I George R. Najjar, Esq. (SBN 163923)THE NAJJAR LAW FIRM

2 1901 First Avenue, First FloorSan Diego, CA 92101

3 Tel.: (619) 233-3445Fax.: (619) 233-3446

4 Email: gnajjar 1 san.rr.corn

5 Attorney for Plaintiff National City Puppy, LLC, a California limited liability company

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO, CENTRAL DIVISION

10 NATIONAL CITY PUPPY, LLC,a California limited liability company,

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Plaintiff,

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Defendants.

14 CITY OF NATIONAL CITY,a municipal corporation;

15 ANGIL MORRIS-JONES, City Attorneyfor the City ofNational City; and,

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) CASE NO.:)) COMPLAINT FOR INJUNCTIVE) AND DECLARATORY RELIEF) [TO DETERMINE VALIDITY) OF ORDINANCE]))) UNLIMITED CIVIL CASE)) IMAGED FILE))))))))

20 Plaintiff NATIONAL CITY PUPPY, LLC, a California limited liability company, alleges as

21 follows:

22 PARTIES

23 1. PlaintiffNATIONAL CITY PUPPY, LLC, is a California limited liability company,

24 located at 1430 East Plaza Boulevard, National City, California 91950, with Secretary of State file

25 number 201817610483 (hereinafter, "PlaintifF'nd/or "NCP").

26 2. Defendant CITY OF NATIONAL CITY is a California municipal corporation

27 (hereinafter, "CITY OF NATIONAL CITY"), located in San Diego County at 1243 National City

28 Boulevard, National City, California 91950.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF[TO DETERMBK VALIDITY OF ORDINANCEj

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3. Defendant ANGIL MORRIS-JONES, is the City Attorney for the City ofNational City

(hereinafter, the "CITY ATTORNEY"). The CITY ATTORNEY, in such capacity, has been charged

by law in the ordinance hereinafter specified, at Section 2, subchapter 8.38.050, to "commence an

action or actions, proceeding or proceedings for the abatement, removal, or enjoinment thereof, in

any manner provided by law." The CITY ATTORNEY approved the subject ordinance "as to form."

4. Plaintiff is ignorant of the true names, interests, rights, and capacities of defendants

sued as DOES 1 through 25, inclusive, and therefore sues such defendants fictitiously. Plaintiff is

informed and believes that each fictitiously named defendant was in some manner legally responsible

for the events and happenings alleged in this Complaint.

5. Plaintiff is also informed and believes that at all times herein mentioned, DOES I

through 25, inclusive, were the agents, servants, and employees of their codefendants and in doing

the things hereinafter alleged were acting within the course and scope of their authority as agents,

servants, and employees with the permission and consent of their codefendants.

6. Plaintiff will amend this Complaint to allege the true names, rights, interests, and

capacities of those fictitiously named DOE defendants when ascertained.

FACTS

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7. On September 3, 2019, the City Council for the CITY OF NATIONAL CITY passed

and adopted Ordinance Number 2019-2463, adding Chapter 8.38 to the National City Municipal Code

to prohibit the retail sale of dogs, cats and rabbits (hereinafter, the "ORDINANCE," a true copy of

which is attached hereto as EXHIBIT A, and made a part hereof). The ORDINANCE adds "Chapter

8.38 Retail Sales of Dogs, Cats and Rabbits" to the National City Municipal Code. The

ORDINANCE, Section 2, Chapter 8.38, subchapter 8.38.030, provides as follows:

"Chapter 8.38 Retail Sales of Dogs, Cats and Rabbits

"8.38.030 Prohibition

(A) A pet shop or retail pet store or its operator shall not sell, deliver, offer for sale, barter,

auction or otherwise dispose ofa cat, dog, or rabbit except as provided in subsection

(B).

