Santa Paula Animal Rescue Center, Inc. v. County of L.A. ( 2023 )

Filed 9/18/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
SANTA PAULA ANIMAL B318954
RESCUE CENTER, INC. et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No.
21STCP03313)
v.
COUNTY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of dismissal following an order
sustaining a demurrer of the Superior Court of Los Angeles
County, James C. Chalfant, Judge. Reversed and remanded with
directions.
Sullivan & Triggs, Sheldon Eisenberg and Nairi Shirinian
for Plaintiffs and Appellants.
Office of the County Counsel, Dawyn R. Harrison, County
Counsel, Jennifer A.D. Lehman, Assistant County Counsel, and
Armita Radjabian, Deputy County Counsel; Carpenter, Rothans
& Dumont, Jill Williams and John J. Stumreiter for Defendant
and Respondent.
______________________
Plaintiffs and appellants Santa Paula Animal Rescue
Center, Inc. (SPARC) and Lucky Pup Dog Rescue (Lucky Pup)
(collectively Appellants) appeal a judgment of dismissal following
the trial court’s order sustaining, without leave to amend,
defendant and respondent County of Los Angeles’s (the County)
demurrer to Appellants’ petition for writ of mandate.
Appellants contend that the Hayden Act and, more
specifically, Food and Agriculture Code 1 section 31108 and
similar provisions 2 impose on the County a ministerial duty to:
(1) release a dog or other shelter animal 3 to a requesting animal
adoption or rescue organization with Internal Revenue Code
section 501(c)(3) status prior to euthanasia without first
determining whether the animal has behavioral problems or is
adoptable or treatable, and (2) release the aforementioned animal
to the requesting animal rescue or adoption organization without
requiring the organization to meet qualifications additional to
having Internal Revenue Code section 501(c)(3) status.
We conclude that the demurrer was improperly granted,
because the County lacks discretion to withhold and euthanize a
1 All further statutory references are to the Food and
Agriculture Code unless otherwise indicated.
2 Appellants’ petition for writ of mandate expressly cites to
four provisions that Appellants contend mandate the release of
animals to animal adoption or rescue organizations prior to
euthanasia: section 31108 [dogs], section 31752 [cats], section
31753 [other named species (e.g., rabbits)], and section 31754
[owner relinquished animals of a species impounded by shelters].
3 For ease, we use the term “shelter animals” to encompass
the animals referenced in sections 31108, 31752, 31753, and
31754.
2
dog based upon its determination that the animal has a
behavioral problem or is not adoptable or treatable. However,
the County has discretion to determine whether and how a non-
profit organization qualifies as an animal adoption or rescue
organization. We reverse the judgment of dismissal, and we
order the trial court to vacate its order sustaining the demurrer.
The matter is remanded to the trial court for further proceedings
consistent with the views expressed in this opinion.
FACTS AND PROCEDURAL HISTORY
Writ of Mandate
Appellants filed a petition for writ of mandate against the
County containing the following allegations:
Appellants are nonprofit corporations under Internal
Revenue Code section 501(c)(3). Appellants operate no-kill
shelters dedicated to saving the lives of stray and abandoned
animals, providing them with care and shelter, and re-homing
the animals.
The County is charged with preserving and protecting
animal and public safety, and with enforcing all state and local
laws governing the animal shelter system.
Section 31108, subdivision (b)(1), which is part of the
Hayden Act, imposes a mandatory ministerial duty on the
County to release to an Internal Revenue Code section 501(c)(3)
animal rescue or adoption organization any impounded dog
scheduled for euthanasia, unless the dog is irremediably
suffering from a serious illness or severe injury. The Hayden Act
imposes the same release requirements for other shelter animals.
3
The County routinely fails to perform this duty by
enforcing a policy of only allowing Internal Revenue Code section
501(c)(3) animal rescue or adoption organizations that the
County pre-approves as adoption partners to redeem animals
scheduled for euthanasia. In August 2021, the County denied a
request from Lucky Pup to obtain a dog named Derek, who was
impounded at the County’s Downey Animal Care Center and
scheduled for euthanasia, because Lucky Pup was not a pre-
approved adoption partner. In September 2021, the County
denied for the same reason Lucky Pup’s request for another
impounded animal scheduled for euthanasia.
