Opinion
G043831
12-21-2011
THE PEOPLE ex rel. CITY OF DANA POINT, Plaintiff and Respondent, v. BEACH CITIES COLLECTIVE et al., Defendants; MALINDA TRAUDT, Movant and Appellant.
Schwartz Law, PC, and Jeffrey M. Schwartz for Movant and Appellant. Rutan & Tucker, LLP, A. Patrick Munoz, Douglas J. Dennington and Jennifer Farrell for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2010-00352103)
OPINION
Appeal from an order of the Superior Court of Orange County, William M. Monroe, Judge. Affirmed.
Schwartz Law, PC, and Jeffrey M. Schwartz for Movant and Appellant.
Rutan & Tucker, LLP, A. Patrick Munoz, Douglas J. Dennington and Jennifer Farrell for Plaintiff and Respondent.
This appeal is related to Malinda Traudt's earlier appeal that we recently dismissed for lack of standing. (Traudt v. City of Dana Point (2011) 199 Cal.App.4th 886 (Traudt I).) There, Traudt filed a lawsuit against the City of Dana Point (City) to obtain a declaratory judgment that City zoning ordinances constituted an unlawful ban on medical marijuana dispensaries that was preempted by state law, specifically the Compassionate Use Act (CUA) (Health & Saf. Code, § 11362.5) and the Medical Marijuana Program Act (MMPA) (§ 11362.7 et seq.). Because these state laws vest in associations and groups the right to engage in cooperative or collective medical marijuana dispensary activities (see, e.g., § 11362.775), we held individuals like Traudt lacked standing to challenge a zoning ban aimed at dispensaries. We therefore dismissed for lack of standing Traudt's appellate challenge to the trial court's demurrer ruling and dismissal of Traudt's declaratory judgment suit.
All further statutory references are to the Health and Safety Code unless otherwise specified.
Here, in this separate lawsuit, Traudt attempted below to intervene in the City's nuisance action to shut down a dispensary, Beach Cities Collective (sometimes hereafter, Beach Cities), at which she has obtained medical marijuana. She now appeals the trial court's denial of her motion to intervene. As we explain, the trial court did not err in denying her motion, and we therefore affirm the trial court's order.
I
DISCUSSION
An order denying leave to intervene is appealable. (In re Veterans' Industries, Inc. (1970) 8 Cal.App.3d 902, 916.) Because the factual predicate of Traudt's need for medical marijuana is undisputed (see Traudt I, supra, 199 Cal.App.4th at p. 891 ["Traudt's condition is tragic and presents perhaps the most compelling case imaginable for individual standing"]) and because the procedural posture in this action is straightforward, consisting simply of Traudt's motion to intervene, the trial court's denial, and her appeal, we turn immediately to the merits of her contention the trial court erred.
The right of a third person to intervene in an action pending between other parties is purely statutory. (Hausmann v. Farmers Ins. Exchange (1963) 213 Cal.App.2d 611, 614.) The Code of Civil Procedure provides for permissive ("may") or mandatory ("shall") intervention. (Code Civ. Proc., § 387, subds. (a) & (b).) Subdivision (a) of the intervention statute provides that, "[u]pon timely application, any person . . . who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding." (Code Civ. Proc., § 387, subd. (a).) Subdivision (b), under which Traudt claims a mandatory right to intervene, provides for intervention "if the person . . . claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person's ability to protect that interest . . . ." (Code Civ. Proc., § 387, subd. (b).) The statute provides in these circumstances that "the court shall, upon timely application, permit that person to intervene" "unless that person's interest is adequately represented by existing parties . . . ." (Ibid.)
Traudt asserts she has a mandatory right to intervene in the City's nuisance action against Beach Cities. Where an intervening party satisfies the statutory requirements (Code Civ. Proc., § 387, subd. (b)), the trial court lacks discretion to deny a motion to intervene. (Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 547.) "'[A]n intervenor of right has by definition . . . an interest at stake which the other parties will not fully protect, and which the intervenor can fully protect only by joining the litigation. [Citation.] . . .'" (Siena Court Homeowners Assn. v. Green Valley Corp. (2008) 164 Cal.App.4th 1416, 1424 (Siena Court).) But an interest that is affected merely as a byproduct or consequence of the litigation does not suffice to meet the requisite "direct and immediate" interest for intervention. (Id. at p. 1428.) "'"An interest is consequential and thus insufficient for intervention when the action in which intervention is sought does not directly affect it although the results of the action may indirectly benefit or harm its owner." [Citation.]'" (Ibid.)
