Frye v. County of Butte ( 2013 )

Filed 11/27/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
ELLEN FRYE et al.,
C069500
Plaintiffs and Appellants,
(Super.Ct.No. 148438)
v.
COUNTY OF BUTTE et al.,
Defendants and Appellants.
ELLEN FRYE et al., C070095
Plaintiffs and Appellants, (Super.Ct.No. 153564)
v.
BUTTE COUNTY ANIMAL CONTROL et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Butte County, Barbara L.
Roberts and Sandra L. McLean, Judges. Dismissed and Affirmed.
Michael R. Bush, for Plaintiffs and Appellants.
Law Office of Deems & Keller, LLP, Michael R. Deems, and Bruce S. Alpert,
for Defendants and Respondents.
In two cases, animal control officers seized horses they believed to be at risk. The
proceedings leading to the consolidated appeals now before us are convoluted.
1
Penal Code section 597.1 (§ 597.1) provides: “When [an animal control] officer
has reasonable grounds to believe that very prompt action is required to protect the health
or safety of the animal or the health or safety of others, the officer shall immediately
seize the animal and comply with subdivision (f) [providing for a post-seizure hearing].
In all other cases, the officer shall comply with the provisions of subdivision (g)
[providing for notice in lieu of seizure, and a pre-seizure hearing].” (§ 597.1, subd. (a).)
“Penal Code section 597.1[fn.] is a self-contained regulatory scheme covering
treatment of animals. It provides that the failure to provide animals with ‘proper care and
attention’ is a misdemeanor. (Subd. (a).) It covers the authority of animal control
officers over sick, injured, straying, or abandoned animals in nonemergency situations. It
further provides that animals may be seized or impounded when such an officer ‘has
reasonable grounds to believe that very prompt action is required to protect the health or
safety’ of the animals. (Subds. (a) & (b).) . . . Animals that were ‘properly seized’ are to
receive ‘care and treatment,’ the costs of which ‘shall constitute a lien on the animal’ that
the owner must pay before the animal is returned. (Subds. (a) & (b).) The owner of a
seized or impounded animal is entitled to ‘a postseizure hearing to determine the validity
of the seizure or impoundment,’ return of the animals, and liability for costs. (Subds. (f)
& (j).)” (Broden v. Marin Humane Society (1999) 70 Cal. App. 4th 1212, 1216 (Broden).)
The County of Butte, acting via its animal control department (hereafter
collectively “the County”), seized horses on separate occasions from plaintiffs Ellen Frye
and Marlene Schultz (collectively “Frye” except as context otherwise indicates) and each
sought a post-seizure hearing to contest the propriety of those seizures. Separate
administrative hearing officers sustained the seizures in each case.
Frye then filed a mandamus petition (Butte Co. Super. Ct. No. 148438, the “first
petition”). The trial court (Roberts, J., “the first trial court”) issued a document captioned
“Statement of Decision” holding that the administrative findings did not adequately
justify the County’s election of remedies, and remanding both cases for new
2
administrative hearings. Long after those new hearings were completed, the first trial
court issued a document captioned “Judgment,” from which the County appealed, and
Frye cross-appealed.
In 3 Civil No. C069500, we hold the County’s appeal and Frye’s cross-appeal are
untimely, because the “Statement of Decision” was a judgment, albeit a misleadingly-
captioned judgment, and therefore the purported judgment arising much later out of the
same case was a nullity and did not extend the time in which to file a notice of appeal.
Accordingly, we dismiss the untimely appeal and cross-appeal from that purported
judgment.
The new administrative hearings resulted in findings again sustaining the County’s
seizures of the horses. Frye filed a new mandamus petition challenging those findings
(Butte Co. Super. Ct. No. 15364, the “second petition”), and filed a timely appeal (3 Civ.
No. C070095) from the judgment denying that petition. We shall affirm that judgment.
DISCUSSION
I
The First Petition
A. Procedural Background
On February 25, 2010, Frye filed a second amended petition seeking a writ of
administrative mandate and declaratory relief, later characterized by Frye as a “review”
petition. Frye alleged various defects in the initial administrative hearings, including
inadequate discovery, lack of neutral hearing officers, lack of evidence to support the
decisions, and imposition of excessive administrative costs.
