City of Lake Forest v. Lake Forest Wellness

Filed 2/29/12 City of Lake Forest v. Lake Forest Wellness Center CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CITY OF LAKE FOREST,
Plaintiff and Respondent,
v.
LAKE FOREST WELLNESS CENTER
AND COLLECTIVE et al.,
Defendants and Appellants.
G043817 (consol. with G043867)
(Super. Ct. No. 30-2009-00298887)
O P I N I O N
Appeal from an order of the Superior Court of Orange County, David R.
Chaffee, Judge. Reversed and remanded.
Howard|Nassiri, Vincent D. Howard, Damian J. Nassiri, Naveen Madala;
and Donna Bader for Defendants and Appellants.
Best Best & Krieger, Jeffrey V. Dunn and Lee Ann Meyer for Plaintiff and
Respondent.
* * *

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Lake Forest Wellness Center and Collective and the Independent Collective
of Orange County (the dispensaries) appeal from the trial court’s order granting a
preliminary injunction enjoining their medical marijuana activities in this nuisance
abatement proceeding. They contend medical marijuana dispensaries are authorized by
Health and Safety Code section 11362.775’s endorsement of “collective[]” and
“cooperative[]” activities, and, therefore, what the Legislature has authorized, the City of
Lake Forest (the City) may not ban. As explained in City of Lake Forest v. Evergreen
Holistic Collective (February 29, 2012, G043909) __ Cal.App.4th __ (Evergreen), we
agree with the dispensaries’ basic contention, albeit with the caveat that the Legislature
only authorized dispensaries at sites where medical marijuana is “collectively or
cooperatively . . . cultivate[d]” (Health & Saf. Code, § 11362.775). Consequently, the
City’s asserted blanket, per se ban on medical marijuana dispensaries contradicts state
law and furnishes no valid basis to obtain a preliminary injunction. Rather, the City must
show a dispensary 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.
I
FACTUAL AND PROCEDURAL BACKGROUND
The City filed its nuisance complaint against the dispensaries under the
general nuisance statute (Civ. Code, § 3479) alleging a public nuisance (Civ. Code,
§ 3480). The City pleaded two nuisance causes of action against the dispensaries. First,
the City alleged their dispensary activities constituted a per se nuisance because City
ordinances effectively banned medical marijuana dispensaries and, therefore, operating a

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dispensary constituted a categorical nuisance under its municipal law. The City’s second
cause of action alleged that 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 in the “Commercial Community” zoning district. Indeed, 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.1 (Lake
Forest Municipal Code (LFMC), §§ 9.88.020-9.88.060; all further undesignated section
references are to the LFMC.)
1 We grant the City’s request to take judicial notice of the relevant portions
of its zoning code, also judicially noticed by the trial court. (Evid. Code, §§ 452,
subd. (b), 459.) We similarly grant all but one of the parties’ numerous other requests for
judicial notice or to augment the record, including requests concerning general provisions
of the City’s municipal code, various motions or other matters filed in the trial court, and
the legislative history of Health and Safety Code sections 11362.768 and 11362.83. We
deny as irrelevant, however, the dispensaries’ July 2011 request for judicial notice of
appellate stays initially granted by Division Two of the Court of Appeal, Fourth
Appellate District, to stay enforcement of preliminary injunctions obtained against
dispensaries in that jurisdiction.

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In particular, section 9.88.030 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.” Authorized temporary
uses included “Commercial coaches” and seasonal holiday uses such as “Christmas tree
sales” and Halloween pumpkin patches. (§ 9.88.040.) Valid accessory uses included
fences, walls, and signs. (§ 9.88.050.)
In section 9.88.060, the zoning code identified the following uses as
“specifically prohibited” in the commercial community district where the dispensaries
were 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. (§ 9.88.030 [prohibiting the
above-listed uses and “Uses not permitted by Sections 9.88.020 through 9.88.050”].)

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Seeking a preliminary injunction, the City argued the dispensaries’ medical
marijuana activities constituted a per se nuisance because the City zoning code did not
authorize dispensaries in 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 § 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 § 6.14.002(A) [public nuisances designated to include “[a]ny violation
of any section of the Lake Forest Municipal Code”]; § 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”].)
The dispensaries 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, the dispensaries
pointed out that the City Council’s express moratorium on medical marijuana
dispensaries had lapsed four years earlier. The dispensaries 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, the dispensaries 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. One

