FIRST AMENDED COMPLAINT - Horse Authority

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FIRST AMENDED COMPLAINT Case No. 3:14-cv-05635 JSC

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Robert C Weems (CA SBN 148156) Margaret M. Weems (CA SBN 164030) WEEMS LAW OFFICES 769 Center Blvd., PMB 38 Fairfax, CA 94930 Ph: 415.881.7653 Fx: 866.610.1430 [email protected] [email protected] Attorneys for Plaintiffs

JILL BURNELL and ALEX BURNELL

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JILL BURNELL and ALEX BURNELL, Plaintiffs, v. MARIN HUMANE SOCIETY, COUNTY OF MARIN, NANCY MCKENNEY, CINDY MACHADO, STEVE HILL, MICHELLE ROGERS, BRUCE WAGMAN, ALBERT BURNHAM, NATHAN KEEFER, DINA RICCI, and GENEVIEVE GHILOTTI Defendants.

Case No. 3:14-cv-05635 JSC FIRST AMENDED COMPLAINT FOR DAMAGES CAUSED BY DEPRIVATION OF RIGHTS (42 U.S.C. § 1983) AND OTHER OR RELATED CONDUCT REQUEST FOR TRIAL BY JURY

1. Now come plaintiffs, JILL and ALEX BURNELL (“Plaintiffs” or “BURNELLS”), adults

over the age of 18 years, married to one another in a shared domicile, at all times relevant herein

residents of Marin County, California and citizens of the State of California and the United States of

America, requesting a trial by jury. Plaintiffs were injured when four horses owned or cared for by

them were removed from their agricultural property by animal rights activists who claimed legal

authority under color of law promulgated by the County of Marin and the State of California to do

so, wrongfully and falsely claiming the horses suffered from abuse (lack of veterinary care) and

neglect (malnourished) subjecting them to financial loss, criminal prosecution and obluquy.

Case3:14-cv-05635-JSC Document46 Filed08/04/15 Page1 of 48

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PARTIES

Plaintiffs

2. At all times relevant to the matters alleged herein Jill and Alex Burnell owned and lived on

an approximately 35 acre, undeveloped agricultural property in the County of Marin, California (the

“Chileno Valley Road property”). The property is not visible from any public road. It is accessed

by a private dirt road. The property’s perimeter is safely and properly fenced. The Chileno Valley

Road property is at higher ground than most surrounding properties, with mostly level to slightly

rolling terrain. It is predominately grassy/wild meadow. There is a water well and electronic pump

that provides potable water to the property. Since October 2012, Plaintiffs have added internal

pasture fencing, three walk in sun shelters, wind breaks, and stallion paddocks which conform to

industry standards and of appropriate height and construction for their intended uses. There is one

constructed building used as storage for feed and equipment, and several other semi-permanent

sheds and storage units used for like purposes. Plaintiffs live in a small travel trailer as full time

caretakers of horses kept on the agricultural property. The primary use of the property is an

agricultural one, maintaining breeding livestock. All of the plaintiffs’ uses of the property are

lawful. Plaintiffs had at least First Amendment and Fifth Amendment liberty and property interests

and/or fundamental vested right in their quiet enjoyment of their real and personal property, privacy

and reputations, and the full time companionship of horses and agricultural lifestyle, the Fourth

Amendment right to be free from unreasonable searches and seizures, Fifth and Fourteenth

Amendment rights to Due Process and an Eighth Amendment right to be free from excessive and

disproportionate fines.

3. Jill Burnell is engaged in the personal avocation and commercial professional venture of

breeding livestock for the equestrian discipline known as “Hunters.” In December 2012, she kept

and/or owned over 35 stallions, broodmares and their offspring at the Chileno Valley Road property.

The elite Hannoverian breeding stallion, Romantic Star, was developed by Jill Burnell through

expert breeding management and marketing to be particularly valuable as were the broodmares



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Devil’s Sis and Metsonized. Jill Burnell had an established client relationship with the owner of the

broodmare, Lucky Karma, which she considered economically and relationally advantageous.

4. Together with his wife, Alex Burnell was falsely and maliciously accused of neglecting the

horses maintained at the Chileno Valley Road property. He was subjected to unreasonable searches

and intrusion into his privacy and property interests. Prior to MHS and its agents’ accusations of

welfare concerns and animal cruelty or neglect, the Burnells’ household income was substantially

supported by profits from Mrs. Burnell’s horse breeding business. As a result of those accusations

and other conduct as alleged below, Mrs. Burnell’s breeding business is no longer profitable and she

is no longer able to contribute to their joint income. In addition, Alex Burnell considered the

broodmare, Metsonized, as one of his pets through a bond established over a decade that the mare

had lived on the Burnells’ home property and having had occasion to care for her specifically over

that long period of association.

5. Beginning at a time unknown to Plaintiffs but not later than the date of the filing of this

complaint, Defendant Marin Humane Society (“MHS”) and/or the other defendants named herein,

either individually or collectively, acted to destroy Jill Burnell’s livestock breeding business and/or

to interfere with Jill and Alex Burnells’ liberty, personal and/or real property rights guaranteed by the

Constitution of the United States by engaging in some or all of the following activities:

5.1. Trespassing upon private land in Marin County owned by the Burnells and used by them for

raising breeding livestock;

5.2. Beginning December 27, 2012 and continuing through the present time, seizing and

spiriting away, and refusing to return valuable livestock from the Burnell property,

especially the valuable breeding stallion Romantic Star and the broodmares Devil’s Sis,

Metsonized and Lucky Karma;

5.3. Denying access to information timely or otherwise regarding the medical care given to

and/or the condition and location of Burnells’ seized livestock;

5.4. Impairing the market value of Plaintiffs’ breeding livestock;



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5.5. Impairing the health, breeding value and capacity of Plaintiffs’ breeding livestock;

5.6. Interfering with contracts for the purchase or sale of breeding livestock and/or their

offspring;

5.7. Making false and/or derogatory statements with reckless disregard for their truth or

falsity concerning the Burnells, their property and the BURNELLS’ livestock

management practices and quality of Plaintiffs’ breeding livestock;

5.8. Inciting others to engage in untrue and malicious gossip or to believe untrue and

malicious gossip regarding Burnells’ livestock and livestock management practices;

5.9. Interfering with Plaintiffs advantageous personal, professional and commercial

relationships;

5.10. Using the pretext of an animal “abuse” investigation to raise money and misappropriate

personal and business information of Plaintiffs;

5.11. Abusing legal process, inter alia, by making material false statements, false reports and/or

retaliating against the Plaintiffs when they invoked their rights, inter alia, to privacy and

to due process;

5.12. Making material false statements in official reports, withholding evidence, and/or

falsifying evidence clearly in violation of establish law which reports, withheld and

falsified evidence were a deliberate course of conduct intended to initiate and to maintain

malicious administrative, criminal and civil proceedings and thereby extort Plaintiffs’

compliance with unjust demands;

5.13. Claiming authority to engage in the above activities under California law, namely Penal

Code section 597.1 (itself constitutionally insufficient) and Marin County Municipal

Codes, especially Chapter 8 (also constitutionally insufficient);

5.14. Claiming authority to engage in activities reserved to law enforcement and/or to Humane

Officers as defined by California State Law,

5.15. Subjecting Plaintiffs to unreasonable searches and seizures, deprivation of property and



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beneficial associations in violation of their First, Fourth, Fifth and Fourteenth

Amendment rights, and subjecting Plaintiffs to unconscionable, cruel and unusual, fines

and penalties that offend at least the Fifth and Eighth Amendments of the Constitution of

the United States, and

5.16. Other corrupt and/or unlawful and/or negligent and/or intentional conduct purposed to

alienate the Burnells from real and personal property, their good reputations and

livelihood, and to intimidate them from enjoying protections and remedies at law in the

agency, civil and criminal courts as guaranteed by the Constitution of the United States.

Defendant County

6. Defendant COUNTY OF MARIN (“COUNTY”) is a geographical and political subdivision

of the State of California, and is a general law county as defined by the California State Constitution.

It entered into a contract with Defendant MARIN HUMANE SOCIETY (“MHS”) for certain animal

related services. MHS (and its employees) acted under color of law which deprived Plaintiffs of

particular rights under the United States Constitution. MHS (and its employees) acted pursuant to an

expressly adopted official policy or a longstanding practice or custom of COUNTY. COUNTY’s

official policy, practice or custom created the “Color of law” for MHS (and its employees) who acted

pursuant to those expressly adopted official policies or a longstanding practice or custom of

COUNTY. COUNTY’s official policies, rules, longstanding practice or custom created an improper

delegation of authority to enforce state law, specifically State of California Penal Code section

597.1. COUNTY covertly or overtly supported the MHS’ Defendants’ (MHS Defendants particularly

identified below) unlawful conduct. COUNTY knew or should have known that MHS relied on

COUNTY’s policies and rules to avoid compliance with state and federal law especially in its failure

to designate appropriate persons to fulfill its obligations under the County contract and especially in

the means it uses to cause forfeitures of accused’s personal property, namely pets and livestock, in

this case specifically the Burnells’ livestock, without correcting or amending its policies, regulations

or conduct of its vendor.



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MHS Defendants

7. Defendant MARIN HUMANE SOCIETY (“MHS”) is a private California registered 501(c)

(3) non-profit organization, incorporated in the State of California with its principal place of business

located in Novato, California. In addition, at all times relevant herein, MHS is independently

empowered by the State of California, in the County located to

… 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 offenders 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).

8. MHS has been designated as “the animal services agency for [Marin] county,” charged with

administering the provisions of the Marin Municipal Code Chapter 8.04-Animal 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).) MHS is not a “local public agency”

(e.g. CA Gov’t Code §6500) or acknowledged as a local public agency by the County of

Marin under the laws of the State of California. “In addition to our role as a non‐profit,

private animal organization, MHS is responsible for upholding county and municipal animal

services ordinances through a Joint Powers Agreement contract with the County of Marin.”

The redundancy is awkward but significant. MHS is not operated as a joint power authority.

MHS is not recognized on the Roster of Public Agencies nor is it a Joint Powers Authority.

(CA Gov’t C. § 6503.5 (JPA filing requirement); Gov’t C. § 946.4(a)(1) (Roster public

agencies).) Although acting under color of law pursuant to the authority granted by the Marin

Municipal Code, MHS employees are no more law enforcement officers than private security

guards or patrol specials (another anachronistic holdover from days of vigilance societies).



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9. MHS has celebrated its achievements rescuing animals from the “meat trade” in an

international collaboration, http://www.marinhumanesociety.org/atf/cf/%7B1CBFF72E-B60C-

4D1E-ABA7-4489FE5A93D6%7D/KoreanDogsPressRelease.pdf (last viewed July 20, 2015), has

rescued street dogs from Saudi Arabia, refers to animal owners as “pet guardians” disregarding their

property interests and entitlements, and endeavors to educate MHS’ followers about the dangers to

cats and dogs of fireworks, travelling, dangers to pets when it is too hot, too cold, if a pet is too thin,

and whether pets are obese, if pets are deserving a blood transfusion, or are problem barkers. It

promotes saving turkeys from the holiday table, and protecting rats and mice from being fed to

captive snakes, among other works.

