THE PEOPLE, Plaintiff and Respondent, v. DANIEL BRAUM et al., as Executors, etc., and as Trustees, etc., Defendants and Appellants.
B289603, B289604
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Filed 4/22/20 Modified and Certified for Partial Pub. 5/22/20 (order attached)
(Los Angeles County Super. Ct. Nos. BC467194, BC467495)
John Shepard Wiley, Jr., Judge.
Stuart M. Miller, for Defendants and Appellants.
Michael N. Feuer, City Attorney of Los Angeles, Arturo A. Martinez, Assistant City Attorney, Meredith A. McKittrick and Andrew K. Wong, Deputy City Attorneys, for Defendant and Respondent.
Michael Braum (Braum)1 leased two commercial properties in the City of Los Angeles (City) to tenants for use as medical-marijuana dispensaries and then received notice that the dispensaries violated the City‘s zoning code. The City2 filed two civil enforcement actions against Braum and the Trust, and the trial court entered judgments against them imposing civil fines in excess of $6 million.
Defendants appeal from the judgments, arguing that: the judgments violated the double jeopardy clause because the City had previously obtained a criminal conviction against Braum based on the same offenses underlying the judgments; the $6 million in civil fines violated the excessive fines clauses of the federal and state constitutions; neither the trial court nor the City had the authority to require Braum to evict the dispensaries; the City‘s “maze” of medical-marijuana regulations were void for vagueness under the due process clause; and the trial court erred in holding Braum personally liable. We affirm.
A. Overview of State and Local Regulation of Medical Marijuana3
1. Compassionate Use Act (CUA) (1996)
In 1996, state voters approved the CUA (Proposition 215;
2. Medical-Marijuana Program Act (MPA) (2003)
In 2003, the MPA was enacted to clarify the scope of the CUA and promote its uniform application. (420 Caregivers, supra, 219 Cal.App.4th at p. 1325.) It expanded the classes of persons to which immunity from prosecution applied. (Ibid.)
3. The Interim Control Ordinance (ICO) (2007)
In August 2007, the City passed the ICO (no. 179,027) in response to concerns about the proliferation of storefront medical-marijuana dispensaries within the City. (420 Caregivers, supra, 219 Cal.App.4th at p. 1326.) The ICO prohibited the establishment of medical-marijuana dispensaries within City limits for one year or until a permanent ordinance was enacted. (Ibid.) But the ICO exempted from its prohibition dispensaries established before September 14, 2007, as long as those dispensaries operated in accordance with state law and filed certain required documents with the City by November 13, 2007.6 (Id. at p. 1327.) Following the City‘s exercise of two six-month
4. The Permanent Ordinance (2010)
In January 2010, the City enacted the Permanent Ordinance (no. 181,069; L.A. Mun. Code, former § 45.19.6 et seq.) which regulated “medical[-]marijuana collectives” and required them to submit to a new registration and approval process. (420 Caregivers, supra, 219 Cal.App.4th at pp. 1328-1329; Safe Life, supra, 243 Cal.App.4th at p. 1035.) The Permanent Ordinance permitted only 70 collectives to operate in the City, but also included a grandfather clause that allowed existing collectives that had properly registered under the ICO to remain in operation. (Safe Life, supra, 243 Cal.App.4th at p. 1035.) Because there were “substantially more than 70 collectives in operation that could qualify under the grandfather clause . . . [the Permanent Ordinance] would likely have had the effect of prohibiting all collectives that had not previously registered under the [ICO].” (Id. at pp. 1035-1036.)
In response to the Permanent Ordinance, certain medical-marijuana collectives filed suit seeking an injunction on the grounds that the ordinance denied equal protection to collectives that had not previously registered under the ICO. (Safe Life, supra, 243 Cal.App.4th at p. 1036.) When a trial court issued the requested injunction, the City enacted an Urgency Measure (no. 181,530) which modified the Permanent Ordinance to provide that all collectives that had been in operation prior to September 14, 2007, were eligible to register for a lottery from which 100 collectives would be chosen for inspection and registration. (Ibid.)
The City appealed from the injunction against the Permanent Ordinance and, in July 2012, the Court of Appeal issued its opinion in 420 Caregivers, supra, 243 Cal.App.4th 1036, reversing the injunction and upholding the Permanent Ordinance. (Safe Life, supra, 243 Cal.App.4th at pp. 1338-1339.) Due to a grant of review, however, the decision in 420 Caregivers did not become final until November 2013. (Safe Life, supra, 243 Cal.App.4th at pp. 1036-1037.)
