"Municipalities have been held liable to a bystander negligently shot by a policeman engaged in an altercation with another (Wilkes v. City of New York, 308 N.Y. 726); to a taxicab driver shot by a passenger negligently placed in his cab by policemen (Lubelfeld v. City of New York, 4 N Y 2d 455); to the estate of an arrested man who died from pneumonia caused by exposure in the jail and failure to treat a fractured hip and elbow (Dunham v. Village of Canisteo, 303 N.Y. 498); to the estate of a man negligently shot by a policeman for making a disturbance while intoxicated (Flamer v. City of Yonkers, 309 N.Y. 114); to the estate of a man arrested for <mask> who died from cerebral hemorrhage in consequence of failure of the police to procure medical aid (O’Grady v. City of Fulton, 4 N Y 2d 717); to a wife shot by her husband to whom the police had negligently returned a pistol (Benway v. City of Watertown, 1 A D 2d 465); and to a bystander injured while directing traffic at the instance of a police officer (Adamo v. P. G. Motor Freight, 4 A D 2d 758). In McCrink v. City of New York (296 N.Y. 99) a city was held liable for negligently having omitted to dis*457charge a police officer by whom plaintiffs intestate was shot. In Meistinsky v. City of New York (309 N.Y. 998) the estate of a holdup victim recovered who had been killed by an untrained officer’s bullets. Negligence of the city was found in its omission to use reasonable care in training the police officer so that he could shoot straight and hit the criminal instead of his victim. None of these actions could have been brought until after the waiver of governmental immunity by section 12-a (now § 8) of the Court of Claims Act (Bernardine v. City of New York, 294 N.Y. 361), but in each of them liability arose from negligence of a city in the exercise of the police power, and in at least two of them the negligence consisted in nonfeasance rather than in misfeasance (McCrink v. City of New York, supra; Meistinsky v. City of New York, supra).” (Schuster v City of New York, supra, pp 81-82.) In Schuster the plaintiffs intestate was murdered after he had supplied the police with information leading to the arrest of a well-known, dangerous fugitive from justice. After the decedent’s part in the capture was widely publicized he immediately received communications threatening his life, of which he notified the police. Three weeks later Schuster was shot and killed while approaching his home in the evening. The subsequent action by Schuster’s father raised the issue of municipal liability for failure to provide adequate police protection once it reasonably appeared that the decedent was in danger. The Court of Appeals reversed the Appellate Division (286 App Div 389) which had affirmed the dismissal of the complaint by Special Term, and denied the defendant’s motion to dismiss the complaint, stating at page 86: "The instant action is based on negligence. It is grounded on negligence of the police in the failure to exercise reasonable care for the protection of Schuster after he had received threatening letters”.


On January 18, 1978 the petitioner entered a plea of not guilty to both of the above charges. Thereafter, on April *1146, 1978 he returned to court and as a result of a plea bargain he withdrew his earlier not guilty plea and interposed a plea of guilty to a violation, namely, <mask> under section 240.40 of the Penal Law entitled “Appearance in public under the influence of narcotics or a drug other than alcohol” in satisfaction of the Penal Law charge. At the same time the Public Health Law charge was dismissed in satisfaction of the guilty plea to the amended charge of public intoxication.


This is in no way a case of strict liability: Plaintiff, due to the fact that he was operating a bicycle, was not charged with nor convicted of driving while intoxicated, <mask> is no longer a criminal offense, and he in turn is not within the class of people to whom the restaurant may be strictly liable. By the same token, plaintiff asks no more of defendants than their own alleged negligence entitles him to. The defendants are not counterclaiming against plaintiff for any physical injury to person or property sustained directly due to either his conduct or intoxication. There is thus no reason in law, policy or the facts for this court to accept defendants’ argument that they are entitled to claim over against the third-party defendant for damages they may ultimately be called upon to pay due to their negligence. Even conceding the third-party defendant’s potential strict liability under the statute (General Obligations Law § 11-101) as noted supra, it cannot be fairly said that the restaurant should be held strictly accountable to defendants in a case which is otherwise solely a matter of comparative negligence, particularly where that third-party defendant could theoretically claim over against the plaintiff (Wood v City of New York, supra; Herrick v Second Cuthouse, 100 AD2d 952, affd 64 NY2d 692; cf. Weinheimer v Hoffman, 97 AD2d 314).


Following the holding in Powell (supra) New York’s Supreme Court, Appellate Division, upheld the conviction of a defendant for <mask> (Penal Law § 240.40), finding that there is a direct relation between the conduct condemned by the statute and the legitimate interest which the community has in preserving the public order. The court emphasized that the statute does not exact punishment for merely a condition, but for a condition from which it might reasonably be expected that an annoyance or danger might arise (People v Myers, 39 AD2d 122 [2d Dept 1972]). Accordingly, the court upheld the constitutionality of the statute.


The petitioner is a graduate of Harvard Law School, and is admitted to the practice of law in the State of New York. However, the matter for which he appeared in the Monroe County Family Court was based upon petitions filed against him, personally, involving two children and for the most part, he appeared in that court pro se. The initial proceeding was commenced in October 1996, based upon a petition, filed by the mother, requesting a determination of paternity for one of the children and an order of custody. Later, the litigation included issues involving family offense allegations, as well as child support. On February 28, 1997, Mr. O’Connell appeared before the respondent Family Court Judge, and after some colloquy, admitted that he had consumed alcoholic beverages on that day. The respondent stated that, in her opinion, Mr. O’Connell could not participate in any hearing on this appearance and she would decline to take any admission from him. Accordingly, there was an adjournment of the scheduled hearing, and Mr. O’Connell was given the following admonition: "If you come to Court on the next occasion and you’ve taken a drug or an alcoholic drink, you will be in contempt of Court. We’ll have a hearing, and probably, you’ll go to jail. I will also have you arrested for <mask> under Section 240 of the Penal Law. Do you understand that, Mr. O’Connell?”


. At the time, there was no open container law in New York City. The City Council passed Introductory Number 647-A, banning possession of open containers of alcohol with the intent to consume. However, Mayor Beame vetoed the provision citing the Legislature’s belief that it would be “disturbingly inconsistent” to outlaw public drinking when the Legislature had recently repealed <mask> because it “was no longer considered a crime.” In addition he cited “an inherent danger that this measure could be enforced selectively, and in a discriminatory manner.” (Veto message, Mar. 26, 1976, contained in Bill Jacket, Local Laws, 1979, No. 16 of City of NY.) The current provision in the Administrative Code has its origins in Introductory Number 5 of 1978 which was presented to Mayor Koch. Once again, some urged a veto in the belief that public intoxication was a medical, not a criminal, problem. (See, e.g., mem of NY City Dept of Mental Health & Mental Retardation Servs, Dec. 5, 1978.) In approving the measure, the Mayor expressed his confidence that the police “will endeavor to enforce the law as fully and fairly as possible.” (Approval message, May 9, 1979.)


Section 40 was repealed by section 2501 of chapter 88 of the Laws of 1909 (the Penal Láw) and, in its place, section 1221 *304of the Penal Law made <mask> a misdemeanor. Section 1221 was thereafter amended by chapter 700 of the Laws of 1911. The amendment eliminated the words “ is guilty of a misdemeanor ”, but failéd to classify the charge.


Since the Constitution of the State of New York will not be violated by the denial of the right to a jury trial, and since the Court of Appeals and the Appellate Division, Fourth Department, have indicated that <mask> is a petty offense “ triable summarily by a magistrate without a jury ” (Matter of Cooley v. Wilder, 234 App. Div. 256, 259, supra), the demand for a jury trial is denied. Ordered accordingly.


I’m asking for a mistrial based on the fact I was not able to get into my <mask>. It went to the motive into why [H.L.] made an allegation that he abused her. Therefore, I’m asking for a mistrial based on the fact I was not able to get into that line of questioning. Therefore, it has hamstrung my ability to make argument to the jury.


In January 2017, a permanency-planning hearing was conducted. The trial court found Otis not to be credible. Otis was partially compliant with the case plan, but she blamed DHS for her failures in getting to appointments. The trial court recited that Otis had been arrested for <mask> in mid-October 2016 and had failed to comply with drug screening. The trial court listed several drug tests wherein the sample lacked the appropriate temperature or Otis claimed the inability to produce a specimen. The trial court found that Otis was "not minimally fit to parent any child," and it authorized the filing of a petition to terminate her parental rights.


*729Although Sharks tried to rehabilitate himself in the eleventh hour, these improvements need not be necessarily credited by the circuit court and do not necessarily outweigh evidence of prior noncompliance. By the time Sharks had been released from jail and had begun serious rehabilitation efforts, D.S. had been in DHS custody for nearly a year. Over the course of the case, Sharks tested positive for alcohol, was arrested at least twice for <mask>, and was inconsistent in visiting D.S. While Sharks's purposeful efforts to complete most of the significant aspects of the case plan in the six weeks before the termination hearing are admirable, they do not warrant reversal. Had Sharks put forth those efforts earlier in the case, a termination may have been prevented, but Sharks's efforts to get his life together were still a work in progress at the time of the termination hearing. Given Sharks's history of mixing prescription medications and alcohol, his arrests for public intoxication, and his odd behavior during previous hearings, the court was not clearly wrong to find a likelihood of potential harm if D.S. was to return to his custody. Past actions of a parent over a meaningful period of time are good indicators of what the future may hold. Sharks's behaviors over the course of the entire case do not show enough stability and sobriety to render the court's finding that Sharks posed a risk of potential harm to D.S. clearly erroneous. Sharks , 2016 Ark. App. 435, at 11, 502 S.W.3d at 577 (internal citations omitted).


This case was initiated by appellee Arkansas Department of Human Services (DHS) when it filed a petition for emergency custody of the children in Washington County Circuit Court on May 2, 2016. An attached affidavit of a family-service worker stated that the children were removed from the parents' home in Washington County two days earlier pursuant to an emergency hold. The affidavit alleged that both parents, Alecia and Joshua, had been arrested, thereby leaving no caretaker for the children. Alecia was arrested for endangering the welfare of a minor and <mask>. Joshua was arrested for endangering the welfare of a minor and domestic battery committed against Alecia. The affidavit further stated that there had been prior DHS involvement with the family for issues related to environmental neglect, educational neglect, and inadequate shelter.