10. MHS exercises its “animal services” responsibilities as an independent contractor to and not

as a local public agency of the County of Marin. By regulation, custom and practice within the

County of Marin “Animal Services” officers are accorded with the full rights and authority reserved

to Humane Officers (CA Corp. Code 14501, et seq) and peace officers (compare, CA Penal Code §

830 et seq. and Marin Muni. Code § 8.04.110), including testifying in judicial proceedings as peace

officers under “Prop 115” (Penal Code § 872) (even though they have not received training certified

by California Commission on Peace Officer Standards and Training), qualified and by permitting

employees to hold themselves out to the public as employees of the Marin Sheriff’s Office and/or the

County of Marin even though that is untrue. MHS merged its private animal rights activism and

fundraising with its Animal Services duties and limitations. It created a “criminal” investigation of

the Plaintiffs through its Animal Services division, which its private fundraising arm then used to

promote private fundraising for its animal rights activities. MHS also assumes to itself the power to

substitute its animal husbandry opinions for those of responsible livestock owners and their licensed

veterinarians because MHS assumes the authority to itself as the “animal services agency” that is

own mere say so “is the law.” Further confounding is that MHS is not lawfully authorized to

establish welfare standards, licensing or otherwise regulating “livestock establishments” under

Marin County Ordinances. (Marin Muni. Code §§ 8.04.020(d)(3); 8.04.240) Upon information and



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http://www.marinhumanesociety.org/atf/cf/%7B1CBFF72E-B60C-4D1E-ABA7-4489FE5A93D6%7D/KoreanDogsPressRelease.pdf

http://www.marinhumanesociety.org/atf/cf/%7B1CBFF72E-B60C-4D1E-ABA7-4489FE5A93D6%7D/KoreanDogsPressRelease.pdf

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belief, the conduct toward BURNELLS reflects a standing pattern and practice by MHS of making

false and reckless statements in order to create a pretext under which to seize animals from private

individuals.

11. Beginning in or about November 24, 2012, MHS identified itself as being willing “to do

something about” Jill Burnell on a loosely moderated Internet forum of interest to individuals who

participate in Hunter breeding. Defendant Michelle Rogers suggested that the issue was an absence

of “shelter” and “that was the law” although there is no law in the County of Marin or State of

California that defines or requires any particular form of shelter for breeding livestock living in

pasture. On December 27, 2012, MHS seized two horses from the Burnell property claiming falsely

that a severely injured horse had not received veterinary attention and that the other horse was

“starving.” On the basis of these false claims MHS called for the public to make financial donations

to it suggesting the funds would be used to care for the Burnell horses. On January 4, 2013, MHS

seized two more horses from the Burnell property, published that fact, and called for the public to

make donations to it. MHS collected tens of thousands of dollars in response to these public

appeals and an unknown amount of “in kind” (i.e., horse equipment) and professional services

donations as a result of persecuting the Burnells. Further, MHS’ blending of its private interest with

its poorly defined public function worked to penalize Plaintiffs and to prevent them from exercising

rights normally allotted to the accused. MHS at the moment of their public accusation of Plaintiffs --

presented them to the world as “guilty”, rightfully subject of community opprobrium, liable for

punitive fines and penalties, and prohibited from traditional rights and protections while defending

themselves in accord with the due process, including but not limited to the right to be free from

double jeopardy, comment on invoking 5th Amendment privileges, to have proper notice of the

claims made against them, automatic disclosures of exculpatory materials, venue protections, and to

confront their accusers. They doubled down with a show trial, declared themselves correct, and

since that time have vigorously resisted independent review of their administrative findings.

12. Defendant NANCY McKENNEY (“McKENNEY”) is the Chief Executive Officer and a



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supervisory employee of the Marin Humane Society. McKENNEY participated in or authorized

fundraising activities which misappropriated the likenesses of BURNELLS and their animals,

authorized or caused the facts of the Marin Humane Society investigation of the BURNELLS and

fundraising for the Marin Humane Society to be misrepresented to the public, and authorized or

failed to act to ensure that Marin Humane Society’s policies, practices and procedures (including

training and supervision of employees) were lawful and/or non-negligent. McKENNEY acted under

color of law to deprive Plaintiffs of particular rights under the United States Constitution and/or

directed her subordinates in the acts that deprived Plaintiffs of these rights. Alternatively, defendant

set in motion a series of acts, knew and/or reasonably should have known that her subordinates were

engaging in acts that would deprive Plaintiffs of their rights and failed to prevent her subordinates

from engaging in such conduct.

13. Defendant CINDY MACHADO (“MACHADO” or “Captain Machado”) is a supervisory

employee of the Marin Humane Society who if not acting solely within the scope of her employment

as authorized by law, engaged in activities for her own purposes that injured the Plaintiffs.

MACHADO impersonated a Humane Officer (which she is not) which injured the Plaintiffs; further

she holds herself out as a “peace officer” employed by COUNTY which she is not. She participated

in warrantless searches of Plaintiffs’ property and without Plaintiffs’ consent and she participated in

warrantless seizures of Plaintiffs’ breeding livestock without consent or exigency. MACHADO

caused a criminal referral of Jill and Alex Burnell to the Marin County District Attorney’s Office in

retaliation for Jill Burnell’s failure to acquiesce to MHS and its employees’ conduct, including inter

alia demanding to search the Chileno Valley Road property, demanding to license and regulate

Plaintiffs’ activities on the Chileno Valley Road property, interfering with Plaintiffs’ relationships

with the horses owned by and cared for by them, publishing private facts about the Plaintiffs and

their domicile, demanding to impose arbitrary animal husbandry requirements on Plaintiffs

(including those proposed in a document entitled “Minimum Standards of Horse Care in

California”), interfering with Plaintiffs’ veterinarians, stealing away Plaintiffs’ livestock, assessing



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Plaintiffs with arbitrary and excessive fines and fees, and retaliating against Plaintiffs for pursuing

relief in the civil courts, including support for a civil conversion action demanding the return of

Romantic Star. MACHADO directed that no information was to be given to the BURNELLS or their

attorneys regarding the location, care or condition of the BURNELLS’ horses. MACHADO falsely

reported either maliciously and intentionally or with reckless disregard for the truth that Jill Burnell

was not in compliance with her probation conditions, despite the fact that Jill Burnell is in

compliance and in fact receives excellent reports, for the purpose of undermining full and fair

administrative hearing proceedings, to intimidate and to harass the BURNELLS and to increase the

BURNELLS costs to recover their horses. Upon information and belief, the conduct toward

BURNELLS reflects a standing pattern and practice by MACHADO of making false and reckless

statements in order to create a pretext under which to seize animals from private individuals.

14. MACHADO acted under color of law to deprive Plaintiffs of particular rights under the

United States Constitution and/or directed her subordinates in the acts that deprived Plaintiffs of

these rights. Alternatively, defendant set in motion a series of acts, knew and/or reasonably should

have known that her subordinates were engaging in acts that would deprive Plaintiffs of their rights

and failed to prevent her subordinates from engaging in such conduct.

15. Defendant STEVE HILL (“HILL” or “Lieutenant Hill”) is an employee of the Marin

Humane Society who if not acting solely within the scope of his employment as authorized by law

engaged in activities for his own purposes that injured Plaintiffs. HILL impersonated a Humane

Officer (which he is not) which injured the Plaintiffs; further he holds herself out as a “peace officer”

employed by COUNTY which he is not. HILL received a December 18, 2012 complaint from the

Plaintiffs concerning MHS’ incitement of negative Internet comment about Jill Burnell and

harassment of Jill Burnell by his subordinate MHS employee, Michelle Rogers. He participated in

warrantless searches of Plaintiffs’ property and without Plaintiffs’ consent and he participated in

warrantless seizures of Plaintiffs’ breeding livestock without consent or exigency. HILL has

admitted under oath that he concurred with all of Defendant Michelle Rogers’ conduct. MHS, HILL



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and MACHADO failed to train, supervise and/or correct ROGERS even when on notice that

ROGERS performed her duties negligently, recklessly and/or incompetently or in a manner that

otherwise revealed her unfitness and unsuitability for the position of Animal Services officer.

16. HILL acted under color of law to deprive Plaintiffs of particular rights under the United

States Constitution and/or directed his subordinate in the acts that deprived Plaintiffs of these rights.

Alternatively, defendant set in motion a series of acts, knew and/or reasonably should have known

that his subordinate was engaging in acts that would deprive Plaintiffs of their rights and failed to

prevent her subordinates from engaging in such conduct.

17. Defendant MICHELLE ROGERS (“ROGERS” or “Field Sergeant Rogers”) is an employee

of the Marin Humane Society, who if not acting solely within the scope of her employment as

authorized by law, engaged in activities for her own purposes. ROGERS impersonated a Humane

Officer (which she is not) which injured the Plaintiffs; further she holds herself out as a “peace

officer” employed by COUNTY which she is not. She participated in warrantless searches of

Plaintiffs’ property and without Plaintiffs’ consent and she participated in warrantless seizures of

Plaintiffs’ breeding livestock without consent or exigency. ROGERS had a previous employment

history as a failed manager of commercial and private horse breeding enterprises both as an

employee and on her own behalf. ROGERS was acquainted with Jill Burnell at least from a time

that Mrs. Burnell declined to purchase a horse from her. Although never licensed by the State of

California, ROGERS also held herself out as Veterinary Technician, in publicly available social

media accounts and elsewhere.

18. ROGERS and HILL have sought to enforce against the BURNELLS purported (but untrue)

planning code violations. They falsely published photos of holes in the ground on the Chileno

Valley property and intentionally falsely stated that those holes were purposed to hide human waste.

ROGERS sought out and encouraged neighboring property owners to make specific complaints

about the BURNELLS for various planning code and zoning violations (even though there were

none) to intimidate and harass the BURNELLS as well as to bolster MHS’ “criminal” investigation



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of them. ROGERS enlisted neighboring property owners to surveil and to report to her the vehicle

registration information of visitors to the Chileno Valley Road property for the purpose of

intimidating and harassing clients, friends, relatives, veterinarians, farriers and members of the

BURNELLS’ legal team. ROGERS misrepresented her position to be a Sheriff and to be a

COUNTY employee to a storage container company and ordered the removal of a storage container

from the BURNELLS’ property to harass and intimidate the BURNELLS and to interfere with their

relationship with that vendor. MHS and ROGERS maliciously and/or with reckless disregard for the

truth reported that the BURNELLS were prohibited from purchasing any horse feed supplies and

veterinary services and misrepresented BURNELLS’ credit management decisions to vendors and

the public to intimidate and to harass the BURNELLS and to interfere with their care for their

horses. MHS and ROGERS have sought to redistribute the BURNELLS’ horses to individuals who

may have been former owners or they believed would be better “guardians.” ROGERS offered

assistance to any individual who wished to make a claim on any horse at the Chileno Valley Road

property. ROGERS and MACHADO threatened individuals who supported the BURNELLS (or

would not cooperate in MHS’ campaign to discredit and ruin the BURNELLS) with criminal

prosecution, mockery and public shaming. ROGERS purported to investigate a claim that the

BURNELLS had engaged in elder abuse although ROGERS did not do more than publish scurrilous

gossip with a reckless disregard for its truth or falsity. ROGERS falsely and recklessly reported that

BURNELLS’ horses were stripping trees on the property to feed themselves even though she knew

or should have known from observation that the trees had been trimmed to better accommodate

horses sheltering under them. ROGERS falsely and recklessly reported that BURNELLS horses

were starving or malnourished although she performed none of the ordinary field testing (including

drawing blood and recording normal behaviors and movement of the horses) that would clearly

demonstrate that the horses were in good health, medically stable and not starving and not

malnourished. ROGERS falsely and recklessly claimed that the BURNELLS did not provide feed

other than pasture grass to their horses although she had never observed an absence of stored feed



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(hay and other types of supplemental horse feed) on the Chileno Valley Road property. Upon

information and belief, the conduct toward BURNELLS reflects a standing pattern and practice by

ROGERS of making false and reckless statements in order to create a pretext under which to seize

animals from private individuals.