The County also routinely fails to perform its duty to
redeem animals scheduled for euthanasia by denying the
requests of Internal Revenue Code section 501(c)(3) animal
rescue or adoption organizations that are pre-approved adoption
partners, based on the County’s determination that certain
animals have behavioral problems. In February 2020 and June
2021, the County denied pre-approved adoption partner SPARC’s
requests to redeem dogs named Gunnar and Winston from the
Agoura Animal Care Center because of behavioral problems.
Both dogs were subsequently euthanized. The County’s failure to
comply with the Hayden Act has resulted in unnecessarily high
rates of euthanasia.
Appellants sought to compel the County to comply with the
ministerial duties imposed by the Hayden Act, which Appellants
argued require the County to release any shelter animal
scheduled for euthanasia to an Internal Revenue Code section
501(c)(3) animal rescue or adoption organization without further
qualification unless that animal is irremediably suffering from a
serious illness or severe injury.
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Demurrer
The County filed a demurrer to the petition for writ of
mandate arguing that the Hayden Act does not preclude its use of
standards (beyond Internal Revenue Code section 501(c)(3)
status) to qualify particular organizations as animal rescue or
adoption organizations. The County also argued that it is not
precluded from refusing to release animals with behavioral
problems, because the Hayden Act excludes animals with
behavioral problems from being adoptable.
The County asserted that there is no mandatory duty to
release animals to any entity that claims to be an Internal
Revenue Code section 501(c)(3) animal rescue or adoption
organization. Although the word “shall” is often considered
mandatory, in the case of section 31108, the County must use
discretion to carry out its duty. Section 31108 provides that the
County “may” enter into cooperative agreements with animal
rescue or adoption organizations, which also contemplates that
there is discretion to be exercised in the County’s statutory
duties. Moreover, the statutory scheme must be read as a whole.
Section 17005, subdivision (a), Civil Code section 1834.4,
subdivision (a), and Penal Code section 599d, subdivision (a), all
state that it is California’s policy that no adoptable animal should
be euthanized. These three sections define adoptable animals, in
part, as animals that “have manifested no sign of a behavioral or
temperamental defect that could pose a health or safety risk or
otherwise make the animal unsuitable for placement as a pet[.]”
It would be absurd to interpret section 31108, subdivision (b)(1),
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to require the County to transfer to non-profit agencies an animal
that is not adoptable.
Appellants opposed the demurrer, arguing that the
language of section 31108, subdivision (b)(1), imposes a
mandatory duty on the County to release dogs prior to
euthanasia, and the Hayden Act does not give the County any
discretion in carrying out that duty. The Hayden Act extends
this same duty to other shelter animals. The Legislature has set
forth only three express exceptions to the requirement to release
shelter animals, and there is no exception for animals with
behavioral problems.
The trial court sustained the County’s demurrer without
leave to amend, and later dismissed Appellants’ entire action
with prejudice.
DISCUSSION
This appeal requires us to answer two questions. First,
does the County have discretion to refuse to release, and then to
euthanize, a dog deemed to have behavioral problems when
release has been requested by a non-profit animal adoption or
rescue organization? Second, does the County have discretion to
determine and impose requirements for organizations that claim
to be animal rescue or adoption organizations to qualify as such,
beyond simply ensuring that the organizations are non-profits
under section 501(c)(3) of the Internal Revenue Code? We
conclude that the Hayden Act vests the County with discretion to
determine which organizations qualify as animal adoption or
rescue organizations, but that once such organizations are
qualified, the County has no discretion to refuse to release, and
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then to euthanize, a dog after a qualified organization has
requested release of the animal.
Legal Principles & Standard of Review
“A writ of mandate ‘may be issued by any court . . . to
compel the performance of an act which the law specifically
enjoins, as a duty resulting from an office, trust, or station . . . .’
