LEIDER v. LEWISAppellants, John Lewis and City of Los Angeles, Reply Brief on the MeritsCal.September 27, 2016PREME COURTCRC(5 FILED IN THE SUPREME COURT OF CALIFORNIA SEP 27 2016 AARON LEIDER, Frank A. McGuire Clerk $232622 Plaintiff and Appellant, Deputy v. JOHN LEWIS,et al., Defendants and Appellants. After a Decision by the Court of Appeal, Second Appellate District, Case No. B244414 REPLY BRIEF ON THE MERITS Michael N. Feuer, City Attorney (No. 111529) John A. Carvalho, Deputy City Attorney (No. 189895) 200 N. Main Street, City Hall East 7th Floor Los Angeles, California 90012 (218) 978-8184; john.carvalho@lacity.org Kathryn E. Karcher (No. 1250783) Karcher Harmes PS 401 B Street, Suite 2450 San Diego, California 92101 (206) 335-1631; kathryn@karcherappeals.com Attorneys for Defendants/Appellants JOHN R. LEWIS and CITY OF LOS ANGELES $232622 IN THE SUPREME COURT OF CALIFORNIA AARON LEIDER, Plaintiff and Appellant, v. JOHN LEWIS,et al., Defendants and Appellants. After a Decision by the Court of Appeal, Second Appellate District, Case No. B244414 REPLY BRIEF ON THE MERITS Michael N. Feuer, City Attorney (No. 111529) John A. Carvalho, Deputy City Attorney (No. 189895) 200 N. Main Street, City Hall East 7th Floor Los Angeles, California 90012 (213) 978-8184; john.carvalho@lacity.org Kathryn E. Karcher (No. 125078) Karcher Harmes PS 401 B Street, Suite 2450 San Diego, California 92101 (206) 335-1631; kathryn@karcherappeals.com Attorneys for Defendants/Appellants JOHN R. LEWISand CITY OF LOS ANGELES TABLE OF CONTENTS I. INTRODUCTION...eeeeeeeeeeeseeeecesessacesunenseaeeneeeseeseeetees 1 Il. LEIDER’S VARIOUS NON-MERITS THEMES ARE UNFOUNDED...ceceeeeeeeee cess eneseaeeneenseeeseeeeeeneaees 2 A. Leider’s Primary Policy Argument—That Without Taxpayers Enforcing Criminal Laws, Cities May Commit Crimes With Impunity—Is Based on an EerromeOus Premise........ccccccccccceccececeeecccceeeeeeeeeeeeeseseseeeeeseeaeas 2 B. The City and Lewis Are Not Threatening CONCl.........:.cccceeeececeeeeccccececcecececeeeceeeeeeeeeeeeeeeeseeteeeeeteteeees 7 C. Leider Falsely Accuses the City and Lewis of “Misstating” the Record and “Knowingly Urg{ing]” the Court to Err. 0.0... ccccccccccceeeeeeeecneccececeeeeeeeeeeeecessaaeess 12 ll. EXCEPTIONS TO CIVIL CODE SECTION 3369 MUST BE BY “LEGISLATIVE DECLARATION”; THE LEGISLATURE HAS NOT EXCEPTED TAXPAYER ACTIONS........cccccecceesceesseeeceeerseseereeeesseeseseneeees 13 A. Leider’s Statutory Analysis Is Unavailing...........0...0...0 13 B. Leider Is Wrong About Schur and ALDP..............cccee 19 1. Schur Determines the Taxpayer Standing ISSUE. ....ccesesssecatceecececeececeteceesneneeeceneceeeeeeesseeeeeeneseentereeneaes 19 2. ALDF Supports Schur’s Holding...............cccceeeeeeeees 21 Iv. THE CITY AND LEWIS'S CIVIL CODE SECTION 3369 DEFENSE ADDRESSED A DIFFERENT ISSUE THAN THE JUSTICIABILITY ISSUE DECIDED IN CULP, SO THE DEFENSE IS NOT PRECLUDED........ee25 A. The Issue in Culp and Civil Code Section 3369 Is Not “Standing,” as Leider Claim...............:::c:scceeeeeeeeeees 25 B. Precluding the City and Lewis’s Defense Under Civil Code Section 3369 Would Be Unjust.............c00.... 30 V. CONCLUSION.0000... eeccccccceeceeseeeeseneeeseeeeaeeessseesseeeaeeeesaeeesare 32 -ii- TABLE OF AUTHORITIES CASES Animal Legal Defense Fund v. California Exposition and State Fairs (2015) 239 CalApp.4th 1286.00.00...ceececeseeeeeeeeeeeeeeeenespassim Borikas v. Alameda Unified School Dist. (2013) 214 CalApp.4th 135.0...cscceeseesensceceeeeeeeeseeeeeeeaes 17 Carter v. Chotiner (1930) 210 Cal. 288.00... cceccescecsseseessseseseeaeaeeeceseenecaensneveeetees 15 Cole v. Rush (1955) 45 Cal.2d 345 oooccccccscsscscescsseeecsesscseeseeeesessessseesenenees 17 Culp v. City of Los Angeles (Sept. 23, 2009, B208520)0...ccccece eeececneceeeeeeeeeeeeeeeeeraeespassim Daarv. Alvord (1980) 101 Cal.App.3d 480 oo...ccccceccsecseesseeeeeseeeeeeeteeseeeeees22 Eldridge v. Burns (1982) 136 Cal.App.3d 907 oo...ceeeeceseeceseeeeeceeneeeseseeeeneenenes26 Estate ofHorman (1971) 5 Cal. 8d 620...ccc ccccccseccceeeseeeeaeeeceeaeeesseteneeseeeeeeeeeeeess 25 Humane Society of the United States v. State Bd. of Equalization (2007) 152 Cal.App.4th 349...ccceceecneeseeseneeeseeeeetereeeeeeenes 4 Menveg v. Municipal Court (1964) 226 Cal.App.2d 569 oo... cccccccceceseeeneeseeeeeeseeeeeeeneeseenenes 3 Morohoshi v. Pacific Home (2004) 34 Cal.4th 482.0.ccccseeecseceeeeceseseeaceeeseeecnecseeseenensnees 30 Nathan H. Schurv. City of Santa Monica (1956) 47 Cal. 2d Llanececcccccneeeeceneeceeeeeceeeeneeeeneeseeseseneaspassim -iii- People v. Lim (1941) 18 Cal.2d 872 ooo.cccccccsceccneceseseseeeseesseesessenseseespassim People v. Overstreet (1986) 42 Cal.3d 891 ooo.cceccccscesceseseesccsesetsesssespieereeeaees 17 People v. Seccombe (1930) 103 CalApp. 306.00...cecceccesccscesscesesseteseereeeaees 15 People v. Shuey (1975) 18 Cal.3d 835 oo... ccccccceccesccsscesescesecscesscsseeasenssenseeaees 31 Perrin v. Mountain Mausoleum Assn. (1929) 206 Cal. 669.00...cecece cece ccesceseseeescescsetsessaeseneesnenens 15 Sefton v. Sefton (2015) 236 Cal.App.4th 159.0...eeeccc ceeeeceeereetaees 30, 31 Sundance v. Municipal Court (1986) 42 Cal.App.3d 1101 ooo.ceccceccscecsseseesscessereenans22 Vesely v. Sager (1971) 5 Cal.3d 158.00...cece cecccscesccsscescssesessecsessessssseueesanasens 17 Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298ooocccceescessceseeseeseneeeneens 29 STATUTES 7 ULS.C., § 2181, et Seq. oocececeecescseceseneeesscnsesestessrerenees 6 Bus. & Prof. Code, § 172020000...eeceece cee cesteeceseeessteseeesseees 14, 16 Civ. Code, § 3369 oo... cccccccccceeeceseestceseseceeeseeesesestesnsecseseseeeesesspassim Code Civ. Proc., § 437c, subdivision (M)(2)...........cccccceeeeseeeseceeees26 Code Civ. Proc., § 5268.00... .cccecccccecsccesscceeceneccsssesstessesessseneesesanespassim