The Clearview Lake Corp. v. County of San Bernardino CA4/2 (2014) · DecisionDepot
The Clearview Lake Corp. v. County of San Bernardino CA4/2
California Court of Appeal Mar 11, 2014 No. E056208Unpublished
Filed 3/11/14 The Clearview Lake Corp. v. County of San Bernardino CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE CLEARVIEW LAKE CORPORATION et al., E056208 Plaintiffs and Appellants, (Super.Ct.No. CIVDS1107269) v. OPINION COUNTY OF SAN BERNARDINO,
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Donna G. Garza,
Judge. Affirmed.
Law Offices of Lawrence R. Bynum and Lawrence R. Bynum for Plaintiffs and
Appellants.
Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County
Counsel, for Defendant and Respondent.
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I. INTRODUCTION
In April 2011, defendant and respondent County of San Bernardino (the County)
adopted an ordinance prohibiting any “medical marijuana dispensary” from operating in
unincorporated areas of the County. (San Bernardino County Code, §§ 82.02.070 [the
under the Compassionate Use Act of 1996 (CUA) (Health & Saf. Code, § 11362.5 et
seq.), the Medical Marijuana Program (MMP) (Health & Saf. Code, § 11362.7 et seq.),
and guidelines issued by the Office of the California Attorney General. Plaintiffs sought
a judicial declaration that the ordinance was “unlawful and unconstitutional,” principally
because it was preempted by the CUA and the MMP and also because it violated their
equal protection, privacy, and substantive due process rights. The trial court sustained
the County’s general demurrer to the complaint, without leave to amend, and plaintiffs
appealed.
We affirm the judgment of dismissal. On May 6, 2013, after the parties filed their
briefs on appeal, the California Supreme Court determined that neither the CUA nor the
MMP preempts or limits local governments from prohibiting medical marijuana
1 Plaintiffs and appellants are The Clearview Lake Corporation, Ameripro Management, Inc., Camino Caregivers, and Doc Holliday’s Collective. In September 2013, Doc Holliday’s Collective dismissed its appeal, but the other plaintiffs continue to press their appeal.
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dispensaries in their jurisdictions. (City of Riverside v. Inland Empire Patients Health &
Wellness Center, Inc. (2013) 56 Cal.4th 729, 738, 752-760 (Inland Empire).) In view of
Inland Empire, there is no actual, current controversy between the parties, for this court
or the trial court to determine, concerning whether the ordinance is preempted by the
CUA or the MMP.
Plaintiffs also claim they are entitled to a judicial declaration that the ordinance is
an unconstitutional exercise of the County’s police power under the “regional welfare”
doctrine and that the ordinance also violates their equal protection, privacy, and
substantive due process rights. Each of these claims lack merit simply because plaintiffs
have no constitutional right to cultivate, stockpile, or distribute marijuana. (Maral v. City
of Live Oak (2013) 221 Cal.App.4th 975, 984; People v. Urziceanu (2005) 132
Cal.App.4th 747, 774.)
II. BACKGROUND
A. The Challenged Ordinance
In April 2011, the County enacted San Bernardino County Ordinance No. 4140
(the ordinance), which became effective on May 5, 2011. (San Bernardino County Code,
§ 82.02.070.) The ordinance provides, in part: “[I]n no event shall a medical marijuana
dispensary as defined in Section 810.01.150 be considered a permitted or conditionally
permitted use in any land use zoning district.” (Ibid.) San Bernardino County Code
section 810.01.150 defines a medical marijuana dispensary as “any facility or location,
whether fixed or mobile, where marijuana is cultivated, made available, and/or
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distributed by or to three or more persons within the following categories: a primary
caregiver, a qualified patient, or a patient with an identification card, as those terms are
defined in Health and Safety Code Sections 11362.5 [the CUA] and 11362.7 et seq. [the
MMP] as such sections may be amended from time to time.” (San Bernardino County
Code, § 810.01.150, subd. (q)(1).)