6. Proposition D (2013)
The City then passed an ordinance (no. 182,443) calling for a special election for a public vote on Proposition D. (Safe Life, supra, 243 Cal.App.4th at p. 1037.) In May 2013, City voters approved Proposition D which enacted a new ordinance (no. 182,580) relating to the regulation of medical marijuana. (Ibid.)
B. The Leases
1. The Emerald Dispensary Lease (July 2007)
On June 21, 2005, the Trust took title to the real property located at 13321 Ventura Boulevard, Sherman Oaks. On June 22, 2007, “Braum Real Estate,” as lessor, leased that property to two individual lessees. The lease granted the lessees the right to use the premises for the purpose of “SALES OF MEDICAL CANNABIS.” Braum executed the lease as “LESSOR.” Emerald Triangle Collective, Inc. (Emerald) operated a “medical[-]marijuana dispensary” at the location. The monthly rent for the dispensary was $1,660.
On June 21, 2005, the Trust took title to the real property located at 11306 Ventura Boulevard in Studio City. On January 7, 2009, Braum Real Estate, as lessor, leased that property to a lessee, for the express purpose of operating “MEDICAL[-]MARIJUANA COLLECTIVES.” Braum executed the lease as “LESSOR” in his capacity as “OWNER.” A “medical[-]marijuana dispensary,” dba City Organic Remedies, conducted business at that location and was owned and operated by Ventura Herbal Center, Inc. (Ventura). The monthly rent for the dispensary was $3,000
C. Emerald and Ventura Actions
1. Cease and Desist Letters (2010-2011)
On May 4, 2010, the City sent Braum a letter advising him, among other things, that “[t]he establishment at the above referenced address [the Emerald dispensary was] operating as a medical[-]marijuana provider and did not register with the City Clerk prior to November 13, 2007. Consequently, the establishment does not, and cannot, comply with the requirements of [the Los Angeles Municipal Code]. Under [s]ection 45.19.6.7, this establishment must therefore immediately cease its operations.” On March 7, 2011, the City sent Braum a second letter with substantially the same advisement and demand. And, on May 11, 2011, the City sent Braum a similar cease and desist letter regarding the Ventura dispensary.
On August 10, 2011, the City filed two substantially similar civil enforcement complaints against Braum, individually and as trustee of the Trust.8 In addition to Braum, the first complaint named as defendants Emerald and four of its individual officers and/or directors (Emerald dispensary defendants). The second complaint against Braum also named as defendants Ventura and two of its individual officers and/or directors (Ventura dispensary defendants).
As against Braum, each of the complaints alleged two causes of action for: (1) using a building without a required permit, in violation of
Other than the respective start dates of the alleged statutory violations, the City alleged identical facts in support of the zoning violation cause of action in each complaint: “Since at least June 1, 2010, [or January 26, 2009,] [d]efendants have been using and maintaining the building or structure at the [p]roperty for a medical[-]marijuana use, a use which is not permitted in that zone and are in violation of [Los Angeles Municipal Code] section 12.21 A.1(a). Violation of section 12.21 A.1(a) constitutes a public nuisance under [Los Angeles Municipal Code] section 11.00 (l).11 [D]efendant Braum
Other than the respective start dates for the alleged statutory violations, the City alleged identical facts in support of the narcotics abatement cause of action in each complaint. “The [p]roperty was, and is, being used, from an exact date unknown but at least since at least [sic] June 1, 2010, [or January 26, 2009,] for the purposes of unlawfully selling, serving, storing, keeping, manufacturing or giving away controlled substances and is a building or place wherein or upon which those acts take place. [Braum] knew or should have known of the nuisance activity at the [p]roperty and did nothing to abate it, allowing the unlawful activity to occur. . . . Since on or about June 1, 2010, [or January 26, 2009,] to the present, [Braum has] maintained the [p]roperty which is being used as a medical[-]marijuana dispensary and permitted the operation of a medical[-]marijuana dispensary at the [p]roperty in clear violation of
The prayers for relief against Braum were identical in each complaint. On the zoning violations, the City sought: to enjoin Braum from using or permitting medical-marijuana use of the properties; to assess a civil penalty in the amount of $2,500 per day pursuant to
3. Preliminary Injunction: Emerald Dispensary (2012)
On November 14, 2012, the trial court held a hearing on the City‘s motion for preliminary injunction against, among others, Braum as owner of the property upon which the Emerald dispensary was located. Following the hearing, the court granted the motion and issued an injunction against Braum as to the
4. Order to Show Cause: Emerald Dispensary (2013)
On August 20, 2013, the City applied for an order to show cause (OSC) regarding contempt against Braum and others. According to the City, Braum had failed to comply with the preliminary injunction. On that same date, following a hearing on the application, the trial court issued an OSC, which required Braum to appear on September 25, 2013, and show cause why he should not be ordered to, among other things, evict the “current medical[-]marijuana dispensary” from his property. On March 14, 2014, the parties entered into a settlement, in which Braum agreed to pay the City $10,000 in exchange for the OSC being taken off calendar. The court therefore did not issue an order requiring an eviction.
