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Frye v. County of Butte

California Court of Appeals, Third District, Butte

November 27, 2013

ELLEN FRYE et al., Plaintiffs and Appellants,
COUNTY OF BUTTE et al., Defendants and Appellants. ELLEN FRYE et al., Plaintiffs and Appellants, BUTTE COUNTY ANIMAL CONTROL et al., Defendants and Respondents.


APPEAL from a judgment of the Superior Court of Butte County Nos. 148438, 153564 Barbara L. Roberts and Sandra L. McLean, Judges.

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Michael R. Bush, for Plaintiffs and Appellants.

Law Office of Deems & Keller, Michael R. Deems, and Bruce S. Alpert, for Defendants and Respondents.



In two cases, animal control officers seized horses they believed to be at risk. The proceedings leading to the consolidated appeals now before us are convoluted.

Penal Code section 597.1 (section 597.1) provides: “When [an animal control] officer has reasonable grounds to believe that very prompt action is required to protect the health or safety of the animal or the health or safety of others, the officer shall immediately seize the animal and comply with subdivision (f) [providing for a post-seizure hearing]. In all other cases, the officer shall comply with the provisions of subdivision (g) [providing for notice in lieu of seizure, and a pre-seizure hearing].” (§ 597.1, subd. (a).)

“Penal Code section 597.1 [footnote omitted] is a self-contained regulatory scheme covering treatment of animals. It provides that the failure to provide animals with ‘proper care and attention’ is a misdemeanor. (Subd. (a).) It covers the authority of animal control officers over sick, injured,

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straying, or abandoned animals in nonemergency situations. It further provides that animals may be seized or impounded when such an officer ‘has reasonable grounds to believe that very prompt action is required to protect the health or safety’ of the animals. (Subds. (a) & (b).)... Animals that were ‘properly seized’ are to receive ‘care and treatment, ’ the costs of which ‘shall constitute a lien on the animal’ that the owner must pay before the animal is returned. (Subds. (a) & (b).) The owner of a seized or impounded animal is entitled to ‘a postseizure hearing to determine the validity of the seizure or impoundment, ’ return of the animals, and liability for costs. (Subds. (f) & (j).)” (Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1216 [83 Cal.Rptr.2d 235] (Broden).)

The County of Butte, acting via its animal control department (hereafter collectively “the County”), seized horses on separate occasions from plaintiffs Ellen Frye and Marlene Schultz (collectively “Frye” except as context otherwise indicates) and each sought a post-seizure hearing to contest the propriety of those seizures. Separate administrative hearing officers sustained the seizures in each case.

Frye then filed a mandamus petition (first petition; Frye v. County of Butte (Super Ct. Butte Co., 2011, No. 148438)). The trial court (Roberts, J.) (first trial court”) issued a document captioned “Statement of Decision” holding that the administrative findings did not adequately justify the County’s election of remedies, and remanding both cases for new administrative hearings. Long after those new hearings were completed, the first trial court issued a document captioned “Judgment, ” from which the County appealed, and Frye cross-appealed.

In No. C069500, we hold the County’s appeal and Frye’s cross-appeal are untimely, because the “Statement of Decision” was a judgment, albeit a misleadingly-captioned judgment, and therefore the purported judgment arising much later out of the same case was a nullity and did not extend the time in which to file a notice of appeal. Accordingly, we dismiss the untimely appeal and cross-appeal from that purported judgment.

The new administrative hearings resulted in findings again sustaining the County’s seizures of the horses. Frye filed a new mandamus petition challenging those findings (second petition; Frye v. Butte County Animal Control (Super. Ct. Butte Co., 2011, No. 153564)), and filed a timely appeal (No. C070095) from the judgment denying that petition. We shall affirm that judgment.

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The First Petition

A. Procedural Background

On February 25, 2010, Frye filed a second amended petition seeking a writ of administrative mandate and declaratory relief, later characterized by Frye as a “review” petition. Frye alleged various defects in the initial administrative hearings, including inadequate discovery, lack of neutral hearing officers, lack of evidence to support the decisions, and imposition of excessive administrative costs.

