Opinion
D074928
06-23-2020
OUTCO LABORATORIES, INC. et al., Plaintiffs and Appellants, v. COUNTY OF SAN DIEGO, Defendant and Respondent.
Aguirre & Severson and Michael J. Aguirre, Maria C. Severson for Plaintiffs and Appellants Outco Laboratories, Inc., et al. Newmeyer & Dillion and Charles S. Krolikowski, Jason Moberly Caruso for Plaintiffs and Appellants Anthony Cioe and Survivormedz. Thomas E. Montgomery, County Counsel and Timothy M. White and Jeffrey P. Michalowski, Senior Deputy County Counsel for Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2017-00022601-CU-MC-CTL) APPEALS from a judgment of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Affirmed. Aguirre & Severson and Michael J. Aguirre, Maria C. Severson for Plaintiffs and Appellants Outco Laboratories, Inc., et al. Newmeyer & Dillion and Charles S. Krolikowski, Jason Moberly Caruso for Plaintiffs and Appellants Anthony Cioe and Survivormedz. Thomas E. Montgomery, County Counsel and Timothy M. White and Jeffrey P. Michalowski, Senior Deputy County Counsel for Defendant and Respondent.
Plaintiffs and appellants, individuals and entities who sought to operate medical marijuana collective facilities in unincorporated areas of San Diego County, appeal from a judgment of dismissal entered after the trial court sustained demurrers of the County of San Diego (County) to their first and second amended complaints. Plaintiffs sought declaratory, injunctive and mandamus relief, alleging County took their private property without just compensation when it imposed various building requirements and instructions, required them to pay fees, then banned them from developing medical marijuana cultivation facilities. They alleged in part that County violated their constitutional rights by selectively enforcing its laws and treating them differently than other unlicensed marijuana dispensaries. On County's demurrer to the first amended complaint, the court ruled plaintiffs' claims relating to County's ban were barred by the 90-day statute of limitations of Government Code section 65009 but granted leave to amend plaintiffs' equal protection claim. The court thereafter sustained County's demurrer to plaintiffs' second amended complaints without leave to amend on grounds plaintiffs did not allege legally cognizable facts of unequal treatment or selective enforcement. Plaintiffs contend the court erred in these rulings, including by applying section 65009 to their takings claims and improperly denying them leave to amend to allege County is equitably estopped from relying on the limitations period. They maintain they adequately alleged that County's selective enforcement of its ban violated the Fourteenth Amendment's Equal Protection clause. We affirm the judgment.
Plaintiffs and appellants are Outco Laboratories, Inc.; Austin Birch; Downwind 27, Inc.; Renny Bowden; Stephen Lake; High Sierra Equity, LLC; Olive Tree Patients Association; Chris Murray; LLI Holdings, LLC; Bear Flag Group, Inc.; Darren Machulsky; T&M Real Estate Holdings, LLC; San Diego Natural, Inc.; Scott Corlett; Management Resource Partners, LLC; RRR Investments, LLC.; Anthony Cioe; and Survivormedz. Cioe and Survivormedz, who retained different counsel after the filing of the first amended complaint, ask this court to judicially notice a non-file-stamped copy of their separate second amended complaint, which the trial court had initially rejected for filing but then ordered deemed filed as of April 27, 2018, per the parties' stipulation. The record shows that both second amended complaints were before the trial court when it ruled on County's demurrer. We grant the request. Cioe and Survivormedz join and adopt by reference the Outco plaintiffs' opening and reply briefs on appeal.
Undesignated statutory references are to the Government Code.
FACTUAL AND PROCEDURAL BACKGROUND
When reviewing a judgment of dismissal after a demurrer sustained without leave to amend, we take the facts from the operative pleadings, accepting as true material allegations but not contentions, deductions or conclusions of law, and considering matters that are judicially noticeable. (Heckart v. A-1 Self Storage, Inc. (2018) 4 Cal.5th 749, 753-754.) This includes the County ordinances at issue in these pleadings, of which County sought judicial notice below. (Evid. Code, §§ 452. subd. (b), 459, subd. (a); Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2019) 42 Cal.App.5th 918, 937, fn. 11; Tanimura & Antle Fresh Foods, Inc. v. Salinas Union High School Dist. (2019) 34 Cal.App.5th 775, 797, fn. 13)
Plaintiffs contend the trial court improperly took judicial notice of August 15, 2016 letters from County's Department of Planning & Development Services advising plaintiffs of County's final administrative determination of their vested rights to develop their property. They suggest the court erred by assuming they received the letters and assuming that "the letters presented by the County were the same letters allegedly sent from County officials." County asserts plaintiffs forfeited the contention, but the record shows to the contrary that during the first demurrer hearing the Outco plaintiffs' counsel remarked that the request was "objectionable" as "outside the record" and lacked a factual basis as to whether the letters were sent and received. We hold the court properly judicially noticed under Evidence Code section 452, subdivision (c) the existence, contents and authenticity of letters sent by the County department, as well as its administrative determination as an "official act." (See People v. Castillo (2010) 49 Cal.4th 145, 157 & fn. 14; accord, Citizens for Responsible Open Space v. San Mateo County Local Agency Formation Commission (2008) 159 Cal.App.4th 717, 731, fn. 10.) The truth of factual assertions made in these documents, however, is not the proper subject of judicial notice. (People v. Castillo, at p. 157; see also Voris v. Lampert (2019) 7 Cal.5th 1141, 1147, fn. 8; Wood v. Superior Court of San Diego County (2020) 46 Cal.App.5th 562, 580, fn. 2.)
In 2009, County began to adopt a series of ordinances relating to medical marijuana and its use in unincorporated areas. In 2010, County passed ordinances providing regulations for the establishment and operation of facilities known as marijuana collectives, which are operations that allow people to cultivate marijuana for personal, medicinal use and permit members to share the costs of cultivation. In part, County found establishment of marijuana dispensaries could lead to increases in crime, which justified implementation of regulatory and safety measures, and County stated its intent to protect County citizens and "promote their general welfare and safety by ensuring that marijuana is not diverted for illegal purposes or to illicit markets." The ordinances required collectives to obtain County planning department approval, an operating certificate issued by the sheriff's department governed by County licensing procedures, and a building permit if necessary. Among other requirements, County imposed various infrastructure requirements for alarms and video monitoring, visibility, windows, entrances/exits, and parking.
In 2014, 2015 and 2016, petitioners began the process to open medical marijuana collective facilities under County's 2010 regulations and later ordinances. Under that process, applicants selected from County-designated eligible properties then purchased or leased a property, applied for zoning verifications to confirm lot lines were recorded or paid for unrecorded properties to redraw lot lines to update County records, arranged for a final occupancy inspection, and obtained an operator's license from the sheriff's department.
