Judge: James C. Chalfant, Case: 23STCP00421, Date: 2023-09-12 Tentative Ruling

Case Number: 23STCP00421    Hearing Date: September 12, 2023    Dept: 85

            Respondents City of Los Angeles and Annette Ramirez, in her official capacity as Interim General Manager of the Los Angeles Department of Animal Services (“Department”) (collectively, “City”) demur to the First Amended Petition (“FAP”) filed by Petitioner Voice for the Animals (“VFA”). 

            The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

            A. Statement of the Case

            1. Petition

            VFA filed the Petition against the City on February 10, 2023.  The operative pleading is the FAP filed on May 19, 2023, alleging claims for traditional mandamus and declaratory relief.  The FAP alleges in pertinent part as follows.

            Founded in 1999, VFA is a public interest organization that seeks to prevent and reduce neglect of and cruelty to animals.  FAP at ¶10.   It has over 3,000 supporters, most of whom live in Los Angeles.  FAP at ¶10.  VFA rescues cats and offers them for adoption to people who will properly care for them.  FAP at ¶10.  It is the registered owner of cats Amber and Marisa.  FAP at ¶10.  Although the underlying facts involve both cats, only Marisa is the subject of this action.  FAP at ¶2. 

            On June 1, 2021, Ahmad Abu Maizar (“Maizar”) signed a Feline Adoption Agreement (“FAA”) giving Maizar a limited license over Amber and Marisa.  FAP at ¶3, Ex. A (FAA, p. 2).  The FAA listed Amber’s Microchip number as ending in 2994 and Marisa’s ending in 2286.  FAA, p. 1. 

Pursuant to the FAA, Maizar agreed to treat the cats with the same care and love as he would any other family member.  FAA, p. 4.  He agreed to provide proper food, shelter, and medical care and to teach proper behavior through encouragement and positive reinforcement.  FAA, pp. 5, 9.  He accepted responsibility for all expenses related to the cats from the moment of possession.  FAA, p. 12.  He agreed not to abuse the cats or transfer them for use or testing in medical research.  FAA, pp. 11-12.  He agreed to keep the cats indoors to prevent owls, coyotes, dogs, and disease from shortening their lifespan.  FAA, p. 10. 

If Maizar could not care for a cat for its whole life, he agreed to transfer ownership to a relative or friend who would have to sign a new FAA.  FAA, p. 7.  If either cat became lost, he would notify VFA within 24 hours.  FAA, p. 10.  If Maizar had any change in address or phone number, he agreed to notify VFA immediately.  FAA, p. 8. 

Maizar agreed that a VFA representative could conduct a follow-up visit at any time to ascertain compliance with the FAA.  FAA, p. 13.  If such a representative opined that there was a breach, that person had a right to reclaim the cats.  FAA, p. 14.  If reclamation was impossible, Maizar would be subject to a lawsuit.  FAA, p. 14.  Any material breach would also require Maizar to pay $5,000 in liquidated damages.  FAA, p. 15.

            Department policies and procedures require that, when an animal is retrieved, the chip shall be checked and the registered owner notified.  FAP at ¶5.  Since 2013, Department Policy No. 220295P (“Policy 25”) has stated that the owner of any animal is the most recent registered owner of the microchip, when the animal has one.  FAP at ¶¶ 6, 17.  Marisa was microchipped with the number A2019604.  FAP at ¶4.  VFA is listed as Marisa’s and the chip’s most recent registered owner.  FAP at ¶4.  In violation of its policy, the Department gave the cats to the West Los Angeles Animal Services Center (the “Shelter”) on or about March 5, 2022.  FAP at ¶¶ 5, 17.

            When VFA learned that the Shelter had given Marisa to another party, it demanded her recovery and return.  FAP at ¶7.  The Department refused to either return the cat or identify the party to whom the cat had been given so that VFA could ask that party to voluntarily return her.  FAP at ¶¶ 7-8.  Repeated requests to the Department’s Interim Administrator, the Chair of the Animal Services Commission, and the City Attorney’s office have failed.  FAP at ¶9. 