On September 28, 2010, the first trial court issued a document captioned as a “Statement of Decision” finding the administrative decisions were deficient because “the record is devoid of any findings... as to the proper procedure to be used, therefore these cases must be remanded... to first determine whether or not pre-seizure hearings should have been implemented before seizing the animals and proceeding with the post-seizure hearing. To allow the agency to proceed with a post-seizure hearing only would deprive the party of any remedy to address whether a pre-seizure hearing would have been more appropriate in each circumstance. [¶] The cases are remanded to the agency to conduct a hearing on the proper procedure that should have been used in these cases.”[1]

In November and December 2010, the respective hearing officers upheld the post-seizure process used by the County in each case, after the hearings on remand ordered by the trial court.

On January 24, 2011, the first trial court issued an order stating new administrative hearings had been conducted and if the parties wanted to challenge the new findings, they had to file a new petition that could be heard before a different judge.

On March 4, 2011, Frye filed an original petition for writ of mandate in this court (Frye v. Superior Court (Apr. 7, 2011, C067527), petn. den.) complaining that the first trial court “has refused to enter any judgment” in the matter.

On April 7, 2011, we disposed of Frye’s original petition as follows:

“Inasmuch as Code of Civil Procedure section 1094.5 does not permit remand

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before the writ issues, ‘but instead specifies that the writ shall issue and the reviewing court may then remand’ (Sierra Club. v. Contra Costa County (1992) 10 Cal.App.4th 1212, 1220-1221 [13 Cal.Rptr.2d 182]), respondent court’s inartfully worded Statement of Decision issued September 28, 2010, was in fact intended by respondent court as a final judgment setting aside the administrative decision and directing reconsideration of the matter as specified in the Statement of Decision. As a result, and as noted by respondent court in its order of January 24, 2011, any challenge to the most recent administrative decision must be based on a new petition for writ of mandate. Accordingly, the instant petition for writ of mandate is denied.

On April 15, 2011, Frye moved to have the first trial court enter a judgment commanding the County to set aside the first administrative decisions, compelling return of the horses, returning costs already paid for seizing and caring for Frye’s horses, and awarding court costs. Frye’s points and authorities acknowledged we had ruled that the first trial court had issued a final judgment, but argued further issues remained to be decided and therefore the “interlocutory order” was not a final judgment--in effect arguing to the trial court that we had erred and it should disregard our ruling. The County did not oppose entry of a final judgment, but sought a more limited judgment that merely remanded the matters for further hearings. Because those hearings had already taken place, the County argued the proper vehicle for Frye to obtain any additional relief was by filing a new petition for writ of mandate.

The first trial court signed a document captioned “Judgment” on August 22, 2011, issuing a writ of mandate commanding the agency to set aside the first administrative decisions, remanding for new hearings, and awarding Frye court costs “according to proof[.]” Notice of entry of this purported judgment was made on August 31, 2011.

On October 17, 2011, the County filed an appeal from that purported judgment. On October 28, 2011, Frye filed a cross-appeal from it.

B. Timeliness of the Appeal

The parties briefed the validity and adequacy of the purported judgment signed on August 22, 2011. We do not reach those issues here.[2] Instead, we resolve this appeal and cross-appeal based on supplemental briefing we ordered. We confirm our earlier view that the document captioned “Statement of Decision” filed on September 28, 2010 was “a final judgment” remanding

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for further administrative proceedings.[3] This triggered the time in which to file a notice of appeal, and the later document captioned as a “judgment” did not extend that time; it was a nullity. Because the notices of appeal and cross-appeal from that void judgment were untimely as measured from the date of the true--albeit miscaptioned-- judgment, this appeal must be dismissed.

1. The “Statement of Decision " Was a Final Judgment.

At the time the “Statement of Decision” was filed, a trial court could not issue an interlocutory administrative remand order. (See Sierra Club v. Contra Costa County, supra, 10 Cal.App.4th at pp. 1220-1221 (Sierra Club); Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 898-899 [236 Cal.Rptr. 794] (Resource Defense Fund).) Because we normally presume a trial court acts according to extant law (see Ross v. Superior Court (1977) 19 Cal.3d 899, 913-914 [141 Cal.Rptr. 133, 569 P.2d 727]; In re Fred J. (1979) 89 Cal.App.3d 168, 175 [152 Cal.Rptr. 327]), we reasoned that the first trial court issued a final writ when we denied Frye’s original petition.

