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Sharon Logan Lawsuit against OCAC (amended)

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Sharon Logan Lawsuit against OCAC (amended)

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Sharon Logan Lawsuit against OCAC (amended)

  1. 1. Howard D. Finkelstein (Bar #102964) FINKELSTEIN & KRINSK LLP 501 West Broadway, Suite 1250 San Diego, CA 92101-3579 Tel: 619-238-1333 Fax: 619-238-5425 hdf@classactionlaw.com Attorney for Petitioners SHARON LOGAN and PAW PROTECTORS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUDICIAL DISTRICT CASE NO. 30-2014-00736691SHARON LOGAN, an individual; PAW PROTECTORS, INC., a Not For Profit corporation, Plaintiff and Petitioners, VS. ORANGE COUNTY ANIMAL CARE; and DOES 1 through 10, inclusive, Defendants and Respondents. VERIFIED SECOND AMENDED COMPLAINT (C.C.P. § 526a; 42 U.S.C. § 1983) Plaintiffs, Sharon Logan and Paw Protectors, Inc., bring this Verified Second Amended Complaint for a writ of mandate pursuant to Code of Civil Procedure §1085, et seq., and for injunctive relief pursuant to Code of Civil Procedure §526a, and 42 U.S.C. §1983, alleging as follows against Defendants and Respondents Orange County Animal Care and Does 1 through 10. — 1 — 602515311v1 VERIFIED SECOND AMENDED COMPLAINT
  2. 2. INTRODUCTION 1. Defendants have engaged and continue to engage in an ongoing pattern and practice of animal abuse and failure to comply with California state law and Orange County ordinances, as well as its own Policies and Procedures in operating the Orange County Animal Care shelter ("OCAC"). Defendants' consistent violations of law, as set forth in this Petition and Complaint, have resulted in the senseless and wrongful killing of impounded animals, in direct contravention of the State of California's policy, codified in both state and local law and in OCAC' s Policies and Procedures, to promote adoption over death for animals in their custody. Moreover, when Plaintiffs have attempted to speak out against Defendants' unlawful conduct and practices, Defendants have taken retaliatory actions against Plaintiffs, thereby depriving Plaintiffs of their constitutional rights. By this Petition and Complaint, Plaintiffs ask this Court to order Defendants to cease and desist from further violations of law, and to promptly begin performing their legally-mandated duties to the animals entrusted to their care and to the public at large. THE PARTIES 2. Plaintiff Logan is, and at all relevant times, was a citizen, taxpayer and resident of Orange County, California.' Plaintiff Logan regularly volunteers for Plaintiff Paw Protectors, Inc. and other nonprofit animal rescue groups that redeem impounded animals from Orange County shelters, provide foster care and medical and behavioral rehabilitation to such animals, as needed, 1 Plaintiff Paw Protectors, Inc. is also based in Orange County, and as a result both Plaintiffs routinely pay taxes associated with their residence therein. In addition, while residing in Orange County in December of 2013, Plaintiff Logan purchased a used vehicle from a private owner and paid a use tax upon the transfer of title for the vehicle. The use tax is collected by the Department of Motor Vehicles (on behalf of the State Board of Equalization) upon transfer of vehicle title. Cal. Veh. Code § 4750.5. The tax is assessed upon the new owner based upon the sales price of the vehicle and the owner's county/city of residence as a portion of such tax is transferred back to the applicable city and county. See DMV website @ haps://www.dmv.ca.gov/portal/dmv/detail/pubs/brochures/fast facts/ffvr34. The vehicle was used by Plaintiff Logan both for personal purposes and on behalf of Paw Protectors, Inc. in the conduct of its charitable mission. —2— 602515311v1 VERIFIED SECOND AMENDED COMPLAINT
  3. 3. and then place the animals into suitable adoptive homes, with the mission to reduce the killing of homeless animals by the County shelters pursuant to California State and local legal mandates. In connection with her volunteer work, Plaintiff Logan regularly visits the County shelters, particularly the OCAC shelter located in the City of Orange, to spend time with and evaluate the condition of the animals impounded there. 3. Plaintiff Logan is the founder and Executive Director of Plaintiff Paw Protectors Inc, which engages in the business of providing various services relating to the protection of animals. Plaintiff Paw Protectors, Inc., at all times relevant hereto was a nonprofit charitable corporation, qualified under Internal Revenue Code §501(c)(3), organized and existing under the laws of the State of California. Founded on March 9, 2011, Paw Protectors, Inc. is dedicated to saving the lives of lost, abandoned, abused, and neglected animals in the custody of local animal shelters. Among other things, Paw Protectors, Inc. presents seminars and provides consulting services on reforming traditional animal shelters and implementing laws designed to reduce and ultimately eliminate the killing of healthy or treatable impounded animals. As a result of Defendants' violations of law as set forth herein, Paw Protectors, Inc. has been frustrated in its efforts to save animals from death at the OCAC shelter, and Paw Protectors, Inc. has been forced to divert resources from its regular programs to, among other things, consulting on, monitoring, and investigating conditions at the OCAC shelter. 4. Defendant OCAC is a political subdivision of the State of California duly organized and existing under the laws of the State of California with animal shelter facilities located at 561 The City Drive South, Orange, California 92868. 5. Plaintiffs are unaware of the true names and capacities, whether individual, corporate, associate, or otherwise, of the Defendants sued herein as Does 1 through 10, inclusive, and therefore sue these Defendants by such fictitious names pursuant to California Code of Civil Procedure §474. Plaintiffs are informed and believe, and thereon allege, that each of the Defendants designated as a Doe is responsible in some manner for the incidents herein referred to, and thereby proximately caused the injuries and damages to Plaintiffs as herein alleged. Plaintiffs —3— 602515311x1 VERIFIED SECOND AMENDED COMPLAINT
