Caru Society for the Prevention etc. v. Anthony CA1/5

Filed 6/7/22 Caru Society for the Prevention etc. v. Anthony CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

CARU SOCIETY FOR THE
PREVENTION OF CRUELTY TO
ANIMALS, A160487, A161683
Plaintiff and Respondent,
v. (Solano County
SUSAN B. ANTHONY, Super. Ct. No. FCS049705)

Defendant and Appellant.

This is a consolidated appeal by defendant Susan B. Anthony from final
judgment after the trial court granted the summary judgment motion of
plaintiff Caru Society for the Prevention of Cruelty to Animals (Caru).
Defendant challenges this judgment on the grounds that (1) Caru lacked
standing to sue, (2) the trial court erred by granting Caru’s motion to deem
matters admitted and then refusing to set aside its decision, (3) the court
erred in entering summary judgment for Caru, and (4) the awards of
declaratory and injunctive relief were unauthorized and overbroad. We agree
the injunctive relief award is overbroad and must be modified. Otherwise, we
affirm.

1
 FACTUAL AND PROCEDURAL BACKGROUND
Defendant owns and operates a business called California Carolina
Dogs from her residential property in Vallejo.1 Caru is a society for the
prevention of cruelty to animals (SPCA) registered as a nonprofit public
benefit corporation with a principal office in Sonoma County.2
On October 5, 2017, Caru filed a complaint against defendant asserting
one cause of action under Corporations Code section 10404. This law
authorizes an SPCA such as Caru to bring a complaint against a person for
violating “any law relating to or affecting animals . . . .” (Corp. Code,
§ 10404.) Caru sought injunctive and declaratory relief.
According to Caru’s complaint, defendant violated various state and
local laws governing the health and safety of dogs between September 2015
and May 31, 2017. Defendant’s alleged violations included breeding dogs in
unsanitary conditions (Polanco–Lockyer Pet Breeder Warranty Act (Health &
Saf. Code, § 122045 et seq.)); permitting dogs to disturb the peace (Vallejo
Municipal Code (VMC), § 7.36.020); permitting dogs to run at large (VMC,
§ 7.24.010); maintaining more than four dogs at a time on her residential
property (VMC, § 7.04.30); exceeding maximum lot coverage for her dog
breeding operation (VMC, § 16.14.060); and exceeding the maximum fence
size on her property to conceal her dog breeding operation (VMC,
§ 16.70.060(F)).
Records obtained by Caru showed that, on May 23, 2017, defendant
received an administrative warning notice from the City of Vallejo identifying

Defendant is one of the few keepers of the Carolina dog breed on the
1

West Coast.
2 Caru was known as the Animal Legal Defense Fund Cruelty
Prevention Unit until it filed amended and restated articles of incorporation
shortly before this action was commenced.

2
certain required corrective actions on her property, including lowering the
fence height to 3.5 feet, removing accessory structures to comply with the
50-percent maximum lot coverage requirement, and finding a new location to
breed and sell dogs. Other law enforcement records showed that at various
times since 2015, officers or witnesses reported the following: (1) “at least 50
dogs [were] left” on defendant’s property, (2) “about 20 dogs [were visible]
through the fence,” and (3) “at least 10 adult dogs” were living on her
property. Defendant was cited at least twice for having too many dogs on her
property. Officers and witnesses also reported heavy urine and feces smells
emanating from the property, excessive barking, and dogs running at large.
On March 21, 2018, Caru successfully moved for a preliminary
injunction barring defendant from “owning, driving, keeping, possessing or
having charge or custody of any dog until final determination is reached in
this case.” With its motion, Caru offered a declaration from forensic
veterinarian Dr. Melinda Merck. Dr. Merck attested that the law
enforcement records showed “an extended and consistent history of
unsanitary conditions, over-crowding and improper housing resulting in
several reports of dogs at large.” She explained these conditions placed dogs
at risk for eye and nose irritations, parasites, stress, fighting, inadequate
food, and poor socialization leading to a slew of behavioral problems.
Dr. Merck thus opined “[defendant] cannot be trusted to have any dogs”
because she subjects them to “egregious conditions that are detrimental to
their health and overall well-being.” (Boldface omitted.)
At her November 2018 deposition, defendant admitted still keeping
about 14 dogs on her property, contrary to the terms of the preliminary
injunction.