5. Criminal Complaint
On November 12, 2013, the City filed a misdemeanor complaint against Braum and others, including Downtown
6. City‘s Summary Judgment Motion (2014)
On or about March 10, 2014, the City filed its motion for summary judgment, or, in the alternative, summary adjudication, against, among others, Braum based on his and/or the Trust‘s ownership of the two properties upon which the Emerald and Ventura dispensaries were located. The City argued that there was no triable issue of fact as to the zoning violation because Braum engaged in, permitted, or allowed or aided the sale or distribution of marijuana at the properties, and such activity was an unpermitted use in violation of
Regarding the narcotics abatement claim, the City argued that there was no triable issue of fact as to whether Braum engaged in, permitted, allowed, or aided the sale or distribution of marijuana at the properties and such conduct constituted an unlawful use in violation of the narcotics abatement law. The
The City supported its requests for summary adjudication against Braum with, among other evidence, documents showing the dispensaries’ occupation of the Sherman Oaks and Studio City properties, documents showing the Trust‘s ownership of those properties, and declarations of police officers establishing sales of marijuana at the Emerald and Ventura dispensaries.
Braum opposed the motion, arguing that as of May 2010, the medical-marijuana dispensaries were legal based on the City‘s zoning administrator‘s interpretation;17 the statutes relied upon by the City to show liability were ambiguous; the City failed to show that he aided and abetted the conduct of the dispensaries; the action was moot because both dispensaries had vacated the properties; the civil enforcement actions violated Braum‘s double jeopardy rights because he had been criminally convicted for the same offense; and Braum was immune from liability under
Braum supported his opposition with his declaration that he believed the two leases were for businesses that filled prescriptions for medical marijuana and, as such, were considered pharmacies, i.e., permitted uses of his commercial
In its reply, the City argued that Braum‘s understanding that the dispensaries were pharmacies, and therefore permitted uses, was unreasonable and irrelevant; the dispensaries violated the City‘s zoning code because they were not expressly permitted uses; the law regarding permitted uses and marijuana dispensaries was not ambiguous or unclear; Braum‘s reliance on the advice of counsel did not immunize him from the zoning and nuisance violations; the civil enforcement actions were not moot; double jeopardy did not apply because the criminal conviction upon which that defense was based involved a different property; and the undisputed evidence showed that Braum, as landlord, assisted and participated in the businesses of his dispensary tenants.
7. Hearing and Rulings on Motion (2015)
On October 29, 2015, the trial court held a further hearing18 on the City‘s motion for summary judgment. Following
8. Hearing and Rulings on Remedies Phase (2018)
On January 10, 2018, the City submitted “remedies briefs” for the Emerald and Ventura actions. According to the City, Braum was liable for the maximum penalty of $2,500 per day under
In opposition to the civil penalties claimed against him, Braum argued: He could not be held individually liable for the alleged zoning violations because only the owner of the property, i.e., the Trust, could be liable, and the summary judgment orders entered were only against Braum as an individual; there was no zoning ordinance in effect between September 2007 through August 2012 that prevented a landlord from renting to a medical-marijuana dispensary and therefore the penalties for the zoning violation at the Emerald and Ventura properties should only be imposed from August 2012 to the dates when the dispensaries stopped operating; because the settlements with the other defendants ranged from $1,500 to $150,000, the penalties
Braum supported his opposition with his declaration explaining that the Trust, as landlord, did not intend to violate any laws and was advised by former counsel that the dispensaries could lawfully occupy the properties; both dispensaries had ceased to operate, one in 2012 and the other in 2013; and the trial court should demonstrate leniency and award penalties that were in line with the penalties imposed in other cases. Braum, however, did not submit any evidence showing his inability to pay the proposed penalties.
