Metropolitan News-Enterprise


Friday, August 25, 2009


Page 3


Court Revives Taxpayer Action to Block Elephant Exhibit at L.A. Zoo


By Sherri M. Okamoto, Staff Writer


This district’s Court of Appeal has revived a taxpayer action seeking an injunction closing the elephant exhibit at the Los Angeles Zoo and enjoining construction of a new Pachyderm Forest attraction.

Div. Eight held that Robert Culp and Aaron Leider had raised a triable issue of material fact as to whether the physical characteristics of the existing and proposed elephant habitats would subject the animals to mistreatment in violation of Penal Code Sec. 596.5 and whether the expenditure of public funds to operate the exhibits in such a manner would constitute an illegal expenditure of taxpayer monies.

The panel reversed Los Angeles Superior Court Judge John Shepard Wiley’s grant of summary judgment in favor of the zoo’s director and the city in an unpublished decision Wednesday.

The Los Angeles Zoo has maintained an elephant exhibit since 1966, and the City Council three years ago approved construction of the $42 million Pachyderm Forest attraction.

According to the zoo’s website, construction on the new exhibit is scheduled to be complete next summer. The new elephant habitant will cover more than six acres, making the enclosure one of the largest of any urban zoo in the county, the zoo said.

Culp, the star of the 1960s TV series “I Spy,” and Leider, a real estate agent, filed suit against the zoo director and the City of Los Angeles in 2007 asserting that the defendants were engaging in illegal expenditures, waste of public funds and injury to public property by abusing the zoo’s elephants. 

They accused the zoo of subjecting its elephants to cruel and abusive treatment by providing inadequate space for the animals and by placing hard surfaces within the enclosure that caused the elephants to suffer arthritis, foot problems, and in some cases, premature death.  The new habitat would suffer from similar infirmities, the complaint said.

Arguing that Culp and Leider were not challenging illegal activity at the zoo, but rather contesting the city’s lawful discretionary spending and policy decisions, the defendants moved for summary judgment. They also insisted that no evidence supported the allegations that the zoo had abused its elephants or managed them unlawfully in any way.

Wiley granted the defendants’ motion, finding the conflict was not justiciable and presented issues that should be directed to public officials and voters rather than a judge.

Writing for the appellate court, Justice Tricia A. Bigelow rejected the defendants’ argument that the appeal was moot and declined to take judicial notice of documents from the City Council’s files purporting to show that no taxpayer monies would be used in the construction of the new elephant exhibit.

“Even if no taxpayer dollars were to be used in the construction of the Pachyderm Forest, appellants would still have standing to challenge alleged ongoing illegal expenditures in the operation of any existing exhibit,” Bigelow said.

Also, as the complaint “ha[d] less to do with construction expenditures than the operation of a new exhibit,” and the city gave no indication that taxpayer funds would not be used to operate the Pachyderm Forest once construction was completed, Bigelow reasoned that the appeal was not rendered moot by the apparent changes in the source of funding for the construction.

Turning to the substance of the appeal, Bigelow explained that the relief requested could only be granted “if the exhibits themselves, or the mere fact of their operation were ‘abusive behavior’ and thus, violated Penal Code section 596.5.”

As the allegations that the zoo was keeping the elephants in unfit and damaging enclosures was the only potentially illegal conduct that could be remedied by the requested injunctive relief, Bigelow focused on whether these assertions were sufficient to raise a triable issue of material fact as to any illegal expenditures.

She noted that Sec. 596.5 makes it illegal for an elephant manager or owner to engage in “abusive behavior towards the elephant,” and reasoned that “abusive behavior” could include the physical characteristics of the enclosure in which elephants are kept. 

“Whether keeping an elephant in any particular enclosure rises to the level of abusive behavior is of necessity a factually intensive inquiry that depends on the particularities of each case,” the justice added, concluding that Culp and Leider had offered sufficient evidence to raise a triable issue as to whether the current and proposed elephant exhibits would fall into this category of enclosure, which in turn raised a triable issue as to illegal government expenditures.

 Bigelow also said that the illegal expenditure claims are justiciable because Sec. 596.5 provides a legal standard by which the alleged governmental conduct could be tested.

“When there is no illegal conduct to enjoin, and no waste… the matter may be one of governmental discretion and the court properly declines to get involved,” Bigelow explained. However, she added, if the government’s conduct violates Sec. 596.5, “that takes the issue beyond one of mere governmental discretion.”  

Acting Presiding Justice Laurence D. Rubin and Justice Madeline Flier joined Bigelow in her decision.

David B. Casselman and Mark S. Gottlieb of Wasserman, Comden, & Casselman represented Culp while Deputy City Attorney John A. Carvalho represented the city.

The case is Culp v. City of Los Angeles, B208520.


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