JILL BURNELL, Petitioner, v. MARlN HUMANE SOCIETY, Respondent.

No. CIV 1300072

EX PARTE PETITION FOR WRIT OF MANDATE COMPELLING RETURN OF IMPROPERLY SEIZED ANIMALS

TO THE ABOVE-ENTITLED COURT:
Petitioner, JILL BURNELL, petitions this Court for a writ of mandate pursuant to C.C.P. §I 085 and by this verified petition alleges as follows:

1. At all times mentioned in this petition, I have been a resident of Marin County and the person rightfully entitled to possession of the stallions and mares that Respondent, Marin Humane Society, has seized or threatened to seize from my property in Marin.

2. I am an experienced horse owner and breeder and provide good care for the horses at my ranch. I pay close attention to their condition and ensure that they have adequate amounts of food and clean water, are blanketed as necessary and farrier and veterinarian care. I regularly have licensed veterinarians and farriers inspect and care tor the horses, and have them come to the property as needed if there appears to be a problem with any of the horses. I follow my veterinarian and farrier’s advice on the proper care, treatment and feeding of the horses.

3. At all times mentioned in this petition, Respondent, Marin Humane Society, has been “the animal services agency for [Marin] county,” charged with administering the provisions of the Marin Municipal Code Chapter 8.04-Anirnal Control·and

the laws of the state of California relating to the care, treatment and impounding of animals, and specifically to issue citations and to make arrests for violations of the provisions of this chapter and related state laws” and “take up, impound and
safely keep any animals where authorized under the provisions of [Chapter 8.04] or the laws of this state.”

(Marin Muni. Code§§ 8.04.110; 8.04.120 (b) and (c).)

4. Respondent is further and independently empowered by the State of California, in the
County located

… enter into a contract … with the county … to enforce the provisions of laws of
this state for the prevention of cruelty to animals, or arresting or prosecuting
otfenders thereunder, or preventing cruelty to animals [and] .. , may perform those
actions in the absence of a contract with a city, city and county, or county.

(California Corporations Code§ 14501).

joint or concerted action of the state and one or more local agencies” (Gov .. Code, § 11410.30, (c))
or “quasi-public entity”(§ 11410.60) subject to the adjudicative proceeding reqnirernents of the
California Administrative Procedures Act.

6. Under state law, the Humane Society is vested with limited authority to seize animals and
conduct hearings (pre-seizure or post seizure), “when the officer has reasonable grounds to
believe that very prompt action is required to protect the health or safety of the animal” if proper
notice is provided. In order to meet the minimal statutory requirements (themselves deficient)

that notice must timely specify the “authority and purpose for the seizure.” (Penal Code § 597 .l
(t)(l )(C), (g)(1)(C)).

7. On December 27, 2012, Respondent’s animal control officers carne onto my property
without my consent or a warrant, and seized two horses, a stallion named Romantic Star and a
chestnut mare named Pokey. At that time, Sgt. Michelle Rogers served me with the NOTICE
SEIZURE OF ANIMAL(S) for the two horses that were seized and removed from my property
that day, a true and correct copy of which is attached as Exhibit A.

8. On December 27, 2012, Sgt. Rogers also served me with a NOTICE OF INTENT TO
SEIZE ANIMAL(S) for a yearling named “Blaze”, a true and correct copy of which is attached

as Exhibit B.

9. On January 4, 2013, Respondent’s officer’s returned and seized two more horses, both
mares. Sgt. Michelle Rogers served me with a NOTICE SEIZURE OF ANIMAL(S) for the two
mares that were seized and removed from my property that day, a true and correct copy of which
is attached as Exhibit C. Respondent has seized four horses and has threatened to seize
additional horses.

10. No lawful basis exists for the seizure of the horses. None of the horses are or were at risk
or in distress due a failure to provide care. All of the horses are receiving and have been
receiving adequate care.

11. Respondent’s unwarranted seizure of horses from Petitioner has resulted in significant
economic and reputational injury to Petitioner and her business, both direct and indirect. The
unwarranted seizures have resulted in negative press coverage and discussion forum postings
horse-related internet websites. Sgt. Michelle Rogers has posted negative and inaccurate
comments about Petitioner and the condition of the horses on a horse-related website using a
pseudonym notwithstanding Respondent’s ongoing investigation of Petitioner and her horse
breeding business. Petitioner has received multiple threats and fears for her personal safety and
the safety of the horses.

12. On January 2, 2013, Petitioner’s counsel both orally and in writing requested that
Respondent provide him copies of all writings concerning Petitioner, her horse breeding business,
the seized horses, the horses Respondent had identified for seizure from Petitioner, the subject
property, the standards and training for Respondent’s animal control field officers regarding
County and State of California requirements for horses related to proper food, drink and shelter,
the subject property, and training and standards for field officers regarding public comment on
ongoing investigations. Attached hereto as Exhibit F are true and correct copies of e-mail

correspondence between Petitioner’s counsel, Robert Weems, and Captain Cindy Machado,
Director of Animal Services.

13. Respondent has not provided Petitioner with any discovery and has indicated that
Petitioner has no right to compel the disclosure of any evidence of any kind. See Exhibit E.
Respondent has not informed Petitioner of who will act as the hearing officer, whether Petitioner
will be allowed to present evidence or any information about the rules or procedures that will be
used to conduct the hearing.

14. Petitioner timely requested post-seizure administrative hearings in response to the seizure
notices attached as Exhibits A and C. Respondent scheduled an informal hearing for today,
January 8, 2013 at 1:00 p.m.

15. The notices of seizure provided do not comply with the requirements of the seizure
statute and the scheduled hearing fails to meet the requirements of California Administrative
Procedures Act or due process.

16. The horses seized from Petitioner by Respondent are worth many times more than $1,000.

WHEREFORE, Petitioner prays that

1. An writ of mandate or other appropriate order be issued, ex parte, ordering Respondent to
return the horses seized from Petitioner, directing Respondent to conduct a formal administrative
hearing that complies with the Government Code, to not enter upon Petitioner’s property without
court order or other appropriate legal process, to pay the costs of costs of suit herein, and for
such further relief as the Court deems proper.

Dated: January 8, 2013

VERIFICATION

I, Jill Burnell, do hereby declare:

I am the Petitioner in this proceeding. The facts alleged in the above petition are true of my own knowledge, except as to those items alleged on information and belief, and as to those I believe them to be true. I declare under the penalty of perjury, under the laws of the State of
California that the above is true and correct, and that this declaration is executed on January 8, 2013, at San Rafael, California.

Jill A Burnell