Leider v. Lewis, B244414

CourtCalifornia Court of Appeals
Writing for the CourtRUBIN, J.
Citation16 Cal. Daily Op. Serv. 527,197 Cal.Rptr.3d 266,2016 Daily Journal D.A.R. 370,243 Cal.App.4th 1078
PartiesAaron LEIDER, Plaintiff and Appellant, v. John LEWIS et al., Defendants and Appellants.
Decision Date14 January 2016
Docket NumberB244414

243 Cal.App.4th 1078
197 Cal.Rptr.3d 266
16 Cal.
Daily Op. Serv. 527
2016 Daily Journal D.A.R. 370

Aaron LEIDER, Plaintiff and Appellant,
John LEWIS et al., Defendants and Appellants.


Court of Appeal, Second District, Division 8, California.

Filed January 14, 2016
As Modified February 10, 2016

Wasserman, Comden & Casselman, Tarzana, David B. Casselman; Esner, Chang & Boyer, Los Angeles, and Stuart B. Esner, for Plaintiff and Appellant.

Sullivan & Crowell, Los Angeles, Diane L. McGimsey, Edward E. Johnson, Janet Y. Galeria and Jonathon D. Townsend, for Animal Legal Defense Fund as Amicus Curiae on behalf of Plaintiff and Appellant.

Zeynep J. Graves; The Bernheim Law Firm, Steven J. Bernheim and Nazo S. Semerjian, for Last Chance for Animals as Amicus Curiae on behalf of Plaintiff and Appellant.

197 Cal.Rptr.3d 270

Michael N. Feuer, City Attorney and John A. Carvalho, Deputy City Attorney; Karcher Harmes PS and Kathryn E. Karcher, for Defendants and Appellants.

Duane Morris, Patricia P. Hollenbeck and Heather U. Guerena, for Association of Zoos & Aquariums, San Diego Zoo Global, International Elephant Foundation, Phoenix Zoo, North Carolina Zoological Park, Saint Louis Zoo, and Busch Gardens Tampa as Amici Curiae on behalf of Defendants and Appellants.


243 Cal.App.4th 1082


This case concerns the elephants and the elephant exhibit at the Los Angeles Zoo. In litigation that began in 2007, plaintiffs and taxpayers Aaron Leider and the late Robert Culp sought to enjoin the continued operation of the elephant exhibit. They also fought to prevent the construction of a new, expanded elephant exhibit. According to plaintiffs, the Zoo had engaged in years of egregious abuse and neglect of the elephants in its care. They alleged the new proposed exhibit would not be large enough to ameliorate the problems inherent in keeping elephants in traditional zoo-like enclosures. The plaintiffs asserted the Zoo's conduct violated animal cruelty provisions in the Penal Code, and constituted illegal expenditures of, waste of, or injury to public funds and property. The defendants vigorously disputed the claims. After the grant of defendants' summary judgment motion, a reversal on appeal by this court, an amended complaint, and pretrial motions, the case went to trial.1 The trial court rejected many of Leider's claims, but issued

243 Cal.App.4th 1083

limited injunctions prohibiting the use of particular forms of inappropriate discipline, requiring the elephants have specific amounts of exercise time, and requiring the rototilling of the soil in the exhibit.

Both sides appeal from the trial court judgment. The defendants challenge a trial court order overruling their demurrer to the first amended complaint. The defendants contend Leider could not base his taxpayer claims on alleged violations of the Penal Code because of the principle that an injunction may not issue to enforce a penal law. They alternatively challenge the injunctions as exceeding the requirements of relevant statutes and regulations governing the care and maintenance of elephants. Leider, on the other hand, contends the trial court erred in failing to shut down the elephant exhibit. Leider argues the trial court improperly rejected certain of his claims based on Penal Code violations. He also challenges the trial court conclusion that he failed to establish a justiciable claim for injury to public property under Code of Civil Procedure section 526a, or a claim based on the violation of a federal regulation regarding animal enclosures.

We agree with the trial court that our decision in the first appeal was law of the case of Leider's right to bring a taxpayer action based on violations of certain Penal Code provisions concerning animal abuse. We alternatively conclude that Civil Code section 3369, which prohibits the issuance of an injunction to enforce a penal law does not apply to taxpayer suits. We also conclude that the trial court's injunctions concerning soil maintenance and exercise time were proper, but reject Leider's claims that the trial court erred by otherwise declining to close the elephant exhibit. We therefore affirm the judgment.


In 2006, in the face of opposition from at least one animal welfare organization to

197 Cal.Rptr.3d 271

the continued operation or expansion of an elephant exhibit at the Los Angeles Zoo, the mayor of Los Angeles sought an evaluation of the proposed exhibit and whether an elephant exhibit should be continued at the Zoo. After consideration, including public hearings involving the City Council, the City decided to proceed with an expansion and redesign of the elephant exhibit. In 2007, the Zoo had two elephants, one male and one female. At some point that year, the female elephant was sent to a sanctuary. In 2010, the Zoo acquired two female elephants from the San Diego Zoo; the United States Department of Agriculture had previously confiscated the two elephants from an individual in Texas. The Zoo now has three elephants.