King was originally placed on probation in 2011 for being in possession of PCP, which is the drug phencyclidine.1 One of the conditions of her probation was that *408she not violate any federal or state law. On September 30, 2016, King was arrested in North Little Rock and charged with <mask>. On October 3, 2016, the State filed a petition to revoke her probation based on that violation. In hearings conducted in November 2016 and January 2017, King told the circuit court that she had "pled guilty" to the public-intoxication charge and that she was represented by a "public defender." King could not remember the name of the attorney, but her defense counsel stated that it "should have been Terry Ballard."


At the revocation hearing conducted in March 2017, the State entered into evidence the North Little Rock District Court docket sheet as proof of her guilty plea to <mask>. The docket sheet documented that King was charged with public intoxication on September 30, 2016; that on the same date King was released from jail on her own recognizance; that on October 4, 2016, King pleaded guilty and the trial court found her guilty; and that District Judge Jim Hamilton sentenced her to "Fine Plus Court Cost And Fines Given Credit Time Served." The docket noted the presence of Lauren Eldridge on behalf of the prosecutor, but it was silent as to whether King was represented by counsel.


At the revocation hearing, the State did not make reference to any of the comments that King had made in earlier hearings about the public-intoxication matter, nor did the State ask the trial court to take judicial notice of those prior comments. The State did not present testimonial or other evidence to prove that King was, in fact, guilty of <mask>. King did not testify. Defense counsel argued to the trial court that it should dismiss this revocation petition because there was no proof that King had been represented by counsel when she entered the guilty plea in district court. The trial court rejected defense counsel's argument, remarking that it was left with the State's exhibit showing a district court finding of guilty, from which King had not appealed. The trial court acknowledged, however, that the docket sheet was "silent" so that it had no idea whether King had been represented at the district court proceedings. The trial court granted the State's petition to revoke, and King was sentenced to three years of supervised probation with random drug screens. This timely appeal followed.


King argues on appeal that her probation could not be revoked on the basis of her guilty plea to <mask> absent proof that she was either represented by counsel or waived her right to counsel at the district-court level. King relies on Alexander v. State , 258 Ark. 633, 527 S.W.2d 927 (1975), as controlling authority on that point. In Alexander , the Arkansas Supreme Court held that:


In the present appeal, the State did not present any evidence at the revocation hearing to support that King was guilty of the misdemeanor crime of <mask> other than the docket sheet showing the guilty plea. The district court docket sheet is silent on whether King was represented by counsel when she pleaded guilty in district court. The State failed to "show that the facts" supported that King was guilty of public intoxication, even by a preponderance standard. We must follow the precedent set by our supreme court, and we are powerless to overrule its decisions. Williams v. State , 2013 Ark. App. 179, 2013 WL 1010411.


Parrish refused to leave and was advised that if he did not leave he would be placed under arrest. Parrish refused to leave and allegedly became argumentative with officers, which eventually led to him being (1) taken to the ground by a leg sweep issued by Harris, (2) subsequently handcuffed, (3) detained at the Pope County Detention Center, and (4) charged with resisting arrest, disorderly conduct, <mask>, and interference with governmental operations. In the resulting Pope County District Court criminal trial, Parrish was found guilty on all charges.


*546filed a petition for emergency custody of L.S. Attached to the petition was an affidavit of a DHS caseworker stating that DHS had exercised a 72-hour hold on the child after Leslie was found highly intoxicated in a ditch digging for arrowheads. Leslie did not know where L.S. was, and L.S. was passed around from person to person before the police located her several hours later. Leslie was arrested for <mask> and endangering the welfare of a minor. The affidavit further stated that Leslie's parental rights had been involuntarily terminated as to L.S.'s older sibling, M.S.2 On the same day that DHS's petition was filed, the trial court entered an ex parte order of emergency custody of L.S. The trial court subsequently entered a probable-cause order.


Adam Nutt testified that he loves J.N. with all his heart and that they enjoy many activities together such as fishing, swimming, and riding the four-wheeler. He also said that he is willing and able to financially support J.N. for the rest of his life. He acknowledged that he had received a ticket for <mask> two years ago but said he did not have a drinking problem and had no DWIs.


KJ, AJ, and EJ went into DHS custody after Joslin's arrest in May 2017 for domestic battery, domestic assault, <mask>, and interfering with emergency communications. He was arrested because he hit all the girls, and he dragged KJ on the floor by the hoodie she was wearing, which choked KJ.3 Joslin had custody of AJ and EJ, so DHS took emergency custody of those two children. Joslin's ex-wife had custody of KJ, but DHS took emergency custody of KJ in June 2017 because the mother was using drugs, she left KJ with improper supervision, and the home was in squalor. In July 2017, the paternal grandmother petitioned to intervene, asserting she had been CJ's primary caretaker for most of CJ's life, that her parents had a very limited relationship with CJ, and that CJ should stay in the only home she had ever known.4


Similarly, in P.O., supra , 246 Cal.App.4th 288, 200 Cal.Rptr.3d 841, another *206case upon which the prosecution here relied in the trial court in discussing the required nexus, the court held that the electronic search condition was reasonably related to future criminality. ( Id . at p. 295, 200 Cal.Rptr.3d 841.) The minor, who was found under the influence of drugs at school, admitted to using hashish oil earlier that morning and had 11 Xanax tablets in his pocket. ( Id . at p. 292, 200 Cal.Rptr.3d 841.) After admitting to one count of misdemeanor <mask>, the minor was placed on probation. ( Ibid . ) The minor objected to an electronic search condition which required him to submit any electronics including passwords to search, pointing out there was no evidence he was buying or selling drugs. ( Id . at p. 293, 200 Cal.Rptr.3d 841.) The juvenile court made an express finding, emphasizing the need to help the minor avoid substance abuse. The juvenile court stated why it found the condition to be necessary: " '[T]o properly supervise these drug conditions, we need to go on your web sites, check what you may be presenting as far as your ability to purchase, to sell drugs, your ability to-we have people who present themselves on the Internet using drugs or ... in possession of paraphernalia, and that's the only way we can properly supervise these conditions ....' " ( Ibid . ) On appeal, the P.O. court concluded the search condition was reasonably related to future criminality because it enabled probation officers to supervise the minor effectively. ( Id . at p. 295, 200 Cal.Rptr.3d 841.) The court reasoned: "the condition enables peace officers to review [the minor]'s electronic activity for indications that [he] has drugs or is otherwise engaged in activity in violation of his probation. We cannot say that the juvenile court's given reason for imposing the condition-that minors are apt to use electronic devices to show off their drug use or ability to procure drugs-was speculative or otherwise constituted an abuse of discretion." ( Ibid . ) However, the P.O. court went on to conclude the search condition was overbroad. ( Id . at pp. 297-298, 200 Cal.Rptr.3d 841.)


Acosta contends the electronic search condition should be modified, if it is to be imposed at all. However, we are unable to discern how that could be done in the instant case, as in our view access to Acosta's electronic devices is the best way to determine if he "is ridding himself of his gang associations and activities, as required by the terms of his probation, or is continuing those associations and activities, in violation of his probation." (See Ebertowski , supra , 228 Cal.App.4th at p. 1175, 176 Cal.Rptr.3d 413 ; compare In re P.O. (2016) 246 Cal.App.4th 288, 297-298, 200 Cal.Rptr.3d 841 [noting the requirement a minor submit his "electronics including passwords" to search with or without a warrant was overbroad and was thus modified to limit such searches of electronic devices and/or accounts to "media of communication reasonably likely to reveal whether he is boasting about drug use or otherwise involved with drugs," when there was no evidence minor was buying or selling drugs in connection with his misdemeanor <mask> offense, when the goal of minor's probation was to facilitate his "rehabilitation," and when the minor's needs were not "severe"].)


Defendant's reliance on In re Erica R . (2015) 240 Cal.App.4th 907, 909-913, 192 Cal.Rptr.3d 919, and In re P.O. (2016) 246 Cal.App.4th 288, 291-293, 200 Cal.Rptr.3d 841, is misplaced. Those cases involved drug possession and <mask>, respectively. Here, defendant was convicted of possessing methamphetamine for sale , and the record supports a finding that an electronic device was used in those sales. Allowing a probation officer to access information on defendant's electronic devices will facilitate supervision and deter future criminality by ensuring that defendant does not attempt to sell drugs using any electronic device. Further, while the court in In re P.O. ultimately found an electronic device search condition unconstitutionally overbroad, it determined that even in the context of a *144public intoxication juvenile adjudication "the electronics search condition [was] reasonably related to future criminality." ( In re P.O. , at p. 295, 200 Cal.Rptr.3d 841.)


The purpose of the challenged conditions is to prevent defendant from using electronic devices in the future to facilitate the sale of controlled substances. Defendant's possession of an Android phone when he was arrested for possessing methamphetamine for sale distinguishes this case from *145those where similar probation conditions have been rejected as unconstitutionally overbroad. (See In re P.O. , supra , 246 Cal.App.4th 288, 291-293, 298, 200 Cal.Rptr.3d 841 [modifying juvenile electronic device search condition because condition bore no relationship to <mask> adjudication]; People v. Appleton (2016) 245 Cal.App.4th 717, 719-720, 728-729, 199 Cal.Rptr.3d 637.) Defendant's possession of an electronic device while committing his crime makes this case more similar to Q.R. , where the minor had used an electronic device in committing his jurisdictional offenses and the reviewing court found no overbreadth in juvenile probation conditions allowing electronic devices to be searched. ( Q.R. , supra , 7 Cal.App.5th at p. 1238, rev. granted.) Here, as in Q.R. , access to defendant's electronic devices is appropriate to ensure that he does not reoffend while on probation.