On September 28, 2010, the first trial court issued a document captioned as a
“Statement of Decision” finding the administrative decisions were deficient because “the
record is devoid of any findings . . . as to the proper procedure to be used, therefore these
cases must be remanded . . . to first determine whether or not pre-seizure hearings should
have been implemented before seizing the animals and proceeding with the post-seizure
3
hearing. To allow the agency to proceed with a post-seizure hearing only would deprive
the party of any remedy to address whether a pre-seizure hearing would have been more
appropriate in each circumstance. [¶] The cases are remanded to the agency to conduct a
hearing on the proper procedure that should have been used in these cases.”1
In November and December 2010, the respective hearing officers upheld the post-
seizure process used by the County in each case, after the hearings on remand ordered by
the trial court.
On January 24, 2011, the first trial court issued an order stating new administrative
hearings had been conducted and if the parties wanted to challenge the new findings, they
had to file a new petition that could be heard before a different judge.
On March 4, 2011, Frye filed an original petition for writ of mandate in this court
(Frye v. Superior Court, 3 Civ. No. C067527), complaining that the first trial court “has
refused to enter any judgment” in the matter.
On April 7, 2011, we disposed of Frye’s original petition as follows:
“Inasmuch as Code of Civil Procedure section 1094.5 does not permit
remand before the writ issues, ‘but instead specifies that the writ shall issue and
the reviewing court may then remand’ (Sierra Club. v. Contra Costa County
(1992) 10 Cal. App. 4th 1212, 1220-1221 [Sierra Club]), respondent court’s
inartfully worded Statement of Decision issued September 28, 2010, was in fact
intended by respondent court as a final judgment setting aside the administrative
decision and directing reconsideration of the matter as specified in the Statement
of Decision. As a result, and as noted by respondent court in its order of January
24, 2011, any challenge to the most recent administrative decision must be based
on a new petition for writ of mandate. Accordingly, the instant petition for writ of
mandate is denied.
On April 15, 2011, Frye moved to have the first trial court enter a judgment
commanding the County to set aside the first administrative decisions, compelling return
_____________________________________________________________________
1 The record does not contain any objections to this “Statement of Decision.”
4
of the horses, returning costs already paid for seizing and caring for Frye’s horses, and
awarding court costs. Frye’s points and authorities acknowledged we had ruled that the
first trial court had issued a final judgment, but argued further issues remained to be
decided and therefore the “interlocutory order” was not a final judgment--in effect
arguing to the trial court that we had erred and it should disregard our ruling. The County
did not oppose entry of a final judgment, but sought a more limited judgment that merely
remanded the matters for further hearings. Because those hearings had already taken
place, the County argued the proper vehicle for Frye to obtain any additional relief was
by filing a new petition for writ of mandate.
The first trial court signed a document captioned “Judgment” on August 22, 2011,
issuing a writ of mandate commanding the agency to set aside the first administrative
decisions, remanding for new hearings, and awarding Frye court costs “according to
proof[.]” Notice of entry of this purported judgment was made on August 31, 2011.
On October 17, 2011, the County filed an appeal from that purported judgment.
On October 28, 2011, Frye filed a cross-appeal from it.
B. Timeliness of the Appeal
The parties briefed the validity and adequacy of the purported judgment signed on
August 22, 2011. We do not reach those issues here.2 Instead, we resolve this appeal
and cross-appeal based on supplemental briefing we ordered. We confirm our earlier
view that the document captioned “Statement of Decision” filed on September 28, 2010
was “a final judgment” remanding for further administrative proceedings.3 This triggered
the time in which to file a notice of appeal, and the later document captioned as a
_____________________________________________________________________
2 However, in considering the second appeal, 3 Civil No. C070095, post, we resolve one
point also tendered by the untimely appeal in 3 Civil No. C069500.
3 Our earlier order is not “law of the case,” because we did not issue an alternative writ
or create a “cause” in response to Frye’s original petition in this court. (See Kowis v.
Howard (1992) 3 Cal. 4th 888.) Accordingly, we now must explain our reasoning.
5
“judgment” did not extend that time; it was a nullity. Because the notices of appeal and
cross-appeal from that void judgment were untimely as measured from the date of the
true--albeit miscaptioned-- judgment, this appeal must be dismissed.
1. The “Statement of Decision” was a Final Judgment.
At the time the “Statement of Decision” was filed, a trial court could not issue an
interlocutory administrative remand order. (See Sierra Club, supra, 10 Cal.App.4th at
pp. 1220-1221; Resource Defense Fund v. Local Agency Formation Com. (1987) 191
Cal. App. 3d 886, 898-890 (Resource Defense Fund).) Because we normally presume a
trial court acts according to extant law (see Ross v. Superior Court (1977) 19 Cal. 3d 913-
914; In re Fred J. (1979) 89 Cal. App. 3d 168, 175), we reasoned that the first trial court
issued a final writ when we denied Frye’s original petition.
