420 Caregivers, LLC v. City of Los Angeles, No. B230436.

CourtCalifornia Court of Appeals
Writing for the CourtWe concur: BIGELOW
Citation143 Cal.Rptr.3d 754
Parties420 CAREGIVERS, LLC et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, Defendant and Appellant.
Decision Date19 September 2012
Docket NumberNo. B230436.

143 Cal.Rptr.3d 754

420 CAREGIVERS, LLC et al., Plaintiffs and Respondents,
CITY OF LOS ANGELES, Defendant and Appellant.

No. B230436.

Court of Appeal, Second District,
Division 8.

July 3, 2012.
As Modified July 19, 2012.

Review Granted Sept. 19, 2012.

Background: Medical marijuana collectives and their members brought action against city to enjoin ordinance restricting such collectives. The Superior Court, Los Angeles County, No. BC433942, Anthony J. Mohr, J., granted preliminary injunction. City appealed.

Holdings: The Court of Appeal, Sortino, J., held that:

(1) ordinance did not create a suspect class under equal protection clause;

(2) ordinance was not subject to occupation preemption;

(3) criminal enforcement provision of ordinance does not contradict Medical Marijuana Program Act (MMPA);

(4) prohibition against collectives with four or more members does not contradict MMPA;

(5) prohibition against collectives with four or more members does not violate procedural due process; and

(6) ordinance's record-keeping requirements do not violate members' state constitutional right to privacy.

Reversed and remanded.

[143 Cal.Rptr.3d 761]Carmen A. Trutanich, City Attorney, Jane E. Usher, Assistant City Attorney, Steven Blau, Colleen M. Courtney and Charles D. Sewell, Deputy City Attorneys, for Defendant and Appellant.

Best Best & Krieger, Irvine, Jeffrey V. Dunn and Lee Ann Meyer for League of California Cities and California State Association[143 Cal.Rptr.3d 762]of Counties as Amici Curiae on behalf of Defendant and Appellant.

D R Welch Attorneys at Law, Los Angeles, David R. Welch; Norris & Galanter, Los Angeles, and Douglas F. Galanter for Plaintiffs and Respondents 420 Caregivers, LLC, 420 Collective, 420 Highway Pharmacy Inc., American Sobriety Inc., Buddha Bar Collective, Compassionate Caregivers of San Pedro, Exclusive Caregivers of California Inc., Galaxy Caregivers Group LLC, Green Joy Inc., Green Leaf Collective, Healers on 3rd Inc., Herbal Medicine Care Inc., Herbal Remedies Caregivers Inc., The Hills Caregivers, Holistic Cannabis Collective, JEG Inc., Wilshire Medical Marijuana Collective, Medical Wellness Center Inc., Medical Marijuana Collective, Natural Ways Always, Nature's Wonder Caregivers Group Inc., The Shop at Greenbush, Starbudz, Stargate Collective Medical Marijuana & Collective, Sunset Junction Organic Medicine Medical Marijuana Collective, Trinity Holistic Caregivers Inc., Valley Hollistic Caregivers Inc., 818 NPO, A–1 Organic Collective, AKH LLC, Always 420, American Eagle Collective II, BB Collective Inc., Buds on Melrose, California Organic Collective, Green Horizon Collective, Green Secret Garden, Herbal Health Resource Center, House of Kush, HTA Happenings, Le Peu, Love & Spirit Care Center Inc., Organic Healing Center Inc., Sunland Organic Pharmacy, Sunny Day Collective, NPO, Liberty Bell Temple II Inc., Helping Hint Caregivers, Herbal Love Caregivers on the Boulevard, Hollywood's Compassionate Caregivers, Infinity Philanthropy Global, LAHC 3 Collective, Pacoima Recovery Collective Inc., Royal Herb Merchant, T.L.P.C., Traditional Herbal Center Inc. Collective Caregivers, Universal Caregivers Inc., West Valley Caregivers, Westwood Organics, Metal Horns, Inc., Los Angeles Community Collective, Better Alternative Treatment, Montana Caregivers Inc., G Art Gallery Collective Inc., Venice Alternative Healing Collective, Van Nuys Health Clinic, Private Organic Therapy, Advanced Pain Solutions, Herbal Medicine for You, Inc., Green Magic Collective, Best Quality Herbal Medicine, Inc., HCC–Herbal Compassionate Caregiver, Inc., and Green Dot Medicinal Cannabis Patients Group.

Law Offices of Stanley H. Kimmel, Northridge, Stanley H. Kimmel and Alison Minet Adams for Plaintiffs and Respondents Melrose Quality Pain Relief, Inc., Abdul Ahmed, Robina Bashir, Herbalology Inc., Sean Cardillo, Safe Life Caregivers, Josean Posey, New Era Caregivers, Maz Gilardian, Kush Korner V, Inc., Peter Pietrangelia, God's Gift, Andrew Kang, Downtown Natural Caregivers, Yun Kang, The Meds Merchant, Inc., South Bay Wellness Network, Relief Corp. Inc., Healthy Herbal Care, Inc., and Herbal Nutrition Inc.