19. Defendant BRUCE WAGMAN (“WAGMAN”) at all times relevant to this Complaint is an

attorney and a resident of the City and County of San Francisco. He is not a veterinarian or a farmer.

WAGMAN has served as Chief Outside Litigation Director for the Animal Legal Defense Fund. He

opposes the commercial use of animals, including but not limited to entertainment, biomedical

research, and food production. He is opposed to the human consumption of meat or wearing animal

sourced products, like leather, as clothing. He is opposed to commercial breeding of animals. He has

been a member of the Marin Humane Society Board of Directors of the MHS. He is MHS’

authorized spokesman and other times acted outside of any limited authority he may have had as a

volunteer or director of MHS, acting as a private individual and purported animal rights activist.

Upon information and belief, WAGMAN caused MHS to hire individuals with personal and political

affiliations with himself (and the ALDF) to administer the reporting and referee and covertly or

overtly directed those individuals in such a manner as to ensure the Plaintiffs would not have a fair

hearing in any MHS controlled venue. WAGMAN caused disruption with outrageous and

unprofessional conduct during a January 8, 2013 administrative hearing for the purpose of harassing

and intimidating Plaintiffs to such an extent the Plaintiffs were caused to incur the expense of hiring

a private videographer and court reporter to restrain such conduct at a January 24, 2013 hearing. He

caused unnecessary financial burdens and delay to Plaintiffs by interfering with the creation of

complete and accurate administrative hearing records, for example by removing exhibits from the

record at administrative hearings. He falsely represented to the public that the Plaintiffs’ horses were

“safe and sound” in the care of MHS even though he knew or should have known that at least two of

their horses in MHS’ care were unsound (overweight, lame and/or in pain requiring medication) as a



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result of MHS’ care.1 WAGMAN has caused untrue statements to be published concerning the

Burnells in at least Chronicle of the Horse (COTH), RateMyHorsePro.com, and The Horse

(magazine). In 2014, in violation of the confidentiality terms of a judicial settlement offer and his

professional responsibility as a member of the California State Bar, WAGMAN as MHS’

spokesperson claimed “We're very happy [Jill] was convicted of animal cruelty…As often happens

in these cases, it’s the symbol of the fact that animal cruelty was committed on that property. That

there was only count doesn’t mean she didn’t do everything she was charged with. It was done to

expedite the judicial process." He has advertised MHS’ plan to distribute the Plaintiffs’ horses and

not to return Plaintiffs’ horses to them in publications of interest to the equestrian services’

consumer, including former owners of the seized horses, competitors, clients and associates of the

Plaintiffs.

20. Defendant ALBERT BURNHAM (“BURNHAM”)2 is a resident of the County of Marin. He

has served as a County Hearing Officer appointed by the Marin County District Attorney Edward S.

Berberian, Jr. Mr. Burnham is not a California licensed attorney (and never has been) and as such is

not-qualified or eligible to serve as a County Hearing Officer. (CA Gov’t Code § 27724). Mr.

Burnham intentionally or negligently failed to disclose to COUNTY that he had never been licensed

to practice law in the State of California, and was thus ineligible for the appointment as County

Hearing Officer. BURNHAM thereafter held himself out as a lawfully appointed County Hearing

Officer and hiding the false pretenses underlying his appointment. MACHADO hired BURNHAM

as its 597.1 Hearing Officer in the Burnell matter in January 2013 stating that the appointment was

made because he was a County Hearing Officer. The appointment may also be explained because

BURNHAM had never ruled against MHS in any seizure hearing before him for five years or longer

and MHS and MACHADO paid him to do so. MHS used the finding of the Haas violation in the

1 Devil’s Sis subsequently died from complications after colic surgery while in MHS’ care. 22 On July 6, 2015, BURNHAM was dismissed with prejudice from this action on a finding of

absolute judicial immunity. Dkt No. 40 at 6.



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appointment of BURNHAM to continue to delay the return of the BURNELLS’ horses to them and

to continue to assess daily fines and other financial penalties for the care of the horses MHS refused

to return.

21. Defendant NATHAN KEEFER (“KEEFER”) is a veterinarian licensed by the State of

California to practice veterinary medicine. He is not an equine veterinary specialist. Upon

information and belief, Dr. Keefer’s residence and primary place of business are located in Sonoma

County. Both the Burnells and MHS have been clients of Dr. Keefer and his veterinary practice.

MHS has an ongoing business relationship with KEEFER and the veterinary practice of which he is

a co-owner. He participated in warrantless searches of Plaintiffs’ property and without Plaintiffs’

consent and he participated in warrantless seizures of Plaintiffs’ breeding livestock without consent

or exigency. Jill Burnell and KEEFER had a pre-existing dispute between them concerning her

complaint to his supervisor that he failed to provide competent veterinary service for her horse

suspected of abdominal pain. KEEFER informed ROGERS that he was not the appropriate person

to evaluate Plaintiffs’ horses on December 27, 2012. ROGERS demanded that KEEFER accompany

her to the Plaintiffs’ property falsely stating that there were injured horses on the Burnells’ property

that had not received veterinary care. On December 27, 2012 while at Plaintiffs’ Marin County

property, KEEFER failed to examine properly any horse present and failed to preserve evidence of

the Plaintiffs’ horses’ good condition and did not make an accurate, contemporaneous medical record

of his examination as his license requires him to do. KEEFER knew or should have known that

ROGERS had an improper purpose calling him to the Plaintiffs’ property, not to provide veterinary

care, not to provide sound clinical judgment, not to create an accurate medical record, and only to

interfere with Plaintiffs’ own veterinarian’s access to the horses. Once informed that the Burnells’

horses were under veterinary care, KEEFER should have left the property; as he has acknowledged

previously, his purpose and authority to be at the property or offer opinions regarding the Burnells’

horses was at best murky. KEEFER knowingly and voluntarily allowed his presence to provide a

patina of legitimacy to an otherwise unlawful and malicious endeavor by the other MHS Defendants.



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22. Defendant DINA RICCI (“RICCI”) is an adult person who upon information and belief

resides in Sonoma County. RICCI has no access to the Burnells’ Marin County property or horses.

RICCI has never seen the Chileno Valley Road property or the horses on it. RICCI intentionally

coordinated a series of false reports concerning the care and condition of the Burnells’ horses with

ROGERS beginning at a time unknown but not later than October 1, 2012 through December 27,

2012 to create “evidence” that Plaintiffs were unable or unwilling to provide necessary care for their

horses during the fall and winter of 2012, but specifically on December 27, 2012 and for the purpose

of redistributing BURNELLS’ horses to others. RICCI made false and/or malicious reports to

ROGERS regarding Jill Burnell, her mental health, business, horses and person that were intended to

and did cause embarrassment, and other personal and commercial injury. Together, RICCI and

ROGERS undermined the personal and business relationship between Jill Burnell and Genevieve

Ghilotti to collect personal information about Plaintiffs and Jill Burnell’s horse breeding business to

which MHS otherwise would not have access. MHS withheld evidence of RICCI’s actual

communications with ROGERS and GHILOTTI from the administrative and court hearings which

were exculpatory of the accusations directed specifically at Jill Burnell and also used to support the

criminal charges against Alex Burnell.

23. Defendant Genevieve Ghilotti (“GHILOTTI”) is an adult person who upon information and

belief resides in Sonoma County. GHILOTTI is also engaged in the business of breeding horses for

the Hunter discipline and a (formerly) close personal friend, competitor and sometimes client of Jill

Burnell. Prior to December 26, 2012, GHILOTTI had been to the Chileno Valley Road property one

time, in or about September 2012, when she transported two horses from the Burnells’ former home

in Sonoma County to their new property in Marin County. GHILOTTI owes money to Plaintiffs for

services and goods provided to her for which she never paid fully. When Plaintiffs sought repayment

through an exchange of construction materials and the transport of horse feed, GHILOTTI first

agreed to provide those materials, but delayed delivery. GHILOTTI coordinated the delay in

delivery with MHS and RICCI to create “evidence” that Plaintiffs were unable or unwilling to



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provide necessary care for their horses and for the purpose of redistributing BURNELLS’ horses to

others. GHILOTTI made false and/or malicious reports to RICCI and ROGERS regarding Jill

Burnell, her mental health, business, horses and person. GHILOTTI’s false reports of Plaintiffs’

private information gained through a confidential relationship were intended to and did cause

embarrassment, and other personal and commercial injury to Plaintiffs. Unaware that MHS,

GHILOTTI, RICCI and ROGERS were preparing a campaign to remove her horses from her, on

December 26, 2012, Jill Burnell called GHILOTTI for assistance in connection with a stallion fight;

shortly after arrival, GHILOTTI urged that the stallions be shot dead and claimed the stallion’s

wounds were mortal and unrecoverable. GHILOTTI is not a veterinarian and her recommendation

was not warranted by the stallions’ actual medical condition. Jill Burnell did not follow

GHILOTTI’s advice (the stallions were bruised but healthy) but rather contacted a Steve Wood, a

licensed veterinarian and equine specialist, to examine the stallions who concurred with Jill Burnell’s

assessment. MHS withheld evidence of GHILOTTI’s actual communications with ROGERS and

RICCI from its administrative hearings which were exculpatory of the accusations directed

specifically at Jill Burnell and used to support the criminal charges against Alex Burnell.

AGENCY AND CONSPIRACY

24. Plaintiffs are informed and believe and thereon allege that, at all times herein mentioned,

each of the defendants sued herein if not acting in an individual capacity was the agent and

employee of each of the remaining defendants and was at all times acting within the purpose and

scope of such agency and employment.

25. Defendants and each of them knowingly and willfully conspired and agreed among

themselves to cause injury to Plaintiffs, to perform the acts and participate in the wrongful conduct

herein alleged.

JURISDICTION AND VENUE

26. This Court is the proper court to hear matters arising out of or involving a federal question.

This Court has supplemental jurisdiction over BURNELLs’ pendent state law claims (28 U.S.C. §



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1331). Venue is appropriate with this Court because all defendants live in California and a

substantial part of the events herein occurred within this district. The San Francisco/Oakland

Division is appropriate as both Plaintiff and Defendants do business in Marin County, and a

substantial part of the events herein occurred within Marin County.

COLOR OF STATE LAW

27. MHS targeted the Burnells based on internet gossip and personal animus inflamed by

ROGERS. It took Plaintiffs’ horses and refuses to return them under a variety of pretexts MHS

asserts are supported by local and state law, specifically Marin Municipal Ordinances and California

Penal Code section 597.1.

28. MHS is not a professional law enforcement agency nor does it comply with state rules that

might provide an exception for the use of Humane Officers to enforce California state animal

welfare laws. It cloaks its true private, political activist character with trappings of government

officials, especially those of true peace officers, by inter alia clothing its employees in paramilitary

uniforms and utility belts and providing them with weapons (asp batons) not permitted “civilians”,

driving marked vehicles with tax exempt government license plates (which it is not statutorily

qualified to do, CA Veh. Code § 5001) and light bars, and assigning titles of rank (Field Sergeant,

Lieutenant, Captain). MHS’ animal services officers are not POST certified.

