RIVERSIDE, CITY OF v. INLAND EMPIRE PATIENT'S HEALTH AND WELLNESS CENTER

Respondent's Answer Brief on the Merits

Cal.April 27, 2012

SUPREME COURT Case No. S198638 F | L E D APR 2 7 2012 Frederick K. Ohirich Clerk Deputy Supreme Court of California CITY OF RIVERSIDE, Plaintiffand Respondent, Vv. INLAND EMPIRE PATIENT’S HEALTHand WELLNESS CENTER,INC.,et al. Defendants and Petitioners. After a Decision By the Court of Appeal Fourth Appellate District, Division Two Case No. E052400 (Riverside County Superior Court Case No. RIC10009872- Honorable John D. Molloy) RESPONDENT’S BRIEF ON THE MERITS ATTORNEYLIST, CONTINUED FROM FIRST PAGE Gregory P. Priamos, Bar No. 136766 gpriamos@riversideca.gov James E. Brown, Bar No. 162579 jbrown@riversideca.gov Neil Okazaki, Bar No. 201367 nokazaki@riversideca.gov OFFICE OF THE CITY ATTORNEY City Hall, 3900 Main Street Riverside, CA 92522 Telephone: (951) 826-5567 Facsimile: (951) 826-5540 Attorneys for Plaintiff Jeffrey V. Dunn, Bar No. 131926 jeffrey.dunn@bbklaw.com Roderick E. Walston, Bar No. 32675 roderick.walston@bbklaw.com BEST BEST & KRIEGER LLP 5 Park Plaza, Suite 1500 Irvine, CA 92614 Telephone: (949) 263-2600 Facsimile: (949) 260-0972 Attorneys for Plaintiff Timothy T. Coates, Bar No. 110364 tcoates@gmsr.com Gary D. Rowe, Bar No. 165453 growe@gmsr.com GREINES, MARTIN, STEIN & RICHLAND 5900 Wilshire Blvd., 12th Floor Los Angeles, CA 90036 Telephone: (310) 859-7811 Facsimile: (310) 276-5261 Attorneys for Plaintiff TABLE OF CONTENTS I. STATEMENTOF THE CASE... cceccccceesseesseeseeeeeseesssseeeensnseseats l A. The Parties 0.0... cececeeesesseeseeesesseesescsecssesecessenscsacsecsecseessssevacs l B. The City of Riverside’s Zoning Code........cccccceescessesseesseees 1 C. The Proceedings Below .........ccccccccsssessestseseessesesseecseeenssereees 3 SUMMARYOF THE CASE wu....eccccccesessessssesecssesssceeceacsecatsesesseeesssesesseaes 4 IT. THE CITY OF RIVERSIDE’S ORDINANCE PROHIBITING THE ESTABLISHMENT OF MEDICAL MARIJUANADISPENSARIESIS NOT PREEMPTED BY STATE LAW uo. cecccccccesccssecneeeeeeeseeeesceesscseesesseaeeseesseeseseeessesesses 9 A. Under General Principles Of Preemption, State Laws Presumptively Do Not Preempt Local LawsIn Areas Traditionally Regulated By Local Governments, Such As Zoning And Land Use.......ccecccccscceseeeseceseeeeseeeeassesceneens 9 B. The Compassionate Use Act And The Medical Marijuana Program Act Do Not Preempt The City Of Riverside’s Zoning Regulation Banning Medical Marijuana Dispensaries..........:cscccccscssesssccssecssessecssseresseeeaees 13 1. The CUA And The MMPAProvide Immunity From Criminal Liability For Violations Of Specified Provisions Of The Health And Safety COdeoeeee eeeeeeeeeeeaeseeececeeeseeseeesusceeeserseeeseseanensss 13 a. The CUA And The MMPADo Not Preempt Local Laws Banning Marijuana DISPENSALIES 200... eeccececeeeeceseeesesescesseseesscsaes 16 b. This Court Should Not Rewrite The MMPAToSatisfy Petitioners’ Misreading OfTheStatute 0.00... 20 2. This Court’s Decision In Ross v. Raging Wire Telecommunications, Inc., Supports The Conclusion That The CUA And The MMPA Do Not Preempt Local Laws Banning Marijuana DISPOSALS ..... eee eee eeeceeceeeseeeeesseseessessecstesrsseatens 25 TABLE OF CONTENTS (continued) The Court Of Appeal Decisions In Claremont, Naulls And Hill Support The Conclusion That The CUA And The MMPADoNot Preempt Local Laws Banning Marijuana Dispensaries.......... 27 The Legislature’s Recent Amendments Of The Medical Maryuana Program Act, Codified In Health AndSafety Code Sections 11362.768 And 11362.83, Reaffirm That Local Regulations Restricting The Establishment Of Marijuana Dispensaries Are Not Preempteooo... eeesceeeceecesecesseeeeeesseeseecsaesesaeeesseeesstsseeesseess 32 1. Section 11362.768 Reaffirms That Local Prohibitions Of Marijuana Dispensaries Are Not Preempted 200.0... ceeececessececsseeeeeeesteeseesseesseeeeaees 32 a. Statutory Language .........ecceceseessseesseeeeeneees 32 b. Legislative History .........cccccesseesceesteeseeeeeseees 36 Section 11362.83 Further Reaffirms That Local Prohibitions Of Marijuana Dispensaries Are Not Preempted 0000.0... eeceeeesceseeeeceseneeeecneetsneseesseees 40 a. Statutory Language ..........cccccecsscesssseesseeeenees 40 b. Legislative History .........cesececesseessseseeeesseens 41 The Petitioners’ Arguments Concerning The Legislative Amendments Are Misplaced................. 44 Contrary To The Petitioners’ Argument, This Court’s Decision In O'Connell v. City Of Stockton Is Not Apposite Here. ........c.ccccscceseecreees 48 -ib- Il. TABLE OF CONTENTS (continued) THE COURT MUST CONSTRUE THE COMPASSIONATE USE ACT AND THE MEDICAL MARIJUANA PROGRAMACTASRETAINING MUNICIPAL POWER TO REGULATE LANDUSE, INCLUDING THE POWERTO BAN DISPENSARIES, BECAUSE A CONTRARY INTERPRETATION WOULD CONFLICT WITH THE FEDERAL CONTROLLED SUBSTANCES ACT AND VIOLATE THE SUPREMACY CLAUSE 2... cccccceeseseneseeeeceeessersessecseesseseseeecsesseesseststscsecersassees 51 A. This Court Must Avoid Any Interpretation Of The CUA And MMPAThat Conflicts With The Federal Controlled Substances Act And Results In Invalidation Of The State Provisions Under The SupremacyClause...... 51 Petitioners’ Concession That Interpreting State Provisions As Requiring Municipalities To Permit Dispensaries Necessarily Represents A Departure From Federal Law MakesIt Clear That Such A Construction Violates The Supremacy Clause, Because Federal Law Is A Core Component Of State Law And A State May Not Part Ways With Federal Law Merely Because The State Disagrees With The Federal Law........... 53 The Preemption Provision Of The CSA, 21 U.S.C. § 903, Instructs Courts To Displace State Law WhenIt Conflicts With Or Otherwise Poses An Obstacle To The Accomplishment Of The Full Purposes And Objectives OfThe CSA wo... ccccccccecssescscessessecescseeseeessesereas 56 State Law Requiring Municipalities To Permit Medical Marijuana Dispensaries Conflicts With The CSA BecauseIt Stands As An Obstacle To The Accomplishment And Execution Of The Full Purposes And Objectives Of Congress .0.......0ccccccecsecesescseesseeesteeeesesees 62 CONCLUSION... ccceeeceeeeeeseseeesesesscsseececsesseesecseccssessesserssesatees 69 - Nl - TABLE OF AUTHORITIES FEDERAL AUTHORITIES FEDERAL CONSTITUTION Article VI, Ch. 2 cecececccccccsseesscessssesesssececsecsscsecsecseccaecsesseeesssssssecaeessccsssusccssccsesenessaseeseeane 8, 51 FEDERAL CASES United States Supreme Court Barnett Bank ofMarion County v. Nelson (1996) 517 US. 25 ceieescsecccssscecesccecceecesuecececeecueeecseseasauceceeceessaccevevens 63, 64, 66 BuckmanCo. v. Plaintiff's Legal Com. (2001) 531 ULS. 341 cecececsscecesseceseesssececeesaeueeseceesecssssenssensesstuuseseeeesece 58, 59 Chicago, B. & Q. R. Co. v. Illinois (1906) 200 U.S. S561 woeececceccsssscceecessneneeccecsuuseceessuasssucesecerstssueesevecessrenenseess 9 Claflin v. Houseman (1876) 93 U.S. 130 vicecece ceeeccesccscssscccesecseceecsessscseaessssucessecstseecsscususersttsucesusseseecess 54 Crosby v. National Foreign Trade Council (2000) 530 U.S. 363 cocciicceeeecesenseccssecececcesesnarceceecuseccsecsenesuaeeseeeeesnsttecesseeeecs 57, 61 Gade v. National Solid Wastes ManagementAssn. (1992) S05 U.S. 88 Looeccceeccccecessnceceenuceesesessensuaassesassseseseescstsssseseceeessersescerscesecs 63 Geier v. American Honda Motor Co., Inc. (2000) 529 ULS. 861 woeieecccececeneeccenrecceeseuntseseseuseceeeescesstasueseeecenees 53, 57, 58, 59 Gonzales v. Raich (2005) 545 U.S. Leccecccccccecescccsssccececeseecesessesaaseassssssseeecccsevstssesesccersestersesaes 52, 62 Howlett v. Rose (1990) 496 U.S. 356 voce eccccccccccecccesececensceensecceceaeeceeceevsesstescasecesstsesessrstscececsereenes 55 Michigan Canners & Freezers Assn. v. Agricultural Marketing & Bargaining Bd. (1984) 467 ULS. 46] cciieccecccecsscccesteceecesseestsseueeuessceeauesesecersteveseeserserenes 64, 65, 66 -iv- TABLE OF AUTHORITIES (continued) Mondouv. New York, New Haven, & Hartford Railroad Co. (1912) 223 US. Lececcecescessesssessesecsecesecsccsssesscssesuuscsssessevseveaecseeaeseaseaessussacescenss 54 Nash v. Florida Industrial Com. (1967) 389 U.S. 235 Le eeesccessensessscseessessccsesssesssesscscecasssscsecsessascaevacesueeseesasereeaees 65, 66 New York v. United States (1992) 505 U.S. 144icceeesseesesseeessecsessesscessescsesssessssecsesecsssevaeseaesesssesaesseeaesatens 67 Printz v. United States (1997) 521 U.S. 898 oe eccccccscsssessscsscsecsscesecsscssesesccssesssssseasessasensceuseusesssesessusaueesecens 56 Sprietsma v. Mercury Marine (2002) 537 U.S. SL eceecesccsessecsseesecesecseseecssccsecesccsecancesecsssassasesacessarsacessusssecaseasesss 59, 60 United States v. Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483iceccccessessessesseessecsecsscssecessssesssesscsssvssesssuavseeseasesecsussesauecaeenes 52 Williamson v. Mazda Motor ofAmerica, Inc. (2011) US.EBT S.Ct. LISDceccecececcsesscsesssceecscesssessssseessetsessnesesanens 60 Wyeth v. Levine (2009) 555 U.S. 555 woe eceeceeceesescsseeseseesecaecsecsecsecssssssssssssssssvassucsesseeaasaeesaeessesensens 60, 61 STATE AUTHORITIES STATE CONSTITUTION Calif. Constitution, Article XI] oo... .cccccccccscesccsssccsrcecerceecceaeceesvaseesscsssessusesusesstsasserseeeee 33 Calif. Constitution, Article XJ, section 7 ....ccccicccescscecseecesseceeseesecssessesseccseessesssesecseee 9,10 STATE CASES California Supreme Court Action ApartmentAssn. Inc. v. City ofSanta Monica (2007) 41 Cal.4th 1232 oocceccesccssescenseeseesseessccssescesecssssessessrcsssuseesatenaeeseasenss passim TABLE OF AUTHORITIES (continued) Big Creek Lumber Co. v. County ofSanta Cruz (2006) 38 Cal 4th 1139ececscceeceseseeeceeeseseenecseeeeesseecseeeesseeeeseaeeseeeteeeeeeeasspassim Buckley v. Chadwick (1955) 45 Cal.2d 183 oo. ccccceceeeceeccneeseeeeceaceseeseessecnsaeeveessaeneeeseeeseeresenesseeseeeeeeaaes 42 California Grocers Assn. v. City ofLos Angeles (2011) 52 Cal.4th 177 ooo cccceccccscccseceseeeecssceeeeeseesecesacevsceeeeseaeecsaneesesesuesesesentecseeeaes 49 Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878oeeccescsscescecseenssscecscecseseseenesecesucscaesnecseesenesaesereaseeeeesseeecaeenenes 10 DeVita v. County ofNapa (1995) 9 Cal 4th 763 oo ..eecceccccccsccecceeceecescesecceeesaecesssecaeeeseaeeeeeseeesscaeeesseseseeseeessessseeeaees 10 IT Corp. v. Solano County Bd. ofSupervisors (1991) 1 Cal4th 81oeececcessseceseeseeeesneseneececesssaesseseeeseseaeecssectsesseesaseaeeeaseeeena: 36 Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158ooeeecececeseeceecaceeceseeseceseaecereeeeesesesessaeeseeesesssaeasseeesensas 2 Lukens v. Nye (1909) 156 Cal. 498 oooccc ceccecceeeneceeecenaneeceneceseeecaeeeesesaeeesseeeseescsasenseecaneseseesstesaees 43 Metromedia, Inc. v. City ofSan Diego (1980) 26 Cal.3d 848ooceceeesscceceseeecsessnececeeseeeceeesesaeesaeecseeseeeesaeeseeseessaeeesteseses 4$ Nordyke v. King (2002) 27 Cal4th 875ccc cccccccsecsecceseeeecesececeseecsacensseeessecsecssesseeesaesesaesseessesseseseseeceeeeas 5 O’Connell v. City ofStockton (2007) 41 Cal-4th 106]... ececceeceeeceeesceeceesaeecseseseeessetaseessesssseteessaeeess 18, 48, 49, 50 California Court of Appeal Amusing Sandwich, Inc. v. City ofPalm Springs (1985) 1605 Cal.App.3d PL 1Gcccecccecssccessssecnsceeeecneceseeeseecesesecsseceaecsasentesesteates I! Baldwin v. County of Tehama (1994) 31 Cal. App.4th 166 ...ccccccccsseccssesecsssessseecevesssesssessrssesssrsssessssesesseessssetessessessesseees 17 -vi- TABLE OF AUTHORITIES (continued) Beck Development Co. v. Southern Pacific Transp. Co. (1996) 44 CalApp.4th 1160... ccccccsseesccsseseestesssscsecsesessecsscssescsesessscesessesarsaceaeeeneas 20 Boydv. Sierra Madre (1919) 41 Cal.App. 520 (“Boyd”) o.cccecccccccseesesssssessesessessesescsscescscescuscssvenersveceenens 44, 45 City ofClaremont v. Kruse (2009) 177 Cal.App.4th 1153 occccccccecsccsccscescsccsesscssssesscsecsscsavsceeecseareeensstesenes passim City ofCorona v. Naulls (2008) 166 Cal.App.4th 418 ooocccccccccsecsscsecseesssseecscessssesssecetessaasaeses 27, 30, 31, 44 City ofCosta Mesav. Soffer (1992) 11 Cal.App.4th 378 oo. ccccecccscssessssesseesesessecsesescecsesscsacsessscaavaceaeseassrsersateeeenes 20 City ofLake Forest v. Evergreen Holistic Collective (2012) 203 Cal.App.4th 1413 occcccccccccsecsscssescescsecsssecsssscssessessesasesareeeeestavesees 23, 56 City ofRiverside v. Inland Empire Patient's Health and Wellness Center (2011) 200 Cal.App.4th 885, review granted (Jan. 18, 2012), Case No. S198638 oo. ceccccccsscssscssscsssccvesccsssccuseeceasevssesesseessessecessessarecesecesseserssecs 1,4, 18 County ofLos Angeles v. Hill 2011) 192 Cal.App.4th 861 occccccecsssesesecseesesseecsesececsessessssesasssecesessavenses assim( pp P County ofSan Diego v. San Diego NORML (2008) 165 Cal.App.4th 798 oo...eecccccccscssecssescsscessesssecsesessessscssvecsesvacsaveecatestueaseasees 60 Garcia v. Four Points Sheraton LAX (2010) 188 CalApp.4th 364cccccc ceccecsececccsnsesreceesccsesesecessseserescesscessesteseecessees 12 Newhall Land & Farming Co. v. Superior Court (1993) 19 CalApp.4th 334occcecceessseesseseneeseseesesecsescescsesssssestsesavaevassansavsseavnserees 19 People v. Commons (1944) 64 Cal.App.2d Supp. 925occcccccssecssssseseesecscscsescecesssessvscevsueeveceussussvevaneaceaeeces 5 People v. County ofMendocino (1984) 36 Cal. 3d 476.ccenseseneeeeeeseesesesensesescsesscsescsssesssatssssvecsusssavceseviesavavereesy 36 - Vil - TABLE OF AUTHORITIES (continued) People v. Davenport (1985) 41 Cal.3d 247occcccecsesetessseenssscseseesscsesescessusssvavacsersecesssususssssatisavavevsecees 51 People v. Hull (1991) 1 Cal4th 266... ccececesescscsssesesscssscscscscsesecsssacscsvavavsvatseseasscssssavscetetevesevenees 47 People v. Kelly (2010) 47 Cal 4th 1008... eccccsseccsesssesscscscscsescscsesessesevsvevavarseasssanstesesssanscasacseeseseeses 14 People v. Martinez (2000) 22 Cal4th 106... cccsccssesessseseessessssesesescsrsecssavassuavavacsesesesasavsnsasscecessvavecevens 50 People v. Mentch (2008) 45 Cal4th 274ecceccccccsssscscsessscseecsecscstsssvsssseesavssenacsessesssessteavesesescscessveee 16, 27 People v. Orozco (1968) 266 CalApp.2d 507 .o..eceecceccssssssssssesssssescscsessssssssvsvevscsesaressssesssusasscscesseanseseass 49 People v. Tanner (1979) 24 Cab. 3d S14cicceeeeeesscesssssesesesssessecssssssscssseusscevasavarevasasstsasavatatseseveveseees 43 People, ex rel. Trutanich v. Joseph (2012) Cal.App.4th__, 2012 Cal-App. LEXIS 437 .o..cccccccceccsssesssesessesescsescsceseseee, 29 People v. Urziceanu (2005) 132 Cal.App.4th 747 oo. ccccccccccccssssssssesssescessessssesevevassesesacatsesavsesesssssavessepsevenes 15 Ross v. RagingWire Telecommunications,Inc. (2008) 42 Cal.4th 920occeeceesecesseesesssessssscscsssssscseevscevevesacsusessvesaussseaseesses passim Sherwin-Williams Co. v. City ofLos Angeles (1993) 4 Cal4th 893 ooo ccccecsseessescscsesescessesssssvsssescransuevessusasseessavsesvscseee, 10, 12, 17 Stubblefield Construction Co. v. City ofSan Bernardino (1995) 32 Cal. App.4th 687 oo. cccccecssscsescesseesescssssscssssssesssseacaesaevavstatseavavscsssestseseess 11 Sullivan v. Oracle Corp. (ZOT1) SL Cal.4th DQ.eccccsecscecececscsescscssssscsvsusseseaavasausasacatsaseessasavesesevesecenes 52 - Vill - TABLE OF AUTHORITIES (continued) Viva! Internat. Voice For Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929oocccecsesecseseesecsescesscscsessvecsessssesvevsesaeavaseavsnsesseees 55, 56, 57 Young v. Dept. ofFish and Game (1981) 124 Cal-App.3d 257 (“Young”). (App. Br. 13-14.) coccccccesscssesssessecseeseeeses 44, 45 OTHER STATE CASES Emerald Steel Fabricators, Inc. v. Bureau ofLabor & Industries (Or. 2010) 230 P.3d S18.cccecccssccsesscsescscsececssessecscessessssseseseesassesacacsesatatecerees 61, 66, 67 STATUTES Federal 21 ULS.C. § 801 et Seq... ecccesssssssscsesessescsessscscssssssssscsavssavacauacacetatsesacscavstessasevsvavevereeees 8, 52 ZL ULS.C. § 812 (C) cececcseseenessesssssecscsesescsesscsessssessessavassssaesecesessaestssscessusenssesvesvesenees 52 ZL U.S.C. § 829ceceesetenstetsesesssssecsesesesesessssssvsvscssssecsesessvesesssssuasasavassarsvavsvevevesessenes 52 21 US.C. § 841 (aL)cececeeeessssssessescsessscecscsvsvscscsssvasevevsvsasaesassssusasucscessvavsceesesssese 63 ZL U.S.C. § 844 (a) oiecececeseesesesssessesssesesescvesscssssssacsssvassesessusearasaevansravasatavavevevevesees 