Kabir v. City of Elk Grove

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 FARYAL KABIR, THE GUARDIAN OF No. 2:22-cv-01661-TLN-DB 11 THE CANINE COMPANION ZEUS,

12 Plaintiff, ORDER 13 v. 14 CITY OF ELK GROVE; BOBBIE SINGH-ALLEN, ACTING MAYOR OF 15 ELK GROVE; AND DOES 1–10, 16 Defendants. 17 18 This matter is before the Court on Plaintiff Faryal Kabir’s (“Plaintiff) Motion for 19 Temporary Restraining Order (“TRO”). (ECF No. 3.) Defendants City of Elk Grove (the “City”) 20 and Mayor Bobbie-Singh Allen (collectively, “Defendants”) filed an opposition. (ECF No. 13.) 21 Plaintiff filed a reply. (ECF No. 14.) For the reasons set forth below, Plaintiff’s motion is 22 DENIED. The Court also STAYS the instant action in part. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 The instant motion seeks to enjoin Defendants from euthanizing her dog, Zeus. (ECF No. 3 3.) Plaintiff also seeks one of the following pending litigation: (1) enjoin Defendants to properly 4 care for and shelter Zeus until further orders are given; (2) allow Rocket Dog Rescue to hold 5 Zeus; or (3) return Zeus to Plaintiff.1 (Id.) 6 This case arises out of the City designating Zeus as a dangerous animal and Plaintiff being 7 accused of noncompliance with the City’s dangerous animal restrictions. (ECF No. 11 at 2.) On 8 May 16, 2022, there was an incident between Zeus and a man, which resulted in Zeus biting the 9 man on both legs. (Id. at 4; ECF No. 13-2 at 2, 5–6.) Defendants assert the man was on the 10 public sidewalk, and Plaintiff contends he was by the end of her driveway. (ECF No. 11 at 4; 11 ECF No. 13 at 5.) The parties also dispute the extent of the man’s injuries. (See ECF No. 11 at 4; 12 ECF No. 13 at 5.) On May 25, 2022, the City designated Zeus as a dangerous animal, a 13 designation Plaintiff sought to dispute. (ECF No. 11 at 5; ECF No. 13-2 at 8–10.) 14 On June 8, 2022, an administrative hearing regarding the dangerous animal designation 15 was held via Zoom. (ECF No. 11 at 5; ECF No. 13-2 at 16.) Plaintiff contends she attempted to 16 attend the hearing, but she could not attend due to technical issues. (ECF No. 11 at 5.) Plaintiff 17 then phoned the hearing officer, but she was told she could not attend the hearing via phone. (Id.) 18 The hearing continued in Plaintiff’s absence and Plaintiff was unable to assert a provocation 19 defense for Zeus. (Id.) 20 On June 15, 2022, the hearing officer issued an order finding the City had proven by a 21 preponderance of the evidence that Zeus is a dangerous animal within the meaning given in the 22 Elk Grove Municipal Code (“EGMC”). (ECF No. 13-2 at 16–21.) The order provided that 23 Plaintiff had 30 days from the issuance of a dangerous dog designation to comply with all 24 restrictions regarding Zeus. (Id. at 19.) Plaintiff alleges she provided evidence of compliance, 25

1 Plaintiff’s First Amended Complaint (“FAC”) is verified in that she has declared under 26 penalty of perjury the statements made in the FAC are true and correct, except as to the 27 statements made upon information and belief. (ECF No. 11 at 23.) Factual allegations in a verified complaint may serve as the basis for a TRO. Right to Life of Cent. Cal. v. Bonta, 562 F. 28 Supp. 3d 947, 951 n.1 (E.D. Cal. 2021). 1 but before the 30-day period to comply elapsed the City’s animal control and police seized Zeus. 2 (ECF No. 11 at 5.) Plaintiff alleges animal control demanded Plaintiff put Zeus in their truck. 3 (Id. at 5–6.) 4 A video recording from the seizure shows Plaintiff attempting to place a leashed and 5 unmuzzled Zeus in the back of the City’s animal control truck.2 Elk Grove Police Dep’t, 6 Dangerous Dog Case, YouTube (Sept. 22, 2022), 7 https://www.youtube.com/watch?v=ErQDkFJzZMQ. At that time, the City’s police and animal 8 control officers were several feet behind the truck. Id. As Plaintiff and Zeus were nearing the 9 rear of the truck, Zeus barked and began running at the officers while continuing to bark. Id. The 10 officers backed up, but Zeus continued to advance toward them despite Plaintiff holding onto his 11 leash. Id. Zeus then bit one of the officers on his left leg causing a tear in the officer’s pant leg. 12 Id. Plaintiff then placed Zeus in the back of truck. Id. One of the officers asked, “You have 13 broken skin?” to the officer who was bitten. Id. After inspecting his leg, the officer who was 14 bitten replied, “Yeah.” Id. Plaintiff alleges a criminal misdemeanor change was placed against 15 her on July 15, 2022, for failure to comply pursuant to the EGMC. (ECF No. 11 at 8.) 