Judge Mitchell L. Beckloff, Case Number: 23STCP02369, Date: 2024-02-21 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP02369, Date: 2024-02-21 Tentative Ruling

Respondents, Terence Newman and Priscillia Hernandez, generally demur to the first amended verified petition for writ of mandate and complaint for declaratory and injunctive relief (FAP) filed by Petitioner, Niloufar Ghafouri.

Respondents’ Request for Judicial Notice (RJN) of Exhibits A through C is granted. Petitioner’s objections are overruled.

The court notes Petitioner submitted Exhibit B and part of Exhibit C with her August 17, 2023 ex parte application thereby admitting authenticity of those records. (Evid. Code, § 1414.) Exhibit A also appears to be an official state record issued by the Florida Department of Agriculture and Consumer Services and therefore subject to judicial notice. (Evid. Code, § 452, subd. (c).) While the court judicially notices the existence of these official records, the court does not judicially notice the truth of any disputed hearsay or factual statements made therein. (See Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374. [“The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents . . . .”]; Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879. [“A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.”])

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. (Code Civil Proc., § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.)

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) “[T]he complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) The allegations in the petition must be liberally construed in favor of a petitioner on demurrer. (See Mobil Oil Corp. v Exxon Corp. (1986) 177 Cal.App.3d 942, 947.)

A demurrer may be sustained without leave to amend when there is no reasonable possibility the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at 318.) Indeed, where the facts are not in dispute and the nature of the plaintiff's claim is clear, but no liability exists under substantive law and no amendment would change the result, sustaining a demurrer without leave to amend is proper. (City of Ceres v. City of Modesto (1969) 274 Cal. App. 2d 545, 554.) The burden is on the plaintiff to show how the complaint might be amended to cure the defect. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.)

“On or about March 11, 2023, a male chocolate labradoodle dog was found wandering the streets on Valley Circle and El Cannon in the rain, in the city of Los Angeles without tags or a collar.” (FAP ¶ 7.) “Although the dog had a microchip, no ownership information was found when the chip was accessed.” (FAP ¶ 9.)

“The next day, March 12, 2023, Petitioner was contacted by a mutual friend, Nancy, and was informed that Shirin had located a lost dog, but was unable to keep him at her residence.” (FAP ¶ 10.) “Petitioner made multiple attempts to locate the dog’s initial owner, including posting in NextDoor, Facebook, SFV Lost and Found, West SFV Lost and Found, the local animal shelter, and posting paper fliers at Woodland Hills Park, PetCo, Bristol Farms, and Pet Express.” (FAP

¶ 14.) “Accordingly, hearing no response for a number of weeks, Petitioner adopted the dog, naming him Shance. She brought him to a veterinarian for multiple checkups and vaccines, legally registered Shance with the County of Los Angeles Department of Animal Care and Control, and added her identifying information to the microchip.” (FAP ¶ 15.)

“On or about April 4, 2023, Petitioner received a phone call from an individual that Petitioner now believes was Respondent Hernandez. Hernandez did not identify herself, but claimed to be the previous owner of Shance. Petitioner requested any information or documentation whatsoever evidencing Hernandez’ ownership of Shance, such as a license, microchip information, or veterinarian or medical information (as so instructed to do by the shelter’s employee). Hernandez refused to provide any information or documentation.” (FAP ¶ 16.)

“On or about April 11, 2023, Petitioner was notified by LAPD that Shance had been reported stolen by a third party. Petitioner replied that she was Shance’s rightful owner, having properly registered Shance with all appropriate government agencies, and had added her information to his microchip.” (FAP ¶ 18.) “On or about June 14, 2023, the LAPD served a search warrant on Petitioner’s residence, seizing Shance. The search warrant indicated that Shance was ordered to be released to ‘the care of an animal control officer for the City of Los Angeles Animal Services West Valley Shelter for the final disposition of the dog.’ ” (FAP ¶ 19.)

“On or about June 16, 2023, Petitioner emailed the West Valley Shelter branch of the Los Angeles City Animal Services (‘Animal Services’), requesting return of Shance . . . . Animal Services informed Petitioner that ‘the detective on this case says the animal is now with the rightful owner.’ Without any court involvement, LAPD had taken it upon themselves to make a legal determination of which party was the rightful owner of Shance, and thereafter, on information and belief, summarily return Shance to [Respondents] Hernandez and Newman (hereinafter collectively ‘Defendants’), without any notification to Petitioner.” (FAP ¶ 21.)

“On or about August 2, 2023, Petitioner, through counsel, received a communication from counsel for Defendants, informing Petitioner that Defendants were jointly claiming ownership of Shance.” (FAP ¶ 24.)

All causes of action in the FAP are pleaded against the City of Los Angeles, as well as Respondents Newman and Hernandez. Petitioner contends the return of the dog to Defendants by the City’s police department violated Penal Code section 1407 and Evidence Code section 662 because “Petitioner is the owner of the legal title to Shance, and therefore presumed to be the owner of the full beneficial title” (FAP ¶ 29), and “there has been no allegation by the People that Shance was stolen or embezzled by Petitioner.” (FAP ¶¶ 30, 26-33.)

Petitioner seeks an ordinary writ of mandate through the petition directing “return of Shance to Petitioner” and a judicial declaration “of Petitioner’s rights to ownership of Shance.” (FAP Prayer ¶¶ 1-2.)

Petitioner’s first cause of action is for ordinary mandate pursuant to Code of Civil Procedure section 1085. There are two essential requirements for the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where . . . the claim is that an agency has failed to act as required by law.” (Id. at 705.)

Respondents first assert they are not employed by the City and have no ministerial duties enforceable by mandate. The court agrees.