San Bernardino County Code section 810.01.150 excludes certain “uses” from the
definition of “medical marijuana dispensary,” provided such uses may be lawfully
established and operated in compliance with the county code, the CUA, and the MMP:
an “in-patient ‘health facility,’” a “‘residential care facility for persons with chronic life-
threatening illness[es],’” a “‘residential care facility for the elderly,’” a “‘home health
agency,’” and a nonexempt “‘hospice,’” as these terms are defined in the Health and
Safety Code. (San Bernardino County Code, § 810.01.150, subd. (q)(2).) The ordinance
further states that it “shall not affect the right to possess, use or cultivate marijuana for
medicinal purposes as is presently authorized or prohibited by the laws of the State of
California as set forth in the Health and Safety Code, Penal Code, or other state law, or
by any federal law.” (San Bernardino County Code, § 82.02.070.)
B. The County’s Findings
In enacting the ordinance, the County Board of Supervisors made several findings,
including the following:
(1) Federal law, namely, the Controlled Substances Act (the CSA) (21 U.S.C.
§ 801 et seq.) “makes it unlawful to manufacture, distribute or possess any controlled
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substances, including marijuana, which has, as a Schedule I drug under the CSA, ‘no
accepted medical value in treatment,’” and that sections 11357 and 11358 of the
California Health and Safety Code “make it a crime, respectively, to possess and cultivate
marijuana”;
(2) “[O]n November 5, 1996, California voters approved Proposition 215
(codified as Health and Safety Code Section 11362.5, and titled the ‘Compassionate Use
Act of 1996’ (‘CUA’)), intended 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 various
illnesses, and that Health and Safety Code sections 11357 and 11358, relating to the
possession and 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 recommendation or approval of a physician”;
(3) The MMP was enacted in 2004 “to clarify the scope of the CUA and to allow
cities and counties to adopt and enforce regulations consistent with the CUA and MMP”;
(4) The conflict between federal and state law, namely, the CSA on the one hand,
and the CUA and MMP on the other, creates “a law enforcement dilemma”;
(5) “[A]lthough state law purports to create a limited affirmative defense to
criminal prosecution for qualifying persons who collectively gather to cultivate medical
marijuana, there is no provision in state law which authorizes or protects the
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establishment of a medical marijuana dispensary, other storefront distribution operation,
or other facility to distribute marijuana” (italics added); and
(6) “[O]ther jurisdictions in California that have allowed or legally permitted the
establishment of medical marijuana dispensaries . . . have experienced an increase in
crime, such as loitering, theft, burglary, robbery, homicide and sale[s] of illegal drugs in
the areas immediately surrounding such facilities . . . .”
C. Plaintiffs’ First Amended Complaint
In a first amended complaint filed in October 2011 (the complaint),2 plaintiffs
alleged they were lawfully operating in unincorporated areas of the County as medical
marijuana “collectives” pursuant to state law and “medical marijuana guidelines,” first
issued in August 2008, by the Office of the California Attorney General (the guidelines).
Each plaintiff is a nonprofit mutual benefit corporation whose members comprise
“California residents with a physician’s written recommendation to use medical
cannabis.” Plaintiffs were formed so that their members could “collectively cultivate,
possess, transport and distribute medical cannabis” pursuant to the guidelines.
The complaint seeks a judicial declaration that the ordinance is “unlawful and
unconstitutional” on several statutory and constitutional grounds. In six causes of action,
the complaint alleges: (1) the ordinance is “unlawful and unconstitutional”; (2) the
2 Plaintiffs’ original complaint, filed in May 2011, sought a judicial declaration that the ordinance was “unlawful and unconstitutional” on various grounds. The County filed a general demurrer. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiffs filed no opposition, but requested leave to amend the complaint at the hearing on the demurrer, which the trial court granted.
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ordinance violates plaintiffs’ “vested rights to operate their medical marijuana
collectives” under Civil Code section 52.1 and article I, section 7 of the California
Constitution; (3) the ordinance violates plaintiffs’ equal protection rights because it treats
medical marijuana dispensaries differently from “primary caregivers,” including “health
facilities,” who are exempted from the ordinance (Cal. Const., art. I, § 7); (4) the
ordinance is inconsistent with state law that allows for the collective cultivation,
possession, and distribution of marijuana or medical cannabis (Cal. Const., art. XI, § 7);
(5) the ordinance violates plaintiffs’ freedom of association rights (U.S. Const., 1st &
14th Amends.); and (6) the ordinance violates plaintiffs’ privacy rights (Cal. Const., art.