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF[TO DETERMINE VALIDITY OF ORDINANCE]

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(B) The provisions of subsection (A) shall not apply to:

(I) A publicly operated animal shelter or animal control enforcement agency,

animal rescue organization or nonprofit humane society;

(2) A pet shop or retail pet store offering a cat, dog, or rabbit owned by an animal

shelter or animal rescue organization for the purposes ofadoption or the cat,

dog, or rabbit by a member of the public, so long as the pet shop does not

receive any fee from the adoption and does not have any monetary or

ownership interest in the cat, dog, or rabbit.

(3) The sale or offering for sale ofa dog, cat or rabbit as part ofan adoption event

held by an animal shelter or rescue organization if the retail pet store or pet

shop does not receive any payment from the sale or offering or for the use of

the store or store resources in connection with the adoption event; or

(4) Dogs, cats and/or rabbits sold directly from the premises upon which they are

born and reared or through a breeder, excluding pet shops or retain pet stores."

8. Plaintiff NCP is a retail pet store operator which sells, delivers, offer for sale, or

otherwise disposes ofdogs as its primary source ofrevenue. Without being able to sell dogs, Plaintiff

NCP cannot earn revenue sufficient to operate in National City. None of the provisions stated in the

ORDINANCE, Section 2, Chapter 8.38, subchapter 8.38.030, subsection (B), as applied to Plaintiff

NCP, prevent the CITY ATTORNEY and the CITY OF NATIONAL CITY from commencing "an

action or actions, proceeding or proceedings for the abatement, removal, or enjoinment" to put

PlaintiffNCP out of business.

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9. Plaintiff NCP has no adequate remedy at law because monetary damages will not

afford adequate relief for the deprivation of PlaintiffNCP's constitutional rights.

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF[TO DETERMIhK VALIDITY OF ORDINANCE]

1 FIRST CAUSE OF ACTION

INJUNCTIVE RELIEF

(As Against Defendants CITY OF NATIONAL CITY,

CITY ATTORNEY, and DOES I through 25, inclusive)

10. Plaintiff hereby incorporates by reference all allegations contained in paragraphs I

through 8 of this Complaint as though fully set forth herein.

11. The ORDINANCE and Chapter 8.38 are invalid and unenforceable, both facially and

as construed by Defendants CITY OF NATIONAL CITY and CITY ATTORNEY, for the

ORDINANCE and Chapter 8.38:

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(a) are an invalid exercise ofpolice power in that they do not relate to a legitimategovernmental

concern;

(b) violate the Due Process Clause of the California Constitution, Article I, tJ 7

subd. (a);

(c) violate the Due Process Clause ofthe United States Constitution, Amendment

XIV, tl 1;

(d) are arbitrary and unreasonable, having no substantial relation to the public

health, safety, morals or general welfare (Substantive Due Process);

(e) if enforced, will terminally and adversely affect PlaintifFs business,

erroneously deprive Plaintiff of such interest without the possibility of any

procedural safeguards, and would require Defendants to incur significant if

not double fiscal and administrative burdens in that the greater protections

sought for animal safety and welfare, and public health, safety and general

welfare, cannot be reasonably met (Procedural Due Process);

(f) are void for vagueness in that they provide for arbitrary and discriminatory

enforcement by failing to provide explicit standards for those who apply them;

(g) place too great a burden on interstate commerce for purposes of the

Commerce Clause of the United States Constitution, Article 1, tl 8, cl. 3; and,

(h) are preempted by

California

AB485 and Health and Safety Code tJ 122354.5.

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF[TO DETERMINE VALIDITY OF ORDINANCEJ

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12. Unless Defendants CITY OF NATIONAL CITY and CITY ATTORNEY are

restrained by injunction, Plaintiff NCP will suffer severe, irreparable harm in that it will be forced

to close and cease conducting business in National City within thirty (30) days of the September 3,

2019, date of passage of the ORDINANCE. More specifically, Plaintiff NCP must close its retail

business by October 3, 2019.