16 On August 15, 2022, a second administrative hearing took place before a different hearing 17 officer. (Id. at 6; ECF No. 13-2 at 30.) After the hearing, Plaintiff alleges the hearing officer 18 asked for post-hearing objections, which the City submitted along with video evidence. (ECF No. 19 11 at 6.) Plaintiff alleges she submitted proof of compliance after the hearing, but it was not 20 admitted. (Id.) Plaintiff further contends the City made an ex parte communication with the 21 hearing officer after the hearing instead of using the correct procedure. (Id.) 22 On September 2, 2022, an order from the second hearing was issued. (ECF No. 13-1 at 23 52–61.) The order found Zeus had violated two provisions of the EGMC, and therefore, Zeus 24 was to be humanely euthanized. (Id. at 60.) The order also provided a five-day period to appeal 25 the order, and that any appeal would be trial de novo. (Id. at 61.) The hearing officer later issued 26 an amended order changing the right to judicial review. (ECF No. 13-2 at 30 n.1.) The amended 27 2 The video recording was provided via a weblink in a declaration in support of Defendants’ 28 opposition. (ECF No. 13-2 at 3.) 1 order stated a party could seek judicial review by filing a petition for review with the Sacramento 2 County Superior Court. (Id. at 39.) 3 On August 16, 2022, Plaintiff filed a petition for a writ of administrative mandate in the 4 Sacramento County Superior Court, case no. 34-2022-80003929 (the “First State Court Action”).3 5 (Kabir v. City of Elk Grove, 34-2022-80003929-CU-WM-GDS (Sacramento Sup. Ct. 2022).) On 6 September 13, 2022, Plaintiff filed her first amended verified petition for writ of mandate (the 7 “Amended Writ Petition”). (ECF No. 13-1 at 5.) The Amended Writ Petition alleges: (1) federal 8 and state procedural due process violations stemming from the administrative hearings on June 9 8th and August 15th; (2) portions of the EGMC relating to dangerous dogs are in conflict with 10 California law and void under Article XI, § 7 of the California Constitution; and (3) violation of 11 the “takings” provisions of the United States Constitution and California Constitution. (See id. at 12 5–23.) 13 Also on September 13, 2022, Plaintiff filed an emergency ex parte motion to stay Zeus’ 14 euthanasia in the First State Court Action. (Id. at 26.) On September 14, 2022, the City filed its 15 opposition to Plaintiff’s ex parte motion. (Id. at 38.) That same day, the superior court issued a 16 minute order denying Plaintiff’s ex parte motion. (Id. at 49.) The minute order states, “Based 17 upon the information presented, the Court denies Petitioner’s Application.” (Id.) However, the 18 First State Court Action’s docket shows the case remains pending and judgment has not been 19 entered. (Kabir v. City of Elk Grove, 34-2022-80003929-CU-WM-GDS (Sacramento Sup. Ct. 20 2022).) 21 On September 6, 2022, Plaintiff appealed the order from the August 15th administrative 22 hearing to the Sacramento County Superior Court, case no. 34-2022-00326595 (the “Second State 23 Court Action”). (ECF No. 13-1 at 51; Kabir v. City of Elk Grove Animal Servs., 34-2022- 24 00326595-CL-PT-GDS (Sacramento Sup. Ct. 2022).) On September 21, 2022, the superior court 25 issued an order granting the City’s motion to dismiss Plaintiff’s request for appeal by trial de 26 3 Defendants filed a declaration attaching filings from the First State Court Action and the 27 Second State Court Action. (ECF No. 13-1.) The Court also takes judicial notice of the filings and dockets in the two cases. See Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) 28 (noting courts may take judicial notice of documents on file in state courts). 1 novo. (ECF No. 13-1 at 117–118.) The Second State Court Action’s docket reflects this case has 2 been dismissed. (See Kabir v. City of Elk Grove Animal Servs., 34-2022-00326595-CL-PT-GDS 3 (Sacramento Sup. Ct. 2022).) 4 On September 21, 2022, Plaintiff initiated the instant action and filed her complaint. 5 (ECF No. 1.) Also on September 21, 2022, Plaintiff filed the instant motion for TRO. (ECF No. 6 3.) On September 22, 2022, Plaintiff filed her FAC. (ECF No. 11.) The FAC alleges six causes 7 of action: (1) 42 U.S.C. § 1983 for Fourth, Fifth, and Fourteenth Amendment violations; (2) 42 8 U.S.C. § 1983 for procedural due process violations; (3) a constitutional challenge to portions of 9 the EGMC regulating dangerous animals; (4) a due process claim concerning the burden of proof; 10 (5) declaratory relief; and (6) violation of the Article XI, Section 7 of the California Constitution. 11 (Id.) On September 22, 2022, the Court issued an order enjoining Defendants from euthanizing 12 Zeus until September 28, 2022 in order to preserve the status quo until Defendants had a chance 13 to respond to the motion for TRO. (ECF No. 12.) On September 26, 2022, Defendants filed their 14 opposition to the motion. (ECF No. 13.) On September 27, 2022, Plaintiff filed her reply. (ECF 15 No. 14.) 16 II. STANDARD OF LAW 17 A TRO is an extraordinary remedy. The purpose of a TRO is to preserve the status quo 18 pending a fuller hearing. See Fed. R. Civ. P. 65. In general, “[t]emporary restraining orders are 19 governed by the same standard applicable to preliminary injunctions.” Aiello v. One West Bank, 20 No. 2:10-cv-0227-GEB-EFB, 2010 WL 406092, at *1 (E.D. Cal. Jan. 29, 2010) (internal citations 21 omitted); see also E.D. Cal. L.R. 231(a). 