(Super. Ct. No. 30-2009-00298887) Appeal from an order of the Superior Court of Orange County, David R. Chaffee, Judge. Reversed and remanded.
The opinion of the court was delivered by: Aronson, J.
CERTIFIED FOR PUBLICATION
The trial court granted the City of Lake Forest's (the City's) request in this nuisance abatement proceeding for a preliminary injunction shutting down Evergreen Holistic Collective's (Evergreen's) medical marijuana dispensary based on a citywide ban against dispensaries. The trial court determined the City's decision not to recognize dispensaries as a permitted property use, and to prohibit unpermitted uses, established a complete ban against the activity. Evergreen contends dispensaries are authorized by Health and Safety Code section 11362.775's endorsement of "collective" and "cooperative" medical marijuana activities, and, therefore, what the Legislature has authorized, the City may not ban.*fn1
We conclude local governments may not prohibit medical marijuana dispensaries altogether, with the caveat that the Legislature authorized dispensaries only at sites where medical marijuana is "collectively or cooperatively . . . cultivate[d]." (§ 11362.775.) Section 11362.775 exempts qualified medical marijuana patients and their primary caregivers not only from criminal prosecution for authorized collective or cooperative activities, but also from nuisance abatement proceedings. Thus, the Legislature has determined the activities it authorized at collective or cooperative cultivation sites, including a dispensary function, do not constitute a nuisance.
Under the City's municipal code, in contrast, violation of its zoning ordinances constitutes a per se, categorical nuisance. Under the City's ban, a medical marijuana dispensary always constitutes a nuisance, though the Legislature has concluded otherwise. Because the City's ban directly contradicts state law, it is preempted and furnishes no valid basis for a preliminary injunction in the City's favor. Rather, the City must show Evergreen did not grow its marijuana on-site or otherwise failed to comply with applicable state medical marijuana law or permissible local regulations. Because the trial court granted the City's injunction request solely on the basis of the City's total ban, we must reverse the preliminary injunction and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The City filed its nuisance complaint against Evergreen under the general nuisance statute (Civ. Code, § 3479) alleging a public nuisance (Civ. Code, § 3480). The City pleaded two nuisance causes of action against Evergreen. First, the City alleged Evergreen's dispensary activities constituted a per se nuisance because City ordinances effectively banned medical marijuana dispensaries and, therefore, operating a dispensary constituted a categorical nuisance under its municipal law. The City's second cause of action alleged operation of the dispensary created an actual nuisance "injurious to health, . . . indecent and offensive to the senses, and an obstruction to the free use of property, so as to interfere with the comfortable use and enjoyment of property, which affects an entire community and, as such, is a public nuisance . . . ." The trial court eventually granted the City's request for a preliminary injunction on the first ground only.
Specifically, the City asserted its zoning code established medical marijuana dispensaries constituted a per se public nuisance by omitting dispensaries as an authorized property use at Evergreen's location in the "Commercial Community" zoning district. As the City's complaint put it, the City effectively had banned dispensaries because "marijuana dispensaries are neither enumerated as a permitted use, nor as any other type of conditional or temporary use in any zoning district in the City." (Italics added.) For example, the relevant zoning provisions governing the commercial community district identified permitted uses, uses permitted with a permit, temporary permitted uses, accessory uses, and prohibited uses, and none included marijuana dispensaries.*fn2 (Lake Forest Municipal Code (LFMC), §§ 9.88.020-9.88.060.)
In particular, LFMC section 9.88.020 identified certain "principal" property uses as permitted uses in the commercial community zoning district, including for example, "Administrative and professional offices," "Animal Clinics," "Automobile repair specialty shops," "Cinemas and theaters," "Civic and government uses," "Day (care) nurseries," "Instructional studios," "Restaurants," "Retail businesses," "Service businesses," "Wholesale businesses without warehousing," and "Adult Businesses." Of these, only adult businesses required City preapproval.
The zoning code also specified other uses in the commercial community district were permitted subject to a use permit, including for example, "Automobile service stations," "Health clubs," "Hospitals," "Hotels and motels," "Kennels," "Massage establishments" as specified in another chapter of the code, "Mini-storage facilities," "Mortuaries and crematories," and "Vehicle washing facilities." (LFMC, § 9.88.030.) Authorized temporary uses included "Commercial coaches" and seasonal holiday uses such as "Christmas tree sales" and "Halloween pumpkin" patches. (LFMC, § 9.88.040.) Valid accessory uses included fences, walls, and signs. (LFMC, § 9.88.050.)
