QUAL. PAT. v. CITY OF ANA

xpressly has exempted from "criminal liability" in sections 11362.765 and 11362.775. Put another way, it seems odd the Legislature would disagree with federal policymakers about including medical marijuana in penal and drug house abatement legislation (compare 21 U.S.C. §§ 812, 856 with Health Saf. Code, §§ 11362.765, 11362.775), but intend that local legislators could side with their federal — instead of state — counterparts in prohibiting and criminalizing property uses "solely on the basis" of medical marijuana activities. (§§ 11362.765, 11362.775.) After all, local entities are creatures of the state, not the federal, government.

City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153 1100 Cal.Rptr.3d 11, on which the city relies, did not involve an ordinance like Anaheim's, which potentially contradicts sections 11362.765 and 11362.775 by making the use of property a crime "solely on the basis" of otherwise lawful medical marijuana activity. The city also relies on City of Corona v. Naulls (2008) 166 Cal.App.4th 418 [ 83 Cal.Rptr.3d 1], which did not involve or discuss section 11362.765 or 11362.775, nor section 11366, 11366.5, or 11570. Additionally, unlike the scenario here, both Kruse and Naulls involved plaintiffs that ignored or circumvented established procedures for obtaining a business license, instead of seeking a declaratory judgment. And both cases involved temporary moratoriums rather than the permanent dispensary ban alleged here. Again, cases are not determinative for issues not considered.

But in supplemental briefing at our invitation, the city and its amici curiae demonstrate the issue of state preemption under the MMPA is by no means clear cut or easily resolved on first impressions. They argue with much appeal, for example, that if the immunity from "criminal liability" provided in sections 11362.765 and 11362.775 applies to "the well-recognized quasi-criminal nature of [s]ection 11570," the "careful phrasing of the MMPA provides no suggestion that this narrow exclusion was intended to wholly eliminate any remedy for activities determined to be an ordinary nuisance under . . . legal authority" apart from section 11570. (Original italics; see also 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 70, p. 144 [noting § 11570 qualifies as "civil in nature," but also "quasi-criminal in effect" and "character"].) We do not decide these issues.

Observing that section 11570 "deems `[e]very building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance' to be a public nuisance," counsel for Tehama County, as amicus curiae for the city, argues: "At very most, the MMPA's exclusion of qualified persons from [s]ection 11570 would preempt an ordinance that similarly attempted to proscribe every premises upon which qualified medical marijuana activities take place." (Original italics.) According to counsel, "Anaheim's Ordinance No. 6067 does no such thing. Rather, the Ordinance prohibits a certain manner of conducting such activities within City limits, specifically by regulating the number of persons that may engage in such activity upon a single premises. (See Anaheim Mun. Code, § 4.20.020 [defining a regulated dispensary as a `facility or location where medical marijuana is made available to and/or distributed by or to three or more' qualified persons].)" (Original italics.)
The city views its ordinance as a complete ban on typical medical marijuana dispensaries. A ban accomplished by local legislation is lawful, according to the city, because "[t]he Legislature, in adopting the MMP[A], did not exempt qualified persons from a[ll] criminal or civil liability, only specified criminal statutes." The city also argues that the immunities provided in section 11362.775 apply, by the terms of the statute, only to collective or cooperative "cultivat[ion]" of medical marijuana. Conceivably, the agricultural and group nature of such an undertaking might heighten a local government's interest in regulating or banning such uses, particularly in a dense urban environment. If the city is correct, however, that the MMPA authorizes combined efforts only for cultivating marijuana and not for activities such as storing or dispensing it away from the cultivation site (compare § 11362.775 with § 11362.765), the absence of a collective or cooperative means to distribute medical marijuana to qualified persons may suggest the Legislature intended nearby access through widespread cultivation locations. On this view, local authorities would have grounds to ban typical dispensaries if they lack a role in the actual cultivation process, but perhaps not bar altogether, for example, cooperative marijuana gardens or collective cultivation sites where qualified patients or their primary caregivers could obtain their medication.

As anxious as we, the parties, and amici curiae are to reach this important and interesting question of state preemption, this case in its present posture is not the occasion to do so. Because it appears the trial court, apart from the asserted fundamental defect of federal preemption, did not address or determine that plaintiffs failed to state a claim for declaratory relief under the MMPA, as opposed to the CUA or Unruh Civil Rights Act, it is not our province to do so in the first instance. Moreover, as noted, factual issues that we may not resolve on appeal remain, including whether plaintiffs qualify as primary caregivers or otherwise for the MMPA's asserted protection against an ordinance imposing criminal punishment for operating a dispensary, and the manner in which plaintiffs intend to conduct their medical marijuana activities.

