Filed 7/29/16 Greenhouse Herbal Center v. City of LosAngeles CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


GREENHOUSE HERBAL CENTER LLC,                                        B261909

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BS131798)
         v.

CITY OF LOS ANGELES,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Amy D. Hogue, Judge. Affirmed.

         Alan M. Goldberg for Plaintiff and Appellant.

         Michael N. Feuer, City Attorney, Terry P. Kaufmann-Macias, Assistant City
Attorney and Steven N. Blau, Deputy City Attorney for Defendant and Respondent.


                               ____________________________________
       This matter is the latest in a series of lawsuits filed against the City of Los Angeles
(City) over its attempts to regulate medical marijuana businesses within its borders. In its
second amended complaint, Greenhouse Herbal Center LLC (Greenhouse) mounted a
facial challenge to a repealed ordinance and alleged it was provided insufficient notice to
register as a medical marijuana business under that ordinance. The complaint was
dismissed without leave to amend, primarily on timeliness and mootness grounds.
We affirm the judgment.
                           PROCEDURAL BACKGROUND1
       Greenhouse is a cooperative of patients and caregivers operating a medical
marijuana dispensary on Hollywood Boulevard. Greenhouse and other medical
marijuana cooperatives came about after the voters of the State of California approved
Proposition 215, known as the Compassionate Use Act of 1996. The Compassionate Use
Act provides immunity from prosecution under two sections of the Health and Safety
Code for the possession and use of marijuana for medical purposes. (Health & Saf. Code,
§ 11362.5, subd. (b).) The state legislature expanded the criminal immunities set forth in
the Compassionate Use Act in the Medical Marijuana Program Act. (Health & Saf.
Code, § 11362.7 et seq.) Greenhouse began operation as a collective in 2006.
       In 2007, the City passed Ordinance No. 179027 (the Interim Control Ordinance)
banning all medical marijuana dispensaries in the City with the exception of those
lawfully operating dispensaries which were established before the ordinance’s effective
date and which chose to register with the city clerk. Greenhouse chose to register and
continue operating. The Interim Control Ordinance expired by operation of law on
September 15, 2007.


1
       The facts are largely taken from the second amended complaint filed by
Greenhouse on July 31, 2014. We also provide in this opinion a severely truncated
account of the legal history surrounding medical marijuana in California. More
comprehensive discussions of medical marijuana legislation may be found in City of
Riverside v. Inland Epire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th
729, 739 and Safe Life Caregivers v. City of Los Angeles (2016) 243 Cal.App.4th 1029
(Safe Life Caregivers).

                                              2
       In 2010, the City passed Ordinance No. 181069 (the Grandfather Prior
Registrant Ordinance), which required all collectives to register and capped the maximum
number of collectives in the City at 70, to be proportionally distributed by population.
(L.A. Mun. Code, former § 45.19.6.2.) Greenhouse again registered as required under
the ordinance. The City then sent a letter to Greenhouse dated August 25, 2010, which
informed Greenhouse it had met the requirements to register under the Grandfather Prior
Registrant Ordinance and could continue to operate. The City further informed
Greenhouse, “the City will now seek judicial consideration of the City Clerk’s
application of LAMC §45.19.6.2.C.1, through a lawsuit involving those Collectives who
have been classified as ineligible to register and receive priority order. [¶] We will
notify you again when the matters of eligibility and priority order are either provisionally
considered or rejected by the court. Only at that time will a priority list be made
available and pre-inspections will be able to commence. Until then, you are not
precluded from continuing your interim operation as a Collective as long as you
comply with all other provisions of California State Law. Nothing in this letter shall
be construed as a grant of any permanent or vested right to continue operation; nor shall
this letter be construed as permission to conduct activities that are otherwise illegal under
state or local law.” The City thereafter requested additional information from
Greenhouse on December 7, 2010, to which Greenhouse timely responded. The
Grandfather Prior Registrant Ordinance sunseted on June 7, 2012.
       On December 10, 2010, the Superior Court issued an injunction finding portions
of the Grandfather Prior Registrant Ordinance invalid. In response to the injunction, the
City passed Ordinance 181530 (the Grandfather/Lottery Ordinance) on January 21, 2011,
as an urgency measure. It required all collectives in operation on or before September
14, 2007, to register between February 14, 2011 and February 18, 2011, to participate in a
lottery. Greenhouse did not receive notice from the City to submit or file anything in
connection with the Grandfather/Lottery Ordinance. As a result, Greenhouse failed to
fulfill the registration requirements under the Grandfather/Lottery Ordinance. It learned