13. To prevent such irreparable harm, PlaintiffNCP requests the Court issue a temporary

restraining order, preliminary injunction, then a permanent injunction as against Defendants CITY

OF NATIONAL CITY and CITY ATTORNEY, and each of them, and their agents, servants, and

employees, and all such persons acting under or in concert with them, from enforcing Ordinance

Number 2019-2463 and/or Chapter 8.38 of the National City Municipal Code.

SECOND CAUSE OF ACTION

DECLARATORY RELIEF

(As Against Defendants CITY OF NATIONAL CITY,

CITY ATTORNEY, and DOES 1 through 25, inclusive)

14. Plaintiff hereby incorporates by reference all allegations contained in paragraphs I

through 13 of this Complaint as though fully set forth herein.

15. An actual controversy has arisen and now exists between Plaintiff NCP and

Defendants CITY OF NATIONAL CITY and CITY ATTORNEY. PlaintiffNCP contends that the

ORDINANCE and Chapter 8.38 are invalid and unenforceable, both facially and as construed by

Defendants CITY OF NATIONAL CITY and CITY ATTORNEY, for the ORDINANCE and Chapter

8.38:

(a) are an invalid exercise ofpolice power in that they do not relate to a legitimate

governmental concern;

(b) violate the Due Process Clause of the California Constitution, Article I, (j 7

subd. (a);

(c) violate the Due Process Clause ofthe United States Constitution, Amendment

XIV, tj 1;

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF[TO DETERMINE VALIDITY OF ORDINANCE]

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(d) are arbitrary and unreasonable, having no substantial relation to the public

health, safety, morals or general welfare (Substantive Due Process);

(e) if enforced, will terminally and adversely affect Plaintiffs business,

erroneously deprive Plaintiff of such interest without the possibility of any

procedural safeguards, and would require Defendants to incur significant if

not double fiscal and administrative burdens in that the greater protections

sought for animal safety and welfare, and public health, safety and general

welfare, cannot be reasonably met {Procedural Due Process);

(f) are void for vagueness in that they provide for arbitrary and discriminatory

enforcement by failing to provide explicit standards for those who apply them;

{g) place too great a burden on interstate commerce for purposes of the

Commerce Clause of the United States Constitution, Article I, tj 8, cl. 3; and,

(h) are preempted by California AB485 and Health and Safety Code tj 122354.5.

PRAYER

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Wherefore, PlaintiffNATIONAL CITY PUPPY, LLC, a California limited liability company,

prays the Court for relief against Defendants CITY OF NATIONAL CITY, CITY ATTORNEY, and

DOES I through 25, inclusive, as follows:

FOR EACH CAUSE OF ACTION:

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l. A temporary restraining order, a preliminary injunction, and a permanent injunction,

all enjoining Defendant, and each ofthem, and their agents, servants, and employees,

and all such persons acting under or in concert with them, from enforcing Ordinance

Number 2019-2463 and/or Chapter 8.38 of the National City Municipal Code;

2. A declaration by the Court that Ordinance Number2019-2463 and Chapter 8.38 ofthe

National City Municipal Code are unconstitutional and/or otherwise invalid and

unenforceable;

3. Reasonable attorney fees, according to proof, pursuant to Code of Civil Procedure

section 1021.5;

4. Costs of suit herein incurred; and,6

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF[TO DETERMIhK VALIDITY OF ORDINANCEj

5. Such further relief, in law or in equity, as this court deems just and proper.

Respectfully submitted,

THE NAJJAR LAW FIRM

Dated: September 13, 2019

GeorgieAttorney

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF[TO DETERMINE VALIDITY OF ORDINANCE]

EXHIBIT A

ORDINANCE NO. 2019-2463

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY ADDINGCHAPTER 8.38 TO THE NATIONAL CITY MUNICIPAL CODE PROHIBITING THE RETAIL

