1 CCR section 671.1, subdivision (c)(7)(A), provides in pertinent part: “Any applicant or permittee who is denied a permit, an amendment to an existing permit or has a permit suspended or revoked by the department pursuant to these regulations may appeal that denial, suspension, or revocation by filing a written request for an appeal with the commission.”
2 The current version of the Fish and Game Code designates this section as 2150, subdivision (c).
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671.1, subdivisions (b), (b)(3), and (b)(10); and CCR section 671.8 all provided that the
Department had the authority to waive the inspection fee. 3
Young asked that the OAH take judicial notice of the Fish and Game Code
sections and CCR sections cited in her brief. This included Fish and Game Code section
2150, subdivision (c), which provided that American Zoo and Aquarium Association
(AZA) accredited facilities were “exempt from any permit requirement pursuant to this
chapter.” It further provided, “Any California organization which is not accredited by the
AZA may apply to the department for a waiver of specified permit requirements of this
chapter. The department may grant or deny the request for a waiver for justified
reasons.” Further, Young relied upon CCR section 671.1. Subdivision (a) of this section
provides, “It is unlawful for any person to import, export, transport, maintain, sell,
dispose of, or use for any purpose any animal restricted by Section 671 except as
authorized in a permit issued by the department.” Subdivision (b)(10) of CCR section
671.1 provides, “The permit fee may be waived upon recommendation of the regional
manager when he/she determines it is in the best interest of the public, the animal, or the
department to do so.”
In addition, she sought judicial notice of a minute order in another case (Exotic
Feline Breeding Compound, Inc. v. Department of Fish and Wildlife (June 22, 2016,
F070449) [nonpub. opn.] (Exotic Feline)), which did not involve these parties, and a
3 Young presented evidence regarding the adoption of amendments of CCR sections 671.1, 671.8 and 703 and her objections. This appeal does not address the issue that the regulations were improperly added and amended.
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compact disk of Commission meetings wherein amendments were made to the CCR
sections applicable here.
The Department filed a response. The Department referred to CCR section 671.1,
subdivision (b)(10), which addressed waiver of permit fees and that Young was notified
waivers needed to be requested on a case-by-case basis. The Department contended that
there was no authority in the Fish and Game Code or CCR that allowed a shelter to
receive a waiver of the inspection fee. The general statute regarding waiving of fees in
Fish and Game Code section 2150 did not apply. Further, CCR section 671.8 only
applied to new facilities. Moreover, it rejected a claim by Young—that someone at the
Commission orally waived the inspection fee—because it was not supported by any
evidence.
The Department attached several exhibits. One of the exhibits was a response
from the Department on August 6, 2013, regarding a request for waiver of all fees from
Young. The Department advised Young it was bound by CCR sections 671.1,
subdivisions (b)(10), and 703, which did not provide for a waiver of the inspection fees.
If the Department were to hold otherwise, it would result in an “underground regulation”
in violation of the American Procedure Act (APA).
In its proposed decision, the OAH found that Young had failed to cite any
statutory or regulatory authority that the Department had authority to waive the
inspection fee. CCR section 671.1, subdivision (b)(10), limited the Department’s
authority to waive fees. The inspection fee was authorized by CCR sections 671.1,
subdivision (c)(2)(B), and 703, subdivision (a)(1)(A)(19). The Department had
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interpreted these sections to allow for waiver of the application fee but not the inspection
fee. The OAH rejected that Fish and Game Code section 1002 supported Young’s
argument as it only applied to scientific collection permits. Further, CCR section 671.8,
subdivision (a), was inapplicable because it only applied to new facilities. The OAH
relied upon CCR section 671.1, subdivisions (a), (b), (b)(10), (c)(2), and section 703,
subdivision (a)(1)(A), to conclude there was no authority to waive inspection fees.
The OAH also noted that CCR section 671.1, subdivision (c)(7), authorized it to
decide the matter on written submissions only. The proposed decision would be
submitted to the Commission for approval. If a party disagreed with the Commission’s
decision, that party could request judicial review by filing a petition for writ of mandate
in accordance with Code of Civil Procedure section 1094.5.
