Opinion
B220682
10-19-2011
ZSUZSA BLAKELY, Plaintiff and Appellant, v. THE LOS ANGELES SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, et al., Defendants and Respondents.
The Law Office of Stan Stern and Stan Stern for Plaintiff and Appellant. Garrett & Tully, Ryan C. Squire and Jennifer R. Slater for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC404155)
APPEAL from a judgment of the Superior Court of Los Angeles County, Conrad Aragon, Judge. Affirmed.
The Law Office of Stan Stern and Stan Stern for Plaintiff and Appellant.
Garrett & Tully, Ryan C. Squire and Jennifer R. Slater for Defendants and Respondents.
Zsuzsa Blakely (Blakely) appeals from the judgment entered after an order granting summary judgment in favor of defendants The Los Angeles Society for the Prevention of Cruelty to Animals, and its humane officers and employees Madeline Bernstein, Dr. Karen Halligan and Steven Pacheco (collectively SPCALA) in this action for various torts including assault and battery, conversion, trespass to chattels, theft and conversion, intentional infliction of physical injury and emotional distress, and libel. Because there are no triable issues of fact based on admissible evidence, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The factual description is taken from SPCALA's motion for summary judgment unless otherwise indicated.
1. The underlying animal cruelty case
On December 27, 2006, SPCALA Officers Steven Pacheco and Tony Manzanares arrived at Blakely's residence to investigate a report of animal cruelty which came from Blakely's neighbors. The officers attempted to contact Ms. Blakely but were unable to do so. They detected strong odors of animal feces and urine from Blakely's property. They also heard as many as six dogs barking and noticed Blakely's side and rear yard were unkept with trash and several piles of fecal matter. The officers further discovered Blakely was on a "do not adopt" list dating back to June 2006.
Officer Pacheco determined he needed a search warrant to enter Blakely's residence safely and remove any animals in need of assistance. On January 8, 2007, Officer Pacheco obtained a search warrant signed by Judge Patricia Schnegg.
On January 10, 2007, Officer Pacheco assisted other officers from Animal Protective Services, the Pasadena Humane Society and the Southeast Area Animal Control Authority in seizing 17 dogs from Blakely's home.
Upon announcing the "knock and notice" warning, Blakely appeared in the side yard behind a chain link fence and began shouting obscenities at Officer Pacheco and the entry team. While the search warrant was being executed Officer Pacheco removed Blakely from the house and had Captain Havard take custody of her. According to declarations filed by the officers, Blakely continued to be aggressive and physical while the dogs were being removed. After the house was secured, Officer Pacheco moved Blakely to the back seat of the SPCALA vehicle while they completed collecting the dogs and items identified in the search warrant. Before leaving the property, SPCALA officers presented Blakely with an inventory list of items seized from her home, including the 17 dogs.
Dr. Karen Halligan, director of veterinary services at SPCALA, determined the dogs were in grave condition and in need of immediate medical attention due to severe neglect. She prepared a report as follows: "On 1-10-07 I examined seventeen dogs taken from a single resident home. All of the dogs I examined were dehydrated, hungry and afflicted with at least one type of mange and numerous skin infections. Several of the dogs were in critical condition with thick green discharge from their swollen eyes; severe hair loss and thickening of the skin from chronic infestation of mites, severe itching and secondary skin infections, weakness and difficulty walking due to dehydration and overgrown nails. These dogs required immediate veterinary care to prevent them from succumbing to the numerous, overwhelming, long-standing medical conditions coupled with the fact that they were malnourished and emaciated from lack of basic care such as food and water. It is my professional opinion that several of these dogs were on the brink of dying."
Blakely was charged with 17 counts of animal cruelty under Penal Code section 597 and two counts of battery under Penal Code sections 242 and 243. Blakely, through her counsel, attempted to challenge the search warrant but the court denied Blakely's several motions to quash the search warrant finding, SPCALA had authority to enter the home and the warrant was properly obtained.
On December 12, 2008, while represented by counsel, Blakely pled nolo contendere to four counts of animal cruelty. The other 15 counts (for animal cruelty and battery on personnel) were dismissed. As part of her conviction and sentence Blakely was ordered to serve 180 days in jail (imposition of which the court suspended), she was placed on probation, ordered to pay fines, barred from owning, possessing, maintaining or harboring any animals, and she forfeited all dogs to SPCALA.