8, 63 ZL US.C. § 903 occccseseseeesesessssesesacscstssesessssecscscacuescsvavavaverssavavasavasvavavavesevseeeves passim California Civ. Code, § 3479 oo cececccetesessssesssescssssersusssscssssusseevaceussasacacavacavavessescaveves 3, 19, 21, 22, 23 Civ. Code, § 3480 ooesesesssseseseseseseececsccsssesvsvssesvsnessvsucacevassnsavavevasasessevevaseisevevsseeveneeses 19 Civ. Code, § 3491 ieeececcccsesessescsssscsescsusscsevssersevaasacevatavatavavevevacssavaveveveeseeee: 21,22, 23 Civ. Code, § 3492 cececctesssesesssessevesesesecssssssusssasssssesavsvsusasaravevasausssassveveresvaveeeveveveee 21 Gov. Code, § 37100i ccccccecsensesesessescssscssscsesscsvsvssssasesesaesevasssavavassavssavsvesesisissstetseseseeces 68 Gov. Code, § 38771 oi cccccccceteeesseseesesssssessssssscssscavavsvssevacssasavatavasuecssssssssesseveveveveeseseeees 1] -1X - TABLE OF AUTHORITIES (continued) Gov. Code, § 65302, subd. (a) w.c.cccccccccccscssseessecscevececeesvatssstsesesssscsesessvevasaveviveseceseseeceees 30 Gov. Code, § 65800 ooecececccccccscssscsssesesscsesssssssssscsssevsssessesecacacsasacsesacusssssssssscavesesvaveceetersese 11 Gov. Code, § 65850, subd. (C)(2)...cccccscsscsesestsscssesssssestsssvsvsvevecsvesssavasasasasavavaesessseressesecees 30 Health & Saf. Code, § 11357 .occcccccccccescscseecesccsscssseesecsscssecsssssessescesteseeceees 13, 14, 15, 25 Health & Saf. Code, § 11358 ecccccccsccscessesssssscsssscssssssctstsessetscetsessnsessavseses 13, 14, 15, 25 Health & Saf. Code, § 11362.5 .o.c.ccccccccccsssescsssscscsssscesssssstaceressssaeaesssesscseacseevesteveceseesees 4 Health & Saf. Code, § 11362.7 ..eeecccccscsssssssscscscscssscssesssvsssesseuecsceeseasarasvesessrsasacseesenees 4,14 Health & Saf. Code, § 11362.768, subd. (f) ..c.ccecccceseecececcssesscsssecscsscesesseeees 6,, 17, 33, 48 Health & Saf. Code, § 11362.775 ..ccccccccccsssssssssessssesessscsscssevevscucesacscissusersevaveveves 15, 23, 29 Health & Saf. Code, § 11362.83 ...cccccccccccscsssssescsscsessssesesvecscasssssescsavatsessessesvevavesesees 17, 48 Health & Saf. Code, § 11570 .ccccecccccscsssssscsseccssssssesssssssssestsesssssssesaatssseseetees 15, 20, 22, 23 OTHER AUTHORITIES 54 Colum. L.Rev. 489 ooo cccceeessssssssesesescsssvescssssvscsvscssasacssasscesasevassuesscarasasssavsesvevavessesee 55 62 Vand. L.Rev. 1421 oe cececesesssssescesssstscsesescscscescsescsssssevassesevavevasassavavavasatstsvasesacsesenevees 58 86 Va. L.ROV. 225 oie ccccceesesestsststsesneesevssessacscscssserssscevecassvevssavanavasasssavavavassusessessasevesees 55 BRIEF OF RESPONDENTCITY OF RIVERSIDE I. STATEMENT OF THE CASE A. The Parties Plaintiff City of Riverside (“City”) is a municipal corporation of the State of California. Defendant Inland Empire Patient’s Health and Wellness Center, Inc. (“Inland Empire”), is a nonprofit mutual benefit corporation that operates a medical marijuana dispensary within the City’s limits. Inland Empire consists of medical marijuana patients who collectively cultivate medical marijuana andredistribute it to each other. (City ofRiverside v. Inland Empire Patient's Health and Wellness Center (2011) 200 Cal.App.4th 885, 891[133 Cal. Rptr.3d 363] review granted Jan. 18, 2012, S198638 [Inland Empire].) Defendant Lanny Swerdlowis a registered nurse and managerof an adjacent, separate medical clinic, who has madereferrals to Inland Empire’s marijuana dispensary. Defendant Joseph SumpII is an Inland Empire board memberand general managerof Inland Empire’s marijuana dispensary. Defendants Meneleo Carlos and Filomena Carlos own the property upon which Inland Empire’s marijuana dispensary is located, and lease the property to Swerdlow. Defendant Angel City West, Inc. provides managementservices for the property. B. The City of Riverside’s Zoning Code The City has adopted a zoning code governing the permissible and impermissible uses of land within the City’s limits, which is codified in Chapter 19.150 ofits Riverside Municipal Code (“RMC”).' Section 19.150.020 of the zoning code, Table A, in addition to permitted uses, “identifies those uses that are specifically prohibited,” and indicates that a medical marijuana dispensary constitutes a “Prohibited Use” throughoutthe City. (RMC, § 19.150.020, Table A.) The zoning code also states that “[a]ny use whichis prohibited by state and/orfederal law is also strictly prohibited.” (RMC, § 19.150.020.) The zoning codestates that“persons vested with enforcementauthority ... shall have the powerto ... use whatever judicial and administrative remedies are available under the Riverside Municipal Code” to enforce the zoning code. (RMC, § 19.070.020.) The City’s zoning code also providesthat“any condition caused or permitted to exist in violation of any of the provisions of this Code, or the provisions of any code adopted by reference by this Code, shall be deemed ' True and correct copies of the relevant portions of the RMCare contained in the Request for Judicial Notice, filed concurrently with this brief. In the Court of Appeal proceeding, the City of Riversidefiled a request for judicial notice (“RJN”), requesting that the court judicially notice the relevantlegislative history materials. The Court of Appeal did not act on the City’s RJN. For this Court’s convenience, the City is submitting an RJN requesting that this Court judicially notice these and otherlegislative history materials. (See Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1172, fn. 5 [explaining court’s inclination to grant requests for judicial notice oflegislative history materials].) This brief will cite these legislative history materials in the RJN, and the exhibit number and page numberwherethey can be found. a public nuisance and maybeabated by the City.” (RMC, § 1.01.110E.) The code enumerates acts constituting nuisances, andstatesthat“i]t is unlawful and is hereby declared a nuisancefor any person owning, leasing, occupying or having charge orpossessionofany property ... in the City to maintain the property in such a mannerthat any of the following conditions are present: []... [] Q. Anyother violation of this code pursuantto section 1.10.110E.” (RMC, § 6.15.020.) The City’s zoning code also providesthat “any violation of the City’s Zoning or other Municipal Code is deemed a public nuisance, which can be abated bythe City, including througha civil action.” (1 CT 4.) C. The Proceedings Below The City filed a complaint against the defendants, alleging that Inland Empireis operating a marijuana dispensary that is a public nuisance and that the other defendants are also responsible for operation of the dispensary. (1 CT 5S.) The City’s complaint alleges two causesofaction. Thefirst cause ofaction alleges that the marijuana dispensaryis a public nuisance under Civil Code sections 3479 et seq., including sections 3480, 3491 and 3494, andthat the nuisance is subject to abatement underthose provisions. The second cause ofaction alleges that the marijuana dispensary is a nuisance under RMCsection 1.01.110, andis subject to abatement underthat provision. (/d.) The complaint seeks a preliminary and permanent injunction to cease the operation of the dispensary. The City moved for a preliminary injunction to prevent operation of the dispensary. Thetrial court, after hearing the City’s motion, granted the motionandissued a preliminary injunction, determininginter alia that the City waslikely to prevail on the merits. The defendants appealed from the issuanceofthe preliminary injunction. On appeal, the Court of Appeal, Fourth Appellate District, affirmed the trial court’s issuance of the preliminary injunction. CUnland Empire, supra, 200 Cal.App.4th 885.) The court held that the defendants’ marijuana dispensaryconstitutes “a violation of Riverside’s zoning code, suchas the provision banning [medical marijuana dispensaries],” and “is a zoning violation, constituting a public nuisance which is amenable to abatement andinjunctiverelief.” (Inland Empire, at p. 897.) The court concluded that the CUA and the MMPAdo not preemptthe City’s zoning regulation, and thusthat the City is likely to prevail on the merits. (Id. at pp. 898-907.) The defendantsfiled a Petition for Review in the California Supreme Court, which this Court granted. SUMMARYOF ARGUMENT [In adopting the Compassionate Use Act (“CUA”; Health & Saf. Code, § 11362.5) and the Medical Marijuana Program Act (“MMPA,” Health & Saf. Code, § 11362.7), the Legislature provided that persons who engage in certain medical marijuana activities are not subject to criminal liability under specified provisions of California law that impose such criminal liability. The CUA and the MMPAthus preempt,at most, the authority of local governmentsto criminalize conductthatthe statutes expressly authorize.” The CUA and the MMPAdo not, however, preempt the traditional authority of local governmentsundertheir police powerto adopt zoning and land use ordinancesdefining certain activities as nuisances,at least to the extent that the ordinances do not criminalize conductthatis specifically authorized under these statutes. Thus, the CUA and the MMPAdonotpreemptlocallawsthat,as in this case, prohibit the establishment of marijuana dispensaries on the ground that they are a nuisance subject to abatement underthe civil laws. Neither the CUA nor the MMPAspecifically authorizes the establishment of marijuana dispensaries, much less preempts, or evinces an intent to preempt, local “The CUA and MMPAdonot,strictly speaking,“authorize” anything. As noted, they merely exempt certain conduct from identified state criminal statutes, which is not the same thing. Such exemptions from state criminal penalties do not, as a general rule, prohibit cities and counties from criminalizing the exempted conductbylocal ordinance. (See Nordykev. King (2002) 27 Cal.4th 875, 883-884; People v. Commons (1944) 64 Cal.App.2d Supp. 925, 929-039 [‘neither law nor ordinance contains any provision in any way authorizing or declaring lawful the acts which are specified in any exception thercto. As to suchacts, the situationis simply that they are not prohibited by the enactment containing the exception. Consequently, a prohibition of such excepted acts contained in the other enactment does notconflict with the enactment in which the exception appears”’].) However, it is unnecessary to explore, in this case, whether local agencies maycriminalize conductspecifically “authorized” by the CUA and MMPA,because asdiscussed in greater detail below, Riverside’s ordinance does no such thing. i ‘ a r laws banning such dispensaries. Even underPetitioners’ broadest construction, marijuana dispensaries are merely one modeof“collectively or cooperatively .. . cultivating] marijuana for medical purposes”; nothing in the CUA or MMPAsingles out this modefor special favor, or prohibits local agencies from civilly regulating the intensity ofcollective cultivation as a land use by prohibiting this particular practice.) The Legislature thus preservedthe traditional authority of local governments to ban certain kinds of establishments, such as marijuana dispensaries, that are defined as a nuisance underlocal zoning and land use laws. This conclusion is supported not only by the MMPAitself, but also by legislative amendments of the MMPAin 2010 and 2011. One amendmentprovidesthat local governmentsare not precluded from adopting ordinancesthat“further restrict” the “location or establishment” of marijuana dispensaries (Health & Saf. Code § 11362.768, subd.(f))°, and the other amendmentprovides that local governmentsare not precluded from adopting ordinancesthat“regulate”the “location, operation, or establishment” of marijuana cooperatives and collectives. (/d. at § 11362.83). By authorizing local governments to “regulate” and “further restrict” not only the location and operation of marijuana dispensaries but also their “establishment,” the amendments plainly authorize local ‘All statutory references are to the Health and Safety Code unless otherwise indicated. -6- governmentsto prohibit such dispensaries undertheir zoning and land use laws. Thelegislative history of the amendmentsreaffirmsthat the Legislature did not preempt, or intend to preempt, local authority to regulate and ban marijuana dispensaries. The conclusion that the CUA and the MMPAdonot preemptlocal laws banning marijuana dispensaries is supported by the generalrules of preemption adoptedby this Court. Underthese general rules, state laws presumptively do not preempt local laws—particularly in areas traditionally regulated by local governments—in the absenceof a reasonablyclear expression oflegislative intent. (Action Apartment Assn. Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1242; Big Creek Lumber Co.v. County ofSanta Cruz (2006) 38 Cal.4th 1139, 1150.) Neither the CUA nor the MMPAcontains any indication,clear or otherwise, of anylegislative intent to preemptlocal laws banning medical marijuana dispensaries. On the contrary, the statutes, read in light of their language andlegislative history, plainly evince legislative intent to preserve the traditional authority of local governments to adopt zoning andland use laws regulating, andif appropriate banning, medical marijuana dispensaries. Finally, to the extent there are any questions as to whether the CUA and MMPA somchowpreemptedlocalland use regulatory authority, they must be resolved against any interpretation that requires localentities to sanction medical marijuanafacilities. This is because such an interpretation necessarily runs afoul of the federal Controlled Substances Act (“CSA”; 21 U.S.C. § 801 et seq.) and would require the invalidation ofthe state provisions under the Supremacy Clause of the United States Constitution. The CSA expressly prohibits the distribution of marijuana, for medical or other purposes. (21 U.S.C. § 841, subd. (a)(1).) Thus, if the CUA andthe MMPAwereread to require local governments to allow marijuana dispensaries to operate, state and federal law would stand at loggerheads, with state law requiring of the City precisely what federal law prohibits. Indeed, the Petitioners frankly acknowledge that the CUA and the MMPA are in conflict with the CSA,butassert that the State of California has the right to reject Congress’s policy on the subject of marijuanadistribution. This is simply incorrect: Federal law is, as the United States Supreme Court has elaborated for over a century, part and parcel of state law. And because these state law provisions, interpreted as Petitioners urge, “create a positive conflict” with the CSA “so that the two cannotconsistently stand together” (21 U.S.C. § 903), and constitute an obstacle to the accomplishment and execution of Congress’s full purposes and objectives, federal preemptionis the inevitable result. As a basic principle of statutory construction, this court will not construe a statute in a mannerthat rendersit inconsistent with the federal constitution. The only way to avoid running afoul of the CSA and hence the Supremacy Clause,is to interpret the CUA and the MMPAasthe California Legislature plainly intended them to be 8. construed,that 1s, as not preempting local governments from exercising their traditional authority to prohibit marijuana dispensaries undertheir zoning and land use laws. ARGUMENT Il. THE CITY OF RIVERSIDE’S ORDINANCE PROHIBITING THE ESTABLISHMENT OF MEDICAL MARIJUANA DISPENSARIES IS NOT PREEMPTED BY STATE LAW. A. Under General Principles Of Preemption, State Laws Presumptively Do Not Preempt Local Laws In Areas Traditionally Regulated By Local Governments, Such As Zoning And Land Use. Underarticle XI, section 7 of the California Constitution, “[a] city or county may make and enforce withinits limits all local, police, sanitary, and other ordinances and regulations not in conflict with the general laws.” A city or county is authorized underits police powerto adoptregulations designed to “promote the public convenienceor the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety.” (Chicago, B. & O. R. Co.v. Illinois (1906) 200 U.S. 561, 592.) Underits police power, a city or county is authorized to adopt zoning and businesslicensing regulations, including regulationsrestricting the use of land. (Cal. Const., art. XI, § 7; Big Creek Lumber Co., supra, 38 Cal.4th at p. 1151.) “[T]he powerofcities and counties to zone land use in accordance with local conditions is well entrenched.” (Big Creek Lumber, 9. at p. 1152, quoting /T Corp. v. Solano County Bd. ofSupervisors (1991) 1 Cal.4th 81, 89.) “[A] city’s powerto control its own land use decisions derives from this inherent police power, not from the delegation of authority by the state.” (DeVita v. County ofNapa (1995) 9 Cal.4th 763, 782.) The City of Riverside acted pursuantto its police power, as authorized underarticle XI, section 7 of the Constitution, in banning medical marijuana dispensaries within its limits. This Court has repeatedly held that state laws presumptively do not preemptor displace local laws adopted pursuantto the police power, particularly local laws governing subjects and areastraditionally regulated by local governments, such as zoning andland useregulation. (Big Creek Lumber, supra, 38 Cal.4th at pp. 1149-1150; Sherwin-Williams Co. v. City ofLos Angeles (1993) 4 Cal.4th 893, 897; Candid Enterprises, Inc.v. Grossmont Union High SchoolDist. (1985) 39 Cal.3d 878, 885.) “[W]hen local governmentregulates in an area over whichit traditionally exercised control, such as the location ofparticular land uses, California courts will presume,absenta clear indication of preemptive intent from the Legislature, that such regulation is not preemptedbystate statute.” (Big Creek Lumber, at p. 1149 [emphasis added]; see Action Apartment, supra, 41 Cal.4th at p. 1242.) “In enacting zoning ordinances, the municipality performsa legislative function, and every intendmentis in favor of the validity of such ordinances.” (Big Creek Lumber, at p. 1151, quoting Lockardv. City ofLos Angeles (1949) 33 Cal.2d 453, 460.) The Legislature, “when enacting state zoning laws, has declaredits ‘intention to provide only a minimum oflimitation in order that counties and cities may exercise the maximum degree ofcontrol over local zoning matters.’” (Big Creek Lumber, supra, 38 Cal.4th at p. 1151, quoting DeVita v. County ofNapa, supra, 9 Cal.4th at p. 782, quoting Gov. Code, § 65800.)