Because one of the ordinances limited the areas in which marijuana collective facilities could operate, it sparked a "foot-race" among plaintiffs and others interested in opening medical marijuana cultivation facilities, compelling them to move as quickly as possible and trust that County would not issue later bans on medical marijuana cultivation. Plaintiffs expended substantial funds to comply with County regulations, including by widening roads, re-asphalting, upgrading sewage, adding sidewalks, moving fire hydrants, adding curbs, moving streetlights, and repainting the streets. Though some plaintiffs at County's request obtained approval from one community planning group to permit the collective facilities and County staff was in favor of allowing plaintiffs to proceed with development, County ignored its staff findings and the community support. The sheriff's department created an inconsistent and complicated path to development, including by issuing instructions contrary to County ordinances.
In March and April 2016, County adopted ordinances enacting a one-year moratorium on the establishment, commencement of operation or enlargement of medical marijuana collective facilities within its unincorporated areas, effective immediately. County found in part that "[f]acilities which dispense marijuana have proven to have serious harmful effects on the communities in which they are located." It cited papers concluding that "the establishment of marijuana dispensaries can lead to an increase in crime, including burglaries, robberies, use of marijuana by unauthorized persons, sale and distribution of illegal drugs and loitering" and indicating that "marijuana may have harmful effects on the cardiovascular and respiratory systems of users, contributes to lung cancer, and adversely impact [sic] the mental health of individuals."
In August 2016, County's Department of Planning and Development Services sent letters to plaintiffs advising them whether they had obtained vested rights for their projects and the extent of those rights. County granted some plaintiffs vested rights. In November 2016, California voters passed Proposition 64, allowing personal use and possession of specified quantities of marijuana.
The voter initiative more commonly known as Proposition 64 is the Control, Regulate and Tax Adult Use of Marijuana Act. (County of Kern v. Alta Sierra Holistic Exchange Service (2020) 46 Cal.App.5th 82, 106.) It legalized adult, recreational use of marijuana and reduced the criminal penalties for various offenses involving marijuana, including its cultivation and possession for sale. (Ibid.; People v. Boatwright (2019) 36 Cal.App.5th 848, 853)
In March 2017, County approved an ordinance (No. 10461), which repealed the existing medical marijuana collective facility regulations and amended zoning ordinances to ban the establishment of new medical and nonmedical marijuana facilities in unincorporated areas. Those facilities that had obtained an operating certificate or vested rights were given a five-year amortization period to cease operations. A week later, it approved another ordinance (No. 10474) limiting the issuance of operating certificates in accordance with the ban. The ordinances went into effect 30 days after their passage dates: on April 14, 2017, and April 21, 2017. In part, County's board of supervisors found that in 2013 the California Supreme Court in City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729 (City of Riverside) held "that cities and counties have the authority to ban medical marijuana land uses." Referring to its past findings, County's Board of Supervisors found that the amendments were "reasonable and necessary for public health, safety and welfare."
The Board of Supervisors also extended the 2016 moratorium by separate ordinances, Nos. 10426 and 10462.
"[Z]oning legislation may validly provide for the eventual discontinuance of nonconforming uses within a prescribed reasonable amortization period commensurate with the investment involved . . . ." (National Advertising Co. v. County of Monterey (1970) 1 Cal.3d 875, 878; see Lamar Advertising Company v. County of Los Angeles (2018) 22 Cal.App.5th 1294, 1298.)
County's five-year period was insufficient for plaintiffs to recoup their investments. County staff later destroyed all of the accounting records of expenses, improvements, and work that it had asked plaintiffs to submit in making its vested rights determinations.
Plaintiffs sued County in June 2017 but did not serve the complaint. In August 2017, they filed a first amended complaint alleging causes of action for (1) a taking without just compensation under the Fifth Amendment and (2) "unequal enforcement of the law" (capitalization omitted) by virtue of County failing to shut down illegal operations while prohibiting others from obtaining vested rights, and issuing contradictory and confusing instructions via the sheriff's department. Plaintiffs sought a writ of mandate to compel County to permit them to develop their properties for cultivation, alleging the March 2017 ordinance was the result of County's arbitrary and capricious action and was "not supported by the record"; County did not proceed in a manner required by law and acted in excess of its jurisdiction; and they were denied due process. Plaintiffs also sought judicial declarations supportive of these claims.
Plaintiffs attempted service of the summons and first amended complaint in November 2017. The parties later stipulated to deem County served with that pleading and the summons on December 5, 2017.
County demurred to the first amended complaint on grounds, among others, it failed to state causes of action and the takings claim was barred by the 90-day statute of limitations in section 65009, subdivisions (c)(1)(B), (E), and (F). It argued the gravamen of plaintiffs' writ petition, first cause of action, and request for declaratory relief was that County's 2016 moratorium, vested rights determinations, and 2017 ban constituted a taking of their property. It argued all of these claims were barred because plaintiffs did not file and serve County 90 days from the time the 2016 moratorium took effect, the August 2016 final administrative decision on their vested rights, or the effective date of the 2017 ban. County further argued plaintiffs' equal protection claim failed because they did not plead it intentionally discriminated against them. County asked the trial court to take judicial notice of the parties' stipulation as to service, plaintiffs' proof of service, County's ordinances and its August 2016 vested rights decisions.
The Coie plaintiffs opposed the demurrer, arguing the first amended complaint did not on its face demonstrate it was time-barred. They objected to County's request for judicial notice, arguing in part the court could not rely on the contents of the register of action, the parties' stipulation, or plaintiffs' proof of service to resolve questions of fact, and the dates of the ordinances were irrelevant to resolution of County's demurrer. Joining these arguments, the Outco plaintiffs argued their complaint was timely because the 90-day statute of limitations was inapplicable and County was estopped in any event from asserting the limitations period. According to the Outco plaintiffs, their action was "not solely to challenge specific ordinances or decision[s]" by County, but was "a much broader challenge to determine and adjudicate the County's responsibilities, duties, and possible violations of the Medical Marijuana Regulation and Safety Act ('MMRS') and other state legislation related to the commercial use of cannabis." They argued the gravamen of their action was to determine whether County violated the MMRS by revoking authorization it already had given cultivators or by failing to notify the proper state departments after denying plaintiffs' permits. The Outco plaintiffs argued they stated a cause of action for an equal protection violation, asserting they "faced intentional and arbitrary discrimination as a result of the County's procedures and rules specifically used to create obstacles for Plaintiffs in pursuit of their businesses." They argued County board supervisors had told them they were being treated unfairly though they followed all the rules. The Outco plaintiffs sought leave to amend "if any deficiencies are found."
Observing the 90-day statute of limitations was to be strictly applied, the trial court sustained County's demurrer to the first cause of action, ruling plaintiffs' claims as to County's 2016 moratorium ordinances and August 2016 vested rights determinations were time-barred under the 90-day limitations period of section 65009, subdivision (c)(1)(B). It ruled the plaintiffs' claims relating to the 2017 ban and amortization period were likewise barred, because while plaintiffs filed their original complaint within 90 days of the April 14, 2017 effective date, they failed to serve County within that period of time. The court observed that the claims were barred whether plaintiffs relied on the November 2017 or December 2017 dates for service. It denied leave to amend the first cause of action, observing plaintiffs' counsel was unable to articulate facts that, if true, would amount to an estoppel. The court sustained County's demurrer to plaintiffs' claim for declaratory relief on the same statute of limitations grounds, stating its ruling obviated the need for such a cause of action. The court granted plaintiffs leave to amend their second cause of action for unequal enforcement of the law.
