California Court of Appeals, Second District, Fifth Division
ORIGINAL PROCEEDING in mandate. John Shepard Wiley, Jr., Judge. Los Angeles County Super. Ct. Nos. BC460794, BC460797, BC460799, BC463707, BC463709, BC467194, BC467195, BC467881, BC471859, BC473512, BC473561, BC473562, BC473563, BC474278, BC476226, BC476227, BC476735, BC476736, BC476737, BC476738, BC478007, BC478008, BC478009, BC478239, BC478241, BC478242, BC78244.
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Michael N. Feuer, City Attorney, Asha Greenberg, Deputy Assistant City Attorney, and Anh Truong, Deputy City Attorney, for Petitioner.
No appearance for Respondent.
Roger Jon Diamond for Real Party in Interest Alan Edward Broder.
Rosenthal & Associates and Lisa F. Rosenthal for Real Party in Interest Michael Braum.
Stanley H. Kimmel for Real Party in Interest Our Elco.
Panitz & Kossoff and Kenneth W. Kossoff for Real Party in Interest George M. Paulsin.
In 2011 and 2012, the People of the State of California, acting by and through the City Attorney of the City of Los Angeles (the People), brought
enforcement actions against more than 80 operators and owners of facilities alleged to be selling and distributing marijuana for medicinal purposes in violation of the Los Angeles Municipal Code, the Health and Safety Code and the state unfair competition law. As remedies for defendants’ conduct, the People sought abatement of continuing public nuisances, permanent injunctions and civil penalties.
The trial court denied the People’s omnibus motion for summary judgment and, in the alternative, summary adjudication, ruling the People had failed to present evidence and argument to support their claims for civil penalties. The trial court based its ruling on its view that claims for penalties made under each of the statutory plans through which the People sought relief are elements of the causes of action alleged. The People filed a petition for writ of mandamus which we now consider at the direction of our Supreme Court.
We hold that the penalties which the People seek are among the remedies available to them rather than elements of the causes of action which they allege in the several complaints, grant the People’s petition and reverse the trial court’s order. We therefore issue a writ of mandate, vacating the order denying the People’s motion for summary judgment or summary adjudication and remand the matter to the trial court to fully consider the People’s motion, including all evidence and objections presented, in a manner consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Complaints and causes of action
The People’s 27 civil actions against 87 defendants seek permanent injunctions “to close down illegal medical marijuana shops and to dissuade potential entrepreneurs who might be contemplating opening similar businesses, as well as to deter property owners considering renting to marijuana establishments.” The People’s complaints contain many common claims. Against the owners and operators of medical marijuana dispensaries and the owners of the properties on which the dispensaries are located (the Property Owner Defendants), the People allege two causes of action: (1) for public nuisance (violations of
Los Angeles Municipal Code (LAMC) §§ 12.21 A.1(a) and 11.00(1) (collectively referred to as the LAMC violations))  and (2) for violation of the Narcotics Abatement Law (Health & Saf. Code, § 11570, et seq.) (referred to as the NAL). Against the 67 defendants who are operators of medical marijuana dispensaries (the Dispensary Defendants) the People allege a third cause of action, for unfair competition in violation of Business and Professions Code section 17200 (referred to as section 17200 or as the UCL). The People sought permanent injunctions, abatement of the nuisances and civil penalties under the LAMC, the NAL and the UCL. Preliminary injunctions were issued against defendants in eight cases on motion of the People.
Motion for summary judgment and adjudication
The People filed a single motion for summary judgment or in the alternative, summary adjudication of issues against specified “Dispensary Defendants” and “Property Owner Defendants” (the Motion) on March 10, 2014. The Motion sought “orders granting summary judgment, orders of abatement, permanent injunctions, and such other relief as permitted under [LAMC]
sections 12.21 A.1(a) and 11.00(l) and the [NAL]” against the Property Owner Defendants, and similar relief against the Dispensary Defendants for violation of the LAMC and the UCL.