In reply, the City argued that Braum was attempting to relitigate liability issues already decided against him on summary judgment; substantial penalties were warranted for the entire time periods specified; the penalties should reflect the egregious facts of Braum‘s conduct in response to both the cease and desist letters and the civil enforcement actions against him; and a permanent injunction was warranted.
On February 22, 2018, the trial court conducted the remedies phase hearing. Following argument, the court ruled in favor of the City and indicated that it would sign the City‘s proposed judgments as submitted. The court rejected Braum‘s argument that he should be assessed penalties that were similar to the penalties paid by a different landlord who had settled its case, noting that a penalty that was the result of a negotiated compromise involved an “entirely different situation” from the case at issue. The court stated that the penalties sought by the City were appropriate, and adopted the reasoning argued by the City. It also observed that a hefty penalty was appropriate
9. Judgments (2018)
On February 22, 2018, the trial court entered substantially similar judgments against Braum in the Emerald and Ventura actions. The findings in support of each judgment provided that Braum had conducted and maintained a nuisance on the properties in violation of
III. DISCUSSION
A. Double Jeopardy
1. Background
As explained, after the two civil enforcement actions were filed, but while they were still pending, the City filed a criminal misdemeanor complaint against Braum, his limited liability company, a corporation, and two other individuals. The complaint charged six counts based on alleged violations of
Defendants contend that the entry of the judgments in the two civil actions, after Braum had been convicted in the criminal proceeding, violated the federal and state double jeopardy clauses. According to defendants, the general allegations of misconduct asserted in the criminal complaint described conduct substantially similar to the conduct upon which liability was subsequently imposed in the two civil actions following summary judgment. They therefore conclude that the same offenses were at issue in both the criminal and civil actions.
“The
Fifth Amendment to the United States Constitution provides that ‘[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . .’ This guarantee is applicable to the states through theFourteenth Amendment . [Citations.] Similarly,article I, section 15, of the California Constitution provides: ‘Persons may not twice be put in jeopardy for the same offense . . . .‘” (People v. Saunders (1993) 5 Cal.4th 580, 592–593.) “Although in some contexts article I, section 15, of the California Constitution may provide a level of protection higher than that afforded by its federal counterpart” (id. at p. 596), neither party suggests that, in this case, the California double jeopardy clause should be interpreted differently than the federal clause.
The Double Jeopardy Clause “protects against a second prosecution for the same offense after conviction.” (People v. Sloan (2007) 42 Cal.4th 110, 120–121, italics added.) The defendant bears the burden of demonstrating that double jeopardy applies. (People v. Newell (1923) 192 Cal. 659, 667; People v. Mason (1962) 200 Cal.App.2d 282, 285.)19
“The [Double Jeopardy] Clause protects only against the imposition of multiple criminal punishments for the same offense, [citations], and then only when such occurs in successive proceedings . . . . [¶] Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction” and depends on: (1) “whether the legislature ‘... indicated, either expressly or impliedly a preference for one label or the other‘” and (2) “‘whether the statutory scheme was so punitive either in purpose or effect,’ [citation], as to ‘transform what was clearly intended as a civil remedy into a criminal penalty.‘” (Hudson v. United States (1997) 522 U.S. 93, 99.)
3. Analysis
Defendant contends in his opening brief that he “pled nolo contendere and was convicted on all charges.” But, as we discuss above, the record on appeal does not indicate whether defendant was sentenced on January 15, 2015, or whether, at the conclusion of a 12-month period of diversion, the charges were dismissed. (See, e.g.,
We will further assume that defendants could demonstrate that the penalties imposed in the civil complaints at issue constituted criminal, rather than civil, penalties. Even giving defendants the benefit of these assumptions, we reject their double jeopardy claim because they still have not met their burden of demonstrating that the conduct at issue in the criminal complaint constituted the “same offense” as the conduct at issue in the civil complaints.
