Case No CU-MC-CJC COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Transcription

1 Case No CU-MC-CJC COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE MALINDA TRAUDT, by and through her guardian ad litem, Shelly White, Petitioner and Appellant, vs. ORANGE COUNTY SUPERIOR COURT, Respondent. THE PEOPLE OF THE STATE OF CALIFORNIA ex rel. THE CITY OF DANA POINT, Real Party in Interest and Appellee. REAL PARTY IN INTEREST S RESPONSE IN OPPOSITION TO PETITION FOR WRIT OF SUPERSEDEAS Appeal From an Order Denying Petitioner s Application to Intervene, Orange County Superior Court of California Superior Court Case No CU-MC-CJC Honorable William M. Monroe, Judge (Dept. C-16) RUTAN & TUCKER, LLP A. PATRICK MUÑOZ (SBN ) DOUGLAS J. DENNINGTON (SBN ) JENNIFER FARRELL (SBN ) 611 Anton Boulevard, Fourteenth Floor Costa Mesa, California Telephone: Attorneys for Real Parties in Interest and Appellee, CITY OF DANA POINT

2 I. INTRODUCTION AND SUMMARY OF ARGUMENT Real Party in Interest City of Dana Point (the City ) filed this action to enjoin the continued operation of a medical marijuana dispensary, which has been (and currently is) operating in direct violation of the City s zoning provisions and municipal code. Petitioner 1 is not a party to the action, but sought to intervene in the proceedings below to enjoin the City s abatement efforts on the grounds that such abatement would infringe on what Petitioner claims is a fundamental right to use and access marijuana guaranteed by the California Constitution. The court below properly denied Petitioner s request for intervention on the grounds that Petitioner had already filed a separate lawsuit in the Orange County Superior Court asserting the identical constitutional claims and requesting the identical relief Petitioner sought through intervention in this action. To allow Petitioner to intervene in this action would violate the long-standing rule against claim splitting and dividing primary rights in two separate proceedings. (See Crowley v. Katleman (1994) 8 Cal.4th 666, 682.) Petitioner now seeks a writ of supersedeas to stay the proceedings below (to which she is not a party) pending resolution of her appeal of the order denying intervention. This Court should not issue a writ of supersedeas for each of the following independent reasons: 1 Hereinafter Petitioner refers to Petitioner and Appellant Malinda Traudt, acting by and through her guardian ad litem, Shelly White a07/13/10-1-

3 1. According to well-settled law governing writs of supersedeas, such writs are not to be issued in the context of self-executing orders such as an order denying intervention for which no further process is needed for enforcement. (Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th 146,156.) 2. Even if a writ of supersedeas was appropriate in the context of an order denying intervention, in light of Code of Civil Procedure (formerly 949) which exempts nuisance abatement orders from the automatic stay provisions generally applicable to other appeals, the California Supreme Court and Courts of Appeal have held that such writs may not be issued in the nuisance abatement context absent exceptional circumstances and a clear showing of a meritorious appeal. (United States of America v. Berg (1927) 202 Cal. 10, [cautioning reviewing courts not to issue writs of supersedeas to stay nuisance abatement orders given the declared policy of the people of California that there should be no stay of an action to abate a nuisance. ].) 3. No substantial issues are raised by Petitioner s appeal given the fact the court below correctly denied Petitioner s request for intervention under the primary rights doctrine, and Petitioner, as a customer of the illegally-operating dispensary with no interest in the property or control over the operations, did not have the direct and immediate interest in the litigation to warrant intervention in defense of this nuisance abatement action as required under Code of Civil Procedure a07/13/10-2-

4 4. The underpinning of Petitioner s constitutional claims against the City (now currently being adjudicated in Petitioner s separate lawsuit) to wit, that she has a fundamental right to use marijuana for medical purposes is directly contrary to California Supreme Court precedent, holding that the Compassionate Use Act, which merely decriminalized certain limited uses of marijuana, did not create any constitutional right to use marijuana. (People v. Urziceanu (2005) 132 Cal.App.4th 747, 774 [ the Compassionate Use Act [and Medical Marijuana Program Act ( MMP )] created a limited defense to crimes, not a constitutional right to obtain marijuana. ]; Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal.4th 920, [no fundamental public policy to use marijuana].) Finally, Petitioner has failed to demonstrate any irreparable harm warranting a writ of supersedeas. Petitioner claims she will be harmed if she is not allowed to present her unsupported fundamental rights argument at the hearing on the City s Motion for Preliminary Injunction, yet she is asserting the identical argument in her separate lawsuit. Moreover, her argument lacks merit as demonstrated by the fact that the court in that case sustained a Demurrer. There is no legally recognizable harm from being prevented from asserting the identical claims seeking the identical remedy in two separate lawsuits. One lawsuit is enough. In contrast, the irreparable harm to the public from an unabated public nuisance is presumed as a matter of law. (IT Corporation v. County of Imperial (1983) 35 Cal.3d 63, 72.) a07/13/10-3-

