Dana Point Safe Harbor Collective v. Superior Court

51 Cal.4th 1

243 P.3d 575

118 Cal.Rptr.3d 571

DANA POINT SAFE HARBOR COLLECTIVE, Petitioner,

v. The SUPERIOR COURT of Orange County, Respondent;City of Dana Point, Real Party in Interest.[and four related cases ^*].

No. S180365.

Supreme Court of California

Dec. 9, 2010.

Evans, Brizendine & Silver and William D. Evans, Long Beach, for Petitioner Dana Point Safe Harbor Collective.

Lee J." Petros" Petrohilos, Santa Ana, ad Christopher Glew for Petitioner The Point Alternative Care.

Alison Minet Adams, Studio City, for Petitioner Holistic Health, Inc.

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

Logan Retoske and Garfield Langmuir-Logan, San Juan Capistrano, for Petitioner Dana Point Beach Collective.

No appearance for Respondent.

Rutan & Tucker, A. Patrick Mu~noz and Jennifer Farrell, Costa Mesa, for Real Party in Interest.

MORENO, J.

[243 P.3d 576, 51 Cal.4th 4]

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 fivemedical 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 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, 40 Cal.Rptr.2d 839, 893 P.2d 1160.) 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 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, 63 Cal.Rptr.2d 74, 935 P.2d 781, quoting Doudell v. Shoo (1911) 159 Cal. 448, 453, 114 P. 579.) " '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 exceptthe 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, 107 Cal.Rptr.2d 149, 23 P.3d 43, italics added, quoting Lyon v. Goss (1942) 19 Cal.2d 659, 670, 123 P.2d 11.)

As we explained in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 29 Cal.Rptr.2d 804, 872 P.2d 143, 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 maycompletely 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, 29 Cal.Rptr.2d 804, 872 P.2d 143.) We address the appealability of subpoenas under section 37104 with these principles in mind.

B. Application

"It long has been recognized that a legislative body may conduct an investigation inorder to assist its decisionmaking regarding legislative or appropriative matters." ( Connecticut Indemnity Co. v. Superior Court (2000) 23 Cal.4th 807, 814, 98 Cal.Rptr.2d 221, 3 P.3d 868.) 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, 98 Cal.Rptr.2d 221, 3 P.3d 868.)

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 appealableas a final judgment under Code of Civil Procedure section 904.1, subdivision (a) turns onwhether they 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, 56 Cal.Rptr.2d 706, 923 P.2d 1 [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, 161 Cal.Rptr. 905, 605 P.2d 813 [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, 254 Cal.Rptr. 811, 766 P.2d 577.)

In Gue v. Dennis (1946) 28 Cal.2d 616, 170 P.2d 887, 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, 170 P.2d 887.) 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, 238 Cal.Rptr. 780, 739 P.2d 140 ( Tex-Cal ).) That is not the case before us and Gue is thus not controlling.

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, 57 Cal.Rptr.2d 556 ( Bishop ); People ex rel. Franchise Tax Bd. v. Superior Court (1985) 164 Cal.App.3d 526, 210 Cal.Rptr. 695; Barnes v. Molino (1980) 103 Cal.App.3d 46, 162 Cal.Rptr. 786.) Only one of...