3
 On February 11, 2019, Caru moved for summary judgment. After a
contested hearing, the court ruled summary judgment was inappropriate
because several legal issues remained in the cause of action. However, the
court found Caru had established as a matter of law that defendant violated
multiple VMC provisions. Caru therefore moved for summary adjudication
as to defendant’s violations of these provisions.
On November 14, 2019, Caru served defendant numerous requests for
admissions (RFA). After defendant failed to serve timely responses to these
RFA’s, and with a looming trial date, Caru moved to deem matters admitted
and for monetary sanctions.3
On December 31, 2019, the trial court granted both Caru’s motion for
summary adjudication and Caru’s motion to deem the RFA’s admitted. It
also imposed $850 in sanctions against defendant for her noncompliance with
discovery rules. Based on these rulings, the court found as a matter of law
that (1) Caru had standing to bring this action under Corporations Code
sections 10400 and 10404; and (2) defendant violated VMC provisions
restricting the maximum number of dogs on her property, requiring her to
use a leash or restraint when taking the dogs out in a public place,
prohibiting habitual barking and other disturbances of the peace of others,
restricting lot coverage to a maximum of 50 percent, and limiting fence
height to a maximum of 3.5 feet.
These legal findings prompted Caru to file a renewed motion for
summary judgment to dispose of any remaining issue. Caru argued that in
light of the deemed admissions there were no remaining triable issues of

3 Defendant had already been ordered to pay $2,500 in sanctions based
on her failure to comply with the court’s order compelling further responses
without objections to Caru’s written discovery requests.

4
disputed facts. Defendant, in turn, moved to set aside the order to deem
matters admitted. On June 2, 2020, the court heard the motions
concurrently. Afterward, the court granted Caru’s motion and denied
defendant’s motion.
On November 17, 2020, the court entered final judgment in Caru’s
favor and a permanent injunction against defendant. Under this permanent
injunction, defendant was enjoined from “owning, driving, keeping,
possessing, or having charge or custody of any dog indefinitely until good
cause is shown that this order should be modified.” The court also granted
Caru “full ownership and custody over all dogs, including unborn ones, which
are under the ownership, possession, charge, or custody of Defendant,”
including “the right for [Caru] to take custody of the dogs and transfer them
to other rescues or adopters.”4 On December 2, 2020, defendant filed a timely
notice of appeal.

4 The court’s permanent injunction further states: “In order to
facilitate Caru SPCA taking ownership and custody of the dogs, it is further
ordered that:
“a. Defendant must disclose to Caru SPCA, under penalty of perjury
and within seventy-two (72) hours of receiving notice of this Order, a census
of all dogs owned, kept, possessed, or in the charge or custody of Defendant as
of the day the Order is signed, including each dog’s: name, microchip number,
description, legal owner(s), location, age, sex, pregnancy status, spay or
neuter status, known health or behavioral issues, vaccinations, and any
current medications. The duty to provide Caru SPCA a current census is
continuous, and Defendant must supplement the census within seventy-two
(72) hours after any change in ownership, keeping, possession, charge, or
custody of dogs occurs.
“b. Caru SPCA and its agents are authorized to enter the lands,
shelters, and structures on Defendant’s properties to take custody of all dogs
that Caru SPCA is legally entitled to take by entering any of Defendant’s
properties . . . .
“c. Caru SPCA and its agents arc authorized to document, by
photographic and audiovisual means, the removal of dogs from Defendant’s

5
 DISCUSSION
Defendant argues on appeal that: (1) Caru lacks standing under
Corporations Code section 14502 to enforce the prevention of cruelty to
animals statute (Corp. Code, § 10404); (2) the trial court abused its discretion
in granting Caru’s motion to deem matters admitted and denying her
subsequent motion to set aside the ruling; (3) the trial court erroneously
granted summary judgment in Caru’s favor; and (4) the declaratory and/or
injunctive relief ordered by the trial court was unauthorized and overbroad.
We address each issue in turn.
I. Standing.
Defendant argues Caru lacked standing to bring this lawsuit because
“[o]nly humane officers [and not SPCA’s] have standing to pursue a private
right of action in civil court.” (Initial capitalization and boldface omitted.)
Defendant is mistaken.
Standing is a threshold jurisdictional issue, without which “ ‘no
justiciable controversy exists.’ ” (Saterbak v. JPMorgan Chase Bank, N.A.
(2016) 245 Cal.App.4th 808, 813.) Standing is a question of law reviewed
de novo on appeal. (Bilafer v. Bilafer (2008) 161 Cal.App.4th 363, 368.)
The basis for Caru’s sole cause of action is Corporations Code section
10404, which provides: “Any such corporation [organized as an SPCA under

properties, provided that any photos and videos taken of the Defendant’s real
property pursuant to this Order may not be publicly disseminated so as to
protect Defendant’s privacy.
“d. Defendant is required to be present at the specified properties with
twenty-four (24) hour notice from Caru SPCA and must cooperate with Caru
SPCA or its agents in taking custody of Defendant’s dogs.
“e. Solano County Sheriff’s Office is authorized, and is hereby
requested, to assist with a Civil Standby by being present and entering
Defendant’s properties when Caru SPCA’s [sic] or its agents take custody of
the dogs.”

