Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County. Super. Ct. No. 07C0502 Peter M. Schultz, Judge.
Law Office of K.M. Neiswender and Kate M. Neiswender for Plaintiff and Appellant.
Peter D. Moock, County Counsel, and Bryan Walters, Deputy County Counsel, for Defendant and Respondent.
Law Office of G. David Tenenbaum and G. David Tenenbaum as Amicus Curiae on behalf of Plaintiff and Appellant.
OPINION
HILL, J.
Appellant appeals the denial of her motion for a preliminary injunction, by which she sought to bar the use of drop boxes by Kings County’s animal shelter. Finding no abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant petitioned the superior court for a writ of mandate, alleging that respondent county was violating Food and Agricultural Code section 31108.5 by failing to require purported owners of dogs, who relinquish their dogs to the county’s animal shelter, to identify themselves and provide proof of ownership of the relinquished dogs. She alleged the county maintains after-hours drop boxes, allowing dogs to be relinquished outside of business hours without proof of ownership, and the county’s “flaunting of state law creates an irreparable injury.” She prayed for an injunction prohibiting the county from allowing purported owners of dogs to relinquish the animals without proof of ownership and prohibiting the use of after-hours drop boxes.
All further statutory references are to the Food and Agricultural Code, unless otherwise indicated.
On December 26, 2007, appellant moved for a preliminary injunction prohibiting the use of drop boxes by the animal shelter; she asserted the use of the drop boxes permitted a purported owner to relinquish a cat or dog without providing proof of ownership as required by sections 31108.5 and 31752.2. The court ordered that the signs placed near the drop boxes, which advise that the boxes are not for owner relinquishments, be supplemented with similar signs in Spanish. Otherwise it denied the motion, concluding there was no evidence the after-hours drop boxes were being used for owner relinquishments and, if they were, there was insufficient evidence that the harm from this outweighed the usefulness of the boxes. Appellant appeals from the order denying the preliminary injunction.
Section 31752.2 contains provisions similar to those of section 31108.5, but pertaining to cats instead of dogs.
DISCUSSION
I. Standard of Review
“In determining whether to issue a preliminary injunction, the trial court considers: (1) the likelihood that the moving party will prevail on the merits and (2) the interim harm to the respective parties if an injunction is granted or denied. The moving party must prevail on both factors to obtain an injunction. Thus, where the trial court denies an injunction, its ruling should be affirmed if it correctly found the moving party failed to satisfy either of the factors.” (Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th 1137, 1145.) “The party challenging an order … denying a preliminary injunction has the burden of making a clear showing of an abuse of discretion. [Citation.] An abuse of discretion will be found only where the trial court's decision exceeds the bounds of reason or contravenes the uncontradicted evidence. [Citation.]” (Tahoe Keys Property Owners' Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1470.)
While appellant’s briefs and the underlying motion for preliminary injunction discussed section 31752.2, which contains provisions similar to those of section 31108.5 but relating to cats, the petition for writ of mandate alleged only a violation of section 31108.5, which pertains to dogs. A party seeking a preliminary injunction must demonstrate a likelihood of success on the merits; thus, the request for a preliminary injunction must be based on the claims alleged in the party’s pleading. Accordingly, we do not address any discussion of section 31752.2 or the regulation of cats, matters which are beyond the scope of appellant’s writ petition.
Sections of the Food and Agricultural Code govern regulation and licensing of dogs. (§ 30501 et seq.) They provide for taking up and impounding dogs running at large. (§§ 31101, 31109.) They require animal shelters to keep accurate records, containing specified information, of all the animals they handle. (§ 32003.) Section 31108 provides that “[t]he required holding period for a stray dog impounded pursuant to this division shall be six business days, not including the day of impoundment”; under some circumstances, the holding period is four business days, not including the day of impoundment. (§ 31108, subd. (a).) With some exceptions, “stray dogs shall be held for owner redemption during the first three days of the holding period, not including the day of impoundment, and shall be available for owner redemption or adoption for the remainder of the holding period.” (Ibid.)
A separate provision governs the holding period for owner-relinquished animals. With some exceptions, “any animal relinquished by the purported owner that is of a species impounded by public or private shelters shall be held for the same holding periods, with the same requirements of care, applicable to stray dogs and cats in Sections 31108 and 31752, and shall be available for owner redemption or adoption for the entire holding period.” (§ 31754, subd. (a).) Thus, the code distinguishes between dogs brought to an animal shelter as strays and those relinquished to the shelter by their owners. Owner-relinquished dogs are kept for the same holding period as stray dogs, but unlike strays, they are immediately available for adoption.
An owner relinquishing a dog to an animal shelter must provide proof of ownership of the animal.
“(a) [¶] (1) Upon relinquishment of a dog to a public or private shelter, the owner of that dog shall present sufficient identification to establish his or her ownership of the dog and shall sign a statement that he or she is the lawful owner of the dog. “(2) Any person who provides false information pursuant to this subdivision about his or her ownership of the dog shall be liable to the true owner of the dog in the amount of one thousand dollars ($1,000).” (§ 31108.5, subd. (a)(1), (2).)