22 Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear 23 showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 24 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “The 25 purpose of a preliminary injunction is merely to preserve the relative positions of the parties until 26 a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); see also 27 Costa Mesa City Emps. Ass’n v. City of Costa Mesa, 209 Cal. App. 4th 298, 305 (2012) (“The 28 purpose of such an order is to preserve the status quo until a final determination following a 1 trial.”); GoTo.com, Inc. v. Walt Disney, Co., 202 F.3d 1199, 1210 (9th Cir. 2000) (“The status quo 2 ante litem refers not simply to any situation before the filing of a lawsuit, but instead to the last 3 uncontested status which preceded the pending controversy.”). 4 “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed 5 on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, 6 [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 7 Winter, 555 U.S. at 20. A plaintiff must “make a showing on all four prongs” of the Winter test 8 to obtain a preliminary injunction. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th 9 Cir. 2011). In evaluating a plaintiff’s motion for preliminary injunction, a district court may 10 weigh the plaintiff’s showings on the Winter elements using a sliding-scale approach. Id. A 11 stronger showing on the balance of the hardships may support issuing a preliminary injunction 12 even where the plaintiff shows that there are “serious questions on the merits . . . so long as the 13 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the 14 public interest.” Id. Simply put, plaintiffs must demonstrate, “that [if] serious questions going to 15 the merits were raised [then] the balance of hardships [must] tip[ ] sharply” in [p]laintiffs’ favor 16 in order to succeed in a request for preliminary injunction. Id. at 1134–35. 17 III. ANALYSIS 18 In the Court’s September 22nd Order granting Plaintiff’s motion for TRO until September 19 28, 2022, the Court stated it had questions regarding its jurisdiction to hear this case because of 20 Plaintiff’s unsuccessful actions in the superior court. (ECF No. 12 at 5.) In making this 21 statement, the Court cited to cases applying the Rooker-Feldman doctrine. (Id. (citing Irlina v. 22 City of Oakland, Oakland Animal Servs. Div., No. 14-cv-00381-TEH, 2014 WL 806390, at *3 23 (N.D. Cal. Feb. 27, 2014); Jones v. Tulare Cty., No. 1:15-cv-01779-EPG, 2016 WL 7034744, at 24 *9–10 (E.D. Cal. Dec. 1, 2016)).) Therefore, the Court will determine whether the Rooker- 25 Feldman doctrine applies, and if not, whether another doctrine, such as Younger abstention, 26 applies due to the First State Court Action and Second State Court Action. 27 /// 28 /// 1 A. The Rooker-Feldman Doctrine 2 As stated, the Court’s September 22nd Order questioned the Court’s jurisdiction to hear 3 the instant case and cited to cases applying Rooker-Feldman. (ECF No. 12 at 5.) However, now 4 that the instant motion has been fully briefed and the Court has been more fully apprised of 5 Plaintiff’s superior court actions, the Court finds the Rooker-Feldman doctrine to be inapplicable. 6 The First State Court Action remains pending and judgment has not been entered. (Kabir 7 v. City of Elk Grove, 34-2022-80003929-CU-WM-GDS (Sacramento Sup. Ct. 2022). Instead, the 8 superior court only issued a minute order denying Plaintiff’s ex parte motion to stay Zeus’ 9 euthanasia. (ECF No. 13-1 at 49.) Thus, Rooker-Feldman does not apply because there has been 10 no final judgment from the superior court. See Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003) 11 (“Under Rooker-Feldman, a federal district court does not have subject matter jurisdiction to hear 12 a direct appeal from the final judgment of a state court.”). 13 The Second State Court Action resulted in the dismissal of Plaintiff’s request for appeal 14 by trial de novo. (ECF No. 13-1 at 117–18). Therefore, Rooker-Feldman is inapplicable because 15 the superior court “did not analyze [P]laintiff’s contentions on the merits.” See Snowden v. Cty. 16 of Calaveras, No. 1:18-cv-01595-DAD-SAB, 2019 WL 4829480, at *5 (E.D. Cal. Sept. 30, 2019) 17 (finding the Rooker-Feldman doctrine did not apply to a superior court order denying as untimely 18 a challenge to a county order). 19 Therefore, based upon the current status of Plaintiff’s superior court proceedings, the 20 Rooker-Feldman doctrine does not apply. Thus, the Court does not lack subject matter 21 jurisdiction over the instant action due to Rooker-Feldman. 