Filed 7/5/16 Stop Animal Exploitation Now v. Santa Cruz Biotechnology CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

STOP ANIMAL EXPLOITATION NOW,                                        H039770
                                                                    (Santa Cruz County
         Plaintiff and Appellant,                                    Super. Ct. No. CV176022)

         v.

SANTA CRUZ BIOTECHNOLOGY,
INC.,

         Defendant and Appellant.

         Plaintiff Stop Animal Exploitation Now appeals the judgment entered after a
demurrer to its complaint under the Unfair Competition Law (Bus. & Prof. Code,
§ 17200 et seq.) was sustained without leave to amend. Defendant Santa Cruz
Biotechnology, Inc. cross-appealed to challenge plaintiff’s standing. Plaintiff claims the
trial court abused its discretion when, based on a then-pending federal investigation and
enforcement action, it equitably abstained from adjudicating the merits of the allegations
of animal cruelty constituting an unlawful business practice. In light of the conclusion of
the federal action and the parties’ acknowledgement that defendant will no longer
conduct research related to animals protected by the federal Animal Welfare Act
(7 U.S.C. § 2131 et seq.), we will find that the appeal and cross-appeal are moot
regarding plaintiff’s allegations related to those animals. However, we will reverse the
judgment to allow plaintiff leave to amend because there is a reasonable possibility
plaintiff can state a cause of action related to animals not protected by the Animal
Welfare Act.
                          I.   TRIAL COURT PROCEEDINGS
       Plaintiff is a non-profit animal welfare organization dedicated to “ending the abuse
of animals in research laboratories ... .” According to plaintiff’s complaint, defendant is a
corporation that operates an animal research facility using goats and rabbits. Plaintiff’s
complaint was based on inspection reports of defendant’s facility prepared by the Animal
and Plant Health Inspection Service (APHIS), a federal agency within the United States
Department of Agriculture (USDA) responsible for enforcing the federal Animal Welfare
Act. The complaint detailed allegedly cruel actions taken against several specific goats
and alleged more generally that “critically ill goats and rabbits were denied veterinary
care and rabbits were routinely euthanized in buckets.” The complaint also contained
broader allegations about animals based on plaintiff’s information and belief.
       Plaintiff’s single cause of action alleged defendant “engaged in unlawful and
unfair conduct by: (a) administering improper medical treatment to unhealthy animals,
(b) overdrawing blood from animals, (c) harvesting blood from unhealthy animals,
(d) employing procedures insufficient to monitor animal health, and (e) maintaining
inadequate medical records.” According to plaintiff, defendant’s business practices were
unlawful because they constituted animal cruelty under the Penal Code, and providing
inadequate care to animals gave defendant a competitive advantage over its competitors.
(Citing Pen. Code, §§ 597, subd. (b), 597.1, subd. (a)(1), 597f, subd. (a).) Plaintiff
sought a permanent injunction preventing defendant from: “a. Maintaining inadequate
medical records for unhealthy animals; [¶] b. Overdrawing blood from
animals; [¶] c. Harvesting blood from unhealthy animals; [¶] d. Inadequately
monitoring the health of animals under its care and custody; and [¶] e. Providing
improper medical treatment to unhealthy animals.”
       Defendant demurred, arguing: plaintiff lacked standing under the Unfair
Competition Law (UCL); the complaint was preempted by the Animal Welfare Act; the
court should abstain from deciding the case in deference to USDA jurisdiction; and,

