COUNTY OF KERN, Plaintiff and Respondent, v. T.C.E.F., INC., et al., Defendants and Appellants.
No. F070813
Fifth Dist.
Apr. 5, 2016
246 Cal. App. 4th 301
Law Office of Abraham A. Labbad and Abraham A. Labbad for Defendants and Appellants.
Theresa A. Goldner, County Counsel, Charles F. Collins, Deputy County Counsel; Hogan Law and Michael M. Hogan for Plaintiff and Respondent.
OPINION
FRANSON, J.—
INTRODUCTION
The County of Kern (County)1 sued defendants to enjoin the operation of a medical marijuana dispensary in an unincorporated area of Kern County. The trial court granted a preliminary injunction. Defendants appealed.
The unusual facts of this case involve the referendum power of county voters to protest a newly adopted ordinance pursuant to
Historical Background. In 2009, County enacted an ordinance effectively authorizing medical marijuana dispensaries in commercially zoned areas, which include defendants’ location in Rosamond, California. In 2011, County approved a new ordinance banning medical marijuana dispensaries throughout County‘s jurisdiction. The new ordinance would have repealed and replaced the 2009 ordinance if it had become effective. The new ordinance banning dispensaries did not become effective because it was suspended by operation of
County‘s board of supervisors responded in 2012 to the protest petition by (1) presenting County voters with an alternate ordinance called referendum Measure G and (2) adopting a separate repeal ordinance that stated “Chapter 5.84 of Title 5 of the Kern County Ordinance Code is hereby repealed in its entirety.” Chapter 5.84 was where the 2011 dispensary ban would have been codified and where the predecessor 2009 ordinance, authorizing dispensaries in commercially zoned areas, was set forth. In County‘s view, its 2012 repeal ordinance rescinded all prior ordinances codified in chapter 5.84, including its 2011 attempted ban of medical marijuana dispensaries and the 2009 ordinance that authorized dispensaries in commercial zones.
Measure G was approved by 69 percent of the vote in the June 2012 election. Its provisions authorized dispensaries to operate in industrial zones and subjected them to several restrictions. After the election, some dispensaries located in commercially zoned areas filed an action challenging the validity of Measure G, alleging the environmental review required by the California Environmental Quality Act (CEQA;
The Injunction. The foregoing history of County‘s ordinances is relevant to the legal basis for the preliminary injunction that directs defendants to cease and desist operating a medical marijuana dispensary in a commercially zoned area of Rosamond. County argued that, after Measure G was invalidated and the repeal ordinance was in effect, no ordinance permitted medical marijuana dispensaries to operate within County‘s jurisdiction and, without express authorization, dispensaries are prohibited. (See City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 433 [83 Cal.Rptr.3d 1] [dispensaries were an impermissible land use because they were not expressly permitted by city‘s municipal
Issues Presented. The dispute over the continued effect of the 2009 ordinance requires this court to interpret
Conclusions. We interpret the phrase “entirely repeal the ordinance” to mean that a board of supervisors must (1) revoke the protested ordinance in all its parts and (2) not take additional action that has the practical effect of implementing the essential feature of the protested ordinance. Applying this interpretation, we conclude the board of supervisors did more than entirely repeal the protested ordinance banning dispensaries when it revoked that ordinance and took the additional action of repealing the 2009 ordinance, which authorized dispensaries. The practical effect of repealing the 2009 ordinance was to prohibit dispensaries, which was essentially the same as the ban of dispensaries protested by voters. Therefore, we conclude County violated
We therefore reverse the order granting the preliminary injunction.
FACTS
Parties
County filed this litigation to obtain a preliminary and permanent injunction against defendants’ operation of a medical marijuana dispensary in Rosamond. County alleged that its zoning ordinances do not authorize medical marijuana dispensaries to operate in the unincorporated areas of Kern County and, because dispensaries are not specifically permitted, they are prohibited by County‘s zoning ordinances and constitute a public nuisance per se.
State Statutes
The state statutes in place before County adopted its first ordinance addressing medical marijuana dispensaries included the Compassionate Use Act of 1996 (CUA) (
County Ordinances
In July 2006, County adopted its first medical marijuana dispensary ordinance, which was codified as former chapter 5.84 to title 5 of the Kern County Ordinance Code (Ordinance Code). The chapter was entitled “Medical Marijuana Dispensaries.” Under the ordinance, medical marijuana dispensaries granted a license by County‘s sheriff‘s department were allowed to operate if they followed certain operating and record keeping requirements. The ordinance limited the number of licensed dispensaries to six and treated each dispensary “as a pharmacy for zoning purposes.” (Ordinance Code, former § 5.84.230; see id., former § 5.84.220, subd. A.)
