Filed 5/25/17




      IN THE SUPREME COURT OF CALIFORNIA


AARON LEIDER,                         )
                                      )
           Plaintiff and Appellant,   )
                                      )                            S232622
           v.                         )
                                      )                     Ct.App. 2/8 B244414
JOHN LEWIS et al.,                    )
                                      )                     Los Angeles County
           Defendants and Appellants. )                   Super. Ct. No. BC375234
____________________________________)


        This taxpayer action arises from claims of elephant abuse at the Los
Angeles Zoo, in alleged violation of various Penal Code provisions. An earlier
appeal resulted in the reversal of a ruling that the complaint raised nonjusticiable
issues of public policy. The case proceeded to trial, and plaintiff was awarded
injunctive and declaratory relief. This second appeal presents two issues: (1) Did
the Court of Appeal‟s earlier decision establish law of the case, barring
defendants‟ new argument that the claim for equitable relief is precluded by Civil
Code section 3369 (section 3369)?1 (2) Does the “as otherwise provided by law”
exception in section 3369 permit equitable relief in a taxpayer action seeking to




1      “Neither specific nor preventive relief can be granted to enforce a penalty
or forfeiture in any case, nor to enforce a penal law, except in a case of nuisance or
as otherwise provided by law.” (§ 3369.)



                                          1
restrain “illegal” public expenditures under Code of Civil Procedure section
526a?2
       The Court of Appeal answered these questions in the affirmative, with a
dissent on both points. We reverse.
                                I. BACKGROUND
       The original complaint was filed by Robert Culp and Aaron Leider against
the City of Los Angeles and the Director of the Los Angeles Zoo, John Lewis
(collectively, the City). Plaintiffs alleged the zoo was violating Penal Code
section 596.5 by abusing its elephants.3 They sought injunctive and declaratory
relief as taxpayers under Code of Civil Procedure section 526a. Their theory was
that the City‟s criminal mistreatment of the animals amounted to an illegal and
wasteful expenditure of public funds. The trial court granted summary judgment
to the City. It ruled that the claims presented were not justiciable in a taxpayer
action, and should be left for public officials or voters to resolve. The Court of
Appeal reversed. It discerned a triable issue of fact as to whether the City‟s

2       Code of Civil Procedure section 526a provides in relevant part: “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.”
3       “It shall be a misdemeanor for any owner or manager of an elephant to
engage in abusive behavior towards the elephant, which behavior shall include the
discipline of the elephant by any of the following methods:
        “(a) Deprivation of food, water, or rest.
        “(b) Use of electricity.
        “(c) Physical punishment resulting in damage, scarring, or breakage of skin.
        “(d) Insertion of any instrument into any bodily orifice.
        “(e) Use of martingales.
        “(f) Use of block and tackle.” (Pen. Code, § 596.5.)



                                          2
treatment of its elephants violated Penal Code section 596.5, and held that the
statute provided “a legal standard by which the alleged governmental conduct may
be tested,” which “takes the issue beyond one of mere governmental discretion.”
(Culp v. City of Los Angeles (Sept. 23, 2009, B208520 [nonpub. opn.]) (Culp).)
       Leider filed an amended complaint, again seeking injunctive and
declaratory relief under Code of Civil Procedure section 526a. Former lead
plaintiff Culp was by then deceased. The amended complaint added claims of
cruelty and neglect under Penal Code sections 597 and 597.1.4 The City
demurred, relying on Civil Code section 3369 for the proposition that equity will
not enjoin a Penal Code violation. The trial court overruled the demurrer, finding
that the Culp decision foreclosed the City‟s Civil Code section 3369 argument. To
accept that argument, the court said, “would render superfluous the entire
appellate discussion of Penal Code section 596.5.”
       After a bench trial, the court issued injunctions prohibiting the City from
using bullhooks or electric shock on zoo elephants, and requiring it to exercise the
elephants and rototill their enclosure regularly. It entered declarations to the same
effect.5 The City appealed, and a divided Court of Appeal affirmed.
       The majority held that (1) law of the case barred the section 3369 defense,
and (2) the Legislature had authorized taxpayer actions aimed at enjoining
government expenditures that support criminal conduct. The dissent took the view


4      Penal Code section 597 proscribes cruelty to animals in general terms.
Section 597.1 makes it a misdemeanor to keep an animal in any enclosure
“without proper care and attention.” (Pen. Code, § 597.1, subd. (a)(1).)
5      The court acknowledged the City‟s assurance that it had stopped using
bullhooks and electric shock. However, it noted the City had only discontinued
the use of bullhooks during the litigation, and could resume the use of both tools
unless restrained from doing so.