22 B. The Younger Abstention Doctrine 23 “In ‘exceptional circumstances,’ the Younger abstention doctrine instructs federal courts 24 to decline to hear a case when a parallel state proceeding is ongoing.” Applied Underwriters, Inc. 25 v. Lara, 37 F.4th 579, 587–88 (9th Cir. 2022) (citing New Orleans Pub. Serv., Inc. v. Council of 26 New Orleans, 491 U.S. 350, 368 (1989)). The doctrine applies to three categories of cases: 27 “(1) parallel, pending state criminal proceedings[;] (2) state civil proceedings that are akin to 28 criminal prosecutions[;] and (3) state civil proceedings that implicate a State’s interest in 1 enforcing the orders and judgments of its courts.” Herrera v. City of Palmdale, 918 F.3d 1037, 2 1043 (9th Cir. 2019). If a state proceeding falls into one of these categories, Younger abstention 3 may apply so long as three additional factors are also met. Id. at 1044. The additional factors are 4 that the state proceeding must be: (1) ongoing; (2) implicate important state interests; and 5 (3) provide adequate opportunity to raise constitutional challenges. Applied Underwriters, 37 6 F.4th at 588 (9th Cir. 2022). Additionally, the requested relief in the federal proceeding must 7 seek to enjoin or have the practical effect of enjoining the ongoing state proceeding. ReadyLink 8 Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758 (9th Cir. 2014). 9 “Younger abstention is mandatory[.]” Canatella v. California, 404 F.3d 1106, 1117 (9th 10 Cir. 2005); Pachal v. Bugreeff, 495 F. Supp. 3d 963, 966 (D. Mont. 2020) (noting that when all 11 Younger requirements are met, a district court lacks discretion to hear the case). However, even if 12 the Younger factors are satisfied, there are exceptions that would make abstention inappropriate. 13 Bean v. Matteucci, 986 F.3d 1128, 1133 (9th Cir. 2021). 14 Younger abstention may be raised sua sponte at any time. Columbia Basin Apartment 15 Ass’n v. City of Pasco, 268 F.3d 791, 799 (9th Cir. 2001); Citizens for Free Speech, LLC v. Cty. 16 of Alameda, 338 F. Supp. 3d 995, 1002 & n.6 (N.D. Cal. 2018), aff’d, 953 F.3d 655 (9th Cir. 17 2020). 18 The Court begins by determining whether Plaintiff’s superior court actions, and the 19 underlying administrative hearings, fall into one of the three categories that may be subject to 20 Younger abstention. If so, the Court will examine whether the additional factors for Younger to 21 apply have been met and if any exceptions apply. 22 i. The Categories of Cases Under Younger Abstention 23 One of the categories of cases that can be subject to Younger abstention is civil 24 enforcement proceedings that are akin to criminal proceedings. See ReadyLink Healthcare, 754 25 F.3d at 759. A civil enforcement action is akin to a criminal proceeding when the action is 26 “characteristically initiated to sanction the federal plaintiff . . . for some wrongful action” and 27 “[i]nvestigations are commonly involved.” Id. A municipal administrative proceeding, and the 28 appeal of that proceeding to state court, can also qualify as civil enforcement actions under 1 Younger abstention. See Joseph v. City of San Jose, No. 19-CV-01294-LHK, 2020 WL 1031899, 2 at *12 (N.D. Cal. Mar. 3, 2020) (finding Younger abstention could apply to a city administrative 3 proceeding involving municipal code violations); see Villa San Clemente, LLC v. City of San 4 Clemente, No. SACV 17-1484 JVS(JCGx), 2017 WL 8793227, at *3–4 (C.D. Cal. Dec. 22, 2017) 5 (finding an appeal in state court following a city’s administrative citation proceeding was a quasi- 6 criminal enforcement proceeding). 7 Here, “at the heart of Plaintiff’s [F]AC [are] [City] administrative proceeding[s] that 8 involve[] municipal code violations.” Joseph, 2020 WL 1031899, at *12; see also Cal. Outdoor 9 Equity Partners v. City of Corona, No. CV 15-03172 MMM AGRX, 2015 WL 4163346, at *7 10 (C.D. Cal. July 9, 2015) (noting Younger applies to a city’s civil action to enjoin a public 11 nuisance). The August 15th administrative hearing was conducted “to decide whether or not to 12 uphold the City of Elk Grove Police Department Animal Services Division . . . determination that 13 [Plaintiff], owner of a German Shepherd dog named Zeus, violated [EGMC §§] 8.06.080 and 14 8.06.090.” (ECF No. 13-2 at 30.) Therefore, a division of the City had already determined that 15 Plaintiff violated the EGMC. Thus, the August 15th administrative hearing had been “initiated to 16 sanction [Plaintiff] . . . for some wrongful action.” ReadyLink Healthcare, 754 F.3d at 759. 17 Moreover, the June 8th administrative hearing followed the City’s investigation into the first bite 18 incident by Zeus. (See ECF No. 13-2 at 2, 24.) Because the August 15th administrative hearing 19 concerned whether Plaintiff violated EGMC §§ 8.06.080 and 8.06.090, at stake was whether Zeus 20 would be euthanized.4 (See id. at 38.) 21 /// 22

23 4 Defendants request the Court take judicial notice of two chapters of the EGMC. (ECF No. 13-3.) “Municipal ordinances are proper subjects for judicial notice.” Tollis, Inc. v. Cty. of San 24 Diego, 505 F.3d 935, 938 (9th Cir. 2007). Therefore, the Court GRANTS Defendants’ request for judicial notice. 25