* Additionally, the Legislature has recognized that a city may, by legislative declaration, determine whatactivities or conditions constitute a nuisance. (Gov. Code, § 38771; see also Amusing Sandwich, Inc. v. City of Palm Springs (1985) 165 Cal.App.3d 1116, 1129.) Local governmentsaretraditionally responsible for regulating zoning, andtheir local zoning ordinances are presumedtobevalid. (Stubblefield Construction Co. v. City ofSan Bernardino (1995) 32 Cal.App.4th 687, 713.) “’The party claiming that general state law preempts a local ordinance has the burden of demonstrating preemption.’ [Citation.]” (Action Apartment, supra, 41 Cal.4th at p. 1242.) * Government Codesection 65800 provides: “It is the purposeofthis chapter[/.e., Chapter 4, Zoning Regulations] to provide for the adoption and administration of zoning law, ordinances, rules and regulations by counties andcities, as well as to implementsuch generalplan as may be in effect in any such county and city. Except as provided in Article 4 (commencing with Section 65910 [open space zoning ordinance] and in Section 65913.1 [zoning sufficient land for residential use] the Legislature declares that in enacting this chapterit is its intention to provide only a minimumoflimitation in order that counties and cities may exercise the maximumdegree of control over local zoning matters.” -ll- The Court has “identified three types of conflict that cause preemption: a conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law,either expressly or by legislative implication.” (Action Apartment, supra, 41 Cal.4th at p. 1242 [citations and internal quotation marks omitted]; Sherwin-Williams, supra, 4 Cal.4th at pp. 897-898.) “Implied preemption occurs when: (1) general law so completely covers the subject as to clearly indicate the matteris exclusively one of state concern; (2) general law partially covers the subject in terms clearly indicating a paramountstate concern thatwill not tolerate further local action; or (3) general law partially covers the subject and the adverse effect of a local ordinance ontransient citizens ofthe state outweighs the possible municipal benefit.” (Big Creek Lumber, supra, 38 Cal.4th at pp. 1157-1158.) As one court hasstated: ‘‘Weare reluctantto invoke the doctrine of implied preemption. Since preemption depends uponlegislative intent, such a situation necessarily begs the question of why,if preemption waslegislatively intended, the Legislature did not simply say so, as the Legislature has done manytimes in many circumstances.” (Garcia v. Four Points Sheraton LAX (2010) 188 Cal.App.4th 364, 374.) Asthis brief will explain, the CUA and the MMPAdo not “occupy the field” of regulation of medical marijuana dispensaries, and local laws prohibiting the establishment of such dispensaries do not “contradict” any -|2- provision of the CUA or MMPA. Thus, the CUA and the MMPAdonot preempt the City of Riverside’s ordinance banning such dispensaries within its limits. B. The Compassionate Use Act And The Medical Marijuana Program Act Do Not Preempt The City Of Riverside’s Zoning Regulation Banning Medical Marijuana Dispensaries. 1. The CUA And The MMPAProvide Immunity From CriminalLiability For Violations Of Specified Provisions Of The Health And Safety Code. Undersections 11357 and 11358, any person whopossessesor cultivates marijuana in California is subject to criminal liability. In 1996, the voters of California approved Proposition 215, entitled the “Compassionate Use Act of 1996” (“CUA”), which provides that persons whopossessorcultivate marijuana are immunefrom criminalliability under sections 11357 and 11358.° The CUA provides: Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a The CUA’s stated purposesare to (1) “ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determinedthat the person’s health would benefit from the use of marijuana. . . .”; (2) “ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction”, and (3) “encourage the federal and state governments to implementa plan to provide for the safe and affordable distribution of marijuanato all patients in medical needs of marijuana.” (§§ 11362.5, subd. (b)(1)(A), -(B), -(C). patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the medical purposes of the patient upon the written ‘or oral recommendationor approvalof a physician. (§ 11362.5, subd. (d).) Thus, the CUA provides that persons who possess or cultivate marijuana as providedin the statute are not subject to criminal liability. In 2003, the Legislature enacted the MMPAin orderto clarify and implement the CUA. (§§ 11362.7 et seq.)° The MMPAprovidesthat the State Department of Health Services shall establish a “voluntary program” for the issuance ofidentification cards to qualified patients and primary caregivers (§ 11362.71); establishes guidelines for defining a “qualified patient” and a “primary caregiver” (§ 11362.7); limits the amount of medical marijuanathat can be used (§ 11362.77);’ limits the areas where medical marijuana can be used (§ 11362.79); and precludeslicensing ‘The MMPA’s stated purposesare to “[c]larify the scope of the application of the [CUA]andfacilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessaryarrest and prosecution of these individuals and provide needed guidance to law enforcementofficers”; “[p]romote uniform and consistent application of the act among the counties within the state . . .”; and “[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” (Stats., 2003, ch. 875, § 1.) The MMPA is intended “to address additional issues that were not included within the [Compassionate Use Act], and that must be resolved in order to promote the fair and orderly implementation ofthe act.” (/d.) ‘In People v. Kelly (2010) 47 Cal.4th 1008, the Court held the limits were » “unconstitutionally amendatory insofaras it limits an in-court CUA defense.” -14- agencies and boards from imposingcivil penalties or taking disciplinary action against persons who engage in conduct authorized under the MMPA (§ 11362.8). (People v. Urziceanu (2005) 132 Cal.App.4th 747, 783.) More importantly, here, the MMPAexpandsthelist of statutes imposing criminal liability to which persons whose conductis authorized under the CUA haveanaffirmative defense. First, section 11362.765 provides that a qualified patient who “transports or processes marijuana for his or her own personal medical use,” and a designated caregiver who “transports, processes, administers, delivers, or gives away” marijuana for medical purposes, “shall not be subject, on that sole basis, to criminalliability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570”of the Health and Safety Code. Second, section 11362.775 provides that qualified patients and designated caregivers “whoassociate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis ofthat fact be subject to state criminal sanctions under” the sameprovisionsas section 11362.765. ‘As noted previously, sections 11357 and 11358 establish criminalliability for persons whopossessor cultivate marijuana, respectively. Section 11359 establishes criminal liability for persons who possess marijuana for sale; section 11360 for persons whotransport, sell, furnish, administer or give away marijuana; section 11366 for persons who open or maintain places for use of controlled substances; and section 11366.5 for persons whorentplaces for use ofcontrolled substances. Section 11570 provides that a building or place where controlled substances are sold, served, stored, kept, manufactured or given awayis a nuisance subject to abatement. Thus, the MMPAprovidesthat qualified patients and caregivers who may be subject to criminal liability under specified provisions of the Health and Safety Code for engaging in certain specified medical marijuana activities, are immune from criminalliability to the extent that such activities are the “sole basis” for their hability. The MMPAthus decriminalizes certain conduct that was criminalized prior to its enactment. As a Court of Appeal has stated, the MMPA“accords qualified patients, primary caregivers, and holders ofvalid identification cards, an affirmative defense to certain enumerated penal provisions that would otherwise apply to transporting, processing, administering, or giving away marijuana to qualified persons for medical use.” (City ofClaremontv. Kruse (2009) 177 Cal.App.4th 1153, 1171.) As this Court has stated, the MMPA “immunizes from prosecution a range of conductancillary to the provision of medical marijuana to qualified patients.” (People v. Mentch (2008) 45 Cal.4th 274, 290 [citation omitted].) a. The CUA And The MMPADoNot Preempt Local Laws Banning Marijuana Dispensaries The CUA and the MMPAdonot preempt local laws banning marijuana dispensaries, for two reasons. First, the CUA and the MMPA contain no language authorizing marijuana dispensaries and no language that might be construed as preempting local ordinances prohibiting such dispensaries. The provisions of the MMPAthat decriminalize “collectivef] - |6- or cooperative{] .. . cultivat{ion]” of marijuana do not even mention storefront dispensaries, and certainly do not mandate tolerance ofthat particular method of operating a collective cultivation endeavor. Undergeneralprinciples of preemption, state law presumptively does not preempt local laws—particularly in areas traditionally regulated by local governments—in the absence ofa clear expression oflegislative intent. (Action Apartment, supra, 41 Cal.4th at p. 1242; Sherwin-Williams, supra, 4 Cal.4th at p. 897.) As the CUA and the MMPAdonotspecifically authorize marijuana dispensaries which are, even underPetitioners’ theory, merely one of many methodsofcollectively cultivating marijuana), they cannot be construed as preempting local authority to ban them undereither field preemption or“contradiction” preemption principles. ’. With regard to field preemption, Health and Safety Code sections 11362.768 and 11362.83 expressly contemplate local regulation of marijuana-related land uses — which conclusively eliminates any suggestion of field preemption. (Big Creek Lumber Co., supra, 38 Cal.4th at p. 1157). Further, even withoutthis statutory assistance, ordinary field preemption principles would lead to the sameresult. The statutes do not “so completely cover[]” the subject as to clearly indicate that the matteris “exclusively one of state concern,” or“partially cover[]” the subject so as The third type of preemption ~ “duplication” — is plainly not relevant here. (See Baldwin v. County of Tehama (1994) 31 Cal.App.4th 166, 179-180 [explaining duplication preemption].) -|7- not to “tolerate further local action,” or “partially cover[]” the subject sufficiently to “outweigh” the possible municipal benefit. (Big Creek Lumber, supra, 38 Cal.4th at pp. 1157-1158.) Similarly, Riverside’s ordinances do not “contradict”state law. “A local ordinance contradicts state law whenit is inimical to or cannot be reconciled with state law.” (O'Connell v. City ofStockton (2007) 41 Cal.4th 1061, 1068.) Underthis branch of preemption jurisprudence,“a local ordinance is not impliedly preempted by conflict with state law unless it mandates whatstate law expressly forbids, or forbids what state law expressly mandates. That is because, when a local ordinance does not prohibit what the statute commands or commandwhatit prohibits, the ordinanceis not ‘inimicalto’ the statute.” (Big Creek Lumber Co., supra, 38 Cal.4th at p. 1161.) Absent any provision of the CUA or MMPAclearly authorizing (let alone “mandat[ing]”) marijuana dispensaries, Riverside's ordinance banning such dispensaries cannotbe held contradictory or inimicalto state law. As the Court of Appeal properly concluded below, “{zJoning ordinances banning MMD’s [medical marijuana dispensaries] are not inconsistent with the CUA and MMP....” (/nland Empire, supra, 200 Cal-App.4th at p. 905.) Therefore, the statutes do not preempt the City’s ordinance here. Second, the CUA and the MMPA,to the extent that they limit local lawsat all, would limit only local laws that criminalize conduct specifically -18&- authorized underthe statutes. The MMPAspecifically provides that qualified patients and caregivers who engagein certain medical marijuana activities—suchas transporting, processing and using marijuana for medical purposes and associating with marijuana collectives—shall not be subject on that “sole basis”to “criminalliability” and “state criminal sanctions” imposed underspecified provisions of the Health and Safety Code. (§§ 11362.765, 11362.775.) At most, the MMPA might preempt local laws that imposed criminal liability for conduct authorized under the MMPA."