In our common law tradition, the "legal rules that emerge from judicial opinions are `precepts attaching a definite detailed legal consequence to a definite, detailed state of facts.'" (Aldisert, Max Rosenn: An Ideal Appellate Judge (2006) 154 U.Pa. L. Rev. 1025, 1030-1031, quoting Pound, Hierarchy of Sources and Forms in Different Systems of Law (1933) 7 Tul. L. Rev. 475, 482.) Here, we have precious few facts concerning plaintiffs' planned medical marijuana activities. At demurrer, on the few facts known about the manner in which QPA intends to operate, we cannot say plaintiffs have failed to state a cause of action to obtain declaratory judgment on whether the MMPA preempts the city's ordinance.

In sum, demurrer is not the proper context to reach and resolve the merits of plaintiffs' claim for declaratory judgment. "When," as here, "the complaint sets forth facts showing the existence of an actual controversy between the parties relating to their respective legal rights and duties and requests that these rights and duties be adjudged, the plaintiff has stated a legally sufficient complaint for declaratory relief. It is an abuse of discretion for a judge to sustain a demurrer to such a complaint and to dismiss the action, even if the judge concludes that the plaintiff is not entitled to a favorable declaration." (Judges Benchbook, supra, § 12.83, p. 52.) As noted, "the plaintiff is entitled to a declaration of rights even if it is adverse to the plaintiff's interest." ( Ibid.) We express no opinion on the merits of the parties' positions, but instead remand to allow the parties and the trial court to address these issues in further proceedings, including summary judgment or trial, if triable issues of fact remain unresolved.

Accordingly, we must deny as moot in this appeal plaintiffs' request for judicial notice concerning the legislative history of the MMPA.

We now turn to the trial court's conclusion the city was entitled to prevail on demurrer based on federal preemption.

D. Federal Law Does Not Preempt the CUA or the MMPA

The city asserts, and the trial court agreed, that plaintiffs' complaint fails to state a cause of action for declaratory relief under the CUA and the MMPA because federal law preempts those enactments. Noting that the Controlled Substances Act (CSA) continues to prohibit the possession of marijuana even for medical users (see 21 U.S.C. §§ 812, 844(a); Gonzales v. Raich (2005) 545 U.S. 1, 26-29 [ 162 L.Ed.2d 1, 125 S.Ct. 2195] ( Gonzales); United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, 491-495 [ 149 L.Ed.2d 722, 121 S.Ct. 1711] ( Oakland Cannabis)), the trial court viewed the CUA and the MMPA as an attempted "state[] override of federal law to make the drug marijuana legal, or . . . to make legal the sale of marijuana through medical marijuana dispensaries."

In Gonzales, the high court held intrastate growth and use of medical marijuana under the CUA did not place the defendants there beyond the CSA's reach, since Congress's plenary commerce power extends to these activities. ( Gonzales, supra, 545 U.S. at pp. 17, 26-29.) And in Oakland Cannibis, the court held the CSA did not authorize an implied defense to its penal provisions based on medical necessity, even where a state strictly controlled access to medical marijuana. ( Oakland Cannibis, supra, 532 U.S. at p. 491.) To the contrary, the terms of the CSA reflect Congress's conclusion that marijuana serves no medical purpose. ( Oakland Cannibis, at p. 491.) Relying on Gonzales and Oakland Cannibis and reasoning that states do not have authority to override federal law, the trial court found that federal law preempted the CUA and the MMPA. Accordingly, the trial court sustained without leave to amend the city's demurrer to plaintiffs' first cause of action for a declaratory judgment that state law preempted the city's ordinance.

Whether federal law preempts state law is a legal issue that we review de novo. ( Spielholz v. Superior Court (2001) 86 Cal.App.4th 1366, 1371 [ 104 Cal.Rptr.2d 197] ( Spielholz).) As we explain below, California's decision in the CUA and the MMPA to decriminalize for purposes of state law certain conduct related to medical marijuana does nothing to "override" or attempt to override federal law, which remains in force. (See, e.g., Gonzales and Oakland Cannibis.) To the contrary, because the CUA and the MMPA do not mandate conduct that federal law prohibits, nor pose an obstacle to federal enforcement of federal law, the enactments' decriminalization provisions are not preempted by federal law.

