Judge Blaine K. Bowman, Case 37-2021-00007375-CU-MC-CTL 2024-03-29 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2021-00007375-CU-MC-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited Misc Complaints - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00007375-CU-MC-CTL PET ASSISTANCE FOUNDATION VS SAN DIEGO HUMANE SOCIETY AND SPCA CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Plaintiff's evidentiary objections to the Declaration of Kate Hurley, DVM are all OVERRULED because the objected to testimony is not specified. Fibreboard Paper Products Corporation v. East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO, et al. (1964) 227 Cal.App.2d 675, 712. Plaintiff's evidentiary objection 2 to the Declaration of Julie Levie, DVM is OVERRULED; all remaining objections are OVERRULED because the objected to testimony is not specified. Fibreboard, 227 Cal.App.2d at 712. Plaintiff's evidentiary objections to the Declaration of Michael Lowry are OVERRULED. Plaintiff's evidentiary objections 8, 28 and 38 to the Declaration of Zarah Hedge, DVM are OVERRULED; all remaining objections are OVERRULED because the objected to testimony is not specified. Fibreboard, 227 Cal.App.2d at 712.

Defendant San Diego Humane Society's evidentiary objections 17, 44, 98 and 101 are SUSTAINED; objections 1, 10, 20, 21, 22, 29, 31-34, 57, 59, 94 and 96 are OVERRULED; objections 2-9, 11-, 18, 19, 23-28, 30, 35-43, 45-56, 58, 60, 61-93, 95, 97, 99, 100 and 102-133 are OVERRULED because the objected to testimony is not specified. Fibreboard, 227 Cal.App.2d at 712. Plaintiffs' evidentiary objections contained within Plaintiff's response to SDHS's separate statement are OVERRULED for failure to comply with California Rules of Court, rule 3.1354(b) ['[a]ll written objections to evidence must be served and filed separately from other papers in support of or in opposition to the motion'].

The court then rules as follows. Defendants San Diego Humane Society' motion for summary judgment is DENIED.

As to the procedural issue SDHS raises, the court exercises its discretion in favor of considering the portions of Plaintiffs' opposing papers that were untimely filed and served. The court finds any prejudice to SDHS is outweighed by the prejudice to Plaintiffs were the court to disregard these papers.

Following demurrer, the remaining causes of action are the unfair business practices/Business and Professions Code § 17200 cause of action based on SDHS's alleged violation of Penal Code § 597s and the declaratory relief/CCP § 1060 cause of action based on SDHS's alleged violation of CC § 1816(c).

Pursuant to Penal Code § 597s (a) Every person who willfully abandons any animal is guilty of a misdemeanor.

(b) This section shall not apply to the release or rehabilitation and release of native California wildlife pursuant to statute or regulations of the California Department of Fish and Game.

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3106603 4 CASE NUMBER: CASE TITLE: PET ASSISTANCE FOUNDATION VS SAN DIEGO HUMANE SOCIETY AND 37-2021-00007375-CU-MC-CTL As on the court's ruling on Plaintiffs' motion for a preliminary injunction, the court adopts SDHS's analysis of the term 'abandonment' in Penal Code § 597f(a) and People v. Untiedt (1974) 42 Cal.App.3d 550. Under this analysis, the term 'abandons' as used in Penal Code § 597s requires a finding that the alleged acts of SDHS in operating its Community Cats Program are 'reasonably likely to result in the infliction of unjustifiable pain, or suffering, or cruelty upon' cats. People v. Untiedt, 42 Cal.App.3d at 554.

SDHS submits evidence which it contends establishes that Community Cat Programs, including SDHS's CCP, operate to improve the overall health and wellbeing of community cats [SSUMF 5]. SDHS submits evidence that when cats are brought in to SDHS, they are checked for indicia of ownership, given a medical evaluation, provided any necessary medical treatment, vaccinated, sterilized (i.e., spayed or neutered), and ear-tipped for future identification [SSUMF 6]; sterilization protects cats from significant health risks and tends to reduce risky behaviors such as roaming and further spread of communicable diseases [SSUMF 7]; if a cat is generally healthy with a good body condition score and has no credible or verifiable evidence of ownership, it is returned to its outdoor home in the community [SSUMF 12]; if a cat has a poor body condition score or medical conditions requiring significant intervention, it is not eligible to be routed through the CCP [SSUMF 13]; cats that do not meet the CCP's health and body condition criteria are not eligible for the CCP, and are instead admitted into the shelter for medical treatment and adoption or transfer to another animal welfare organization [SSUMF 14]. SDHS also submits evidence which it contends establishes that the experts who have designed and studied CCPs throughout the country agree that a good body condition score and the lack of identifiable serious medical conditions are the most reliable evidence that cats are doing well in their outdoor homes [SSUMF 15]; the presence of a cat in good body condition is an indicator that a food source is present in the area where the cat was found [SSUMF 16]; return of healthy community cats to their outdoor homes is not reasonably likely to result in the infliction of unjustifiable pain, suffering, or cruelty [SSUMF 27]; and return of healthy community cats provides the best outcome for the community cats [SSUMF 28].