  4. 4. will seek leave of this Court to further amend this Complaint to set forth the Defendants' true names and capacities when the same have been ascertained. 6. Plaintiffs are informed and believe, and based on such information and belief allege, that at all times herein mentioned, each of said actually named and fictitiously named Defendants was the principal, agent, or employee of the other actually named or fictitiously named Defendants, and acting either as a principal, or within the course and scope of such employment or agency, took some part in the acts or omissions hereinafter set forth, by reason of which each of said fictitiously named and actually named Defendants is liable to Plaintiffs for the relief prayed for herein. 7. During all events herein complained of, Defendants, and each of them, did the acts and things complained of and alleged pursuant to and in furtherance of a conspiracy to damage Plaintiffs and other members of the Orange County community. Said conspiracy by each Defendant was either accomplished by the knowing cooperation, mutual aid, and encouragement, and knowledge of Defendants, and each of them, with the adoption and ratification of the acts of the Defendants, and each of them. FACTS COMMON TO ALL CAUSES OF ACTION 8. In 1998, the California Legislature enacted Senate Bill 1785 ("SB 1785," also referred to as the "Hayden Law"). The purpose of SB 1785 was to shift California's animal shelter system in the direction of saving, rather than taking, the lives of animals delivered to the care of the animal shelters located throughout the State. SB 1785 addressed this goal by, among other things, making animal shelters throughout the State, and the animals held there, more accessible to the public and to animal rescue organizations, and making the animal shelters more accountable for the treatment of the animals entrusted to their care. 9. SB 1785 is currently codified in various places throughout the Civil Code, the Food and Agricultural Code, and the Penal Code. In all three Codes, the Legislature specifically codified the State's policy favoring life by rehoming, over death, for shelter animals: —4— 602515311v1 VERIFIED SECOND AMENDED COMPLAINT
  5. 5. • "It is the policy of the state that no adoptable animal should be euthanized if it can be adopted into a suitable home." Cal. Civ. Code § 1834.4(a); Cal. Food & Ag. Code § 17005(a); Cal. Penal Code § 599d(a) • "It is the policy of the state that no treatable animal should be euthanized." Cal. Civ. Code § 1834.4(b); Cal. Food & Ag. Code § 17005(b); Cal. Penal Code § 599d(b). 10. The Legislature further mandated that: "A depositary of living animals shall provide the animals with necessary and prompt veterinary care, nutrition, and shelter, and treat them kindly. Any depositary that fails to perform these duties may be liable for civil damages as provided by law."2 Cal. Civ. Code § 1834. 11. To accomplish the State policy of saving rather than killing impounded animals and requiring humane treatment, existing State law now imposes upon all animal shelters located within the State a series of life-affirming duties, including, among other things, and without limitation: a. To hold and make impounded animals available for adoption or owner redemption for a statutory holding period of at least four to six business days3, depending on shelter hours of operation, and not including the day of impoundment, unless the animals are irremediably suffering from a serious illness or severe injury, or are unweaned newborns who have been taken in 2 In fiscal year 2009-2010 California suspended from funding the requirement of the Hayden Law within Section 1834 for "necessary and prompt veterinary care" but the remaining portions of Section 1834 remain unaffected. See, Current Enforceability of the Hayden Law of 1998, Taimie L. Bryant, attached as Exhibit A. In addition, any pre-existing requirements for veterinary care, such as those found in Penal Code section 597f, are not impacted by any funding suspension. 3 Similarly, this provision of the Hayden Law was not funded beginning in 2009 due to the state budget crisis. See, Current Enforceability of the Hayden Law of 1998, Taimie L. Bryant. However, the prior law required that all impounded animals be held for a minimum of 72 hours (Food & Ag. Code, §31754), which would apply even if this provision of the Hayden Law is currently suspended. —5— 602515311v1 VERIFIED SECOND AMENDED COMPLAINT
  6. 6. without their mother, or, in the case of owner- relinquished dogs only, if the dog has a history of vicious or dangerous behavior documented by the by the agency charged with enforcing state and local animal laws, in order to allow owners or other members of the public time to reclaim or adopt the animals. See Cal. Food & Ag. Code § 31108(a), § 31752(a), § 17006, § 31108.5(b); b. To work cooperatively with nonprofit animal rescue and/or adoption organizations to promote adoption and reduce the rate of shelter killing, including but not only by releasing any animals scheduled to be put to death to such organizations when the organizations request to redeem those animals, except in the limited circumstances when (i) the animals are irremediably suffering from a serious illness or severe injury, or (ii) the animals are dogs that have been adjudicated after a proper hearing pursuant to Food & Ag. Code, §§31601, et seq., to be so vicious that their release would create a significant threat to the public health, safety, or welfare. See Food & Ag. Code § 31108(b), § 31752(b); § 17006, § 31645(a); c. To treat impounded animals kindly and humanely, with proper care and attention, and provide them with adequate nutrition, shelter and water, and appropriate veterinary care, during the period of their impoundment. See Cal. Civ. Code § 1834, Cal. Pen. Code § 597(b), Cal. Pen. Code § 597.1(a), Cal. Pen. Code § 597f(b); and d. To keep specified and accurate records on all impounded animals and to perform reasonable identification and tracking measures to enable shelters, rescuers, to rescue animals within the shelter system. See Cal. Food & Ag. Code § 32003; Cal. Pen. Code § 597.1. 