6
Corporations Code section 10400 5], or humane officer thereof, may proffer a
complaint against any person, before any court or magistrate having
jurisdiction, for the violation of any law relating to or affecting animals and
may aid in the prosecution of the offender before the court or magistrate.”
(Italics added.) On its face, this statute authorizes an SPCA such as Caru or,
alternatively, a humane officer of an SPCA to bring a complaint such as this
one for violations of state and local laws enacted for the protection of animals.
(See Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 142–
143 [“Since 1905, California has authorized the formation of corporations for
the prevention of cruelty to animals. ([Citation]; see also Stats. 1947, ch.
1038, § 10404, p. 2423, enacting Corp. Code, § 10400.) Such a corporation
(hereafter section § [sic] corporations) ‘may prefer [sic] a complaint against
any person, before any court or magistrate having jurisdiction, for the
violation of any law relating to or affecting . . . animals, and may aid in the
prosecution of any such offender before such court or magistrate’ ”].)
Defendant responds, “To invoke the benefits of Corporations Code
section 10404 standing, Respondent must follow all of the requirements of
the comprehensive statutory scheme,” which includes appointing a humane
officer. According to defendant, only a humane officer appointed under

5 Corporations Code section 10400 provides: “Corporations for the
prevention of cruelty to animals may be formed under the Nonprofit Public
Benefit Corporation Law (Part 2 (commencing with Section 5110)) by 20 or
more persons, who shall be citizens and residents of this state. If the
corporation is formed on or after January 11, 2011, its articles of
incorporation shall specifically state that the corporation is being formed
pursuant to this section.” Defendant does not dispute Caru is a corporation
for the prevention of cruelty to animals meeting these statutory
requirements.

7
Corporations Code section 14502 is authorized to enforce laws for the
prevention of cruelty to animals. She is again mistaken.
Corporations Code section 14502, subdivision (a)(1)(A)(i) provides that
“no entity, other than a humane society or [SPCA], shall be eligible to
petition for confirmation of an appointment of any individual as a humane
officer, the duty of which shall be the enforcement of the laws for the
prevention of cruelty to animals.” This provision also sets forth what is
required for an individual to be appointed as and to perform the duties of a
humane officer. (Corp. Code, § 14502.) As defendant notes, Corporations
Code section 14504 mandates, “All humane societies and societies for the
prevention of cruelty to animals, and all humane officers, shall be in full
compliance with Section 14502 on or before January 1, 2012.”
By its clear language, this statutory scheme authorizes an SPCA to
appoint a humane officer whose duty “shall be the enforcement of the laws for
the prevention of cruelty to animals,” and requires such officers to meet
certain requirements. However, contrary to defendant’s claim, there is no
language in these statutes requiring an SPCA to appoint a humane officer,
much less language precluding an SPCA that does not appoint such officer
from proffering a complaint against an individual for violating laws relating
to or affecting animals under Corporations Code section 10404. (See Animal
Legal Defense Fund v. California Exposition & State Fairs (2015) 239
Cal.App.4th 1286, 1296 (California Exposition) [“ ‘the Corporations Code and
the Penal Code [Pen. Code, §§ 596–5996] provide for extensive regulation and
empowerment of section 10400 corporations and humane officers’ ” to enforce

Penal Code sections 596 to 599 criminalize various forms of cruel or
6

inhumane treatment of animals.

8
California’s laws for the prevention of cruelty to animals].)7 Defendant’s
standing challenge thus fails. “Where, as here, ‘the statutory language is
clear and unambiguous, our task is at an end, for there is no need for judicial
construction.’ ” (Kahan v. City of Richmond (2019) 35 Cal.App.5th 721, 732.)
II. Caru’s Motion to Deem Matters Admitted.
Defendant challenges as abuses of discretion the trial court’s grant of
Caru’s motion to deem matters admitted and subsequent denial of her motion
to set aside the ruling. These challenges fail.
A. The trial court properly granted Caru’s motion to deem
matters admitted.
The order granting Caru’s motion to deem matters admitted can only
be overturned if the court abused its discretion. (Save Open Space Santa
Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235, 245–246,
overturned on another point in Williams v. Superior Court (2017) 3 Cal.5th
531, 557, fn. 8.) “ ‘Where there is a basis for the trial court’s ruling and the
evidence supports it, a reviewing court will not substitute its opinion for that
of the trial court. [Citation.]’ [Citation.] The trial court’s determination will
be set aside only when it has been established that there was no legal
justification for the order granting or denying the discovery in question.”

