• Legal Filing
• Verification
• PROOF OF SERVICE BY FIRST CLASS MAIL
• Complete text of Temporary Restraining Order to be filed October 29, 2004
• POINTS AND AUTHORITIES
• DECLARATION OF KATE M. NEISWENDER
• DECLARATION OF NATHAN WINOGRAD
• County Refusal To Take In Stray and Abandoned Animals
• Update of Plaintiff, Pattie Lock vs. County of Kern

Attorneys for Petitioner
PATRICIA A. LOCK

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF KERN

PATRICIA A. LOCK, an individual,

Petitioner, v.

COUNTY OF KERN, a political subdivision of the state of California; and DOES 1 through 20, inclusive,

Respondents.

CASE NO.

PETITION FOR WRIT OF MANDATE; COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

PETITIONER presents herself before this Court requesting relief afforded her pursuant to Code of Civil Procedure §1085 and alleges as follows:

Introduction

1. This case involves an on-going pattern and practice of abuse and failure to follow state and federal law at the Animal Shelters in Kern County. Petitioner is asking that the County of Kern be ordered to follow state and federal laws as specified herein, to cease practices which prevent public access to impounded animals, and to stop certain abusive practices which are harmful to impounded animals without any reciprocal benefit to the animals or the public.

2. Petitioner PATRICIA A. LOCK is a resident of Frazier Park in Kern County, California.

3. Respondent COUNTY OF KERN (hereinafter referred to as the "County") is a political subdivision of the state of California. The County operates essential services within its jurisdiction, including the Animal Services Control Division.

4. The Animal Services Control Division (hereinafter “Animal Control”) is part of the Kern County Environmental Health Services Department, and has primary responsibility for the operation of two County-owned animal shelters, as well as shelters in Lake Isabella and Ridgecrest. Between January of 2002 and August 31, 2004, Animal Control impounded more than 70,000 animals, and euthanized more than 75% of those animals.

5. The parties designated herein as Does 1 through 20, inclusive, are presently unknown to Petitioner, but which are subdivisions or officers of the County who are responsible for the actions described herein or for carrying out the functions of the County and who may be affected by this litigation. Petitioner will amend this Petition to specifically identify each such Respondent as required and as the capacity and identity of each such Respondent becomes known.

6. This court has jurisdiction under §§ 1085 of the California Code of Civil Procedure.

7. Kern County is a proper venue for this Petition because the acts performed by the Respondents, including the violations of law and statute, took place in Kern County, and the impacts of the County’s decisions, policies and practices have had and will continue to have severe adverse impacts upon Kern County, its citizens, and its animals, as further detailed herein.

8. According to literature disseminated by the County in 2004, Kern County is the third largest county in the state of California and covers 8,172 square miles. The incorporated areas of the county cover 400 square miles; while the remaining 7,772 square miles is unincorporated. Animal Control is responsible for the unincorporated areas of the county, which includes the unincorporated municipalities of Frazier Park, Lamont, Mojave, Oildale, and Rosamond. Animal Control provides all or partial animal control services through contractual agreements to the cities of Arvin, Delano, and Maricopa.

9. Animal Control operates two animal shelters. The larger shelter is located at 201 South Mt. Vernon Avenue in Bakersfield and the other one is located at 923 Poole Street, at the Mojave Airport, in Mojave. Both shelters have facilities for both dogs and cats. Additionally the shelters can accommodate other animals. Occasionally larger domestic animals enter the shelter such as horses, goats, or pigs as well as more exotic pets such as snakes, lizards, or rabbits. In order to meet the sheltering needs of the unincorporated area around the City of Ridgecrest and in the Kern River Valley the Division has contractual service agreements with the City of Ridgecrest and a private shelter in Lake Isabella.

10. According to literature disseminated by the County in 2004, while the population and the number of animals in the service area has continued to grow the staffing levels for Animal Control has remained constant since 1997. This is true despite an estimated ten (10%) percent increase in the County’s population between 1997 and 2004, an increase of almost 100,000 residents.

11. Petitioner realleges and incorporates herein by reference all the allegations set forth in this Petition as if set forth herein in full.

12. The provision of services concerning domestic animals, including dogs, domesticated cats and feral cats, is governed by primarily by the Food and Agricultural Code. That code was amended in 1998 to include a number of provisions to promote the adoption of companion animals, to extend shelter operating hours, to extend holding times for animals, and to enable non-profit rescue organizations to have more access to impounded animals. These amendments are commonly known as the “Hayden Law,” as they were authored by State Senator Tom Hayden (SB 1785). The Hayden Law is codified in various places throughout the Food and Agricultural Code. Similarly, in 1998, the code was amended to make it mandatory for all companion animals being adopted by a member of the public to be spayed or neutered prior to adoption; this amendment is commonly known as the “Vincent Bill,” as it was authored by State Assemblyman Vincent. The Vincent Bill, AB 1856, is codified at Food and Agricultural Code §30503 and §31751.3.

13. The 1998 changes were responsible for a number of significant changes to animal control operations statewide. The Vincent Bill was designed to decrease the number of unwanted animals, on a long-term basis. The Hayden Law made shelters more accessible to the public and rescue organizations.

14. From the time of the enactment of the Hayden Law and Vincent Bill, the County has failed and refused to follow the laws. It has been the County’s practice and policy to ignore the mandates of the legislature, as follows:

    1. In violation of the Vincent Bill (§30503), the County routinely adopts out dogs that have not been spayed or neutered;

    2. In violation of the Hayden Law (§31108), the County has routinely euthanized dogs prior to the expiration of the statutorily-mandated holding period;

    3. In violation of the Hayden Law (§31108.5), the County has routinely euthanized owner-relinquished dogs upon impoundment, and routinely euthanized owner-relinquished dogs prior to the holding period specified in §31108;

    4. In violation of the Hayden Law (§31108.5), the County has routinely allowed purported owners to relinquish dogs without proof of ownership, as required by law; the County does not even require the public to come in during business hours, instead allowing dogs to be placed in an after-hours “drop bin;”

    5. In violation of the Vincent Bill (§31751.3), the County routinely adopts out cats that have not been spayed or neutered;

    6. In violation of the Hayden Law (§31752), the County has routinely euthanized cats prior to the expiration of the statutorily-mandated holding period;

    7. In violation of the Hayden Law (§31752), the County has routinely euthanized owner-relinquished animals upon impoundment, and routinely euthanized owner-relinquished animals prior to the holding period specified in §31752;

    8. In violation of the Hayden Law (§31752.2), the County has routinely allowed purported owners to relinquish cats without proof of ownership, as required by law; the County does not even require the public to come in during business hours, instead allowing cats to be placed in an after-hours “drop bin;”

    9. In violation of the Hayden Law (§31752.5), the County has routinely euthanized cats that might be feral prior to the expiration of the statutorily-mandated holding period, and have failed to determine whether a cat is feral after the close of the holding period through the use of a standardized protocol (§31752.5(c)).

