Filed 7/29/16 Greenhouse Herbal Center v. City of LosAngeles CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

GREENHOUSE HERBAL CENTER LLC,

Plaintiff and Appellant,

v.

CITY OF LOS ANGELES,

Defendant and Respondent.

 B261909

 (Los Angeles County

 Super. Ct. No. BS131798)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Amy D. Hogue, Judge. Affirmed. 

Alan M. Goldberg for Plaintiff and Appellant. 

Michael N. Feuer, City Attorney, Terry P. Kaufmann-Macias, Assistant City 

Attorney and Steven N. Blau, Deputy City Attorney for Defendant and Respondent. 

____________________________________
2

This matter is the latest in a series of lawsuits filed against the City of Los Angeles 

(City) over its attempts to regulate medical marijuana businesses within its borders. In its 

second amended complaint, Greenhouse Herbal Center LLC (Greenhouse) mounted a 

facial challenge to a repealed ordinance and alleged it was provided insufficient notice to 

register as a medical marijuana business under that ordinance. The complaint was 

dismissed without leave to amend, primarily on timeliness and mootness grounds. 

We affirm the judgment.

PROCEDURAL BACKGROUND1

Greenhouse is a cooperative of patients and caregivers operating a medical 

marijuana dispensary on Hollywood Boulevard. Greenhouse and other medical 

marijuana cooperatives came about after the voters of the State of California approved 

Proposition 215, known as the Compassionate Use Act of 1996. The Compassionate Use 

Act provides immunity from prosecution under two sections of the Health and Safety 

Code for the possession and use of marijuana for medical purposes. (Health & Saf. Code,

§ 11362.5, subd. (b).) The state legislature expanded the criminal immunities set forth in 

the Compassionate Use Act in the Medical Marijuana Program Act. (Health & Saf. 

Code, § 11362.7 et seq.) Greenhouse began operation as a collective in 2006. 

In 2007, the City passed Ordinance No. 179027 (the Interim Control Ordinance) 

banning all medical marijuana dispensaries in the City with the exception of those 

lawfully operating dispensaries which were established before the ordinance’s effective 

date and which chose to register with the city clerk. Greenhouse chose to register and 

continue operating. The Interim Control Ordinance expired by operation of law on 

September 15, 2007. 

 

1

The facts are largely taken from the second amended complaint filed by 

Greenhouse on July 31, 2014. We also provide in this opinion a severely truncated 

account of the legal history surrounding medical marijuana in California. More 

comprehensive discussions of medical marijuana legislation may be found in City of 

Riverside v. Inland Epire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th

729, 739 and Safe Life Caregivers v. City of Los Angeles (2016) 243 Cal.App.4th 1029

(Safe Life Caregivers).
3

In 2010, the City passed Ordinance No. 181069 (the Grandfather Prior 

Registrant Ordinance), which required all collectives to register and capped the maximum 

number of collectives in the City at 70, to be proportionally distributed by population. 

(L.A. Mun. Code, former § 45.19.6.2.) Greenhouse again registered as required under 

the ordinance. The City then sent a letter to Greenhouse dated August 25, 2010, which

informed Greenhouse it had met the requirements to register under the Grandfather Prior 

Registrant Ordinance and could continue to operate. The City further informed 

Greenhouse, “the City will now seek judicial consideration of the City Clerk’s 

application of LAMC §45.19.6.2.C.1, through a lawsuit involving those Collectives who 

have been classified as ineligible to register and receive priority order. [¶] We will 

notify you again when the matters of eligibility and priority order are either provisionally 

considered or rejected by the court. Only at that time will a priority list be made 

available and pre-inspections will be able to commence. Until then, you are not 

precluded from continuing your interim operation as a Collective as long as you 

comply with all other provisions of California State Law. Nothing in this letter shall 

be construed as a grant of any permanent or vested right to continue operation; nor shall 

this letter be construed as permission to conduct activities that are otherwise illegal under 

state or local law.” The City thereafter requested additional information from 

Greenhouse on December 7, 2010, to which Greenhouse timely responded. The

Grandfather Prior Registrant Ordinance sunseted on June 7, 2012. 