                                              3
of the registration requirements from other collectives who received letters dated March
7, 2011, demanding their closure. Greenhouse did not receive a similar letter.
       Greenhouse brought suit against the City on May 3, 2011, challenging the
Grandfather/Lottery Ordinance. The Grandfather/Lottery Ordinance was repealed in
August 2012, during the course of the litigation. The City subsequently passed
Ordinance 182443, calling for a special election on new regulations for medical
marijuana businesses. The measure, known as Proposition D (Prop. D), was approved by
the voters on May 21, 2013. (L.A. Ord. No. 182443.) Prop. D “enact[ed] a materially
new ordinance that (a) prohibits medical marijuana businesses, but (b) grants a limited
immunity from the enforcement of its prohibition to those medical marijuana businesses
that do not violate the restrictions set forth in this ordinance[.]” (L.A. Mun. Code
45.19.6.) Under Prop. D, medical marijuana businesses must be registered under both the
Interim Control Ordinance and the Grandfather/Lottery Ordinance. (Safe Life
Caregivers, supra, 243 Cal.App.4th at p. 1037.) Because Greenhouse never registered
under the Grandfather/Lottery Ordinance in 2011, it was ineligible to operate under
Prop. D.
       Greenhouse filed a first amended complaint on January 31, 2014, one and a half
years after the Grandfather/Lottery Ordinance sunset and one year after Prop. D came
into effect. Shortly thereafter, it filed a verified second amended complaint on July 31,
2014, alleging the following causes of action, listed in order: (1) Declaratory and
injunctive relief on the ground the Grandfather/Lottery Ordinance violated Government
Code section 65858, subdivision (f);2 (2) Declaratory and injunctive relief on the ground


2
       Government Code section 65858 governs the implementation of interim
ordinances as urgency measures and provides, among other things, that “upon
termination of a prior interim ordinance, the legislative body may adopt another interim
ordinance pursuant to this section provided that the new interim ordinance is adopted to
protect the public safety, health, and welfare from an event, occurrence, or set of
circumstances different from the event, occurrence, or set of circumstances that led to the
adoption of the prior interim ordinance.” (Gov. Code, § 65858, subd. (f).)


                                             4
the Grandfather/Lottery Ordinance violated Government Code section 65853;3
(3) Declaratory and injunctive relief on the ground the Grandfather/Lottery Ordinance
violated equal protection; (4) Declaratory and injunctive relief on the ground the
Grandfather/Lottery Ordinance violated due process rights; (5) Declaratory and
injunctive relief on the ground the Grandfather/Lottery Ordinance violated the right to
association; (6) Declaratory and injunctive relief on the ground the Grandfather/Lottery
Ordinance impaired vested contractual rights; (7) Declaratory and injunctive relief,
preliminary and permanent injunction on the ground the Grandfather/Lottery Ordinance
did not apply to Greenhouse; (8) Petition for writ of administrative mandamus;
(9) Misrepresentation;4 (10) Promissory estoppel; and (11) Declaratory and injunctive
relief on the ground the Grandfather/Lottery Ordinance violated due process and equal
protection under Los Angeles City Charter section 251.
       In addition to facial challenges against the ordinance, Greenhouse alleged the City
promised, but failed, to provide it sufficient notice of the filing requirements under the
Grandfather/Lottery Ordinance. Instead, the City assured Greenhouse it had fulfilled all
registration requirements and it would be notified if anything more was needed.
Greenhouse alleged it was “subjected to eviction activity due to the authorities pressuring
Greenhouse’s landlord to evict Greenhouse and notification to Greenhouse to cease its
operation.” Although Greenhouse did not receive a letter demanding its closure, it
believed the City was “seeking to prevent Greenhouse from operating, erroneously and
wrongly, with collectives that were deemed ineligible.” Greenhouse made no mention of
Prop. D in its verified second amended complaint.
       The City demurred to the second amended complaint primarily on the ground the
Grandfather/Lottery Ordinance sunseted in 2012, over a year before the second amended
complaint was filed, and thus Greenhouse’s challenge to it was moot. Moreover, the City


