Supreme Court of California Justia
Citation 51 Cal. 4th 1, 243 P.3d 575, 118 Cal. Rptr. 3d 571

Dana Point Safe Harbor v. Super. Ct.

Filed 12/9/10

IN THE SUPREME COURT OF CALIFORNIA

DANA POINT SAFE HARBOR
COLLECTIVE,
S180365
Petitioner,
Ct.App. 4/3
G042878
v.
THE SUPERIOR COURT OF ORANGE )
COUNTY,
Orange County Super. Ct. No.
30-2009-00298200
Respondent;
CITY OF DANA POINT,
Real Party in Interest.
[and four related cases*]
____________________________________)

*The Point Alternative Care, Inc., v. Superior Court (City of Dana Point, Real
Party in Interest) (Orange County. Super Ct. No. 30-2009-00298187; Ct. App. 4/3,
No. G042893 [S180468]); Holistic Health v. Superior Court (City of Dana Point,
Real Party in Interest) (Orange County. Super. Ct. No. 30-2009-00298196; Ct.
App. 4/3, No. G042883 [S180560]); Beach Cities Collective v. Super. Ct. (Orange
County Super. Ct. No. 30-2009-00298208; Ct.App. 4/3, No. G042880 [S180749]);
Dana Point Beach Collective v. Super. Ct.
(Orange County Super. Ct. No. 30-
2009-00298206; Ct.App. 4/3, No. G042889 [S180803]).