There is no requirement that a member of the public who brings a stray animal to an animal shelter identify himself or herself. (See § 32003, specifying the information animal shelters must keep in their records.)
III. Drop Boxes
The drop boxes at respondent’s animal shelter are locked during business hours, but are available outside of business hours for deposit by members of the public of stray or dead animals. Signs posted by the drop boxes advise the public that the boxes are not for owner relinquishments, and owner relinquished animals must be turned over to shelter personnel during normal business hours. The signs advise the public of the provisions of section 31108.5.
IV. Balancing of Harms
A party seeking injunctive relief “‘must demonstrate a real threat of immediate and irreparable injury [citations] due to the inadequacy of legal remedies.’” (Choice-in-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415, 422.) “The term ‘irreparable injury’ authorizing the interposition of a court of equity by way of injunction means that species of damages, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other.” (Anderson v. Souza (1952) 38 Cal.2d 825, 834.) An injunction may not be granted “‘except upon a sufficient factual showing, by someone having knowledge thereof, made under oath or by declaration under penalty of perjury.’” (Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 356.)
Appellant sought an injunction prohibiting the use of drop boxes by respondent’s animal shelter. Appellant asserted use of the drop boxes permitted owners to relinquish their pets without identifying themselves and proving ownership as required by section 31108.5. Appellant presented no evidence that any owner had placed his or her dog in a drop box, thereby avoiding the requirements of section 31108.5. Her supporting declaration merely asserted that it is embarrassing to turn in a pet and “easier to drop off a pet without having to talk to shelter operators.” Therefore, she concluded, “[t]he drop boxes must contain at least some owner-relinquished animals.” Her declaration did not contain a “‘sufficient factual showing, by someone having knowledge thereof,’” that the drop boxes have been used for owner relinquishments. (Fleishman v. Superior Court, supra, 102 Cal.App.4th at p. 356.)
Appellant attempts to rely on an excerpt from a report by Animal Match Rescue Team, which was submitted to the trial court along with her reply papers, to establish that owners have placed their dogs in the drop boxes. The trial court did not consider the report, concluding appellant had not established a proper foundation for admission of the report and had presented only excerpts of it with her reply. Appellant contends no foundation was required, because respondent did not object to admission of the report and mentioned it in its opposition. This ignores the fact that the report was submitted with appellant’s reply, after respondent had filed its opposition and written objections. Additionally, although respondent acknowledged that the report had been prepared, it did not, in its opposition to the motion, adopt or concede all the factual representations and conclusions contained in the report. Finally, the report does not contain any evidence that any owner relinquished his or her dog by placing it in a drop box. It merely observes that “the ease of using the drop boxes ... facilitates owners in relinquishing animals into the drop boxes,” and “there is no reliable way to know that animals coming in through the drop boxes are in fact strays.” Thus, appellant presented no admissible evidence that the animal shelter received or accepted any animals from owners or purported owners without obtaining identification and proof of ownership.
In her opening brief, appellant mentions “inhumane” conditions of the drop boxes and “cruelty,” suggesting these constitute the necessary irreparable injury. Her reply briefs and the amicus curiae briefs also contain arguments about allegedly inhumane conditions and violations of statutes other than section 31108.5. The petition for writ of mandate was not based on the conditions under which animals are kept in the drop boxes. It alleged only a violation of section 31108.5. Arguments concerning other statutes and the conditions to which animals are exposed in the drop boxes raise factual issues beyond the scope of both the writ petition and this appeal.
The evidence supports the trial court’s conclusion that appellant’s motion did not demonstrate any irreparable injury or show that any such injury outweighed the usefulness of the drop boxes. The trial court did not abuse its discretion in evaluating the relative harms and concluding the injunction was not justified.
Respondent submitted evidence the drop boxes are part of respondent’s efforts “1) to reduce the number of animals abandoned in the rural areas of Kings County, 2) control the growth of the animal population, and 3) control contagious diseases.”
V. Likelihood of Success on the Merits
The failure to show that the balance of the harms favors granting relief is not necessarily fatal to the request for a preliminary injunction. “‘[I]f the party seeking the injunction can make a sufficiently strong showing of likelihood of success on the merits, the trial court has discretion to issue the injunction notwithstanding that party’s inability to show that the balance of harms tips in his favor.’” (Right Site Coalition v. Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 336, 339.) However, “an injunction should not issue where there is no possibility of success even though its issuance might prevent irreparable harm.” (American Academy of Pediatrics v. Van de Kamp (1989) 214 Cal.App.3d 831, 838.)
“Ordinarily, an order denying a preliminary injunction is reviewed under the abuse of discretion standard. [Citation.] However, where … the factor of the ‘“likelihood of prevailing on the merits”’ depends upon a question of law or the construction of a statute, rather than upon evidence to be introduced at a subsequent full trial, the standard of review is whether the superior court correctly interpreted and applied the law, which we review de novo.” (People ex rel. Dept. of Alcoholic Beverage Control v. Miller Brewing Co. (2002) 104 Cal.App.4th 1189, 1194.) In this case, the likelihood of appellant’s success on the merits is a matter of statutory interpretation. Based on our interpretation of section 31108.5, we conclude the use of drop boxes is not prohibited and appellant showed no likelihood of success on the merits; therefore the injunction was properly denied.
