DANA POINT BEACH COLLECTIVE, a California non-profit Mutual Benefit corporation, Petitioner, RT

PETITION FOR REVIEW by Garfield Langmuir-Logan ATTORNEY PARTNER OF LOGAN LAW ALC IS PETITIONER Re: Decision of the Court of Appeal, Fourth Appellate District, Division Three, filed February 19, 2010 (Court of Appeal No. G042889) 'Orange County Case No. 30-2009-00298206
By Garfield Langmuir Logan
Nov 7, 2015

Page 1

N0. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DANA POINT BEACH COLLECTIVE, a California non-profit Mutual Benefit corporation, Petitioner, RT

GQU . RENE vs § SUP; \ LED SUPERIOR COURT OF THE STATE OF .LW CALIFORNIA, FOR THE COUNTY OF ORANGE “AR 0 3 Respondent CITY OF DANA POINT, Real Party in Interest PETITION FOR REVIEW Re: Decision of the Court of Appeal, Fourth Appellate District, Division Three, filed February 19, 2010 (Court of Appeal No. G042889) 'Orange County Case No. 30-2009-00298206 STAY REQUESTED OF BRIEFING SCHEDULE IN COURT OF APPEAL CASE NUMBER GO42889

Attorney Garfield Langmuir-Logan State Bar No. 101858 31351 Rancho Viejo Rd., Ste. 202 San Juan Capistrano, CA 92675 (949) 489-1251

ATTORNEY GARFIELD LOGAN OF LOGAN LAW ALC . CA PETITIONER OF THIS CASE

Page 2

III.IV.VI.VII.ISSUES PRESENTED FOR REVIEW ................................................. .. 1NATURE OF THE CASE ...................................................................... .. 2A. INTRODUCTION .................................................................................... .. 2 B. PROCEDURAL HISTORY ........................................................................ .. 3 WHY REVIEW SHOULD BE GRANTED .......................................... .. 7LEGAL DISCUSSION ........................................................................... .. 9A. REVIEW IS NECESSARY TO DECIDE THE IMPORTANTQUESTION OF APPEALABILITY OF LEGISLATIVESUBPOENA AND TO SECURE A UNIFORMITY OFDECISION. ......................................................................................... .. 9 B. APPLICABLE PRINCIPLES OF LAW AS TO THEAPPEALABILITY OF LEGISLATIVE SUBPOENAS .................. .. 10C. REVIEW SHOULD BE GRANTED TO REDRESS DANAPOINT BEACH COLLECTIVE’S DENIAL OF DUEPROCESS ......................................................................................... .. 20THE COURT SHOULD ALSO REVIEW THE ORDERDENYING CONSOLIDATION .......................................................... .. 22CONCLUSION ..................................................................................... .. 23CERTIFICATE OF COMPLIANCE WITH CALIFORNIARULES OF COURT, RULE 8.204 ...................................................... .. 24