SALE OF DOGS, CATS AND RABBITS

WHEREAS, the City of National City (the "City" ), pursuant to the police powersdelegated to it by the California Constitution, has the authority to enact or amend laws which

promote the public health, safety, and general welfare of its residents; and

WHEREAS, the U.S. Congress passed the Animal Welfare Act in 1966 (7 U.S.C. it2131 et seq.), a federal law that regulates the minimum standards of care and treatment for certainanimals bred for commercial sale, including but not limited to dogs, cats and rabbits, which isenforced by the United States Department of Agriculture and Animal and Plant Health InspectionService (USDA) and requires certain large scale animal breeders and dealers to be registered andlicensed; and

WHEREAS, the Pet Rescue and Adoption Act, otherwise known as AB485, a newlyenacted state law effective January 1, 2019, prohibits a pet store operator from selling a dog, cator rabbit in a pet store unless they were obtained from a public animal control agency or shelter,society for the prevention of cruelty to animals shelter, humane society shelter, or rescue groupthat is in cooperative agreement with at least one private or public shelter, and

WHEREAS, California Health and Safety Code section 122354.5(g) allows a local

governing body to adopt requirements that are more protective of animal welfare than those setforth in the Pet Rescue and Adoption Act; and

WHEREAS, Investigations and research by the Companion Animal ProtectionSociety (CAPS) have shown that California pet shops are using fake rescues to circumvent newlyenacted state law and act as pass-throughs between puppy mills and pet shops; and

WHEREAS, CAPS and The American Society for the Prevention of Cruelty toAnimals (ASPCA) report that puppy mills mass produce animals for the pet industry in

overcrowded and unsanitary conditions without adequate food, water, exercise, socialization orveterinary care and many of the animals face an array of health problems that are discovensd afterpurchase at a retail store; and

WHEREAS, according to The Humane Society of the United States there areapproximately 2.4 million puppies sold annually who originated from puppy mills, USDA licensedand non-USDA licensed and there are an estimated 3 million dogs and cats euthanized by sheltersevery year in the United States; and

WHEREAS, the City Council has been approached by animal activists, animalshelters and City residents urging the City to enact further regulations which prohibit the retailsale of cats, dogs and rabbits and discourage the promulgation of unregulated and negligentcommercial breeders or pet shop operators which despite state law continue to offer animalsthroughout San Diego County for retail sale under the guise of non-profit rescue agencies; and

Ordinance No. 2019 — 2483 Page1of 8 Retail Sales of Dogs, Cats and RabbitsAdding NCMC Chapter 8.38

WHEREAS, pet stores often engage in offsite, even out of state, commercialbreeding and/or purchase animals from offsite or out of state commercial breeders or brokerscreating a degree of removal which obscures the ability of the City and/or the County of San DiegoHumane Society to regulate the conditions in which the breeding took place and/or how theanimals were cared for prior to being brought to the pet store; and

WHEREAS, the City of National City seeks to close the loopholes in California Statelaw and enact greater protections for animal safety and welfare and for the public health, safety,and general welfare of its residents by prohibiting a pet shop or retail pet store or its operator fromselling, delivering, or offering for sale, barter, auction or otherwise disposing of a cat, dog, orrabbit with exceptions for: (i) A publicly operated animal shelter or animal control enforcementagency, animal rescue organization or nonprofit humane society; {ii) A pet shop or retail pet storeoffering a cat, dog, or rabbit owned by an animal shelter or animal rescue organization forpurposes of adoption of the cat, dog, or rabbit by a member of the public, so long as the pet shopdoes not receive any fee from the adoption and does not have any monetary or ownership interestin the cat, dog, or rabbit; (iii) The sale or offering for sale of a dog, cat or rabbit as part of anadoption event held by an animal shelter or rescue organization if the retail pet store or pet shopdoes not receive any payment from the sale or offering or for the use of the store or storeresources in connection with the adoption event; or {iv) Dogs, cats and/or rabbits sold directlyfrom the premises upon which they are born and reared or through a breeder, excluding pet shopsor retail pet stores.