Corp. Code, § 14502, subd. (i)(1)(A)-(C) oooccceeeeeeeeeee 23 Corp. Code, § 14502, subd. (i)(2)(A)-(C) ooo.ceceeecreeeeeceeeees23 ~iv- Gov. Code, § 26500 oo...ccccccc ccs csscessenecseesecssesecesseneeeesaceeseeeeeeneneees 3 Gov. Code, § 72198 .......ccccccccccccecccecescssecseesecssceeecsseeecseeeeceseesseeseeseeesseesees 3 Pen. Code, § 597 ........ccccccccceccescsesssssssceecescnsecsscesscssesecsaesseceeeseeseesneesaes4,22 Pen. Code, § 597, Subd. (A) oo...cccccccesecssesececesseceeeececeeseeeeeeeneeate 5 Pen. Code, § 597, subd. (d) oo...ccccece cccesseseccesecesceeeseenseeseeeeeeeneeeees 5 Pen. Code, § 597to...cececcccccccccescescesssessecesscseeeseeeeesseenseeesseesens 22, 23 Pen. Code, § 59988 ooo... ccc ccccceccccccccesccssecseecsseeeeeesecensecsseeseecseseneeeseneeate 23 OTHER AUTHORITIES 20 Ops.Cal.Atty.Gen., 234 (1952) oo.cccccseeeecneeseeeceeeeeeteseeeteeens 4 65 Ops.Cal.Atty.Gen., 330 (1982) oo...cececee ceeeeeeeeeceteneeeneeees4,5 79 Ops.Cal.Atty.Gen., 46 (1996) .........ccccee ceeeeeeeeeeneeeeenetnees 3,4 REGULATIONS 9 C.FLR., § 8.128.cececccsesceneeeeeeeeeeeeeeeceeeneeecaeseieaeeeeeeeeeesesaneeeneees 6 q I. INTRODUCTION.! Aaron Leider argues that empowering taxpayers to enforce the criminal laws against cities and their employeesis the only way to stop their criminal conduct, becausecities will never prosecute themselves or their employees. Assumingthelatter point is true, Leider’s argumentfails. At least three other prosecutorial agencies enforce the criminal laws in the City. They include the County of Los Angeles, the office of the Attorney General of California, and the United States Department of _Justice, which enforces criminalviolations of the Animal Welfare Act—which Leider alleged but failed to prove in this case. Ruling for the City and Lewis will not give California cities and their employees carte blanche to commit crimes. On the core legal analysis, Leider's discussion of Civil Code section 3369 defies both precedent and secondary evidence of the Legislature's intent, and his discussion of law of the case misinterprets the issues in both appeals to reach the erroneous ' This brief follows the same conventions as the Opening Brief on the Merits (OpeningBrief): individuals are referred to by their last names after an initial reference, the City of Los Angeles (City) and John Lewis are sometimesreferred to as “defendants,” and the Los Angeles Zoo is referred to as “LA Zoo.” -]- conclusion that the first appeal implicitly decided the section 3369 issue. As for section 3369, only a “legislative declaration” can create an exception to its bar against enforcing criminal laws in equity, and the Legislature has never declared Code of Civil Procedure section 526a an exception, despite several opportunities. (People v. Lim (1941) 18 Cal.2d 872, 880.) As for law of the case, section 3369 presents an analytically different issue from the justiciability issue the Court of Appeal decided in Culp v. City of Los Angles (Sept. 23, 2009, B208520) [nonpub.opn.] (Culp), to which section 3369 wasnotessential. Lawof the case does not prevent the City and Lewis from relying on section 3369, which bars Leider’s action. II. LEIDER’S VARIOUS NON-MERITS THEMES ARE UNFOUNDED. A. Leider’s Primary Policy Argument—That Without Taxpayers Enforcing Criminal Laws, Cities May Commit Crimes With Impunity—Is Based on an Erroneous Premise. Leider argues throughouthis brief that the City (by its city attorney) will never prosecute itself, so the criminal violations found in this case and any current and future violations are “a series of wrongs without a remedy.” (AnswerBrief on the Merits -2- (AnswerBrief), pp. 3-4, see also 43, 44.) This is because, he argues, the City is the “sole agency charged with protecting these animals and sworn to enforce the Penal Code in the City[.]” (AnswerBrief, pp. 2-3, 43 [“no one but the conflicted City Attorney’s Office had the right and powerto act”].) Leider cites nothing to supporthis claim.In fact, several prosecutors are empowered to enforce the criminal laws in the City. First, the district attorney, not the city attorney, prosecutes felonies committed in the City. (See Gov. Code, § 26500.) Misdemeanors committed in the City are prosecuted primarily by the Los Angeles City Attorney. (Gov. Code, § 72193; L.A. Charter, § 271(c).) However, the district attorney may also prosecute state misdemeanorsin the City, but she acts in a subsidiary or “backup”role to the city attorney. (Gov. Code, § 72193; 79 Ops.Cal.Atty.Gen. 46, 48 (1996); Menveg v. Municipal Court (1964) 226 Cal.App.2d 569, 571-572.) The backuprole includes misdemeanorprosecutions when, for example, the city attorney is unable to prosecute an offense or when there has been a breakdown of law—thesituations Leider argues exist here. (See 79 Ops.Cal.Atty.Gen. at p. 48, fn. 3, citing 65 Ops.Cal.Atty.Gen. 330, 332 (1982); 20 Ops.Cal.Atty.Gen. 234, 236 (1952).) Leider has not argued the district attorney is conflicted or does not prosecute animal cruelty crimes. The Court of Appeal has observed that the many published cases addressing Penal Codesection 597 “suggest that the statute is regularly enforced by California prosecutors” and that “ ‘California has oneof the nation’s toughest anticruelty laws, and enforcement of the law appears to be more rigorous than in manyotherstates.’ [Citations.]” (Humane Society of the United States v. State Bd. of Equalization (2007) 152 Cal.App.4th 349, 359.) The court singled out the Los Angeles City Attorney’s office for making “ ‘historic effort[s] in combating animal abuse’”and listed the measuresit has taken. (Ud.at fn. 5, citation omitted.) The seriousnessof the charges has a large impact on which prosecutor is most appropriate to handle a particular case. Leider alleged and attempted to prove that the City and Lewis violated animal cruelty laws that provide for both misdemeanor and felony charges, and he haspersistently accused the City and Lewis of torturing and killing elephants through extreme abuse -4- and neglect—felonious conduct. (See, e.g., Pen. Code, § 597, subds.