12. Consistent with this state-mandated policy, Orange County Board of Supervisors enacted Title 4, Division 1, Article 7, Animal Impoundment (Ord. No. 2836, §8, 5-6-75; Ord. No. 2908, §1, 5-4-76, which governs the impoundment of animals under certain circumstances and specifically provides: a. If a licensed animal is not redeemed within seven (7) days of impoundment, excluding County holidays and the day of impoundment (three (3) days for unlicensed animals), it shall be deemed abandoned and the Director may sell, release, or destroy said animal. (Ord. No. 2836, §8, 5-6-75; Ord. No. 2908, §1, 5-4-76) 13. Defendant OCAC' s own policy provides: a. When a lost pet is found OC Animal Care will check for a name tag, license tag and microchip. If the animal has any type of identification, the owner will be contacted ... Pets brought into the shelter, examined by a shelter vet, vaccinated and placed in one of our kennels. —6— 602515311v1 VERIFIED SECOND AMENDED COMPLAINT
  7. 7. b. Lost pets are provided daily care and their photo and information is placed into our Lost Pets page on our website. Lost pets are held for their owners to claim them for 4-10 days depending on what city they came in from and whether or not they had identification. 14. In violation of these and other mandatory duties imposed by law, Plaintiffs and other nonprofit rescues and other reputable sources personally witnessed and documented accounts of hundreds of animals since, at least 2011, euthanized with false and unsupported diagnosis of illness or aggressive behavior. 15. Defendants routinely euthanized healthy and adoptable animals without first holding the animals for the minimum period of time mandated by law on the basis of impermissible criteria including, but not limited to; (1) ill or injured, but treatable, or untreatable but not irremediably suffering; (2) geriatric; (3) aggressive but without a documented history of vicious or dangerous behavior; (4) animals that have technically been impounded for a sufficient period of time, but have been given no meaningful opportunity for reunification with their owners or adoption, because Defendants segregate such animals in sections of their shelters that are not readily accessible to the public; (5) failed to release animals scheduled to be put to death to nonprofit rescue and/or adoption organizations that are willing to take them when the animals are not irremediably suffering from any serious illness or severe injury, and are not dogs that have been adjudicated after a proper hearing to be so vicious that their release would create a significant threat to the public health, safety, or welfare. 16. Plaintiffs further allege, based upon personal and other observations, that the Defendants routinely violates its own policies by, inter alia, failing to contact purebred rescue organizations before killing purebred animals, to determine whether such specialized organizations are able to take those animals. Thus, purebred animals are habitually killed when rescue organizations that might have been willing and able to save them are unaware of their existence at the shelters. —7— 602515311v1 VERIFIED SECOND AMENDED COMPLAINT
  8. 8. 17. Plaintiffs further allege, based on personal and other observations that the Defendants routinely failed to treat animals kindly and humanely, including but not limited to, adequate water, shelter, and exercise. 18. Plaintiffs further allege, based on personal and other observations that the Defendants routinely failed to provide impounded animals with adequate and appropriate veterinary attention. Cal. Civ. Code §§1815, 1834; Cal. Pen. Code §§ 597f, 597.1. Injured and ill animals have been brought to the OCAC and have been left in cages without any veterinary care. In other instances, animals have been injured after impoundment but have not received adequate and appropriate veterinary care. 19. Plaintiffs further allege, based on personal and other observations that the Defendants routinely failed to keep required and accurate records on impounded animals and to perform reasonable identification and tracking measures to enable shelters, rescuers, rescue organizations, and owners to locate animals within the shelter system. 20. Plaintiffs further allege, based on personal and other observations that the Defendants further violated their statutory obligation to promote life-saving alternatives to killing impounded animals because, amongst other things, the OCAC is consistently understaffed and staffed with employees who cannot provide responses to basic and reasonable public requests for assistance, including but not limited to, assisting the public with adoptions or reunification of animals with owners. For example, telephones at the OCAC shelters are left unanswered, preventing people who are calling to inquire about lost animals or to adopt from receiving any information from shelter staff. As a result, many animals that may otherwise be reunited with their owners or adopted are unnecessarily euthanized during their statutory holding period. The lack of adequate shelter staff also contributes to significant difficulties when members of the public visit shelters to adopt animals. People are unnecessarily often kept waiting for several hours to visit animals they are interested in adopting. On various occasions, people interested in adopting particular animals have left the shelters in frustration without ever getting to see those animals resulting in the needless euthanasia of animals. —8— 602515311v1 VERIFIED SECOND AMENDED COMPLAINT