7 In California Exposition, the reviewing court held that a taxpayer
action under Code of Civil Procedure section 526a was not an available
remedy to enforce animal cruelty laws (Pen. Code, §§ 597, 597t) relating to
the treatment of pregnant pigs displayed at the state fair. (California
Exposition, supra, 239 Cal.App.4th at pp. 1295, 1298.) Pointing to the
“detailed legislative scheme” under Penal Code section 599a and
Corporations Code section 10404 and 14502, the court concluded “the
Legislature intended the enforcement mechanisms it established—and the
entities in whom it entrusted such enforcement—to be the exclusive
mechanisms for, and entities charged with, such enforcement.” (California
Exposition, at pp. 1296–1298, 1301.)

9
(Ibid.) The burden rests on defendant, as the complaining party, to
demonstrate from the record that such an abuse has occurred. (Forthmann v.
Boyer (2002) 97 Cal.App.4th 977, 984–985.)
In applying these rules, we keep in mind that “trial courts issuing
discovery orders and appellate courts reviewing those orders should do so
with the prodiscovery policies of the statutory scheme firmly in mind. A trial
court must be mindful of the Legislature’s preference for discovery over trial
by surprise, must construe the facts before it liberally in favor of discovery,
may not use its discretion to extend the limits on discovery beyond those
authorized by the Legislature, and should prefer partial to outright denials of
discovery. [Citation.] A reviewing court may not use the abuse of discretion
standard to shield discovery orders that fall short: ‘Any record which
indicates a failure to give adequate consideration to these concepts is subject
to the attack of abuse of discretion, regardless of the fact that the order shows
no such abuse on its face.’ ” (Williams v. Superior Court (2017) 3 Cal.5th
531, 540.)
“ ‘ “[T]he purpose of the admissions procedure . . . is to limit the triable
issues and spare the parties the burden and expense of litigating undisputed
issues.” Sometimes, the admissions obtained will even leave the party
making them vulnerable to summary judgment.’ (1 Hogan & Weber, Cal.
Civil Discovery (2d ed. 2005) § 9.1, p. 9-2, fns. omitted, quoting Shepard &
Morgan v. Lee & Daniel, Inc. (1982) 31 Cal.3d 256, 261 [citations].) Matters
that are admitted or deemed admitted through RFA discovery devices are
conclusively established in the litigation and are not subject to being
contested through contradictory evidence. [Citation.]” (St. Mary v. Superior
Court (2014) 223 Cal.App.4th 762, 775 (St. Mary).)

10
 Defendant claims the court abused its discretion in granting Caru’s
motion because (1) the motion was untimely due to lack of notice of the
February 4, 2020 hearing date and (2) she served responses to the RFA’s
before the February 4, 2020 hearing commenced.8 The following law governs.
“Unless the responding party moves promptly for a protective order
under [Code of Civil Procedure] section 2033.080, he or she, within 30 days of
service of the RFAs ([Code Civ. Proc.,] § 2033.250), shall respond in writing
under oath and separately to each RFA ([Code Civ. Proc.,] § 2033.210, subd.
(a)) and ‘shall answer the substance of the requested admission, or set forth
an objection to the particular request’ (id., subd. (b)).” (St. Mary, supra, 223
Cal.App.4th at p. 774.) If timely responses are not served, the propounding
party may move to have RFA’s to which timely responses are not received
deemed admitted. (Id. at pp. 775–776.) However, “a responding party’s
service, prior to the hearing on the ‘deemed admitted’ motion, of substantially
compliant responses, will defeat a propounding party’s attempt under [Code
of Civil Procedure] section 2033.280 to have the RFAs deemed admitted.” (Id.
at p. 776.)
1. Defendant had actual and constructive notice of the
February 4, 2020 hearing date.
On December 31, 2019, Caru moved to deem matters in the RFA’s
admitted. On the same day, Caru filed and served an ex parte application for
an order shortening the time to hear the motion given that the trial date was
then set for January 15, 2020. A hearing on this application was held
January 7, 2020. Defendant, represented by counsel, appeared and opposed
the ex parte application. In doing so, defendant’s counsel several times

8There is no dispute defendant missed the statutory deadline of
December 16, 2019, for responding to Caru’s RFA’s. (See Code Civ. Proc.,
§ 2033.250, subd. (a).)

