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Brent Arthur Painter v. John C. Ellery et al

June 11, 2012

BRENT ARTHUR PAINTER, PLAINTIFF AND APPELLANT,
v.
JOHN C. ELLERY ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. No. 170959)

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

Painter v. Ellery

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Brent Arthur Painter appeals from a judgment denying his petition for writ of administrative mandate. (Code Civ. Proc., § 1094.5.) In his petition, Painter sought to overturn an administrative decision, rendered under Penal Code section 597.1, subdivision (f), that upheld Shasta County's (County or the County) seizure of Painter's 17 Arabian horses in order to protect their health.

On appeal, Painter contends he was entitled to a preseizure administrative hearing, rather than a post-seizure one. (Pen. Code, § 597.1, subds. (f), (g).)*fn1 He also claims the administrative hearing officer, John C. Ellery, D.V.M.,*fn2 was unfair in (a) denying him a continuance, (b) admitting into evidence an investigatory hearsay report from Jen Powers, D.V.M., and photographs, and (c) viewing the seized horses without Painter present. Finally, Painter claims the superior court judge who denied his petition was biased. We find no prejudicial error and shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The informal evidence presented at the post-seizure administrative hearing held on February 14, 2008, encompassed (1) oral presentation from County animal control officers involved in the case; (2) a written report from Dr. Powers who evaluated the horses, as well as their housing and feeding, on January 31, 2008; (3) photographs of the premises, feed, water supply, and the horses before their removal; (4) Painter's explanation of events; and (5) Dr. Ellery's (the hearing officer) personal observation of the removed horses on February 14, 2008. (See Gov. Code, § 11513 [governing administrative hearing evidence].) This evidence showed the following.

Responding to complaints about the condition of Painter's horses, County animal control officers on January 9, 2008, met with Painter and viewed the horses. The officers observed 11 horses in unsheltered pens, all of which were in "very poor condition" (very thin and emaciated), and eight horses in a pasture, several of which were very thin. There was a foot of snow on the ground, and no visible signs of feed.

Two particular mares "looked the worst" and needed veterinary attention. Painter had approximately 150 bales of hay in the barn. The officers told Painter that the horses needed immediate shelter because of the conditions and suggested sheltering methods, and said they would return.

When animal control officer Ferrara returned on January 30, 2008, to pick up the two mares for their veterinary appointment the next day (the officers had been prevented from returning earlier, around January 24, because of bad weather conditions), Painter told Ferrara he had destroyed them. And, when Painter showed Ferrara their carcasses, Ferrara saw two additional carcasses----a stallion and a mare destroyed weeks to months before--there as well. At this point, Ferrara decided to impound the 17 remaining horses, on the property, and posted an impound notice.

The next day, January 31, Officer Ferrara returned to the property with Dr. Powers. In a written report, Dr. Powers detailed the inadequate shelter (three feet of snow on the ground, including the unsheltered pens; most of the horses "visibly shaking"); the inadequate feed (mold-saturated; and horses "pawing in the snow, trying to find feed"); and the inadequate water (water containers full of snow). According to Dr. Powers's report, all the penned horses "were emaciated to varying degrees."

On January 31, Officer Ferrara seized the 17 horses, and served a notice of seizure on Painter (this notice form contained a request for post-seizure hearing that Painter had to submit within 10 days, which he did).

Because of bad weather and the logistical difficulties involved in removing 17 horses, the horses were not actually removed until February 8, 2008 (the ...


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