As Frye emphasizes, several months after we denied Frye’s original writ petition, our Supreme Court disapproved of the rule stated in Sierra Club and Resource Defense Fund, and held there was “no blanket prohibition on the appropriate use, in an administrative mandamus action, of a prejudgment remand for agency reconsideration of one or more issues pertinent to the agency’s decision.” (Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 528-529 [129 Cal.Rptr.3d 658, 257 P.3d 81] (Voices of the Wetlands).) But this does not change the fact that, at the time it acted, the first trial court was bound to follow the prior rule (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937] (Auto Equity Sales); 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 297, pp. 908-909 (Witkin)), and therefore intended at that time that its "Statement of Decision” function as a final judgment, as we previously concluded, following then-extant law.[4]

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Accordingly, we confirm the view we previously expressed in the prior original writ proceeding in this court, namely, that the document captioned as a “Statement of Decision” filed on September 28, 2010, was a final judgment.

Frye contends that the “Statement of Decision” did not resolve all of the pleaded issues between the parties, specifically, claims for “monetary damages” and return of the horses. Generally speaking, the County agrees. Frye argues that this, too, shows the “Statement of Decision” was not a judgment.

We disagree. As we explain, the “Statement of Decision” resolved all issues necessary to resolve at that time. It would have been premature to order return of the horses or restitution of amounts paid to the County to care for them, before the legality of the seizure had been determined via the new administrative hearings in the first instance.

Generally, “A judgment is the final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc., § 577; see Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743-744 [29 Cal.Rptr.2d 804, 872 P.2d 143] [no appeal from purported judgment that fails to dispose of all causes of action].) This case was not an action, but was a special proceeding. (Code Civ. Proc., §§ 21-23; see 3 Witkin, supra, Actions, § 65, p. 136.) However, the rule defining a judgment is the same: “A judgment in a special proceeding is the final determination of the rights of the parties therein.” (Code Civ. Proc., § 1064.)

“It has been correctly stated that the general test for determining whether the judgment is final is ‘that where no issue is left for future consideration except the facts of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.’” (Meehan v. Hopps (1955) 45 Cal.2d 213, 217 [288 P.2d 267]; see Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 [118 Cal.Rptr.3d 571, 243 P.3d 575]; People v. Whaley (2008) 160 Cal.App.4th 779, 802 [73 Cal.Rptr.3d 133].)

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The first cause of action[5] in the first petition alleges the administrative hearing regarding the Frye seizure was invalid for various reasons. The second cause of action alleges the administrative hearing regarding the Schultz seizure was invalid for various reasons. The third cause of action sought a declaration regarding the validity of the County’s practices regarding choosing a pre- as opposed to post-seizure remedy. The fourth cause of action sought a declaration that section 597.1 was unconstitutional on its face and as applied.

The judgment as set forth in the “Statement of Decision” ordered new administrative hearings to determine the validity of the County’s exercise of discretion to elect between pre- and post-seizure remedies. The first trial court therefore agreed the first through third causes of action merited relief in the form of new administrative hearings. That judgment impliedly rejected the claim in the fourth cause of action that section 597.1 was facially unconstitutional, because the new hearings were designed in part to determine the lawfulness of the County’s actions in these particular cases. Thus, the judgment adequately disposed of the first petition and Frye or the County could have appealed therefrom. (See Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697-700 [107 Cal.Rptr.2d 149, 23 P.3d 43] [under “‘one final judgment’ rule, ” denial of petition for writ of mandate in a prior appeal effectively resolved claims seeking to declare a statute unconstitutional, to enjoin an administrative fine, and to prohibit future enforcement, and therefore was a final determination of the rights of the parties in the action, “because the superior court’s ruling... disposed of all causes of action framed by the pleadings, leaving no substantive issue for future determination, it was an appealable judgment”].)[6]

Certain remedies sought by the first petition remained unresolved, but that is only because they were not yet ripe, pending the outcome of the new administrative hearings. Although Frye points to the alleged illegal retention of the horses and “money damages based on the [County’s] improper charges, ” until new administrative hearings were completed, such remedies

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would be premature.[7] Therefore, by ordering new administrative hearings, the first trial court resolved all the issues in the petition that were proper to resolve at that time.[8]

2. No Timely Appeal from the Judgment was Filed.

The County was clearly aggrieved by having to undergo new administrative hearings, and therefore could have appealed from the judgment ordering a remand. (See 8 Witkin, supra, Extraordinary Writs, § 217, pp. 1122-1123.)[9]

The time to appeal from the judgment signed September 28, 2010, expired no later than 180 days after it was signed. (Cal. Rules of Court, rule 8.104 (a)(3) & (c); see 9 Witkin, supra, Appeal, § 607, p. 682.) The notice of appeal filed by the County and the notice of cross-appeal filed by Frye in October 2011 were filed more than 180 days later, and therefore were not