                                          3
that law of the case did not apply because the validity of the section 3369 defense
was not implicitly decided in Culp. It further concluded that under Nathan H.
Schur, Inc. v. City of Santa Monica (1956) 47 Cal.2d 11 (Schur), taxpayer actions
cannot be brought to restrain Penal Code violations. Although Schur did not
consider the “as otherwise provided by law” exception, which was added to
section 3369 in 1977, the principle that equity will not intervene to restrain
criminal activity without specific statutory authorization is a long-established one.
The dissent reasoned that the changes made in 1977 did not alter this settled rule,
noting that legislative history shows the amendments were intended merely to
reorganize code provisions.
                                  II. DISCUSSION
       Both issues here turn on questions of law, which we review de novo.
A. Law of the Case
       “ „The doctrine of “law of the case” deals with the effect of the first
appellate decision on the subsequent retrial or appeal: The decision of an
appellate court, stating a rule of law necessary to the decision of the case,
conclusively establishes that rule and makes it determinative of the rights of the
same parties in any subsequent retrial or appeal in the same case.‟ [Citation.]”
(Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) “Generally, the doctrine
of law of the case does not extend to points of law which might have been but
were not presented and determined in the prior appeal. [Citation.] As an
exception to the general rule, the doctrine is . . . held applicable to questions not
expressly decided but implicitly decided because they were essential to the
decision on the prior appeal.” (Estate of Horman (1971) 5 Cal.3d 62, 73
(Horman).)
       The justiciability issue decided in Culp turned on whether Penal Code
section 596.5 provided a sufficiently enforceable legal standard to allow a court to

                                           4
resolve the plaintiffs‟ claims without “trespass[ing] into the domain of legislative
or executive discretion.” (Harman v. City and County of San Francisco (1972)
7 Cal.3d 150, 161.)6 The Court of Appeal majority reasoned that when Culp held
plaintiffs‟ claims justiciable, it implicitly determined that Code of Civil Procedure
section 526a authorizes injunctive relief for violations of the Penal Code‟s animal
abuse provisions. The majority relied on Yu v. Signet Bank/Virginia (2002) 103
Cal.App.4th 298 (Yu). On the first Yu appeal, the court reversed a grant of
summary judgment. It found triable issues regarding the plaintiffs‟ abuse of
process claim, which it said was indistinguishable from the claims held cognizable
in Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94 (Barquis). (Yu, at pp.
306-307.) On remand, however, the trial court sustained a demurrer without leave
to amend, distinguishing Barquis and limiting it to its facts. (Yu, at p. 308.) The
Court of Appeal again reversed. It declared the trial court‟s decision “untenable,”
and held that law of the case barred the defendants from contending Barquis was
wrongly decided. (Id. at p. 310.) The court reasoned that its first opinion had
“necessarily determined that the Yus had stated a cause of action for abuse of
process, and that Barquis remained good law.” (Ibid.)
       The Yu court rejected the defendants‟ reliance on the rule that law of the
case does not extend to issues that might have been but were not raised on a prior
appeal. It concluded that whether there was a cause of action for abuse of process
under Barquis was an issue decided on the first appeal. There the defendants had
unsuccessfully tried to distinguish Barquis; in the second appeal they were trying


6     The term “justiciability” has several meanings. (See 3 Witkin, Cal.
Procedure (5th ed. 2008) Actions, § 21, p. 84.) The Culp appeal dealt with the
branch of the doctrine pertaining to political questions, which courts try to avoid.
(See Witkin, supra, § 37, pp. 103-104.)



                                          5
to discredit it. “Litigants are not free to continually reinvent their position on legal
issues that have been resolved against them by an appellate court. „It would be
absurd that a party who has chosen not to argue a point on a first appeal should
stand better as regards the law of the case than one who had argued and lost.‟ ”
(Yu, supra, 103 Cal.App.4th at p. 312.)7
       The majority below was not persuaded by the City‟s reliance on Horman,
supra, 5 Cal.3d 62, which involved a petition by the State of California to
determine heirship. The state contended the decedent had left no heirs and
therefore his estate escheated. A number of citizens of the Soviet Union appeared
and presented claims. At trial, the state successfully contested the sufficiency of
the claimants‟ showings of relationship to the decedent. (Horman, supra, 5 Cal.3d
at pp. 68-69.) The Court of Appeal reversed, concluding that several trial court
rulings had unfairly restricted the claimants‟ ability to present evidence. (Estate of
Horman (1968) 265 Cal.App.2d 796, 805-809.) Shortly before retrial, the state
asserted for the first time that four of the claimants had failed to present their
claims within the five-year period prescribed by former Probate Code section
1026. The trial court ruled that the period had been tolled and entered judgment
for the claimants. (Horman, supra, 5 Cal.3d at pp. 68-69.) This court reversed,
deeming the tolling theory unsustainable and holding that law of the case did not
bar the state‟s argument under former Probate Code section 1026. Regarding law
of the case, the Horman court said:




7      Yu should not be misinterpreted as turning on considerations of waiver or
estoppel. Its discussion is confined to law of the case, as applied to questions
raised for the first time on a subsequent appeal. (See Horman, supra, 5 Cal.3d at
pp. 72-73, discussing these issues separately.)



                                           6
       “The questions presented and determined on the prior appeal in this case
were whether the survivors had established the identity of the decedent and their
relationship to him, the admissibility of certain evidence, the discretion of the trial
court in denying the motions to reopen and for new trial and the trial court‟s
failure to rule on the admissibility of certain evidence. [Citation.] The Probate
Code, section 1026 problem was not raised by either party and was not expressly
determined by the court. Neither can it fairly be said that determination of the
issue was essential to the decision. We have concluded, therefore, that the
decision on the prior appeal did not foreclose the state from asserting this matter at
the second trial.” (Horman, supra, 5 Cal.3d at pp. 73-74.)
       Here, the majority distinguished Horman on the basis that “the new issue
raised there was a procedural bar, while the earlier proceedings focused solely on
the merits.” According to the majority, the City‟s new argument that section 3369
barred plaintiff‟s taxpayer action “bore an analytically substantive relationship” to
the question of whether the claims in Culp were justiciable. But the dissent by
Justice Bigelow, who authored Culp, concluded that “[o]ur first decision did not
state a rule of law necessary to the decision of the case that we may apply in this
subsequent appeal to resolve the section 3369 issue.” The dissent conceded that
this case “shares some similarities with Yu,” but found Horman persuasive.
“[W]hether construed as a procedural issue or a substantive one, the „five-year
period‟ problem [in Horman] was a threshold issue that was not raised until after
the case was returned to the trial court following the first appeal.”
       The dissent reasoned that the Culp opinion “considered only a narrow issue
regarding the justiciability of plaintiffs‟ claims, and concluded there were triable
issues of material fact related to alleged illegal expenditures in connection with
Penal Code section 596.5 alone. Whether [Civil Code] section 3369 barred . . .
injunctive relief . . . was not a ground of the decision.” The dissent is correct.

                                           7
Civil Code section 3369 was not raised or ruled upon in connection with the Culp
appeal. Nor did any issue decided in that appeal implicate the relationship
between Civil Code section 3369‟s limitation on equitable relief and the
authorization of injunctive relief in taxpayer actions under Code of Civil
Procedure section 526a. Unlike the defendants in Yu, the City did not take a
different approach to the same controlling authority on a second appeal. Instead,
as in Horman, it raised an entirely new statutory bar.
          Therefore, this case is governed by the general rule that law of the case
does not apply to arguments that might have been but were not presented and
resolved on an earlier appeal. (Horman, supra, 5 Cal.3d at p. 73; 9 Witkin, Cal.
Procedure, supra, Appeal, § 476, pp. 534-535.) As will be seen, whether section
3369 restricts the injunctive relief available in taxpayer actions is a question that
raises complex issues of statutory interpretation. It is a stretch too far to infer that
the Court of Appeal necessarily resolved these technical points of law when it
considered whether the original complaint presented issues of public policy
inappropriate for judicial resolution. The statements in Yu regarding continual
reinvention of legal arguments were conditioned on the premise that the issue at
hand had been implicitly determined on the prior appeal. (Yu, supra, 103
Cal.App.4th at pp. 311- 312.) Although as Witkin observes, whether an issue was
implicitly decided can be “[a] most perplexing problem,” this is not such a case.
(9 Witkin, Cal. Procedure, supra, Appeal, § 476, p. 534.) The Culp court fully
resolved the justiciability issue before it without having to consider whether
section 3369‟s limitation on equitable relief would apply in plaintiffs‟ taxpayer
action.
B. The Bar Against Equitable Relief for Violations of Penal Law
           As enacted in 1872, section 3369 stated: “Neither specific nor preventive
relief can be granted to enforce a penalty or forfeiture in any case, nor to enforce a