As Frye emphasizes, several months after we denied Frye’s original writ petition,
our Supreme Court disapproved of the rule stated in Sierra Club and Resource Defense
Fund, and held there was “no blanket prohibition on the appropriate use, in an
administrative mandamus action, of a prejudgment remand for agency reconsideration of
one or more issues pertinent to the agency’s decision.” (Voice of the Wetlands v. State
Water Resources Control Bd. (2011) 52 Cal. 4th 499, 528-529 (Voice of the Wetlands).)
But this does not change the fact that, at the time it acted, the first trial court was bound
to follow the prior rule (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d
450, 455 (Auto Equity Sales); 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 297,
pp. 908-909 (Witkin)), and therefore intended at that time that its “Statement of
Decision” function as a final judgment, as we previously concluded, following then-
extant law.4
_____________________________________________________________________
4 Of course, the trial court’s subjective intent does not control our interpretation of its
actions. On the issues of the trial court’s intent, Frye points to the appellate court
decision in Voice of the Wetlands, claims this created a “split of authority,” therefore the
6
Accordingly, we confirm the view we previously expressed in the prior original
writ proceeding in this court, namely, that the document captioned as a “Statement of
Decision” filed on September 28, 2010, was a final judgment.
Frye contends that the “Statement of Decision” did not resolve all of the pleaded
issues between the parties, specifically, claims for “monetary damages” and return of the
horses. Generally speaking, the County agrees. Frye argues that this, too, shows the
“Statement of Decision” was not a judgment.
We disagree. As we explain, the “Statement of Decision” resolved all issues
necessary to resolve at that time. It would have been premature to order return of the
horses or restitution of amounts paid to the County to care for them, before the legality of
the seizure had been determined via the new administrative hearings in the first instance.
Generally, “A judgment is the final determination of the rights of the parties in an
action or proceeding.” (Code Civ. Proc., § 577; see Morehart v. County of Santa
Barbara (1994) 7 Cal. 4th 725, 743-744 [no appeal from purported judgment that fails to
dispose of all causes of action].) This case was not an action, but was a special
proceeding. (Code Civ. Proc., §§ 21-23; see 3 Witkin, supra, Actions, § 65, p. 136.)
However, the rule defining a judgment is the same: “A judgment in a special proceeding
is the final determination of the rights of the parties therein.” (Code Civ. Proc., § 1064.)
“It has been correctly stated that the general test for determining whether the
judgment is final is ‘that where no issue is left for future consideration except the fact of
first trial court was free to follow either line of cases (Auto Equity Sales, supra, 57 Cal.2d
at p. 456), and did not necessarily intend its statement of decision to be a judgment. But
our Supreme Court granted review in Voice of the Wetlands on March 19, 2008
(S160211) and the appellate court decision lost precedential value at that moment. (Cal.
Rules of Court, rule 8.1105(e) [“an opinion is no longer considered published if the
Supreme Court grants review”]; see People v. Rogers (1978) 21 Cal. 3d 542, 547.) When
the first trial court ruled, there was no split of authority. We note with disapproval that
Frye also cited that already long-uncitable appellate decision to this court in Frye’s
March 4, 2011, original writ petition.
7
compliance or noncompliance with the terms of the first decree, that decree is final, but
where anything further in the nature of judicial action on the part of the court is essential
to a final determination of the rights of the parties, the decree is interlocutory.’” (Meehan
v. Hopps (1955) 45 Cal. 2d 213, 217; see Dana Point Safe Harbor Collective v. Superior
Court (2010) 51 Cal. 4th 1, 5; People v. Whaley (2008) 160 Cal. App. 4th 779, 802.)
The first cause of action5 in the first petition alleges the administrative hearing
regarding the Frye seizure was invalid for various reasons. The second cause of action
alleges the administrative hearing regarding the Schultz seizure was invalid for various
reasons. The third cause of action sought a declaration regarding the validity of the
County’s practices regarding choosing a pre- as opposed to post-seizure remedy. The
fourth cause of action sought a declaration that section 597.1 was unconstitutional on its
face and as applied.