NOW, THEREFORE, the City Council of the City of National City does ordain as follows:

Section 1. All protests, if any, against said amendment to the Municipal Code and each ofthem be and hereby are denied and overruled.

Section. 2. Chapter 8.38 of the National City Municipal Code is hereby added to read as follows:

Chapter 8.38 Retail Sales of Dogs, Cats and Rabbits

8.38.010 Purpose.

It is the purpose and intent of the city council in this chapter to promote animal safetyand welfare, public health, safety and welfare, and encourage best practices in the acquiring ofdogs, cats and rabbits offered for retail sale or adoption in the City of National City.

8.38.020 Definitions.

For the purpose of this Chapter, the following definitions shall apply:

(A) "Animal Shelter", means a public animal shelter or control facility operated by any city, countyor other public agency or an entity operating under contract with any city, county or other public agencyfor the purpose of protecting animals from cruelty, neglect or abuse.

(B) "Animal Rescue Organization", means a nonprofit organization that has tax-exempt statusunder section 501(c){3) of the Internal Revenue Code and whose mission and practice is, in wholeor in significant part, the rescue, care and adoption of dogs, cats and/or rabbits. The term does notinclude a breeder or broker for payment or compensation.

Ordinance No. 2019- 2463 Page2of 5 Retail Sales of Dogs, Cats and RabbitsAdding NCMC Chapter S.3S

(C) "Breeder" means a person that owns or maintains dogs, cats, or rabbits for the purpose ofbreeding and selling their offspring for retail or wholesale or a person required to hold a class Alicense pursuant to the Animal Welfare Act, 7 U.S.C. tt 2131, et seq.

(D) "Broker" means a person that transfers dogs, cats, or rabbits for resale by another personand is required to hold a class B license by the United States Department of Agriculture pursuantto the Animal Welfare Act, 7 U.S.C. tt 2131, et seq.

(E) "Cat" means a Felis domesticus of either sex, altered or unaltered.

(F) "Dog" means a Canis familiaris of either sex, altered or unaltered.

(G) "Operator" means a person who owns or operates a retail pet store, or both, and/or whohires employees at a retail pet store or pet shop to engage in the retail sale of dogs, cats and/orrabbits.

(H) "Pet Shop" or "Retail Pet Store" means any place or premise where birds, mammals, orreptiles are kept for the purpose of either wholesale or retail sale, import, export, barter, exchangeor gift.

(l) "Rabbit" means an Oryctolagus cuniculus of either sex, altered or unalterml.

8.38.030 Prohibition

(A) A pet shop or retail pet store or its operator shall not sell, deliver, offer for sale, barter, auctionor otherwise dispose of a cat, dog, or rabbit except as provided in subsection (B).

(B) The provisions of subsection (A) shall not apply to:

(1) A publicly operated animal shelter or animal control enforcement agency, animalrescue organization or nonprofit humane society;

(2) A pet shop or retail pet store offering a cat, dog, or rabbit owned by an animalshelter or animal rescue organization for purposes of adoption of the cat, dog, orrabbit by a member of the public, so long as the pet shop does not receive any feefrom the adoption and does not have any monetary or ownership interest in the cat,dog, or rabbit;

(3) The sale or offering for sale of a dog, cat or rabbit as part of an adoption eventheld by an animal shelter or rescue organization if the retail pet store or pet shopdoes not receive any payment from the sale or offering or for the use of the store orstore resources in connection with the adoption event; or

(4) Dogs, cats and/or rabbits sold directly from the premises upon which they areborn and reared or through a breeder, excluding pet shops or retail pet stores.