3
       Government Code section 65853 outlines the manner of adoption and amendment
of zoning ordinances.
4
       Greenhouse withdrew its ninth cause of action in its opposition to the demurrer.

                                              5
complained there was no actual controversy in that it had not closed Greenhouse and the
second amended complaint acknowledged Greenhouse’s continued operation. The trial
court granted the demurrer without leave to amend, reasoning, among other things, that
the challenge to the Grandfather/Lottery Ordinance was moot and Greenhouse had failed
to state a cause of action. Greenhouse timely appealed.
                                        DISCUSSION
I.     Standard of Review
       A demurrer tests the sufficiency of the complaint; that is, whether it states facts
sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e); Friedland
v. City of Long Beach (1998) 62 Cal.App.4th 835, 841-842.) The trial court may consider
all material facts pleaded in the complaint and matters of which it may take judicial
notice.5 However, it may not consider contentions, deductions or conclusions of fact or
law. (Code Civ. Proc., § 430.30, subd. (a); Moore v. Conliffe (1994) 7 Cal.4th 634, 638.)
“Where the complaint’s allegations or judicially noticeable facts reveal the existence of
an affirmative defense, the ‘plaintiff must “plead around” the defense, by alleging
specific facts that would avoid the apparent defense. Absent such allegations, the
complaint is subject to demurrer for failure to state a cause of action . . . .’ [Citation.]”
(Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824.)
       We review de novo a dismissal resulting from a demurrer. (Kong v. City of
Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1038.)
We also conduct an independent review of the trial court’s interpretation of municipal
law, including the relevant City ordinances. (Barner v. Leeds (2000) 24 Cal.4th 676,
683.) Plaintiffs bear the burden of proving the trial court erred in sustaining the
demurrer. (Ibid.)

5
       The City moved for this court to take judicial notice of L.A. Municipal Code
sections 21.01 and 21.50 relating to business tax registration certificates. Because we
find these portions of the Municipal Code to be irrelevant to our analysis, the request is
denied. Greenhouse also sought judicial notice of its landlord’s unlawful detainer action
against it, including the complaint, the answer, and the judgment. We likewise deny the
request.