5 The bottom line is that Petitioner has an adequate legal remedy which she is pursuing in her separate lawsuit against the City. Petitioner should not be allowed to enjoin the City from abating an ongoing public nuisance for the lengthy period of time it would take to resolve her claimed legal issues on appeal. The Petition should be denied. II. BACKGROUND FACTS The facts relating to the instant action are straightforward. (See City s Verified Complaint, Ex. 2.) 2 In the court below, the City claims that since on or before May 2009, a medical marijuana dispensary known as Beach Cities Collective ( Beach Cities or the Dispensary ) has operated in direct violation of the City s Municipal Code 3 at Calle Hermosa, No. C, Capistrano Beach, California (the Property ). (See City s Motion for Preliminary Injunction and supporting Declarations, Ex. 1, p. 37; Ex. 2 [City s Complaint].) The 2 Hereinafter, references to Ex. Shall refer to the City s Exhibits filed concurrently herewith under separate cover. 3 The Property upon which the Dispensary operates is located in the City s Professional/Residential Mixed Use District. (Ex. 1, p. 33.) The Municipal Code does not include medical marijuana dispensaries as an enumerated permitted use, nor as a conditionally permitted use in the Professional/Residential Mixed Use District. (Ex. 1, pp [DPMC ].) In fact, marijuana dispensaries are neither enumerated as a permitted use, nor as any other type of conditional or temporary use in any zoning district in the City. (Ex. 1, pp [DPMC (b)] [commercial districts], Ex. 1, pp [DPMC (c)] [mixed use districts], Ex. 1, pp [DPMC (b)] [professional/administrative districts], and Ex. 1, pp [DPMC (b)] [industrial business districts].) a07/13/10-4-

6 Dispensary is owned and/or operated by Defendant David Lambert. (Ex. 2, p. 143.) The Property is owned by Defendant Dr. David Sales. (Ibid.) On March 10, 2010, the City filed its Verified Complaint for Abatement, Injunction, Equitable Relief and Civil Penalties ( Nuisance Complaint ) against Defendants Beach Cities, David Lambert, and Dr. David Sales. (Ex. 2.) The Complaint alleges, among other things, that the Defendants operation of a medical marijuana dispensary constitutes a public nuisance under the City s Municipal Code as well as the relevant State statute (Civ. Code 3479 and 3480) and violates both the Narcotics Abatement Law (Health & Saf. Code et seq.) and the Unfair Competition Law (Bus. & Prof. Code et seq.) (hereinafter referred to as the Nuisance Action ). (Id. at pp ) The City subsequently filed a motion for preliminary injunction, which has been fully briefed by all parties, and was originally set to be heard on June 29, 2010, prior to this Court s issuance of the temporary stay. 4 (Ex. 1.) On May 18, 2010, in a separate courtroom and under a separate case number, Petitioner, who regularly uses the Dispensary for her marijuana supply, filed a new complaint against the City, alleging that the City s attempt to close down the Dispensary violated her fundamental right (which she claims is guaranteed under the California Constitution) to obtain and use medical marijuana (Case No , hereinafter referred to as the Traudt Action ). (Ex. 3 [Traudt Complaint].) The Traudt Complaint contains causes of action for 4 On June 28, 2010, this Court granted a temporary stay in this matter and as a07/13/10-5-

7 due process, equal protection, and right to privacy violations, and asserts declaratory and injunctive relief to enjoin the City from abating the illegallyoperating Dispensary in this proceeding. (Id. at pp ) The City subsequently filed a Demurrer to Traudt s Complaint, which was sustained (with leave to amend) on the following grounds: (1) California case law has unequivocally held that cities may regulate and even ban medical marijuana dispensaries within their jurisdiction (See City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1176 [ Neither the [Compassionate Use Act] nor the [Medical Marijuana Program Act] compels the establishment of local regulations to accommodate medical marijuana dispensaries. ]); Corona v. Naulls (2008) 166 Cal.App.4th 418 [upholding city s ban on medical marijuana dispensaries]); and (2) the California Supreme Court has held that there is no right, let alone a fundamental right, to use or access marijuana even for medical purposes. (See People v. Urziceanu (2005) 132 Cal.App.4th 747, 774 [ the Compassionate Use Act [and MMP] created a limited defense to crimes, not a constitutional right to obtain marijuana. ]; Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal.4th 920, [rejecting plaintiff s claim that right to use medical marijuana is a fundamental public policy supported by either the CUA or California Constitution].) (Ex. 4 [City s Demurrer], Ex. 5 [Notice of Ruling on Demurrer].) After the City s Demurrer was sustained on June 21, 2010, Petitioner filed her First Amended Complaint in the Traudt Action, alleging the identical causes of such, the trial court has yet to rule on the City s motion for preliminary injunction a07/13/10-6-

8 action, which, like her first Complaint, are again premised on the claim that Petitioner has a fundamental constitutional right to use and to access medical marijuana. (Ex. 6 [Traudt s First Amended Complaint].) Because, as described above, the law simply does not support Petitioner s claims for relief, the City filed another Demurrer to the First Amended Complaint, which is set to be heard the same day that this Response is filed -- Tuesday, July 13, (Ex. 7 [City s Demurrer to First Amended Complaint].) The trial court s tentative ruling on the City s second Demurrer is to sustain the Demurrer without leave to amend. As of the time this Response was signed and filed, the trial court had not issued a final ruling (which the City suspects will be issued at the time of the hearing). In addition, and of particular importance in this matter, shortly after Petitioner filed her initial complaint in the Traudt Action, she also filed a Motion to Intervene in this Nuisance Action. 5 Petitioner s proposed complaint in intervention ( Intervention Complaint ) alleges the exact same claims and injuries (that closing the Dispensary would violate her fundamental constitutional right to obtain and use medical marijuana) and seeks the exact same relief (declaratory and injunctive relief) as the underlying Traudt Action. (Ex. 8 [Complaint in Intervention].) 5 Petitioner originally applied ex parte to intervene in the Nuisance Action on June 2, The Court denied Traudt s ex parte request but allowed the parties to brief the issue and return on June 15, 2010 for a hearing. Both the City s Demurrer in the Traudt Action and Traudt s Motion to Intervene in the Nuisance Action were heard on the exact same date June 15, 2010 albeit in different courtrooms and in front of different judges a07/13/10-7-