29. In reality, MHS is a remnant of and has an institutional mindset left over from an era when

vigilante societies and the posse comitatus were the norm. Marin Humane Society Animal Services

Officer Responsibilities (as detailed in their own procedures manuals) are not limited to “animal

services.” They include:

Issue citations for infractions and misdemeanors

Detain, Mirandize, and facilitate arrests of animal crime violators

Interview witnesses and suspects

Investigate animal-related crimes and animal public safety issues

Write investigative reports



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Testify pursuant to Prop 115 Maintain evidence and its chain of custody

Testify in administrative hearings, civil and criminal court

Complete PC832 course (and firearms section for tranquilizer gun)

Qualify to carry asp baton and qualify annually

Qualify to carry O[leoresin]C[apsicum] [also known as “pepper’] spray and qualify annually

Wear a uniform and a badge

Receive appointment and get sworn-in through County Clerk

Complete a Live Scan background check and get an ID card issued by the Marin County Sheriffs’ Dept. 3 Acquire and coordinate arrest warrants

Receives information on car license plates, identification and driver's licenses

Work closely with other departments including police, fire, task force, coroner, Fish & Wildlife, Food & Ag., environmental health, health dept., zoning, adult protective services, child protective services, etc. Receive confidential critical alert emails for law enforcement officials

Graduate from Animal Law Enforcement Training Academy and Advanced Academy [N.B. organized and conducted by MHS and MACHADO] Disaster responders and provide leadership in Emergency Operations Center (EOC) during a disaster Mandatory reporters of child, adult and dependent adult abuse

Inspect commercial animal establishments and issue permits [commercial livestock breeders, like Jill Burnell are specifically exempted from this authority. Marin Muni Code, 8.04.020(d)(3); 8.04.240] Euthanasia training and ability to carry controlled substances

Respond to animal complaints, vicious animals, bite animals, loose animals, and animals in distress

3The Live Scan background check means only that the applicant’s fingerprints are run through

CA DOJ database and should not be confused with rigorous qualifications and background checks required for peace officers (https://www.post.ca.gov/peace-officer-selection-process.aspx , most re-cently viewed July 20, 2015).



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Document and collect evidence from animal crime scenes

Acquire and serve search warrants

Crisis intervention training (CIT)

Hazardous materials training

Community outreach and speaking engagements

30. The California Legislature, from long experience with vigilante Humane Societies, enacted a

very specific statutory scheme to define what an appropriate or suitable person to enforce State

animal cruelty laws would be: a Humane Officer, specially investigated, certifiably trained and

judicially appointed. CA Corporations Code §§ 14501-14503. Being a comprehensive statutory

scheme on a matter of statewide concern, the power of local agencies is circumscribed. Accordingly,

Marin Municipal Code, 8.04.110 which purports to make the Marin Humane Society’s appointment

of “suitable persons to act as animal services officers … for the purpose of enforcing this chapter …

peace officers” necessarily means Humane Officers. MHS, however, has not employed a judicially

appointed Humane Officer since 1997. COUNTY knew or should have known that its policies and

regulations were used by MHS to circumvent state law.

31. The power of humane societies to enforce California law through its employees is

specifically proscribed by statute. Corporations Code § 14501. Such societies can only act in excess

of the authority of any other private citizen of the state through properly qualified humane officers.

CA Corp. Code § 14502. Moreover, California law specifically restricts the authorization of local

agencies in granting humane societies or others powers enumerated by the local ordinance:

The governing body of a local agency, by ordinance, may authorize employees of public pounds, societies for the prevention of cruelty to animals, and humane societies, who have qualified as humane officers pursuant to Section 14502, and which societies or pounds have contracted with such local agency to provide animal care or protection services, to issue notices to appear in court pursuant to Chapter 5c (commencing with Section 853.5) of Title 3 of Part 2 of the Penal Code for violations of state or local animal control laws.

Emphasis added. Corp. Code § 14503 (Added by Stats. 1997, Ch. 598, Sec. 7. Effective January 1,



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1998.) In the circumstances present at the BURNELLS’ property on December 27, 2012 and

January 4, 2014, even a properly trained and judicially appointed Humane Officer was authorized

only to issue a ticket, not to seize animals as there was no life threatening emergency. Neither

COUNTY nor MHS was free to create rules and policy that circumvented these California legislated

restraints.

32. Neither MHS nor its Animal Services Division is a local public agency. Significantly, the

designation of MHS as Marin County’s “animal services agency” does not expand its powers but

rather imposes obligations on MHS beyond those otherwise applicable to it as a humane shelter or

matters strictly of local concern. See, e.g., Commission on State Mandates, Statement Of Decision

Pursuant To Government Code Section 17500 Et Seq.; Title 2, California Code Of Regulations,

Division 2, Chapter 2.5, Article 7. Case No. CSM 98-TC-l1 (Jan. 25, 2001). (For example, MHS is

required to take in stray animals and abide by the State’s euthanasia protocols and may not have

discretion to refuse to do so as a purely private shelter might have and is required to return animals

impounded to its owners.) MHS and COUNTY–favoring protections for stray and abandoned cats

and dogs-- may be in compliance with those rules, but cannot simply then ignore the mandate to

employ Humane Officers (id. at 10, fn. 15) or ignore the mandate to return impounded animals to

their owners or ignore the plain language of COUNTY’s ordinances that exempt breeding livestock

from MHS’ regulatory or standard setting authority.

33. MHS has consistently claimed in the circumstances of the seizure of the BURNELLS’

horses, that it was authorized to so under the terms of California Penal Code section 597.1 “when the

[peace officer, humane society officer or animal control officer] has reasonable grounds to believe

that very prompt action is required to protect the health or safety of the animal… the officer shall

immediately seize the animal and comply with subdivision (f).”

(f) Whenever an officer authorized under this section seizes or impounds an animal based on a reasonable belief that prompt action is required to protect the health or safety of the animal or the health or safety of others, the officer shall, prior to the commencement of any criminal proceedings authorized by this section, provide the owner or keeper of the animal, if known or



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ascertainable after reasonable investigation, with the opportunity for a post-seizure hearing to determine the validity of the seizure or impoundment, or both.

MHS has asserted it is not required to employ judicially appointed Humane Officers because

COUNTY has afforded its employees “peace officer” status or otherwise equates “animal control”

officer with “animal services” officer in contravention of California Food & Agriculture Code

section 31606.

34. Assuming arguendo, and contrary to fact and law, were MHS and COUNTY authorized to act

as they did BURNELLS have been denied due process for the fact that their horses have remained in

MHS’ custody for 32 months and counting, and the “process” for their breeding livestock’s return

has no end in sight.

STATEMENT OF FACTS

35. In or about October 1, 2012, MHS opened an investigation concerning the BURNELLS

based on the reports of RICCI (apparently relating information provided to her by GHILOTTI) that

the BURNELLS had moved their livestock breeding business from a small ranch in Petaluma

(Sonoma County) to Petaluma (Marin County), falsely and or recklessly reported that were 40-50

horses on the property (and falsely and/or recklessly described them) without food or shelter and

falsely and/or recklessly reported that Jill Burnell’s parents had been removed from Jill and Alex

Burnell’s home (Sonoma County) due to unsanitary conditions. For the next three months, MHS

employees, including at least MACHADO, HILL and ROGERS met and/or discussed the

“BURNELL” case at least two times per week. During her first contact with Jill Burnell on or about

October 2, 2012, ROGERS learned that that Jill Burnell’s business involved the breeding of equid

livestock and selling livestock breeding services which are specifically exempt from MHS standard

setting or licensing authority. Not later than October 12, 2012, ROGERS confirmed that there was no

commercial animal establishment requiring MHS Animal Services’ Division licensing or regulation.

ROGERS and MACHADO then recruited neighboring property owners to surveil the BURNELLS

and report to MHS all vehicles and visitors to the property.



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36. ROGERS and MACHADO further solicited the cooperation of these neighbors to provide

vantage points from which to photograph and surveil the BURNELLS, the Chileno Valley Road

property, and ROGERS communicated the negative Internet website address to the neighbors to

explain MHS’ interest in the BURNELLS and their horses.

37. Beginning at a time unknown, but not later than November 24, 2012, ROGERS announced

on a Chronicle of The Horse (COTH) bulletin board that she was building a case against the

BURNELLS, that she would assist individuals who had business complaints against the

BURNELLS, falsely claimed that Jill BURNELL had refused to speak with her, the BURNELLS’

horses looked good, and falsely claimed that the BURNELLS’ horses were without legally required

shelter at the Chileno Valley Road property. ROGERS escalated her appeals for assistance; her self-

identification as an Humane Investigator reinvigorated a dead gossip thread, but the thus renewed

speculation moved from discussions of breeding results, bloodlines and business practices to

speculation about what a “humane investigation” meant regarding BURNELLS’ animals’ welfare.

38. On December 18, 2012, Jill Burnell sold the stallion Romantic Star to a Georgia breeder for

$100,000. The sale was timely and significant because ROGERS’ internet postings had caused a

dramatic drop-off in breeding bookings and a dramatic decline in their household’s income. The

BURNELLS planned to use the sale money to improve the Chileno Valley Road property and to

fund increased marketing expenses that would be necessary to repair the damage done to the

business by ROGERS’ participation in the COTH discussion group. That afternoon, ROGERS

surveilled Jill Burnell through binoculars. ROGERS waved to a woman she believed was Jill

Burnell at the center of the 36 acre property (more than ¼ mile away from her parked position).

Angry that the woman she believed was Jill Burnell did not walk over to speak with her, ROGERS

posted a “Notice of Correction” on the Chileno Valley Road property fence. The notice instructed

Jill Burnell to contact MHS regarding one leant to she asserted was inadequate shelter, and thin/lame

horses without identifying by breed, size, color, markings, estimate age, sex, markings or any other

manner by which horsemen typically identify horses. There were no lame horses on the property.



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On the same day, Jill Burnell spoke with HILL and complained inter alia that ROGERS’ Internet

activity was offensive to her, was inappropriate and was the source of false rumors and damaging to

her business. HILL told Jill Burnell he would come to the property on December 28th but not before

that time.

39. On December 19, 2012, veterinarian Paul McEvoy was at the Chileno Valley Road property

and saw the BURNELLS’ horses. He examined the stallion Romantic Star to prepare health

certificates necessary for cross country transportation of the stallion. A mandatory reporter of animal

welfare violations, Dr. McEvoy found nothing amiss at the Chileno Valley Road property or with

any of the BURNELLS’ horses.

40. On December 26, 2012, two stallions fought at the Chileno Valley Road property. Nothing

the BURNELLS did caused the fight, nor could they have prevented it. Appropriate assistance to

care for the fighting horses was sought. Within two hours of the fight, veterinarian Steve Wood

came to the property to examine the horses. He and Jill Burnell agreed on a treatment plan. The

Georgia breeder requested that veterinarian McEvoy be contacted again to provide follow up

examination of Romantic Star (one of the stallions in the fight) to determine whether he was well

enough to travel to Georgia or required additional medical professional attention. Arrangements

were made for alternative transportation and housing of Romantic Star, if that was Dr. McEvoy’s

advice or recommendation.

41. In the early morning of December 27, 2012, ROGERS read an email from RICCI who wrote

the previous evening to inform her4

Apparently the 2 stallions Aloha and the one that was supposed to ship ( forget his name) [referring to Romantic Star who had been sold to a Georgia breeder] got in the same pen today. … Dr. Wood[] … is going to [J]ill[‘]s place “on the side” for cash. That would be who

4 MHS did not produce this email in January 2013 at either of the two administrative hearings

held that month reviewing the seizures, nor did it produce the email until November 2013, after cross-examination of ROGERS and RICCI had concluded at a preliminary hearing where the issue was raised whether there had been veterinary treatment for Aloha and Romantic Star. In fact, until the preliminary hearing it was undisclosed that ROGERS was using RICCI to hide the fact that MHS was relying on informal statements purportedly shared by yet another individual with GHILOTTI, who had only been to the Chileno Valley property one time prior to December 26, 2012.