° It does not, however, preempt local lawsthat provide forcivil abatement remedies, such ascivil actions to enjoin marijuana dispensaries on groundsthat they are a nuisance underlocallaws. Here, the City of Riverside’s zoning ordinanceprovidesthat a marijuana dispensary is a nuisance subject to abatement underthecivil laws (RMC,§ 19.150.020; § 1.01.110.E.)'', and the City’s action seeks to “As noted above, even such limited preemption is hardly a foregone conclusion. ''Under California law, a nuisance is “fa]nything whichis injuriousto health, including, but not limited to, the illegal sale of controlled substances,or is indecent or offensive to the senses, or an obstruction to the free use of property,so as to interfere with the comfortable enjoyment of life or property... .” (Civ. Code, § 3479.) “A nuisance may be public nuisance, a private nuisance, or both. [Citation.]” (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 341.) “A public nuisanceis one whichaffects at the same time an entire community or neighborhood,or any considerable numberofpersons, although the extent of the annoyance or damageinflicted upon individuals may be unequal.” (Civ. Code, § 3480.) A “nuisance”ts regarded as a “nuisance per se”if “a legislative body with appropriate jurisdiction, in the exercise of -19- enjoin [Inland Empire’s marijuana dispensary on the groundthatit is a nuisance subject to abatement underthe civil laws. The City does not seek to imposecriminalliability or sanctions against any of the defendants. Thus, the City does not seek to criminalize conductthat is specifically authorized under the MMPA. Hence, the City’s regulationis not preemptedbythestatute. b. This Court Should Not Rewrite The MMPA To Satisfy Petitioners’ Misreading Of The Statute The Petitioners make a somewhat convoluted argumentin asserting that the MMPApreempts the City’s ordinance banning marijuana dispensaries. (App. Br. 9-12.) They argue that the MMPAprovides an immunity from criminal liability for violations of certain provisions of the Health and Safety Code, one of whichis section 11570, which defines a “nuisance”as a “building or place” where marijuana is sold, served, stored, kept, manufactured or given away. (§§ 11571, 11573; App. Br. 9-12.) They then argue that section 11570 provides only a “‘civil nuisance cause of action” (App. Br. 11), and, therefore, that the MMPA—in providing an immunity from “state criminal sanctions”-—-contains a “scrivener’s error.” the police power, expressly declares a particular object or substance, activity, or circumstances to be a nuisance.” (Beck DevelopmentCo.v. Southern Pacific Transp. Co. (1996) 44 Cal.App.4th 1160, 1206.) Thus, a marijuana dispensary is a public nuisance per se underthe City’s regulations. “‘Nuisancesper se are so regarded because no proofis required, beyondthe actual fact of their existence, to establish the nuisance.” [Citations.]” (City of Costa Mesav. Soffer (1992) 11 Cal.App.4th 378, 382.) - 20 - (App. Br. 10). In other words, they argue that because the MMPAprovides an immunity from “criminal”liability under certain statutes — one of which establishes a “civil” cause of action — the MMPAis wrongly written and should be construed as authorizing immunity from “civil” statutes as well. The Petitioners’ argumentis a blatant attempt to have this Court re- write the MMPAin order to expand its preemptive reach. Because the MMPAexpressly provides affirmative defenses only to “criminalliability” and “‘state criminal sanctions” (§§ 11362.765, 11362.775), the statute cannot properly be construed as providing an immunity from localcivil laws, including local laws based onconstitutional and statutory land use authority, and the statute cannot be judicially re-written to provide such immunity. Contrary to the Petitioners’ argument, the Legislature meant just whatit said in writing the MMPA,andthestatute does not contain a “scrivener’s error.” Under California law,a “‘public nuisance” may be a violation of either criminal law orcivil law, and may be remedied by a criminal prosecution or by a civil abatementaction, such as an action for an injunction. Specifically, Civil Code section 3491 provides that the remedies for preventing a public nuisance, as defined in Civil Code section 3479, are “[i]ndictmentor information,” “[a] civil action, or “[a]batement,” (Civ. Code, § 3491), and “[t]he remedy by indictment or information is regulated by the Penal Code.” (Civ. Code, § 3492.) Thus, under California law, a public nuisance mayviolate either criminal law or civil law, and may be subject to prosecution under the former or abatementunderthelatter. Assection 11570 provides that certain drug-related activities are a “nuisance,” the statute presumably may be enforced in the same waythat other nuisancestatutes are enforced, that is, by either civil law action or a criminal law action.'” In any event, the Legislature clearly intended only to provide an affirmative defense to criminalliability for persons who might otherwise be subject to criminalliability under specified provisions of the Health and Safety Code, including section 11570, and the Legislature intended to provide an affirmative defense from criminalliability under section 11570 on the assumption that the provision might impose such criminalliability. As a Court of Appeal hasstated, the Legislature intended to provide an “affirmative defense to certain enumerated penal provisions” for persons whoseactivity is authorized under the MMPA(City ofClaremont, supra, 177 Cal.App.4th at p. 1171), which includes section 11570. Thus,it is relevant only that the Legislature intended to provide immunity from criminalliability under section 11570 on the assumption that suchliability "Section 11570 provides that a “nuisance,” as defined in thestatute, may be “enjoined, abated, and prevented.” (Emphasis added.) Because a nuisance may be “prevented”under section 11570, presumably it may be “prevented”either under the criminal lawsor the civil laws, as in the case of “nuisances” defined under Civil Code section 3479. (Civ. Code, § 3491.) might exist, and is not relevant whether the provisionis ultimately construed by the courts as imposing such criminalliability. The Legislature’s action was, thus, prophylactic rather than corrective. As the Legislature provided an immunity from criminal liability if such liability exists, the statute does not contain a “scrivener’s error.’””? In sum, the CUA and the MMPAestablish a statewide policy of allowing qualified patients and caregivers to engage in certain medical "In City ofLake Forest v. Evergreen Holistic Collective (2012) 203 Cal.App.4th 1413, the court of appeal recently held that the City of Lake Forest’s ordinance banning a marijuana dispensary was preemptedby the CUA and the MMPA.Thecourt reasonedthat section 11362.775 preempts all local regulations that ban marijuana dispensaries on groundsthat they are a “nuisance,” because a “nuisance” undereither Health and Safety Code section 11570 or Civil Code section 3479 can be abatedin civil action, usually by an injunction, and therefore section 11362.775 is not limited to immunizing persons from “criminal liability.” (Lake Forest, supra, 203 Cal.App.4th at pp. 1429-1430, 1444-1449, petn. for review pendingpetn. filed April 10, 2012.) Lake Forest was, by its own acknowledgement, a substantial departure from the analysis articulated in the Claremontline of cases, which the Lake Forest court simply dismissedas “incomplete and unpersuasive.” (/d. at p. 1454.) Contrary to Lake Forest, and as explainedin the text above, a “nuisance” as defined in Civil Code section 3479 can be abated in either a “civil action”—as an action for an injunction—orin a criminal action by an “indictmentor information.” (Civ. Code, § 3491.) Thus, section 11362.775, in providing that certain personsare not subject to “state criminal sanctions” undersection 11570, precludes only criminal actions based on nuisancelawsbutnot civil actions based on such laws. The Lake Forest court has effectively re-written section | 1362.775—which expressly provides only that designated personsshall not be subjectto “‘state criminal sanctions”’-—by stretching the provision to bar civil enforcementactions to enjoin marijuana dispensaries. Nothing in section |1362.775 mentions civil enforcement actions, or provides any basis for stretching the provision to include civil enforcementactions. marijuana activities without fear of criminal prosecution, but not a statewide policy of preempting local authority to regulate and ban marijuana dispensaries. Indeed, the statutes do not specifically authorize marijuana dispensaries, and thusthere is no basis for construing the statutes as preempting local authority to ban the dispensaries. In effect, the Legislature considered both the needs of persons for medical marijuana and the traditional authority of local governments to regulate zoning and land use undertheir police power, and struck the balance by authorizing persons to grow, possess and use medical marijuana but notintruding on local authority to regulate and ban marijuanadispensaries. If the Legislature had decidedto strike the balance differently, by preempting local authority to regulate and ban the dispensaries, it would have spoken with clarity and forthrightness on the subject, because this would have beena significant impingementon local authority to regulate nuisances undertheir police power. Surely the Legislature would not have hiddenits policy under a rock, waiting for the courts to discoverit. Neither the CUA nor the MMPA contains any clear and forthright expression oflegislative policy to preempt local authority to regulate and ban marijuana dispensaries. If the Legislature’s balance between competinginterests is to be changed,the Legislature is responsible for making the change, not the courts. 2. This Court’s Decision In Ross v. Raging Wire Telecommunications, Inc., Supports The Conclusion That The CUA And The MMPADoNot Preempt Local Laws Banning Marijuana Dispensaries. The above conclusion concerning the limited preemptive effect of the CUA and the MMPAis demonstrated by this Court’s decision in Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, which held that the CUA doesnot apply in the employment law context despite providing immunity from criminal liability for qualified patients and caregivers. There, an employer had discharged an employee on grounds that a drug test showedthat the employee had used marijuana. The employee’s physician had recommendedpursuantto the CUAthatthe employee use marijuanato treat chronic pain. The employee brought an action against the employer under the California Fair Employment and Housing Act, alleging that the employer had failed to accommodate his disability. (Ross, supra, at pp. 924-925.) This Court, affirming the Court of Appeal’s decision, upheld the dismissal of the employee’s claim. The Court held that the CUA does not apply in the context of employment law because “California’s voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designatedstate statutes,” specifically sections 11357 and 11358 of the Health and Safety Code, which makeit illegal to possess or cultivate marijuana, respectively. (Ross, supra, 42 Cal.4th at p. 926.) “California’s voters,” the Court stated, “. . were free to view the possibility of beneficial medical use as a sufficient basis for exempting from criminalliability under state law patients whose physicians recommendthe drug.” (/d. at p. 927.) “The proponents of the Compassionate Use Act... consistently described the proposed measure to the voters as motivated by the desire to create a narrow exception to the criminal law.” (/d. at p. 929.) The Court stated that the statute “can be givenliteral effect as negating any expectation that the immunity to criminal liability for possessing marijuana granted in the Compassionate Use Act gives medicalusers a civilly enforceable right to possess the drug at work or in custody.” (/d. at p. 931 [emphasis added].) Thus, Ross held that the CUA does not apply in the context of employmentlaw because it merely provides immunity from criminal liability for persons whose conductis authorized under the CUA. Ross supports the conclusion that the CUA—and the MMPA,whichclarifies and implements the CUA'*—donot preempt local regulations banning marijuana dispensaries, to the extent that the local regulations do not 'Ross’s own discussion of the MMPAfurther bolsters this conclusion. Rossrejected the suggestion that enactment of the MMPAprovided medical marijuana users with employmentprotections that the CUAitself did not — because the MMPAcontained no express provisionsto that effect, and “‘we do notbelieve that [the MMPA] can reasonably be understood as adopting such a requirementsilently and without debate.” (Ross, supra, 42 Cal.4th at p. 931.) The wisdom of this observation as applied to the MMPA’s supposedly implicit preemption oflocal authority over marijuana- related land uses is obvious. imposecriminalliability.’° 3. The Court Of Appeal Decisions In Claremont, Naulls And Hill Support The Conclusion That The CUA And The MMPADoNot Preempt Local Laws Banning Marijuana Dispensaries. The above conclusion is amply demonstrated by the appellate decisions in City ofClaremont, supra, 177 Cal.App.4th 1153, City of Corona v. Naulls (2008) 166 Cal.App.4th 418, and County ofLos Angeles v. Hill (2011) 192 Cal.App.4th 861. The Claremont decision is particularly probative here, because the court upheld a City of Claremont ordinance that, like the City of Riverside’s ordinance, did not allow marijuana dispensaries. In Claremont, the court held,first, that the CUA did not expressly preemptthe city’s ordinance,stating: The CUA does not expressly preempt the City’s actions in this case. The operative provisions of the CUA do not address zoning or business licensing decisions. ... [] The CUAdoesnotauthorize the operation of a medical marijuana dispensary [citation], nor does it prohibit local governments from regulating such dispensaries. Rather, the CUA expressly Similarly, in Mentch, supra, 45 Cal.4th 274, this Court “closely analyzed” the scope of criminal immunity provided in section 11362.765 (/d. at 290), and concludedthat the statute affords criminal immunity for specific individuals undera narrowset of circumstances. The Court stated that “the immunities conveyed by section 11362.765 have three defining characteristics: (1) they each apply only to a specific group of people; (2) they each apply only to a specific range of conduct; and (3) they each apply only against a specific set of laws.” (/d. at pp. 290-291.) As in Ross, Mentchstressed that the CUA and the MMPAprovide an immunity from criminalliability for persons whose conductis authorized under the statutes. states that it does not supersede lawsthat protect individual and public safety: ‘‘Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others....” (§ 11362.5, subd. (b)(2).) (Claremont, supra, 177 Cal.App.4th at pp. 1172-1173 [citation omitted].) Next, the court held that the MMPAdid not expressly preempt the City’s ordinance,stating: The MMPdoes not expressly preempt the City’s actionsat issue here. The operative provisions of the MMP,like those in the CUA,provide limited criminal immunities undera narrow set of circumstances. The MMPprovides criminal immunities against cultivation and possession for sale charges to specific groups of people and only for specific actions. [Citations.] It accords additional immunities to qualified patients, holders of valid identification cards, and primary caregivers who “collectively or cooperatively cultivate marijuana for medical purposes.” [Citation.] (id. at p. 1175.) Finally, the court held that neither the CUA nor the MMPAimpliedly preempted the city’s ordinance,stating: Neither the CUA nor the MMP impliedly preempts the City’s actions in this case. Neither statute addresses, much less completely covers, the areas of land use, zoning and business licensing. Neither statute imposes comprehensive regulation demonstrating that the availability of medical marijuana is a matter of “statewide concern,” thereby preempting local zoning and business licensing laws. The statement of voter intent in the CUA,“[t]o ensure that seriously tll Californians havethe right to obtain and use marijuana for medical purposes”[citation], ... does not create a “broad right to use marijuana without hindrance or inconvenience”(Ross [v. RagingWire Telecommunications, Inc. (2008)], supra, 42 Cal.4th [920,] at p. 928), or to dispense marijuana without regard to local zoning and business licensing laws. [] Neither the CUA nor the MMP 66G8partially covers the subject of marijuana “‘in such terms as to indicate clearly that a paramountstate concern will not tolerate further or additional local action.’” [Citation.] ... [] Finally, neither the CUA nor the MMPprovidespartial eeecoverage of a subject that “‘is of such a nature that the adverse effect of a local ordinance on the transientcitizens of the state outweighs the possible benefit’” to the City. [Citation.] ... Neither the CUA nor the MMP compels the establishmentoflocal regulations to accommodate medical marijuana dispensaries. The City’s enforcementofits licensing and zoning lawsandits temporary moratorium on medical marijuana dispensaries do not conflict with the CUA or the MMP. (dd. at pp. 1175-1176.) The Petitioners argue that Claremont was wrongly decided, because—although Claremontstated that “[m]edical marijuana dispensaries are not mentionedin the text or history of the MMP”—the MMPA,in section 11362.775 of the Health and Safety Code, “‘allow[s] for the proliferation of ‘association[s]’ and madethe existence of them a central goal to meet its objectives ....” (App. Br. 36-37.) Section 11362.775, however“does not cover dispensing or selling marijuana.” (People v. Joseph (2012) 2012 Cal.App. LEXIS 437 * 17 [emphasis added].) Instead, section 11362.775 simply provides that qualified patients and their designated caregivers who“associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subjectto state criminal sanctions” under enumerated provisions of the Health and Safety Code. (§ 11362.775.) Accordingly, the MMPAprovidesanaffirmative defense to -29. criminalliability for persons who associate to “collectively or 99 66 cooperatively” “cultivate” medical marijuana, but does not authorize or even mention medical marijuana dispensaries, much less make them a “central goal” of the MMPA—and muchless preclude local governments from regulating them undertheir constitutional land use authority.'