The Outco and Coie plaintiffs filed separate second amended complaints alleging single equal protection causes of action, later stipulating that the claim was brought under Title 42 United States Code section 1983 (section 1983). They alleged that law-abiding collective operators including plaintiffs asked County to shut down unlicensed and illegal dispensaries, but County in response intentionally discriminated against Petitioners by arbitrarily or selectively enforcing its law, prohibiting those trying to meet County procedures from obtaining vested rights or, as to those that had vested rights, failing to enforce regulations against illegal operations. The Outco plaintiffs alleged further that County via the sheriff "intentionally issued contradictory and confusing instructions that resulted in unequal application and treatment of the law to Petitioners." The Coie plaintiffs alleged County's Ordinance No. 10474 placed "unique and significantly more onerous restrictions" on them than other facilities, and negatively impacted the medical privacy and autonomy rights of medical marijuana customers, while not imposing the same restrictions on other medical products such as opioids with greater health risks. They argued County had no basis for selectively discriminating against users of medical marijuana-based products versus users of nonmedical marijuana-based medical products.
County again demurred to the second amended complaints. It argued the complaints failed to state facts sufficient to constitute a federal constitutional equal protection violation because plaintiffs did not allege facts establishing County selectively enforced the law against them as a result of its intentional or purposeful discrimination on an impermissible ground such as race, religion or exercise of constitutional rights. County further argued the complaints did not allege facts establishing the various types of section 1983 municipal liability nor did they allege sufficient facts to plead a claim for selective enforcement, meaning an official policy deliberately based on an unjustifiable standard such as race, religion, or other arbitrary classification. County argued Ordinance No. 10474 did not target or restrict anyone, but simply amended regulations to ensure the sheriff only issued annual operations certificates to entities with vested rights that were allowed to operate during the amortization period.
The trial court agreed with County's arguments, ruling the second amended complaints did not state equal protection causes of action. It further ruled plaintiffs did not persuasively articulate any additional facts they could include to avoid the deficiencies in those pleadings. It sustained the demurrer without leave to amend. Plaintiffs filed these appeals from the ensuing judgment of dismissal.
DISCUSSION
I. Standard of Review
In testing the sufficiency of a pleading against a general demurrer, we apply well settled rules. " '[W]e examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory' " (Mathews v. Becerra (2019) 8 Cal.5th 756, 768), liberally construing the complaint's allegations with a view to attaining substantial justice among the parties. (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486.) " ' " 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is . . . sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment . . . ." ' [Citation.] ' "The burden of proving such reasonable possibility is squarely on the plaintiff." ' " (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010; see also Dudek v. Dudek (2019) 34 Cal.App.5th 154, 163-164.) If there is a reasonable possibility that the pleading, liberally construed, can state a cause of action, a demurrer should not be sustained without leave to amend. (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 936.) " ' "[W]e review the trial court's result for error, and not its legal reasoning." ' [Citation.] In other words, if the judgment is correct on any theory, even one not provided by the trial court, we affirm." (Dudek v. Dudek, at p. 164.)
II. Statute of Limitations
Plaintiffs contend the trial court erred by sustaining County's demurrer because section 65009's 90-day statute of limitations does not apply to their constitutional challenges to County's "implementation of state law." They concede section 65009 applies to actions challenging zoning ordinances or issuance of a conditional use permit. However, plaintiffs argue the statute should not apply to constitutional claims attacking a land and zoning ordinances or other "broader claims of invalidity" such as preemption, and they advocate such claims be governed by the three-year limitations period of Code of Civil Procedure section 338 and Justice Brown's dissenting opinion in Travis v. County of Santa Cruz (2004) 33 Cal.4th 757 (Travis). As they argued below, plaintiffs maintain their challenge is "much broader than a single decision or ordinance" in that the first amended complaint assertedly addresses whether County's actions are consistent with the MMRS—which plaintiffs characterize as "ambiguously" allowing local jurisdictions to regulate or completely prohibit cannabis-related businesses—and other laws related to the cultivation of marijuana. They argue they seek "relief to determine the County's responsibilities and duties under state law" on that issue. According to plaintiffs, County's unconditional ban conflicts with the state legislative statutory scheme, specifically Proposition 64, which they say "expressly prohibits local governments from banning marijuana businesses without 'a vote of the people within the locality.' " A. Section 65009 Bars Plaintiffs' Takings Claims
This latter assertion is incorrect. The statement is taken from the "Findings and Declarations" section of the voter information guide for Proposition 64. (Voter Information Guide, Gen. Elect (Nov. 8, 2016) text of Prop. 64, § 2, subd. (c), p. 179, italics added.) The mention of voter approval as a prerequisite to local bans does not appear in the statute Proposition 64 enacted (Bus. & Prof. Code, § 26000 et seq.) or its later amendments. (See footnote 10, infra.) Rather, as we explain, the law (§ 26200, subd. (a)) plainly gives County the authority to enact an ordinance completely banning marijuana dispensaries, medical or otherwise.
Section 65009 subdivision (c)(1) provides in part that "no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body's decision: [¶] . . . [¶] (B) To attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance. [¶] . . . [¶] (E) To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit." "[S]ections 65901 and 65903 provide for hearing and decision on, and administrative appeals concerning, applications for variances, conditional use permits, and other permits." (Travis, supra, 33 Cal.4th at p. 766, fn. 2.) The law establishes a short, 90-day period by which to challenge a broad range of local zoning and planning decisions (Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, 156-157; Citizens for Beach Rights v. City of San Diego (2017) 17 Cal.App.5th 230, 237), including ordinances prohibiting medical marijuana dispensaries. (Save Lafayette, at pp. 156-157, citing Urgent Care Medical Services v. City of Pasadena (2018) 21 Cal.App.5th 1086, 1096.)
The short limitations period of section 65009 is "intended ' " ' "to provide certainty for property owners and local governments regarding decisions made pursuant to this division" [citation] and thus to alleviate the "chilling effect on the confidence with which property owners and local governments can proceed with projects" [citation] created by potential legal challenges to local planning and zoning decisions.' " ' " (Citizens for Beach Rights v. City of San Diego, supra, 17 Cal.App.5th at p. 237.) One who challenges a decision set out in section 65009 "must file and serve the public entity within 90 days of the challenged decision." (Weiss v. City of Del Mar (2019) 39 Cal.App.5th 609, 619.) Upon the 90-day period's expiration, " 'all persons are barred from any further action or proceeding.' " (Ibid.; Travis, supra, 33 Cal.4th at p. 766; § 65009, subd. (e).) "There are no exceptions." (Weiss, at p. 619.) It is a "strict statutory scheme . . . ." (Haro v. City of Solana Beach (2011) 195 Cal.App.4th 542, 555; Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1048 [section 65009 " 'mandates strict compliance with the statute of limitations and service periods' "].)
