Animal Protection League V LA

Case 8:17-cv-01581-JLS-JDE Document 1 Filed 09/12/17 Page 1 of 21 Page ID #:1
1
Bryan W. Pease (SBN 239139)
Parisa Ijadi-Maghsoodi (SBN 273847)
2 LAW OFFICE OF BRYAN W. PEASE
3 3170 Fourth Ave., Suite 250
San Diego, CA 92103
4
Tel: (619) 723-0369
5 Email: bryanpease@bryanpease.com
6
ijadipm@gmail.com
7 G. David Tenenbaum (SBN 150629)

8 LAW OFFICE OF G. DAVID TENENBAUM
269 S. Beverly Dr. #1041
9
Beverly Hills, CA 90212
10 Tel: (312) 404-7723
Email: g.davidtenenbaum@gmail.com
11
12 David R. Simon (SBN 145197)

13 SIMON LAW GROUP
17595 Harvard Avenue, Suite C515
14
Irvine, CA 92614
15 Tel: (714) 975-1728
Email: dsimon1027@gmail.com
16
17 Attorneys for Plaintiffs

18
UNITED STATES DISTRICT COURT
19
20 CENTRAL DISTRICT OF CALIFORNIA

21
ANIMAL PROTECTION AND ) Case No.
22 RESCUE LEAGUE, a California )
23
)
nonprofit corporation; and CORY COMPLAINT FOR VIOLATION
)
MAC AGHOBHAINN, an individual; OF ESTABLISHMENT CLAUSE
24
) OF U.S. CONSTITUTION, WRIT
25 Plaintiffs, ) OF MANDATE AND
vs. ) DECLARATORY RELIEF
26
)
27 CITY OF LOS ANGELES, LOS )
28
ANGELES POLICE DEPARTMENT, )
CITY OF IRVINE, IRVINE POLICE )
1
COMPLAINT
1
DEPARTMENT, and DOES 1 through )
50, )
2 )
3 Defendants. )
________________________________ )
4
6
Plaintiffs ANIMAL PROTECTION AND RESCUE LEAGUE, a California
7
corporation, and CORY MAC AGHOBHAINN, an individual, on behalf of themselves
8
and the general public, allege as follows against Defendants CITY OF LOS ANGELES,
9
LOS ANGELES POLICE DEPARTMENT, CITY OF IRVINE, IRVINE POLICE
10
DEPARTMENT, and DOES 1 through 50:
11
12
INTRODUCTION
13
1. It is against the law in California to intentionally kill animals unless there is
14
a specific law allowing it. Penal Code 597(a) prohibits all intentional killing of animals
15
when done without legal justification.
16 2. Penal Code 599c provides legal justification for some killing of animals,
17 such as when animals are used for food. However, the Legislature has not created an
18 exception to Penal Code 597(a) for killing and discarding animals for a religious ritual.
19 Accordingly, killing and discarding chickens in a manner in which they cannot be used
20 for food violates Penal Code 597(a) and is illegal.
21 3. Penal Code 597(a) is a neutral law of general applicability, and thus it is
22 constitutional even when applied to conduct motivated by religion.
23 4. Several entities kill and discard thousands of chickens every year in the
24 streets of Los Angeles and Irvine after they have been used in a religious ritual known as
25 Kapparot. These entities hire workers to provide stacks of cages filled with chickens, and
26 then individuals line up and pay a fee to have a worker pull a chicken from the cages and
27 hand it to them. Each individual then walks around holding the chicken and reciting a
28 prayer. After saying the prayer, each individual returns his or her chicken to a worker,
2
COMPLAINT
1 who passes the chicken off to a slaughter to kill and dispose of the chicken. Because the
2 chickens are not used for food, this intentional killing is without legal justification and
3 thus violates Penal Code 597(a).
4 5. Defendants tasked with enforcing the California Penal Code have created a
5 de facto exception to Penal Code 597(a) for these entities to violate the law with
6 impunity due to the religious motivation involved, despite no such exception having been
7 created by the Legislature.
8 6. Plaintiffs desire to exercise their rights under Penal Code 837 to effectuate
9 a private person arrest of agents of the entities killing and discarding animals illegally in
10 their presence. However, every year, Defendants send large forces out to actively protect
11 these criminal acts.
12 7. Defendants violate the Establishment Clause of the First Amendment every
13 year by actively spending financial resources to respect the establishment of religion. The
14 actions of Defendants amount to more than just general police protection, because they
15 are actively involved in protecting illegal acts solely on the basis of the participants
16 religion and physically preventing Plaintiffs from exercising their legal rights under Penal
17 Code 837 to make private persons arrests of individuals they witness violating the law.
18 Defendants are thus actively conspiring in these criminal acts.
19 8. Besides violating Penal Code 597(a), the practice of harboring,
20 slaughtering, and disposing of chickens gives rise to grave public health risks. Chickens
21 carry, and often spread to people, a number of dangerous and potentially life-threatening
22 diseases including Enterococcus faecalis, Salmonella, Campylobacter, Histoplasmosis,
23 Avian influenza (bird flu), and Newcastle disease. Entities providing and killing chickens
24 for Kapparot engage in unregulated and highly unsanitary operations, amounting to an
25 open-aired and unrestricted-access makeshift slaughterhouse. As a result, birds often sit
26 for hours or days in their own and others fecal waste, handlers typically do not wear
27 gloves or regularly wash their hands, fecal waste and/or blood collects on the ground and
28 is hosed into public streets and storm drains, and hundreds of carcasses are improperly
3
COMPLAINT
1 disposed. As these entities illegally harbor, slaughter, and dispose of thousands of

