Filed 5/11/20 City of San Bernardino v. Ye CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CITY OF SAN BERNARDINO,

Respondent,

v.

QUIANG YE et al.,

Appellants.

D076196

(Super. Ct. No. CIVDS 1704276)

APPEAL from a judgment of the Superior Court of San Bernardino, David S. Cohn, Judge. Reversed as moot and remanded with directions.

Roger J. Diamond for Appellants.

Gary D. Saenz, City Attorney; Cole Huber, Daniel S. Roberts and Steven P. Graham for Respondent.

I.

INTRODUCTION

In November 2016, voters in the City of San Bernardino (the City) approved the San Bernardino Regulate Marijuana Act (Measure O). In litigation that ensued over Measure O, the City brought a cross-complaint against, among others, appellants Quiang Ye, 100 Hospitality, LLC, Vincent Guzman, Californians for Responsible Government and 350 West 5th Street, LLC. The City’s cross-complaint contained a single cause of action for declaratory relief in which it sought a determination that Measure O was invalid and unenforceable. After considering evidence and holding a hearing, the trial court issued a statement of decision in which the court concluded that “Measure O is invalid” because “[i]t creates a zoning monopoly for the dispensing of marijuana, due to ‘spot zoning’ which lacks a rational basis.” The trial court entered a declaratory judgment pursuant to Code of Civil Procedure section 1060, which stated that “Measure O . . . is invalid and unenforceable it its entirety.” Appellants appealed from the judgment.

In November 2018, while appellants’ appeal from this declaratory judgment was pending, the City’s voters adopted Measure X. Measure X expressly repealed Measure O. In light of the voters’ adoption of Measure X, the City contends that the issues in this appeal have become moot. (Citing Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134 (Paul) [“[A]ppeals have been held moot when the statute or administrative regulation in issue has been repealed prior to the appellate decision”].)

We conclude that both the appeal and the City’s underlying declaratory relief cause of action, have become moot. Under these circumstances, well established precedent, emanating from Paul, provides that the preferred disposition is to reverse the judgment on mootness grounds without regard to the merits, and to remand the matter to the trial court with directions to dismiss the moot cause of action. (See, e.g., Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939, 947 (Yucaipa) [reversing a judgment as moot and stating “[t]his reversal does not imply that the judgment was erroneous on the merits, but is solely for the purpose of returning jurisdiction over the case to the superior court by vacating the otherwise final judgment solely on the ground of mootness”].) We follow that prescribed disposition here.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Measure O

At the November 8, 2016 general election, City voters approved Measure O. The operative provisions of Measure O amended the City’s Zoning Code to establish two marijuana-business overlay zones (M-B Overlay 1 and M-B Overlay 2) and also established a series of related regulatory and permitting provisions pertaining to marijuana businesses. M-B Overlay 1, generally speaking, permitted marijuana cultivation and manufacturing businesses, but not retail distribution (i.e., dispensaries). M-B Overlay 2 permitted dispensaries. The specific properties that formed the overlay zones were listed by their assessor parcel numbers in a table within Measure O.

B. This action

In March 2017, Ye, 100 Hospitality, LLC, Guzman, and Californians for Responsible Government filed a petition for writ of mandate against the City seeking an order directing the City to “obey the outcome of the election.” The petition alleged that Measure O allowed for a marijuana dispensary to be established on property owned by 100 Hospitality, LLC and that Ye wished to operate a dispensary on this property. The petition also alleged that Guzman was a proponent of Measure O and that Californians for Responsible Government was a political sponsor of Measure O.

The City brought a cross-complaint against those persons who owned property that might qualify for a marijuana permit under Measure O, including appellants. In its cross-complaint, the City brought a single cause of action for declaratory relief in which it sought a “determination . . . that Measure O is invalid and unenforceable.”

C. The trial court’s decision

The trial court considered the parties’ written submission of evidence and briefs and held a hearing in this action and a series of related actions. In February 2018, the trial court issued a statement of decision in which it determined that “there is no explanation for the selection of the particular parcels chosen” by Measure O and “no rational basis supports the unexplained and apparent randomness of the selection of these particular parcels which constitute the zones.” The trial court determined that Measure O was invalid because it constituted impermissible spot zoning without a rational basis and because it created a zoning monopoly for the retail sale of marijuana.

A few weeks later, the trial court entered a judgment that stated:

“a. Pursuant to [section] 1060, the Court finds and declares that [Measure O] is invalid and unenforceable in its entirety. . . .

“b. Petitioners Quiang Ye, 100 Hospitality[,] LLC, Vincent Guzman, [and] Californians for Responsible Government’s Petition for Writ of Mandate is denied.”