  9. 9. 21. These practices in violation of the state and local mandated policies and the OCAC's own policy, establish a pattern of acting with a bias in favor of euthanasia to, amongst other things, callously reduce the workload by eliminating their responsibility for properly caring for these animals. 22. Plaintiff Logan, individually, and on behalf of Plaintiff Paw Protectors, Inc. regularly complained of the above violations of both the law and OCAC stated policy. In apparent retaliation for such complaints, Defendants undertook various retaliatory actions against Plaintiffs, including but not limited to, indefinitely suspending Plaintiffs from rescuing any animals by refusing to release numerous requested animals to allow for their care instead of euthanizing said animals. For example, when Plaintiff Logan, as an individual and on behalf of Paw Protectors, Inc., complained to OCAC staff and the public about an apparent violation of law in connection with the immediate euthanasia of a seemingly healthy young dog, OCAC immediately terminated Paw Protector, Inc.'s Adoption Partner association with OCAC, effectively depriving it of the ability to be able to redeem animals prior to euthanasia, as required for 501(c)(3) organizations pursuant to California law. See Food & Ag. Code § 31108(b), § 31752(b); § 17006, § 31645(a). When Plaintiff Logan failed to refrain from public speech about OCAC's conduct thereafter, OCAC instituted additional retaliatory actions, including but not limited to refusing to allow Plaintiff Logan (as an individual or on behalf of Paw Protectors, Inc.) to adopt dogs and barring her from OCAC property. As a consequence of Defendants' retaliatory actions, Plaintiffs have been prevented from rescuing and finding homes for animals that the OCAC has euthanized in violation of the applicable law and its own stated policy. 23. In addition, Plaintiff Logan has been informed by members of other rescue organizations and other volunteers that they are now afraid to complain about OCAC's violations in fear that similar retaliatory actions will be taken against them and interfere with their own rescue and volunteer activities. Therefore, OCAC' s retaliatory actions have not only attempted to chill Plaintiffs' exercise of free speech, but in fact have been successful in restricting the speech of others who fear suffering from similar retaliation. —9— 602515311v1 VERIFIED SECOND AMENDED COMPLAINT
  10. 10. FIRST CAUSE OF ACTION Petition for Writ of Mandate (By Plaintiff Against All Defendants) 24. Plaintiffs reallege and incorporate by reference each and all of the allegations contained in the preceding paragraphs of this Petition and Complaint, as though fully set forth herein. 25. Defendants have a mandatory, nondiscretionary duty to comply with all the provisions of law set forth above, among others, regarding the proper care and treatment of impounded animals. 26. Defendants routinely violate the law by, among other things, ( i) failing to hold and make animals available for adoption or owner redemption for the full statutorily-required holding period; (ii) killing animals before expiration of the minimum statutory holding period on the basis of impermissible criteria and/or erroneous classifications; (iii) segregating animals in sections of the shelters that are not readily accessible to the public, so the animals have little to no chance of being found by their owners or adopted into new homes; (iv) failing to release animals scheduled to be put to death to nonprofit rescue and/or adoption organizations that request to redeem those animals when the animals are not immediately suffering from any serious illness or severe injury, and are not dogs that have been adjudicated after a proper hearing pursuant to Food & Ag. Code §§31601, et seq., to be so vicious that their release would create a significant threat to the public health, safety, or welfare; (v) failing to treat impounded animals kindly and humanely, including failing to provide them with adequate nutrition, water, shelter, and exercise, and with prompt and appropriate veterinary care; (vi) failing identification and tracking measures to enable shelters, rescuers, rescue organizations, and owners to locate animals within the shelter system, and (vii) failing to provide reasonable assistance to members of the public inquiring about reclaiming or adopting impounded animals. 27. As a direct and proximate result of Defendants' violations of law as set forth above, but without limitation, in this Petition and Complaint, Plaintiffs have suffered direct and — 10 — 602515311v1 VERIFIED SECOND AMENDED COMPLAINT
  11. 11. particularized injury to their right to rescue animals impounded by the OCAC. Plaintiff Logan has personally observed animals locked in filthy kennels, where the animals were forced to stand or lie in their own feces and urine, without access to water or with access only to murky, dirty water; dead animals lying in kennels alongside live animals; sick or injured animals suffering in kennels without veterinary attention; and animals locked in the outside area of their kennels with no access to shade. 28. As a direct and proximate result of Defendants' violations of law as set forth above, but without limitation, in this Petition and Complaint, Plaintiffs have been frustrated in their efforts to save animals from death at the shelters, has been forced to divert resources from its regular programs to, among other things, consulting on, monitoring, and investigating conditions at Defendants' shelter. 29. Plaintiff Logan has on a number of occasions notified Defendants of Defendants' failure to comply with their legal obligations and requested that Defendants undertake all reasonable and necessary measures to comply with the applicable law. Defendants have and continue to fail to respond to Plaintiffs' demands. 