Wagner v. City of Santa Ana CA4/3

Filed 9/28/20 Wagner v. City of Santa Ana 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MATT WAGNER,

Plaintiff and Appellant, G058405

v. (Super. Ct. No. 30-2019-01049618)

CITY OF SANTA ANA, OPINION

Defendant and Respondent;

PURPLE HOLLISTIC,

Real Party in Interest and Respondent.

Appeal from an order of the Superior Court of Orange County, Theodore R. Howard, Judge. Dismissed. Donna Bader for Plaintiff and Appellant. Sonia R. Carvalho and Kyle C. Nellesen; Dentons US and Justin Reade Sarno for Defendant and Respondent. Segreti Law Office and Louis M. Segreti for Real Party in Interest and Respondent.

INTRODUCTION The appeal of Matt Wagner from the denial of his petition for writ of mandate to compel respondent City of Santa Ana to issue him a permit for an adult-use marijuana retail business must be dismissed for lack of jurisdiction. Wagner’s notice of appeal was fatally deficient: it identified no order or judgment from which he appealed or the date of any order or judgment. It did not specify the code section authorizing the appeal. It did not even give his name as the appellant. Although California has a policy of liberal construction of notices of appeal, we must have something to construe. A notice of appeal that is, in effect, a blank page does not comply with California Rules of Court, rule 8.100 and is insufficient to confer jurisdiction. We requested and received supplemental briefing on the jurisdictional issue. FACTS The origin of this dispute lies in the legalization of marijuana, first for medicinal purposes and then for general adult use. Santa Ana’s municipal code was amended in 2015 to regulate medical marijuana dispensaries. Regulatory service permits (RSPs) were distributed through a lottery. Unsuccessful applicants for permits were placed on a waiting list, and as the lottery winners dropped out for one reason or another, applicants moved off the waiting list and onto the eligibility list. Both Wagner and real party in interest Purple Hollistic were on the 2015 waiting list. Purple Hollistic’s position was 18; Wagner’s was 159. In 2017, Chapter 40 was added to the Santa Ana Municipal Code to regulate adult-use marijuana retail businesses. Both Purple Hollistic and Wagner applied for one of the limited number of adult-use RSPs. Santa Ana refused to continue processing Wagner’s application because Purple Hollistic had already applied for a retail permit at the site Wagner had chosen, and the regulations prohibited two marijuana businesses from operating within 500 feet of each other.