11
acknowledged that the motion was currently scheduled to be heard on
February 4, 2020. The court denied Caru’s ex parte application, and the
motion was heard as scheduled on February 4, 2020, the date listed on the
court’s online docket. Defendant filed opposition papers to Caru’s motion,
and her attorney appeared at the February 4, 2020 hearing for argument.
Contending there was no proper notice of the February 4, 2020 hearing,
defendant relies on the fact that Caru served an amended notice of the
February 4, 2020 hearing by mail on January 17, 2020. She reasons:
“Applying the 16-court day rule set forth in Code of Civil Procedure section
1005, then adding an additional 5 calendar days for service by U.S. Mail as
required by Code of Civil Procedure section 1013, [Caru’s] amended notice of
motion was . . . 14 days late.” This argument fails.
“The principal purpose of the requirement to file and serve a notice of
motion a specified number of days before the hearing ([Code of Civ. Proc.,]
§ 1005, subd. (b)) is to provide the opposing party adequate time to prepare
an opposition. That purpose is served if the party appears at the hearing,
opposes the motion on the merits, and was not prejudiced in preparing an
opposition by the untimely notice.” (Arambula v. Union Carbide Corp. (2005)
128 Cal.App.4th 333, 343.) “ ‘Accordingly, a party who appears and contests
a motion in the court below cannot object on appeal . . . that he had no notice
of the motion or that the notice was insufficient or defective.’ ” (Carlton v.
Quint (2000) 77 Cal.App.4th 690, 697.) Because defendant did just that on
February 4, 2020, she cannot rely on the notice rules for purposes of appeal.
2. Defendant failed to serve substantially compliant RFA
responses before the hearing.
Defendant asserts, without offering any evidence, that she served
substantially compliant responses to the RFA’s prior to the commencement of
the February 4, 2020 hearing. The trial court found her responses

12
noncompliant with the statutory requirements in denying her motion to set
aside the order to deem matters admitted. Specifically, the court found
defendant’s responses contained objections in violation of Code of Civil
Procedure section 2033.280, subdivision (a).9 In addition, defendant served
her responses by e-mail rather than mail, although her attorney
acknowledged the parties had no agreement to accept electronic service. At
oral argument, defendant’s attorney insisted that he personally gave Caru a
copy of defendant’s responses just before the start of the February 4, 2020
hearing, in addition to serving Caru by e-mail on February 3. Even if true,
defendant’s briefs on appeal contain no showing that these personally served
responses were substantially compliant. Defendant had the burden on
appeal to prove the trial court’s contrary finding was wrong. (In re Marriage
of Arceneaux (1990) 51 Cal.3d 1130, 1133 [“A judgment or order of a lower
court is presumed to be correct on appeal, and all intendments and
presumptions are indulged in favor of its correctness”]; In re Marriage of
Bowen (2001) 91 Cal.App.4th 1291, 1301.) She failed to meet this burden.
Defendant also claims the court should have granted her request at the
February 4, 2020 hearing for additional time to serve amended RFA
responses. The law is otherwise. “Unless the court determines that the
responding party ‘has served, before the hearing on the motion, a proposed
response to the requests for admission that is in substantial compliance with
Section 2033.220,’ it must order the RFAs deemed admitted. ([Code Civ.
Proc., § 2033.280], subd. (c).) . . . As one court put it: ‘If the party manages to
serve its responses before the hearing, the court has no discretion but to deny

9 “If a party to whom requests for admission are directed fails to serve a
timely response, the following rules apply: [¶] (a) The party to whom the
requests for admission are directed waives any objection to the requests . . . .”
(Code Civ. Proc., § 2033.280, subd. (a).)

