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Filed 3/17/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

CITY OF PALM SPRINGS,

Plaintiff, Cross-defendant and 

Respondent,

v.

LUNA CREST INC.,

Defendant, Cross-complainant and 

Appellant.

E062654

(Super.Ct.No. PSC1404912)

OPINION

APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. 

Affirmed.

Law Offices of James DeAguilera and James DeAguilera for Defendant, Crosscomplainant and Appellant.

Woodruff, Spradlin & Smart, Jason M. McEwen and Vincent K. Wong for 

Plaintiff, Cross-defendant and Respondent.

Defendant, cross-complainant and appellant Luna Crest Inc. (Luna) opened a 

medical marijuana dispensary within the city limits of plaintiff, cross-defendant and 

respondent City of Palm Springs (City). The Palm Springs Municipal Code requires a 
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permit to operate a marijuana dispensary in the City, which Luna did not obtain. Luna 

contends that the City ordinance requiring a permit is preempted by federal law and, 

therefore, invalid and unenforceable. This appeal arises from the trial court’s order 

denying Luna’s motion for a preliminary injunction. We affirm.1

I. FACTUAL AND PROCEDURAL BACKGROUND

The material facts underlying this matter are straightforward and undisputed:

Luna opened a medical marijuana dispensary in the City without obtaining the permit

required under local law. Luna contends the law requiring it to obtain a permit is 

preempted by federal law, and therefore invalid and unenforceable, and opened its 

dispensary with the express purpose of provoking litigation to test that contention. The 

City obliged.

More specifically, chapter 5.35 of the Palm Springs Municipal Code2 establishes a 

“Comprehensive Medical Cannabis Regulatory Program.” Section 5.35.100 provides that 

“[n]o person shall engage in the business or activity of cultivating, possessing, selling, 

distributing, dispensing, or offering to sell, distribute, or dispense Medical Cannabis or 

Medical Cannabis Infused Product unless such person fully complies with the provisions 

of this Chapter, [and] has received any and all permits required in this Chapter . . . .” 

 

1

 Also pending is Luna’s request for judicial notice of a particular section of the 

Palm Springs Municipal Code. The request is unopposed and will be granted on that 

basis. Our disposition of this appeal, however, does not require discussion of the noticed 

code section.

2

 Except as otherwise indicated, further undesignated section references are to the 

Palm Springs Municipal Code.
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Section 5.35.200 requires that “[p]rior to initiating operations and as a continuing 

requisite to conducting operations, the legal representative of the persons wishing to 

operate a [medical cannabis cooperative or collective] shall obtain and maintain a permit 

from the City Manager under the terms and conditions set forth in this Chapter.” Section 

5.35.120 previously set the maximum number of permitted “medical cannabis 

cooperatives and collectives” operating in the City at any time at four; Palm Springs 

Ordinance No. 1879, enacted June 17, 2015, modified section 5.35.120, raising that 

number to six. Luna did not obtain a permit before opening its dispensary, or at any other 

time.3

In addition to the permitting requirement, the City’s medical marijuana laws 

authorize the city manager to “formulate, adopt, and amend from time to time, rules and 

regulations regarding the safety and potency of medical cannabis” that is distributed by 

dispensaries in the City. (§ 5.35.710, subd. (A).) The city manager is authorized to 

contract with one or more testing centers to assist in formulating those regulations, and to 

perform periodic and random testing of the products distributed at each dispensary 

operating in the City. (§ 5.35.710, subd. (B).)

The City brought suit in September 2014, seeking and obtaining a preliminary 

injunction against Luna’s continued operation of the unpermitted dispensary.4 

Subsequently, in October 2014, Luna filed a cross-complaint, alleging that the provisions 

 

3

 As best we can determine, Luna never applied for a permit from the City; 

nothing in the present record, at any rate, indicates otherwise.

4

 Luna’s appeal of the trial court’s order granting a preliminary injunction was 

dismissed by this court for failure to pay the required filing fee.
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of the Palm Springs Municipal Code that regulate medical marijuana—and in particular, 

the provisions requiring a permit to operate a medical marijuana dispensary—are invalid 

and unenforceable, because they are preempted by federal law. Luna filed a motion 

seeking a preliminary injunction against continued enforcement of the City’s permitting 

requirement. The trial court denied the motion.

