Karlan v. City of Los Angeles

1

LISA KARLAN et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

B315168

California Court of Appeals, Second District, Fourth Division

November 27, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BS174454, Mary H. Strobel and Robert B Broadbelt, Judges. Affirmed.

Pease Law, Bryan W. Pease and Parisa Ijadi-Maghsoodi; Law Offices of G. David Tenenbaum and G. David Tenenbaum, for Plaintiffs and Appellants.

Hydee Feldstein Soto, City Attorney, Denise C. Mills, Chief Deputy City Attorney, Scott Marcus, Chief Assistant City Attorney and Timothy Martin, Deputy City Attorney, for Defendants and Respondents.

MORI J.

This is the second appeal arising from protesting activity outside an Orthodox Jewish synagogue's facility during a Kapparot ritual in which a chicken is killed and the carcass discarded. (See Animal Protection & Rescue League Inc. et al. v. City of Los Angeles (Dec. 13, 2021 B304781) [nonpub. opn.].) Following their protest of a Kapparot ritual in September 2017, plaintiffs and appellants Lisa Karlan, Cory Mac A'Ghobhainn, and Amy Jean Davis filed this lawsuit against defendants and respondents City of Los Angeles (City) and Los Angeles Police Captain Paul Vernon, requesting damages, declaratory and injunctive relief, and a traditional writ of mandate. The complaint alleged the City abused its discretion and endorsed the exercise of religion by refusing to enforce Penal Code section 597, which prohibits the intentional and malicious killing of animals, against Kapparot practitioners. The complaint also alleged violations of the Tom Bane Civil Rights Acts (the Bane Act) and the Ralph Civil Rights Act of 1976 (the Ralph Act) (Civ. Code, §§ 52.1, 51.7) against Captain Vernon for his threats to arrest appellants if they used a projector or amplified sound during their protest.

On appeal from the judgment of dismissal following an order sustaining the respondents' demurrers to the operative complaint, appellants contend they have adequately pleaded causes of action against respondents for (1) traditional writ of mandate and violations of the (2) Bane Act, (3) Ralph Act, and (4) Establishment Clause of the First Amendment. We affirm.

BACKGROUND

We recite the factual background from the allegations in the operative second amended complaint and matters judicially noticed by the trial court.

On September 12, 2017, the Board of Commissioners of the Los Angeles Department of Animal Services (Department) held a meeting to address a staff report on the City's "Kapparot response." When discussing the report, a commissioner described Kapparot as a "barbaric ritual [that] is protected by the First Amendment although the vast majority of Jews do not believe in the practice." The commissioner further stated, "The Department has struggled with how best and effectively to take action to protect chickens within the framework of the First Amendment " and then invited a deputy city attorney to discuss the legal status of the Kapparot ritual. The attorney stated, "[W]e have a confluence between the First Amendment protection of religion and animal humane laws." She continued, "Since courts have failed to make any clear decision that this is a violation of law, without infringing on the actual ceremony, our goal is to make sure that the animals in transportation, holding, feeding and watering are humanely taken care of."

Department Commissioners held another meeting on September 26, 2017. During that hearing, an unidentified person associated with the City Attorney's Office advised the Department against enforcing Penal Code section 597 against Kapparot practitioners. Subject to various statutory exemptions, Penal Code section 597 prohibits the malicious and intentional killing of an animal. (§§ 597, subd. (a), 599c.)

The following day, appellants protested on a public sidewalk near a Jewish facility performing the Kapparot ritual.^[1]During the protest, Davis attempted to use a small projector to display a message about compassion and how coins could be used in the place of chickens in the ritual. Captain Vernon responded to the protest and threatened to arrest appellants, confiscate Davis's projector, and shut down the protest. When Karlan requested to make a private persons arrest of those participating in the Kapparot ritual, Captain Vernon refused, stating "the government [did] not have the authority" under the United States Constitution to effectuate an arrest under Penal Code section 597 for a recognized religious ritual.

A. The Operative Complaint

Appellants initiated this action in July 2018 and filed the operative complaint on May 29, 2019. The complaint asserted four causes of action against the City and/or Captain Vernon.