On December 10, 2010, the Superior Court issued an injunction finding portions 

of the Grandfather Prior Registrant Ordinance invalid. In response to the injunction, the 

City passed Ordinance 181530 (the Grandfather/Lottery Ordinance) on January 21, 2011,

as an urgency measure. It required all collectives in operation on or before September 

14, 2007, to register between February 14, 2011 and February 18, 2011, to participate in a 

lottery. Greenhouse did not receive notice from the City to submit or file anything in 

connection with the Grandfather/Lottery Ordinance. As a result, Greenhouse failed to 

fulfill the registration requirements under the Grandfather/Lottery Ordinance. It learned
4

of the registration requirements from other collectives who received letters dated March 

7, 2011, demanding their closure. Greenhouse did not receive a similar letter. 

Greenhouse brought suit against the City on May 3, 2011, challenging the 

Grandfather/Lottery Ordinance. The Grandfather/Lottery Ordinance was repealed in 

August 2012, during the course of the litigation. The City subsequently passed 

Ordinance 182443, calling for a special election on new regulations for medical 

marijuana businesses. The measure, known as Proposition D (Prop. D), was approved by 

the voters on May 21, 2013. (L.A. Ord. No. 182443.) Prop. D “enact[ed] a materially 

new ordinance that (a) prohibits medical marijuana businesses, but (b) grants a limited 

immunity from the enforcement of its prohibition to those medical marijuana businesses 

that do not violate the restrictions set forth in this ordinance[.]” (L.A. Mun. Code 

45.19.6.) Under Prop. D, medical marijuana businesses must be registered under both the 

Interim Control Ordinance and the Grandfather/Lottery Ordinance. (Safe Life 

Caregivers, supra, 243 Cal.App.4th at p. 1037.) Because Greenhouse never registered 

under the Grandfather/Lottery Ordinance in 2011, it was ineligible to operate under 

Prop. D. 

Greenhouse filed a first amended complaint on January 31, 2014, one and a half 

years after the Grandfather/Lottery Ordinance sunset and one year after Prop. D came 

into effect. Shortly thereafter, it filed a verified second amended complaint on July 31, 

2014, alleging the following causes of action, listed in order: (1) Declaratory and 

injunctive relief on the ground the Grandfather/Lottery Ordinance violated Government 

Code section 65858, subdivision (f);

2

(2) Declaratory and injunctive relief on the ground 

 

2

 Government Code section 65858 governs the implementation of interim 

ordinances as urgency measures and provides, among other things, that “upon 

termination of a prior interim ordinance, the legislative body may adopt another interim 

ordinance pursuant to this section provided that the new interim ordinance is adopted to 

protect the public safety, health, and welfare from an event, occurrence, or set of 

circumstances different from the event, occurrence, or set of circumstances that led to the 

adoption of the prior interim ordinance.” (Gov. Code, § 65858, subd. (f).)
5

the Grandfather/Lottery Ordinance violated Government Code section 65853;

3

(3) Declaratory and injunctive relief on the ground the Grandfather/Lottery Ordinance 

violated equal protection; (4) Declaratory and injunctive relief on the ground the 

Grandfather/Lottery Ordinance violated due process rights; (5) Declaratory and 

injunctive relief on the ground the Grandfather/Lottery Ordinance violated the right to 

association; (6) Declaratory and injunctive relief on the ground the Grandfather/Lottery 

Ordinance impaired vested contractual rights; (7) Declaratory and injunctive relief, 

preliminary and permanent injunction on the ground the Grandfather/Lottery Ordinance

did not apply to Greenhouse; (8) Petition for writ of administrative mandamus;

(9) Misrepresentation;

4

(10) Promissory estoppel; and (11) Declaratory and injunctive 

relief on the ground the Grandfather/Lottery Ordinance violated due process and equal 

protection under Los Angeles City Charter section 251.