II. DISCUSSION

A. Luna Does Not Lack Standing.

The City argues that Luna lacks standing to challenge the City’s permit 

requirement. We disagree.

“‘As a general principle, standing to invoke the judicial process requires an actual 

justiciable controversy as to which the complainant has a real interest in the ultimate 

adjudication because he or she has either suffered or is about to suffer an injury of 

sufficient magnitude reasonably to assure that all of the relevant facts and issues will be 

adequately presented to the adjudicator. [Citations.] To have standing, a party must be 

beneficially interested in the controversy; that is, he or she must have “some special 

interest to be served or some particular right to be preserved and protected over and 

above the interest held in common with the public at large.” [Citation.] The party must 

be able to demonstrate that he or she has some such beneficial interest that is concrete 

and actual, and not conjectural or hypothetical.’ [Citation.]” (County of San Diego v. 

San Diego NORML (2008) 165 Cal.App.4th 798, 814 (County of San Diego), italics 

omitted.)
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There is nothing conjectural or hypothetical about the injury that Luna alleges it 

has suffered. Luna opened a medical marijuana dispensary and was forced to shut it 

down when the City brought suit and obtained an injunction enforcing the City’s permit

requirement. Luna contends the permit requirement is unlawful and unenforceable. 

Luna, therefore, “‘“‘personally has suffered [an] actual . . . injury as a result of the 

putatively illegal conduct of the [the City]’”’” and has standing to assert its challenge to 

the City’s asserted legal basis for that conduct. (County of San Diego, supra, 165 

Cal.App.4th at p. 814.) The proposition that Luna has no interest in the matter separate 

or different from the public at large, asserted by the City, is belied by the undisputed 

facts.

To be sure, as the City points out, there is a certain irony, if not hypocrisy, in 

Luna’s invocation of federal drug laws as a basis for invalidating the City’s permitting 

requirements, given Luna’s intention to operate a medical marijuana dispensary in 

violation of those very federal drug laws. The City cites no authority, however, for the 

proposition that irony or hypocrisy alone may vitiate standing, and we are aware of none. 

We turn, therefore, to the merits of Luna’s claims.

B. The City’s Permitting Requirements Are Not Preempted by Federal Law.

Luna argues that the City’s regulatory program for medical marijuana dispensaries

is preempted by federal law, arguing that by not just decriminalizing, but affirmatively 

permitting the operation of medical marijuana dispensaries, the City violates federal drug 

laws. Applying the applicable de novo standard of review (Spielholz v. Superior Court

(2001) 86 Cal.App.4th 1366, 1371), we reject Luna’s arguments.
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As an initial matter, we note that the primary authority cited in Luna’s opening 

brief directly in support of its contentions regarding federal preemption is a California 

appellate opinion that is no longer published, because a petition for review was granted 

by the California Supreme Court, and the case was later dismissed without ordering 

republication. (Pack v. Superior Court, review granted Jan. 18, 2012, S197169, review 

dismissed by Pack v. Superior Court, 2012 Cal. LEXIS 8531 (Cal., Aug. 22, 2012).) The 

California Rules of Court, with exceptions not applicable here, provide that unpublished

opinions of this state’s courts of appeal “must not be cited or relied on by a court or a 

party in any other action.” (Cal. Rules of Court, rule 8.1115; McMahon v. City of Los 

Angeles (2009) 172 Cal.App.4th 1324, 1336, fn. 10 [citation of appellate court opinion 

superseded after the Supreme Court granted review violates rule 8.1115].) “Appellant’s 

counsel should know better. It goes without saying we have not considered such 

improper authority.” (People v. Wallace (2009) 176 Cal.App.4th 1088, 1105, fn. 9.)

Turning now to the substance of Luna’s claim of preemption, we find no merit in 

the assertion that City’s permit requirement for medical marijuana dispensaries is 

preempted by federal law. Luna suggests that both “conflict preemption” and “obstacle 

preemption” principles require the conclusion that the City’s permit requirement is 

preempted by federal law. “Conflict preemption exists when ‘simultaneous compliance 

with both state and federal directives is impossible,’” creating a “positive conflict with 

federal law.” (Qualified Patients Assn. v. City of Anaheim, 187 Cal.App.4th 734, 758-

759 (Qualified Patients).) The city’s permit requirement would be preempted under 

obstacle preemption principles if it “‘“‘stands as an obstacle to the accomplishment and 
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execution of the full purposes and objectives of Congress.’”’” (Id. at p. 760.) 