    10. In violation of the Hayden Law (§31108(b) and §31752(b)), the County has established a pattern and practice of failing to cooperate with non-profit animal rescue organizations, by routinely denying such groups access to areas where animals are located through the use of locked gates; by informing shelter personnel that they are not allowed to call rescue groups even if an animal is impounded that is targeted by rescue (i.e., personnel are not allowed to call Golden Retriever Rescue when a Golden Retriever puppy is impounded); and refusing to adopt to rescue organizations;

    11. In violation of the Hayden Law (§17005 and §17006) , and numerous other policies and procedures set forth in the law, the County has routinely refused to allow the public access to impounded animals by, inter alia, keeping cats and kittens in a locked area, and refusing to allow the public or rescue organizations to view the animals; by keeping the majority of the dogs at the shelters in locked areas away from the public and rescue organizations; by refusing to allow members of the public to view the animals in the locked areas unless they can describe the animal they lost exactly, and then only if that description matches exactly the description rendered by shelter personnel upon impoundment; by refusing to allow animals to be photographed for rescue and adoption; by mis-stating the physical descriptions of an animal; and by failing to log in every impounded animal in the computer system, which thwarts the public’s ability to locate and view a lost animal.

    12. In violation of the Hayden Law (§17005), and numerous other policies and procedures set forth in the law, the County has made it a policy and practice to thwart the public’s ability to adopt impounded animals by establishing a “temperament test” that is administered upon impounded animals before those animals can be viewed or adopted by the public. Such a test has been found to deem a dog “unadoptable” if the dog is not capable of walking on a leash; if it growls when a human takes its food away (even though the County only feeds impounded animals once a day, in violation of Penal Code §597(e)); if it growls; and numerous other arbitrary and capricious “tests” that the vast majority of animals fail. Once an animal fails the “test,” it is deemed “unadoptable” in direct violation of §17005, and euthanized without the opportunity for the public to view, interact or adopt the animal;

    13. In violation of the Hayden Law (§17005(b)), Civil Code §1834, and Penal Code §597.1, the County has established a practice and policy of euthanizing treatable animals, without providing medical care to the animal or allowing the public or rescue organizations to provide medical care; in addition, rescue organizations and others have been refused adoption of an animal because a shelter worker has said an animal is “ill,” without a veterinarian present, without medical testing or other confirmation, and without acknowledging the ability of the adopting person or entity to provide medical care to the animal, if needed. Further, Civil Code §1834 specifically requires "necessary and prompt veterinary medical care" which has not been provided to many of the animals brought to the County shelters.

    14. The County has failed in other and further respects to be proven at time of the hearing in this matter.

15. The County is required to comply with the provisions of the Food & Agricultural Code, in every respect. The County does not have any statutory exemption from complying with state law on animal control and regulation.

16. Petitioner has exhausted all administrative remedies available to her and will suffer irreparable harm if the relief requested herein is not granted.

17. This Court is asked to immediately enjoin any further violations of the law, as outlined herein, and to order the County to take the following actions:

    1. Enjoin the County from adopting out cats or dogs that have not been spayed or neutered;

    2. Enjoin the County from euthanizing dogs or cats prior to the expiration of the statutorily-mandated holding period;

    3. Enjoin the County from euthanizing owner-relinquished dogs or cats upon impoundment, or euthanizing owner-relinquished dogs or cats prior to the holding period specified by law;

    4. Enjoining the County from allowing purported owners of dogs or cats from relinquishing animals without proof of ownership, as required by law and abolishing the after-hours “drop bin;”

    5. Enjoining the County from euthanizing cats that might be feral prior to the expiration of the statutorily-mandated holding period, and mandating the use of the statutorily-required feral testing protocols before euthanizing a cat suspected of being feral;

    6. Mandating the County immediately establish policies and procedures that will ensure cooperation between shelter personnel and rescue organizations, as required by law;

    7. Mandating that the County immediately unlock all kennel areas so that the public can have viewing access to impounded animals, without having to describe an animal; mandating that the public and rescue organizations be allowed to photograph animals for rescue and adoption purposes; and, mandating that the County log in every impounded animal in the computer system;

    8. Enjoining the use of the County’s “temperament test” that prevents the public from adopting the majority of the impounded animals at the shelters;

    9. Mandating that the County provide medical care to animals with medical problems, and requiring that, alternatively, that the County allow the public or rescue organizations to provide medical care.

18. Petitioner realleges and incorporates by reference all the allegations set forth in this Petition as if set forth herein in full.

19. Under Title 16, §2039 of the California Code of Regulations, any employee of an animal control shelter who is not a veterinarian or registered veterinary technician must receive a minimum of eight hours of training in order to administer euthanasia drugs to any animal.

20. The County has consistently failed to provide the required training to its employees, and as a result, Animal Control personnel who euthanize animals at the County’s shelters do not have the required training, in violation of law. The rationale for this regulation is that certain animals are very difficult to euthanize humanely. Very young animals and old or sick animals have small or hard-to-find veins. Therefore, without proper training, someone would have to insert a needle repeatedly to find a vein. If a vein is not located, an animal can take a long time to die, often in great pain.

21. Petitioners have exhausted all administrative remedies available to them and will suffer irreparable harm if the relief requested herein is not granted.

22. This Court is asked to issue an injunction, enjoining the County from allowing any untrained Animal Control personnel to administer euthanasia drugs without with the state-mandated training. THIRD CAUSE OF ACTION (Complaint For Declaratory and Injunctive Relief)

23. Petitioner realleges and incorporates herein by reference all the allegations of Paragraphs 1 through 22, inclusive, of this Petition.

