Research Conducted on Animals
California Public Records Act
Levine, et al. v. Johanns
United States District Court, Northern District of California
This federal lawsuit challenged a United States Department of Agriculture (USDA) notice stating that the federal humane slaughter laws do not apply to poultry. The 1958 Humane Methods of Slaughter Act states that "'cattle, calves, horses, mules, sheep, swine, and other livestock' must be slaughtered by humane methods." USDA’s attorneys argue the “other livestock” was not meant to include poultry and was intended to be limited to quadrupeds.
Individual poultry consumers, the Humane Society of the United States (HSUS), East Bay Animal Advocates (EBAA), workers’ rights organizations, and poultry processing plant workers filed suit claiming that the USDA notice was arbitrary and capricious because, by stating that there was no federal statute governing the humane slaughter of poultry, the Notice disregarded the application of the 1958 HMSA humane slaughter requirements to "other livestock.”
The USDA moved to dismiss the action based on, inter alia, plaintiffs’ lack of standing. The consumers’ standing is based on their increased risk of consuming bacterially infected poultry due to inhumane slaughter of chickens. The federal court ruled that the risk of contracting a food-borne illness was an injury-in-fact that provided the poultry consumers standing. The poultry workers standing is based on the more dangerous working conditions that are a result of inhumane slaughter. The court held that the physical harm the birds inflicted on the workers while the birds were trying to avoid being slaughtered, and the emotional distress the workers suffered by seeing conscious birds suffer, was enough to establish injury-in-fact.
With regard to HSUS and EBAA, the court dismissed them as plaintiffs. The court held that the asserted interest in the lawsuit (risk to consumer health) was not germane to the purpose of the organizations.
Evans & Page was co-counsel with The HSUS legal team.
RESEARCH CONDUCTED ON ANIMALS
Salk, et al. v. The Regents of the University of California
San Francisco Superior Court
Evans & Page represented the Physicians
Committee for Responsible Medicine in a suit brought by California taxpayers
and physicians against The Regents of the University of California
(The Regents) based on research conducted at the University of
California San Francisco (UCSF). The complaint sought declaratory
and injunctive relief. Standing in the case was premised upon
California’s Code of Civil Procedure section 526a.
For several years government inspectors have documented serious
violations of the Animal Welfare Act at UCSF. The USDA
filed a complaint against UCSF before the Secretary of Agriculture
alleging 75 violations of the Animal Welfare Act. In 2005, UCSF
was fined $92,500, reportedly the fourth-largest settlement amount
ever paid for violations of this nature. Under California law,
taxpayers are entitled to sue if state resources are funding
illegal activities and being used to pay the resulting fines.
The lawsuit sought equitable relief from the court to ensure that
UCSF follows the Animal Welfare Act.
“UCSF broke the law in its mistreatment of dogs,
monkeys, and other animals used in experiments,” says Dan
Kinburn, general counsel for PCRM. “We asked the court
to halt the unlawful experiments and to appoint an independent
monitor to ensure that any future research was conducted in compliance with
the Animal Welfare Act.”
The San Francisco Superior Court sustained
The Regents’ demurrer
and dismissed the complaint. We appealed the decision, and the First Appellate District upheld the lower court’s
dismissal. (Appellate Opinion.) The Supreme Court of
California denied our Petition for Review with one judge dissenting
and recommending that review be granted.
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Animal Legal Defense Fund et al v. The Great Bull Run, LLC et al
United States District Court, Northern District of California
Evans & Page filed a lawsuit against The Great Bull Run ("GBR"), and Lone Star Rodeo, based on GBR's promotion and hosting of bull runs in California. Evans & Page believed that the bull runs violated California's animal cruelty laws. Lone Star Rodeo provided the bulls for GBR's events. The complaint alleged, inter alia, that:
a. GBR representatives on horses use ropes as whips to scare as many as three dozen bulls, each of which weighs approximately 1,500 pounds, to charge towards as many as 1,000 people arrayed along a quarter-mile track;
b. as the bulls approach at speeds faster than humans can run, the participants try to keep up while avoiding the stampede at their heels;
c. many runners intentionally run as close to the bulls as possible to provoke the bulls;
d. an eyewitness at the most recent bull run event in Florida reported that several runners taunted and punched the bulls as they ran by;
e. each GBR event draws approximately 3,000 paying participants; and therefore,
f. GBR events subject bulls to needless suffering, distress, and unnecessary cruelty: (i) according to veterinary experts, bull runs are dangerous for the animals because bulls may become entangled with other bulls or runners, causing them to slip and break their legs or get gored, (ii) bull runs are also inherently stressful to the bulls, who find themselves in an unfamiliar location surrounded by loud noises, often after having travelled for days in cramped transport trailers, (iii) GBR and Lone Star take advantage of this fear and confusion to motivate the animals to stampede.