The adoption of the proposed decision was to be heard by the Commission at its
next meeting in June 2015. On June 10, 2015, the Commission adopted the proposed
decision of the OAH. The notice of decision was served on June 18, 2015.
C. PETITION FOR WRIT OF MANDATE FILED IN SUPERIOR COURT
On June 25, 2015, counsel representing Young filed the Writ in the superior court
pursuant to Code of Civil Procedure sections 1085 and 1094.5, accompanied by a
memorandum of points and authorities. Young sought a writ of mandate to require the
Department to perform its duty to determine whether “justified reasons” existed to grant
or deny Young’s request for a waiver of certain restricted species permitting fees
pursuant to Fish and Game Code section 2150, subdivision (c). Further, under CCR
section 671.1, subdivision (b)(10), the Department could waive fees if it was in the “best
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interests” of the public. Inspection fees should be included in the fees that could be
waived by the Department. The Department had a blanket policy not to apply the waiver
to inspection fees, which was an unlawful “ ‘underground regulation.’ ”
Young admitted she had never sought to have Magic Jungle be designated an AZA
accredited zoo. She argued that AZA zoos are exempt from permit requirements
pursuant to Fish and Game Code section 2150, subdivision (c). Under Fish and Game
Code section 2150, subdivision (c), any California organization can apply for a waiver of
permit requirements with “justified reasons.” In 2012, CCR section 671.1 was amended
to disallow veterinarians to perform inspections 4 and section 703 detailed the amount of
fees.
Young summarized the applications she submitted to the Department seeking a
waiver, the Department’s denial, and the Commission’s ultimate adoption of the OAH’s
proposed decision. Young’s primary argument was that the Department had to exercise
its discretion to determine whether the inspection fees should be waived. Young argued
that such determination was required by Fish and Game Code section 2150, subdivision
(c), and CCR section 671.1, subdivision (b)(10).
Young’s first cause of action was for failure to undertake a mandatory legal duty.
The Department had a blanket policy of denying requests for waiver of inspection fees;
Young contended it had a mandatory duty to determine waiver of these fees based on
“best interests” or “justified reasons.” Young’s second cause of action was for a
4Shelters such as the Magic Jungle were previously able to have volunteer veterinarians perform inspections with no cost to the state.
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violation of the APA as the Department was using an illegal underground regulation by
adopting a blanket policy not to allow waiver of inspection fees.
Young’s third cause of action was pursuant to Code of Civil Procedure section
1094.5, the review of a final administrative order. Young contended that the Department
and Commission proceeded in this matter in excess of jurisdiction. Young sought in her
prayer for relief that the superior court vacate the Commission’s order and enjoin the
Department from rejecting outright waivers of inspection fees and instead mandate
review based on “best interests” and “justified reasons.”
Young submitted her own declaration in support of the Writ. She declared she
was an expert in the field of large carnivore endangered species wildlife. She was
approved in 2004 to run the Magic Jungle by the United States Department of
Agriculture, San Bernardino County Department of Environmental Health
Services/Animal Control and the Department. She had passed the most recent inspection
in 2015.
Young relied on Exotic Feline, which she stated challenged the denial of waivers
for permit fees. She had declined to become an AZA accredited zoo even though she met
the standards. Young explained that prior to the enactment of CCR section 671.8,
veterinarians did inspections, not Department employees. She opposed the changes to the
CCR but the Commission adopted the changes to the CCR in April 2013. Young insisted
that employees of both the Commission and the Department advised her orally that all of
the fees would be waived.
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Several exhibits were attached to the Writ and Young’s declaration. Many
pertained to the prior positive inspections at the facility. Others related to the adoption of
the amended CCR sections. Additional exhibits included the documents filed for the
proceedings in the OAH and the denial of her request for waiver of the application fee.
One of the exhibits was the written response by the Department in the proceedings
in the OAH. They argued that no waiver of inspection fees was authorized by any Fish
and Game Code or CCR. It contended that CCR section 671.1, subdivision (b)(10), did
not support that all fees could be waived. Further, the general permit waiver in Fish and
Game Code section 2150, subdivision (c), did not apply; the more specific CCR section
671.1, subdivision (b)(10), applied.