“[O]bstacle preemption only applies if the state enactment undermines or conflicts with 

federal law to such an extent that its purposes ‘“cannot otherwise be 

accomplished . . . .”’” (Id. at p. 761.)

With respect to conflict preemption, Luna has pointed to no specific provision of 

the City’s regulation of medical marijuana dispensaries that is in “positive conflict” with 

federal drug laws, and indeed the City’s permitting requirements do not require anything 

that the federal Controlled Substances Act forbids. (See Qualified Patients, supra, 187 

Cal.App.4th at p. 759.) Luna asserts that the circumstance that the City affirmatively 

permits—rather than merely decriminalizing—medical marijuana dispensaries “violates 

the federal law.” It emphasizes specifically the City’s involvement not only in allowing a 

certain number of dispensaries to operate, but in overseeing their operation through 

regulations, including testing requirements regarding safety and potency of the marijuana 

and marijuana products being dispensed.

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 But in fact, the Controlled Substances Act 

“does not direct local governments to exercise their regulatory, licensing, zoning, or other 

power in any particular way,” so exercise of those powers “with respect to the operation 

of medical marijuana dispensaries that meet state law requirements would not violate 

conflicting federal law .” (Qualified Patients, supra, at p. 759.) Moreover, with limited 

exceptions not relevant here, federal law confers immunity on any “duly authorized 

 

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 We note that at other points in its briefing, Luna apparently concedes the City’s 

right to “regulate” medical marijuana dispensaries within city limits, while contesting 

only the City’s right to require a permit for a medical marijuana dispensary to operate. 

We need not attempt to reconcile this apparent inconsistency.
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officer of any State, territory, [or] political subdivision thereof, . . . who shall be lawfully 

engaged in the enforcement of any law or municipal ordinance relating to controlled 

substances.” (21 U.S.C. § 885(d).) Luna’s premise that the City’s implementation of its 

permitting and testing requirements for medical marijuana dispensaries is in violation of 

federal law is therefore false.

Similarly, with respect to obstacle preemption, Luna articulates no persuasive 

reason why the City’s regulatory program for medical marijuana should be considered to 

stand as an obstacle to the purposes and objectives of Congress. “Congress enacted the 

[Controlled Substances Act] to combat recreational drug abuse and curb drug 

trafficking.” (City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 383.) 

Nothing about the City’s regulatory program for medical marijuana stands in the way of 

those purposes. (See Qualified Patients, supra, 187 Cal.App.4th at pp. 760-761 

[rejecting argument that state medical marijuana laws are preempted under obstacle 

preemption].) To the contrary, common sense suggests that a strong local regulatory 

regime governing medical marijuana related conduct would tend to prevent the 

transformation of purported nonprofit medical marijuana dispensaries into “profiteering 

enterprises” that contribute to recreational drug abuse and drug trafficking.6 (Id. at p. 

760.)

 

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 Apparently, at least the executive branch of the federal government agrees. An 

August 29, 2013 memorandum issued by the Department of Justice to all United States 

attorneys, which was submitted by the City for consideration by the trial court, provides 

guidance to the United States attorneys regarding enforcement of federal drug laws, in 

light of the decriminalization of marijuana in some states. The guidance offered “rests on 

[the Department of Justice’s] expectation that states and local governments that have 

[footnote continued on next page]
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In short, we find that the City’s regulatory program for medical marijuana 

dispensaries neither conflicts with federal law, nor stands as an obstacle to its purposes 

and objectives. As such, the trial court properly denied Luna’s request for an injunction 

against its enforcement.

III. DISPOSITION

The order appealed from is affirmed. The City is awarded its costs on appeal.

CERTIFIED FOR PUBLICATION

HOLLENHORST

 J.

We concur:

RAMIREZ

 P. J.

MILLER

 J.

 

[footnote continued from previous page]

enacted laws authorizing marijuana-related conduct will implement strong and effective 

regulatory and enforcement systems” to ensure that those laws “do not undermine federal 

enforcement priorities.”