Ordinance No. 2019 — 2463 Page3of 5 Retail Sales of Dogs, Cats and RabbitsAdding NCMC Chapter S.38

8.38.040 Inspection by officials

(A) Each pet shop or retail pet store shall maintain records sufficient to document the source ofeach dog, cat, or rabbit that the pet shop acquires for at least one year following the date ofacquisition. Such records shall be made available, immediately upon request, to any police officer,code enforcement officer, animal control officer, humane law enforcement officer or otherinvestigating official.

(B) The city, county, or any investigating official shall have the right to enter the premises ofany pet shop or retail pet store from time to time during regular business hours to conductreasonable inspections to ensure and verify compliance with this chapter. No person shallrefuse to permit or interfere with a lawful inspection of any pet shop or retail pet store by city orcounty investigating officials.

8.38.050 Enforcement and Remedies

(A) A violation of any provision of this chapter or failure to comply with any requirement thereofshall be punishable as provided in National City Municipal Code chapters 1.20, 1.44, and 1.48.Each event or transaction in which a dog, cat, or rabbit is sold or offered for sale in violation of thissection shall constitute a separate offense.

(B) Any person, operator, pet shop or retail pet store operating or conducting or maintaining apet shop or retail pet store contrary to the provisions of this chapter and/or state and federal lawsshall be and the same is hereby declared to be unlawful and a public nuisance. The city attorneymay, in addition to the penalties proscribed in this section, commence an action or actions,proceeding or proceedings for the abatement, removal, or enjolnment thereof, in any mannerprovided by law.

(C) The remedies and penalties provided in this section are cumulative and in addition to anyother remedies available at law or in equity.

Section 3. Severability. If any section, sentence, clause or phrase of this Ordinance is for

any reason held to be invalid or unconstitutional by a decision of any court of competentjurisdiction, such decision shall not affect the validity of the remaining portions of this

Ordinance. The City Council hereby declares that it would have passed this ordinance andadopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective ofthe fact that any one or mors section, subsections, sentences, clauses, or phrases be declaredinvalid or unconstitutional.

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Ordinance No. 2019- 2463 Page4of 5 Retail Sales of Dogs, Cats and RabbitsAdding NCMC Chapter 8.38

Section 4. This Ordinance shall take effect and be in force thirty (30) days from the date of itspassage, and before the expiration of fifteen (15) days after its passage, it or a summary of it, shall bepublished once, with ths names of the members of the City Council voting for and against the same in

the Star News, a newspaper of general circulation published i th Co ty f Sa D' lif

PASSED and ADOPTED this 3rd da

Alejan ote So, Mayor

ATTEST:

+Michael R. Dbfa, City Clerk

APPROVED AS TO FORM:

Ordinance No. 2019- 2463 Page5of 5 Retail Sales of Dogs, Cats and RabbitsAdding NCMC Chapter 8.35

Passed and adopted by the Council of the City of National City, California, onSeptember 3, 2019 by the following vote, to-wit:

Ayes:

Nays:

Councilmembers Cano, Quintero, Rios, Sotelo-Solis.

Morrison.

Absent: None.

Abstain: None.

AUTHENTICATED BY: ALEJANDRA SOTELO-SOLISMayor of the City of National City, California

City Clerk of the City of National City, California

~Deputy

I HEREBY CERTIFY that the foregoing Ordinance was not finally adopted until sevencalendar days had elapsed between the day of its introduction and the day of its finalpassage, to wit, on August 20, 2019 and on September 3, 2019.

I FURTHER CERTIFY THAT said Ordinance was read in full prior to its final passage orthat the reading of said Ordinance in full was dispensed with by a vote of not less thana majority of the members elected to the Council and that there was available for theconsideration of each member of the Council and the public prior to the day of itspassage a written or printed copy of said Ordinance.

I FURTHER CERTIFY that the above and foregoing is a full, true and correct copy ofORDINANCE NO. 2019-2483 of the City Council of the City of National City, passedand adopted by the Council of said City on September 3, 2019.

City Clerk of the City of National City, California

By:Deputy