In the felony case, the prosecution moved in limine to exclude testimony about defendant's intoxication at the time of his arrest for the underlying misdemeanor, citing Evidence Code sections 350 and 352. According to the arresting officer's report which was summarized in the motion, the officer observed defendant cross a street with no regard for traffic and then drink from a pint-sized bottle of whiskey. Defendant smelled strongly of alcohol and had slurred speech. He was arrested for <mask> (§ 647, subd. (f) ).


On his jury questionnaire, Domanique J.-a 22-year-old Black man who had recently moved to California-indicated that he held a bachelor of fine arts degree in dance and had attended a high school for the performing arts in New York City. Domanique J.'s questionnaire also disclosed that he had an aunt who had been arrested for "drug trafficking"; that he had visited her in jail; and that he, himself, had been arrested for <mask>. Domanique J. was uninterested in reading material or video entertainment involving: "Criminal, court, Law & Order, News." And he stated that: "The Criminal Justice System works for the most part but there are cases where I feel the system has not worked."


During voir dire, the prosecutor asked Domanique J. more about his lack of interest in criminal justice-related entertainment, which elicited the following response: "I just, I don't find crime or anything dealing with the court interesting. I mean, if it was up to me, I would rather just not be here." With respect to his arrest for <mask>, Domanique J. elaborated: "At the time, like the arrest, I guess you would say I didn't feel like I was treated fairly, but I definitely got off very easy. So-." When asked about his aunt's arrest, Domanique J. stated that she was convicted of trafficking drugs (marijuana) and spent four or five years in jail; he was close to her; he "was living there at the time," although he did not go to court with her; he visited her in jail three times; and, when she was released earlier that year, he spoke with her about her case. The prosecutor challenged Domanique J. immediately after he was questioned.


As discussed above with respect to Pierre M., the trial court found that the prosecutor's challenge based on Domanique J.'s stated belief that the criminal justice system was flawed was legitimate and race-neutral. As for the prosecutor's other articulated reason for challenging Domanique J., the trial court opined, correctly, that "caselaw has repeatedly held that negative experience by the juror or a close relative of the juror [with the criminal justice system], that is a bona fide and genuine and race neutral reason to excuse the juror." (See, e.g., People v. Cruz (2008) 44 Cal.4th 636, 655, fn.3, 80 Cal.Rptr.3d 126, 187 P.3d 970 [citing cases]; Wheeler , 22 Cal.3d at p. 277, fn. 18, 148 Cal.Rptr. 890, 583 P.2d 748 [stating that a "personal *306experience" with conviction and incarceration "suffered either by the juror or a close relative, has often been deemed to give rise to a significant potential for bias against the prosecution"].) The court noted that Domanique J. "indicated that his mother was arrested for drug trafficking, that he visited her in prison. He was living with her when she was convicted of this crime." Thereafter, the court went even further than the prosecutor on this point, stressing Domanique J.'s own experience with the criminal justice system: "[H]e, himself, had a contact with the criminal justice system, that he had a negative experience with that. He felt that he was not treated fairly, although he seems to admit and acknowledge that what he was arrested for was <mask>, and he served a very lenient sentence, even by his own standards, which he admitted. But, nevertheless, he harbors the feeling which he expressed here in court, that his experience was a negative one. He doesn't feel that he was fairly treated by the criminal justice system."


Father admitted having been arrested three or four times for DUI. He did not recall the dates. He was also arrested for <mask>. The children were not present on any of these occasions. He was not arrested while caring for the children. Father acknowledged his problems with alcohol in the past, but testified that he has not touched alcohol in more than a year. Father has never been arrested for using or possessing a controlled substance or for any violent criminal acts.


Obviously the instruction allows jurors to choose any element, find it occurred at any place and time, then combine another element with it at some other place and time, to choose any victim *654whether inside outside day or night, then choose any of several alleged exhibitions, then choose where and when the defendant may have been angry or threatening, then further when and where it believed a shotgun could have been readily capable of lethal use, as well as when and where he did any one of these things knowingly or not. Obviously such a patchwork verdict is impermissible. There simply is no possible way to know where when or if the jury found he had done all of these required elements in one place at one time, knowingly, or that it was even possible at all without using evidence from multiple separate acts including uncharged criminal actions. Such an instruction for DWI would run afoul as a jury could determine that the defendant was intoxicated, that he had operated a vehicle, and that he did so knowingly. The problem is he could have operated the vehicle at 9am, become intoxicated at noon, he has still operated a vehicle and he was intoxicated, just not at the same time; and not at the same place, and not as one criminal action. The state itself relies on just the same patchwork of elements in its reply to the primary point on appeal, using elements from inside the home, elements from outside the home, relying on the fact they heard a gunshot come from the location of the vehicle to prove a lethally capable firearm, then using shotgun shells found 200 yards away from that location not even remotely considered evidence, to infer a shotgun must have been present at the shooting range, then back to the events inside of the home to infer an angry manner, and threatening manner, then back outside to say there were people present because the deputies were there shining their lights at him, and he would have known a light has a source, the problem is the state has combined two separate criminal allegations at two separate places and times, to try to prove all of the elements of one offense, this is of course impossible because there were not two separate criminal offenses charged, and even if there had been the instructions must clearly separate each separate criminal accusation. The state explains that it does not matter where or when each of the elements occurred just that each element was inferred by the state somewhere at any time. The state's argument falls flat on its face because as noted above one can operate a vehicle, one can be legally intoxicated, one can do both of these things knowingly on the same day in the same County. But if the state charges DWI in one count which occurred at 9am, then charges <mask> at noon; the state cannot say oh well be was drunk at noon and he got a blood test that proved a BAC in excess of .08 at noon, but he was operating a vehicle at 9am, so well the jury will have to find he was drunk and he knowingly operated a motor vehicle. There is no evidence he did both of these things at the same time; but yes, if the jury is simply instructed that they only have to "find beyond a reasonable doubt that on or about January 1, 2014 in the county of Linn; the defendant; First was intoxicated at a BAC of .08; and second that he operated a motor vehicle, and third that he did so knowingly; then you will find the defendant guilty of DWI. Obviously he did all three of these things, just not at the same time or place. Obviously he did not commit an offense, but the fatally flawed instruction causes a patchwork verdict. The same applies here, and is impermissible. It is apparent from the Judges determination the state was choosing to submit an accusation it had not charged, that the instructions as given could cover any one of several accusations, separately or combined as one single lengthy act. The jury was simply not asked to distinguish between these separate acts, or instructed they could not use multiple separate acts to form one patchwork verdict of guilt by combining several actions at different times and places to satisfy various elements of the verdict's director of guilt which must occur as one act, at the same time and place, to the same victim(s) using the same evidence. For this reason the verdict cannot stand and must be reversed. The court may well find this point moot *655as explained herein due to lack of jurisdiction, or other dispositive points. As it is a point of general interest to this court for future protection of the Constitutional Rights of the accused it should be addressed.


Zepeda asked the firefighters to check appellant, and they determined that he was not suffering from low blood pressure or low blood sugar and was "okay." Zepeda said the next step was to get appellant to the sobering center, which is a place where people found to be intoxicated or under the influence of drugs can be given a chance to "sleep off whatever they've taken" rather than being arrested. Zepeda opined that the sobering center was the best place for appellant at that point to get him the help he needed, but Zepeda further explained that if a person believed to be intoxicated in public doesn't want to go to the sobering center, the alternative is to arrest the person for <mask>.


According to Zepeda, appellant kept his free hand out of Zepeda's reach while rolling his body back and forth and pushing with his body against Zepeda. Appellant appeared angry during the encounter, and Zepeda told appellant that he was under arrest for <mask>. Zepeda eventually managed to get appellant fully handcuffed with the help of two or three of the firefighters. Zepeda stated that at the time of the arrest, appellant was "obviously a danger to himself or others in the state that he[ was] in."


Regarding Zepeda's intent, appellant emphasizes the portion of Zepeda's testimony in which he stated that once the firefighters finished examining appellant, the "next step" was to take him to the sobering center. While this testimony supports the conclusion that Zepeda initially may not have intended to arrest appellant, it is clear from Zepeda's further testimony that circumstances rapidly changed. As Zepeda explained, the options at that point were to either take appellant to the sobering center or arrest him for <mask>. Zepeda described that when he placed a handcuff on appellant's left wrist, appellant appeared angry and forcefully prevented Zepeda from handcuffing the other wrist, pushed back against Zepeda, reached his arm away from Zepeda, and rolled around. At some point during the encounter, Zepeda told appellant that he was under arrest for public intoxication.


Q. [W]hen you handcuffed [appellant], you said you placed a handcuff on one hand. Do you recall which hand that was-or which arm that was? A. I believe it was his left. Q. His left arm. So were you facing the front of him at the time, or were you able to grab his arm and bring it behind him? A. I was-already had it behind him. Q. Okay. Do you recall [appellant] asking you why you were doing that? A. I told him he was under arrest for <mask>.... Q. And so I'm assuming you're trying to grab his other arm from-you're reaching around from behind Mr. Crofton to grab his other arm? A. Correct. But he's pushing against me with his body not allowing me to do it. The jury could have concluded from this exchange that Zepeda told appellant he was under arrest at the same time or immediately before appellant pushed him. Zepeda's statement is some evidence of his intent to arrest as opposed to merely detain or transport before appellant used force against him.


The prosecution moved before trial to preclude Ahmed from raising a <mask> defense. They asserted, inter alia, the defense was inapplicable "because Livermore Municipal Code 05.80.20 completely prohibits dispensaries within it's [sic ] jurisdiction. ... [¶] Based on the City of Livermore's restriction on the establishment of dispensaries the defendant was *474not operating a lawful collective and therefore should not be allowed to rely on" a medical marijuana defense under the Compassionate Use Act or the Medical Marijuana Program Act.


In Spot , for example, the People brought a civil enforcement action against <mask> distributors, alleging violations of the local municipal code, the Health and Safety Code, and the UCL. ( People ex rel. Feuer v. Superior Court (Cahuenga's The Spot ) (2015) 234 Cal.App.4th 1360, 1364, 184 Cal.Rptr.3d 809 ( Spot ).) Citing *483People v. Witzerman (1972) 29 Cal.App.3d 169, 105 Cal.Rptr. 284 ( Witzerman ), the Spot court summarily concluded there was no right to jury trial because "the gist of an action under the UCL is equitable." ( Spot , at p. 1384, 184 Cal.Rptr.3d 809.)