° Thus, Claremontproperly held that the MMPA doesnot preemptlocal regulations banning marijuana dispensaries.’ In Naulls, the Court of Appeal upheld an order enjoining a marijuana dispensary that lacked a valid zoning designation. There, the City of "Even if, as Petitioners argue, “associations” operating retail-type storefront dispensaries are one mode of undertaking collective or cooperative marijuanacultivation, they are hardly the exclusive mannerin which such cultivation may be undertaken. The prohibition of this one particular mode of operation(i.e., retail-type storefront dispensaries) is, in the final analysis, merely a conventional regulation of the intensity of marijuana-related land uses - whichis a well established component of local planning and zoning. (See Gov. Code, §§ 65850, subd. (c)(2), 65302, subd.(a).) ’The Petitioners also argue that Claremont is inapposite because the court simply sustained the City of Claremont’s “temporary moratorium” of marijuana dispensaries rather a “complete ban” on such dispensaries. (App. Br. 33.) Because the CUA and the MMPAdo notaddressthe subject of marijuana dispensaries, they do not preclude local governments from adopting moratoria, regardless of whether the moratoria are “temporary”or “permanent.” Indeed, the distinction between a “temporary” moratorium and a “permanent” oneis simply temporal, and the CUA and the MMPA contain no language suggesting a distinction between local laws based on temporal considerations. Moreover, Petitioners are incorrect that Claremont concerned only a “temporary moratorium.” The Claremont court said, “The CUA accordingly did not expressly preempt the City’s enactment of the moratorium or enforcementoflocal zoning and business licensing requirements.” (Claremont, supra, 177 Cal.App.4th at p. 1175 [emphasis added].) - 30 - Corona had adopted an ordinance under which “medical marijuana dispensaries are expressly prohibited in commercial and office zones, and in industrial zones.” (Nauills, supra, 166 Cal.App.4th at p. 432.) The court held that “where a particular use of land is not expressly enumerated in a city’s municipal codeas constituting a permissible use,it follows that such use is impermissible.” (/d. at p. 433 [emphasis in decision].) The court concludedthat the operator of the marijuana dispensary, “by failing to comply with the City’s various procedural requirements, created a nuisance per se, subject to abatement in accordance with the City’s municipal code.” (id.)'® In Hill, the Court of Appeal held that the CUA and MMPAdid not preempt the County of Los Angeles’ ordinance prohibiting marijuana distribution facilities within a 1000-foot radius of a public library. First, the court held that the Legislature, in passing the MMPA,did not “occupy the field” of regulation of such facilities, because the MMPAexpressly authorizes local regulations that are “consistent” with the MMPA.(Hill, supra, 192 Cal.App.4th at p. 867.) Second, the court held that the County '’The operator of the marijuana facility had obtained a business license underfalse pretenses by describing his business as a “miscellaneousretail establishment.” When the City of Corona learned the true nature of the facility, it brought an action to enjoin the facility on groundsthat the facility wasin violation of the City’s licensing and zoning regulations. The court of appeal affirmed the trial court’s grant of a preliminary injunction, on the groundthatthe facility was a “nuisance per se” underthe City’s business and zoning regulations. (166 Cal.App.4th at p. 433.) - 3] - regulation wasnot “facially [in]consisten[t]” with the MMPA,becausethe MMPAdid notpreclude local governments from placing “any additional restrictions on the location of” marijuanadistribution facilities beyond the limitation mentioned in section 11362.768, which precludes such facilities from being located within 600 feet from schools. (/d. at pp. 868-869.)"” Thus, the CUA and the MMPAplainly do not preemptthe authority of local governments to regulate and ban medical marijuana dispensaries undertheir traditional zoning andland use laws. C. The Legislature’s Recent Amendments Of The Medical Marijuana Program Act, Codified In Health And Safety Code Sections 11362.768 And 11362.83, Reaffirm That Local Regulations Restricting The Establishment Of Marijuana Dispensaries Are Not Preempted. 1. Section 11362.768 Reaffirms That Local Prohibitions Of Marijuana Dispensaries Are Not Preempted. a. Statutory Language In 2010, the Legislature amended the MMPAbyenacting section 11362.768, which limits the proximity of marijuana dispensaries to schools. "The Hill court also rejected the defendants’ argument that the County’s ordinance was“inconsistent” with the CUA and the MMPA“as applied,” because, the defendants argued, the ordinance madeit “practically impossible for such [marijuana] dispensaries to exist anywherein the unincorporated areas of the County.” (Hi/l, supra, 192 Cal.App.4th at 869.) The court specifically did not consider whether the CUA and the MMPA preemptedlocal regulations that “ban medical marijuana dispensaries completely,” because the County “took no position” on that issue. (/d.atp. 869, fn. 6.) Instead, the court held that the ‘[dJefendants’ evidence does not support their claim.” (/d. at p. 869.) -32. The provision, which becameeffective on January 1, 2011, states: No medical marijuana cooperative, collective, dispensary, operator, establishment, or provider whopossesses, cultivates, or distributes medical marijuana pursuant to this article shall be located within a 600-foot radius of a school. (§ 11362.768.)° Section 11362.768 contains a savings clause, subdivision (f), which makes clear that the MMPA doesnot preempt the City of Riverside’s ordinance banning marijuana dispensaries. Subdivision (f) provides: Nothing in this section shall prohibit a city, county, or city and county from adopting ordinancesorpolicies that further restrict the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider. (§ 11362.768, subd. (f) [emphasis added].) Subdivision (f)—byauthorizing local governments to “further restrict” not only the “location” of marijuana dispensaries but also their “establishment”—plainly authorizes local Section 11362.768 applies “only to a medical mariyuana cooperative, collective, dispensary, operator, establishment, or providerthat is authorized by law to possess, cultivate, or distribute medical marijuana and that has a storefront or mobile retail outlet which ordinarily requires a local business license” (§ 11362.768, subd. (e)), and does not apply to “‘a licensed residential medical or elder care facility.” (§ 11362.768, subd. (d).) In adopting the provision, the Legislature madea finding that “establishing a uniform standard regulating the proximity of medical marijuana cooperatives, collectives, dispensaries, operators, establishments, or providers to schools is a matter of statewide concern and not a municipal affair, as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this act shall apply to all cities and counties, including charter cities and charter counties.” (Assem. Bill No. 2650 (2009-2010 Reg. Sess.) § 2, Request for Judicial Notice, Exh. B.) governments to prohibit their “establishment” altogether. A “further restrict{ion]” of the “establishment” of a marijuana dispensary can include not only limits on its operation but also a prohibition ofits operation altogether. Nothingin the statute limits the authority of local governments to “further restrict” the “establishment” of marijuana dispensaries. By not imposing such limits, subdivision (f) plainly authorizes local governments to prohibit the establishment of marijuana dispensaries. Even if subdivision (f) is not construed as affirmatively authorizing local governments to regulate and ban medical marijuana dispensaries, subdivision (f) plainly evinces no intent to preemptthe traditional authority of local governments to regulate and ban such dispensaries. The absence of legislative authorization for local regulation does not mean or imply the existence of legislative preemption of such regulation, particularly in an area traditionally regulated by local governments. Asthis Court hasstated, “absent a clear indication of preemptive intent from the Legislature,’ we presumethat local regulation ‘in an area over which [the local government] traditionally has exercised control’ is not preemptedbystate law. {Citation.]” (Action Apartment, supra, 41 Cal.4th at p. 1242.) Thus, subdivision (f) authorizes and in any event does not preemptlocal regulations prohibiting the establishment of marijuana dispensaries. Section 11362.768 contains another subdivision, subdivision (g), that also demonstrates that the MMPA does not preempt the City of -34- Riverside’s ordinance. Subdivision (g) provides: Nothing in this section shall preempt local ordinances, adopted prior to January |, 2011, that regulate the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider. (§ 11362.768, subd. (g).) Thus, subdivision (g) validates local regulations relating to the “establishment”of marijuana dispensaries prior to the statute’s effective date of January 1, 2011. As the City of Riverside’s ordinance was adoptedpriorto that date, the City’s ordinanceis also valid underSection 11362.768. In sum, the savings clauses contained in subdivisions(f) and (g) of section 11362.768 plainly authorize local governments to ban marijuana dispensaries within their areas ofjurisdiction—and to continuein effect any bans adopted prior to enactment of the savings clauses—andin any event do not preemptlocal authority to ban such dispensaries. As a Court of Appealrecently stated: “If there was ever any doubt aboutthe Legislature’s intention to allow local governments to regulate marijuana dispensaries, and we donotbelieve there was, the newly enacted section 11362.768, has madeclear that local governments may regulate dispensaries.” (Hill, supra, 192 Cal.App.4th at p. 868.) As this Court has stated, “[p]reemption by implication oflegislative intent may not be found whenthe Legislature has expressedits intent to permit local regulations. Similarly, it should not be found whenthe statutory schemerecognizes local regulations.” (People v. County ofMendocino (1984) 36 Cal.3d 476, 485; see /T Corp. v. Solano County Board ofSupervisors (1991) 1 Cal.4th 81,94 [same].) Therefore, the City of Riverside’s ordinance is valid under the savings clauses. b. Legislative History Thelegislative history of section 11362.768 further demonstrates that the MMPAauthorizes, and in any event does not preempt, local regulations banning marijuana dispensaries. A.B. 2650, the bill that was enacted into law,originally did not address the subjectof local regulation of marijuana dispensaries.*’ During the legislative process, concerns were expressed that the bill might unduly restrict the traditional police powerauthority of local governments. The Assembly Committee on Public Safety report stated that since the passage of the MMPAin 2003, “much of the medical marijuana regulation has been determined bylocal jurisdictions better equippedto resolve issues related to the unique natureofits city or county.””” In response,the bill’s author stated that the bill’s preemptive effect was limited, because the bill was intended to “provide[] local jurisdictions necessary guidance while “Assem. Bill No. 2650 (2009-2010 Reg. Sess.) as introduced Feb. 19, 2010 RJN, Exh.F. ~“Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 2650 (2009- 2010 Reg. Sess.) as amended Apr. 8, 2010, p. 5, RJN, Exh. C. > - 36- 9923allowing them to construct a morerestrictive ordinance.”™ The author then incorporated this intent into the two savings clauses, subsections(f) and (g), and these savings clauses were includedin the bill enacted into law.” Accordingto the legislative reports, these savings clauses allow a local government“to construct a morerestrictive ordinance”at any time, but “set[ting] a January 1, 2011 deadline for adopting any local ordinancethat is less restrictive than AB 2650.””° Thus, a local governmentcan at any time adopt a more restrictive ordinance than providedin the statute, but cannotadopta /ess restrictive ordinance after the January 1, 2011 deadline.”° The author of A.B. 2650, describing the currentstatus of local *Assem. Com. on Appropriations, Analysis of Assem. Bill No. 2650 (2009- 2010 Reg. Sess.) as amended Apr. 15, 2010, p. 1, RJN, Exh.E. *Assem. Bill No. 2650 (2009-2010 Reg. Sess.), RJN, Exh. B. *Sen. Local Gov. Com., Analysis of Assem. Bill No. 2650 (2009-2010 Reg. Sess.) as amended Jun. 10, 2010, p. 3, RJN, Exh. H. *°The Assembly Committee on Public Safety report also quoted the commentof an opponentof the bill, the Americans for Safe Access, which stated: Furthermore,local land use decisions are best made by City Councils and County Boards of Supervisors based on the individual circumstances in the Community. Usurpingthis local authority with an arbitrary statewide limit will interfere with the ability of local governmentsto use their discretion in developing the kinds of regulations that are already provento protect legal patients and the community at large. Land use issuesrelated to these associations should continue to be madeat the local level— Just like those for other legal businesses or organizations. (Assem. Com. on Pub. Saf., Analysis of Assem. Bill No. 2650 (2009-2010 Reg. Sess.) as amended Apr. 15, 2010, p. 7, RJN, Exh. D.) regulation of marijuana dispensaries, stated: Several cities in our district ... have recently passed ordinances to move,restrict or ban marijuana dispensaries [ ] within their city limits ... Currently, there is no guidance as the most appropriate locations for these dispensaries to open. As a result, we have cases of dispensaries opening up close to schools and other places where children congregate.’ Thus,the Legislature, in enacting the savings clauses, was fully aware that local governments had, in someinstances, “ban{ned] marijuana dispensaries” within their limits, but nonetheless did not preemptlocal ordinances that imposed such bans. Instead, the Legislature authorized local governmentsto “further restrict” the “location or establishment” of marijuana dispensaries, even to the point of adopting a “morerestrictive ordinance”than the statute. This legislative history makesclear that section 11362.768 authorizes, and in any event does not preempt, local regulations banning marijuana dispensaries. In subsequentlegislative reports, the Legislature expressedits concern with limiting the traditional authority of local governments to regulate conduct and behavior underthe police power. Onelegislative report stated: The police poweris the authority of governments to regulate private behavior in the public interest, consistent with constitutional rights and procedures. The California *7Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 2650 (2009- 2010 Reg. Sess.) as amended Apr. 8, 2010, p. 2 [emphasis added], RJN, Exh. C, - 38 - Constitution allows cities and counties “to make and enforce within [their] limits all local police, sanitary, and other ordinances and regulations not in conflict with the general laws.” Zoning and use permits are examples of how local officials use their police powers to regulate land uses. [] Local voters elect county supervisors and city council membersto make public policy in response to local needs. Localland use decisionsthat strike a delicate balance between protecting school children and ensuring that patients and caregivers can obtain medical marijuana are best made by city and countyofficials.”