2 chickens each yearbreeding a dangerously high level of bacteria and other pathogens,
3 toxins, and bio-hazardsdangerous diseases are ripe for transmission to the public.
4 9. The behavior complained of herein is not only illegal but dangerous,
5 unsanitary, unsightly, and foul-smelling. The increased likelihood of cross-
6 contamination and dissemination of biohazards presents serious public health risks. For
7 example:
8
a. Blood and fecal matter typically collect in large quantities on the ground
9 until it is hosed off into city sewers and storm drains. From there, it flows
10 into and endangers the Pacific Ocean.
11 b. Bloody, dead, or dying chickens are dumped in huge quantities into bags,
12 boxes, and dumpsters, and ultimately find their way into landfills and
13 other public repositories.
14 c. The grossly unsanitary conditions, with fecal matter routinely present on
15 birds, their handlers, and the ground, presents the risk that any number of
16
dangerous diseases will be transmitted to the public.
17
d. Offensive odors of bird excrement, blood, and rotting flesh assault the
18
noses of neighbors and others nearby. Neighbors and passersby are often
19
seen to cover their noses in disgust.
20
e. The extraordinary shrieks and cries of birds in pain and distress are
21
typically audible hundreds of feet away. Witnesses refer to these sounds
22
as among the most disturbing they have ever heard.
23
10. These illegal practices represent more than a serious public health threat;
24
25
they also represent a terrible source of misery and suffering for the birds involved and
26
constitute a cascade of violations of the State if Californias animal anti-cruelty laws
27 including Penal Code 597. Thus:
28
4
COMPLAINT
1
a. Chickens are routinely left confined for hours or days in tiny, cramped
2 cages or windowless cardboard boxes without room to exercise or even
3 lift their heads.
4 b. Cages are frequently stacked on top of one another, with fecal matter
5 dripping through each row and soaking the birds below.
6 c. Denied even the comfort of a last meal, the birds are typically starved for
7 hours or days before death.
8
d. Because they are trapped in close confinement for hours or days, the
9
birds may peck one another from stress and eat one anothers feathers
10
from hunger. As a result of this behavior and other abuse by their
11
handlers, many birds go to their deaths with open wounds, broken limbs
12
or wings, and huge patches of missing feathers.
13
e. Chickens about to be killed are typically grabbed roughly from their
14
cages and, while waiting for death, held painfully by the neck, by a limb
15
or wing, or by both wings held painfully behind their backs. The birds
16
17
routinely shriek in fear and pain.
18 f. Many birds whose throats are cut do not die right away, but instead are
19 left to die a slow, suffering death in a garbage bag or on a pile of bodies.
20 11. By this action, Plaintiffs seek declaratory and injunctive relief to stop
21 Defendants from violating the Establishment Clause by financially supporting and
22 becoming actively involved in the protection of illegal acts solely due to the law
23 breakers religious beliefs.
24 12. Plaintiffs also seek a writ of mandate under Cal. Code Civ. Proc. 1085 to
25 require Defendants to exercise their discretion to enforce Penal Code 597(a) rather than
26 creating a blanket exception for conduct motivated by religion that the Legislature never
27 provided for nor intended.
28 13. Finally, Plaintiffs seek declaratory relief that the actions of killing and
5
COMPLAINT
1 discarding animals violate Penal Code 597(a), as there is a current and justiciable
2 controversy over whether Plaintiffs can make a lawful private person arrest.
3 PARTIES
4 14. Plaintiff ANIMAL PROTECTION AND RESCUE LEAGUE (APRL) is a
5 501(c)(3) nonprofit corporation duly formed and validly existing under California law.
6 APRLs mission is to expose and eliminate animal cruelty.
7 15. Plaintiff CORY MAC AGHOBHAINN is an individual residing in and
8 paying taxes in the City of Los Angeles.
9 16. Defendant CITY OF LOS ANGELES is a charter city in Los Angeles
10 County, California.
11 17. Defendant LOS ANGELES POLICE DEPARTMENT is an agency of the
12 CITY OF LOS ANGELES.
13 18. Defendant CITY OF IRVINE is a charter city in Orange County, California.
14 19. Defendant IRVINE POLICE DEPARTMENT is an agency of the CITY OF
15 IRVINE.
16 20. Plaintiffs do not know the true names and capacities of the defendants
17 named in this action as DOES 1-50, and therefore, sue them under fictitious names.
18 Plaintiffs will request permission to amend this complaint, or substitute the Doe
19 Defendants via a court-approved form, to state the true names and capacities of these
20 fictitiously named Defendants when they ascertain them. Plaintiffs allege that these
21 fictitiously named Defendants are legally responsible in some manner for the acts set
22 forth below, and accordingly, are liable for the relief requested.