The question posed by these consolidated cases is whether a trial court‟s
order compelling compliance with a legislative subpoena (Gov. Code, § 37104 et
seq.) is appealable. We conclude that it is. Accordingly, we reverse the orders
dismissing these appeals and remand the cases to the Court of Appeal for further
proceedings.
FACTS AND PROCEDURAL HISTORY
Government Code section 37104 gives cities the power to issue legislative
subpoenas.1 In 2009, the City of Dana Point (the City) subpoenaed documents
from five medical marijuana dispensaries: Dana Point Safe Harbor Collective,
The Point Alternative Care, Inc., Beach Cities Collective, Dana Point Beach
Collective, and Holistic Health, Inc. (collectively “dispensaries”). The purpose of
the subpoenas was to “gather[] information that could assist the City with its
investigation as to whether medical marijuana dispensaries located in the City
[were] in compliance with applicable law.” The subpoenas requested documents
related to all aspects of the dispensaries‟ business activities, including their
business licenses, payroll arrangements, and purchasing activities, and information
about their members. Though some of the dispensaries partially responded to the
subpoenas, all of the dispensaries objected to production of much of the requested
information.
When the dispensaries refused to produce the requested documents, the
City‟s mayor reported that fact to the superior court, as required by the relevant
statute. The superior court held a hearing to determine whether the dispensaries
were required to comply with the subpoenas. Following the hearing, the court
issued a single “Final Ruling” applicable to all five dispensaries. In that
1
Unless otherwise stated, statutory references are to the Government Code.
2
document, the court found “that the City‟s subpoenas were properly served in the
furtherance of a proper legislative purpose” and ordered the dispensaries to
comply with the subpoenas, subject to a protective order.
The dispensaries separately appealed the order. The Court of Appeal
dismissed the appeals on the ground that the order was not appealable. The
dispensaries sought review on the question of appealability. We granted review to
resolve a split among the Courts of Appeal on that issue.
DISCUSSION
A. General Principles of Appealability
The right to appeal is wholly statutory. (Powers v. City of Richmond
(1995) 10 Cal.4th 85, 108.) Code of Civil Procedure section 904.1 lists appealable
judgments and orders. Chief among them is a “judgment” that is not interlocutory,
e.g., a final judgment.2 A judgment is the final determination of the rights of the
parties (Code Civ. Proc., § 577) “ „when it terminates the litigation between the
2
Code of Civil Procedure 904.1, subdivision (a) provides: “An appeal, other
than in a limited civil case, is to the court of appeal. An appeal, other than in a
limited civil case, may be taken from any of the following:
“(1) From a judgment, except (A) an interlocutory judgment, other than as
provided in paragraphs (8), (9), and (11), or (B) a judgment of contempt that is
made final and conclusive by Section 1222. [¶] . . . [¶]
“(8) From an interlocutory judgment, order, or decree, hereafter made or
entered in an action to redeem real or personal property from a mortgage thereof,
or a lien thereon, determining the right to redeem and directing an accounting.
“(9) From an interlocutory judgment in an action for partition determining the
rights and interests of the respective parties and directing partition to be made. [¶]
. . . [¶]
“(11) From an interlocutory judgment directing payment of monetary sanctions
by a party or an attorney for a party if the amount exceeds five thousand dollars
($5,000).”
3
parties on the merits of the case and leaves nothing to be done but to enforce by
execution what has been determined.‟ ” (Sullivan v. Delta Air Lines, Inc. (1997)
15 Cal.4th 288, 304, quoting Doudell v. Shoo (1911) 159 Cal. 448, 453.) “ „It is
not the form of the decree but the substance and effect of the adjudication which is
determinative. As a general test, which must be adapted to the particular
circumstances of the individual case, it may be said that where no issue is left for
future consideration except the fact of compliance or noncompliance with the
terms of the first decree, that decree is final, but where anything further in the
nature of judicial action on the part of the court is essential to a final determination
of the rights of the parties, the decree is interlocutory.‟ ” (Griset v. Fair Political
Practices Com. (2001) 25 Cal.4th 688, 698, italics added, quoting Lyons v. Goss
(1942) 19 Cal.2d 659, 670.)
As we explained in Morehart v. County of Santa Barbara (1994) 7 Cal.4th
725, the purpose of the final judgment rule is to prevent “ „piecemeal disposition
and multiple appeals‟ ” which “ „tend to be oppressive and costly. [Citation.]
Interlocutory appeals burden the courts and impede the judicial process in a
number of ways: (1) They tend to clog the appellate courts with a multiplicity of
appeals. . . . (2) Early resort to the appellate courts tends to produce uncertainty
and delay in the trial court. . . . (3) Until a final judgment is rendered the trial
court may completely obviate an appeal by altering the rulings from which an
appeal would otherwise have been taken. [Citations.] (4) Later actions by the trial
court may provide a more complete record which dispels the appearance of error
or establishes that it was harmless. (5) Having the benefit of a complete
adjudication . . . will assist the reviewing court to remedy error (if any) by giving
specific directions rather than remanding for another round of open-ended
proceedings.‟ [Citation.]” (Id. at p. 741, fn. 9.) We address the appealability of
subpoenas under section 37104 with these principles in mind.
4
B. Application
“It long has been recognized that a legislative body may conduct an
investigation in order to assist its decisionmaking regarding legislative or
appropriative matters.” (Connecticut Indemnity Co. v. Superior Court (2000) 23
Cal.4th 807, 814.) The broad subpoena power set forth in section 37104, et. seq.
is in aid of the legislative power of inquiry. (23 Cal.4th at p. 813.)
Section 37104 provides: “The legislative body may issue subpenas[3]
requiring attendance of witnesses or production of books or other documents for
evidence or testimony in any action or proceeding pending before it.” In the event
a witness declines to comply with the subpoena, “the mayor shall report the fact to
the judge of the superior court of the county.” (§ 37106.) “The judge shall issue
an attachment directed to the sheriff of the county where the witness was required
to appear, commanding him to attach the person, and forthwith bring him before
the judge.” (§ 37107.) “On return of the attachment and production of the
witness, the judge has jurisdiction.” (§ 37108.) Refusal to comply with a
subpoena may subject the witness to contempt proceedings, in which case the
witness has the same rights the witness would have in a civil trial “to purge