13
the motion. But woe betide the party who fails to serve responses before the
hearing. In that instance the court has no discretion but to grant the
admission motion, usually with fatal consequences for the defaulting party.
One might call it “two strikes and you’re out” as applied to civil procedure.’
[Citation.]” (St. Mary, supra, 223 Cal.App.4th at p. 776, italics added.)
Accordingly, the court did not err in refusing to grant defendant additional
time to respond.
3. Defendant did not establish grounds for relief from the
court’s order under Code of Civil Procedure section 473.
Defendant also challenges the court’s denial of her request to set aside
its order deeming the RFA’s admitted on grounds of mistake, surprise,
inadvertence or excusable neglect (Code Civ. Proc., § 473, subd. (b)).10
Rejecting this argument below, the court found that “while the
defendant argues that the February 4 order should be set aside ‘on the
ground of surprise and/or excusable neglect,’ the defendant never articulates
facts which constitute the same. In general, if the error at issue was one of
counsel, supported by an attorney declaration of fault, relief is mandatory.
Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604; Lorenz v. Commercial
Accept. Ins. Co. (1995) 40 Cal.App.4th 981. However, [defendant’s attorney’s]
declaration admits no fault on his part. Moreover, defendant has admitted
no mistake, inadvertence or excusable neglect. On that basis, the motion to
set aside is denied.” (All capitalization omitted, italics added.)

10Code of Civil Procedure section 473, subdivision (b) provides in
relevant part: “The court may, upon any terms as may be just, relieve a
party or his or her legal representative from a judgment, dismissal, order, or
other proceeding taken against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect.”

14
 On appeal, defendant does not mention these findings by the trial
court, much less attempt to disprove them with reference to relevant evidence
or on-point legal authority. Instead, she merely repeats the arguments we
have already rejected—to wit, that Caru failed to properly serve notice of the
February 4, 2020 hearing and that she served RFA responses prior to
commencement of that hearing. Defendant has therefore failed her burden
on appeal to affirmatively establish trial court error. (In re Marriage of
Arceneaux, supra, 51 Cal.3d at p.1133; In re Marriage of Bowen, supra, 91
Cal.App.4th at p. 1301.) The order denying her motion for relief stands.
III. Grant of Renewed Summary Judgment for Caru.
Defendant next argues the trial court erred in granting Caru’s renewed
summary judgment motion. She reasons that were it not for the court’s order
deeming matters admitted, there would have been no basis for summary
judgment. This reasoning fails, as we have already held the order to deem
matters admitted was proper.
Defendant also claims her deemed admissions were contradicted by
“other evidence available to the court.” As noted by the trial court, however,
the “other evidence” defendant is referring to consists of several declarations
that she filed in opposing summary judgment. Citing Gribin Von Dyl &
Associates, Inc. v. Kovalsky (1986) 185 Cal.App.3d 653, the trial court ruled
these declarations were not sufficient to raise triable issues of fact capable of
defeating summary judgment. (Id. at p. 662 [“In opposition to the motion for
summary judgment, defendant submitted his declaration wherein he
contradicted several of his deemed admissions. As against the admissions,
the declaration was unavailing and did not raise triable issues of fact” (fn.
omitted)].)

15
 Defendant contends the court’s ruling in this regard was wrong. Yet,
she offers no legal argument in support of her claim. Nor does defendant
direct this court to any particular evidence in the record that might
contradict one or more of the deemed admissions. Under these
circumstances, there are no grounds for reversing summary judgment. As
stated ante, defendant, as the appellant, bore the burden in this court of
affirmatively proving the trial court erred. (In re Marriage of Arceneaux,
supra, 51 Cal.3d at p. 1133.)
IV. Injunctive and Declaratory Relief.
Last, defendant argues the injunctive and declaratory relief awards
were legally unauthorized because: (1) there was no contract between
defendant and Caru, a prerequisite to declaratory relief under Code of Civil
Procedure section 1060; (2) Caru raised injunctive relief as a cause of action
when it is only a remedy; (3) declaratory and injunctive relief are not
available remedies for alleged violations of the Polanco–Lockyer Pet Breeder
Warranty Act (Health & Saf. Code, § 122045 et seq.) or the VMC; and (4) the
injunctive relief was overbroad in enjoining her from owning dogs. Only the
last argument has merit.
A. Standard of Review.
We review a trial court’s decision to grant or deny injunctive or
declaratory relief under the abuse of discretion standard. (Horsford v. Board
of Trustees of California State University (2005) 132 Cal.App.4th 359, 390.)
We resolve purely legal issues de novo. (In re Butler (2018) 4 Cal.5th 728,
738–739.)
B. Caru was properly awarded declaratory and injunctive
relief for defendant’s legal violations.
Defendant incorrectly contends there was no legal basis for awarding
Caru declaratory or injunctive relief for several reasons.