            Respondents have ignored VFA’s repeated requests for relief.  FAP at ¶16. There are no administrative remedies available for this action.  FAP at ¶16.   The Department’s refusal to repatriate Marisa continues to harm VFA’s interest in Marisa’s welfare, and in that of cats in general.  FAP at ¶19.  No monetary damages or other legal remedy can compensate for the harm this has caused.  FAP at ¶18.

            VFA seeks a declaration that the City violated its rights under Policy 25 through its failure to declare VFA Marisa’s rightful owner and to obtain her return.  Pet. Prayer for Relief, ¶1.  VFA seeks a peremptory writ of mandate to compel Marisa’s return.  Pet. Prayer for Relief, ¶2.  VFA also seeks an award of attorney’s fees under CCP section 1021.5.  Pet. Prayer for Relief, ¶3. 

            2. Course of Proceedings

            On February 17, 2023, VFA filed a notice of related case for the limited jurisdiction case of Voice for the Animals Foundation, Inc. v. Ahmad Abu Maizar, (“Maizar”), Case No. 22STLC03359.

            On May 19, 2023, VFA electronically served the City with the FAP.

            B. Applicable Law 

            Demurrers are permitted in administrative mandate proceedings.  CCP §§1108, 1109.  A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face. 

            Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings.  CCP §430.30(a); Coyne v. Krempels, (1950) 36 Cal.2d 257.  The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading.  CCP §430.10.  A demurrer is timely filed within the 30-day period after service of the complaint.  CCP §430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364. 

            A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain; (g) In an action founded on a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP sections 411.35 or 411.36.  CCP §430.10. 

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.  The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94), but it does not include inadmissible hearsay.  Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.   

            The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief.  Garcetti v. Superior Court, (“Garcetti”) (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339.  The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court.  Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47. 

The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged.  Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403.  This rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.  Vance v. Villa Park Mobilehome Estates, (“Vance”) (1995) 36 Cal.App.4th 698, 709. 

            For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  CCP §430.31(a).  As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies.  CCP §430.31(a)(1).  The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.  Id.  The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met.  CCP §430.31(a)(3).

            “[A] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” State ex rel. Metz v. CCC Information Services, Inc., (2007) 149 Cal.App.4th 402, 413.

            If a demurrer is sustained, the court may grant leave to amend the pleading upon any terms as may be just and shall fix the time within which the amendment or amended pleading shall be filed.  CCP §472a(c).  However, in response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.  CCP §430.41(e)(1).

            C. Governing Law[1]

            1. Holding Period for Stray and Owner-Relinquished Animals

            The required holding period for a stray cat impounded under the Food and Agricultural Code[2] shall be six business days beyond the day of impoundment.  §31752(a).  The stray cat shall be held for owner redemption for the first three of the six days and become available for either owner redemption or adoption thereafter.  §31752(b)(1).  During the holding period and before adoption or euthanasia of such a cat, a public or private shelter shall scan the cat for a microchip that identifies the owner and make reasonable efforts to contact that owner.  §31752(d).

            The holding period for any animal that is a species impounded by public or private shelters relinquished by its purported owner shall be held for the same holding periods, with the same requirements of care, available to stray dogs and cats in sections 31108 and 31752 and shall be available for owner redemption or adoption for the entire holding period.  §31754.

Upon relinquishment of a cat to a public or private shelter, the owner of the cat shall present sufficient identification to establish his or her ownership of the cat and shall sign a statement that he or she is the lawful owner of the cat.  Food & Ag. Code §31752.2(a).  Any person who provides false ownership information during this relinquishment shall be liable to the true owner of the cat in the amount of $1,000.  Food & Ag. Code §31752.2(b).

2. AB 2754

            Assembly Bill (“AB”) 2754 amended Food & Ag. Code sections 31752 and 31754 in 2000.  RJN Ex. 11.  As pertinent, AB 2754 requires a shelter to take certain steps to scan and notify owners of stary dogs or cats with a microchip identification and require a person relinquishing a dog or cat to provide sufficient identification of ownership and to sign a declaration that he/she is the owner.  Ex. 11, p. 5.  Proponents of the bill had argued that, under preexisting law, a person who claims to be an owner was not required to show evidence of his or her ownership of the animal he or she is relinquishing, and AB 2754 added this requirement.  Id. at p. 8.  In discussing the concern that owners would fail to provide evidence of ownership, AB 2754 gave an example of evidence of ownership as “a veterinarian’s record or bill showing the animal’s name, the owner’s name, and dates when the animal was seen at the veterinarian’s clinic.”  Id. 