In addition to facial challenges against the ordinance, Greenhouse alleged the City 

promised, but failed, to provide it sufficient notice of the filing requirements under the 

Grandfather/Lottery Ordinance. Instead, the City assured Greenhouse it had fulfilled all 

registration requirements and it would be notified if anything more was needed. 

Greenhouse alleged it was “subjected to eviction activity due to the authorities pressuring 

Greenhouse’s landlord to evict Greenhouse and notification to Greenhouse to cease its 

operation.” Although Greenhouse did not receive a letter demanding its closure, it 

believed the City was “seeking to prevent Greenhouse from operating, erroneously and 

wrongly, with collectives that were deemed ineligible.” Greenhouse made no mention of 

Prop. D in its verified second amended complaint. 

The City demurred to the second amended complaint primarily on the ground the 

Grandfather/Lottery Ordinance sunseted in 2012, over a year before the second amended 

complaint was filed, and thus Greenhouse’s challenge to it was moot. Moreover, the City 

 

3 Government Code section 65853 outlines the manner of adoption and amendment 

of zoning ordinances.

4 Greenhouse withdrew its ninth cause of action in its opposition to the demurrer. 
6

complained there was no actual controversy in that it had not closed Greenhouse and the 

second amended complaint acknowledged Greenhouse’s continued operation. The trial 

court granted the demurrer without leave to amend, reasoning, among other things, that

the challenge to the Grandfather/Lottery Ordinance was moot and Greenhouse had failed 

to state a cause of action. Greenhouse timely appealed. 

DISCUSSION

I. Standard of Review

A demurrer tests the sufficiency of the complaint; that is, whether it states facts 

sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e); Friedland 

v. City of Long Beach (1998) 62 Cal.App.4th 835, 841-842.) The trial court may consider 

all material facts pleaded in the complaint and matters of which it may take judicial 

notice.5 However, it may not consider contentions, deductions or conclusions of fact or 

law. (Code Civ. Proc., § 430.30, subd. (a); Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) 

“Where the complaint’s allegations or judicially noticeable facts reveal the existence of 

an affirmative defense, the ‘plaintiff must “plead around” the defense, by alleging 

specific facts that would avoid the apparent defense. Absent such allegations, the 

complaint is subject to demurrer for failure to state a cause of action . . . .’ [Citation.]” 

(Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824.)

We review de novo a dismissal resulting from a demurrer. (Kong v. City of 

Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1038.) 

We also conduct an independent review of the trial court’s interpretation of municipal 

law, including the relevant City ordinances. (Barner v. Leeds (2000) 24 Cal.4th 676, 

683.) Plaintiffs bear the burden of proving the trial court erred in sustaining the 

demurrer. (Ibid.) 

 

5

The City moved for this court to take judicial notice of L.A. Municipal Code 

sections 21.01 and 21.50 relating to business tax registration certificates. Because we 

find these portions of the Municipal Code to be irrelevant to our analysis, the request is 

denied. Greenhouse also sought judicial notice of its landlord’s unlawful detainer action 

against it, including the complaint, the answer, and the judgment. We likewise deny the 

request.
7

II. Greenhouse Does Not Have Any Vested Rights Under the Compassionate 

Use Act

On appeal, Greenhouse contests the trial court’s ruling on numerous grounds. In a 

70-page opening brief, Greenhouse lists 15 different reasons the trial court erred in 

sustaining the demurrer, some of which were argued below and some of which were not. 

But, it identifies the “main issue [as] whether GH had any rights under [the 

Compassionate Use Act] legislation,” positing “[t]he issue of vested rights is the crux of 

the issue on appeal.” 

We first dispense with this contention based on clearly applicable precedent. 