24. An actual controversy exists in that Petitioner contend the County has failed, and continues to fail, to follow the laws, as set forth herein. Petitioner further contends that the County has established a pattern and practice of violations of law, and that the incidents complained of herein are not isolated or random. On the other hand, the County contends it has acted in accordance with the law, and that its policies and procedures are consistent with the law.

25. This Court is asked to intervene and to resolve this conflict, and to order the County to comply with law and statute in regards to all operations of the Animal Control division and all County-operated animal shelters.

1. FOR THE FIRST CAUSE OF ACTION: For an order of this Court, enjoining the County from violating the law as outlined herein, and ordering the County to take the following actions:

   1. Enjoining the County from adopting out cats or dogs that have not been spayed or neutered;

   2. Enjoining the County from euthanizing dogs or cats prior to the expiration of the statutorily-mandated holding period;

   3. Enjoining the County from euthanizing owner-relinquished dogs or cats upon impoundment, or euthanizing owner-relinquished dogs or cats prior to the holding period specified by law;

   4. Enjoining the County from allowing purported owners of dogs or cats from relinquishing animals without proof of ownership, as required by law and abolishing the after-hours “drop bin;”

   5. Enjoining the County from euthanizing cats that might be feral prior to the expiration of the statutorily-mandated holding period, and mandating the use of the statutorily-required feral testing protocols before euthanizing a cat suspected of being feral;

   6. Mandating the County immediately establish policies and procedures that will ensure cooperation between shelter personnel and rescue organizations, as required by law;

   7. Mandating that the County immediately unlock all kennel areas so that the public can have viewing access to impounded animals, without having to describe an animal; mandating that the public and rescue organizations be allowed to photograph animals for rescue and adoption purposes; and, mandating that the County log in every impounded animal in the computer system;

   8. Enjoining the use of the County’s “temperament test” that prevents the public from adopting the majority of the impounded animals at the shelters;

   9. Mandating that the County provide medical care to animals with medical problems, and requiring that, alternatively, that the County allow the public or rescue organizations to provide medical care.

2. ON THE SECOND CAUSE OF ACTION: For an Order of this Court, prohibiting the County from using the drug Euthanol on cats, and requiring all Animal Control personnel who administer or who might administer euthanasia drugs immediately be provided with the state-mandated training;

3. ON THE THIRD CAUSE OF ACTION: For an Order of this Court, ordering the County to comply with law and statute in regards to all operations of the Animal Control division and all County-operated animal shelters;

4. For an order awarding Petitioner costs, and for an order of attorneys' fees pursuant to C.C.P. Section 1021.5, in this proceeding; and

5. For such other and further relief as the Court deems just and proper.

______________________________
KATE M. NEISWENDER
Attorney for Petitioner PATRICIA A. LOCK

Top

I, PATRICIA A. LOCK, have read the foregoing “PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, “ and know its contents. I am the Petitioner in this matter. The matters in this document are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters, I believe them to be true.

Executed on October ____, 2004, at Frazier Park, California. I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct.

___________________________________
PATRICIA A. LOCK

Top

I, Kate Neiswender, declare as follows:
I am employed in the County of Ventura, state of California. I am over the age of eighteen, and my business address is Post Office Box 24617, Ventura, CA 93002. On October 22, 2004, I served the following document entitled PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF by placing a copy thereof enclosed in a sealed envelope addressed as follows:

County of Kern
Clerk of the Board of Supervisors
1115 Truxton Ave.
Bakersfield CA 93301

Animal Services Control Division
Environmental Health Services Dept.
201 So. Mount Vernon Ave.
Bakersfield CA 93307

California Attorney General’s Office
Request for Assistance - Private Attorney General Case
300 So Spring Street
Los Angeles CA 90013

I am readily familiar with our office’s practice for collection and processing of correspondence and other materials for mailing with the United States Postal Service. On this date, I sealed the envelope(s) containing the above materials and placed the envelope(s) for collection and mailing on this date at the address stated above, following our office’s ordinary business practices. The envelope(s) will be deposited with the U.S. Postal Service on this date, in the ordinary course of business.

I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct and that this Proof of Service was executed on October 22, 2004 at Ventura County, CA.

_______________________
Kate Neiswender

Top

1. Under Food & Agricultural Code §31754, an owner relinquished animal must be held for four days, not counting the day of impoundment. Respondent County of Kern euthanizes the vast majority of owner-relinquished animals within the first 24 hours of impoundment. Such practice must be immediately enjoined.

2. Under Food and Agricultural Code §31752.5, any cats brought into the shelter and suspected as a "feral" cat must be held for three days, not counting the date of impoundment. On the fourth day, the Shelter is authorized by law to administer a temperament test, to determine if the cat is indeed feral, or a domestic cat that is simply frightened. Shelters are bound by law to develop feral cat protocols to administer in such cases. Respondent County of Kern euthanizes all cats deemed "feral" immediately upon impoundment, and has never developed feral cat protocols. Such practice must be immediately enjoined.

3. Under Food & Agricultural Code § 30503 and §31751.3, all animals must be spayed or neutered prior to adoption. Respondent County of Kern has no record of spaying or neutering any animals, even though adoptions do take place. Such practice must be immediately enjoined.

4. Under Food and Agricultural Code §31108.5 and §31752.2, a purported owner must provide proof of ownership upon relinquishment of a cat or dog. Respondent County of Kern utilizes a "drop bin" at the Mojave shelter, into which people may place unwanted animals after hours, without proof of ownership. Such practice must be immediately enjoined.

5. Under the California Euthanasia Training Guidelines, specifically Title 16, Section 2039 of the California Code of Regulations, a non-veterinarian cannot be deemed to have proper training without an eight hour course on Euthanasia, including inter alia humane animal restraint techniques, safety training, and record keeping. None of the technicians who euthanize animals for Respondent County of Kern could produce proof of such training. All euthanasias of shelter animals must be immediately enjoined, unless the procedure is administered by a licensed veterinarian.

This motion is made on grounds Respondent COUNTY OF KERN (hereinafter the "County") has failed to comply with the Food and Agricultural Code and the California Code of Regulations as stated hereinabove, in the operation of the two animal shelters under County control; namely, Bakersfield and Mojave.