23 JURISDICTION AND VENUE
24 21. This Court has personal jurisdiction over each of the Defendants because
25 each is located in the Central District of California.
26 22. This Court has subject matter jurisdiction over the claims asserted herein
27 because relief is sought under the Establishment Clause of the First Amendment and 42
28 U.S.C. 1983.
6
COMPLAINT
1 23. This court has pendent jurisdiction over Plaintiffs state law claims. A
2 California court would have subject matter jurisdiction to issue a writ of mandate and
3 declaratory relief under California Code of Civil Procedure (CCP) 1085 and 1060.
4 24. Venue is proper in this district because the acts and omissions upon which
5 this action is based occurred in this district.
6 STATUTORY FRAMEWORK
7 25. California Penal Code 597(a) makes it a crime to intentionally and
8 maliciously kill any animal in California.
9 26. Penal Code 7(4) defines malice as an intent to do a wrongful act,
10 established either by proof or presumption of law.
11 27. People v. Dunn (1974) 39 Cal.App.3d 418, 420 provides an overview of the
12 legislative history of Penal Code 597 and holds that a separate definition of malice also
13 contained in Penal Code 7(4), a wish to vex, annoy, or injure another personhas no
14 place in a statute intended to prohibit cruelty to animals, which section 597 clearly is
15 intended to do. (Id. at 421.) Rather, the second definition, intent to do a wrongful act,
16 established either by proof or presumption of law, is the proper definition to apply to
17 this code section. The Legislature by no means intended to switch emphasis from the
18 cruelty to animals element to a factor of malice toward the animals owner. (Id. at 421.)
19 Dunn refers to the necessity of malice in the second sense of the code definition (Pen.
20 Code , 7, subd. 4, 2d cl.), an intent to do a wrongful act. (Id. at 420.)
21 28. Both Penal Code 597(a) and Penal Code 7(4) have been on the books in
22 California since 1872. In 1901, William Mauch was convicted of cruelty to animals under
23 Penal Code 597, and the complaint charged that he had acted willfully and
24 unlawfully but did not specify he acted maliciously. (Ex parte Mauch (1901) 134 Cal.
25 500, 500.) Ruling on a writ of habeas corpus, the Supreme Court of California held his
26 imprisonment was lawful because willful and unlawful cruelty is malice. (Id. at 501.)
27 29. This definition of malice has a long history in other contexts as well. In
28 1886, the Supreme Court of California considered a case in which Ah Toon attacked Nun
7
COMPLAINT
1 Keow with a hatchet and was charged with assault with intent to commit murder. He
2 argued he did not have requisite malice required under the murder statute. However, the
3 Court held, we find in 2 Bouv. Law Dict. the definition of malice to be, as to criminal
4 law, the doing a wrongful act intentionally, without just cause or excuse; and the writer
5 continues: Malice is never understood to denote general malevolence or unkindness of
6 heart, or enmity toward a particular individual, but it signifies rather the intent from
7 which flow any unlawful and injurious act committed without legal justification.
8 (People v. Ah Toon (1886) 68 Cal. 362, 362-363, emphasis added.)
9 30. The Court went on to hold that committing an act with malicewith
10 intentis equivalent to saying that he did the act unlawfully. (Ibid.) If malice implies,
11 as is above stated, the intent to do a wrongful act, it follows that the act must be unlawful,
12 and therefore not justifiable. (Ibid.) (We find authority for this conclusion in section 7,
13 subdivision 4, Penal Code; also in Maynard v. F. F. Ins. Co., 34 Cal. 48, and People v.
14 Taylor, 36 Cal. 255, in which cases it is affirmed that malice, in common acceptation,
15 means ill-will against a person, but in its legal sense it means a wrongful act, done
16 intentionally, without just cause or excuse.)
17 31. In 1887, the California Supreme Court held the intent required for malice is
18 shown by the intent from which flows any unlawful and injurious act committed
19 without legal justification. (2 Bouv. Law Dict., p. 33, and cases there cited.) (People
20 v. Kernaghan (1887) 72 Cal. 609, 613, emphasis added.) Similarly, in 1899, the
21 California Supreme Court referred again to the Penal Code 7 definition of malice,
22 holding an act is done maliciously where it is wrongful and is done intentionally.
23 (Davis v. Pacific Tel. & Tel. Co. (1899) 127 Cal. 312, 319.) Thus, the plaintiff in that
24 case acted maliciously because his act of cutting the wires was unlawful, and he acted
25 without any legal authority to cut them. (Id. at 320.)
26 32. In 1945, the California Supreme Court held the terms malice and
27 maliciously as defined in Penal Code 7(4) do not, at least insofar as implied malice
28
8
COMPLAINT
1 is concerned, require a preexisting hatred or enmity toward the individual injured.