The judgment as set forth in the “Statement of Decision” ordered new
administrative hearings to determine the validity of the County’s exercise of discretion to
elect between pre- and post-seizure remedies. The first trial court therefore agreed the
first through third causes of action merited relief in the form of new administrative
hearings. That judgment impliedly rejected the claim in the fourth cause of action that
section 597.1 was facially unconstitutional, because the new hearings were designed in
part to determine the lawfulness of the County’s actions in these particular cases. Thus,
the judgment adequately disposed of the first petition and Frye or the County could have
appealed therefrom. (See Griset v. Fair Political Practices Com. (2001) 25 Cal. 4th 688,
697-700 [under “‘one final judgment’ rule,” denial of petition for writ of mandate in a
_____________________________________________________________________
5 We use the term “cause of action” loosely, as did the petition, which blends causes of
actions, legal theories, and remedies. (See Grossmont Union High School Dist. v. State
Dept. of Education (2008) 169 Cal. App. 4th 869, 881; Walton v. Walton (1995) 31
Cal. App. 4th 277, 291.)
8
prior appeal effectively resolved claims seeking to declare a statute unconstitutional, to
enjoin an administrative fine, and to prohibit future enforcement, and therefore was a
final determination of the rights of the parties in the action, “because the superior court’s
ruling . . . disposed of all causes of action framed by the pleadings, leaving no substantive
issue for future determination, it was an appealable judgment”].)6
Certain remedies sought by the first petition remained unresolved, but that is only
because they were not yet ripe, pending the outcome of the new administrative hearings.
Although Frye points to the alleged illegal retention of the horses and “money damages
based on the [County’s] improper charges,” until new administrative hearings were
completed, such remedies would be premature.7 Therefore, by ordering new
administrative hearings, the first trial court resolved all the issues in the petition that were
proper to resolve at that time.8
_____________________________________________________________________
6 Further: “When ‘the trial court’s failure to dispose of all causes of action results from
inadvertence or mistake rather than an intention to retain the remaining causes of action
for trial’ [citation], the appellate court has discretion to ‘preserve the appeal by amending
the judgment to reflect the manifest intent of the trial court’ [citations].” (Sullivan v.
Delta Air Lines, Inc. (1997) 15 Cal. 4th 288, 308.)
7 Neither the first petition nor the proposed purported final judgment used the term
“damages” but merely sought to prevent collection of or claim restitution for amounts
allegedly paid to the County for the care of the horses. Although not explained by Frye,
restitution can be viewed in some cases as a form of damages. (See AIU Ins. Co. v.
Superior Court (1990) 51 Cal. 3d 807, 826, fn. 11, 835-836.)
8 One remedy sought was an order that the County “cancel” certain criminal proceedings
and “[n]otify” the District Attorney that there was no basis for criminal prosecution, or
issue an order to show cause why criminal proceedings should not be restrained. Frye
does not explain how the first trial court could have granted such relief, and therefore we
deem these claims abandoned. (See Alameda County Flood Control & Water
Conservations Dist. v. Department of Water Resources (2013) 213 Cal. App. 4th 1163,
1203, fn. 42 (Alameda).) Frye’s petition also requested costs and fees, but those matters
could have been resolved by post-judgment cost bill or, if necessary (e.g., to claim private
attorney general fees under Code Civ. Proc., § 1021.5), a postjudgment motion. (See 3
Civ. Proc. During Trial (Cont.Ed.Bar 3d ed. 2011) Recovering Attorney Fees §§ 26.146-
9
2. No Timely Appeal from the Judgment was Filed.
The County was clearly aggrieved by having to undergo new administrative
hearings, and therefore could have appealed from the judgment ordering a remand. (See
8 Witkin, supra, Extraordinary Writs, § 217, pp. 1122-1123.)9
The time to appeal from the judgment signed September 28, 2010, expired no later
than 180 days after it was signed. (Cal. Rules of Court, rule 8.104 (a)(3) & (c); see 9
Witkin, supra, Appeal, § 607, p. 682.) The notice of appeal filed by the County and the
notice of cross-appeal filed by Frye in October 2011 were filed more than 180 days later,
and therefore were not timely, as the County concedes (assuming we treat the “Statement
of Decision” as a judgment, which we do).10 Frye declined to brief this issue, forfeiting
26.147, pp. 1601-1602, Recovering Costs, § 27.88, pp. 1650-1650.1.) Frye did not
timely file either a cost bill or motion for fees, thereby waiving any right to costs and
fees. (See Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223
Cal. App. 3d 924, 927-929; Cal. Rules of Court, rules 3.1700, 3.1702.) However,
ultimately, in the purported judgment made on August 22, 2011, the first trial court
awarded Frye and Schultz costs of the proceedings, later entered by the clerk. In any
event, Frye does not contend the lack of a cost award precludes a finding that the
“Statement of Decision” was a judgment, and therefore any such claim is deemed
abandoned. (Alameda, supra, 213 Cal.App.4th at p. 1203, fn. 42.)
