Filed 1/14/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

AARON LEIDER,

Plaintiff and Appellant,

v.

JOHN LEWIS et al.,

Defendants and Appellants.

 B244414

 (Los Angeles County

 Super. Ct. No. BC375234)

APPEAL from a judgment of the Superior Court of Los Angeles County. John L. 

Segal, Judge. Affirmed.

Wasserman, Comden & Casselman, David B. Casselman; Esner, Chang & Boyer 

and Stuart B. Esner for Plaintiff and Appellant.

Sullivan & Crowell, Diane L. McGimsey, Edward E. Johnson, Janet Y. Galeria 

and Jonathon D. Townsend 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 and John A. Carvalho, Deputy City Attorney, for 

Defendants and Appellants. 

Duane Morris and Patricia P. Hollenbeck for Association of Zoos & Aquariums, 

San Diego Zoo Global, International Elephant Foundation, Phoenix Zoo, North Carolina 
2

Zoological Park, Saint Louis Zoo, and Busch Gardens Tampa as Amici Curiae on behalf 

of Defendants and Appellants. 

_______________________

INTRODUCTION

This case concerns the elephants and the elephant exhibit at the Los Angeles Zoo. 

In litigation that began in 2007, plaintiffs and taxpayers Aaron Leider and the late Robert 

Culp sought to enjoin the continued operation of the elephant exhibit. They also fought

to prevent the construction of a new, expanded elephant exhibit. According to plaintiffs, 

the Zoo had engaged in years of egregious abuse and neglect of the elephants in its care. 

They alleged the new proposed exhibit would not be large enough to ameliorate the 

problems inherent in keeping elephants in traditional zoo-like enclosures. The plaintiffs 

asserted the Zoo’s conduct violated animal cruelty provisions in the Penal Code, and 

constituted illegal expenditures of, waste of, or injury to public funds and property. The 

defendants vigorously disputed the claims. After the grant of defendants’ summary 

judgment motion, a reversal on appeal by this court, an amended complaint, and pretrial 

motions, the case went to trial.1 The trial court rejected many of Leider’s claims, but 

issued limited injunctions prohibiting the use of particular forms of inappropriate 

discipline, requiring the elephants have specific amounts of exercise time, and requiring 

the rototilling of the soil in the exhibit.

Both sides appeal from the trial court judgment. The defendants challenge a trial 

court order overruling their demurrer to the first amended complaint. The defendants 

contend Leider could not base his taxpayer claims on alleged violations of the Penal Code 

because of the principle that an injunction may not issue to enforce a penal law. They 

alternatively challenge the injunctions as exceeding the requirements of relevant statutes 

and regulations governing the care and maintenance of elephants. Leider, on the other 

 

1 By this time Culp had died and Leider was the sole plaintiff. 
3

hand, contends the trial court erred in failing to shut down the elephant exhibit. Leider 

argues the trial court improperly rejected certain of his claims based on Penal Code 

violations. He also challenges the trial court conclusion that he failed to establish a 

justiciable claim for injury to public property under Code of Civil Procedure 

section 526a, or a claim based on the violation of a federal regulation regarding animal 

enclosures. 

We agree with the trial court that our decision in the first appeal was law of the 

case of Leider’s right to bring a taxpayer action based on violations of certain Penal Code 

provisions concerning animal abuse. We alternatively conclude that Civil Code 

section 3369, which prohibits the issuance of an injunction to enforce a penal law does 

not apply to taxpayer suits. We also conclude that the trial court’s injunctions concerning 

soil maintenance and exercise time were proper, but reject Leider’s claims that the trial 

court erred by otherwise declining to close the elephant exhibit. We therefore affirm the 

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, in the face of opposition from at least one animal welfare organization to 

the continued operation or expansion of an elephant exhibit at the Los Angeles Zoo, the 

mayor of Los Angeles sought an evaluation of the proposed exhibit and whether an 

elephant exhibit should be continued at the Zoo. After consideration, including public 

hearings involving the City Council, the City decided to proceed with an expansion and 

redesign of the elephant exhibit. In 2007, the Zoo had two elephants, one male and one 

female. At some point that year, the female elephant was sent to a sanctuary. In 2010, 

the Zoo acquired two female elephants from the San Diego Zoo; the United States 

Department of Agriculture had previously confiscated the two elephants from an 

individual in Texas. The Zoo now has three elephants. 

The Zoo opened the new elephant exhibit in December 2010. Although the 

exhibit covers more than six and a half acres, the area available to the elephants is smaller 
4

due to structures that prevent the elephants from ranging freely across the entire exhibit, 

including electrically charged wires that keep the elephants away from certain areas with 

vegetation. 

In 2007, Leider and Culp sued the City of Los Angeles and the director of the Zoo, 

John Lewis (collectively the City or defendants), in a taxpayer action under Code of Civil 

Procedure section 526a (section 526a). The complaint sought an injunction closing the 

existing exhibit and preventing construction of the new one. This is the second appeal in 

this matter. In the first appeal, the plaintiffs challenged a trial court order granting 

summary judgment to the City. This court concluded triable issues of fact existed 

regarding whether defendants had engaged or would engage in illegal expenditures in 

connection with the elephant exhibit and violation of Penal Code section 596.5.2 We 

therefore reversed the summary judgment. (Culp v. City of Los Angeles (Sept. 23, 2009, 

B208520) [nonpub. opn.].)3

Following the remittitur, Leider filed an amended complaint seeking injunctive 

and declaratory relief. In addition to alleging the defendants had engaged in illegal acts 

under Penal Code section 596.5, the amended complaint contended the defendants’

actions or omissions violated Penal Code sections 597 and 597.1, which are additional 

cruelty to animal statutes. As in the original complaint, the amended complaint alleged 

that between 1975 and 2006, multiple elephants at the Zoo died prematurely as a result of 

inadequate space and hard surface conditions, inadequate veterinary care, and 

mistreatment that included use of a bull hook. The amended complaint alleged the City’s 

 

2 Penal Code section 596.5 renders it 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 [head restraint devices known as] martingales. [¶] (f) Use 

of block and tackle.”

3 For ease of reference we will refer to our decision in the first appeal as Leider I.
5

actions cost taxpayers “the unnecessary expenditure of millions of dollars.” It further 

alleged the proposed expansion of the elephant exhibit would permit more abuse and 

waste of taxpayer funds. The amended complaint alleged the proposed expansion and 

continued operation of the exhibit violated public policies described in California Fish 

and Game Code sections 1600, 2051, 2052, 2116.5; California Code of Public Resources 

section 21001; Penal Code section 596.5; and the United States Endangered Species Act 

of 1973 (16 U.S.C. §§ 1531, 4202). 

The City demurred to the first amended complaint. For the first time in the 

litigation, the City contended Leider could not state a claim under section 526a for 

injunctive or declaratory relief because the claims challenged alleged violations of the 

Penal Code. The City based its argument on Civil Code section 3369, which states that 

“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.” The City additionally relied on a California Supreme Court case 

applying Civil Code section 3369 in a taxpayer action, Nathan H. Schur, Inc. v. City of 

Santa Monica (1956) 47 Cal.2d 11 (Schur). The City argued the complaint failed to state 

a cause of action on any theory because the trial court had previously concluded, in 

connection with the City’s motion for summary judgment, that plaintiff’s waste claim 

was not justiciable, and this court’s opinion reversing the summary judgment ruling did 

not disturb the trial court’s prior conclusion on the waste theory. 

Leider opposed the demurrer. He challenged the applicability of Civil Code 

section 3369 and Schur to his case. Leider further argued the demurrer did not establish 

the complaint failed to state any cause of action in that it did not address the allegation 

that the City was illegally expending funds by violating the public policies underlying 

provisions in the Fish and Game and Public Resources Codes, or the allegation that the 

City was injuring public property. Leider asserted all theories in the complaint were at 

large following this court’s opinion in the first appeal, including waste and injury. In 
6

reply, the City again contended the demurrer resolved all of plaintiffs’ claims because 

they were barred or not justiciable. 

The trial court issued a tentative opinion addressing both the City’s demurrer and 

Leider’s motion for a preliminary injunction. After a round of supplemental briefing, the 

trial court overruled the demurrer. The court concluded the amended complaint alleged 

the City engaged in conduct such as electrical shocking and illegal use of bull hooks. 

As such, the court determined the amended complaint stated valid causes of action in 

alleging the City physically abuses its elephants in violation of Penal Code section 596.5. 

The trial court rejected the Civil Code section 3369 argument as “not open on remand”

after our opinion in Leider I. In the context of Leider’s motion for a preliminary 

injunction, the trial court considered several additional issues, including the proper 

analysis of the “injury to property” prong of section 526a. The court denied the motion 

on the ground that Leider had not demonstrated a probability of prevailing on the merits. 

The case proceeded to a bench trial. In a detailed statement of decision, the trial 

court concluded that while the evidence did not establish definitively how much space an 

elephant in captivity needs, Leider had proved the ground of the elephant exhibit is hard, 

not varied or soft, and creates a risk of injury to the elephants’ joints, feet, and nails. The 

court credited evidence establishing that the size of the exhibit contributed to compacted, 

hard soil as well as to contamination and increased risk of infection from the presence of 

urine and fecal matter in a small space. The three elephants exhibit “stereotypic 

behavior” which the court found was strong evidence that, with respect to at least the sole 

male elephant, the zoo is not meeting his needs. The court further credited evidence 

showing elephants in captivity inevitably develop foot problems as a result of a lack of 

exercise. The court concluded the elephants are emotionally and socially deprived due to 

the limited choices and enrichment activities available to them, and, in the case of the 

sole male elephant, from living in isolation. 

However, the court concluded Leider had not established the City was violating 

Penal Code section 596.5, which prohibits an elephant owner or manager from engaging 
7

in abusive behavior of the elephant. The court found the evidence did not establish the 

City’s conduct violated Penal Code section 597, nor had Leider presented any evidence 

or authority that Penal Code section 597, subdivision (b) applied to elephants held captive 

in a zoo. Although the court noted the elephants are “hardly, as defendants contend, 

‘thriving,’ ” it concluded the City’s conduct is “not abusive, does not amount to causing 

suffering, and is not cruel beyond the ‘ordinary’ circumstances of captivity (which 

plaintiff does not challenge).” The court found Penal Code section 597.1 does not apply 

to captive zoo animals.4 Similarly, the court found the evidence did not establish the 

elephant exhibit runs afoul of a regulation promulgated the United States Department of 

Agriculture regarding space for animals in enclosures.5

 

4 Penal Code section 597, subdivision (b) provides in relevant part: “whoever, 

having the charge or custody of any animal, either as owner or otherwise, subjects any 

animal to needless suffering, or inflicts unnecessary cruelty upon the animal, or in any 

manner abuses any animal, or fails to provide the animal with proper food, drink, or 

shelter or protection from the weather, or who drives, rides, or otherwise uses the animal 

when unfit for labor, is, for each offense, guilty of a crime punishable pursuant to 

subdivision (d).” 

Penal Code section 597.1, subdivision (a)(1), provides, in part: “Every owner, 

driver, or keeper of any animal who permits the animal to be in any building, enclosure, 

lane, street, square, or lot of any city, county, city and county, or judicial district without 

proper care and attention is guilty of a misdemeanor. Any peace officer, humane society 

officer, or animal control officer shall take possession of the stray or abandoned animal 

and shall provide care and treatment for the animal until the animal is deemed to be in 

suitable condition to be returned to the owner. When the officer has reasonable grounds 

to believe that very prompt action is required to protect the health or safety of the animal 

or the health or safety of others, the officer shall immediately seize the animal and 

comply with subdivision (f).”

5 The regulations Leider referenced concern specifications for the “humane 

handling, care, treatment, and transportation” of certain warm-blooded animals. 9 Code 

of Federal Regulations section 3.128 states: “Enclosures shall be constructed and 

maintained so as to provide sufficient space to allow each animal to make normal 

postural and social adjustments with adequate freedom of movement. Inadequate space 

may be indicated by evidence of malnutrition, poor condition, debility, stress, or 

abnormal behavior patterns.” The trial court concluded the evidence established the 
8

The court further found Leider had not proved the City was engaged in waste 

within the meaning of section 526a, a theory Leider had asserted “almost as an 

afterthought.” And, although Leider established the elephant exhibit is injuring the three 

elephants, the court concluded Leider had not provided “any applicable legal standard 

against which the court could measure or ‘test’ defendants’ injurious (but not abusive) 

conduct toward the elephants in the Los Angeles Zoo.”

