Opinion
G042883 Super. Ct. No. 30-2009-00298196
12-14-2011
CITY OF DANA POINT, Plaintiff and Respondent, v. HOLISTIC HEALTH et al., Defendants and Appellants.
Alison Minet Adams and Thomas G. Adams for Defendants and Appellants. Rutan & Tucker, LLP, A. Patrick Munoz and Jennifer Farrell for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Glenda Sanders, Judge. Motion to dismiss appeal granted. Stay dissolved.
Alison Minet Adams and Thomas G. Adams for Defendants and Appellants.
Rutan & Tucker, LLP, A. Patrick Munoz and Jennifer Farrell for Plaintiff and Respondent.
This appeal arises from a legislative subpoena the City of Dana Point (the City) issued to Holistic Health and its principals (collectively, Holistic Health) in 2009 to gain information about Holistic Health's medical marijuana dispensary operations. The City also served a similar subpoena on several other dispensaries, none of which complied. After the City obtained a superior court order requiring compliance with the subpoenas, Holistic Health and the other dispensaries filed separate appeals. A panel of this court concluded the superior court's enforcement order was not appealable, but instead could be addressed in a petition for an extraordinary writ, which the dispensaries declined to file, instead seeking and obtaining review in the Supreme Court. Resolving a split of authority, the Supreme Court determined that an order compelling compliance with a legislative subpoena is appealable, and remanded the cases back to this court for further proceedings. (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 4.) Of the five dispensaries that originally filed appeals and obtained review in the Supreme Court, only Holistic Health filed an opening brief on the merits in this court after remand from the Supreme Court. Consequently, the failure of the other dispensaries to brief their cases resulted in summary dismissal of their appeals.
Now, the City has withdrawn the legislative subpoena it issued to Holistic Health, and has filed a motion to dismiss this appeal on grounds that Holistic Health's appellate challenge to the subpoena is moot. We agree the appeal is moot and, as we explain, there is no merit in Holistic Health's arguments for an exception to the mootness doctrine. Accordingly, we must dismiss the appeal.
I
DISCUSSION
Holistic Health filed this appeal to raise a host of challenges to the City's legislative subpoena. For example, Holistic Health asserts in its opening brief that a government entity may not issue a legislative subpoena simply to gather information generally or prospectively from city residents or businesses, but only in relation to a preexisting, ongoing legislative matter or investigation. The City failed to meet this prerequisite, according to Holistic Health. Holistic Health also asserts the subpoena originated in a closed-door meeting that violated the Brown Act (Gov. Code, § 54950 et seq.), and therefore was invalid. Even assuming a valid subject matter and origin, Holistic Health asserts technical defects plagued the subpoena, requiring the trial court to quash it. For instance, Holistic Health claims the City was required to show a majority of city legislators concurred in issuing the subpoena and also contends discovery statutes governing litigation (Code Civ. Proc., § 2020.410) required the City to direct its legislative subpoena to a custodian of records or other qualified person, rather than to the dispensary or its agents generally. Additionally, Holistic Health seems to suggest a legislative subpoena may only compel the appearance of a witness or witnesses and not, as here, production of the business records.
Government Code section 37104 provides: "The legislative body may issue subp[o]enas requiring attendance of witnesses or production of books or other documents for evidence or testimony in any action or proceeding pending before it."
Holistic Health also challenges the subpoena on grounds it infringes its members' medical privacy interests protected under article I of the California Constitution and their Fifth Amendment right against self-incrimination. The trial court entered a protective order restricting to a few City employees access to Holistic Health member names appearing in any subpoena production documents, with a directive that the names constituted "Confidential Information." The protective order also provided that "[u]se of the Confidential Information shall be limited to the subject of the instant litigation, . . . specifically [the City's] investigation into the operations of medical marijuana dispensaries within its jurisdiction and any associated zoning decision to be made by [the] City Council regarding whether to amend its zoning laws to permit medical marijuana dispensaries within its jurisdiction."
The trial court stayed its order compelling compliance with the subpoena pending appeal, and we entered a similar stay, as did the Supreme Court during its consideration on review.
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But Holistic Health contends the protective order is inadequate in many respects, including that it does not require redaction of member addresses or other information from which their identity could be derived. Holistic Health also asserts the City disingenuously obtained the trial court's order compelling compliance with the subpoena because the City did not intend to permit medical marijuana dispensaries. Instead, according to Holistic Health, the City's admitted interest in learning whether the dispensaries or their members earned a "profit" in violation of California medical marijuana regulations adopted by the Attorney General (see also Health & Saf. Code, § 11362.765) revealed that the City harbored a prosecutorial, law enforcement motive. Holistic Health suggests the City could not have any interest in the profit question for legitimate legislative purposes, and therefore the subpoena was invalid.
These appellate contentions concerning the City's legislative subpoena are moot in light of the City's decision to withdraw the subpoena. For instance, the scope and adequacy of the protective order is moot given that the subpoena is a dead letter: simply put, Holistic Health need not produce anything. The same is true of all of Holistic Health's challenges to the subpoena. Now that the subpoena no longer exists, Holistic Health's attack on the trial court's enforcement order raises merely abstract questions, rather than a live controversy. "'An appellate court will not review questions which are moot and which are only of academic importance.' [Citations.]" (Lester v. Lennane (2000) 84 Cal.App.4th 536, 566 (Lester).)
A question becomes moot when the appellate court is unable to grant any effectual relief or render an opinion that affects the matter at issue. (Lester, supra, 84 Cal.App.4th at p. 566.) So it is here. A ruling on the merits would have no effect on enforcement of the subpoena, since it no longer exists. (See Torres v. City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1046 ["The courts of this state are not authorized to issue advisory opinions"].)
Holistic Health attempts to invoke an exception to the mootness doctrine under which a court may exercise discretionary review when "a pending case poses an issue of broad public interest that is likely to recur . . . ." (In re William M. (1970) 3 Cal.3d 16, 23.) But as the dispensary itself observes, controversy over legislative subpoenas is rare, undercutting any pressing need to address the issue. (Compare In re Fluery (1967) 67 Cal.2d 600, 601 [reaching a technically moot sentence credit issue because it presented "a recurring problem important to other prisoners and the Adult Authority"].)
Holistic Health suggests the issues it raises in this appeal warrant review as matters of broad public interest because of their connection to current controversy surrounding California medical marijuana law. Specifically, for example, Holistic Health suggests the privilege claims it raised in opposing the legislative subpoena are relevant to similar claims that may arise for dispensaries or individuals fighting nuisance or criminal prosecutions. But privilege claims are fact-intensive matters best suited for resolution in their particular context. For example, assuming arguendo we concluded the Fifth Amendment protected Holistic Health members or agents from having to respond to the legislative subpoena, based on the possibility of criminal prosecution by federal or other authorities, that determination might have little relevance to whether, in a nuisance action or other state criminal prosecution, a person has established any affirmative defense that may be available under California medical marijuana law. (See generally People v. Mower (2002) 28 Cal.4th 457, 464 [burden of proof on party asserting medical marijuana defense "may, and should, be allocated to a defendant"].) We express no opinion on these issues. Rather, as we have explained, Holistic Health's challenges to the now-withdrawn legislative subpoena are moot, and we therefore must dismiss the appeal.
II
DISPOSITION
The appeal is dismissed as moot and our stay is dissolved. The parties shall bear their own costs on appeal.
ARONSON, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
FYBEL, J.