The trial court’s rulings
The hearing on the People’s Motion was conducted on May 29, 2014. Prior to the hearing the trial court issued and made available its tentative ruling. The trial judge began the substantive portion of the hearing by referring to its tentative ruling and telling counsel, “I have gone off probably in a direction that catches you totally by surprise.” He then explained: “It is a problem with the summary adjudication and the summary judgment statute that this issue of the penalty is what you might call a technical requirement for there to be a summary judgment or a summary adjudication of a cause of action. You are not alone in detecting this thin wire strung across the path at about ankle level on the way to summary judgment.... [¶] The problem is... that it is part of the cause of action and part of the judgment that the penalty, if it is discretionary, and all of these penalties are, to a degree, discretionary, that has got [sic] to be nailed down and [be] beyond factual disputes. [¶] Now, the criteria for a proper penalty is something that we have not even taken up in the papers here today because the people did not perceive that to be an essential element of their various motions, but sadly, I do believe it is.”
After a brief discussion, the trial court adopted its tentative ruling, as follows:
“‘A plaintiff... has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the
cause of action entitling the party to judgment on that cause of action.’ (Code Civ. Proc., § 437c, subd. (p)(1).) A motion for summary judgment by a plaintiff must rely on evidence sufficient to ‘[establish] every element necessary to sustain a judgment in their favor[.]’ (Goldstein v. Hoffman (1963) 213 Cal.App.2d 803, 811 [29 Cal.Rptr. 334].) [¶] “A civil penalty is a form of relief on a cause of action under Business and Professions Code section 17200. (See People v. Superior Court (1973) 9 Cal.3d 283, 288 [107 Cal.Rptr. 192, 507 P.2d 1400].) A court determining the appropriate penalty under the unfair competition law must ‘consider any one or more of the relevant circumstances presented by any of the parties to the case, including, but not limited to the following: the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendant’s misconduct, and the defendant’s assets, liability and net worth.’ (Bus. & Prof. Code, § 17206, subd. (b).) This is not ‘post judgment relief, ’ as the People suggest. Rather, it is part of the cause of action. [¶] The same problem exists for the civil penalties under subdivision (l) of section 11.00 of the Los Angeles Municipal Code, and Health and Safety Code, section 11581, subdivision (b)(2). [¶] The People do not offer any evidence on the appropriate penalty against any Defendant. For that reason, the motions are deficient with respect to each Defendant.”
Thereafter the court denied the People’s motion in full.
The People filed and later amended their petition for writ of mandamus to direct the trial court to vacate its May 29, 2014 order denying the Motion and ordering it to either grant the Motion or consider it on its merits. Our Supreme Court granted the People’s petition for review and transferred the matter back to this court with directions to vacate our order denying mandate and to issue an order to show cause why the relief sought in the petition should not be granted. We did so, also staying further proceedings in the trial court pending determination of the merits of the amended petition.
The People’s contentions
The People seek review of the trial court’s denials of their Motion, arguing the rulings were made “on the erroneous assumption that evidence relating to civil penalties must be presented as part of a motion for summary judgment/summary adjudication” and based on the trial court’s legal determination that adjudication of penalties is an element of each of the causes of action alleged in the 27 complaints. The People contend that the trial court erred as a matter of law and that there is no issue of fact warranting denial of the Motion.
As the People express the issue in their petition for review, “This Petition presents the issue of whether summary judgment or summary adjudication is available in a case where a plaintiff is seeking an award of civil penalties and where there is no genuine issue of material fact as to liability.”
Contentions of the real parties in interest and the People’s reply
Returns were filed by four sets of real parties in interest: by Michael Braum, individually and as trustee of the Braum Family Trust (Braum); by Alan Edward Broder, individually and as the Trustee of the Broder Great Grandchildren’s Trust (Broder); by Our Elco; and by George Paulsin, individually and as Trustee of the Cates 1989 Trust (Paulsin).
As the People point out in their reply, because the returns were unverified and not in the form a demurrer, the factual contentions raised may not be considered. Instead, we will treat the returns only as memoranda discussing those arguments and authorities as are relevant. (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 372, fn. 5 [36 Cal.Rptr.3d 31]; Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1287 [2 Cal.Rptr.3d 484]; Fed. Rules Civ.Proc, rule 56(f), 28 U.S.C.)
Standard of Review
Review of a trial court’s ruling on a motion for summary judgment or summary ...