                                               6
II.    Greenhouse Does Not Have Any Vested Rights Under the Compassionate
       Use Act
       On appeal, Greenhouse contests the trial court’s ruling on numerous grounds. In a
70-page opening brief, Greenhouse lists 15 different reasons the trial court erred in
sustaining the demurrer, some of which were argued below and some of which were not.
But, it identifies the “main issue [as] whether GH had any rights under [the
Compassionate Use Act] legislation,” positing “[t]he issue of vested rights is the crux of
the issue on appeal.”
       We first dispense with this contention based on clearly applicable precedent.
The California Supreme Court addressed precisely this issue in City of Riverside v. Inland
Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729 (City of
Riverside). There, the high court held the Compassionate Use Act and the Medical
Marijuana Program Act did not preempt a city’s zoning provisions declaring a medical
marijuana dispensary to be a prohibited use within city limits. (Id. at p. 752.) The court
explained these state laws did not grant a right of access to marijuana for medicinal use or
override the zoning, licensing, or police powers of local jurisdictions. (Id. at pp. 759-
760.) Thus, “[t]he sole effect of the statute’s substantive terms is to exempt specified
medical marijuana activities from enumerated state criminal and nuisance statutes. Those
provisions do not mandate that local jurisdictions permit such activities.” (Id. at pp. 760-
761; see also Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214
Cal.App.4th 1534, 1554 (Conejo Wellness Center) [Compassionate Use Act does not
create a broad right to cultivate, distribute or otherwise obtain marijuana without
hindrance or inconvenience.]; City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153,
1170-1171 [Compassionate Use Act did not create “‘constitutional right to obtain
marijuana’”].)
       Having addressed the overarching theory behind Greenhouse’s appeal, we now
turn to the allegations contained in the second amended complaint to determine whether a
cause of action has been stated. We conclude it has not and the City’s demurrer was
properly sustained.

                                              7
III.   Facial Challenges: First through Fifth and Eleventh Causes of Action
       Greenhouse alleges facial challenges to the Grandfather/Lottery Ordinance in its
first through fifth and eleventh causes of action. We find these challenges moot.
       None of the allegations address Prop. D, the ordinance in effect at the time the
first6 and second amended complaints were filed. Instead, Greenhouse challenged the
Grandfather/Lottery Ordinance, which it acknowledged was repealed. Facial challenges
to repealed laws are moot. (Burke v. Barnes (1987) 479 U.S. 361, 363; O’Neal v.
Seabury (1938) 24 Cal.App.2d 308 (O’Neal); Howard Jarvis Taxpayers Assn. v. City of
Los Angeles (2000) 79 Cal.App.4th 242, 249 [taxpayer association’s claim for injunctive
and declaratory relief to prevent future collection of registration fee rendered moot by
city’s revocation of fee requirement].) “It is well settled that when a cause of action rests
upon a statute, ‘“the repeal of the statute destroys the right unless the right has been
reduced to final judgment or unless the repealing statute contains a saving clause
protecting the right in a pending litigation.”’” (Cross v. Bonded Adjustment Bureau
(1996) 48 Cal.App.4th 266, 275 (Cross).) Additionally, “‘[r]epeal or modification of a
statute under attack, or subsequent legislation, may render moot the issues in a pending
appeal.’” (Jordan v. County of Los Angeles (1968) 267 Cal.App.2d 794, 799.)
       This is because it is settled that “‘the duty of this court, as of every other judicial
tribunal, is to decide actual controversies by a judgment which can be carried into effect,
and not to give opinions upon moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the matter in issue in the case before it.’”
(Consol. Etc. Corp. v. United A. Etc. Workers (1946) 27 Cal.2d 859, 863 quoting from
Mills v. Green (1895) 159 U.S. 651, 653.) Thus, when an event occurs which renders it
impossible for this court, if it should decide the case in favor of plaintiff, to grant him any
effectual relief, the matter is moot. (Ibid.)




6
      Although the first amended complaint is not included in the record, it is
undisputed the first amended complaint contained no allegations regarding Prop. D.