(Code Civ. Proc., § 1085, subd. (a).) The petitioner must
demonstrate the public official or entity had a ministerial duty to
perform, and the petitioner had a clear and beneficial right to
performance . . . . [¶] Generally, mandamus is available to
compel a public agency’s performance or to correct an agency’s
abuse of discretion when the action being compelled or corrected
is ministerial. [Citation.] ‘A ministerial act is an act that a
public officer is required to perform in a prescribed manner in
obedience to the mandate of legal authority and without regard to
his [or her] own judgment or opinion concerning such act’s
propriety or impropriety, when a given state of facts exists.
Discretion . . . is the power conferred on public functionaries to
act officially according to the dictates of their own judgment.
[Citation.]’ [Citations.] Mandamus does not lie to compel a
public agency to exercise discretionary powers in a particular
manner, only to compel it to exercise its discretion in some
manner.” (AIDS Healthcare Foundation v. Los Angeles County
Dept. of Public Health (2011) 197 Cal.App.4th 693, 700–701
(AIDS Healthcare Foundation).) “We independently review the
petition to determine whether [Appellants have] stated a viable
cause of action for mandamus relief.” (Id. at p. 700.)
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“A respondent may test the legal sufficiency of a petition for
writ of mandate by demurrer. [Citation.] On appeal from an
order of dismissal after a demurrer is sustained without leave to
amend, our review is de novo. [Citation.] In performing our
independent review of the [petition], we assume the truth of all
facts properly pleaded by the [petitioner]. [Citation.] [¶]
Further, ‘we give the [petition] a reasonable interpretation, and
read it in context.’ [Citation.] But we do not assume the truth of
‘ “ ‘contentions, deductions or conclusions of fact or law.’ ” ’
[Citations.]” (Committee for Sound Water & Land Development v.
City of Seaside (2022) 79 Cal.App.5th 389, 399–400.)
Whether section 31108, which provides for release of a dog
to a non-profit animal rescue or adoption organization “impose[s]
a ministerial duty, for which mandamus will lie, or a mere
obligation to perform a discretionary function is a question of
statutory interpretation. [Citation.] ‘We examine the “language,
function and apparent purpose” ’ of the statute.” (AIDS
Healthcare Foundation, supra, 197 Cal.App.4th at p. 701.)
“ ‘Even if mandatory language appears in [a] statute creating a
duty, the duty is discretionary if the [public entity] must exercise
significant discretion to perform the duty.’ [Citations.] Thus, in
addition to examining the statutory language, we must examine
the entire statutory scheme to determine whether the [County]
has discretion to perform a mandatory duty.” (Ibid.)
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Analysis 4
A. The Hayden Act: Significant Provisions
The Hayden Act’s provisions are codified throughout the
Civil Code, the Penal Code, and the Food and Agriculture Code.
The parties’ arguments center around three provisions of the
Hayden Act, which we set forth below, noting as relevant the
context in which those provisions appear in the Food and
Agriculture Code’s overall statutory scheme.
Section 31108, entitled “Holding period for impounded
dogs,” provides, in relevant part: “Except as provided in Section
17006, any stray dog that is impounded pursuant to this division
shall, before the euthanasia of that animal, be released to a
nonprofit, as defined in Section 501(c)(3) of the Internal Revenue
Code, animal rescue or adoption organization if requested by the
organization before the scheduled euthanasia of that animal.
The public or private shelter may enter into cooperative
4 The County’s request, filed on April 10, 2023, that we
take judicial notice of Attorney General’s Opinion No. 18-1001,
105 Ops.Cal.Atty.Gen. 50 (Mar. 24, 2022) is denied. The County
argues that opinions of the Attorney General are subject to
judicial notice under Evidence Code sections 451 to 453.
However, the only official act associated with the Attorney
General’s opinion is the issuance of the opinion, not its substance.
