Facts:THE PEOPLE OF THE STATE OF CALIFORNIA et al. v. G3 HOLISTIC, INC

FACTUAL AND PROCEDURAL BACKGROUND:

On November 15, 2009, G3 Holistic, a nonprofit mutual benefit corporation, began operating an MMD in Upland. On November 23, 2009, G3 Holistic applied for a business license. G3Holistic’s business license application and articles of incorporation disclosed G3 Holistic’sintent to operate an MMD in Upland. Upland did not issue G3 Holistic a business license.

On November 24, 2009, Upland Code Enforcement Officer Michael Ollis sent G3 Holistic a notice of violation, demanding that G3 Holistic stop operating its MMD business. Officer Ollis notified G3 Holistic that it was in violation of Upland Municipal Code (UMC) section 5.04.090 because G3 Holistic was operating without a business license. UMC section 5.04.090A provides that: “It is unlawful for any person to transact and carry on any business, trade, profession, calling or occupation in the city without first having procured a license from the city . . . or without complying with any and all applicable provisions of this title and the Upland Municipal Code.” The notice of violation also stated that, under UMC section 17.12.050E: “No medical marijuana dispensary . . . shall be permitted in any zone within the city.” Officer Ollis warned G3 Holistic that the notice of violation order might result in the issuance of a citation or other legal action by the city attorney’s office.

Between December 2009 and March 2010, Upland City Attorney William Curley discussed the notice of violation with G3 Holistic’s chief executive officer, Aaron Sandusky, and G3 Holistic’sattorney, Rajan Maline. Curley told Maline that Upland’s zoning provisions did not allow MMD’s as a permissible use in Upland and that G3 Holistic must cease its operations immediately. On March 8, 2010, Curley sent Maline a letter asking whether G3 Holistic would voluntarily close down its illegal MMD business in Upland. In response, Maline told Curley that G3Holistic believed its business was legal and would not close.

On March 15, 2010, plaintiffs filed a complaint against G3 Holistic and the property owner, Magna & Magna, for declaratory relief and a preliminary and permanent injunction to abate G3Holistic’s MMD as a public nuisance. The complaint alleged G3 Holistic was required to have a business license to transact business in Upland under UMC section 5.04.090A. Selling marijuana is not a permitted use in the highway commercial zone where G3 Holistic was located, under UMC chapter 17.74 and UMC section 17.12.130, and MMD’s are not permitted in any zone within Upland under UMC section 17.12.050E. Any use of real property contrary to Upland’s zoning code is unlawful and a public nuisance under UMC section 17.12.170. G3Holistic was conducting a business without a license and selling marijuana to the public. The property owner, Magna & Magna, was aware G3 Holistic was illegally conducting business on Magna & Magna’s property. Plaintiffs requested the court to enjoin G3 Holistic from conducting business in Upland without first obtaining a license. Plaintiffs also requested the court to enjoinG3 Holistic from selling marijuana and Magna & Magna from assisting G3 Holistic. In addition, plaintiffs requested the court to declare G3 Holistic’s MMD business a public nuisance per se.G3 Holistic answered the complaint.

In June 2010, plaintiffs filed a motion for a preliminary injunction, seeking to shut down G3Holistic’s MMD. On August 13, 2010, the trial court heard the motion and issued a preliminary injunction prohibiting G3 Holistic from operating an MMD in Upland. G3 Holistic nevertheless continued operating its MMD until September 20, 2010, when G3 Holistic agreed to close.

In the meantime, on August 19, 2010, G3 Holistic filed a motion to vacate the preliminary injunction on the ground Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734 (Qualified), decided on August 18, 2010, undermined case law relied upon by the trial court in granting plaintiffs’ preliminary injunction (City of Corona v. Naulls (2008) 166 Cal.App.4th 418[Fourth Dist., Div. Two] (Naulls); City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153 (Kruse)). The trial court heard and denied the motion to vacate, concluding Qualified was not dispositive and did not undermine case law relied upon by the court in granting the preliminary injunction.

After G3 Holistic finally closed down its MMD, the parties stipulated on September 17, 2010, that the preliminary injunction issued on August 13, 2010, would be deemed the permanent injunction for purposes of appellate review.

In October 2010, plaintiffs filed a motion for attorney fees and costs. On November 30, 2010, the court signed and filed a judgment of permanent injunction and awarded fees and costs to Upland in the amount of $5,000. Also on November 30, 2010, the trial court filed and signed an order awarding fees and costs in the amount of $5,000, incurred in connection with contempt proceedings to enforce the court’s September 13, 2010 order.

On March 25, 2011, this court issued an order denying G3 Holistic’s request that G3 Holistic’snotice of appeal, filed on January 3, 2011, be treated as incorporating G3 Holistic’s appeal from the order of contempt on September 13, 2010 and related award of attorney fees and costs. This court ordered the matter challenging fees and costs be treated as a petition for writ of certiorari and argued in G3 Holistic’s opening brief in this appeal.

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California Supreme Court Marijuana Cases in 2012

Here is a summary of the pending cases to be heard By the CA Supreme Court.  There are four cases, and we will be giving extensive information on the issues to be decided in the coming months. Stay tuned, because as soon as the court announces the schedule for oral arguments, we will send out word.

  • City of Riverside v. Inland Empire Patient’s Health & Wellness Center, Inc., S198638. (E052400; 200 Cal.App.4th 885; Riverside County Superior Court; RIC10009872.) Petition for review after the Court of Appeal affirmed the judgment in a civil action.
  • People v. G3 Holistic, Inc., S198395. (E051663; nonpublished opinion; San Bernardino County Superior Court; CIVRS1002649.) Petition for review after the Court of Appeal affirmed the judgment in a civil action.
  • Pack v. Superior Court, S197169. (B228781; 199 Cal.App.4th 1070; Los Angeles County Superior Court; NC055010.) Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate.
  • Traudt v. City of Dana Point, S197700. (G044130; 199 Cal.App.4th 886; Orange County Superior Court; 30-2010-00373287.) Petition for review after the Court of Appeal dismissed the appeal in a civil action.

These cases present issues concerning preemption, under federal or state law, of local ordinances regulating or banning the operation of medical marijuana dispensaries and related activities, and standing to challenge such ordinances.

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