himself of the contempt.” (§ 37109.)
The City issued subpoenas and obtained compliance orders pursuant to this
statutory scheme. Whether those orders are appealable as a final judgment under
Code of Civil Procedure section 904.1, subdivision (a) turns on whether they
3
This spelling of subpoena “was, until 1986, the spelling recommended by
the Government Printing Office Style Manual. Subpoena, however, is by far the
more common spelling and for that reason alone is to be preferred. The form with
the digraph œ (*subpœna) is pedantic at best in modern writing.” (Garner,
Garner‟s Modern American Usage (3d ed. 2009) p. 782.)
5
terminate the litigation between the parties, leaving only the issue of compliance
or noncompliance. Much of the case law on this question involves administrative
subpoenas. They are analogous to legislative subpoenas but issued by
administrative agencies. (See, e.g., Gov. Code, §§ 11180-11191.) On the question
of whether such compliance orders are appealable, the Courts of Appeal are
divided, with the evolving view favoring appealability.
Although this court has yet to weigh in on the issue, we have sometimes
assumed without deciding that an order compelling compliance with an
administrative subpoena is appealable. (See, e.g., Arnett v. Dal Cielo (1996) 14
Cal.4th 4, 18 [noting that the parties did not question the Court of Appeal‟s
conclusion that such orders are appealable]; Younger v. Jensen (1980) 26 Cal.3d
397 [addressing merits of appeal without discussion of the appealability issue].)
These opinions, of course, are not authority for a proposition they did not directly
address. (People v. Toro (1989) 47 Cal.3d 966, 978, fn. 7.)
In Gue v. Dennis (1946) 28 Cal.2d 616, we considered the appealability of
an order compelling compliance with an administrative subpoena under Labor
Code section 92. That order required the defendant contractor to comply with the
Labor Commissioner‟s subpoenas within a certain period of time “ „or be adjudged
in contempt.‟ ” (Gue, at p. 617.) In a five-paragraph opinion, we held that such an
order was unappealable because “an order directing compliance, which expressly
contemplates a further order, is intermediate in character.” (Ibid., italics added.)
As we later noted, however, Gue‟s conclusion applies only where the court‟s order
“specifically states that further proceedings in contempt are contemplated.”
(Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43
Cal.3d 696, 703 (Tex-Cal). That is not the case before us and Gue is thus not
controlling.
6
In the Courts of Appeal, three Second Appellate District decisions have
held that orders enforcing administrative subpoenas are not appealable. (Bishop v.
Merging Capital, Inc. (1996) 49 Cal.App.4th 1803 (Bishop); People ex rel.
Franchise Tax Bd. v. Superior Court (1985) 164 Cal.App.3d 526; Barnes v.
Molino (1980) 103 Cal.App.3d 46.) Only one of those decisions — Bishop
provides any meaningful analysis of the issue.4
Bishop involved an appeal by Merging Capital, Inc. (MCI), a corporation,
and Link 900 Partners (Link), a general partnership, of an order compelling
compliance with an administrative subpoena issued by the Department of
Corporations (DOC). Although both sides urged the appellate court to treat the
order as appealable, the court declined to do so and dismissed the appeal. (Bishop,
supra, 49 Cal.App.4th at p. 1805.) The court noted that such orders are not
specified as appealable orders under Code of Civil Procedure section 904.1. It
considered and rejected as not binding decisions by this court and other Courts of
Appeal that had assumed, without deciding, that such orders are appealable.
(Bishop, at pp.1806-1807.) It went on to reject as inapposite our discussion in
Olson v. Cory (1983) 35 Cal.3d 390, about the appealability of declaratory
judgments because “we are not called upon to apply the general test of
4
Barnes v. Molino, supra, 103 Cal.App.3d 46, which involved an appeal
from an order to comply with administrative subpoenas issued by the
Commissioner of Corporations, summarily concluded that such orders are not
appealable, stating that an administrative subpoena “is not one of the orders listed
as appealable in Code of Civil Procedure section 904.1. It is not a judgment
within the definition of Code of Civil Procedure section 577 („A judgment is the
final determination of the rights of the parties in an action or proceeding‟) because
it does not make a final determination of those rights . . . [citation].” (Id. at p. 51.)
People ex rel. Franchise Tax Bd. v. Superior Court, supra, 164 Cal.App.3d 526,
535, simply followed Barnes without comment.
7
appealability of a declaratory judgment, which, if final, is specifically appealable
pursuant to Code of Civil Procedure section 904.1, subdivision (a). Rather, we
must determine whether an order to compel, which is not made appealable by
statute, is nonetheless an appealable order.” (Bishop, supra, 49 Cal.App.4th at
p.1808.)
The decisive factor in the court‟s conclusion that an order compelling
compliance with an administrative subpoena is not appealable was its assertion
that MCI and Link had not yet suffered an adverse consequence as the result of the
order. “[I]n this case, MCI and Link were ordered to produce documents, they did
not comply with that order, and nothing happened. . . . Consequently, any ruling
rendered by this court would be in the nature of an advisory opinion. That is to
say, if we were to rule in favor of the DOC, we would simply be advising the
appellants that, if the DOC pursues contempt proceedings, and the trial court finds
MCI and Link in contempt, we will uphold that ruling on appeal. Similarly, our
decision in favor of appellants would amount to no more than our advice to the
DOC that contempt proceedings will ultimately prove fruitless.” (Bishop, supra,
49 Cal.App.4th at p. 1808.)
Bishop‟s analysis was examined and rejected in City of Santa Cruz v. Patel
(2007) 155 Cal.App.4th 234 (Patel), which specifically considered whether an
order compelling compliance with a legislative subpoena is appealable.5 In Patel,
5
Earlier decisions reaching the same conclusion with respect to
administrative subpoenas did so without significant analysis. (Millan v.
Restaurant Enterprises Group, Inc.
(1993) 14 Cal.App.4th 477, 485 [“Numerous
cases, including cases from our Supreme Court, have decided appeals taken from
similar orders on the merits without discussion of the appealability issue”]; Wood
v. Superior Court
(1985) 166 Cal.App.3d 1138, 1140 [“the orders requiring
compliance with the subpoenas are appealable as final judgments in special
proceedings . . . ”]; Franchise Tax Board v. Barnhart (1980) 105 Cal.App.3d 274,
(fn. continued on next page)
8
the City of Santa Cruz obtained orders from the superior court directing nine
hotels to comply with legislative subpoenas issued by the City pursuant to section
37104 et seq., requiring the production of records necessary for a tax compliance
audit. Before addressing the merits of the dispute, the Court of Appeal took up the