2009 Ordinance
In March 2009, County adopted ordinance No. G-7849, which repealed all of the provisions in the 2006 ordinance and set forth a new section 5.84.010 in chapter 5.84 of the Ordinance Code (2009 Ordinance). Under the 2009 Ordinance, most of the restrictions on medical marijuana dispensaries were removed. The new section 5.84.010 of the Ordinance Code stated that a medical marijuana dispensary could not be located within 1,000 feet of a school and continued to treat each dispensary “as a pharmacy for zoning purposes.”
Twice in 2010, County adopted moratoria on the establishment of any new medical marijuana dispensaries and prohibited existing medical marijuana
On August 2, 2011, County held a public hearing on another extension of the moratorium. The staff report for this public hearing discussed the proposed extension and also proposed ordinances to ban medical marijuana dispensaries and outdoor cultivation of marijuana. At the conclusion of the hearing, County‘s board of supervisors voted to extend the moratorium for one year.
2011 Ordinance
A week later, another public hearing was held on the proposed ordinance banning dispensaries. At the end of the hearing, County adopted ordinance No. G-8191 (Dispensary Ban Ordinance), which stated that “Chapter 5.84 of Title 5 of the Ordinance Code of County of Kern is hereby amended in its entirety to read as follows” and set forth the text of new sections 5.84.010 through 5.84.080 of the Ordinance Code. The new sections provided that “[a]ny operation of a Medical Marijuana Collective is prohibited in the County” (Ordinance Cоde, former § 5.84.040) and declared the operation of a medical marijuana dispensary to be a public nuisance subject to abatement and administrative penalties (Ordinance Code, former § 5.84.060). The Dispensary Ban Ordinance stated it would take effect on September 9, 2011, which was 30 days after its adoption.
2011 Protest Petition
Prior to the effective date of the Dispensary Ban Ordinance, County received a referendum petition protesting certain of its provisions. (See Dye v. Council of the City of Compton (1947) 80 Cal.App.2d 486, 490 [182 P.2d 623] [referendum power extends not only to whole ordinance, but also its sections and parts].) The petition included 26,335 signatures. A County official examined the petition and certified that it contained a sufficient number of signatures. There is no dispute that the protest petition was both timely and valid. As a result, four sections of the Dispensary Ban Ordinance were suspended by operation of law pursuant to
County‘s Response to Protest Petition
On September 27, 2011, and February 21, 2012, County held public hearings to address its options for responding to the referendum petition and to receive public input on the issues presented. The staff report for the latter hearing (1) discussed recent legislation and judicial decisions addressing the regulation of medical marijuana dispensaries; (2) proposed an alternative ordinance that would restrict and regulate medical marijuana dispensaries, rather than ban them outright;4 and (3) set forth options for the board of supervisors to consider. The first option was to repeal the Dispensary Ban Ordinance. The second option was to place the Dispensary Ban Ordinance on the June 5, 2012, primary election ballot. The third option was to repeal the Dispensary Ban Ordinance and placе the alternative ordinance (i.e., Measure G) on the June 5, 2012, primary election ballot. The fourth option was to place both the Dispensary Ban Ordinance and the alternative ordinance on the June 5, 2012, primary election ballot.
At the hearings, counsel for County informed the board of supervisors that, if they decided to repeal the ban, the repeal would affect the board‘s ability to legislate on the subject in the future, since the board could not enact another ordinance in all essential features like the repealed ordinance for at least a year following the date of the repeal.5 A supervisor asked counsel for County about what the status would be if the board repealed the Dispensary Ban Ordinance and the voters did not approve Measure G.
“MS. GOLDNER: [I]f you repealed the existing—the protested ordinance and you put the alternative ordinance on the ballot and the voters did not approve the alternative ordinance, there would be no ordinance in Kern County.6”
“SUPERVISOR MAGGARD: Other than the moratorium?”
“MS. GOLDNER: That‘s correct.”
“SUPERVISOR WATSON: And so then all of the current dispensaries would be in plaсe and as long as we had a moratorium and if that expires, then it would be pretty much a free market?”