30. Plaintiffs have exhausted all administrative remedies available, or are excused from exhausting such remedies because Plaintiffs are seeking to enforce a public, rather than private right, or as a result of futility of pursuing such remedies, amongst other things, (a) Plaintiffs have no administrative remedy and no plain, speedy, or adequate remedy in the ordinary course of law. The only remedy provided by law for Plaintiffs to obtain relief is this Petition for Writ of Mandate pursuant to Code of Civil Procedure §§1085, et seq., (b) Plaintiffs will suffer irreparable harm if the relief requested herein is not granted, as will the public at large; and (c) this litigation, if successful, will result in enforcement of a public duty and/or important public rights affecting the public interest, including, without limitation, the public's right to compel Defendants to comply with state laws concerning the proper care and treatment of impounded animals, and with the state policy of saving and re-homing, instead of euthanizing such animals. — 11 — 602515311v1 VERIFIED SECOND AMENDED COMPLAINT
  12. 12. SECOND CAUSE OF ACTION Claim For Injunctive Relief Pursuant to Code Civ. Proc. § 526a (Against All Defendants) 31. Plaintiffs reallege and incorporate by reference each and all of the allegations contained in the preceding paragraphs of this Petition and Complaint, as though fully set forth herein. 32. By engaging in the unlawful acts and omissions set forth in this Petition and Complaint, among other violations of law pertaining to the treatment and care of impounded animals, Defendants have and continue to illegally expend and/or waste public funds allocated to the running of the OCAC shelter system. Defendants pay for the killing and disposal of the bodies of animals that could have been returned to their owners or placed into new homes, with positive net revenue resulting to the County in the form of impoundment or adoption fees. Defendants also pay shelter operation expenses such as equipment, supply, and utility costs and salaries to shelter staff members who fail to perform basic practices mandated by law, such as: (i) holding and making animals available for adoption or owner redemption for the minimum statutorily required period; (ii) accurately classifying animals upon impoundment to avoid wrongful euthanizing; (iii) making impounded animals accessible to the public for viewing, to facilitate owner redemption or adoption; (iv) releasing animals scheduled to be euthanized to nonprofit rescue and/or adoption organizations like Plaintiff Paw Protectors, Inc. that are willing to reasonably care for these animals when the animals are irremediably suffering from a serious illness or severe injury, or are dogs that have been adjudicated after a proper hearing pursuant to Food & Ag. Code,§§31601, et seq., to be so vicious that their release would create a significant threat to the public health, safety, or welfare; (v) treating impounded animals kindly and humanely, including but not to, cleaning their kennels, and providing the animals with water, shelter, exercise, and prompt and necessary veterinary care; (vi) keeping required and accurate records on impounded animals and performing reasonable identification and tracking measures to enable shelters, rescuers, rescue organizations, — 12 — 602515311v1 VERIFIED SECOND AMENDED COMPLAINT
  13. 13. and owners to locate animals within the shelter system; and (vii) providing reasonable assistance to members of the public who call or visit the shelters to inquire about a particular animal. 33. Plaintiffs, as citizens and taxpayers of the County of Orange, are entitled pursuant to Code of Civil Procedure § 526a to a judgment in the form of a judicial injunction restraining and preventing Defendants from continuing to illegally expend and/or waste public funds in the manner described in this Petition and Complaint. THIRD CAUSE OF ACTION Claim For Injunctive Relief Pursuant to 42 U.S.C. § 1983 (Against All Defendants) 34. Plaintiffs reallege and incorporate by reference each and all of the allegations contained in the preceding paragraphs of this Petition and Complaint, as though fully set forth herein. 35. As set forth in this Petition and Complaint, Defendants have, under color of law, taken retaliatory actions against Plaintiffs including, but not limited to, a pattern of antagonism including the termination of Paw Protector, Inc.'s Adoption Partner status soon after Plaintiffs were warned about continuing to complain to the staff and media regarding OCAC's violations of the law and its own policies in an attempt to hold Defendants accountable for their actions, and culminating in the denial of all adoption privileges to Plaintiff Logan and Paw Protectors, Inc. when Plaintiffs thereafter continued to speak publically about OCAC's unlawful conduct. 36. Defendants' actions in retaliating against Plaintiffs have violated Plaintiffs' rights to freedom of speech and to petition for redress of grievances, as guaranteed by the First and Fourteenth Amendments to the United States Constitution. 37. Furthermore, Defendants retaliatory actions have chilled the freedom of speech and right to petition for redress of grievances of other nonprofit rescues as well as other persons who have complained of Defendants' violations. 38. Plaintiffs demand that Defendants cease and desist from violating their Constitutional rights, and rescind the retaliatory actions they have taken against them. — 13 — 602515311v1 VERIFIED SECOND AMENDED COMPLAINT
