No. B222696.

THE URBAN WILDLANDS GROUP et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Respondents; NO KILL ADVOCACY CENTER et al., Movants and Appellants.

Court of Appeals of California, Second District, Division Eight.

Attorney(s) appearing for the Case

Akin Gump Strauss Hauer & Feld, Orly Degani and David Jonelis for Movants and Appellants No Kill Advocacy Center and Stray Cat Alliance.

Law Offices of Babak Naficy and Babak Naficy for Plaintiffs and Respondents The Urban Wildlands Group, Endangered Habitats League, Los Angeles Audubon Society, Palos Verdes/South Bay Audubon Society, Santa Monica Bay Audubon Society, and American Bird Conservancy.

Carmen A. Trutanich , City Attorney, Andrew J. Nocas and Mary J. Decker , Deputy City Attorneys, for Defendants and Respondents.



Plaintiffs are environmental protection groups with a common goal to prevent defendant City of Los Angeles (the City) from implementing a program to trap, neuter and release feral cats to the outdoors without conducting an adequate environmental review under the California Environmental Quality Act, Public Resources Code section 21000 et seq. (CEQA). The City opposed the lawsuit on the ground it had no such feral cat program but had only adopted the concept of a "trap, neuter, release" program. The City has consistently stated it would comply with CEQA before actually implementing any such feral cat program. The trial court found the City had done much more than to simply adopt the concept of a feral cat "trap, neuter, release" program and enjoined all further action until the City complied with CEQA. Plaintiffs and the City agreed to a modified injunction and final judgment, which the court entered.

After the trial court entered its final order and judgment, appellants, two animal protection groups, brought an ex parte motion to intervene. The court denied the motion as untimely. Appellants seek to reopen the lawsuit to dispute that CEQA applies to the City's feral cat program. We find the trial court exercised sound discretion in denying the motion to intervene and affirm.


In about 2006, the City began training staff on feral cat issues, including the concept of trapping, neutering and releasing them to "colonies" of such cats. The City also distributed vouchers to be used for feral cat spay or neuter surgeries, issued cat trapping permits, and otherwise provided support and referrals to community groups that engage in "trap, neuter, release" programs. In June 2008, plaintiffs filed their petition for writ of mandate and complaint seeking declaratory and injunctive relief, to bar the City from implementing a policy for feral cats without first completing a CEQA environmental review. In its answer, the City admitted it was working to define the scope of a proposed feral cat management program and that it had not released any CEQA documents for public comment but denied it had already commenced a "trap, neuter, release" program. The City contended it had done nothing more than to express public interest in and direct staff to investigate and propose such a program. The City always acknowledged it would have to comply with CEQA before implementing a "trap, neuter, release" program and claimed it had begun the environmental review process when preliminary efforts stopped due to budget reductions.

After the parties conducted discovery and submitted briefing, in December 2009, the trial court granted the petition for writ of mandate, declared the City had been implementing a feral cat program without CEQA compliance, and issued an injunction. Observing that the parties agreed that environmental review is necessary to implement a "trap, neuter, release" program, the court found the disputed issue between the parties was whether the City abused its discretion by "secretly and unofficially" implementing such a program before the environmental review was completed. The court found the City had removed restrictions on and facilitated the implementation of a "trap, neuter, release" program and even provided incentives to promote the program, which constituted much more than only adopting the program in concept.

The trial court entered its final judgment and permanent injunction in January 2010, prohibiting the City from implementing a "trap, neuter, release" program for feral cats until it had concluded an appropriate environmental review pursuant to CEQA. In February 2010, appellants, two animal protection groups that promote "trap, neuter, release" programs, brought an ex parte motion to intervene in the lawsuit. Appellants sought intervention to vacate or modify the injunction and to appeal from the trial court's judgment. The trial court denied the application as untimely. On March 10, 2010, the court entered a stipulated order modifying the final judgment and permanent injunction pursuant to terms agreed upon among plaintiffs and the City.

Appellants contend their motion to intervene was timely and they satisfied all the statutory conditions for intervention. Appellants claim to share a common cause with the City, to defeat plaintiffs' CEQA claim and to reduce the rate of killing feral cats. The City responded that it is working with its Bureau of Engineering in compliance with CEQA, as mandated by the trial court's order, to define a feral cat program, including the use of "trap, neuter, and return." The City contends that intervention at this point could impose additional litigation costs and further delay implementation of a City feral cat management program and the lifting of the injunction.