Defendants argue that the trial court erred by granting Pasadena's motions and issuing the injunctions because "there is no substantial evidence of a city ordinance which explicitly declares that a <mask> dispensary is a nuisance." Defendants assert that such an *898explicit declaration is required in order to deem any land use a nuisance per se, citing Beck Development Co. v. Southern Pacific Transportation Co . (1996) 44 Cal.App.4th 1160, 52 Cal.Rptr.2d 518 ( Beck ). In that case, the court stated, "The concept of a nuisance per se arises when a legislative body with appropriate jurisdiction, in the exercise of the police power, expressly declares a particular object or substance, activity, or circumstance, to be a nuisance." ( Id. at p. 1206, 52 Cal.Rptr.2d 518.)


On March 7, 2017, the City's voters approved Proposition M (ord. No. 184,841). The preamble noted that, under AUMA, "Retail sales of nonmedical cannabis may only take place pursuant to a state license, scheduled to become available in 2018," and that the City Council intended to "enact by ordinance a comprehensive regulatory and enforcement system related to medical and nonmedical cannabis activity." The preamble further provided, "[S]o that <mask> is available to patients in need of it, [MMB's] that have been operating in compliance with the limited immunity and tax provisions of [LAMC s]ections 45.19.6.3 and 21.50 at the one location identified in the Business's business tax registration certificate on file with the City should continue to operate until City licenses or permits are available, and, thereafter, priority in the processing of applications for a City license or permit should be given to those Businesses."


Construing Penal Code sections 4573, 4573.5, 4573.6, and 4573.9 together ( Gutierrez, supra , 52 Cal.App.4th at p. 386, 60 Cal.Rptr.2d 561 ), the court looked to division 10 for a definition of the controlled substances referred to in Penal Code section 4573.5 and concluded that <mask> is a controlled substance. ( Harris, supra , 145 Cal.App.4th at p. 1464, 52 Cal.Rptr.3d 577.) The court explained: "We are required by rules of statutory interpretation to '[examine] the statute's words' and give them 'a plain and commonsense meaning.' [Citation.] In doing so, we can only conclude that the Legislature intended to exclude 'controlled substances' from [Penal Code] section 4573.5's ambit, as section .5 does exactly that by its reference to 'any drugs, other than controlled substances. ' " ( Harris , at p. 1465, 52 Cal.Rptr.3d 577.)


appellant’s premises in September 2015, County “seized and summarily destroyed . . . approximately 880 high-grade, high- yield <mask> plants.” The marijuana seized on other occasions “was all badly decompensated and full of bugs” when it was returned to appellant. “[Appellant] determined that all inventories of packaged and stored cannabis products seized from [appellant’s] offices in the subject Raids, although returned, was in such damaged and degraded condition that all value was lost.” County’s Demurrer to 2020 Petition County demurred to the 2020 petition. It maintained that the petition is barred by the doctrine of res judicata, the statute of limitations, and the doctrine of laches. County also claimed that it had lawfully destroyed the 880 marijuana plants and “had no duty to preserve and return the [other] seized marijuana.” The court’s ruling on the demurrer states: “The Court Sustains, without leave to amend, [County’s] demurrer [to the 2020 petition] on grounds the matter is barred by the doctrine of res judicata. [Citation.] [Appellant] raised the same facts and claims alleged here in a prior action [the 2016 petition], which the court dismissed without leave to amend after [appellant] failed to state a claim, despite having the opportunity to amend


Against plaintiffs' minimal showing of hardship we must weigh the effect estoppel would have on public policy and the public interest. Public policy favors eliminating nonconforming uses. ( Feduniak , supra , 148 Cal.App.4th at p. 1374, 56 Cal.Rptr.3d 591.) And the City has a fundamental interest in locally determining where <mask> collectives are authorized. The public interest embodied in these policies outweighs the potential impacts to plaintiffs.


The PMC therefore states that <mask> dispensaries are not permitted, and non-permitted uses are nuisances. This was sufficient to support the trial court's finding that the dispensaries constituted nuisances per se. "[W]here the law expressly declares something to be a nuisance, then no inquiry beyond its existence need be made and in this sense its mere existence is said to be a nuisance per se." ( Beck, supra , 44 Cal.App.4th at p. 1207, 52 Cal.Rptr.2d 518 ; see also City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1086, 156 Cal.Rptr.3d 1 ["An act or condition legislatively declared to be a public nuisance is ' "a nuisance per se against which an injunction may issue without allegation or proof of irreparable injury." ' "].) Defendants have cited no authority in support of their position that a nuisance must be enumerated in a single *899ordinance section in order to be deemed a nuisance per se, and we have found none. *1095Defendants argue that Pasadena's permissive zoning structure is insufficient to establish a nuisance per se, because "[p]ermissive zoning by definition creates only a presumed prohibition, but not an explicit legislative determination that the use in question, medical marijuana dispensary, is a nuisance." Pasadena asserts that courts have recognized permissive zoning as a valid method of prohibiting dispensaries. Pasadena is correct. For example, in City of Monterey v. Carrnshimba, supra, 215 Cal.App.4th at p. 1095, 156 Cal.Rptr.3d 1, the Court of Appeal held that the municipality's permissive zoning code, combined with a code section stating that all unauthorized uses were nuisances, established that the dispensary at issue was a nuisance per se. ( Ibid . ) Other cases also have found that permissive zoning sufficiently bars the establishment of medical marijuana dispensaries. (See, e.g., The Kind and Compassionate v. City of Long Beach (2016) 2 Cal.App.5th 116, 128, 205 Cal.Rptr.3d 723 [a permissive zoning scheme meant that the dispensaries "never had a vested property right to operate a medical marijuana dispensary in the city"]; City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 433, 83 Cal.Rptr.3d 1 ["where a particular use of land is not expressly enumerated in a city's municipal code as constituting a permissible use, it follows that such use is impermissible"]; City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1165, 100 Cal.Rptr.3d 1 [where the "Claremont Municipal Code expressly states that a condition caused or permitted to exist in violation of the municipal code provisions may be abated as a public nuisance," the "operation of a nonenumerated and therefore expressly prohibited use ... created a nuisance per se."].)


¶10 On June 27, 2019, Swarer sent Respondent an email indicating that she and Tierney had decided to not pursue the <mask> business venture any further and requesting a refund of the unused retainer. Respondent did not reply to the email until July 22, 2019, at which point he indicated that he would review their file and remit the unused portion of the retainer that week. On August 19, 2019, Swarer sent Respondent another email indicating they had not received their refund. Respondent replied the next day, apologizing for the delay and promising to resolve the matter by the following Monday. Swarer sent another follow-up email the following Wednesday, August 28, 2019, because they still had not received any remittance. Respondent never replied to this message. Swarer sent two more follow-up emails on November 8, 2019, and November 24, 2019, requesting an account of how their funds were used and that any remaining portion be returned. On March 6, 2020, Swarer sent one final message to Respondent demanding an account and the return of any unused funds. Swarer also indicated that she had contacted the county bar association for advice on how to recover their money.


5 Appendix A to the EIR contained the full text of the initial study, including the discussion of biological resources. B. CEQA Requirements CEQA was adopted so that “all agencies of the state government which regulate activities . . . which are found to affect the quality of the environment, shall regulate such activities so that major consideration is given to preventing environmental damage. . . .” (§ 21000, subd. (g).) The agency evaluates whether the proposed activity is subject to CEQA because it could affect the quality of the environment. If it is subject to CEQA, the agency decides whether the project qualifies for an exemption from CEQA review. (Union of <mask> Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1185 (Union).) If a project does not fall within a CEQA exemption, the lead agency conducts an initial study to determine whether the project may have a significant impact on the environment. (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380; CEQA Guidelines, §§ 15063, subd. (a), 15002, subd. (k)(2) [hereinafter “Guidelines”].) The purposes of the initial study are to provide information to the lead agency so it can determine whether to prepare an EIR or a negative declaration, to enable the lead agency to modify the project by mitigating adverse impacts to a less-than-significant level so it can prepare a mitigated negative declaration, and to assist in preparing and EIR if one is required, by focusing the EIR on significant effects, identifying the effects determined not to be significant, and explaining why potentially significant effects would not be significant. (Guidelines, § 15063, subd. (c)(1)-(3)(C).) If the initial study reveals “substantial evidence that any aspect of the project, either individually or cumulatively, may cause a significant effect on the


Before the Supreme Court was the appeal of Lovie Troy Matthews (Matthews), who served as the getaway driver for an armed robbery in which a security guard was killed. ( Banks , supra , 61 Cal.4th at p. 794, 189 Cal.Rptr.3d 208, 351 P.3d 330.) Leon Banks (Banks), David Gardiner (Gardiner), and Brandon Daniels (Daniels) attempted to rob a <mask> dispensary. ( Id . at p. 795, 189 Cal.Rptr.3d 208, 351 P.3d 330.) Banks and at least one of the other men were armed. ( Ibid . ) When Banks, Gardiner, and Daniels were fleeing the dispensary, Banks and a security guard began shooting at each other, and Banks killed the guard. ( Ibid . ) Matthews was not present at the scene of the robbery, but he picked up Daniels and Gardiner a block away shortly thereafter. ( Ibid . )


In People v. Strasburg (2007) 148 Cal.App.4th 1052, 56 Cal.Rptr.3d 306 ( Strasburg ), a different panel of this division held that a police officer had probable cause to search a vehicle based on the odor of marijuana, despite the defendant's presentation of a <mask> prescription. ( Strasburg , at pp. 1058-1059, 56 Cal.Rptr.3d 306.) The court rejected the defendant's argument that the decriminalization of medicinal marijuana under the Compassionate Use Act of 1996 (CUA) bars a law enforcement officer from conducting a reasonable search based on the odor of marijuana. "[T]he officer is entitled to continue to search and investigate, and determine whether the subject of the investigation is in fact possessing the marijuana for personal medical needs, and is adhering to the eight-ounce limit on possession." ( Strasburg , at p. 1060, 56 Cal.Rptr.3d 306.)


