21 Cal. App. 5th 1086
Cal. Ct. App. 5th2018Background
- Pasadena sued multiple operators of medical marijuana dispensaries seeking nuisance abatement and preliminary injunctions, alleging the uses violated the Pasadena Municipal Code (PMC) and were nuisances per se.
- Pasadena moved ex parte for temporary restraining orders and preliminary injunctions supported by police and city investigator declarations; defendants opposed on evidentiary and procedural grounds.
- Defendants separately sued the City seeking declaratory relief that the PMC does not ban dispensaries and challenged the validity of PMC §17.80.020M (Ordinance 7018) and City authorization for enforcement; the cases were related and consolidated on appeal.
- Trial court granted preliminary injunctions in both actions prohibiting dispensing activity; defendants appealed contending (1) no nuisance-per-se declaration, (2) ordinance adoption was procedurally invalid, and (3) City Council did not authorize the actions.
- The Court of Appeal reviewed the injunction standard (likelihood of success and interim harm), found municipalities may exclude dispensaries under land-use powers, and affirmed the injunctions.
Issues
| Issue | Plaintiff's Argument (Pasadena) | Defendant's Argument | Held |
|---|---|---|---|
| Whether PMC establishes a nuisance per se for medical marijuana dispensaries | PMC defines "medical marijuana dispensary" and PMC makes non‑permitted uses nuisances; permissive zoning means the use is prohibited | §17.80.020M is only a definition and not an "express declaration" of nuisance; general nuisance provisions are insufficient | Court: Combined PMC provisions (definition + permissive zoning + nuisance provision) sufficiently declare dispensaries a nuisance per se; injunction proper |
| Whether adoption of Ordinance 7018 (PMC §17.80.020M) was procedurally defective | Ordinance was lawfully adopted in 2005; any challenge is untimely | Ordinance adopted without required notice/hearing, so void | Court: Procedural challenge time‑barred under Gov. Code §65009(c)(1)(B) because ordinance was adopted in 2005 and was not challenged within 90 days |
| Whether City Attorney had City Council authorization to file injunctive actions | City Council authorized initiation of civil abatement actions (minutes, public reports, meeting recaps) | City authorization documents are self‑serving and unreliable; City Attorney not present | Court: Record shows Council authorized actions (July 21, 2014 direction and February 29, 2016 reiteration); defendants failed to show lack of authorization |
| Standard of review and entitlement to injunction given municipal ordinance | Where ordinance provides injunctive relief for violation, governmental showing of likelihood of success implies public harm | Defendants disputed evidence and harm balance; argued lack of procedural and substantive grounds | Court: No abuse of discretion; preliminary injunction affirmed given statutory scheme and defendants’ admissions they operated dispensaries |
Key Cases Cited
- Beck Development Co. v. Southern Pacific Transportation Co., 44 Cal. App. 4th 1160 (express declaration required for nuisance per se principle)
- City of Monterey v. Carrnshimba, 215 Cal. App. 4th 1068 (permissive zoning + nuisance provision supports nuisance per se finding for dispensaries)
- City of Riverside v. Inland Empire Patients Health & Wellness Ctr., Inc., 56 Cal. 4th 729 (state law does not preempt municipal land‑use authority to exclude dispensaries)
- IT Corp. v. County of Imperial, 35 Cal. 3d 63 (where ordinance provides injunctive relief, governmental showing of likelihood of success supports presumption of public harm)
- City of Costa Mesa v. Soffer, 11 Cal. App. 4th 378 (nuisance per se requires proof only of the prohibited condition)