D. The appeal and the trial court’s postjudgment stay order

Appellants timely appealed from the judgment in March 2018.

In April 2018, the trial court issued an order in this action that stated: “All persons and entities, prior to the entry of this Court’s . . . Judgment, [sic] permits or licenses to operate a marijuana business from both the City . . . under Measure O and the State of California under applicable state law may continue to operate such permitted businesses.”

E. Measure X

On November 6, 2018, the City’s voters adopted Measure X. Measure X states, in relevant part: “All previous ordinances related to the establishment and operation of commercial cannabis activities within the City of San Bernardino, including, without limitation, and to the extent that such ordinances may be in force before or at the time this Ordinance takes effect, the San Bernardino Regulate Marijuana Act of 2016, commonly known as Measure O . . . are hereby repealed and shall be of no further effect from the effective date of this Ordinance.”

In December 2018, the City Council certified the results of the November 6, 2018 election.

III.

DISCUSSION

A. The matter is moot

The City contends that the question presented in appellants’ appeal has become moot. We review this question of law de novo. (See Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 319 [“[i]ssues of justiciability, such as mootness, are generally reviewed de novo”]; Biodiversity Legal Foundation v. Badgley (9th Cir. 2002) 309 F.3d 1166, 1173 [“We review mootness, a question of law, de novo”].)

1. Governing law

a. General principles of law governing moot appeals

In La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2016) 2 Cal.App.5th 586, 590 (La Mirada), the Court of Appeal outlined the following well established test for determining the mootness of an appeal:

” ‘[A]n appeal is moot if ” ‘the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief.’ ” ‘ [Citations.] ‘It is well settled that an appellate court will decide only actual controversies. Consistent therewith, it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events.’ ”

b. Mootness with respect to challenges to the validity of a repealed law

” ‘Repeal or modification of a statute under attack, or subsequent legislation, may render moot the issues in a pending appeal.’ ” (Jordan v. County of Los Angeles (1968) 267 Cal.App.2d 794, 799.) More specifically, where a party brings a challenge to the validity of a law, repeal of that law before the appeal is concluded renders the appeal moot. (See e.g., Howard Jarvis Taxpayers Assn. v. City of Los Angeles (2000) 79 Cal.App.4th 242, 249 [taxpayer association’s claim for injunctive and declaratory relief to prevent future collection of registration fee for persons engaged in home occupations rendered moot by city’s revocation of fee requirement] (Howard Jarvis); City of Los Angeles v. County of Los Angeles (1983) 147 Cal.App.3d 952, 958 [concluding that challenge to the constitutionality of property taxation system was rendered moot by constitutional amendment that changed system]; Jordan, supra, 267 Cal.App.2d at p. 798 [“Without ruling on the correctness of the trial court’s determination that the purported amendments of Ordinance No. 8784 were . . . void, it is sufficient to say that the subsequent amendments and entirely new enactments make this case moot”]; Equi v. San Francisco (1936) 13 Cal.App.2d 140, 141–142 [concluding that plaintiffs’ challenge to the validity of license tax ordinance (Ordinance 5132) was moot because “[t]he provisions of said Ordinance 5132 which were attacked in the complaint have been repealed”].)

c. Declaratory relief

Section 1060 provides that “[a]ny person . . . who desires a declaration of his or her rights or duties with respect to another, . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties . . . .” (Italics added.) “Declaratory relief is appropriate where there is a justiciable controversy, but not where the dispute is moot, or only hypothetical or academic.” (City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (2003) 113 Cal.App.4th 465, 481.) Where questions presented by an action for declaratory relief are, or have become, moot, a court has no duty to proceed to determine rights and duties of the parties and the action should be dismissed. (Pittenger v. Home Sav. & Loan Asso. Los Angeles (1958) 166 Cal.App.2d 32, 36.)

2. Application

In light of the case law discussed above, it is clear that this appeal, as well as the underlying action, have become moot. The sole issue at stake in both the appeal and the underlying action for declaratory relief is the validity of Measure O. Given that Measure O is no longer in force, having been expressly repealed by Measure X, a judgment as to Measure O’s validity would be a purely advisory opinion that would have no effect. Stated differently, since the City’s cross-complaint for declaratory relief sought only a declaration of the invalidity and unenforceability of Measure O, the repeal of Measure O ” ‘ ” ‘renders it impossible . . . to grant . . . any effective relief.’ ” ‘ ” (La Mirada, supra, 2 Cal.App.5th at p. 590.) Under these circumstances, the appeal, as well as the underlying action, are moot. (See Howard Jarvis, supra, 79 Cal.App.4th at p. 249 [concluding that declaratory relief claim challenging the legality of ordinance establishing registration fee was moot where fee ordinance had been repealed].)