9 The court below ultimately denied Petitioner s Motion to Intervene on the grounds that allowing Petitioner to intervene in the Nuisance Action would in effect allow her to impermissibly split her causes of action against the City. (See City of Los Angeles v. Superior Court (1978) 85 Cal.App.3d 143, 150 [claim splitting is prohibited whether the first action is still pending... or has been disposed of ]; Code Civ. Proc (c) [complaint is subject to demurrer when [t]here is another action pending between the same parties on the same cause of action. ].) (Ex. 9 [notice of ruling on Petitioner s motion for intervention].) The trial court also ruled that Petitioner, who would not be bound by any judgment or injunctive relief sought in this proceeding, did not have the direct and immediate interest necessary to intervene under CCP 387. (Ibid.) Petitioner subsequently appealed the trial court order denying her motion to intervene. She now requests this Court to grant a writ of supersedeas, staying all proceedings in this Nuisance Action pending the outcome of her appeal of the order denying intervention. For all of the reasons set forth below, the Petition should be denied. III. THE PETITION FOR A WRIT OF SUPERSEDEAS SHOULD BE DENIED A. A Writ Of Supersedeas May Not Be Issued With Respect To Self- Executing Orders Such As the Order Denying Intervention At Issue On This Petition. Cases have consistently recognized that writs of supersedeas should not be issued where (as here) the order on appeal is self-executing -- that is, when the a07/13/10-8-

10 mere entry of the judgment or order accomplishes the desired result and requires no further action on the part of the court. (Feinberg v. One Doe Co. (1939) 14 Cal.2d 24, 29 [ The term self-executing is practically self-defining, and obviously denotes a judgment that accomplishes by its mere entry the result sought, and requires no further exercise of the power of the court to accomplish its purpose. ]) As stated by this Court in Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th 146, 156: The rule has always been that [i]f the judgment is self-executing and requires no process for enforcement, there is no statutory stay... and, as a general rule, supersede[a]s is equally inappropriate. (See also, Tyler v. Presley (1887) 72 Cal. 290, 291 [holding that when the judgment or order is rendered, and no process is required to be issued for its enforcement, no supersedeas is allowed. ], emphasis added.) The rationale behind this general rule is simple: there must be something for the writ to restrain, i.e., some process of the court (not the mere act of a party) directed toward the enforcement of the judgment or order. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, 294, p. 345.) If, however, the order is self executing, and there is no court process or procedure remaining to enforce the order, there is nothing for the writ to restrain (and supersedeas is therefore improper). (Ibid.) For instance, in In re Graves, the court denied supersedeas sought to stay a judgment suspending the petitioner attorney from the practice of law because there was no further action to be taken... by the court... and a07/13/10-9-

11 consequently nothing upon which the supersedeas can act. ((1923) 62 Cal.App. 168, 169.) 6 Here, Petitioner appeals from a trial court order denying her motion to intervene. (Petition, p. 9.) Such an order is obviously self-executing because the denial of intervention is effective immediately upon its entry, and after the order is entered, there is nothing left for the trial court to do with respect to its enforcement (and consequently nothing left for the appellate court to stay). (Lindsay Strathmore Irr. Dist. v. Superior Court (1932) 121 Cal.App. 606, 611 [ An order denying [a motion to intervene] is self-executing, and an appeal from such an order does not stay its execution, because there is nothing to stay. ]; Olson v. Hopkins (1969) 269 Cal.App.2d 638, [upholding the court s decision in Lindsay Strathmore Irrigation District ]; County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737 n. 7 [finding that an intervention appeal does not stay the underlying case].) The cases could not be more clear: supersedeas is inappropriate where a motion to intervene has been denied because there is nothing to stay. (Lindsay 6 Sound policy underlies this principle. Where the judgment or order leaves nothing to be actively and affirmatively enforced by execution or otherwise, the court would have to exceed the scope of its powers to restrain the court below or its officers from proceeding to enforce a judgment pending appeal where there is no involvement by the lower court in enforcing that judgment. (See Imperial Water Co. v. Hall (1926) 199 Cal. 556, ) Additionally, granting supersedeas where the order is self-executing could result in inefficiencies and injustice. Where a lower court, for example, orders a temporary restraining order to be vacated (a self-executing order), granting a writ of supersedeas would, in effect, grant an injunction which the trial court had refused. (Seltzer v. Musicians' Union Local (1939) 12 Cal. 2d 718, 719.) a07/13/10-10-