After the complaint was filed, GBR and Lone Star filed a motion to dismiss, arguing that Plaintiffs (animal welfare organizations) do not have: (1) standing under Article III, or (2) standing under section 17200 of California's Business & Professions Code. Northern District Federal Magistrate Judge Maria-Elena James issued an Order, denying defendants' motion, and holding that Plaintiffs have standing to assert claims against GBR and Lone Star for violating animal cruelty laws.
Having lost their motion to dismiss, defendants conceded to plaintiffs' demands and agreed to stop conducting Bull Runs in California; specifically, defendants signed a Consent Decree (which Judge Maria-Elena James made into an order), which provides that GBR "agress to permanently refrain from conducting within the state of California the Great Bull Run or any other event in which bulls and humans run on the same track;" and Lone Star "agrees to permanently refrain from supplying bulls for the purpose of using them within the state of California for the Great Bull Run or any other event in which bulls and humans run on the same track."
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Harrington v. Hovanec
Placer County Superior Court
David Hovanec shot Colleen Harrington’s dog
13 times using two different guns — .40 and .44 caliber
pistols. In late 2004, Mr. Hovanec plead no contest to two counts
of misdemeanor animal cruelty and was convicted and sentenced
in February 2005. Mr. Hovanec was ordered to pay fines, restitution
to Ms. Harrington, 480 hours of community service, and 52 weeks
of anger management. Ms. Harrington retained Evans & Page
to file a civil action against Mr. Hovanec, and in February 2005
a complaint was filed in Placer County Superior Court. In March
2005, Mr. Hovanec filed a cross-complaint seeking damages against
Ms. Harrington based on her alleged conduct in posting information
on the internet about Mr. Hovanec, the shooting incident, and
Mr. Hovanec’s phone number and address.
Evans & Page filed an anti-SLAPP motion in response to Mr.
Hovanec’s cross-complaint and the superior court granted
the motion, dismissing the cross-complaint and awarding Evans & Page
attorney’s fees. In granting the anti-SLAPP motion, the
trial court reasoned that (1) the message posted on the internet – the
publication referred to in the cross-complaint – was made
in furtherance of Ms. Harrington’s right of free speech,
and (2) Mr. Hovanec had not shown a probability he would prevail
on his claims. The court concluded that the publication of Mr.
Hovanec’s address and phone number did not rise to the
level of a threat which would serve as a basis for the causes
of actions alleged in the cross-complaint.
Shortly thereafter, Ms. Harrington’s complaint went to
trial and on the first day of trial the parties settled the case.
Mr. Hovanec appealed the granting of the anti-SLAPP motion to
the Third District Court of Appeal. The Appellate Court upheld
the lower court’s ruling on the anti-SLAPP motion. (Appellate
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Animal Protection and Rescue League v. Sonoma Foie Gras
Sonoma County Superior Court
Evans & Page co-counseled with attorney David Blatte and brought the first civil lawsuit against a foie gras producer based on the theory that the production of foie gras, and the accompanying lack of care for the ducks, violates California's animal cruelty laws. The lawsuit was based on the groundbreaking video footage (taken by the Animal Protection and Rescue League [A.P.R.L.]), which showed the horrible living condition on the Sonoma Foie Gras farm of the ducks destined to become foie gras . . . the ducks were literally being eaten alive by rats. An LA Times reporter accompanied A.P.R.L. when the video footage was taken, and immediately thereafter published an article about the incident.
Sonoma Foie Gras responded by filing a cross-complaint against the A.P.R.L. activists; the cross-complaint alleged that the trespass was part of a grand scheme by the activists to document the conditions on the Sonoma Foie Gras farm and publicize the issue, in furtherance of A.P.R.L.'s greater agenda of animal rights. Evans & Page filed an anti-SLAPP motion challenging the cross-complaint, and the court agreed, granted the anti-SLAPP motion; Sonoma Foie Gras thereafter agreed to pay plaintiffs' attorney's fees.