                                            8
penal law, except in a case of nuisance, nor to enforce a penalty or forfeiture in
any case.”8 In Perrin v. Mountain View Mausoleum Assn. (1929) 206 Cal. 669,
this court characterized the statute as “but the expression of the fundamental rule
that courts of equity are not concerned with criminal matters and they cannot be
resorted to for the prevention of criminal acts, except where property rights are
involved.” (Id. at p. 671, citing 5 Pomeroy‟s Equity Jurisprudence (2d ed. 1919)
pp. 4291-4292.)
       A central rationale for the rule embodied in section 3369 was set out in
People v. Lim (1941) 18 Cal.2d 872 (Lim), which “articulated an important
limitation on the scope of the government‟s power to exploit the public nuisance
injunction as an adjunct of general legal policy.” (People ex rel. Gallo v. Acuna
(1997) 14 Cal.4th 1090, 1106.) In Lim, a district attorney sought to enjoin the
operation of a gambling establishment as a public nuisance. This court held that
the Legislature, not the courts, must define which public nuisances are subject to
restraint by injunction. “ „Nuisance‟ is a term which does not have a fixed content
either at common law or at the present time. . . . In a field where the meaning of
terms is so vague and uncertain it is a proper function of the legislature to define
those breaches of public policy which are to be considered public nuisances within
the control of equity.” (Lim, at p. 880.) As particularly relevant here, the Lim
court declared:
       “Conduct against which injunctions are sought in behalf of the public is
frequently criminal in nature. While this alone will not prevent the intervention of
equity where a clear case justifying equitable relief is present [citations], it is
apparent that the equitable remedy has the collateral effect of depriving a

8       As we have noted, the “as otherwise provided by law” exception was added
to section 3369 in 1977. (Stats. 1977, ch. 299, § 2, pp. 1203-1204.)



                                            9
defendant of the jury trial to which he would be entitled in a criminal prosecution
for violating exactly the same standards of public policy. [Citations.] The
defendant also loses the protection of the higher burden of proof required in
criminal prosecutions and, after imprisonment and fine for violation of the equity
injunction, may be subjected under the criminal law to similar punishment for the
same acts. For these reasons equity is loath to interfere where the standards of
public policy can be enforced by resort to the criminal law, and in the absence of a
legislative declaration to that effect, the courts should not broaden the field in
which injunctions against criminal activity will be granted. Thus, . . . the basis for
an action such as this must be found in our statutes rather than by reference to the
common law definitions of public nuisance.” (Lim, supra, 18 Cal.2d at pp. 880-
881.)
        Lim involved a prosecutor‟s attempt to pursue injunctive relief instead of
criminal penalties. However, Lim and section 3369 were applied to a private
action in International Etc. Workers v. Landowitz (1942) 20 Cal.2d 418
(Landowitz). In 1933, section 3369 had been amended to read: “Neither specific
nor preventive relief can be granted to enforce a penalty or forfeiture in any case,
nor to enforce a penal law, except in a case of nuisance or unfair competition.”
(Former § 3369, subd. (1), italics added; Stats. 1933, ch. 953, § 1, p. 2482.) The
Landowitz plaintiffs sought to enjoin violation of a municipal ordinance that
regulated competitive practices among cleaners and dyers, and afforded both
criminal and injunctive remedies. (Landowitz, at p. 421.) The ordinance had been
enacted pursuant to an enabling statute that authorized laws permitting injunctive
relief from unfair trade practices. However, the enabling statute was subsequently
repealed, and Landowitz concluded the repeal was fatal to the plaintiffs‟ claims.
(Id. at pp. 420-421.)