                                                8
       Case law is illustrative. In O’Neal, supra, 24 Cal.App.2d 308, the plaintiffs
sought an injunction to prevent the county of Madera from enforcing the provisions of an
ordinance regulating inspections for tuberculosis in cattle, contending the ordinance
conflicted with state law on the same subject. However, the county was specifically
excluded from the provisions of the state law due to insufficient funds. As a result, the
county enacted the ordinance and the plaintiffs filed their suit. The matter was dismissed
upon the county’s demurrer. (Id. at p. 309.) While the matter was on appeal, the state
brought the county within the law from which it had previously been excluded,
abrogating the county ordinance. The court dismissed the appeal as moot. (Id. at pp.
311-312.)
       Likewise, in Covenant Media, Cal. v. City, Huntington Park. CA (C.D. Cal. 2005)
377 F.Supp.2d 828, the plaintiff sign company filed an action against the City of
Huntington Park challenging an ordinance regulating advertising signs. Huntington Park
had denied the plaintiff’s applications to display advertising signs based on this
ordinance. After the plaintiff sued, the city adopted a new sign ordinance. The district
court held, “[b]ecause the repeal of a statute generally demonstrates irrefutably that
enforcement of the statute will not resume, ‘[t]he complete repeal of a challenged statute
renders a request for an injunction against application of that statute moot.’” (Id. at
p. 834.) However, the district court refused to dismiss the complaint without leave to
amend because the plaintiff was entitled to seek damages from the city for the previously
denied applications and had the right to amend the pleading to challenge the new sign
ordinance. (Id. at pp. 840-842.)
       The challenge to the Grandfather/Lottery Ordinance is similarly moot due to its
repeal in 2012. Greenhouse’s right has not been reduced to final judgment nor does the
Grandfather/Lottery Ordinance contain a saving clause. (Cross, supra, 48 Cal.App.4th at
p. 275.) There is no relief which could be granted even if we were to find the
Grandfather/Lottery Ordinance invalid on one of the myriad theories advanced by
Greenhouse. In actuality, the Grandfather/Lottery Ordinance has been invalid since its
repeal in 2012.

                                              9
       However, Prop. D incorporates the Grandfather/Lottery Ordinance’s registration
requirement within its provisions. Thus, an argument can be made that Greenhouse is
challenging Prop. D by its allegations against the Grandfather/Lottery Ordinance.
Greenhouse has never alleged that Prop. D is invalid due to the failures in the
Grandfather/Lottery Ordinance however, the City even noted in its demurrer that the
“Second Amended Complaint does not directly challenge Prop. D.”
       Greenhouse also fails to adequately incorporate a challenge to Prop. D on appeal.
Greenhouse makes a single reference to Prop. D in its opening brief. In a footnote, it
argues, “Prop. D suffers from the same violations as the [the Grandfather/Lottery
Ordinance].” In its reply brief, Greenhouse argues that Prop. D does not change the
analysis provided in the AOB because “had [Greenhouse] filed its [Notice of Intent to
Register] timely per Ordinance 181530 it would not have been ordered to shut down
under Prop. D.” Even if we very liberally construe these statements to mean that by
challenging the Grandfather/Lottery Ordinance, Greenhouse is also challenging Prop. D,
that is not the same as making an allegation in the second amended complaint. It is
Greenhouse’s burden to state its case, on appeal and below. It has failed to do so.
       In any event, the challenges made by Greenhouse to the Grandfather/Lottery
Ordinance do not naturally transfer to Prop. D. For example, in the first cause of action,
Greenhouse alleged the Grandfather/Lottery Ordinance was invalid because it was an
interim control zoning ordinance in violation of Government Code section 65858. Prop.
D is not an interim control ordinance and Government Code section 65858, subdivision
(f) does not apply to it. Further, Greenhouse asserts due process and equal protection
claims about the Grandfather/Lottery Ordinance without explaining whether and how
these facial claims equally apply to Prop. D, which did not adopt the entirety of the
Grandfather/Lottery Ordinance, only its registration requirement.
       Neither is Greenhouse entitled to amend the complaint to allege a challenge to
Prop. D. Whether a demurrer should be sustained with or without leave to amend turns
on whether “there is a ‘reasonable possibility that the defect [in the dismissed complaint]
can be cured by amendment.’” (Harrison v. City of Rancho Mirage (2015) 243

