City of Riverside v. Health

• Decision Date: 09 November 2011
• Docket Number: No. E052400.,E052400.
• Parties: CITY OF RIVERSIDE, Plaintiff and Respondent,v.INLAND EMPIRE PATIENT'S HEALTH AND WELLNESS CENTER, INC. et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

133 Cal.Rptr.3d 363

11 Cal. Daily Op. Serv. 13,799

2011 Daily Journal D.A.R. 16,413

CITY OF RIVERSIDE, Plaintiff and Respondent,

v.INLAND EMPIRE PATIENT'S HEALTH AND WELLNESS CENTER, INC. et al., Defendants and Appellants.

No. E052400.

Court of Appeal, Fourth District, Division 2, California.

Nov. 9, 2011.

Background: City brought action against medical marijuana dispensary (MMD) operators for public nuisance, seeking injunctive relief. The Superior Court, Riverside County, No. RIC10009872, John D. Molloy, J., granted preliminary injunction. Operators appealed.

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

(1) ban on MMDs did not contradict Medical Marijuana Program Act (MMPA);

(2) ban on MMDs was not subject to express field preemption;

(3) ban on MMDs was not subject to implied field preemption; and

(4) MMPA authorizes local governments to enact ordinances totally banning MMDs.

Affirmed.

Law Office of J. David Nick and J. David Nick, San Francisco, for Defendants and Appellants.

Gregory P. Priamos, City Attorney, Neil Okazaki, Deputy City Attorney; Best Best & Krieger, Irvine, Jeffrey V. Dunn and Lee Ann Meyer for Plaintiff and Respondent.

OPINION

CODRINGTON, J.

IINTRODUCTION

Defendants and appellants Inland Empire Patient's Health and Wellness Center Inc., et al.¹ (Inland Empire Center) appeal from a judgment entered in favor of plaintiff and respondent, the City of Riverside (Riverside), after the trial court found that Inland Empire Center's medical marijuana dispensary (MMD) ² constituted a public nuisance per se and issued a preliminary injunction enjoining Inland Empire Center from operating its MMD in Riverside.

Inland Empire Center contends Riverside's ordinance banning MMD's throughout Riverside is preempted by state law; specifically, the Compassionate Use Act of 1996(CUA) (Health & Saf.Code, § 11362.5) ³ and the Medical Marijuana Program (MMP) (§§ 11362.7–11362.83). We conclude Riverside's ordinance banning MMD's is not preempted by state law. We therefore affirm the preliminary injunction and judgment.

IIFACTUAL AND PROCEDURAL BACKGROUND

Inland Empire Center is a nonprofit mutual benefit corporation established for the purpose of facilitating an MMD located in Riverside. Inland Empire Center's MMD is a nonprofit collaborative association of patient members, who collectively cultivate medical marijuana and redistribute it to each other. Inland Empire Center has operated its MMD in Riverside since 2009.

Defendant Lanny Swerdlow (Swerdlow) is a registered nurse and manager of an adjacent, separate medical clinic, THCF Medical Clinic, unassociated with the MMD. Defendant William Joseph Sump II is an Inland Empire Center board member and general manager of Inland Empire Center's Riverside MMD. Defendants Meneleo Carlos and Filomena Carlos (the Carloses) own the property upon which the MMD is located and lease the property to Swerdlow. Defendant Angel City West, Inc. (Angel) provides management services for the property.

In January 2009, Riverside's Community Development Department planning division sent Swerdlow a letter stating that Riverside's zoning code prohibits MMD's in Riverside. In May 2010, Riverside filed a complaint against Angel, Swerdlow, Sump,⁴ the Carloses, East West Bancorp, Inc.,⁵ and THCF Health and Wellness Center,⁶ for injunctive relief to abate public nuisance. The complaint alleges Inland Empire Center's MMD constitutes a public nuisance, in violation of Riverside's zoning code, Riverside Municipal Code (RMC) section 6.15.020(Q). Riverside notified Swerdlow of the violation. Nevertheless, Swerdlow continues to operate the MMD.

Riverside's complaint includes two causes of action, both alleging public nuisance, and prays for injunctive relief enjoining Inland Empire Center from operating its MMD in Riverside. Riverside alleges in the complaint that Inland Empire Center is located in a commercial zone. Under Riverside's zoning code, MMD's are prohibited. (RMC, §§ 19.150.020, 19.910.140.) Riverside's zoning code further states that any use which is prohibited by state and/or federal law is strictly prohibited in Riverside. (RMC, § 19.150.020.) Any violation of Riverside's municipal code is deemed a public nuisance under RMC sections 1.01.110 and 6.15.020(Q). Inland Empire Center's MMD violates Riverside's zoning code and is therefore a public nuisance subject to abatement.