9 In a portion of Frye’s supplemental briefing addressing a different question, Frye
asserts “plaintiffs did not receive any benefits” from the remand order contained in the
“Statement of Decision,” and that they were “aggrieved because the court didn’t resolve
their claims.” And in earlier briefing Frye asserted the remand was futile and “simply
gave the agency a second chance to make the same argument.” Either way, if Frye were
aggrieved by the “Statement of Decision,” Frye, too, could have appealed therefrom,
instead of waiting to appeal from the later purported judgment in the case.
10 Indeed, the trial court lost jurisdiction to act before plaintiffs moved on April 15, 2011
to have a formal judgment entered, because that motion was filed more than 180 days
after the “Statement of Decision” was filed.
10
the point. (See People v. Anderson (2007) 152 Cal. App. 4th 919, 929 [“A point not
argued or supported by citation to authority is forfeited”].)11
We are aware that between the time the “Statement of Decision” issued and the
time the purported judgment was entered, the parties engaged in dialogue with the first
trial court on the confusion caused by the miscaptioning, and also participated in further
administrative hearings.12 But they failed to file a timely notice of appeal.
Although notices of appeal are construed broadly, and may be deemed to refer to a
different order or judgment than specified, a timely notice of appeal is “an absolute
prerequisite to the exercise of appellate jurisdiction.” (Hollister Convalescent Hosp., Inc.
v. Rico (1975) 15 Cal. 3d 660, 668-670; see Maynard v. Brandon (2005) 36 Cal. 4th 364,
372-373 (Maynard); Cal. Rules of Court, rules 8.60(d) [appellate court may not relieve a
party from the failure to file a timely notice of appeal], 8.104(b) [appellate court must
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11 Frye also filed an incomplete response to our supplemental briefing order. We
directed the parties to address several questions, two of which required the parties to
assume the “Statement of Decision” was a judgment. Frye merely replied “Not
applicable” to these two questions. These answers were not responsive to our order.
12 We grant the County’s unopposed motion to augment the record to include letters to
the trial court from Frye’s counsel, dated December 22, 2010. The County maintains that
these letters show “it was the understanding of both counsel that the September 28, 2010
Statement of Decision was not intended to be a final judgment, but was instead intended
as an interlocutory remand of the underlying matters to their respective hearing officers
for further consideration.” Frye implicitly agrees with this view. We agree that,
generally, “a statement or memorandum of decision is not appealable.” (Alan v.
American Honda Motor Co., Inc. (2007) 40 Cal. 4th 894, 901.) But the document did not
contemplate further judicial action (cf. In re Marriage of Campi (2013) 212 Cal. App. 4th
1565, 1570-1571), it ordered further administrative hearings, exhausting judicial power
over the case under then-extant precedent. And, “The caption, title, or label of a pleading
or other document does not determine its nature or legal effect. . . . Rather, ‘it is what is
contained in the [document] itself that is significant.’” (Stiger v. Flippin (2011) 201
Cal. App. 4th 646, 654.) In any event, the confusion of the parties is irrelevant to the
timeliness of their appeals, as we explain immediately post.
11
dismiss the appeal if the notice of appeal is filed late]; 9 Witkin, supra, Appeal, § 601,
pp. 677-678; see also In re Baycol Cases I & II (2011) 51 Cal. 4th 751, 761, fn. 8
[“California follows a ‘one shot’ rule under which, if an order is appealable, appeal must
be taken or the right to appellate review is forfeited”].)
“In the absence of statutory authorization, neither the trial nor appellate courts
may extend or shorten the time for appeal [citation], even to relieve against mistake,
inadvertence, accident, or misfortune. Nor can jurisdiction be conferred upon the
appellate court by the consent or stipulation of the parties, estoppel, or waiver.” (Estate
of Hanley (1943) 23 Cal. 2d 120, 123; see Maynard, supra, 36 Cal.4th at pp. 372-373;
9 Witkin, supra, § 614, p. 689 [failure to file timely notice of appeal “cannot be excused
by the trial judge’s mistake or the adverse party’s fraud”].)
Once the judgment on the first petition became final due to the lack of a timely
appeal, the trial court’s jurisdiction to act on that petition was exhausted. As we have
said before, “judgments are parceled out at the ration of one per lawsuit.” (Paterno v.