Even so, the court concluded an injunction was appropriate to prevent the City

from engaging in forms of inappropriate discipline that had been used at the Zoo in the 

past. Although the City asserted it had discontinued all conduct prohibited by Penal 

Code section 596.5, the court, after evaluating numerous relevant factors, concluded 

Leider was entitled to an injunction enjoining the City from using bull hooks or electric 

shocks on the elephants. The court also found Leider proved a violation of Penal Code 

section 597t by establishing that soil compaction deprived the elephants of an adequate 

exercise area, and ordered the City to regularly rototill the soil and provide the elephants 

one to two hours of daily supervised exercise.6

Accordingly, in a final judgment, the court enjoined the defendants from using 

bull hooks and electric shock in the management, care, and discipline of the elephants at 

the Los Angeles Zoo. The court further ordered the defendants to exercise the elephants 

for a total of at least two hours a day, with appropriate breaks for the zoo staff and the 

elephants, unless weather or emergency conditions make such exercise impracticable. 

The court ordered defendants to rototill both the soil and the substrate of the elephant 

 

elephants have enough space and freedom to make normal adjustments of their posture 

and social movements. 

6 Penal Code section 597t provides in part: “Every person who keeps an animal 

confined in an enclosed area shall provide it with an adequate exercise area. If the animal 

is restricted by a leash, rope, or chain, the leash, rope, or chain shall be affixed in such a 

manner that it will prevent the animal from becoming entangled or injured and permit the 

animal’s access to adequate shelter, food, and water. Violation of this section constitutes 

a misdemeanor.”
9

exhibit regularly, consistent with the standards and recommendations of two experts 

whose testimony was adduced at trial. 

Both sides timely appealed from the judgment. On appeal, the City challenges the 

trial court order overruling the demurrer. The City contends Civil Code section 3369 

barred Leider’s action. The City alternatively argues the trial court erred in issuing the 

injunctions requiring exercise and rototilling because the terms of the injunction exceed 

the requirements of Penal Code section 597t and California regulations regarding 

elephant enclosures and exercise. In his cross-appeal, Leider argues the trial court erred 

in failing to order the City to close the elephant exhibit under the illegal expenditures 

prong of section 526a. Leider contends the undisputed facts indicate the City is illegally 

abusing the elephants under several Penal Code statutes, and closing the exhibit is the 

only remedy that would address the proven harms. Leider further asserts the trial court 

erred in finding no violation of Penal Code sections 596.5 or 597, or 9 Code of Federal 

Regulations section 3.128, and the court erred in concluding Penal Code section 597.1, 

subdivision (a) did not apply to animals held captive in a zoo. Leider also argues the trial 

court erred in its interpretation of “injury” under section 526a, which, he asserts, also 

mandated closure of the elephant exhibit.

STANDARD OF REVIEW

We review the trial court’s decision to grant or deny an injunction under the abuse 

of discretion standard. (Horsford v. Board of Trustees of California State University

(2005) 132 Cal.App.4th 359, 390.) However, the evidence must support the trial court’s 

exercise of discretion, and to the extent the trial court resolved disputed factual issues, we 

apply the substantial evidence standard of review. (Ibid.)

To the extent we are required to interpret statutory language, we confront issues of 

law that are resolved under the rules of statutory interpretation. (Ciani v. San Diego 

Trust & Savings Bank (1991) 233 Cal.App.3d 1604, 1611.) Our primary task when 

interpreting statutes is to determine the Legislature’s intent. “We first examine the words 
10

used in the statute and give them a plain and commonsense meaning. If the language is 

clear and unambiguous, there is no need for construction or for resort to indicators of the 

Legislature’s intent. [Citation.] A statute’s literal meaning must be aligned with its 

purpose. Its meaning may not be determined from a single word or sentence. Instead, 

the words must be construed in context, and provisions relating to the same subject 

matter or that are part of the same statutory scheme must be read together and 

harmonized to the extent possible.” (Harbor Regional Center v. Office of Administrative 

Hearings (2012) 210 Cal.App.4th 293, 310-311 (Harbor Regional), footnote omitted.)

“We must select a construction that best fits the Legislature’s apparent intent; 

promotes instead of defeats the statute’s general purpose; and avoids absurd or 

unintended consequences. [Citation.] The statute cannot be construed in a way that 

would make its provisions void or ineffective, especially if that would frustrate the 

underlying legislative purpose.” (Harbor Regional, supra, 210 Cal.App.4th at p. 311.)

DISCUSSION

A. The City’s Appeal

1. Our Holding in Leider I Is Law of the Case that Leider’s Action Is Proper

After our decision in Leider I, the City raised a new issue: that under Civil Code 

section 3369, which prohibits injunctions to enforce penal laws, the entire action was 

improper. The trial court overruled the City’s demurrer on that ground, finding that our 

decision in Leider I was law of the case that taxpayer actions were a proper vehicle for 

challenging government spending that also violated the criminal law. We now consider 

the City’s contention that the trial court erred.

1.1 General Principles of Law of the Case

Under the law of the case doctrine an appellate court decision stating a rule of law 

necessary to the decision of the case conclusively establishes that rule and determines the 

rights of the parties in any later retrial or appeal. (Yu v. Signet Bank/Virginia (2002) 

103 Cal.App.4th 298, 309 (Yu).) The doctrine promotes finality and prevents piecemeal 
11

litigation of an issue by preventing the relitigation of issues that were already decided. 

(Ibid.) The rule extends to issues that were implicitly determined because they were 

essential to the prior decision. (Ibid.) 

The law of the case doctrine has two limitations:

First, it does not apply to points of law that might have been, but were not, either 

explicitly or implicitly, decided in the earlier appeal. (Yu, supra, 103 Cal.App.4th at 

p. 309.) 

Second, the doctrine is procedural, not substantive. It may be disregarded in 

exceptional circumstances: (1) when there has been a manifest misapplication of existing 

principles that results in a substantial injustice, or (2) there has been an intervening or 

contemporaneous change in the law.7 (Ibid.)

1.2 The Leider I Decision

The trial court in Leider I had granted summary judgment for the City on the 

ground that Leider’s taxpayer action, which was based on alleged violations of certain 

animal abuse statutes, presented a non-justiciable issue of public policy concerns that 

needed to be resolved as part of the political process. On appeal, Leider argued that once 

he had raised triable issues of fact that the City’s treatment of the elephants violated the 

Penal Code’s animal abuse provisions, he had satisfied the requirements of a taxpayer 

action. 

The City acknowledged that a taxpayer action was proper when challenging 

“illegal government action,” but argued that such an action was not proper where the real 

issue involved a disagreement over the manner in which the government has exercised its 

discretion to address a problem. The City also contended that the Penal Code provisions 

 

7 We asked for and received supplemental briefing on whether one new decision –

Animal Legal Defense Fund v. California Exposition and State Fairs (2015) 

239 Cal.App.4th 1286 (ALDF) – showed that applying law of the case here would 

constitute a misapplication of existing legal principles and whether it affects the merits of 

the City’s appeal. Because both issues overlap, we will discuss this new decision 

separately in section 3. of our DISCUSSION.
12

that Leider relied on did not provide a legal standard by which its treatment of the 

elephants could be measured.

We examined the allegations of the complaint, in particular those alleging that the 

City’s treatment of the elephants violated Penal Code section 596.5, which makes it a 

misdemeanor to abuse elephants by conduct that includes: the use of electricity; physical 

punishment that results in damage, scarring, or breaking of skin; and other unspecified 

conduct. We first rejected the City’s claim that the appeal was moot because the new 

elephant exhibit would be constructed with privately donated funds. In doing so, we held 

that Leider had standing to challenge the City’s allegedly abusive conduct because City

funds would continue to be used to operate the exhibit in an allegedly illegal manner. 

(Leider I, supra, slip opn. at p. 3.) We characterized section 526a as permitting taxpayer 

actions to challenge the illegal expenditure of public funds, and held that Leider had 

raised a triable fact issue that the City’s treatment of the elephants violated Penal Code 

section 596.5. (Leider I, supra, slip opn. at pp. 7-8.) As part of our discussion, we also 

held that these claims were justiciable because Penal Code section 596.5 provided an 

adequate legal standard against which the City’s alleged conduct could be measured, 

permitting an injunction enjoining such conduct if it were proven. (Id. at pp. 8-9.) Such 

a standard is necessary to ensure that private plaintiffs in section 526a actions “do not 

trespass into the domain of legislative or executive discretion.” (Harman v. City and 

County of San Francisco (1972) 7 Cal.3d 150, 160-161.)

1.3 The City’s New Challenge Was Implicitly Decided Against It In 

Leider I

In its current appeal from the ensuing judgment, the City now contends that the 

trial court erred in overruling its demurrer to Leider’s entire amended complaint based on 

a new ground: that under Civil Code section 3369, as interpreted by Schur, supra,

47 Cal.2d 11, Leider was barred from seeking injunctive relief to enjoin violations of the 

Penal Code. We conclude that this issue was at least implicitly decided in Leider’s favor 

in Leider I. Accordingly unless an exception applies, the law of the case precludes the 

City from relitigating this issue.
13

The decision in Yu, supra, 103 Cal.App.4th 298, illustrates the rule that both 

“explicit and implicit conclusions of law establish[] the law of the case.” (Id. at p. 310.) 

The plaintiffs in Yu sued a credit card issuer for unlawful business practices. The first 

Court of Appeal decision reversed a summary judgment for the bank, rejecting the bank’s 

contention that a leading appellate decision was distinguishable. A second appeal was 

brought by the plaintiffs after the trial court, on remand, sustained without leave to amend 

the bank’s demurrers to an amended complaint, and, in the second appeal, the bank 

argued for the first time that the leading appellate decision had been wrongly decided and 

was trumped by certain privileges.

The Yu court refused to consider these new arguments because they were barred 

by the law of the case. The Yu court held that the law of the case exception for issues that 

were not raised, but could have been, did not apply. Instead, the Yu court held that the 

bank was simply refining its previous arguments. (Yu, supra, 103 Cal.App.4th at 

pp. 311-312.)

As the Yu court observed, “[l]itigants are not free to continually reinvent their 

position on legal issues that have been resolved against them by an appellate court,”

because it would be absurd to place a party who has chosen not to argue a point on appeal 

in a better position than one who argued that point and lost. (Yu, supra, 103 Cal.App.4th

at p. 312.)

In short, the law of the case doctrine is not defeated by simply raising a new 

argument that is essentially a twist on an earlier unsuccessful argument. With this in 

mind, we see little difference between Yu and the facts of this case. In Leider I, the City 

argued that Leider could not maintain his taxpayer action for Penal Code animal abuse 

violations because those code sections did not provide a sufficient standard to make his 

claims justiciable. We rejected that contention, holding that the relevant Penal Code 

provisions supplied an adequate legal standard by which the City’s conduct could be 

tested. (Leider I, supra, slip opn. at p. 9.)
14

In the present appeal, the City contends again that under its new theory Leider 

may not obtain injunctive relief for conduct that violates Penal Code provisions. We 

disagree. By deciding that the animal abuse statutes provided a sufficient legal standard 

to make Leider’s taxpayer action justiciable, we also implicitly decided that California 

law permits section 526a actions based on violations of the Penal Code’s animal abuse 

provisions. In short, the City is simply trying to refine its earlier argument by asserting 

another reason why taxpayer action are not proper when based on the animal abuse 

provisions of the Penal Code.

We reject the City’s reliance on Estate of Horman (1971) 5 Cal.3d 62 (Horman),

for the proposition that Leider I did not implicitly decide the new issue it raises here. In 

Horman, the probate court ordered the distribution of a decedent’s estate to non-residents. 

The State of California appealed, contending, as it had at trial, that the survivors had not 

sufficiently established their relationship to the decedent. The State prevailed at the 

retrial, but that judgment was reversed and another trial was held. At the third trial, the 

State for the first time raised the five-year deadline for asserting claims contained in 

Probate Code section 1026. The trial court found that the five-year period had been 

tolled while the previous actions had been pending.

In the final appeal, the Supreme Court rejected the survivors’ contention that law 

of the case barred the State from raising Probate Code section 1026 because the State had 

not raised the issue during the first and second trials and appeals. The Supreme Court 

held that the earlier proceedings had reached only the substantive merits of the survivors’

claims and therefore had not even implicitly reached the procedural time bar of Probate 

Code section 1026. (Horman, supra, 5 Cal.3d at pp. 73-74.)

We believe Horman is distinguishable because the new issue raised there was a 

procedural bar, while the earlier proceedings focused solely on the merits. In this case, as 

in Yu, supra, 103 Cal.App.4th 298, the new issues raised – whether a taxpayer’s action 

was proper based on violations of the Penal Code’s animal abuse provisions – bore an 

analytically substantive relationship to the issues previously considered. (See also 
15

Greene v. Bank of America (2015) 236 Cal.App.4th 922, 932 [law of the case did not 

preclude malicious prosecution defendant from raising new issue of collateral estoppel 

because earlier proceedings focused solely on the merits of the plaintiff’s claims].) 