The limitations period applicable to an action is determined by the complaint's gravamen. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22; San Diego Unified School Dist. v. Yee (2018) 30 Cal.App.5th 723, 733; Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 967-968.) There is no dispute that the gravamen of plaintiffs' first cause of action is that County worked a taking—first by its vested rights determination and insufficient five-year amortization period, then by its zoning amendment and implementation of the ban on medical marijuana facilities as applied to them. Indeed, plaintiffs concede their action at least in part "necessarily attack[s] the validity of the ordinances the County enacted by alleging the County's actions violated the Fourteenth Amendment's Equal Protection Clause and the right to just compensation under the Fifth Amendment." Plaintiffs allege they complied with County's procedure for operating their facilities, but County then "issued a ban on all medical marijuana cultivation facilities on 22 March 2017." They allege that "Although [they] were far along in the County's process . . . the ban nonetheless prohibits [them] from developing and operating their properties" and "County's actions substantially deprived [them] of the economic value of their properties." They allege that "despite popular approval of Proposition 64 [County] passed a series of moratoriums, byzantine regulations, and against the recommendation of the [planning department], ultimately enacted the ban which unfairly targeted legal medical marijuana facilities." They allege County "designated some of [plaintiffs] as possessing vested rights, and yet the County undermined their ability to recoup their substantial investment costs" and "did so by limiting operation of their dispensaries to five years" which was "insufficient for [plaintiffs] to recoup their substantial investment." Whether calculated from County's August 2016 final administrative decision on plaintiffs vested rights, or the effective April 2017 dates of County ordinances enacting the ban, plaintiffs' complaint, deemed served in December 2017, is untimely.
We cannot accept plaintiffs' characterization of their attack as targeting not only the ordinance but more broadly County's conduct with respect to state law, which they say was "a diametric shift" from allowing collectives to banning them contrary to the MMRS or other "state legislation related to the cultivation of marijuana." The first amended complaint does not mention the MMRS. It merely alleges that County is "subject to California law, obligating it to enact legislation which is fair and equitable." It alleges County's procedures in enacting the ban violated California law. It alleges County took various actions "despite popular approval of Proposition 64 . . . ."
To support this characterization of their claims, plaintiffs provide an unhelpful record citation to the entirety of their second amended complaint. But the second amended complaint also does not mention the MMRS.
Even if we were to liberally construe these allegations to accept plaintiffs' characterization, however, the claim is still subject to section 65009's short limitations period. The essence of such a claim is an attack on County's ban as either prohibited by, or inconsistent with, state marijuana laws—akin to a claim of preemption—which challenges the facial validity of the ordinance. (See Travis, supra, 33 Cal.4th at p. 767; T-Mobile West LLC v. City and County of San Francisco (2019) 6 Cal.5th 1107, 1117 [addressing a claim that state law preempted city ordinances as a "facial challenge to a local ordinance"]; City of Riverside, supra, 56 Cal.4th at p. 743 ["local legislation that conflicts with state law is void"].) Because the sole question here is whether the claim is time-barred, we do not reach the questionable merits of such a claim. (See City of Riverside, at p. 762 [state marijuana laws—specifically the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5) and Medical Marijuana Program Act (Health & Saf. Code, § 11362.7 et seq.) "neither . . .expressly or impliedly preempts the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit or entirely exclude facilities that distribute medical marijuana, and to enforce such policies by nuisance actions"]; Urgent Care Medical Services v. City of Pasadena, supra, 21 Cal.App.5th at p. 1093, fn. 4 [rejecting argument that City of Riverside held state marijuana laws disallowed municipalities from implementing a total ban on medical marijuana dispensaries]; Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 981, 983, 984 [Compassionate Use Act does not create a constitutional right to obtain marijuana or an unfettered right to cultivate marijuana for medical purposes].)
As plaintiffs appear to recognize by reliance on its dissent, Travis does not assist them. Travis involved a 1981 county ordinance regulating second dwelling units. (Travis, supra, 33 Cal.4th at p. 763.) The question in Travis was whether the plaintiffs' claims were subject to section 65009, subdivision (c)(1)(B)—a position argued by the county in that case to render plaintiffs' claims untimely as not filed within 90 days of an ordinance's effective date—or subdivision (c)(1)(E), which would begin running from the county's adjudicatory decision. (Travis, at pp. 765, 767-768.) The plaintiffs alleged a county violated its legal duties by imposing rent and occupancy conditions on their development permits obtained under the ordinance, or exceeded its lawful authority by imposing the permit conditions. (Id. at pp. 766-767.) They objected not only to the ordinance's enactment, but also its application to their permits; they claimed the county effected a taking by demanding invalid exactions as a condition of issuing them permits. (Id. at p. 767.) Travis held that notwithstanding the plaintiffs' theory, these claims were subject to the subdivision of section 65009 governing an action to void or annul the county's decision to impose the conditions: "Section 65009, subdivision (c)(1)(E), in setting a time limit for actions challenging permit conditions, does not purport to restrict the legal theories or claims that may be made in such an action, and we see no justification for reading such a substantive limitation into the clear procedural language of the statute. Subdivision (e) of section 65009 provides that after expiration of the limitations period, 'all persons are barred from any further action or proceeding.' . . . A plaintiff, therefore, may not avoid the short 90-day limit of section 65009 by claiming that the permit or condition is 'void' and thus subject to challenge at any time. [Citations.] By the same token, an action is not removed from the purview of section 65009, subdivision (c)(1)(E) merely because the plaintiff claims the permit or condition was imposed under a facially unconstitutional or preempted law." (Travis, at pp. 767-768.)
Travis reached a different conclusion as to plaintiffs' separate arguments that the 1981 county ordinance conflicted with, and was preempted by, state law, namely the Costa-Hawkins Act. (Travis, supra, 33 Cal.4th at pp. 764, 771-772.) That act was effective in 1996, well after the challenged ordinance's 1981 enactment. (Id. at p. 772, fn. 7.) The court observed the plaintiffs' claim was that the county had failed to repeal the ordinance or amend it to conform to state law, and thus that claim was governed by the three-year limitation period of Code of Civil Procedure section 338. (Id. at p. 772.) Travis made clear its conclusion only applied to a claim of preemption by a later-enacted statute, and that other claims of preemption would be subject to the shorter 90-day period: "Lest our holding be misunderstood . . . we emphasize it applies only to claims of preemption by statutes enacted after the Ordinance's adoption, and not to statutory or constitutional provisions already in force at the time the Ordinance was adopted. As the constitutional protections against taking of property without just compensation (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 19) were already in existence when the County adopted the Ordinance, a facial attack on the Ordinance as a taking of property would be an action to 'attack, review, set aside, void, or annul the decision of a legislative body to adopt . . . a zoning ordinance' (§ 65009, subd. (c)(1)(B)), subject to the 90-day statute of limitations." (Travis, at p.772, fn. 9.)