(Taxpayers for Improving Public Safety v. Schwarzenegger (2009)
172 Cal.App.4th 749, 771.) Our denial of the request to take
judicial notice does not prevent us from considering the Attorney
General’s opinion for its persuasive value. (Natkin v. California
Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th 997,
1006.)
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agreements with any animal rescue or adoption organization.”
(§ 31108, subd. (b)(1); italics added.) The section appears in Food
and Agriculture Code, Division 14, titled “Regulation and
Licensing of Dogs.” 5
Section 17006 provides in full: “Animals that are
irremediably suffering from a serious illness or severe injury
shall not be held for owner redemption or adoption. Except as
provided in subdivision (b) of Section 31108 and subdivision (c) of
Section 31752, newborn animals that need maternal care and
have been impounded without their mothers may be euthanized
without being held for owner redemption or adoption.”
Section 17005, entitled “Euthanasia,” states, in pertinent
part, that: “It is the policy of the state that no adoptable animal
should be euthanized if it can be adopted into a suitable home.”
(§ 17005, subd. (a).) As relevant here, “[a]doptable animals
include only those animals . . . that . . . have manifested no sign
of a behavioral or temperamental defect that could pose a health
or safety risk or otherwise make the animal unsuitable for
placement as a pet[.]” The section also provides that [i]t is the
policy of the state that no treatable animal should be
euthanized,” and defines treatable animals to include “any
animal that is not adoptable but could become adoptable with
reasonable efforts.” (§ 17005, subd. (b).) Identical language
regarding the policy of the state with respect to adoptable and
5 Division 14.5, titled “Regulation of Cats,” contains a
substantively identical provision relating to cats. (See § 31752.)
Division 14.5 also includes section 31753 [relating to certain
rabbits, guinea pigs, hamsters, potbellied pigs, birds, lizards,
snakes, turtles, and tortoises] and section 31754 [relating to “any
animal relinquished by the purported owner that is of a species
impounded by public or private shelters”].
10
treatable animals appears in Penal Code, section 599d, and
Education Code, section 92657. Both sections 17005 and 17006
appear in Division 9 of the Food and Agriculture Code, titled
“Animals Generally,” and within Chapter 7, which addresses
“Estrays.” 6
B. The Duty to Release
Appellants focus on section 31108, subdivision (b)(1), and
argue that the Legislature’s use of the word “shall” indicates that
it intended to impose a ministerial duty on the County to release
“any dog” upon request. The County urges us to interpret section
31108 as only requiring the release of dogs that are adoptable or
treatable. The County argues, based on the policy language of
section 17005, it may withhold and euthanize a dog that it
determines has behavioral problems that pose a health or safety
risk or otherwise make the dog unsuitable for adoption, because a
dog with a behavioral problem is unadoptable by definition. The
County further argues that its determination of which dogs are
adoptable and treatable involves an exercise of discretion for
which mandamus does not lie.
We agree with Appellants that the language, purpose, and
history of the Hayden Act all lead to the conclusion that section
31108 imposes on the County a mandatory duty to release dogs to
qualified nonprofit animal rescue or adoption organizations, and
that the County lacks discretion to withhold dogs the County
6 An “estray” is “any impounded or seized bovine animal,
horse, mule, sheep, swine, burro, alpaca, llama, or goat whose
owner is unknown or cannot be located.” (§ 17001.5.)
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determines have behavioral problems or are otherwise not
adoptable or treatable.
As used in the Food and Agriculture Code, the Legislature
has defined “shall” as mandatory and “may” as permissive. (§ 47;
but see In re A.V. (2017) 11 Cal.App.5th 697, 710 [mandatory
language confers discretion if mandatory construction is
inconsistent with statute’s purpose]; Walt Rankin & Associates,
Inc. v. City of Murrieta (2000) 84 Cal.App.4th 605, 614 [context
requires interpretation that statute permits exercise of
discretion].) Here, the Legislature’s use of the word “shall,” in
section 31108, subdivision (b)(1), imposes a mandatory duty on
the County to release, upon request, “any dog” that is impounded
to a nonprofit animal rescue or adoption organization before the
animal is euthanized.
