Maral v. City of Live Oak

Filed 11/26/13
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sutter)
----

JAMES MARAL et al., C071822

Plaintiffs and Appellants, (Super. Ct. No. CVCS120144)

CITY OF LIVE OAK,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Sutter County, Perry Parker,
Judge. Affirmed.
John J. Fuery for Plaintiffs and Appellants.
Rich, Fuidge, Morris & Lane, Inc., Brant J. Bordsen and Landon T. Little, for
Defendant and Respondent.

In December 2011, the City of Live Oak (the City) passed an ordinance
prohibiting the cultivation of marijuana for any purpose within the City. Plaintiffs sued,
contending the ordinance violated the Compassionate Use Act (CUA) (Health & Saf.
Code,1 § 11362.5), the Medical Marijuana Program (MMP) (§ 11362.7 et seq.), equal

1 Further undesignated statutory references are to the Health and Safety Code.

1
protection, and due process. The trial court sustained the City’s demurrer and dismissed
the complaint. Plaintiffs appeal.
Plaintiffs argue that the CUA and the MMP grant them the right to cultivate
medical marijuana. As our Supreme Court recently held in City of Riverside v. Inland
Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729 at page 753
(Inland Empire), the objectives of the CUA and MMP were “modest,” and those acts did
not create a “broad right” to access medical marijuana. Inland Empire held that the CUA
and the MMP do not preempt the authority of cities and counties to regulate, even
prohibit, facilities that distribute medical marijuana. (Id. at p. 762.) The reasoning of
Inland Empire applies to the cultivation of medical marijuana as well as its distribution,
as both are addressed in the CUA and MMP. Accordingly, we conclude the CUA and
MMP do not preempt a city’s police power to prohibit the cultivation of all marijuana
within that city. We shall affirm.
BACKGROUND
The Ordinance
On December 21, 2011, by a vote of 5-0, the City Council of the City adopted
Ordinance 538 (Ordinance) regarding the cultivation and sale of medical marijuana
within the city limits. The Ordinance added a new Chapter 17.17 to the Live Oak
Municipal Code (LOMC).
In adopting the ordinance, the City made several factual findings. It found that the
cultivation of medical marijuana had significant impacts or the potential for significant
impacts on the City. These impacts included damage to buildings, dangerous electrical
alterations and use, inadequate ventilation, increased robberies and other crime, and the
nuisance of strong and noxious odors. (LOMC, § 17.17.010, ¶ A.) The City also noted
the limited scope of the CUA, which the City said was to provide a criminal defense, and
of the MMP, which the City said was to establish a statewide identification program.
(Id., ¶ B.) The City found that the CUA and MMP had not “facilitated” their stated goals

2
as most use of marijuana was recreational, not medicinal. (Id., ¶ E.) Further, the
possession and cultivation of marijuana remained illegal under federal law, and the City
did not wish to violate federal law. (Id., ¶ J.)
Section 17.17.040 of the City’s Municipal Code prohibits marijuana cultivation:
“Marijuana cultivation by any person, including primary caregivers and qualified
patients, collectives, cooperatives or dispensaries is prohibited in all zone districts within
the City of Live Oak.” The Ordinance further provided that if section 17.17.040 was held
to be invalid or unconstitutional, marijuana cultivation required a zoning clearance and
compliance with numerous criteria. (LOMC, § 17.17.060.)
Section 17.17.070 prohibits medical marijuana collectives, cooperatives, and
dispensaries within the City. (LOMC, § 17.17.070.) Again, the Ordinance provided a
number of criteria to be met for prohibited medical marijuana collectives, cooperatives,
and dispensaries if the prohibition was held invalid. (LOMC, § 17.17.090.)
Any cultivation of marijuana in violation of Section 17.17.040 was declared
unlawful and a public nuisance. (LOMC, § 17.17.100.) The Ordinance became effective
30 days after its adoption.
The Lawsuit
Plaintiffs, James Maral, individually and as trustee of the Live Oak Patients,
Caregivers and Supporters Association, and other individuals, brought suit to enjoin
enforcement of the Ordinance.
The relevant complaint on appeal is the second amended complaint. It alleged that
the CUA gave seriously ill Californians the right to obtain and use marijuana for
medicinal purposes. The first cause of action alleged the Ordinance violated the CUA by
proscribing “activity that is not only legal, but that is a constitutionally-protected right in
California.” The second cause of action alleged the Ordinance violated the MMP by
proscribing “activity that has been preempted by State law.” The third cause of action
alleged a violation of equal protection because the Ordinance deprived plaintiffs of the