Page 3

(ASE Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696 l8, l9 Amett v. Dal Cielo (1996) 14 Cal.4th 4 17 Auto Equity Sales v. County of Santa Clara (1962) 57 Cal. 2d 450 --------------- -- 9 Barnes v. Molino (1980) 103 Cal.App.3d 46 17 Bishop v. Merging Capital, Inc., (1996). 49 Cal.App.4th 1803 ---------- -- 2, passim Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669 16 City of Santa Cruz v. Patel (2007) 155 Cal. App. 4th 134 --------------- --10, passim City of Vacaville v. Pitamber (2004) 124 Cal.App.4th 739 ------------------------ --16 Collins v. Corie (1936) 8 Cal. 2d 120), 18 Fielder v. Berkeley Properties Co. (1972) 23 Cal.App.3d 30 --------------------- --16 Franchise Tax Board v. Barnhart (1980) 105 Cal.App.3d 274 -------------------- --17 H.D. Arnaiz , Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357 ------ --14 Millan v. Restaurant Enterprises Group, Inc.(1993) 14 Cal.App.4th 477, 3, passim Olson v. Cory (1983) 35 Cal.3d 390 9, passim People ex rel. Franchise Tax Bd. v. Superior Court (1985) 164 Cal.App.3d 526, 17 People v. Toro (1989) 47 Cal.3d 966 17 Primo Team, Inc. v. Blake Construction Co. (1992) 3 Cal.App.4th 801 ------- --. 23 Saxana v. Gaffney (2008) 159 Cal.App.4th 316, 23 Sharick v. Galloway ( 1936) 12 Cal.App.2d 733. 23 State ex rel. Dept. of Pesticide Regulation v. Pet Food Express Ltd. (2008) 165 Cal.App.4th 841 11, passim The People ex rel. Preston DuFauchard v. US. Financial Management, (2009) 169 Cal.App.4th 1502 Trede v. Superior Court (1943) 21 Cal.2d 630 Wood v. Superior Court (1985) 166 Cal.App.3d 1138 Younger v. Jensen (1980) 26 Cal.3d 397 STATUTES Code Civ. Proc., § 22 18 Code Civ. Proc. § 23 18 18 13 Code Civ. Proc., § 577 Code Civ. Proc., § 904, subd. (a)(1) Code Civ. Proc., § 904.1 11, 16, 17 Gov. Code, § 11180 15 Gov. Code, § 37106. 15 Gov. Code § 37104 1, passim Gov. Code §§ 37104 et seq 1, passim

Page 4

Government Code §§ 11186 through 11188 Government Code § 37108 Government Code § 37109 Government Code §37107 iii 16 15 15 15

Page 5

PETITION FOR REVIEWTo the Honorable Chief Justice of the California Supreme Court, and the Associate Justices of the Supreme Court of California: Petitioner Dana Point Beach Collective, Defendant and Appellant, respectfully petitions for review of the Order of the Court of Appeal, G042889, Fourth Appellate District, Division Three by Justices Rylaarsdam, Moore, and Aronson filed February 19, 2010. STAY REQUESTED:The Court is requested to stay further proceedings in the Court of Appeal pending its decision on this petition for review. I. ISSUES PRESENTED FOR REVIEW1) Whether an order compelling compliance with a legislative subpoena issued pursuant to California Government Code §37104 et seq. is appealable as a final judgment in a special proceeding.l Review is requested to resolve inconsistent opinions by the First, Second, Third, Fourth and Sixth District Courts of Appeal I Government Code §37104 provides as follows: The legislative body may issue subpoenas requiring attendance of witnesses or production of books or other documents for evidence or testimony in any action or proceeding pending before it.

Page 6

regarding appealability of the underlying Superior Court order compelling compliance with a legislative subpoena. 2) Whether the Court of Appeal properly denied consolidation of cases where the Superior Court had consolidated the cases. II. NATURE OF THE CASEA. Introduction This Petition seeks review of an important unsettled issue whether an order compelling compliance with a legislative subpoena issued pursuant to California Government Code §37104 et seq. is appealable as a final judgment in a special proceeding or whether it may only be reviewed by a petition for extraordinary writ. The Courts of Appeal and the Superior Courts in this state must choose among conflicting authority on the appealability of Superior Court orders enforcing administrative and analogous legislative subpoenas. Some courts have held such orders are non-appealable and may only be reviewed by writ. (See Bishop v. Merging Capital, Inc., (1996). 49 Cal.App.4th 1803, 1806-09, 57 Cal.Rptr.2d 556.) Other courts, however, have found that the a better view is that such orders 2

Page 7

are appealable as final judgments in special proceedings. (Millan v. Restaurant Enterprises Group, Inc. (4th Dist. 1993) 14 Cal.App.4th 477, 484-85, 18 Cal.Rptr.2d 198.) Therefore, the question of whether an order compelling compliance with a legislative subpoena issued pursuant to California Government Code §37104 et seq. is appealable as a final judgment in a special proceeding, will be a recurring one for Califomia’s courts. This Court should grant review to give guidance to the lower courts in California on this important issue. The second issue, while of perhaps less general importance is whether, after separate appeals are filed from a court order in a consolidated case, the court of appeal errs when it denies appellants’ motions to consolidate the cases for review. B. Procedural History The Petitioner, Dana Point Beach Collective, (hereinafter “Dana Point Beach Collective”) is a California non-profit Mutual Benefit corporation duly organized under the laws of the State of California. Dana Point Beach Collective was created pursuant to the guidelines set forth by the California Attorney General as a collective