2 (People v. Bender (1945) 27 Cal.2d 164, 180.)
3 33. Accordingly, intentionally killing animals without legal justification or
4 authority constitutes malice under Penal Code 7(4) and violates Penal Code 597(a).
5 34. If entities providing and killing chickens for Kapparot rituals were using the
6 animals for food, their actions would have legal justification under Penal Code 599c,
7 which provides an exception to Penal Code 597(a) for killing all animals used for
8 food. However, by killing the animals simply to be discarded after they have been used
9 in a religious ritual, they are acting without legal justification and thus with malice.
10 35. The entities providing and killing chickens for Kapparot rituals have
11 mistakenly claimed that no act can ever be malicious if it has a religious motivation.
12 However, this misstates applicable law on the definition of malice. Whether these entities
13 have a secular or religious motivation for killing and discarding chickens without using
14 them for food, there is no exception in California law that entitles them to carry out such
15 acts. Accordingly, their acts are without legal justification and are therefore malicious
16 within the meaning of the statute.
17 36. The following state statutes are additional laws these entities are violating in
18 the course of their unlawful conduct:
19 a. Cal. Water Code 13260 provides in relevant part:
(a) Each of the following persons shall file with the appropriate regional
20
board a report of the discharge, containing the information that may be
21 required by the regional board:
22
(1) A person discharging waste, or proposing to discharge waste, within
23
any region that could affect the quality of the waters of the state, other
24 than into a community sewer system.1
25
b. Cal. Health & Safety Code 41700(a) provides in relevant part:
26
27
1
28 Waste is defined in relevant part as: sewage and any and all other waste substances, liquid, solid,
gaseous, or radioactive of human or animal origin . Cal. Water Code 13050(d).
9
COMPLAINT
1
[A] person shall not discharge from any source whatsoever quantities of
air contaminants or other material that cause injury, detriment, nuisance,
2 or annoyance to any considerable number of persons or to the public .
3 This statute has been construed to make it illegal to discharge offensive
4 odors in public. People v. Gen. Motors Corp. (1980) 116
5 Cal.App.3d.Supp. 6, 9, 11.
6
c. Cal. Penal Code 597(b) provides in relevant part:
7
[E]very person who tortures, torments, deprives of necessary
8
sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any
9 animal, or causes or procures any animal to be so tortured, tormented,
10
deprived of necessary sustenance, drink, shelter, or to be cruelly beaten,
mutilated, or cruelly killed; and whoever, having the charge or custody of
11
any animal, either as owner or otherwise, subjects any animal to needless
12 suffering, or inflicts unnecessary cruelty upon the animal, or in any
manner abuses any animal, is, for each offense, guilty of a crime.
13
14 d. Cal. Penal Code 597.1(a) provides in relevant part:

15 Every owner . . . or keeper of any animal who permits the animal to be in
16 any building, [or] enclosure . . . without proper care and attention is
guilty of a misdemeanor.
17
18 e. Cal. Penal Code 597.4 provides in relevant part:

19 (a) It shall be unlawful for any person to willfully do either of the
20
following:
(1) Sell or give away as part of a commercial transaction a live animal on
21 any street, highway, public right-of-way, parking lot, carnival, or
22 boardwalk.
23
(2) Display or offer for sale, or display or offer to give away as part of a
24 commercial transaction, a live animal, if the act of selling or giving away
the live animal is to occur on any street, highway, public right-of-way,
25
parking lot, carnival, or boardwalk.
26
27
f. Cal. Penal Code 597f provides in relevant part:
28 Every owner, driver, or possessor of any animal, who permits the animal
to be in any building, enclosure, lane, street, square, or lot, of any city,
10
COMPLAINT
1
city and county, or judicial district, without proper care and attention,
shall, on conviction, be deemed guilty of a misdemeanor.
2
3 g. Cal. Penal Code 597t provides in relevant part:

4 Every person who keeps an animal confined in an enclosed area shall
provide it with an adequate exercise area.
5
6 h. Cal. Penal Code 599 provides in relevant part:

7 Every person is guilty of a misdemeanor who:
8
(c) Maintains or possesses any live chicks, rabbits, ducklings, or other
9
fowl for the purpose of sale or display without adequate facilities for
10 supplying food, water and temperature control needed to maintain the
health of such fowl .
11
12 37. The following Los Angeles city ordinances are additionally applicable to
13 conduct occuring in Los Angeles:
14
a. Los Angeles Mun. Code 12.32(S)(2) and 13.02 confine animal
15
slaughtering to areas zoned S; and Los Angeles Mun. Code 12.04.01
16
provides that violation of zoning laws as set forth in a specific plan is a
17
misdemeanor.
18
19 b. Los Angeles Mun. Code 53.62(a) provides in relevant part:

20
Except as otherwise provided in this section, no person in whose
21 possession any animal or fowl dies shall fail or neglect to notify forthwith
the Board of Public Works, at the refuse station maintained by said
22
Board, of the presence of a dead animal or fowl, and the address where
23 the carcass thereof may be found.
24
c. Los Angeles Mun. Code 53.71 provides that other than in exceptional
25
cases:
26
No person or persons shall own, possess, maintain or have custody of
27
more than one rooster on any lot, building, structure, property or
28 premises within the City of Los Angeles .
11
COMPLAINT
1
d. Los Angeles Mun. Code 64.70.01(26)(e) defines animal waste as a
2
pollutant, and Los Angeles Mun. Code 64.70.02 provides in relevant
3
part:
4
A. General Discharge Prohibitions. No person shall discharge, cause,
5
permit, or contribute to the discharge of any of the following to the storm
6 drain system or receiving waters:
7

3. Any pollutant that injures or constitutes a hazard to human, animal,
8
plant, or fish life, or creates a public nuisance.
9
10 38. In addition to the California laws enumerated above, the following Irvine
11 municipal code ordinances are additionally applicable to conduct occurring in Irvine:
12
a. IMC Sec. 4-5-105 provides in relevant part:
13
14
The owner of any dead animal shall dispose of the carcass of such animal
in a sanitary manner as prescribed by the Director of Public Safety or his
15 or her designee within 24 hours after said owner has knowledge of the
16 animal's death.
17
b. IMC Sec. 4-5-709 provides in relevant part:
18
It shall be unlawful for any person to keep, maintain or permit on any lot,
19
parcel or land or premises under his or her control, any animal, which by
20 any sound or cry shall disturb the peace and comfort of the inhabitants of
21 the neighborhood or interfere with the reasonable and comfortable
enjoyment of life or property.
22
23 c. IMC Sec. 4-5-710 provides in relevant part:

24
It shall be unlawful for the owner or person having charge, custody or
25 control of any animal to permit, either willfully or through failure to
26
exercise due care or control, any such animal to commit any nuisance by
leaving its excreta, and to allow such nuisance to therefore remain on any
27 public sidewalk, public park or any other public property or on any
28 improved private property other than that of the owner or person who has
12
COMPLAINT
1
custody or control of such animal.
2 d. IMC Sec. 4-5-913 provides in relevant part:
3
No person shall keep or maintain or cause to be kept or maintained
4
within the corporate City limits any roosters unless they are kept or
5 housed in an area expressly permitted by the zoning code.
6
e. IMC Sec. 4-5-1106 provides in relevant part:
7
8 No person shall leave or confine an animal in any unattended motor

vehicle under conditions that endanger the health or well-being of an
9
animal due to heat, cold, lack of adequate ventilation, or lack food or
10 water, or other circumstances that could reasonably be expected to cause
suffering, disability or death to the animal. Nor shall any person leave or
11
confine an animal in any unattended motor vehicle in such a manner as to
12 endanger persons lawfully passing by the vehicle.
13
f. IMC Sec. 4-5-1108 provides in relevant part:
14
15 It shall be unlawful to leave an animal unattended and without proper

