Cvma v. City of West Hollywood

• Decision Date: 22 June 2007
• Docket Number: No. B188723.,B188723.
• Citation: 61 Cal.Rptr.3d 318,152 Cal.App.4th 536
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIA VETERINARY MEDICAL ASSOCIATION, Plaintiff and Respondent, v. CITY OF WEST HOLLYWOOD, Defendant and Appellant.

61 Cal.Rptr.3d 318

152 Cal.App.4th 536

CALIFORNIA VETERINARY MEDICAL ASSOCIATION, Plaintiff and Respondent, v. CITY OF WEST HOLLYWOOD, Defendant and Appellant.

No. B188723.

Court of Appeal, Second District, Division 7.

June 22, 2007.

Eisenberg, Raizman, Thurston & Wong and Orly Degani; Sedgwick, Detert, Moran & Arnold and Orly Degani; Michael Jenkins, City Attorney, for Defendant and Appellant.

Gibson, Dunn & Crutcher, George A. Nicoud III, Sarah E. Piepmeier, San Francisco; Gibson, Dunn & Crutcher, Perlette Michele Jura, Kahn A. Scolnick and Vanessa C. Adriance, Los Angeles, for Animal Legal Defense Fund, The Association of Veterinarians for Animal Rights and the Paw Project as Amicus Curiae on behalf of Defendant and Appellant.

Dennis J. Herrera, City Attorney, Danny Chou, Deputy City Attorney, for The City and County of San Francisco as Amicus Curiae on behalf of Defendant and Appellant.

Wilke, Fleury, Hoffelt, Gould & Birney and Daniel L. Baxter, Sacramento, for Plaintiff and Respondent.

PERLUSS, P.J.

Echoing Gandhi's teaching that a society's moral progress is best judged by its treatment of animals,¹ the City of West Hollywood has banned as cruel and inhumane the practice of animal declawing unless necessary for a therapeutic purpose. Believing West Hollywood's prohibition of recognized veterinary medical procedures within its city limits was both inappropriate and ill-advised, the California Veterinary Medical Association (CVMA) filed an action for declaratory and injunctive relief, asserting the ordinance was preempted by the California Veterinary Medical Practice Act (VMPA or Act) (Bus. & Prof.Code, § 4800 et seq.) and by Business and Professions Code section 460, which precludes cities and counties from prohibiting certain individuals licensed by the State from engaging in their business or profession "or any portion thereof."²

On cross-motions for summary judgment the trial court concluded West Hollywood's anti-declawing ordinance was preempted by section 460 and entered judgment in favor of the CVMA, declaring the ordinance invalid and enjoining further enforcement. We reverse. Although section 460 prohibits local legislation imposing separate and additional licensing requirements or other qualifications on individuals holding state licenses issued by agencies of the Department of Consumer Affairs (DCA), it does not preclude otherwise valid local regulation of the manner in which a business or profession is performed. Similarly, although West Hollywood's adoption of an anti-cruelty measure prohibiting nontherapeutic declawing of animals has an incidental impact on veterinarians practicing within its city limits, the ordinance is not preempted by virtue of the state's regulation of veterinary medicine through the VMPA or its implementing regulations.

FACTUAL AND PROCEDURAL BACKGROUND

1. West Hollywood's Prohibition of Declawing Animals for Nontherapeutic Purposes

On April 21, 2003 the City of West Hollywood, finding that onychectomy (declawing) and flexor tendonectomy procedures cause "unnecessary pain, anguish and permanent disability" to animals (West Hollywood Mun.Code, § 9.49.010(g)), adopted Ordinance No. 03-656, adding chapter 9.49, entitled "Ban on Onychectomy (Declawing)" to the West Hollywood Municipal Code. The ordinance prohibits any person, "licensed professional or otherwise," from performing or causing either procedure to be performed "by any means on any animal within the city, except when necessary for a therapeutic purpose." (West Hollywood Mun.Code, § 9.49.020.)³

In detailed findings supporting adoption of the ordinance, West Hollywood recited the bases for its conclusion the practice of animal declawing is cruel and inhumane unless necessary for a therapeutic purpose: "Contrary to most people's understanding, declawing consists of amputating not just the claws but the whole phalanx (up to the joint), including bones, ligaments, and tendons. [¶] ... Declawing is not a simple cosmetic procedure akin to a manicure or a pedicure. On the contrary, to remove a claw, the bone, nerve, joint capsule, collateral ligaments, and the extensor and flexor tendons must all be amputated. Thus, declawing is not a `simple,' single surgery but ten separate, painful amputations of the third phalanx up to the last joint of each toe. In human terms, this is akin to cutting off the last joint of each finger. [¶] ... [¶] ... Complications can include excruciating pain, damage to radial nerve, hemorrhage, bone chips that prevent healing, painful re-growth of deformed claw inside the paw which is not visible to the eye, necrosis, lameness, and chronic back and joint pain as shoulder, leg and back muscles weaken...." (West Hollywood Mun.Code, § 9.49.010(a), (b) & (d).)⁴

