Qualified Patients Ass'n v. City of Anaheim, No. G040077.

• Court: California Court of Appeals
• Writing for the Court: ARONSON
• Citation: 115 Cal.Rptr.3d 89,187 Cal.App.4th 734
• Parties: QUALIFIED PATIENTS ASSOCIATION et al., Plaintiffs and Appellants, v. CITY OF ANAHEIM, Defendant and Respondent.
• Decision Date: 01 December 2010
• Docket Number: No. G040077.

187 Cal.App.4th 734
115 Cal.Rptr.3d 89

QUALIFIED PATIENTS ASSOCIATION et al., Plaintiffs and Appellants,
v.
CITY OF ANAHEIM, Defendant and Respondent.

No. G040077.

Court of Appeal, Fourth District, Division 3, California.

Aug. 18, 2010.
Review Denied Dec. 1, 2010.

115 Cal.Rptr.3d 92

Anthony Curiale, Brea, for Plaintiffs and Appellants.

Joseph D. Elford for Americans for Safe Access as Amicus Curiae on behalf of Plaintiffs and Appellants.

Mark Leno as Amicus Curiae on behalf of Plaintiffs and Appellants.

Jack L. White, City Attorney, Christina Talley, Acting City Attorney, and Moses W. Johnson IV, Assistant City Attorney, for Defendant and Respondent.

Jones & Mayer, Martin J. Mayer, Jammar Boyd-Weatherby and Krista MacNevin Jee, Fullerton, for California State Sheriffs' Association, California Police Chiefs' Association and California Peace Officers' Association as Amici Curiae on behalf of Defendant and Respondent.

Meyers, Nave, Riback, Silver & Wilson, Chrystal B. James, Glendale, and Ellin Davtyan, Los Angeles, for City of Adelanto and other California cities as Amici Curiae on behalf of Defendant and Respondent.

William James Murphy, Tehama County Counsel, and Arthur J. Wylene, Assistant County Counsel, for California State Association of Counties as Amicus Curiae on behalf of Defendant and Respondent.

Edmund G. Brown, Jr., Attorney General, and Peter A. Krause, Deputy Attorney General, as Amici Curiae upon the request of the Court of Appeal.

187 Cal.App.4th 741

OPINION

ARONSON, J.

Plaintiffs Qualified Patients Association (QPA) and Lance Mowdy appeal from a judgment of dismissal entered after the trial court sustained, without leave to amend, the City of Anaheim's demurrer to plaintiffs' complaint. Asserting the primacy of state law over local law under constitutional and statutory authority (Cal. Const., art. XI, § 7; Gov.Code, § 37100), plaintiffs' first cause of action sought a declaratory judgment that the city's ordinance imposing criminal penalties for the operation of a medical marijuana dispensary was preempted by the Compassionate Use Act (CUA) (Health & Saf.Code, § 11362.5) ¹ and the Medical Marijuana Program Act (MMPA) (§§ 11362.7 through 11362.83). In their second cause of action, plaintiffs asserted the city's ordinance violated the Unruh Civil Rights Act (Unruh Act). ( Civ.Code, § 51.)

We agree with plaintiffs the trial court erred as a matter of law in concluding federal regulation of marijuana in the Controlled Substances Act (21 U.S.C. § 812 et seq.) preempted California's decision in the CUA and the MMPA to decriminalize specific medical marijuana activities under state law. We therefore reverse the judgment of dismissal and remand the matter to allow plaintiffs to pursue their declaratory judgment cause of action. The trial court, however, correctly concluded plaintiffs failed to state a cause of action under the Unruh Act, which is aimed at "business establishments" (Civ.Code, § 51, subd.

115 Cal.Rptr.3d 93

(b)), not local government legislative acts. We therefore affirm that portion of the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

In a provision entitled, "Medical Marijuana Dispensary Prohibited," the city ordinance that plaintiffs challenge provides: "It shall be unlawful for any person or entity to own, manage, conduct, or operate any Medical

187 Cal.App.4th 742

Marijuana Dispensary or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any Medical Marijuana Dispensary in the City of Anaheim." (Anaheim City Ord. No. 6067, ch. 4.20, § 4.20.030.)

Anaheim City Ordinance section 4.20.010.030 defines a "Medical Marijuana Dispensary or Dispensary" as "any facility or location where medical marijuana is made available to and/or distributed by or to three or more of the following: a qualified patient, a person with an identification card, or a primary caregiver."

The ordinance provides, in section 5, for misdemeanor punishment for "any person who violates any provision of this ordinance...."