In finding the City has consistently interpreted its Municipal Code to exclude <mask> collectives from the medical office use, we do not rely on exhibits four and five to the City's request for judicial notice. Those exhibits are complaints filed against the City in superior court by other medical marijuana collectives, along with attachments that appear to be compliance orders issued by the City. They were not provided to the Appeals Hearing Board or to the trial court. We granted judicial notice because they are court records. (Evid. Code, § 452, subd. (d).) But in taking judicial notice of court records, we do not take notice of the truth of any matters stated therein. (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 987-988, 156 Cal.Rptr.3d 26.)


The court relied primarily on City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, 156 Cal.Rptr.3d 409, 300 P.3d 494 ( Riverside ) in its tentative ruling granting the motion. It explained: "[W]hen they considered what are we going to do with the cooperatives, the collectives, the dispensaries operators establishments, or providers, under [ Health and Safety Code section] 11362.7681 the Legislature said, okay, we're going to let the cities decide as to whether or not they are going to let any of those collectives or cooperatives into their city and set up business, set up shop. They can decide whether to allow them to set up shop. They can decide if they let them set up shop, where, and under-you know, they can set it by zoning laws, say where and what hours you can operate, and that kind of stuff. That-[section] 11362.768 says, in paragraph (f), nothing in this section shall prohibit a city, county, or city and county from adopting ordinances or policies that further restrict the location of establishment of a <mask> cooperative, collective, dispensary, operator, establishment or provider. So, cities, or counties, or city and county, which applies only to San Francisco, can restrict those things. They can keep them out entirely. They can let them be there under certain conditions. That's the power of the City.


Defendants also argue that the trial court erred because "Pasadena shows neither nuisance conduct nor an explicit declaration by the City Council that a <mask> dispensary is a nuisance." However, " '[n]uisances per se are so regarded because no proof is required, beyond the actual fact of their existence, to establish the nuisance.' " ( City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 382, 13 Cal.Rptr.2d 735.) Here, defendants did not dispute that they operate medical marijuana dispensaries, and the PMC stated that medical marijuana dispensaries are not allowed and therefore a nuisance. Thus, there was no need for additional evidence or any determination of facts regarding whether the dispensaries created a nuisance.


The City argues that all of the specifically enumerated professions in the Municipal Code definition of medical office "have in common the fact that they are physicians or similar professions and that they *370have patients." The City contrasts those characteristics with <mask> collectives, which it argues have neither physicians nor their own patients because members of collectives "are patients of the physicians who prescribed marijuana."


The essence of RCCC's TAC was the private actions the group took to restrain trade and monopolize the <mask> market in Richmond. That was the gravamen, the thrust, of the cause of action. Whatever the protected activity, it *826was at the most incidental. ( Martinez v. Metabolife International, Inc ., supra, 113 Cal.App.4th at pp. 187-188, 6 Cal.Rptr.3d 494 ; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672-673, 35 Cal.Rptr.3d 31.)


Plaintiffs received notice from a City inspector that the collective might not be a permissible land use, and they point to no affirmative representations by the City to the contrary. (See Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1318, 104 Cal.Rptr.3d 195, 223 P.3d 57 [To support estoppel, the " 'representation, whether by word or act, to justify a prudent man in acting upon it, must be plain, not doubtful or matter of questionable inference. Certainty is essential to all estoppels.' "].) Plaintiffs list a number of actions the City could have taken to make its position clearer, such as enacting a moratorium on <mask> collectives, expressly listing medical marijuana collectives as an impermissible use, and expressly redefining the term medical office specifically to exclude medical marijuana collectives. Those actions would have clarified the City's position, but their absence does not make reliance on delayed enforcement reasonable.


*141The next day the jury asked the court for "the criteria, guidelines, requirements considered by the state of CA in order to sell and/or distribute <mask> by collectives, dispensaries, operator, or other products?" and "the criteria, guidelines, requirements considered by the State of CA in order to open a collective/dispensary?" The court instructed the jury that "Collectives and dispensaries must follow local laws, codes, and city ordinances under the laws of the State of California."


¶9 On or about August 28, 2018, Matthew Peter Tierney and his wife, Shani Swarer, retained Respondent to assist them with setting up a <mask> business. During their initial meeting, Respondent had Tierney sign an Attorney Retainer Agreement. Pursuant to the terms of that agreement, Tierney paid Respondent a $5,000.00 retainer in the form of a check to cover fees and costs incurred during the representation.2 The agreement also provided that upon conclusion of the representation, the balance of the retainer, if any, would be returned to the client.


Plaintiffs argue the "prolix phrase in a 13-page tax ordinance" was "wholly inadequate" to inform them that they were operating illegally. But plaintiffs had constructive knowledge (if not actual knowledge) of the disclaimers. They received business tax certificates directly from the City, and the marijuana business tax disclaimers were in the publicly available Municipal Code, easily found using reasonable care or diligence. ( John B. v. Superior Court (2006) 38 Cal.4th 1177, 1190, 45 Cal.Rptr.3d 316, 137 P.3d 153 *491[Constructive knowledge is "knowledge 'that one using reasonable care or diligence should have, and therefore is attributed by law to a given person.' "].) In light of the express disclaimers, reliance on paying *373required business taxes as authorization to operate a <mask> collective is unreasonable as a matter of law.


On March 19, 2015, CCC filed a petition for writ of mandate and motion for peremptory writ of mandate (writ motion). The facts alleged in the writ petition are undisputed. CCC alleges in the writ petition the following facts. CCC is a California nonprofit corporation. CCC sponsored and drafted a proposed <mask> initiative petition. The key provisions of the Initiative are that the Initiative would repeal existing City code provisions prohibiting medical marijuana dispensaries and would adopt regulations permitting and establishing standards for the operation of medical marijuana dispensaries within the City. The proposed Initiative allows the City to permit a maximum of three medical marijuana dispensaries. An applicant must obtain a business license and applicable City permits. According to the Initiative, a medical marijuana dispensary must pay the City an "annual Licensing and Inspection fee" of $75,000 (Initiative § 17.158.100). Initiative proponents, Nicole De La Rosa and James Velez, presented the Initiative petition to the City.


Plaintiffs argue that by collecting a marijuana business tax and requiring a business tax certificate, the City induced reasonable reliance by plaintiffs. The inescapable flaw in plaintiffs' argument is that express disclaimers in the Municipal Code and on the business tax certificate unambiguously state that collection of taxes is not authorization to operate a <mask> collective. Two passages in the Municipal Code state that the marijuana business tax was enacted to raise revenue and was not intended to be a regulatory permit fee. Another Municipal Code section, which we have previously quoted, is entitled "Payment of tax does not authorize unlawful business." And the business tax certificate issued to plaintiffs states that it is "not an endorsement, nor a certificate of compliance with other ordinances or laws, nor an assurance that the proposed use is in conformance with the City's Building/Fire/Zoning regulations."


1 We use “cannabis” and “marijuana” interchangeably. inapplicable because a judgment was not entered in the prior action that is the basis for County’s res judicata claim. On the other hand, we agree with County that appellant filed its present action after the expiration of the three-year statute of limitations and that the running of the statute was not tolled. We reject appellant’s argument that County is judicially estopped from arguing that the action is barred by the statute of limitations. Accordingly, we affirm. Procedural Background 2016 Petition On October 7, 2016, appellant filed a petition for a writ of mandamus (2016 petition). The 2016 petition was amended three times. The third amended petition, dated September 5, 2017, sought a writ of mandamus directing County to return appellant’s cannabis plants and products that had not been “wasted, damaged or destroyed.” County seized the cannabis pursuant to search warrants executed during four raids of appellant’s premises in 2015 and 2016. “For property taken that has been wasted, damaged or destroyed,” appellant sought to recover “the reasonable value of such property.” Appellant estimated that the value of all of its property taken by County was “in excess of at least fifteen million dollars.” In the third amended petition, appellant alleged that it “is a Collective . . . consisting of medical cannabis patients and patient caregivers.” It has “operated in conformance with state <mask> laws.” Therefore, the seized cannabis “was legally in [its] possession . . . [and] was not contraband.” “To date, [appellant] has not been charged with any crime.” (Underlining omitted.) “[A]ll 44 felony charges” filed against Jeffrey Kroll, appellant’s “head of operations,” were dismissed,


Meanwhile, on April 28, 2016, Pasadena cross-complained in defendants' action, seeking injunctive relief and nuisance abatement. On July 15, 2016, Pasadena filed a motion for a preliminary injunction in defendants' action. Defendants noted that there already was a preliminary injunction in place affecting many of the defendants. However, Pasadena was seeking an additional injunction because "<mask> dispensaries are trying to circumvent the preliminary injunctions already issued by either renaming the dispensary or allowing other dispensaries to occupy and use their location."


On March 1, 2016, Pasadena filed its reply to defendants' opposition in the injunction action. Pasadena noted that defendants did not refute that defendants are operating <mask> dispensaries in the City of Pasadena. Pasadena further argued that it employs "permissive zoning," which means that if a land use is not specifically listed in the Zoning Code, it is prohibited. Because a medical marijuana dispensary was not listed as an allowed use in the Zoning Code, such a use was not allowed. In 2005, Pasadena added the definition of a medical marijuana dispensary to the PMC by enacting section 17.80.020M. Pasadena pointed out that because the ordinance was adopted in 2005, defendants' challenge to it was time-barred because "facial challenges to zoning provisions are subject to the 90-day limitation period" under *1091*896Government Code section 65009, subdivision (c)(1)(B). Pasadena also stated that the City Council authorized the actions to abate illegal medical marijuana dispensaries.