question of whether the orders were appealable. The court found that they were
because the orders constituted a final judgment. “The superior court‟s order
determined all of the parties‟ rights and liabilities in the proceedings; the only
determination left was the question of future compliance, which is present in every
judgment. [Citation.] We conclude that the orders herein must be deemed final
judgments and are, therefore, appealable pursuant to Code of Civil Procedure
section 904.1, subdivision (a)(1).” (Patel, at p. 243.)
In reaching this conclusion, the court observed: “A judgment is the „final
determination of the rights of the parties in an action or proceeding.‟ (Code Civ.
Proc., § 577.) The statutory scheme at hand provides for an original proceeding in
the superior court, initiated by the mayor‟s report to the judge, which results in an
order directing the respondent to comply with a city‟s subpoena. Indeed, the
compliance order is tantamount to a superior court judgment in mandamus, which,
with limited statutory exceptions, is appealable. [Citations.] Whether the matter
is properly characterized as an „action‟ (Code Civ. Proc., § 22) or a „special
(fn. continued from previous page)
277 [“An order made under the authority of sections 11186-11188 requiring
individual compliance with an administrative subpoena can be viewed as a final
judgment in a special proceeding, appealable unless the statute creating the special
proceeding prohibits such appeal”]; see also City of Vacaville v. Pitamber (2004)
124 Cal.App.4th 739 [reaching merits of appeal from order compelling
compliance with subpoena issued pursuant to § 37104 et seq.; no discussion of
appealability].)
9
proceeding‟ (id., § 23), it is a final determination of the rights of the parties. It is
final because it leaves nothing for further determination between the parties except
the fact of compliance or noncompliance with its terms. [Citation.]” (Patel,
supra, 155 Cal.App.4th at p. 242.)
Patel rejected the proposition advanced in Bishop that, unless and until
there were further proceedings to enforce orders of compliance by way of
contempt proceedings, the orders were not final. “The fact that an intransigent
witness may be subject to a contempt order does not mean that the order
compelling compliance is not final. The normal rule is that „injunctions and final
judgments which form the basis for contempt sanctions are appealable. . . . The
purpose of any judicial order which commands or prohibits specific conduct is to
make the sanction of contempt available for disobedience. As we have noted, this
fact does not render such an order „nonfinal,‟ and thus nonappealable.‟
[Citation.]” (Patel, supra, 155 Cal.App.4th at p. 242, quoting Tex-Cal, supra, 43
Cal.3d at p. 704.) Indeed, as the court in Patel went on to explain, because a
contempt judgment is not appealable, but reviewable only by a writ which may be
summarily denied, “review of the underlying order [compelling compliance] can
reliably be had only if that order is appealable.” (Patel, supra, at p. 243.)
Patel was followed by State ex rel. Dept. of Pesticide Regulation v. Pet
Food Express (2008) 165 Cal.App.4th 841 (Pet Food Express), which involved an
order compelling compliance with an administrative subpoena. On the threshold
issue of appealability of the order, the court stated: “Like the legislative subpoena
in Patel, supra, 155 Cal.App.4th at page 243, the trial court in this case concerning
an administrative subpoena determined all of the parties‟ rights and liabilities at
issue in the proceeding; the only determination left was the question of future
compliance, which is present in every judgment.” (Pet Food Express, supra, 165
Cal.App.4th at p. 851.) The court went on to expressly decline to follow Bishop
10
on the question of whether the order was final, finding “the reasoning of Patel . . .
more persuasive.” (Pet Food Express, at p. 852.) The court rejected the argument
advanced by the Department of Pesticide Regulations that the order compelling
compliance was analogous to a discovery order in civil litigation. “Such discovery
orders, however, are made in connection with pending lawsuits which have yet to
be resolved. A discovery order does not determine all of the parties‟ rights and
liabilities at issue in the litigation. The Department argues the same applies here,
because even with the documents the Department cannot impose administrative
penalties unless an administrative hearing is held if such a hearing is requested.
However, it is possible an administrative hearing may not be requested and, even
if it is requested, it will not necessarily end up in court. In contrast to this case,
pending civil litigation in which a discovery order occurs already involves the
court and will continue to do so.” (Ibid.; fn. omitted.)
Although not cited in Pet Food Express on this point, its conclusion that an
administrative subpoena is not equivalent to a discovery order is consistent with
Arnett v. Dal Cielo, supra, 14 Cal.4th 4. In Arnett, we held that an administrative
subpoena issued by the Medical Board of California was not a discovery request
under Evidence Code section 1157, which exempts the records of a hospital peer
review committee from discovery. (Arnett, at pp. 18-24.) We observed that, as
used in that statute, discovery meant “a formal exchange of evidentiary
information between parties to a pending action, and that meaning does not
include a subpoena issued, as here, by an administrative agency for purely
investigative purposes.” (Id. at p. 24.)
Pet Food Express was followed in People ex rel. DuFauchard v. U.S.
Financial Management, Inc. (2009) 169 Cal.App.4th 1502 (U.S. Financial
Management) which also involved an administrative subpoena. As was the case in
Patel and Pet Food Express, the court rejected Bishop‟s finality analysis: “In this
11
case, the trial court‟s order compelling compliance with the Commissioner‟s
administrative subpoena constituted a final determination of the parties‟ rights,
notwithstanding the possibility that further proceedings might be required to gain
U.S. Financial Management‟s compliance with that order. [Citation.] As such,
the order constitutes an appealable final judgment pursuant to Code of Civil
Procedure section 904.1, subdivision (a).” (U.S. Financial Management, at
p. 1511.)
Thus, every case after Bishop has rejected its finality analysis in the
context of either legislative or administrative subpoenas. We agree with Patel, Pet
Food Express and U.S. Financial Management that an order compelling
compliance with such subpoenas is an appealable final judgment.6 As noted, “[a]
judgment is the final determination of the rights of the parties in an action or
proceeding.” (Code Civ. Proc., § 577.) We have repeatedly held that judgments
are final when they leave nothing to the party against whom judgment is rendered
except to comply. (Griset v. Fair Political Practices Com., supra, 25 Cal.4th
688, 698; Tex-Cal, supra, 43 Cal.3d at p. 703; Olson v. Cory, supra, 35 Cal.3d
390, 399; Knodel v. Knodel (1975) 14 Cal.3d 752, 761, fn. 11; People v. Succop
