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

[DEPUBLISHED BY ORDER]

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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COUNSEL

Michael R. Bush, for Plaintiffs and Appellants.

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

OPINION

DUARTE, J.

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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DISCUSSION

I

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 ...


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