Appellants’ arguments to the contrary are not persuasive. In their opening brief, appellants assert that “the appeal is not completely moot” (capitalization & boldface omitted) because “the City’s political leadership has violated the separation of powers doctrine.” However, appellants fail to make a coherent legal argument in support of this contention. To begin with, appellants do not present any authority pertaining to the “separation of powers doctrine” that they reference in their brief, or how such doctrine should be applied in considering whether an action is moot.

In addition, while appellants detail the events surrounding the trial court’s issuance of its postjudgment order permitting those with City permits under Measure O to continue to operate, as well as the enactment of various ordinances relating to marijuana in San Bernardino, appellants fail to make any showing whatsoever that the enactment of these ordinances “violated the separation of powers doctrine.” In particular, while appellants assert that “[t]he City should not have attempted to affect the appeal by adopting new ordinances before this appeal is resolved,” they cite no case law supporting their broad assertion that the City, or the electorate, is precluded from legislating on an issue that is subject to ongoing litigation. Accordingly, we reject appellants’ “separation of powers” mootness argument as being completely undeveloped and without any apparent merit.

We distill three additional arguments as to mootness in appellants’ reply brief. First, appellants argue that a determination of Measure O’s validity is necessary because “if Measure O was valid at the time it was adopted[,] Appellants would have[,] and did acquire[,] vested rights to operate as nonconforming uses [sic].” Irrespective of the merits of this argument, the question whether appellants may continue to operate their businesses as a nonconforming use is not presented in this action. This action involves but a single cause of action for declaratory relief; thus, this court could not grant appellants any relief that they might seek even if we were to conclude that appellants’ nonconforming use argument was meritorious.

Second, appellants contend that Measure X “may be invalidated,” and that, if this occurs, “its purported repeal of Measure O would be set aside.” Appellants argue further that “Measure O would be revived upon the invalidation of Measure X.” Again, irrespective of the merits of these arguments, these questions are not presented in this action.

Appellants also briefly argue that the mootness doctrine should “not stand in the way of the rendition of a decision for future litigants” because it would “be helpful to marijuana activists to know whether the initiative process may be used in the manner in which it was used in this case.” The “so-called public interest exception to the mootness doctrine, . . . essentially says that appellate courts have discretion to decide a case that, although moot, poses an issue of broad public interest that is likely to recur.” (Sturgell v. Department of Fish & Wildlife (2019) 43 Cal.App.5th 35, 46.) Appellants have made no showing that a determination as to the validity of Measure O is one that poses an issue of broad public interest that is likely to recur. Accordingly, we decline to exercise our discretion to consider the merits of appellants’ appeal pursuant to the public-interest exception to the mootness doctrine.

Accordingly, we conclude that appellants’ appeal, and the underlying action, are moot.

B. The proper disposition of this appeal

Appellants contend that if this court determines that their appeal is moot, the proper disposition is to reverse the judgment as moot and to remand the matter to the trial court with directions to dismiss the city’s cross-complaint for declaratory relief.

1. Governing law

“[W]hen subsequent legislative or administrative action renders an entire controversy moot and dismissal of the appeal would have the effect of affirming the underlying judgment without having reached the merits, appellate courts usually ‘ “dispose of the case, not merely of the appellate proceeding which brought it here . . .” [citation] . . . by reversing the judgment solely for the purpose of restoring the matter to the jurisdiction of the superior court, with directions to the court to dismiss the proceeding.’ ([Paul, supra, 62 Cal.2d] at p. 134 [when ordinance that was subject of appeal was rescinded, the basis for the trial court’s judgment has ‘disappeared’; under those circumstances it was proper to reverse the judgment and remand with directions to the trial court to dismiss the proceeding rather than impliedly affirm by dismissing the appeal as moot]; accord, [Yucaipa, supra, 198 Cal.App.4th at pp.] 944–945; City of Los Angeles v. County of Los Angeles[, supra, 147 Cal.App.3d at p.] 959.)” (La Mirada, supra, 2 Cal.App.5th at p. 590.)

In Yucaipa, the Court of Appeal carefully explained the circumstances that led to the Paul court’s mootness reversal disposition:

“In Paul, Creamcrest Dairy Products Company (Creamcrest), the predecessor of Milk Depots, Inc. (Milk Depots), and a milk distributor as opposed to a milk producer, sold milk for the lesser producer’s price in violation of the minimum price set by a regulation of Director of the California Department of Agriculture Charles Paul (State). State sued to enjoin Creamcrest and recover civil penalties. The superior court rendered judgment in favor of Creamcrest, finding the regulation unauthorized by the statute under which it was promulgated. Subsequently, Creamcrest went bankrupt and Milk Depots substituted in. State appealed. [Citation.]