(1966) 65 Cal.2d 483, 486; Meehan v. Hopps (1955) 45 Cal.2d 213, 217; In re
L.A. County Pioneer Society (1953) 40 Cal.2d 852, 858; Bakewell v. Bakewell
(1942) 21 Cal.2d 224, 227; Lyons v. Goss, supra, 19 Cal.2d at p. 670.) The order
here does exactly that. It concludes that the dispensaries must respond to the
subpoenas, subject to a protective order. At no point does the order contemplate
6
Accordingly, we disapprove Bishop v. Merging Capital, Inc., supra, 49
Cal.App.4th 180, People ex rel. Franchise Tax Bd. v. Superior Court, supra, 164
Cal.App.3d 526, and Barnes v. Molino, supra, 103 Cal.App.3d 46, to the extent
they are inconsistent with our holding.
12
future proceedings nor otherwise indicate that it is not final. Thus, the order is
final for purposes of appeal.
Moreover, the rule we adopt here is the same rule that applies in federal
court. (Reich v. National Eng’g & Contracting Co. (4th Cir. 1993) 13 F.3d 93, 96
[“orders enforcing subpoenas in connection with administrative investigations, by
contrast, may be appealed immediately because there is no judicial proceeding in
process that such appeals would delay”]; see also ibid. [“every court of appeals to
address the appealability of orders enforcing subpoenas in various types of
administrative investigations has determined that these orders are immediately
appealable”].) “In light of all of these opinions, one leading treatise states that it
has been „a longstanding practice‟ to allow appeals from district court orders
enforcing subpoenas issued in connection with administrative investigations. [15B
Wright et al., Fed. Practice and Procedure: Jurisdiction (2d ed. 1992)]
§ 3914.26, at 193; see also 4 James W. Moore et al., Moore’s Federal Practice
26.83[4], at 26-438 to 26-440 (1993) (indicating that, with limited exceptions that
do not apply here, „when an administrative agency initiates proceedings in the
district court to enforce an administrative subpoena, the decision of the court . . .
enforcing . . . the subpoena is final for purposes of appeal‟).” (Reich, supra, 13
F.3d at pp. 96-97, fn. omitted.) Our sister jurisdictions have reached the same
result. (E.g., Las Vegas Police Protective Ass’n v. Dist. Ct. (Nev. 2006) 130 P.3d
182, 189 [“other jurisdictions have reached the same conclusion under similar
finality requirements”]; see also id. at p. 189 & fns. 14-16 [citing cases].)
The City advances a number of arguments against finality based on the
potential for future actions or proceedings. Central to the City‟s position is the
notion that potential disputes over the scope of the compliance order with respect
to particular records precludes deeming the order to be a final judgment. We
disagree. The order directs the dispensaries to comply with the subpoenas, thus
13
representing a rejection by the trial court of the various grounds advanced by the
dispensaries — like the privacy interests of their customers — for refusing to turn
over the records. Whether or not the parties haggle over the existence of a
particular document does not undermine the finality of the order. Nor does the
possibility that the dispensaries might simply defy the order and persist in refusing
to turn over the records.7 Similarly, the possibility of further proceedings
regarding the scope of the protective order does not affect the finality of the order.
As noted in Patel, “the question of future compliance . . . is present in every
judgment” (Patel, supra, 155 Cal.App.4th at p. 243), and if the potential for the
sort of future proceedings described here were the standard for assessing finality,
few judgments would ever be final.
The City also suggests that, because legislative subpoenas often precede
lawsuits, a compliance order should be treated like a discovery order in a civil suit,
which is not subject to appeal. As noted, both we in the Arnett decision and the
Court of Appeal in the Pet Food Express decision have rejected the analogy
7
We reject the City‟s claim that deeming the compliance order to be
appealable would “clog” the appellate courts because a noncompliant party might
also seek review of a subsequent contempt order. The assertion is based on the
speculative assumption that parties ordered to comply with an investigative
subpoena would refuse to do so in such numbers that their petitions for writ review
would create logjams in the appellate courts. Moreover, as noted, if the potential
for later contempt proceedings were determinative of whether a judgment or order
is appealable, no judgment or order would ever be final for purposes of appeal.
This clearly is not the rule. (Patel, supra, 155 Cal.App.4th at p. 242.) For the
same reason, we reject the City‟s perfunctory claim that, if there is no contempt
order, there may be no need for appeal because the noncompliant party has not
been harmed — finality does not hinge on whether a party is held in contempt.
14
between investigative subpoenas and discovery orders. (Arnett v. Dal Cielo,
supra, 14 Cal.4th at p. 24; Pet Food Express, supra, 165 Cal.App.4th at p. 852.)8
Finally, the City argues that the ability of legislative bodies to conduct
investigations using subpoenas will be compromised if compliance orders can be
appealed, because of the delay that might result from such appeals. The City
points out that, because of term limits, the body that issued the subpoena could be
reconstituted while the order was on appeal and the new body might not wish to
pursue the investigation. The fortuity of changes in the legislative body that
issued the subpoena is not relevant to the legal question of whether such orders are
appealable; that question turns, not on the tides of politics, but on whether the
order is a final judgment, which it is.
In sum, the trial court‟s order enforcing the City‟s legislative subpoenas
was a final judgment subject to appeal under Code of Civil Procedure section
904.1, subdivision (a)(1).9
8
Even if this subpoena were akin to a discovery request, the appropriate
analogy would be to discovery orders ancillary to cases pending in other
jurisdictions, which have been held to be final judgments for purposes of
appealability. (Adams v. Woods (1861) 18 Cal. 30; H.B. Fuller v. Doe (2007) 151
Cal.App.4th 879, 885-886; Warford v. Medeiros (1984) 160 Cal.App.3d 1035,
1041.)
9
Our holding is limited to the question before us of whether a compliance
order is appealable. We do not address the separate and distinct question of
whether an appealing party is entitled to a stay of enforcement of the subpoena
pending appeal. (See, e.g., F.D.I.C. v. Garner (9th Cir. 1997) 126 F.3d 1138,
1142 [reviewing an appeal from an order enforcing an administrative subpoena
where a stay was denied]; United States v. Judicial Watch, Inc. (D.D.C. 2003) 241
F.Supp.2d 15, 17-18 [declining to grant a stay pending appeal of an Internal
Revenue Service summons].)
15
DISPOSITION
The orders dismissing the appeals are reversed and the matters are
remanded to the Court of Appeal to consider the merits of the appeals.
MORENO, J.
WE CONCUR: GEORGE, C. J.