  14. 14. FINKELS I IN & KRINSK LLP .5 Howard D. Finkelstein Attorney for Petitioners SHARON LOGAN and PAW PROTECTORS, INC. 39. Defendants have failed to respond to Plaintiffs' demand. 40. Pursuant to 42 U.S.C. §1983, Plaintiffs are entitled to injunctive relief restraining and preventing Defendants from continuing to violate their constitutional rights by taking retaliatory actions against them because of their exercise of those rights. 41. Plaintiffs have no administrative remedy and no plain, speedy, or adequate remedy in the ordinary course of law to prevent Defendants from continuing to violate their constitutional rights. The only remedy provided by law for Plaintiffs to obtain relief from Defendants' continuing violation of their constitutional rights is this claim for injunctive relief pursuant to 42 U.S.C. §1983. 42. Plaintiffs will suffer irreparable harm if the injunctive relief requested herein is not granted. WHEREFORE, Plaintiffs pray for judgment as follows: 1. For injunctive relief; 5. For Plaintiff's reasonable attorney's fees; 6. For Plaintiff's costs of suit; and 7. For such other and further relief as the Court deems just and proper. DATED: February 13, 2015 —14— 602515311v1 VERIFIED SECOND AMENDED COMPLAINT
  15. 15. VIItIIHXH
  16. 16. CURRENT ENFORCEABILITY OF THE HAYDEN LAW OF 1998 Taimie L. Bryant * Professor of Law, UCLA School of Law. INTRODUCTION In 1998 California enacted a comprehensive set of laws, known as the Hayden Law, designed to move California's animal shelters in the direction of saving more animals' lives through consolidation of pre-existing legal requirements pertaining to animal shelters and emphasis on adoption and owner-redemption of lost pets. In 2000, the Hayden Law was challenged on financial grounds by city and county governments. The challenge was brought before the Commis- sion on State Mandates (Commission), which is charged with deciding claims by local government that the State owes them money for the implementation of laws at the local level. Although the California Legislature and the California Department of Finance had concluded that compliance with the Hayden Law would reduce the costs of animal sheltering by saving animals through adoption and owner-redemption, the Commission ruled that some of the individual laws in the Hayden Law require State reimbursement for costs local governments incur for compliance. (Commission on State Mandates, Statement of Decision, 98-TC-11). In accor- dance with that decision, the State has been paying local governments to com- ply with those parts of the Hayden Law that require state reimbursement. During the recent state budget crisis, however, the Governor and the Legisla- ture decided not to provide reimbursement during the 2009-2010 fiscal year. It is important to note that those laws have not been repealed and will become enforceable when funded in future budgets. For now, though, the unfunded laws are unenforceable for the period of time that the current budget is in effect. The primary change that has occurred is that the holding period for stray and owner-relinquished animals has dropped from 4 or 6 days, depending on the hours the shelter is open, to 72 hours. Even so, there may well be local laws or animal shelter policies/guidelines that require longer holding periods. Those * One of the principal drafters of the Hayden Law. 1
  17. 17. laws or policies and guidelines must be followed even if the State requires no more than 72 hours. Not all of the laws enacted as part of the Hayden Law were deemed by the Commission on State Mandates to require State reimbursement. Those parts of the Hayden Law remain in effect regardless of California's budgetary situation because they do not require State reimbursement of local government for com- pliance costs. HAYDEN LAW PROVISIONS THAT HAVE NOT BEEN SUSPENDED AND WHICH REMAIN IN EFFECT. The Commission on State Mandates decided that the provisions below do not require State reimbursement. Since the following parts of the Hayden Law are not affected by the State's budget in any way, the following remain in effect: A. Owner-relinquished animals. A shelter may not kill an owner-relinquished animal without holding the animal for the minimum 72 hours that stray cats and dogs must be held under state law (Food and Agricultural Code section 31754). That is true regardless of the species of the owner-relinquished animal and regardless of an owner's ex- pressed wishes that his/her animal be killed. The Commission decided that the law does not require shelters to take in owner-relinquished animals but does require shelters to provide a holding period if shelters decide to take in owner- relinquished animals. Shelters have the choice of rejecting owner-relinquished animals or accepting owner-relinquished animals and holding them for owner- redemption and adoption for the same period as stray cats and dogs. Shelters may not kill owner-relinquished animals before the statutory holding period of 72 hours has elapsed, with or without the owners' permission. (Food and Agri- cultural Code section 31754) Only animals who are irremediably suffering' The question of what constitutes irremediable suffering was litigated in 2007. That lawsuit against Los Angeles County, resulted in the following definition: An animal with a medical condition who has a poor or grave prognosis for being able to live without severe, unremitting pain despite necessary veterinary care. 2
  18. 18. from a serious illness or severe injury may be euthanized. (Food and Agricul- tural Code section 17006.) Please note: A particular shelter may be obligated by local laws to hold animals longer than is required by state law. If a local law requires a longer holding period, then that local law con- trols the minimum holding period and not the state law of 72 hours. Owner-relinquished animals must be held for the same period of time as is required for stray cats and dogs. B. Scanning animals for microchip information and informing owners that their animals are at the shelter. The obligation to scan for microchips was added to the holding period statutes in 2000, two years after the Hayden Law was enacted. It remains fully in effect. Civil Code section 2080, which pre-existed the Hayden Law, requires finders of lost property to make reasonable efforts to notify the owner, when the owner is