I).
C. The County’s Demurrer and the Trial Court’s Ruling
As indicated, the County demurred to the complaint on the ground it failed to state
a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Following a January 30, 2012,
hearing, the trial court sustained the demurrer, without leave to amend, and entered a
judgment of dismissal.3 Plaintiffs timely appealed.
III. DISCUSSION
A. Standard of Review
“‘A demurrer tests the legal sufficiency of factual allegations in a complaint.’
[Citation.] The standard of review on appeal from a dismissal after an order sustaining a
3 On January 25, 2012, the County cross-complained against plaintiffs for a preliminary and permanent injunction, enjoining them from operating as medical marijuana dispensaries anywhere in the County.
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demurrer is well established. ‘[W]e review the order de novo, exercising our independent
judgment about whether the complaint states a cause of action as a matter of law.
[Citations.]’ [Citation.] We give the complaint a reasonable interpretation, and treat the
demurrer as admitting all material facts properly pleaded. [Citation.] ‘We do not,
however, assume the truth of contentions, deductions, or conclusions of fact or law.
[Citation.]’ [Citation.]” (Maral v. City of Live Oak, supra, 221 Cal.App.4th at p. 980.)
“‘The fundamental basis of declaratory relief is the existence of an actual, present
controversy over a proper subject.’” (City of Cotati v. Cashman (2002) 29 Cal.4th 69,
79; Code Civ. Proc., § 1060.) In ruling on a demurrer to a complaint for declaratory
relief, courts will evaluate whether the factual allegations of a complaint reveal that an
actual, present controversy exists between the parties. (Otay Land Co. v. Royal
Indemnity Co. (2008) 169 Cal.App.4th 556, 562.)
B. Plaintiffs’ Preemption Claim Has Already Been Determined Adversely to Plaintiffs
Plaintiffs principally claim they are entitled to a judicial determination, between
themselves and the County, that the ordinance is unlawful because it is inconsistent with
and preempted by the CUA and the MMP.
As noted, however, on May 6, 2013, after the parties filed their briefs on appeal,
the California Supreme Court held that neither the CUA nor the MMP either expressly or
impliedly preempt or limit local governments from completely prohibiting medical
marijuana distribution facilities in their jurisdictions. (Inland Empire, supra, 56 Cal.4th
at pp. 738, 752-760 [nothing in the CUA nor the MMP “limits the inherent authority of a
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local jurisdiction, by its own ordinances, to regulate the use of its land, including the
authority to provide that facilities for the distribution of medical marijuana will not be
permitted to operate within its borders.”].)
Of course, this court and the trial court are bound by Inland Empire. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) There is therefore no actual,
present controversy between the parties concerning whether the ordinance is preempted
by the CUA or the MMP. (Otay Land Co. v. Royal Indemnity Co., supra, 169
Cal.App.4th at p. 562 [declaratory relief action requires actual, present controversy
between the parties].) The controversy has already been decided adversely to plaintiffs.
Next, plaintiffs claim the ordinance is an invalid exercise of the County’s police
power because it “unreasonably affects the regional welfare of medical marijuana
patients.” (Italics added.) That is, plaintiffs claim the ordinance unreasonably and
adversely affects the ability of medical marijuana patients, living in and around the
County, to lawfully obtain medical marijuana.
Plaintiffs rely on Associated Home Builders Etc., Inc. v. City of Livermore (1976)
18 Cal.3d 582 (Associated Home Builders). There, the plaintiffs claimed that a City of
Livermore ordinance prohibiting the issuance of residential building permits—until such
time as local water supply, sewage disposal, and educational facilities complied with
specified standards—was an unconstitutional exercise of the city’s police power because
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it unreasonably affected the ability of nonresidents of the city to move into the city. (Id.
at pp. 588, 604.)
The court first affirmed the long-settled principle that a land use ordinance is a
constitutional exercise of the municipality’s police power if it is “reasonably related to
the public welfare.” (Associated Home Builders, supra, 18 Cal.3d at pp. 605-607.) The
court then explained that when an ordinance “significantly affects nonresidents of the
municipality,” the public welfare becomes “the regional welfare” and ordinance must be
reasonably related to “the regional welfare.” (Id. at pp. 607-608.) “[T]he proper
constitutional test . . . inquires whether the ordinance reasonably relates to the welfare of
[the nonresidents] it significantly affects.” (Id. at p. 607.)