             A comparison of the relevant statutes before and after AB 2754 shows that the new law requires microchip scanning and notice whenever a stray animal is impounded and available for redemption.  Id., p. 10.  There is no such requirement for owner-relinquished animals.  Id., p. 11.  For owner-relinquished animals, the previous version of section 31754(a) only allowed owner redemption on the first full business day after relinquishment, with adoption available from the second full business day.  Id.  AB 2754 permits both owner redemption and adoption during the entire holding period, which at the time was two full business days.  Id.

            3. Inhumane Treatment and Abandoned or Neglected Animals

            The Department’s director will enforce the Penal Code provisions that pertain to inhumane treatment of animals, take possession of abandoned or neglected animals, and care for or dispose of the animals in accordance with law.  RJN Ex. 9 (LACC §10.12.160).

            An authorized County employee or a law enforcement officer may enter a building or property to inspect the premises only in certain circumstances.  LACC §10.12.210(A).  This includes when that employee or officer has reasonable cause to believe that the keeping of an animal on the property is so hazardous, unsafe, or dangerous that an immediate inspection is necessary to safeguard an animal or public health and safety.  LACC §10.12.210(A)(3).

            Any person may take up a stray domestic animal or any such animal “found running at large”, provided that the person within four hours gives notice to the Department or a police officer that he has such an animal in his possession.  RJN Ex. 10 (LAMC §53.09(a)).

            4. Department Policies

            When the Department takes any animal into custody, it must assign the animal an Animal Identification Number (“AIN”) and enter it into the Chameleon tracking system.  RJN Ex. 5 (Policy 11, p. 1).  If the owner is surrendering the animal, the owner must pay the owner surrender fee and sign the Owner Surrender Form.  Policy 11, p. 2.  The animal becomes immediately adoptable upon owner surrender.  Id.

            Department Policy 25 governs the determination of pet ownership in the event of disputes.  RJN Ex. 8 (Policy 25, p. 1).  Licenses are a legally recognized means of establishing pet ownership and will supersede a microchip.  Id.  If only a valid license exists, its most recent holder is deemed the animal’s owner.  Id.  If only a microchip exists, the most recent registered owner of the microchip shall be deemed the owner.  Id.  If both a microchip and a valid license exist, each held by a different party, the license owner shall be deemed the owner of the animal.  Id.  Parties that contest animal ownership may file an action in a court of law.  Id.

            D. Statement of Facts

            Stripped of the denied requests, the judicially noticed facts are as follows.  On March 5, 2022, Maizar surrendered Amber and Marissa to the Shelter.  RJN Ex. 6. 

            VFA’s complaint in Maizar, filed on May 17, 2022, alleges breach of contract and common counts.  RJN Ex. 4.  The complaint asserts that Maizar breached the FAA when it surrendered the cats to the Shelter without VFA’s consent on March 5, 2022.  RJN Ex. 4, ¶¶ 7-8.  VFA seeks $10,000 in compensatory damages, or $5,000 per cat as under the liquidated damages provision of the FAA.  RJN Ex. 4, ¶¶ 6, 10.

            E. Analysis

            The City demurs to the FAP.  For the mandamus claim, the City asserts that VFA is not a beneficially interested party (Dem. at 6-8), it has failed to allege breach of a mandatory duty (Dem. at 9-10), and it has an adequate remedy at law.  Dem. at 10-11.  For the declaratory relief claim, the City asserts that the FAP does not allege a controversy regarding VFA’s legal rights (Dem. at 11-12), declaratory relief is an improper remedy for past acts (Dem. at 12-13), and the declaratory relief claim should fail for the same reasons as a claim for mandamus (Dem. at 13).

            1. Meet and Confer

            Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  CCP §430.41(a).  The parties shall meet and confer at least five days before the date the responsive pleading is due.  CCP §430.41(a)(2).   

            The parties met and conferred on June 13, 2023 via telephone but could not reach an agreement on the City’s objections to the FAP.  Stephens Decl., ¶2.  The City met its meet and confer requirements.