Justice Brown concurred in the majority's conclusion that one plaintiff timely brought his facial attack on the validity of permit conditions under section 65009 because he filed it within 90 days of the final administrative action on his permit. (Travis, supra, 33 Cal.4th at pp. 767 ["The action was brought within 90 days of final administrative action on Travis's permit; it thus is timely as to Travis's claim the conditions imposed on his permit are invalid"], 776 (conc. & dis. opn. of Brown, J.).) Justice Brown dissented from the majority's application of the short limitations period to bar plaintiffs' claims of preemption. (Id. at pp. 776-779 (conc. & dis. opn. of Brown, J.).) Plaintiffs here improperly rely on Justice Brown's dissent.
Under Travis, a claim that County's ban is contrary to state marijuana laws, including Proposition 64 or the MMRS, would be subject to section 65009 because none of those laws were enacted after County's March 2017 ban. We decline plaintiffs' invitation to adopt the dissenting view in Travis, as that would be contrary to our obligation to follow Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The Medical Marijuana Regulation and Safety Act was enacted in 2015. (See County of Kern v. Alta Sierra Holistic Exchange Service, supra, 46 Cal.App.5th at p. 106.) That law was repealed by the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA; Bus. & Prof. Code, § 26000 et seq.), which the Governor signed into law after the November 2016 passage of Proposition 64. (County of Kern, at p. 106.) The MAUCRSA created one regulatory system for both medicinal and adult-use (recreational) marijuana, and became effective on June 27, 2017. (Ibid.) "The [MAUCRSA] explicitly authorized local jurisdictions 'to completely prohibit the establishment or operation of one or more types of businesses licensed under [MAUCRSA] within the local jurisdiction.' " (Ibid.; see Bus. & Prof. Code, § 26200, subd. (a)(2) ["This division shall not be interpreted to supersede or limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate businesses licensed under this division, including, but not limited to, local zoning and land use requirements, business license requirements, . . . or to completely prohibit the establishment or operation of one or more types of businesses licensed under this division within the local jurisdiction"].) Plaintiffs do not allege County's ban is inconsistent with or preempted by the MAUCRSA, but such a claim would not state a cause of action in any event given this provision.
Neither Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547 nor People v. Gates (1974) 41 Cal.App.3d 590, relied upon by plaintiffs, compel a different result. In Venice Town Council, the plaintiffs alleged a city had failed to comply with a mandatory duty under a law (the Mello act) requiring it to make threshold factual determinations and require replacement housing or certain fees when issuing permits for the demolition or conversion of affordable housing. (Venice Town Council, at p. 1558.) The Court of Appeal held a demurrer was improperly sustained without leave to amend: plaintiffs had alleged the city had mandatory ministerial duties enforceable by a writ of mandate (id. at p. 1564); they were not challenging the city's past land use decisions under the Mello act nor were they challenging a specific decision by the City, and thus the 90-day statute of limitations (former § 65907, later recodified in section 65009; see Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1120, fn. 7) did not apply. Unlike Venice Town Council, the gravamen of plaintiffs' challenge here is to County's August 2016 administrative vested rights decisions and enactment of the ban. The First District Court of Appeal in People v. Gates overturned a trial court's decision that procedurally barred appellants from challenging a board of supervisors' decision to terminate nonconforming use of their property. (People v. Gates, 41 Cal.App.3d at pp. 596-597.) The court reasoned the order was not a "decision[ ] of a board of zoning adjustment or the zoning administrator," and the board there was not acting as an appellate board, but acted only on the planning commission's recommendation. (Id. at p. 598.) Gates rests on an interpretation of the statute; the case does not stand for the proposition that broad constitutional challenges to a board's decision are exempt from section 65009. In any event, the First District Court of Appeal has since rejected Gates's reading of the statute in Save Lafayette Trees v. City of Lafayette, supra, 32 Cal.App.5th 148, explaining section 65009 " 'covers "any decision" on the "matters listed" in Sections 65901 and 65903 . . . .' " (Id. at p. 157.) We agree with Layfayette that application of section 65009 depends on the underlying decision being reviewed, not the nature of the reviewing body, and that Gates's suggestion to the contrary is incorrect. Vista Town Council and Gates do not persuade us that plaintiffs' takings claims are excused from compliance with section 65009. B. Estoppel to Rely on Limitations Period
At the hearing on County's first demurrer, the court invited counsel to make an offer of proof as to how plaintiffs could amend their first amended complaint to plead County was somehow estopped from invoking the statute of limitations. The court asked: "What did the [C]ounty say to whom which caused a noncompliance with the statute of limitations here?" During the discussion, counsel for the Coie plaintiffs offered an idea of what such evidence might be, positing that County may have encouraged plaintiffs to not file their pleading while they sought to resolve the matter. Counsel for the Outco plaintiffs, who had dealt with County in stipulating to the December 5, 2017 service date, flatly refuted that; she confirmed that no one at County told her not to file the first amended complaint. The colloquy continued:
"The court: . . . I want to know whether there was anything that the [County] said that led the plaintiffs to reasonably conclude that they don't have to comply with . . . section 65009. That . . . they don't have to comply with the 90-day statute of limitation. That there were negotiations going on, that's not enough. But what you said that caught my attention was that they said point blank, 'Don't serve it.' But I don't think there's any—
"[Outco plaintiffs' counsel]: Your Honor, that was not said. And I'll just make that clear right now. Look, what did happen was meetings after meetings with counsel and talking about mediation. Things like that.
"The court: That's not enough. . . . I'm not going to give leave to amend [the first amended complaint] to see those allegations. [¶] . . . [¶]—because as a matter of law that's not significant." Pressed for specifics, plaintiffs' counsel stated: "I can tell you the types of things they're doing . . . There were things like, 'We need a sprinkler system.' Then they go along in the approval process. 'Okay. Now, you do need a certain type of approval [sic] system.' We have since even the filing of this lawsuit, developed sources at the county and records that indicate they were told . . . within the county . . . to destroy some of the records of the plaintiffs . . . ." Counsel stated that evidence "has come to light that the proponent of this ban was someone who has a conflict of interest because the supervisor has a family business or has an interest in it."
Plaintiffs contend that even if the 90-day limitations period applied, the court erred by declining to grant them leave to amend to allege County's conduct postdating the March 2017 ordinances equitably estopped it from asserting the defense. They maintain their counsel by offer of proof described evidence showing County led them to believe they did not have to comply with section 65009: that plaintiffs were in "various stages of the development process" and County departments were "actively engaged with [plaintiffs] even after the March 2017 ordinances." Plaintiffs argue County "intended for [plaintiffs] to continue to comply with the Sherriff's Departments [sic] to pay substantial sums of money to make significant improvements to the County's public land" but it "never intended to allow [plaintiffs] to operate or cultivate medical marijuana in the County's unincorporated areas." According to plaintiffs, after they received their August 2016 vested rights determination letters, the sheriff and planning departments "were taking payments and fees from [plaintiffs] to continue their build out process." Plaintiffs assert that "County through its officials and departments provided [plaintiffs] with inconsistent instructions by allowing [them] to continue with their approval and building process." They say, "Additionally, since filing the lawsuit, there are sources and records that indicate County officials instructed its various departments to destroy [plaintiffs'] records all in an orchestrated effort to prevent [them] from operating a lawful business under the State of California." (Bold omitted.) Finally, plaintiffs assert that due to settlement talks County was aware of the lawsuit before August 11, 2017, but without a resolution they agreed to extend the deadline for County's response to the first amended complaint, causing plaintiffs to stipulate that County was served with that pleading in December 2017.
