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Concerned Dog Owners of California et al v. City of Los Angeles et al

April 29, 2011


APPEAL from a judgment of the Superior Court of Los Angeles County, David P. Yaffe, Judge. (Los Angeles County Super. Ct. No. BS114453)

The opinion of the court was delivered by: Johnson, J.



In 2008, the City of Los Angeles (City) passed an ordinance amending section 53.15.2 of the Los Angeles Municipal Code (Ordinance) to require all dogs and cats within the City to be spayed or neutered unless one of the listed exemptions is met. The City adopted the Ordinance with the intent of controlling the rising pet population in the City.

Appellants Concerned Dog Owners of California, Cathie Turner, Dana Bleifer, DVM, and Vardui Khorikyan (collectively CDOC), filed a motion for declaratory and injunctive relief against the City seeking to invalidate the Ordinance, contending that the Ordinance violates various aspects of the state and federal Constitutions. The trial court denied relief, finding that the Ordinance was a valid exercise of the City's police power and that no constitutional rights were implicated by its provisions.

We hold the Ordinance constitutes a valid exercise of the City's police power and find no constitutional infirmity with any of its provisions. Accordingly, we affirm.


In February 2008, the Los Angeles City Council amended section 53.15.2 of the Los Angeles Municipal Code.*fn1 The amended provision requires the owner of a dog or cat in the City of Los Angeles to spay or neuter the animal unless one of six exemptions is satisfied.

Specific exemptions are provided for owners who obtained a breeder permit for the animal. Furthermore, five additional exemptions were provided: (1) certain breeds of animals which are trained and groomed to participate in shows or competitions; (2) dogs which are used for carting, herding, protection, hunting, working, etc.; (3) trained guide or service dogs; (4) dogs used for law enforcement, military, or rescue purposes; and (5) animals which would suffer adverse health effects from the spay or neuter procedure. (§ 53.15.2, subd. (b)(2).) If the owner of the animal qualifies for one of the exemptions, the animal must be implanted with an identification chip identifying the owner. (§ 53.15.2, subd. (b)(3).)

The law was passed in response to the City's growing concern over the pet overpopulation. The City council enumerated several issues related to the overpopulation problem including public health and safety concerns, inhumane treatment of animals, mass euthanasia of dogs/cats at local shelters, and rising costs for animal control. In accordance with committee reports regarding the issue, the City council concluded that imposing a requirement on pet owners to spay and neuter dogs and cats over the age of four months would help alleviate the issue.

On July 26, 2007, Edward A. Boks, the general manager of the City's department of animal services issued a report to the City council requesting the city attorney draft an ordinance to allow the sterilization of animals taken in by the City and to draft language to strengthen breeding and transfer regulations. A report issued by the city controller in August 2008 estimated the number of unaltered cats and dogs in the City to be approximately 500,000. The same report noted that in 2007-2008, Los Angeles took in 47,427 stray cats and dogs. A separate statistical report based on the City's animal services states that in 2007 the City adopted out 16,262 cats and dogs, which was approximately 34% of the City's intake. The same report indicates that in 2006, 19,238 dogs and cats were euthanized and in 2007, 15,009 dogs and cats were euthanized.

The purpose of the permit requirement was to reduce the number of unwanted animals being born. However, not all persons who do not want to spay or neuter their animals intend to breed them. Plaintiff Cathie Turner, for example, has dogs she does not want to spay or neuter, but the Ordinance would require her to do so, or else obtain a breeder's permit. One reason persons such as plaintiffs do not wish to spay or neuter their pets is the health risks involved.

The Ordinance was set to take effect beginning on October 1, 2008. In April 2008, CDOC filed a complaint challenging the constitutionality of the Ordinance. The complaint advanced sixteen distinct causes of action, alleging numerous constitutional defects and requesting injunctive relief and a writ of mandate directing the City to vacate the Ordinance. On September 8, 2008, CDOC filed a motion for preliminary injunction to suspend the enforcement of the Ordinance. CDOC also filed an ex parte application for a temporary restraining order on September 25, 2008 to postpone the enforcement of the Ordinance until the trial court ruled on the preliminary injunction motion. The Application was denied. On October 2, 2008, the trial court denied the motion for preliminary injunction.

CDOC argued in support of its petition that the provisions contained in the Ordinance were invalid. CDOC first contended that the Ordinance violates various aspects of the First Amendment. Specifically, the Ordinance compelled speech by requiring a "breeder's permit" and thereby designating those owners as "breeders," a term which, according to the Plaintiff has become a politicized term. CDOC further argued that the Ordinance violates the right to free association by requiring a pet owner to join a registry, publically adopt the term "breeder," or have the animal sterilized. Moreover, CDOC contended the overbreadth and vagueness of the Ordinance rendered the law void in the First Amendment context.

CDOC also argued that the Ordinance violates equal protection by discriminating against those pet owners who do not satisfy one of the enumerated exemptions provided by the City. Furthermore, the law also discriminated against owners of mixed breed dogs as some of the exemptions apply only to pure breeds. Moreover, CDOC claimed that the Ordinance failed both rational basis and strict scrutiny because it was arbitrary and does not achieve its stated purpose. Finally, CDOC argued the Ordinance violated procedural due process and the takings clause, and asserted that the provisions in the Ordinance violate the Tenth Amendment police powers by exceeding the circumscribed authority granted to cities and municipalities.

In reply, the City argued that in accordance with the California Constitution and relevant health and safety codes, the Ordinance fell within the City's police power to regulate the ownership of animals and is reasonably related to the stated objective. Furthermore, the City contended that the Ordinance does not compel private speech and any government speech associated with the provision is not regulated by the First Amendment. The City also argued that the Ordinance is neither overbroad nor vague such as to violate due process, and that the equal protection claim failed for lack of merit.

Subsequently, on July 14, 2008, the trial court denied CDOC's petition for writ of mandate. In ruling on the petition, the court relied partly on American Canine Foundation v. Sun, an unpublished opinion from the United States District Court for the Northern District of California. (N.D. Cal., Nov. 27, 2007, C-06-4713 MMC [2007 WL 4208358].) American Canine involved a similar spay and neuter ordinance which applied to dogs and it was upheld as a constitutionally valid regulatory measure. Likewise, the trial court found that the Ordinance fell within the ambit of the City's police powers, that free speech rights were not implicated because there is no constitutional right to maintain pets, and that all other arguments lacked merit. On July 31, 2009 the trial court denied CDOC's requested relief. Subsequently, CDOC filed this appeal.


CDOC argues that the Ordinance is constitutionally invalid because it: (1) violates freedom of speech; (2) violates freedom of association by compelling association; (3) is overbroad and vague; (4) violates equal protection; (5) violates due process and the takings clause; (6) grants unfettered discretion; (7) violates Tenth Amendment police powers; and (8) and violates individual liberties under the California Constitution. We conclude the Ordinance is a valid exercise of the City's police power and does not violate the California or federal Constitutions.


In mandamus actions, we perform essentially the same function as the trial court in determining whether the City's action was arbitrary or palpably unreasonable. (County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 973.) "'On questions of law arising in mandate proceedings, we exercise independent judgment.'" (Santa Clara Valley Transportation Authority v. Rea (2006) 140 Cal.App.4th 1303, 1313.) We defer to the trial court's factual findings if supported by substantial evidence. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) The constitutionality of the Ordinance is a question of law subject to independent review. (Samples v. Brown (2007) 146 Cal.App.4th 787, 799.)


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