State of California (1999) 68 Cal. App. 4th 74, 110 (Paterno).) Thus, the “judgment” filed
on August 22, 2011, was a nullity. (See, e.g., Moore v. City & County of San Francisco
(1970) 5 Cal. App. 3d 728, 734-735 (Moore) [second judgment “invalid on its face”].)13
This second judgment in the same action could not trigger a new period in which to file a
notice of appeal. Therefore, we dismiss the appeal and cross-appeal in 3 Civil No.
C069500, as untimely.
_____________________________________________________________________
13 In Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 325-332, we held Moore
and other cases involving the application of the one final judgment rule to a judgment
notwithstanding a verdict on fewer than all causes of action effectively had been
abrogated by subsequent legislation. That did not impair the part of Moore concluding
that if there is a second judgment in a case, that second judgment is a nullity. In some
cases there may be separate judgments as to separate parties (see Code Civ. Proc., §§
578, 579; 7 Witkin, supra, Judgment, § 38, p. 576), but that is not relevant in this case.
12
II
The Second Petition
A. Procedural Background
In the new round of administrative hearings, the County tendered the record of the
earlier hearings. Each of the hearing officers again sustained the respective seizures of
Frye’s and Schultz’s horses.
On April 22, 2011, Frye filed the second mandamus petition (Butte Co. Super. Ct.
No. 153564), partly contending that the hearing officers failed to explain why the pre-
seizure remedy was not appropriate in either case.
On September 6, 2011, the trial court (McLean, J., “the second trial court”) issued
a statement of decision rejecting Frye’s due process claims, concluding in the critical
portion as follows:
“Both hearing officers described the testimony upon which they relied in
reaching their respective decisions. These decisions were both based upon
sufficient and substantial evidence to reach the conclusion that the animals were
seized because they were in dire need of assistance. This court finds that [the
County] acted within the scope of its discretionary power and not in excess of that
power.
“The next question before the court is whether Penal Code section 597.1(f)
or 597.1(g) applies to this matter. Based on the findings of the two hearing
officers and the testimony at the hearings this court finds that sufficient evidence
existed to authorize [the County] to seize the animals pursuant to Penal Code
597.1(f). This court finds that [the County] acted within its jurisdiction under the
[Butte County Code] and the laws of the state of California and did not act in
excess of its powers. Thus the procedures of 597.1(g) are not at issue in this
matter.”
On October 26, 2011, the second trial court issued a judgment denying the second
petition, and Frye timely appealed therefrom.
B. Argument
Frye faults the hearing officers for not complying with the first trial court’s order,
because they did not compel the County to demonstrate why it seized the horses under
13
section 597.1, subdivision (f), instead of providing notice of the claimed violation and
granting Frye a pre-seizure hearing, under section 597.1, subdivision (g), and faults the
second trial court for not adhering to the first trial court’s view of the law. Frye’s briefs
raise three arguments in advance of this general view. We reject each argument.
1. Law of the Case
Frye asserts that under the “law of the case” doctrine, the hearing officers had to
determine whether the County’s election to seize the horses was “more appropriate” than
electing the remedy of notice to the owners and a pre-seizure hearing, and that the second
trial court, in ruling on the second petition, was bound to review the new decisions by the
standards set by the first trial court in its ruling on the first petition.
The “law of the case” doctrine provides generally that a prior appellate court
ruling on the law generally governs further proceedings in the case, whether that ruling
was right or wrong. (See People v. Stanley (1995) 10 Cal. 4th 764, 786-787; People v.
Dutra (2006) 145 Cal. App. 4th 1359, 1364-1365.) But the doctrine does not apply to
prior trial court rulings; therefore the ruling by the first trial court was not “law of the
case.” (See Lawrence v. Ballou (1869) 37 Cal. 518, 521; Provience v. Valley Clerks
Trust Fund (1984) 163 Cal. App. 3d 249, 256.)
Frye relies on three cases involving administrative hearings for the contrary
proposition. In each of those cases, the law of the case doctrine was applied following a
prior appellate decision. (George Arakelian Farms, Inc. v. Agricultural Labor Relations
Bd. (1989) 49 Cal. 3d 1279 (George Arakelian Farms); Nielsen v. Industrial Acc. Com.
(1934) 220 Cal. 118; United Dredging Co. v. Indust. Acc. Com. (1930) 208 Cal. 705.)
Nothing in any of these cases detracts from the settled rule that law of the case does not
apply to prior trial court decisions.