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alternatively, that the court should stay the case under the primary jurisdiction doctrine
until the USDA enforcement action was resolved. Defendant asked the court to exercise
its discretion to abstain from deciding the case, arguing that a decision would interfere
with a USDA administrative enforcement action pending against defendant. At a hearing
on the demurrer, the court determined that plaintiff had standing. However, the court
found equitable abstention appropriate based on the difficulty of “animal-by-animal”
enforcement of the Penal Code sections at issue (both in establishing violations of the
UCL and in enforcing any injunctive relief), acknowledging that these actions are
generally “taken care of ... by referral to the appropriate agency ... [or] the district
attorney,” and noting that a USDA administrative action was pending against defendant
for the same conduct alleged in the complaint. Based on that abstention finding, the court
sustained the demurrer without leave to amend and entered judgment for defendant.
       Plaintiff appealed the judgment and defendant cross-appealed to challenge
plaintiff’s standing. Plaintiff defends the trial court’s standing finding, but argues the
trial court abused its discretion by abstaining from deciding the case on the merits.
                                     II.    DISCUSSION
   A. MOOTNESS
           1. Scope of Trial Court Proceedings
       Plaintiff asserts on appeal that its complaint “encompasses all animals at
[defendant’s facility], which include[s] rats, mice, and other animals excluded by the
[Animal Welfare Act],” and alternatively requests leave to amend its complaint to the
extent we find those animals are not covered by the complaint. (Italics in original.)
       The factual allegations in the complaint are based on APHIS inspection reports
and the only species specifically identified in the complaint are goats and rabbits. On the
issue of standing, the complaint alleges that plaintiff began investigating defendant when
plaintiff learned through a Freedom of Information Act (5 U.S.C. § 552 et seq.) request
that “critically ill goats and rabbits were denied veterinary care” at defendant’s facility.

                                               3
       At the hearing on the demurrer, although plaintiff referred generally to animals,
plaintiff did not argue against abstention based on the protection of species not covered
by the Animal Welfare Act. To the contrary, plaintiff’s argument assumed that the
USDA could enforce the Animal Welfare Act against defendant but that the USDA’s
jurisdiction did not preclude plaintiff from proceeding simultaneously under state law.
Plaintiff alternatively requested that the court stay the proceedings until completion of the
USDA investigation if the court was inclined to see how the USDA resolved those
proceedings.
       Mice and rats “bred for use in research” are not protected under the Animal
Welfare Act. (7 U.S.C. § 2132(g).) Had plaintiff intended to focus its case against
defendant to encompass mice and rats at defendant’s facility, plaintiff could have argued
below that abstention was inappropriate as to those species because there was no
administrative enforcement mechanism with which the trial court would be interfering.
But notwithstanding plaintiff’s broad reference to defendant’s treatment of “animals” in
its UCL cause of action, the proceedings in the trial court relating to equitable abstention
focused on the scope and effect of the USDA’s then-pending enforcement action, which
was necessarily limited to animals within the Animal Welfare Act.
          2. The Appeal is Moot as to Animals Protected by the Animal Welfare Act
       Generally, “when reviewing the correctness of a trial court’s judgment, an
appellate court will consider only matters which were part of the record at the time the
judgment was entered.” (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.)
However, “courts have not hesitated to consider postjudgment events when,” among
other things, “subsequent events have caused issues to become moot.” (Ibid.) “A case is
moot when the decision of the reviewing court ‘can have no practical impact or provide
the parties effectual relief.’ ” (MHC Operating Limited Partnership v. City of San Jose
(2003) 106 Cal.App.4th 204, 214 (MHC).)



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       We requested supplemental briefing on the appropriateness of taking judicial
notice of a USDA consent decision and order that resolved three Animal Welfare Act
docket numbers associated with defendant. (Gov. Code, § 68081; Evid. Code, §§ 455,
subd. (a); 459, subd. (c).) Both parties acknowledge that we have discretion to take
judicial notice of that consent decision as an official act of the executive department of
the United States. (Evid. Code, § 452, subd. (c).) We therefore take judicial notice of
that consent decision.
       Our supplemental briefing request also asked the parties to discuss the effect, if
any, that the consent decision has on this appeal. Defendant notes that the consent
decision “requires [defendant] to cease functioning as a ‘research facility’ under the
[Animal Welfare Act] as of May 31, 2016,” meaning that defendant “will no longer use
goats and rabbits for research.” Plaintiff similarly notes that the terms of the consent
decision require defendant to “cease operating as a research facility (as that term is
defined by the [Animal Welfare Act]) and request cancellation of its registration as a
research facility, effective May 31, 2016.” The parties thus agree that animals protected
by the Animal Welfare Act will no longer be used for research at defendant’s facility as a
result of the consent decision.
       As plaintiff acknowledges, “the case is seemingly moot, because [defendant] will
no longer be working with [Animal Welfare Act]-regulated animals.” Plaintiff
nonetheless urges this court to exercise its discretion to address the merits of the case as
presenting an issue of public interest that is likely to recur, citing Epstein v. Superior
Court (2011) 193 Cal.App.4th 1405, 1411 [courts have discretion to decide otherwise
moot case “ ‘when the case presents an issue of broad public interest that is likely to
recur’ ”].
       The USDA enforcement action is concluded. Based on the resulting federal
consent decision, the parties agree that goats and rabbits will no longer be the subject of
research at defendant’s facility. Consequently, any opinion issued by this court