(a), (d) [maliciously and intentionally maiming, mutilating, torturing, woundingor killing an animalis a felony or alternatively a misdemeanor]; 1 CT 39 [4 5], 40 [% 8], 41 [7 9- 10], 50-52, 54.) At the outset, the appropriate prosecutor for these alleged crimesis the district attorney, who typically investigates optional misdemeanor-felony crimesas felonies so that the most serious charges can be broughtif warranted. Thedistrict attorney has the discretion not to prosecute the charge as a felony, in which case the city attorney may prosecuteit as a misdemeanor. This system worked, for example, in the 2015 prosecution of a City employee for felony embezzlement. (http://www.scpr.org /news/2015/06/11/ 52367/former-ladwp-av- guy-charged-4-million-embezzlement/.) The Attorney Generalof California fits into the city attorney/district attorney division of labor by playing a backuprole to the district attorney. (See 79 Ops.CaLAtty.Gen., supra, at p. 48, fn. 3, citing 65 Ops.Cal.Atty. Gen., supra, at p. 332; 20 Ops.Cal.Atty.Gen., supra, at p. 236.) The United States Department of Agriculture through its Animal and Plant Health Inspection Service (APHIS) enforces -5- the Animal Welfare Act in the City. (7 U.S.C. §§ 2131, et seq.; https://www.aphis.usda.gov/aphis/banner/aboutaphis.) This is particularly relevant here because Leider unsuccessfully tried to prove that the City and Lewis violated 9 C.F.R. section 3.128. (6 CT 1351-1352.) The Department of Justice prosecutes various federal crimes in the City. (https://www.justice.gov/usao-cdca.) In 2014 it obtained a bribery conviction and prison sentence of a City employee. (http://articles.latimes.com/2014/mar/25/local/la- me-building-inspector-corruption-20140325.) Leider’s main policy argument that the City and Lewis’s alleged wrongs have no remedy becausethe City as sole prosecutor will never prosecuteitself (and by extension neither will any other California city) collapses underscrutiny. The City is not even a possible prosecutor of the felonies and federal crimes Leider alleged; the City prosecutes only misdemeanors with the district attorney in a backup role. Leider’s plea that “if you won't let me speakfor the elephants, then whowill?’ is an emotional appeal that is built on sand. The answeris that several able prosecutors will. B. The City and Lewis Are Not Threatening Contempt. Leider asserts the City and Lewis threaten “willful violations of existing injunctions.” (See, e.g., AnswerBrief, pp. 4, 9, 47, emphases omitted.) At the outset, it is worth mentioning that the Court of Appeal majority was dismissive of contempt proceedingsas a possible injustice to the City and Lewis because he was “enjoinedsolely in [his] official capacity[y]”’ so “[n]o private parties will be prosecuted[.]” (Leider v. Lewis (2015) 243 Cal.App.4th 1078, 1098-1099 (Leider).) But real people are enjoined only in official capacity. The human bodyis not divided into public and private roles at the jailhouse gate. The Courtof Appeal majority missed this point. ([bid.) The OpeningBrief at pages 37 through 39 demonstrates the error; the Answer Brief fails to defend the majority. And a vague injunction, which is addressed below,will only exacerbate the “endless contempt proceedings’ the dissent foretold. (Leider, at p. 1107 (dis. opn.of Bigelow, P.J.).) In People v. Lim, supra, 18 Cal.2d at page 880, the Supreme Court held that equity “is loathe to interfere” with alleged criminal violations becauseof the “collateral effect[s}’ of -7- injunctions on defendants. Those collateral effects are grave and were stated in the Opening Brief at pages 27 through 28. To consider the legal question posed—whether the nuisance exception to Civil Code section 3369 should be expansively or strictly interpreted—the Supreme Court assumed there would be a controversy about compliance with the equity injunction, and that the defendant would be threatened with and held in contempt. (Lim, at p. 880.) The legal issue cannot be addressed any other way, which is why the City and Lewis addressit the same way here. This is not a threat to violate court orders.It is rather a legal argument. There is much hereto indicate that contemptlitigation is more than a theoretical possibility if the Supreme Courtaffirms the Court of Appeal’s judgment. First, the dissenting Court of Appealjustice believes that is so. (Leider, supra, 243 Cal.App.4th at p. 1107 (dis. opn. of Bigelow, P.J.) [“endless contempt proceedings”].) Second, the plaintiff who has prosecuted this case for nine yearsis passionate about his cause and divisions between the parties go deep. To confirm this fact, one need look no further than the AnswerBrief. -8- Third, one of the trial court’s two affirmative injunctionsis not clear, making contemptlitigation more likely at the same time it may worsen the parties’ rancor. Unlike the exercise injunction, which mandates two hours of exercise a day, the rototilling injunction does not say how often the City and Lewis must rototill the exhibit. It instead commands compliance “consistent with the standards and recommendationsof Dr. James Oosterhuis and Mr.Jeffrey Andrews.” (6 CT 1300.) Andrews’s and Oosterhuis’s lengthy testimony mentions rototilling several times. (6 RT 1027-1106 [Andrews]; 7 RT 1320- 1370 [Oosterhuis].) Yet Andrews was unclear about the contents of the exhibit’s substrate. (6 RT 1065.) He testified he would be concernedif it “was all hard and compacted... if it’s not managed.” (6 RT 1066.) Given the staffs expertise, “they would know... the right timeto rototill[.]” (6 RT 1066.) Andrewsis