1.4 Refusing to Apply Civil Code Section 3369 Will Not Create a

Substantial Injustice

Even where law of the case would otherwise apply, we may disregard the doctrine 

if doing so would lead to a substantial injustice by a manifest misapplication of existing 

legal principles or if there has been an intervening change in the law. 

As to the first exception, we assume for discussion’s sake that Civil Code section 

3369 does bar Leider’s action, and that we would have so held had the issue been raised 

during the first appeal. Even so, we conclude that keeping the trial court’s judgment in 

place by applying the law of the case doctrine to our decision in Leider I would not result 

in a substantial injustice.

Pursuant to the trial court’s judgment, the City is barred from using bull hooks, a 

practice it said it had already stopped, and was ordered to rototill the soil in the elephant 

exhibit and make sure that the elephants get sufficient exercise. As the case law in this 

area makes clear, allowing this result to stand, even if in error, is not a substantial 

injustice.

We begin with People v. Shuey (1975) 13 Cal.3d 835 (Shuey), where the Court of 

Appeal issue a writ overturning the denial of defendant’s motion to suppress evidence of 

the marijuana found in his apartment on the ground that an illegal search and seizure 

occurred when the police occupied his apartment for three hours while a search warrant 

was obtained. As part of its order, the Court of Appeal held that the prosecutor had 

waived the issue of whether a valid arrest based on probable cause had occurred. On 

remand, the trial court held a limited hearing on another issue -- whether the evidence 

should be suppressed as the fruit of the poisonous tree. The trial court again excluded the 

evidence.

On appeal by the prosecution, the Supreme Court refused to consider the 

prosecutor’s contention that a valid arrest had occurred. Relying on the law of the case 
16

doctrine, the Shuey court held that even if the finding of waiver in the first appeal had 

been in error, the substantial injustice exception to law of the case did not apply: “Yet if 

the rule is to be other than an empty formalism more must be shown than that a court on a 

subsequent appeal disagrees with a prior appellate determination. Otherwise the doctrine 

would lose all vitality and the [law of the case doctrine] would be reduced to a vapid 

academic exercise, since an unsuccessful petitioner for pretrial writ review could always 

maintain on subsequent appeal that the prior adjudication resulted in an ‘unjust 

decision.’ ” (Shuey, supra, 13 Cal.3d at p. 846.)

Similarly, the court in Chase Brass & Copper Co. v. Franchise Tax Board (1977) 

70 Cal.App.3d 457 (Chase) held that a previous ruling that erroneously allowed a 

corporation to underpay its state tax liability was protected from a new challenge to that 

issue by the law of the case doctrine. Even though the company would pay less tax than 

it owed, the Chase court held that law of the case applied and, albeit without discussion, 

held that doing so did not demonstrate a manifest misapplication of existing principles 

resulting in substantial injustice. (Id., at pp. 464-465.)

To reiterate, in Shuey, law of the case was invoked to prevent the prosecution from 

raising an issue that could have defeated a criminal defendant’s motion to suppress the 

key evidence against him. In Chase, the doctrine was invoked even though it allowed a 

corporation to underpay its state income tax. The Courts of Appeal in the final appeals 

found neither result worked a substantial injustice. Something more than an incorrect 

decision must be shown. 

The City contends that a substantial injustice will result because its employees 

would risk losing their jury trial and higher burden of proof rights required in a criminal 

trial. It also argues that, depending on how we rule, it could also lose its $42 million 

elephant exhibit. As to the latter, our decision leaves the exhibit in place. As to the 

former, individual defendants are enjoined in their official capacities only. None has 

been prosecuted, sentenced, or fined. It is also doubtful that the judgment in this civil 
17

injunction case could have collateral estoppel effect in any criminal proceeding. (People 

v. Superior Court (Lucero) (1989) 49 Cal.3d 14, 20, fn. 3.)

Otherwise, the City has failed to address whether the judgment as it currently 

stands will work any substantial injustice if it remains in place. The City must stop a 

practice (using bull hooks and electric shocks to discipline elephants) that it has 

disavowed, as well as exercise the elephants and turn the soil in the elephant exhibit. The 

City does not contend, and we do not believe, that such a limited remedy amounts to a 

substantial injustice. If anything, our decision tends to promote a just result, at least to 

the extent it aligns with the prohibitions of the animal abuse statutes and the requirements 

of federal regulations governing the treatment of elephants. (See 9 C.F.R. § 3.128 

[ensuring freedom of movement]; 9 C.F.R. § 3.140 [humane handling procedures for 

transporting animals].)

This is not a case like Sefton v. Sefton (2015) 236 Cal.App.4th 159, where the 

Court of Appeal refused to apply law of the case because the trial court’s distribution of a 

substantial portion of the trust to one beneficiary was contrary to hundreds of years of 

rulings and deprived a rightful beneficiary of his share of the estate. (Id. at p. 172, fn. 6.) 

Instead, as previously noted, the City must stop practices (using bull hooks and electric 

shocks to discipline elephants) that it has already disavowed, turn the soil in the elephant 

exhibit, and exercise the elephants. Under the authorities just discussed, such a result 

does not amount to a substantial injustice.

1.5 There Has Been No Misapplication of Existing Principles Because

Schur Does Not Apply to Leider’s Action

Ultimately, we reject the City’s argument that the law of the case is inapplicable 

because the authorities on which they rely, Schur and Civil Code section 3369, do not 

apply here. We begin by setting forth the relevant provisions of Civil Code section 3369 

and Code of Civil Procedure section 526a.

Civil Code section 3369 was enacted by the Legislature in 1872. It provides: 

“Neither specific nor preventive relief can be granted to enforce a penalty or forfeiture in 
18

any case, nor to enforce a penal law, except in a case of nuisance or as otherwise 

provided by law.”

8

Section 526a was enacted by the Legislature in 1909. It provides: “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 or resident therein, . . . who is liable to pay . . . a 

tax therein.”

Civil Code section 3369’s prohibition against injunctive relief where the conduct 

to be enjoined is criminal is designed to protect the defendant’s rights to both a jury trial 

and the higher burden of proof required in criminal trials. (People v. Lim (1941) 

18 Cal.2d 872, 880 (Lim).) However, section 3369 does not apply where the criminal 

conduct also amounts to a civil nuisance that affects the complaining party’s property 

rights. (Id. at pp. 879-880.)

The court in Schur, supra, 47 Cal.2d 11 considered the effect of Civil Code 

section 3369 on a taxpayer suit brought to stop the City of Santa Monica from issuing 

amusement licenses for games of skill that the plaintiff contended were in fact games of 

chance that violated the state’s anti-gambling laws. The Schur court reversed a judgment 

for the plaintiff. The Schur court framed the issue before it as one to enjoin the city from 

committing a crime, even though the plaintiff asked that the city be enjoined from 

spending funds to issue the supposedly illegal licenses. (Id. at p. 17) The Supreme Court 

acknowledged that section 526a allowed taxpayers to obtain injunctions against a city’s 

 

8 Civil Code section 3369 was amended in 1977 to delete specified exemptions for 

unfair competition actions and insert the exception for actions as “otherwise provided by 

law.” Leider contends this amendment opened the door to taxpayer actions based on 

Penal Code violations, while the City contends that it referred to the unfair competition 

laws. On its face, the “as otherwise provided by law” amendment seems to encompass 

any statutory authorization for injunctive relief. We need not resolve this issue, however, 

because our interpretation of sections 3369 and 526a is based on the pre-1977 version 

present in Schur. 
19

illegal use of funds. However, such relief was not proper where the City exercised its 

valid quasi-judicial authority to issue licenses following a noticed public hearing attended

by the plaintiff, who could seek relief through an administrative mandate action. (Id. at 

pp. 17-18.)

The Schur court then discussed Lim, supra, 18 Cal.2d 872, and its holding that an 

action to enjoin someone’s operation of an illegal gambling house was not permitted 

under Civil Code section 3369 because the Legislature had not declared such operations 

to be public nuisances. The Schur court used its discussion of Lim as a guideline for the 

trial court should there be a retrial: “Caution should be observed therefore upon retrial to 

avoid violating that [Lim] rule. It should also be observed that whether licenses are or are 

not issued the criminal law is still open to Schur.” (Schur, supra, 47 Cal.2d at pp. 18-19.)

In examining Schur’s reach, we are guided by the rule that the language used in an 

opinion must be understood in light of the facts and the issues before the court, and an 

opinion is not authority for a proposition not actually considered. (Elisa B. v. Superior 

Court (2005) 37 Cal.4th 108, 118.) As we read Schur, it viewed the action as one to 

enjoin a crime, not as a taxpayer action to stop the illegal use of funds. Our conclusion is 

bolstered by the Schur court’s failure to discuss the meaning of “illegal expenditure” in 

section 526a, as well as its reliance on Lim, supra, 18 Cal.2d 872, which was an action 

against a private party to enjoin a nuisance, not a taxpayer action.9

In fact, as Lim itself made clear, an injunction against criminal activity is proper 

where the Legislature provides for it. (Lim, supra, 18 Cal.2d at pp. 880-881.) Section 

526a so provides. We begin by examining the statutory purpose behind section 526a. It 

provides “a general citizen remedy for controlling illegal government activity.” (White v. 

Davis (1975) 13 Cal.3d 757, 763.) Its primary purpose is to “ ‘enable a large body of the 

citizenry to challenge governmental action which would otherwise go unchallenged in the 

 

9 Even the court in ALDF, supra, 239 Cal.App.4th 1286, believed that Schur stood 

for no more than the proposition that a taxpayer action based on violation of a criminal 

statute is not proper where an administrative remedy is available. (Id. at p. 1301.)
20

courts because of the standing requirement.” (Blair v. Pitchess (1971) 5 Cal.3d 258, 267-

268 (Blair).) It is a remedial provision which must be broadly construed. (Id. at p. 268.)

To this end, our courts have endorsed taxpayer actions aimed at stopping 

unconstitutional police activity. (White v. Davis, supra, 13 Cal.3d 757 [illegal covert 

surveillance activity by police]; Blair, supra, 5 Cal.3d 258 [challenging use of claim and 

delivery laws]; Wirin v. Parker (1957) 48 Cal.2d 890 [purchase of electronic 

eavesdropping equipment]; Wirin v. Horrall (1948) 85 Cal.App.2d 497 [use of illegal 

police blockades to search autos].) Closest on point in terms of the relief sought here is 

Cornblum v. Board of Supervisors (1980) 110 Cal.App.3d 976, which allowed a 

taxpayer’s action challenging a county jail’s inhumane treatment of prisoners. Not one 

post-Schur decision interpreting section 526a has ever mentioned Schur or held that 

section 526a applies only to illegal acts that are not criminal acts.10

We next consider the language of section 526a, which permits taxpayer actions 

against “any illegal expenditures.” (Italics added.) That phrase is not defined but is 

surely broad enough to include criminal acts in addition to acts otherwise prohibited by 

law. (Safeco Ins. Co. v. Robert S. (2001) 26 Cal.4th 758, 763 (Safeco).)

At issue in Safeco was the enforceability of an insurance policy exclusion for 

liability resulting from any illegal act. The Supreme Court said that “[t]he phrase ‘illegal 

act’ is susceptible of two reasonable meanings.” Although the Court of Appeal had used 

a dictionary definition that construed the term broadly to encompass “any act prohibited 

by law . . . the term can also be interpreted more narrowly as meaning a violation of 

criminal law.” (Safeco, supra, 26 Cal.4th at p. 763.) The court also noted that several 

thesauruses treat the term “illegal” as synonymous with “criminal.” (Ibid.)

“Broadly construed, a violation of any law, whether civil or criminal, is an illegal 

act.” (Safeco, supra, 26 Cal.4th at p. 764, original italics.) Had the insurer “wanted to 

 

10 With one exception: the decision in ALDF, supra, 239 Cal.App.4th 1286, which 

we mentioned in footnote 7, ante, was the first to mention Schur in connection with 

section 526a. We asked for and received supplemental briefing from the parties on the 

applicability of that decision, which we discuss post.
21

exclude criminal acts from coverage, it could have easily done so.” (Id. at p. 763.) 

Because it chose not to do so, the Supreme Court could not read into the policy what the 

insurer had omitted. (Id. at pp. 763-764.)