The Court notes that EGMC § 8.06.110 provides that the failure to comply with the 26 requirements to keep, harbor, own, possess, or control any dangerous animal constitutes a 27 misdemeanor. (ECF No. 13-3 at 21.) Although the administrative hearings do not appear to be criminal in nature, Plaintiff’s FAC alleges a misdemeanor charge was placed against her pursuant 28 to EGMC § 8.06.110. (ECF No. 11 at 8.) 1 Judicial review of an administrative proceeding is treated as a unitary process. Mir v. 2 Kirchmeyer, No. 12cv2340-GPC-DHB, 2014 WL 2436285, at *11 (S.D. Cal. May 30, 2014); 3 Howard Jones Invs., LLC v. City of Sacramento, No. 2:15-cv-954-JAM-KJN, 2016 WL 1599511, 4 at *2 (E.D. Cal. Apr. 21, 2016) (noting that after the administrative hearing and appeal, the 5 plaintiff filed a writ for state-court judicial review). Therefore, the Court considers the 6 administrative hearings and Plaintiff’s superior court actions together when determining if they 7 fall within a category of cases that may be subject to Younger abstention. As such, the reasons 8 why the administrative hearings are civil enforcement proceedings also applies to Plaintiff’s 9 superior court actions. See Villa San Clemente, 2017 WL 8793227, at *3–4. 10 Accordingly, Plaintiff’s superior court actions are civil enforcement proceedings and fall 11 within a category of cases that may be subject to Younger abstention. 12 ii. Additional Younger Abstention Factors 13 As stated, the additional Younger factors are that the state proceeding must be: (1) 14 ongoing; (2) implicate important state interests; and (3) provide adequate opportunity to raise 15 constitutional challenges. Applied Underwriters, 37 F.4th at 588. Additionally, the requested 16 relief in the federal proceeding must seek to enjoin or have the practical effect of enjoining the 17 ongoing state proceeding. ReadyLink Healthcare, 754 F.3d at 758. The Court examines each of 18 these factors in turn. 19 a. Ongoing State Proceeding 20 The first factor is satisfied if the state proceeding was pending when the federal action was 21 filed. Columbia Basin, 268 F.3d at 801. In determining whether a proceeding is going, courts 22 consider judicial review of an administrative proceeding as a unitary process. See Mir, 2014 WL 23 2436285, at *11; Howard Jones, 2016 WL 1599511, at *2 (“[T]he proceeding is on-going, 24 because after the administrative hearing and appeal, [the plaintiff] filed a writ for state-court 25 judicial review.”). 26 Here, the First State Court Action was filed on August 16, 2022 and that case remains 27 pending. (Kabir v. City of Elk Grove, 34-2022-80003929-CU-WM-GDS (Sacramento Sup. Ct. 28 2022). Indeed, Plaintiff’s reply acknowledges that her writ request in the First State Court Action 1 is pending. (ECF No. 14 at 9.) On the other hand, the Second State Court Action was filed on 2 September 6, 2022 and that case was dismissed on September 21, 2022. (Kabir v. City of Elk 3 Grove Animal Servs., 34-2022-00326595-CL-PT-GDS (Sacramento Sup. Ct. 2022). The instant 4 action was filed on September 21, 2022. (ECF No. 1.) Therefore, although the Second State 5 Court Action was no longer pending when the instant action was filed, the First State Court 6 Action was. Thus, the first factor is met with regard to the First State Court Action.5 7 b. Implication of Important State Interests 8 The second factor requires the ongoing state proceeding to implicate important state 9 interests. Applied Underwriters, 37 F.4th at 588. The importance of a state’s interest “is 10 measured by considering its significance broadly, rather than by focusing on the state’s interest in 11 the resolution of an individual case.” Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 618 (9th 12 Cir. 2003). The second factor may be met due to a municipality’s interest in its municipal code 13 and acting for the benefit of its residents. Columbia Basin, 268 F.3d at 801 (finding the second 14 factor met because of the city’s strong interest in its land-use ordinance and in maintaining 15 habitable dwellings for its residents). 16 Here, the First State Court Action implicates important state interests. That action is the 17 judicial review of the administrative hearings on June 8th and August 15th. The administrative 18 hearings, and thereby the First State Court Action, concern the City’s enforcement of the 19 dangerous animal requirements in the EGMC against Plaintiff. The City has a strong interest in 20 enforcing the EGMC. See Columbia Basin, 268 F.3d at 801. The City also has a strong interest 21 in the safety of its residents, including by protecting them against dog bites. See id. Therefore, 22 the second factor is met. 23 /// 24 ///

25 5 The FAC argues Younger does not apply because “there is no ongoing state proceeding complaint and this action does not challenge any state interest or procedure.” (ECF No. 11 at 4. 26 The Court notes that this argument may be related to another case because it states Younger does 27 not bar the instant action from being heard in the “Northern District of California.” (ECF No. 11 at 4.) However, even if Plaintiff’s argument concerns the instant action, it is without merit 28 because the First State Court Action is still pending as Plaintiff has acknowledged. 1 c. Adequate Opportunity to Raise Constitutional Challenges 2 For the third factor, “[s]tate court proceedings are presumed adequate to raise the federal 3 claim[s] ‘in the absence of unambiguous authority to the contrary.’” Fedex Ground Package Sys., 4 Inc. v. Ingenito, 86 F. Supp. 3d 1121, 1129 (E.D. Cal. 2015) (quoting Pennzoil Co. v. Texaco, 5 Inc., 481 U.S. 1, 15 (1987)). 