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timely, as the County concedes (assuming we treat the “Statement of Decision” as a judgment, which we do).[10] Frye declined to brief this issue, forfeiting the point. (See People v. Anderson (2007) 152 Cal.App.4th 919, 929 [61 Cal.Rptr.3d 9031 ["A point not argued or supported by citation to authority is forfeited”].)[11]

We are aware that between the time the “Statement of Decision” issued and the time the purported judgment was entered, the parties engaged in dialogue with the first trial court on the confusion caused by the miscaptioning, and also participated in further administrative hearings.[12] But they failed to file a timely notice of appeal.

Although notices of appeal are construed broadly, and may be deemed to refer to a different order or judgment than specified, a timely notice of appeal is “an absolute prerequisite to the exercise of appellate jurisdiction.” (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 668-670 [125 Cal.Rptr. 757, 542 P.2d 1349]; see Maynard v. Brandon (2005) 36 Cal.4th 364, 372-373 [30 Cal.Rptr.3d 558, 114 P.3d 795] (Maynard); Cal. Rules of Court, rules 8.60(d) [appellate court may not relieve a party from the failure to file a timely notice of appeal], 8.104(b) [appellate court must dismiss the appeal if the notice of appeal is filed late]; 9 Witkin, supra, Appeal, § 601, pp. 677-678; see also In re Baycol Cases I & II (2011)51 Cal.4th 751, 761, fn. 8 [122 Cal.Rptr.3d 153, 248 P.3d 681] ["California follows a ‘one shot’ rule under which, if an order is appealable, appeal must be taken or the right to appellate review is forfeited”].)

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“In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune [citations]. Nor can jurisdiction be conferred upon the appellate court by the consent or stipulation of the parties, estoppel, or waiver.” (Estate of Hanley (1943) 23 Cal.2d 120, 123 [142 P.2d 423]; see Maynard, supra, 36 Cal.4th at pp. 372-373; 9 Witkin, supra, Appeal, § 614, p. 689 [failure to file timely notice of appeal “cannot be excused by the trial judge’s mistake or the adverse party’s fraud”].)

Once the judgment on the first petition became final due to the lack of a timely appeal, the trial court’s jurisdiction to act on that petition was exhausted. As we have said before, “judgments are parceled out at the ration of one per lawsuit.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 110 [87 Cal.Rptr.2d 754] (Paterno).) Thus, the “judgment” filed on August 22, 2011, was a nullity. (See, e.g., Moore v. City & County of San Francisco (1970) 5 Cal.App.3d 728, 734-735 [85 Cal.Rptr. 281] (Moore) [second judgment “invalid on its face”].)[13] This second judgment in the same action could not trigger a new period in which to file a notice of appeal. Therefore, we dismiss the appeal and cross-appeal in No. C069500, as untimely.


The Second Petition

A. Procedural Background

In the new round of administrative hearings, the County tendered the record of the earlier hearings. Each of the hearing officers again sustained the respective seizures of Frye’s and Schultz’s horses.

On April 22, 2011, Frye filed the second petition (Frye v. Butte County Animal Control, supra, No. 153564), partly contending that the hearing officers failed to explain why the pre-seizure remedy was not appropriate in either case.

On September 6, 2011, the trial court (McLean, J.) (second trial court”) issued a statement of decision rejecting Frye’s due process claims, concluding in the critical portion as follows:

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“Both hearing officers described the testimony upon which they relied in reaching their respective decisions. These decisions were both based upon sufficient and substantial evidence to reach the conclusion that the animals were seized because they were in dire need of assistance. This court finds that [the County] acted within the scope of its discretionary power and not in excess of that power.

“The next question before the court is whether Penal Code section 597.1(f) or 597.1(g) applies to this matter. Based on the findings of the two hearing officers and the testimony at the hearings this court finds that sufficient evidence existed to authorize [the County] to seize the animals pursuant to Penal Code 597.1(f). This court finds that [the County] acted within its jurisdiction under the [Butte County Code] and the laws of the state of California and did not act in excess of its powers. Thus the procedures of 597.1(g) are not at issue in this matter.”

On October 26, 2011, the second trial court issued a judgment denying the second petition, and Frye timely appealed therefrom.