This Application will be based upon the Declarations of Kate M. Neiswender, Nathan Winograd, Professor Taimie Bryant, Judith Lotz, Judith Orr, Ursula Sauthier, Patricia Lock, and Sherry Meddick; upon the Points and Authorities filed concurrently herewith, upon all papers and pleadings on file in this action, and upon such other evidence, oral and documentary, which may be presented at time of hearing.

Dated: October ___, 2004 ____________________________

KATE M. NEISWENDER

Attorney for Petitioner

Top

1. Factual and Procedural Summary

   Respondent COUNTY OF KERN (hereinafter referred to as the "County") operates two County-owned animal shelters through its Animal Control Services Division, one in Bakersfield and one in Mojave. The Animal Services Control Division (hereinafter "Animal Control") is part of the Kern County Environmental Health Services Department. Between January of 2002 and August 31, 2004, Animal Control impounded more than 70,000 animals, and euthanized more than 75% of those animals (see Verified Petition at ¶4).

   The County's provision of animal control services concerning domestic animals, including dogs, domesticated cats and feral cats, is governed by primarily by the Food and Agricultural Code. That code was amended in 1998 to include a number of provisions to promote the adoption of companion animals, to extend shelter operating hours, to extend holding times for animals, and to enable non-profit rescue organizations to have more access to impounded animals. These amendments are commonly known as the "Hayden Law," as they were authored by State Senator Tom Hayden. The Hayden Law is codified in various places throughout the Food and Agricultural Code. Similarly, in 1998, the code was amended to make it mandatory for all companion animals being adopted by a member of the public to be spayed or neutered prior to adoption; this amendment is commonly known as the "Vincent Bill," as it was authored by State Assemblyman Vincent. The Vincent Bill is codified at Food and Agricultural Code §30503 and §31751.3.

   From the time of the enactment of the Hayden Law and Vincent Bill, the County has failed and refused to follow the laws. There has been anecdotal evidence to this effect for years, and a number of Kern County citizens have come forward with their experiences at the Bakersfield and Mojave shelters, which will be discussed in detail herein. However, a review of County records (through a Public Records Act request) has provided unimpeachable evidence that it has been the County's practice and policy to ignore the mandates of the legislature, as follows:

   1. Under Food & Agricultural Code §31754, an owner relinquished animal must be held for four days, not counting the day of impoundment. Review of County records shows that Animal Control euthanizes the vast majority of owner-relinquished animals within the first 24 hours of impoundment. (See Declaration of Kate M. Neiswender at ¶4(A)).

   2. Under Food and Agricultural Code §31752.5, any cats brought into the shelter and suspected as a "feral" cat must be held for three days, not counting the date of impoundment. On the fourth day, if the Shelter wants to euthanize the animal before the end of the normal four-day holding period, the Shelter is authorized by law to administer a temperament test, to determine if the cat is indeed feral, or a domestic cat that is simply frightened. Shelters are bound by law to develop feral cat protocols to administer in such cases. Animal Control euthanizes all cats deemed "feral" within 24 hours of impoundment, and has never developed feral cat protocols. (See Declaration of Kate M. Neiswender at ¶4(B)).

   3. Under Food & Agricultural Code § 30503 and §31751.3, all animals must be spayed or neutered prior to adoption. Animal Control has no record of providing spaying or neutering for any of animals it has adopted out to the public, even though the County's own records do show some small number of adoptions. (See Declaration of Kate M. Neiswender at ¶4(C)).

   4. Under Food and Agricultural Code §31108.5 and §31752.2, a purported owner must provide proof of ownership upon relinquishment of a cat or dog. Animal Control utilizes a "drop bin" at the Mojave shelter, into which people may place unwanted animals after hours, without proof of ownership. (See Declaration of Ursula Sauthier and Declaration of Sherry Meddick).

   5. Under the California Euthanasia Training Guidelines, specifically Title 16, Section 2039 of the California Code of Regulations, a non-veterinarian cannot be deemed to have proper training without an eight hour course on Euthanasia, including inter alia humane animal restraint techniques, safety training, and record keeping. The County could not provide a single document showing that any of the technicians who euthanize animals for Animal Control have such training. (See Declaration of Kate M. Neiswender at ¶4(D)).

2. Requested Relief

   Petitioner asks that all euthanasias at the County's shelters be immediately enjoined until the shelter personnel have taken and have proof of the required eight-hour training course, or unless the euthanasias are performed by a licensed veterinarian.

   Petitioner further asks that all owner-relinquished animals be held for the required four-day holding period mandated by law. Petitioner further asks that all feral cats be held for full four days (which is the length of time required for domestic cats) until the County can develop feral cat protocols, which would enable the County to administer such protocols and potentially could allow euthanasia after only three days.

   Petitioner further asks that the "drop bin" at Mojave be immediately closed and discontinued, as a violation of the law requiring a purported owner show proof of ownership at the time of relinquishment. Finally, Petitioner asks that any animal to be adopted by a member of the public must be spayed or neutered prior to adoption.

3. Standards in the Animal Control Industry

   Since passage of the Hayden and Vincent bills, the animal control industry in California has often discussed the proper procedures to follow. The industry standard at this time is confirmed by Nathan Winograd, a long-time animal control administrator, whose current job is to help animal shelters in California comply with the law. He confirms in the Declaration attached hereto that he is not aware of any shelter in California that euthanizes owner-relinquished animals on the first day of impoundment, because the law requires that these animals be held for four days, not counting the day of impoundment, as required by Food & Agricultural Code §31754 and §31108. Mr. Winograd further confirms that pursuant to Food and Agricultural Code §31752.5, any cats brought into a public or private shelter in California that are suspected as "feral" must be held for three days, not counting the date of impoundment. On the fourth day, shelter personnel are authorized by law to administer a temperament test, to determine if the cat is indeed feral, or a domestic cat that is simply frightened. Mr. Winograd confirms that animal shelters are bound by law to develop feral cat protocols to administer in such cases.

   Mr. Winograd confirms that pursuant to Food & Agricultural Code § 30503 and §31751.3, all animals must be spayed or neutered prior to adoption. Mr. Winograd confirms that shelters in California are very careful to follow this law, because it has helped control the unwanted animal population within their jurisdictions. All animal control facilities in California with which he is familiar follow this law.