Preliminarily, the court finds Plaintiffs' responses to SDHS's SSUMF 5, 6, 7, 14, 15, 16, 27 and 28 deficient. Plaintiffs' responses to each of these SSUMF state 'Disputed' and/or 'Objection as to relevance' but fail to set forth 'the nature of the dispute' as required by California Rules of Court, rule 3.1350(f)(2). However, in response to SSUMF 12, Plaintiffs state: Disputed. SDHS does not take adequate steps to determine if a cat is 'generally healthy.' And in response to SSUMF 13 Plaintiffs' state: Disputed. While this is the policy stated by SDHS, in practice many cats with significant medical conditions are dumped back outside.

As evidence Plaintiffs cite to the declarations of Debra Voulgaris, DVM, Amanda Vlahos, Sherri Penaloza, Kate Parberry, Anna Brown, a Registered Veterinary Technician and Marcia Busch. The Vlahos, Penaloza, Parberry and Brown declarations describe incidents where ill, injured and/or recently spayed/neutered cats were released into the community by SDHS. Voulgaris, states, in part: 4. Performing surgeries such as spaying or neutering and then immediately putting cats outdoors without follow up care is cruel and likely to result in suffering, because the cats need to recover and be given appropriate analgesia and monitored for complications. It is a foundation of practice to monitor post surgical animals carefully. Infection, pain, internal bleeding, dehiscence of the incision, among other issues, are possibilities. It is for this reason that client owned cats are typically sent home with analgesia and with specific directions to carefully monitor for signs of pain, weakness, monitor the incision site twice daily for swelling, discharge/oozing or dehiscence of sutures. Activity must be restricted and an e-collar kept in place at all times until the wound heals which at minimum is 7 days. This is the standard of humane and medically responsible care. Any of these complications must be addressed and managed quickly as they may lead to mortality and suffering. A lack of post-op monitoring is medically negligent and inhumane. See https://spayneuternet.org/post-surgery/; Ch 17 Complications in Spay and Neuter (Mark W Bohling) Surgery from the text: High‐Quality, High‐ Volume Spay and Calendar No.: Event ID: TENTATIVE RULINGS

3106603 4 CASE NUMBER: CASE TITLE: PET ASSISTANCE FOUNDATION VS SAN DIEGO HUMANE SOCIETY AND 37-2021-00007375-CU-MC-CTL Neuter and Other Shelter Surgeries Editor(s):Sara White.

5. In terms of pain management after surgery or injury or other, the American Animal Hospital Association (AAHA) states: Pain is a complex experience with physiologic and emotional consequences that can evoke a serious negative impact on animal health and welfare. AAHA states the following: a. Due to both ethical and medical imperatives, and consistent with the Veterinarian's Oath, the American Animal Hospital Association asserts that in all situations pain must be recognized and assessed, and strategies must be undertaken to predict and effectively prevent, relieve, or otherwise manage pain.

b. The potential for pain as a result of injury, illness, surgery, procedures, and diagnostic testing must always be considered. Each patient is entitled to a well-formulated plan that includes anticipation, prevention, early intervention, and adjustment according to follow-up assessments and evaluation regarding response to therapy. These plans should be evidence based insofar as possible and otherwise be based on a consensus of expert opinion.

(https://www.aaha.org/about-aaha/aaha-position-statements/Analgesics/ ) [Plaintiffs' response to SSUMF 12; Declaration of Debra Voulgaris, DVM.] Drawing all reasonable inferences in favor of Plaintiffs [Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826], the court finds the evidence Plaintiffs submit in opposition to SSUMF 12 and 13, including evidence that SDHS releases cats into the community when the cats are ill, when the cats have active wounds and/or shortly after undergoing sterilization surgery, and evidence as to the potential adverse impact of such release on a cat's health, sufficient to create triable issues of material fact as to whether the alleged acts of SDHS in releasing cats into the community as part of the SDHS Community Cats Program are acts 'reasonably likely to result in the infliction of unjustifiable pain, or suffering, or cruelty upon' cats.

The court is not persuaded by SDHS's arguments based on weighing the benefits of its CPP. SDHS fails to provide authority allowing for such weighing on a motion for summary judgment.

Because this cause of action remains viable, SDHS fails to establish grounds for summary judgment. As such, and because SDHS does not also seek summary adjudication, the court does not reach SDHS's motion as to the declaratory relief/CCP § 1060/CC § 1816(c) cause of action.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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