® Anotherlegislative report stated: It can be argued that each local governmententity, in ~ comparison with the state, best understands the particular issues concerning medical marijuana that may arise in each city and county. A standard that is workable in a rural county could be very difficult to comply with in a very dense urban area such as San Francisco.” These legislative reports contained no discussion suggesting that the MMPApreempts local authority to regulate and ban marijuana dispensaries, or that the MMPAshould be amendedto preempt such local authority. Instead, the legislative reports repeatedly stressed the breadth of the local governments’ police powerauthority, and the importance of minimizing anystate interference with such local authority. This legislative concern is reflected in the savings clauses of subdivisions (f) and (g) of section 11362.768, which authorize local authority to adopt more restrictive regulations. These legislative efforts to preserve local authority “Sen. Local Gov. Com., Analysis of Assem. Bill No. 2650 (2009-2010 Reg. Sess.) as amended Jun. 10, 2010, pp. 1, 3, RJN, Exh. H. “Sen. Com. On Pub. Safety, Analysis of Assem. Bill No. 2650 (2009-2010 Reg. Sess.) as amended Jun. 10, 2010, p. 10, RJN Exh. 1. 39. would have been pointless, and the savings clauses mere surplusage,if the MMPAhad already preempted morerestrictive local regulation of marijuana dispensaries. Section 11362.768 amply demonstrates that the MMPA,both before and after its amendment, does not intrude on the traditional authority of local governments undertheir police powerto regulate and ban marijuana dispensaries. 2. Section 11362.83 Further Reaffirms That Local Prohibitions Of Marijuana Dispensaries Are Not Preempted. a. Statutory Language In 2011, the Legislature again amended the MMPA,by amending section 11362.83. As amended,it providesthat “[n]Jothing in thisarticle shall prevent a city or other local governing body from adopting and enforcing any... (a) local ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective”; “(b) [t]he civil and criminal enforcementof local ordinances described in subdivision (a)”; or “(c) [e]nacting other laws consistent with this article.” (§ 11362.83.) Section 11362.83, by authorizing local governments to “regulate” the “establishment” of marijuana cooperatives or collectives, and by imposing no limits on their authority to do so, plainly authorizes local governmentsto prohibit marijuana dispensaries within their areas of jurisdiction. And, even assuming arguendothat section 11362.83 does not - 40- affirmatively authorize such local prohibitions, the statute clearly does not preemptsuch local prohibitions. Asstated earlier, the absence of legislative authorization is not the equivalent of legislative preemption, in the context of local authority to regulate conduct and activity under the police power. Indeed, section 11362.83 specifically applies only to a “medical marijuana cooperative or collective,” and notably does not mention a medical marijuana “dispensary,” contrary to section 11362.768, which specifically authorizes local governments to “further restrict” not only a medical marijuana “cooperative” and “collective” but also a medical marijuana “dispensary.” By not even mentioning a marijuana dispensary, section 11362.83 makesclear that local ordinances applicable to medical marijuana dispensaries are wholly unaffected bythe statute, including the statute, the MMPA,that it amends. b. Legislative History The legislative history of section 11362.83 further demonstrates that the MMPAauthorizes, and in any event does not preempt, local regulations prohibiting the establishment of marijuana dispensaries. The Assembly Committee on Public Safety report concerning A.B. 1300, the bill that was enacted into law, quoted the author’s statementas follows: AB 1300 clarifies two important components of ourstate’s medical marijuana laws. Thebill clarifies provisions of the Medical Marijuana Program (MMP) Act of 2003relating to -d] - the authority of local governments to enact ordinances affecting medical marijuana collectives or cooperatives. ... [§] ... Underarticle XI, section 7 of the California Constitution, ‘A county or city may makeand enforce within its limits all local, police, sanitary, and other ordinancesand regulations not in conflict with general laws.’ Yet someargue that the Proposition 215 of 1996 and the MMPconstitute the parameters of medical marijuana cooperative orcollective regulation and, therefore, preclude local governments from enforcing any additional requirements. In the wake of key court cases on point, this bill clarifies state law so that communities may adopt ordinances and enforce them without the instability and expense of lawsuits challenging legal issues that have already been resolved.” “It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic Judicial decisions and to have enacted and amendedstatutes in the light of such decisions as have a direct bearing upon them.” (Buckley v. Chadwick (1955) 45 Cal.2d 183, 200.) The report continued: This provision ofthe bill is written to be consistent with our state constitution and three appellate court decisions: (1) City ofClaremontv. Darrell Kruse, which foundthat there is nothing tn the text or history of Proposition 215 suggesting that the voters intended to mandate municipalities to allow medical marijuana dispensaries to operate within their Jurisdictions,or to alter the fact that land use hashistorically been a function of local governmentundertheir grant of police power. (2) City ofCoronav. Ronald Naulls, which found that a dispensary’s failure to comply with the city’s procedural requirements before opening and operating a medical marijuana dispensary could be prosecuted as a nuisance. (3) County ofLos Angeles v. Martin Hill, which found that the MMPdoes not confer on qualified patients and their caregivers the unfettered right to cultivate or dispense “Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 1300 (2011- 2012 Reg. Sess.) as amended Mar. 31, 2011, p. 2, RJN, Exh. J. 4) marijuana anywhere they choose, and that dispensaries are not similarly situated to pharmacies and, therefore, do not need to be treated equally under local zoning laws.*! Finally, on September 20, 2011, the Governor confirmed the above interpretation of Section 11362.83 (A.B. 1300) in his Veto Message for S.B. 847,”stating: I have already signed AB 1300that gavecities and counties authority to regulate medical marijuana dispensaries — an authority I believe they already had. [{] This bill [S.B. 847] goes in the opposite direction by preempting local control and prescribing the precise locations where dispensaries may not be located. Decisions of this kind are best madein cities and counties, not the State Capitol.*? It has long been held that the Governoris acting in a legislative capacity and not as an executive whenhe is engagedin consideringbills which have passed both Housesof the Legislature and which are presented to him for disapproval or approval. (Lukens v. Nye (1909) 156 Cal. 498, 501. His statements are relevant legislative intent. (People v. Tanner (1979) 24 Cal.3d 514.) Thus,the legislative history of section 11362.83 indicates that the Legislature expressly intended to follow and apply the appellate court ‘'Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 1300 (201 1- 2012 Reg. Sess.) as amended Mar. 31, 2011, pp. 2-3, RJN, Exh. J. 2SB. 847 proposed to amendsection 11362.768 to provide a distance requirement betweenresidential uses and a marijuana cooperative, collective, dispensary, operator, establishment, or provider. “Governor’s Veto Message to Sen. on Sen. Bill No. 847 (Sept. 20, 2011) (RJN, Exh. K.) -43- decisions in Claremont, Naulls and Hill, which, as explained earlier, upheld the authority of local governments to regulate marijuana dispensaries, and—in Claremont and Naulls—to prohibit them altogether. Since the Legislature intended to follow and apply Claremont, Naulls and Hill, the statute cannot be construed as preempting the City of Riverside’s ordinance here. 3. The Petitioners’ Arguments Concerning The Legislative Amendments Are Misplaced. The Petitioners argue that section 11362.83—byauthorizing local governments to “regulate” the location, operation or establishment of marijuana cooperatives and collectives—does not authorize local governments to “prohibit” marijuana dispensaries, because the powerto “regulate” does not include the powerto “prohibit.” (App. Br. 13-20.) In support of their argument, the Petitioners cite two California cases, Boyd v. Sierra Madre (1919) 41 Cal.App. 520 (“Boyd”) and Youngv. Dept. ofFish and Game (1981) 124 Cal.App.3d 257 (“Young”). (App.Br. 13-14.) Neither case supports the Petitioners’ argument. Boyd, supra, held that a city had the powerto “forbid” a livery stable from being operated without a license, because “[f]or the purpose of regu/ating such operations, a city has the powerto divideits territorial limits into a residence and a businessdistrict, and prohibit the obnoxious occupation within the former.” (Boyd, 41 Cal-App. at p. 524 [emphasis added].) Thus, Boyd, supra, held _ 44 - that the powerto “regulate” includes the powerto “forbid” or “prohibit”in the context of the city’s nuisance laws. Young, supra, addressed the question whether the Legislature had delegated authority to a state agency to impose a “complete ban” on commercial collecting of reptiles and amphibians, and concludedthat (1) the agency in fact had not imposed a “complete ban,” and (2) ‘“{[e]ven assuming, arguendo, that the Commission had adopted a complete ban ..., it would have been within its delegated authority.” (Young, 124 Cal.App.3d at p. 277.) Thus, Young held that the agencyhad not imposed a “complete ban” but would have had the powerto do so underthe statute. Neither Boyd nor Young is relevanthere. Contrary to the Petitioners’ argument, there is no categorical distinction between the government’s powerto “regulate” and its powerto 35> 6Ge“prohibit. [Every] regulation necessarily speaksas a prohibition.’” (Metromedia, Inc. v. City ofSan Diego (1980) 26 Cal.3d 848, 863-864, overruled on other grounds in Metromedia, Inc. v. City ofSan Diego (1981) 453 U.S. 490 and quoting Goldblatt v. Hempstead (1962) 369 U.S. 590, 592 [8 L. Ed. 2d 130, 133, 82 S. Ct. 987].) Whether the powerto “regulate” includes the powerto “prohibit” depends on the context in which the terms are used, andthe interpretation of the statute in which they are found. (See Metromedia, Inc., at pp. 863-864 [“The distinction between prohibition and regulation in this case is one of words and not substance. (Citation.)]”.) -45- The context in which the word “regulate” is used in section 11362.83 plainly indicates that the Legislature did not intend to preempt local laws banning medical marijuana dispensaries, for several reasons. First, putting aside the fact that section 11362.83 does not mention medical marijuana “dispensaries,” the provision is written in non-preemptive rather than preemptive form. Theprovision does notstate that it limits the authority of local governments in any way. Instead, the provision states that “[n]othing in this article shall prevent” a local government from adopting ordinancesthat “regulate” the location, operation or establishment of a medical marijuana cooperative or collective. Since the provision does not “prevent” the authority of local governments to “regulate” marijuana cooperatives and collectives, the provision forecloses any argumentthat the regulatory authority of local governments is preempted—butpointedly does not preemptthe authority of local governments to adopt additional regulations, such as regulations prohibiting marijuana dispensaries. Thus, section 1 1362.83 establishes a floor rather than a ceiling concerning local regulatory authority. Since the provision is written in non-preemptive form, it cannot properly be construed as preempting local authority to ban medical marijuana dispensaries. As this Court has stated, state law presumptively does not preemptlocal lawsin areastraditionally regulated by local governments in the absence of“a clear indication of preemptive intent from the Legislature.” (4dction Apartment, supra, 41 Cal.4th at p. - 46 - 1242.) Second,section 1 1362.83 onits face states that local governments may regulate not only the “location” and “operation” of marijuana collectives and cooperatives, but also their “establishment.” The authority to regulate the “establishment”of collectives and cooperatives includes the authority to prohibit their “establishment.” Section 11362.768 includes other language authorizing local governments to regulate the “operation” of cooperatives and collectives. Therefore, the powerto regulate their “establishment” necessarily includes more than the powerto limit their “operation,” and includes the powerto prohibit their establishment in the first instance. The Petitioners’ argumentthat local governments cannot prohibit marijuana dispensaries would read the word“establishment”out of the statute, by giving the word the same meaning as the word “operate,” whichts already in thestatute. Finally, and most importantly, section 1 1362.83—readin the context of the entire CUA and MMPA—makesclearthat the provision does not preemptlocal ordinances that ban marijuana dispensaries. ‘“‘A statute must construed “in the context of the entire statutory system of whichit is a part, in order to achieve harmony amongthe parts.” [Citation.]’” (People v. Hull (1991) 1 Cal.4th 266, 272.) As this Court has stated, the primary focus of the CUAis to provide immunity from criminal liability for persons whose conductis authorized underthe statutes. (Ross, supra, 42 Cal.4th at _47- pp. 926-931.) Since the MMPAclarifies and implements the CUA,the MMPAexpandsthe list of criminal statutes for which immunityis provided, but does not otherwise preemptlocal authority to regulate, and prohibit, the establishment of marijuana dispensaries. Thus, the CUA and the MMPAdo not preemptlocal authority to prohibit marijuana dispensaries, as long as local regulations do not criminalize conductthatis authorized underthe statutes. In addition, the CUA and the MMPA authorize local governments not only to “regulate” marijuana cooperatives and collectives, as expressly provided in section 11362.83, but also to “further restrict” the “establishment” of marijuana dispensaries, as expressly provided in the savings clause of subdivision (f) of section 11362.768. The authority of local governmentsto “further restrict” the “establishment” of marijuana dispensaries plainly indicates that local governments haveauthority to prohibit their establishment. Lastly, the legislative history of sections 11362.768 and 11362.83, described above, plainly indicates that the Legislature did not intend to preemptthe traditional authority of local governments undertheir police powerto prohibit the establishment of marijuana dispensaries, and to adopt zoning and land use ordinancesto thateffect. 