                                          10
        The Landowitz court strictly construed section 3369‟s exception for unfair
competition to require both specific statutory description of prohibited conduct
and specific authorization for injunctive relief. (Landowitz, supra, 20 Cal.2d at p.
p. 421.) “In view of the well-established doctrine that equity will not ordinarily
restrain the violation of a penal law (Civ. Code, § 3369 (1); People v. Lim,
[supra,]18 Cal.(2d) 872, 880; Perrin v. Mountain View Mausoleum Assn., [supra,]
206 Cal. 669, 671 . . .) and in view of the fact that this ordinance is clearly penal in
nature, it follows that plaintiffs‟ action in equity to restrain its violation requires
specific authorization, in the absence of which it must be held that the complaint
fails to state a cause of action.” (Landowitz, at p. 421.) Although section 3369
authorized injunctive relief in cases of “ „unfair competition,‟ ” it did not expand
the “traditional scope” of that term. (Landowitz, at p. 422.)
       “The phrase „unfair competition‟ when carried beyond its traditional scope
in equitable actions . . . does not have a fixed meaning in the absence of statutory
definition. Courts of equity, therefore, are loath to enjoin conduct on that ground
in the absence of specific authorization therefor. [Citation.] The reasons
underlying this rule are similar to those governing courts of equity in the issuance
of injunctions against nuisances. We recently held in such a case that where the
conduct sought to be enjoined was not within the traditional equitable jurisdiction,
it must be brought clearly within the statutory definition of the term „nuisance‟ and
could not be predicated on the vague definitions of that term found in the early
criminal law. (People v. Lim, supra, [18 Cal.2d at] p. 880.) Civil Code, section
3369, contains no broader a definition of the term „unfair competition‟ than
existed at common law and in itself furnishes no basis for an injunction against the
violation of the penal ordinance involved in this case. Where the Legislature has
sought to regulate methods of competition by means of injunction, it has
specifically described the conduct which is prohibited. It has provided that such

                                           11
conduct might be enjoined in equity . . . .” (Landowitz, supra, 20 Cal.2d at p.
422.)9
         Lim was again followed in Schur, supra, 47 Cal.2d 11, the case most
closely on point here. Nathan H. Schur (Schur), a corporation, sued the City of
Santa Monica, asserting its status as a taxpayer and claiming that city officials
were violating Penal Code section 337 by licensing certain games of chance.10 It
alleged that the city was “illegally spending money in such licensing and in
policing the games.” (Schur, at p. 13.)11 At a city council hearing on applications
for renewal of the licenses, Schur‟s principal had testified in opposition. The

9       In later years, the Legislature extended the reach of the unfair competition
law. (See Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553,
570 (Stop Youth Addiction).) In Stop Youth Addiction, this court held that an
unfair competition action by a private party may be premised on a violation of a
penal statute. We noted that the unfair competition statutes had long authorized
civil actions to enforce a “ „penal law.‟ ” (Id. at p. 567, quoting Civ. Code, former
§ 3369, subd. (1); see Bus. & Prof. Code, § 17202.) Governmental entities,
however, are not subject to suit under the unfair competition law. (People for
Ethical Treatment of Animals, Inc. v. California Milk Producers Advisory Bd.
(2005) 125 Cal.App.4th 871, 878-879; see Wells v. One2One Learning
Foundation (2006) 39 Cal.4th 1164, 1203.)
10      Penal Code section 337 provides that “[e]very state, county, city, city and
county, town, or judicial district officer, or other person who shall . . . issue,
deliver, or cause to be given or delivered to any person or persons, any license,
permit, or other privilege, giving, or pretending to give, any authority or right to
any person or persons to carry on . . . any game or games which are forbidden or
prohibited by Section 330 of [the Penal] code; and any of such officer or officers
who shall vote for the passage of any ordinance or by-law, giving . . . any person
or persons any authority or privilege to open . . . or cause to be opened . . . any
game or games prohibited by said Section 330 of the Penal Code, is guilty of a
felony.”
11      In a separate action, Schur challenged a city ordinance that limited the
number of licenses the city could issue for conducting “games of skill.” (Schur,
supra, 47 Cal.2d. at p. 12.) That limitation presumably explains Schur‟s interest in
invalidating existing licenses; it claimed it owned property in the city that was
“adapted to conducting games.” (Id. at p. 13.)



                                         12
council decided the licensees‟ games did not violate the Penal Code‟s
antigambling laws, and approved the renewals. (Id. at pp. 13-14.) The trial court,
however, found that the city was illegally licensing the challenged games, and
enjoined it from expending public funds to do so. (Id. at p. 14.)
       The Schur court reversed. It explained that the action essentially sought to
restrain city officials from committing a crime by issuing gambling licenses in
violation of state law. The judgment enjoined the expenditure of city funds on the
licenses, and also “declare[d] the games were contrary to the state laws. We
believe that judgment cannot stand because the city officials were vested with
authority to make the determination and the only method of relief therefrom was
by a review of their action without taking independent evidence on the subject;
that unless the conduct complained of constitutes a nuisance as declared by the
Legislature, equity will not enjoin it even if it constitutes a crime, as the
appropriate tribunal for the enforcement of the criminal law is the court in an
appropriate criminal proceeding.” (Schur, supra, 47 Cal.2d at p. 17.)
       Schur‟s reference to criminal court as the appropriate forum for
adjudicating violations of criminal law is significant. (Schur, supra, 47 Cal.2d at
p. 17.) “The prosecutor ordinarily has sole discretion to determine whom to
charge, what charges to file and pursue, and what punishment to seek. [Citation.]
No private citizen, however personally aggrieved, may institute criminal
proceedings independently [citation], and the prosecutor‟s own discretion is not
subject to judicial control at the behest of persons other than the accused.
[Citations.] An individual exercise of prosecutorial discretion is presumed to be
„ “legitimately founded on the complex considerations necessary for the effective
and efficient administration of law enforcement.” ‟ ” (Dix v. Superior Court
(1991) 53 Cal.3d 442, 451; see People v. Eubanks (1996) 14 Cal.4th 580, 588-
589.) This fundamental tenet of our criminal justice system supports the Schur