Congress has the power to preempt state law under the Constitution's supremacy clause. ( U.S. Const., art. VI, cl. 2; see, e.g., Crosby v. National Foreign Trade Council (2000) 530 U.S. 363, 372-374 [ 147 L.Ed.2d 352, 120 S.Ct. 2288] ( Crosby); Gibbons v. Ogden (1824) 22 U.S. 1, 211 [ 6 L.Ed. 23]; McCulloch v. Maryland (1819) 17 U.S. 316, 427 [ 4 L.Ed. 579].) "[T]here is," however, "a strong presumption against federal preemption when it comes to the exercise of historic police powers of the states. [Citations.] That presumption will not be overcome absent a clear and manifest congressional purpose." ( People v. Boultinghouse (2005) 134 Cal.App.4th 619, 625 [ 36 Cal.Rptr.3d 244] ( Boultinghouse).) Because regulation of medical practices and state criminal sanctions for drug possession are historically matters of state police power, we must take a narrow view of any asserted federal preemption in these areas narrowly. ( County of San Diego, supra, 165 Cal.App.4th at pp. 822-823.)

Our Supreme Court has identified "four species of federal preemption: express, conflict, obstacle, and field. [Citation.] [¶] First, express preemption arises when Congress `define[s] explicitly the extent to which its enactments pre-empt state law. [Citation.] Pre-emption fundamentally is a question of congressional intent, [citation], and when Congress has made its intent known through explicit statutory language, the courts' task is an easy one.' [Citations.] Second, conflict preemption will be found when simultaneous compliance with both state and federal directives is impossible. [Citations.] Third, obstacle preemption arises when `"under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."' [Citations.] Finally, field preemption, i.e., `Congress' intent to pre-empt all state law in a particular area,' applies `where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress "left no room" for supplementary state regulation.' [Citation.]" ( Viva! Internal. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935-936 [ 63 Cal.Rptr.3d 50, 162 P.3d 569], fn. omitted ( Viva!).)

The first and the last of the foregoing categories do not apply here, given language in the CSA "demonstrat[ing] Congress intended to reject express and field preemption of state laws concerning controlled substances." ( County of San Diego, supra, 165 Cal.App.4th at p. 819.) Specifically, section 903 of title 21 of the United States Code provides: "No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together." (Italics added.) With this language, Congress declined to assert express preemption in the area of controlled substances and directly foreswore field preemption ( County of San Diego, at p. 819), leaving only conflict preemption and obstacle preemption as potential bases supporting the trial court's preemption ruling.

1. Conflict Preemption

Conflict preemption exists when "simultaneous compliance with both state and federal directives is impossible." ( Viva!, supra, 41 Cal.4th at p. 936.) The city does not explain how any of the state law decriminalization provisions of the CUA or the MMPA create a positive conflict with federal law, so that it is impossible to comply with both federal and state laws. A claim of positive conflict might gain more traction if the state required, instead of merely exempting from state criminal prosecution, individuals to possess, cultivate, transport, possess for sale, or sell medical marijuana in a manner that violated federal law. But because neither the CUA or the MMPA require such conduct, there is no "positive conflict" with federal law, as contemplated for preemption under the CSA. ( 21 U.S.C. § 903.) In short, nothing in either state enactment purports to make it impossible to comply simultaneously with both federal and state law.

As we explained in City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 385 [ 68 Cal.Rptr.3d 656] ( Garden Grove), "no conflict" arises "based on the fact that Congress has chosen to prohibit the possession of medical marijuana, while California has chosen not to." Simply put, "California's statutory framework has no impact on the legality of medical marijuana under federal law. . . ." ( Ibid.; accord, Hyland v. Fukuda (9th Cir. 1978) 580 F.2d 977, 981 [state law allowing felons to carry guns not preempted by contrary federal law since "there is no conflict between" the two].) As we observed in Garden Grove, the high court's decision in Gonzales demonstrated the absence of any conflict preventing coexistence of the federal and state regimes since "`[e]nforcement of the CSA can continue as it did prior to the [CUA].'" ( Garden Grove, at p. 385.) No positive conflict exists because neither the CUA nor the MMPA require anything the CSA forbids.