   Finally, Mr. Winograd testifies that all personnel who perform euthanasia services are required to have the eight hours of euthanasia training under the California Euthanasia Training Guidelines, specifically Title 16, Section 2039 of the California Code of Regulations. It is, he notes, industry standard for all euthanasia technicians to have such training.

   Thus, the County cannot claim that these laws are not followed or are somehow unfair. The laws are in place, other animal control facilities follow the laws, and the County must be ordered to follow the laws as well.

4. This Court Has The Authority To Issue An Ex Parte Temporary Restraining Order In A Writ Proceeding

   Restraining orders and preliminary injunctions are appropriate in a writ of mandate proceeding (Camp v. Board of Supervisors (1981) 123 Cal. App. 3d 334, 356). The statutory provisions that provide for injunctive relief, C.C.P. §§525 to 534, apply equally to writ proceedings (C.C.P. §1109; Camp v. Board of Supervisors, supra, at 356).

5. The Requested TRO Should Be Granted Because the Test For Such Relief Is

   Clearly Met; The Laws In Question Are Clear and Unambiguous

   There are five matters before this Court. Each request for injunctive relief is based on the clear and unambiguous language of statute or, in the case of euthanasia training, a regulation.

   1. EUTHANASIA OF OWNER-RELINQUISHED ANIMALS CANNOT OCCUR BEFORE THE ANIMAL HAS BEEN IMPOUNDED FOR FOUR FULL DAYS

      Food and Agricultural Code §31754 states:

      "Except as provided in Section 17006, any animal relinquished by the purported owner that is of a species impounded by public or private shelters shall be held for the same holding periods, with the same requirements of care, applicable to stray dogs and cats in Sections 31108 and 31752, and shall be available for owner redemption or adoption for the entire holding period."

      This is not an ambiguous statement. The holding periods specified in Sections 31108 and 31752 state that a stray dog or cat must be held four days, not including the day of impoundment1. Animal Control's practice of euthanizing almost all owner-relinquished animals within the first 24 hours is in direct violation of statute. (See Declaration of KateNeiswender at ¶4(A))

   2. ANIMAL CONTROL CANNOT BE ALLOWED TO EUTHANIZE CATS SUSPECTED AS "FERAL" ON THE DATE OF IMPOUND, BUT MUST HOLD THEM FOR AT LEAST THREE DAYS, AND DEVELOP TEMPERAMENT PROTOCOLS

      Food and Agriculture Code §31752.5 states:

      "Notwithstanding Section 31752, if an apparently feral cat has not been reclaimed by its owner or caretaker within the first three days of the required holding period, shelter personnel qualified to verify the temperament of the animal shall verify whether it is feral or tame by using a standardized protocol. If the cat is determined to be docile or a frightened or difficult tame cat, the cat shall be held for the entire required holding period specified in Section 31752. If the cat is determined to be truly feral, the cat may be euthanized or relinquished to a nonprofit, as defined in Section 501 (c)(3) of the Internal Revenue Code, animal adoption organization that agrees to the spaying or neutering of the cat if it has not already been spayed or neutered. In addition to any required spay or neuter deposit, the pound or shelter, at its discretion, may assess a fee, not to exceed the standard adoption fee, for the animal released."

      The import of this section is that a truly feral cat may be euthanized after only three days, not the four days required by law, if a feral cat protocol is adopted and the animal is tested.

      In contrast, the County euthanizes all cats brought in as "feral" within 24 hours of impoundment, does not hold the animal for an owner, has not adopted and does not have feral cat protocols, and does not release feral cats to rescue organizations (see Declaration of Kate Neiswender at ¶4(B)).

   3. THE COUNTY MUST IMMEDIATELY BE ENJOINED FROM ADOPTING OUT ANIMALS BEFORE SPAYING AND NEUTERING

      Food & Agricultural Code § 30503 and §31751.3 require all animals to be spayed or neutered prior to adoption:

      31751.3

      1. Except as otherwise provided in subdivision (b), no public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall sell or give away to a new owner any cat that has not been spayed or neutered.

      The section regarding dogs reads:

      1. Except as otherwise provided in subdivision (b), no public animal control agency or shelter, society for the prevention of cruelty to animals shelter, humane society shelter, or rescue group shall sell or give away to a new owner any dog that has not been spayed or neutered.

      The only exceptions in these sections concern counties with populations of less than 100,000 and working with rescue groups. Kern County has a population of more than 713,000, according to the latest County estimates. The other exception has to do with adopting out animals to non-profit animal rescue organizations. This case will present a clear history of Animal Control's problems in working with rescue, which is also a violation of state law, but that issue will be saved for trial in this matter.

      The County has no record of medical treatment, showing the spaying or neutering of any of the animals adopted out to the public (see Declaration of Kate Neiswender at ¶4(C)). In addition, a number of citizens have adopted animals from the County, and none were spayed or neutered (See Declarations of Judith Lotz, Patricia Lock, Judith Orr and Ursula Sauthier).

   4. THE COUNTY'S USE OF AN AFTER-HOURS "DROP BIN" IS ILLEGAL UNDER FOOD AND AGRICULTURAL CODE §31108.5 AND §31752.2

      The language of these sections prohibits the use of a drop bin, because the code mandates the County obtain "proof of ownership" from a purported owner before accepting an owner-relinquished animal. Section 31108.5 reads:

      1. 1. Upon relinquishment of a dog to a public or private shelter, the owner of that dog shall present sufficient identification to establish his or her ownership of the dog and shall sign a statement that he or she is the lawful owner of the dog.

      The section addressing cats is 31752.2:

      1. Upon relinquishment of a cat to a public or private shelter, the owner of that cat shall present sufficient identification to establish his or her ownership of the cat and shall sign a statement that he or she is the lawful owner of the cat.

      It is grossly inconsistent with these sections to allow an after hours "drop bin."

      In addition, there is testimony from citizens that the drop bin is utilized for "sport." Reports have surfaced that people will drop a cat into a bin containing a dog, and shelter personnel have told rescue organizations that dead cats and "pieces of cats" have been found in the bins in the morning, with aggressive dogs. This practice must be stopped immediately. (See Declarations of Ursula Sauthier and Sherry Meddick).