food, water, and shelter for a period of more than 24 hours.
16
17 g. IMC Sec. 9-15-1 sets forth land use restrictions that preclude animal
18 slaughter in the area of CHABAD OF IRVINEs place of business.
19 39. All of the laws set forth above are neutral laws of general applicability.
20
STATEMENT OF FACTS
21
40. The ritual known as Kapparot was adopted by a small subset of ultra-
22
Orthodox Jewish sects starting in about the 14th Century. Kapparot is not mentioned in
23
the Torah or Talmud. According to the Encyclopedia Judaica (Volume 10, pages 756-
24
757), several Jewish sages strongly opposed Kapparot. Rabbi Solomon ben Abraham
25
Aderet, one of the foremost Jewish scholars during the 13th century, considered it a
26
superstition. This opinion was shared by the Ramban (Nachmanides) and Rabbi Joseph
27
Caro, who called it a foolish custom that Jews should avoid. The opposition to
28
13
COMPLAINT
1
Kapparot within the Jewish religion continues to this day including noted Rabbis Eliyahu
2 Fink, and Yonah Bookstein and Rabbi Dr. Shmuly Yanklowitz.
3 41. Kapparot practitioners believe they can transfer their sins to a chicken by
4 saying a prayer while waving the chicken around their heads, after which the chicken is
5 killed. Historically, after the ritual, the chickens would be given to the poor to eat.
6 However, U.S. health code laws do not permit giving unrefrigerated chicken carcasses
7 or any carcasses that are not from a USDA licensed slaughterhouseto a food bank.
8
42. Another way to perform the Kapparot ritual that is universally recognized as
9
acceptable is to say the prayer while circling a bag of coins over ones head, and then
10
donate the coins to the poor. However, several entities in Los Angeles and Irvine choose
11
to provide chickens for the ritual and kill and discard them afterwards (in exchange for a
12
fee), ignoring the legal requirement and their own religious requirement that chickens be
13
used for food after being killed. Their agents instead falsely tell their followers that the
14
birds are being used for food to feed the poor even though they are not, and it would be
15
illegal to do so.
16
17
43. In October 2016, U.S. District Court Judge Andre Birotte issued a temporary
18
restraining order in United Poultry Concerns v. Chabad of Irvine, U.S. District Court for
19 the Central District of California case number 8:16-cv-01810, which prohibited the
20 defendants in that case from killing chickens to be discarded rather than used for food. As
21 a result, Chabad of Irvine directed its members who wished to perform the Kapparot
22 ritual in 2016 to Baladi Poultry, a live market in Midway City, where they could perform
23 the ritual and the chickens could lawfully be used for food. Thus, it is clear that if
24 Plaintiffs obtain all of the relief they are seeking in the present case, Kapparot
25 practitioners will still be able to practice their religious beliefs, because they can perform
26
the ritual at a licensed slaughterhouse or live market where the chickens can be used for
27
food, and thus Penal Code 597(a) would not apply, because the killing would be done
28
with the legal justification of Penal Code 599c.
14
COMPLAINT
1
44. United Poultry Concerns stated a single cause of action for violation of
2 Californias Unfair Competition Law (UCL), Business & Professions Code 17200, et.
3 seq. After many rounds of briefing, Judge Birotte ultimately determined that Chabad of
4 Irvine charging a fee to provide, kill and dispose of the chickens for the Kapparot ritual
5 did not constitute a business practice within the meaning of the UCL, and therefore the
6 case could not proceed. In his final ruling, Judge Birotte did not reach the underlying
7 issue of whether Penal Code 597(a) prohibits killing and discarding chickens in a
8
parking lot, although the granting of the temporary restraining order was based on the
9
plaintiff showing a probability of success on the merits of its claim. United Poultry
10
Concerns appealed the ruling that it could not proceed under the UCL, and the appeal is
11
pending. None of the parties in that case are parties to the present case.
12
45. United Poultry Concerns and several individual plaintiffs who also are not
13
parties in the present case previously brought suit in 2015 against several entities that
14
supply and kill chickens for Kapparot in Los Angeles. (United Poultry Concerns v. Bait
15
Aaron, Los Angeles Superior Court case number BC592712.) That case was also brought
16
17
entirely under the UCL and not the causes of action asserted in the present case. In
18
August 2016, Judge Elizabeth Feffer dismissed that case, also finding that the UCL did
19 not apply to the defendants actions. Judge Feffer also never analyzed whether the
20 defendants actions actually violate the law, only finding the plaintiffs could not use the
21 UCL as a vehicle to sue. No parties to that case are parties in the present case either.
22 46. Plaintiff APRL also brought suit against Chabad of Irvine in 2015, Animal
23 Protection and Rescue League v. Chabad of Irvine, Orange County Superior Court case
24 number 30-2015-0080946-CU-BT-CJC, also stating a single cause of action for violation
25 of the UCL. This case went to trial in June 2017, and Judge Martha Gooding also found
26
Chabad of Irvines actions not to constitute a business practice within the meaning of the
27
UCL. Judge Gooding also did not reach the underlying issue of whether Chabad of Irvine
28
was violating the predicate laws alleged, and thus did not rule that Chabad of Irvines
15
COMPLAINT
1
actions were lawful, but only that they were not a business practice under the UCL. Judge
2 Goodings ruling is also under appeal.
3 FIRST CAUSE OF ACTION
4 Violation of Establishment Clause of U.S. Constitution
5 47. Plaintiffs reallege and incorporate by reference the allegations in each of the
6 preceding paragraphs of this Complaint.
7 48. The First Amendment to the United States Constitution provides, Congress
8
shall make no law respecting an establishment of religion. This amendment is binding
9
on the states under the Fourteenth Amendment.
10
49. Members of Plaintiff APRL have attempted to, and will continue to attempt
11
to, exercise their authority under Penal Code 837 to effectuate a private persons arrest of
12
individuals they see killing and discarding chickens and violating other laws listed above.
13
However, Defendants have spent, and will continue to spend, financial resources by
14
deploying large numbers of officers specifically in order to physically prevent such
15
lawful arrests from occurring, and to protect these entities illegal acts.
16
17
50. Defendants are expending taxpayer resources actively protecting the
18
criminal acts of these entities in a discriminatory fashion solely due to the religious
19 beliefs involved.
20 51. By actively protecting, encouraging and ratifying illegal conduct solely
21 because it is motivated by religious belief, Defendants are respecting the establishment of
22 religion in violation of the First Amendment, and have created a system without
23 legislative authority or oversight in which religiously motivated individuals can violate
24 the law with impunity. This carte blanche has even extended to Kapparot practitioners
25 punching and spitting on individuals peacefully protesting their illegal acts, and
26
Defendants refusing to make arrests or accept a private persons arrest.
27
52. Defendants purpose in intentionally refusing to enforce Penal Code 597
28
and other laws, and in spending vast financial resources to physically control large
16
COMPLAINT
1
numbers of protestors and prevent Plaintiffs from enforcing the law with private persons
2 arrests, is not secular but promotes criminal acts in the name of religion. The decision to
3 protect the illegal killing and discarding of thousands of chickens on public streets sends
4 a clear message to the community that Defendants stand behind this particular religious
5 practice even though it is illegal.
6 53. The principal or primary effect of Defendants actions advances religion
7 because the same acts of killing and discarding thousands of birds in the streets of Los
8
Angeles would certainly result in arrest and prosecution if carried out for a secular
9
purpose.
10
54. Finally, Defendants are actively favoring one side of an internecine religious
11
dispute. Many if not most of the individuals protesting the use of chickens in Kapparot
12
are Jewish and believe these acts violate not only the secular laws of the state but also
13
religious requirements in the Torah against animal cruelty and waste. Taking sides in this
14
dispute by actively protecting and ratifying the violation of neutral laws of general
15
applicability by one side solely because of the religious beliefs of the participants is the
16
17
epitome of excessive entanglement by the government that is strictly forbidden.
18
55. Plaintiffs seek declaratory relief that Defendants are violating the
19 Establishment Clause of the First Amendment by actively conspiring with, cooperating