Plaintiffs' first cause of action sought a declaratory judgment that the state's medical marijuana laws preempted the city's ordinance. Based its conclusion federal law preempted the state's medical marijuana laws, the trial court sustained the city's demurrer to plaintiffs' first cause of action, without leave to amend. The trial court also sustained without leave to amend the city's demurrer to plaintiffs' second cause of action, which asserted the city's ordinance discriminated against them on the basis of a "disability" or "medical condition" in violation of the Unruh Act. (Civ.Code, § 51.) The trial court observed, "Courts generally take a dim view of the assertion or claim to a right to do something that is illegal." The trial court also concluded the Unruh Act did not apply to legislative bodies but rather only to "business establishments." (Civ.Code, § 51.) Plaintiffs now appeal.

II

DISCUSSION

A. Applicable Authority

1. The CUA

California voters approved Proposition 215 in 1996, codified as the Compassionate Use Act at section 11362.5. (See People v. Trippet (1997) 56 Cal.App.4th 1532, 1546, 66 Cal.Rptr.2d 559 ( Trippet); People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1436, 7 Cal.Rptr.3d 226 ( Tilehkooh ).) Subdivision (d) of section 11362.5 provides: "Section 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."

187 Cal.App.4th 743

Examining this language, People v. Urziceanu (2005) 132 Cal.App.4th 747, 772-773, 33 Cal.Rptr.3d 859 ( Urziceanu ), explained that "the Compassionate Use Act is a narrowly drafted statute designed to allow a qualified patient and his or her primary caregiver to possess and cultivate marijuana for the patient's personal use despite the penal laws that outlaw these two acts for all others." The Urziceanu court observed that, apart from possession and cultivation, "the Compassionate Use Act did not alter the other statutory prohibitions related to marijuana, including

115 Cal.Rptr.3d 94

those that bar the transportation, possession for sale, and sale of marijuana." ( Urziceanu, supra, 132 Cal.App.4th at p. 773, 33 Cal.Rptr.3d 859; see also Trippet, supra, 56 Cal.App.4th at p. 1550, 66 Cal.Rptr.2d 559 [recognizing the CUA's literal terms left primary caregivers vulnerable for transporting marijuana down a hallway to their patients].) The court continued: "When the people of this state passed [the CUA], they declined to decriminalize marijuana on a wholesale basis. As a result, the courts have consistently resisted attempts by advocates of medical marijuana to broaden the scope of these limited specific exceptions. We have repeatedly directed the proponents of this approach back to the Legislature and the citizenry to address their perceived shortcomings with this law." ( Urziceanu, at p. 773, 33 Cal.Rptr.3d 859.) Accordingly, Urziceanu held: "A cooperative where two people grow, stockpile, and distribute marijuana to hundreds of qualified patients or their primary caregivers, while receiving reimbursement for these expenses, does not fall within the scope of the language of the Compassionate Use Act or the cases that construe it." ( Id. at p. 773, 33 Cal.Rptr.3d 859.) Later in its opinion, the Urziceanu court examined whether the terms of the MMPA required a different conclusion, as we discuss below.

As noted in Urziceanu, the exemptions provided in the CUA for a qualified patient to possess and cultivate medical marijuana also apply to his or her primary caregiver. The CUA defines a "primary caregiver" as "the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." (§ 11362.5, subd. (e).)

The California Supreme Court has explained that to be a primary caregiver under this section, an individual must show that "he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana." ( People v. Mentch (2008) 45 Cal.4th 274, 283, 85 Cal.Rptr.3d 480, 195 P.3d 1061 ( Mentch ).) The high court in Mentch concluded that a patient may not confer primary caregiver status merely by designating a person as a primary caregiver, nor does a person qualify simply by providing medical marijuana to the patient. ( Id. at pp. 283-285, 85 Cal.Rptr.3d 480, 195 P.3d 1061.) Rather, the person must show "a caretaking relationship directed at the core survival needs of a seriously ill patient, not just one single pharmaceutical need." ( Id. at p. 286, 85 Cal.Rptr.3d 480, 195 P.3d 1061.)

187 Cal.App.4th 744

The electorate, in enacting the CUA, "directed the state to create a statutory plan to provide for the safe and affordable distribution of medical marijuana to qualified patients." ( People v. Hochanadel (2009) 176 Cal.App.4th 997, 1014, 98 Cal.Rptr.3d 347 ( Hochanadel ).) The electorate's stated intent in enacting the CUA was three-fold: first, to " ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of [designated illnesses] or any other illness for which marijuana provides relief"; second, to "ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes under the recommendation of a physician are not subject to criminal prosecution or sanction"; and third, to "encourage the federal and state governments to implement a plan to provide for the safe and affordable...