Frye argues that the rise of administrative review under Code of Civil Procedure
section 1094.5 somehow alters the scope of law of the case, by casting the superior court,
in ruling on a petition for writ of mandate, in the role of an appellate court, for purposes
14
of law of the case. This contention departs from Supreme Court precedent. (See George
Arakelian Farms, supra, 49 Cal.3d at p. 1291 [“the doctrine of the law of the case serves
to promote finality of litigation by preventing a party from relitigating questions
previously decided by a reviewing court” (emphasis added)].) Thus we cannot expand
the doctrine, even were we inclined to do so. (See Auto Equity Sales, supra, 57 Cal.2d at
p. 455.)
2. Scope of the Administrative Hearings on Remand
Frye argues the new hearings did not comply with the remand order contained
within the first trial court’s “Statement of Decision,” and therefore the new hearings were
not conducted according to law. This contention is forfeited because it is not separately
headed as an argument. (See In re S.C. (2006) 138 Cal. App. 4th 396, 408; Opdyk v.
California Horse Racing Bd. (1995) 34 Cal. App. 4th 1826, 1830-1831, fn. 4.)
Moreover, we find no due process violation. In each case, the hearing officer on
remand found the evidence showed reasonable cause to believe “very prompt” action by
animal control was necessary to protect the horses. Contrary to Frye’s argument, if the
facts show objectively reasonable cause to believe “very prompt” action was necessary,
the statutory scheme authorizes immediate seizure, followed by a post-seizure hearing,
consistent with due process. Indeed, when an animal control officer has reasonable
grounds to believe that very prompt action is necessary, the statute commands that that
officer “shall immediately seize” the animal(s) that are in danger or pose a danger to the
public. (§ 597.1, subd. (a)(1).) The County was not required to show, in hindsight, that
giving pre-seizure notice would have been “feasible” or “could have been used” or would
have been “more appropriate” than taking immediate, lawful, action, as Frye contends
Carrera v. Bertaini (1976) 63 Cal. App. 3d 721 (Carrera), relying in part on
Fuentes v. Shevin (1972) 407 U.S. 67, 90 [32 L. Ed. 2d 556, 576] (Fuentes), provided
examples of the need for “very prompt action” in the context of animal seizures:
15
“[I]t is clear that at times the summary seizure of farm animals must be
permitted to protect the personal safety and property rights of our citizens. For
example, where an animal has strayed onto a public highway, it must be removed
from the highway to avoid injury to motorists and others using the highway. Also,
if an animal with dangerous propensities has escaped from its enclosure, it must be
returned to its enclosure to avoid injury to others. So too, an injured, sick, or
starving animal must be cared for in a humane way, if possible. In these
situations, if after a reasonable investigation the officer is unable to locate the
owner or person entitled to the possession of the animal for the purpose of giving
him the opportunity of recapturing the animal or of caring for the animal as the
situation may demand, then the officer must have the power summarily to take
possession of the animal. Here, the governmental interest in protecting the person
and property of others must be deemed to override the property right of the
owner.” (Carrera, supra, 63 Cal.App.3d at pp. 728-729.)14
The term “very prompt action” as used in section 597.1 was taken from Fuentes:
“Only in a few limited situations has this Court allowed outright seizure[fn.]
without opportunity for a prior hearing. First in each case, the seizure has been
directly necessary to secure an important governmental or general public interest.
Second, there has been special need for very prompt action. Third, the state has
kept strict control over its monopoly of legitimate force: the person initiating the
seizure has been a government official responsible for determining, under the
standards of a narrowly drawn statute, that it was necessary and justified in the
particular instance. Thus, the court has allowed summary seizure of property to
collect the internal revenue of the United States,[fn.] to meet the needs of a national
war effort,[fn.] to protect against the economic disaster of a bank failure,[fn.] and to
protect the public from misbranded drugs[fn.] and contaminated food.[fn.]” (Fuentes,
supra, 407 U.S. at pp. 90-92 [32 L.Ed.2d at pp. 576-577], emphasis added; see
Carrera, supra, 63 Cal.App.3d at p. 728.)
“Whether special circumstances warrant summary seizure depend upon the nature
of the governmental interest, the need for “very prompt action,” and the duty of the
seizing official under the standards of a narrowly drawn statute.” (Phillips v. San Luis
Obispo County Dept. etc. Regulation (1986) 183 Cal. App. 3d 372, 378; Menefee & Son v.