In LFMC section 9.88.060, the zoning code identified the following uses as "specifically prohibited" in the commercial community district where Evergreen was located: "Automobile wrecking, junk and salvage yards," "Bottling plants," "Cleaning, dyeing and laundry plants," "Contractors' storage and equipment yards, work and fabricating areas," "Rental and sales agencies for agricultural, industrial and construction equipment," "Vehicle engine/transmission rebuilding, tire retreading, fender and body repair and paint shops," and "Welding shops and metal plating." The code also prohibited uses not enumerated in the foregoing sections. (LFMC, § 9.88.060 [prohibiting the above-listed uses and "Uses not permitted by [s]sections 9.88.020 through 9.88.050"].)
Seeking a preliminary injunction, the City argued Evergreen's medical marijuana activities constituted a per se nuisance because the City zoning code did not authorize Evergreen's venture for the commercial community zoning district, or elsewhere within City borders. Phrased differently, dispensing medical marijuana violated the City's zoning ordinances because it fell under no approved use category, and the violation constituted a per se public nuisance based on City law providing that any violation of its municipal code or zoning code constituted a public nuisance. (See LFMC, § 1.01.240(B) ["any condition caused or permitted to exist in violation of any of the provisions of any code adopted by reference by this Code, or of the provisions of any other City ordinance, shall be deemed a public nuisance which may be abated by the City Attorney in a civil judicial action"]; see also id., § 6.14.002(A) [public nuisances designated to include "[a]ny violation of any section of the Lake Forest Municipal Code"]; id., § 9.208.040(B) ["any use of property contrary to the provisions of the Zoning Code shall be and the same is hereby declared to be unlawful and a public nuisance"].)
Evergreen opposed the City's request for a preliminary injunction on grounds the City failed to establish its activities constituted a public nuisance, either in the ordinary sense or as a per se public nuisance. On the per se issue, Evergreen pointed out that the City Council's express moratorium on medical marijuana dispensaries had lapsed four years earlier. Evergreen suggested the City's assertion of an implied ban -- based on the omission in the City code of dispensaries as a permitted use -- did not rise to the level of an express legislative judgment necessary to make a particular use a nuisance per se. Specifically, Evergreen argued that relying on the City's supposed ban was too vague to support a preliminary injunction, and violated due process by failing to notify the public what activities were prohibited. Evergreen asserted its activities fell within the "Retail businesses" category authorized as a permitted use in the commercial community zoning district. Alternatively, Evergreen argued it had not violated the City's municipal code because the City did not require a business license before a new enterprise opened its doors. Evergreen also argued state medical marijuana law, including the Legislature's endorsement of cooperative and collective (§ 11362.775) distribution endeavors, prevented the City from banning dispensary activities as a public nuisance.
The trial court concluded Evergreen's operation of a medical marijuana dispensary constituted a nuisance per se under City ordinances. The court explained: "The LFMC lists all principal uses permitted . . . in the Commercial Community zoning district. . . . Since dispensaries are not a permissible use or a conditional or temporary use, the LFMC prohibits any such unmentioned use." Thus, the court determined Evergreen's "distribution is a nuisance per se and must be enjoined."
The trial court did not determine Evergreen failed to qualify as a cooperative or collective (§ 11362.775) or otherwise failed to comply with California medical marijuana law. The City's complaint and preliminary injunction motion included no such allegations. Instead, the court's ruling was based solely on Evergreen's per se nuisance violation of City ordinances, which did not permit medical marijuana dispensaries. The trial court found unpersuasive the dispensaries' argument that because the City did not require a business license, they violated no municipal law. The court explained that the City's "zoning scheme effectively regulates what is and is not allowed in the City of Lake Forest, thereby obviating the need for a business license requirement."*fn3
Evergreen contends the trial court erred by granting the City's preliminary injunction shutting down the dispensary as a per se nuisance. We agree. An order granting a preliminary injunction is an appealable order. (Code Civ. Proc., § 904.1, subd. (a)(6); Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 445.) The standards governing the trial court's consideration of a motion for a preliminary injunction are well-settled. "In deciding whether to issue a preliminary injunction, a court must weigh two 'interrelated' factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or non-issuance of the injunction." (Butt v. State of California (1992) 4 Cal.4th 668, 677-678.) Appellate review is generally limited to whether the trial court's decision constituted an abuse of discretion. (Ibid.) However, "[t]o the extent that the trial court's assessment of likelihood of success on the merits depends on legal rather than factual questions, our review is de novo." (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1463; see, e.g., Citizens for Better Streets v. Board of Supervisors (2004) 117 Cal.App.4th 1, 6 [where preliminary injunction ruling "depends on the construction of a statute, it is to that extent reviewed de novo"].)