Page 8

for the cultivation and distribution of marijuana solely for medical purposes. On or about June 29, 2009 the Real Party in Interest, caused to be issued a subpoena for the production of Business Records pursuant to California Government Code § 37104. Said subpoena contained a total of forty-four (44) production requests. The aforementioned subpoena was served upon the Petitioner on or about July 15, 2009 with a production deadline of July 27, 2009. On August 31, 2009, the Real Party in Interest filed a Petition seeking an Order to Show Cause Re Contempt for Non-Compliance of a legislative subpoena pursuant to California Government Code §37104 et seq. In support of the Order to Show Cause, the Real Party in Interest submitted the “Mayor’s Report,” which set forth the basis for the issuance of the Subpoena. On or about October 13, 2009, Petitioner responded to the subpoena and requested a Protective Order from the court to restrict the disclosure of patient information and member’s names. Pending

Page 9

the court’s decision on the protective order, Petitioner withheld the documents referenced in its response to the subpoena.2 One of the demands in the subpoena, to which the Petitioner objected, and which was subject to extensive briefing at the trial court level, was the disclosure of private personal information of third parties and of the members of the collective. The Real Party in interest alleged that these records were sought to determine that the Petitioner was in compliance with the Attorney General Guidelines. The Petitioner argued that these were private and privileged records of third party individuals and of patients. Further, these private documents had no bearing on the issue at hand. Notwithstanding the Petitioner’s arguments, on November 2, 2009, the trial Court ordered that the Petitioner’s custodian of records, Kevin Sperry, produce all documents (including the names and physician information of patient members as well as private information of third parties) and records responsive to the City Subpoena to the City of Dana Point, no later than 5:00 pm. on 2 The City and Superior Court have not differentiated in their response or enforcement of the subpoena among the other defendant/appellant/ petitioners. 5

Page 10

December 7, 2009. A copy of the order is attached hereto and incorporated herein by reference as Exhibit “A”. On November 13, 2009, the Petitioner timely filed its Notice of Appeal of the Superior Court’s order. On November 17, 2009 the Court consolidated the Dana Point Enforcement cases for all purposes. On December 3, 2009, the Superior Court at the request of all Defendants including Petitioner, found the order to be appealable and stayed its enforcement pending the appeal. On January 26, 2010, Dana Point Beach Collective, and appellants in the related cases, filed motions to consolidate the cases 6042889, 6042883, 604878, 6043880, and 6042893 on appeal. On January 29, 2010, the Court of Appeal for the Fourth District, Division Three found that the appeal in this case was not from an appealable order and deemed that the Notice of Appeal filed by the Petitioner on November 13, 2009, to be a petition for extraordinary writ and further ordered that the Petitioner had fifteen (15) days from the date of the order to file a petition for extraordinary writ. The Court also denied the motion to consolidate. A copy of the January 29th order as listed on the Court’s docket is attached hereto and incorporated herein by reference as Exhibit “B”. Petitioner did

Page 11

not receive written notice of the January 29th order from the Court, as explained in the Declaration of Wendy Stevens, attached hereto as Exhibit “D”. On February 11, 2010, the Petitioner filed its Motion to Reconsider the Order Determining the Order Below to be Non- Appealable, and to Reconsider the Order Denying Consolidation, in the Court of Appeal. On February 19, 2010, the Court of Appeal denied the Petitioner’s motion, but allowed an extension up to and including March 12, 2010, for the Petitioner to file its extraordinary writ. A copy of the Court of Appeal docket listing the order dated February 19, 2010 is attached hereto and incorporated herein by reference as Exhibit “C”. Petitioner did not receive written notice of the February 19th order from the Court, as explained in the Declaration of Wendy Stevens, attached hereto as Exhibit “D”. The Petitioner now seeks review of the Court of Appeal’s ruling of February 19, 2010. III. WHY REVIEW SHOULD BE GRANTED The California Rules of Court provide for review in this Court “when necessary to secure uniformity of decision or to settle an important question of law.” (Cal. Rules of Court, Rule 8.500 (b)(l).) 7