The trial court acted well within its discretion in denying the motion to intervene as untimely. Manifestly, there was no miscarriage of justice in denying appellants' ex parte application, made after entry of judgment, to hijack this lawsuit so as to reroute it into a controversy over issues the actual parties never had any interest in litigating. A motion for leave to intervene pursuant to Code of Civil Procedure section 387 must be timely, which at a minimum must mean before the case has been fully briefed and argued and the trial court has entered judgment. (Accord, Northern Cal. Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, 109 [motion to intervene untimely when made after trial court indicated ruling on motion for summary judgment].)

A party which cannot intervene or which has been denied intervenor status, but which has been aggrieved by an adverse judgment, may move to vacate the judgment pursuant to Code of Civil Procedure section 663 and then appeal if the motion is denied. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736-737; People ex rel. Reisig v. Broderick Boys (2007) 149 Cal.App.4th 1506, 1516 ["[T]here is a well-settled procedure by which an aggrieved person may move to set aside a judgment and then appeal if the motion is denied, thereby achieving party status"].) A motion to vacate the judgment pursuant to Code of Civil Procedure section 663 must be brought within the same time limits that apply to a motion for new trial: either (1) before the entry of judgment; or (2) within 15 days of the mailing of a notice of entry of judgment, or within 180 days after entry of judgment, whichever is earliest. (Code Civ. Proc., § 663a).

However, appellants never moved to vacate the judgment. Appellants ask us to treat this appeal as if it were an appeal from the denial of a motion to vacate the trial court's judgment so we may decide its validity. We cannot deem this appeal to be other than what it is. A motion to vacate judgment under Code of Civil Procedure section 663 has procedural requirements that were not met in appellants' motion to intervene: the notice of motion to vacate judgment must designate the grounds on which the motion will be made and specify the particular errors in the judgment. Moreover, the time within which the motion must be brought is jurisdictional.1

Appellants cite three cases in support of their request that we deem this to be an appeal from a motion to vacate judgment under Code of Civil Procedure section 663. None of the cited cases establishes that we have authority to deem this to be an appeal from a motion to vacate judgment under Code of Civil Procedure section 663. Indeed, none of the cases even refers to Code of Civil Procedure section 663. In Ryerson v. Riverside Cement Co. (1968) 266 Cal.App.2d 789, the court held an aggrieved party may move to intervene after entry of judgment where the trial court exceeded its jurisdiction in granting the relief decreed, reasoning that "[a] judgment void on its face may be set aside on motion without any time limitation." (Id. at p. 795.) Similarly, the court in Mary R. v. B. & R. Corp. (1983) 149 Cal.App.3d 308, held an aggrieved party whose motion to intervene had been properly denied could still collaterally attack a judgment that was "predicated on fraud, collusion, mistake, or lack of jurisdiction." (Id. at p. 315.) The court of appeal addressed the merits of an intervenor's claims after reversing the denial of the motion to intervene in Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th 1499. Here, appellants do not claim the judgment was predicated on fraud, collusion, mistake, or lack of jurisdiction, and we find no flaw in the trial court's logic that the motion to intervene was untimely.

No purpose would have been served by allowing appellants to intervene in this lawsuit. The City never had any interest in litigating whether a CEQA review is required before implementing the "trap, neuter, release" program; the City simply disputed its feral cat management efforts had developed to the point they constituted a project subject to CEQA review. The City has no interest in appealing the trial court's adverse finding that the City's activities did constitute a project requiring CEQA review. At this point, the formerly disputed issue whether the City did enough to require CEQA review of its feral cat management program is moot. The City has stipulated to the terms of an injunction it considers workable and is now undergoing the CEQA process. Once it has satisfied all CEQA requirements, the City hopes the trial court will dissolve the injunction.


The order denying intervention is affirmed. Respondents are to recover their costs on appeal.

We concur:




1. Appellants' counsel stated at oral argument that if we decline to construe this as an appeal from an order denying a motion to vacate the judgment, appellants will soon appear before us again to obtain a decision on the merits of their claims after they have made their motion to vacate and the trial court has denied it. Thus, they urge that affirmance of the order denying intervention will disserve the interests of judicial economy. However, appellants are not entitled to bring a motion to vacate pursuant to Code of Civil Procedure section 663, because the time within which they were permitted to bring such a motion has expired.


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