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concerning animals that are no longer being used at defendant’s facility—including
plaintiff’s standing to seek the relief it requested—would “ ‘have no practical impact’ ”
and would not provide the parties any “ ‘effectual relief.’ ” (MHC, supra,
106 Cal.App.4th at p. 214.) We decline to issue what would effectively be an advisory
opinion as to the appeal and cross-appeal challenging the trial court’s order sustaining the
demurrer. We will, however, consider the issue of whether plaintiff should be given an
opportunity to amend the complaint.1
   B. LEAVE TO AMEND
       Plaintiff urges that if the complaint is understood as focusing only on goats and
rabbits, we should reverse and remand with instructions to grant leave to add allegations
about other species. Plaintiff bears the burden to show a “reasonable possibility” that an
amendment would cure any defect in the complaint. (Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074, 1081; Code Civ. Proc., § 472c, subd. (a) [“When any court
makes an order sustaining a demurrer without leave to amend the question as to
whether ... such court abused its discretion in making such an order is open on appeal
even though no request to amend such pleading was made.”].)
       The trial court’s decision to abstain was based largely on its hesitance to “perform
the job of being an administrative agency,” observing that “the United States Department
of Agriculture is presently investigating” defendant. Plaintiff seeks leave to amend to
add specific allegations about species at defendant’s facility that are not protected under

       1
          Plaintiff has requested judicial notice of defendant’s response to certain
document requests propounded by plaintiff in discovery. Plaintiff contends that
defendant’s discovery response is relevant to show that defendant understood the
word “animal” as used in the complaint to broadly include rats and mice, not just goats
and rabbits. (Citing Arce v. Kaiser Foundation Health Plan, Inc. (2010)
181 Cal.App.4th 471, 485.) We deny plaintiff’s request for judicial notice. The
portion of defendant’s discovery response relied on by plaintiff is defendant’s objection
to a definition of “animal” that was apparently contained in plaintiff’s document requests,
not a substantive response. Defendant’s objection does not demonstrate whether
defendant understood the complaint to include rats and mice.

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the Animal Welfare Act and are therefore not within USDA jurisdiction, including mice
and rats bred for use in research. (7 U.S.C. § 2132(g).) Such an amendment would
negate one of the main bases for the trial court’s decision to abstain.2 Plaintiff has thus
demonstrated a reasonable possibility that amending its complaint to add specific
allegations about species other than goats and rabbits would resolve the issue that led the
trial court to abstain. While we find plaintiff has met its burden to obtain leave to amend,
we express no opinion regarding plaintiff’s standing under an amended complaint or the
merits of any amendment. We leave resolution of those issues to the trial court on
remand.

                                  III.    DISPOSITION
       The judgment is reversed and the matter is remanded for the trial court to enter a
new order sustaining the demurrer with leave to amend to add allegations about species
outside the scope of the Animal Welfare Act. Each party shall bear its own costs on
appeal.




       2
         Though the trial court also based its abstention on the potential burden of
enforcing injunctive relief, it did not have occasion to determine whether that basis,
standing alone, would be adequate to support abstention.

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                                      ____________________________________
                                      Grover, J.




WE CONCUR:




____________________________
Bamattre-Manoukian, Acting P.J.




____________________________
Márquez, J.




Stop Animal Exploitation Now v Santa Cruz Biotechnology, Inc.
H039770