4. Contrary To ThePetitioners’ Argument, This Court’s Decision In O’Connell v. City OfStockton Is Not Apposite Here. The Petitioners argue that this Court’s decision in O'Connell v. City - 48 - ofStockton, supra, supports the conclusion that the City of Riverside’s ordinance is preempted here. (App. Br. 28-29, 36.) In O'Connell, this Court considered whether the California Uniform Controlled Substances Act (“UCSA”)—whichauthorizes forfeiture of vehicles used for the commission of certain criminal acts, and establishes penalties for their commission—preempted a City of Stockton regulation that also provided for forfeiture of vehicles used to commit suchacts and established penalties for their commission. O'Connell is entirely inapposite here. O'Connell wasa field preemption case, addressing the preemptive effect of the USCA on “the field of penalizing crimes involving controlled substances.” (O'Connell, supra, 41 Cal.4th at p. 1071.) Thefirst step in any field preemption analysis is to define the relevant field. (California Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th 177, 188; People v. Orozco (1968) 266 Cal.App.2d 507, 513.) As indicated above, O'Connell did so carefully, focusing its analysis on the “comprehensive nature of the UCSAin defining drug crimes and specifying penalties” and defining the preempted field accordingly. This case involves none ofthose things. The field in question here is the civil regulation of the "establishment" of marijuana dispensaries (which underPetitioners’ theory are not criminal) - not punishmentofdrug crimes. Whateverthe outer contours of the “field of penalizing crimes involving controlled substances”at issue in O'Connell, they do not _ 49 - encompass non-criminal zoning provisions affecting medical marijuana- related land uses.” Perhaps more importantly, O'Connell itself noted that even where a field is legitimately occupied by state law, the Legislature “can, of course, expressly authorize local entities to enact ordinances such asthe onein this case that we conclude is preempted underexisting law.” (O'Connell, supra, 4\ Cal.4th at p. 1076, fn. 4.) In this case, the Legislature has enacted precisely such an authorization, broadly affirming the powerofcities and counties to adopt local ordinancesthat “regulate the . . . establishment” or marijuana-related land uses. (§ 11362.83. See also § 11362.768.) As noted above, this conclusively eliminates any suggestion offield preemption, and makesPetitioners’ reliance on O'Connell wholly untenable. “Although the CUA and MMPAarephysically located amidst the Health and Safety Code sections comprising the UCSA,they were adopted at different times, and serve plainly different purposes. The CUA and MMPA were notat issue (or even mentioned) in O'Connell, and there is absolutely no suggestion that medical marijuana-related matters were contemplated by that Court. Petitioners’ reliance upon some of O'Connell's broad language regarding the UCSA’s “comprehensive enactmentof penalties for crimes involving controlled substances,” and suggestion that this must overwhelm the field of medical marijuana regulation due simply to the physical placement of the CUA and MMPAprovisionsrelative to the UCSA,is consequently specious. “Cases are not authority for propositions they do not consider.” (People v. Martinez (2000) 22 Cal.4th 106, 118.) Il. THE COURT MUST CONSTRUE THE COMPASSIONATE USE ACT AND THE MEDICAL MARIJUANA PROGRAM ACT AS RETAINING MUNICIPAL POWER TO REGULATE LAND USE, INCLUDING THE POWER TO BAN DISPENSARIES, BECAUSE A CONTRARY INTERPRETATION WOULD CONFLICT WITH THE FEDERAL CONTROLLED SUBSTANCES ACT AND VIOLATE THE SUPREMACY CLAUSE As noted, the plain text and legislative history of the CUA and MMPA,aswell as this Court’s repeated recognition that local authority over land use decisions must be presumedabsent the Legislature’s clear intention to displace it, makeit clear that the statutes cannot be interpreted as preempting the powerof municipalities to ban medical marijuana dispensaries within their borders. Yet to the extent there are any doubts as to whether the state provisions have somehowpreempted local authority, they must be resolved against any interpretation that requires local entities to sanction medical marijuanafacilities. This is because such an interpretation necessarily runs afoul of the federal CSA and would consequently require the invalidation of the state provisions under the Supremacy Clause of the United States Constitution. A. This Court Must Avoid Any Interpretation Of The CUA And MMPAThat Conflicts With The Federal Controlled Substances Act And Results In Invalidation Of The State Provisions Under The Supremacy Clause It is axiomatic that in interpreting a statute, this Court will avoid any interpretation that may run afoul of the United States Constitution. (People v. Davenport (1985) 41 Cal.3d 247, 266 [“If[] questions about the constitutional validity of the statute may be avoided by adopting an alternate construction whichis consistent with the statutory language and purpose,it is [the court’s] duty to adopt the alternate construction”}; Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191, 1201 [avoiding commerce clause issues because the Court “would not construe a statute in a manner that raised serious constitutional questionsif the statute’s language reasonably permitted any other construction’’].) The federal CSA, 21 U.S.C. § 801 et seq., “prohibits the manufacture and distribution of various drugs, including marijuana.” (United States v. Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483, 486.) “Whereas some other drugs can be dispensed and prescribed for medical use, see 21 U.S.C. § 829, the sameis not true for marijuana. Indeed, for purposes of the Controlled Substances Act, marijuana has ‘no currently accepted medicaluse’at all.” (/d. at 491, quoting 21 U.S.C. § 812; see also Gonzales v. Raich (2005) 545 U.S. 1, 14 [“In enacting the CSA, Congress classified marijuana as a Schedule I drug. 21 U.S.C. § 812(c).... Schedule I drugs are categorized as such becauseoftheir high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1)’].) As wediscuss, tf this Court concludes that the CUA and the MMPA require the City of Riverside to affirmatively permit medical marijuana dispensarics to operate within its borders, then the CSA preempts California law. This is because a state law requiring municipalities to esfacilitate the sale of marijuana would plainly “‘stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’” and thus violate the Supremacy Clause. (Geier v. American Honda Motor Co., Inc. (2000) 529 U.S. 861, 899, quoting Hines v. Davidowitz (1941) 312 U.S.52, 67.) B. Petitioners’ Concession That Interpreting State Provisions As RequiringMunicipalities To Permit Dispensaries Necessarily Represents A Departure From Federal Law MakesIt Clear That Such A Construction Violates The Supremacy Clause, Because Federal Law Is A Core Component Of State Law And A State May Not Part Ways With Federal Law Merely Because The State Disagrees With The Federal Law Petitioners concludetheir brief with this remarkable statement: “Our state’s medical marijuana laws cannotbe ignored byourstate officials because they conflict with federal law. [Citations].” (App. Br. 39.) The City of Riverside’s zoning ordinance mustbeset aside, in Petitioners’ view, because California, through the CUA and the MMPA,“decidedto part ways with the federal government’s intolerance with marijuana use for medical treatment.” (/d.at 5.) Petitioners fundamentally misunderstandthe relationship between state and federal law. To be sure, underprinciples of federalism, California is entirely free to “create a narrow exception to the [state’s] criminal law,” (Ross, supra, 42 Cal.4th at p. 929), or even to repeal its own criminalization of marijuana entirely. As this Court stated in Ross: “Although California’s voters had no powerto change federal law,certainly they were free to disagree with Congress’s assessment of marijuana, and they also werefree to view the possibility of beneficial medical use as a sufficient basis for exempting from criminalliability under state law patients whose physicians recommendthe drug.” (/d. at p. 927.) It is one thing to repeal a state criminal prohibition, or to send a message,throughstate legislation, to Congress, to urge it to amend the federal marijuana laws. It is something else entirely to ask this Court to enforce “[o]ur state’s medical marijuana laws” despite the fact that “they conflict with federal law.” (App. Br. 39.) A state does not have the option of declining to follow federal law becauseit disagrees with that law. Rather, federal law constitutes a core part of California’s law, binding on state courts, state governmentofficials, and municipalofficials alike. Indeed, Petitioners’ assertionsfly in the face of over a century of the United States Supreme Court’s unambiguous teachings. (See Claflin v. Houseman (1876) 93 U.S. 130, 136-137 [“The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. .. . [A state] is just as much boundto recognize [federal law] as operative within the State as it is to recognize the State laws. The two together form one system ofjurisprudence, which constitutes the law of the land for the State”]; Mondou v. New York, New Haven, & Hartford Railroad Co. (1912) 223 i ta n f f ' U.S. 1, 57 [When Congress, in the exertion of the power confidedto it by the Constitution, adopted thatact, it spoke forall the people and all the States, and thereby established a policy for all. That policy is as much the policy of [the State] as if the act had emanated from its ownlegislature”’]; Howlett v. Rose (1990) 496 U.S. 356, 367 [“[T]he Constitution and laws passed pursuantto it are as muchlawsin the States as laws passed by the state legislature. The Supremacy Clause makes those laws ‘the supreme Law of the Land,’ and chargesstate courts with a coordinate responsibility to enforce that law”].)*° Asthis Court has recently stated,“t]he supremacy clause of the United States constitution establishes a constitutional choice-of-law rule, makesfederal law paramount, and vests Congress with the powerto preemptstate law. [Citations.]” (Viva! Internat. Voice For Animals vy. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935.) Petitioners plainly acknowledgethat to the extent the CUA and the MMPA “As the legal scholar Henry Hart put it nearly sixty years ago: ‘‘The law which governsdaily living in the United States is a single system of law: it speaksin relation to any particular question with only one ultimately- authoritative voice, howeverdifficult it may be on occasion to discern in advance which oftwo or more conflicting voices really carries authority. . . . People repeatedly subjected, like Pavlov’s dogs, to two or more inconsistent sets of directions, without meansof resolving the inconsistencies, could not fail in the end to react as the dogs did. The society, collectively, would suffer a nervous breakdown.” (Henry M.Hart, Jr., The Relations Between State and Federal Law (1954) 54 Colum.L.Rev. 489, 489; sce also Nelson, Preemption (2000) 86 Va. L.Rev. 225, 246 [“[F]ederal statutes take effect automatically within each state and form part of the same body ofjurisprudenceasstate statutes”].) ‘ a a r i require the City of Riverside to permit medical marijuana dispensaries, this conflicts with federal law. This dooms anysuchinterpretation underthe Supremacy Clause.*° But even putting aside Petitioners’ concession, as we discuss,it 1s clear that any interpretation of the CUA and MMPAthatrequires municipalities to permit medical marijuana dispensaries necessarily conflicts with, and stands as an obstacle to accomplishment of the purposes underlying, the federal CSA. Hence, any suchinterpretation runs afoul of the Supremacy Clause and mustberejected. C. The Preemption Provision Of The CSA,21 U.S.C. § 903, Instructs Courts To Displace State Law When It Conflicts With Or Otherwise Poses An Obstacle To The Accomplishment Of The Full Purposes And Objectives Of The CSA. “There are four species of federal preemption: express, conflict, obstacle, and field.” (Viva! Internat., supra, 41 Cal.4th at p. 935.) This case concernsconflict (also known as impossibility) and obstacle (also *The Fourth District Court of Appeal has incorrectly taken the view that a municipality must follow state law even whenit conflicts with federal law. The court’s fundamentally flawed premiseis that the obligation to follow federal law 1s a form of conscription that violates principles of federalism. (See City ofLake Forest v. Evergreen Holistic Collective (Feb. 29, 2012, G043909) _Cal.App.4th__, fn. 12.) Not so. While the federal government may not commandeerstate or local executive or legislative officials to pass legislation or actually enforce federal law (e.g., raid medical marijuana facilities), see Printz v. United States (1997) 521 US. 898, 929, state courts have an obligationto insist that all state and all local officials follow and obey federal law even, and especially, when state and federal law conflict. knownasfrustration-of-purpose) preemption -- two categories which typically run together and are most frequently jointly classified under the heading “conflict preemption.” (See /d.at p. 935, fn. 3 [The categories of preemptionare notrigidly distinct,” quoting Crosby v. National Foreign Trade Council (2000) 530 U.S. 363, 372, fn. 6, internal quotations marks omitted].)*” Central to the analysis is section 903 of the CSA,the statute’s preemption provision, which provides: Noprovision of this subchapter shall be construedas indicating an intent on the part of the Congress to occupythe field in which that provision operates, including criminalpenalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a Both this Court and the United States Supreme Court have grouped conflict preemption (which asks whether “simultaneous compliance with both state and federal directives is impossible”) and obstacle preemption (which asks whetherthe state law at issue ‘“‘stands as an obstacle to the accomplishment and execution ofthe full purposes and objectives of Congress’’’) together, as a single category. (Viva! Internat., supra, 41 Cal.4th at p. 936; Geier, supra, 529 U.S.at p. 873 [“The Court has not previously driven a legal wedge, only a terminological one between ‘conflicts’ that preventor frustrate the accomplishmentof a federal objective and ‘conflicts’ that make it ‘impossible’ for private parties to comply with both state and federal law. Rather, it has said that both forms of conflicting state law are ‘nullified’ by the Supremacy Clause”]; Crosby, supra, 530 U.S. pp. 372-373 [“State law is naturally preempted to the extent of any conflict with a federal statute. We will find preemption where it is impossible for a private party to comply with both state and federal law ..., and where ‘underthe circumstancesof[a] particular case, [the challenged state law] stands as an obstacle to the accomplishmentand execution ofthe full purposes and objectives of Congress,””internal citations omitted].) positive conflict between that provision ofthis subchapter and that State law so that the two cannot consistently stand together. (21 U.S.C. § 903.) Congressionalintent in this provision is clear from the plain meaning ofthe text: Congress wishedto allow states to create their own criminal penalties for drug-related conductthat also violates the CSA, while at the same time forbidding states from enacting statutes that have the effect of undermining the CSA. The CSAserves,effectively, as a floor, whichstates are free to build upon and enhance, but not undermine, through legislation of its own. In the parlance of preemption, Congressin section 903 wishedto disclaim field preemption and, at the same time, embrace conflict and obstacle preemption.”