According to the criminal complaint submitted by Braum in opposition to the summary judgment motion, the offenses in that action occurred on specific dates between August 23, 2013, and October 11, 2013. The complaint in the Emerald action alleged that the conduct forming the basis for the zoning- and nuisance-based claims against Braum began in June 2010; and the complaint in the Ventura action alleged that the conduct underling the zoning and nuisance claims asserted in that action began in January 2009. The City argued that Braum‘s liability for the Emerald dispensary ended on November 14, 2012, and his liability for the Ventura dispensary ended on February 4, 2013. Thus, the only documents on this issue submitted by Braum in opposition to summary judgment, which were the criminal complaint and minute order, demonstrated that there was no overlap in the dates at issue in the criminal complaint and the civil complaints.
Nor did Braum submit any evidence that the conduct at issue in the criminal complaint occurred at the same location as the conduct at issue in the civil complaints. Although all three complaints charged that the conduct occurred in Los Angeles, it
The allegations and evidence before the trial court were therefore insufficient to show that the criminal complaint was based on the same offenses as the civil actions. (See, e.g., Blockburger v. United States (1932) 284 U.S. 299, 301 [two narcotics sales, “although made to the same person, were distinct and separate sales made at different times“]; People v. Cuevas (1996) 51 Cal.App.4th 620, 624 [no bar to successive prosecutions where “offenses committed at different times and at different places“].)
B. Excessive Fines
1. Background
Defendants contend the penalties imposed, which totaled $5,967,500, were unconstitutionally excessive under the
“The
Eighth Amendment to the United States Constitution states: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ (Italics added.) ‘[T]he Due Process Clause of theFourteenth Amendment to the Federal Constitution . . . makes the Eighth Amendment‘s prohibition against excessive fines and cruel and unusual punishments applicable to the States. [Citation.] The Due Process Clause of its own force also prohibits the States from imposing “grossly excessive” punishments....’ [Citation.] [¶] The California Constitution contains similar protections.Article I, section 17 , prohibits ‘cruel or unusual punishment’ and ‘excessive fines;’article I, section 7 , prohibits the taking of property ‘without due process of law.‘” (People ex rel Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 727–728 (R.J. Reynolds).)
“The leading United States Supreme Court case on the Eighth Amendment‘s prohibition of excessive fines is [Bajakajian, supra,] 524 U.S. 321 . . ., which involved a federal statute (
3. Analysis
“[O]ur review of the ruling on the constitutional question [under the Eighth Amendment‘s excessive fines clause] is independent judgment, or de novo (Townsel v. San Diego Metropolitan Transit Development Bd. (1998) 65 Cal.App.4th 940, 946 . . .), but with deference to underlying factual findings, which we review for substantial evidence, viewing the record in the light most favorable to the ruling (Ojavan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 395 . . .; cf. People v. Dillon (1983) 34 Cal.3d 441, 455–456, 477–478 . . . [cruel or unusual punishment]).” (Sainez, supra, 77 Cal.App.4th at p. 1313.) Contrary to defendants’ assertion, when applied to the facts in this case, the four-part Bajakajian test shows that the imposition of the civil fines did not violate the excessive fines clause.
a. Braum‘s Culpability
During the remedies phase, the City produced evidence that Braum was notified prior to the filing of the two civil actions—in May 2010 and again in March and May 2011—that
In addition, during the remedies phase, the City submitted evidence of a citizen complaint that the Emerald dispensary was also being used as a “grow.” According to the complainant, “there was a smell of marijuana being emitted” from the property, and the complainant observed “large grow lights and other such improvements.” But when the complainant raised the issue with Braum, he denied the existence of the grow or the smell of marijuana at his property. The City also submitted evidence that the Emerald dispensary was impermissibly operating within 35 feet of an elementary school, notwithstanding the requirement in
b. Relationship Between the Harm and the Penalty
The City had a valid and strong interest in regulating uses within the City, including medical-marijuana uses, and in abating nuisances defined by state law to address the perceived harms underlying its zoning regulations and the statewide nuisance abatement law. (Sainez, supra, 77 Cal.App.4th at p. 1315 [securing obedience to code requirements through penalties is a legitimate exercise of the police power].) By
c. Penalties Imposed in Similar Statutes
As the City points out, there are no published cases showing the amounts of penalties imposed on landlords of medical-marijuana dispensaries. But the cases cited by the City are sufficiently analogous to show that the penalties imposed in this case are not dissimilar to those imposed under other regulatory statutes. (See, e.g., People v. Overstock.Com, Inc. (2017) 12 Cal.App.5th 1064, 1087–1088 [trial court imposed a daily penalty of $2,000 for a total of $6,828,000 in civil penalties under
Defendants argue that the City did not produce any evidence of Braum‘s ability to pay the amount of civil penalties sought. The City counters that it was Braum‘s burden in the trial court to raise and demonstrate his inability to pay the penalties, citing, among other cases, People v. First Federal Credit Corp. (2002) 104 Cal.App.4th 721, 729.)