                                            10
Cal.App.4th 162, 172.) “‘The burden of proving such reasonable possibility is squarely
on the plaintiff.’” (Ibid.) Greenhouse has not—and cannot—sustain that burden. First,
Greenhouse did not request to amend below nor was that argument advanced in its
opening brief. Consequently, to the extent Greenhouse believes it is entitled to amend its
complaint, it has forfeited that claim by not timely presenting it.7 (Department of
Corporations v. Superior Court (2007) 153 Cal.App.4th 916, 935.)
       Even if not forfeited, Greenhouse is time-barred from amending to assert a
challenge to Prop. D. Government Code section 65009, subdivision (c)(1)(B) sets a 90-
day limitations period to “attack, review, set aside, void, or annul the decision of a
legislative body to adopt or amend a zoning ordinance.” Upon expiration of the time
limit, “all persons are barred from any further action or proceeding.” (Gov. Code,
§ 65009, subd. (e).) Greenhouse is well past the time to challenge Prop. D.
       Greenhouse attempts to circumvent the 90 day statute of limitations by
characterizing Prop. D as a public safety ordinance, rather than a zoning ordinance.
Under Government Code section 65850, subdivision (a), “[t]he legislative body of any
county or city may, pursuant to this chapter, adopt ordinances that . . . (a) [r]egulate the
use of buildings, structures, and land as between industry, business, residences, open
space . . .” Prop. D obviously regulates the use of buildings, structures and land within
the city by providing limited immunity for medical marijuana businesses located a certain
distance from residential zones, schools and other sensitive uses, such as parks, libraries,
religious institutions, and child care facilities, among other regulations. (L.A. Mun.
Code, § 45.19.3.3(L) and (O).) Similar ordinances have been held to be zoning
ordinances. (See Conejo Wellness Center, supra, 214 Cal.App.4th at p. 1548.) Further,
it is presumed that the enactment of a zoning ordinance is justified under the local police
power and adapted to promote the public health, safety, morals, and general welfare.
(Lockard v. Los Angeles (1949) 33 Cal.2d 453, 460.) Therefore, Greenhouse’s

7
       Greenhouse, for the first time, sought leave to amend in its reply brief. Issues
raised for the first time in a reply brief are forfeited. (Campos v. Anderson (1997) 57
Cal.App.4th 784, 794.)

                                              11
characterization of the ordinance as one to promote public safety does not obviate its
status as a zoning ordinance.
       Because Greenhouse’s facial challenges to the Grandfather/Lottery Ordinance are
moot, we need not reach the merits of these claims, including Greenhouse’s chief
complaint, whether sufficient notice was given of the registration requirements under the
Grandfather/Lottery Ordinance. We also decline to address the issues raised for the first
time on appeal and not argued or alleged below: Bane Act violations, invited error, and
forfeiture.
IV.    Impairment of Vested Contractual Rights: Sixth Cause of Action
       In Greenhouse’s sixth cause of action for impairment of vested contractual rights,
Greenhouse contends the Grandfather/Lottery Ordinance “unlawfully interferes and
impairs its patient members, the landlord and Greenhouse of their respective contractual
obligations.” Greenhouse alleges the Grandfather/Lottery Ordinance violated Article 1,
Section 10 of the United States Constitution and Article 1, Section 9 of the California
Constitution, both of which prohibit bills of attainder, ex post facto laws and laws
impairing the obligation of contracts. Although not alleged in the second amended
complaint, Greenhouse also includes ex post facto and bill of attainder arguments in its
appeal. For reasons discussed above, Greenhouse’s sixth cause of action fails for
mootness.
       Further, Greenhouse has failed to state a cause of action under any of those
theories. The Grandfather/Lottery Ordinance does not impair a vested contractual right
because use of medical marijuana or operation of a medical marijuana business is not a
vested right. (City of Riverside, supra, 56 Cal.4th at p. 753 [the Compassionate Use
Act’s substantive provisions created no “‘broad right to use [medical] marijuana without
hindrance or inconvenience’”]; Conejo Wellness Center, supra, 214 Cal.App.4th 1534.)
       Neither is the ordinance a bill of attainder or ex post facto law. “A bill of attainder
has been defined as a ‘legislative act which inflicts punishment without a judicial trial’;
and an ex post facto law is one which, among other things, may either aggravate a crime,
make it greater than it was when committed, or which changes the punishment therefor