Although Safeco concerned the interpretation of an insurance policy under the 

ordinary rules of contract interpretation, it is instructive here. The primary rule of 

statutory construction is to ascertain the Legislature’s intent by examining the entire 

statute. In doing so, we look first to the plain meaning of the words used, giving effect to 

the “usual and ordinary import of those words.” (People v. Salcido (2008) 

166 Cal.App.4th 1303, 1311.) The Safeco court tells us that the term “illegal act” is 

susceptible of two reasonable constructions – a narrow one limited to criminal acts, and a 

broad one that includes both criminal acts and other forms of unlawful conduct. Given 

the mandate to broadly construe section 526a (Blair, supra, 5 Cal.3d at pp. 267-268), it 

strikes us that the plain meaning of “any illegal expenditure” within that statute includes 

criminal acts.

To hold otherwise would violate another rule of statutory construction – that when 

interpreting a statute, we may not read into the provision language that does not appear. 

(Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545.) Given the plain and broad 

meaning of illegal expenditures, we would have to add the following language to prevent 

its application here: that taxpayers may bring actions to prevent a government’s illegal 

expenditures except when the illegal conduct is also a criminal act.

If, as we conclude, section 526a does permit taxpayer actions to enjoin a City’s 

illegal use of funds that also violates a penal law, then one more rule of statutory 

construction comes into play: when a specific provision and a general provision appear 

inconsistent, and the general provision standing alone would include the same matter as 

the specific provision, the specific provision will be considered an exception to the 

general provision regardless of which was enacted first. (Stone Street Capital, LLC v. 

California State Lottery Com. (2008) 165 Cal.App.4th 109, 119.) With this rule in mind, 

Civil Code section 3369 and Code of Civil Procedure 526a can be harmonized as follows 
22

– while Civil Code section 3369 prohibits injunctive relief to affirmatively enforce a 

penal law, Code of Civil Procedure section 526a provides an exception for taxpayer 

actions aimed at stopping government expenditures supporting conduct that is criminal.

Finally, the concerns about enforcing the criminal law through a civil proceeding 

that animated the decision in Lim, supra, 18 Cal.2d 872, are not present here. In Lim, the 

plaintiff tried to enjoin a private party defendant from engaging in illegal conduct. The 

Lim court held an injunction was not allowed because the defendant would otherwise be 

subject to a trial for a criminal offense without the protections of a jury trial or the higher 

standard of proof required in criminal trials. In this taxpayer’s action, by contrast, it is 

the government which will be prevented from engaging in illegal conduct, with the Penal 

Code violations serving as the yardstick by which to measure its conduct. As we have 

already observed, any individual defendants are enjoined solely in their official 

capacities. No private parties will be prosecuted, and it is highly doubtful whether the 

judgment from a civil injunction proceeding would have any collateral estoppel effect in 

any later criminal prosecution. (People v. Superior Court (Lucero), supra, 49 Cal.3d at p.

20, fn. 3.)11

1.6 We Choose to Not Follow the ALDF Decision, Nor Does ALDF

Constitute an Intervening Change in the Law for Purposes of the 

Law of the Case Doctrine

After oral argument in this matter, the First District Court of Appeal filed its 

decision in ALDF, supra, 239 Cal.App.4th 1286, holding that a taxpayer action based on 

an alleged violation of a criminal animal abuse provision was not proper. The City

contends this is an intervening change of law such that we should not apply law of the 

case principles here.

 

11 In its supplemental briefing the City contends that, under Schur, Leider lacks 

standing to bring this taxpayer’s action. Because we conclude that Schur and section 

3369 are not applicable here, the standing argument founded on those two authorities 

fails.
23

In ALDF, the plaintiffs sued the state agency in charge of organizing the annual 

state fair, alleging that crates used to exhibit pigs at the fair were so small that their use 

constituted animal abuse under Penal Code section 597t, one of the precise violations at 

issue in the present appeal.

The ALDF court affirmed a judgment of dismissal after the trial court sustained 

without leave to amend the defendant’s demurrer on the ground that violations of the 

animal abuse laws are not enforceable through a taxpayer action. The ALDF court first 

turned to its earlier decision in Animal Legal Defense Fund v. Mendes (2008) 

160 Cal.App.4th 136, where the plaintiff sued a business that raised dairy calves, alleging 

that they violated Penal Code section 597t by keeping the calves in small isolation crates. 

The Mendes court held that state laws authorizing certain corporations dedicated to 

preventing cruelty to animals to enforce those laws by filing complaints with a magistrate 

preempted civil actions by anyone else to enforce those laws.

12

Based on this comprehensive statutory enforcement scheme, the ALDF court 

concluded that, assuming the state fair agency was violating the animal abuse laws, its 

conduct would not go unchallenged even in the absence of a taxpayer’s action. As a 

result, the plaintiff lacked standing to bring its taxpayer’s action. (ALDF, supra,

239 Cal.App.4th at pp. 5-7, 9.) The ALDF court found support for its holding in Schur, 

supra, 47 Cal.2d 11. The ALDF court characterized Schur as holding that taxpayer 

actions to enjoin criminal conduct are not allowed where administrative remedies were 

available. Analogizing from that, the ALDF court concluded that the legislative 

enforcement scheme for violations of the animal abuse laws should also be viewed as the 

sole remedy for such violations. (ALDF, at p. 1301.)

The City contends we should adopt the reasoning of ALDF and reverse the 

judgment for Leider. We decline to do so. The primary purpose of section 526a is to 

“enable a large body of the citizenry to challenge governmental action which would 

 

12 The Mendes decision did not mention Schur, Code of Civil Procedure section 

526a, or Civil Code section 3369.
24

otherwise go unchallenged in the courts because of the standing requirement.” (Blair, 

supra, 5 Cal.3d at pp. 267-268.) Although Corporations Code section 10404 gives 

certain animal cruelty prevention organizations the power to file animal cruelty 

complaints and “aid in [their] prosecution,” only public prosecutors may prosecute 

criminal offenses, and they have the sole discretion to determine whether to do so. (Gov. 

Code, § 100, subd. (b); People v. Eubanks (1996) 14 Cal.4th 580, 588-589.)

Because the Los Angeles City Attorney’s Office has apparently declined to 

prosecute the Zoo for animal cruelty, the Zoo’s mistreatment of its elephants as found by 

the trial court has gone unchallenged. To hold that the power of a local humane 

organization to file a complaint bars a taxpayer action where the City refuses to prosecute 

itself undermines the very purpose of taxpayer actions. To the extent the ALDF court 

relied on Schur, we reject its holdings because, as discussed previously, Schur does not 

control.

For related reasons, we also hold that the ALDF case does not alter our law of the 

case analysis. First, the intervening authority exception to that doctrine applies to only 

Supreme Court decisions. (Carson Harbor Village, Ltd. v. City of Carson (2015) 

239 Cal.App.4th 56, 70.) Therefore the Court of Appeal’s decision in ALDF is not 

eligible for such treatment. Second, because we reject that court’s holding, we also 

conclude that there has been neither a misapplication of existing principles nor a 

substantial injustice based on that case.

Having concluded that Leider could bring his action based on alleged violations of 

the Penal Code’s animal abuse provisions, we next consider whether the trial court’s 

judgment in regard to those allegations was proper.13

2. The Order to Rototill the Soil on the Exhibit Was Proper

 

13 The trial court enjoined the City from using bull hooks and electricity as methods 

of controlling the elephants. Although the City contends the trial court erred because it 

had discontinued those practices, the City concedes the issue and we therefore do not 

reach it.
25

Penal Code section 597t provides: “Every person who keeps an animal confined 

in an enclosed area shall provide it with an adequate exercise area. If the animal is 

restricted by a leash, rope, or chain, the leash, rope, or chain shall be affixed in such a 

manner that it will prevent the animal from becoming entangled or injured and permit the 

animal’s access to adequate shelter, food, and water.”

The evidence showed that soil compaction led over time to numerous foot and 

other anatomical problems for the elephants. The evidence also showed that elephants 

are on the move for 18 hours a day in the wild, require at least one to two hours of 

supervised exercise in captivity, and received only 40 minutes of such exercise each day.

Based on this evidence, and pursuant to section 597t, the trial court ordered the 

City to regularly rototill the soil and make sure the elephants exercise one to two hours a 

day. We set forth the relevant portions of the trial court’s factual findings: “Although 

the evidence is disputed about whether the elephants at the Los Angeles Zoo have 

‘adequate exercise area,’ it is undisputed that the elephants do not get enough exercise 

time in their ‘enclosed area.’ According to witnesses called by defendants, . . . elephants 

in captivity require one to two hours of daily exercise, and the evidence is undisputed . . . 

that the elephants . . . get no more than 40 minutes of daily exercise, if that. Thus, 

although the evidence does not directly show that the elephants need more ‘exercise 

area,’ it is undisputed that they need more exercise time, which, because of the increased 

impact on the ground that more exercise would cause, requires more exercise area. Or 

rototilling, which would remedy the increased impact and resulting compactness and 

hardness of the ground of the exhibit on which the elephants need to increase the time 

they spend exercising.”

The City contends the trial court erred in fashioning its injunction based on the 

need for more exercise time, not more exercise area, because Penal Code section 597t 

mentions only space, not time. The City also contends that the order must be reversed 

because regulations promulgated under the Fish and Game Code show that the elephants’
26

exercise time and exercise area each met or exceeded the minimum lawful standards. We 

take each in turn.

Although the City contends that exercise time was the motivating factor behind the 

trial court’s order, we believe the statement of decision was somewhat unclear and 

ambiguous in regard to the relationship between the need for more exercise time and the 

size of the exhibit. The City does not contend that it raised such an objection with the 

trial court, and does not address what strikes us as an apparent ambiguity. As a result, we 

resolve this ambiguity by inferring that the trial court decided the issue in Leider’s favor. 

(Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 896.) We believe the trial court tried, but 

failed to clearly express, that in order to accommodate the elephants’ need to exercise at 

all, the soil had to be softened by regular rototilling. In other words, the risk of harm 

caused by soil compaction left the elephants with an inadequate exercise area regardless 

of its size.

We believe such a finding accords with the spirit and letter of Penal Code section 

597t. No matter how large an exercise area might be, if other conditions render it 

unusable or unsafe for movement by an animal, the area cannot be adequate. For 

instance, a dog left in a confined space with sufficient room to move about would still 

have an inadequate exercise area if the ground were littered with broken glass, leaving it 

little safe room in which to maneuver. The evidence in this case showed that the 

elephants were prone to serious foot, leg, and other anatomical injuries from the 

repetitive stress of walking on compacted soil. Based on this, we conclude the trial court 

could find that their exercise area was inadequate despite its size unless the ground was

softened.

The City also contends that the rototilling order is improper because the Zoo is in 

compliance with Department of Fish and Game regulations concerning the minimum 

standards for elephant enclosures. Fish and Game Code section 2120 calls for the 

promulgation of regulations concerning the transportation, importation, possession, 

keeping, and confinement of any and all wild animals. Section 671.3 of title 14 of the 
27

California Code of Regulations prescribes the housing requirements for numerous wild 

animals, including elephants. As relevant here, that regulation provides that “[e]lephants 

shall be provided free exercise unchained on dirt for a minimum of 5 hours per each 24-

hour period.” (14 Cal. Code Regs., § 671.3, subd. (b)(M)(2).)14

The City contends that the regulation requires nothing more than that the elephants 

be allowed to move about on dirt, and says nothing about alleviating soil compaction. 

From this, it argues that its compliance with the regulation exempts it from the reach of 

Penal Code section 597t. We disagree.

Statutory or regulatory compliance is not a defense to tort liability because statutes 

and regulations ordinarily define only a minimum standard of conduct. (Myrick v. 

Mastagni (2010) 185 Cal.App.4th 1082, 1087.) We believe that principle is applicable 

here, especially where the regulatory standards are expressly designated as the minimum 

standards. As discussed above, leaving an animal to exercise on a surface that is 

unsuitable and potentially harmful results in the failure to provide an adequate exercise 

area under section 597t.

Even if we affirm the rototilling requirement, we must still address the City’s 

contention that the exercise duration requirement must be reversed because section 597t 

says nothing about how much time confined animals must be allowed to exercise, making 

that part of the order unlawful because it strays beyond the terms of the authorizing 

statute. (Armstrong v. Picquelle (1984) 157 Cal.App.3d 122, 129-129.) The City also 

contends that the Fish and Game regulations have been satisfied because they require 

only five hours of free movement each day and the elephants are allowed to roam about 

as they choose nearly all day long.