16
 As an initial matter, we reject defendant’s claim that Caru improperly
raised injunctive relief as a cause of action rather than a remedy. Caru’s
cause of action arose under Corporations Code section 10404, which (as
explained) authorizes SPCA’s such as Caru to bring a complaint against a
person “for the violation of any law relating to or affecting animals . . . .”
(Corp. Code, § 10404.) Caru’s complaint identifies violations of several such
laws relating to or affecting animals, including breeding dogs in unsanitary
conditions (Health & Saf. Code, § 122065); permitting dogs to disturb the
peace (VMC, § 7.36.020); permitting dogs to run at large (VMC, § 7.24.010);
maintaining more than four dogs at a time on her residential property (VMC,
§ 7.04.30); exceeding maximum lot coverage for her dog breeding operation
(VMC, § 16.14.060); and exceeding the maximum fence size on her property
to conceal her dog breeding operation (VMC, § 16.70.060(F)). Thus, Caru’s
cause of action was properly grounded in substantive violations of laws
relating to animals. (See Corp. Code, § 10404.) The remedy Caru sought for
these violations was injunctive (and declaratory) relief.
Further, injunctive and declaratory relief are appropriate remedies for
Caru’s cause of action under Corporations Code section 10404. Defendant
counters that under the Polanco–Lockyer Pet Breeder Warranty Act, Caru’s
relief was limited to a civil penalty (Health & Saf. Code, § 122110, subd. (a))11
and under the VMC, Caru was limited to “administrative citations,
administrative charges, liens, and special assessments, pursuant to Chapter
1.15.040 of the [VMC].” Yet, defendant cites no authority for her proposed
limitations on Caru’s remedies. Nor do we know of any authority. Neither

11Health and Safety Code section 122110, subdivision (a) provides in
relevant part: “Except as otherwise specified herein, any person violating
any provision of this article other than Section 122060 shall be subject to civil
penalty of up to one thousand dollars ($1,000) per violation.”

17
the Polanco–Lockyer Pet Breeder Warranty Act (Health & Saf. Code,
§ 122110, subd. (a)) nor the cited VMC provisions expressly limit the
remedies available for violations. To the contrary, VMC section 1.15.020(A)
states: “This chapter provides for administrative citations which are in
addition to all other legal remedies, including criminal, civil or other legally
established procedures, which may be pursued to address violations
identified in this chapter.” (Italics added.)
Further, under Code of Civil Procedure section 526, a court may award
injunctive relief “[w]hen it appears by the complaint that the plaintiff is
entitled to the relief demanded, and the relief, or any part thereof, consists in
restraining the commission or continuance of the act complained of, either for
a limited period or perpetually.” (Code. Civ. Proc., § 526, subd. (a)(1).) Here,
Caru, a corporation formed under Corporations Code section 10400 for the
purpose of enforcing laws for the prevention of cruelty to animals (see
California Exposition, supra, 239 Cal.App.4th at p. 1296), seeks to restrain
defendant’s ongoing violation of myriad state and local laws that do just
that—prevent dog breeders, such as defendant, from maintaining their
property in conditions harmful to dogs. Accordingly, the trial court did not
abuse its discretion by ordering injunctive relief for Caru’s successful
Corporations Code section 10404 claim.
Finally, defendant contends, contrary to the statutory language itself,
that Code of Civil Procedure section 106012 “requires a contract or written

12 Code of Civil Procedure section 1060 provides in relevant part: “Any
person interested under a written instrument, excluding a will or a trust, or
under a contract, or who desires a declaration of his or her rights or duties
with respect to another, or in respect to, in, over or upon property . . . , may, in
cases of actual controversy relating to the legal rights and duties of the
respective parties, bring an original action or cross-complaint in the superior

18
instrument as to which a judicial declaration is sought.” Defendant is wrong.
“A cause of action for declaratory relief may adjudicate future rights and
liability between parties who have a relationship, either contractual or
otherwise. . . . To assert a cause of action for declaratory relief, Code of Civil
Procedure section 1060 requires that there be an ‘ “actual controversy relating
to the legal rights and duties of the respective parties,” ’ not an abstract or
academic dispute.” (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2015)
237 Cal.App.4th 23, 28–29, 1st italics added; see Cardellini v. Casey (1986)
181 Cal.App.3d 389, 395.) Caru’s cause of action meets this standard. As
such, defendant’s declaratory relief challenge fails.
C. The permanent injunction is overbroad.
However, while we reject defendant’s claims that Caru was not entitled
to declaratory or injunctive relief as a legal matter, we agree with her the
permanent injunction entered by the court was overbroad. Specifically, the
court: (1) enjoined defendant from “owning, driving, keeping, possessing or
having charge or custody of any dog indefinitely until good cause is shown
that this order should be modified”; and (2) granted Caru “full ownership and
custody over all dogs, including unborn ones, which are under the ownership,
possession, charge or custody of [d]efendant,” including the right “to take
custody of the dogs and transfer them to other rescues or adopters.” We
know of no authority for an injunction of this scope.
We found one statute authorizing a court to seize a dog owner’s canine
property (Pen. Code, § 597.1), although it was not raised as a cause of action
in the complaint or referenced in the court’s order. Penal Code section 597.1
is “a self-contained regulatory scheme covering treatment of animals.”

court for a declaration of his or her rights and duties in the premises . . . .”
(Italics added.)