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14 We previously granted Frye’s request for judicial notice of legislative documents
regarding amendments responding to Carrera, which held a prior version of Penal Code
section 597f and a local ordinance violated due process, because they did not provide for
a post-seizure hearing. (Carrera, supra, 63 Cal.App.3d at pp. 729-730.)
16
Dept. of Food & Agriculture (1988) 199 Cal. App. 3d 774, 781.) “[T]he statutory
language authorizing immediate seizure when an animal control officer ‘has reasonable
grounds to believe that very prompt action is required to protect the health or safety of
others’ is the equivalent of the exigent circumstances exception familiar to search and
seizure law. . . . There is no litmus test for emergencies; every case must be explained in
light of what was known to the officer at the time of entry.” (Broden, supra, 70
Cal.App.4th at pp. 1220-1221; see Conway v. Pasadena Humane Society (1996) 45
Cal. App. 4th 163, 172.)
Thus, the findings by the hearing officers that the information known to the animal
control officers at the time of the respective seizures gave reasonable grounds to believe
“very prompt action” was needed to protect the horses was sufficient to show that those
officers acted lawfully. No additional findings were necessary to uphold the seizures.
Nor do we agree with Frye’s view that new evidence was required at the new
hearings on remand. The parties submitted their respective cases on the records from the
first hearings.15 The hearing officers then each found the evidence supported the actions
of the animal control officers.
In its remand order, the first trial court found that the decisions of the hearing
officers had not addressed the question of election of remedies, not that the evidence at
the first hearings was insufficient to establish the propriety of the actions of the animal
control officers. In effect, it concluded the first round of administrative decisions
contained a logical analytic gap that required a further hearing. (See Topanga Assn. for a
Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506, 515 [“implicit in
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15 In Frye’s case, the new findings state: “The parties agreed that no new evidence
would be offered at the supplemental hearing.” In Schultz’s case, the new findings
explain that the parties submitted briefing and argument, the “Statement of Decision,”
the evidence and transcript from the first administrative hearing, and oral argument.
Thus, neither party sought to produce more evidence.
17
section 1094.5 is a requirement that the agency which renders the challenged decision
must set forth findings to bridge the analytic gap between the raw evidence and ultimate
decision or order”]; Singh v. Davi (2012) 211 Cal. App. 4th 141, 147-148.) The finding of
an analytic gap does not equate to a finding that the raw evidence already introduced was
insufficient.
3. The Butte County Code
Frye faults the second trial court’s order denying the second mandamus petition
because it referenced parts of the Butte County Code, including allegedly misquoting one
part, in addition to referencing section 597.1. However, the thrust of this ruling was that
the evidence showed the animal control officers had reasonable cause to believe “very
prompt” action was needed to protect the various horses, thereby justifying resort to the
post-seizure hearing remedy provided by section 597.1. The references to local
ordinances were unnecessary, and therefore even if they were erroneous in some manner,
any error was not prejudicial. Indeed, Frye forfeits the point by failing to articulate a
coherent claim of prejudice. (See Paterno, supra, 74 Cal.App.4th at pp. 105-106.)16
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16 We note with disapproval that Frye’s counsel accuses the second trial court of “bias”
and of acting as a “devious advocate” by referencing and purportedly misquoting the
Butte County Code. A judge does not act as an advocate, let alone a “devious” one, by
citing authority not mentioned by the parties. “The fact is that the trial judge, far from
acting arbitrarily, filed a memorandum opinion in which [she] made a fair and
comprehensive statement of the evidence and gave [her] reasons[.] It was [her] duty to
rule as [her] judgment and conscience dictated. The criticism to which [she] has been
subjected is inexcusable. And we may add that counsel who wrote plaintiff’s briefs
should not have assumed that we would be influenced by [his] epithets.” (Lazzarotto v.
Atchison, T. & S. F. Ry. Co. (1958) 157 Cal. App. 2d 455, 462; see Delger v. Jacobs
(1912) 19 Cal. App. 197, 208 [“untoward vituperation affords no credit to [counsel] and
likewise neither entertainment nor enlightenment to the court”].)
18
DISPOSITION
The appeal and cross-appeal in 3 Civil No. C069500 are dismissed as untimely.
The judgment in 3 Civil No. C070095 is affirmed.
The County shall recover its costs in 3 Civil No. C070095; the parties shall bear
their own costs on appeal in 3 Civil No. C069500. (Cal. Rules of Court, rule 8.278(a).)
DUARTE , J.
We concur:
RAYE , P. J.
BUTZ , J.
19