“MS. GOLDNER: Supervisor Watson, through the Chair, I don‘t know if I want to agree that it would be a free market. What it would mean is that there would be—once the moratorium expires, if the alternative ordinance is not approved by the voters, in those circumstances it would mean that there would be no ordinance on the books, so to speak in Kern County, which would mean that medical marijuana dispensaries, collectives and co-ops would not be permitted uses. And by the term ‘permitted uses,’ I mean would not be an allowed use under our zoning ordinance, which would mean that it would be a matter of code enforcement if your Board wished to have them all shut down.”
At the conclusion of the February 21, 2012, hearing, County‘s board of supervisors chose to place Measure G on the June 5, 2012, primary election ballot. A week later, also in response to the referendum petition, the board of supervisors adopted ordinance No. G-8257 (Repeal Ordinance), which stated that “Chapter 5.84 of Title 5 of the Kern Cоunty Ordinance Code is hereby repealed in its entirety.” The Repeal Ordinance also stated its provisions would take effect on March 30, 2012. In County‘s view, the Repeal Ordinance left no provision in the Ordinance Code allowing medical marijuana dispensaries to exist in any unincorporated area of Kern County.
At the June 5, 2012, primary election, 69,530 voters out of 100,698 cast their ballots to approve Measure G. As a result, County‘s board of supervisors directed the provisions of Measure G be added to the Ordinance Code as chapter 19.120 of title 19—the title referred to as the “County Zoning Ordinance.”
In August 2012, about 45 days after Measure G became effective, a group of plaintiffs who were operating medical marijuana dispensaries outside the industrial zones approved by Measure G filed a lawsuit alleging County‘s adoption of Measure G violated CEQA. The group requested that Measure G be vacated and set aside.
In November 2013, the trial court in the CEQA lawsuit determined that County had violated CEQA when it adopted Measure G and issued a peremptory writ of mandate directing County to bring Measure G into compliance with CEQA. In February 2014, the trial court determined that County‘s attempt at CEQA compliance was inadequate and stated from the bench that it would invalidate Measure G. In April 2014, the trial court‘s written order invalidating Measure G was filed.7
A few days later, on April 30, 2014, County personnel and three sheriff‘s deputies visited defendants’ dispensary on Diamond Street in Rosamond and delivered an inspection warrant. County personnel interviewed six people who stated that they worked or volunteered at the dispensary and observed (1) two safes containing approximately 30 pounds of processed marijuana, (2) a room where food and beverages containing marijuana were displayed, and (3) 26 growing marijuana plants. Based on these observations, County personnel concluded that a functioning dispensary was open for business at that location.
PROCEDURAL HISTORY
In May 2014, after inspecting defendants’ dispensary, County filed a civil complaint against defendants. County sought preliminary and permanent injunctions, nuisance abatement and civil penalties. The complaint alleged defendants had created a public nuisance and were violating County ordinances by operating a marijuana dispensary in Rosamond, California. The complaint alleged Monassar was the owner and operator of the marijuana dispensary and Satterfield owned the real property where the dispensary was located.
In July 2014, defendants demurred to the complaint. In August 2014, County filed a motion for preliminary injunction with supporting declarations and a request for judicial notice. Defendants’ written opposition to the motion
County‘s reply argued that the court had the discretionary authority to grant the motion for preliminary injunction while the demurrer was pending, particularly where the motion was supported by multiple declarations and did not rely solely on a verified complaint.
In October 2014, the trial court held a hearing on the motion for preliminary injunction and took the matter under submission. A week later, the trial court issued a minute order stating (1) the motion was substantially unopposed, (2) defendants’ opposition asked the court not to rule on the motion until the pleadings had been tested against the demurrer, and (3) County had cited cases saying that trial courts may issue a preliminary injunction while a demurrer is pending. The minute order stated County‘s motion for a preliminary injunction was granted and directed County to prepare a written order pursuant to California Rules of Court, rule 3.1312.
On November 12, 2014, the trial court held a hearing on defendants’ demurrer to County‘s first amended complaint. The court considered the merits of the demurrer and overruled it.
On November 26, 2014, the court signed and filed the order prepared by County granting the preliminary injunction. Thus, the injunction order was not signed until after the trial court overruled the demurrer. The injunction directed defendants to cease and desist from storing, distributing, selling or giving away marijuana at the property on Diamond Street. It also directed defendants to cease cultivating marijuana in quantities beyond the limits set by County ordinance for medical use (i.e., 12 plants).