Page 12

This case presents an important question of law that will arise frequently in Califomia’s lower courts. Current decisions lack uniformity. Despite the ruling in Millan v. Restaurant Enterprises Group, Inc., supra, which held that orders enforcing legislative subpoenas are appealable as final judgments in special proceedings, the Court of Appeal in this case has found that the appeal is not from an appealable order. Petitioner and the other appellants have been denied their statutory right to appeal the Order of November 2, 2009. This right to appeal is critical, because of the potential disclosure of private information that could affect the way these third party individuals are treated. This petition raises a clear ambiguity in the law as it relates to the appealability of legislative subpoenas. This ambiguity will have a significant impact on a large number of cases. In the absence of a definitive ruling from this Court, there will be no uniformity of decision as it relates to legislative subpoenas. Further, by denying consolidation, the Court of Appeal will unnecessarily consume resources, judicial, attorney, and environmental, as well as risk non-uniform decisions as the cases are currently assigned to different panels of the Court of Appeal. 8

Page 13

IV. LEGAL DISCUSSION A. Review is necessary to decide the important question of appealability of legislative sugaoena and to secure a uniformity of decision. Since the question of appealability goes to the jurisdiction of a court, the court has the authority to consider its own jurisdiction and the issue of appealability. Olson v. Cory (1983) 35 Cal.3d 390. However, that authority is not unbounded and must yield to a determination by this Court that an order is, or is not, appealable. (Auto Equity Sales v. County of Santa Clara (1962) 57 Cal. 2d 450, 455.) There is a split of authority on the appealability of Superior Court orders enforcing legislative subpoenas issued pursuant to California Government Code §37104 et seq. as well as of administrative subpoenas by government agencies. Some courts have held such orders are non-appealable and may only be reviewed by writ. (See, Bishop v. Merging Capital, Inc. (supra), 49 Cal.App.4th 1803, 1806-09, 57 Cal.Rptr.2d 556 .) The Fourth District, where Petitioner and the related cases are being heard, has, however, previously found that the better view is 9

Page 14

that such orders are appealable as final judgments in special proceedings. Millan v. Restaurant Enterprises Group, Inc., (4th Dist. 1993). 14 Cal.App.4th 477, 484-85, 18 Cal.Rptr.2d 198: Moreover, the better view is that Aorders requiring compliance with the subpoenas are appealable as final judgments in special proceedings. . . Numerous cases, including cases from our Supreme Court, have decided appeals taken from similar orders on the merits without discussion of the appealability issue. Inasmuch as the Supreme Court is among those courts which have assumed the appealability of such orders, we conclude such an order is appealable . . . The issue on this appeal, whether the subpoena meets constitutional standards for enforcement, is a matter of law and is reviewed de novo. Millan, supra [internal citations omitted]. B. Applicable Principles of Law as to the Appealabilitv of Legislative Subpoenas The Sixth Appellate District has expressly found that an order to compel compliance with a legislative subpoena pursuant to Government Code §37104 is appealable as a final judgment. (City of Santa Cruz v. Patel, (6th Dist. 2007)155 Cal.App.4th 234, 240-43, 65 Cal.Rptr.3d 824.) The Sixth District extensively cited Millan with approval extensively in Patel while also discussing and rejecting a contrary line of cases from the Second District Court of Appeal in favor of this better view. 10