The California Supreme Court addressed precisely this issue in City of Riverside v. Inland 

Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729 (City of 

Riverside). There, the high court held the Compassionate Use Act and the Medical 

Marijuana Program Act did not preempt a city’s zoning provisions declaring a medical 

marijuana dispensary to be a prohibited use within city limits. (Id. at p. 752.) The court 

explained these state laws did not grant a right of access to marijuana for medicinal use or 

override the zoning, licensing, or police powers of local jurisdictions. (Id. at pp. 759-

760.) Thus, “[t]he sole effect of the statute’s substantive terms is to exempt specified 

medical marijuana activities from enumerated state criminal and nuisance statutes. Those 

provisions do not mandate that local jurisdictions permit such activities.” (Id. at pp. 760-

761; see also Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214 

Cal.App.4th 1534, 1554 (Conejo Wellness Center) [Compassionate Use Act does not 

create a broad right to cultivate, distribute or otherwise obtain marijuana without 

hindrance or inconvenience.]; City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 

1170-1171 [Compassionate Use Act did not create “‘constitutional right to obtain 

marijuana’”].)

Having addressed the overarching theory behind Greenhouse’s appeal, we now 

turn to the allegations contained in the second amended complaint to determine whether a 

cause of action has been stated. We conclude it has not and the City’s demurrer was 

properly sustained.
8

III. Facial Challenges: First through Fifth and Eleventh Causes of Action

Greenhouse alleges facial challenges to the Grandfather/Lottery Ordinance in its 

first through fifth and eleventh causes of action. We find these challenges moot. 

None of the allegations address Prop. D, the ordinance in effect at the time the 

first6and second amended complaints were filed. Instead, Greenhouse challenged the 

Grandfather/Lottery Ordinance, which it acknowledged was repealed. Facial challenges 

to repealed laws are moot. (Burke v. Barnes (1987) 479 U.S. 361, 363; O’Neal v. 

Seabury (1938) 24 Cal.App.2d 308 (O’Neal); 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 rendered moot by 

city’s revocation of fee requirement].) “It is well settled that when a cause of action rests 

upon a statute, ‘“the repeal of the statute destroys the right unless the right has been 

reduced to final judgment or unless the repealing statute contains a saving clause 

protecting the right in a pending litigation.”’” (Cross v. Bonded Adjustment Bureau

(1996) 48 Cal.App.4th 266, 275 (Cross).) Additionally, “‘[r]epeal 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.) 

This is because it is settled that “‘the duty of this court, as of every other judicial 

tribunal, is to decide actual controversies by a judgment which can be carried into effect,

and not to give opinions upon moot questions or abstract propositions, or to declare 

principles or rules of law which cannot affect the matter in issue in the case before it.’”

(Consol. Etc. Corp. v. United A. Etc. Workers (1946) 27 Cal.2d 859, 863 quoting from 

Mills v. Green (1895) 159 U.S. 651, 653.) Thus, when an event occurs which renders it 

impossible for this court, if it should decide the case in favor of plaintiff, to grant him any 

effectual relief, the matter is moot. (Ibid.) 

 

6 Although the first amended complaint is not included in the record, it is 

undisputed the first amended complaint contained no allegations regarding Prop. D.
9

Case law is illustrative. In O’Neal, supra, 24 Cal.App.2d 308, the plaintiffs 

sought an injunction to prevent the county of Madera from enforcing the provisions of an 

ordinance regulating inspections for tuberculosis in cattle, contending the ordinance 

conflicted with state law on the same subject. However, the county was specifically

excluded from the provisions of the state law due to insufficient funds. As a result, the 

county enacted the ordinance and the plaintiffs filed their suit. The matter was dismissed 

upon the county’s demurrer. (Id. at p. 309.) While the matter was on appeal, the state 

brought the county within the law from which it had previously been excluded, 

abrogating the county ordinance. The court dismissed the appeal as moot. (Id. at pp. 

311-312.)