Defendants responded to the trial court‘s decision to grant the preliminary injunction by filing a petition for writ of mandate with this court, which we assigned case No. F070441 and summarily denied. (T.C.E.F., Inc. v. Superior Court (Nov. 20, 2014, F070441), petn. den.) In December 2014, defendants requested the trial court to stay the preliminary injunction, which that court denied. The same month, defendants filed a federal civil rights lawsuit and unsuccessfully attempted to obtain a temporary restraining order against enforcement of the preliminary injunction.
On December 29, 2014, defendants filed a notice of appeal to challenge the preliminary injunction and the trial court‘s denial of the request for stay. In
In February 2016, this court entered an order dismissing T.C.E.F., Inc., from the appeal and vacating the stay of enforcement as to that defendant only.8
DISCUSSION
I. Basic Principles of Law
A. Criteria for Granting a Preliminary Injunction
Pursuant to
B. Standard of Review
1. Abuse of Discretion
A superior court‘s ruling on an application for a preliminary injunction is reviewed for an abuse of discretion. (Cohen v. Board of Supervisors, supra, 40
2. Specific Ways Discretion Can Be Abused
First, the abuse of discretion standard does not allow trial courts to apply an incorrect rule of law. (See People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144 [86 Cal.Rptr.2d 816, 980 P.2d 371] [“the trial court‘s discretion is limited by the applicable legal principles“].) Consequently, a trial court‘s resolution of a question of law is subject to independent (i.e., de novo) review on appeal. (Haraguchi, supra, 43 Cal.4th at p. 712; Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 739 [106 Cal.Rptr.3d 318] (Smith).) For example, issues of statutory construction are questions of law subject to independent review. (Jauregui v. City of Palmdale (2014) 226 Cal.App.4th 781, 804 [172 Cal.Rptr.3d 333].)
Second, the abuse of discretion standard does not allow trial courts to make express or implied findings of fact without sufficient evidentiary support. The sufficiency of the evidence for a trial court‘s express or implied findings is reviewed under the deferential substantial evidence standard. (Haraguchi, supra, 43 Cal.4th at p. 711; Smith, supra, 182 Cal.App.4th 739.)
Third, when the challenged determination involves the trial court‘s weighing of the interrelated factors, the result of that weighing process generally will be upheld on appeal so long as the trial court did not exceed the bounds of reason or contravene the uncontradicted evidence. (Continental Baking Co. v. Katz, supra, 68 Cal.2d at p. 527; People v. Jordan (1986) 42 Cal.3d 308, 316 [228 Cal.Rptr. 197, 721 P.2d 79]; Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1089 [151 Cal.Rptr.3d 526] [abuse of discretion standard measures whether, given the established evidence, the trial court‘s decision falls within the permissible range of options set forth by the applicable legal criteria].)
3. Establishing an Abuse of Discretion
The party challenging the trial court‘s order to grant or deny a preliminary injunction has the burden of making a clear showing of such an abuse. (Smith, supra, 182 Cal.App.4th
II. Likelihood of Success—Applicable Ordinance
A. Contentions
The parties’ dispute whether County has a possibility of success on the merits of its claim that defendants were operating an unauthorized medical marijuana dispensary. This dispute has been narrowed by our decision in F070043, where we upheld the invalidation of Measure G under CEQA. With Measure G no longer in effect, the legal question presented is which ordinance provisions, if any, regulate the operation of medical marijuana dispensaries in the unincorporated areas of Kern County.
Defendants contend that the 2009 Ordinance was the only operative County law addressing dispensaries in effect after Measure G was invalidated. Defendants argue the 2009 Ordinance treats medical marijuana dispensaries as pharmacies for zoning purposes and, therefore, their dispensary is an authorized use at its present location.
County argues that the 2009 Ordinance, which was codified in former chapter 5.84 of the Ordinance Codе, was repealed in its entirety when the board adopted the Repeal Ordinance. In County‘s view, because “Measure G was declared invalid, there is no ordinance which authorizes the use of property for a medical marijuana dispensary. As a result, medical marijuana dispensaries are not a permitted use in any zone under the Zoning Ordinance of the Kern County Ordinance Code.” As support, County cites City of Corona v. Naulls, supra, 166 Cal.App.4th 418 for the proposition that under its type of zoning ordinance “where a particular use of land is not expressly enumerated in a city‘s municipal code as constituting a permissible use, it follows that such use is impermissible.” (Id. at p. 433.)
Defendants’ reply to County‘s claim that the 2009 Ordinance was repealed by arguing the purported repeal unlawfully exceeded the powers of the board of supervisors, which powers are limited by the Elections Code provisions governing protest petitions and voter referenda.