2. The civil action filed by Blakely
On December 18, 2008, Blakely filed suit against SPCALA. Thereafter, Blakely asked the court to enjoin SPCALA from euthanizing any dogs while she was appealing her criminal convictions. In order to allow Blakely to appeal her criminal convictions, the court temporarily restrained euthanization that was not necessary to prevent further pain and suffering.
On January 2, 2009, Dr. Halligan provided an updated report as follows: "There are currently eleven remaining dogs in our care from this 2-year-old animal abuse case. There were originally seventeen dogs. Two did not survive the abuse and were humanely put to sleep approximately eighteen months ago. . . . Since [December 2008] one dog was humanely put to sleep and five were successfully adopted out. . . . All eleven dogs had their serious and life threatening conditions medically resolved and are awaiting to be adopted out." Based on this report, the court modified the temporary restraining order to reflect the dogs may be adopted out but not euthanized unless medically necessary.
On January 6, 2009, Blakely filed her first amended complaint alleging causes of action for (1) assault and battery, (2) trespass to chattel, (3) theft and conversion, (4) intentional infliction of personal physical injury and emotional distress, (5) violation of Civil Code section 3340 for wrongful injuries to animals (mistakenly pled by Blakely as a violation of Code of Civil Procedure section 3340); (6) accounting, (7) libel, (8) claim and delivery to obtain possession of the dogs; and (9) declaratory relief to restrain and enjoin SPCALA from euthanizing, destroying or killing any of the dogs.
Blakely alleged defendants were not peace officers and did not satisfy statutory requirements to be able to execute search warrants. She alleged defendants broke down her door, held guns to her head including a gun with a grenade launcher, threatened to taser her, knocked her down to her knees, bashed her head into a bookcase, repeatedly sexually assaulted her, forcibly kidnapped her from her home, handcuffed her, and falsely arrested her in one of defendants' cars. She also alleged defendants looted her home, stole many items, kidnapped all of her 17 dogs, refused to show her a search warrant, and refused to give her any accounting of items taken. She further claimed she was wrongfully charged with criminal animal cruelty and pled no contest in order to settle her case.
On May 15, 2009, after a hearing, the trial court ordered Blakely to make restitution to SPCALA in the amount of $246,480.98 based on her conviction of a crime that entitles the victim to restitution.
3. Summary Judgment Motion of SPCALA
On June 11, 2009, SPCALA filed a motion for summary judgment and/or adjudication of each of the causes of action. In its motion, SPCALA argued summary judgment was proper because Blakely failed to present evidence establishing the requisite elements of each claim. Moreover, SPCALA argued Blakely's claims were either time-barred or failed because SPCALA's conduct was privileged and/or authorized by a valid search warrant. Furthermore, the sentencing order in Blakely's criminal action precludes her demand for return of the dogs seized. The motion was supported by statements of undisputed facts submitted by SPCALA defendants and the matter was set to be heard on August 28, 2009.
On August 27, 2009, the day before the hearing date, Blakely filed an ex parte application to continue the trial date together with an appendix of exhibits, a request for judicial notice of those exhibits, and a separate statement of undisputed material facts in opposition to the summary judgment motion. Among the papers lodged by Blakely in opposition was a 12-page police report (prepared more than two years after the incident) containing her written statement to the police asserting her version of the incident. Blakely argued, among other things, "undoubtedly one of the most important documents in establishing my case is a police report. I tried ever since January 10, 2007, to obtain a police report against defendants, but defendants convinced the LAPD of falsehoods in order to prevent me [from] obtaining a police report, as is the pattern and practice of defendants. I was finally permitted to make a police report on July 31, 2009, and the report was completed by the detective on August 7, 2009, but in attempting to get a copy of it, I discovered that it was almost impossible to get a copy of it in less than two months from the date requested or subpoenaed. However, I was finally able to get a copy of the police report on August 21, 2009 . . . ." The trial court deemed Blakely's ex parte application as one seeking to continue the trial date and the hearing date on the motion for summary judgment. The court denied Blakely's request for continuance but read and considered all the papers lodged by Blakely in opposition to the summary judgment even though the documents were untimely filed.