confident they would change substrates or rototill “to make sure [substrates are] soft and compliant.” (6 RT 1067.) Oosterhuis testified that rototilling is important for small areas which become compacted and hard. (7 RT 1355.) He recommendsto his employer, the San Diego Zoo, to “periodically” rototill soft loamy soils. (7 RT 1364.) The trial court chose defense experts Andrews and Oosterhuis to provide its rototilling injunction standards. (See 6 CT 1300.) The court did not choose Leider’s expert, who testified that the LA Zoo should rototill “on a very frequent basis.” (3 RT 99, 173.) As noted above, Andrews and Oosterhuis did not provide a guideline like the court’s exercise injunction. They did not come closer to clarity than that the substrates should be “managed,” and the soil should be “soft” and “compliant,” with “periodic” rototilling. Senior elephant keeper Vicky Guarnett testified the exhibit’s substrate is not compacted or hard, even thoughit had never been rototilled (6 RT 961, see also 5 RT 751), and that she could makeholesin the sand with her hand (5 RT 751). The trial court credited “in part” her testimony that the elephants can dig into the sand and throw it on themselves. (6 CT 1312, fn. 3.) In contrast to Guarnett’s belief that the exhibit need not be rototilled and is already soft, Leider believes it is as hard as concrete and cannot be rototilled enough. (3 RT 173 [“It would be -10- difficult to do it as frequent as you wouldneedto[]”].) Sharply differing beliefs would not matter if the standard wasclear, but the standardis subjective. Whatis “soft,” or “compliant,” or “periodic”? Based on the record here, that depends on whether you are Guarnett, the plaintiffs expert, or the defendants’ experts. Presiding Justice Bigelow wrote that endless contempt litigation would result from these injunctions without considering this particular, potentially vexing issue. (Leider, supra, 243 Cal.App.4th at pp. 1107, 1111 (dis. opn. of Bigelow, P.J.).) The City and Lewis address a legal issue like the court in Lim did when they assume they might be charged with contempt, and perhaps even held in contempt. In addition, they bring knowledge of the parties’ relationship to this issue and how the trial court’s unclear rototilling injunction could make a bad situation worse. These things inform the City and Lewis’s approachto this issue. They are not threatening to violate the injunctions. -11- t o s B R E ER E c a i g i , S y fi C. Leider Falsely Accuses the City and Lewis of “Misstating” the Record and “Knowingly Urg[ing]” the Court to Err. Leider rebukes the City and Lewis for “misstating the trial court record[,]” “ignoring every single (stunning) trial court finding[,]” “sleight of hand,” “an apparent effort to rewrite the record,” “plainly obfuscate[ing] the record,” and more. (See,e.g., AnswerBrief on the Merits, pp. 3-4.) He accuses the City and Lewis of “knowingly urg[{ing] this Court to violate’ the law. (AnswerBrief, p. 20.) The rest of the brief proceeds apace. The City and Lewis doubt that advocates mislead the California Supreme Court into error; as for the rest of the charges, the City and Lewis stand by their statements of fact, procedure, and their record citations. They examine Leider’s claims in two brief and representative examples. Leider asserts the City and Lewis “ignor[{ed] every single” trial court finding. (AnswerBrief, p. 4.) The City and Lewis’s Opening Brief twice addresses the court’s key findings on which the rototilling and exercise injunctions are based regardingsoil compaction,the risk of it injuring elephants, and elephants developing foot problems. (OpeningBrief, pp. 8, 17, see also 18- -12- “ 19.) The City and Lewis quote the court’s “[cJaptivity is a terrible existence” statementandits findings about stereotypic behavior and Guarnett’s inadequacies, among others. (Opening Brief, pp. 18-19.) Leider makes unfair comparisonsin criticizing the City and Lewis. As one example, the City and Lewis stated true facts about the exhibit’s enrichmentdevices and architectural features (Opening Brief, pp. 7-8), yet Leider criticizes the City and Lewis because heasserts the exhibit does not provide elephants with an “enriched, stimulating environment[]” (AnswerBrief, pp. 11-12). But the City and Lewis did not address this issue, and they stated the trial court’s findings about the exhibit accurately. (See, e.g., Opening Brief, pp. 17-19.) Ill. EXCEPTIONS TO CIVIL CODE SECTION 3369 MUST BE BY “LEGISLATIVE DECLARATION”; THE LEGISLATURE HAS NOT EXCEPTED TAXPAYER ACTIONS. A. Leider’s Statutory Analysis Is Unavailing. Leider frequently asserts that Civil Code section 3369 and Code of Civil Procedure section 526a are in “harmony”or “complete harmony”because the former’s “otherwise provided by -13- law” language andthe latter’s “any illegal expenditures” languageare plain. (See, e.g., Answer Brief, pp. 2, 6, 21, 55.) He argues that “any illegal expenditures” is an exception to section 3369’s bar against enforcing criminal laws in equitable courts. (See, e.g., AnswerBrief, pp. 23-26.) Leider relies on the rule of construction that interpretation should not create conflicts between statutes, which he contends the City and Lewis’s proffered interpretation does. (AnswerBrief, p. 26.) The City and Lewis’s interpretation creates no conflict between the twostatutes. First, neither Code of Civil Procedure section 526a nor Civil Code section 3369 includes an exception to section 3369 for taxpayer actions. When the Legislature enacts an exception, it does so expressly, either by referring to the exception in the statute (nuisance) or by stating the exception from section 3369: “Notwithstanding Section 3369 of the Civil Code, specific or preventative relief may be granted to enforce a penalty or forfeiture in a case of unfair