The city asserts, without explanation, that "[t]he requirement that cities, in effect, permit storefront dispensaries to operate within their boundaries positively conflicts with the CSA." It is true that California and the federal government have conflicting views of the potential health benefits of marijuana. But that does not mean the application of state and federal laws are in conflict. If state law in fact preempts the city's ordinance — a question we have noted is not yet ripe in this proceeding, we discern nothing in the city's compliance with state law that would require the violation of federal law. The federal CSA does not direct local governments to exercise their regulatory, licensing, zoning, or other power in any particular way. Consequently, a city's compliance with state law in the exercise of its regulatory, licensing, zoning, or other power with respect to the operation of medical marijuana dispensaries that meet state law requirements would not violate conflicting federal law. And we see no reason to suppose state law preemption of the ordinance would require a city or its employees or agents to operate a medical marijuana dispensary or otherwise engage in conduct prohibited by the CSA. The fact that some individuals or collectives or cooperatives might choose to act in the absence of state criminal law in a way that violates federal law does not implicate the city in any such violation. As we observed in Garden Grove, governmental entities do not incur aider and abettor or direct liability by complying with their obligations under the state medical marijuana laws. ( Garden Grove, supra, 157 Cal.App.4th at pp. 389-390; accord, County of San Diego, supra, 165 Cal.App.4th at p. 825, fn. 13.) Consequently, we conclude the city's positive conflict argument is without merit.

2. Obstacle Preemption

Obstacle preemption does not support the trial court's preemption determination either. A state enactment becomes a nullity under obstacle preemption when, "`"under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."' [Citations.]" ( Viva!, supra, 41 Cal.4th at p. 936.) If the purpose of the federal act "` cannot otherwise be accomplished — if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect — the state law must yield to the regulation of Congress within the sphere of its delegated power.'" ( Crosby, supra, 530 U.S. at p. 373, italics added.)

In County of San Diego, the court concluded the MMPA's "identification card laws do not pose a significant impediment to specific federal objectives embodied in the CSA" because the CSA's purpose "is to combat recreational drug use, not to regulate a state's medical practices." ( County of San Diego, supra, 165 Cal.App.4th at pp. 826-827, citing Gonzales v. Oregon (2006) 546 U.S. 243, 272-273 [ 163 L.Ed.2d 748, 126 S.Ct. 904] [construing CSA as a "statute combating recreational drug abuse" rather than as an "expansive" interposition of "federal authority to regulate medicine"].)

Here, the city identifies section 11362.775, enacted by the MMPA, as the specific state statutory obstacle triggering federal preemption. According to the city, this section "poses a significant impediment" to the CSA's purpose of combating recreational drug use because it "is being abused by persons and groups to open storefront dispensaries for profit." (Italics added.) As noted ante, however, the MMPA bars individuals and any collective, cooperative, or other group from transforming medical marijuana projects authorized under the MMPA into profiteering enterprises. (§ 11362.765, subd. (a) ["nothing in this section shall authorize . . . any individual or group to cultivate or distribute marijuana for profit"].)

The city further explains "[t]he `obstacle' to federal goals presented by Section 11362.775 is the creation of the exemption for collectives," which is "being abused" "by allowing the diversion of `medical' marijuana to those not qualified to use it." But the city's complaint is thus not that state law amounts to an obstacle to federal law, but that "abuse[]" or violation of state law does. These circumstances call for enforcement of the state law, not its abrogation. Upholding the law respects the state's authority to legislate in matters historically committed to its purview. ( Boultinghouse, supra, 134 Cal.App.4th at p. 625.)

In any event, obstacle preemption only applies if the state enactment undermines or conflicts with federal law to such an extent that its purposes "`cannot otherwise be accomplished. . . .'" ( Crosby, supra, 530 U.S. at pp. 373-374 [holding Mass. law restricting purchase of goods or services from companies doing business in Burma conflicted with federal legislation delegating control of economic sanctions to the President].) Preemption theory, however, is not a license to commandeer state or local resources to achieve federal objectives. As Judge Kozinski has explained: "That patients may be more likely to violate federal law if the additional deterrent of state liability is removed may worry the federal government, but the proper response — according to New York and Printz — is to ratchet up the federal regulatory regime, not to commandeer that of the state." ( Conant v. Walters (9th Cir. 2002) 309 F.3d 629, 646 (cone. opn. of Kozinski, J.), original italics.)