To the extent it was Braum‘s burden to show an inability to pay the penalties, he failed to carry that burden because his opposition did not raise the issue, much less submit evidence concerning his financial status. But, even it was the City‘s burden to make a prima facie showing of Braum‘s ability to pay, its evidence in support of its remedies briefs, showing that Braum controlled a substantial amount of commercial and residential real estate in Los Angeles County, satisfied that burden. Based on the evidence submitted, the trial court could have reasonably inferred that Braum had the financial ability to pay the penalties.
C. Order to Evict
Defendants claim that the trial court‘s liability findings against Braum for the alleged zoning and statutory nuisance violations were all driven by his conduct in failing to file and diligently pursue unlawful detainer actions against the Emerald and Ventura dispensaries. According to defendants, because neither the City nor the court had authority to order Braum to evict his tenants, he could not be held liable for failing to so in
As an initial matter, Braum did not oppose the summary judgment motion on the grounds that neither the City nor the trial court had the authority to order him to file and diligently pursue an unlawful detainer action. His failure to raise the issue in the first instance with the trial court therefore forfeited the issue on appeal. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264–265.)
Even assuming Braum had preserved the issue for appeal, defendants’ argument is based upon a faulty premise. The trial court‘s liability findings against Braum were made on summary judgment and, contrary to Braum‘s assertion, the allegations and evidence upon which the court‘s liability determinations were made did not include any mention of his failure to file unlawful detainer actions in response to the City‘s demands or court orders. Although the preliminary injunction and OSC issued against him were based, in part, on evidence that he had failed to take any action to prevent the unpermitted uses and nuisances on his Trust‘s properties, none of that evidence was before the court at the summary judgment hearing.
Instead, as explained, the City limited its evidentiary presentation to documentary evidence showing the dispensaries’ occupation of the Sherman Oaks and Studio City properties and the Trust‘s ownership of those two properties, as well as police officer declarations showing that marijuana was being dispensed there. Because the trial court‘s rulings against Braum on the summary judgment motions were not based in any way on evidence that Braum failed to file and pursue unlawful detainer actions, his arguments and authorities concerning the court‘s
Moreover, even assuming the trial court‘s liability findings were based, in part, on Braum‘s failure to comply with the preliminary injunction against him, the injunction ordered him not to allow the Trust‘s properties to be used for medical-marijuana purposes or to lease the properties for such purposes. The injunction did not require that Braum file unlawful detainer actions or pursue them diligently under court supervision. And, although the OSC ordered Braum to appear and explain why the court should not order him to file unlawful detainer actions, no such order was ever entered against Braum because the OSC was settled. As Braum was never ordered to file an unlawful detainer action, the trial court could not find Braum liable for failing to pursue such actions against the dispensaries. Finally, although the complaint sought, in its prayer for relief, an order requiring Braum to file unlawful detainer actions, the judgment did not include any such order.
D. Due Process: Vagueness
1. Background
According to defendants, at the time Braum executed the leases for the Emerald and Ventura dispensaries—June 21, 2007, and January 7, 2009, respectively—the City‘s medical-marijuana regulations were so complex, and their meaning so arcane, that “it was virtually impossible for any landlord to determine and prove whether a given dispensary was operating legally, and
2. Legal Principles
“The vagueness doctrine bars enforcement of “‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.“‘” (People v. Navarro (2016) 244 Cal.App.4th 1294, 1300.) We review vagueness challenges de novo. (Id. at p. 1301.)
“The starting point of our analysis is ‘the strong presumption that legislative enactments “must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language.” [Citation.]’ (Williams v. Garcetti (1993) 5 Cal.4th 561, 568.)” (People v. Mary H. (2016) 5 Cal.App.5th 246, 260.)
“The degree of vagueness that the Constitution tolerates—as well as the relative importance of fair notice and fair enforcement—depends in part on the nature of the enactment. Thus, economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry,
3. Analysis
We thus begin our analysis under the strong presumption that the City‘s medical-marijuana regulations must be upheld unless defendants affirmatively demonstrate that those regulations are clearly unconstitutional.