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went there tonight[.] The MHS Defendants nonetheless organized a team to go to the Plaintiffs’ property and remove

horses on the pretext that mortally wounded horses had not received medical care after the stallion

fight and were in life threatening, emergency condition. The MHS Defendants arranged to have a

Marin County sheriff’s deputy G. Bernheim present at the time of ROGERS, HILL and KEEFER’s

arrival at the Chileno Valley Road property to overcome the objections the Plaintiffs may have had

to MHS’ unscheduled arrival. According to the Sheriff’s Dispatch log, MHS requested an escort at

11:20 a.m. and that two horses were seized at 4 p.m.

42. MHS did not seek judicial consent for the seizure of any of Plaintiffs’ horses at any time

during Thursday, December 27, 2012 which was a regular business day when the local courts were

open.

43. On December 27, 2015, Plaintiffs were not informed that MHS had opened a criminal

investigation against them nor were they informed of their right to legal counsel or their right to

remain silent. In fact, in the administrative hearings reviewing the seizures, Plaintiffs reluctance to

speak or consent to the search of the Chileno Valley property and their horses with the animal

services officers present was used as evidence against them at later MHS conducted administrative

post-seizure hearing. Plaintiffs were not told that they had the right to refuse a request to search; on

the contrary, they were told that they were required to submit to MHS and its employees demand to

search their property and horses.

44. Having failed to secure a warrant or plaintiffs’ consent, MHS, MACHADO, HILL and

ROGERS nonetheless intentionally acted to remove the breeding stallion Romantic Star and the

broodmare Devil’s Sis from plaintiffs’ possession, custody and control under non-exigent

circumstances. Romantic Star was medically stable, even if also muddy and bruised. The stallion

was safely secured in his individual paddock of appropriate size and construction. Devil’s Sis, a

thoroughbred broodmare, had recently weaned a warmblood foal and although was not at an ideal



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body weight exhibited none of the metabolic or behavioral characteristics of a starved or starving

horse—she was standing, socializing, eating, drinking and moving about in her pasture with her

broodmare band. She was thin at the end of weaning a large foal, in the wintertime and reasonably

would be expected to regain any temporarily lost weight.

45. At the time of seizure, both Romantic Star and Devil’s Sis were standing and moving

normally, could eat food, were provided food and water and were otherwise unremarkable in their

condition. Both horses had the benefit of shelter of their naturally hairy coats for protection from

rain and wind in the temperate Marin County climate. Devil’s Sis also was covered with a horse

blanket which MHS had removed. Plaintiffs were present at the property and responsive to their

horses’ needs. Both horses had received necessary care from the plaintiffs and neither was in danger

of death.

46. Defendants did not have reasonable cause to believe that the horses at issue were in imminent

danger of serious bodily injury or death for lack of shelter from the weather. Horses have every

evolutionary advantage to live out of doors in pasture and seasonal fluctuations in weight, especially

in the “thermal neutral zone” that typifies Marin County climate and their use as breeding livestock.

47. Defendants did not have reasonable cause to believe that the horses at issue the horses at

issue were in imminent danger of serious bodily injury or death and that any assertion plaintiffs were

not receiving necessary care due to an absence or unwillingness by their owners or keepers to

provide feed was false. Feed was at all times present on the property and made available in

sufficient quantity and quality to all the horses at the Chileno Valley Road property. The condition of

the horses seized were reasonably and lawfully explained by age, type, breed, seasonable fluctuation

in weight, and/or herd dominance, and that the health and condition of the rest of the herd was good.

Individual variance was not to a degree to create a lawful exigency or emergency circumstance.

48. Medical reports from UC Davis Large Animal Hospital later confirmed what the

BURNELLS, their veterinarians Dr. Wood and Dr. McEvoy had asserted. Romantic Star was muddy

(was given a bath) and was bruised as a result of the stallion fight. He was not starving. He was not



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malnourished. The treatments begun by the BURNELLS and Wood were continued.

49. Devil’s Sis condition was so clearly not exigent that MHS did not seek medical evaluation of

her for two days. The mare was kept at MHS headquarters. On December 29, 2012, veterinarian

Cameron Thompson confirmed, the mare was thin, but not malnourished or starving, was not in

pain, was not pregnant, and was otherwise unremarkable in her condition.

50. Not later than December 28, 2012, MHS published an appeal for public donations to care for

the “Burnell horses” on its website. Upon information and belief MHS raised in excess of $50,000

as a result of this and related public appeals.

51. Not later than January 2, 2013, ROGERS knew that Dr. McEvoy had been to the Chileno

Valley Road property on December 31, 2012. ROGERS instructed him to inform the BURNELLS

they could reschedule any follow up visit at their convenience. After being notified that Plaintiffs

had retained counsel who would cooperate with any further information requests, ROGERS, HILL

and MACHADO returned to the Chileno Valley Road property on Friday, January 4, 2013 with a

different Marin County Sheriff’s deputy.

52. On January 4, 2013, MHS did not have a judicial warrant or plaintiffs’ or plaintiffs’ counsel’s

consent (again, the seizure date was a regular business day and not a court holiday).

53. Plaintiffs were not told that they had the right to refuse a request to search; on the contrary,

they were told that they were required to submit to MHS and its employees demand to search their

property and horses. ROGERS, HILL and MACHADO nonetheless caused the removal of the

broodmare Metsonized and the broodmare Lucky Karma from plaintiffs’ possession, custody and

control under non-exigent circumstances and with undue haste to prevent the animals’ examination

by Dr. McEvoy who was en route. There was no emergency: Both broodmares were older

broodmares, living as a bonded pair in winter pasture. Both mares could stand, walk, eat, socialize

and were otherwise unremarkable in their condition. Both horses had the benefit of shelter of their

naturally hairy coats, and features at the property including topography and other horses, for

protection from rain and wind in the temperate Marin County climate. Plaintiffs were present at the



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property and responsive to their horses’ needs. Both horses had received necessary care from the

plaintiffs and neither was in danger of death. UC Davis Large Animal Vet records dated January 4,

2013 confirm that both Metsonized and Lucky Karma were healthy, older broodmares in medically

stable condition.

54. Defendants did not have reasonable cause to believe that the horses (Romantic Star, Devil’s

Sis, Metsonized or Lucky Karma) were in imminent danger of serious bodily injury and/or death

even if they showed signs of neglect, including mud on the hairy coats, or were older or thinner than

other of the nearly 40 horses on the property.


danger of serious bodily injury or death for lack of necessary veterinary care because they knew or

should have known that veterinary care was provided to Romantic Star on December 26, 2012, knew

that plaintiffs’ veterinarian was called to the plaintiffs’ property at least on December 27, 2012,

December 31, 2012, and January 4, 2013, and knew that plaintiffs were knowledgeable concerning

available veterinary services and personnel in their geographic area and had successfully procured

those services in the past, concurrently with the events at the time of the seizure, and since that time,

including the aid and support of expert equine veterinary experts.


danger of serious bodily injury or death for lack of shelter from the weather. Horses have every

evolutionary advantage to live out of doors in pasture and seasonal fluctuations in weight, especially

in the “thermal neutral zone” that typifies Marin County climate and their use as breeding livestock.

57. Defendants did not have reasonable cause to believe that the horses at issue the horses at

issue were in imminent danger of serious bodily injury or death and that any assertion plaintiffs were

not receiving necessary care due to an absence or unwillingness by their owners or keepers to

provide feed was false. Feed was at all times present on the property and made available in

sufficient quantity and quality to all the horses at the Chileno Valley Road property. The condition of

the horses seized were reasonably and lawfully explained by age, type, breed, seasonable fluctuation



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in weight, and/or herd dominance, and that the health and condition of the rest of the herd was good.

Individual variance was not to a degree to create a lawful exigency or emergency circumstance.

58. On January 17, 2013, MHS and WAGMAN demanded $8,846.36 for fees incurred by it with

the seizure of Romantic Star and Devil’s Sis between December 27, 2012 and January 9, 2013. The

demand asserted that if the charges were not paid Romantic Star and Devil’s Sis would be deemed

abandoned pursuant to California Penal Code section 597.1 and become the property of Marin

Humane Society. The demand further asserted that even if these initial charges were paid, “you will

also be responsible for all future costs of impoundment and care/treatment of your horses after today

and up until their final disposition is determined and such costs shall constitute a lien on the

animals.” The fees claimed included a $200 impound fee (per horse), trailering fees, board at $75

per day, and veterinary costs, including MHS forensic examinations dictated by the “legal” case and

potential criminal prosecution, and in excess of that required for the necessary care of the animals.

59. On February 4, 2013, MHS and WAGMAN demanded $6,211.15 from Jill and Alex Burnell

for fees it claimed it incurred in the seizure of Lucky Karma and Metsonized and were lawfully

claimed by it pursuant to Marin County Code section 8.04.220. Because the BURNELLS refused to

or were unable to pay those fees (although timely noted their objections to them) MHS has asserted

that the horses are deemed abandoned pursuant to California Penal Code section 597.1 and that MHS

will not ever return the mare Metsonized to the BURNELLS.

60. On February 4, 2013, the Georgia breeder sued MHS for conversion of the stallion Romantic

Star.

61. On February 5, 2013, MHS and WAGMAN demanded $4,727.10 from the Georgia breeder

who then owned Romantic Star for costs incurred by it between December 27, 2012 and January 16,

2013, and threatened her with criminal prosecution for animal cruelty and liability for costs of

seizure and care after January 16, 2013 pursuant to California Penal Code section 597.1.

62. On February 8, 2013, MACHADO made a criminal referral to the Marin County District

Attorney’s Office requesting criminal prosecution against both Jill and Alex Burnell. In that report



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are numerous false material statements including: falsely claiming that BURNELLS denied having

horses on the property, falsely claiming that the BURNELLS had not been in contact with MHS,

falsely claiming the horses were without shelter, falsely claiming that any veterinarian recommended

euthanasia of a horse leaving the Burnells’ property, falsely claiming that Romantic Star was

removed from the Chileno Valley Road property because he was thin and in need of immediate

veterinary care not provided, falsely claiming that Devil’s Sis’ was removed for her health and

safety, falsely claiming that veterinary records properly requested were withheld, falsely claiming

that no veterinarian or farrier had been to the Chileno Valley Road property and no appointments

had been made, falsely claiming that 50 individuals had reported concerns to MHS by that date

about the Burnell horses’ welfare, falsely claiming that a mare known as Ambria had not received

veterinary care and falsely claiming that MHS had not been notified of the care Ambria did receive,

as well as additional, but vague and troubling, assertions meant to ensure the filing of a criminal

complaint against both of the BURNELLS.

63. The $4,727.10 lien demand for Romantic Star was paid on February 18, 2013.

64. In August 2013, the Marin County Superior Court found with respect to Romantic Star and

Devil’s Sis (aka Pookie):

The Court received further argument from all parties concerning the Petition and

thereafter adopted its June 18, 2013 tentative ruling, as follows:

The court grants the Petition for Writ of Mandate and directs Respondent [MHS] to

return the seized horses, Romantic Star and Pookie, including all medical records, to

Petitioner [Jill Burnell]. The Decision of the Hearing Officer is vacated. All costs incurred by

MHS associated with the seizure, care and treatment of the horses shall be borne by MHS.