1. Traditional Writ of Mandate

Appellant's first cause of action against the City is a two-count claim for traditional writ of mandate. (Code Civ. Proc., § 1085.) The first count requested an order "requiring the City to exercise its discretion with respect to enforcing . . . [section] 597 against killing and discarding of chickens for Kapparot rituals, rather than completely abrogating its responsibilities in this regard simply because religion is involved." The complaint alleged the City had abused its discretion by creating "a de facto exception to animal cruelty laws for killings motivated by religion that has not been provided for by the Legislature and is not required by the Constitution." The complaint further alleged that because Penal Code section 597 "is a neutral law of general applicability, " it can be applied to conduct "motivated by religion" if there is a rational basis to do so. (Citing Church of the Lukumi Babalu Aye v. City of Hialeah (1992) 508 U.S. 520 (Lukumi).)

The second count challenged the constitutionality of Los Angeles Municipal Code section 53.67 (section 53.67), a City ordinance prohibiting the practice of "animal sacrifice" motivated by religion.^[2] Under this count, appellants requested an order requiring the City "to either (a) exercise its discretion to construe and enforce [section] 53.67 in a constitutionally permissible manner, (b) repeal [section] 53.67, or (c) amend [section] 53.67 to cure its constitutional defects."

2. The Bane and Ralph Act

The fourth and fifth causes of action for violations of the Ralph and Bane Acts (Civ. Code, §§ 52.1, 51.7) alleged Captain Vernon had threatened to arrest appellants and confiscate a projector if they used it during their protest. Both causes of action were asserted against Captain Vernon directly and against the City under respondeat superior.

3. Establishment Clause

The sixth cause of action for violation of the Establishment Clause under the First and Fourteenth Amendments of the United States Constitution alleged that the City, by intentionally refusing to enforce Penal Code section 597 against those practicing the Kapparot ritual, "promote[d] criminal acts in the name of religion." Appellants alleged they had standing to assert this claim even though they had not suffered "a concrete and particular injury separate from that of the general public, unlike [sic] Article III courts." They requested a declaration the City was violating the Establishment Clause "by actively conspiring with, cooperating with and protecting the criminal acts" of Kapparot practitioners.^[3]

B. The Demurrers and Oppositions

Respondents filed demurrers to the operative complaint. As to the first cause of action for traditional writ of mandate, respondents argued appellants had not demonstrated a beneficial or public interest to establish standing. On the merits, respondents argued the City had no ministerial duty to enforce Penal Code section 597 against particular individuals and instead had considerable discretion when deciding whether to enforce criminal laws. "There are a number of different issues that need to be determined in any alleged Penal Code violation analysis, including whether the conduct was 'malicious' as required by . . . [section] 597, whether an exception applies, the types of standards that the behavior needs to be scrutinized under, and other laws that might be implicated-all of which reinforce that the City has full discretion." In addition, respondents argued the court had no authority to order the amendment of section 53.67.

Regarding the non-writ causes of action, respondents argued appellants lacked standing to pursue any claim under the Establishment Clause. Respondents also argued the complaint failed to plead violations under the Ralph and Bane Acts, both of which required the infliction of actual violence or a threat of violence.

In opposition to the demurrers, appellants contended their complaint raised "an important public policy" issue, which conferred them with standing to pursue their causes of action for traditional writ of mandate and violation of the Establishment Clause. Appellants challenged the remaining arguments on the merits.

C. The Trial Court's Ruling

Following hearings on the demurrers, the trial court issued an order sustaining the demurrers without leave to amend. The court first questioned appellants' standing under the public interest doctrine but determined it need not resolve the issue. The court found, "Even if [appellants] have sufficiently alleged public interest standing, [they] have not stated a claim for writ of mandate." Under the separation of powers doctrine, the court declined to provide "equitable relief (a writ of mandate) that would, in effect, require [the] City to enforce a penal law in a particular way against practitioners of Kapparot, ...." In so ruling, the court found various factors bore upon the City's decision to abstain enforcement...