                                           13
court‟s reluctance to recognize violations of penal statutes as a basis for the
issuance of equitable relief on behalf of private parties.
       In Schur, a Penal Code statute specifically prohibiting the licensing of
illegal games was not a sufficient basis for the issuance of injunctive relief in a
taxpayer action. A provision expressly recognizing an equitable remedy was
required. Schur established that Code of Civil Procedure section 526a was not
such a statute. The court acknowledged that “a taxpayer may obtain preventive
relief against the illegal expenditure of funds by a municipal corporation.” (Schur,
supra, 47 Cal.2d at p. 17, citing Code Civ. Proc., § 526a.) But it held that the trial
court erred by granting such relief, for two reasons. First, determinations by city
officials on gaming licenses were not reviewable de novo, but only for sufficiency
of the evidence. (Schur, at pp. 16-18.) Second, Lim established that “although
gambling places were nuisances under the common law they could not be abated”
unless they amounted to a nuisance as defined by statute. (Id. at p. 18.)
       The Schur court quoted Lim at length, followed by citations to section 3369
and Landowitz, supra, 20 Cal.2d 418. (Schur, supra, 47 Cal.2d at pp. 18-19.) It
then advised the trial court that “[c]aution should be observed therefore upon
retrial to avoid violating that rule.” (Id. at p. 19.) The reference is to the rule
found in section 3369, Landowitz, and Lim: “ „equity is loath to interfere where
the standards of public policy can be enforced by resort to the criminal law, and in
the absence of a legislative declaration to that effect, the courts should not broaden
the field in which injunctions against criminal activity will be granted.‟ ” (Schur,
at p. 19, quoting Lim, supra, 18 Cal.2d at p. 880.)
       Leider argues that Schur‟s discussion of grounds for injunctive relief was
merely dictum, and its holding rested on the conclusion that the trial court had
improperly exercised independent review of the city‟s licensing decision. The
argument fails. Statements responsive to the issues raised on appeal and intended

                                           14
to guide the trial court on remand are not dicta. (Sonic-Calabasas A, Inc. v.
Moreno (2013) 57 Cal.4th 1109, 1158.) The availability of relief under Code of
Civil Procedure section 526a was expressly at issue in Schur. The court
specifically cautioned the trial judge, on remand, not to run afoul of the rule
against broadening the field in which injunctions against criminal activity may be
granted. (Schur, supra, 47 Cal.2d at p. 19.)
       Neither Leider nor amici curiae refer us to any taxpayer action in which an
“illegal expenditure” under Code of Civil Procedure section 526a was premised on
a penal code violation. (See Animal Legal Defense Fund v. California Exposition
& State Fairs (2015) 239 Cal.App.4th 1286, 1298 [noting “the dearth of authority
recognizing a section 526a taxpayer action predicated on an alleged criminal
violation”].)12 Schur established the principle that express legislative
authorization is required for a taxpayer action to overcome the bar against
equitable relief codified in Civil Code section 3369. The question before us is
whether such authorization was supplied in 1977, when the Legislature amended
Civil Code section 3369 to transfer its unfair competition provisions to the
Business and Professions Code.
       Newly enacted Business and Professions Code section 17202 read then as it
does now: “Notwithstanding Section 3369 of the Civil Code, specific or
preventive relief may be granted to enforce a penalty, forfeiture, or penal law in a

12     In Animal Legal Defense Fund v. California Exposition & State Fairs,
supra, 239 Cal.App.4th at pages 1297, 1301, the court held that administrative
remedies were the sole avenue for enforcement of the animal abuse proscriptions
in Penal Code sections 597 and 597t. Similarly, in Animal Legal Defense Fund v.
Mendes (2008) 160 Cal.App.4th 136, 142, the court held that the Legislature did
not intend to authorize a private right of action to enforce section 597t. Both
opinions turned on theories that have not been litigated by the parties here. We
express no view on their merits.