On August 28, 2009, the trial court granted SPCALA's motion for summary judgment finding there were no triable issues of material fact, and judgment was entered on September 24, 2009. Blakely filed a timely notice of appeal on November 23, 2009.
DISCUSSION
Standard of Review
The standard of review on appeal after an order granting summary judgment is well settled. "A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review a trial court's grant of summary judgment de novo, considering all of the evidence the parties offered in connection with the motion except that which the court properly excluded and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has 'shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff 'may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .' (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
SPCALA was entitled to summary judgment.
A party opposing summary judgment must present admissible evidence. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 851-852.) "To avoid summary judgment, admissible evidence presented to the trial court, not merely claims or theories, must reveal a triable, material factual issue. [Citation.] Moreover, the opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation." (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 11.)
The police report.
Blakely contends on appeal the trial court's refusal to admit into evidence the police report in her appendix of exhibits constituted reversible error. We disagree.
In granting the motion for summary judgment, the trial court found "Among other defects, the request for judicial notice cites to [Evidence] Code §§ 451, 452, and 453, but none of the exhibits found in the plaintiff's appendix is properly characterized as (a) the decisional, constitutional or statutory law of any jurisdiction, or (b) and (c) the regulations or enactments or official acts of a federal or state legislative, executive or judicial body, or any public entity, or (d) and (e) the records or rules of any federal or state court of record, or (f) the law of nations, and (g) and (h) facts and propositions of common knowledge or not reasonably subject to dispute.
"At the same time, there are some exhibits many of which are collections of disparate documents found in the plaintiff's exhibits that do fall under the categories described in [Evidence] Code [§§] 451 and 452, as, for example, the record of plaintiff's plea and conviction, but the court has already taken judicial notice of those documents in connection with defendants' request for judicial notice.
"Moreover, none of the documents found in plaintiff's appendix is properly authenticated, which prevents the court from receiving them, and their contents, into evidence, even in the absence of judicial notice.
"Finally, the court has reviewed plaintiff's arguments and her declaration in assessing whether plaintiff has made a proper showing under CCP §437c(h) 'that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented' to warrant a continuance of the hearing upon defendants' motion. For example, at paragraph 11 of her declaration, plaintiff explains that she had difficulty obtaining the police report (Appendix, Ex. 4), that she has been financially unable to retrieve her medical records (some or all of which appear in her Appendix, Ex. 5), that she needs discovery, including testimonial evidence from 'victims' of defendants' alleged pattern and practice of killing animals. No potential witnesses are named, however, and the medical records and police report included in the appendix are neither subject to judicial notice nor authenticated. Plaintiff also states (at ¶ 14) that she has 'been able to obtain and assemble the documentation to establish my case against defendants and the evidence to prevail in trial.' But she does not describe this documentation, or attempt to demonstrate how it will traverse, for example, defendants' testimonial evidence of the events of January 10, 2007. To the extent that the 'documentation' to which she refers is found in plaintiff's appendix, as noted above, it is neither authenticated nor subject to judicial notice."
The trial court correctly concluded the police report was not properly authenticated. The report was not authenticated by its purported author, Officer Stogsdill, or a custodian of records for the Los Angeles Police Department. Nor did Blakely's declaration in support of her opposition state she was attaching a true and correct copy of the police report.
Blakely urges on appeal the police report is self authenticating. She first claims "A duplicate, which is any copy that accurately reproduces the original . . . is secondary evidence of a writing's content [and] the content of a writing may be proved by otherwise admissible secondary evidence unless a genuine dispute arises concerning material terms of the writing or justice requires the exclusion, or admission of the secondary evidence would be unfair." Furthermore, Blakely contends "[p]ursuant to Evidence Code section 1420, a writing may be authenticated by evidence that it was received in response to a communication sent to the person claimed by the proponent to be its author, as stated above. . . . Contrary to the trial court's ruling . . . the police report . . . was in fact authenticated by virtue of appellant's August 26, 2009 declaration, which relates appellant's request for a copy of the police report and that she received one on August 21, 2009, two weeks after it was completed by the detective, on August 7, 2009, as a result of having so requested."