As we read the trial court’s statement of decision, the need for more exercise time 

is inextricably linked to the poor soil conditions in the exhibit, which have left the 

 

14 The regulation also sets minimum space standards for housing elephants. (14 Cal. 

Code Regs., § 671.3, subd. (a)(10).) Because our analysis turns on the soil quality, not 

the size of the enclosure, we need not address that issue.
28

elephants with an inadequate exercise area. Ensuring that the elephants get a set amount 

of exercise time in conjunction with the regular rototilling of the soil is a way to measure 

whether the rototilling in fact allows the elephants to exercise properly at all. If the 

rototilling relieves the soil compaction problems and ultimately alleviates the physical 

ailments that the soil compaction causes, the trial court might then wish to remove or 

modify the exercise duration requirement. We believe the trial court should therefore 

retain jurisdiction to monitor the effects of the rototilling and exercise requirements it has 

imposed.

B. Leider’s Cross-Appeal

In the following portion of our decision, we address the issues raised by Leider’s 

cross appeal concerning: (1) the trial court’s decision to have the elephant exhibit 

remain open, (2) the court’s findings that the certain Penal Code provisions governing 

animal cruelty either had not been violated or were not applicable, and (3) that Leider 

was not entitled to relief under the injury prong of section 526a.

1. Substantial Evidence Supported the Findings the Conditions at the 

Elephant Exhibit Did Not Amount to Abuse or Cruelty as Defined by the 

Penal Code; Therefore the Trial Court Did Not Abuse Its Discretion by 

Declining to Shut Down the Elephant Exhibit

Leider contends that the trial court should have shut down the elephant exhibit 

based on the court’s findings that the exhibit created conditions that were detrimental to 

the physical, social, and emotional well being of the elephants. This included findings 

that the elephants were subject to physical and emotional suffering due to the soil 

compaction issues, the use of hot wires to restrict their movements away from trees and 

grass, and the absence of an outlet for the male elephant’s sexual frustration. The trial 

court was also concerned about the level of care the elephants received because their 

keepers were ill informed and had misguided opinions about elephant care and behavior.

Despite these findings, the trial court concluded that the conditions at the exhibit 

did not amount to abuse or cruelty under Penal Code sections 596.5 or 597. Instead, the 
29

trial court found that the case “raises the question of whether the recreational or perhaps 

educational needs of one intelligent mammal species outweigh the physical and 

emotional, if not survival needs of another. Existing California law does not answer that 

question.”

Leider contends the trial court erred because its own findings showed that the 

elephants were suffering. We believe substantial evidence supported the trial court’s 

decision. Penal Code section 596.5 makes it a misdemeanor to engage in abusive 

discipline of elephants through a non-exclusive list of practices that includes: depriving 

them of food, water, or rest; using electricity; physical punishment that damages, breaks, 

or scars their skin; inserting any instrument into a bodily orifice; or using block and 

tackle. Penal Code section 597 proscribes cruelty to animals in general, and provides

categories of conduct such as: maliciously and intentionally maiming, mutilating, or 

torturing an animal; overdriving, overloading, torturing, tormenting, or cruelly beating an 

animal; and depriving an animal of necessary food and water, or inflicting needless 

suffering or unnecessary cruelty. (Pen. Code, § 597, subds. (a), (b).)

These provisions mark how our society has evolved to date in regard to the 

treatment of animals. As the trial court suggested, the issues posed by this appeal mark 

the path ahead we may one day move down as our understanding and appreciation of our 

fellow creatures continue to move forward.

We agree that the exhibit places the elephants in an unnatural environment that is 

perhaps only an echo of their life in the wild. Setting aside the dangers posed by ivory 

poachers, we have no doubt the elephants would do better if they were not captive. We 

also recognize that animal sanctuaries might well provide a better form of captivity, and 

that a better zoo exhibit might be constructed. Even so, we cannot say that the current 

conditions constitute abuse or cruelty as defined in Penal Code sections 596.5 and 597. 

Instead, as the trial court observed, the deficiencies in the elephants’ living conditions are 

in large measure by-products of their captivity.
30

In short, we conclude that substantial evidence supports the trial court’s finding of 

the absence of abuse or cruelty under the law. At bottom, the scope of injunctive relief 

was a matter left to the trial court’s discretion. Leider asked the trial court to shut down 

the exhibit. Despite the trial court’s misgivings about the quality of care the elephants 

received and the shortcomings in their conditions of captivity, the trial court did not 

abuse its discretion by deciding that the deficiencies it found did not warrant the extreme 

step of shutting down the exhibit.15

2. The Trial Court Properly Denied Relief Under Penal Code Section 597.1

Penal Code section 597.1 makes it a misdemeanor for any owner or keeper of an 

animal “who permits the animal to be in any building, enclosure, lane, street, square, or 

lot of any city, county, city and county, or judicial district without proper care . . . .” 

(Pen. Code, § 597.1, subd. (a).) The statute goes on to provide guidelines for the seizure 

or destruction by humane officers of stray or abandoned animals. (Pen. Code, § 597.1, 

subds. (a)-(k).)

The trial court found that the elephants were not receiving proper care, but 

declined to award injunctive relief for two reasons: (1) the provision applied to only 

stray or abandoned animals, and did not apply to elephants kept in zoos; and (2) the 

section did not “provide a legal standard by which defendants’ conduct can be tested for 

purposes of the ‘illegal expenditure’ provision of . . . section 526a.”

Leider contends the trial court erred because nothing in the statute limits it to stray 

or abandoned animals or precludes its application to zoo elephants. According to Leider, 

the trial court’s finding that the elephants did not receive proper care – particularly in 

 

15 Leider also contends that the City violated a federal regulation requiring that 

elephants must be in enclosures that “provide sufficient space to allow each animal to 

make normal postural and social adjustments with adequate freedom of movement. 

Inadequate space may be indicated by evidence of malnutrition, poor condition, debility, 

stress, or abnormal behavior patterns.” (9 C.F.R. § 3.128.) The trial court expressly 

rejected such a finding because the exhibit allowed the elephants to make normal 

movements. We see no basis for overturning the factual finding. 
31

regard to the level and quality of veterinary care provided by the Zoo – virtually 

mandated an injunction closing the exhibit, or, alternatively, as stated in his appellate 

brief – take steps “to stop the violations which have been established.”

We disagree. The court in People v. Untiedt (1974) 42 Cal.App.3d 550 (Untiedt)

construed section 597f, which requires proper care and attention for animals that have 

been “abandoned or neglected,” and concluded that the statute applied to only such 

animals. (Id. at p. 553.) Section 597.1, subdivision (a) refers to animals that are “stray or 

abandoned,” and, by the same logic, must apply to only such animals.

The Untiedt court also held that the phrase “proper care and attention” had to be 

construed in context with its companion Penal Code provisions concerning abuse of and 

cruelty to animals. (Untiedt, supra, 42 Cal.App.3d at p. 554.) When viewed in that 

context, proper care and attention means inadequate care likely to result in the infliction 

of unjustifiable pain, suffering, or cruelty. (Ibid.) As previously discussed, though less 

than optimal, the care and treatment of the elephants does not amount to cruelty under the 

applicable Penal Code provisions. The injunction the trial court issued may very well 

ameliorate the most serious of the problems the elephants face in captivity. Because the 

trial court will maintain jurisdiction to oversee the implementation of the injunction, the 

court will have further opportunity to reconsider the treatment of the elephants in the 

future.

3. Reversal In Favor of Leider Is Not Compelled Under the Injury Prong 

Element of a Taxpayer’s Action

The trial court declined to provide further injunctive relief under the injury prong 

of section 526a under the principle that a taxpayer’s action is not proper where there is no 

legal standard against which the government’s conduct can be measured and the action 

would intrude into the domain of legislative or executive discretion. (See Harman v. City

and County of San Francisco (1972) 7 Cal.3d 150, 160-161 [trial courts “cannot 

formulate decrees that involve the exercise of indefinable discretion; their decrees can 

only restrict conduct that can be tested against legal standards. [Citation.]”].)
32

Leider contends the trial court erred because it found the elephants were being 

injured by the conditions at the zoo, and because section 526a clearly applies to such 

injuries independent of that statute’s waste and illegal expenditure prongs.

We appreciate Leider’s contention but ultimately find it unpersuasive. First, we 

affirm the trial court’s injunction imposing rototilling and exercise requirements on the 

Zoo. That leaves shutting down the exhibit as the only other unfulfilled request for relief. 

We realize that the harm suffered by the elephants is both cumulative and, because it can 

occur only in the future, to some extent, speculative. We agree with the trial court that 

there is no standard by which to measure this type of harm in order to justify closing a 

multi-million dollar public exhibit.

DISPOSITION

The judgment is affirmed and the trial court shall retain jurisdiction to monitor 

whether the City is complying with the rototilling and exercise time requirements and to 

modify those orders as appropriate if warranted by changed conditions. Plaintiff and 

cross-appellant Leider shall recover his costs on appeal.

RUBIN, J. 

I CONCUR:

FLIER, J.
2

Leider v. Lewis et al.

B244414

Bigelow, P. J., Dissenting:

I respectfully dissent. The majority’s decision in this case will empower Leider to 

bring endless contempt proceedings against the Los Angeles Zoo, all based on 

injunctions that are contrary to California law. The trial court’s findings of fact indicate 

that, whether in violation of Penal Code provisions or not, the living conditions of the 

elephants at the Zoo leave much to be desired, particularly when compared with what 

experts know about wild elephant habits, health, and social behaviors. Still, in my view 

this case ultimately turns not on any unique qualities or needs of elephants, but instead is 

necessarily determined based on the general principles that apply to taxpayer suits. 

Unlike the majority, I would conclude Civil Code section 3369 (section 3369), 

which prohibits the issuance of an injunction to enforce a penal law, and which has been 

interpreted to apply to taxpayer suits, barred the relief Leider sought based on alleged 

violations of the Penal Code. I disagree with the majority that law of the case bars our 

consideration of the section 3369 issue raised in the City’s appeal. Moreover, even if law 

of the case would otherwise prevent our consideration of the City’s arguments, I find it 

inappropriate to apply the doctrine here because doing so will result in substantial 

injustice: the approval of injunctions unauthorized by law that will almost certainly 

spawn litigation for some time to come. The City believes the injunctions are unlawful; 

Leider believes the injunctions did not go far enough to protect the elephants. It seems 

inevitable that disputes over the City’s compliance with the injunctions will ensue. While 

this might not be of concern as to valid injunctions, if, as the City contends, section 3369 

and legal precedent prohibited the injunctions issued here, it would be unjust to affirm 

them and pave the way for contempt litigation in the future.
3

I. The Demurrer to the Amended Complaint Should Have Been Sustained

An order overruling a demurrer may be reviewed on an appeal from the final 

judgment. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 912-

913.) When determining whether the demurrer was properly overruled, we must accept 

as true all facts properly pleaded in the complaint. (Quelimane Co. v. Stewart Title 

Guaranty Co. (1998) 19 Cal.4th 26, 38.) The standard of review is de novo.1 (Bushell v. 

JPMorgan Chase Bank, N.A. (2013) 220 Cal.App.4th 915, 918.) 

A. This Court Should Not Invoke Law of the Case to Prevent Consideration 

of the City’s Arguments

“ ‘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 

(Morohoshi).) The doctrine applies even if the subsequent reviewing court concludes the 

first opinion was erroneous. (Ibid.; Lindsey v. Meyer (1981) 125 Cal.App.3d 536, 541.) 

For the doctrine to apply, “ ‘[i]t is fundamental that the point relied upon as law of the 

case must have been necessarily involved in the case.’ [Citation.]” (Gyerman v. United 

States Lines Co. (1972) 7 Cal.3d 488, 498.) Law of the case does not apply to points of 

law “which might have been but were not presented and determined in the prior appeal,” 

but it is “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.)

 

1 Were I considering the City’s argument as challenging errors that warranted 

reversal of the final judgment, irrespective of the propriety of the ruling on the demurrer, 

the standard of review and the analysis would be the same. The issues presented are legal 

questions which we review de novo. 
4

It is undisputed that the applicability of section 3369 as a bar to Leider’s claims 

was neither raised by the parties in the prior appeal, nor was it expressly determined by 

this court. However, whether the issue was essential to the decision is a closer question. 

“Where the particular point was essential to the decision, and the appellate judgment 

could not have issued without its determination, a necessary conclusion is that the point 

was impliedly decided, even though the point was not raised by counsel or expressly 

mentioned.” (Eldridge v. Burns (1982) 136 Cal.App.3d 907, 921.)

In the first appeal, the plaintiffs argued the trial court erred in concluding their

claims were not justiciable. In resolving this question, we concluded the plaintiffs had 

raised triable issues of fact as to whether the City was engaging in illegal expenditures by 

virtue of acts or omissions alleged to be in violation of Penal Code section 596.5. 