20 with and protecting criminal acts in order to respect the establishment of religion.
21 SECOND CAUSE OF ACTION
22 Violation of 42 U.S.C. 1983
23 (Against individual DOE Defendant officers only)
26
57. In committing the acts and omissions outlined above, fictitiously named
27
DOE Defendant police officers are acting under color of state law. In doing so, they
28
violate 42 U.S.C. 1983.
17
COMPLAINT
1
THIRD CAUSE OF ACTION
2 Violation of 42 U.S.C. 1983
3 (Municipal liability)
6 59. Monell v. Department of Social Services of the City of New York (1978) 436
7 U.S. 658, holds that a municipal entity may be held liable for violations of Constitutional
8
rights committed by its law enforcement officers if the violation was based on either (1) a
9
widespread practice that, although not authorized by written law or express municipal
10
policy, is so permanent and well settled as to constitute a custom or usage with the force
11
of law, or (2) the decision of a person with final policymaking authority.
12
60. Defendants have engaged in a widespread practice of actively protecting
13
illegal acts solely due to the religious motivation involved, thus violating the
14
Establishment Clause of the First Amendment. Decisionmakers with final policymaking
15
authority have condoned this practice.
16
17
61. Defendants are thus liable for violating 42 U.S. 1983 under a municipal
18
liability theory.
19 FOURTH CAUSE OF ACTION