We recently addressed the principles of equitable estoppel in this context against a public agency: " '[E]quitable estoppel will preclude a defendant from pleading the bar of the statute of limitations where the plaintiff was induced to refrain from bringing a timely action by the fraud, misrepresentation or deceptions of the defendant.' [Citation.] 'A defendant should not be permitted to lull his adversary into a false sense of security, cause the bar of the statute of limitations to occur and then plead in defense the delay occasioned by his own conduct.' " (Citizens for a Responsible Caltrans Decision v. Department of Transportation (2020) 46 Cal.App.5th 1103, 1128.) " '[C]onduct on behalf of a public agency, which would induce a reasonably prudent person to avoid seeking legal advice or personally commencing litigation, may estop the public agency from asserting a claims defense . . . .' " (Ibid.; see also J.P. v. Carlsbad Unified School Dist. (2014) 232 Cal.App.4th 323, 333 [public agency may be estopped from asserting a limitations period where its agent or employees have prevented or deterred the filing of a timely claim by some affirmative act].) A plaintiff must, however, "especially plead[]" the requisite elements of estoppel " 'with sufficient accuracy to disclose facts relied upon.' " (Citizens, at p. 1128; see Sofranek v. County of Merced (2007) 146 Cal.App.4th 1238, 1250; Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824 ["Where the complaint's allegations or judicially noticeable facts reveal the existence of an affirmative defense, the 'plaintiff must "plead around" the defense, by alleging specific facts that would avoid the apparent defense. Absent such allegations, the complaint is subject to demurrer for failure to state of cause of action' "].) The government will be estopped from asserting a limitations defense where, " 'in the considered view of a court of equity, the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel.' " (Citizens, at pp. 1128-1129; accord, Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1315 [equitable estoppel will not apply to a government entity " 'except in unusual instances when necessary to avoid grave injustice and when the result will not defeat a strong public policy' "].)
To establish an equitable estoppel " '(1) the party to estopped must be apprised of the facts; (2) he must intend that his conduct be acted on, or must so act that the party asserting estoppel had a right to believe it was so intended; (3) the party asserting estoppel must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.' " (Citizens for a Responsible Caltrans Decision v. Department of Transportation, supra, 46 Cal.App.5th at p. 1128; see May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1338; Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305.) The detrimental reliance must be reasonable. (May v. City of Milpitas, at p. 1338, citing Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 383.)
Thus, in Citizens for a Responsible Caltrans Decision, we held a plaintiff adequately pleaded that Caltrans was equitably estopped from asserting a 35-day statute of limitations for challenging a notice that a freeway project was exempt from the California Environmental Quality Act. (Citizens for a Responsible Caltrans Decision v. Department of Transportation, supra, 46 Cal.App.5th at p. 1118.) The plaintiff alleged Caltrans had repeatedly assured the public that if it approved the project it would publish a notice of determination after circulating a final environmental impact report, but then "unbeknownst to interested community members, including members of [plaintiff]," it filed the notice of exemption, which plaintiff did not learn about until after the 35-day limitations period had run. (Id. at p. 1130.) Plaintiff alleged that Caltrans "made no effort to inform the public of this significant change" and given " 'the public's detrimental reliance upon Caltrans'[s] repeated statements that it would file a [notice of determination], Caltrans is estopped from arguing the 35-day statute of limitations to challenge the Project has run.' " (Id. at p. 1130, italics omitted.) We held the allegations supported a reasonable inference plaintiff was ignorant of the true state of facts and relied on Caltrans's conduct to its injury. (Id. at p. 1131; accord, J.P. v. Carlsbad Unified School Dist., supra, 232 Cal.App.4th at p. 334 [repeated affirmative statements by school district administrators to parents, telling them not to discuss molestations with anyone or else jeopardize the criminal investigation of the attacker "exerted a powerful influence on the parents' actions" and was sufficient to apply equitable estoppel to prevent the district from benefitting from its conduct].)
We are unable to glean specific facts meeting these standards, either from plaintiffs' first amended complaint or their counsel's offer of proof at the demurrer hearing. The assertion that County "actively engaged with" plaintiffs is insufficiently specific. Plaintiffs' counsel's proffer did not identify County representatives who made misleading statements or engaged in conduct amounting to a " 'misrepresentation bearing on the necessity of bringing a timely suit' " (May v. City of Milpitas, supra, 217 Cal.App.4th at p. 1338; see also J.P. v. Carlsbad Unified School Dist., supra, 232 Cal.App.4th at p. 334) or describe specific facts showing County otherwise by statements or actions " ' "induced [them] into forbearing suit within the applicable limitations period." ' " (Lantzy v. Centex Homes, supra, 31 Cal.4th at p. 383.) That County continued to take payments or work with plaintiffs after enacting its ban is not conduct that would "induce[] a reasonably prudent person to avoid seeking legal advice . . . ." (J.P., at p. 334.) The fact County may have engaged in settlement discussions does not preclude it from asserting a statute of limitations defense. (Lobrovich v. Georgison (1956) 144 Cal.App.2d 567, 573 [" 'an estoppel to plead the statute does not arise in every case in which there are negotiations for a settlement of the controversy' "].) Plaintiffs would not reasonably be lulled into inaction or delay by County officials' asserted instruction to destroy their records. To the contrary, such evidence would spur a reasonably prudent person into legal action. Plaintiffs do not point to any misrepresentation, promises or action by County representatives sufficient in law to support a claim that they were lulled into inaction or induced to delay serving their complaint in reasonable reliance. They have not shown the trial court erred in declining to grant leave to amend to allege equitable estoppel.
III. Equal Protection
In their second amended complaint, the Outco plaintiffs allege there are numerous unlicensed marijuana dispensaries operating in San Diego County that "continue to operate without penalty from the County" despite plaintiffs' repeated oral and written requests that they be shut down as part of County's enforcement. They allege their demands "have been met with complete inaction by the County" and rather than enforcing the code violation of those who did not seek a permit, County "prohibit[ed] those [plaintiffs] that try to comply with County procedures to obtain vested rights." The Outco plaintiffs allege: "The punitive measures for [their] lawful compliance stands in stark comparison to the County's explicit lack of enforcement to abate the illegal dispensary facilities operating around them." They allege County staff delayed routine building permit issues because plaintiffs were in process of opening medical marijuana facilities, "to which many senior County staff and members on the Board of Supervisors personally disagreed." The Coie plaintiffs make similar allegations.
Throughout their pleadings, the Outco and Coie plaintiffs make argumentative legal conclusions that we disregard, including that County's ban "unfairly targeted legal medical marijuana facilities" or County intentionally discriminated against plaintiffs by its policy of selectively or arbitrarily enforcing its laws, and by "imposing unjustifiable delays on [plaintiffs] as they went through the permitting process." We do not accept the Coie plaintiffs' allegations that County engaged in an "intentional arbitrary scheme . . . to selectively enforce [its] zoning and related marijuana regulations, without any basis for the distinction between Plaintiffs and those illegal operators, in violation of Plaintiffs' constitutionally-guaranteed due process, equal protection and property rights."