known. Therefore, if the required microchip scanning reveals information about an owner, the shelter must make reasonable efforts to inform the owner of the whereabouts of his/her lost animal and take reasonable care of the animal until the owner can reclaim the animal. Civil Code section 2080 provides that public shelters can charge the owner with the costs of maintaining the animal. Thus, the Commission found, public shelters have sufficient fee authority to capture the costs of providing reasonable care, including veterinary care, and the provi- sion of caring for animals whose owner is known is not a state reimbursable expense. The obligations to scan animals for microchips, to make reasonable efforts to inform owners that their animals are at the shelter, and to maintain those animals remain in effect without regard to California's budgetary situa- tion. C. Feral cats. A shelter must hold stray feral cats for the same holding period as non-feral cats. Feral cats must also receive the same opportunities for owner-redemption, adoption, and release to an IRC section 501(c)(3) animal rescue and adoption group if requested. The only provision of the Hayden Law that required reim- bursement was temperament testing of cats, which would have excused shelters from holding feral cats for the extended holding period that the Hayden Law provided for stray and owner-relinquished cats. However, the statutory holding period for all cats, regardless of temperament, has been reduced to 72 hours. 3
  19. 19. Please note: To the extent that shelters were killing feral cats without holding them before the Hayden Law was enacted, those shelters were violating the law that pre-dated the Hayden Law. The law provided that all stray cats be held for 72 hours and did not distinguish among cats on the basis of temperament. A local law cannot override a state law by providing less protec- tion than state law affords. Therefore, a local law that provides for immediate euthanasia of feral cats would not override the state law, which requires that feral cats be held for the same pe- riod of time as other cats. Also note: Local laws or policies may provide for a longer hold- ing period than state law provides. It is important to determine what the local law and policy is. The state law requires a mini- mum of 72 hours and not a maximum of 72 hours; animals can be held longer if local government decides to hold animals long- er. D. Internal Revenue Code 501(c)(3) animal rescue and adoption groups. A shelter must allow Internal Revenue Code 501(c)(3) animal rescue and adop- tion groups to take animals from the shelter. (Food and Agricultural Code sections 31108, 31752, 31754) What this means is that a shelter cannot kill an animal if a rescue group or No Kill shelter is willing to save that animal's life. Rather than kill animals, shelters are still required to transfer these animals if those groups request it. Shelters are still not permitted to withhold animals because of temperament evaluation or add any other criteria beyond the re- quirement that the groups be recognized as non-profits under Internal Revenue Code section 501(c)(3). Please note: The Commission decided that these laws provide for a shelter, at its option, to charge such groups the same price for adoption that members of the public pay. Because local gov- ernment has sufficient fee authority, the State does not owe lo- cal government reimbursement. However, the fact that the state law allows shelters to charge rescue groups a fee does not mean that shelters must charge such a fee. The state law gives local government the option of requiring such a fee. If local govern- ment does assess a fee, it can be no higher than that required of members of the public. 4
  20. 20. E. Veterinary Care. The Hayden Law provisions that require shelters to provide prompt and neces- sary veterinary care continue in effect when: 1.the animal is an injured cat and dog who requires emergency veterinary care; 2. the animal's owner is known (microchip information or tag information or by seizure of the animal from someone's prop- erty); 3.the animal is adopted or redeemed by the owner; or 4. the animal is released to a nonprofit animal rescue or adop- tion organization. The reason that prompt and necessary veterinary care is required for cats and dogs in need of emergency medical care (1) is that providing such care was already required by law before enactment of the Hayden Law. The reason that prompt and necessary veterinary care is required for animals in the categories (2) through (4) is because local government has sufficient fee authority to collect those costs that the state need not reimburse local government for vet- erinary expenditures incurred for those animals. Please Note: Local government may be reluctant to provide vet- erinary care under the circumstances of (2) through (4) above because shelters cannot predict which animals will be redeemed by their owners, adopted, or released to rescue groups. If an animal is redeemed, adopted, or released to a rescue group, the shelter could assess fees that enable the shelter to recapture the veterinary costs it incurred. However, if an animal who receives non-emergency veterinary care is not redeemed, adopted, or re- leased to a rescue group, the shelter will not be able to recoup its expenditure the State or any other entity. That uncertainty may lead to a failure to provide any non-emergency veterinary care to animals. However, the Legislature and the Governor suspended only those parts of the Hayden Law that the Com- mission on State Mandates deemed to be reimbursable state mandates. The Commission decided that providing prompt and necessary veterinary care to the animals listed above did not trigger reimbursement by the State. Therefore, veterinary care should be rendered to those animals, especially to animals 5