Even if authenticated, however, the police report was inadmissible hearsay offered to prove the facts recited therein. The writing was not made at or near the time of the incident in January 2007, rather it was prepared over two years later in August 2009, and the document is not trustworthy because the report contains Blakely's own self-serving written statements describing her version of the events. Moreover, detectives determined that SPCALA personnel were serving a search warrant upon Blakely and were acting within their authority, namely the authority under section 14502 of the Corporations Code which states: "A level 1 humane officer is not a peace officer, but may exercise the powers of a peace officer at all places within the state in order to prevent the perpetration of any act of cruelty upon any animal and to that end may summon to his or her aid any bystander. A level 1 humane officer may use reasonable force necessary to prevent the perpetration of any act of cruelty upon any animal."
Blakely's declaration.
Blakely contends summary judgment must be reversed on her causes of action for assault and battery, intentional infliction of physical and emotional distress, theft and conversion because she filed a declaration under penalty of perjury directly asserting her version of the January 10, 2007 incident and contradicting assertions found in respondents' supporting declarations.
However, turning to the declaration filed by Blakely in opposition to the motion for summary judgment, Blakely states: "I have ample evidence against defendants, but the sudden change in circumstances . . . has prevented me from timely being able to fully complete my opposition papers to defendants' motion for summary judgment and file them within the statutory deadline, as well as to obtain all of the necessary evidentiary documentation to support same." Blakely continues: "I currently do not have the ability, and has [sic] not had the ability since my temporary job began, to complete the discovery necessary to obtain all of the evidentiary documentation vital to support my opposition to the motion for summary judgment, and will not be able to do so as long as I am working in my temporary full-time current job."
The trial court concluded, and we agree, "plaintiff's declaration is fraught with argument, opinion and unsubstantiated conclusions. Nowhere in her August 26 declaration does she offer any statement directly contradicting the assertions found in the defendants' supporting declarations narrating the events of January 10, 2007."
In moving for summary judgment, plaintiff may not rely upon the mere allegations of denials of the pleadings to show that a triable issue of material fact exists but, instead, must set for the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2).) It was incumbent on Blakely to demonstrate with admissible evidence the existence of a triable issue of material fact. At the hearing on respondents' motion for summary judgment, Blakely was given the opportunity to present evidence, legal authorities, and oral argument in opposition to the motion. At that time Blakely stated "I feel that this is very unfair as far as the summary judgment decision. I clearly have a case that is very meritorious. I have federal authorities that are very strong that, unfortunately, I could not timely file because, due to exigent circumstances, I was not able to get my documents in time . . . and I am very stunned, really, frankly, because I think this is very clearly a case of persons who lack statutory authority to do any of what they did. . . . [¶] They have managed to - they not only came in and sexually assaulted me, brutalized me, held me at gunpoint with assault weapons, with grenade launchers, falsely arrested me. [¶] They served - they didn't even serve a warrant on me. They have no statutory authority to execute warrants or to have warrants issued to them. [¶] . . . I was prosecuted in the criminal case falsely . . . ."
As stated in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 847 "[P]laintiff may not make it to trial 'by merely asserting' that a reasonable trier of fact 'might, and legally could, disbelieve' their denial 'without offering any concrete evidence from which' such a trier of fact could find in [her] favor. '"[D]iscredited testimony is not [normally] considered a sufficient basis for drawing a contrary conclusion."'" (Id. at p. 847.) In addition, because Blakely does not challenge defendants' showing and the burden had shifted to her, we need not review each cause of action de novo in this court.
In sum, the search warrant lawfully permitted SPCALA and its humane officers to search Blakely's home and seize any living or dead creature. Blakely's challenges to the warrant and seizure were rejected by the court. Indeed, Blakely's conviction and her numerous challenges have been considered and denied. Furthermore, Blakely's allegations are inconsistent with her nolo contendere plea. The trial court properly granted summary judgment based on Blakely's failure to submit admissible evidence demonstrating triable issues of material fact.
Blakely filed numerous writ petitions in the appellate division of the Los Angeles County Superior Court and in this court (ie. requesting among other things the court vacate her plea bargain in the criminal matter, and the court stay enforcement of the plea agreement including forfeiture of the 17 dogs), all of which were denied. Blakely filed a petition for review in the California Supreme Court which was also denied.
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DISPOSITION
The judgment is affirmed. Respondents to recover costs on appeal.
WOODS, J.
We concur:
PERLUSS, P. J.
JACKSON, J.