                                             12
and inflicts a greater punishment than was provided for when the crime was committed.”
(People v. Camperlingo (1924) 69 Cal.App. 466, 471 quoting Cummings v. Missouri
(1867) 71 U.S. 277, 323.) Greenhouse has failed to allege facts supporting either theory
in the second amended complaint.
         First, the prohibition against ex post facto laws generally embraces criminal cases
only. (Carpenter v. Pennsylvania (1855) 58 U.S. 456, 463, Foster v. Board of Police
Commissioners (1894) 102 Cal.483, 490.) To the extent it applies to a civil matter, the
law must nevertheless impose a punishment to constitute an ex post fact law. (Ellis v.
Dept. of Motor Vehicles (1942) 51 Cal.App.2d 753.) In Ellis, the court held an ordinance
was not an ex post facto law when it provided that certain convictions occurring prior to
the effective date of the ordinance could be considered for the purpose of suspending a
driver’s license. The court explained that the ordinance did not impose any punishment
for past offenses. Instead, “[i]t merely directs that the applicant’s past conduct, of a sort
obviously germane to the question in hand, be taken into consideration in passing on his
application for a driver’s license and that the application can be denied when his conduct
has been such that a denial would reasonably be in the public interest.” (Id. at p. 759.)
Likewise, the Grandfather/Lottery Ordinance is not an ex post facto law simply because it
does not punish anyone for past offenses. Instead, it properly allows for past conduct to
be taken into consideration in allowing medical marijuana businesses to continue
operating. (420 Caregivers, LLC v. City of Los Angeles (2012) 219 Cal.App.4th 1315,
1338.)
         Second, a law must also impose a punishment before it may be deemed a bill of
attainder. In Garner v. Board of Public Works (1951) 341 U.S. 716, the court held a City
Charter provision terminating the employment of city employees who had previously
advocated overthrow of the government was not a bill of attainder. The court was
“unable to conclude that punishment is imposed by a general regulation which merely
provides standards of qualification and eligibility for employment.” (Id. at p. 722.)
Likewise, we are unable to conclude that punishment is imposed by a regulation which



                                              13
merely provides standards of qualification and eligibility for operating a medical
marijuana business.
V.     Declaratory Relief: Seventh Cause of Action
       Greenhouse’s seventh cause of action sought declaratory relief, a preliminary
injunction, and a permanent injunction on the ground it is not operating a medical
marijuana collective as defined under the Grandfather Prior Registrant Ordinance and the
Grandfather/Lottery Ordinance because its members do not cultivate marijuana.
Although this is an as-applied challenge to the Grandfather/Lottery Ordinance rather than
a facial challenge, it is nevertheless moot because no relief is available. No action has
been taken against Greenhouse under the authority provided by a repealed ordinance.
Therefore, no relief may be granted to Greenhouse even if we were to hold the
Grandfather/Lottery Ordinance did not apply to it on these grounds. More importantly,
Prop. D clearly encompasses Greenhouse’s activities since it defines a medical marijuana
business as “[a]ny location where marijuana is cultivated, processed, distributed,
delivered, or given away to a qualified patient, a person with an identification card, or a
primary caregiver.” (L.A. Mun. Code, § 45.19.6.1(A).) Greenhouse has failed to state a
claim on this basis.
VI.    Writ of Mandate: Eighth Cause of Action
       Greenhouse seeks a writ of administrative mandamus in its eighth cause of action
to compel the City “to allow Greenhouse to operate as a lawful medical marijuana
collective in accordance with applicable California law and compel the admission of
Greenhouse to the use and enjoyment of the rights to which Greenhouse is entitled as a
medical marijuana collection, and from which greenhouse has been unlawfully precluded
by [the City].” The petition fails for the reasons discussed above: it is moot and there
exists no right or entitlement to cultivate, distribute or otherwise obtain marijuana
without hindrance or inconvenience. (City of Riverside, supra, 56 Cal.4th at pp. 759-760;
Conejo Wellness Center, supra, 214 Cal.App.4th at p. 1554; City of Claremont v. Kruse,
supra, 177 Cal.App.4th at pp. 1170-1171.)