® This natural reading comports with the United States Supreme Court’s approach in preemption cases. In BuckmanCo.v. Plaintiff’s Legal Com. (2001) 531 U.S. 341, 352, the Court rejected an argumentthat the existence of an express preemption clause in a federal statute precluded the full range of conflict and obstacle preemption analysis. “[T]hat contention must fail,” the Court wrote, “in light of our conclusion last Term in [Geier, supra, 529 U.S. 861], that neither an express pre-emption provision nor a “See also Mikos, On the Limits ofSupremacy: Medical Marijuanaandthe States’ Overlooked Powerto Legalize Federal Crime (2009) 62 Vand. L.Rev. 1421, 1451 (“[A] positive conflict would scem to arise anytime a state engagesin, requires, or facilitates conduct or inaction that violates the CSA.”) saving Clause ‘bar[s] the ordinary working of conflict pre-emption principles.’” (Buckman, supra, 531 U.S. at p. 352.) In Geier, forits part, the Court held that the existence of express preemption language and a saving clause in statute “imposes no unusual, ‘special burden’ againstpre- emption.” (Geier, supra, 529 U.S. at p. 873.) Instead, the Court foundit essential to consider both conflict and obstacle preemption in cases where the federal statute in question contains an express preemption provision and/or a saving clause. “Congress,” the Court noted, “would not want either kind of conflict” (ibid.); “‘the Court has thus refused to read general ‘saving’ provisionsto tolerate actual conflict both in cases involving impossibility, [citation}, and in ‘frustration-of-purpose’ cases.” (/d. at pp. 873-874.) In the absence of both types of preemption analysis, the Court noted, “state law could impose legal duties that would conflict directly with federal regulatory mandates.” (/d. at p. 871.) Failure to apply the full run of ordinary preemption principles would also “engenderlegal uncertainty with its inevitable systemwide costs (e.g., conflicts, delay, and expense)as courts tried sensibly to distinguish amongvarieties of ‘conflict? (which often shade, one into the other) when applying this complicatedrule to the many federal statutes that contain some form of an express pre-emption provision, a saving provision, or as here, both.” (/d. at p. 874; accord Sprietsma v. Mercury Marine (2002) 537 U.S. 51, 64 [applying conflict and obstacle preemption analysis when statute contains preemption clause and saving statute]; Williamson v. Mazda Motor ofAmerica, Inc. (2011) __ U.S. —_, 131 S.Ct. 1131, 1136 [same].) Nonetheless, despite uniform authority from the United States Supreme Court, the Fourth District Court of Appeal has held that section 903 only embraces conflict or impossibility preemption, and forecloses any inquiry into obstacle or frustration-of-purpose preemption. (County ofSan Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 825 [“Because Congress provided that the CSA preempted only lawspositively conflicting with the CSA sothat the two sets of laws could not consistently stand together, and omitted any reference to an intent to preempt laws posing an obstacle to the CSA,weinterprettitle 21 United States Code section 903 as preempting only those state laws that positively conflict with the CSA so that simultaneous compliance with both sets of laws is impossible’’].) Underthis reading of section 903, preemption would potentially be inappropriate in this case becauseit is in theory possible for a private party to comply with both federal and state law: A person could choosenotto open a medical marijuana dispensary and thus avoid the conflict between state authorization and federal prohibition. Asnoted, the San Diego NORML court’s reading ofsection 903 is flatly contrary to Geter, Buckman and Sprietsma. Moreover, it cannot be reconciled with the Supreme Court’s subsequent decision in Wyethv. Levine (2009) 555 U.S. 555. Wyeth addressed the preemptive effect ofthe - 60 - Federal Food, Drug & Cosmetic Act, which contained a saving clause similar to the one in this case. The saving clause in Wyethstated that “a provision of state law would only be invalidated upon a direct and positive conflict with the” federal statute. (/d. at p. 567.) The Court did not concludethat “direct and positive conflict” language permitted only the application of conflict or impossibility preemption. To the contrary,it analyzed the state law thoroughly underprinciples of both conflict and obstacle preemption. (/d. at pp. 567-576.) It is necessary to do the same in this case. Indeed, in Emerald Steel Fabricators, Inc. v. Bureau ofLabor & Industries (Or. 2010) 230 P.3d 518, 527-28, the Oregon Supreme Court, citing Wyeth, analyzed both conflict and obstacle preemption in a medical marijuana case, before concluding that obstacle preemption invalidated the state statute. The CSA consequently preempts Petitioners’ construction ofthe CUA and the MMPA,if requiring municipalities to host medical marijuana dispensaries either renders it “impossible for a private party to comply with eeboth state and federal law”or“‘stands as an obstacle to the accomplishment and execution ofthe full purposes and objectives of Congress’”such that “the state law underminesthe intended purpose and‘natural effect’” of the CSA. (Crosby, supra, 530 U.S. at pp. 372-373.) - 6 - D. State Law Requiring Municipalities To Permit Medical Marijuana Dispensaries Conflicts With The CSA Because It Stands As An Obstacle To The Accomplishment And Execution Of The Full Purposes And Objectives Of Congress The CSA constitutes a “comprehensive regime to combatthe international andinterstate traffic in illicit drugs.” (Raich, supra, 545 U.S. at p. 12.) Precisely because it seeks to be “comprehensive,” and views drugs as something worthy of “combat,” there is no room within the statutory schemefor the undermining state law commandsPetitioners seek to impose. (/bid.) The CSA’s main objectives “were to conquer drug abuse andto control the legitimate and illegitimate traffic in controlled substances. Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels.” (/d. at pp. 12-13, footnote omitted.) The result was a “closed regulatory system makingit unlawful to manufacture,distribute, dispense, or possess” marijuana and other Schedule I controlled substances. (/d. at p. 13.) Indeed, by classifying marijuana as a Schedule I drug, Congress concludedthatit had no “accepted medical use”(id. at p. 14) -- a conclusion that, under the SupremacyClause, is binding on California. Given these broad purposes, the CSA,in the words ofsection 903, ‘cannotconsistently stand together” with anystate law that requires municipalities to permit medical marijuana dispensaries to operate. There is a “positive conflict” between state and federal law: The CSA expressly - 62 - forbids the distribution of marijuana, medical or otherwise (21 U.S.C. §§ 841 subd. (a)(1), subd. 844(a)), while the CUA and the MMPArequire, in Petitioners’ reading, that each municipality in California facilitate marijuana’s very distribution by permitting dispensaries to operate. State law, as Petitioners urge this Court to view it, undermines the core purposes conquering marijuana’s abuseandtraffic via a closed regulatory system of federal law.*? Obstacle preemptionis the inevitable result. (See,e.g., Gade, supra, 505 U.S.at p. 105 [“‘[a]ny state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause,” quoting Perez v. Campbell (1971) 402 U.S. 637, 651-652). Neither the United States Supreme Court, nor this Court, has addressed a case wherea state law (as Petitioners contend) affirmatively requires subdivisionsofthe state to participate in and facilitate what the federal criminal law expressly forbids. Yet the Supreme Court has repeatedly found obstacle preemption in analogoussituations where the state law in question was arguably less intrusive on the federal interest than the wholesale erosion of the federal interest that Petitioners urge here. In Barnett Bank ofMarion County v. Nelson (1996) 517 U.S.25, 27, the unanimous Court considered “whether a federal statute that permits national banksto sell insurance in small towns pre-emptsa state statute that “State law must be evaluated for preemption purposes basednotjust on its purpose, but onits ‘“‘‘actual effect’” as well. (Gade v. National Solid Wastes Management Assn. (1992) 505 U.S. 88, 105.) ace -63- forbids them to do so.” Just as in this case one could in theory comply with both federal and state law simultaneously by not opening a medical marijuana dispensary, so too in Barnett Bank, the Court noted, one could comply with both statutes by not selling insurance. (/d. at p. 31.) Nonetheless, the Court held, obstacle preemption easily covered the case. Because the Federal Statute authorizes national banks to engage in activities that the State Statute expressly forbids[,] the State’s prohibition [of those activities] would seem to stan[d] as an obstacle to the accomplishment of one of the Federal Statute’s purposes... .” (/bid.) Michigan Canners & Freezers Assn. v. Agricultural Marketing & Bargaining Bd. (1984) 467 U.S. 461, is similarly on point. The federal Agricultural Fair Practices Act prohibited food producers’ associations from interfering with a particular producer’s “freedom to choose whetherto bring his products to market himself or to sell them through a producers’ cooperative association.” (/d. at p. 464.) State law, by contrast, permitted producers’ associations, undercertain conditions, to serve as the exclusive, binding bargaining agentforall producers of a particular commodity. (/d. at pp. 466-468.) To be sure, the unanimous Court noted,“this is not a case in whichit is impossible for an individual to comply with both state and federal law.” (/d. at p. 478, fn. 21). After all, while producers’ associations could apply to serve as the exclusive bargaining agents, they did not have to; they could leave individual producers free to sell on their own, as - 64 - federal law required. (/d. at p. 478.) But that was not enough to overcome obstacle preemption. The trouble was, once again,thatthe state statute empowered “producers’ associations to do precisely what the federal Act forbids them to do.” (/d. at pp. 477-478.) As a result of this logical contradiction between federal and state law, state law hadto step aside acebecauseit stood ““‘as an obstacle to the [] accomplishment and execution of the full purposes and objectives of Congress.’” (/d. at p. 478, quoting Hines, supra, 312 U.S.at p. 67.) So too, here, State law, as Petitioners readit, logically contradicts federal law. It commandeers municipalities and requires them “to do precisely what the federal Act forbids”, namely, permit medical marijuana dispensaries to operate, even though federal law does not recognize medical marijuana andprohibits the very distribution of marijuana that dispensaries are designedto facilitate. By requiring municipalities such as the City of Riverside to authorize these dispensaries, California is undermining the purposes and objectives of the CSAin precisely the same waythat Michigan undermined the Agricultural Fair Practices Act in Michigan Canners. Indeed, requiring municipalities to permit medical marijuana dispensaries would affirmatively promote the use and potential proliferation of maryuana, the very thing the CSA wishesto prevent. Nash v. Florida Industrial Com. (1967) 389 U.S. 235 further illustrates this principle. The National Labor Relations Act provided for the - 05 - National Labor Relations Board to conduct unfair labor practice proceedings. Florida law, meanwhile, barred those unemployedas result of a labor dispute from receiving unemploymentbenefits. Although one could comply with both federal and state law by not filing a labor complaint, the Florida law was preempted, the Court held, because “‘it appears obviousto us that this financial burden which Florida imposeswill impederesort to the Act and thwart congressional reliance on individual action. A national system for the implementation of the country’s labor policies is not so dependenton state law. Florida should not be permitted to defeat or handicap a valid national objective. ...” (/d. at p. 239.) Again,that is the case here. California is not permitted to defeat or handicapa valid national objective a closed system for controlling and preventing the distribution of marijuana by requiring municipalities to have medical marijuana dispensaries that their zoning laws do not otherwise permit. Drawing on Barnett Bank and Michigan Canners, the Oregon Supreme Court has embraced this obstacle preemption analysis. In so doing, it emphasized the distinction between state laws that exempt the use of medical marijuana from criminal liability and state laws that _ affirmatively authorize the use of medical marijuana. (Emerald Steel, supra, 230 P.3d at pp. 527-533.) A state is free to alter its criminal law asit sees fit, the court correctly noted, because Congress may not commandeer - 66 - state legislatures, forcing them to enact particular laws. (See NewYork v. United States (1992) 505 U.S. 144.) At the sametime, the court wrote, if a state goes beyond creating a new affirmative defense or decriminalization, but also authorizes particular conduct, Congress has the authority to preemptthat authorization in order to achievea particular policy objective. (Emerald Steel at 230 P.3d at pp. 533-534; see also New York v. United States, supra, 505 U.S.at p. 168 [the view taken bystate legislatures “can always be preempted under the Supremacy Clauseifit is contrary to the national view,but in such a caseit is the Federal Governmentthat makes the decision in full view of the public, and it will be federal officials that suffer the consequencesif the decision turns out to be detrimental or unpopular”].) Drawing on this distinction, the Oregon Supreme Court held that employers need not accommodate medical marijuana use, even though state law requires it, because state law that in any wayauthorizes, as opposed to merely decriminalizes, marijuana use is preempted becauseit frustrates the purposes of the CSA. In this case, requiring municipalities to permit medical marijuana dispensaries goes well beyond creating an exception to the State’s criminal law: It affirmatively authorizes and facilitates the use of marijuana and so stands as an obstacle to achievement of Congress’ clear and ambitious goals inthe CSA. There is consequently a “positive conflict” between the CSA on the one hand and the CUA and MMPAonthe other. To the extent - 67 - that the CUA and the MMPArequire the City of Riverside to permit medical marijuana dispensaries, state and federal law ‘cannotconsistently stand together.” (21 U.S.C. § 903.) The City submits that the only way to avoid a construction of the MMPAand CUAthatis at odds with the Supremacy Clause ofthe federal Constitution is to construe it consistent with its plain language,legislative history and the longstanding deference to municipal control of land use —as allowing municipalities the ability to regulate, including ban, medical marijuanadispensaries.” HI Mf HI MI II M1 MI /II HI Mf MI 40 - : Indeed, Government Code section 37100 expressly recognizes federal supremacyoverland use regulation. - 68 - CONCLUSION This Court should affirm the decision of the court of appeal, which held that the Compassionate Use Act and the Medical Marijuana Program Act do not preemptthe City of Riverside’s zoning regulations prohibiting the establishment of medical marijuana dispensaries and therefore that the trial court’s order granting the preliminary injunction wasproper. Dated: April 26, 2012 Best Best & Kreger|CLP oylag Jeffrere figyVDunn lefipyV E. Walston Attorneys for Respondent City of Riverside - 69 - CERTIFICATION OF WORD COUNT Pursuant to Rule 8.204(c)(1) of the California Rules of Court, | certify that the City of Riverside’s Respondent’s Brief, which was delivered to this Court via overnight delivery on April 26, 2012, contains 13,990 wordsas calculated by the word count function of the word processing program used to preparethe brief. DATED: Apmil26, 2012 BEST BEST & KRIEGER LLP WNT Jer/} Dunn Roderick E. Walston Attorneys for Respondent City of Riverside 28770.000037378 163 | _ 70 - I R V I N E , C A L I F O R N I A 9 2 6 1 4 D P A R K P L A Z A , D U l I e F D U t o a 6 i ) t O N o L n t m + t O a 26 28 PROOF OF SERVICE At the time of service I was over 18 years of age and not a party to this action. My business address ts 5 Park Plaza, Suite 1500, Irvine, California 92614. On April 26, 2012, I servedthe following document(s): RESPONDENT'S BRIEF ON THE MERITS By United States mail. [ enclosed the documents in a sealed envelope or package addressedto the persons at the addresses listed below(specify one):* Placed the envelope for collection and mailing, following our ordinary business practices. [ am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Irvine, California. By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed below. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier.** California Supreme Court J. David Nick 350 McAllister Street, Room 1295 Law Offices of J. David Nick San Francisco, CA 94102-7303 345 Franklin Street **Via Overnight Delivery San Francisco, CA 94102 Original + 14 Copies *Via U.S. Mail | Copy Editte Dalya Lerman Law Office of E.D. Lerman 695 South Dora Street Ukiah, CA 95482 *Via U.S. Mail | Copy I declare under penalty of perjury under the laws ofthe State of Californiathat the abovets true andcorrect. Executed on April 26, 2012, at Irvine, California. 2S FTO OOO FASO207 | PROOF OF SERVICE