12 Strathmore, supra, 121 Cal.App. at 611.) Perhaps recognizing this fatal flaw, Petitioner instead requests the Court to stay all of the proceedings between the City and Defendants with respect to the City s efforts to abate the public nuisance. Petitioner cites no authority for such a sweeping proposition, and the City submits there is no authority holding that a party denied intervention may enjoin proceedings wholly between the named parties to the litigation. Indeed, no order or judgment issued in the Court below would (or could) have any binding effect on Petitioner. B. Courts May Not Issue Writs Of Supersedeas In Nuisance Abatement Actions Absent Exceptional Circumstances And a Clear showing Of a Meritorious Appeal. As indicated, Petitioner seeks a writ of supersedeas, not to stay enforcement of the order denying her request for intervention (a self-executing order for which there is nothing to stay ), but to stay all the proceedings in the trial court to abate the public nuisance as to Beach Cities and the other named Defendants. Even if such a writ were allowed for self-executing orders, according to California Supreme Court and Court of Appeal precedent, in light of the statutory exemption for automatic stays attendant to nuisance abatement orders (now embodied in Code of Civil Procedure 917.8), a writ of supersedeas may not be issued to stay a public nuisance abatement order absent the exceptional case and a clear showing of a meritorious appeal. (See, e.g., People v. Piazza (1922) 59 Cal.App. 43, 45.) a07/13/10-11-

13 The reason for this judicial restraint in nuisance abatement proceedings derives from the declared policy of the people of California as embodied in the statutory stay exemptions attendant to nuisance abatement actions. Code of Civil Procedure 917.8(c) expressly exempts from the automatic stay provisions those judgments or orders finding a building or place to be a nuisance where such judgment or order directs the closing or discontinuance of any specific use of the building or place for any period of time. Code of Civil Procedure 917.8(d) further exempts from the automatic stay provisions any judgment or order, including, but not limited to, a temporary restraining order or preliminary injunction which grants relief in an action brought by a governmental agency under the provisions of... Article 3 (commencing with Section 11570) of Chapter 10 of Division 10 of the Health and Safety Code. Section (formerly section 949) thus eliminates the distinctions between mandatory injunctive relief (which is automatically stayed upon perfection of an appeal) and prohibitory injunctive relief (which is not) in the nuisance abatement context. (See, e.g., People v. Jackson (1923) 190 Cal. 257, 260 [explaining that amendment to former section 949 exempting nuisance abatement orders from automatic stay provisions eliminated distinction between mandatory and prohibitory injunctions in nuisance abatement context].) While the reviewing court always retains the discretion to issue a writ of supersedeas notwithstanding section 917.8, such discretion may only be exercised in the exceptional case and only upon a showing of merit in the appeal. (See, a07/13/10-12-

14 e.g., United States of America v. Berg (1927) 202 Cal. 10, [courts must be careful not to nullify the statute embodying the declared policy of the People of California that there should be no stay of an action to abate a nuisance ]; Jackson, supra, 190 Cal. at 263 [ the legislature by enacting section 949 [now section 917.8] has indicated as its opinion that there should be no stay of an action to abate the character of nuisance..., and this court ought not to lend its aid to the continuance of such business in the absence of some showing of merit in the appeal and some showing of diligence in the prosecution of the appeal ] [emphasis added]; and Piazza, supra, 59 Cal.App. at 45 [ Since the legislature has provided that the appeal shall not operate as a stay [of nuisance abatement orders], the writ [of supersedeas] should issue, if at all, only in exceptional cases ] [emphasis added].) Berg, supra, is instructive. In that case (decided during Prohibition), the trial court found that the management of the Ventura Hotel had consistently disregarded the provisions of the Prohibition Act and had kept and sold, and were, at the time the abatement proceedings were instituted, keeping and selling intoxicating liquors on the premises. (202 Cal. at 12.) Although the hotel management appeared to conform its operation of the hotel in a manner in compliance with the Prohibition Act after commencement of the proceedings, the trial court ordered the Hotel closed for a period of time to assure abatement of the public nuisance. (Id.) The defendants perfected an appeal of the trial court s order abating the nuisance and sought a writ of supersedeas from the California a07/13/10-13-

15 Supreme Court to stay enforcement of the nuisance abatement order pending resolution of the appeal. While recognizing that the legislature could not limit a reviewing court s discretion to issue a writ of supersedeas (derived from the California Constitution), the Supreme Court nevertheless acknowledged and fully embraced the legislation s declared policy of the people of California not to allow nuisances to continue unabated by simply perfecting an appeal of the trial court s abatement order. (Id. at 15.) Accordingly, the Supreme Court denied the request for supersedeas relief and refused to stay enforcement of the nuisance abatement order. (Id.) Absent a clear showing of a meritorious appeal in the exceptional case, a reviewing court may not issue a writ of supersedeas to suspend a public nuisance abatement order pending resolution of the appeal. In this case, however, Petitioner seeks to stay the entire nuisance abatement proceedings below before the trial court even has the opportunity to address the City s request for an abatement order. Even if a writ of supersedeas could issue in connection with the selfexecuting order denying intervention, Petitioner could not obtain such a writ to stay a public nuisance abatement order absent extraordinary circumstances and a likelihood of prevailing on her appeal. Petitioner certainly should not be allowed to stay the proceedings before the trial court even has the opportunity to address the nuisance abatement issues. This Court should not issue a writ of supersedeas a07/13/10-14-