A. Section 11570 and Civil Code Section 3479
We begin by reviewing the statutory bases on which a city or other local government entity may obtain an injunction to abate a public nuisance for drug-related activities. Section 11570 and its related code sections provide for injunctive relief to combat the use of property for illegal drug activity. (See, e.g., Lew v. Superior Court (1993) 20 Cal.App.4th 866, 871 (Lew).) The Legislature enacted section 11570 in 1972 as a key component of the Drug Abatement Act to address, with a "special" focus, "premises where controlled substances are manufactured, kept and sold." (People ex rel. Gwinn v. Kothari (2000) 83 Cal.App.4th 759, 762, 765.) To that end, section 11570 defines as a public nuisance "[e]very building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance . . . ." (Italics added.) Nothing in section 11570 provides for criminal sanctions. Rather, the primary enforcement remedy is injunctive relief obtained in nuisance abatement proceedings against "the owner, lessee, or agent of the building . . . ." (§ 11571; see Lew, at p. 872). Further remedies include the public sale of chattels used in maintaining the nuisance, a one-year closure of the building for any use, damages in lieu of closure, and a civil penalty up to $25,000. (§ 11581; Lew, at p. 872.)
In People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, the court held the Compassionate Use Act (CUA), adopted by the voters to allow medical marijuana uses under certain conditions (see § 11362.5), did not prevent the Attorney General from obtaining an injunction under section 11570 against an Oakland medical marijuana dispensary known as the Cannabis Buyers' Club (Peron, at p. 1390). The court observed that the CUA addressed only the cultivation and possession of marijuana, and did not authorize medical marijuana patients or their primary caregivers to engage in sales of the drug. Specifically, the court noted the new enactment mandated only that "'[s]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.'" (Peron, at p. 1389.) The court concluded the CUA thus provides a "'partial defense'" in the medical marijuana context, applying "to charges of possession [and cultivation], but not to charges of selling marijuana or possessing marijuana for sale." (Ibid.; see also People v. Trippet (1997) 56 Cal.App.4th 1532, 1547 (Trippet) [same; also observing the CUA's literal terms exposed primary caregivers to criminal charges for transporting marijuana down a hallway to their patients].)
The Legislature responded in 2003 with the Medical Marijuana Program Act (MMPA, § 11362.7 et seq.), which includes provisions pertaining to the sale and transportation of marijuana and to section 11570 and similar state law provisions barring the use of property for illegal drug transactions. For example, section 11362.775 of the MMPA provides that "[q]ualified 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 [s]section 11357 [possession of controlled substances, including 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 real property available 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.)
Section 11362.765 of the MMPA similarly immunizes specified individual, rather than collective or group, activities including the administration*fn4 of medical marijuana to a qualified patient, instructing qualified patients and their primary caregivers in "the skills necessary to cultivate or administer marijuana for medical purposes," and transporting or delivering a qualified patient's medical marijuana. (§ 11362.765, subd. (a)(1)-(3); 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," italics added].) Thus, sections 11362.765 and 11362.775 expressly negate section 11570 as a nuisance remedy against the medical marijuana activities identified in those sections.