B. Argument

Frye faults the hearing officers for not complying with the first trial court’s order, because they did not compel the County to demonstrate why it seized the horses under section 597.1, subdivision (f), instead of providing notice of the claimed violation and granting Frye a preseizure hearing, under section 597.1, subdivision (g), and faults the second trial court for not adhering to the first trial court’s view of the law. Frye’s briefs raise three arguments in advance of this general view. We reject each argument.

1. Law of the Case

Frye asserts that under the “law of the case” doctrine, the hearing officers had to determine whether the County’s election to seize the horses was “more appropriate” than electing the remedy of notice to the owners and a pre-seizure hearing, and that the second trial court, in ruling on the second petition, was bound to review the new decisions by the standards set by the first trial court in its ruling on the first petition.

The “law of the case” doctrine provides generally that a prior appellate court ruling on the law generally governs further proceedings in the case, whether that ruling was right or wrong.

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(See People v. Stanley (1995) 10 Cal.4th 764, 786-787 [42 Cal.Rptr.2d 543, 897 P.2d 481]; People v. Dutra (2006) 145 Cal.App.4th 1359, 1364-1365 [52 Cal.Rptr.3d 528].) But the doctrine does not apply to prior trial court rulings; therefore the ruling by the first trial court was not “law of the case.” (See Lawrence v. Ballou (1869) 37 Cal. 518, 521; Provience v. Valley Clerks Trust Fund (1984) 163 Cal.App.3d 249, 256 [209 Cal.Rptr. 276].)

Frye relies on three cases involving administrative hearings for the contrary proposition. In each of those cases, the law of the case doctrine was applied following a prior appellate decision. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279 [265 Cal.Rptr. 162, 783 P.2d 749] (George Arakelian Farms); Nielsen v. Industrial Acc. Com. (1934) 220 Cal. 118 [29 P.2d 852]; United Dredging Co. v. Indust. Acc. Com. (1930) 208 Cal. 705 [284 P. 922].) Nothing in any of these cases detracts from the settled rule that law of the case does not apply to prior trial court decisions.

Frye argues that the rise of administrative review under Code of Civil Procedure section 1094.5 somehow alters the scope of law of the case, by casting the superior court, in ruling on a petition for writ of mandate, in the role of an appellate court, for purposes of law of the case. This contention departs from Supreme Court precedent. (See George Arakelian Farms, supra, 49 Cal.3d at p. 1291 [“the doctrine of the law of the case serves to promote finality of litigation by preventing a party from relitigating questions previously decided by a reviewing court” (italics added)].) Thus we cannot expand the doctrine, even were we inclined to do so. (See Auto Equity Sales, supra, 57 Cal.2d at p. 455.)

2. Scope of the Administrative Hearings on Remand

Frye argues the new hearings did not comply with the remand order contained within the first trial court’s “Statement of Decision, ” and therefore the new hearings were not conducted according to law. This contention is forfeited because it is not separately headed as an argument. (See In re S.C. (2006) 138 Cal.App.4th 396, 408 [41 Cal.Rptr.3d 453]; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4 [41 Cal.Rptr.2d 263].)

Moreover, we find no due process violation. In each case, the hearing officer on remand found the evidence showed reasonable cause to believe “very prompt” action by animal control was necessary to protect the horses.

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Contrary to Frye’s argument, if the facts show objectively reasonable cause to believe “very prompt” action was necessary, the statutory scheme authorizes immediate seizure, followed by a post-seizure hearing, consistent with due process. Indeed, when an animal control officer has reasonable grounds to believe that very prompt action is necessary, the statute commands that that officer “shall immediately seize” the animal(s) that are in danger or pose a danger to the public. (§ 597.1, subd. (a)(1).) The County was not required to show, in hindsight, that giving pre-seizure notice would have been “feasible” or “could have been used” or would have been “more appropriate” than taking immediate, lawful, action, as Frye contends

Carrera v. Bertaini (1976) 63 Cal.App.3d 721 [134 Cal.Rptr. 14] (Carrera), relying in part on Fuentes v. Shevin (1972) 407 U.S. 67, 90 [32 L.Ed.2d 556, 576, 92 S.Ct. 1983] (Fuentes), provided examples of the need for “very prompt action” in the context of animal seizures:

