cloud 9’s italics.) Cloud 9 observes that portions of the DPA “require[] that
certain government entities and businesses positively accommodate the disabled,” but
Cloud 9 notes it relies only on “the parts of the DPA that prohibit discrimination on the

basis of disability.” Specifically, Cloud 9 relies on the DPA’s “sweeping prohibition of
practices by local governments that discriminate against people with disabilities”
(Cloud 9’s italics) by providing in Civil Code section 54, subdivision (c), that “no

qualified individual with a disability shall . . . be subjected to discrimination by any such
entity.”
              The problem with Cloud 9’s position is that the Supreme Court has
determined the medical marijuana activities “authorized by law” under California’s
medical marijuana program (§ 11362.768, subd. (e)) may be countermanded by local
government bans. The court held in Inland Empire that a city ban on medical marijuana
dispensaries is not preempted by California medical marijuana law. The practical effect
of Inland Empire is that a disabled person may not look to a dispensary as a source of
lawful medical marijuana because its medical marijuana activities are not “authorized by
law” until they are ratified by local law. In other words, state medical marijuana law not

                                              5
only incorporates local dispensary regulations and restrictions (§ 11362.768, subd. (e)),
but also outright bans. Cloud 9 complains this interpretation of state medical marijuana
law effectively grants local authorities a license to discriminate against disabled persons
by foreclosing a lawful source of medical marijuana to treat their conditions. But under
Inland Empire, a source is not lawful unless endorsed by local officials. We are bound
by that conclusion.1 (Auto Equity, supra, 57 Cal.2d at p. 455.)
                                             III
                                      DISPOSITION

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




                                                   ARONSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



FYBEL, J.




       1       We deny as irrelevant Cloud 9’s request filed on October 16, 2013, for
judicial notice of a revised U.S. Department of Justice memorandum and other
documents suggesting a more lenient federal approach to dispensaries that are not
engaged in drug trafficking but instead serve the medical needs of their patients. The
documents do nothing to affect the conclusion in Inland Empire that state law does not
preempt local bans on dispensaries.
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