6 Here, there is no unambiguous authority showing the First State Court Action, or any 7 further state court proceedings, are inadequate to raise the constitutional challenges that Plaintiff 8 asserts in the instant action. Indeed, the Amended Writ Petition asserts many, if not all, of the 9 federal constitutional challenges that Plaintiff asserts in the instant case. (Compare ECF No. 13-1 10 at 12–23 with ECF No. 11 at 9–23.) Thus, the third factor is met. 11 d. Effect of Enjoining State Proceedings 12 As stated, for Younger to apply, the requested relief in the federal proceeding must seek to 13 enjoin or have the practical effect of enjoining the ongoing state proceeding. ReadyLink 14 Healthcare, 754 F.3d at 758. Although “direct” interference is not required, there must be some 15 interference with state court proceedings for Younger to apply. AmerisourceBergen Corp. v. 16 Roden, 495 F.3d 1143, 1149 n.9 (9th Cir. 2007). Additionally, “Younger principles may apply to 17 claims for damages under § 1983.” Gilbertson v. Albright, 381 F.3d 965, 979 (9th Cir. 2004) (en 18 banc). 19 Plaintiff’s federal constitutional claims “represent a collateral constitutional challenge to 20 the pending [First State Court Action and its review of the administrative hearings].” Morning 21 Hill Foods, LLC v. Hoshijo, 259 F. Supp. 3d 1113, 1124 (D. Haw. 2017). All but Plaintiff’s sixth 22 claim allege federal constitutional violations or seek declaratory relief for those violations. (ECF 23 No. 11 at 9–19.) Additionally, Plaintiff’s sixth claim is a collateral constitutional challenge to the 24 pending First State Court Action and its review of the administrative hearings based on an alleged 25 violation of the California Constitution. (Id. at 19–20.) Therefore, Plaintiff’s claims “go to the 26 heart of h[er] opposition to the [City’s] action in the [administrative hearings and First State Court 27 Action], such that [the Court’s] decision on the merits of [Plaintiff]’s claims would have the same 28 1 practical effect on the state proceeding as an injunction.”6 Gilbertson, 381 F.3d at 982; see also 2 Morning Hill, 259 F. Supp. 3d at 1124. 3 Plaintiff argues she is not seeking to hold a state court judgment to be unconstitutional. 4 (ECF No. 14 at 9.) However, the First State Court Action is Plaintiff seeking judicial review of 5 the administrative hearings, and judicial review of administrative hearings and the administrative 6 hearings themselves are considered a unitary process. See Mir, 2014 WL 2436285, at *11; 7 Howard Jones, 2016 WL 1599511, at *2. Therefore, the fact that Plaintiff requests relief 8 concerning the administrative hearings themselves, rather than the judicial review of those same 9 hearings, does not mean Plaintiff’s requested relief would have no effect on the First State Court 10 Action. See Villa San Clemente, 2017 WL 8793227, at *5 (finding a federal action, in which the 11 plaintiff sought a declaration that the city code was unconstitutional, would have the practical 12 effect of enjoining a state court appeal following an administrative hearing for a city citation). 13 Plaintiff also contends the First State Court Action is limited to the administrative hearing 14 and it does not challenge the provisions of the EGMC that Plaintiff challenges in the instant 15 action. (ECF No. 14 at 9.) However, this contention is contradicted by the Amended Writ 16 Petition. Among Plaintiff’s request for relief in the Amended Writ Petition is the issuance of a 17 writ of mandate that the City cannot enforce the EGMC in a manner that violates due process, 18 including how EGMC § 8.06.090 contains arbitrary and capricious language. (ECF No. 13-1 at 19 22.) Thus, Plaintiff is attempting to challenge the EGMC in the First State Court Action. 20 Plaintiff argues the Court has parallel jurisdiction while the First State Court Action is 21 pending. (ECF No. 14 at 10.) As part of this argument, Plaintiff cites to and provides a hearing 22 transcript from the case of Hobbs v. Cty. of San Joaquin, No. 2:12-cv-02290-JAM-KJN (E.D. 23 Cal. Sept. 19, 2012).7 (ECF No. 15 at 8.) Plaintiff asserts Hobbs, which involved a federal due 24 6 In the instant action, Plaintiff’s requested relief includes injunctive relief returning Zeus to 25 Plaintiff and declaratory relief that Defendants violated Plaintiff’s federal constitutional rights when they seized and kept Zeus. (ECF No. 11 at 20.) Whether the City rightfully “seized” Zeus 26 is at issue in the First State Court Action. 