3
right to cultivate and use medical marijuana, without a rational basis. The fourth cause of
action alleged a violation of due process because the Ordinance deprived plaintiffs of the
constitutionally-protected right to cultivate and use medical marijuana. The second
amended complaint sought a declaration that the Ordinance was invalid, a preliminary
and permanent injunction, and attorney fees and costs.
The City demurred to this complaint on the grounds that it failed to state facts
sufficient to constitute a cause of action. The City argued there was no constitutional
right to cultivate marijuana and the Ordinance had a rational basis.
The trial court sustained the City’s demurrer without leave to amend. The court
entered an order dismissing the second amended complaint.
DISCUSSION
I
Standard of Review
“A demurrer tests the legal sufficiency of factual allegations in a complaint.”
(Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 42.) The
standard of review on appeal from a dismissal after an order sustaining a 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.]” (Lazar v.
Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) We give the complaint a reasonable
interpretation, and treat the demurrer as admitting all material facts properly pleaded.
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We do not, however, assume the truth of
contentions, deductions, or conclusions of fact or law. [Citation.]” (Moore v. Regents of
University of California (1990) 51 Cal.3d 120, 125.)
II
The CUA and MMP
In 1996, California voters adopted Proposition 215, the CUA. The CUA is
intended to “ensure that seriously ill Californians have the right to obtain and use

4
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”; to “ensure that patients and their primary caregivers
who obtain and use marijuana for medical purposes upon the recommendation of a
physician are not subject to criminal prosecution or sanction;” and “encourage the federal
and state governments to implement a plan to provide for the safe and affordable
distribution of marijuana to all patients in medical need of marijuana.” (§ 11362.5,
subds. (b)(1)(A)-(C).)
Rather than granting a blanket right to use marijuana for medical purposes, the
CUA only immunizes specific persons from criminal prosecution under two sections of
the Health and Safety Code. Thus, the CUA grants only “a limited immunity from
prosecution.” (People v. Mower (2002) 28 Cal.4th 457, 470.) The CUA provides:
“Section 11357, relating to the possession of marijuana, and Section 11358, relating to
the 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 written or oral recommendation or approval of a physician.” (§ 11362.5,
subd. (d).) The CUA creates only a limited defense to certain crimes, “not a
constitutional right to obtain marijuana.” (People v. Urziceanu (2005) 132 Cal.App.4th
747, 774.)
In 2003, the Legislature passed the MMP; it did so in part to clarify the scope of
the CUA and promote its uniform application “among the counties within the state.”
(Stats. 2003, ch. 875, § 1.) The MMP created a voluntary program for the issuance of
identification cards to qualified patients and primary caregivers. (§ 11362.71.)
The MMP also “immunizes from prosecution a range of conduct ancillary to the
provision of medical marijuana to qualified patients. [Citation.]” (People v. Mentch
(2008) 45 Cal.4th 274, 290 (Mentch).) “Section 11362.765 accords qualified patients,
primary caregivers, and holders of valid identification cards, an affirmative defense to