Page 15

Further the more recent decision by the Third District in State ex rel. Dept. of Pesticide Regulation v. Pet Food Express Ltd. (2008) 165 Cal.App.4th 841 [81 Cal.Rptr.3d 486] offers strong support for the appealability of a legislative subpoena: Confusion exists regarding appealability of orders enforcing administrative subpoenas." (Id., at p. 849; compare e.g., Millan v. Rest. Enters. Group, Inc. (1993) 14 Cal.App 4th 477, [18 Cal.Rptr.2d 198] (Millan) [holding that "the better view is that 'orders requiring compliance with the subpoenas are appealable as final judgments in special proceedings . . . .' "], with Bishop v. Merging Capital, Inc. (1996) 49 Cal.App.4th 1803, 1809 [57 Cal.Rptr.2d 556] (Bishop) [concluding that orders compelling compliance with administrative subpoenas are not appealable].) (Id.) Following Millan and thus rejecting Bishop, the court in State ex rel. Dept. of Pesticide Regulation concluded that an order compelling compliance with an administrative subpoena is appealable as a final judgment: "[A] judgment is the 'final determination of the rights of the parties in an action or proceeding.‘ The statutory scheme provides for an original proceeding in the superior court, which results in an order directing the respondent to comply with the administrative subpoena. The court order enforcing the administrative subpoena is tantamount to a superior court judgment in mandamus which, with limited exceptions, is appealable under Code of Civil Procedure ' 904.1. Whether the matter is properly characterized as an 'action' or a 'special proceeding', it is a final determination of the parties' 11

Page 16

rights. It is final because it leaves nothing for further judicial determination between the parties except the fact of compliance or noncompliance with its terms. The fact that an intransigent respondent may be subject to a contempt order does not mean the court order is not final, because the same possibility exists with injunctions and final judgments which form the basis for contempt citations. The purpose of any judicial order which commands or prohibits specific conduct is to make the sanction of contempt available for disobedience. This fact does not render such an order 'nonfinal.' Indeed, the contempt judgment is not appealable but must be reviewed, if at all, by writ, and therefore review of the underlying order can reliably be had only if that order is appealable. [Citation.]" (State ex rel. Dept. of Pesticide Regulation, supra, 165 Cal.App.4th at p. 851.). Thus, State ex rel. Dept. of Pesticide Regulation rejected the argument that an order compelling compliance with an administrative subpoena is akin to a nonappealable discovery order: "We . . . reject the Department's . . . argument that we should analogize to discovery orders in civil litigation, which are not considered final, appealable orders. Such discovery orders, however, are made in connection with pending lawsuits which have yet to be resolved. A discovery order does not determine all of the parties' rights and liabilities at issue in the litigation. The Department argues the same applies here, because even with the documents, the Department cannot impose administrative penalties unless an administrative hearing is held if such a hearing is requested. However, it is possible an administrative hearing may not be requested and, even if it is requested, it will not necessarily end up in court. [Fn. omitted] In contrast to this case, pending 12

Page 17

civil litigation in which a discovery order occurs already involves the court and will continue to do so." (State ex rel. Dept. of Pesticide Regulation, supra, 165 Cal.App.4th at p. 852.). State ex rel. Dept. of Pesticide Regulation, supra, was cited and followed in the more recent case of The People ex rel. Preston DuFauchard v. US. Financial Management, (2009) 169 Cal.App.4th 1502:We agree with the court's analysis in State ex rel. Dept. of Pesticide Regulation. In this case, the trial court's order compelling compliance with the Commissioner's administrative subpoena constituted a final determination of the parties' rights, notwithstanding the possibility that further proceedings might be required to gain US. Financial Management's compliance with that order. (See State ex rel. Dept. of Pesticide Regulation, supra, 165 Cal.App.4th at p. 852.) As such, the order constitutes an appealable final judgment pursuant to Code of Civil Procedure ' 904.1, subdivision (a)(1). (See State ex rel. Dept. of Pesticide Regulation, supra, 165 Cal.App.4th at p. 849.).” Accordingly, in following the historical rulings from Bishop through the present, there has been a clear shift in the treatment of legislative subpoenas. The recent decisions have clearly rejected Bishop and are more in line with Millan, in concluding that an order 13