The Zoo opened the new elephant exhibit in December 2010. Although the exhibit covers more than six and a half acres, the area available to the

243 Cal.App.4th 1084

elephants is smaller due to structures that prevent the elephants from ranging freely across the entire exhibit, including electrically charged wires that keep the elephants away from certain areas with vegetation.

In 2007, Leider and Culp sued the City of Los Angeles and the director of the Zoo, John Lewis (collectively the City or defendants), in a taxpayer action under Code of Civil Procedure section 526a (section 526a). The complaint sought an injunction closing the existing exhibit and preventing construction of the new one. This is the second appeal in this matter. In the first appeal, the plaintiffs challenged a trial court order granting summary judgment to the City. This court concluded triable issues of fact existed regarding whether defendants had engaged or would engage in illegal expenditures in connection with the elephant exhibit and violation of Penal Code section 596.5.2 We therefore reversed the summary judgment. (Culp v. City of Los Angeles (Sept. 23, 2009, B208520) [nonpub. opn.].)3

Following the remittitur, Leider filed an amended complaint seeking injunctive and declaratory relief. In addition to alleging the defendants had engaged in illegal acts under Penal Code section 596.5, the amended complaint contended the defendants' actions or omissions violated Penal Code sections 597 and 597.1, which are additional cruelty to animal statutes. As in the original complaint, the amended complaint alleged that between 1975 and 2006, multiple elephants at the Zoo died prematurely as a result of inadequate space and hard surface conditions, inadequate veterinary care, and mistreatment that included use of a bull hook. The amended complaint alleged the City's actions cost taxpayers “the unnecessary expenditure of millions of dollars.” It further alleged the proposed expansion of the elephant exhibit would permit more abuse and waste of taxpayer funds. The amended complaint alleged the proposed expansion and continued operation of the exhibit violated public policies described in California Fish and Game Code sections 1600, 2051, 2052, 2116.5; California Code of Public Resources section 21001; Penal Code section 596.5; and the United States Endangered

197 Cal.Rptr.3d 272

Species Act of 1973 (16 U.S.C. §§ 1531, 4202).

The City demurred to the first amended complaint. For the first time in the litigation, the City contended Leider could not state a claim under section 526a for injunctive or declaratory relief because the claims challenged alleged

243 Cal.App.4th 1085

violations of the Penal Code. The City based its argument on Civil Code section 3369, which states that “neither specific nor preventive relief can be granted to enforce a penalty or forfeiture in any case, nor to enforce a penal law, except in a case of nuisance or as otherwise provided by law.” The City additionally relied on a California Supreme Court case applying Civil Code section 3369 in a taxpayer action, Nathan H. Schur, Inc. v. City of Santa Monica (1956) 47 Cal.2d 11, 300 P.2d 831 (Schur ). The City argued the complaint failed to state a cause of action on any theory because the trial court had previously concluded, in connection with the City's motion for summary judgment, that plaintiff's waste claim was not justiciable, and this court's opinion reversing the summary judgment ruling did not disturb the trial court's prior conclusion on the waste theory.

Leider opposed the demurrer. He challenged the applicability of Civil Code section 3369 and Schur to his case. Leider further argued the demurrer did not establish the complaint failed to state any cause of action in that it did not address the allegation that the City was illegally expending funds by violating the public policies underlying provisions in the Fish and Game and Public Resources Codes, or the allegation that the City was injuring public property. Leider asserted all theories in the complaint were at large following this court's opinion in the first appeal, including waste and injury. In reply, the City again contended the demurrer resolved all of plaintiffs' claims because they were barred or not justiciable.

The trial court issued a tentative opinion addressing both the City's demurrer and Leider's motion for a preliminary injunction. After a round of supplemental briefing, the trial court overruled the demurrer. The court concluded the amended complaint alleged the City engaged in conduct such as electrical shocking and illegal use of bull hooks. As such, the court determined the amended complaint stated valid causes of action in alleging the City physically abuses its elephants in violation of Penal Code section 596.5. The trial court rejected the Civil Code section 3369 argument as “not open on remand” after our opinion in Leider I. In the...

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1 practice notes
  • People v. Lozano, B263640
    • United States
    • California Court of Appeals
    • January 14, 2016
    ...before imposition of an LWOP sentence on a juvenile, would permit exclusion of evidence at a resentencing hearing mandated by Miller197 Cal.Rptr.3d 266and conducted after nearly two decades of incarceration. In any event, the argument is inconsistent with the broad statement in Gutierrez,su......
1 cases
  • People v. Lozano, B263640
    • United States
    • California Court of Appeals
    • January 14, 2016
    ...before imposition of an LWOP sentence on a juvenile, would permit exclusion of evidence at a resentencing hearing mandated by Miller197 Cal.Rptr.3d 266and conducted after nearly two decades of incarceration. In any event, the argument is inconsistent with the broad statement in Gutierrez,su......

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