5
certain enumerated penal sanctions that would otherwise apply to transporting,
processing, administering, or giving away marijuana to qualified persons for medical
use.” (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1171 (Kruse).) The
MMP provides that specified individuals “shall not be subject, on that sole basis, to
criminal liability” under sections 11357 [possession], 11358 [cultivation], 11359
[possession for sale], 11366 [maintaining location for selling, giving away or using
controlled substances], 11366.5 [managing location for manufacture or storage of
controlled substance], or 11570 [“drug den” abatement law]. (§ 11362.765, subd. (a).)
This immunity extends to those “who associate within the State of California in order
collectively or cooperatively to cultivate marijuana for medical purposes.” (§
11362.775.) The MMP does not, however, “confer on qualified patients and their
caregivers the unfettered right to cultivate or dispense marijuana anywhere they choose.”
(County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 869 (Hill).)
III
Inland Empire
In Inland Empire, supra, 56 Cal.4th 729, the California Supreme Court considered
whether California’s medical marijuana laws preempt a local ban on facilities that
distribute medical marijuana. The court concluded they did not. (Id. at p. 737.)
The court noted the broad language of intent in the CUA--the language on which
plaintiffs rely--but found “the operative steps the electorate took toward these goals were
modest.” (Inland Empire, supra, 56 Cal.4th at p. 744.) The CUA only provided certain
protections to physicians who recommended medical marijuana to patients and declared
that two statutes prohibiting possession and cultivation of marijuana “did not apply” to
certain patients and their primary caregivers. (Ibid.) Similarly, while the Legislature
used some broad language in its declaration of intent in adopting the MMP, “the steps the
MMP took in pursuit of these objectives were limited and specific.” (Id., at p. 745.) The
MMP established a program for identification cards and granted specified persons

6
engaged in specified conduct certain immunities from criminal prosecution. (Ibid.)
Neither statute created a “broad right” of access to medical marijuana. (Id. at p. 753.)
The high court noted that its earlier decisions had “stressed the narrow reach of
these statutes.” (Inland Empire, supra, 56 Cal.4th at p. 745.) In Ross v. RagingWire
Telecommunications, Inc. (2008) 42 Cal.4th 920, the court found the modest and narrow
immunity provisions of the CUA did not require an employer to accommodate an
employee’s use of medical marijuana. “[T]he only ‘right’ to obtain and use marijuana
created by the [CUA] is the right of ‘a patient, or . . . a patient’s primary caregiver, [to]
possess[ ] or cultivate[ ] marijuana for the personal medical purposes of the patient upon
the written or oral recommendation or approval of a physician’ without thereby becoming
subject to punishment under sections 11357 and 11358 of the Health and Safety Code.”
(Id. at p. 929.) In Mentch, supra, 45 Cal.4th 274, the court declined to expand the
statutory definition of a “primary caregiver” to provide immunity to one whose
caregiving consisted principally of supplying marijuana and instructing on its use, and
who otherwise only sporadically took some patients to medical appointments.
Court of Appeal decisions also recognized “the limited reach of the CUA and the
MMP” and held these statutes did not preempt local land use regulations involving
medical marijuana. (Inland Empire, supra, 56 Cal.4th at p. 749; see Kruse, supra, 177
Cal.App.4th 1153 [upholding moratorium on medical marijuana dispensaries]; Hill,
supra, 192 Cal.App.4th 861 [upholding licensing and permitting for medical marijuana
dispensaries].)
Recently, in Browne v. County of Tehama (2013) 213 Cal.App.4th 704 (Browne),
we upheld an ordinance regulating the cultivation of medical marijuana. In doing so, we
held that “[n]either the Compassionate Use Act nor the Medical Marijuana Program
grants petitioners, or anyone for that matter, an unfettered right to cultivate marijuana for
medical purposes. Accordingly, the regulation of cultivation of medical marijuana does
not conflict with either statute.” (Id. at p. 711, original italics.)