The court explained “the process by which a trial court may determine whether a
challenged restriction reasonably relates to the regional welfare. The first step . . . is to
forecast the probable effect and duration of the restriction. . . . [¶] The second step is to
identify the competing interests affected by the restriction. . . . [¶] . . . [T]he final step is
to determine whether the ordinance, in light of its probable impact, represents a
reasonable accommodation of the competing interests.” (Associated Home Builders,
supra, 18 Cal.3d at pp. 608-609, fn. omitted.) “The burden rests with the party
challenging the constitutionality of an ordinance to present the evidence and
documentation which the court will require in undertaking this constitutional analysis.”
(Id. at p. 609.)
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As the County points out, plaintiffs did not raise their police power/regional
welfare claim in the trial court. Moreover, the complaint alleges no facts concerning the
probable effect and duration of the ordinance; the competing interests affected by the
ordinance; or whether the ordinance, in light of its probable impact, represents a
reasonable accommodation of the competing interests. (Associated Home Builders,
supra, 18 Cal.3d at pp. 608-609.) And as indicated, there is no constitutional right to
cultivate, stockpile, or distribute marijuana. (People v. Urziceanu, supra, 132
Cal.App.4th at p. 774.) Plaintiffs cite no authority that the County was required to
accommodate their interests in enacting the ordinance.
Thus, the complaint does not and cannot state a claim that the ordinance represents
an unreasonable exercise of the County’s police power under the regional welfare
doctrine. (Estate of Dito (2011) 198 Cal.App.4th 791, 800-801 [when facts as pleaded do
not state a cause of action, the plaintiff must demonstrate a reasonable possibility that
defect may be cured by amendment].)
2. Plaintiffs’ Equal Protection, Privacy, and Substantive Due Process Claims
Lastly, plaintiffs claim the ordinance violates their constitutional rights to equal
protection, privacy, and due process.4
Like plaintiffs’ regional welfare claim, none of these claims are sufficiently
pleaded in the complaint. Nor have plaintiffs supported them with citations to supporting
4 Plaintiffs have abandoned the other constitutional claims pleaded in their complaint, including that the ordinance violates their “vested right to operate a business” and their First and Fourteenth Amendment rights to freedom of association.
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authority. “An appellate court is not required to examine undeveloped claims, nor to
make arguments for parties. [Citation.]” (Paterno v. State of California (1999) 74
Cal.App.4th 68, 106; City of Riverside v. Horspool (Jan. 16, 2014, E051500, E053605)
___ Cal.App.4th ___ [2014 Cal.App. Lexis 99 [at [16], fn. 8].) Instead, our role is to
evaluate “‘legal argument with citation of authorities on the points made.’” (People v.
Stanley (1995) 10 Cal.4th 764, 793.)
In any event, plaintiffs’ equal protection, privacy, and substantive due process
claims fail because there is no state or federal constitutional right to cultivate, stockpile,
or distribute marijuana. (People v. Urziceanu, supra, 132 Cal.App.4th at p. 774.)
Indeed, “[n]o state law could completely legalize marijuana for medical purposes because
the drug remains illegal under federal law [citation], even for medical users [citation].”
(Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 926.)
IV. DISPOSITION
The judgment is affirmed. The County shall recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING J.
We concur:
RAMIREZ P. J.
HOLLENHORST J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that local governments have the authority to prohibit medical marijuana dispensaries, as neither the Compassionate Use Act nor the Medical Marijuana Program preempts such ordinances. Furthermore, the court held that plaintiffs' constitutional claims failed because there is no protected right to cultivate, stockpile, or distribute marijuana.
Issues
Whether the Compassionate Use Act and the Medical Marijuana Program preempt local ordinances prohibiting medical marijuana dispensaries.
Whether the ordinance constitutes an unconstitutional exercise of police power under the regional welfare doctrine.
Whether the ordinance violates plaintiffs' rights to equal protection, privacy, and substantive due process.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Each of these claims lack merit simply because plaintiffs have no constitutional right to cultivate, stockpile, or distribute marijuana.”