In July 2015, the city council adopted Ordinance No. 1715, which is the ordinance at issue on this appeal.4 The council determined there were more than 40 <mask> businesses operating in the city despite being a prohibited use under the zoning ordinance. The council declared: "the city wishes to resume collection of marijuana tax and also address the continued proliferation of unauthorized medical marijuana dispensaries in the city by accepting tax from, and granting limited immunity from enforcement of its prohibition on medical marijuana dispensaries under the Vallejo Municipal Code to, those medical marijuana dispensaries that meet certain criteria, until the number of medical marijuana dispensaries is reduced to no more than four ...."


appellant’s premises in September 2015, County “seized and summarily destroyed . . . approximately 880 high-grade, high- yield <mask> plants.” The marijuana seized on other occasions “was all badly decompensated and full of bugs” when it was returned to appellant. “[Appellant] determined that all inventories of packaged and stored cannabis products seized from [appellant’s] offices in the subject Raids, although returned, was in such damaged and degraded condition that all value was lost.” County’s Demurrer to 2020 Petition County demurred to the 2020 petition. It maintained that the petition is barred by the doctrine of res judicata, the statute of limitations, and the doctrine of laches. County also claimed that it had lawfully destroyed the 880 marijuana plants and “had no duty to preserve and return the [other] seized marijuana.” The court’s ruling on the demurrer states: “The Court Sustains, without leave to amend, [County’s] demurrer [to the 2020 petition] on grounds the matter is barred by the doctrine of res judicata. [Citation.] [Appellant] raised the same facts and claims alleged here in a prior action [the 2016 petition], which the court dismissed without leave to amend after [appellant] failed to state a claim, despite having the opportunity to amend


"A SLAPP suit is 'a meritless lawsuit "filed primarily to chill the defendant's exercise of First Amendment rights." ' [Citations.] California's anti-SLAPP statute allows a defendant to move to dismiss 'certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity.' " ( <mask>, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 613, 212 Cal.Rptr.3d 45.) Per the anti-SLAPP statute: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." ( § 425.16, subd. (b)(1).)


The PMC therefore states that <mask> dispensaries are not permitted, and non-permitted uses are nuisances. This was sufficient to support the trial court's finding that the dispensaries constituted nuisances per se. "[W]here the law expressly declares something to be a nuisance, then no inquiry beyond its existence need be made and in this sense its mere existence is said to be a nuisance per se." ( Beck, supra , 44 Cal.App.4th at p. 1207, 52 Cal.Rptr.2d 518 ; see also City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1086, 156 Cal.Rptr.3d 1 ["An act or condition legislatively declared to be a public nuisance is ' "a nuisance per se against which an injunction may issue without allegation or proof of irreparable injury." ' "].) Defendants have cited no authority in support of their position that a nuisance must be enumerated in a single *899ordinance section in order to be deemed a nuisance per se, and we have found none. *1095Defendants argue that Pasadena's permissive zoning structure is insufficient to establish a nuisance per se, because "[p]ermissive zoning by definition creates only a presumed prohibition, but not an explicit legislative determination that the use in question, medical marijuana dispensary, is a nuisance." Pasadena asserts that courts have recognized permissive zoning as a valid method of prohibiting dispensaries. Pasadena is correct. For example, in City of Monterey v. Carrnshimba, supra, 215 Cal.App.4th at p. 1095, 156 Cal.Rptr.3d 1, the Court of Appeal held that the municipality's permissive zoning code, combined with a code section stating that all unauthorized uses were nuisances, established that the dispensary at issue was a nuisance per se. ( Ibid . ) Other cases also have found that permissive zoning sufficiently bars the establishment of medical marijuana dispensaries. (See, e.g., The Kind and Compassionate v. City of Long Beach (2016) 2 Cal.App.5th 116, 128, 205 Cal.Rptr.3d 723 [a permissive zoning scheme meant that the dispensaries "never had a vested property right to operate a medical marijuana dispensary in the city"]; City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 433, 83 Cal.Rptr.3d 1 ["where a particular use of land is not expressly enumerated in a city's municipal code as constituting a permissible use, it follows that such use is impermissible"]; City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1165, 100 Cal.Rptr.3d 1 [where the "Claremont Municipal Code expressly states that a condition caused or permitted to exist in violation of the municipal code provisions may be abated as a public nuisance," the "operation of a nonenumerated and therefore expressly prohibited use ... created a nuisance per se."].)


Ordinance No. 185,343 defined an "EMMD" as "an existing <mask> dispensary that is in compliance with all restrictions of Proposition D." (LAMC, § 104.01(12), italics added.) Also, it provided an "EMMD" would be given priority in obtaining a city license, only as long as it had been in full compliance with the Proposition D requirements for limited immunity. (LAMC, § 104.07(a).) The ordinance thus depended, as an integral part of its scheme, on an MMB complying with the law and not having been prosecuted until it obtained a license. Further, the ordinance stated, "An EMMD that as of January 1, 2018, meets all of Proposition D requirements shall continue to have limited immunity up until the time the EMMD receives Temporary Approval" for a license to sell *21marijuana (LAMC, § 104.07(b), italics added). Providing for continued immunity implies pre-2018 violations were not rendered noncriminal.


Appellants argue that our cited cases about taxes generally including assessments are inconsequential, because we cannot apply this common usage without a "clear, unambiguous indication" that this was the People's specific intent in adopting the 1911 constitutional provision, and the cited cases did not so hold. Appellants cite California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, where an initiative petition sought a special election to impose taxes on <mask> dispensaries, but the city invoked the constitutional provision that a tax proposed by "local government" was to be submitted at the next general election. ( Id. at pp. 931, 937.) The Supreme Court held "local government" did not include "the electorate." In doing so, the Court noted that the "common understanding" of the term "local government" did not readily lend itself to include the electorate. ( Id. at p. 937.) Thus, common usage of words is a factor in construing the constitutional provision. Here, the common usage of the term "taxes" in 1911 generally included user fees and assessments.


The Municipal Code was amended in 2011 specifically to regulate <mask> collectives, but that regulatory scheme was suspended almost immediately due to a referendum petition challenging the amendments. The Municipal Code was amended again in 2014 specifically to regulate medical marijuana. Under the 2014 amendments, "medical marijuana collective" is not listed as a permissible use in the Commercial Office district. It is, however, *368listed as a restricted use in certain industrial zoning areas.


*143Nothing in Riverside 's application of preemption principles supports the trial court's conclusion that a local ban on dispensaries abrogates the <mask> defense in a prosecution under state criminal law. While a local government remains free to enact local ordinances to regulate (or prohibit) medical marijuana operations within its jurisdiction ( Riverside, supra , 56 Cal.4th at p. 762, 156 Cal.Rptr.3d 409, 300 P.3d 494 ; see also § 11362.83; Kirby v. County of Fresno (2015) 242 Cal.App.4th 940, 961, 195 Cal.Rptr.3d 815 ), nothing in law or logic supports an extension of local government power over land use within its borders to, in effect, nullify a statutory defense to violations of state law. How could it? A city or county has no power to preempt state law. Nor does any language in the MMP or CUA even arguably suggest the defense provided by section 11362.775, subdivision (a) is available only to medical marijuana providers who are *477compliant with local ordinances. The court's ruling that Ahmed's violation of the Livermore ordinance barred him raising a medical marijuana defense under the MMP was thus erroneous as a matter of law.


Applying the foregoing test, we conclude the City erred in determining that the adoption of the Ordinance was not a project. Prior to the Ordinance, no <mask> dispensaries were legally *838permitted to operate in the City. The Ordinance therefore amended the City's zoning regulations to permit the establishment of a sizable number of retail businesses of an entirely new type. Although inconsistency with prior permissible land uses is not necessary for an activity to constitute a project (see Muzzy Ranch , supra, 41 Cal.4th at p. 388, 60 Cal.Rptr.3d 247, 160 P.3d 116 ), establishment of these new businesses is capable of causing indirect physical changes in the environment. At a minimum, such a policy change could foreseeably result in new retail construction to accommodate the businesses. In addition, as UMMP suggests, the establishment of new stores could cause a citywide change in patterns of vehicle traffic from the businesses' customers, employees, and suppliers. The necessary causal connection between the Ordinance and these effects is present because adoption of the Ordinance was "an essential step culminating in action [the establishment of new businesses] which may affect the environment." ( Fullerton Joint Union High School Dist. v. State Board of Education (1982) 32 Cal.3d 779, 797, 187 Cal.Rptr. 398, 654 P.2d 168 ( Fullerton ).) The theoretical effects mentioned above are sufficiently plausible to raise the possibility that the Ordinance "may cause ... a reasonably foreseeable indirect physical change in the environment" ( § 21065 ), warranting its consideration as a project.


California Law requires law enforcement officers to return "lawfully possessed" marijuana to its owner. The CSA, however, prohibits the distribution of marijuana without regard to whether state law permits its recreational use. The Garden Grove court confronted the scenario that involved whether a law enforcement officer who returns <mask> under California *260law *6would also be "distributing" marijuana under the CSA. The Garden Grove court found that " 21 U.S.C. § 841(a)(1)... does not apply to persons who regularly handle controlled substances in the course of their professional duties." ( Garden Grove, supra, 157 Cal.App.4th at p. 390, 68 Cal.Rptr.3d 656 ; see United States v. Feingold (9th Cir.2006) 454 F.3d 1001, 1008 [ § 841(a)(1) could apply to doctor only if, in distributing a controlled substance, he intended "to act as a pusher rather than a medical professional"].) The San Francisco Police Department would be returning the instant marijuana pursuant to a court order, and not acting as drug "pushers" the CSA was designed to combat. Accordingly, there is no "positive conflict" between California Law and the CSA such that the two could not consistently stand together.


Defendants' opposition was supported by the declaration of defendants' attorney, Stanley H. Kimmel. Kimmel stated that the Planning Commission *1090proposed a revision to the Zoning Code to define <mask> dispensaries on January 26, 2005. The Planning Commission then forwarded that recommendation to the City Council, which noticed a hearing on the issue, but continued the hearing several times. Kimmel stated that the hearing regarding the proposed rule was eventually held on July 18, 2005, and that the hearing was included in the agenda for the meeting on that date. Kimmel argued that the schedule for adoption of the ordinance violated hearing and notice requirements in the PMC. Kimmel also asserted that the initial language defined "medical marijuana dispensary," but did not ban such a land use. Kimmel said that ordinance 7018, which included language prohibiting medical marijuana dispensaries, was adopted without a required public hearing in September 2005. Although Kimmel quoted several documents throughout his declaration, such as City Council agenda statements, none of the documents is included as an exhibit.