                                             14
VII.   Estoppel: Tenth Cause of Action
       In the tenth cause of action for estoppel, Greenhouse alleges it relied to its
detriment on the City’s assurance that it would “notify you again when the matters of
eligibility and priority order are either provisionally considered or rejected by the court.”
When the City did not notify Greenhouse of the new registration requirement under the
Grandfather/Lottery Ordinance, Greenhouse failed to register. Due to the alleged
misrepresentation, Greenhouse contends the City is estopped from using Greenhouse’s
failure as a basis to force its closure. We find no estoppel claim has been asserted on
these facts.
       The court’s analysis in Cal. Cigarette Concessions v. City of L. A. (1960) 53
Cal.2d 865 is instructive. There, a cigarette vendor requested a refund from the city for
overpayment of sales tax based on an ongoing legal challenge to the tax. When the
vendor inquired about the status of its refund request, the city clerk replied, “‘Your claim
is based upon points included in the Belridge Oil Company suit. Since final outcome of
this case is still undecided, no action can be taken by this office. Upon receipt of a final
decision, we will take further action in this matter. If you have any other inquiries, let us
know.’” (Id. at p. 869.) The vendor’s attorney responded, “‘I assume from your letter,
that upon the final outcome of the Belridge Oil Company case, you will make a decision
as to our claim. I am further assuming that no claim of defense will be made by you for
lack of filing suit until that time.’” (Ibid.) In response, the clerk advised the attorney,
“‘your client would be protected best by the filing of a suit against the City within the
statutory period . . . .’” (Id. at p. 871, italics omitted.)
       When the vendor brought suit after the statute of limitations had run, the city
asserted its claim was untimely. The vendor contended the city was estopped from
relying on the statute of limitations due to its representations that it would do nothing
until the court had made a decision on the taxpayer case. The California Supreme Court
held estoppel had not been established, finding certain conditions were necessary for an
estoppel: “the party to be estopped must be apprised of the facts; the other party must be
ignorant of the true state of the facts; the party to be estopped must have intended that its

                                                15
conduct be acted upon, or so act that the other party had a right to believe that it was so
intended; and the other party must rely on the conduct to its prejudice.” (Cal. Cigarette
Concessions v. City of L. A., supra, at p. 869.) The high court found there was nothing
upon which to base an estoppel claim due, in part, to the fact there was nothing to show
the city intended the vendor to rely upon any of its statements. (Ibid.)
       There is likewise nothing in the City’s letter to indicate Greenhouse could rely
upon the City to advise it of any changes in the law relating to medical marijuana.
Greenhouse interprets the City’s letter as an assurance that it will be notified in the event
of any change to its eligibility to operate. That interpretation is at odds with the actual
words contained in the letter. The City merely assured Greenhouse it would “notify you
again when the matters of eligibility and priority order are either provisionally considered
or rejected by the court.” It further advised Greenhouse, “[n]othing in this letter shall be
construed as a grant of any permanent or vested right to continue operation; nor shall this
letter be construed as permission to conduct activities that are otherwise illegal under
state or local law.” At most, the City promised to notify Greenhouse about the outcome
of the cases challenging the Grandfather Prior Registrant Ordinance. There was no
assurance the City would notify it of all changes to medical marijuana laws, including
any new ordinances. A claim for estoppel has not been stated.
                                      DISPOSITION
       The judgment is affirmed. The City to recover its costs on appeal.




                                                   BIGELOW, P.J.
We concur:


                     FLIER, J.




                     GRIMES, J.

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