   5. THE COUNTY CANNOT BE ALLOWED TO HAVE UNTRAINED PERSONNEL ADMINISTERING EUTHANASIA IN VIOLATION OF STATE REGULATIONS

      Title 16, §2039 (a) of the California Code of Regulations reads as follows:

      1. In accordance with section 4827(d) of the Code, an employee of an animal control shelter or humane society and its agencies who is not a veterinarian or registered veterinary technician (RVT) shall be deemed to have received proper training to administer, without the presence of a veterinarian, sodium pentobarbital for euthanasia of sick, injured, homeless or unwanted domestic pets or animals if the person has completed a curriculum of at least eight (8) hours as specified in the publication by the California Animal Control Directors Association and the State Humane Association of California entitled "Euthanasia Training Curriculum" dated October 24, 1997, that includes the following subjects:
         1. History and reasons for euthanasia

         2. Humane animal restraint techniques

         3. Sodium pentobarbital injection methods and procedures

         4. Verification of death

         5. Safety training and stress management for personnel

         6. Record keeping and regulation compliance for sodium pentobarbital

         "At least five (5) hours of the curriculum shall consist of hands-on training in humane animal restraint techniques and sodium pentobarbital injection procedures."

   Kern County has no records showing that any of their vet techs have this training. Head of Animal Control Services admitted to Petitioner's counsel, Kate Neiswender, that none of his technicians have had the training, with the exception of one, and he could not locate any documentation proving the training had occurred (see Declaration of Kate Neiswender at ¶4(D)).

   The rationale behind this regulation is based on the humaneness of euthanasia. If an animal is old or sick, or if it is very young, the veins are hard to locate. If an animal is injected with Euthanol, but not in a vein, the animal can take a long time to die and it is very painful.

6. Why A Temporary Restraining Order Must Issue At This Time Petitioner has prepare a Motion for Preliminary Injunction, but in the few weeks that it will take for a notice motion to be heard, more than one thousand animals will die in Kern County shelters, some of them unnecessarily. Kern County euthanizes approximately 20,000 animals per year, more than 75% of the animals that come through its doors.

   There are three criteria for injunctive relief: (1) irreparable harm will occur if relief is not granted; (2) no other adequate remedy at law is possible; and (3) Petitioner will likely prevail on the merits of the case. All criteria are met in this case.

   1. Irreparable Injury: Animals Are Dying Needlessly And In Violation of Law

      The reasons behind these laws are simple: these laws were intended to create an atmosphere in which more animals were adopted, in which lost animals had a better chance of being reunited with their owners, and in which fewer animals were released to the public to create unwanted litters of puppies and kittens. Following these laws help increase adoptions, increase the number of lost animals reunited with owners, decrease the number of unwanted litters, and decrease the number of animals euthanized. By failing to follow these laws, Kern County is killing more animals every day that need not be euthanized, and lowering or eliminating the chances of some owners to ever see their lost animals again. The County's actions harm not only the companion animals within their care, but the owners of these animals as well.

      The attached Declaration of Taimie Bryant describes the process that was followed in 1998 to get these laws passed. Professor Bryant is a professor of law at the University of California at Los Angeles, and helped Senator Tom Hayden draft SB 1785. She explains that SB 1785 was the result of extensive study.

      For example, in Los Angeles in 1998, there were a half-dozen shelters to which a lost animal could be taken. However, the County kept "banker's hours," and often closed at the same time an average person got off work. If a person could not search the shelters during the business day, then his pet could be killed before he had a chance to look. Therefore, the law was changed so that a shelter had to keep an animal for six days if it stayed open only during the day; if it kept "worker-friendly" hours (evenings and weekends), it needed to keep an animal only four days.

      The story of "owner relinquished" animals was often one of revenge and bitterness. It was determined that in Los Angeles, up to 25% of the animals turned in to shelters by "owners" were turned in by ex-spouses, unfriendly neighbors, or those bent on revenge. Thus, the requirement was imposed of keeping owner relinquished animals for the same length of time as strays, and requiring a purported owner to provide proof of ownership.

      The reasoning behind the Vincent bill is obvious: if an animal is released to the public already spayed or neutered, then it will not produce litters of unwanted animals, refilling the shelters in the future. Studies in the past few years in compliant jurisdictions have revealed that the strategy is working. Fewer puppies and kittens are being turned into the shelters.

      Another piece of the Hayden bill required shelters to work with non-profit rescue organizations, to keep adoption and lost-found posting current, and to check for micro-chip tagging of stray animals.

      Professor Bryant testifies that Hayden and Vincent bills presented a comprehensive strategy for animal care and control, in which the owners of lost animals were vigorously sought; in which adoptable animals were made available to the public and rescue organizations in an organized and friendly fashion; and in which animals adopted out to the public were spayed or neutered before leaving the shelters. The more animals that are adopted out, the higher the revenue to the shelters. The cost of euthanizing an animal, for example, is a significantly higher cost to a jurisdiction that if that animal is adopted out.

      Thus, for each day of delay, the County of Kern is losing revenue. Animals are being needlessly killed. Animal Control euthanizes approximately 20,000 animals a year. Thus, for each month this matter is not resolved, more than 1,500 cats and dogs will be killed... some of which could have been reunited with their owners, some of which could have been adopted. This is a species of "irreparable injury" that affects both humans and their animals, as well as the County's revenue stream.

      "Irreparable injury" has been defined as "that species of damages, whether great or small, that ought not to submitted to on the one hand or inflicted on the other." (Anderson v. Souza (1952) 38 Cal. 2d 825.) The concept of "irreparable injury" is inextricably linked to the inadequacy of any legal remedy open to the injured party; an injunction should issue only if the legal remedy (i.e., damages) does not afford adequate relief or is difficult to ascertain (Thayer Plymouth Center, Inc. v. Chrysler Motors Corp. (1967) 255 Cal.App. 2d 300.)

      In environmental cases, irreparable injury is almost always found when construction will destroy that which a petitioner seeks to preserve. Certainly, destruction of hundreds of cats and dogs is analogous to the destruction of wildlife habitat (see, e.g., San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal. App. 4th 713, 741).