The zoning ordinances here were neither vague nor uncertain. The ICO, which became effective on September 14, 2007 (420 Caregivers, supra, 219 Cal.App.4th at p. 1326 and fn. 2), plainly prohibited the establishment or operation of medical-marijuana dispensaries within the City limits.21 Although the ICO also allowed an exception to this general prohibition, the requirements of that exception were
Although the City‘s medical-marijuana regulations were modified and amended in the years following the enactment of the ICO, each such modification or amendment maintained in effect the ICO‘s basic requirements concerning the exception to the City-wide prohibition on medical-marijuana dispensaries: to operate legally, dispensaries that were in business prior to September 14, 2007, were required to have registered with the City within 60 days of that effective date. Thus, landlords such as Braum were subject to the ICO‘s general prohibition and exception requirements from its effective date throughout the duration of the Emerald and Ventura leases. The language of the ICO‘s exception contained the reasonable degree of certainty required under due process to apprise a landlord such as Braum
To the extent defendants complain that it was burdensome for landlords to research the ever changing marijuana regulations, “[t]he mere fact that the owner of premises within [a particular zone] is required to search the zoning ordinances to discover the scope of permitted uses, cannot alone render the ordinance vague and uncertain.” (Sechrist v. Municipal Court (1976) 64 Cal.App.3d 737, 743.)
E. Individual Liability
1. Background
The City named Braum as a defendant in each civil action, both in his individual capacity and as the trustee of the Trust. The City moved for summary judgment against Braum on the two causes of action asserted against him in each complaint, i.e., it sought a determination that Braum had violated the zoning code and the Health and Safety Code, both as an individual and as the trustee on behalf of the Trust. In support of its motion, the City submitted documents showing that the Emerald and Ventura dispensaries were conducting business operations at the Sherman Oaks and Studio City properties, that Braum, as trustee of the Trust, owned both properties, and that each property was being used to sell or distribute marijuana.
In opposition to the motion, Braum submitted the leases for both properties executed by him and argued the City had failed to show that the Trust, as landlord, aided and abetted the dispensaries in the operation of their businesses. But he did not
Following the hearing on the motion, the trial court issued an order granting the City‘s motion for summary judgment as to Braum. The court‘s order on the motion noted that Braum was a defendant in the first and second causes of action in the Emerald and Ventura complaints, but without expressly indicating that those claims were asserted against him both as an individual and as the trustee.
During the subsequent remedies phase, Braum opposed the penalties sought by the City, arguing, among other things, that he could not be held personally liable for the civil penalties sought under either the zoning code or the Health and Safety Code. In its reply briefs, the City argued that Braum could be held personally liable and that the trial court had already made that determination.
During oral argument at the remedies hearing, Braum argued that he was not personally liable for the civil penalties sought by the City, but the trial court rejected that argument, ruling that it was awarding all of the penalties the City requested “as to the individuals . . . .”
In the subsequently entered judgments, the court ruled that the penalties would be “imposed against [d]efendant Michael Braum, individually[,] and as [t]rustee of the [Trust].”
2. Legal Principles
”
A “trustee thus cannot be held personally liable under [
Probate Code] section 18001 for any obligation arising from his ownership or control of trust property, nor can he be held personally liable under [Probate Code] section 18002 for any torts committed in the course of his administration of the trust, unless the party seeking to impose such personal liability on the trustee demonstrates that the trustee intentionally or negligently acted or failed to act in a manner that establishes personal fault. (§§ 18001 ,18002 ; Cal. Law Revision Com. com., 54A West‘s Ann. Prob. Code, supra, foll. §§ 18001 & 18002, p. 237.) [¶] . . . A trustee who . . . acted in his representative capacity cannot be held personally liable under [Probate Code] section 18001 for an obligation . . . solely upon a showing that the obligation arose out of his ownership or control of the trust property. The imposition of such personal liability must also rest on a finding of personal fault supported by a sufficient showing that the trustee‘s conduct was intentional or negligent. (§§ 18001 ,18002 ; Cal. Law Revision Com. com., 54A West‘s Ann. Prob. Code, supra, foll. §§ 18001 & 18002, p. 237.)” (Haskett v. Villas at Desert Falls (2001) 90 Cal.App.4th 864, 877–878 (Haskett).)