On the facts presented in County of San Diego, the court noted "the unstated predicate" of the obstacle preemption argument was "that the federal government is entitled to conscript a state's law enforcement officers into enforcing federal enactments, over the objection of that state, and this entitlement will be obstructed to the extent the identification card precludes California's law enforcement officers from arresting medical marijuana users." ( County of San Diego, supra, 165 Cal.App.4th at p. 827.) The court rejected the argument, as follows: "The argument falters on its own predicate because Congress does not have the authority to compel the states to direct their law enforcement personnel to enforce federal laws. In Printz v. United States (1997) 521 U.S. 898 [ 138 L.Ed.2d 914, 117 S.Ct. 2365], the federal Brady Act purported to compel local law enforcement officials to conduct background checks on prospective handgun purchasers. The United States Supreme Court held the 10th Amendment to the United States Constitution deprived Congress of the authority to enact that legislation, concluding that `in [ New York v. United States (1992) 505 U.S. 144 [ 120 L.Ed.2d 120, 112 S.Ct. 2408] we ruled] that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.' [Citation.]" ( County of San Diego, at pp. 827-828.)

Just as the federal government may not commandeer state officials for federal purposes, a city may not stand in for the federal government and rely on purported federal preemption to implement federal legislative policy that differs from corresponding, express state legislation concerning medical marijuana. Tilehkooh, supra, 113 Cal.App.4th 1433 is instructive. There, the court held the CUA "provides a defense to a probation revocation based on marijuana possession or use." ( 113 Cal.App.4th at p. 1445.) The People argued the defendant could not raise the CUA as a defense to revocation of his probation based on marijuana possession, citing the probation condition that the defendant obey not only the laws of California, but also the laws of the United States. The court, however, was not persuaded. It explained, "The People have misunderstood the role that the federal law plays in the state system. The California courts long ago recognized that state courts do not enforce the federal criminal statutes. `The State tribunals have no power to punish crimes against the laws of the United States, as such. The same act may, in some instances, be an offense against the laws of both, and it is only as an offense against the State laws that it can be punished by the State, in any event.' [Citations.]" ( 113 Cal.App.4th at pp. 1445-1446, fn. omitted.)

Continuing, the Tilehkooh court reasoned, "Since the state does not punish a violation of the federal law `as such,' it can only reach conduct subject to the federal criminal law by incorporating the conduct into the state law.[] The People do not claim they are enforcing a federal criminal sanction attached to the federal marijuana law. Rather, they seek to enforce the state sanction of probation revocation which is solely a creature of state law. [Citation.]" ( Tilehkooh, supra, 113 Cal.App.4th at p. 1446.) But as Tilehkooh explained, "The state cannot do indirectly what it cannot do directly. That is what it seeks to do in revoking probation when it cannot punish the defendant under the criminal law. [¶] . . . [¶] California courts do not enforce the federal marijuana possession laws when defendants prosecuted for marijuana possession have a qualified immunity under [the CUA]. Similarly, California courts should not enforce federal marijuana law for probationers who qualify for the immunity provided by [the CUA]." ( Id. at pp. 1446-1447.)

We note such incorporation is still subject to analysis under the Constitution's Supremacy Clause.

These principles apply a fortiori to a city — a creature of the state. As we explained in Garden Grove, the city there could not "invoke and rely solely on federal law to justify a particular sanction (i.e., the destruction of Kha's [medical marijuana]) when Kha's conduct was consistent with, and indeed sanctioned under, state law." ( Garden Grove, supra, 157 Cal.App.4th at p. 380.) "Applying the reason[ing] of Tilehkooh," we concluded that "judicial enforcement of federal drug policy is precluded in this case because the act in question — possession of medical marijuana — does not constitute an offense against the laws of both the state and the federal governments." ( Ibid.) Quoting Tilehkooh, we explained that "[b]ecause the act is strictly a federal offense," the city had "`"no power to punish [it] as such."'" ( Garden Grove, at p. 380, original italics.)

The same is true here. The city may not justify its ordinance solely under federal law ( Garden Grove, supra, 157 Cal.App.4th at p. 380; Tilehkooh, supra, 113 Cal.App.4th at pp. 1445-1446), nor in doing so invoke federal preemption of state law that may invalidate the city's ordinance. The city's obstacle preemption argument therefore fails.

In People v. Moret (2009) 180 Cal.App.4th 839 [ 104 Cal.Rptr.3d 1], a concurring justice distinguished Tilehkooh based on the Legislature's subsequent enactment of section 11362.795, amending the MMPA. Section 11362.795, by specifying a defendant may seek confirmation from the trial court that he or she is allowed to use medical marijuana on probation, suggests the trial court may impose a no-use probation condition, despite the CUA and MMPA and independent of federal law. ( Moret, at pp. 853-857.) This conclusion, however, does not undermine the rationale of Tilehkooh, but instead demonstrates that section 11362.795 operates as a matter of state law and not federal preemption. Section 11362.795 has no bearing on the city's reliance on federal preemption to obtain demurrer.

