Judge: Joel R Wohlfeil, Case: 37-2023-00048258-CU-BT-CTL, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 21, 2024

03/22/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Business Tort Demurrer / Motion to Strike 37-2023-00048258-CU-BT-CTL ANIMAL PROTECTION AND RESCUE LEAGUE INC VS. PADRES LP [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 01/30/2024

1. The general Demurrer (ROA # 148) of Defendant / Respondent PADRES, L.P. ('Defendant') to causes of action 1, 2 and 4 in the Verified First Amended Complaint for Declaratory and Injunctive Relief and Petition for Writ of Mandate ('Verified FAC') filed by Plaintiffs / Petitioners ANIMAL PROTECTION AND RESCUE LEAGUE, INC. and SHOWING ANIMALS RESPECT AND KINDNESS ('Plaintiffs'), is SUSTAINED.

2. The general Demurrer (ROA # 158) of Defendants C5 RODEO MT, LLLP and C5 RODEO COMPANY, INC. to causes of action 1, 2 and 4 in the verified First Amended Complaint ('FAC'), is SUSTAINED.

Leave to file and serve a Second Amended Complaint within twenty (20) days of this hearing will be permitted to address the deficiencies within the first cause of action. However, the amended pleading cannot reallege the second and fourth cause of action as against the moving Defendants.

Both rulings are premised on the analysis set forth below.

C5 Rodeo's Request (ROA # 161) for judicial notice is GRANTED.

1st COA: Unfair Business Practices against all defendants The scope of the unfair competition law (Bus. & Prof. Code 17200) is broad. Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal. 4th 163, 180.

It does not proscribe specific practices, but rather defines 'unfair competition' to include 'any unlawful, unfair or fraudulent business act or practice.' Id. Its coverage is sweeping, embracing anything that can properly be called a business practice and that at the same time is forbidden by law. Id. By proscribing any unlawful business practice, section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable. Id. Paragraph 79 within the FAC alleges: 'The unlawful business practices of C5 Rodeo in illegally shocking horses as well as causing injuries to animals in violation of Penal Code §597 have caused SHARK to need to divert its limited organizational resources to expose such acts by hiring paid investigators to Calendar No.: Event ID:  TENTATIVE RULINGS

3081662  16 CASE NUMBER: CASE TITLE:  ANIMAL PROTECTION AND RESCUE LEAGUE INC VS. PADRES  37-2023-00048258-CU-BT-CTL document them, and to work to prevent C5 Rodeo from carrying out such illegal acts in the future.' Paragraph 79 sufficiently alleges an illegal business practice in violation of section 17200: causing injuries to animals in violation of section 597. As alleged throughout the FAC, the Padres organization is co-liable for this violation to the extent it hosts the C5 rodeo at its facility. Given this conclusion, it is not necessary to determine if the alleged zoning violations also constitute illegal business practices.

Private standing to assert a UCL claim is limited to any 'person who has suffered injury in fact and has lost money or property' as a result of unfair competition. Kwikset Corp. v. Superior Court (2011) 51 Cal. 4th 310, 320, 321 (quoting Bus. & Prof. Code 17204).

UCL standing can be based on an organization's diversion of resources in response to a threat to its mission. California Medical Assn. v. Aetna Health of California Inc. (2023) 14 Cal. 5th 1075, 1090 (citing Animal Legal Defense Fund v. LT Napa Partners LLC (2015) 234 Cal. App. 4th 1270).

'The Court of Appeal concluded the plaintiff's diversion of resources constituted economic injury as Kwikset had explained that UCL standing requirement: in response to the defendant's allegedly illegal sales, the organization had ' 'enter[ed] into a transaction, costing money or property, that would otherwise have been unnecessary.' ' (Animal Legal Defense, at p. 1280, quoting Kwikset, supra, 51 Cal. 4th at p. 323.)' Id. (footnote omitted). The proper focus is on whether the plaintiff undertook the expenditures in response to, and to counteract, the effects of the defendants' alleged misconduct rather than in anticipation of litigation. Animal Legal Defense Fund v. LT Napa Partners LLC, supra at 1283 – 1284 (animal rights organization used resources to investigate illegal foie gras sale and consumption).

'We hold that the UCL's standing requirements are satisfied when an organization, in furtherance of a bona fide, preexisting mission, incurs costs to respond to perceived unfair competition that threatens that mission, so long as those expenditures are independent of costs incurred in UCL litigation or preparations for such litigation.' California Medical Assn. v. Aetna Health of California Inc., supra at 1082.

In this case, the FAC sufficiently alleges plaintiffs' mission of promoting animal welfare and preventing animal cruelty. FAC at ¶¶ 27 - 40.

Paragraphs 79 - 82 allege the diversion and use of resources to expose and prevent the purported rodeo related animal abuse. Whether these costs incurred were entirely independent of this litigation is a question of fact that cannot be determined via a Demurrer.