We concluded Penal Code section 596.5 provided a legal standard by which the alleged 

governmental conduct could be tested, thus the illegal expenditure claims were 

justiciable. Other issues regarding the legal unavailability of injunctive relief under 

section 526a when based on a penal law were neither raised nor determined in the first 

appeal. Whether section 3369 barred injunctive relief for the alleged illegal expenditure 

claims was not an explicit or implicit ground of the decision. (Morohoshi, supra, 34 

Cal.4th at p. 492.) Our 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. 

(Greene v. Bank of America (2015) 236 Cal.App.4th 922, 932; Sefton v. Sefton (2015) 

236 Cal.App.4th 159, 172, fn. 6 (Sefton).)

It also cannot “fairly be said that determination of the issue was essential to the 

decision.” (Estate of Horman, supra, 5 Cal.3d at p. 74; Gyerman v. United States Lines 

Co., supra, 7 Cal.3d at p. 498.) Courts have concluded the determination of an issue was 

essential to an appellate decision when the first opinion could not have been written had 

the court not rejected the arguments advanced in subsequent proceedings. Thus, in 

Nevcal Enterprises, Inc. v. Cal-Neva Lodge, Inc. (1963) 217 Cal.App.2d 799, the first 

appellate court concluded a contract concerning property in Nevada was enforceable in 
5

California. Law of the case applied in a second proceeding to prevent consideration of 

the argument that the same contract was illegal under Nevada law. Although the 

argument was not explicitly rejected in the first opinion, the second court concluded the 

validity of the contract under Nevada law was an “essential condition precedent to the 

previous determination of the contract’s enforceability in California[.]” (Id. at p. 804.) 

Similarly, in Puritan Leasing Co. v. Superior Court (1977) 76 Cal.App.3d 140, 149, a 

decision that a particular lease was valid and enforceable implicitly rejected the argument 

that the lease was unenforceable for mistake or fraud. 

In Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298 (Yu), in a first appeal, 

the court reversed a summary judgment after concluding there were triable issues of fact 

as to abuse of process and unlawful business practice claims arising out of alleged distant 

forum abuse. Law of the case prevented the defendants from subsequently arguing a 

California Supreme Court case relied upon in the first appeal was wrongly decided. 

The doctrine also prevented the defendants from asserting the plaintiffs failed to state a 

claim because the defendants’ conduct was protected by the litigation privilege and the 

First Amendment. The court reasoned the issue of whether the plaintiffs had a cause of 

action for abuse of process under existing precedent remained the same and the 

defendants had merely “refined their arguments as to that issue.” (Id. at p. 311.) 

While this case shares some similarities with Yu, I, unlike the majority, also find 

applicable Estate of Horman, a proceeding to determine heirship in which the 

government contended certain interests in the decedent’s estate should escheat to the 

state. (Estate of Horman, supra, at p. 67.) In a first appeal, the court considered a 

judgment finding the survivors had not sufficiently established their relationship to the 

decedent. In subsequent trial court proceedings, the state argued for the first time that the 

survivor claimants had not appeared and made a demand within a five-year period 

prescribed by the Probate Code. Although this argument, if successful, would have 

eliminated the claimants’ petition in its entirety in the first appeal, the California Supreme 

Court concluded law of the case did not apply to bar consideration of the five-year 
6

argument in proceedings after the first appeal. (Id. at pp. 73-74.) The majority 

distinguishes Estate of Horman on the ground that the issue raised in the second appeal 

was a procedural bar, while the first appeal concerned only the merits. Yet, whether 

construed as a procedural issue or a substantive one, the “five-year period” problem was 

a threshold issue that was not raised until after the case was returned to the trial court 

following the first appeal. The Estate of Horman court concluded the first decision was 

not law of the case on the five-year argument because it was not raised by either party, 

was not expressly determined by the court, and was not essential to the first decision. 

(Id. at p. 74.)

Applying the reasoning of these cases, I would conclude law of the case does not 

prevent our consideration of the section 3369 issue in this second appeal. Our first 

opinion considered only a narrow issue regarding the justiciability of the 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 section 3369 

barred any injunctive relief for the alleged illegal expenditure claims was not a ground of 

the decision. (Morohoshi, supra, 34 Cal.4th at p. 492.) 

Moreover, departure from the rule of law of the case may be appropriate to 

prevent an “unjust decision.” (People v. Shuey (1975) 13 Cal.3d 835, 846, abrogated on 

another ground as stated in People v. Bennett (1998) 17 Cal.4th 373, 391, fn. 4.) This has 

been interpreted, narrowly, to mean when “there has been a manifest misapplication of 

existing principles resulting in substantial injustice or where the controlling rules of law 

have been altered or clarified by a decision intervening between the first and second 

appellate determinations.” (Morohoshi, supra, 34 Cal.4th at pp. 491-492.) Even if law of 

the case would otherwise apply to prevent us from considering the section 3369 

argument, I would find the “unjust decision” exception appropriate here. As discussed in 

greater detail below, in my view, section 3369 and the decision in Nathan H. Schur Inc. 

v. City of Santa Monica (1956) 47 Cal.2d 11 (Schur), represent longstanding principles 
7

that foreclose the injunctive relief Leider sought for alleged violations of the Penal Code. 

(Sefton, supra, 236 Cal.App.4th at p. 172, fn. 6.) 

The majority asserts the only injustice to result from application of law of the case 

is that the City will be required to rototill the soil in the elephant exhibit and provide the 

elephants with a certain amount of exercise. I would agree with the majority’s decision 

were this, in fact, the case. I wholly favor ensuring the elephants are properly housed and 

exercised. However, I discern another outcome that would result in substantial injustice. 

If we refuse to consider the applicability of section 3369, we will affirm ongoing 

injunctive relief when no such relief is in fact available. (See Moore v. Kaufman (2010) 

189 Cal.App.4th 604, 617 [refusing to apply law of the case where party sought to collect 

a large amount based on patently void judgment and debtor faced incarceration for 

resisting collection efforts].) This is no minor concern. If injunctive relief was not 

available as a matter of law to address the concerns raised by the plaintiff, I view it to be 

a substantial injustice that the City should be required, for an indefinite period of time, to 

face potential contempt actions for any perceived or alleged failure to comply with the 

injunctions. In my view, this would be a substantial injustice, warranting a departure 

from the rule of law of the case, even if it would otherwise apply here.

Further, in light of the procedural posture of this case, the concerns motivating the 

doctrine of law of the case—judicial economy and the desire to “ ‘avoid the further 

reversal and proceedings on remand that would result if the initial ruling were not 

adhered to in a later appellate proceeding’ ” (Nally v. Grace Community Church (1988) 

47 Cal.3d 278, 302)—are not present here. Considering the City’s arguments raised in 

this appeal has the potential to simply terminate the case, and would not lead to a remand 

for further proceedings. I therefore would consider whether section 3369 prohibited the 

issuance of an injunction as relief on Leider’s section 526a illegal expenditure claims 

based on alleged violations of the Penal Code.
8

B. Civil Code Section 3369 Barred Leider’s Section 526a Claims Seeking 

Enforcement of Penal Laws

i. Civil Code Section 3369

Civil Code section 3369 provides: “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.” The statute was enacted in 1872 

as merely “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.” (Perrin v. Mountain View Mausoleum Ass’n

(1929) 206 Cal. 669, 671 (Perrin), citing Pomeroy’s Equity Jurisprudence (2d Ed.) 

pp. 4291-4292.) Thus, in cases in which the State seeks an injunction to prevent or stop 

criminal behavior, courts have generally denied relief under section 3369, unless there is 

evidence that the behavior, in addition to violating a penal law, also constitutes a public 

nuisance. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 (Acuna)[acts of conduct 

which qualify as public nuisances are enjoinable as civil wrongs or prosecutable as 

criminal misdemeanors]; People v. Lim (1941) 18 Cal.2d 872, 880-882 (Lim) [urging 

caution on criminal injunctions and keeping nuisance exception narrow, but concluding 

complaint stated cause of action where People alleged gambling house drew crowds of 

disorderly people who disturbed the peace and obstructed traffic]; Monterey Club v. 

Superior Court (1941) 48 Cal.App.2d 131, 144-150 [rejecting injunction to abate 

gambling operation alleged to be in violation of ordinance; no evidence of a public 

nuisance]; People v. Steele (1935) 4 Cal.App.2d 206, 211 [refusing injunction to prevent 

chiropractors from engaging in certain types of treatment; rejecting argument that the 

treatment methods constituted nuisance in the absence of a statute prohibiting them]; 

People v. Seccombe (1930) 103 Cal.App. 306, 309-313 [no injunction to restrain 

defendant from pursuing the “occupation of usurer”]; Weis v. Superior Court of San 

Diego County (1916) 30 Cal.App. 730, 731-732 [injunction was permissible to abate 

public nuisance of exhibition of naked women].)
9

Similarly, private citizens may not secure an injunction to enforce a penal law, 

unless an exception under section 3369 applies. (Major v. Silna (2005) 134 Cal.App.4th 

1485, 1498-1499 [in anti-SLAPP motion party failed to demonstrate probability of 

prevailing where complaint attempted to enjoin another individual’s alleged violation of a 

municipal campaign finance ordinance]; Perrin, supra, 206 Cal. at pp. 670, 674 

[injunction denied to plaintiff seeking to enjoin defendants from constructing or operating 

mausoleum; despite being convicted of violating ordinances, defendants continued 

operations; complaint did not state facts constituting nuisance per se or that plaintiff 

suffered some exceptional damage]; Smith v. Collison (1931) 119 Cal.App. 180, 183-184 

[injunction allowed to restrain defendants from opening a store in violation of a zoning 

ordinance on ground the erection of the store would create a nuisance and plaintiffs 

would suffer exceptional damage]; Stegner v. Bahr & Ledoyen, Inc. (1954) 

126 Cal.App.2d 220, 231 (Stegner) [no injunction where plaintiffs failed to prove the 

operation of rock quarry constituted a nuisance or would cause them legal injury; 

plaintiffs were seeking solely to enforce a penal law].)

A limited number of early cases took a broad view of the availability of an 

injunction when allegedly criminal conduct was involved. These cases either expansively 

interpreted the definition of nuisance, or suggested acts could be enjoined if, in addition 

to being crimes, they also adversely affected the plaintiff’s property rights. (See e.g., 

In Herald v. Glendale Lodge No. 1289 (1920) 46 Cal.App. 325, 327, 333 [plaintiff 

allowed injunction to restrain lodge from serving alcohol to members in violation of city 

ordinance on theory that fine or attorney fees might cause club members, including 

plaintiff, pecuniary loss]; In re Wood (1924) 194 Cal. 49, 52-57(Wood) [state allowed 

injunction ordering Industrial Workers of the World to cease attempts to prevent 

conspiracy to damage property and enjoining acts of criminal syndicalism].)
10

But in Lim, supra, the California Supreme Court took a more constrained approach 

and established the standard and reasoning adopted in most subsequent cases regarding 

the limited availability of injunctions to prevent crimes. (Acuna, supra, 14 Cal.4th at 

pp. 1106-1107 [describing Lim as articulating an important limitation on the scope of the 

government’s power to exploit the public nuisance injunction].) In Lim, the state sought 

an injunction to restrain the defendants from operating a gambling establishment. 

On appeal, the People argued gaming houses were inherent public nuisances and they 

could therefore be enjoined, despite the section 3369 prohibition. In analyzing this claim, 

the California Supreme Court acknowledged courts had issued injunctions against 

criminal conduct if that conduct constituted a nuisance. (Lim, supra, 18 Cal.2d at 

pp. 877-878.) But the court rejected any broadening of the exception by judicial 

expansion of the public nuisance doctrine beyond the statutory definition set forth in 

former Civil Code section 3479.2 (Id. at p. 878.) 

The court offered a narrow interpretation of its earlier holding in Wood: “The case 

of [Wood], which has been severely criticized . . . held only that the injunction granted 

was not void even though conceivably erroneous. This was so because the conspiracy 

there involved could be considered a public nuisance as a threatened impairment of the 

free use of property of the citizens of the state.” (Lim, at pp. 878-879.) The court 

explained “compelling reasons of policy require that the responsibility for establishing 

those standards of public morality, the violations of which are to constitute public 

nuisances within equity’s jurisdiction, should be left with the legislature.” (Id. at pp. 879-

880.) The court further reasoned:

 

2 Former Civil Code section 3479 stated: “Anything which is injurious to health, or 

is indecent or offensive to the senses, or an obstruction to the free use of property, so as 

to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs 

the free passage or use, in the customary manner, of any navigable lake, or river, bay, 

stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” 

(Amended by Code Am. 1873-74, ch. 612, § 284.)
11

“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 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, for the reasons set forth, 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.” (Id. at pp. 880-881.)