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of the dispensaries asserted its activities fell within the “Service businesses” category
authorized as a permitted use in the commercial community zoning district.
Alternatively, the dispensaries argued they had not violated the City’s municipal code
because the City did not require a business license before a new enterprise opened its
doors. The dispensaries also argued state medical marijuana law, including the
Legislature’s endorsement of “cooperative and collective” (Health & Saf. Code,
§ 11362.775) distribution endeavors, prevented the City from banning dispensary
activities as a public nuisance.
The trial court concluded that operating 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 medical marijuana
distribution at a dispensary “is a nuisance per se and must be enjoined.”
The trial court did not determine the dispensaries failed to qualify as a
cooperative or collective (Health & Saf. Code, § 11362.775) or otherwise failed to
comply with California medical marijuana law. The City’s complaint and motion for a
preliminary injunction included no such allegations. Instead, the court’s ruling was based
solely on the dispensaries’ 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

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effectively regulates what is and is not allowed in the City of Lake Forest, thereby
obviating the need for a business license requirement.”2
II
DISCUSSION
The dispensaries contend the trial court erred by granting the City’s
preliminary injunction shutting them down as a per se nuisance. As explained at length
in Evergreen, supra, __ Cal.App.4th __, we agree that California medical marijuana law
preempts a total local ban against dispensaries. Therefore, as in Evergreen, we must
reverse the preliminary injunction issued below solely on the basis of the City’s asserted
per se ban.
We also briefly address here a contention that did not arise in Evergreen.
Specifically, the dispensaries assert the City’s nuisance complaint was void at the outset
because the City failed to adhere to its own municipal code. The dispensaries claim the
City’s code required it to hold an administrative hearing before resorting to a civil action
in the superior court. But the dispensaries’ reliance on section 6.14.005 of the City code
does not support their claim.
Section 6.14.005 is entitled, “Involuntary Abatement,” and provides that
when the City attempts to abate a public nuisance by City administrative procedures, “the
Director [a City administrator unspecified by the parties] shall cause a hearing to be held
2 The court also rejected the dispensaries’ claim they fit within the “Service
business” category. Whether a dispensary “fits” within any particular category is
intertwined with the claim those categories were too vague and therefore violated due
process by rendering all other uses a per se violation of the City’s zoning code. “Mindful
of the prudential rule of judicial restraint that counsels against rendering a decision on
constitutional grounds if a statutory basis for resolution exists” (NBC Subsidiary (KNBC-
TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1190), we do not reach the
dispensaries’ due process or other constitutional claims. This appeal turns instead on the
intersection of local ordinances and statutory medical marijuana law.

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to determine whether said building, structure or property is being maintained in such a
manner so as to constitute a public nuisance.” Nothing in section 6.14.005, however,
states or suggests that a City administrative hearing is a mandatory prerequisite that must
precede a civil nuisance cause of action. To the contrary, state law provides that
criminal, civil, and administrative proceedings are alternative remedies “against a public
nuisance.” (Civ. Code, § 3491.) “[T]he public entity is free to choose any of the three
options.” (Flahive v. City of Dana Point (1999) 72 Cal.App.4th 241, 244 (Flahive).)
Section 1.01.240(A) and (B) of the City’s municipal code reflect that this
choice rests in the City’s discretion. Subsection (A) provides that violations of the City
code constitute a public nuisance that “may be summarily abated as such by the City.”
(§ 1.01.240(A); see Flahive, supra, 72 Cal.App.4th at p. 245, fn. 5 [classifying “summary
abatement” as “administrative abatement”].) Subsection (B) provides as an alternate
remedy that public nuisances “may be abated by the City Attorney in a civil judicial
action.” (§ 1.01.240(B).) Nothing in section 1.01.240 (A) or (B) suggests the City first
must pursue administrative abatement proceedings before filing a civil action. Similarly,
the parties provide us only snippets of the municipal code’s nuisance chapter (§ 6.14), but
nothing therein suggests an administrative prehearing requirement before the City may
file a nuisance complaint. The dispensaries’ claim is therefore without merit. (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564 [burden rests on appellant to demonstrate
error].)
Nevertheless, as in Evergreen, the City obtained the preliminary injunction
here based solely on a total ban against dispensaries rendering them a per se nuisance,
contrary to state law determining dispensary activities are not necessarily a nuisance. As

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a matter of law, the City therefore could not prevail on its per se nuisance cause of action,
and the trial court erred in granting the preliminary injunction.
IV
DISPOSITION
The preliminary injunction is reversed, our stay of the injunction is
dissolved when the remittitur issues from this court, and the matter is remanded for
further proceedings not inconsistent with this opinion. The dispensaries are entitled to
their costs on appeal.
ARONSON, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
FYBEL, J.

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