16 C. Petitioner Fails To Raise Any Substantial Questions On Appeal. Petitioner contends this Court should grant a writ of supersedeas because she raises substantial questions on appeal with regard to whether the trial court correctly denied her motion to intervene. (Petition, p ) Petitioner has not raised substantial questions on appeal, the trial court correctly exercised its discretion when denying intervention, and, in any event, Petitioner s fundamental rights claim is facially meritless and contrary to controlling California Supreme Court precedent. 1. Petitioner s Motion to Intervene Was Properly Denied Because the Proposed Intervention Would Directly Violate the Rule Against Claim-Splitting. Petitioner contends that the court below erred in relying upon the primary rights doctrine to deny her request for intervention. (Petition, p. 23.) Petitioner is wrong. Claim splitting (also known as dividing a primary right ) is strictly prohibited under California law: The primary right theory has a fairly narrow field of application. It is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits. The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement [citations]; or (2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata [citation] a07/13/10-15-

17 (Crowley v. Katleman (1994) 8 Cal.4th 666, 682, emphasis added; see also Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, [citing Crowley with approval]; Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1258 [ The manner in which a plaintiff elects to organize his or her claims within the body of the complaint is irrelevant when determining primary rights]; Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1250 [change in pleading focus irrelevant where primary right remains the same]; City of Los Angeles v. Superior Court, supra, 85 Cal.App.3d at 150 [holding that claim splitting is prohibited].) The Intervention Complaint contains the identical allegations, claims, causes of action and prayers for relief set forth in the complaint now pending in the Traudt Action. (Compare Traudt Complaint, Ex. 3, with Intervention Complaint, Ex. 8.) If Petitioner has been permitted to intervene, the Intervention Complaint would be subject to an immediate demurrer because [t]here is another action pending between the same parties on the same cause of action. (Code Civ. Proc (c).) Petitioner does not dispute that the claims she is now asserting in the Traudt Action are identical to the claims she desired to pursue in this Nuisance Action (if allowed to intervene). Petitioner s only response to this obvious primary rights problem is that, in the Traudt Action, Petitioner is acting as the Plaintiff and, in this proceeding, Petitioner sought to unite with the Defendants against the City (who is the Plaintiff). In other words, according to Petitioner, as long as her title in the a07/13/10-16-

18 proceedings is different (a plaintiff in one and a defendant in another), she could assert the identical claims against the City in both actions. This cannot possibly be the law and, of course, Petitioner cites no authority for such an argument. 7 The purpose of the primary rights doctrine is to abate a second action seeking to redress a claimed right or injury already the subject of another court proceeding in order to avoid multiplicity of lawsuits adjudicating the identical claims and, of course, inconsistent adjudications. (Crowley v. Katleman (1994) 8 Cal.4th 666, 682.) Whether Petitioner is denominated a plaintiff or defendant in either action is irrelevant. In both complaints, Petitioner claims that the City s efforts to shut down the marijuana dispensary violates her fundamental rights embodied in the California Constitution, and seeks declaratory and injunctive relief to enjoin the City from abating the public nuisance. These are the identical primary rights and, if allowed to intervene, Petitioner would violate this strict and well settled rule of law. The trial court correctly ruled that the primary rights doctrine prevents Petitioner from adjudicating the merits of her identical claims in two different actions. 7 Petitioner cites Williams v. Krumsiek (1952) 109 Cal.App.2d 456, for the proposition that the primary rights doctrine is for the benefit of the defendant and because the City is the plaintiff in this Nuisance Action, the City may not rely on the doctrine to defeat intervention in this action. The City, of course, is the defendant in the Traudt Action and, in light of the identical affirmative relief sought in the Intervention Complaint, would also, in substance and effect, be acting as a defendant with respect to Petitioner s claims as asserted in the Intervention Complaint. Petitioner s argument places all value in labels, and none in substance a07/13/10-17-

19 2. Petitioner Has No Direct And Immediate Interest In This Nuisance Action and Therefore Intervention Was Correctly Denied. Even if Petitioner did not have the identical constitutional claims pending in a different proceeding, the trial court properly denied her motion to intervene because Petitioner could not satisfy the criteria for intervention under Code of Civil Procedure Section 387. In order for the court below to allow a third party to intervene in an action, the third party must demonstrate, among other things, a direct and immediate interest in the litigation. (Hinton v. Beck (2009) 176 Cal.App.4th at 1378, ) As the Supreme Court explained in Jersey Maid Milk Products Co., Inc. v. Brock (1939) 13 Cal.2d 661, 663: The interest mentioned in the code which entitles a person to intervene in a suit between other persons must be in the matter in litigation and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment. (Id. at 663, emphasis added, quoting Elliott v. Superior Court (1914) 168 Cal. 727, 734.) Recent case law adheres to the same direct versus consequential analysis. In Siena Court Homeowners Assn. v. Green Valley Corp. (2008) 164 Cal.App.4th 1416, although the intervener claimed a 48% interest in the plaintiff s recovery, the Court of Appeal upheld the trial court s refusal to permit intervention: University Gardens will not gain or lose as result of any judgment in the construction defect action because the judgment will not affect the respective obligations of University Gardens and Siena Court under the joint use and maintenance agreement. [Citation.] a07/13/10-18-