19
(Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1216.)
Relevant here, this statute provides that when an owner or keeper of an
animal commits a misdemeanor by permitting the animal to be in any
building or street without proper care or attention, a peace officer or humane
society officer “shall take possession of the stray or abandoned animal and
shall provide care and treatment for the animal until the animal is deemed to
be in suitable condition to be returned to the owner.” (Pen. Code, § 597.1,
subd. (a)(1).) Unless there are exigent circumstances, the owner or keeper of
the animal is entitled to a hearing before the animal is seized or impounded.
(Id., § 597.1, subds. (g), (j).) Further, if the animal owner or keeper is
convicted under section 597.1, the court “may also order, as a condition of
probation, that the convicted person be prohibited from owning, possessing,
caring for, or residing with, animals of any kind, and require the convicted
person to immediately deliver all animals in the convicted person’s possession
to a designated public entity for adoption or other lawful disposition . . . .”
(Id., § 597.1, subd. (l)(1).) If, however, the owner or keeper is not ultimately
convicted after an animal was seized or impounded under this provision, “the
court shall, on demand, direct the release of seized or impounded animals to
the defendant upon a showing of proof of ownership.” (Id., § 597.1, subd.
(l)(2).)
This statute appears to authorize a court to grant a humane society
temporary possession of an at-risk animal for the purpose of providing
suitable care. However, it does not authorize the court to grant the humane
society “full ownership” of an at-risk animal. Nor does the provision
authorize what the court did here—to wit, enjoin an animal keeper from
owning “any dog indefinitely until good cause is shown” when the keeper was

20
not charged, much less convicted, under the provision. (See Pen. Code,
§ 597.1, subd. (a)(1).)
To the contrary, in civil cases such as this one, a permanent injunction
is intended to “restrain[] the commission or continuance of the act complained
of, either for a limited period or perpetually.” (Code Civ. Proc., § 526, subd.
(a)(1).) Here, the acts complained of included defendant’s keeping 10 or more
dogs on her property, allowing the dogs to excessively bark and run at large,
and failing to prevent “overpowering flies and urine and feces odor.” While
the court’s permanent injunction could properly restrain defendant from
continuing to commit these acts, this injunction, as currently drafted, goes
too far. It restrains defendant from “owning, driving, keeping, possessing or
having charge or custody of any dog indefinitely” and, indeed, transfers her
ownership interest in the subject dogs to Caru. We know of no authority for
an order of this magnitude under the facts of this case.
Caru responds that “Penal Code section 597.1 does not purport to be an
exclusive statutory scheme for all animal seizures for violations of all laws”
and that, here, the court’s grant of authority to award injunctive relief was
not the Penal Code provision but Corporations Code section 10404. Caru
misses the point. Corporations Code section 10404, already discussed at
length, does not authorize the permanent injunction entered here to the
extent it dispossesses defendant of her right to own dogs. Nor does Caru offer
any other legal authority to support its theory that a court may dispossess a
dog owner of its canine property for violating local or state civil law. Indeed,
under the Penal Code, a court may only do so after affording the
misdemeanant owner certain legal protections, such as the right to a hearing.

21
(Pen. Code, § 597.1.) In the absence of such authority, we conclude the
permanent injunction, as presently drafted, must be modified.13
DISPOSITION
The judgment is reversed with respect to the permanent injunction
entered in this case, and the matter is remanded to the trial court for the
purpose of modifying said injunction in accordance with this opinion. The
judgment is otherwise affirmed.

_________________________
Jackson, P. J.

WE CONCUR:

_________________________
Simons, J.

_________________________
Burns, J.

A160487, A161683/Caru Society for the Prevention of Cruelty to Animals v. Anthony

Given this holding, we need not address defendant’s alternative
13

argument that the court’s order violates her constitutional right to own
property. (Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S.
439, 445 [“A fundamental and longstanding principle of judicial restraint
requires that courts avoid reaching constitutional questions in advance of the
necessity of deciding them”].)

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