Local governments may rationally limit <mask> dispensaries to those already in operation and compliant with prior law as past compliance shows a willingness to follow the law, which suggests future lawful behavior. ( 420 Caregivers, LLC v. City of Los Angeles (2012) 219 Cal.App.4th 1316, 1335-1338, 163 Cal.Rptr.3d 17.) In 420 Caregivers , the appellate court upheld a Los Angeles ordinance restricting dispensaries to those that had been in operation for several years and had registered under a prior ordinance. ( Id. at pp. 1326-1328, 163 Cal.Rptr.3d 17.) The court characterized the ordinance as "essentially a 'grandfather provision' with the added gloss of a prior registration requirement." ( Id. at p. 1335, 163 Cal.Rptr.3d 17.) The court rejected an equal protection challenge, noting that "[i]n areas of social or economic policy not involving suspect classifications or fundamental rights, a statute must be upheld so long as there is any reasonably conceivable set of facts that provides a 'rational basis' for the classification." ( Id. at pp. 1333-1334, 163 Cal.Rptr.3d 17.) The court observed that "[s]o-called 'grandfather provisions' have routinely withstood equal protection challenges, both at the federal and state levels" ( *1087id. at p. 1335, 163 Cal.Rptr.3d 17 ) and found no constitutional infirmity in the added requirement of prior registration. Those dispensaries' willingness to register under the prior law "provided the City with a rational basis to conclude that they would continue to act in a law-abiding manner going forward." ( Id. at p. 1338, 163 Cal.Rptr.3d 17.)


"Notwithstanding the activities prohibited by this Article, and notwithstanding that [MMB] is not and shall not become a permitted use in the City for so long as this Article remains in effect, [an MMB] shall not be subject to the remedies set forth in Los Angeles Municipal Code Sections 11.00 or 12.27.1 solely on the basis of: (1) an activity prohibited by Section 45.19.6.2; and (2) the fact that [MMB] is not a permitted use in the City, provided however that, as authorized by California Health and Safety Code Section 11362.83, this limited immunity is available and may be asserted as an affirmative defense only so long as subsections A. through D. and G. through O. of this Section 45.19.6.3 remain in effect in their entirety, only by [an MMB] at the one location identified in its original or any amended business tax registration certificate issued by the City, and only if that [MMB] does not violate any of the following <mask> business restrictions: [enumerating 15 restrictions]."


Plaintiffs argue that a <mask> collective is a medical office because it is a health-related occupation. They note that the term medical generally means something curative or related to healing, and they cite Health and Safety Code section 11362.5, subdivision (b)(1)(A), which states that one purpose of the Compassionate Use Act of 1996 is to "ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes *487where that medical use ... has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment" of various ailments. Plaintiffs contend that because medical marijuana collectives provide a medical and health-related service, they should be considered medical offices under the Municipal Code.


The arguments made by Save Lafayette Trees to the contrary are not persuasive. Save Lafayette Trees argues, " section 65009 is a statute adopted to address California's 'housing crisis' by 'reduc[ing] delays *642and restraints upon expeditiously completing housing projects.' (... § 65009(a)(1).) It does not by its terms, or even by implication, apply to the city's contract with PG&E to remove mature trees along public hiking trails." Although one of the three findings made by the Legislature with respect to section 65009 relates to housing,3 nothing in section 65009, subdivision (c)(1), restricts its application to decisions involving housing. As set forth above, courts have interpreted the statute as applying to challenges to a broad range of local *157zoning and planning decisions. (See, e.g., Urgent Care Medical Services v. City of Pasadena (2018) 21 Cal.App.5th 1086, 1096, 230 Cal.Rptr.3d 892 [ordinance prohibiting <mask> dispensaries]; Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1048, 137 Cal.Rptr.3d 873, [variance to landowners, in order to authorize pool and spa in setback zone].)


Before the Supreme Court was the appeal of Lovie Troy Matthews (Matthews), who served as the getaway driver for an armed robbery in which a security guard was killed. ( Banks , supra , 61 Cal.4th at p. 794, 189 Cal.Rptr.3d 208, 351 P.3d 330.) Leon Banks (Banks), David Gardiner (Gardiner), and Brandon Daniels (Daniels) attempted to rob a <mask> dispensary. ( Id . at p. 795, 189 Cal.Rptr.3d 208, 351 P.3d 330.) Banks and at least one of the other men were armed. ( Ibid . ) When Banks, Gardiner, and Daniels were fleeing the dispensary, Banks and a security guard began shooting at each other, and Banks killed the guard. ( Ibid . ) Matthews was not present at the scene of the robbery, but he picked up Daniels and Gardiner a block away shortly thereafter. ( Ibid . )


Plaintiffs1 own the subject property and the <mask> collective at issue. At all relevant times, the subject property was zoned Commercial Office under the City of San Jose Municipal Code (Municipal Code). The Municipal Code defines the Commercial Office zone as a "district in or near residential areas or between residential and commercial areas." The property abuts a residential use.


In People v. Strasburg (2007) 148 Cal.App.4th 1052, 56 Cal.Rptr.3d 306 ( Strasburg ), a different panel of this division held that a police officer had probable cause to search a vehicle based on the odor of marijuana, despite the defendant's presentation of a <mask> prescription. ( Strasburg , at pp. 1058-1059, 56 Cal.Rptr.3d 306.) The court rejected the defendant's argument that the decriminalization of medicinal marijuana under the Compassionate Use Act of 1996 (CUA) bars a law enforcement officer from conducting a reasonable search based on the odor of marijuana. "[T]he officer is entitled to continue to search and investigate, and determine whether the subject of the investigation is in fact possessing the marijuana for personal medical needs, and is adhering to the eight-ounce limit on possession." ( Strasburg , at p. 1060, 56 Cal.Rptr.3d 306.)


¶10 On June 27, 2019, Swarer sent Respondent an email indicating that she and Tierney had decided to not pursue the <mask> business venture any further and requesting a refund of the unused retainer. Respondent did not reply to the email until July 22, 2019, at which point he indicated that he would review their file and remit the unused portion of the retainer that week. On August 19, 2019, Swarer sent Respondent another email indicating they had not received their refund. Respondent replied the next day, apologizing for the delay and promising to resolve the matter by the following Monday. Swarer sent another follow-up email the following Wednesday, August 28, 2019, because they still had not received any remittance. Respondent never replied to this message. Swarer sent two more follow-up emails on November 8, 2019, and November 24, 2019, requesting an account of how their funds were used and that any remaining portion be returned. On March 6, 2020, Swarer sent one final message to Respondent demanding an account and the return of any unused funds. Swarer also indicated that she had contacted the county bar association for advice on how to recover their money.


The accountant report was prepared by New Era Certified Public Accountants, LLP (New Era), which specializes in accounting and tax preparation services for <mask> dispensaries. The accountant report provided a list of compliance areas, including licensing and permits, and estimated related costs incurred by cities and counties. New Era estimated the total annual cost of the enforcement procedures itemized in the accountant report totaled $56,540 per dispensary, plus an additional annual $10,000 per dispensary to cover possible fees resulting from a noncompliant dispensary failing to comply with applicable regulations and guidelines, which could lead to revocation or suspension of a license.


The appellate court held that there was no conflict preemption: "Conflict preemption exists when 'simultaneous compliance with both state and federal directives is impossible.' [Citation.] ... 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 <mask> in a manner that violated federal law. But because [state law does not] require such conduct, there is no 'positive conflict' with federal law .... [Citation.] In short, nothing in either state enactment purports to make it impossible to comply simultaneously with both federal and state law." ( Qualified Patients Assn. v. City of Anaheim , supra , 187 Cal.App.4th at pp. 758-759, 115 Cal.Rptr.3d 89.)


In any event, the record does not bear out the People's claim that Ahmed could not substantiate an MMP defense. At the outset of trial defense counsel advised the court, "this is a <mask> collective slash dispensary case. ... [¶] You had to have [a] medical marijuana card. You had to have a prescription from our doctor. You had to have a driver's license to go into his open store to purchase." When the court asked defense counsel whether he had evidence supporting a medical marijuana defense, counsel responded, "I have testimony, I have documents. You want me to show you some of the documents? ... [¶] I have no problem with doing that in this case. I am absolutely open." Ahmed testified at trial that the collective was being run properly and without criminal activity; that he did nothing illegal; that only patients with medical cards were permitted in the sales room; that he paid sales and employee payroll taxes; and that the collective was a non-profit, with any profits received put back into the business "for the patients." One of the investigating officers testified that out of 1,400 or 1,500 collective members *144whose records were seized only 5 or 6 had not provided California I.D.'s, and the officer was unable to identify any individuals who had not provided a physician's recommendation for marijuana. The People's current position that Ahmed failed to show he could assert a medical marijuana defense simply ignores all of this.


Vallejo has several ordinances affecting the operation of <mask> dispensaries. The starting point is its zoning ordinance, which predates state medical marijuana laws. Vallejo's zoning ordinance provides an extensive list of permitted land uses and prohibits all other uses. (Vallejo Mun. Code, §§ 16.06.010-16.06.630.) An unpermitted use is declared to be "a public *744nuisance." (Id. , § 16.100.040.) Vallejo has never recognized medical marijuana dispensaries as a permitted land use. A marijuana dispensary is not a designated land use and, therefore, is an unpermitted nuisance. (Id., §§ 16.06.010-16.06.630, 16.100.040; see City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 433, 83 Cal.Rptr.3d 1 [enjoining operation of a medical marijuana dispensary upon finding that "where a particular use of land is not expressly enumerated in a city's municipal code as constituting a permissible use, it follows that such use is impermissible "].)1


The jury continued to wrestle with questions about <mask>. The following day the jury requested the text of the code section "pertaining to medical marijuana and collectives" and asked: "Is it illegal, specifically under California state law, to do any of the following? [¶] ... For a collective/dispensary of medical marijuana to operate while knowingly being not in compliance with a local law or ordinance?" The court responded by providing the jury with the text of sections 11359 (possession for sale), 11360, subdivision (a) (sale) and Penal Code section 186.10 (money laundering). It did not give the jury the text of the Compassionate Use Act of 1996 (CUA; § 11362.5) or Medical Marijuana Program (MMP; § 11362.7 et seq.), but referred the jury to "the instructions already given concerning medical marijuana collectives or dispensaries."