Plaintiffs contend their second amended complaints adequately plead a violation of equal protection under section 1983. They say their pleadings show County intentionally discriminated against them in that it shut down their operations while allowing other similarly situated marijuana dispensaries and delivery systems to operate illegally and "enforced zoning regulations and created additional requirements only for Appellants to operate medical marijuana collectives in the County's unincorporated areas." Plaintiffs argue the complaint alleges County sheriffs selectively enforced these regulations on Appellants only, while allowing other similar businesses who were illegally operating to continue without any prosecution. Citing Ex parte Jentzsch (1896) 112 Cal. 468 and Village of Willowbrook v. Olech (2000) 528 U.S. 562 (Olech), they argue occupations cannot be singled out for a ban "without reasonable ground for discrimination."
Ex parte Jentzsch struck down a penal law making it a misdemeanor to operate barber shops and hair dressers after noon on Sundays and holidays. (Ex parte Jentzsch, supra, 112 Cal. at pp. 470-471.) The court observed there was no reason shown why other businesses were not treated similarly, and thus the law was not only unjust in operation but was an invasion of individual liberty. (Id. at p. 475.) Jentzsch does not apply United States Supreme Court precedent, and factually we see little application to plaintiffs' equal protection challenge to County's assertedly selective enforcement of its regulations or ban on permitted versus unpermitted medical marijuana dispensaries or collectives, which as we explain below is in furtherance of its inherent police power.
In deciding whether plaintiffs state claims under section 1983, we must follow controlling opinions of the United States Supreme Court. (U.S. Const., art. VI, cl. 2; Genesis Environmental Services v. San Joaquin Valley Unified Air Pollution Control Dist. (2003) 113 Cal.App.4th 597, 605.) To state a section 1983 cause of action plaintiffs must plead more than constitutional "buzzwords"; they "must allege specific and nonconclusory facts showing [County's] acts deprived [them] of a right, privilege or immunity secured by the federal Constitution or federal laws." (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 180; see Catsouras v. Dept. of California Highway Patrol (2010) 181 Cal.App.4th 856, 891 [plaintiff must allege particularized facts; mere conclusions will not support a Civil Rights Act claim].)
Olech addressed whether a plaintiff adequately alleged an equal protection violation by allegations that an easement condition placed on her was " 'irrational and wholly arbitrary' " and motivated by ill will resulting from prior litigation. (Olech, supra, 528 U.S. at p. 563.) The town required her to grant a 33-foot easement to connect to its water supply while requiring 15-foot easements from other property owners. (Id. at p. 563.) The U.S. Supreme Court held the allegations stated a claim, recognizing that "successful equal protection claims [can be] brought by a 'class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." (Id. at p. 564.)
The California Supreme Court clarified Olech's holding in Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1118. It emphasized that "laws regulating a small number of individuals, or even a class of one, are not necessarily suspect. . . . '[T]he premise that there is something wrong with particularized legislative action is of course questionable. While legislatures usually act through laws of general applicability, that is by no means their only legitimate mode of action . . . . Even laws that impose a duty or liability upon a single individual or firm are not on that account invalid.' [Citation.] Rather, such regulations violate equal protection only 'if arbitrary or inadequately justified.' " (Gerawan Farming, at pp. 1142-1143, quoting Bank Markazi v. Peterson (2016) 578 U.S. ___ [136 S.Ct. 1310, 1327, fn. 27]; see also Hernandez v. City of Hanford (2007) 41 Cal.4th 279, 298-299 [applying test to economic and social welfare legislation in which there is differentiation of treatment between classes or individuals; such legislation deserves a "presumption of constitutionality and 'requir[es] merely that distinctions . . . bear some rational relationship to a conceivable legitimate state purpose' "]; Cotati Alliance for Better Housing v. City of Cotati (1983) 148 Cal.App.3d 280, 291 ["Equal protection is not denied simply because an ordinance treats one class of persons differently from another].)
Further, "equal protection is not license for courts to judge the wisdom, fairness, or logic of legislative choices." (F.C.C. v. Beach Communications, Inc. (1993) 508 U.S. 307, 313; see Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) "Where there is no suspect classification, and purely economic interests are involved, a municipality may impose any distinction which bears some 'rational relationship' to a legitimate public purpose. [Citation.] Courts consistently defer to legislative determinations as to the desirability of such distinctions. [Citation.] The ordinance will be upheld so long as the issue is ' "at least debatable." ' " (Cotati Alliance for Better Housing v. City of Cotati, supra, 148 Cal.App.3d at pp. 291-292; see Breneric Associates v. City of Del Mar, supra, 69 Cal.App.4th at p. 187 [addressing federal equal protection violation].) "[A] statute, regulation or ordinance will be upheld if there is any reasonably conceivable set of facts that provides a rational basis for the classification." (Vaquero Energy, Inc. v. County of Kern (2019) 42 Cal.App.5th 312, 324, citing F.C.C. v. Beach Communications, Inc., at p. 313.)
Applying these standards demonstrates that plaintiffs' second amended complaints' allegations do not establish a section 1983 equal protection violation. The complaints do not make out any suspect classification. And plaintiffs do not allege specific facts demonstrating that County arbitrarily or without any conceivable or rational basis treated them differently than other similarly situated businesses. It is not unconstitutional to fail to prosecute or enforce laws against other known violators. (See Oyler v. Boles (1962) 368 U.S. 448, 456 ["the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation" the selection must be deliberately based on an unjustifiable standard or other arbitrary classification]; Baluyut v. Superior Court (1996) 12 Cal.4th 826, 832 ["Unequal treatment which results simply from laxity of enforcement or nonarbitrary selective enforcement of a statute does not deny equal protection and is not constitutionally prohibited discriminatory enforcement"], citing Wayte v. United States (1985) 470 U.S. 598, 608-610; Murgia v. Municipal Court (1975) 15 Cal.3d 286, 297 [an equal protection violation does not arise whenever officials prosecute one and not another for the same act].) Allegations that County failed to regulate or impose permit and operation requirements on unpermitted dispensaries alleges nothing more than such lax enforcement of the law, which, as plaintiffs themselves recognize, is insufficient to state a cause of action.
