Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee. Affirmed in part, reversed in part. (Super. Ct. No. 07CC09524).
The opinion of the court was delivered by: Aronson, J.
CERTIFIED FOR PUBLICATION
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)*fn1 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. (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 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.
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 (Trippet); People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1436 (Tilehkooh).) Subdivision (d) of section 11362.5 provides: "Section 11357, relating to the possession of marijuana, and [s]section 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."
Examining this language, People v. Urziceanu (2005) 132 Cal.App.4th 747, 772-773 (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 those that bar the transportation, possession for sale, and sale of marijuana." (Urziceanu, supra, 132 Cal.App.4th at p. 773; see also Trippet, supra, 56 Cal.App.4th at p. 1550 [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.) 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.) 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 (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.) 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.)
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 (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 distribution of marijuana to all patients in medical need of marijuana." (§ 11362.5, subd. (b)(1)(A)-(C).)
In 2003, the Legislature enacted the Medical Marijuana Program Act, effective January 1, 2004, adding sections 11362.7 through 11362.83 to the Health and Safety Code. (See People v. Wright (2006) 40 Cal.4th 81, 93 (Wright).) The express intent of the Legislature was to: "(1) Clarify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. [¶] (2) Promote uniform and consistent application of the act among the counties within the state. [¶] (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects." (Stats. 2003, ch. 875, § 1, subd. (b)(1)-(3), italics added.) The MMPA also expressly stated: "It is . . . the intent of the Legislature to address additional issues that were not included within the [CUA], and that must be resolved in order to promote the fair and orderly implementation of the [CUA]." (Id., subd. (c).) According to the act's legislative history, "Nothing in [the MMPA ] shall amend or change Proposition 215, nor prevent patients from providing a defense under Proposition 215. . . . The limits set forth in [the MMPA ] only serve to provide immunity from arrest for patients taking part in the voluntary ID card program, they do not change [s]section 11362.5 (Proposition 215) . . . ." (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 420 (2003 Reg. Sess.) as amended Sept. 9, 2003, p. 6, italics added.)
In section 11362.71, the MMPA established a program to facilitate the "'prompt identification of qualified patients and their designated primary caregivers'" (Wright, supra, 40 Cal.4th at p. 93) via a voluntary identification card program, which the Legislature required counties to implement (§§ 11362.71, subd. (b); 11362.72; see County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 811, 818, 825-828 (County of San Diego) [holding federal law making marijuana illegal did not preempt the MMPA's identification card program]).
Particularly relevant to this appeal, the MMPA also added section 11362.775, which provides: "Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357 [possession of marijuana], 11358 [cultivation of marijuana], 11359 [possession for sale], 11360 [transportation], 11366 [maintaining a place for the sale, giving away or use of marijuana], 11366.5 [making available premises for the manufacture, storage or distribution of controlled substances], or 11570 [abatement of nuisance created by premises used for manufacture, storage or distribution of controlled substance]." (Italics added.) In Urziceanu, the court observed that "[t]his new law represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients or primary caregivers . . . . Its specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana." (Urziceanu, supra, 132 Cal.App. at p. 785.)
Adding detail to California's quilt of medical marijuana legislation, the MMPA, in section 11362.765, expressly immunizes from state criminal liability, in relation to lawful medical marijuana use: "Any individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the qualified patient or person." (§ 11362.765, subd. (b)(3), italics added; see id., subd. (a) ["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 Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570"].)
The MMPA also expressly immunizes "[a] qualified patient or a person with an identification card who transports or processes marijuana for his or her own personal medical use." (§ 11362.765, subd. (b)(1), italics added.) Section 11362.765, subdivision (b)(2), similarly immunizes primary caregivers, specifically any "designated primary caregiver who transports, processes, administers, delivers, or gives away marijuana for medical purposes . . . only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as the primary caregiver." Subdivision (c) of section 11362.765 addresses compensation. It mandates that "[a] primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient or person with an identification card to enable that person to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under Section 11359 or 11360."
The MMPA also "elaborates on" the definition of primary caregiver in the CUA. (Hochanadel, supra, 176 Cal.App.4th at p. 1008.) The MMPA reiterates the definition of a primary caregiver contained in the CUA, i.e., "the individual, designated by a qualified patient . . . who has consistently assumed responsibility for the housing, health, or safety of that patient or person . . . ." (§ 11362.7, subd. (d).) The subdivision goes on to provide examples of the Legislature's view of persons qualifying as primary caregivers under this definition: (1) Owners and operators of clinics or care facilities; (2) "An individual who has been designated as a primary caregiver by more than one qualified patient or person with an identification card, if every qualified patient or person with an identification card who has designated that individual as a primary caregiver resides in the same city or county as the primary caregiver"; and (3) "An individual who has been designated as a primary caregiver by a qualified patient or person with an identification card who resides in a city or county other than that of the primary caregiver, if the individual has not been designated as a primary caregiver by any other qualified patient or person with an identification card." (§ 11362.7, subd. ...