On July 14, 2015, Young requested that the Wildlife Agencies prepare the
administrative record. On July 29, 2015, the parties stipulated to stay the enforcement of
the failure of Magic Jungle to obtain a permit until the Writ was resolved. On September
18, 2015, Young’s counsel filed a motion asking to be relieved as counsel based on
substantial, irreconcilable differences and breakdown in the working relationship between
the law firm and Young. Young opposed the motion. The motion was granted by the
trial court.
On December 7, 2015, Young, now in propria persona, filed a motion seeking to
have the administrative record lodged with the trial court as previously requested. The
Wildlife Agencies had refused to lodge the record. Young was sent notice that the
Wildlife Agencies had prepared the administrative record but that she would have to pay
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$573.37 for the preparation and copying. The Wildlife Agencies declared it did not have
to lodge the record until the record was paid for by Young.
Young filed an ex parte application for issuance of alternative writ of mandate and
order staying enforcement proceedings on November 30, 2015. She sought to enjoin the
Wildlife Agencies from enforcing the “underground regulation” that the inspection fees
could not be waived, and vacate the denial of her permit until the Writ was resolved.
On December 14, 2015, the Wildlife Agencies filed opposition to the stay of
enforcement ex parte application. The ex parte application was denied by the trial court
but it ordered that no animal should be euthanized by the Department pending the
outcome of the Writ. On December 30, 2015, Young filed a notice of lodging of the
certification and the administrative record. The Wildlife Agencies opposed Young’s
motion to lodge the record, which was self-certified by Young.
On March 1, 2016, the Wildlife Agencies lodged the administrative record.
Young represented that the record was incomplete. Young filed a motion to supplement
the administrative record. She sought to have records regarding amendments to the CCR,
permits for Magic Jungle, and correspondence regarding the denial of the waiver
included in the administrative record. The Wildlife Agencies objected to the inclusion of
the evidence requested by Young. It had no relevance to the proceedings. Young’s
motion to strike the administrative record was denied. Young was allowed to supplement
the record.
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D. BRIEFING IN SUPPORT OF WRIT
Young filed her opening brief in support of the Writ on March 31, 2016. Again,
relying upon CCR section 671.1, subdivision (b)(10), and Fish and Game Code section
2150, subdivision (c), Young argued that the Department was required to consider
“justified reasons” or “best interests” before refusing to waive inspection fees for non-
AZA accredited shelters. She contended that she was denied a fair hearing by the OAH.
The Wildlife Agencies filed a responding brief on July 1, 2016. They argued that
CCR section 671.1, subdivision (c)(2)(A)(B), provided that an inspection fee was
required for renewal of permits. This section required that a permit fee and an inspection
fee be paid. While there was language in CCR section 667, subdivision (b)(10), that
provided for waiver of the permit fee, there was no similar provision providing for a
waiver of the inspection fee. Further, no Fish and Game Code section provided for
waiver of inspection fees. The Wildlife Agencies argued that “permit requirement” in
section 2150 were those requirements in CCR section 671.1, subdivision (c)(3); these did
not include inspection fees. There was no underground regulation because there was no
authority for waiving inspection fees.
The Wildlife Agencies also stated that Young could not claim she was entitled to a
hearing in the OAH because she did not raise the issue in the Writ. Moreover, she could
not raise there was an oral agreement to waive her fee as it was not raised in the Writ and
she had provided no authority that such an agreement could be made. The Wildlife
Agencies also filed an answer to the Writ.
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Young filed a reply to the opposition on July 25, 2016. She stated that the trial
court must conduct a de novo review. Fish and Game Code section 2150, subdivision (c),
and CCR section 667.1, subdivision (b)(1), unambiguously allowed for waiver of permit
requirements.
On July 25, 2016, Young filed a request for statement of decision pursuant to
Code of Civil Procedure section 632. Young sought a determination of 40 separate
questions. She requested judicial notice of the unpublished appellate decision in Exotic
Feline. The Wildlife Agencies objected to both requests.