competition.” (Bus. & Prof. Code, § 17202.) The Legislature has doneneither for Section 526a. Taxpayer actions are not excepted, and the statutes do not conflict. (OpeningBrief, § IV.C.) -14- Second, Civil Code section 3369 excepts from its bar cases of “nuisanceor as otherwise provided by law.” Section 3369 and its nuisance exception are the subject of a substantial body of case law which concerns the “fundamental rule” that equitable courts cannot be used to enforce the criminallaws. (See,e.g., Perrin v. Mountain Mausoleum Assn. (1929) 206 Cal. 669, 671; Opening Brief, pp. 23-30.) One line of cases restricted the nuisance exception to nuisances that caused exceptional damage or special injury to a private plaintiff. (Perrin, at pp. 670-671, 674; Carter v. Chotiner (1930) 210 Cal. 288, 290-291.) Courts further restricted the exception where public prosecutors relied on public nuisances to enjoin crimesin equity. (People v. Seccombe (1930) 103 Cal.App. 306, 310-311, 314 [criminal conduct does not give rise to equitable jurisdiction, rather, interfering with or injuring property rights does].) These cases culminated in Lim, supra, 18 Cal.2d at page 880, which held thata “legislative declaration” is required before a court can broadenthefield in which equitable injunctions against crimes may be granted. “[T]he basis for our action such as this must be found in our statutes rather than” in the common -15- law. (Ibid.) In Lim the nuisance exception wasat issue, but nothing in Lim or the other earlier cases diminishes their application or relevance to other exceptions to Civil Code section 3369, contrary to Leider’s claim. This backdrop is important to considering the issue of statutory interpretation. As the City and Lewis explained, Assembly Bill 1280 effected a shift of the unfair competition law from the Civil Code to the Business and Professions Code. (OpeningBrief, pp. 40-43.) The Legislature expressly declared in new Business and Professions Codesection 17202 that the exception to section 3369 for unfair competition would be it? preserved. Section 3369’s “otherwise provided by law’ language replaced “or unfair competition” and referred, at a minimum,to the simultaneously-enacted section 17202 exception. (See,e.g., Augmented CT 32, 35-36, 40.) The Legislature did not include an exception for Code of Civil Procedure section 526a thenor since. Leider argues that the Legislature intended with the “otherwise provided by law” language to avoid the need for amendments to Civil Code section 3369 as exceptions are enacted. (AnswerBrief, p. 23.) That gets Leider nowhere. The -16- Legislature muststill declare the exception. (Lim, supra, 18 Cal.2d at p. 880.) As the City and Lewis explained, it passed on that opportunity three times with Code of Civil Procedure section 526a—whenthe Legislature enacted it in 1909, when it amended section 3369 in 1933 to add unfair competition, and again whenit amendedsection 3369 in 1977. (Opening Brief, pp. 51-52.) As Leiderpoints out, the Legislature is deemed to be aware of existing laws whenlegislation is enacted and amended, including existing case law interpreting a statute. (People v. Overstreet (1986) 42 Cal.3d 891, 897; Borikas v. Alameda Unified School Dist. (2013) 214 Cal.App.4th 135, 150.) The Legislature’s failure to enact an express exception for Code of Civil Procedure section 526a in each of these instances, including in 1977 when Schur, supra, 47 Cal.2d 11, had been decided 21 yearsearlier, indicates its intent not to except section 526a or to legislatively overrule Schur, contrary to Leider’s claims. (Cole v. Rush (1955) 45 Cal.2d 345, 355, overruled on another groundin Vesely v. Sager (1971) 5 Cal.3d 153.) Schur, at pages 17 through 19, held that section 526a did not provide an exception to section 3369. “As a result, in 1977, ... there was no conflict between section -17- | 526a and section 3369.... Accordingly, the 1977 amendmentto section 3369 replacing ‘unfair competition with ‘as otherwise provided by law’ would notincludesection 526a.” (Leider, supra, 243 Cal.App.4th at p. 1122 (dis. opn. of Bigelow, P.J.).) Leider makes the remarkable assertion that A.B. 1280's legislative history is “silent” or “complete[ly] silent” about the Legislature’s intent. (AnswerBrief, pp. 26, 28.) Never in this case has he addressedthelegislative history’s actual content or gone beyond dismissive labels. The Legislature’s purpose in A.B. 1280 wasto enact “technical” “[c]ode adjustment,” to move the unfair competition 9? 66. law, “which is located in the wrong part of the codes[,]’ “without substantive change” to the Business and Professions Code. (Augmented CT 72, 77.) From Leider’s perspective, if the “otherwise provided by law’ language was not a substantive change, then the Legislature was not enacting an exception for Codeof Civil Procedure section 526a and overruling Schur, which would undeniably be substantive changes. But “[t]he legislative history confirmsonly a single legislative intent behind the 1977 amendment—a ‘code adjustment.’ The history is devoid of any -18- intent to change any substantive law, either relating to the general rule undersection 3369, or the unfair competition laws. In light of the caselaw, the languageof the statute, and the legislative history, there is no basis to conclude that by amending section 3369 to replace ‘unfair competition’ with ‘as otherwise provided by law,the Legislature intended to effect a change in the law, or address a problem ofconflicting statutes.” (Leider, supra, 243 Cal.App.4th at p. 1122 (dis. opn. of Bigelow, P.J.).) B. Leider Is Wrong About Schur and ALDP. 1. Schur Determines the Taxpayer Standing Issue. Leider’s analysis of Schur, supra, 47 Cal.2d 11, is primarily based on collapsing the court’s analysis of the Troeger action and the Schur action. Herefers to the “quasi-judicial determination” madein the Troeger action “in which mandamus was appropriate” and disposed of both actions, while failing to address what made the Schuraction a taxpayeraction. (Schur, at pp. 17- 18; AnswerBrief, pp. 35-36.) The Court of Appeal’s majority’s analysis of Schur is similarly flawed by reducing the Schuraction to the holding in the Troeger action. (Leider, supra, 243 Cal.App.4th at pp. 1095-1096.) -{9- The Schur Supreme Court recognized the Schur action was a taxpayer action. Schuralleged its standing as a taxpayer,it alleged that Santa Monica’s licensing gambling games was a crime, that Santa Monica was engagingin illegal expenditures by licensing and policing the games, and that Schur sought to enjoin Santa Monica from doing so. (Schur, supra, 47 Cal.2d at pp. 12- 13.) The Supreme Court recognized the Schur action presented a “different question” than the Troeger action because Schur sought an injunction restraining illegal expenditures. (See td. at p. 17; Opening Brief, pp. 34-35.) Leider frequently quotes Schur’s statement that a taxpayer may obtain preventative relief against the illegal expenditure of funds by a municipalcorporation, but the Supreme Court was stating the statute’s language, not interpreting it. (Schur, supra, 47 Cal.2d at p. 17.) The court’s citation to Code of Civil Procedure section 526a after its statement underlines the point. (Schur, at p. 17.) Leider attempts to make something outof nothing. Leider criticizes the City and Lewis for not relying on Code of Civil Procedure section 526a cases applying Civil Codesection 3369 until Schur. No case until Schur addressed the two statutes -20- together, and it took another 59 years for the second case to be decided. (Animal Legal Defense Fund v. California Exposition and State Fairs (2015) 239 Cal.App.4th 1286 (ALDP).) Leider writes that the City and Lewisselectively quote Schur and rely on irrelevant material and outdated dictum. The City and Lewis invite a comparison of their Opening Briefs discussion of Schur to Leider’s charges. (Opening Brief, pp. 32-37.) Schur applied the bar of Civil Code section 3369 to a taxpayer action against a city and Schur determines the outcome here. ALDF further supports this conclusion. 2. ALDF Supports Schur’s Holding. Leider is especially vehement about ALDF, accusing the City and Lewis of making a “tactical reference, without substance,” to the case, with an impact on his briefing. (Answer Brief, p. 40.) The City and Lewis devoted a full page to ALDF in their Opening Brief, so the sandbagging charge doesnotfit. (Opening Brief, pp. 57-58.) In addition, Leider states that appellate counsel here was also counsel in ALDF. (AnswerBrief, p. 38.) This is disproved bythefirst page ofALDF—nocounselin -21- this action was counsel in ALDF. (ALDF, supra, 239 Cal.App.4th 1286.) On the merits, the City and Lewis relied on ALDFas one of several examplesof cases in different areas of the law holding that there are real limits on taxpayer actions. (ALDF, supra, 239 Cal.App.4th at p. 1298; see also Schur, supra, 47 Cal.2d at p. 17; Sundance v. Municipal Court (1986) 42 Cal.App.3d 1101, 1138- 1139 [primarily political disputes cannot be enjoined]; Daarv. Alvord (1980) 101 Cal.App.3d 480, 485-486 [no injunction against spending illegally imposed and collected taxes]; Opening Brief, pp. 56-59.) ALDFmaybeof particular interest to the Supreme Court becauseit addressed Penal Code sections 597t and 597 and held the purpose of Code of Civil Procedure section 526a is not served by allowing taxpayers to enforce the animal cruelty laws. (ALDF, supra, 239 Cal.App.4th at p. 1298.) That is because a 1905 statutory scheme provides more than one avenueto enforce those ee laws, including appointing humaneofficers on whom ‘[p]owers to enforce anticruelty laws are conferred ... by statute.’ ” (ALDF, at p. 1296, citation omitted; Corp. Code, § 14502, subd. @)(1)(A)- -22- (C), (2)(A)-(C); Pen. Code, §§ 597t, 599aa [humaneofficers may seize some animals].) Individuals mayinitiate search warrants that magistrates must issue to law enforcement or to humane officers to search for and arrest anyone committing animal cruelty. (ALDF, at pp. 1297-1298.) Yet another avenueis traditional law enforcement, which makes three waysto enforce the animal cruelty laws without taxpayeractions. Leider focuses on a single aspect ofALDF’s analysis of this statutory scheme. He argues that the resources the statutory schemecreated for combating animal cruelty mean nothing because only public prosecutors can prosecute these crimes. (AnswerBrief, pp. 41-42.) As to the latter he is correct, but his point does not undermine ALDF'ssbasis or reasoning. Much of what determines which crimes are prosecuted is the limited resources of investigators and prosecutors. The 1905 statutory scheme makesa large amountof resources available in the enforcement process that other areas of the criminal law lack. Just because humanesocieties, officers, and citizens initiating searches and arrests do not take offenders to trial does not mean their contributions are insubstantial. -23- Leider charges that the City and Lewis haveinconsistently denied, and then asserted, that only public prosecutors may prosecute crimes, and now are “pretending” this has always been their position. (AnswerBrief, p. 43.) Leider again errs. The City and Lewis’s Appellants’ Opening Brief in the Court of Appeal devoted a headedsection to the point. (AOB,§ III.B.3.) ALDFconcerned a waste claim under Code of Civil Procedure section 526a. (See ALDF, supra, 160 Cal.App.4th at p. 1291.) Leider accuses the City and Lewis of having “knowingly made[a] highly misleading argument” below that ALDFis relevant because Leider “made it plain long before trial” that he was making no waste claim, only an illegal expenditures claim. (AnswerBrief, p. 