The parties’ dispute over whether the 2009 Ordinance was repealed or remains in effect presents questions about the meaning and application of
After reconsidering an ordinance subject to a protest petition, a board of supervisors might decide to rescind (i.e., repeal) the ordinance. Alternatively, the board might decide to submit the protested ordinance to the voters in accordance with
Based on the parties’ arguments and the facts of this case, the primary issue of statutory construction before this court relates to whether the board of supervisors “entirely repeal[ed] the ordinance against which a petition [wa]s filed.” (
1. “Ordinance Shall Be Suspended”
During the period that an ordinance is kept from becoming operative,
First, the board may “entirely repeal the ordinance.” (
Second and alternatively, the board may submit the ordinance to the voters at the next election or at a special electiоn. (
2. “Entirely Repeal the Ordinance”
In this case, the board of supervisors reconsidered the protested ordinance as required by
The parties agree that the statutory phrase “entirely repeal the ordinance” is unambiguous when viewed in the abstract—that is, outside the context of a particular factual scenario. The term “entirely” is synonymous with wholly, completely, fully. (Webster‘s 3d New Internat. Dict., supra, p. 758, col. 1; see Black‘s Law Dict. (9th ed. 2009) p. 612 [“entire” means
The parties disagree how this meaning applies to the facts of this case. (See Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370, 391 [153 Cal.Rptr.3d 21] [application of statutory construction to a particular set of facts poses a question of law subject to independent review].) Our request for supplemental letter briefs asked the parties whether the phrase “entirely repeal” required a return to the status quo ante—that is, the situation that existed before the protested ordinance was adopted. (See Black‘s Law Dict., supra, p. 1542 [definition of status quo ante].) County responded by arguing that a return to the status quo ante would comply with the statute, but is not required. Defendants contend a return to the status quo ante is required and a failure to do so undermines the primary objective of
Before addressing these arguments about how the statutory рhrase “entirely repeal the ordinance” relates to a return to the status quo ante, we consider some basic principles of statutory construction that are relevant to interpreting
3. Guiding Principles
A general principle of statutory construction is that courts do not place form over substance where doing so defeats the objective of a statute, especially a statute designed to protect a public interest. (Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist. (2001) 87 Cal.App.4th 862, 872 [104 Cal.Rptr.2d 857]; see
We conclude the referendum powers of local voters that are defined and protected by
4. The Status Quo Ante and Essential Feature
Our request for supplemental briefs asked whether “entirely repeal” should be construed to require a return to the status quo ante. County argued this construction was not appropriate because a return to the status quo ante was not required. In County‘s view, a board of supervisors has the authority to take additional action and need not return to the status quo ante in еvery particular. This view has some support in case law addressing the authority of a city council to enact another ordinance after repealing a protested ordinance. ” ‘[O]rdinarily, when an ordinance which has been suspended by a referendum has been repealed by the council, the council cannot enact another ordinance in all essential features like the repealed ordinance....’ ” (Martin v. Smith, supra, 176 Cal.App.2d at p. 118, quoting In re Stratham (1920) 45 Cal.App. 436, 439 [187 P. 986].)10 Conversely, a city council is allowed to ” ‘deal further with the subject matter of the suspended ordinance, by enacting an ordinance essentially different from the ordinance protested against....’ ” (Martin v. Smith, supra, 176 Cal.App.2d at p. 118.) This legal standard does not require a return to the status quo ante in every particular, allows for some changes, but significantly limits the authority of a city council to make changes that address the subject matter of the protested ordinance.