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
16



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Dana Point Safe Harbor Collective v. Superior Court
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted XXX
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S180365
Date Filed: December 9, 2010
__________________________________________________________________________________

Court:

Superior
County: Orange
Judge: Gloria Sanders

__________________________________________________________________________________

Attorneys:

Evans, Brizendine & Silver and William D. Evans for Petitioner Dana Pont Safe Harbor Collective.

Lee J. “Petros” Petrohilos ad Christopher Glew for Petitioner The Point Alternative Care.

Alison Minet Adams for Petitioner Holistic Health, Inc.

Law Offices of Jacek W. Lentz, Jacek W. Lentz and Jackie-Lynn Adams for Petitioner Beach Cities
Collective.

Logan Retoske and Garfield Langmuir-Logan for Petitioner Dana Point Beach Collective.

No appearance for Respondent.

Rutan & Tucker, A. Patrick Muñoz and Jennifer Farrell for Real Party in Interest.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Lee J. “Petros” Petrohilos
1851 East First Street, #857
Santa Ana, CA 92705
(714) 542-3110

Alison Minet Adams
12400 Ventura Boulevard, #701
Studio City, CA 91604
(818) 358-2507

Jacek W. Lentz
Law Offices of Jacek W. Lentz
1055 Wilshire Boulevard, Suite 1996
Los Angeles, CA 90017
(213) 250-7200

A. Patrick Muñoz
Rutan & Tucker
611 Anton Boulevard, Fourteenth Floor
Costa Mesa, CA 92626-1931
(714) 641-5100


Petition for review after the Court of Appeal deemed notice of appeal to be a petition for extraordinary writ.
The court limited review in Dana Point Safe Harbor Collective, The Point Alternative Care, Holistic Health, Beach Cities Collective, and Dana Point Beach Collective to the following issue: Is an order compelling compliance with a legislative subpoena issued under Government Code section 37104 appealable as a final judgment?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 12/09/201051 Cal. 4th 1, 243 P.3d 575, 118 Cal. Rptr. 3d 571S180365Review - Civil Appealsubmitted/opinion due

ENFORCEMENT AGAINST THE POINT ALTERNATIVE CARE (S180468)
ENFORCEMENT AGAINST HOLISTIC HEALTH (S180560)
ENFORCEMENT AGAINST BEACH CITIES COLLECTIVE (S180749)
ENFORCEMENT AGAINST DANA POINT BEACH COLLECTIVE (S180803)


Parties
1City of Dana Point (Petitioner)
Represented by Anthony Patrick Munoz
Rutan & Tucker
611 Anton Boulevard, 14th Floor
Costa Mesa, CA

2Dana Point Safe Harbor Collective (Respondent)
Represented by William David Evans
Evans Brizendine & Silver
5826 E. Naples Plaza
Long Beach, CA