            2. Mandamus

            a. Mandatory Duty

            A traditional writ of mandate is the method of compelling the performance of a legal, ministerial duty required by statute.  See Rodriguez v. Solis, (1991) 1 Cal.App.4th 495, 501-02.  Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance.”  Pomona Police Officers’ Assn. v. City of Pomona, (“Pomona”) (1997) 58 Cal.App.4th 578, 583-84 (internal citations omitted). 

            A ministerial duty is one a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists.  Lockyer v. City and Cnty. of San Francisco, (“Lockyer”) (2004), 33 Cal. 4th 1055, 1082; Ellena v. Department of Insurance, (2014) 230 Cal.App.4th 198, 205.  It is “essentially automatic based on whether certain fixed standards and objective measures have been met.”  Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Dept. of Resource Mgmt., (“Sustainability of Parks”) (2008) 167 Cal.App.4th 1350, 1359.  In contrast, a discretionary act involves the exercise of judgment by a public officer. County of Los Angeles v. City of Los Angeles, (2013) 214 Cal.App.4th 643, 653-54.  Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation.  AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701. 

            The FAP alleges that the Department violated Policy 25 (Animal Ownership Dispute Policy), because it did not acknowledge VFA as Marisa’s owner based on her microchip registration.  FAP at ¶¶ 5-6, 17. 

The City asserts that the FAP fails to allege violation of a mandatory ministerial duty.  Policy 25 only applies to determine a pet’s ownership in the event of an ownership dispute.  Policy 25, p. 1 (RJN Ex. 8).  There was no ownership dispute when Maizar surrendered Marisa to the Shelter on March 5, 2022.  Under Policy 11, Marisa became adoptable directly thereafter.  Policy 11, p. 2 (RJN Ex. 5).  Dem. at 9.

            Additionally, the terms of the FAA do not support the assertion that it just granted a license instead of transferring ownership of Marisa to Maizar.  FAP at ¶3.  The FAA does allow VFA to reclaim Marisa under certain circumstances.  FAA, pp. 6, 14.  Yet, Maizar was Marisa’s owner until VFA exercised such a right and it never did so.  Dem. at 6-7.

            The City relies on McDougall v. Palo Alto Unified School Dist., (“McDougall”) (1963) 212 Cal. App. 2d 422, 434, as analogous.  Dem. at 7.  McDougall addressed a transfer of real property in fee simple subject to a condition subsequent.  212 Cal. App. 2d at 434.  The court explained that the future interest created when the condition occurs does not terminate the estate automatically, as a reversion does, but rather gives the grantor a right of reentry, the estate terminating only if the right is exercised.  Id.

            VFA does not dispute the City’s comparison between real property and pet ownership.  Instead, VFA asserts that Marisa’s microchip was registered to VFA as the owner when Maizar brought the two cats to the Shelter.  Opp. at 2.  When the Shelter scanned the chips, this alerted the Found Animals microchip registry, which notified VFA.  Id.  Although the Shelter knew that VFA was the registered owner of both cats, it illegally gave them to a stranger in violation of section 31752, which requires that cats be held for six business days and that the Shelter shall make reasonable efforts to contact the owner that the cat is impounded and available for redemption, and 31754, which permits owner redemption during the entire holding period.  Despite VFA’s repeated requests, the Department has refused to return Marisa. Opp. at 1-3.[3]

            VFA’s argument that the Shelter had a mandatory duty to hold Marisa for six days and attempt to contact the owner abandons the FAP’s theory regarding the Department’s duties under Policy 25 in the event of an animal ownership dispute.  FAP at ¶¶ 6, 17.  This alone would be reason to sustain the demurrer, albeit with leave to amend if VFA’s new theory were viable.  It is not.

The FAA is VFA’s pet adoption agreement with Maizar.  The FAA shows that VFA transferred ownership of Marisa to Maizar on June 1, 2021.  FAP, Ex. A.  The FAA imposed contractual duties on Maizar for the care of Marisa and Amber (FAP at ¶3) and gave VFA certain contractual rights, including the right to reclaim the cats if Maizar breached his obligations or, if reclamation was impossible, the right to sue Maizar for $5,000 in liquidated damages.  FAA, pp. 14-15.