In addition to section 11570, general nuisance law independently arms cities and other local governments with injunctive relief to combat illegal drug-related property use. Civil Code section 3479 defines a nuisance as "[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances . . . ." (Italics added.) A public nuisance "may be abated by any public body or officer authorized thereto by law" (Civ. Code, § 3494), including the city attorney (Code Civ. Proc., § 731 [city attorney may file nuisance abatement action in the People's name]; Civ. Code, § 3491 [authorizing civil action as a nuisance remedy]). As used by California courts, the term "abatement" "includes termination or removal of a nuisance by way of injunctive process." (47 Cal.Jur.3d (2012) Nuisances, § 62; accord, Flahive v. City of Dana Point (1999) 72 Cal.App.4th 241, 244, fn. 4 (Flahive).) The city attorney may obtain an injunction to quell a public nuisance. (See, e.g., People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1099-1101 (Acuna).) "A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." (Civ. Code, § 3480.)
A city council may, by ordinance, declare what constitutes a public nuisance. (Gov. Code, § 38771; Flahive, supra, 72 Cal.App.4th at p. 244.) This authority inheres in a municipality's general police power over matters that may generate nuisances. (People v. Johnson (1954) 129 Cal.App.2d 1, 6-8; see, e.g., 47 Cal.Jur.3d, supra, Nuisances, § 5.) Moreover, understanding the "community aspect of [a] public nuisance" (see Acuna, supra, 14 Cal.4th at p. 1105) requires "consideration and balancing of a variety of factors" (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1206-1207 (Beck)) uniquely suited to the legislative process. Thus, "a nuisance per se arises when a legislative body with appropriate jurisdiction, in the exercise of the police power, expressly declares a particular object or substance, activity, or circumstance, to be a nuisance. . . . [T]o rephrase the rule, to be considered a nuisance per se the object, substance, activity or circumstance at issue must be expressly declared to be a nuisance by its very existence by some applicable law." (Ibid.) "'Nuisances per se are so regarded because no proof is required, beyond the actual fact of their existence, to establish the nuisance.' [Citations.] [Fn. omitted.]" (City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 382, fn. omitted.)
Nevertheless, local government nuisance determinations are not immune from judicial scrutiny. (Hurwitz v. City of Orange (2004) 122 Cal.App.4th 835, 852-854; see, e.g., 47 Cal.Jur.3d, supra, Nuisances, § 5.) For example, a municipality may not, either at common law or under statutory power, designate property use a nuisance by mere declaration, when in fact it is not. (Flahive, supra, 72 Cal.App.4th at p. 244, fn. 4; Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711, 718.) It also remains true under overriding state nuisance law that "[n]othing which is done or maintained under the express authority of a statute can be deemed a nuisance." (Civ. Code, § 3482.)
C. California Law Provides for Dispensaries as a Matter of Statewide Concern
1. Procedural Posture, Evergreen's Contentions, and Civil Code Section 3482
As noted, the City filed its nuisance complaint against Evergreen under the general nuisance statute (Civ. Code, § 3479) alleging a per se public nuisance (Civ. Code, § 3480) because its zoning code omitted dispensaries as a permitted use. Evergreen contends state medical marijuana law authorizes the formation and operation of medical marijuana dispensaries, and therefore local governments cannot ban them as a nuisance per se. Instead, the local entity must prove that the particular manner in which a dispensary operates creates a public nuisance. Although an activity authorized by statute cannot be deemed a nuisance (Civ. Code, § 3482), the manner in which the activity is performed may constitute a nuisance. (Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160 (H Street); Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 129.) For example, "[w]here an improvement is erected improperly, it cannot 'be fairly stated that the legislature contemplated the doing of the very act' causing damage." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 104, original italics; see 47 Cal.Jur.3d, supra, Nuisances, § 35 ["A lawful business may by its particular method of operation or by its location constitute a nuisance"]; see, e.g., Vowinckel v. N. Clark & Sons (1932) 216 Cal. 156, 164.)
Statutory immunity for an alleged nuisance arises "only where the acts complained of are authorized by the express terms of the statute . . . or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the Legislature contemplated the doing of the very act which occasions the injury." (Zack's, Inc. v. City of Sausalito (2008) 165 Cal.App.4th 1163, 1179 (Zack's, Inc.), internal quotation marks and citations omitted.) In other words, the conduct said to be a nuisance must be "exactly what was lawfully authorized . . . ." (Jacobs Farm/Del Cabo Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1532 (Jacobs Farm).) Accordingly, courts must scrutinize the statutes in question to determine whether the Legislature intended to sanction the alleged nuisance. (Zack's, ...