41.) The Clerk’s Transcripttells a different story. Leider’s trial brief continued to assert his waste claim, and the trial court resolved the claim in its statementof decision, so Leider pressed his waste claim through judgment. (4 CT 930; 6 CT 1353-1354.) Leider concedes himself out of his argument by making it depend on his not having pursued a claim for waste. As the City and Lewis discussed in their OpeningBrief, Schur controls, and ALDF supports, the outcome of the Civil -24- Code section 3369 issue. As discussed below,the law of the case doctrine does not preclude the City and Lewis from relying on that defense. IV. THE CITY AND LEWIS’S CIVIL CODE SECTION 3369 DEFENSE ADDRESSED A DIFFERENT ISSUE THAN THE JUSTICIABILITY ISSUE DECIDED IN CULP, SO THE DEFENSE IS NOT PRECLUDED. A. The Issue in Culp and Civil Code Section 3369 Is Not “Standing,” as Leider Claims. The law of the case issue boils down to whether the Court of Appeal in Culp, supra, B208520 at **3-9, implicitly decided the issue that the City and Lewis have sought to raise since they demurred to Leider’s amended complaint. (The Opening Brief stated the preliminary legal propositions and are not repeated here.) Characterizing an earlier appellate decision and comparing it to the point sought to be raised later is key to determining whether the former implicitly decided the latter. Only if the later point was “essential” to the earlier decision could it have been implicitly decided. (Estate of Horman (1971) 5 Cal.3d 62, 73.) Another wayof stating the “essential” requirement is whetherit was a step in the ratio decedendi or would have been decided as a -25- e e e e e e matter of standard procedure evenif not mentionedin the opinion. (See Eldridge v. Burns (1982) 136 Cal.App.3d 907, 921.) Asto the second point (the first is discussed below), if the Culp Court ofAppeal was sua sponte considering an alternative ground to affirm summary judgment, Code of Civil Procedure section 437c, subdivision (m)(2), compelled the court to give notice and the opportunity to brief the issue. Since it did not,it could not have implicitly decided the Civil Code section 3369 issue unless it was a necessarystep in the ratio decedendt. Leider seeks to make the issues in the two proceedings the same, single issue: standing. Toward that end, he consistently refers to Culp, without citation, as having decided “the standing issue.” (AnswerBrief, pp. 52, 55.) He quotes Culp but the court’s language demonstrates other points that (1) an injunctionis the remedy Code of Civil Procedure section 526a provides if Leider were to prove a claim and (2) that Leider’s proof raised a triable issue of fact as to defendants’ illegal expenditures in violation of Penal Code section 596.5, which provided the framework to make his claim justiciable. (AnswerBrief, pp. 53-56.) The court never uses the word “standing” in the quotations yet Leider follows -26- them by stating it is “therefore undisputed that Leider I concluded that §526a provided standing for Leider[.]” (Answer Brief, p. 54, emphases omitted.) It is not. Leideralso cites the Culp court’s full analysis, but it yields nothing beyond his quotations. (AnswerBrief, pp. 52, 54, citing 2 CT 246-252.) The analysis includes a discussion of summary judgment standards andthe parties’ evidence, the law ofillegal expenditures, an analysis of Penal Code section 596.5, and of justiciability. (Culp, supra, B208520, at **4-9.) Nothing in Culp lends itself to a claim that the issue the court decided was standing, beyond the fact that a taxpayer standing cause of action wasat issue. Leider also asserts that the Culp court intended to foreclose any future challenge to his claims whenit declined “to consider appellant’s remaining arguments[.]” (AnswerBrief, p. 56.) The Culp court was merely declining to reach the other issues Leider (not defendants) was urging for reversal because they were unnecessary given the court’s decision to reverse on the ground stated. (Culp, at *9.) Leider’s quotations andcitations show that Culp decided that Penal Code section 596.5 provided a legal standard for -27- measuringhis illegal expenditures claim, which was therefore justiciable. (Culp, supra, B208520, at **8-9.) His position on law of the case depends on Culp’s holding being different than it actually was so he canalso characterize Civil Code section 3369 as a standing issue. Culp decided a standing issue only in the broadest sense that every case under Codeof Civil Procedure section 526a is a taxpayer standing case—thatis the claim the statute creates. Leider’s position proves too much, that every section 526a case, no matter which prongis at issue and which body of law applies to the issues presented, decided a standing issue. The bar against enforcing criminal laws in equitable courts does not present an issue of standing. The issue is whether Civil Code section 3369 permits a plaintiff in a taxpayer action to enjoin crimes. This is not a necessary step in Culp’s ratio decidendi, which includes elementsthat (1) the plaintiff is a taxpayer, (2) the taxpayeralleged illegal expenditures as defined undercase law, and (3) whether the doctrineofjusticiability permitted Leider’s claim (whether his claim could be measured against a legal standard). (Culp, supra, B208520, at **8-9.) -28- Section 3369 is a defense against being sued in equity for an injunction against criminal conduct. It was not essential to the Culp decision to determine whethersection 3369 bars Leider’s claims. Leider argues that the City and Lewis wereinconsistentin Culp by stating that Code of Civil Procedure section 526a permits taxpayers to challenge governments’illegal expenditures and by challenging the justiciability of Leider’s action. (AnswerBrief, pp. 70-71.) The City and Lewis’s statements were the same as the court's