  21. 21. whose owner is known or when someone has requested an ani- mal for adoption or when a rescue group has placed a hold on an animal. F. Records. Shelters must maintain records of the whereabouts of animals and details of veterinary care as to those animals who receive veterinary care. (Food and Agricultural Code section 32003) That has not changed because those require- ments pre-date the Hayden Law and are separately required under other laws that regulate veterinary medical practice. The following records must be kept for three years for each animal who receives veterinary care: 1. The date the animal was taken up, euthanized, or impounded; 2. The circumstances under which the animal is taken up, eutha- nized, or impounded; 3. The names of the personnel who took up, euthanized, or im- pounded the animal; and 4. The final disposition of the animal, including the name of the person who euthanized the animal or the name and address of the adopting party. G. Policies in Favor of Adoption and Reasonable Treatment to Make Animals Adoptable. California's state policies in favor of adoption instead of euthanasia of adopt- able shelter animals and reasonable treatment of unadoptable animals who could become adoptable remain in effect. (Civil Code section 1834.4, Food and Agricultural Code section 17005, Penal Code section 599d). The Commission on State Mandates found that these statutes do not mandate reimbursable duties. They remain in effect to resolve ambiguities in particular laws or that arise when two laws appear to conflict with each other. In those cases, the interpreta- tion that saves animals' lives is the interpretation that will be legally preferred to resolve any ambiguity or conflict between laws. H. 14-Day Holding Period and Veterinary Care for Animals Seized under Penal Code section 597.1. Penal Code section 597.1 provides for a 14-day holding period for animals seized under that section. The section also provides for veterinary care and treatment for those animals. The Commission on State Mandates decided that 6
  22. 22. VERIFICATION STATE OF CALIFORNIA, COUNTY OF ORANGE I, the undersigned, declare: X I am a party to this action. I have read the foregoing VERIFIED SECOND AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE RELIEF and know its contents. The matters stated in it are true of my own knowledge, except as to those matters which are stated on information and belief, an as to those matters, I believe them to be true. I am an officer of [Corporation/Company], a party to this action, and am authorized to make this verification for an on its behalf, and I make this verification for that reason. I have read the foregoing [TITLE] and know its contents. I am informed and believe that the matters stated in it are true, and on the ground allege that the matters stated in it are true. I am a partner of [Corporation/Company], a party to this action, and am authorized to make this verification for an on its behalf, and I make this verification for that reason. I have read the foregoing [TITLE] and know its contents. The matters stated in it are true of my own knowledge, except as to those matters which are stated on information and belief, an as to those matters, I believe them to be true. I am one of the attorneys for Plaintiff, a party to this action. Such party is unavailable, and I make this verification for and on behalf of the party for that reason. I have read the foregoing [TITLE] and know its contents. I am informed and believe that the matters stated in it are true, and on that ground allege that the matters stated in it are true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 13, 2015 at Costa Mesa, California. By: Sharon Logan, as an individual and on behalf of Paw Protectors, Inc. — 15 — 602515311v1 VERIFIED SECOND AMENDED COMPLAINT
  23. 23. PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of eighteen years and not a party to the within action; my business address is 245 Fischer Ave., Suite A-1, Costa Mesa, California 92626. On February 13, 2015, 1 served the foregoing document described as: VERIFIED SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF on the interested parties in this action by placing a true and correct copy thereof enclosed in a sealed envelope addressed as follows: Nicholas S. Chrisos 333 W. Santa Ana Blvd., Suite 407 Santa Ana, CA 92702-1379 (X) (BY MAIL) I placed a true copy in a sealed envelope addressed as indicated above, on the above-mentioned date. I am familiar with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. ( ) (BY OVERNIGHT NEXT DAY DELIVERY) On the above-mentioned date, I placed a true copy of the above-mentioned document(s) in a sealed envelope or package designated by Federal Express with delivery fees paid or provided for, addressed to the person(s) as indicated above and deposited same in a box or other facility regularly maintained by Federal Express or delivered same to an authorized courier or driver authorized by Federal Express to received documents. () (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the offices of the addressee. () (BY FACSIMILE) From facsimile number (714) 751-5428, I caused each such document to be transmitted by facsimile machine, to the parties and numbers indicated above, pursuant to Rule 2008. The facsimile machine 1 used complied with California Rules of Court, Rule 2003(3) and no error was reported by the machine. Pursuant to Rule 2008(e)(4), I caused the machine to print a transaction record oldie transmission, a copy of which is attached to the original of this declaration. EXECUTED on October 10, 2014, at Costa Mesa, California. (X) (STATE) I declare under the penalty of perjury under the laws of the State of California that the above is true and correct. ( ) (FEDERAL) I declare I am employed in the office of a member of the Bar of this Court at whose direction service was made. Glenda Burton PROOF OF SERVICE — 16 — 602515311v1 VERIFIED SECOND AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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