Although the FAP alleges that the FAA was only a limited license (FAP at ¶3), and that VFA was the most recent registered owner of Marisa’s microchip (FAP §4), the FAP may not contradict the exhibits attached to it.  Moran v. Prime Healthcare Mgmt., Inc., (2016) 3 Cal.App.5^th 1131, 1145-46.  The FAA clearly states that Maizar is adopting Marisa and Amber as family pets and imposes all the obligations of pet ownership on him.  Ex. A.  It says nothing about a license.  The FAA’s conditions giving VFA the right to sue or reclaim Marisa in the event of a breach do not affect Maizar’s ownership of the cats.  These are simply contractual remedies available to VFA in the event of a breach, and VFA never attempted to reclaim Marisa for breach of the FAA before the cats were transferred to a new owner.  In this regard, McDougall’s holding, that a transfer of real property subject to a condition subsequent does not terminate the estate automatically when the condition occurs, applies by analogy. 

Maizar was Marisa’s owner,[4] and his ownership defeats VFA’s argument that the Department violated a mandatory duty set forth in sections 31752 and 31754.  As the City notes, there are important differences between sections 31752 and 31754.  Reply at 4. 

Section 31752 requires a six-day holding period for an impounded stray cat, the first three days of which are solely for owner redemption and thereafter for either redemption or adoption.  §§ 31752(a), (b)(1).  During this period and before adoption or euthanasia of such a cat, a public or private shelter shall scan the cat for a microchip that identifies the owner and make reasonable efforts to contact that owner.  §31752(d).  Section 31752 applies only to stray cats.  The shelter cannot put a stray cat up for adoption until three full business days have passed after impoundment.  §31752(a).  It is undisputed that Marisa was not a stray cat.  She was living with Maizar, who adopted her.

Section 31754(a) applies the same six-day holding period for a cat relinquished by its purported owner, but the cat is available for owner redemption or adoption during the entire holding period.  Section 31754 governs cats relinquished by their owner.   The shelter can immediately put a cat up for adoption if the purported owner relinquishes it.  §31754(a).  There is no requirement of scanning and notice in section 31754.  AB 2754 added a scanning and notice requirement for stray animals impounded under section 31752 but the bill analysis did not discuss such a requirement for animals relinquished under section 31754.  RJN Ex. 11, p. 10-11. 

            Thus, on March 5, 2022, Maizar surrendered Marisa to the Shelter as her owner and her adoption later that day complied with section 31754.  The Shelter was not required to scan her microchip or give anyone notice of her impoundment before the adoption. 

VFA contends that ownership of Marisa is a question of fact and it is unknown whether Maizar gave the Shelter “satisfactory” evidence of ownership.  Opp. at 4.  This contention is irrelevant because the FAA shows that Maizar was Marisa’s owner.  Any failure by him to provide sufficient identification of ownership and to sign a statement that he was the lawful owner as required by section 31752.2 is not prejudicial to VFA because he was in fact the owner. 

As a result, VPA has no viable allegation that the Department violated either state law or Department policy.[5]

b. Standing

            A litigant’s standing to sue is a threshold jurisdictional issue, and a complaint filed by a party who lacks standing is subject to demurrer.  CCP §430.10(b); Reynolds v City of Calistoga (2014) 223 Cal.App.4th 865, 871.  To have standing for mandamus, an association must plead a non-discretionary, ministerial duty, as well as a beneficial interest in the outcome of the proceeding, or “a clear, present and beneficial right” to the performance of the duty allegedly owed by the defendant.  Mission Hospital Regional Medical Center v. Shewry, (2008) 168 Cal.App.4th 460, 478.  A beneficially interested party is one who has “some special interest to be served or some particular right to be preserved or protected” over and about the public’s general interest.  Ibid.  As an administrative law authority (Prof. Davis) stated: “One who is in fact adversely affected by governmental action should have standing to challenge that action if it is judicially reviewable.”  Ibid. (Treatise citation omitted).

