LEGAL CHALLENGES TO PROPERTY INTEREST INFRINGEMENT     NEW 4/26/08  Updated 9/30/2016

Legal challenges to local ordinances and state statutes may be either criminal, when individual defendants are
charged with violations of criminal provisions, or civil, either arising from alleged violations of civil provisions or
actions brought by individuals and/or organizations seeking declaratory or injunctive relief apart from any
enforcement activion.  These civil cases often fail for plaintiff's lack of "standing" and/or failure to state a viable
"cause of action" representing a plausible legal theory supported by adequate factual allegations.  Cases dismissed
for these reasons simply fail and neither uphold the challenged law nor create any precedent for future cases.  
Typically this type of case has been inadequately prepared as to proper legal pleadings and factual allegations,
although court language may also suggest underlying weaknesses to any challenge or simply failure to have an
appropriate plaintiff and facts.  Trial court decisions apply only to that individual case.  Only published appellate
cases may be cited as legal precedent, binding on other courts within the same jurisdiction and of arguable
guidance to other courts.  Appellate courts at any level, either state or federal, have restrictive criteria as to
acceptance of cases for hearing, so that many cases simply cannot reach an appellate court for substantive re-
consideration. Even a published appellate case may be decided one or more issues not relevant to the underlying
subject issues and not be useful precedent for similar cases.   A successful case will generally apply only to narrow
issues that may be easily curable by amendment by the lawmaking body when the political will to pursue the policy
issues persist.  An unsuccessful case will set negative precedent on the political level even if the case does not rise
to the level of judicial precedent.  

Unofficial copies of cases provided for educational purposes.  Use official editions for citation purposes.

Material on this page, Copyright, The Animal Council 2008-2016











CASE
ISSUES
HOLDING
STATUS
CALIFORNIA
     
AMERICAN CANINE FOUNDATION,
Plaintiff,
v.
BEN SUN, D.V.M., the Public Health
Veterinarian for the State of
California et al., Defendants

Unpublished

No. C-06-4713 MMC    
Our File document substituted, 7/30/10


November 27, 2007
Challenge to Los Angeles Courty
ordinance enacted April 2006
requiring dogs over 4 months
micro-chipped and sterilized
unless qualifying for an unaltered
dog license.
 
(1) ordinance not preempted by the
federal Animal Welfare Act (“AWA”);
(2) does not violate federal and
state constitutional rights to
procedural due process; (3)  does
not violate federal and state
constitutional rights to substantive
due process and equal protection;
(4) is not an ex post facto law in
violation of Article I, sections 9 and
10, of the United States
Constitution; (5) does not violate
the Takings Clause of the Fifth
Amendment to the United States
Constitution; (6) does not adversely
affect interstate commerce in
violation of the Commerce Clause
of the United States Constitution;
(7) does not violate “freedom of
contract” by “infringing on the
business of selling canines in
California and thus to the rest of
the United States,”;  (8) is not
“unconstitutionally vague,”; (9)
does not violate the right to
freedom of association under the
First Amendment to the United
States Constitution; and (10)  does
not violate California Constitution.  
ORDER GRANTING COUNTY OF
LOS ANGELES’ MOTION TO
DISMISS:  lack of standing and
failure to state a claim, pursuant to
Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure.
United States District Court
For the Northern District of
California
Gail M. McMahon v. Diane Craig et al
October 28, 2009
Request for order directing
de-publication of the opinion.  
Denied
Supreme Court of California
En Banc
Gail M. McMahon v Diane Craig et al
G040324

Filed 8/31/09
Certified for Publication
ORDER MODIFYING OPINION
AND DENYING PETITION FOR
REHEARING; NO CHANGE IN
JUDGMENT
Added plaintiff's argument
that vets undertaking to
provide care also undertake a
duty to protect owner's
emotional health; other minor
changes to opinion below.  
Court of Appeal of California
4th Appellate District, Division 3
Gail M. McMahon v Diane Craig et al
G040324

Filed 7/31/09
Certified for Publication
Trial court sustained defendant
veterinarian's demurrer to plaintiff's
(fancier owner/breeder) cause of
action for intentional infliction of
emotional distress and complaint
seeking damages for emotional
distress and loss of
companionship of patient dog who
died while in post-operative care of
defendant.  
Affirmed trial court.  No basis
to impose duty on a vet to
avoid causing emotional
distress to owner of animal
patient when there is no
equivalent duty on physician
treating parents' child.  
(Defendants entitled to costs
for appeal.)  
Court of Appeal of California
4th Appellate District, Division 3
People v. Keith Chung
B212210
Filed 6/3/10
Certified for Publication
Appeal from LA County Superior Ct,
denied criminal defendant's motion
to supress evidence obtained from
search w/o warrant or consent
based on exigent circumstances of
dog heard crying (later
euthanized).  (Defendant pled no
contest, 1 count 597(a), sentenced
16 mos state prison.  
Affirmed trial court; decision
reviews exigent circumstances
cases; distinguishes
Broden,
Quackenbush and Conway.  
Note, Court did
not address
contention of excepting
personal property from
exigent circumstances
exception.    
Court of Appeal of California
2nd Appellate District
Division 3
Concerned Dog Owners of
California et al. v City of Los
Angeles, et al.
No. B218003
Decided April 29, 2011  
Plaintiff's appeal of denial of relief
from enforcement of City of Los
Angeles mandatory spay/neuter
ordinance based on 14 claims.
Affirmed trial court's denial of
CDOC's petitions for relief.
Court of Appeal, Second
District, Division 1, California
Kevin Kimes v Charles Grosser et al
A128296
Filed 5/31/11
Certified for Publication
Plaintiff's appeal from Trial Court's
dismissal of his suit for recovery of
treatment cost for cat deliberately
shot by defendant based on TC
granting D's motion to exclude
evidence of costs as limited to fmv.
Reversed, Plaintiff entitled to
present evidence of costs to
treat pet, not limited by lack of
fmv, but defendant entitled to
introduce evidence costs not
reasonable: also may be
entitled to punitive damages.  
Court of Appeal of California
1st Appellate District
Division 1
SOUTH DAKOTA
     
State of South Dakota v. Fifteen
Impounded Cats
#25408
Filed 6/23/10
Appeal from 6th Circuit Ct ratifying
Pierre police impoundment of 15
cats loose in cluttered, moving
vehicle w/driver vision obstructed,
as exigent circumstances,
subsequent transferring ownership
to humane society.  
Affirmed (3-2): 1) No due
process violation; 2) evidence
was adequate under legal
standard; 3) no lack of
procedural due process (2
hearings) when party actually
appeared, participated.  
Dissent: statutory construction
of statute re "exigent
circumstances" was incorrect,
i.e. none existed, therefore
impoundment, charges for
costs of care, termination of
ownership not correct.  
Supreme Court of
South Dakota