The only exceptions to the requirement to release “any dog”
are expressly provided in the Food and Agriculture Code. Section
31108 states that it is subject to exceptions under the provisions
of section 17006, which provides for euthanasia of animals
suffering from serious illness or severe injury and newborn
animals that need, but do not have, maternal care. 7 (§ 31108,
subd. (b)(2).) The Hayden Act contains only one other express
exception to release: section 31108.5, subdivision (b), permits the
immediate euthanasia of a dog relinquished by its owner “if it has
a history of vicious or dangerous behavior documented by the
7 A parallel exception exists for cats under section 31752,
subdivision (c).
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agency charged with enforcing state and local animal laws.” 8
The Hayden Act provides no other exceptions to the County’s
duty to release dogs upon request. Had the Legislature intended
to restrict the release requirement only to adoptable or treatable
dogs, it could have done so. Looking at the language of the
Hayden Act, the fact that the express exceptions to section 31108
do not include dogs that are unadoptable or untreatable indicates
that it was not the Legislature’s intent to create these exceptions.
(See People v. Flores (2022) 77 Cal.App.5th 420, 444 [“ ‘the
presence of express exceptions ordinarily implies that additional
exceptions are not contemplated’ ”].)
The legislative history of section 31108 leads us to the same
conclusion. In 2000, the Legislature considered, but rejected,
language that would limit the animals that would be subject to
release by County shelters to those that the County determined
were “adoptable” and “treatable.” Such language was included in
an early draft of proposed revisions to section 31108, subdivision
(b)(1) in 2000, but excised in a later draft, never to resurface. 9
In light of the plain language and legislative history of
section 31108, subdivision (b)(1), we are not persuaded by the
County’s reliance on the general policy statement in the Hayden
Act—preventing euthanasia of adoptable and treatable animals
8 With respect to stray cats, section 31752.5 provides for
the possible euthanasia of a cat that the County verifies, by using
a standard protocol, is a feral cat. (§ 31752.5, subd. (c).)
9 See Assembly Amendment to Senate Bill No. 2754 (1999-
2000 Reg. Sess.) May 16, 2000, section 1 [including “adoptable
and treatable” limitation]; Assembly Amendment to Senate Bill
No. 2754 (1999-2000 Reg. Sess.) May 26, 2000, section 1
[excluding “adoptable and treatable” limitation].
13
(§ 17005; Pen. Code, § 599d; Ed. Code, § 92657)—to reach the
conclusion that only adoptable and treatable dogs must be
released upon request. The structure of the Food and Agriculture
Code reinforces our conclusion. The definitions of “adoptable”
and “treatable” are set forth in the Food and Agriculture Code in
the provision governing euthanasia of estrays (§ 17005, subds. (a)
and (b)), yet not employed in the sections pertaining to the
mandatory release prior to euthanasia of dogs (§ 31108, subd.
(b)(1)) or cats (§ 31752, subd. (c)(1)). This suggests that the
Hayden Act’s statement of legislative policy in section 17005 sets
minimum standards applicable to the euthanasia of animals
generally, but does not preclude additional protections against
euthanasia for specific species. The policy need not be read as a
limitation on protections against euthanasia for it to have
meaning: it also has broad application to animals generally
insofar as there are criminal laws involving malicious mischief
(Pen. Code, § 599d, subds. (a) and (b)), and the establishment of
the Animal Shelter Assistance Program for County Shelters,
which admit all types of animals (Ed. Code, § 92657, subds. (a)
and (b)). We reject the County’s argument that this general
policy was intended by the Legislature to be used as an
interpretive tool that limits the protection against euthanasia
only to adoptable and treatable animals.