Likewise, in Covenant Media, Cal. v. City, Huntington Park. CA (C.D. Cal. 2005) 

377 F.Supp.2d 828, the plaintiff sign company filed an action against the City of 

Huntington Park challenging an ordinance regulating advertising signs. Huntington Park 

had denied the plaintiff’s applications to display advertising signs based on this 

ordinance. After the plaintiff sued, the city adopted a new sign ordinance. The district 

court held, “[b]ecause the repeal of a statute generally demonstrates irrefutably that 

enforcement of the statute will not resume, ‘[t]he complete repeal of a challenged statute 

renders a request for an injunction against application of that statute moot.’” (Id. at 

p. 834.) However, the district court refused to dismiss the complaint without leave to 

amend because the plaintiff was entitled to seek damages from the city for the previously 

denied applications and had the right to amend the pleading to challenge the new sign 

ordinance. (Id. at pp. 840-842.)

The challenge to the Grandfather/Lottery Ordinance is similarly moot due to its 

repeal in 2012. Greenhouse’s right has not been reduced to final judgment nor does the 

Grandfather/Lottery Ordinance contain a saving clause. (Cross, supra, 48 Cal.App.4th at 

p. 275.) There is no relief which could be granted even if we were to find the 

Grandfather/Lottery Ordinance invalid on one of the myriad theories advanced by 

Greenhouse. In actuality, the Grandfather/Lottery Ordinance has been invalid since its 

repeal in 2012. 
10

However, Prop. D incorporates the Grandfather/Lottery Ordinance’s registration 

requirement within its provisions. Thus, an argument can be made that Greenhouse is 

challenging Prop. D by its allegations against the Grandfather/Lottery Ordinance. 

Greenhouse has never alleged that Prop. D is invalid due to the failures in the 

Grandfather/Lottery Ordinance however, the City even noted in its demurrer that the 

“Second Amended Complaint does not directly challenge Prop. D.” 

Greenhouse also fails to adequately incorporate a challenge to Prop. D on appeal. 

Greenhouse makes a single reference to Prop. D in its opening brief. In a footnote, it 

argues, “Prop. D suffers from the same violations as the [the Grandfather/Lottery 

Ordinance].” In its reply brief, Greenhouse argues that Prop. D does not change the 

analysis provided in the AOB because “had [Greenhouse] filed its [Notice of Intent to 

Register] timely per Ordinance 181530 it would not have been ordered to shut down 

under Prop. D.” Even if we very liberally construe these statements to mean that by 

challenging the Grandfather/Lottery Ordinance, Greenhouse is also challenging Prop. D, 

that is not the same as making an allegation in the second amended complaint. It is 

Greenhouse’s burden to state its case, on appeal and below. It has failed to do so.

In any event, the challenges made by Greenhouse to the Grandfather/Lottery 

Ordinance do not naturally transfer to Prop. D. For example, in the first cause of action, 

Greenhouse alleged the Grandfather/Lottery Ordinance was invalid because it was an 

interim control zoning ordinance in violation of Government Code section 65858. Prop.

D is not an interim control ordinance and Government Code section 65858, subdivision 

(f) does not apply to it. Further, Greenhouse asserts due process and equal protection 

claims about the Grandfather/Lottery Ordinance without explaining whether and how 

these facial claims equally apply to Prop. D, which did not adopt the entirety of the 

Grandfather/Lottery Ordinance, only its registration requirement. 

Neither is Greenhouse entitled to amend the complaint to allege a challenge to 

Prop. D. Whether a demurrer should be sustained with or without leave to amend turns 

on whether “there is a ‘reasonable possibility that the defect [in the dismissed complaint] 

can be cured by amendment.’” (Harrison v. City of Rancho Mirage (2015) 243 
11

Cal.App.4th 162, 172.) “‘The burden of proving such reasonable possibility is squarely 

on the plaintiff.’” (Ibid.) Greenhouse has not—and cannot—sustain that burden. First, 

Greenhouse did not request to amend below nor was that argument advanced in its 

opening brief. Consequently, to the extent Greenhouse believes it is entitled to amend its

complaint, it has forfeited that claim by not timely presenting it.7(Department of 

Corporations v. Superior Court (2007) 153 Cal.App.4th 916, 935.) 

