Case No. 30-2010-00352103-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. 30-2010-00352103-CU-MC-CJC Honorable William M. Monroe, Judge (Dept. C-16)

RUTAN & TUCKER, LLP

A. PATRICK MUÑOZ (SBN 143901) DOUGLAS J. DENNINGTON (SBN 173447)

JENNIFER FARRELL (SBN 251307) 611 Anton Boulevard, Fourteenth Floor

Costa Mesa, California 92626-1931 Telephone: 714-641-5100

Attorneys for Real Parties in Interest and Appellee, CITY OF DANA POINT

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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. Petitioner1 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.

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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 § 917.8 (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, 14-15

[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 § 387.

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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, 932-933 [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.)

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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 Code3 at 26841 Calle Hermosa, No. C, Capistrano Beach,

California 92624 (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. 52-54 [DPMC § 9.13.020].) 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. 49-50 [DPMC §§ 9.11.020(b)] [commercial districts], Ex. 1, pp. 52-54 [DPMC § 9.13.020(c)] [mixed use districts], Ex. 1, pp. 55-56 [DPMC § 9.15.020(b)] [professional/administrative districts], and Ex. 1, pp. 57-58 [DPMC § 9.17.020(b)] [industrial business districts].).

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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 §11570 et

seq.) and the Unfair Competition Law (Bus. & Prof. Code § 17200 et seq.)

(hereinafter referred to as the “Nuisance Action”). (Id. at pp. 8-15.) 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. 30-2010-00373287, 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

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due process, equal protection, and right to privacy violations, and asserts

declaratory and injunctive relief to enjoin the City from abating the illegally-

operating Dispensary in this proceeding. (Id. at pp. 5-11.)

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, 932-3 [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.

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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, 2010. (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, 2010. 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.

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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. § 430.10(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

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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

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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, 644-45 [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, 557-58.) 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.)

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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.)

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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 917.8 (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,

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e.g., United States of America v. Berg (1927) 202 Cal. 10, 14-15 [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

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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 self-

executing 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.

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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. 18-27.) 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].

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(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, 641-642 [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. § 430.10(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

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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.

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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, 1382-

1383.) 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.]

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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.8

3. 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.

2346/022390-0061 1103542.01 a07/13/10 -20-

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, 896-897, 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

2346/022390-0061 1103542.01 a07/13/10 -21-

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, 719-720.) 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 719-720.) 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 709-710.)

2346/022390-0061 1103542.01 a07/13/10 -22-

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

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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

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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

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VERIFICATION

I, Douglas J. Dennington, declare:

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. 30-2010-00352103).

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. 30-2010-

00373287).

2346/022390-0061 1103542.01 a07/13/10 -26-

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, 2010.

______________________ Douglas J. Dennington

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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 2007.

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

TABLE OF CONTENTS

Page

2346/022390-0061 1103542.01 a07/13/10 -i-

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 ............................................................................................ 11

C. Petitioner Fails To Raise Any “Substantial Questions” On Appeal ...................................................................................... 15

1. Petitioner’s Motion to Intervene Was Properly Denied Because the Proposed Intervention Would Directly Violate the Rule Against “Claim-Splitting.” ............................................................... 15

2. Petitioner Has No “Direct And Immediate” Interest In This Nuisance Action and Therefore Intervention Was Correctly Denied .................................... 18

3. 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 ........................................................................ 19

D. There Is No Constitutional Right To Use Marijuana .................... 20

E. Petitioner Will Not Suffer Irreparable Harm If Writ Relief Is Denied ............................................................................. 22

IV. CONCLUSION ......................................................................................... 24

Page

2346/022390-0061 1103542.01 a07/13/10 -ii-

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 ............................................................... 25

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 .............................................................................................. 25

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 ........................................................................................... 25

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. 30-2010-00352103) ............................................................................. 25

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 ............................................................................. 25

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. 30-2010-00373287) ................................... 25

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 ......................................................................... 26

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 ..................... 26

Page

2346/022390-0061 1103542.01 a07/13/10 -iii-

9. Exhibit 6 is a true, correct and complete copy of the First Amended Complaint in Traudt v. City of Dana

Point ............................................................................................... 26