“While the appeal was pending, Creamcrest’s distributor’s license was revoked on other grounds, and Creamcrest ceased doing business and sold its physical plant to Milk Depots. A new regulation superseded the old regulation and omitted the producer/distributor price differential that the judge had found unauthorized. The Supreme Court held that the issues of the injunctive relief and even the civil penalties (which would have survived bankruptcy) were mooted by Creamcrest’s status as an insolvent corporation with no assets. [Citation.] Furthermore, although the public interest in the correctness of the trial court’s invalidation of the producer/distributor price differential might have justified ignoring the mootness of the case as to the parties to reach an important legal question, the effective repeal of the old regulation removed that question from consideration. [Citation.]” (Yucaipa, supra, 198 Cal.App.4th at p. 942.)

The Yucaipa court also explained the basis for the Paul court’s disposition—i.e., reversing the underlying judgment on mootness grounds:

“The question faced in Paul was what should the disposition of the appeal be from a judgment with these problems? A dismissal of the appeal was inappropriate twice over. Since the judgment’s merits had not been fully litigated, the affirmance implied by a dismissal of the appeal was unjustified. Since the case itself, not just the appeal, had been rendered moot by the disappearance of the basis for the judgment, a mere dismissal of the appeal failed to address the mootness of the case underlying the appeal. However, justifying a reversal was problematic because the reversal implied that the judgment was erroneous when the merits of the judgment had not been finally litigated. Furthermore, the reversal of the judgment would imply that additional proceedings should take place in the trial court, which would be inappropriate in view of the case’s mootness. The advantage of a reversal over a dismissal was threefold: (1) a reversal could include directions to dismiss the underlying case; (2) a reversal vacated the judgment so the court had jurisdiction to follow the directions and dismiss the case; and (3) reversal itself ensures that the judgment can have no issue preclusive effect.

“Furthermore, the reversal could be qualified so as not to imply that the judgment was in error, only moot. Thus, a qualified reversal would remove any implication that the less than fully litigated judgment had any continuing validity or effect and afford a vehicle for directing the trial court to dismiss the underlying action. This is exactly the course taken by the Supreme Court in Paul. (Paul, supra, 62 Cal.2d at pp. 134–135.)” (Yucaipa, supra, 198 Cal.App.4th at p. 944.)

2. Application

This case fits comfortably within the Paul framework. The City argues that the “question presented by this appeal[, the validity of Measure O,] . . . is now moot.” We agree, but as explained in part III.A, ante, that is the same question presented by the City’s declaratory relief cause of action in the trial court. Thus, for the same reasons that appellants’ appeal is moot, the City’s cross-complaint is also moot. Stated differently, just as the basis for the judgment in Paul had disappeared (the regulation and Creamcrest), the basis for the judgment in this case has similarly disappeared (Measure O).

In addition, as in Paul, the case underlying this appeal was rendered moot before the validity of the trial court’s judgment could be fully litigated. Therefore, just as it was “appropriate to avoid . . . ‘impliedly’ affirming a judgment which [held] unconstitutional a regulation” in Paul, supra, 62 Cal.2d at page 134, it is similarly appropriate to avoid impliedly affirming a judgment in this case that found Measure O to be invalid.

That is particularly true in this case given appellants’ contention that the trial court’s judgment could have adverse consequences to their rights in future proceedings. For example, after referring to their nonconforming use argument, appellants contend that “should [this court] decline to resolve the issue there would be an unreviewed judgment of the trial court adversely affecting the rights of Appellants.” We need not decide in this appeal whether appellants are correct as to the effect of an unreviewed judgment on their rights. It is enough to state that there is a possibility that the trial court’s unreviewed judgment could have such an effect on appellants in the future. Appellants should not be denied appellate review of the trial court’s judgment and at the same time face possible adverse collateral consequences from such a judgment. The City, which cites Paul in its brief in this court, provides no argument to the contrary.

Accordingly, we conclude that a “Paul disposition” (Yucaipa, supra, 198 Cal.App.4th at p. 942) is appropriate in this case.

IV.

DISPOSITION

The judgment is reversed as moot. This reversal does not imply that the judgment was erroneous on the merits, but is solely for the purpose of returning jurisdiction over the case to the trial court by vacating the otherwise final judgment on the ground of mootness, only. The trial court is directed to dismiss the City’s cross-complaint for declaratory relief action as moot.

The parties shall bear their own costs on appeal.

AARON, J.

WE CONCUR:

MCCONNELL, P. J.

IRION, J.