Judge: Jon R. Takasugi, Case: 19STCV1714420STC, Date: 2022-08-03 Tentative Ruling

Case Number: 19STCV1714420STC    Hearing Date: August 3, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Respondents’ demurrer is sustained, without leave to amend.

            On 8/20/2020, Petitioner Ady Gil World Conservation (Petitioner) filed a petition against the City of Los Angeles, Eric Garcetti, Los Angeles Animal Services, and Brenda Barnette. On 2/8/2022, Plaintiff filed a first amended petition (FAP) against Defendants seeking: (1) a writ of mandate; (2) injunctive relief; and (3) declaratory relief. 

            Now, Respondents City of Los Angeles, Eric Garcetti, and Dana Brown (collectively, Respondents) demur to Petitioner’s petition.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿ (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿ (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal.App.4th at p. 747.) 

Factual Background

            This dispute concerns the closure of the West Valley and North Central Animal Service Center in response to the COVID-19 pandemic. Petitioner is a private shelter that alleges it has been forced by the closure of municipal shelters to “deal[] with significantly more stray dogs and cats to which it is accustomed.” (¶ 13.) Petition contends that there is a ministerial duty to immediately reopen the municipal shelters.

Discussion

            As a preliminary matter, the Court agrees with Respondents that there is no longer a present case in controversy here. Petitioners sought an order from this Court compelling Respondents to reopen two of its six animal shelters. In April 2021, one year later, Respondents reopened the two closed shelters (as acknowledged by the Petitioner in the FAP), and today all six animal shelters are open to the public. (FAP ¶ 11.) Accordingly, the relief sought can no longer be granted by the Court.

            However, given that Petitioner’s FAP appears to be an attempt to maintain this action in spite of the shelter openings, the Court addresses the additional arguments raised by Respondents.  

I.                   Writ of Mandate

Respondents argue that there is no ministerial duty to re-open shelters to the public in the same manner and capacity as they were previously at pre-COVID, and operational decisions are discretionary acts and thus cannot be compelled by mandate.

If a writ is sought to compel the performance of an act that the law specially enjoins, the petitioner must establish a clear, present, and usually ministerial duty on the part of the respondent. (CCP § 1085.) A “[m]andate will not issue to compel action unless it is shown the duty to do the thing asked for is plain and unmixed with discretionary power or the exercise of judgment.” (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 596, original emphasis.)

            Here, Petitioner alleges that Respondents have a ministerial duty to reopen the animal shelters to their pre-COVID-19 manner and capacity based on the following Los Angeles Municipal Code sections:

·        LAMC section 53.09(a)

·        LAMC section 53.09(b)

·        LAMC section 53.04

·        LAMC section 53.05

Petitioner alleges that “[t]aken in totality, the above-cited sections obligate and mandate the City of Los Angeles and Mayor Garcetti to open the West Valley and North Central Animal Service Centers for purpose of accepting stray animals and for LAAS and Barnette to accept and impound stray animals now open (and to be reopened pursuant to request made in this Petition). Petitioner is informed and believes and based thereon alleges that persons have physically tried to bring in stray animals (including cats and dogs) to LAAS Centers but were denied and turned away.” (FAP, ¶ 10(c).)

However, as a preliminary matter, Petitioner’s cited-to sections do not unequivocally establish a ministerial duty to accept stray animals at the West Valley and North Central Animal Service Centers. For example, LAMC section 5309.(b) requires that any person taking up a stray animal must surrender the animal upon demand of the general manager of the shelter. Similarly, LAMC section 53.05 only obligates members of the Police Department to deliver animals to the municipal pound “during the hours when the Municipal Pound is open.”  Accordingly, these provisions, which place limits on the circumstances in which surrenders of animals must be made, suggest that Petitioner’s cited-to provisions did not establish a ministerial duty to immediately re-open the Shelters, nor do they dictate the capacity in which the shelters must be reopened. This is especially true in light of LAMC section 53.01 which provides that, “[t]he public pound of this City, including district animal shelters, shall be kept open to the public for the transaction of business during such hours and on such days as shall be established by the General Manager.”

            Second, the decision to reopen the shelters and to reopen with the COVID-19 precautionary measures of appointments for certain functions was a legislative act of the City Council. (RJN, Exhibits 2 (1)(b).) The LAMC expressly provides Respondent Brown the discretion to establish the hours and days that each of the shelters that constitute the public pound will be open, and thus the decision to re-open with modifications was clearly a discretionary decision.  Mandate will not lie to “compel the exercise of that discretion in a particular manner or to reach a particular result.” (Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1555 quoting, Building Industry Assn. v. Marin Mun. Water Dist. (1991) 235 Cal.App.3d 1641, 1646.)

             Based on the foregoing, Respondents’ demurrer to Petitioner’s mandamus is sustained, without leave to amend. The decision not to grant leave to amend is based on the fact that the LAMC sections presented by Petitioner do not establish a ministerial duty to re-open the shelters (much less in a particular manner and capacity), and LAMC section 53.01 suggests that control over the operating hours of shelters is vested solely in the discretion of the general manager. Moreover, the decisions to close the shelters and re-open them were discretionary decisions, and a writ would not only set aside a discretionary decision but would compel the City Council to perform specific legislative acts. Given that writs of mandamus may not be employed to achieve this result, there is no reason to believe that the opportunity to amend could lead to different ruling.

II.               Injunctive Relief

Here, Petitioner’s claim is based on an alleged violation of LAMC section 53.09.

For reasons set forth above, Petitioner has not alleged facts which could show a violation of LAMC section 53.09. Thus, Petitioner has not alleged sufficient facts which could show it is entitled to injunctive relief.

As set forth above, there is no reason to believe that additional facts could amend the deficiencies identified here. In order for Petitioner to prevail, it needs to show that there is a ministerial duty to re-open the shelters in the capacity alleged. LAMC section 53.01 unequivocally states that, “[t]he public pound of this City, including district animal shelters, shall be kept open to the public for the transaction of business during such hours and on such days as shall be established by the General Manager.”

Based on the foregoing, Respondents’ demurrer to Petitioner’s first cause of action for injunctive relief is sustained, without leave to amend.

III.            Declaratory Relief

Here, Petitioner seeks a judicial determination as to whether or not Respondents are in violation of LAMC section 53.09. Given that this same determination must necessarily be made by Petitioner’s writ of mandamus and injunctive relief cause of action, this cause of action is duplicative.

Based on the foregoing, Respondents’ demurrer to the second cause of action for declaratory relief is sustained, without leave to amend.  

It is so ordered.

Dated:  August    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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