A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means “to object”; a demurrer is the document that makes the objection. Lawyers informally define a demurrer as a defendant saying, “So what?” to the pleading.
The Judge in the Orange County Superior Court has allowed a lawsuit that alleges retaliation from OC Animal Care and challenges the Euthanasia practices at O.C animal care to proceed and move forward, a trial date has been set. The lawsuit has been brought forth by Paw Protectors a rescue group and Sharon Logan an individual.
In the Judge’s ruling, the Judge stated:
Respondent Orange County Animal Care’s Demurrer to the Verified Amended Petition for Writ of Mandate and Complaint for Injunctive Relief is OVERRULED.
Demurrer to Amended Petition for Writ of Mandate
A claim for relief under CCP §1085 has been stated
Sharon Logan has alleged facts supporting her standing to bring this claim and facts upon which relief can be granted.
The two essential requirements for issuance of a writ of mandate under CCP §1085(a) are 1) a clear, present, and usually ministerial duty on the part of the respondent, and 2) a clear, present, and beneficial right in the petitioner to the performance of that duty. California Correctional Supervisors Organization, Inc. v. Department of Corrections. (2002) 96 Cal.App.4th 424
Respondent says Sharon Logan hasn’t sufficiently alleged either formulation. This is incorrect.
OCAC says its duties in the management of animals is discretionary, citing Food & Agriculture Code. This is not correct. Civil Code §1984, states unequivocally that a depository of living animals [animal shelter] shall “provide the animals with necessary and prompt veterinary care, nutrition, shelter and treat them kindly.” The “policy of the state” is that no “adoptable animal should be euthanized if it can be adopted into a suitable home.” The criteria for adoptability are specifically stated. Civil Code §1834.4 Civil Code 1834.5 states the specific efforts that must be made before an animal is euthanized, including contacting a non-profit animal rescue group such as Paw Protectors Rescue. No discretion in the application of these standards is stated.
Similarly, Penal Code §597f imposes duties upon animal shelters in connection with abandoned animals.
Finally, OCAC’s reliance on Food & Agriculture Code §17006 establishes its duties to be discretionary, it does not. This section identifies conditions under which animals shall not be adopted. Again, these are mandatory requirements. In fact, as expressly noted by respondent, Food & Agriculture Code §31852(a)(2)and (b) expressly say that impounded stray dogs and cats shall be released to a non-profit unless they fall within the provisions of §17006. The use of a lot of “shalls” militates against the conclusion that there is discretion in the application of the law.
As to standing, Sharon Logan operates a non-profit. Non-profits are specifically included in the statutory scheme. Sharon Logan alleges she and Paw Protectors has been “frustrated in its efforts to save animals from death at shelters, and . . . forced to divert resources from its regular programs to, among other things, consulting on, monitoring, and investigating conditions at Defendants’ shelters.” Amended Petition, ¶3 Logan has suffered direct and particularlized injury to her “right to rescue animals impounded by the OCAC.” Amended Petition, ¶19 She has been “suspend[ed] from rescuing any animals by [Defendants Refusal] to release numerous requested animals to allow for their care instead of euthanizing said animals.” [Amended Petition, ¶15] Since the statute specifically authorizes nonprofit animal rescue groups to take animals to prevent them from being euthanized, and since Logan operates the non-profit, she has a right to the respondent’s performance of its duties in this regard. To the extent Sharon Logan may not have an individual beneficial interest because her claims may be derivative of Paw Protectors, she has public interest standing. Through the statutory scheme, the Legislature has recognized a substantial public need to prevent euthanasia. Sharon Logan certainly has an argument that she is acting in the public interest. For the purposes of a demurrer, this is sufficient.
As to the claim of uncertainty, this is an unsupported argument. The Petition is certain enough.
The conclusion that Sharon Logan has sufficiently stated a claim for a writ of mandate establishes that the Demurrer should be overruled in its entirety as to all causes of action.
Respondent Orange County Animal Care’s Demurrer to the Verified Amended Petition for Writ of Mandate and Complaint for Injunctive Relief is OVERRULED.
If there are any private citizens or residents of Orange County, CA that have had their pets euthanized at O.C. animal care upon owner surrender before the state mandated 72 hour hold, we would like you to please contact us, we would like to hear your story and possibly help you.
