NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

ARONSON, J.

Holistic Health and Garrison Williams (collectively, Holistic Health) challenge the trial court's pretrial preliminary injunction shutting down Holistic Health's medical marijuana dispensary on grounds the dispensary's activities violated City zoning ordinances said to ban medical marijuana dispensaries by not expressly permitting them. Holistic Health's challenge in this appeal to the preliminary injunction order has been mooted by subsequent developments. While a preliminary injunction is an appealable order (Code Civ. Proc., § 904.1), the appeal "does not deprive the trial court of jurisdiction to proceed to try the case on the merits" (MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623 (MaJor)). That is precisely what occurred here.

The City of Dana Point (City) initiated this action by filing a nuisance complaint to shut down Holistic Health's dispensary. Over the course of the litigation, the City obtained two orders closing the dispensary. This appeal (G044242) involves the first order, in which the City obtained a preliminary injunction on grounds the dispensary's activities violated the City's zoning ordinances, which did not expressly permit medical marijuana dispensaries. The dispensary appealed the preliminary injunction, which we stayed pending appeal (G044242). In the meantime, the parties conducted discovery and, based on that discovery, the City obtained a second order closing the dispensary on grounds the dispensary or those members or persons who provided the dispensary with marijuana profited on marijuana transactions at the dispensary. Holistic Health appealed the trial court's closure order, and we issued a stay pending that second appeal (G044515).

We specified in a separate order, however, that Holistic Health's appeals did not stay the proceedings in the trial court. As the litigation proceeded below, the City eventually moved for summary judgment. The trial court granted the City's summary judgment motion and entered a permanent injunction against Holistic Health's medical marijuana activities, mooting the question of the validity of the initial preliminary injunction that is the subject of this appeal (G044242).1

Disputing the mootness of this appeal (G044242), Holistic Health contends a decision on the merits is necessary to address issues of first impression concerning legislative subpoenas the City issued to various dispensaries, including Holistic Health, before the City filed this nuisance action. The propriety of those subpoenas, however, has nothing to do with the issues in this appeal (G044242), in which Holistic Health challenges the initial preliminary injunction the trial court issued in the City's nuisance action. Holistic Health's attack on the preliminary injunction is moot, given the permanent injunction the trial court has now entered. (People v. Rath Packing Co. (1978) 85 Cal.App.3d 308, 314 ["permanent injunction . . . render[s] the appeal from the granting of the preliminary injunction moot"].) Simply put, Holistic Health's claims are not redressable: a decision in their favor on the preliminary injunction would be an idle act, given the permanent injunction now replacing it. Whether the City was entitled to that injunction after summary judgment in its favor on grounds Holistic Health failed to present facts invoking the affirmative defense afforded by California law, or whether the City obtained summary judgment on other grounds, are matters outside the present record and pertinent only to an appeal from that judgment. Accordingly, we must grant the City's motion to dismiss this appeal.

DISPOSITION

The appeal is dismissed as moot. Our stay of the trial court's preliminary injunction is similarly moot and hereby dissolved. The parties shall bear their own costs on appeal.

RYLAARSDAM, ACTING P. J. and FYBEL, J., concurs.