3Beach Cities Collective (Other)
1055 Wilshire Boulevard Suite 1996
Los Angeles, CA 90017

Represented by Jackie-Lynn Adams
Law Offices of Jacek W. Lentz
1055 Wilshire Boulevard, Suite 1996
Los Angeles, CA

4Beach Cities Collective (Other)
1055 Wilshire Boulevard Suite 1996
Los Angeles, CA 90017

Represented by Jacek W. Lentz
Law Offices of Jacek W. Lentz
1055 Wilshire Boulevard, Suite 1996
Los Angeles, CA

5Beach Cities Collective (Other)
1055 Wilshire Boulevard Suite 1996
Los Angeles, CA 90017

Represented by Artin Avetisove
Law Offices of Jacek W. Lentz
1055 Wilshire Boulevard, Suite 1996
Los Angeles, CA

6Dana Point Beach Collective (Other)
Represented by Garfield Langmuir-Logan
Logan Retoske, LLP
31351 Rancho Viejo Road, Suite 202
San Juan Capistrano, CA

7Holistic Health (Other)
Represented by Alison Minet Adams
Attorney at Law
12400 Ventura Boulevard, Suite 701
Studio City, CA

8Point Alternative Care, Inc. (Other)
Represented by Lee James Petrohilos
Attorney at Law
1851 E. First Street, Suite 857
Santa Ana, CA


Opinion Authors
OpinionJustice Carlos R. Moreno

Dockets
Feb 19 2010Petition for review filed
Respondent: Dana Point Safe Harbor CollectiveAttorney: William David Evans  
Feb 19 2010Record requested
 
Feb 23 2010Received Court of Appeal record
  one file folder/transcript
Mar 10 2010Petition for review granted; issues limited
  The petition for review is granted. The issue to be briefed and argued is limited to the following: Is an order compelling compliance with a legislative subpoena issued under Government Code section 37104 appealable as a final judgment? Pending further order of this court, enforcement of the superior court's November 2, 2009 order requiring petitioner to comply with the legislative subpoena issued by the City of Dana Point in Orange County Superior Court case number 30-2009-00298200, entitled In Re Enforcement against Dana Point Safe Harbor Collective of City of Dana Point City Council Subpoena, and the writ proceedings currently pending in the Court of Appeal, Fourth Appellate District, Division Three, in case number G042878, entitled Dana Point Safe Harbor Collective v. Superior Court, are hereby stayed. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Mar 10 2010Letter sent to:
  counsel requesting each party file a "Certification of Interested Entities and Persons." The completed form should be returned to the court within 15 days.
Mar 19 2010Certification of interested entities or persons filed
  Dana Point Safe Harbor Collective, Respondent. William D. Evans, Retained counsel
Mar 29 2010Certification of interested entities or persons filed
  City of Dana Point, petitioner by Patrick A. Munoz, counsel
Apr 7 2010Opening brief on the merits filed
Respondent: Dana Point Safe Harbor CollectiveAttorney: William David Evans  
Apr 14 2010Case consolidated with:
  Enforcement Against The Point Alternative Care _________________________________________ CITY OF DANA POINT v. THE POINT ALTERNATIVE CARE, INC. S180468/G042893 Enforcement Against Holistic Health _________________________________________ CITY OF DANA POINT v. HOLISTIC HEALTH S180560/G042883 Enforcement Against Beach Cities Collective _________________________________________ CITY OF DANA POINT v. BEACH CITIES COLLECTIVE S180749/G042880 Enforcement Against Dana Point Beach Collective _________________________________________ CITY OF DANA POINT v. DANA POINT BEACH COLLECTIVE S180803/G042889
May 20 2010Joinder to brief on the merits filed
Other: Dana Point Beach CollectiveAttorney: Garfield Langmuir-Logan   With permission.
May 25 2010Answer brief on the merits filed
Petitioner: City of Dana PointAttorney: Anthony Patrick Munoz   With permission.
Jun 15 2010Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including July 26, 2010.
Jul 27 2010Reply brief filed (case fully briefed)
Respondent: Dana Point Safe Harbor Collective   Under CRC 8.25 (b)
Oct 5 2010Case ordered on calendar
  to be argued on Tuesday, November 2, 2010, at 9:00 a.m., in San Francisco
Oct 15 2010Filed:
  Letter from Lee J. Petrohilos, counsel for Point Alternative Care, Inc. (respondent in consolidated case S180468), asking to divide time equally between respondents Holistic Health (S180560), Point Alternative Care, and Beach Cities Collective (S180749).
Oct 20 2010Order filed
  The request of counsel for respondents in the above-referenced cause to allow three counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to Holistic Health 10 minutes, Point Alternative Case, Inc. 10 minutes, and Beach Cities Collective 10 minutes of respondents' 30-minute allotted time for oral argument is granted.
Nov 2 2010Cause argued and submitted
 
Dec 8 2010Notice of forthcoming opinion posted
  To be filed on Thursday, December 9, 2010 at 10 a.m.