2. The Opinion from the DCA Legal Office

Following adoption of West Hollywood's ban on declawing, the Veterinary Medical Board (Board), an agency within the DCA, asked the DCA's legal office whether the state's licensing law regulating the practice of veterinary medicine preempts West Hollywood's ordinance. In response the legal office issued its legal opinion No. 04-04, dated December 1, 2004, in the form of a memorandum to the executive officer of the Board, concluding the ordinance is preempted. In the view of the DCA legal office, under section 460 "a city cannot prohibit a licensed veterinarian from practicing any aspect of the veterinary medical work that falls within the perimeter of the state license." In addition, the memorandum reasoned, "[r]egardless of whether or not the decision to declaw is based on a medical `therapeutic purpose' or for reasons of `aesthetics or convenience,' the procedure itself is a standard veterinary procedure. It cannot be regulated by local jurisdictions because it `is of such a nature that the adverse effect of a local law on the transient citizens of the state outweighs the possible benefits to the municipality.' Such local regulation of veterinary practice in different jurisdictions would ultimately create a chaotic and confusing situation where it would be difficult for licensed veterinarians to know which veterinary procedures are legal or not depending on the jurisdiction.... Such a balkanization of professional practice ultimately would lead to different standards of practice throughout the state ... [and] will inevitably make it very difficult for the Board to enforce the Veterinary Medical Practice Act."⁵

3. The CVMA Complaint for Declaratory and Injunctive Relief

As alleged in the complaint it filed to initiate this action, the CVMA, a nonprofit, statewide veterinary medical association with a membership of more than 4,800 veterinarians in the state, unsuccessfully attempted to persuade West Hollywood in early 2003 not to enact Ordinance No. 03-656. After receipt of the December 1, 2004 opinion from the DCA's legal office, the CVMA requested, once again without success, that West Hollywood rescind the declawing ban and refrain from further enforcement of the ordinance. Having failed to win West Hollywood's voluntary acquiescence in its opposition to restrictions on licensed veterinarians' ability to perform nontherapeutic onychectomy and flexor tendonectomy procedures, on March 7, 2005 the CVMA filed a complaint for declaratory and permanent injunctive relief, alleging West Hollywood's ordinance is in conflict with, and preempted by, both section 460 and the VMPA.

West Hollywood demurred to the complaint, arguing Ordinance No. 03-656 was not preempted by either section 460 or the VMPA as a matter of law and, therefore, the complaint failed to state a cause of action. In its opposition papers the CVMA disputed West Hollywood's legal arguments regarding preemption and also asserted the demurrer was predicated on a "contested factual assumption-that declawing procedures constitute `animal cruelty,' " an issue, the CVMA insisted, "that may not be properly decided on demurrer." The trial court apparently agreed: Citing to paragraph 17 of the complaint, which alleged that the banned declawing procedures are "a part of the veterinary profession," the court overruled the demurrer, finding the CVMA had stated causes of action for declaratory and injunctive relief on the ground the provision is preempted by section 460. The court declined to rule on the issue whether there was also preemption by virtue of the VMPA because such a ruling was unnecessary.

4. Cross-motions for Summary Judgment and the Trial Court's Order

After conducting initial discovery the CVMA and West Hollywood filed cross-motions for summary judgment. The CVMA no longer argued a factual finding whether onychectomy and flexor tendonectomy procedures are "cruel" when not performed for a medically necessary reason was necessary to determining the case, contending instead, "whether moral or immoral, ethical or unethical," these procedures are part of the practice of veterinary medicine as defined by the VMPA and, therefore, West Hollywood's effort to ban those procedures is preempted by the state's licensing laws. For its part, West Hollywood argued, as it had in its demurrer, it was entitled to judgment as a matter of law because neither section 460 nor the VMPA preempts its ordinance.

The trial court overruled West Hollywood's evidentiary objections to the declarations of several veterinarians submitted in support of CVMA's motion for summary judgment, which included the opinion that both onychectomy and flexor tendonectomy constitute surgical operations upon an animal, but sustained in part West Hollywood's objections to portions of the declaration of Dr. George B. Cuellar submitted in opposition to West Hollywood's motion, specifically Dr. Cuellar's opinions that, when performed in accordance with standard veterinary practices and procedures, "onychectomy and flexor tendonectomy are not `cruel'"; the procedures are a "standard part of veterinary medical practice"; and, "if the procedures were `cruel,'...