27 7 Plaintiff requests the Court take judicial notice of the hearing transcript in Hobbs as well 28 as a decision of the Washington Court of Appeals. (ECF No. 15 at 1.) Plaintiff also requests 1 process challenge in federal court and a writ petition proceeding in the superior court, presents 2 similar circumstances to the instant action. (ECF No. 14 at 10 & n.5.) Plaintiff points to a 3 portion of the hearing transcript, in which the Hobbs court stated the superior court writ petition 4 could “proceed along a parallel track in which [Hobbs was] going to challenge the actual 5 conclusions and findings themselves.” (ECF No. 15 at 20.) However, the Court finds Hobbs to 6 be distinguishable because the Hobbs court did not expressly consider nor reference Younger 7 abstention during the hearing, and nor did the Hobbs court have an adequate opportunity to do so 8 because it was only informed of the superior court writ petition during the hearing.8 (See ECF 9 No. 15 at 19–20.) 10 Accordingly, the Court finds the effect of enjoining state proceedings factor to be met. 11 Thus, all of the Younger abstention requirements have been met. Thus, abstention is mandatory 12 unless an exception applies. 13 iii. Younger Abstention Exceptions 14 The exceptions to Younger abstention include whether “there is a ‘showing of bad faith, 15 harassment, or some other extraordinary circumstance that would make abstention 16 inappropriate.’” Bean, 986 F.3d at 1133. Bias in the state court proceeding is another exception. 17 Morning Hill, 259 F. Supp. 3d at 1125. Another exception concerns irreparable harm. Bean, 986 18 F.3d at 1133. 19 Here, there has been no showing of bad faith or harassment in the First State Court Action 20 and the Court can find no evidence of such. (See ECF Nos. 3, 11.) While Plaintiff alleges the 21 hearing officer in the August 15th administrative hearing displayed bias (ECF No. 11 at 7), “[t]he 22

23 judicial notice of an email from Plaintiff’s counsel, but Plaintiff does not explain how this email, as opposed to court filings, is subject to judicial notice. (Id. at 1–2.) Thus, the Court GRANTS 24 Plaintiff’s request for judicial notice as to the court filings and DENIES it as to the email. See Harris, 682 F.3d at 1132 (noting courts may take judicial notice of the documents on file in 25 federal or state courts).

26 8 Plaintiff’s only other legal authority under her argument that parallel jurisdiction is 27 appropriate is Zinermon v. Burch, 494 U.S. 113 (1990). However, Zinermon addressed whether state remedies were relevant as to the existence of a 42 U.S.C. § 1983 cause of action, and the 28 opinion did not reference Younger abstention nor parallel state court proceedings. Id. at 124. 1 party raising bias must overcome a presumption of honesty and integrity in those serving as 2 adjudicators.” Morning Hill, 259 F. Supp. 3d at 1125 (citing Kenneally v. Lungren, 967 F.2d 329, 3 333 (9th Cir. 1992)). Even if Plaintiff could overcome this presumption as to the hearing officer, 4 Plaintiff makes no claim of bias against the superior court (see ECF No. 11), and the Court cannot 5 find evidence of bias in the First State Court Action. Therefore, the Court does not find the 6 exceptions for bad faith, harassment, or bias apply. 7 The irreparable harm exception applies only in “extraordinary circumstances where the 8 danger of irreparable loss is both great and immediate.” World Famous Drinking Emporium, Inc. 9 v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987). This exception is narrowly applied 10 because “if allegations that a plaintiff’s constitutional rights were being violated were sufficient to 11 constitute ‘extraordinary circumstances,’ this exception to Younger would swallow the rule.” 12 Applied Underwriters, Inc. v. Lara, 530 F. Supp. 3d 914, 939 (E.D. Cal. 2021). Additionally, the 13 standard for irreparable harm as a Younger exception is distinct from the showing of irreparable 14 harm for injunctive relief. See id. (noting the irreparable harm exception under Younger requires 15 not only irreparable harm but also extraordinary circumstances). 16 Courts have found the irreparable harm exception can apply in situations involving a 17 deprivation of a person’s physical liberty that cannot be fully vindicated after trial. Bean, 986 18 F.3d at 1134–35 (finding the exception for irreparable harm due to the forcible injection of 19 antipsychotic medication); Applied Underwriters, 37 F.4th at 598 (noting a Younger exception 20 applied to a case where the petitioner had been incarcerated for over six months without a bail 21 hearing). 22 Here, the Court does not find the irreparable harm exception to Younger abstention 23 applies. This case does not involve deprivation to a person’s physical liberty, nor does it involve 24 a constitutional violation that approaches the level of a deprivation of a person’s physical liberty. 25 To the extent Plaintiff may assert she suffers irreparable harm because of the inadequacy of 26 monetary damages, the Court finds this does not demonstrate the necessary “extraordinary 27 circumstances” to apply this exception. See Applied Underwriters, Inc. v. Lara, 530 F. Supp. 3d 28 914, 939 (E.D. Cal. 2021). 