City of Brea v. Cloud 9 CA4/3

Filed 1/15/14 City of Brea v. Cloud 9 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CITY OF BREA, G046638 Plaintiff and Respondent, (Super. Ct. No. 30-2011-00444494) v. OPINION CLOUD 9, Inc.,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed. Law Offices of Matthew S. Pappas, Mathew S. Pappas; Anthony Curiale, John J. Murphy, III, and Donna Bader for Defendant and Appellant. James L. Markman, City Attorney; Richards Watson & Gershon,T. Peter Pierce and Julie A. Hamill for Plaintiff and Respondent. * * *

Under Code of Civil Procedure section 731, which authorizes city officials to file a nuisance abatement action under Civil Code section 3480 in the name of the People of California, the City of Brea (the city) filed a nuisance cause of action against Cloud 9, Inc. (Cloud 9) for operating a medical marijuana dispensary in violation of a city ordinance banning such property uses. On summary judgment, the trial court upheld the ban against Cloud 9’s claim it was preempted by state medical marijuana law, found Cloud 9’s dispensary activities therefore constituted a per se nuisance based on the ban, entered a permanent injunction against the dispensary, and Cloud 9 now appeals. During

the pendency of this appeal, the California Supreme Court concluded in City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729 (Inland Empire) that local governments may ban medical marijuana dispensaries without triggering preemption by the voters’ enactment of the Compassionate Use Act of 1996 (CUA; Health & Saf. Code, § 11362.5; all further statutory references are to this code unless noted) or California’s Medical Marijuana Program (MMP; § 11362.7 et seq.).

In supplemental briefing, Cloud 9 contends Inland Empire is not dispositive because it did not resolve whether state medical marijuana law preempts local governments from enforcing dispensary bans with misdemeanor penalties typically used