Facts: CITY OF RIVERSIDE v. INLAND EMPIRE PATIENT’S HEALTH AND WELLNESS CENTER, INC.

FACTUAL AND PROCEDURAL BACKGROUND

Inland Empire Center is a nonprofit mutual benefit corporation established for the purpose of facilitating an MMD located in Riverside. Inland Empire Center’s MMD is a nonprofit collaborative association of patient members, who collectively cultivate medical marijuana and redistribute it to each other. Inland Empire Center has operated its MMD in Riverside since 2009.

Defendant Lanny Swerdlow (Swerdlow) is a registered nurse and manager of an adjacent, separate medical clinic, THCF Medical Clinic, unassociated with the MMD. Defendant William Joseph Sump II is an Inland Empire Center board member and general manager of Inland Empire Center’s Riverside MMD. Defendants Meneleo Carlos and Filomena Carlos (the Carloses) own the property upon which the MMD is located and lease the

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property to Swerdlow. Defendant Angel City West, Inc. (Angel), provides management services for the property.

In January 2009, Riverside’s Community Development Department planning division sent Swerdlow a letter stating that Riverside’s zoning code prohibits MMD’s in Riverside. In May 2010, Riverside filed a complaint against Angel, Swerdlow, Sump,4 the Carloses, East West Bancorp, Inc.,5 and THCF Health and Wellness Center,6 for injunctive relief to abate public nuisance. The complaint alleges Inland Empire Center’s MMD constitutes a public nuisance, in violation of Riverside’s zoning code, Riverside Municipal Code (RMC) section 6.15.020.Q. Riverside notified Swerdlow of the violation. Nevertheless, Swerdlow continues to operate the MMD.

Riverside’s complaint includes two causes of action, both alleging public nuisance, and prays for injunctive relief enjoining Inland Empire Center from operating its MMD in Riverside. Riverside alleges in the complaint that Inland Empire Center is located in a commercial zone. Under Riverside’s zoning code, MMD’s are prohibited. (RMC, §§ 19.150.020, 19.910.140.) Riverside’s zoning code further states that any use which is prohibited by state and/or federal law is strictly prohibited in Riverside. (RMC, § 19.150.020.) Any violation of Riverside’s municipal code is deemed a public nuisance under RMC sections 1.01.110 and 6.15.020.Q. Inland Empire Center’s MMD violates Riverside’s zoning code and is therefore a public nuisance subject to abatement.

Riverside filed a motion for a preliminary injunction, seeking to close Inland Empire Center’s MMD in Riverside. Riverside Police Detective Darren Woolley (Woolley) concluded in his supporting declaration that the medical clinic, “THCF Medical Clinic,” where Swerdlow worked as a nurse, was connected to Inland Empire Center’s MMD and referred patients to the MMD. Riverside requested the trial court to take judicial notice of various documents, including a report entitled, “California Police Chiefs Association’s Task Force On Marijuana Dispensaries” and a report by the Riverside County District Attorney’s Office, entitled, “Medical Marijuana: History and Current Complications.” Inland Empire Center objected to judicial notice of these documents. The court did not rule on the judicial notice request.

In support of Inland Empire Center’s opposition to Riverside’s motion for a preliminary injunction, Swerdlow states in his declaration that he managed the medical clinic Woolley claimed was associated with the MMP. According

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to Swerdlow, the medical clinic is not connected with the MMD. Woolley erroneously referred to Inland Empire Center’s MMD as the THCF Medical Clinic, which is at a different location nearby.

Inland Empire Center’s general manager, Sump, also provided a declaration supporting Inland Empire Center’s opposition, stating that Inland Empire Center had advised Riverside that it would be operating an MMD in Riverside. Sump further stated that Inland Empire Center had been lawfully operating its MMD and it did not constitute a nuisance to the surrounding community.

On November 24, 2010, the trial court heard Riverside’s motion for a preliminary injunction and granted the motion, concluding City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153 [100 Cal.Rptr.3d 1] (Kruse) controlled and therefore Riverside could use zoning regulations to prohibit MMD’s, “especially given the conflict between state and federal law.” The trial court added it was not finding that federal law preempted state law in this instance. The court acknowledged there was case law holding that there was no federal law preemption. The trial court entered a written order enjoining Inland Empire Center from operating its MMD on the Carloses’ property.

 

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