More fatal to plaintiffs' second amended complaints is that plaintiffs cannot allege that County lacked a legitimate governmental objective in its actions, particularly in enacting its ban. Local authorities are " 'endowed with wide-ranging discretion' in formulating land use policy." (City of Vallejo v. NCORP4, Inc. (2017) 15 Cal.App.5th 1078, 1088, quoting DeVita v. County of Napa (1995) 9 Cal.4th 763, 781-782; see City of Riverside, supra, 56 Cal.4th at p. 742 [" '[a] county . . . may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws' " and a "county's power to control its own land use decisions derives from this inherent police power"].) City of Riverside established in 2013 that state law permitting medicinal marijuana use and distribution does not preempt the authority of California cities and counties to exercise their traditional land use and police powers to "allow, restrict, limit, or entirely exclude" medical marijuana distribution facilities. (City of Riverside, supra, 56 Cal.4th at p. 762.) "The same principle applies to recreational marijuana use, as Proposition 64 expressly provides that state regulations do not 'limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate' marijuana dispensaries 'or to completely prohibit' their 'establishment or operation.' " (City of Vallejo v. NCORP4, Inc., supra, 15 Cal.App.5th at pp. 1081-1082.)
Here, County's findings acknowledged City of Riverside gave it authority to enact its ban. To the extent County made individualized discretionary decisions in imposing public improvement requirements on those plaintiffs who sought to operate collectives, plaintiffs do not allege facts demonstrating such requirements to be arbitrary or lacking a purpose so as to overcome the presumption of constitutionality. (Hernandez v. City of Hanford, supra, 41 Cal.4th at pp. 298-299.) Such regulations are plainly in furtherance of public safety and protection against crime. County's March 2017 ban is likewise rationally related to its stated objective of protecting public health and safety, a legitimate exercise of County's police power. It thus does not lack a rational basis even if plaintiffs could allege dissimilar treatment.
Further, marijuana is a Schedule 1 controlled substance and federal law "continues to prohibit possession, cultivation, and distribution of marijuana notwithstanding modifications of drug laws in individual states." (City of San Jose v. MediMarts, Inc. (2016) 1 Cal.App.5th 842, 848; see City of Riverside, supra, 56 Cal.4th at pp. 737, 738-739; Controlled Substances Act (CSA), title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. § 801 et seq.) Under federal law, "marijuana is a drug with 'no currently accepted medical use in treatment in the United States' . . . ." (City of Riverside, at p. 739.) There is no medical necessity exception under federal law. (City of Riverside, at pp. 738-739; The Kind & Compassionate v. City of Long Beach (2016) 2 Cal.App.5th 116, 120; City of San Jose, at p. 848.) The federal law prohibitions are fully enforceable in California and are unaffected by state marijuana laws. (City of Riverside, at p. 740.) That marijuana continues to be illegal under federal law defeats any facts that could cast County's actions and decisions as irrational or unconstitutional.
In reply, plaintiffs point to other allegations of their pleading that they argue demonstrated County's enforcement had a discriminatory effect motivated by a discriminatory purpose, sufficient to allege an equal protection violation under Lacey v. Maricopa County (9th Cir. 2012) 693 F.3d 896. Many are the same legal conclusions and allegations of County's disparate enforcement. Plaintiffs say they allege that County "issued contradictory and confusing instructions . . . such as requiring them to make public improvements for their operations, i.e., movement of streetlights, but delaying approvals so that their permits could be denied"; imposed different requirements for building permits and prerequisites; destroyed plaintiff's files; and "bann[ed] medicinal marijuana facilities while allowing conflicting therapeutic modalities to exist in which a Supervisor has a conflict of interest." Plaintiffs indeed allege that "[s]ome petitioners were told to move streetlights, others were allowed to contest the decision, some were granted the right to cultivate, and others were denied outright." They allege that Supervisor Kristin Gaspar "possessed significant financial interests in businesses that directly competed with medical marijuana when she voted to ban medical marijuana facilities in the unincorporated areas of San Diego County . . . ."
None of the cited allegations allege facts showing County was acting with or was motivated by a discriminatory purpose. "Discriminatory purpose" requires that plaintiffs show County decided to enforce the ordinance against them "on the basis of an impermissible ground such as race, religion or exercise of . . . constitutional rights." (Lacey v. Maricopa County, supra, 693 F.3d at p. 922 [reporter for New York Times adequately alleged he was singled out for enforcement by a sheriff of whom he had been critical, which are First Amendment-protected activities].) Plaintiffs have not alleged they possess a constitutional right to operate their collectives. Nor can they. (City of Riverside, supra, 56 Cal.4th at p. 762 [state marijuana laws "do not . . . grant a 'right' of convenient access to marijuana for medicinal use"]; see also Maral v. City of Live Oak, supra, 221 Cal.App.4th at p. 984 ["there is no right—and certainly no constitutional right—to cultivate medical marijuana"]; Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214 Cal.App.4th 1534, 1554 [Compassionate Use Act does not create a broad right to cultivate, distribute or otherwise obtain marijuana without hindrance or inconvenience].)
Further, County was entitled to make individualized discretionary decisions for each applicant, including as to whether they obtained vested rights by virtue of the efforts they had made toward improving their property. " '[T]here are some forms of state action . . . which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases, the rule that people should be "treated alike, under like circumstances and conditions" is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.' " (Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., supra, 3 Cal.5th at p. 1143, quoting Engquist v. Oregon Dept. of Agriculture (2008) 553 U.S. 591, 601 [declining to apply class of one equal protection theory to the employment context].) Gerawan made clear this notion applies outside the employment context. Plaintiffs do not allege specific facts demonstrating the sort of irrational or arbitrary singling out as in Olech's "class of one" situation. (Olech, supra, 528 U.S. at p. 564.) Their conclusory allegations do not state facts showing County engaged in arbitrary or discriminatory treatment without any rational basis or relationship to a legitimate public purpose.
Finally, to the extent plaintiffs seek to rest an equal protection claim on County's asserted disparate treatment of medical marijuana collectives and pharmacies or other for-profit entities selling substances with medicinal purposes (such as opioids), such allegations would not state a cause of action. A meritorious claim under the equal protection clause would require a showing that County adopted a classification that affects two or more similarly situated groups in an unequal manner. (See Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) We agree with the holding of County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, that "medical marijuana dispensaries and pharmacies are not 'similarly situated' for public health and safety purposes and therefore need not be treated equally." (Id. at p. 871, fn. omitted.)
As County points out, the Outco plaintiffs do not argue on appeal that they stated an equal protection violation by alleging County banned only medical marijuana cultivation and not other medical products such as opioids. County argues the Outco plaintiffs abandoned that theory. County likewise points out the Coie plaintiffs recounted those allegations in their opening brief but do so without making meaningful legal arguments of their own under separate headings. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [briefs must state each point under separate heading summarizing the point, and support each argument by citation of authority].) Because our de novo review requires examination and liberal construction of the pleading to decide whether they state a cause of action under any legal theory (see part I, ante), we address this theory notwithstanding these deficiencies.
IV. Leave to Amend
Other than their equitable estoppel argument that we have rejected (part II(B), ante), plaintiffs do not attempt to demonstrate that they can specify facts to cure the defects and further amend their pleading to state a cause of action. We thus conclude the court did not abuse its discretion in sustaining County's demurrer to the second amended complaint without leave to amend. (Citizens for a Responsible Caltrans Decision v. Department of Transportation, supra, 46 Cal.App.5th at p. 1117 [it is appellant's burden to demonstrate on appeal a reasonable possibility the defect in the complaint can be cured by amendment].)
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. GUERRERO, J.