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 ......................................................... 26

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 ............................................................................. 26

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 ................. 26

______________________ ...................................................................... 26

Douglas J. Dennington .............................................................................. 26

TABLE OF AUTHORITIES

Page(s)

2346/022390-0061 1103542.01 a07/13/10 -iv-

FEDERAL CASES

Washington v. Glucksberg (1977) 521 U.S. 702 ...................................................................................................... 21

STATE CASES

Boeken, supra, 48 Cal.4th at 804 ................................................................................................ 20

City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153.......................................................................................... 6

City of Los Angeles v. Superior Court (1978) 85 Cal.App.3d 143 ......................................................................................... 8, 16

Corona v. Naulls (2008) 166 Cal.App.4th 418............................................................................................ 6

County of Alameda v. Carleson (1971) 5 Cal.3d 730 ....................................................................................................... 10

Crowley v. Katleman (1994) 8 Cal.4th 666 ........................................................................................... 1, 16-17

Elliott v. Superior Court (1914) 168 Cal. 727 ....................................................................................................... 18

Feinberg v. One Doe Co. (1939) 14 Cal.2d 24 ......................................................................................................... 8

Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623 ................................................................................................... 16

Hindin v. Rust (2004) 118 Cal.App.4th 1247........................................................................................ 16

Hinton v. Beck (2009) 176 Cal.App.4th ................................................................................................. 18

Imperial Water Co. v. Hall (1926) 199 Cal. 556 ....................................................................................................... 10

Page(s)

2346/022390-0061 1103542.01 a07/13/10 -v-

STATE CASES (CONT.)

In re Graves (1923) 62 Cal.App. 168, 169 ........................................................................................... 9

IT Corporation v. County of Imperial (1983) 35 Cal.3d 63 ................................................................................................... 3, 23

Jersey Maid Milk Products Co., Inc. v. Brock (1939) 13 Cal.2d 661 ..................................................................................................... 18

Lindsay Strathmore Irr. Dist. v. Superior Court (1932) 121 Cal.App. 606 ............................................................................................... 10

Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888 ................................................................................................... 20

Olson v. Hopkins (1969) 269 Cal.App.2d 638 ........................................................................................... 10

People v. Jackson (1923) 190 Cal. 257 ................................................................................................. 12-13

People v. Piazza (1922) 59 Cal.App. 43 ............................................................................................. 11, 13

People v. Privitera (1979) 23 Cal.3d 697 ..................................................................................................... 21

People v. Urziceanu (2005) 132 Cal.App.4th 747.................................................................................. 3, 6, 20

People v. Younghanz (1984) 156 Cal.App.3d 811 ........................................................................................... 22

Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal.4th 920 ........................................................................................... 3, 6, 20

Seltzer v. Musicians' Union Local (1939) 12 Cal. 2d 718 .................................................................................................... 10

Siena Court Homeowners Assn. v. Green Valley Corp. (2008) 164 Cal.App.4th 1416........................................................................................ 18

Tyler v. Presley (1887) 72 Cal. 290 ........................................................................................................... 9

Page(s)

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STATE CASES (CONT.)

United States of America v. Berg (1927) 202 Cal. 10 ..................................................................................................... 2, 13

Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th 146............................................................................................ 9

Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th 146,156..................................................................................... 2

Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234.......................................................................................... 16

Williams v. Krumsiek (1952) 109 Cal.App.2d 456 ........................................................................................... 17

STATE STATUTES

Business & Professions Code section 17200 et seq............................................................................................. 5

Civil Code sections 3479 and 3480 ....................................................................................... 5

Code of Civil Procedure section 387 ................................................................................................. 2, 8, 18 section 430.10(c) ........................................................................................... 8, 16 section 917.8 ...................................................................................... 2, 11-13, 23 section 917.8(c) ................................................................................................. 12 section 917.8(d) ................................................................................................. 12

Health & Safety Code section 11570 et seq............................................................................................. 5

OTHER AUTHORITIES

(9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 294, p. 345.) ...................................................................................................... 9