Riverside filed a motion for a preliminary injunction, seeking to close Inland Empire Center's MMD in Riverside. Riverside Police Detective Darren Woolley (Woolley) concluded in his supporting declaration that the medical clinic, “THCF Medical Clinic,” where Swerdlow worked as a nurse, was connected to Inland Empire Center's MMD and referred patients to the MMD. Riverside requested the trial court to take judicial notice of various documents, including a report entitled, “California Police Chiefs Association's Task Force On Marijuana Dispensaries” and a report by the Riverside County District Attorney's Office, entitled, “Medical Marijuana: History and Current Complications.” Inland Empire Center objected to judicial notice of these documents. The court did not rule on the judicial notice request.

In support of Inland Empire Center's opposition to Riverside's motion for a preliminary injunction, Swerdlow states in his declaration that he managed the medical clinic Woolley claimed was associated with the MMP. According to Swerdlow, the medical clinic is not connected with the MMD. Woolley erroneously referred to Inland Empire Center's MMD as the THCF Medical Clinic, which is at a different location nearby.

Inland Empire Center's general manager, Sump, also provided a declaration supporting Inland Empire Center's opposition, stating that Inland Empire Center had advised Riverside that it would be operating an MMD in Riverside. Sump further stated that Inland Empire Center had been lawfully operating its MMD and it did not constitute a nuisance to the surrounding community.

On November 24, 2010, the trial court heard Riverside's motion for a preliminary injunction and granted the motion, concluding City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 100 Cal.Rptr.3d 1 ( Kruse ) controlled and therefore Riverside could use zoning regulations to prohibit MMD's, “especially given the conflict between state and federal law.” The trial court added it was not finding that federal law preempted state law in this instance. The court acknowledged there was case law holding that there was no federal law preemption. The trial court entered a written order enjoining Inland Empire Center from operating its MMD on the Carloses' property.

IIISTANDARD OF REVIEW

[1] In this appeal, Inland Empire Center challenges the trial court's order granting Riverside's request for a preliminary injunction. “We review an order granting a preliminary injunction, under an abuse of discretion standard, to determine whether the trial court abused its discretion in evaluating the two interrelated factors pertinent to issuance of a preliminary injunction—(1) the likelihood that the plaintiffs will prevail on the merits at trial, and (2) the interim harm that the plaintiffs are likely to sustain if the injunction were denied as compared to the harm the defendant is likely to suffer if the preliminary injunction were issued. [Citation.] Abuse of discretion as to either factor warrants reversal. [Citation.]” ( Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1299–1300, 72 Cal.Rptr.3d 259.) “ ‘[W]e interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court's order. [Citations.]’ [Citations.]” ( Id. at p. 1300, 72 Cal.Rptr.3d 259.)

[2][3] Here, the validity of the injunction and likelihood Inland Empire Center will prevail at trial turn on a question of law: whether Riverside's zoning code banning MMD's in Riverside is valid and enforceable. The underlying facts demonstrating a violation of the zoning code are undisputed. Inland Empire Center was operating an MMD on Riverside property, owned, leased, used and/or managed by the Inland Empire Center defendants. Inland Empire Center argues the zoning code prohibiting MMD's is invalid and unenforceable because it is preempted by state law (the CUA and MMP). “ ‘Whether state law preempts a local ordinance is a question of law that is subject to de novo review. [Citation.]’ [Citation.] ‘The party claiming that general state law preempts a local ordinance has the burden of demonstrating preemption. [Citation.]’ [Citation.]” ( Kruse, supra, 177 Cal.App.4th at p. 1168, 100 Cal.Rptr.3d 1.)

Since the material facts relevant to preemption are undisputed, this is a question of law which we review de novo. ( Kruse, supra, 177 Cal.App.4th at p. 1168, 100 Cal.Rptr.3d 1.) Inland Empire Center bears the burden of demonstrating preemption. We conclude Inland Empire Center has not met this burden and therefore the trial court did not abuse its discretion in granting a preliminary injunction enjoining Inland Empire Center from operating its MMD in Riverside.

IVPREEMPTION PRINCIPLES

[4][5] The general principles governing state statutory preemption of local land use regulation are well settled. ( Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1150, 45 Cal.Rptr.3d 21, 136 P.3d 821 ( Big Creek Lumber ); Kruse, supra, 177 Cal.App.4th at p. 1168, 100 Cal.Rptr.3d 1.) Under article XI, section 7 of the California Constitution, “[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.” “ ‘If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.’ ” ( Sherwin–Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897, 16 Cal.Rptr.2d 215, 844 P.2d 534 ( Sherwin–Williams ), quoting Candid Enterprises, Inc. v. Grossmont Union High...