On the other hand, paragraph 87 within this cause of action seeks an order enjoining and restraining Defendants' conduct. However, 'the express codified purpose of a prohibitory injunction is to prevent future harm to the applicant by ordering the defendant to refrain from doing a particular act.' Scripps Health v. Marin (1999) 72 Cal. App. 4th 324, 332 (internal citations omitted).

'... [I]njunctive relief lies only to prevent threatened injury and has no application to wrongs that have been completed .... It should neither serve as punishment for past acts, nor be exercised in the absence of any evidence establishing the reasonable probability the acts will be repeated in the future.' Id. (internal citations omitted).

Given this authority, injunctive relief is an improper remedy as currently alleged. The FAC does not contain any fact allegations regarding any future rodeo, or the probability that any future rodeo will take place. Instead, the FAC is focused on the January 2024 rodeo. As a result, a future rodeo is not probable, the controversy is not ripe and injunctive relief is not warranted. The Demurrer to this cause of action is sustained on this basis. Leave to amend will be permitted to allege facts setting forth likely future conduct supporting the claim for injunctive relief.

2nd COA: Declaratory Relief Calendar No.: Event ID:  TENTATIVE RULINGS

3081662  16 CASE NUMBER: CASE TITLE:  ANIMAL PROTECTION AND RESCUE LEAGUE INC VS. PADRES  37-2023-00048258-CU-BT-CTL This cause of action seeks a declaration that various San Diego Municipal Code sections will be violated through the use of farm animals, cattle and horses in a rodeo setting. The C5 Defendants argue Plaintiffs do not have standing to pursue this cause of action. This argument has merit, as discussed below.

'Any person interested under a written instrument, ... or under a contract, or who desires a declaration of his or her rights or duties with respect to another, ... may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.' Code Civ. Proc.

1060.

As a general principle, standing to invoke the judicial process requires an actual justiciable controversy as to which the complainant has a real interest in the ultimate adjudication because he or she has either suffered or is about to suffer an injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented to the adjudicator. People ex rel. Becerra v. Superior Court (2018) 29 Cal. App. 5th 486, 495, 496.

To have standing, a party must be beneficially interested in the controversy; that is, he or she must have some special interest to be served or some particular right to be preserved and protected over and above the interest held in common with the public at large. Id. at 496.

Specifically, where declaratory relief is sought, there must be an 'actual controversy relating to the legal rights and duties of the respective parties.' Id. (quoting Code Civ. Proc. 1060).

The fact that an issue raised in an action for declaratory relief is of broad general interest is not enough for the courts to grant such relief in the absence of a true justiciable controversy. Id. 'Plaintiffs' allegation that they are taxpayers does nothing to establish their standing to seek the [declaratory] relief sought and their complaint fails to [set] forth any circumstances indicating that as citizens of the state they have any greater or different interest in the subject than any other member of the body politic.' Zetterberg v. State Dept. of Public Health (1974) 43 Cal. App. 3d 657, 662.

The purpose of a declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation. Meyer v. Sprint Spectrum L.P. (2009) 45 Cal. 4th 634, 647.

Another purpose is to liquidate doubts with respect to uncertainties or controversies which might otherwise result in subsequent litigation. Id. One test of the right to institute proceedings for declaratory judgment is the necessity of present adjudication as a guide for Plaintiff's future conduct in order to preserve his or her legal rights. Id. Declaratory relief has frequently been used as a means of settling controversies between parties to a contract regarding the nature of their contractual rights and obligations. Id. An action for a declaratory judgment must exhibit all the usual conditions of an ordinary action, except that accomplished physical injury need not necessarily be alleged. Conroy v. Civil Service Commission of City and County of San Francisco (1946) 75 Cal. App. 2d 450, 455.

It is sufficient if a dispute or controversy as to legal rights is shown, which, in the court's opinion, requires judicial determination. Id. Plaintiff must prove a tangible interest in obtaining a judgment, and the action must be adversary in character: there must be a controversy between Plaintiff and Defendant having an interest in opposing Calendar No.: Event ID:  TENTATIVE RULINGS

3081662  16 CASE NUMBER: CASE TITLE:  ANIMAL PROTECTION AND RESCUE LEAGUE INC VS. PADRES  37-2023-00048258-CU-BT-CTL the claim. Id. Unless the parties have such conflicting interests, the case is likely to be characterized as one for an advisory opinion, and the controversy as academic, a mere difference of opinion or disagreement not involving their legal relations, and hence not justiciable. Id. at 455, 456.

The controversy must be definite and concrete, touching the legal relations of the parties having adverse legal interests. Id. at 456.

The standing requirement for a declaratory relief action is distinct from standing for prosecution of a UCL action. They are governed by different statutes and case law. For purposes of a declaratory relief cause of action, it is critical that Plaintiffs do not have an interest in the ultimate adjudication of the controversy at issue (i.e., zoning ordinances regulating farm animals within City limits) that is any different or more acute than any other concerned citizens of the City. Plaintiffs do not allege impending injury of sufficient magnitude. Plaintiffs are not specially interested in the controversy, and have no particular right that must be preserved and protected over and above the interest held in common with other citizens of the City.