   2. There Is No Other Remedy Available At Law

      Clearly, the imposition of damages will not solve this problem. In fact, this Petition does not seek damages, only injunctive relief. Death cannot be reversed by a court of law. The only remedy available is an injunction.

   3. Petitioner Is Likely To Prevail On The Merits Petitioner has presented an overwhelming case showing the County has failed to comply with the Food and Agricultural Code. The County cannot deny its own records, records produced pursuant to a Public Records Act request, and showing the precise violations of law alleged herein.

7. Conclusion

   For the reasons stated herein, Petitioner asks this Court to issue an injunction, as follows:

   1. For an injunction, mandating the County hold all owner relinquished animals for four days, not counting the day of impoundment;

   2. For an injunction, mandating the County hold all cats brought into its shelters for four days, and if the County wishes to euthanize cats suspected as"feral," then the County must develop feral cat protocols;

   3. For an injunction, mandating the County immediately begin spaying or neutering of every animal adopted out to the general public, with exceptions only for rescue organizations as allowed by law;

   4. For an injunction, eliminating the after-hours "drop bin" at the Mojave shelter forthwith;

   5. For an injunction, prohibiting the euthanasia of any animal by any Kern County employee unless he or she can provide this court with proof of eight hours of training under California Euthanasia Training Guidelines, or unless the procedure is administered by a licensed veterinarian.

Dated: October ____, 2004 ____________________________

KATE M. NEISWENDER

Attorney for Petitioners

Top

I, KATE M. NEISWENDER, declare and state as follows:

1. I am the attorney representing the Petitioner in this matter. I have personal knowledge of the facts contained herein, and if called upon could and would testify competently thereto.

2. On September 3, 2004, I faxed and mailed a Public Records Act request to Kern County Environmental Health Services, Animal Services Control Division, a true and correct of which is attached hereto. I asked for impoundment and euthanasia records for all animals in the County's shelters for the period 2002 to the present.

3. I was contacted by Matt Constantine, who is the apparent head of that department. He asked for additional time to comply. On September 27, 2004, he mailed me a letter, telling me that the records were available for inspection; the letter did not reach me until Friday, October 1, 2004 and I made an appointment to see Mr. Constantine on Monday, October 11, 2004. Mr. Constantine informed me that he did not have records for the Lake Isabella and Ridgecrest shelters, but that the records he produced were complete and accurate for the Bakersfield and Mojave shelters.

4. I inspected the records on that date, and determined as follows:
   1. REGARDING EUTHANASIA OF OWNER-RELINQUISHED ANIMALS: I randomly checked County records for each and every month for the years 2002, 2003 and 2004. In each month, I found owner-relinquished animals who were killed within 24 hours of impoundment. To be certain of the pattern and practice, I looked at every entry for April 1-7, 2004 and July 21-28, 2004. I discovered that almost every owner-relinquished animal was killed within 24 hours of impoundment. In a rare instance, an owner-relinquished animal was kept longer than one day, and was adopted. I have attached highlighted excerpts of records for 2002, 2003 and 2004. The actual records are so voluminous that it would not be practical to attach them, but the records are available.

   2. REGARDING EUTHANASIA OF FERAL CATS: I randomly checked County records for each and every month for the years 2002, 2003 and 2004. In each month, almost all feral cats were killed within 24 hours of impoundment. On a rare occasion, a feral was kept longer than 24 hours, but they were always euthanized before the end of the mandatory four day holding period. To be certain of the pattern and practice, I looked at every entry for April 1-7, 2004 and July 21-28, 2004. I discovered that every feral cat was euthanized before the end of the holding period, except for a handful of animals who escaped. None was adopted. I have attached highlighted excerpts of records for 2002, 2003 and 2004. The actual records are so voluminous that it would not be practical to attach them, but the records are available.

   3. THERE IS NO RECORD OF SPAYING OR NEUTERING: The medical records provided by the County do not include any evidence of spaying or neutering of animals prior to adoption, in violation of the Vincent Bill. The requirements for prompt and necessary medical care are in the code, but do not appear to be part of the County's practices; this issue will be addressed at trial.

   4. THERE IS NO RECORD OF EUTHANASIA TRAINING: The law requires eight hours of euthanasia training. Although I asked for such information, no such records were provided. I asked Matt Constantine about this. He told me that one of his technicians had the training, but they could not find the proof. The other technicians did not have the training.

5. The records were copied that day (October 11, 2004) by Attorney Diversified Services, and delivered to me on October 22, 2004. A complete copy of the records can be made available for the court's inspection. I have attached only excerpts of records, with highlighting. The County delivered its records to me in a format that shows intake date on one set of records, but euthanasia dates on another set of records. Thus, in order to determine when an animal was impounded and euthanized, you have to match the Impound Number (always beginning with the letter"A") to the euthanasia records.

I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed this 23rd day of October 2004, at Ventura, California.

_______________________________

KATE M. NEISWENDER

Top

I, NATHAN WINOGRAD, declare and state as follows:

1. I am the former director of operations at the San Francisco SPCA, an organization that handles thousands of animals each year in the City and County of San Francisco. After that, I was head of operations at the Tompkins County (New York) animal shelter. I currently work as a consultant to animal shelters in the state of California and the country, helping these facilities comply with the law, increase their adoption rates, and lower their euthanasia rates. I have personal knowledge of all facts contained herein, and if called upon could and would testify competently thereto

2. I have five years experience in animal control, and am very familiar with the laws and regulations that govern public shelters in California. In 1998, two significant bills were passed by the Legislature, that affected the manner in which the animal control industry did business. I was involved in the implementation of those bills, and - since the passage of the bills - I have worked closely with the authors, the legislature, and animal control lobbyists in Sacramento to formulate a comprehensive strategy for improving animal control operations in the State of California. Since passage of the so-called Hayden Law (Senate Bill 1785) and the Vincent Bill (AB 1856), people within the animal control industry in California have often discussed with me the proper procedures to follow.