statement in Schur, supra, 47 Cal.2d at page 17, of the statute’s substance, and the City and Lewis’s justiciability challenge invoked different legal principles than does Civil Code section 3369. Their statements were not inconsistent. Leider and the majority in Leider, supra, 243 Cal.App.4th at page 1091, both cite Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 312, for the proposition that “it would be absurd to place a party who has chosen not to argue a point on appeal in a better position than one who argued that point andlost.” This statementis illogical. A party whostrategically considers holding back a legal issue would quickly discover from case law that the -29. odds are overwhelmingly against the issue being decided on the merits if the party did so. By contrast, it is 100 percent likely the issue would be decided on the merits if the party raised it early. Logically, almost all parties facing a law of the case issue have simply overlooked the issue in question. Law of the case does not bar the City and Lewis from relying on their defense. B. Precluding the City and Lewis’s Defense Under Civil Code Section 3369 Would Be Unjust. The City and Lewis assumefor this discussion that to the extent Culp implicitly decided the Civil Code section 3369 issue against them, it manifestly misapplied longstanding bedrock principles of California law, which they have demonstrated in their briefs. (See Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491-492.) The Court of Appeal majority compared the City and Lewis’s position unfavorably with the longstanding principles discussed in Sefton v. Sefton (2015) 236 Cal.App.4th 159, 172, fn. 6 (Sefton), which involved hundreds of years of probate law rulings. (Leider, supra, 243 Cal.App.4th at p. 1094, citing ibid.) But section 3369 was enacted in 1872, as one of California’s first four codes. It seems a bit much to require that a legal principle be older than that to qualify as longstanding. -30- Becauseof the Leider majority's error concerning the defendants’ exposure to contempt proceedings, the majority compared the injustice here (which it found was none) to the injustice in People v. Shuey (1975) 13 Cal.3d 835, 846. In Shuey, law of the case precluded the prosecution from arguing that the defendant wasvalidly arrested for possessing marijuana.(Ibid.) This left the prosecutor with only the argumentthat the arrest issue had been wrongly decided, whichis insufficient to meet the unjust decision exception to law of the case. ([bid.) The majority here distinguishedthis case from the injustice in Sefton, supra, 236 Cal.App.4th at page 172, footnote 6, where an earlier erroneous decision cost a beneficiary his share of a large estate. (Leider, at p. 1094.) Unlike in Shuey, the City and Lewis do not merely disagree with an earlier decision. The continuing injunctions and the harmsthey will impose maketheinjustice in this case human andpalpable, andlike the injustice in Sefton, even though losing a large amount of moneyis a different kind of harm than facing endless contempt proceedings andpossibly jail. In addition, the City and Lewis face an unclearrototilling injunction. It will surely sharpen theparties’ disagreements -31- about compliance and increase conflict at a time when the Court ofAppeal has charged Leider with enforcing the injunctions. The City and Lewis have demonstrated that any person whocarries out the injunctions, such as Lewis or Guarnett or other elephant keepers, are exposed to contempt charges and penalties like anyoneelse, and that the majority erred in dismissing contempt as a possible harm. (Opening Brief, pp. 37-39.) In any contempt proceeding, those charged will suffer the collateral effects on their fundamental rights discussed in Lim, supra, 18 Cal.2d at page 880. These harmswill be a substantial injusticeif the erroneous injunctions stand. The Court of Appeal in Culp manifestly misapplied existing principles because Civil Code section 3369 and Schur, supra, 47 Cal.2d 11, bar Leider’s action. It would be a substantial injustice to preclude the City and Lewis from asserting those principles in their defense. Vv. CONCLUSION. The City and Lewis requestthe relief they asked for in their Opening Brief—that the Supreme Court hold Civil Code -32- section 3369 bars Leider’s taxpayer action, and that it reverse the judgmentin all respects. Respectfully submitted, Kathryn E. Karcher Michael N. Feuer, City Attorney Karcher Harmes PS John A. Carvalho, Deputy City Attorney Attorneys for Defendants/Appellant JOHN R. LEWIS and CITY OF LOS ANGELES CERTIFICATE OF WORD COUNT (California Rules of Court, rule 8.520) The foregoing Reply Brief on the Merits consists of 6,147 words as counted by the Microsoft Word word processing program used to prepareit. September 26, 2016 Matting £ Kachix Kathryn E. Karcher -34- PROOF OF SERVICE I, KATHRYN E. KARCHER,declare: I am and wasat thetime of the service described below a resident of Washington state, Kitsap County, andatleast 18 years old. I am not a party to the above-entitled action. My business addresses are 11011 NE Boulder Place, Bainbridge Island, Washington, 98110, and 401 B Street, Suite 2450, San Diego, California, 92101. On September26, 2016, I served the attached REPLY BRIEF ON THE MERITSbyplacing a true copy of it a sealed envelope, addressed as shown below with the postage prepaid, and depositing it in the U.S. mail at Bainbridge Island, Washington: Attorneys for Aaron Leider, Plaintiff and Appellant: David B. Casselman Stuart B. Esner Casselman Law Group Esner, Chang & Boyer 5567 Reseda Blvd., Suite 330 234 East Colorado Blvd, Suite 750 Tarzana, CA 91356 Pasadena, CA 91101 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and that this declaration was executed on September 26, 2016. Mattar é. Kanchig KATHRYN E. KARCHER -35-