The evidence in support of the City‘s assertions of personal liability against Braum for the zoning and Health and Safety Code violations during the summary judgment proceedings was limited. We will therefore assume that it was insufficient to demonstrate that Braum was personally liable for the zoning code and Health and Safety Code violations.
But the issue of Braum‘s personal liability, as opposed to that of the Trust, for the penalties was revisited by the parties and the trial court during the penalty phase. At that point, the City had introduced further evidence showing that, prior to the filing of the civil actions, Braum had received notice of the illegality of the dispensaries and demands that they cease operation. The City‘s evidence also showed that the sale and distribution of marijuana nevertheless continued at each property, causing the City to file the civil actions against the dispensaries and Braum. The illegal activity at each property, however, continued unabated. The City then obtained a preliminary injunction against Braum concerning the continued illegal activity by the Emerald dispensary at the Sherman Oaks property and, when the illegal activity persisted, the City obtained from the trial court an order to show cause. The City‘s remedies evidence further showed that the Emerald dispensary was conducting business within 35 feet of an elementary school, an additional Municipal Code violation, and that at least one complaint had been made about a grow operation at that dispensary, the existence of which Braum denied.
When the evidence introduced during the remedies phase is viewed together with the evidence submitted in support of the
IV. DISPOSITION
The judgment is affirmed. Plaintiff is awarded costs on appeal.
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. DANIEL BRAUM et al., as Executors, etc., and as Trustees, etc., Defendants and Appellants.
B289603, B289604
(Los Angeles County Super. Ct. Nos. BC467194, BC467495)
ORDER MODIFYING OPINION AND CERTIFYING OPINION FOR PARTIAL PUBLICATION
THE COURT:
Good cause appearing, the opinion in the above entitled matter, filed on April 22, 2020, is hereby modified as follows:
- The caption shall be modified as reflected in the caption of this order.
On page 2, second paragraph, second line, replace “clause” with “clauses of the federal and state constitutions“. - On page 2, footnote 1, delete the first word “Michael“.
- On page 3, footnote 4, replace “subdivision (d).” with “subd. (d).”
- On page 7, first full paragraph, second line, replace “Boulevard,” with “Boulevard in” and seventh line, replace “(Emerald)” with “(Emerald dispensary)“.
- On page 8, first paragraph, seventh line, remove comma after “dispensary” and remove “dba City Organic Remedies,” and ninth line insert “dispensary” after “(Ventura“.
- On page 9, first paragraph, fourth line, replace “Emerald” with “the Emerald dispensary” and sixth line, replace “Ventura” with “the Ventura dispensary“.
- On page 13, footnote 12, second line, replace “property” with “dispensary“.
- On page 15, last word of the full paragraph, insert single quotation mark before the final double quotation mark.
- On page 16, first full paragraph, first line, replace “requests for summary adjudication” with “motion“.
- On page 17, footnote 18, second line, replace “adjudication” with “judgment“.
- On page 18, at the only full paragraph, fifth line, replace “Emerald” with “Sherman Oaks” and seventh line, replace “Ventura” with “Studio City“.
On page 19, second paragraph, replace “violation at the Emerald and Ventura” with “violations at the Sherman Oaks and Studio City“. - On page 20, first line, insert “and” between “;” and “current“.
- On page 24, second paragraph, sixth line, replace “Penal” with “Pen.“.
- On page 25, second full paragraph, eighth line, replace “underling” with “underlying“.
- On page 32, first paragraph, third and fourth lines, remove “in the trial court” and sixth line, remove close parenthesis after “729.”
- On page 40, ninth line, replace “).” with “.)”
- On page 40, in the full paragraph, in both the ninth line and 17th line, insert “[Prob. Code,] between “§§” and “18001“.
- On page 41, first line, replace “assertions” with “assertion“.
- On page 41, last two lines, and page 42, first line, replace, “When the evidence introduced during the remedies phase is viewed together with the evidence submitted in support of the summary judgment motion, it supported” with “Viewed together, the evidence introduced during the remedies phase and during the summary judgment proceedings supported“.
The filed opinion was not certified for publication in the Official Reports. Upon application of respondent and a third-
Pursuant to California Rules of Court, rule 8.1105(b), this opinion is certified for publication with the exception of the Discussion parts C and D. There is no change in the judgment.
BAKER, Acting P. J.
MOOR, J.
KIM, J.