“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.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.) “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 . . . .” (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916 [emphasis added].) Petitioner has not alleged Respondents are public officers with legal duties enforceable by mandate.

Respondents also contend Petitioner’s claims are barred by Los Angeles Municipal Code (LAMC) section 53.09. Based on the petition allegations and judicially noticed records, the court agrees.

(a) Any person finding at any time any stray domestic animal or any such animal found running at large contrary to the provisions of this article may take up such animal; provided, however, that persons taking up such animal shall, within four hours thereafter, or within two hours thereafter if such animal is attached or hitched to a vehicle, give notice to the Department [of Animal Services] or to some police officer, of the fact that he has such animal in his possession, and shall furnish thereto a description of such animal and a statement of the place where he found and where he has confined the animal. . . .

(b) Any person taking up any such stray animal found running at large or contrary to the provisions of this article shall surrender such animal to the General Manager of the Department [of Animal Services] or his duly authorized representative upon demand thereof.

(c) No person taking up any animal shall fail or neglect to give notice thereof as required by this section or fail or refuse to surrender such animal to the General Manager or his duly authorized representative upon demand therefor.

(e) Within the first 24 hours of finding the animal, the person finding the stray dog or cat shall comply with the following:

1. Transport the animal to one of the City animal shelters for a microchip scan and veterinary care, or bring the animal to a licensed California veterinarian at the finder's own expense for a microchip scan and veterinary care.

2. Provide the Department with a record of the microchip scan and the veterinarian's diagnosis, treatment, and prognosis.

3. Make and distribute posters with the animal's photo in a two-block radius of the location where the animal was found and include the finder's contact information. . . .

(f) In addition to the requirements in Subsections (d) and (e) above, the person finding the stray dog or cat shall comply with the following:

4. After 30 days, bring the dog or cat into the nearest City animal shelter and either surrender the animal to the Department or complete the process to adopt the animal, including having the animal vaccinated and sterilized. If the found animal is a dog, adoption also will require the adopter to license the dog. The Department shall waive the adoption fee for any animal adopted pursuant to this section.[1]

Thus, LAMC section 53.09 effectively provides for a 30-day period during which the owner of the lost dog may identify themselves and the Department may demand surrender of the animal. The provision also specifies the adoption of a lost dog cannot be completed until after 30 days and after the lost dog is brought to the nearest City animal shelter.

Petitioner admits in the FAP Respondent Fernandez identified herself as the owner of the dog on April 4, 2023, within 30 days of the dog being found on or about March 11, 2023. (FAP ¶¶ 7, 16.) Petitioner does not allege she complied with LAMC section 53.09, subdivision (f).[2]

Judicially noticeable records, including an “Official Certificate of Veterinary Inspection for Intrastate Sale of Dog or Cat" issued by the Florida Department of Agriculture and Consumer Services Division and also a police department search warrant for Petitioner’s residence, indicate Respondents are the registered owners of the dog. (RJN Exhs. A, B, C.) Petitioner has not alleged sufficient facts in the FAP to create a factual dispute concerning ownership of the dog. Accordingly, Petitioner has not alleged any basis to support her assertion the City or Respondents have a legal duty to return the dog to Petitioner.[3]

In her brief opposition to the demurrer, Petitioner does not materially respond to Respondents’ contentions. (Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].) Petitioner states: “There are some underlying circumstances that are very odd in this case. Plaintiff intends to get to the bottom of it in discovery.” (Opposition 2:26.) Thus, Petitioner appears to concede she has not presently stated a cause of action for ordinary mandate.

The second cause of action for declaratory relief is derivative of the first cause of action. For the reasons stated above, the demurrer to the second cause of action is SUSTAINED.

“Injunctive relief is a remedy, not a cause of action. A cause of action must exist before a court may grant a request for injunctive relief.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 734.)

Accordingly, the demurrer to the third and fourth causes of action is SUSTAINED.

As noted, a demurrer may be sustained without leave to amend when there is no reasonable possibility a pleading defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at 318.) This court acknowledges a petitioner is generally permitted at least one time to amend a complaint after a demurrer is sustained. (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303.) In assessing whether leave to amend should be granted, the burden is on the complainant to show the court a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348-349.)

This is the court’s first ruling on demurrer, which generally weighs in favor of granting leave to amend. While Petitioner requests leave to amend, she has not explained how she could amend to correct the defects identified above—that is, there is no basis for the court to find there is a reasonable likelihood Petitioner could amend the FAP to state a cause of action against Respondents. That Petitioner would like to conduct discovery does not inform on whether Petitioner can state a cause of action against Respondents.

The demurrer to the first, second, third, and fourth causes of action is SUSTAINED.

Petitioner should be prepared to discuss how she might amend her allegations to state a cause of action against Respondents. Given the apparent lack of any legal duty on Respondents, it appears a claim for ordinary mandate will not lie.

[1] On its own motion, the court judicially notices LAMC section 53.09.

[2] Petitioner does argue: “Since when does the animal shelter tell a person who has paid for, chipped, and adopted a dog to give it back?” (Opposition 2:28.) To be sure, Petitioner does not allege she “adopted” the dog—she alleges she is the rightful owner “having properly registered [the dog] with all appropriate government agencies, and added her information to his microchip.” (FAP ¶ 18.) Nothing suggests Petitioner adopted the dog through any of the City’s animal shelters.

[3] Petitioner also does not allege the City currently has possession of the dog. Rather, Petitioner indicates Respondents have possession of the dog. (FAP ¶¶ 21, 31.) If the City does not have possession of the dog as alleged, the City cannot be compelled by mandate to “return” the dog.