20 Writ of Mandate CCP 1085(a)
23 63. Defendants have a clear, ministerial duty to exercise their discretion with
24 respect to enforcement of Penal Code 597(a). While the Court cannot compel
25 Defendants to exercise their discretion in any particular manner, Defendants may not
26
refuse to exercise their discretion entirely and create a de facto exception to Penal Code
27
597(a) for killing motivated by religion that has not been provided for and was never
28
intended by the Legislature.
18
COMPLAINT
1
64. Plaintiffs seek a writ of mandate under state law requiring Defendants to
2 exercise their discretion with respect to enforcing Penal Code 597(a) against the killing
3 and discarding of chickens, rather than completely abrogating their responsibilities in this
4 regard simply because religion is involved.
5 FIFTH CAUSE OF ACTION
6 Declaratory Relief CCP 1060
8
preceding paragraphs of this Complaint.
9
66. There is an actual and concrete controversy between Plaintiffs and
10
Defendants regarding applicability of Penal Code 597(a) to the acts of killing and
11
discarding chickens.
12
67. Plaintiffs believe intentionally killing and discarding chickens violates Penal
13
Code 597(a), regardless of whether the motivation is secular or religious. Defendants,
14
on the other hand, believe either that Penal Code 597(a) does not apply to these acts, or
15
that Kapparot practitioners are entitled to a judicially created exception because of their
16
17
religious beliefs.
18
68. Plaintiffs would like to place individuals who kill and discard chickens
19 under private persons arrest pursuant to Penal Code 837, which they are entitled to do if
20 they witness such individuals violating the law. However, if these actions are either not
21 illegal or are constitutionally protected, then Plaintiffs would be committing a battery and
22 false arrest if they were to execute a private persons arrest for such conduct. Thus,
23 Plaintiffs seek a judicial determination regarding the applicability of Penal Code 597(a)
24 to these actions.
25 69. Because Defendants have taken the position that they cannot enforce Penal
26
Code 597(a) against entities that kill and discard animals used in Kapparot rituals, there
27
is an actual controversy involving a justiciable question relating to the parties rights or
28
obligations with respect to the enforceability of this law that is ripe for a judicial
19
COMPLAINT
1
determination under Cal. Code Civ. Proc. 1060.
2 70. A judicial declaration of the respective parties rights and duties is needed so
3 that the parties can each conduct themselves in accordance with those rights and duties.
4 71. Without such a judicial declaration, there will continue to be disputes and
5 controversy over the legality of killing and discarding of thousands of chickens in the
6 streets of Los Angeles and Irvine. As members of the public continue to be subjected to
7 this spectacle of mass cruelty, there will also continue to be confrontations, protests, and
8
confusion over why no enforcement action is being taken.
9
PRAYER FOR RELIEF
10
Wherefore, Plaintiffs pray for judgment against Defendants as follows:
11
1. For a declaration that Defendants are violating the Establishment Clause of
12
the First Amendment by expending financial resources in deploying large numbers of
13
officers to physically prevent Plaintiffs from making private persons arrests of
14
individuals they witness committing crimes and actively protecting these illegal acts
15
solely because of the religious beliefs of the law breakers;
16
17
2. For injunctive relief requiring Defendants to accept private person arrests of
18
agents of individuals who are actively in the midst of systematically killing and
19 discarding hundreds of chickens in violation of Penal Code 597(a);

20 3. For a writ of mandate requiring Defendants to exercise their discretion to
21 enforce Penal Code 597(a) rather than creating a de facto exception for killing and
22 discarding animals solely because the killing is motivated by religion;
23 4. For declaratory relief against all Defendants that there is no exception to
24 California Penal Code 597(a) that would provide legal justification for killing animals
25 solely for a religious ritual when the animals are discarded instead of used for food;
26
5. For attorneys fees as provided by, inter alia, Code Civ. Proc. 1021.5, 42
27
U.S.C. 1988, and any other applicable statute;
28
6. For costs of suit incurred herein; and
20
COMPLAINT
1
7. For such other and further relief as the Court deems just and proper.
2
Dated: September 12, 2017 LAW OFFICE OF BRYAN W. PEASE
3
LAW OFFICE OF G. DAVID TENENBAUM
4 SIMON LAW GROUP
5
By:
6
7
/s/ Bryan W. Pease
Bryan W. Pease
8
Attorneys for Plaintiffs
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21
COMPLAINT

Animal Protection League V LA

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Animal Protection League V LA

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Case 8:17-cv-01581-JLS-JDE Document 1 Filed 09/12/17 Page 1 of 21 Page ID #:1

7 G. David Tenenbaum (SBN 150629)

12 David R. Simon (SBN 145197)

17 Attorneys for Plaintiffs

20 CENTRAL DISTRICT OF CALIFORNIA

1 disposed. As these entities illegally harbor, slaughter, and dispose of thousands of

1 is concerned, require a preexisting hatred or enmity toward the individual injured.

14 d. Cal. Penal Code 597.1(a) provides in relevant part:

18 e. Cal. Penal Code 597.4 provides in relevant part:

3 g. Cal. Penal Code 597t provides in relevant part:

6 h. Cal. Penal Code 599 provides in relevant part:

19 b. Los Angeles Mun. Code 53.62(a) provides in relevant part:

23 c. IMC Sec. 4-5-710 provides in relevant part:

8 No person shall leave or confine an animal in any unattended motor

15 It shall be unlawful to leave an animal unattended and without proper

19 Establishment Clause of the First Amendment by actively conspiring with, cooperating

19 FOURTH CAUSE OF ACTION

19 discarding hundreds of chickens in violation of Penal Code 597(a);

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