Page 18

compelling compliance with an administrative subpoena is appealable as a final judgment. It is unclear why this court decided‘ the order was not appealable. Although the order references Olson v. Cory (1983) 35 Cal. 3d 390, it appears to do so only in aid of its decision to treat the appeal as a petition for extraordinary writ. That is because in Olson the Supreme Court explained that the order in question was not appealable, inter alia, because it was not a final order. Here, however, the order was a final order on the only controversy presented to the Superior Court: did the City of Dana Point properly issue and serve a legislative subpoena on Respondents that the Superior Court properly enforced. No further proceedings on this issue could even occur until such time as the Appellate Court completed its review. In H.D. Arnaiz , Ltd. v. County of San Joaquin (2002) 96 Cal. App. 4th 1357, the Court similarly afforded the “relief” or grace it affords appellants here, that is treating the appeal from a non-appealable order as a petition for a writ. However, that case as well gives no hint or clue why this Court believes the order is not appealable. The question of the appealability of a Government Code § 37104 order was previously decided by the Court of Appeal in City of 14

Page 19

Santa Cruz v. Patel (2007) 155 Cal. App. 4th 134. The procedural posture of that case is nearly on all fours with this one. The City of Santa Cruz issued a legislative subpoena and when Patel failed to comply, the City instituted enforcement. Patel failed to comply with the subpoena. The Superior Court ordered Patel to comply and Patel appealed. Appellant could not provide a better analysis than that of the Patel court: Before proceeding to the substance of the dispute we must decide whether the superior court’s orders are appealable. We conclude that they are. Government Code section 37104 authorizes the legislative body of a city to issue subpoenas “requiring attendance of witnesses or production of books or other documents for evidence or testimony in any action or proceeding pending before it.” In the event a witness refuses to comply with the subpoena, the mayor may report that fact to the judge of the superior court. (Gov. Code, § 37106.) “The judge shall issue an attachment directed to the sheriff of the county where the witness was required to appear, commanding him to attach the person, and forthwith bring him before the judge.” (Id., §37107.) “On return of the attachment and production of the witness, the judge has jurisdiction.” (Id., § 37108.) Refusal to comply with a subpoena could subject the witness to contempt proceedings. In that event, the witness has the same rights he or she would have in a civil trial “to purge himself [or herself] of the contempt.” (Id., § 37109.) City issued the subpoenas and obtained enforcement orders according to the foregoing statutory scheme. Appellants claim that the compliance orders are appealable. City does not dispute that claim. There is no case directly holding that these compliance orders are appealable. 15

Page 20

Because there is a split of authority on the point as it relates to orders compelling compliance with administrative subpoenas (Gov. Code, § 11180 et seq.), we consider the issue in some detail. B. Analysis There is no constitutional right to an appeal; the right to appeal is wholly statutory. (Trede v. Superior Court (1943) 21 Cal.2d 630, 634 [134 P.2d 745].) Code of Civil Procedure section 904.1 lists the types of rulings that are appealable in this state. A “judgment,” other than an interlocutory judgment, is appealable. (Code Civ. Proc., § 904, subd. (a)(1).) Other specified orders are also appealable. An order compelling compliance with subpoenas issued under Government Code section 37104 et seq. is not one of them. Nor are we aware of any case specifically considering the appealability of such orders. City of Vacaville v. Pitamber (2004) 124 Cal.App.4th 739, 748 [21 Cal.Rptr.3d 396] (Vacaville)was an appeal from such an order, but Vacaville did not consider appealability, apparently assuming the order was appealable. The cases differ on the question of whether an analogous order compelling compliance with an administrative subpoena (Gov. Code, § 11180 et seq.) is appealable. In Millan v. Restaurant Enterprises Group, Inc. (1993) 14 Cal.App.4th 477, 484-485 [18 Cal.Rptr.2d 198] (Millan), the Fourth District Court of Appeal held that an order compelling compliance with an administrative subpoena issued pursuant to Government Code section 11181 is appealable as a final judgment in a special proceeding. In so holding, Millan primarily relied upon the fact that many cases, including cases from the Supreme Court, had considered appeals from such orders without addressing the appealability issue. (Millan, at pp. 484-485, citing Younger v. Jensen (1980) 26 Cal.3d 397 [161 Ca1.Rptr. 905, 605 P.2d 813]; Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669 [156 Cal.Rptr. 55]; Fielder v. Berkeley Properties Co. (1972) 23 Cal.App.3d 30 [99 Cal.Rptr. 791]. See also 16