7
Based on the modest objectives and the narrow scope of both the CUA and the
MMP, our Supreme Court found neither statute expressly or impliedly preempted a
zoning provision that prohibited a medical marijuana dispensary anywhere within the city
limits. (Inland Empire, supra, 56 Cal.4th at pp. 752, 762.) The court found that although
the MMP exempts “the cooperative or collective cultivation and distribution of medical
marijuana by and to qualified patients and their designated caregivers from prohibitions
that would otherwise apply under state law,” the MMP does not “mandate that local
governments authorize, allow, or accommodate the existence of such facilities.” (Id. at p.
759, original italics.) Local decisions to prohibit medical marijuana dispensaries “do not
frustrate the MMP’s operation.” (Id. at p. 761.)
IV
Analysis
Plaintiffs contend the Ordinance is “an impermissible amendment of the CUA.”
As we explained in Browne, supra, 213 Cal.App.4th at page 717, only the Legislature can
amend a statute, so the proper analysis is whether the Ordinance is preempted by state
law. Plaintiffs assert that no other municipality has banned cultivation of medical
marijuana; they suggest the City could have (and should have) adopted less stringent
regulation. But the choices other cities may have made with respect to medical marijuana
are irrelevant to our analysis of preemption in this particular case.
Here, plaintiffs contend the Ordinance conflicts with the CUA (and thus is
preempted by it), because the CUA created a right to obtain and use medical marijuana.
They rely on the first section of the CUA, that the CUA is 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
. . .” (§ 11362.5, subd. (b)(1)(A), italics added.) As we have explained, our Supreme
Court soundly rejected this argument in Inland Empire.

8
All four causes of action in the second amended complaint are premised on the
assertion that the CUA and the MMP create a right to cultivate marijuana. Plaintiffs
contend the Ordinance is invalid because it deprives them of the right to cultivate medical
marijuana in violation of the CUA, MMP, equal protection, and due process. Because, as
we held in Browne and our Supreme Court confirmed in Inland Empire, there is no right-
-and certainly no constitutional right--to cultivate medical marijuana, the premise of each
cause of action in plaintiffs’ second amended complaint fails. They have failed to state a
viable cause of action.2
In several undeveloped arguments, plaintiffs assert various contentions without
analysis or citation to authority. First, they claim “[m]edical marijuana patients, by
nature of the fact they are medical patients, have a limitation on a major life activity and
are disabled by California’s liberal standard. [¶] Consequently, the Plaintiff’s Second
Amended Complaint does state a full claim for an Equal Protection Violation.” Second,
they claim the actions of the City Council and other City employees in enacting the
Ordinance “were fraught with irregularities that arguably violated the Brown Act,
fundamental fairness, the right of citizens to be heard in a public forum.” Plaintiffs cite
various irregularities in public meetings, such as limiting public participation in meetings
to those who supported the Ordinance. They assert that because of those irregularities,
the second amended complaint stated a cause of action for violation of due process.
Third, plaintiffs contend that the City is “unnecessarily negatively impacting long-
cherished property rights” by prohibiting the cultivation of medical marijuana in one’s
home. They argue, “Qualified medical marijuana patients should have the right to use

2 The City requests that we take judicial notice of the following facts: Sutter County is
comprised of approximately 600 square miles, the majority of which is primarily
agricultural land; and the Sutter County Ordinance Code has no prohibitions and
restrictions on the cultivation of medical marijuana. Because we find this information
unnecessary to resolve the issues on appeal, we deny the request.

9
their homes as they see desire [sic], as long as this use does not infringe on the property
rights of their neighbors.” However, “[a]n 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.) Our role is to evaluate “legal argument with
citation of authorities on the points made.” (People v. Stanley (1995) 10 Cal.4th 764,
793.) Because plaintiffs have failed to make proper arguments on these points, we
decline to address them.
DISPOSITION
The judgment is affirmed. The City shall recover costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1) & (2).)

DUARTE , J.

We concur:

MAURO , Acting P. J.

HOCH , J.