                                         15
case of unfair competition.” (Stats. 1977, ch. 299, § 1, p. 1202.) Civil Code
section 3369 was amended to read as it does today: “Neither specific nor
preventive relief can be granted to enforce a penalty or forfeiture in any case, nor
to enforce a penal law, except in a case of nuisance or as otherwise provided by
law.” (Stats. 1977, ch. 299, § 2, pp. 1203-1204, italics added.) When the
Legislature added “except . . . as otherwise provided by law” to Civil Code section
3369, did it intend to expand the meaning of “illegal expenditure” in Code of Civil
Procedure section 526a to include expenditures furthering any violation of a
criminal statute?
       “Our primary task in interpreting a statute is to determine the Legislature‟s
intent, giving effect to the law‟s purpose.” (Tuolumne Jobs & Small Business
Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037.) We begin with the
language of the statutes as the most reliable indicator of intent. We construe terms
in context, harmonizing the statutes both internally and with each other to the
extent possible. (Ibid.) We presume the Legislature was aware of existing judicial
decisions directly bearing on the legislation it enacted. (City of San Jose v.
Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 606 (City of San
Jose).) We do not presume it meant to overthrow long-established principles of
law, unless such an intention is clearly expressed or necessarily implied. (Brodie
v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1325 (Brodie).)
       When the Legislature moved the unfair competition provisions from Civil
Code section 3369 to the Business and Professions Code, it made no
accompanying changes in Code of Civil Procedure section 526a from which we
might glean an intent either to change or retain the rules governing taxpayer
actions. The relevant terms of Code of Civil Procedure section 526a have not
been amended since the statute‟s enactment in 1909. (See Stats. 1909, ch. 348.
§ 1, p. 578.) At that time, the only exception provided in Civil Code section 3369

                                         16
was for cases of nuisance, so taxpayer actions were subject to its provisions. By
the time of the 1977 amendments, Schur had so held. (Schur, supra, 47 Cal.2d at
pp. 17-19.) Schur and Landowitz had underscored the necessity of express
legislative provision for equitable relief against violations of a penal law. (Schur,
at p. 19; Landowitz, supra, 20 Cal.2d at p. 421.) Lim stood as a warning against
depriving defendants of the traditional protections of the criminal law in suits
seeking injunctive relief, in the absence of legislative authorization of the kind
now provided in the unfair competition law. (Lim, supra, 18 Cal.2d at pp. 880-
881.) The principle of exclusive prosecutorial discretion over the bringing of
criminal proceedings was well known. (E.g., People v. Sidener (1962) 58 Cal.2d
645, 650; Rosato v. Superior Court (1975) 51 Cal.App.3d 190, 226.)
       Given this state of the law, the Legislature‟s insertion of “except . . . as
otherwise provided by law” into Civil Code section 3369 is reasonably understood
as incorporating the requirements demanded by Schur and Landowitz when
criminal activity is at issue: a definition of prohibited conduct along with a
provision specifically authorizing equitable relief to restrain the defined conduct.
Schur makes it plain that Code of Civil Procedure section 526a‟s general
authorization of injunctive relief against “illegal” expenditures does not fulfill the
second requirement. (Schur, supra, 47 Cal.2d at pp. 17-19.) The Legislature was
presumptively aware of Schur‟s holding. Moreover, the legislative history
discloses no desire to alter the rules governing injunctive relief in taxpayer actions.
If the Legislature had intended such a significant change, we would expect to see a
trace of that intent in the history of the 1977 amendments. (Cf. Brodie, supra, 40
Cal.4th at p. 1328.)
       There is none. To the contrary, the Legislature‟s focus was solely on the
unfair competition provisions of section 3369, and even then it contemplated no
substantive changes. (See Stop Youth Addiction, supra, 17 Cal.4th at p. 570.) The

