Urgent Care Med. Servs. v. City of Pasadena

230 Cal. Rptr. 3d 892, 21 Cal. App. 5th 1086
CourtCalifornia Court of Appeal, 5th District
DecidedMarch 5, 2018
DocketB277827; B277868
StatusPublished
Cited by12 cases

This text of 230 Cal. Rptr. 3d 892 (Urgent Care Med. Servs. v. City of Pasadena) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Urgent Care Med. Servs. v. City of Pasadena, 230 Cal. Rptr. 3d 892, 21 Cal. App. 5th 1086 (Cal. Ct. App. 2018).

Opinion

COLLINS, J.

*1088INTRODUCTION

The City of Pasadena filed a nuisance abatement action against several businesses and individuals related to medical marijuana dispensaries, which are prohibited by the Pasadena Municipal Code (PMC). The defendants in that action later filed a lawsuit against the City of Pasadena, and the two cases were deemed related. In each of the two actions, the trial *894court granted Pasadena's request for injunctions, prohibiting defendants from operating their medical marijuana dispensaries in Pasadena. The defendants appealed from each order, and we consolidated the appeals.

On appeal, defendants assert three main arguments: that the relevant Pasadena Municipal Code ordinance sections do not render medical marijuana dispensaries a nuisance per se, one relevant ordinance section was not properly enacted, and counsel for Pasadena lacked authorization to bring the actions. We disagree on each point, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 9, 2015, Pasadena and the People of the State of California (collectively, Pasadena) filed a second amended complaint seeking injunctive relief and nuisance abatement.1 Because this appeal arises from multiple superior court cases, we will refer to the action initiated by Pasadena as the injunction action. Pasadena named the following parties as defendants: Medical Cannabis Caregivers Institute, Good Leaf Collective, Landmark Research Collective, Liz McDuffie, Sunny Chan, Shaun Szameit, Karen Pike, *1089Urban Farms Delivery, Liz McDuffie/Szameit Trust, and Pasadena ECB Mall, LLC. Golden State Collective was included as a defendant in the body of the complaint, but not listed on the title page. Pasadena's complaint alleged that defendants were the owners, occupiers, and/or users of certain commercial properties that were "using the land and premises as a medical marijuana dispensary. The use of land and premises for a medical marijuana dispensary is prohibited by the Zoning Code of the City of Pasadena." The complaint alleged that the use of the properties was in violation of various sections of the PMC, and was a nuisance per se and a public nuisance. Pasadena asked that defendants' actions be abated and enjoined.

On December 23, 2015 Pasadena moved ex parte for a temporary restraining order and preliminary injunction prohibiting defendants from violating the PMC's Zoning Code by "operating a prohibited use, to wit, a medical marijuana dispensary .... Specifically, to provide, make available, or distribute medical marijuana to a primary caregiver, a qualified patient, or a person with an identifications [sic ] card issued in accordance with California Health and Safety Code Section 11362.5 et seq." Pasadena asserted that PMC section 17.80.020M defined "medical marijuana dispensary (land use)" and within that definition stated, "This use is prohibited in the City of Pasadena." Pasadena also stated that "Section 17.78.060A of the Zoning Code states in pertinent part that any use contrary to the code is unlawful and a public nuisance." Pasadena also noted that other PMC sections defined violations of the PMC as nuisances.

Pasadena's application was supported by the declarations of David Reavis, a sergeant with the Pasadena Police Department, and Luis Lopez, an investigator for the city attorney/city prosecutor's office. Both Reavis and Lopez stated that marijuana was being sold on the premises named in the injunction application.

Defendants opposed the ex parte application for an injunction. They argued that the application was not supported by sufficient evidence because the Reavis and Lopez declarations contained hearsay. Defendants also argued there was no showing of immediate and irreparable harm. In addition, *895defendants asserted that Pasadena could not demonstrate a likelihood of success on the merits because the relevant Pasadena ordinance 7018, which was eventually codified as PMC section 17.80.020, "was not adopted consistent with state law: no proper noticed hearing occurred, the matter was continued in violation of the Pasadena municipal code, and the substance was not addressed by the Planning Commission."

Defendants' opposition was supported by the declaration of defendants' attorney, Stanley H. Kimmel. Kimmel stated that the Planning Commission *1090proposed a revision to the Zoning Code to define medical marijuana dispensaries on January 26, 2005. The Planning Commission then forwarded that recommendation to the City Council, which noticed a hearing on the issue, but continued the hearing several times. Kimmel stated that the hearing regarding the proposed rule was eventually held on July 18, 2005, and that the hearing was included in the agenda for the meeting on that date. Kimmel argued that the schedule for adoption of the ordinance violated hearing and notice requirements in the PMC. Kimmel also asserted that the initial language defined "medical marijuana dispensary," but did not ban such a land use. Kimmel said that ordinance 7018, which included language prohibiting medical marijuana dispensaries, was adopted without a required public hearing in September 2005. Although Kimmel quoted several documents throughout his declaration, such as City Council agenda statements, none of the documents is included as an exhibit.

On February 16, 2016, in a separate lawsuit, defendants and several others2 sued Pasadena and Pasadena mayor Terry Tornek seeking declaratory and injunctive relief. We will refer to this as defendants' action. Defendants' complaint alleged that customers of the marijuana dispensaries had serious medical issues and benefited from cannabis products. Defendants alleged that Pasadena was improperly enforcing the PMC ban on medical marijuana dispensaries. Defendants' complaint also alleged that PMC section 17.80.020M, defining a medical marijuana dispensary, was not enacted in compliance with relevant laws, and therefore was void. Defendants requested, in part, a declaration stating that the PMC does not ban medical marijuana dispensaries. Defendants also filed a notice of related cases for Pasadena's injunction action and two additional cases. The superior court deemed the cases related and assigned them to the same judge.

On March 1, 2016, Pasadena filed its reply to defendants' opposition in the injunction action. Pasadena noted that defendants did not refute that defendants are operating medical marijuana dispensaries in the City of Pasadena. Pasadena further argued that it employs "permissive zoning," which means that if a land use is not specifically listed in the Zoning Code, it is prohibited. Because a medical marijuana dispensary was not listed as an allowed use in the Zoning Code, such a use was not allowed. In 2005, Pasadena added the definition of a medical marijuana dispensary to the PMC by enacting section 17.80.020M. Pasadena pointed out that because the ordinance was adopted in 2005, defendants' challenge to it was time-barred because "facial challenges to zoning provisions are subject to the 90-day limitation period" under *1091

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Cite This Page — Counsel Stack

Bluebook (online)
230 Cal. Rptr. 3d 892, 21 Cal. App. 5th 1086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/urgent-care-med-servs-v-city-of-pasadena-calctapp5d-2018.