3. The industry standard at this time is well-established. For example, shelters in California do not euthanize owner-relinquished animals on the first day of impoundment, but instead holds the animals for four days, not counting the day of impoundment, as required by Food & Agricultural Code §31108 and §31754. Pursuant to Food and Agricultural Code §31752.5, any cats brought into a public or private shelter suspected as "feral" must be held for three days, not counting the date of impoundment. If a shelter wants to euthanize a cat before the end of the usual four-day holding period, shelter personnel are authorized by law to administer a temperament test, to determine if the cat is indeed feral, or a domestic cat that is simply frightened. In my current job, I work closely with numerous animal control facilities in California; all of them follow these laws. There is no dispute in the industry whether these laws need to be followed.

4. Pursuant to Food & Agricultural Code § 30503 and §31751.3, all animals must be spayed or neutered prior to adoption. The shelters with which I work are meticulous in following this rule, because it has helped control the unwanted animal population within their jurisdiction. In a County with a population in excess of 100,000, there is no dispute in the animal control industry that an animal must be spayed or neutered prior to adoption, unless the animal is too young, or if there is a medical problem.

5. All of the personnel who perform euthanasia services are required to have the eight hours of euthanasia training under the California Euthanasia Training Guidelines, specifically Title 16, Section 2039 of the California Code of Regulations. It is industry standard for all euthanasia technicians to have such training. Again, in my new position, I work closely with numerous animal control facilities in California; all of them follow this law.

I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct.

Dated: October ___, 2004 ____________________________

NATHAN WINOGRAD

Top

voice: 805.649-5575
fax: 805.649.8188
e-mail: kmn@inreach.com

November 11, 2004

Mark Nations
Kern County Counsel's Office
1115 Truxton Ave.
Bakersfield CA 93301

Re: Lock v. County of Kern (Kern County Case No. 254024)
County Refusal To Take In Stray and Abandoned Animals

By Facsimile and U.S. Mail: 661-868-3805

Dear Mr. Nations:

I have received word from my client that County Animal Control Director Matt Constantine has announced that County Shelters will no longer accept more than 36 dogs and 11 cats per day, which is approximately half of the usual number of strays received by the shelter in any given day. This is most troubling.

According to Food & Agricultural Code §31105, the County shall provide for the "taking up and impounding of all dogs which are found running at large in violation of any provision of this division."

Furthermore, in Civil Code §1815(c), an "involuntary deposit" is made "By the delivery to, or picking up by, and the holding of, a stray live animal by any person or public or private entity." Under §1816 (b), "A public agency or shelter with whom a thing is deposited in the manner described in Section 1815 is bound to take charge of it, as provided in Section 597.1 of the Penal Code."

Thus, it is beyond comprehension that Mr. Constantine thinks that he can simply stop following state law on the taking up and caring for stray and abandoned animals, simply because he has been ordered to comply with the holding periods mandated by law. State law is not a buffet line. Mr. Constantine cannot decide which laws he wants to follow.

His actions appear to be a back-door attack on the judge's order. I do not want to jump to conclusions. Please either confirm or deny Mr. Constantine's actions. If he has indeed decided to stop accepting stray and abandoned animals, then we will file for ex parte relief with the court.

Sincerely,

Kate M. Neiswender

Top

Following the Judge's Order at the Temporary Restraining Order that Kern County follow the laws they have continued to ignore for the past five years, KCAC tried yet another (illegal) tactic and began turning away stray animals brought to the shelter.

In one horrifying instance, a man trying to turn in a feral cat he had trapped who was turned away from the shelter. The man let the cat go in a nearby field, where it was attacked and badly injured by hawks.

Both Matt Constantine and his supervisor Steve McCalley told reporters that KCAC had no mandate to take in strays, showing a bizarre lack of knowledge of the laws that these two people in charge of Animal Control in Kern County have.

Kern County Counsel Nations was adamant that the County would follow the laws and would not turn away dogs and cats; that they were scrambling to gather cages and pens together to deal with this crisis, while Matt Constantine ordered the shelters to turn them away, which was witnessed by the news media.

While the shelters were turning animals away, there were dozens of empty cages in the one dog building at Bakersfield that is accessable to the public. A visitor asked why only five dogs were available for adoption, and was told that only these five had passed temperament testing. The person who does the temperament testing is not expected to be available until late next week, which means all animals whose time is up before then can expect to die also, rather than only the approximately 90% or so who routinely apparently don't pass the temperament test.

In his own declaration, Matthew Constantine stated that they began spending money to comply with the Hayden Law five years ago, which extended the holding period for stray animals from three to four days. He claims they spent $500,000 to $600,000 to expand the Bakersfield Shelter, which has been finished since 2001.

He further states that KCAC has expended $600,000 to $800,000 to comply with the Hayden and Vincent mandates, contracting for spay and neuter (which is not done at the Mojave shelter), trained employees (although a rush to train all employees within 30 days to be certified in euthanasia was begun upon Court Order), paid shift differentials and hired more staff, (although he states that the new building remained vacant due to lack of funds to staff it) "and incurred many other expenses attempting to comply with the Hayden Law and the Vincent Bill"- which KCAC records show in no way have been complied with. He further states that he estimates another $40,000-$60,000 will be spent in 2004-2005 for compliance. In what way we can't imagine.

He states, as did the County Counsel in court, that no money has been received from the state as reimbursement for the money the County spent to comply with the new laws; however when questioned in court, Counsel admitted that the County had never asked the State for reimbursement.

So, since 2001, all of the additional space at the county shelter has been empty? Not at all. When the City of Bakersfield and the SPCA came to an inability to resolve their contract in 2003, KCAC stepped in and gave the extra space to the City of Bakersfield- for a price of course. This was not an obligation by the County; this was a choice.

Since they were already unable to meet their current duties, it seems absurd that they would take on anything else. Probably this extra money went to provide veterinary care for impounded animals, spay and neuter programs at Mojave, coordinating with rescue groups and volunteers to improve adoptions of animals? Not at all. Where did it go?

According to Matt Constantine, it appears very little money has actually been spent for compliance with these state mandates in over five years, and I am sure the State of California will see it the same way, leaving Kern County short of money they badly need. Kern County Animal Control has effectively thumbed their noses at the law, as they now are doing with the Superior Court Judges' Orders.

What happens to citizens when they flagrantly defy the law? Try it and see.

Pattie Lock ( pattie @ ShelterWatch.com )
Plaintiff
Lock vs. County of Kern
http://www.ShelterWatch.com
Find a new friend for Life
http://www.amrt.net

Top