Friends of the Formerly Friendless v. Brock
Alameda County Superior Court
Evans & Page represented a rescue organization attempting to regain custody of cats placed in foster care after the foster parent refused to return the cats. The defendant filed a cross-complaint based on statements made by the rescue organization. The improperly pled causes of action were entitled "Intentional Infliction of Emotional Distress" and "Unlawful and Fraudulent Business Practices." Evans & Page filed an anti-SLAPP motion against the cross-complaint, and the court granted the motion, struck the cross-complaint's causes of action, and ruled that the defendant must pay Evans & Page's attorney's fees.
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Peck v. Thompson
San Francisco County Superior Court
Evans & Page represented an animal protection
activist (referred to as Plaintiff herein) injured
when trying to help an at-large dog that appeared to be starving
and homeless. The
Plaintiff saw a German Shepherd dog eating from a garbage can
in her neighborhood. She attempted to find out who owned the
dog, but was unable to lure the dog close enough, so she returned
to her house to get dog treats and a leash. After an extensive
chase, wherein the dog crossed many busy streets, the Plaintiff
found the dog again in front of a house. She gave the dog
a treat, and discovered from reading the dog’s tag that
it was sitting in front of its owner’s house.
came out of the house (referred to as Defendant 1 herein) an
attempted to retrieve the dog, but when she did so, the Plaintiff
observed signs of fear in the dog, and thinking that this was
because of animal abuse, refused to hand the dog over, stating
that she would only give it to the owner. The Plaintiff had been
an animal keeper at the San Francisco Zoo for many years and
was well aware of animal behavior. Defendant 1 grabbed
the collar in an attempt to use physical force to get the dog
inside. The Plaintiff asked Defendant 1 if she owned the dog
and Defendant 1 admitted that she did not. The Plaintiff
requested that Defendant1 call the police to resolve the issue. Finally,
the Plaintiff told Defendant 1 that she would take the dog to
the local shelter and that the owner could claim the dog there. Defendant
1 continued to yank on the dog’s collar, at times lifting
the dog off the ground by its collar. The Plaintiff held
onto the collar. Finally, Defendant 1 twisted the collar
while the Plaintiff’s fingers were inside the collar. While
twisting the collar, Defendant 1 gave the Plaintiff a wry smile. At
that moment, the Plaintiff’s fingers “popped” while
the collar twisted with the fingers caught therein. The
result was multiple surgeries to Plaintiff’s hand and a
permanent disfigurement wherein Plaintiff’s finger would
never remain straight or have normal functionality.
the lay witnesses and parties to the incident, Evans & Page
called two expert medical witnesses to discuss the surgeries,
physical therapy and future loss of functionality. The
defense called an expert animal behaviorist.
The jury deliberated for one day and returned
a Plaintiff’s verdict, but reduced the amount due to comparative
fault. Plaintiff also recovered all of her costs, including expert
witness fees due to an unaccepted California Code of Civil Procedure
section 998 offer.
The case addressed novel legal questions, including
what rights do good Samaritan finders of dogs have against a
non-owner third party. No California case had ever addressed
this issue. Evans & Page
were successful in getting the judge to instruct the jury as
follows: An owner or an employee of an owner may not
use unreasonable force to recover property from a person who
has lawfully taken possession of the property even if the person
wrongfully refuses to return it.
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Pereira v. Gleason
Calaveras County Superior Court
In a five day jury trial, Evans & Page represented a person
whose dog was hit by a speeding vehicle. Evans & Page
was successful in securing a Plaintiff’s verdict; however
the jury found comparative fault on the part of the Plaintiff. The
case required extensive expert testimony, including a veterinarian,
and a vehicle speed expert that analyzed skid marks from the
scene of the accident and was able to deduce the speed of the
vehicle before the driver depressed the brakes.
The defendant driver (referred to as
Defendant herein) was driving his Ford Mustang on a rural road
when it was almost dark outside. Defendant
was speeding and skidded for over 90 feet before coming into
contact with Plaintiff’s dog. The speed limit at
the scene of the impact was 25 m.p.h. Plaintiff’s
speed expert testified that the Mustang was traveling at least
50 MPH immediately before the Defendant hit Plaintiff’s
dog. Plaintiff had to take emergency measures to avoid
being personally hit by Defendant’s car. Plaintiff’s
dog was severely injured.
After all of the witnesses testified,
the court considered jury instructions and Plaintiff was successful
in getting an instruction presented to the jury on punitive
damages based on California Civil Code section 3340. The judge believed that there
was adequate evidence to support a reasonable jury finding the
Defendant liable for punitive damages. However, the jury
ultimately did not award punitive damages, although they did
find in favor of the plaintiff.