Lim firmly established the general rule that in the absence of other specific 

statutory authorization, a court may not grant the state an injunction to enforce a penal 

law, unless the conduct to be enjoined is a nuisance. Subsequent courts applied the same 

rule in denying injunctions to private citizens when the purpose of the injunction was 

simply to enforce a penal law, and the enjoined conduct was not also a nuisance, or unfair 

competition after section 3369 was amended to include that exception. (See Acuna, 

supra, 14 Cal.4th at pp. 1106-1107; Stegner, supra, 126 Cal.App.2d at pp. 231-232; 

International Etc. Workers v. Landowitz (1942) 20 Cal.2d 418, 422-423 (Landowitz); 

People v. Brophy (1942) 49 Cal.App.2d 15, 31-32.) 

ii. Schur

The question in this case is whether the section 526a claims based on the Zoo’s 

alleged violations of Penal Code sections 596.5, 597, 597t, and 597.1, run afoul of section 

3369’s prohibition against injunctions to enforce a penal law. In Schur, the California 

Supreme Court concluded section 3369 barred a court from issuing an injunction under 

section 526a to prevent expenditures alleged to be in violation of the Penal Code.

Schur concerned antigambling laws in the Penal Code and a Santa Monica 

ordinance governing the issuance of licenses for gambling establishments. As relevant 

here, the case involved a suit by the Nathan Schur corporation (Schur) against the city of 
12

Santa Monica and its police chief. Schur alleged the city’s ordinance allowing issuance 

of licenses for certain games was illegal under Penal Code section 337. (Schur, supra, 47 

Cal.2d. at pp. 12-13.) Under Penal Code section 337: “Every 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 said 

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.”

Schur also alleged the city and police chief had issued illegal licenses to several 

plaintiffs, (“Troeger licensees”), for games which violated the Penal Code. Schur’s 

complaint alleged “that because of the invalidity of the city laws and the licensing 

thereunder the city is illegally spending money in such licensing and in policing the 

games.” (Schur, supra, 47 Cal.2d at p. 13.) Before trial, the Troeger licensees attempted 

to renew their gaming licenses. The city council held a noticed public hearing on the 

renewal applications. Schur’s principal testified before the city council in opposition to 

the renewal application. Following the hearing, the city council concluded the Troeger 

licensees’ games did not violate the Penal Code antigambling laws and they were entitled 

to licenses. (Id. at pp. 13-14.) Despite the city council determination, the police chief 

continued to refuse to issue the licenses. (Ibid.) The Troeger licensees filed a 

supplemental complaint challenging the city police chief’s refusal to renew their gaming 

licenses. After a trial on the Schur and Troeger licensees complaints, the trial court found 

the city was illegally licensing the challenged games. The court enjoined the city from 

expending public funds to license games operated in violation of the Penal Code. 

The Troeger licensees appealed. (Id. at p. 14.) 
13

The California Supreme Court framed the issue presented in Schur’s complaint as 

follows: “Basically the action was to enjoin the city officials from possibly committing a 

crime by issuing licenses for gambling games contrary to state law, although it was also 

asked that they be restrained from expending the city funds involved in issuing these 

particular licenses, and that is as far as the judgment went in regard to preventative relief, 

it did declare the games were contrary to the state laws.” (Schur, at p. 17.) The court 

then held the judgment could not stand, for two reasons. First, the court held city 

officials had the authority to determine whether the challenged games were legal, and the 

only appropriate avenue to challenge that decision was a review without independent 

evidence. (Ibid.) Second, the court stated “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.” (Ibid.)

The court acknowledged that “a taxpayer may obtain preventive relief against the 

illegal expenditure of funds by a municipal corporation. (Code Civ. Proc., § 526a; 

Simpson v. City of Los Angeles, 40 Cal.2d 271.)” (Schur, at p. 17.) Yet, the court again 

employed two lines of reasoning to explain why section 526a did not permit the relief 

issued by the trial court. The court first stated that despite section 526a, when a 

municipal corporation has, pursuant to valid authority, made a quasi-judicial decision 

regarding the issuance of a license, the only available relief is a review of that decision by 

a writ of mandamus or certiorari. A municipal corporation is not “required to justify its 

actions in a trial de novo in the court whether the one attacking its determination is a 

taxpayer or one of the applicants for a license.” (Id. at p. 17.) The court noted there had 

been a public hearing on whether the Troeger licenses violated the Penal Code; notice 

was provided to all concerned, including taxpayers; and Schur participated in the 

hearing.3

 

3 Leider’s amended complaint did not involve alleged governmental actions whose 

very legality was the subject of a public hearing or quasi-judicial decision. There were 
14

Second, and most relevant here, the court again described the Schur action as 

“basically one to enjoin the alleged commission of a crime.” (Schur, at p. 18.) The court 

adopted and quoted the Lim court’s analysis regarding California courts’ refusal to grant 

injunctions on behalf of the state by a judicial extension of the term public nuisance; the 

collateral effects of granting an injunction against criminal conduct; and the direction that 

courts should not broaden the field in which injunctions against criminal activity will be 

granted. (Id. at pp. 18-19.) Therefore, the judgment enjoining the issuance of the 

licenses could not stand. (Id. at pp. 17-18.)

iii. Application to this case

According to the majority, Schur stands only for the proposition that when 

administrative review of a quasi-judicial governmental action is available, a taxpayer may 

not use section 526a to challenge that action in court. The majority also reads Schur as 

inapplicable to this case because the court viewed the action before it as one to enjoin a 

crime, instead of as a taxpayer action to stop the illegal use of funds. 

I disagree with this narrow reading of Schur and would find it governs the result in 

this case. Like the case before us, Schur concerned a taxpayer allegation of illegal 

expenditure of government funds. Schur claimed the city and police chief were illegally 

expending government funds by issuing gambling licenses for games that violated the 

Penal Code; the issuance of such licenses was itself alleged to be an illegal act under 

Penal Code section 337. In this case, Leider alleged the City was illegally expending 

government funds by abusing elephants in violation of the Penal Code. Our high court in 

Schur acknowledged section 526a allows taxpayers to challenge a city’s illegal 

expenditure of funds, but it did not accept that such authority extended to enjoining a 

crime. Despite section 526a, the court described the action was “basically one to enjoin 

the alleged commission of a crime.” Leider’s amended complaint, with respect to 

 

public hearings relating to the City’s decision to expand and redesign the elephant 

exhibit. But the record does not indicate that any entity involved in the hearings had the 

authority to determine whether the Zoo had violated or would violate the Penal Code in 

the operation of the elephant exhibit.
15

allegations based on the Penal Code, is also “basically one to enjoin the alleged 

commission of a crime” or crimes. Schur further applied the language of Lim to a case 

like this one in which a citizen, rather than the state, sought the challenged injunctive and 

declaratory relief, against a governmental entity. Under Schur, section 526a does not 

create an exception to section 3369.

I note that at least three other courts have recognized legal principles or statutes 

may prevent relief under section 526a where it might otherwise seem to be available. 

In Daar v. Alvord (1980) 101 Cal.App.3d 480 (Daar), the court held a taxpayer could not 

prosecute a section 526a action seeking injunctive relief to prevent county and city 

officials from spending allegedly illegally imposed and collected taxes. Provisions of the 

California Constitution and Revenue and Taxation Code prohibit courts from preventing 

or enjoining the collection of any tax. (Id. at p. 484.) The court considered whether there 

was a conflict between section 526a and the relevant constitutional and Tax and Revenue 

Code provisions. It concluded: “We have no difficulty in harmonizing these 

constitutional and statutory provisions. We deem that the illegal governmental activity 

which is subject to taxpayer challenge in [section 526a] does not include activity 

characterized as illegal solely by reason of purportedly illegal tax collection. It can be 

argued-but not reasonably so we think-that any expenditure of illegally collected taxes is 

per se an illegal governmental activity. We reject any such broad characterization as 

contrary to accepted principles of reasonable construction of constitutional and statutory 

provisions.” (Id. at pp. 485-486.) 

Similarly, in Chiatello v. City and County of San Francisco (2010) 189 

Cal.App.4th 472 (Chiatello), the court found the plaintiff lacked standing to prosecute an 

action under section 526a seeking to enjoin the collection of a challenged municipal 

payroll tax. The reasoning in Daar was not controlling because the case concerned a 

municipal, rather than state, tax. However, the Chiatello court explained the principle 

that courts should not enjoin the collection of a tax had received judicial recognition for 

nearly a century before it appeared in the California Constitution in 1910. (Chiatello, at 
16

p. 495.) The court further noted there were no reported decisions in which tax collection 

was enjoined, confirming, at least circumstantially, that the power to issue such an 

injunction does not generally exist. (Id. at p. 496.) Thus, although the court recognized 

there was “considerable force” in the argument that a “ ‘claim for a refund could never 

redress the harm that [the plaintiff’s complaint] and Section 526a seek to prevent—the 

wasteful expenditure of public monies in implementing an invalid ordinance,’ ” that 

argument had to yield to the fact that the remedy sought—enjoining tax collection—“is a 

remedy California’s common law had virtually forbidden prior to enactment of section 

526a.” (Id. at pp. 497-498.) The court rejected the plaintiff’s contention that section 

526a lacked an exception for tax-related cases, reasoning “the statute would have to be 

construed to include such an exception because the Legislature would be presumed to 

have been aware of the common law aversion to enjoining tax collection.” (Id. at p. 498.) 

The court could not grant injunctive relief to prevent tax collection, section 526a 

notwithstanding. (Ibid.)

Most recently, in Animal Legal Defense Fund v. California Exposition and State 

Fairs (2015) 239 Cal.App.4th 1286 (California Exposition), the appellate court 

concluded a taxpayer could not bring a section 526a claim based on a violation of Penal 

Code section 597 or 597t, two animal cruelty provisions, both of which were also raised 

in Leider’s amended complaint. In California Exposition, the court discussed a prior 

case, Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136 (Mendes), in 

which the court held there is no implied private right of action for a Penal Code section 

597t violation. The court held the plaintiffs could not “circumvent the prohibition 

recognized in Mendes by couching their claim as a section 526a taxpayer action.” 

(California Exposition, supra, at p. 1295.) California Exposition addresses arguments 

that were not made in this case. Yet, like Daar and Chiatello, the court found a limit on 

the reach of a section 526a action. The court explained: “ALDF seeks to enjoin 

defendants from illegally using public resources, as opposed to seeking to enforce the 

animal cruelty law. But section 526a does not create an absolute right of action in 
17

taxpayers to assert any claim for governmental waste. To the contrary, courts have 

recognized numerous situations in which a section 526a claim will not lie. [Citations.] 

To this list, we add a claim for alleged governmental waste based on an alleged violation 

of Penal Code section 597 or 597t.” (Id. at p. 1298.)

Although Schur did not address the question of a potential conflict between 

section 526a and section 3369 as explicitly as the courts did in Daar and Chiatello

regarding tax principles, or as the court did in California Exposition regarding section 

526a and the holding in Mendes, I understand Schur as reaching a similar conclusion—

specifically that section 526a does not override the longstanding principle that injunctions 

may not issue to enforce a penal law. I find no meaningful basis to distinguish Schur

from this case, or to avoid the conclusion that section 3369 barred the injunctive and 

declaratory relief Leider sought on the basis of alleged violations of the Penal Code. 

Indeed, on appeal, Leider has offered only two arguments to contend Schur does not 

apply in this case. Neither is persuasive, as discussed below.

iv. The 1977 Amendment of Civil Code section 3369 Does Not Change 

the Analysis

Leider’s primary response to the City’s argument is that Schur is no longer good 

law because it was based on a prior version of section 3369. When Schur was decided in 

1956, former Civil Code section 3369, subdivision (1) 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.” (Stats. 1933, 

ch. 953, § 1, p. 2482, unchanged until 1963.) Subdivisions (2) through (5) concerned the 

injunctive relief available in actions for unfair competition. The statute’s provisions 

regarding unfair competition were amended four more times. In 1977, the Legislature 

amended section 3369, removing the unfair competition provisions and leaving only the 

first subdivision which read and still reads: “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.” (Civ. Code, § 3369.) The 
18

provisions regarding unfair competition were moved to the Business and Professions 

Code. (Legis. Counsel’s Dig., Assem. Bill No. 1280 (1977-1978 Reg. Sess.).) Newly 

enacted Business and Professions Code section 17202 read: “Notwithstanding Section 

3369 of the Civil Code, specific or preventive relief may be granted to enforce a penalty, 

forfeiture, or penal law in a case of unfair competition.” 