There is no actual controversy specifically relating to the legal rights and duties of Plaintiffs and Defendants in this action. Although the issues raised in this action are of broad general interest, this is not enough for the Court to grant relief in the absence of a justiciable controversy between the parties.

Plaintiffs do not seek a declaration of rights and duties as a guide for Plaintiffs' future conduct, and to preserve Plaintiffs' legal rights. Instead, Plaintiffs seek a declaration of rights and duties to control the future conduct of Defendants. Plaintiffs have no tangible interest in the declaratory judgment they seek.

There is no controversy between Plaintiffs and Defendants in this action: any adjudication of the declaratory relief claim will not change the legal relationship between these parties.

Even assuming Plaintiffs could establish standing, the Padres argue there no longer a justiciable controversy and this cause of action is moot because the subject rodeo has already taken place. This argument also has merit.

The 'actual controversy' language in Code of Civil Procedure section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties. Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal. App. 4th 877, 885.

For a probable future controversy to constitute an 'actual controversy,' however, the probable future controversy must be ripe. Id. A controversy is 'ripe' when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made. Id. As discussed above, the FAC does not contain any fact allegations regarding any future rodeo, or the probability that any future rodeo will take place. Instead, the FAC is focused on the January 2024 rodeo.

As a result, a future rodeo is not probable and the controversy is not ripe.

4th COA: Taxpayer Waste This cause of action is premised on Code of Civil Procedure section 526a. Paragraph 106 within this cause of action seeks 'an injunction to prevent the use of such City taxpayer funds supporting or promoting the illegal rodeo, as well as disgorgement of any funds so spent.' Paragraph 111 seeks 'disgorgement of all taxpayer money illegally spent in connection with the illegal rodeo. This includes disgorgement of any Tourism Marketing District Assessment Funds given to Defendants, as well as repaying Real Party in Interest San Diego Humane Society for any of its Animal Services budget spent preparing for and watching this illegal rodeo take place.' Calendar No.: Event ID:  TENTATIVE RULINGS

3081662  16 CASE NUMBER: CASE TITLE:  ANIMAL PROTECTION AND RESCUE LEAGUE INC VS. PADRES  37-2023-00048258-CU-BT-CTL Section 526a(a) states, in part: 'An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a local agency, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax that funds the defendant local agency ....' 'Local agency' is defined as 'a city, town, county, or city and county, or a district, public authority, or any other political subdivision in the state.' Id. at (d)(1).

Defendants Padres and the C5 entities are not governmental agencies. No facts are alleged demonstrating that these entities are an officer, agent or otherwise acting on behalf of the City. Plaintiffs do not cite authority supporting a section 526a claim for disgorgement against a non-governmental agency that receives money from a government entity. The Demurrer to this cause of action are sustained on this basis.

Plaintiffs' opposition cites Gilbane Building Co. v. Superior Court (2014) 223 Cal. App. 4th 1527.

However, this opinion addressed a claim against a private entity pursuant to Government Code section 1090 (conflicts of interest), and not a section 526a claim. See Id. at 1532.

The opposition also cited Hazle v. Crofoot (9th Cir. 2013) 727 F. 3d 983. But this opinion involved a section 526a claim against the state prison system, and did not address the ability to sue a private entity under section 526a. Id. at 998.

In Hazle, Plaintiff also sued the private entity (Westcare) that contracted with the prison system to administer its substance abuse program. However, it is not clear from the opinion whether the Westcare claim was premised on section 526a. It appears Westcare was the prison system's agent acting on its behalf for substance abuse treatment. Thus, this opinion is also not helpful or on point.

_____ 3. The Motion (ROA # 153) of Defendant / Respondent PADRES, L.P. ('Defendant') for an order to strike portions of Plaintiffs' Verified FAC, is GRANTED IN PART and DENIED IN PART.

The Court strikes paragraph 35 (page 7, lines 6 - 9), and paragraph 10 within the prayer for relief (page 21, line 13). This Motion is denied with respect to the other challenged allegations.

4. The Motion (ROA # 164) of Defendants C5 RODEO MT, LLLP and C5 RODEO COMPANY, INC. to strike the demand for attorney fees in the verified First Amended Complaint ('FAC'), is GRANTED.

Leave to file and serve a Second Amended Complaint within twenty (20) days of this hearing will be permitted to re-allege the claim for attorney fees, but with supporting allegations.

Paragraph 35 contains improper and irrelevant fact allegations. Code Civ. Proc. 436(a). The prayer for attorney fees must be supported by a minimum of fact allegations supporting the elements of this demand. See Code Civ. Proc. 1021.5.

The remaining disputed fact allegations are not completely improper because they are potentially relevant with respect to Plaintiffs' standing to recover restitution based on a bona fide, preexisting mission. See California Medical Assn. v. Aetna Health of California Inc. (2023) 14 Cal. 5th 1075, 1082.

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