Lucky Pup Dog Rescue is a nonprofit organization that saves homeless dogs from death row and tries to get them new homes. When a dog named Derek was impounded and scheduled for euthanasia, Lucky Pup tried to save him. But Los Angeles County had not pre-approved Lucky Pup as an adoption center, as the law requires, so the rescue request was denied. Derek and several others like him, bark no more.

The laws governing the ministerial duties of California counties that outline the treatment of stray dogs are quite complex. The Hayden Act, sponsored by then State Senator Tom Hayden in 1998, was supposed to save, not end, the lives of animals by amending and clarifying three different State Codes—the California Civil Code, the Food and Agricultural Code, and the Penal Code. Under the new law, adoption policies were created, and damages were made available to those who lost their pets because of animal abuse.

The Hayden Act came about because attitudes toward homeless animals in the state were changing. “Low-kill” and “no-kill” shelters were becoming viable alternatives to the prevalent pounds that were designed to dispose of unwanted animals. In addition, it was costly to kill all the strays. Prior to these laws, animals throughout the state were being put to sleep because their county’s shelters were overcrowded or because their administrators believed a resident pet had undesirable medical conditions or unacceptable behavior.

The California Civil Code was amended by the Hayden Act. Section 1834 states, “A depository of living animals shall provide the animals with necessary and prompt veterinary care, nutrition, and shelter, and treat them kindly. Any depositor that fails to perform these duties may be liable for civil damages as provided by law.” The Hayden Act sought to expand and clarify civil damages, but opposition from the governor and local governments removed the expanded damages part of the new bill.

Section 31108 of the State’s Food and Agricultural Code also clarifies the treatment of strays. It says that “public or private shelter(s) may enter into cooperative agreements with any animal rescue or adoption organization,” which can assess fees for procedures such as neutering. In addition, California Penal Code Section 599 (d) says that it is the State’s policy that “no adoptable animal should be euthanized if it can be adopted into a suitable home.” That law does not clearly define “adoptable animal.”

Lucky Pup and the Santa Paula Animal Rescue Center, Inc. (SPARC), went to court to try to save Derek and others, including Gunnar and Winston, who were at the Agoura Animal Care Center. Plaintiffs provided evidence that the Agoura facility killed 64 percent of its impounded animals between July 1, 2020, and June 30, 2021. They argued that the County of Los Angeles had a ministerial duty to release dogs to them because they were a nonprofit 501 (c) (3) under the Internal Revenue Code and because no additional qualifications were necessary.

They argued that under the Food and Agriculture Code only dogs “irremediably suffering from a serious illness or severe injury” or who have a “behavioral or temperamental defect that could pose a health or safety risk” or “newborn animals that need, but do not have maternal care” are exempt from Hayden Act requirements. They also provided expert estimates that less than one percent of the dogs in county facilities actually suffer from serious injuries or behavioral problems, yet 30 percent were killed between July 1, 2020, and June 30, 2021.

The County disagreed, claiming it has the right to qualify organizations for adoption privileges.

The plaintiffs sued and the County demurred. Los Angeles Superior Court Judge James C. Chalfant granted the County’s demurrer, but a unanimous three-justice panel from Division Five of the Second District of California’s Court of Appeal reversed and remanded the matter to Superior Court for further proceedings that were consistent with their opinion of September 18. Associate Justice Carl H. Moor authored the opinion.

Moor summarized the issues before the court: Does the County have discretion to refuse to release, then to euthanize dogs deemed to have behavioral problems when the release was requested by an organization; and does the County have discretion to “determine and impose requirements” for organizations that claim to facilitate adoption or rescues beyond just their 501 (c) (3) status?

The opinion answered these questions, writing that the Hayden Act gives the County discretion to “determine which organizations qualify” for the right to adopt or rescue animals. However, it continues, once qualified, the County has no discretion to refuse to release, and then euthanize a dog if a qualified organization has requested it. In reaching this decision, Moor also reviewed the Legislative history of the Hayden Act, which he said, “led us to the same conclusion.” Therefore, the County may not “withhold a dog” that it deems has behavioral problems.

However, in a footnote, Moor spotted an additional problem. He said that “because the Hayden Act is silent on what qualifies a non-profit organization as an animal rescue or adoption organization, the County must exercise its judgment to make that determination.”

Finally, Moor writes that the County must approve every rescue organization that qualifies for Internal Revenue nonprofit status. Those wishing to give a homeless animal a loving new place to live may want to check out these nonprofits so they can help prevent any more euthanized Dereks, Winstons or Gunnars.