Appellant does not contend that section 31108.5 expressly prohibits the use of drop boxes by animal shelters. Rather, she contends the use of drop boxes is necessarily inconsistent with the requirements of section 31108.5, and that inconsistency mandates that the use of drop boxes be prohibited. We disagree.
By its plain terms, section 31108.5 imposes an obligation only on the owner of a dog who relinquishes it to an animal shelter. It requires the owner to present “sufficient identification to establish his or her ownership of the dog” and to “sign a statement that he or she is the lawful owner.” Violation of this provision is an infraction. (§ 31401.) Additionally, subdivision (a)(2) of section 31108.5 subjects a person who falsely claims to be the dog’s owner to a one thousand dollar liability to the true owner. (§ 31108.5.)
In contrast, other sections of the Food and Agricultural Code expressly impose obligations directly on the shelter. (See, e.g., § 32001, “[a]ll public pounds, shelters, … shall provide” assistance locating lost animals; § 32003, “[a]ll public pounds and private shelters shall keep accurate records.”) Section 31108.5 may impose on the animal shelter an implied obligation to ask for identification and proof of ownership from one who claims to be the owner of a dog to be relinquished to the shelter, to review it for sufficiency, and to retain the signed statement attesting that he or she is the lawful owner of the dog. Nothing in the statute, however, requires the shelter to make the same inquiry of, or to obtain a signed statement from, one who does not claim to be the animal’s owner. Whether the dog is brought to the shelter during business hours or placed in the drop box, the shelter is not required to obtain identification and proof of ownership when the person does not claim ownership.
In her motion, appellant argued that the legislative intent behind section 31108.5 supported her interpretation of the statute. She presented the declaration of Professor Taimie Bryant, who purported to express the intent of the legislature, based on her participation in legislative hearings held prior to the enactment of earlier, related statutes (referred to as the Hayden Law; Stats. 1998, ch. 752, § 1 et seq.). The trial court properly sustained respondent’s objection to Bryant’s declaration. Evidence of an individual’s understanding of a statute or its purpose is not admissible evidence of the intent of the Legislature as a whole. (Metropolitan Water Dist. v. Imperial Irrigation Dist. (2000) 80 Cal.App.4th 1403, 1425-1426.)
Appellant contends section 31108.5 was intended to deter a person falsely claiming to be the owner from maliciously turning over to an animal shelter a dog belonging to someone else, such as a neighbor or ex-spouse, either to spite the dog’s true owner or to eliminate an annoyance. Even if we assume this to be the purpose of the statute, it does not support an inference that the Legislature, by enacting section 31108.5, intended to eliminate the use of drop boxes for turning in stray or dead animals. Nothing presented by appellant, including the Bryant declaration, suggests the Legislature even considered the effect section 31108.5 might have on the use of drop boxes. Certainly, if the Legislature had intended to prohibit the use of drop boxes, it could have chosen a more direct and unambiguous means of doing so.
The drop boxes at respondent’s animal shelter are for turning in stray animals and dead animals. Signs posted near the boxes inform the public that the boxes are not for owner relinquishments. They direct owners to return during business hours to relinquish their animals to shelter personnel. The signs set out the text of section 31108.5 verbatim. Thus, owners are informed of their obligation under the statute to provide identification and proof of ownership when they relinquish their animals.
There is no statutory requirement that persons bringing stray or dead dogs to a shelter present identification or other documentation when they do so. Thus, such persons may lawfully use drop boxes to deliver their animals to the shelter. Respondent’s opposition to the motion for preliminary injunction was supported by a declaration which stated, among other things, that “[t]he drop boxes are an important part of Animal Control’s efforts: 1) to reduce the number of animals abandoned in the rural areas of Kings County, 2) control the growth of the animal population, and 3) control contagious diseases. The drop boxes provide temporary shelter to stray animals while preventing them from continuing to run at large, where a diseased animal can spread communicable disease or an unaltered animal can contribute to the overpopulation problem.” Enjoining the use of drop boxes entirely, as appellant requests, would preclude the use of the boxes for the lawful purpose of receiving dead or stray animals outside of regular business hours, from members of the public who cannot, or are not willing to, keep the animals until the shelter is open for business.
Section 31108.5 requires that a person bringing an animal to a shelter and claiming to be its owner present identification and proof of ownership. There is no requirement that a person who does not claim to be the animal’s owner provide identification or proof of ownership. Thus, whether the person comes into the animal shelter during business hours and turns the animal in claiming it to be a stray, or places it in a drop box after hours, implicitly representing that it is a stray, section 31108.5 does not apply. In either case, the person makes no representation that he or she is the owner of the animal, and the shelter has no obligation to obtain proof of ownership.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR:WISEMAN, Acting P.J., DAWSON, J.