Kumin Sommers, San Francisco, Matthew W. Kumin, Ramsey Hanafi; and Alison Minet Adams for Plaintiffs and Respondents Kevin Anderson, Laron J. Clarke III, Earl Stein, Sandra Mallut, Rafael Carrera Oliva, Dennis Nichols, Donna Henderson, Carlos Cisneros, Kimberly Tornero, Michael Helfin, Shirley Eberle and John Conroy.


Appellant in this case is the City of Los Angeles (City). Respondents are various collectives and individual members of collectives (Collectives) currently engaged in the cultivation, distribution, or use of medical[143 Cal.Rptr.3d 763]marijuana within City limits.1 In the court below, the Collectives filed various separate lawsuits seeking to enjoin enforcement of City Ordinance No. 181069 (Ordinance), passed by the City Council on January 26, 2010, and approved by the Mayor on February 3, 2010. The Ordinance regulates the number and geographic distribution of medical marijuana collectives within City limits. It also imposes a number of other regulations on the operation of medical marijuana collectives within City limits.

The trial court consolidated the various separate lawsuits and, after multiple hearings, preliminarily enjoined enforcement of portions of the Ordinance on the following grounds: (1) violation of the federal right to equal protection; (2) preemption by state law; (3) violation of the state right to due process; and (4) violation of the state right to privacy. The City now appeals from the trial court's preliminary injunction.

For the reasons that follow, and based upon considerable guidance received from cases decided and a statute enacted after the trial court rendered its decision, we reverse the trial court's order granting the request for a preliminary injunction. We remand this case for further proceedings consistent with this opinion.


Both the trial court's order and the issues raised in this appeal involve the interplay of various state and local laws, enacted at different times since 1996. Accordingly, a lengthy statutory and procedural background follows.

1. The Compassionate Use Act

In 1996, California voters approved Proposition 215, known as the Compassionate Use Act (CUA), which is codified in Health and Safety Code section 11362.5. The CUA provides that no physician shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. (§ 11362.5, subd. (c).) The CUA also immunizes specific persons from specific prosecutions under the Health and Safety Code:

“[Health and Safety Code] [s]ection 11357, relating to the possession of marijuana, and [s]ection 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.” (§ 11362.5, subd. (d).)

The CUA defines “primary caregiver” as the person designated by the patient “who has consistently assumed responsibility for the [patient's] housing, health, or safety.” (Health & Saf.Code, § 11362.5, subd. (e).)

Significantly, for purposes of this case, the CUA also provides that “[n]othing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others,[143 Cal.Rptr.3d 764]nor to condone the diversion of marijuana for nonmedical purposes.” (Health & Saf.Code, § 11362.5, subd. (b)(2).) It also expressly “encourage[s] 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.” (§ 11362.5, subd. (b)(1)(C).)

2. The Medical Marijuana Program Act

In 2003, the California Legislature enacted the Medical Marijuana Program Act (MMPA), codified in Health and Safety Code sections 11362.7 through 11362.83. The MMPA was passed, in part, to clarify the scope of the CUA and promote its uniform application “among the counties within the state.” (Stats.2003, ch. 875, § 1.)

To accomplish these goals, the MMPA empowers the Department of Health Services to create a voluntary program for the issuance of identification cards to “qualified patients.” (Health & Saf.Code, § 11362.71, subd. (a)(1).) “Qualified patients” are defined as those persons “entitled to the protections” of the CUA. (§ 11362.7, subd. (f).)

The MMPA then grants immunity from prosecution to an expanded list of offenses so long as the underlying conduct involves medical marijuana use:

“Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under [Health and Safety Code] [s]ection[s] 11357 [possession], 11358 [cultivation], 11359 [possession for sale], 11360 [sales], 11366 [maintaining a place], 11366.5 [providing a place], or 11570 [nuisance].” (§ 11362.765, subd. (a), italics added.)

The individuals to whom this immunity applies are expanded beyond the patients and primary caregivers protected by the predecessor CUA: the MMPA grants immunity to (1) qualified patients, persons with identification cards, and the primary caregivers of such persons; (2) individuals who provide assistance to persons in these three groups in administering medical marijuana; and (3) individuals who provide assistance to persons in these three groups in acquiring the skills necessary to cultivate or administer medical marijuana. (Health & Saf.Code, § 11362.765, subd. (b).)

Significantly, the MMPA also expressly extends immunity to the same enumerated Health and Safety Code sections for additional, “collective,” conduct:

“Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and...

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