20 Moreover, although the results of the construction defect action may indirectly benefit or harm University Gardens, because Siena Court s ability to meet its obligations under the joint use and maintenance agreement may be affected, University Gardens interest is consequential and thus insufficient for intervention. (Id. at 1429, emphasis added.) While the City s success in the Nuisance Action could indirectly make it more inconvenient for Petitioner to obtain medical marijuana which remains illegal under federal law her alleged interest is a mere preference for a convenient marijuana dispensary. At most, the loss of such convenience is a consequential interest. Nothing about the relief the City seeks in the instant action will prevent her from growing her own marijuana or otherwise obtaining it from other sources and locations. And, of course, the City s requested abatement relief does not seek to prevent or otherwise restrict Petitioner s use of marijuana If Sustained, The City s Pending Demurrer In The Traudt Action (To Be Heard The Same Day This Opposition Is Filed) Would Bar The Intervention Complaint Under The Doctrine Of Res Judicata. The City s demurrer to Petitioner s First Amended Complaint will be heard at 3:00 p.m. on July 13th, the same exact day that this Response is filed. In the event the trial court sustains the Demurrer without leave to amend (as it has indicated in its tentative ruling), Petitioner will be barred from pursuing the same 8 It is unclear how Petitioner could even unite with the named Defendants in defense of the City s abatement efforts in this proceeding. The City does not assert that Petitioner is violating its zoning provisions or that Petitioner s use of marijuana constitutes a public nuisance. The City s public nuisance abatement efforts are directed solely at the owners of the Dispensary and Property, not Petitioner a07/13/10-19-

21 relief in any other action, including the proposed Intervention Complaint. (See, e.g., Boeken, supra, 48 Cal.4th at 804.) A predictable doctrine of res judicata benefits both the parties and the courts because it seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, , emphasis added.) D. There Is No Constitutional Right To Use Marijuana. Petitioner also argues in support of a writ of supersedeas that the trial court s denial of intervention violated her procedural due process rights because it prevented her from being heard on the fundamental rights argument in connection with the City s Motion for Preliminary Injunction. In addition to many other fatal problems with this argument (including the fact that those arguments are now being fully addressed and considered by another Superior Court Judge in the Traudt Action), as a matter of law, Petitioner does not have a constitutional right to a particular form of medical treatment (let alone the use of marijuana for medical purposes). The California Supreme Court could not be more clear: the Compassionate Use Act [and MMPA] created a limited defense to crimes, not a constitutional right to obtain marijuana. (Urziceanu, supra, 132 Cal.App.4th at 774, emphasis added; see also Ross, supra, 42 Cal. 4th at 928 [rejecting plaintiff s claim that the right to use marijuana is a fundamental public policy supported by either the CUA or the privacy clause of the California Constitution and further a07/13/10-20-

22 rejecting plaintiff s argument that the fundamental constitutional right to refuse medical treatment may be extended to include the right to use marijuana for medical purposes].) It does not, and could not, provide the right to either use or access a Schedule I Controlled Substance criminally proscribed under the Federal Controlled Substances Act. (Id. at 926 [emphasizing that no state law could completely legalize marijuana for medicinal purposes because the drug remains illegal under federal law, even for medical users and that the Compassionate Use Act did not give marijuana the same status as any legal prescription drug ].) Petitioner seeks to extend the fundamental rights protected under the California Constitution to the right to use and access medical marijuana. No decision, whether under the California Constitution or United States Constitution, has ever extended the concept of fundamental rights to the use of marijuana. Fundamental rights in the constitutional sense are strictly limited to those explicitly or implicitly recognized in the Constitution. (Washington v. Glucksberg (1977) 521 U.S. 702, ) These implicit fundamental rights have been held to include the right to marry, to have children, to direct the education and upbringing of one s child, to marital privacy, contraception, abortion, and to refuse unwanted lifesaving medical treatment. (Id. at ) According to the California Supreme Court, such rights do not include medical treatment. (People v. Privitera (1979) 23 Cal.3d 697, 702.) Nor does the California Constitution recognize a fundamental right to access to drugs of unproven efficacy. (Id. at ) a07/13/10-21-

23 This Court itself has squarely rejected the argument that a fundamental right exists under the California or United States Constitutions to seek a particular form of medical treatment: The right to seek a particular form of medical treatment as a cure for one s illness... has not been recognized as a fundamental right in California. (People v. Younghanz (1984) 156 Cal.App.3d 811, 816 [emphasis added].) Petitioner simply has no fundamental right to use marijuana and, thus, the underlying premise of her procedural due process argument (as well as her constitutional claims against the City) is meritless as a matter of law. E. Petitioner Will Not Suffer Irreparable Harm If Writ Relief Is Denied. Petitioner argues that unless a writ of supersedeas is granted, she will be deprived of the benefits of her success on appeal, because she will not be heard in the proceedings below, particularly with respect to the City s motion for preliminary injunction. In other words, Petitioner s sole harm will be that she will not get to assert her fundamental rights claim in defense of the City s attempt to abate the ongoing public nuisance operated by the named Defendants in this action. Petitioner, of course, has another action currently pending in the Traudt Action in which she is seeking the identical relief she wants to assert in defense to the City s abatement efforts in this proceeding. While the trial court has been less than impressed with Petitioner s constitutional claims in that action, she has had a07/13/10-22-