                                          17
bill enacting the 1977 amendments was described as “merely . . . a technical code
adjustment in the location of various statutes relating to unfair competition.” (Sen.
Com. on Judiciary, rep. on Assem. Bill No. 1280 (1977-1978 Reg. Sess.) as
amended June 3, 1977.) An Assembly bill digest explained: “The Civil Code
contains a chapter . . . which [codifies] the general principles governing injunctive
relief. As injunctive relief became more prevalent in unfair competition cases, a
process began of adding provisions to that chapter which related only to unfair
competition cases. As a result of this process there is now a body of statutory law
dealing solely with the enforcement of unfair competition laws which is located in
the wrong part of the codes. [¶] This bill transfers these provisions, without
substantive change, from the Civil Code to a more appropriate location in the
Business and Professions Code.” (Assem. Com. on Judiciary, Digest of Assem.
Bill No. 1280 (1977-1978 Reg. Sess.) May 19, 1977.)
       Thus, we conclude the Legislature did not intend to overturn the long-
established law governing equitable relief for violations of penal law when it
amended Civil Code section 3369 in 1977. (See City of San Jose, supra, 49
Cal.4th at p. 606; Brodie, supra, 40 Cal.4th at p. 1325.) Rather, when it added the
“except . . . as otherwise provided by law” exception, it maintained the rule that a
taxpayer action will not lie to enforce a Penal Code provision.
       Here, the trial court found that the City and its zoo director had violated
Penal Code statutes proscribing animal abuse, but it provided them neither the
right to a jury trial nor the standard of proof beyond a reasonable doubt. The
considerations limiting the reach of equitable intervention stated long ago in Lim,
supra, 18 Cal.2d at pages 880-881, were thereby contravened. So were the rules
of Landowitz, supra, 20 Cal.2d at page 422, requiring penal provisions for
injunctive relief to specify the prohibited conduct, and Schur, supra, 47 Cal.2d at
pages 17-19, holding Code of Civil Procedure section 526a insufficient to support

                                         18
an injunction against criminal activity. Moreover, Leider was permitted to
exercise the discretion reserved for the district attorney with regard to enforcement
of the criminal law. For these reasons, the Court of Appeal‟s judgment cannot
stand.
                                III. DISPOSITION
         We reverse the Court of Appeal‟s judgment, and remand for further
proceedings consistent with the views expressed herein.


                                                               CORRIGAN, J.




WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




                                         19
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Leider v. Lewis
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 243 Cal.App.4th 1078
Rehearing Granted

__________________________________________________________________________________

Opinion No. S232622
Date Filed: May 25, 2017
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: John Segal

__________________________________________________________________________________

Counsel:

Wasserman, Comden & Casselman, Casselman Law Group, David B. Casselman; Esner, Chang & Boyer
and Stuart B. Esner for Plaintiff and Appellant.

Linda Lye, Micaela Davis; Ahilan Arulanantham; and David Loy for ACLU of Northern California, ACLU
of Southern California and ACLU of San Diego and Imperial Counties as Amici Curiae on behalf of
Plaintiff and Appellant.

Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, Dorothy Wolpert and Kimberley M.
Miller for Voice for the Animals, Melya Kaplan and Lily Tomlin as Amici Curiae on behalf of Plaintiff and
Appellant.

Sullivan & Crowell, Diane L. McGimsey, Edward E. Johnson, Janet Y. Galeria, Jonathon D. Townsend;
Winston & Strawn, Amanda C. Sommerfeld and Bennett J. Kaspar for Animal Legal Defense Fund as
Amicus Curiae on behalf of Plaintiff and Appellant.

Zeynep J. Graves; The Bernheim Law Firm, Steven J. Bernheim and Nazo S. Semerjian for Last Chance
for Animals as Amicus Curiae on behalf of Plaintiff and Appellant.

Michael N. Feuer, City Attorney, Laurie R. Henberg, Assistant City Attorney, John A. Carvalho, Deputy
City Attorney; Karcher Harmes and Kathryn E. Karcher for Defendants and Appellants.

Duane Morris, Patricia P. Hollenbeck and Heather U. Guerena for Association of Zoos & Aquariums, San
Diego Zoo Global, International Elephant Foundation, Phoenix Zoo, North Carolina Zoological Park, Saint
Louis Zoo and Busch Gardens Tampa as Amici Curiae on behalf of Defendants and Appellants.

Colantuono, Highsmith & Whatley, Michael G. Colantuono and Leonard P. Aslanian for League of
California Cities, International Municipal Lawyers Association and California State Association of
Counties as Amici Curiae on behalf of Defendants and Appellants.
Counsel who argued in Supreme Court (not intended for publication with opinion):

David B. Casselman
Casselman Law Group
5567 Reseda Boulevard, Suite 330
Tarzana, CA 91356
(818) 609-2300

Linda Lye
American Civil Liberties Union Foundation of Northern California, Inc.
39 Drumm Street
San Francisco, CA 94111
(415) 621-2493

Kathryn E. Karcher
Karcher Harmes
401 B Street, Suite 2450
San Diego, CA 92101
(206) 335-1631