“[I]t is clear that at times the summary seizure of farm animals must be permitted to protect the personal safety and property rights of our citizens. For example, where an animal has strayed onto a public highway, it must be removed from the highway to avoid injury to motorists and others using the highway. Also, if an animal with dangerous propensities has escaped from its enclosure, it must be returned to its enclosure to avoid injury to others. So too, an injured, sick, or starving animal must be cared for in a humane way, if possible. In these situations, if after a reasonable investigation the officer is unable to locate the owner or person entitled to the possession of the animal for the purpose of giving him the opportunity of recapturing the animal or of caring for the animal as the situation may demand, then the officer must have the power summarily to take possession of the animal. Here, the governmental interest in protecting the person and property of others must be deemed to override the property right of the owner.” (Carrera, supra, 63 Cal.App.3d at pp. 728-729.)[14]

The term “very prompt action” as used in section 597.1 was taken from Fuentes:

“Only in a few limited situations has this Court allowed outright seizure [fn. omitted] without opportunity for a prior hearing. First in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its

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monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. Thus, the court has allowed summary seizure of property to collect the internal revenue of the United States, [fn. omitted] to meet the needs of a national war effort, [fn. omitted] to protect against the economic disaster of a bank failure, [fn. omitted] and to protect the public from misbranded drugs [fn. omitted] and contaminated food. [Fn. omitted.]” (Fuentes, supra, 407 U.S. at pp. 90-92 [32 L.Ed.2d at pp. 576-577], italics added; see Carrera, supra, 63 Cal.App.3d at p. 728.)

“Whether special circumstances warrant summary seizure depend upon the nature of the governmental interest, the need for “very prompt action, ” and the duty of the seizing official under the standards of a narrowly drawn statute.” (Phillips v. San Luis Obispo County Dept. etc. Regulation (1986) 183 Cal.App.3d 372, 378 [228 Cal.Rptr. 101]; see Menefee & Son v. Department of Food & Agriculture (1988) 199 Cal.App.3d 774, 781 [245 Cal.Rptr. 166].) "[T]he statutory language authorizing immediate seizure when an animal control officer ‘has reasonable grounds to believe that very prompt action is required to protect the health or safety of others’ is the equivalent of the exigent circumstances exception familiar to search and seizure law.... There is no litmus test for emergencies; every case must be explained in light of what was known to the officer at the time of entry.” (Broden, supra, 70 Cal.App.4th at pp. 1220-1221; see Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163, 172 [52 Cal.Rptr.2d 777].)

Thus, the findings by the hearing officers that the information known to the animal control officers at the time of the respective seizures gave reasonable grounds to believe “very prompt action” was needed to protect the horses was sufficient to show that those officers acted lawfully. No additional findings were necessary to uphold the seizures.

Nor do we agree with Frye’s view that new evidence was required at the new hearings on remand. The parties submitted their respective cases on the records from the first hearings.[15] The hearing officers then each found the evidence supported the actions of the animal control officers.

In its remand order, the first trial court found that the decisions of the hearing officers had not addressed the question of election of remedies, not

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that the evidence at the first hearings was insufficient to establish the propriety of the actions of the animal control officers. In effect, it concluded the first round of administrative decisions contained a logical analytic gap that required a further hearing. (See Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515 [113 Cal.Rptr. 836, 522 P.2d 12] ["implicit in section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order”]; Singh v. Davi (2012) 211 Cal.App.4th 141, 147-148 [149 Cal.Rptr.3d 265].) The finding of an analytic gap does not equate to a finding that the raw evidence already introduced was insufficient.

3. The Butte County Code

Frye faults the second trial court’s order denying the second petition because it referenced parts of the Butte County Code, including allegedly misquoting one part, in addition to referencing section 597.1. However, the thrust of this ruling was that the evidence showed the animal control officers had reasonable cause to believe “very prompt” action was needed to protect the various horses, thereby justifying resort to the post-seizure hearing remedy provided by section 597.1. The references to local ordinances were unnecessary, and therefore even if they were erroneous in some manner, any error was not prejudicial. Indeed, Frye forfeits the point by failing to articulate a coherent claim of prejudice. (See Paterno, supra, 74 Cal.App.4th at pp. 105-106.)[16]


The appeal and cross-appeal in No. C069500 are dismissed as untimely. The judgment in No. C070095 is affirmed.

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The County shall recover its costs in No. C070095; the parties shall bear their own costs on appeal in 3 Civil No. C069500. (Cal. Rules of Court, rule 8.278(a).)

Raye, R J., and Butz, J., concurred.

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