The City of Pasadena filed a nuisance abatement action against several businesses and individuals related to <mask> dispensaries, which are prohibited by the Pasadena Municipal Code (PMC). The defendants in that action later filed a lawsuit against the City of Pasadena, and the two cases were deemed related. In each of the two actions, the trial *894court granted Pasadena's request for injunctions, prohibiting defendants from operating their medical marijuana dispensaries in Pasadena. The defendants appealed from each order, and we consolidated the appeals.


The court relied primarily on City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, 156 Cal.Rptr.3d 409, 300 P.3d 494 ( Riverside ) in its tentative ruling granting the motion. It explained: "[W]hen they considered what are we going to do with the cooperatives, the collectives, the dispensaries operators establishments, or providers, under [ Health and Safety Code section] 11362.7681 the Legislature said, okay, we're going to let the cities decide as to whether or not they are going to let any of those collectives or cooperatives into their city and set up business, set up shop. They can decide whether to allow them to set up shop. They can decide if they let them set up shop, where, and under-you know, they can set it by zoning laws, say where and what hours you can operate, and that kind of stuff. That-[section] 11362.768 says, in paragraph (f), nothing in this section shall prohibit a city, county, or city and county from adopting ordinances or policies that further restrict the location of establishment of a <mask> cooperative, collective, dispensary, operator, establishment or provider. So, cities, or counties, or city and county, which applies only to San Francisco, can restrict those things. They can keep them out entirely. They can let them be there under certain conditions. That's the power of the City.


In finding the City has consistently interpreted its Municipal Code to exclude <mask> collectives from the medical office use, we do not rely on exhibits four and five to the City's request for judicial notice. Those exhibits are complaints filed against the City in superior court by other medical marijuana collectives, along with attachments that appear to be compliance orders issued by the City. They were not provided to the Appeals Hearing Board or to the trial court. We granted judicial notice because they are court records. (Evid. Code, § 452, subd. (d).) But in taking judicial notice of court records, we do not take notice of the truth of any matters stated therein. (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 987-988, 156 Cal.Rptr.3d 26.)


Zaragoza identified exhibit A as "a print screen" of a computer system that had been used to enter business tax applications. He confirmed that the printout contained his signature and a date file stamp. He stated he did not know what prompted the printout and that the stamp did not indicate receipt of any documents. When the prosecutor showed Zaragoza an exemplar of a "<mask> Dispensary Business Information Form" (Business Information Form), he stated that he had never seen such a form before.


For the first time at oral argument, counsel for defendants asserted that in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc . (2013) 56 Cal.4th 729, 156 Cal.Rptr.3d 409, 300 P.3d 494, the Supreme Court held that state marijuana laws did not permit a municipality to implement a "total ban" on <mask> dispensaries. This is incorrect. In City of Riverside , the Court stated that state marijuana law "neither ... expressly or impliedly preempts the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit, or entirely exclude facilities that distribute medical marijuana, and to enforce such policies by nuisance actions." (Id . at p. 762, 156 Cal.Rptr.3d 409, 300 P.3d 494 [emphasis added].)


This case arises from the city of Walled Lake’s implementation, under the authority of the Medical Marihuana Facilities Licensing Act (MMFLA), MCL 333.27101 et seq., of its <mask> facilities licensing ordinance and plaintiff’s subsequent application for a license to operate a provisioning center. The ordinance specifies that there are to be three licenses for provisioning centers, with two located in the C-2 zoning district and one located in the C-3 zoning district. Walled Lake Ordinance C-334-17, § 6b, enacting § 21.49(b) of the Zoning Ordinance. Subsequently, the city passed Resolution 2018-10, which established administrative rules for processing MMFLA permit applications.


¶9 On or about August 28, 2018, Matthew Peter Tierney and his wife, Shani Swarer, retained Respondent to assist them with setting up a <mask> business. During their initial meeting, Respondent had Tierney sign an Attorney Retainer Agreement. Pursuant to the terms of that agreement, Tierney paid Respondent a $5,000.00 retainer in the form of a check to cover fees and costs incurred during the representation.2 The agreement also provided that upon conclusion of the representation, the balance of the retainer, if any, would be returned to the client.


We agree. As noted earlier, land use regulation is a function of local government. ( City of Riverside, supra, 56 Cal.4th at p. 742, 156 Cal.Rptr.3d 409, 300 P.3d 494.) State law permitting medicinal marijuana use and distribution does not preempt "the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit, or entirely exclude facilities that distribute <mask>, and to enforce such polices by nuisance actions." ( Id. at p. 762, 156 Cal.Rptr.3d 409, 300 P.3d 494.)


7 The applicable Maine statute, at the time, limited the authorization of <mask> use to persons with debilitating medical conditions. We do not in this case confront a situation where a so-called "medical marijuana" authorization scheme in practice allows for recreational use, so we have no occasion to speculate about how the rider might or might not apply in those circumstances.


On December 10, 2015, represented by attorney Thomas Byrne, McClain and Harrell filed a complaint naming three defendants: "Karen Kissler, individually and dba Karen Kissler, Esq. and Alternatives, a Health Collective." Action No. 258139 alleged one cause of action, for breach of contract, which claim alleged that on June 22 a "written agreement" was made "between Katie McClain, Jonothan Harrell and Karen Kissler," alleging that the agreement was "as follows: Karen Kissler would employ Plaintiffs to raise 99 <mask> plants" at Geyserville. Action No. 258139 sought $144,500 in damages.3 No claim was asserted against Alternatives.4


Applying the foregoing test, we conclude the City erred in determining that the adoption of the Ordinance was not a project. Prior to the Ordinance, no <mask> dispensaries were legally *838permitted to operate in the City. The Ordinance therefore amended the City's zoning regulations to permit the establishment of a sizable number of retail businesses of an entirely new type. Although inconsistency with prior permissible land uses is not necessary for an activity to constitute a project (see Muzzy Ranch , supra, 41 Cal.4th at p. 388, 60 Cal.Rptr.3d 247, 160 P.3d 116 ), establishment of these new businesses is capable of causing indirect physical changes in the environment. At a minimum, such a policy change could foreseeably result in new retail construction to accommodate the businesses. In addition, as UMMP suggests, the establishment of new stores could cause a citywide change in patterns of vehicle traffic from the businesses' customers, employees, and suppliers. The necessary causal connection between the Ordinance and these effects is present because adoption of the Ordinance was "an essential step culminating in action [the establishment of new businesses] which may affect the environment." ( Fullerton Joint Union High School Dist. v. State Board of Education (1982) 32 Cal.3d 779, 797, 187 Cal.Rptr. 398, 654 P.2d 168 ( Fullerton ).) The theoretical effects mentioned above are sufficiently plausible to raise the possibility that the Ordinance "may cause ... a reasonably foreseeable indirect physical change in the environment" ( § 21065 ), warranting its consideration as a project.


At the Ellis Street property, officers found 143 live marijuana plants. There were three <mask> cards, including one for Tapia, that purported to allow 90 live plants and six pounds of processed marijuana for each card holder. Inside a wooden shed on the property were portions of marijuana plants hanging by strings and a large bucket containing freshly cut marijuana plants. In a trailer on the property, officers found a handgun and a shotgun; the shotgun had been reported stolen in Watsonville. The trailer also was being used as a location to dry marijuana.


In their reply brief, appellants place great weight on the Supreme Court's recent decision in California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 222 Cal.Rptr.3d 210, 401 P.3d 49 ( Cannabis ). We requested supplemental briefing from the City to address Cannabis , which was published after it submitted its brief in this case. The City contends the holding in Cannabis is not applicable here. The facts in Cannabis involved a voter initiative to permit <mask> dispensaries and to require each dispensary to pay an annual $75,000 licensing and inspection fee. ( Id. at pp. 931-932, 222 Cal.Rptr.3d 210, 401 P.3d 49.) The California Cannabis Coalition collected signatures from 15 percent of the city's voters and requested a special election to consider the initiative pursuant to Elections Code section 9214 ( section 9214 ). ( Ibid . ) The city concluded the $75,000 fee constituted a general tax and could not be voted on in a special election. ( Id. at p. 932, 222 Cal.Rptr.3d 210, 401 P.3d 49.) The California Cannabis Coalition filed a writ of mandate alleging the city violated section 9214 by failing to hold a special election on the initiative. ( Ibid . )


"A SLAPP suit is 'a meritless lawsuit "filed primarily to chill the defendant's exercise of First Amendment rights." ' [Citations.] California's anti-SLAPP statute allows a defendant to move to dismiss 'certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity.' " ( <mask>, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 613, 212 Cal.Rptr.3d 45.) Per the anti-SLAPP statute: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." ( § 425.16, subd. (b)(1).)


The arguments made by Save Lafayette Trees to the contrary are not persuasive. Save Lafayette Trees argues, " section 65009 is a statute adopted to address California's 'housing crisis' by 'reduc[ing] delays and restraints upon expeditiously completing housing projects.' (... § 65009(a)(1).) It does not by its terms, or even by implication, apply to the city's contract with PG&E to remove mature trees along public hiking trails." Although one of the three findings made by the Legislature with respect to section 65009 relates to housing,3 nothing in section 65009, subdivision (c)(1), restricts its application to decisions involving housing. As set forth above, courts have interpreted the statute as applying to challenges to a broad range of local zoning and planning decisions. (See, e.g., Urgent Care Medical Services v. City of Pasadena (2018) 21 Cal.App.5th 1086, 1096, 230 Cal.Rptr.3d 892 [ordinance prohibiting <mask> dispensaries]; Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1048, 137 Cal.Rptr.3d 873, [variance to landowners, in order to authorize pool and spa in setback zone].)