APPEAL from an order of the Superior Court of Los Angeles County. Ann I. Jones, Judge. (Los Angeles County Super. Ct. No. BC457089)
The opinion of the court was delivered by: Mallano, P. J.
CERTIFIED FOR PUBLICATION
Reversed with directions.
Defendants Alternative Medicinal Cannabis Collective (doing business as Alternative Medicinal Collective of Covina), Erik M. Andresen, Kara Reyes, Justin W. Samperi, Martin Hill, and Mardy and Nordy Ying (individually and as trustees) appeal from an order granting a preliminary injunction prohibiting them from operating a medical marijuana "dispensary" in any unincorporated area of the County of Los Angeles (County). Defendants contend that the order granting the injunction should be reversed because the County's blanket ban on medical marijuana dispensaries conflicts with, and is preempted by, the Compassionate Use Act (Proposition 215) enacted by the voters in 1996 authorizing the use of marijuana for medical purposes and the Medical Marijuana Program enacted by the Legislature (as amended) authorizing the operation of a "medical marijuana cooperative, collective, dispensary" in a "storefront . . . outlet." We agree that the County's complete ban on all "medical marijuana dispensaries," including collectives and cooperatives authorized under Health and Safety Code section 11362.775, conflicts with, and is thus preempted by, California's medical marijuana laws. Accordingly, we reverse the order granting a preliminary injunction.
On December 7, 2010, the Los Angeles County Board of Supervisors banned medical marijuana dispensaries in all zones in unincorporated areas of the County effective January 6, 2011. (County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 866, fn. 4 (Hill).) Los Angeles County Code (LACC) section 22.56.196 B provides that "medical marijuana dispensaries which distribute, transmit, give, or otherwise provide marijuana to any person, are prohibited in all zones in the County." Subdivision A.1 plainly states the purpose of the ordinance is to "ban medical marijuana dispensaries in all zones in the County." The ordinance provides that the ban shall remain in effect unless and until the Court of Appeal or the California Supreme Court deems it to be "unlawful," in which event the provisions of the former ordinance, which required a conditional use permit and business license and imposed location restrictions and operating requirements (set forth in subdivisions D through H), will again take effect.
In March of 2011, County, which had previously sought to enjoin defendants' operation for failure to comply with the provisions of the prior version of LACC section 22.56.196, as we set forth in Hill, supra, 192 Cal.App.4th at page 865, filed a new nuisance action against defendants on the basis of the newly enacted ban on medical marijuana dispensaries. The first cause of action sought injunctive relief. It alleged, "The Defendants, and each of them, have violated Los Angeles County Code Section 22.56.196 B., Medical Marijuana Dispensaries, by operating or permitting the operation of [a medical marijuana dispensary] on the Subject Property when such use is banned in all zones in the unincorporated areas of Los Angeles County. In so acting, the Defendants, and each of them, have been using the Subject Property in a manner that is not permitted by the Los Angeles County Code." County also alleged, on information and belief, that defendants "have been operating [a medical marijuana dispensary] which is not in compliance with state law. Defendant[s] are not a collective or cooperative or any other business entity that falls within the protections afforded to [sic] by the [Medical Marijuana Program] and, therefore, cannot defend their operation on that basis notwithstanding their violations of the County Code." The second cause of action sought declaratory relief and alleged that defendants "established and are operating [a medical marijuana dispensary] on the Subject Property in violation of the Los Angeles County zoning code."
County moved for a preliminary injunction, which defendants opposed. After a hearing, the trial court granted the motion and enjoined defendants and anyone acting on their behalf "from operating or permitting to operate a medical marijuana dispensary and/or possessing, offering, selling, giving away or otherwise dispensing marijuana on or from the subject property at 20050 E. Arrow Highway, in the unincorporated community of Covina, California, and from any other location within the unincorporated area of the County of Los Angeles, pending trial of this action or further order of this court." The trial court's written ruling on the motion concluded that County's ban on all medical marijuana dispensaries was consistent with, and thus not preempted by, state law. The court characterized the provisions of the Compassionate Use Act of 1996 (CUA) (Health & Saf. Code, § 11362.5; undesignated statutory references are to that code) and the Medical Marijuana Program (MMP) (§ 11362.7 et seq.) as "limited criminal defenses from prosecution for cultivation, possession, possession for sale, transportation and certain other criminal sanctions involving marijuana for qualified patients, persons with valid identification cards and designated primary caregivers of the foregoing," then noted that County's ban "is not a criminal ordinance," but "merely a zoning restriction and has no impact on the criminal defenses provided by the CUA and MMP." The court, citing our prior decision in Hill, supra, 192 Cal.App.4th at page 869, stated, "Moreover, the Court of Appeal has specified that, '[t]he statute does not confer on qualified patients and their caregivers the unfettered right to cultivate or dispense marijuana anywhere they choose,' instead finding that the County has 'authority to regulate the particular manner and location in which a business may operate' under the Constitution." But the court made no factual findings regarding whether defendants had been operating a medical marijuana dispensary in violation of state law.
Defendants appealed the order granting a preliminary injunction and filed a petition for a writ of supersedeas staying the enforcement of the preliminary injunction, which we granted.
Defendants contend that County's "TOTAL ban on medical marijuana patient associations formed pursuant to Health and Safety Code section 11362.775 is preempted by general principles of the preemption doctrine [and] unlawful under Health and Safety Code section 11362.83 as a local ordinance not 'consistent' with the Medical Marijuana Program Act." (Italics omitted.) County contends its ban is a permissible land use regulation that is consistent with, and not preempted by, state medical marijuana laws. It further contends that the preliminary injunction was properly issued because defendants are operating in violation of state medical marijuana laws.
While the parties' preemption contentions require extensive discussion, we can readily dispose of County's second argument. The trial court made no factual findings that defendants were operating a medical marijuana dispensary in violation of state law and it based its preliminary injunction solely upon a theory that the County's blanket ban on all "medical marijuana dispensaries" was valid and not preempted by state law. Although County may ultimately be able to establish in the trial court that the manner in which defendants are operating their dispensary does not comply with state medical marijuana laws, County's repeated allegations to that effect in its appellate brief have no relevance to our determination of the validity of the preliminary injunction, which was premised entirely on a conclusion that County's ban was not preempted by state law.
An order granting a preliminary injunction is an appealable order. (Code Civ. Proc., § 904.1, subd. (a)(6).) "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.) Although appellate review is generally limited to whether the trial court's decision constituted an abuse of discretion (ibid.), "[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.) Here, the question is solely a legal one.
2. California's medical marijuana laws
California medical marijuana law is embodied in two enactments, the CUA and the MMP. First, California voters approved Proposition 215 in 1996, codified as the Compassionate Use Act of 1996 at section 11362.5. 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."
The electorate expressly stated its intent in enacting the CUA: 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 [specified 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 upon 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. ...