Even if not forfeited, Greenhouse is time-barred from amending to assert a 

challenge to Prop. D. Government Code section 65009, subdivision (c)(1)(B) sets a 90-

day limitations period to “attack, review, set aside, void, or annul the decision of a 

legislative body to adopt or amend a zoning ordinance.” Upon expiration of the time 

limit, “all persons are barred from any further action or proceeding.” (Gov. Code,

§ 65009, subd. (e).) Greenhouse is well past the time to challenge Prop. D.

Greenhouse attempts to circumvent the 90 day statute of limitations by 

characterizing Prop. D as a public safety ordinance, rather than a zoning ordinance. 

Under Government Code section 65850, subdivision (a), “[t]he legislative body of any 

county or city may, pursuant to this chapter, adopt ordinances that . . . (a) [r]egulate the 

use of buildings, structures, and land as between industry, business, residences, open 

space . . .” Prop. D obviously regulates the use of buildings, structures and land within 

the city by providing limited immunity for medical marijuana businesses located a certain 

distance from residential zones, schools and other sensitive uses, such as parks, libraries, 

religious institutions, and child care facilities, among other regulations. (L.A. Mun. 

Code, § 45.19.3.3(L) and (O).) Similar ordinances have been held to be zoning 

ordinances. (See Conejo Wellness Center, supra, 214 Cal.App.4th at p. 1548.) Further, 

it is presumed that the enactment of a zoning ordinance is justified under the local police 

power and adapted to promote the public health, safety, morals, and general welfare. 

(Lockard v. Los Angeles (1949) 33 Cal.2d 453, 460.) Therefore, Greenhouse’s 

 

7 Greenhouse, for the first time, sought leave to amend in its reply brief. Issues 

raised for the first time in a reply brief are forfeited. (Campos v. Anderson (1997) 57 

Cal.App.4th 784, 794.) 
12

characterization of the ordinance as one to promote public safety does not obviate its 

status as a zoning ordinance.

Because Greenhouse’s facial challenges to the Grandfather/Lottery Ordinance are 

moot, we need not reach the merits of these claims, including Greenhouse’s chief 

complaint, whether sufficient notice was given of the registration requirements under the 

Grandfather/Lottery Ordinance. We also decline to address the issues raised for the first 

time on appeal and not argued or alleged below: Bane Act violations, invited error, and 

forfeiture. 

IV. Impairment of Vested Contractual Rights: Sixth Cause of Action

In Greenhouse’s sixth cause of action for impairment of vested contractual rights, 

Greenhouse contends the Grandfather/Lottery Ordinance “unlawfully interferes and 

impairs its patient members, the landlord and Greenhouse of their respective contractual 

obligations.” Greenhouse alleges the Grandfather/Lottery Ordinance violated Article 1, 

Section 10 of the United States Constitution and Article 1, Section 9 of the California 

Constitution, both of which prohibit bills of attainder, ex post facto laws and laws 

impairing the obligation of contracts. Although not alleged in the second amended 

complaint, Greenhouse also includes ex post facto and bill of attainder arguments in its 

appeal. For reasons discussed above, Greenhouse’s sixth cause of action fails for 

mootness. 

Further, Greenhouse has failed to state a cause of action under any of those 

theories. The Grandfather/Lottery Ordinance does not impair a vested contractual right 

because use of medical marijuana or operation of a medical marijuana business is not a 

vested right. (City of Riverside, supra, 56 Cal.4th at p. 753 [the Compassionate Use 

Act’s substantive provisions created no “‘broad right to use [medical] marijuana without 

hindrance or inconvenience’”]; Conejo Wellness Center, supra, 214 Cal.App.4th 1534.)