Here, Traudt's ability, as one particular dispensary patron, to obtain medical marijuana at the outlet closest to her is a consequential interest rather than the direct and immediate subject matter of the litigation. In supplemental briefing, Traudt concedes that she does not have an ownership or other tangible property interest or right of control in the dispensary. Thus, she does not have "an interest relating to the property or transaction which is the subject of the action" as contemplated in the mandatory intervention statute. (Code Civ. Proc., § 387, subd. (b).) Moreover, even assuming the requisite interest for intervention is broader than strictly a property right or similar interest, Traudt's interest in obtaining medical marijuana at a particular dispensary remains an interest affected only as a byproduct of the underlying zoning dispute.
Traudt suggests she has weighty constitutional interests at stake that entitle her to intervene in the parties' dispute. Specifically, she asserts that her dire medical condition makes access to medical marijuana an essential component of a due process right to life, liberty, safety, happiness, and privacy, and she also relies on her basic right of medical self-determination. (See Cal. Const., art. 1, § 1; see also Conservatorship of Drabick (1988) 200 Cal.App.3d 185, 206 [noting fundamental right to control medical treatment].) She argues that because these rights are personal to her, Beach Cities Collective cannot adequately represent her interests though they coincide with, and are no broader than, the dispensary's interest in thwarting closure. Traudt seeks to intervene only to assist Beach Cities in fighting the City's attempt to close the dispensary; she does not suggest the City is somehow required to provide her with medical marijuana or that she has a civil rights cause of action against the City or is entitled to any personal remedy except to the extent she would benefit from having the dispensary remain open. Accordingly, her interest remains a derivative, ancillary interest that is dependent on the legal merits of the dispensary's right, if any, to stay in business. As noted, a consequential interest is insufficient to warrant intervention. (Siena Court, supra, 164 Cal.App.4th at p. 1424.)
Moreover, the constitutional gloss Traudt applies to her claims does not warrant intervention because, as we explained in Traudt I, her asserted right of access to medical marijuana is founded in the CUA and MMPA, not the federal or state Constitutions. Specifically, we noted in Traudt I that her "asserted right to medical marijuana at a dispensary and her corresponding demands for due process of law, equal protection, and medical self-determination are founded here in the statutory right of collective or cooperative production of marijuana. As we have explained, that right and the corresponding right to resist allegedly unlawful local infringements belong — by the very statutory authority Traudt relies on — to groups organized as cooperative or collective medical marijuana dispensaries, and not to any lone individual." (Traudt I, supra, 199 Cal.App.4th at p. 897.) Accordingly, the right Traudt attempts to assert to defend against the City's nuisance action actually belongs to the dispensary, not Traudt.
The trial court recognized Traudt was, in essence, attempting to split her claims against the City into two separate actions, her own declaratory judgment action and as an intervenor in the City's nuisance lawsuit. Because her interest is merely derivative of the dispensary's success or failure in the nuisance litigation, and is also tangential because her asserted right to dispensary-produced medical marijuana depends on the dispensary's independent business decisions (Traudt I, supra, 199 Cal.App.4th at p. 898), the trial court did not err in denying Traudt's attempt to intervene in the lawsuit. We therefore affirm the trial court's order, and our stay pending this appeal on enforcement action against the dispensary for any asserted nuisance violations is dissolved.
The City filed two motions to dismiss the appeal, first because Traudt failed to include in the appellate record her proposed complaint in intervention or the pleadings or other filings from her declaratory judgment action and, second, because the City reached with at least one dispensary principal a settlement agreement not to attempt to reopen the dispensary. Traudt's failure to provide a complete record makes it impossible to determine whether she satisfied the prerequisites for intervention, including adhering to proper procedures. (California Assn. of Professional Scientists v. Schwarzenegger (2006) 137 Cal.App.4th 371, 379-380.) Instead of dismissing Traudt's appeal, however, we grant the City's alternative motion to augment the record with the missing documents. We deny the City's second motion to dismiss the appeal because the settlement agreement does not prevent other dispensary principals from attempting to reopen Beach Cities Collective at the same or a different location, subject to a renewed nuisance prosecution by the City that, in turn, would invite Traudt to attempt to intervene again. Because the issue of Traudt's intervention is thus prone to repetition while evading review due to repeated dismissals, we have chosen to exercise our discretion to decide the appeal on the merits.
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II
DISPOSITION
The trial court's order denying Traudt's motion to intervene is affirmed. In the interests of justice, each party shall bear its own costs on appeal.
ARONSON, J. WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.