24 every opportunity to be heard in that proceeding. It is no harm to Petitioner not to be heard by more than one trial court judge on the identical legal issues. In contrast to Petitioner s lack of irreparable harm, the harm to the public from an ongoing, unabated public nuisance is presumed. (IT Corporation v. County of Imperial (1983) 35 Cal.3d 63, 72.) Where it is reasonably probable that a municipal body will prevail on the merits of a nuisance abatement action by demonstrating a violation of an ordinance which specifically provides for injunctive relief, the courts are to presume irreparable harm to the public. In fact, in the preliminary injunction context, the Supreme Court has made clear that trial courts are not to conduct the typical provisional relief balancing test unless the Defendant proves, through competent evidence, that it will suffer grave or irreparable harm from the issuance of the injunction. (Id.) Even where there is a showing of grave and irreparable harm, a trial court might legitimately decide that an injunction should issue even though the [city] is unable to prevail on a balancing of the probable harms. (Id.) The public importance associated with abating a public nuisance is no doubt the reason why the legislature, through the enactment of Code of Civil Procedure 917.8, exempted nuisance abatement orders and judgments (including temporary restraining orders and preliminary injunctions) from the automatic stay provisions on appeal. The bottom line is that Petitioner has had every opportunity to present her constitutional claims in the Traudt Action, has been unable thus far to convince the trial court that she has a constitutional right to marijuana, and a07/13/10-23-

25 should not be allowed to hold this public nuisance abatement proceeding in abeyance pending her appeal just to present the identical fundamental rights argument to a different judge in this Nuisance Action. IV. CONCLUSION In light of all of the foregoing, the Petition for a Writ of Supersedeas should be denied. Dated: July 13, 2010 Respectfully submitted RUTAN & TUCKER, LLP A. PATRICK MUÑOZ DOUGLAS J. DENNINGTON JENNIFER FARRELL By: A. Patrick Muñoz Attorneys for Real Parties in Interest and Appellee CITY OF DANA POINT a07/13/10-24-

26 I, Douglas J. Dennington, declare: VERIFICATION 1. I am an attorney licensed to practice in the courts of the State of California and am a partner in the law firm of Rutan & Tucker, LLP, counsel of record for Real Party in Interest and Appellee the City of Dana Point (the City ) in this action. 2. I make this verification because I am aware of the proceedings giving rise to this Response from personal knowledge and, if called upon to do so, could and would competently testify to the same under oath in Court. 3. I have read this Response to Writ of Supersedeas, and either know the facts set forth herein to be true or believe them to be true based on the accompanying exhibits. 4. Exhibit 1 is a true, correct and complete copy of the City s ex parte Application for an Order to Show Cause re Preliminary Injunction in the matter of The People of the State of California ex rel. The City of Dana Point v. Beach Cities Collective, and the concurrently filed Declaration of Jennifer J. Farrell, Declaration of Kyle Butterwick, Declaration of Angela Duzich, and Request for Judicial Notice (Case No ). 5. Exhibit 2 is a true, correct and complete copy of the City s Nuisance Complaint in The People of the State of California ex rel. The City of Dana Point v. Beach Cities Collective. 6. Exhibit 3 is a true, correct and complete copy of the Original Complaint in the matter of Traudt v. City of Dana Point (Case No ) a07/13/10-25-

27 7. Exhibit 4 is a true, correct and complete copy of the City s Demurrer to the Original Complaint in Traudt v. City of Dana Point. 8. Exhibit 5 is a true, correct and complete copy of the Notice of Ruling granting the City s Demurrer to the Original Complaint in Traudt v. City of Dana Point. 9. Exhibit 6 is a true, correct and complete copy of the First Amended Complaint in Traudt v. City of Dana Point. 10. Exhibit 7 is a true, correct and complete copy of the City s Demurrer to the First Amended Complaint in Traudt v. City of Dana Point. 11. Exhibit 8 is a true, correct and complete copy of the Notice of Application to Intervene and the Complaint in Intervention in the matter of The People of the State of California ex rel. The City of Dana Point v. Beach Cities Collective 12. Exhibit 9 is a true, correct and complete copy of the Notice of Ruling denying the Motion to Intervene in the matter of The People of the State of California ex rel. The City of Dana Point v. Beach Cities Collective. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this Verification was executed in Costa Mesa, California, on July 13, Douglas J. Dennington a07/13/10-26-

28 CERTIFICATE OF COMPLIANCE (California Rules of Court, Rule 8.204) I certify that pursuant to California Rules of Court, Rule 8.204, that the foregoing City of Dana Point s Opposition to Request for Extension is proportionally spaced, has a typeface of 13 points or more and contains 6,141 words, as calculated by the word-processing system used to prepare the brief, which was MSWord, version Dated: July 13, 2010 RUTAN & TUCKER, LLP A. PATRICK MUÑOZ DOUGLAS J. DENNINGTON JENNIFER FARRELL By: A. Patrick Muñoz Attorneys for Real Parties in Interest and Appellee CITY OF DANA POINT a07/13/10-27-