The court finds this case affects a fundamental vested right because it involves the

deprivation of valuable property, and thus the independent judgment standard of review

applies. (See Bixby v. Pierno (1971) 4 Cal.3d 130, 147.)

Respondent’s objections to the Marshaling Declaration of Margaret M. Weems are



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overruled. The record as prepared by Ms. Weems is substantially correct and complete and

justified due to the time constraints which petitioner attempted to meet to have this matter

heard by the original hearing date. The court notes Respondent’s corrections in the labeling

of certain of the exhibits.

With respect to the hearing officer’s finding that the seizure of the two horses on

December 27, 2012 was justified pursuant to Penal Code Section 597.1, the court finds the

hearing officer applied the wrong legal standard and that the evidence (viewed

independently) does not support this finding for the following reasons:

Penal Code §597.1(a)(1) provides, in pertinent part: “When the officer has reasonable

grounds to believe that very prompt action is required to protect the health or safety of the

animal or the health or safety of others, the officer shall immediately seize the animal and

comply with subdivision (f).” In Broden v. Marin Humane Society (1999) 70 Cal.App.4th

1212, 1221, the Court interpreted this language to be “the equivalent of the exigent

circumstances exception familiar to search and seizure law,” allowing entry without benefit

of a warrant when a law enforcement officer confronts “an emergency situation” requiring

swift action to save life, property, or evidence.

The hearing officer found the seizure of Romantic Star and Pookie was justified based

largely on the testimony of Sgt. Rogers, who “testified at length regarding her involvement in

this matter, beginning in early October, 2012.” (Opinion, p. 2.) This court finds Sgt. Rogers’

dealings with Ms. Burnell prior to the December 27th seizure to be largely irrelevant to the

issue of whether exigent circumstances existed on the day of the seizure. By the MHS’ own

implied admission, the issues of lack of shelter, insufficient feed, and “thin/lame” horses

which Sgt. Rogers’ identified in her 12/18 Correction Notice did not constitute exigent

circumstance since Sgt. Rogers gave petitioner 10 days to make contact with MHS.5 (1 AR

5 MHS claims this notice required the animals to be seen by a veterinarian “within 7 days,” but in

fact that line was not checked on the form. (1 AR 000119.) It also would have been impossible to



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000119) [Citations herein to the administrative record are to record as submitted by Petition

May 15, 2013; parallel citations to the Administrative Record as filed by the Marin Humane

Society July 10, 2013, are as stated in Petitioner’s Concordance of Evidence Relied Upon in

the Court’s June 18th tentative Rulings, dated July 24, 2013].

Romantic Star

What brought Sgt. Rogers to the Burnell property on December 27 was an email from

Dina Ricci sent the previous evening (which the hearing officer characterized as a

“complaint” though there was no testimony to this effect) describing, second-hand, how

Ricci’s friend, Genevieve Ghilotti, and another person, Marilyn Nikkari, had gone to the

Burnell property at Mrs. Burnell’s request to help separate her two stallions who were

fighting. Sgt. Rogers testified that Ms. Ricci informed her that the horses had gotten into a

fight, with one stallion jumping into the enclosure of another stallion. According to Ms.

Ricci’s email (which was not part of MHS’s file nor independently admitted into evidence),

one horse got his foot tangled in the [rain-coat] blanket of the other horse [Romantic Star],

which was “down on the ground for an extended period of time” and “had some very serious

injuries according to the person that had seen this.” (1AR 000016:22-000017:10.) The MHS

admitted 7 photos purportedly taken immediately following the horse fight. (1 AR 000017-

000020; 000173-000179; Exhs. B-1 to B-7.) In her Report, admitted as Exhibit A, Sgt.

Rogers stated that “Mrs. Ghilotti told Mrs. Ricci that the stallion ‘Romantic Star’ had a

possible fractured jaw, a punctured eye, ‘bloody cuts’ everywhere, and that both of the

stallions were very skinny.” (1 AR 000113.) Sgt. Rogers repeated this at the hearing,

emphasizing that what she found “more concerning was that the horses had not received

veterinary care.” (1 AR 000021:25-000022:1.) This is not the full picture of what happened

the day before the seizure.

comply with this since no specific horses were identified in the 12/18 notice, which merely referred to “several horses—thin/lame.”



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Sgt. Rogers admitted at the hearing that none of this information from Ms. Ricci was

based on first-hand knowledge. (1 AR 000017.) The photos admitted as Exhibit B were not

authenticated—there was no testimony as to who took the photos or how MHS acquired

them.

And yet while Sgt. Rogers and the hearing officer placed a lot of emphasis on the double-

hearsay evidence from Ms. Ricci, and the unauthenticated photos supposedly taken the day

before the seizure showing Romantic Star on the ground, both Sgt. Rogers and the hearing

officer completely ignored two emails contained in MHS’s file from Genevieve Ghilotti and

Marilyn Nikkari, dated December 28 and 29, respectively, who described the incident much

less dramatically, simply that one horse had his foot caught in the blanket of the other, and

that after the blanket was cut away both horses were standing up and were put away in

separate enclosures. (1 AR 000121-000122.) Neither of these emails mentions any “serious

injuries.” Also, importantly, both Ms. Ghilotti and Ms. Nikkari confirmed that a veterinarian

(Dr. Steve Woods) was called in their presence and confirmed he was on his way to see the

horses, and that they saw Ms. Burnell administer some medication to both horses. Sgt.

Rogers’ grounds for coming to the Burnell property on December 27 was that “there’s

animals on the property that hadn’t received veterinary care” (1 AR 000025:18-19), but it

appears this was based on nothing more than second-hand and unverified information. Later

Sgt. Rogers admitted that after she arrived at the property she learned that Dr. Woods had

come out to see the horses the evening before. (1 AR 000027.)

Finally, getting to the day of the seizure, Sgt. Rogers testified she arrived at the Burnell

property at around noon on December 27 accompanied by Lt. Hill and veterinarian Dr.

Nathan Keefer from Sonoma-Marin Veterinary Hospital.6 Sgt. Roger’s key testimony

6 Petitioner’s attorney attempted to raise an issue that Dr. Keefer had a “financial conflict” be-

cause Sonoma-Marin Vet was in litigation with the Burnells over unpaid bills and that MHS deliber-ately “chose” Dr. Keefer for this reason (1 AR 000073-74). The court finds no reason to believe that



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concerning Romantic Star, cited by the hearing officer, was that she observed Romantic Star

standing in his paddock unresponsive, covered in mud, shaking and in apparent pain.

Specifically, Sgt. Rogers testified:

Romantic Star was standing in his paddock unresponsive. He was just standing there, kind of shaking. He was covered in mud. He had a thick coat of this greasy dried mud all over him. He had dried blood down his neck. He had swelling up under his jugular. The entire left side of his face was swollen with edema. His eye was swollen shut. He could not see out of it. It had mud and debris. It was oozing this greenish-yellowish substance. His ears were kind of cocked back, and he was just standing and shaking. The horse was in so much pain. I knew this horse was in pain. (1 AR 000026:8-19; Decision, p. 3.)

There is really no dispute that Romantic Star required additional medical evaluation on

December 27; even Petitioner concedes this by the fact that veterinarian Dr. Paul McEvoy

was retained by Rhonda Stavisky, the out-of-state purchaser of Romantic Star, to come out

and evaluate the horse. The question is whether the circumstances facing Sgt. Rogers were so

“exigent” as to make it reasonable for her to take the care of Romantic Star out of the hands

of the owner and/or keeper and to immediately transport the horse to UC Davis for treatment.

Based on this court’s independent review of the evidence, the court concludes that the seizure

of Romantic Star by MHS was unjustified.

The only arguably proper justification for MHS’s actions would have been if the owner

or keeper had refused to follow the advice of a veterinarian to transport Romantic Star to UC

Davis for treatment. The hearing officer noted that Ms. Burnell failed to follow the advice of

Dr. Woods to take the horse to UC Davis, but again this is based on double-hearsay

Dr. Keefer would render a biased opinion because his employer had a financial dispute with the Bur-nells. On the other hand, Sgt. Rogers stated that she called Sonoma Marin Vet for assistance because that is the vet that MHS works with “on a regular basis with our humane case horses.” (1 AR 000074:2-3.) The fact that MHS hires Sonoma-Marin Vet “on a regular basis” for its horse cases does tend to show conflict of interest in that it can be inferred that Sonoma-Marin Vet derives future business by rendering opinions favoring MHS’s position. (See Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, dealing with hearing officer conflict of interest based on the fact the govern-ment pays the officer on an ad hoc basis and the officer’s income from future adjudicative work de-pends entirely on the government’s goodwill.) For this reason, the court views the medical report from Dr. Keefer very strictly. (1 AR 000152-155,)



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testimony by Sgt. Rogers as to what Dr. Woods told Dr. Keefer (by telephone) who told Sgt.

Rogers. (1 AR 000027-28.) There is nothing in Dr. Keefer’s 1/7 report verifying either that he

spoke to Dr. Woods by telephone from the Burnell property or that Dr. Woods advised taking

the horse to UC Davis.7 Thus, based on the fact that Dr. Woods supposedly told Ms. Burnell

the evening before to take the horse to UC Davis, and it was “now almost 1:00 and the

horse . . . hadn’t been taken anywhere,” Sgt. Rogers made the determination to seize the

horse. (1 AR 000028.)

However, then arrives on the scene veterinarian Dr. Paul McEvoy retained by the new

owner of the stallion, Ronda Staviski. Dr. McEvoy was not able to testify at the hearing in

person, but he submitted a declaration stating that in his opinion it was unnecessary for MHS

to seize the stallion because Jill Burnell told the officer at the scene that she was prepared to

send Romantic Star to UC Davis.8

Dr. McEvoy further declared:

. . . Since the horse has been seized I am not the referring veterinarian and cannot participate on behalf of my client even in matters as small as communicating his course of treatment at the clinic, prognosis or return . . . I agreed that the Burnell Ranch was an inadequate location to evaluate the stallion, and that it would be appropriate for the horse to be sent to UCDavis. I did not agree that it was necessary to remove the decision and opportunity to the owner and/or caretaker of the stallion to move the horse to UC Davis or other adequate dry, clean environment themselves (or herself) in order for myself or other competent equine veterinarian to assess the trauma. (1 AR 000210-211.)

The hearing officer justified his decision by stating that Dr. McEvoy agreed with Sgt.

Rogers that the horse “needed immediate veterinary care.” (Decision, p. 4.) But the hearing

officer misses the whole point that that is exactly what Petitioner was doing—arranging

7 This is an important fact to leave out of the report, but Dr. Keefer possibly did so because Dr.

Woods supposedly saw the horse “off the record” without his employer’s knowledge. (1 AR 000028.)

8 This is also confirmed in the Declaration of Ronda Stavisky, Ph.D., who states that: “. . . I asked [Jill Burnell] to contact Dr. Paul McEvoy to come out and evaluate [Romantic Star], and if Dr. McEvoy deemed necessary, to transport the stallion to UC Davis for treatment.” (1 AR 000194.)