E. TRIAL COURT’S ORDER DENYING WRIT
The matter was heard on August 12, 2016. The trial court noted that review was
de novo because the trial court was merely interpreting a regulation. There were no
disputed facts and review was simply of the language of the regulation. The trial court
stated, “My tentative ruling is to deny this writ. I do not think that section 671.1 (b)10
embraces inspection fees. It embraces only permit fees.” The trial court noted that the
Department waived the application fee, but the court did not think there was authority to
waive such fee. That issue was not before the trial court and it would not rule on the
issue. It noted that inspection fees were provided for separately in CCR section 671.8,
subdivisions (b) and (c).
The trial court stated, “And I think the history tells us a little bit of a reason for
this. In the past these inspections were conducted by veterinarians who were
volunteering their time to do this, so there wasn’t an expense to the public. [¶] And I
understand there was some unfortunate incidents that happened that led to the enactment
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of these regulations. And these inspections are for the health and safety of the animals, as
well as the health and safety of the public. And that’s why the inspection fee is
mandated. [¶] It simply isn’t found within the one section that allows the waiver of the
permit fee. So that’s what I think the statute means.”
Young argued that the trial court was overlooking Fish and Game Code section
2150, subdivision (c), which allowed for waiver of all permit requirements. The trial
court refused to take judicial notice of the Exotic Feline case because it was an
unpublished appellate opinion. The trial court then expressed it was having difficulty
finding Fish and Game Code section 2150. Once the trial court reviewed the language,
after having it provided by Young, the trial court stated, “So although this statute doesn’t
talk about inspection fees, it’s your position that that’s a permit requirement to have an
inspection fee so this statute authorizes that waiver as well.” Young referred to an
admission by the Department to an inquiry made by her that inspection fees were part of
the permit requirement.
The Wildlife Agencies responded that such interpretation was incorrect. The
waiver only applied to permit fees and not inspection fees based on the plain language of
the statute. Young responded that the permit requirements were all inclusive and
included the inspection fees. Young was entitled to the waiver under Fish and Game
Code section 2150 and CCR section 671.1, subdivision (b)(10).
After the hearing, the matter was taken under submission. A minute order was
issued on August 18, 2016, denying the Writ. Judgment was entered denying the Writ on
September 16, 2016. Young filed a timely notice of appeal.
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DISCUSSION
Young makes the following claims on appeal: (1) The lower court erred and
demonstrated bias by ignoring California Fish and Game Code section 2150, subdivision
(c), and CCR 671.1, subdivision (b); (2) Courts have a duty to avoid absurd results;
(3) the lower court erred and demonstrated bias by not applying Code of Civil Procedure
section 1094.5, subdivisions (b), and (c); (4) the lower court erred by not applying the
mandatory requirements of Government Code section 11500; (5) the lower court erred
and demonstrated bias by making factual findings that were without support, which may
be drawn from the facts in the record; (6) the lower court erred and demonstrated bias by
permitting extra record evidence; (7) the lower court erred and demonstrated bias by not
weighing all of the evidence before it; (8) the lower court erred and demonstrated bias by
refusing to consider the opinion of the Fifth Circuit Court of Appeal and the truth of
matters asserted in it; (9) the lower court erred and demonstrated bias by not issuing writ
relief pursuant to Code of Civil Procedure section 1085, subdivision (a); (10) the lower
court erred and demonstrated bias by denying the Writ because writ relief was warranted
here; (11) the lower court erred and demonstrated bias by alleging that CCR section
671.1(b)(10), did not provide for a waiver of the application, nor inspection fee; and
(12) the lower court’s failure to issue a statement of decision is reversible error per se.
A. WAIVER
Initially, many of Young’s arguments in her appellant’s opening brief are
confusing or fail to be supported by reference to the record or legal authority and will not
be addressed.
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California Rules of Court, rule 8.204(a)(1)(B) provides that each brief must “State
each point under a separate heading or subheading summarizing the point, and support
each point by argument and, if possible, by citation of authority.” Rule 8.204(a)(1)(C)
provides that each brief must “Support any reference to a matter in the record by a
citation to the volume and page number of the record where the matter appears.”
“The appellate court is not required to search the record on its own seeking
error. . . . [A]ny point raised that lacks citation may, in this court’s discretion, be deemed
waived.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Thus, “[i]f a
party fails to support an argument with the necessary citations to the record, that portion
of the brief may be stricken and the argument deemed to have been waived.” (Duarte v.
Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see Kim v. Sumitomo Bank