We interpret the phrase “entirely repeal the ordinance” in
Adopting a more lenient test would allow boards of supervisors to nullify or significantly burden the exercise of the referendum power by repealing a protested ordinance and immediately taking action that produces, from a practical perspective, essentially the same result. (Martin v. Smith, supra, 176 Cal.App.2d at pp. 118-119.) If the
Our interpretation of
To summarize, we conclude
5. County‘s Actions Were Essentially a Dispensary Ban
Whether County‘s board of supervisors entirely repealed the Dispensary Ban Ordinance for purposes of
A preliminary question to our inquiry into the practical effect of the board of supervisor‘s action in repealing former chapter 5.84 of the Ordinance Code relates to the scope of the matters that may be assessed in analyzing the effect or impact of the board‘s additional action. We conclude that the proper scope of the inquiry is the totality of the circumstances of a particular case. It would be difficult to conduct a realistic assessment of the practical effect of a board‘s additional action without considering all of the
One of the circumstances relevant to the impact is County‘s failure to comply with CEQA and the resulting invalidation of Measure G. The practical impact of the invalidation of Measure G and upholding the board‘s repeal of former chapter 5.84 of the Ordinance Code in its entirety would be the absence of any ordinance authorizing dispensaries within County‘s jurisdiction. This impact is undisputed and is the basis for County‘s argument that defendants’ dispensary is an unauthorized use. Therefore, whether the board‘s additional action of repealing the 2009 Ordinance complies with
Our request for supplemental briefing asked the parties whether County‘s attempt to repeal the 2009 Ordinance and its acts and omissions relating to Measure G was the substantive equivalent of a dispensary ban. Defendants answered, “Yes, the County‘s acts and omissions amounted to an ipso facto dispensary ban.” County disagreed, arguing “the fact that the operation of a medical marijuana dispensary is not a permitted use is not the substantive equivalent of a dispensary ban.”
County argues the absence of authorization resulting from the repeal of the 2009 Ordinance is not the same as a dispensary ban even though the Ordinance Code is a “permissive” code under which any uses not specifically permitted are prohibited. (Ordinance Code, § 19.02.060, subds. A., C.; see City of Corona v. Naulls, supra, 166 Cal.App.4th at p. 433.) County argues that there are at least two avenues for obtaining permission to operate a medical marijuana dispensary and these avenues preclude equating the absence of authorization with a dispensary ban. The first avenue for persons wishing to operate a dispensary within County‘s jurisdiction is applying for a determination of “similar use” in accordance with procedures set out in sections 19.08.040 through 19.08.080 of the Ordinance Code. At oral argument, County suggested that a similar use application could be submitted on the ground that a medical marijuana dispensary is similar to a pharmacy. The second avenue is filing an application for a conditional use permit under section 19.08.085 of the Ordinance Code.
We conclude that the prohibition of medical marijuana dispensaries resulting from the repeal of the 2009 Ordinance would have the practical effect of
We recognize that, ordinarily, the board of supervisors would have the authority to repeal its earlier legislative acts such as the 2009 Ordinance. (See Duran v. Cassidy, supra, 28 Cal.App.3d at p. 582.) Under the unusual facts of this case, however, the board of supervisors’ general authority to legislate is limited by the protections
In sum, we conclude the actions of County‘s board of supervisors did more than entirely repeal the Dispensary Ban Ordinance as required by
The proper remedy for this statutory violation and the related impingement of the powers reserved to County‘s voters is to place the parties in the position that they would have occupied if County had “entirely repeal[ed] the ordinance against which [the protest] petition [wa]s filed.” (
Consequently, we conclude as a matter of law that County cannot demonstrate the first factor of the test for granting a preliminary injunction. When an order grants a preliminary injunction, the absence of one of the two factors is sufficient grounds for reversing the order. (Smith, supra, 182 Cal.App.4th at p. 749; see Aiuto v. City & County of San Francisco, supra, 201 Cal.App.4th at p. 1355 [a preliminary injunction granted without a showing of a likelihood of success on the merits must be reversed].) Accordingly, the order granting County‘s motion for a preliminary injunction must be reversed.
C. Failure to Raise Below
County argues that defendants did not raise the argument regarding the 2009 Ordinance in their opposition tо County‘s motion for a preliminary injunction and, therefore, the argument is improper and should be disregarded by this court. Assuming for purposes of discussion that the issue was not raised in the trial court in connection with defendants’ demurrer, this court has the discretion to consider a theory presented for the first time on appeal when that theory involves only a legal question determinable from the uncontroverted facts and those facts could not have been altered by the presentation of additional evidence. (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167 [143 Cal.Rptr. 633]; see Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24 [44 Cal.Rptr.2d 370, 900 P.2d 619] [appellate court may consider an issue of law based on undisputed fact when raised for the first time on appeal];
In short, without cоmmenting on the merits of the various policy choices presented to voters and local governments faced with the realities of medical marijuana dispensaries and whether to ban or regulate them, the public interest in the referendum process itself is sufficient to dissuade us from turning a blind eye to County‘s violation of the Elections Code.
DISPOSITION
The order granting the preliminary injunction is reversed. Defendants Monassar and Satterfield shall recover their costs on appeal.
Kane, Acting P. J., and Smith, J., concurred.
Respondent‘s petition for review by the Supreme Court was denied June 29, 2016, S234542. Corrigan, J., did not participate therein.