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immediate veterinary care for the injured horse. Dr. McEvoy was on site ready, willing and

authorized to take whatever action was necessary to care for the stallion, but the decision-

making authority was taken away from him by the impromptu seizure of the horse. This is

simply not a case that rises to the level of abandonment and mistreatment as in Broden. The

hearing officer places a lot of emphasis on the photos depicting the “dire condition” of the

horse, but there is no dispute the stallion was injured and needed treatment. The question is

whether Petitioner had abandoned her responsibility to care for the horse to the point that it

was reasonable for MHS to step-in and take over that responsibility. The court finds the

answer clearly no. Even assuming that Dr. Woods had, in fact, recommended transporting the

horse to U.C. Davis during his visit the evening before, the court finds it wasn’t necessarily

unreasonable for the owner of the horse to ask for her own treating veterinarian to make the

final determination. The delay was less than 12 hours, and although the horse was cut and

bruised, there was no evidence that it in fact had a fractured jaw, as Ms. Ricci had suggested.

Dr. Keefer noted in his report that “Romantic Star was able to prehend and masticate grain

and carrots that were presented to him.” (1 AR 000152.)

Pookie, aka “Red” and “Devil’s Sis”

The mare, Pookie, was seized because in Sgt. Rogers’ opinion the horse was “absolutely

emaciated” and Sgt. Rogers “feared for her health and safety without shelter, without proper

food on the property, and that she needed to be removed or she wouldn’t make it.” (1 AR

000035.) Sgt. Roger came upon the mare wearing a blanket. (1 AR 000036.) Sgt. Rogers

gave the mare a body condition score of 1.5 to 2 out of 9 (with 4-7 as normal range). Dr.

Keefer scored the mare a 2/9 and also “concurred with the animal services officers that

Devil’s Sis [Pookie] should be seized to allow for more appropriate care.” (1 AR 000153.)

Based on the court’s previous comments concerning Dr. Keefer, it views his “concurrence”

with some skepticism. Photos were admitted of Pookie taken on December 27, depicting a

red-colored horse with ribs showing. (See 1 AR 000187-189; Exhs. D-1 through D-3.) The



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court finds no evidence supporting the hearing officer’s conclusion that the mare was seized

for “immediate medical treatment.” (Decision, p. 4.) The issue with the mare was thinness

caused by insufficient food.

Again, evaluating the evidence under the “exigent circumstances” standard enunciated in

Broden, the court finds the immediate seizure of Pookie was not justified as an “emergency

situation requiring swift action to save life, property, or evidence.” (70 CA4th 1212.) This is

not a situation where a horse is found abandoned and starving with no source of food

available. (See Broden.) Petitioner was present and Sgt. Rogers could have issued a

correction notice specifically requiring Petitioner to feed the mare more hay and set the

matter for a prompt pre-seizure hearing pursuant to Penal Code §597.1(g). Sgt. Rogers

testified there was no food (hay) visible on the property, but admits that as she was leaving

hay was delivered. (1 AR 000058.) Apparently because there was no hay barn yet built on the

property, the Burnells purchased hay daily and stored it on a pickup truck. Another

justification for the seizure was the lack of shelter, but Dr. Ellis declared the structures she

observed constructed and under construction were “the appropriate height and construction

for rain and sun protection” and she recommended placing “water proof blankets” on each

horse during the rainy season, just as was done with the mare Pookie.

The hearing officer cited Sgt. Rogers’ 12/18 correction notice as an indication that

Petitioner was not willing (or able) to provide necessary care for her horses because “none of

the items on her list had been accomplished.” (Decision, p. 5.) The 12/18 correction notice is

very vague, merely referring to “several horses—thin/lame,” and it does not provide a special

deadline for compliance, merely that “If no contact within 10 days, said animal(s) will be

removed.” The 10 days had not yet expired on 12/27. In short, this notice does not justify the

seizure of the mare on 12/27 as an “emergency” situation and without a pre-seizure

opportunity to address the MHS’s specific concerns regarding the mare.

The court finds Petitioner was also denied the right to a fair hearing for the following



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reasons:

The 12/27/12 Seizure Notice failed to comply with Penal Code §597.1(f)(1)(C) by

failing to differentiate between the two horses and failing to state the purpose and

circumstances of the seizure sufficient to provide a reasonable opportunity to respond. (See

Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1445.) In Supplemental

Opposition, p. 13, MHS argues the notice of seizure “cannot be viewed in a vacuum” but

should be viewed together with other notices provided by MHS--a correction notice dated

12/18 (1 AR 000119), a care agreement dated 12/28 (1 AR 000120), and “various

communications” between MHS and Petitioner’s attorney in January 2013 (1 AR 000123-

129) setting forth the issues of concern to MHS. These communications cited by MHS do not

cure the deficiencies in the 12/27 notice. The 12/18 correction notice and the 12/28 care

agreement do not deal specifically with the horses Romantic Star or Pookie nor with the

specific “exigent circumstances” that purportedly justified the seizure on 12/27. MHS could

have clarified the grounds for seizure by providing more detailed information prior to the

hearing, but unfortunately MHS assiduously avoided doing so, citing its “ongoing

investigation” as grounds for not producing requested materials to Petitioner’s attorney. (See

January 2 email, 1 AR 000124.) Petitioner was not provided with any documentary evidence

from MHS until 3 hours before the hearing. (See Closing Brief, Weems Exh. 3, p. 11.)

At the 1/8/13 hearing, Petitioner attempted to question the hearing officer on the means

and method of his appointment to expose potential bias, but was not permitted to do so. (1

AR 000006-000007.) The right to a fair procedure includes the right to an impartial

adjudicator. Moreover, fairness requires a practical method of testing impartiality. (Rosenblit,

supra, 231, CA3d at 1448.) The failure to permit voir dire on the hearing officer’s method of

appointment contributed to the lack of a fair procedure.

Petitioner fails to demonstrate that the requirements of the California Administrative

Procedures Act, Govt. Code 11400, et seq. applies to post-seizure hearing under Penal Code



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§597.1(f). The MHS is not a “quasi-state or mixed local agency.” (See Amended Petition,

¶5.e.; Compare Patterson Flying Service v. Department of Pesticide Regulation (2008) 161

Cal.App.4th 411, 422.) Govt. Code §11500, et seq. only applies when by statute they are

made applicable to an agency or proceeding. (See Patterson, supra, 161 Cal.App.4th at 419.)

Mandamus on grounds that respondent has acted without, or in excess of, jurisdiction is

denied. Petitioner has not shown that only humane officers are authorized to enforce Penal

Code §597.1, and MHS has demonstrated that it is acting with lawful authority pursuant to

California Constitution Art. XI, Section 7 (authorizing counties to make and enforce all local,

police, sanitary, and other ordinances and regulations not in conflict with general laws),

Corps. C. §14501, and Marin Municipal Code §8.04.110.

65. In August 2013, the Marin County Superior Court found with respect to Lucky Karma (aka

Blackie) and Metsonized (aka Nutsie):

The court grants the Petition for Writ of Mandate and directs [MHS] to return the seized

horses, Blackie and Nutsie, including all medical records, to [Jill Burnell]. The Decision of

the Hearing Officer is vacated. All costs incurred by MHS associated with the seizure, care

and treatment of the horses shall be borne by MHS.

The court finds this case affects a fundamental vested right because it involves the

deprivation of valuable property, and thus the independent judgment standard of review

applies. (See Bixby v. Pierno (1971) 4 Cal.3d 130, 147.)

The court finds the January 4, 2013 Notice of Seizure fails to comply with Penal Code

§597.1(f)(1) and due process by failing to state the specific reason for the seizure and failing

to differentiate between the two horses. The vague description “physical condition Improper

care” provides inadequate notice of charges and requires Petitioner “to prepare a wholesale

defense to all possible charges.” (Rosenbilt v. Superior Court (1991) 231 Cal.App.3d 1434,

1446.)

The court finds Petitioner was denied a fair hearing based on the hearing officer’s



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financial conflict of interest. (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017.) In

the second post-seizure hearing, Petitioner was permitted to conduct limited questioning of

Capt. Cindy Machado concerning the selection of the hearing officer, Albert Burnham, from

which it appears clear that the unilateral selection and payment of Mr. Burnham by MHS

violates due process standards as articulated in Haas. (2 AR 000135:19-22, 000300-303.) The

evidence shows that MHS chose Mr. Burnham from a pool of hearing officers, rather than the

panelist being assigned, for example, on a random rotational basis, that MHS hired Mr.

Burnham more than 20 times in the last five years to hear animal seizure cases, that in all of

these prior cases Mr. Burnham upheld the seizure, and that MHS paid the hearing officer

directly at the rate of $125 an hour. Where, as here, the adjudicator’s pay is not formally

dependent on the outcome of the litigation, but his future income as an adjudicator is entirely

dependent on the goodwill of a prosecuting agency that is free to select its adjudicators it

must, therefore, be presumed that MHS favors its own rational self-interest by preferring an

adjudicator who tends to issue favorable rulings. (Haas, 27 C.4th at 1029, 1031.)

Finally, independently evaluating the evidence under the “exigent circumstances”

standard enunciated in Broden, the court finds the immediate seizure of Blackie and Nutsie

was not justified as an “emergency situation requiring swift action to save life, property, or

evidence.” (70 Cal.App.4th 1212.) The court finds the UC Davis records compelling and the

discrepancy in the body condition scoring critical because horse experts appear to agree that

a score of less than 3 warrants criminal investigation—inferably this is why Sgt. Rogers

assigned a score of 2. At the same time, U.C. Davis, the unimpugned experts, assigned scores

of 3 and 3-4, respectively. The photos also do not support the conclusion of the hearing

officer that the horses were “emaciated.” While the horses are admittedly on the thin side,

with ribs showing, they do not compare with the photos and drawings of truly “emaciated”

horses shown on the Henneke Body Condition Scores sheets published by the Center for

Equine Health, UC Davis, and the Horse. (Petitioner’s Request for Judicial Notice, Vol. II.



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Exh. 14.) The U.C. Davis records also do not support the existence of exigent circumstances

based on the need for farrier work, since the work was scheduled days after the horses

arrived at U.C. Davis.

66. MHS ignored the Superior Court orders to return the horses “forthwith” and ignored the other

provisions of the orders concerning records and costs.

67. In October 2013, the Marin County Superior Court (Criminal) sustained the BURNELLS’

demurrer finding that MHS did not have licensing or standard setting authority for the BURNELLS’

horse (livestock) breeding business and services.

68. In December 2013, after MHS spent three months to present primarily hearsay testimony

through ROGERS and MACHADO the Marin County Superior Court reduced all felony allegations

to misdemeanors on its own motion finding no intentional conduct relating to the neglect or alleged

abuse of horses but only that the People had created a question whether the BURNELLS had the

financial resources to manage horses. Throughout the relevant times concerned with in this

Amended Complaint, the BURNELLS have managed responsibly a broodmare band that has

fluctuated in size from a high of 30 to a low of 15 mares (not including young horses, foals or

stallions).

69. In May 2014, in order to secure the dismissal of all charges against Alex Burnell, Jill Burnell

was forced to plead guilty to a misdemeanor charge tailored to specify that only one elderly mare

required additional shelter that they had not provided. In addition, as a result of that judicial

settlement offer, MHS was required not to make public comment about the case and was not to

attempt to surveil or visit the Chileno Valley Road property unless a neutral veterinarian was

present. Jill Burnell’s probation was put under the authority and guidance of the Marin County

Probation Department who have since reported to the Court that her performance has been excellent

and that there are no complaints. MHS and WAGMAN ignored the restrictions on comment

regarding the judicial proceedings or Jill Burnell. MHS and MACHADO ignored the stay away

provisions of the agreement. MACHADO has since falsely stated that Jill Burnell is in “violation”



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of the terms of her probation.