1 Additionally, the ability to have a state court decision reviewed by appellate state courts 2 also weighs against the irreparable harm exception. Applied Underwriters, 37 F.4th at 598 3 (noting that even if the superior court adopted a proposed plan, the plaintiffs would have ample 4 opportunity for state appellate court review). Here, the superior court in the First State Court 5 Action denied Plaintiff’s ex parte motion to stay Zeus’ euthanasia on September 14, 2022. (ECF 6 No. 13-1 at 49.) However, the superior court’s denial of a preliminary injunction or TRO is 7 appealable. See Bustos v. Wells Fargo Bank, N.A., 39 Cal. App. 5th 369, 375 (2019) (“A TRO, as 8 an interim provisional order granting injunctive relief, is immediately appealable[.]”); Busch v. 9 Hurwitz, No. A097841, 2002 WL 31752266, at *3 (Cal. Ct. App. Dec. 10, 2002) (noting both an 10 order denying a preliminary injunction and an order denying a TRO are appealable).9 Therefore, 11 Plaintiff has had the opportunity to appeal the superior court’s denial of her motion in the First 12 State Court Action. The docket in the First State Court Action does not reflect any notice of 13 appeal of the denial of Plaintiff’s ex parte motion. This weighs against the irreparable harm 14 exception. 15 Accordingly, the Court finds no exception to Younger abstention applies. Thus, the Court 16 will address the impact of Younger abstention on the instant action. 17 iv. Application of Younger Abstention 18 “When a court abstains under Younger, claims for injunctive and declaratory relief are 19 typically dismissed.” Herrera, 918 F.3d at 1042; see also San Remo Hotel v. City & Cty. of S.F., 20 145 F.3d 1095, 1103 (9th Cir. 1998) (“Younger abstention requires dismissal of the federal claim 21 for injunctive relief[.]”). However, the Ninth Circuit “has also recognized that, when a district 22 court abstains from considering a damages claim under Younger, it must stay — rather than 23 dismiss — the damages action until state proceedings conclude.” Herrera, 918 F.3d at 1042 24 (italics in original). 25 Plaintiff requests monetary, injunctive, and declaratory relief. (ECF No. 11 at 20.) 26 Accordingly, the Court must deny the instant motion for TRO. See Joseph, 2020 WL 1031899, at 27 9 “The Court may cite unpublished California appellate decisions as persuasive authority.” 28 Washington v. Cal. City Correction Ctr., 871 F. Supp. 2d 1010, 1028 n.3 (E.D. Cal. 2012). 1 *17. On the other hand, the Court may not dismiss the instant action because of Plaintiff’s 2 request for monetary relief. The FAC’s prayer for relief does not clearly differentiate between 3 what causes of action serve as the basis for monetary relief as opposed to the ones for those 4 serving as the basis for injunctive and declaratory relief, or whether any causes of action are the 5 basis for multiple forms of relief. (ECF No. 11 at 20–23.) Thus, the Court at this time will 6 refrain from dismissing any of Plaintiff’s claims as opposed to staying them. 7 The Ninth Circuit has found Younger abstention does not apply to a § 1983 claim for 8 damages that alleges a Fourth Amendment violation for an unlawful search. Herrera, 918 F.3d at 9 1049. This exception applies even though it raises the possibility of piecemeal litigation. Id. 10 Here, Plaintiff’s first claim alleges a § 1983 claim based on alleged Fourth, Fifth, and 11 Fifteenth Amendment violations. (ECF No. 11 at 9–11.) In the first claim, Plaintiff alleges a 12 Fourth Amendment violation due to the alleged seizure of Zeus without a warrant. (Id. at 10.) 13 Plaintiff’s first claim also asserts that she is entitled to damages. (Id. at 11.) Thus, to the extent 14 Plaintiff’s first claim seeks damages, as opposed to declaratory or injunctive relief, and is 15 predicated upon an alleged Fourth Amendment violation, Younger abstention would not apply to 16 that portion of the claim. 17 The Court recognizes this case presents difficult facts and is sympathetic to the situation at 18 hand, especially considering there appear to be less drastic options available. However, Younger 19 abstention is mandatory, and it requires dismissal of claims for injunctive relief. See Canatella, 20 404 F.3d at 1117; Herrera, 918 F.3d at 1042; San Remo Hotel, 145 F.3d at 1103. Therefore, the 21 Court DENIES Plaintiff’s motion for TRO and STAYS the instant action with the exception of 22 Plaintiff’s first claim but only to the extent the first claim seeks damages and is predicated on an 23 alleged Fourth Amendment violation. 24 IV. CONCLUSION 25 For the foregoing reasons, the Court hereby DENIES Plaintiff’s Motion for Temporary 26 Restraining Order. (ECF No. 3.) The Court STAYS the instant action with the exception of 27 Plaintiff’s first claim but only to the extent the first claim seeks damages and is predicated on an 28 alleged Fourth Amendment violation. 1 The claims that the Court stays in the instant Order shall remain stayed until the Court 2 | orders otherwise. The parties shall file a Joint Status Report notifying the Court not later than 3 | thirty (30) days from the conclusion of the underlying state proceedings and explaining why 4 | Younger abstention is no longer warranted. 5 IT IS SO ORDERED. /) 6 | DATED: September 28, 2022 “ \ / of Lr

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