Neither is the ordinance a bill of attainder or ex post facto law. “A bill of attainder 

has been defined as a ‘legislative act which inflicts punishment without a judicial trial’; 

and an ex post facto law is one which, among other things, may either aggravate a crime, 

make it greater than it was when committed, or which changes the punishment therefor 
13

and inflicts a greater punishment than was provided for when the crime was committed.” 

(People v. Camperlingo (1924) 69 Cal.App. 466, 471 quoting Cummings v. Missouri

(1867) 71 U.S. 277, 323.) Greenhouse has failed to allege facts supporting either theory 

in the second amended complaint. 

First, the prohibition against ex post facto laws generally embraces criminal cases 

only. (Carpenter v. Pennsylvania (1855) 58 U.S. 456, 463, Foster v. Board of Police 

Commissioners (1894) 102 Cal.483, 490.) To the extent it applies to a civil matter, the 

law must nevertheless impose a punishment to constitute an ex post fact law. (Ellis v. 

Dept. of Motor Vehicles (1942) 51 Cal.App.2d 753.) In Ellis, the court held an ordinance 

was not an ex post facto law when it provided that certain convictions occurring prior to 

the effective date of the ordinance could be considered for the purpose of suspending a 

driver’s license. The court explained that the ordinance did not impose any punishment 

for past offenses. Instead, “[i]t merely directs that the applicant’s past conduct, of a sort 

obviously germane to the question in hand, be taken into consideration in passing on his 

application for a driver’s license and that the application can be denied when his conduct 

has been such that a denial would reasonably be in the public interest.” (Id. at p. 759.) 

Likewise, the Grandfather/Lottery Ordinance is not an ex post facto law simply because it 

does not punish anyone for past offenses. Instead, it properly allows for past conduct to 

be taken into consideration in allowing medical marijuana businesses to continue 

operating. (420 Caregivers, LLC v. City of Los Angeles (2012) 219 Cal.App.4th 1315,

1338.) 

Second, a law must also impose a punishment before it may be deemed a bill of 

attainder. In Garner v. Board of Public Works (1951) 341 U.S. 716, the court held a City 

Charter provision terminating the employment of city employees who had previously 

advocated overthrow of the government was not a bill of attainder. The court was 

“unable to conclude that punishment is imposed by a general regulation which merely 

provides standards of qualification and eligibility for employment.” (Id. at p. 722.) 

Likewise, we are unable to conclude that punishment is imposed by a regulation which 
14

merely provides standards of qualification and eligibility for operating a medical 

marijuana business.

V. Declaratory Relief: Seventh Cause of Action

Greenhouse’s seventh cause of action sought declaratory relief, a preliminary 

injunction, and a permanent injunction on the ground it is not operating a medical 

marijuana collective as defined under the Grandfather Prior Registrant Ordinance and the 

Grandfather/Lottery Ordinance because its members do not cultivate marijuana. 

Although this is an as-applied challenge to the Grandfather/Lottery Ordinance rather than 

a facial challenge, it is nevertheless moot because no relief is available. No action has 

been taken against Greenhouse under the authority provided by a repealed ordinance. 

Therefore, no relief may be granted to Greenhouse even if we were to hold the 

Grandfather/Lottery Ordinance did not apply to it on these grounds. More importantly, 

Prop. D clearly encompasses Greenhouse’s activities since it defines a medical marijuana 

business as “[a]ny location where marijuana is cultivated, processed, distributed, 

delivered, or given away to a qualified patient, a person with an identification card, or a 

primary caregiver.” (L.A. Mun. Code, § 45.19.6.1(A).) Greenhouse has failed to state a 

claim on this basis.