70. MHS appealed the Superior Court orders to return the BURNELLS’ horses, their medical

records and money. Admitting that their administrative hearings were fundamentally unfair, MHS

successfully argued that horse owners like the BURNELLS have no fundamental vested right in their

relationships with their horses or in horses as property. MHS also successfully argued that under

Penal Code section 597.1, Metsonized was deemed “abandoned” because the BURNELLS had not

paid the amount demanded as a lien in February 2013.

71. MHS convened a third round of administrative hearings in March 2015. Again, MHS chose

a private hearing officer, aligned with its political activist goals, not an expert in any aspect of

animal husbandry or horsemanship or horse management, and not a neutral or unbiased figure or a

qualified County Hearing Officer nor a State Administrative Law Judge. The hearings were held on

consecutive days in out of county offices of MHS’ counsel. The sessions ran longer than normal

business hours notwithstanding the several hours commute in each direction that burdened the

BURNELLS and their witnesses. BURNELLS were not permitted to subpoena records or MHS

witnesses for cross examination. The time for hearing was artificially limited, and scope of the

hearing was dictated by MHS. MHS refused to produce ROGERS or HILL or GHILOTTI for cross-

examination and relied solely on the testimony of MACHADO and KEEFER. Three nationally

renown equine experts (two veterinarians and a nutritionist) testified in person on behalf of the

BURNELLS, concerning the medical record and abundant evidence of the good care the

BURNELLS provided their horses. Additional written testimony from two veterinarians who had

been to the BURNELLS’ property and seen their horses was provided in support of the BURNELLS.

Additional favorable veterinary testimony was provided by way of designated transcripts. Four lay

witnesses including both Alex and Jill Burnell, testified in person and denied the fundamental

assertions of MHS. Nonetheless, the Hearing Officer found MHS’ seizures were justified, finding

there was no evidence acceptable to him except the evidence provided by MHS who was present “on

the day” of the seizures. MHS has refused to provide a transcript or complete set of exhibits from



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those proceedings to BURNELLS prior to October 2015.

72. The BURNELLS horses have been under the custody and control of MHS for 32 months.

BURNELLS have been subject in the meanwhile to repeated prosecution by MHS, but the only

evidentiary rulings it contends it is bound by are those that it controls and has asserted that it is

within its “rights” as established by COUNTY’s rules, customs and practices and by California

animal welfare statutes, Penal Code section 597.1.

73. MHS has refused to return Romantic Star or Metsonized to the BURNELLS at any time

since the seizure (although it did agree to return Lucky Karma to its owner who made donations of

money and goods to it and nearly one year after its owner sued them). Devil’s Sis died after colic

surgery while in MHS’ care in or about July 2014.

74. MHS has claimed that it has expended 10s of thousands of dollars on the care of Romantic

Star and Metsonized and will never return those horses to the BURNELLS for the reason that state

law (CA Penal Code § 597.1) and local ordinances concerning strays (e.g. Marin Municipal Code

8.04.220) permit it to deny return of the horses unless paid to do so.

FIRST CAUSE OF ACTION CIVIL ACTION FOR DEPRIVATION OF RIGHTS

42 U.S.C. § 1983 (Both Plaintiffs Against all Defendants)

75. Plaintiffs incorporate the preceding paragraphs as if set forth here in full.

76. Defendants, acting under color of Marin County Municipal Ordinances and/or California

State Law and/or an alleged local authority granted to “animal services officers” within the County

of Marin and State of California, subjected, or caused to be subjected, Plaintiffs to the deprivation of

rights, privileges, or immunities secured to them by the Constitution and laws, and therefor shall be

liable to Plaintiffs for all injury caused thereby. Specifically, Plaintiffs allege interference with at

least their clearly established First Amendment liberty interests in privacy and property, Fourth

Amendment right to be free from unreasonable searches and seizures, with their Fifth Amendment

rights to due process, to be free from Double Jeopardy, to be compelled to be a witness or deprived



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of property, with their Fourteenth Amendment property and due process rights, and Eighth

Amendment right to be free from excessive fines grossly disproportional to the offense charged.

77. In doing the acts and/or omissions alleged herein, the individual defendants acted

intentionally against Plaintiffs in violation of their rights under the United States Constitution.

78. Plaintiffs were actually harmed.

79. Defendants’ conduct was a substantial factor in causing plaintiffs’ harm.

SECOND CAUSE OF ACTION TRESPASS UPON LAND USED FOR RAISING LIVESTOCK

(Both Plaintiffs Against Defendants MHS, MACHADO, HILL and ROGERS)


81. Landowners and tenants have a right to exclude persons from trespassing on private property;

the right to exclude persons is a fundamental aspect of private property ownership.

82. Plaintiffs owned and or occupied certain undeveloped agricultural property used for the

raising of breeding livestock within the County of Marin;

83. Defendants intentionally, recklessly, or negligently entered Plaintiffs’ property;

84. Plaintiffs did not give permission for the entry and/or alternatively Defendants exceeded the

scope of the permission to enter if any was given or authorized;

85. Plaintiffs were actually harmed; and

86. Defendants’ conduct was a substantial factor in causing Plaintiffs’ harm.

THIRD CAUSE OF ACTION TRESPASS TO CHATTELS

(Both Plaintiffs Against Defendants MHS, MACHADO, HILL and ROGERS)


88. Plaintiffs claim that Defendants wrongfully trespassed on their personal property.

89. Plaintiffs owned, possesses or had the right to possess certain equine breeding livestock;

90. Defendants intentionally interfered with Plaintiffs’ use or possession of the equines known as

Romantic Star, Devil’s Sis (aka Pookie), Radieschen (aka Radish), Metsonized (aka Nutsie), Lucky

Karma (aka Blackie), Aloha, Federalist and Redwine, and/or also damaged Romantic Star, Devil’s



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Sis (aka Pookie), Metsonized (aka Nutsie), Lucky Karma (aka Blackie), Aloha, Federalist and

Redwine and/also damaged the condition, quality, or value of Plaintiffs’ breeding livestock, or

deprived Plaintiffs of the use of the chattel for a substantial time, or caused harm to Plaintiffs’

breeding livestock which Plaintiffs had a legally protected interest as breeder, keeper or owner;

91. Plaintiffs did not consent;

92. Plaintiffs were harmed; and


FOURTH CAUSE OF ACTION CONVERSION

(Both Plaintiffs Against MHS)

94. Plaintiff incorporates the preceding paragraphs as if set forth here in full.

95. That Defendants intentionally and substantially interfered with Plaintiffs’ property by taking

possession of Devil’s Sis and Metsonized or preventing Plaintiffs from having access to them or

refusing to return them or destroying them. In addition, Defendants intentionally and substantially

interfered with Plaintiff’s right to the return of Romantic Star after his owner rescinded a certain

sales agreement made December 18, 2012.


97. Plaintiffs were harmed, and


FIFTH CAUSE OF ACTION PORTRAYING PLAINTIFFS IN A FALSE LIGHT

(Both Plaintiffs Against DEFENDANTS MHS, McKENNEY, MACHADO, ROGERS, RICCI, GHILOTTI AND WAGMAN)


100. Defendants caused dissemination of information that may be false or erroneous, that

placed Plaintiffs in a derogatory and false light; and that would be offensive to a reasonable person.

101. Plaintiffs were harmed by Defendants conduct.

//



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SIXTH CAUSE OF ACTION PUBLIC DISCLOSURE OF PRIVATE FACTS/

INVASION OF CONSTITUTIONAL RIGHT TO PRIVACY (Both Plaintiffs Against DEFENDANTS MHS, McKENNEY, MACHADO,

ROGERS, RICCI, GHILOTTI AND WAGMAN)


103. Defendants caused the dissemination of private facts concerning Plaintiffs, their home,

and business about which they had a reasonable expectation that intimate images would not be

disseminated publicly;

104. The disclosure was one that would be offensive to reasonable persons and/or this privacy

interest is one that society recognizes; and

105. There was an absence of a legitimate public concern, for example in facts including but

not limited to the condition of their persons and interior of Plaintiffs’ home or travel trailer, and may

be considered to be an egregious breach of social norms;


107. Plaintiffs were embarrassed, harassed, intimidated, suffered public shame including

threats of harm to themselves and their property and suffered economic harm as a result of

Defendants’ conduct.

SEVENTH CAUSE OF ACTION Intentional and/or Negligent Infliction of Emotional Distress

(Both Plaintiffs Against ALL DEFENDANTS Except COUNTY)


109. Plaintiffs claim that Defendants’ conduct caused them to suffer severe emotional distress.

110. Defendants’ conduct directed toward Plaintiffs was extreme as to exceed all bounds of

that usually tolerated in a civilized community or outrageous and ;

111. Defendants intended to cause Plaintiffs’ emotional distress, or Defendants acted with

reckless disregard of the probability that Plaintiffs would suffer emotional distress,

112. Plaintiffs suffered severe emotional distress; and

113. Defendants’ conduct was a substantial factor in causing Plaintiffs’ severe emotional



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distress.

PRAYER WHEREFORE, PLAINTIFFS demands judgment against defendant as follows:

1. For declaratory relief that California Penal Code section 597.1 is unenforceable as written for

failing to provide protections of accused to, inter alia, substantive and procedural due

process. Further, Plaintiffs are without an adequate remedy in the state courts to seek redress.

2. For injunctive relief, specifically that the County of Marin and the Marin Humane Society be

immediately and forever enjoined in connection with, inter alia, all of the following:

a. Failing to designate and requiring designation of appropriate persons, i.e. Humane

Officers (Cal. Corp. Code § 14502) as animal services officers and/or peace officers;

b. Failing to provide and requiring to provide adequate due process protections to

individuals from whom Marin Humane Society and/or its employees determine to

seize or have seized animals from lawful owners and/or keepers;

c. Privately contracting important animal welfare, health and safety law enforcement

services without regard to legislatively mandated requirements for training,

appointment and review of appropriate persons and demanding cessation of any law

enforcement activities until it is compliant with such statutory scheme;

d. Preventing Marin Humane Society from assessing unconscionable, cruel, unusual,

and/or punitive administrative fees that cause or are likely to cause the forfeiture of

personal property without due process of law; and

e. Permitting Marin Humane Society to engage in private fundraising for its own benefit

by its publication of “animal abuse” investigations (prior to conviction) performed

under the Animal Services Contract.

3. For all economic damages in an amount in excess of $15,000,000 (U.S. One million Dollars)

and subject to proof at trial;

4. For all noneconomic damages which are ongoing and subject to proof at trial, including but



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not limited to disgorgement of ill-gotten gains;

5. For all statutory damages permitted by laws of the State of California and the United States

of America;

6. Punitive and or exemplary damages with respect to the statutory and tort claims set forth

above in an amount being just;

7. For an award of reasonable costs and attorney’s fees as permitted by statute or contract; and

8. For all other equitable and legal relief to which plaintiff is entitled, including injunctive

orders, and other appropriate “make whole” relief.

Dated: August 4, 2015 WEEMS LAW OFFICES /s/ Margaret M. Weems

Margaret M. Weems, Attorney for Defendant, JILL BURNELL and ALEX BURNELL

DEMAND FOR JURY TRIAL

BURNELLS hereby demand a jury trial for all claims for which a jury is permitted.

Dated: August 4, 2015 WEEMS LAW OFFICES /s/ Margaret M. Weems

Margaret M. Weems, Attorney for Defendant, JILL BURNELL and ALEX BURNELL



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Documents

FIRST AMENDED COMPLAINT - Horse Authority