Leider reasons the pre-1977 version of section 3369 created impermissible 

conflicts with statutes such as section 526a, requiring courts to “ultimately emasculate 

one statute to honor another.” Essentially, Leider asserts the 1977 amendment was a 

legislative response to Schur, or, even if not a direct response, the amendment changed 

the law underlying the Schur decision. I disagree with this reasoning as inconsistent with 

the language of section 3369, the legislative history, and the relevant caselaw. 

In interpreting a statute, our “goal is to divine and give effect to the Legislature’s 

intent.”4 (Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1324 

(Brodie).) “We consider first the words of a statute, as the most reliable indicator of 

legislative intent. [Citation.] ‘ “ ‘Words must be construed in context, and statutes must 

be harmonized, both internally and with each other, to the extent possible.’ [Citation.] 

Interpretations that lead to absurd results or render words surplusage are to be avoided. 

[Citation.]” [Citation.]’ [Citation.]” (Tuolumne Jobs & Small Business Alliance v. 

Superior Court (2014) 59 Cal.4th 1029, 1037.) We presume as we must that the 

Legislature is aware of existing law, including caselaw interpreting a statute, and 

decisions relating directly to the legislation enacted. (Borikas v. Alameda Unified School 

Dist. (2013) 214 Cal.App.4th 135, 150; People v. Childs (2013) 220 Cal.App.4th 1079, 

1104.) 

 

4 The interpretation of a statute is a question of law we review de novo. (Lazarin v. 

Superior Court (2010) 188 Cal.App.4th 1560, 1569.)
19

Further, as the reviewing court, “ ‘[w]e do not presume that the Legislature 

intends, when it enacts a statute, to overthrow long-established principles of law unless 

such intention is clearly expressed or necessarily implied.’ [Citations.]” (Brodie, supra, 

40 Cal.4th at p. 1325; Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 

39 Cal.4th 507, 526.) Nothing in the language of section 3369 as amended in 1977 

indicates a legislative intent to overrule the principle established by Schur. Indeed, 

when the former and amended versions of the statute are compared, nothing in the 

language explicitly or implicitly indicates any change of substantive law. 

In fact, the language of some opinions before 1977 suggests courts already 

construed section 3369 as not prohibiting injunctive relief “as otherwise provided by 

law.” In Landowitz, supra, 20 Cal.2d 418, our high court rejected a claim seeking to 

enjoin a violation of a city ordinance. The claim was based on an unfair competition 

ordinance that provided for the regulation of competitive practices among cleaners and 

dyers, and was “penal in nature.” (Id. at pp. 420-421.) An enabling statute specifically 

authorized a person to seek injunctive relief for violations of the ordinance. However, 

the enabling statute allowing for injunctive relief was repealed. Because the statutory 

authorization for injunctive relief had been removed, and because the ordinance was 

penal, the court concluded the plaintiffs’ action “to restrain . . . violation [of the 

ordinance] requires specific authorization, in the absence of which it must be held that the 

complaint fails to state a cause of action.” (Id. at p. 421.) The unfair competition 

exception in section 3369 did not cover the conduct alleged in the complaint. Thus, 

“[t]he statutory authority for such an action in equity, which was formerly provided 

by . . . the statutes referred to, has now been withdrawn . . . therefore, no cause of action 

is stated . . . No other authorization for this action has been called to our attention.” 

(Ibid.) 
20

This reasoning suggests courts already understood section 3369 to allow injunctive 

relief to enforce a penal law when another statute specifically authorized such relief. 

In Landowitz, the problem was that the specific statutory authorization had been 

withdrawn. A similar idea was alluded to in People ex rel. Chiropractic League v. Steele 

(1935) 4 Cal.App.2d 206 (Steele), in which the court refused to allow injunctive relief to 

prevent acts which violated a penal statute but were not also a public nuisance. In 

response to the People’s petition for rehearing, which in part asserted the consequence of 

the decision would be “disastrous,” the court noted: “It is sufficient to point out that if 

the legislature had deemed the remedy by injunction necessary to the enforcement of the 

acts governing the practice of healing arts it would have been an easy matter to provide 

therefor by statute.” (Id. at p. 213.) The apparent recognition of courts, prior to 1977, 

that the Legislature could create exceptions to section 3369 in other statutes counters 

Leider’s argument that the amended version of section 3369 changed the substantive 

law.5

Landowitz and Steele were decided well before Schur. In my view, the most 

reasonable interpretation of Schur is not, as Leider argues, that the court had an 

impassable conflict and was forced to “emasculate” one statute over the other. Instead, 

the Schur court concluded section 526a did not provide a statutory exception to section 

3369. As a result, in 1977, over 20 years after Schur was decided, there was no conflict 

between section 526a and section 3369. Under Schur, section 526a did not provide an 

exception to section 3369. Accordingly, the 1977 amendment to section 3369 replacing

“unfair competition” with “as otherwise provided by law” would not include section 

526a. 

 

5 We need not accept the City’s argument that “as otherwise provided by law” refers 

only to unfair competition as set forth in Business and Professions Code section 17200, et 

seq. Other statutes specifically providing for injunctive relief to enforce a penal law may 

fall within the gambit of the “otherwise provided by law” exception of section 3369. 

(See e.g., Pen. Code, § 136.2 [court may restrain conduct intimidating or dissuading a 

witness or victim].) The point here is that in light of Schur, section 526a is not, and, as 

interpreted in Schur, never was, one of those provisions.
21

To the extent the language of section 3369 does not indisputably repudiate any 

intent to allow injunctive relief under section 526a for claims based on penal laws, we 

also consider the legislative history. (Brodie, supra, 40 Cal.4th at p. 1328.) If, as Leider 

argues, the Legislature intended to overrule cases, including Schur, in which courts had 

concluded injunctive relief under a particular statute was not available due to section 

3369, one would expect this intent to be referenced in the legislative history. It is not. 

Instead, the bill effecting the amendment was repeatedly described as a “technical 

adjustment.” 

For example, in an Assembly Committee on Judiciary Bill Digest, A.B. 1280, the 

bill was described as follows: “The Civil Code contains a chapter . . . which contains 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.) Similarly, a Senate 

Committee on Judiciary report on A.B. 1280 commented: “This bill merely makes a 

technical code adjustment in the location of various statutes relating to unfair 

competition.” (Sen. Com. On Judiciary, com. On Assem. Bill No. 1280 (1977-1978 Reg. 

Sess.) as amended June 3, 1977.) 

The legislative history confirms only a single legislative intent behind the 1977 

amendment—a “code adjustment.” The history is devoid of any intent to change any 

substantive law, either relating to the general rule under section 3369, or the unfair 

competition laws. In light of the caselaw, the language of the statute, and the legislative 

history, there is no basis to conclude that by amending section 3369 to replace “unfair 
22

competition” with “as otherwise provided by law,” the Legislature intended to effect a 

change in the law, or address a problem of conflicting statutes. 

The two cases Leider cites to support his argument do not mandate a contrary 

conclusion. People v. E.W.A.P., Inc. (1980) 106 Cal.App.3d 315, concerned the scope of 

unlawful business practices that could be considered unfair competition under Business 

and Professions Code section 17200. The People sought to enjoin the distribution of 

obscene matter as defined in the Penal Code. The court noted that while traditionally 

courts of equity declined to issue injunctions to enforce penal laws, “the fact that certain 

conduct is a crime will not prevent the issuance of an injunction if the conduct also falls 

within a specific statute authorizing an injunction.” (Id. at p. 320.) Business and 

Professions Code section 17202 provided such specific authorization. (Ibid.)

Similarly, in People v. K. Sakai Co. (1976) 56 Cal.App.3d 531, the People sought 

an injunction under former section 3369 to enjoin violations of Penal Code sections 

prohibiting the sale of whale meat. Although the alleged conduct violated a penal law, 

the action was one seeking to enjoin unfair competition. (See id. at p. 533; People v. 

McKale (1979) 25 Cal.3d 626, 633.) Thus, neither E.W.A.P. nor Sakai supports Leider’s 

argument. Both cases concerned unfair competition at times when first section 3369, 

then Business and Professions Code section 17202, specifically authorized the issuance 

of an injunction even if it would also enforce a penal law. Neither case affects the 

conclusion that under Schur, section 526a had been construed by our high court as not 

providing a similar specific statutory authorization that would take such claims outside of 

the general section 3369 prohibition against injunctions to enforce penal laws.

The language of the statute and the legislative history provide ample explanation 

for the 1977 amendment that is entirely unconnected to Schur. We have no basis to 

impute to the Legislature an intent to overrule Schur. (Brodie, supra, 40 Cal.4th at 

p. 1328.) 
23

v. Schur Did Not Eviscerate Governmental Liability for “Illegal

Expenditures” Under Section 526a

Leider’s only other argument is that the Schur court’s reasoning, or failing to read 

section 3369 as authorizing injunctions under 526a to enforce penal laws, would 

eliminate any claim under section 526a for illegal expenditures. I disagree. Schur and 

section 3369 only concern actions seeking to enforce penal laws. Many section 526a 

claims seeking relief for illegal expenditures concern alleged illegalities that are not penal 

but are still unlawful. Thus, in the seminal case of Blair v. Pitchess (1971) 5 Cal.3d 258, 

our high court affirmed a judgment issuing injunctive relief to prevent the enforcement of 

what the court concluded was an unconstitutional claim and delivery law. Within the 

context of illegal expenditures under section 526a, the court held an injunction under 

section 526a would properly issue to restrain the enforcement of a statute or other law 

that is unconstitutional. (Id. at pp. 268-269.) Even earlier, in Wirin v. Parker (1957) 

48 Cal.2d 890, our high court concluded the plaintiff was entitled to seek injunctive relief 

to prevent the expenditure of public funds to conduct police surveillance by means of 

concealed microphones, on the theory that such surveillance violated the United States 

and California Constitutions, and the expenditures were therefore illegal. (Id. at pp. 893-

894; see also Ames v. City of Hermosa Beach (1971) 16 Cal.App.3d 146, 150-151 

[rejecting argument that section 526a may not be used to enjoin the expenditure of public 

funds to enforce an unconstitutional penal statute].)

In other cases, plaintiffs have stated claims under section 526a for expenditures 

that were allegedly illegal because they violated a city charter or other statutory or 

municipal codes governing particular types of expenditures (Harman v. City and County 

of San Francisco (1972) 7 Cal.3d 150 [alleged violation of city charter provisions 

requiring city to obtain 90 percent market value for properties sold]; Terry v. Bender

(1956) 143 Cal.App.2d 198, 204 [charter provision prohibiting city officials from having 

an interest in certain contracts involving the city; payment of a bribe to mayor with 

respect to city contract violated charter and was illegal payment under section 526a]; 
24

Crowe v. Boyle (1920) 184 Cal. 117 [if contract was illegal and void becdause it 

conflicted with violation of charter provisions, taxpayers had right to prevent such illegal 

expenditures]; Osburn v. Stone (1915) 170 Cal. 480 [expenditures allegedly made 

without following requirements such as resolution of intention and competitive bids].) 

The illegal expenditures prong of section 526a has never been interpreted as 

applying only to claims based on alleged violations of penal laws. We need not read 

Schur as invalidating a portion of section 526a.6 Further we are bound to follow 

California Supreme Court precedent in the absence of any indication that it is no longer 

good law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

C. Conclusion

I, like the majority, remain concerned about the conditions of the elephants at the 

Los Angeles Zoo, given the record developed at trial regarding the history of 

mistreatment and the less than ideal conditions at present. But addressing these concerns 

must be done within the confines of California law. No matter the nature of the 

underlying evil sought to be remedied, Schur and section 3369 indicate section 526a suits 

may not be used to enjoin violations of penal laws. As either pled or proven, I see no 

other basis for the relief Leider has sought. I therefore would reverse the trial court 

judgment issuing injunctions premised on a violations of the Penal Code.

I therefore, respectfully, dissent.

BIGELOW, P.J.

 

6 Amicus curiae Animal Legal Defense Fund contends that if this court interprets 

section 3369 as prohibiting injunctive relief under section 526a to enforce a criminal law, 

such an interpretation will take away a “crucial tool” currently used to “ensure the robust 

enforcement of California’s animal abuse statutes, in cases where the government fails to 

satisfy its legal obligations towards animals.” Although I am sympathetic to this 

argument, we may not interpret statutes of broad and general application with only one 

particular policy purpose in mind. Regardless of the required liberal construction of 

section 526a, Schur dictates that the statute’s broad reach does not extend to enjoining 

alleged violations of penal laws in contravention of section 3369.