Thus, the trial court erred when it sustained the city's demurrer on the basis of federal preemption. A petition for a declaratory judgment is itself a valid cause of action, and not merely a request for relief on other grounds. (Code Civ. Proc., § 1060.) Because the city has identified no defect on the face of plaintiffs' complaint concerning their cause of action for declaratory judgment that the city's ordinance is preempted by state law, the city's demurrer fails and we therefore reverse and remand for proceedings consistent with this opinion.

E. The Trial Court Properly Sustained the City's Demurrer to Plaintiffs' Unruh Civil Rights Act Claim

Plaintiffs contend the trial court erred by sustaining the city's demurrer to their second cause of action, in which they claimed the city's ordinance severely restricting or banning medical marijuana dispensaries, under threat of criminal prosecution, violated civil rights protected by the Unruh Civil Rights Act. (See Civ. Code, § 51, subd. (b); see generally 8 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, § 898(2), p. 376.) The act's purpose "is to compel recognition of the equality of all persons in the right to the particular service offered by an organization or entity covered by the act." ( Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 733 [ 195 Cal.Rptr. 325].) "Emanating from and modeled upon traditional `public accommodations' legislation, the Unruh Act expanded the reach of such statutes from common carriers and places of public accommodation and recreation, e.g., railroads, hotels, restaurants, theaters and the like, to include `all business establishments of every kind whatsoever.'" ( Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 731 [ 180 Cal.Rptr. 496, 640 P.2d 115].)

Specifically, the act's operative provision, Civil Code section 51, subdivision (b), provides: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."

Our task in examining any enactment "is to ascertain and effectuate legislative intent. [Citations.] We turn first to the words of the statute themselves, recognizing that `they generally provide the most reliable indicator of legislative intent.' [Citations.] When the language of a statute is `clear and unambiguous' and thus not reasonably susceptible of more than one meaning, `"'"there is no need for construction, and courts should not indulge in it."'"' [Citations.]" ( People v. Gardeley (1996) 14 Cal.4th 605, 621 [ 59 Cal.Rptr.2d 356, 927 P.2d 713].)

The trial court correctly concluded the Unruh Civil Rights Act does not apply to the city's enactment of legislation. In Burnett v. San Francisco Police Department (1995) 36 Cal.App.4th 1177 [ 42 Cal.Rptr.2d 879] ( Burnett), the court observed: "By its plain language, the Act bars discrimination based on `sex, race, color, religion, ancestry, national origin, or disability' by `business establishments.' [Citation.] Nothing in the Act precludes legislative bodies from enacting ordinances which make age distinctions among adults." ( Id. at pp. 1191-1192, original italics.) Because a city enacting legislation is not functioning as a "business establishment]," we conclude the act does not embrace plaintiffs' claims against the city for discrimination based on a disability or medical condition calling for the use of medical marijuana.

A federal district court, in Gibson v. County of Riverside (C.D.Cal. 2002) 181 F.Supp.2d 1057, 1093 ( Gibson), has disagreed with Burnett on grounds that the Unruh Civil Rights Act forbids discrimination "`in all business establishments'" and not just by "`business establishments.'" We are not persuaded. First, the decisions of the lower federal courts are not binding precedent ( Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1715 [ 1 Cal.Rptr.3d 328]), particularly on issues of state law. Second, while it is true that legislation may not immunize a business from Unruh Civil Rights Act claims for discrimination that occurs in that establishment (see Gibson, at p. 1093, relying on Orloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734, 737 [ 227 P.2d 449]), it does not follow that enacting legislation, as here, transforms the governmental entity into a "business establishment[]" that is subject to a lawsuit under the express terms of the act.

Because the terms of the Unruh Civil Rights Act expressly apply to "business establishments," we see no room for its application to the city's legislative action here. Accordingly, we agree with Burnett and disagree with Gibson. The act does not apply to the city in the circumstances here, and the trial court therefore properly sustained the city's demurrer to plaintiffs' second cause of action.

III DISPOSITION

We affirm the trial court's order concluding plaintiffs failed to state an Unruh Civil Rights Act civil rights cause of action, but reverse the judgment of dismissal and reinstate plaintiffs' cause of action seeking declaratory judgment on whether the CUA or the MMPA preempt the city's ordinance. Each side shall bear its own costs for this appeal.

Rylaarsdam, Acting P. J., and Fybel, J., concurred.