29 TABLE OF CONTENTS Page I. INTRODUCTION AND SUMMARY OF ARGUMENT... 1 II. BACKGROUND FACTS... 4 III. THE PETITION FOR A WRIT OF SUPERSEDEAS SHOULD BE DENIED... 8 A. A Writ Of Supersedeas May Not Be Issued With Respect To Self-Executing Orders Such As the Order Denying Intervention At Issue On This Petition... 8 B. Courts May Not Issue Writs Of Supersedeas In Nuisance Abatement Actions Absent Exceptional Circumstances And a Clear showing Of a Meritorious Appeal C. Petitioner Fails To Raise Any Substantial Questions On Appeal Petitioner s Motion to Intervene Was Properly Denied Because the Proposed Intervention Would Directly Violate the Rule Against Claim-Splitting Petitioner Has No Direct And Immediate Interest In This Nuisance Action and Therefore Intervention Was Correctly Denied If Sustained, The City s Pending Demurrer In The Traudt Action (To Be Heard The Same Day This Opposition Is Filed) Would Bar The Intervention Complaint Under The Doctrine Of Res Judicata D. There Is No Constitutional Right To Use Marijuana E. Petitioner Will Not Suffer Irreparable Harm If Writ Relief Is Denied IV. CONCLUSION a07/13/10 -i-

30 Page 1. I am an attorney licensed to practice in the courts of the State of California and am a partner in the law firm of Rutan & Tucker, LLP, counsel of record for Real Party in Interest and Appellee the City of Dana Point (the City ) in this action I make this verification because I am aware of the proceedings giving rise to this Response from personal knowledge and, if called upon to do so, could and would competently testify to the same under oath in Court I have read this Response to Writ of Supersedeas, and either know the facts set forth herein to be true or believe them to be true based on the accompanying exhibits Exhibit 1 is a true, correct and complete copy of the City s ex parte Application for an Order to Show Cause re Preliminary Injunction in the matter of The People of the State of California ex rel. The City of Dana Point v. Beach Cities Collective, and the concurrently filed Declaration of Jennifer J. Farrell, Declaration of Kyle Butterwick, Declaration of Angela Duzich, and Request for Judicial Notice (Case No ) Exhibit 2 is a true, correct and complete copy of the City s Nuisance Complaint in The People of the State of California ex rel. The City of Dana Point v. Beach Cities Collective Exhibit 3 is a true, correct and complete copy of the Original Complaint in the matter of Traudt v. City of Dana Point (Case No ) Exhibit 4 is a true, correct and complete copy of the City s Demurrer to the Original Complaint in Traudt v. City of Dana Point Exhibit 5 is a true, correct and complete copy of the Notice of Ruling granting the City s Demurrer to the Original Complaint in Traudt v. City of Dana Point a07/13/10 -ii-

31 Page 9. Exhibit 6 is a true, correct and complete copy of the First Amended Complaint in Traudt v. City of Dana Point Exhibit 7 is a true, correct and complete copy of the City s Demurrer to the First Amended Complaint in Traudt v. City of Dana Point Exhibit 8 is a true, correct and complete copy of the Notice of Application to Intervene and the Complaint in Intervention in the matter of The People of the State of California ex rel. The City of Dana Point v. Beach Cities Collective Exhibit 9 is a true, correct and complete copy of the Notice of Ruling denying the Motion to Intervene in the matter of The People of the State of California ex rel. The City of Dana Point v. Beach Cities Collective Douglas J. Dennington a07/13/10 -iii-

32 TABLE OF AUTHORITIES Page(s) FEDERAL CASES Washington v. Glucksberg (1977) 521 U.S STATE CASES Boeken, supra, 48 Cal.4th at City of Claremont v. Kruse (2009) 177 Cal.App.4th City of Los Angeles v. Superior Court (1978) 85 Cal.App.3d , 16 Corona v. Naulls (2008) 166 Cal.App.4th County of Alameda v. Carleson (1971) 5 Cal.3d Crowley v. Katleman (1994) 8 Cal.4th , Elliott v. Superior Court (1914) 168 Cal Feinberg v. One Doe Co. (1939) 14 Cal.2d Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th Hindin v. Rust (2004) 118 Cal.App.4th Hinton v. Beck (2009) 176 Cal.App.4th Imperial Water Co. v. Hall (1926) 199 Cal a07/13/10 -iv-

33 Page(s) STATE CASES (CONT.) In re Graves (1923) 62 Cal.App. 168, IT Corporation v. County of Imperial (1983) 35 Cal.3d , 23 Jersey Maid Milk Products Co., Inc. v. Brock (1939) 13 Cal.2d Lindsay Strathmore Irr. Dist. v. Superior Court (1932) 121 Cal.App Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th Olson v. Hopkins (1969) 269 Cal.App.2d People v. Jackson (1923) 190 Cal People v. Piazza (1922) 59 Cal.App , 13 People v. Privitera (1979) 23 Cal.3d People v. Urziceanu (2005) 132 Cal.App.4th , 6, 20 People v. Younghanz (1984) 156 Cal.App.3d Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal.4th , 6, 20 Seltzer v. Musicians' Union Local (1939) 12 Cal. 2d Siena Court Homeowners Assn. v. Green Valley Corp. (2008) 164 Cal.App.4th Tyler v. Presley (1887) 72 Cal a07/13/10 -v-

34 Page(s) STATE CASES (CONT.) United States of America v. Berg (1927) 202 Cal , 13 Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th 146, Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th Williams v. Krumsiek (1952) 109 Cal.App.2d STATE STATUTES Business & Professions Code section et seq... 5 Civil Code sections 3479 and Code of Civil Procedure section , 8, 18 section (c)... 8, 16 section , 11-13, 23 section 917.8(c) section 917.8(d) Health & Safety Code section et seq... 5 OTHER AUTHORITIES (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, 294, p. 345.) a07/13/10 -vi-