            As the FAA cannot allege the Department’s breach of a ministerial duty, it follows that VFA lacks personal standing.  The FAA alleges a duty stemming from Department policies and procedures that, in the event of an ownership dispute, the most recent registered owner of the microchip shall be deemed the animal’s owner.  FAP at ¶¶ 6, 17.  There was no ownership dispute.  The FAA shows that Maizar owned Marisa and VFA never contended otherwise when the cat was adopted by a third party.  VFA now contends that the Shelter had a duty to scan Marisa’s microchip and notify VFA.  But there is no requirement of scanning and notice when an owner relinquishes a cat under section 31754.  VFA has no viable theory of a mandatory duty and therefore lacks standing.

            Nor can VFA rely on public interest standing.  When “the duty is sharp and the public need weighty, the courts will grant mandamus at the behest of an applicant who shows no greater personal interest than that of a citizen who wants the law enforced.”  McDonald v. Stockton Met. Transit Dist., (1973) 36 Cal.App.3d 436, 440 (citing Board of Social Welfare v. County of Los Angeles, (1945) 27 Cal.2d 98, 100-101).  “[W]here the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the [petitioner] need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced.”  Save the Plastic Bag Coalition v. City of Manhattan Beach, (2011) 52 Cal.4th 155, 166 (citations and punctuation omitted).  Again, VFA cannot allege breach of a mandatory duty, let alone a sharp duty, and cannot rely on public interest standing.

            c. Adequate Remedy at Law

            The FAA provides that, if it is impossible to reclaim of a cat after a VFA representative discovers a breach of the agreement, Maizar would be subject to a lawsuit.  FAA, p. 14.  Any material breach would also require Maizar to pay $5,000 in liquidated damages.  FAA, p. 15.  VFA has filed suit to that effect.  RJN Ex. 4, ¶¶ 6, 10.  Additionally, any person who provides false ownership information to a shelter to relinquish a cat, that person shall be liable for $1,000 to the cat’s true owner.  §31752.2(b).

Generally, mandamus will not lie if there is a plain, speedy, and adequate alternative remedy.  Pomona, supra, 58 Cal.App.4th at 584.  The City asserts that these monetary damages are adequate remedies at law and mandamus will not lie.  Dem. at 10-11.  VFA asserts that Marisa’s life is at stake and monetary damages are an inadequate remedy.  Opp. at 5.  The City replies that VFA fails to cite any authority for this assertion.  Animals are personal property under California law.   Scharer v. San Luis Rey Equine Hosp., Inc., (2012) 204 Cal. App. 4th 421, 427.  The remedy for a purported owner’s improper surrender of a cat is the $1000 liability set forth in section 31752.2(b).  This is an adequate remedy at law.

            The court does not agree.  If, arguendo, the City had a ministerial duty that it violated, as well as a duty to retrieve Marisa, then mandamus would be appropriate.  Money damages through either contract or statute in lieu of recovery of Marisa would not be an adequate remedy at law because she is unique property.

            3. Declaratory Relief

The City asserts that the FAP does not allege a controversy regarding VFA’s legal rights to ownership of Marisa (Dem. at 11-12), declaratory relief will not lie to remedy past acts (Dem. at 12-13), and declaratory relief should fail for the same reasons as mandamus (Dem. at 13).

The FAP seeks a declaration that the City has violated VFA’s rights under Policy 25 through its failure to declare VFA to be Marisa’s rightful owner and to obtain her return to VFA.  Pet. Prayer for Relief, ¶1. 

A party seeking declaratory relief must be an “interested person.”  CCP §1060.  An interested person for declaratory relief is the same as a beneficially interested person in mandamus cases.  Asimow, et al., Administrative Law (2018), Ch. 14, §14:6.  Since VFA does not have standing for mandamus, it also does not have standing for declaratory relief.

Additionally, declaratory relief is forward looking and may not be used to seek adjudication of past wrongs or historical rights.  Cardellini v. Casey, (1986) 181 Cal.App.3d 389, 396; Brownfield v. Daniel Freeman Marina Hospital, (1989) 208 Cal.App.3d 405, 414.  The FAP seeks only a declaration of historical failures.[6]

            E. Conclusion

            The City’s demurrer to the FAP is sustained.  Although VFA requests leave to amend, it cannot cure the defects in the FAP.  Leave to amend therefore is denied.  An OSC re: dismissal is set for October 3, 2023 at 1:30 p.m.