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CALIFORNIA PUBLIC RECORDS ACT
The Humane Society of the United States
v. The Regents of the University of California
Yolo County Superior Court
Evans & Page represented The HSUS in a six year legal battle
to acquire public documents that are being withheld by the University
of California. The documents include emails between U.C.
employees and poultry farmers. Documents disclosed to date
hint at the fact that the AIC was asked by the poultry industry
to prepare the report, as opposed to independently deciding to
analyze the issues (see for example this document). A
copy of the initiating petition is here.
At the University of California Davis there is a department called
Issues Center (AIC). At a time when Californians were
planning to vote on Proposition 2, which was eventually passed,
the AIC issued a report stating that it would cost consumers
more money for eggs that are produced by hens that are provided
with more space (than the hens are currently provided). According
to the study,
the price increase would be 1¢ per egg if the hens were
given more room as mandated by Proposition 2.
Plaintiffs successfully got more than 1,000 documents from the Regents as a result of the lawsuit, and the court ruled that plaintiffs were the prevailing party and awarded attorneys' fees.
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Alfredo Kuba and San Diego Animal Advocates v. SeaWorld, Inc., et al.
United States District Court, Southern District of California
Ninth Circuit Court of Appeals
San Diego Superior Court
Plaintiffs attempted to peacefully demonstrate at Sea World Adventure Park in San Diego and were kicked off the property and threatened with arrest. Sea World rents the land for its operations from the City of San Diego and the rent is calculated as a percentage of Sea World’s revenue. The land is located (in its entirety) in a dedicated public park - Mission Bay Park. Sea World has a policy of forbidding all free speech activities. Plaintiffs sued under the California and United States Constitution’s free speech laws.
The case is being heard in the Southern
District of California (federal court). In 2009,
the plaintiffs and defendants completed briefing on their cross-motions
for summary judgment. The motions were being considered
by the Honorable Michael M. Anello.
Plaintiffs’ federal court jurisdiction
was based on 42 U.S.C. section 1983. Judge Anello ruled that
there was not sufficient evidence to demonstrate that SeaWorld
should be considered as a state actor and therefore Plaintiffs
could not succeed on their section 1983 claim. Since Plaintiffs’ case
is also, and separately (from section 1983), based on the California
State Constitution’s Liberty of Speech Clause, Judge Anello
addressed Plaintiffs’ California Constitutional claims
by ruling that the court was declining to exercise supplemental
jurisdiction over the California claim.
Plaintiffs appealed Judge Anello’s ruling to the 9th Circuit Court
of Appeals. The 9th Circuit affirmed Judge Anello's ruling, indicating that Plaintiffs were free to pursue their California claims in superior court.
Thereafter, Evans & Page filed a complaint on behalf of Plaintiffs in San Diego Superior Court. SeaWorld demurred to the complaint, arguing that the action was time barred. However, the trial court held that Plaintiffs state action was timely filed. Prior to trial, SeaWorld filed a motion for summary judgment arguing that they were not open to the general public, and that there was no evidence that sidewalks (open to the public) crossed their leasehold. Plaintiffs opposed the motion with ample evidence demonstrating that in the past, and currently, sidewalks (open to the public) cross the SeaWorld leased land.
In a surprise ruling, the trial court determined that the dedicated public park land leased by SeaWorld is akin to privately owned land, and therefore SeaWorld has the same rights as a private leaseholder, i.e., to exclude any members of the public that it wishes. This ruling is contrary to SeaWorld's lease, and contrary to the public park dedication.
In April 2015, the appellate court affirmed.
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1. CCP § 526a states:
An action to obtain a judgment, restraining and preventing
any illegal expenditure of, waste of, or injury to, the estate,
funds, or other property of a county, town, city or city and
county of the state, may be maintained against any officer
thereof, or any agent, or other person, acting in its behalf,
either by a citizen resident therein, or by a corporation,
who is assessed for and is liable to pay, or, within one year
before the commencement of the action, has paid, a tax therein.
This section does not affect any right of action in favor of
a county, city, town, or city and county, or any public officer;
provided, that no injunction shall be granted restraining the
offering for sale, sale, or issuance of any municipal bonds
for public improvements or public utilities.
An action brought
pursuant to this section to enjoin a public improvement
project shall take special precedence over all civil matters
on the calendar of the court except those matters to which
equal precedence on the calendar is granted by law.
2. Section 1983 is entitled “Civil
action for deprivation of rights” and it states:
Every person who,
under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding
for redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.
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