Briefs
Apr 7 2010Opening brief on the merits filed
Respondent: Dana Point Safe Harbor CollectiveAttorney: William David Evans  
May 25 2010Answer brief on the merits filed
Petitioner: City of Dana PointAttorney: Anthony Patrick Munoz  
Jul 27 2010Reply brief filed (case fully briefed)
Respondent: Dana Point Safe Harbor Collective  
Brief Downloads
application/pdf icon
Respondent-dana-point-safe-harbor-collective-petitiion-for-review.pdf (317758 bytes) - Petition for Review
application/pdf icon
s180365-2-respondent-dana-point-safe-harbor-collective-opening-brief-on-the-merits.pdf (133509 bytes) - Brief on the Merits
application/pdf icon
s180365-3-respondent-dana-point-beach-collective-joinder-to-brief-on-the-merits.pdf (34592 bytes) - Joinder to Brief on the Merits
application/pdf icon
s180365-4-petitioners-answer-brief-on-the-merits.pdf (366064 bytes) - Answer Brief on the Merits
application/pdf icon
s180365-5-respondents-dana-point-safe-harbor-reply-brief-merits.pdf (210025 bytes) - Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 18, 2011
Annotated by Lorenzo Arroyo

Facts:
In 2009, the City of Dana Point subpoenaed documents from five medical marijuana dispensaries. The subpoenas were issued under CA Government Code § 37104, which gives cities the power to issue legislative subpoenas, and were aimed at acquiring information on the business activities of the dispensaries to determine whether they were in compliance with the law. All five dispensaries refused to produce much of the information, and the City informed the superior court of this fact.

Procedural History:
After the City informed the superior court of the dispensaries' non-compliance, the superior court held a hearing, and issued a "Final Ruling" directing all five dispensaries to comply with the subpoenas. All five dispensaries appealed the order. Upon appeal, the CA Court of Appeals held that legislative subpoenas are not appealable and dismissed the appeals. The CA Supreme Court granted review to resolve the split among the Court of Appeals.

Issue:
Is legislative subpoena issued under Government Code § 37104 appealable?

Holding:
Yes, the right to appeal attaches to "a final judgment" under CA Code of Civil Procedure § 904.1. Legislative subpoenas constitute a final judgment under California law and thus may be appealed.

Analysis:
A) The right to appeal is statutory (Powers v. City of Richmond, 10 Cal. 4th 85, 108 (1995)), here governed by Code of Civil Procedure § 904.1. § 904.1 lists "a final judgment" as chief among the types of judgments and orders that can be appealed. In determining what constitutes a final judgment, the Court focuses on the "substance and effect of the adjudication." What is determinative of a final order is the fact that "no issue is left for future consideration except the fact of compliance." Where a judgment has the effect of determining the rights of the parties and the form of the decree, such that only compliance with the judgment is left, an order is considered final (as compared to interlocutory).

B) The courts do not hear interlocutory appeals because they clog the courts, create multiple appeals, and are oppressive and costly (see Morehart v. County of Santa Barbara, 7 Cal. 4th 725 (1994)).

C) Legislative subpoenas are governed by CA Government Code §37104. §§ 37106-37109 set forth judicial remedies for municipalities that issue a legislative subpoena. Notably, these sections give the superior court judge the right to issue an attachment against a witness, to exercise jurisdiction against the witness, and compel the witness to comply with the subpoena through contempt proceedings. Here, the City of Dana Point properly followed the procedures set forth in these sections and obtained a "Final Ruling" on the subpoena.

D) Although the CA courts have little jurisprudence on the issue of legislative subpoenas, there has been a split among the Courts of Appeal on the issue of whether an administrative subpoena can be appealed. The Court reasons that administrative subpoenas are "analogous to legislative subpoenas but issued by administrative agencies" and thus much of the reasoning for the one can be used in analyzing the other. The Court finds that a principled distinction can be made between cases in which judicial orders were considered final judgments and cases in which future adjudication (e.g. specifically threatened contempt hearings) bars a finding of finality. Although there is disagreement in the Court of Appeals on the general appealability of a ruling on legislative/administrative subpoenas, the Court "agree[s] [...] that an order compelling compliance with such subpoenas is an appealable final judgment.

E) The Court notes that the ruling issued by the superior court judge "concludes that the dispensaries must respond to the subpoenas." The order does not "contemplate future proceedings nor otherwise indicate that it is not final." Applying the above reasoning to these facts, the Court finds that the order issued against the dispensaries is appealable.

F) The Court rejects the argument that potential future actions make the order not final, arguing that such a standard would find few judgment to be final. Rather, a decision laying out the rights and the obligation of the parties is final. The Court also disagrees that such a ruling should be considered akin to a discovery order (which is not appealable). Changes in the constitution of the legislative bodies that order subpoenas do not bear on the issue of appealability (as the City argued here)

F) Finally, the Court notes that their ruling brings CA law into consistency with federal law, which treats judicial orders on legislative subpoenas as appealable.

Ruling:
The case was remanded to the Court of Appeals for a judgment on the merits.