Imposing upon the County a mandatory duty to release
dogs to adoption or rescue organizations is not incompatible with
the general policy against euthanizing adoptable and treatable
animals. Rather, we read the Hayden Act as providing the
County access to additional resources, through cooperation with
animal adoption and rescue organizations that focus on animals
traditionally kept as pets, to determine whether dogs may be
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adoptable or treatable, and to prevent overuse of euthanasia,
even in circumstances where the animal might not be adoptable
or treatable. Rescue and adoption organizations may be better
equipped to determine whether a dog is in fact adoptable or
treatable, to treat those dogs that can be treated, or to rescue and
care for dogs that cannot be safely adopted as pets. That the
Legislature has permitted the County to form cooperative
agreements with animal rescue and adoption organizations
demonstrates its intent for these entities to work together to
prevent the greatest number of animals possible from suffering
euthanasia.
For all of these reasons, we conclude that section 31108
does not confer the County discretion to withhold a dog on the
basis that the County has deemed it to have “behavioral
problems” or has determined that it is unadoptable and
untreatable. Rather, section 31108 imposes a mandatory duty on
the County to release such animals upon request from a qualified
organization. 10
C. Discretion Relating to Qualifying Organizations
Appellants also contend that section 31108 does not permit
the County discretion to set qualifications for approval of animal
rescue or adoption organizations, but rather imposes a
10 Our ruling on the meaning of section 31108 is sufficient
grounds to conclude that it was error to grant the County’s
demurrer and enter judgment against Appellants. Accordingly,
we do not reach a definitive interpretation of the provisions cited
in Appellants’ petition relating to other shelter animals (i.e.,
§§ 31752 [cats], 31753 [rabbits and other identified species], and
31754 [owner relinquished animals]).
15
mandatory duty on the County to approve any organization that
describes itself in such terms, so long as the organization is a
non-profit as defined in section 501(c)(3) of the Internal Revenue
Code. Appellants posit that the Hayden Act essentially deferred
to the Internal Revenue Service the determination of which
organizations should qualify as adoption or rescue organizations.
We disagree.
Section 31108 explicitly defines the term “nonprofit” by
reference the Internal Revenue Code. But the placement of that
definition after the word “nonprofit” alone, and not in relation to
modifying the phrase “animal rescue or adoption organization,”
makes clear that the Internal Revenue Code has no role in the
definition of such organizations. Nor do Appellants provide any
support for, or common-sense reason to reach, the conclusion that
the Legislature deferred to a taxing authority the determination
of which organizations have the qualifications to rescue animals
scheduled for euthanasia. Looking beyond section 31108, no
other provision of the Hayden Act defines or explains what
qualifies a non-profit organization as an “animal rescue or
adoption organization.” 11 Because the Hayden Act is silent on
this point, the County must exercise its judgment to make that
determination. The absence of specific direction from the
Legislature demonstrates that the Legislature intended to confer
discretion on the County in carrying out its statutory duty in this
context.
The second sentence of section 31108, subdivision (b)(1),
further supports the conclusion that the County has discretion in
11 Section 30503, subdivision (a)(2), defines a “rescue
group” in relation to the obligation to spay or neuter dogs;
however, the definition applies for purposes of that section only.
16
its performance of the obligation to release animals in this
respect—the County “may” enter into cooperative agreements
with animal rescue and adoption organizations. Neither section
31108 nor any other provision of the Hayden Act proscribes the
manner in which these cooperative agreements are formed, what
provisions they may contain, or how to select the organizations
with which the County would enter into such agreements.
Rather, the Hayden Act leaves the County to exercise its own
judgment. Given the breadth of the County’s duty to release “any
dog,” granting the County the discretion to ensure that the entity
to whom a dog is released appropriately qualifies as an animal
rescue or adoption organization facilitates the safe and
appropriate placement of dogs.
We conclude that the Legislature intended to confer
discretion on the County to qualify organizations as animal
rescue or adoption organizations through means that the County
determines are appropriate.
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DISPOSITION
The trial court’s judgment is reversed. The trial court is
directed to vacate its order sustaining the demurrer without
leave to amend. The matter is remanded to the trial court for
further proceedings consistent with the views expressed in this
opinion.
The parties shall bear their own costs on appeal.
CERTIFIED FOR PUBLICATION
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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