VI. Writ of Mandate: Eighth Cause of Action

Greenhouse seeks a writ of administrative mandamus in its eighth cause of action 

to compel the City “to allow Greenhouse to operate as a lawful medical marijuana 

collective in accordance with applicable California law and compel the admission of 

Greenhouse to the use and enjoyment of the rights to which Greenhouse is entitled as a 

medical marijuana collection, and from which greenhouse has been unlawfully precluded 

by [the City].” The petition fails for the reasons discussed above: it is moot and there 

exists no right or entitlement to cultivate, distribute or otherwise obtain marijuana 

without hindrance or inconvenience. (City of Riverside, supra, 56 Cal.4th at pp. 759-760; 

Conejo Wellness Center, supra, 214 Cal.App.4th at p. 1554; City of Claremont v. Kruse, 

supra, 177 Cal.App.4th at pp. 1170-1171.)
15

VII. Estoppel: Tenth Cause of Action

In the tenth cause of action for estoppel, Greenhouse alleges it relied to its 

detriment on the City’s assurance that it would “notify you again when the matters of 

eligibility and priority order are either provisionally considered or rejected by the court.” 

When the City did not notify Greenhouse of the new registration requirement under the 

Grandfather/Lottery Ordinance, Greenhouse failed to register. Due to the alleged 

misrepresentation, Greenhouse contends the City is estopped from using Greenhouse’s 

failure as a basis to force its closure. We find no estoppel claim has been asserted on 

these facts.

The court’s analysis in Cal. Cigarette Concessions v. City of L. A. (1960) 53 

Cal.2d 865 is instructive. There, a cigarette vendor requested a refund from the city for 

overpayment of sales tax based on an ongoing legal challenge to the tax. When the 

vendor inquired about the status of its refund request, the city clerk replied, “‘Your claim 

is based upon points included in the Belridge Oil Company suit. Since final outcome of 

this case is still undecided, no action can be taken by this office. Upon receipt of a final 

decision, we will take further action in this matter. If you have any other inquiries, let us 

know.’” (Id. at p. 869.) The vendor’s attorney responded, “‘I assume from your letter, 

that upon the final outcome of the Belridge Oil Company case, you will make a decision 

as to our claim. I am further assuming that no claim of defense will be made by you for 

lack of filing suit until that time.’” (Ibid.) In response, the clerk advised the attorney, 

“‘your client would be protected best by the filing of a suit against the City within the 

statutory period . . . .’” (Id. at p. 871, italics omitted.)

When the vendor brought suit after the statute of limitations had run, the city 

asserted its claim was untimely. The vendor contended the city was estopped from 

relying on the statute of limitations due to its representations that it would do nothing 

until the court had made a decision on the taxpayer case. The California Supreme Court 

held estoppel had not been established, finding certain conditions were necessary for an 

estoppel: “the party to be estopped must be apprised of the facts; the other party must be 

ignorant of the true state of the facts; the party to be estopped must have intended that its 
16

conduct be acted upon, or so act that the other party had a right to believe that it was so 

intended; and the other party must rely on the conduct to its prejudice.” (Cal. Cigarette 

Concessions v. City of L. A., supra, at p. 869.) The high court found there was nothing 

upon which to base an estoppel claim due, in part, to the fact there was nothing to show 

the city intended the vendor to rely upon any of its statements. (Ibid.)

There is likewise nothing in the City’s letter to indicate Greenhouse could rely 

upon the City to advise it of any changes in the law relating to medical marijuana. 

Greenhouse interprets the City’s letter as an assurance that it will be notified in the event 

of any change to its eligibility to operate. That interpretation is at odds with the actual 

words contained in the letter. The City merely assured Greenhouse it would “notify you 

again when the matters of eligibility and priority order are either provisionally considered 

or rejected by the court.” It further advised Greenhouse, “[n]othing in this letter shall be 

construed as a grant of any permanent or vested right to continue operation; nor shall this 

letter be construed as permission to conduct activities that are otherwise illegal under 

state or local law.” At most, the City promised to notify Greenhouse about the outcome 

of the cases challenging the Grandfather Prior Registrant Ordinance. There was no 

assurance the City would notify it of all changes to medical marijuana laws, including 

any new ordinances. A claim for estoppel has not been stated.

DISPOSITION

The judgment is affirmed. The City to recover its costs on appeal.

BIGELOW, P.J.

We concur:

FLIER, J. 

GRIMES, J.