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December 17, 2008
THE TERMO COMPANY, PLAINTIFF AND APPELLANT,v.BRIDGETT LUTHER, AS DIRECTOR, ETC., ET AL., DEFENDANTS AND RESPONDENTS;HUNT PETROLEUM (AEC), INC., REAL PARTY IN INTEREST AND RESPONDENT.ANGUS PETROLEUM CORPORATION, PLAINTIFF AND APPELLANT,v.BRIDGETT LUTHER, AS DIRECTOR, ETC., ET AL., DEFENDANTS AND RESPONDENTS;HUNT PETROLEUM (AEC), INC., REAL PARTY IN INTEREST AND RESPONDENT.
Appeals from a judgment of the Superior Court of Orange County, Thierry Patrick Colaw, Judge. Reversed and remanded. Motion to dismiss denied. Request for judicial notice denied. (Super. Ct. Nos. 05CC00289 & 05CC00280).
The Director of Conservation (Director) (Pub. Resources Code, § 3003) affirmed an administrative order of the State Oil and Gas Supervisor (Supervisor) (Pub. Resources Code, § 3004) directing the plugging and abandonment of 28 oil wells. The Termo Company (Termo) and Angus Petroleum Corporation (Angus) filed petitions for administrative mandamus seeking to overturn the Director's decision of affirmance and the underlying administrative order. The trial court denied the petitions and Termo and Angus now appeal from the trial court judgment.
Termo and Angus list many reasons why they believe the trial court, as well as the Director, erred. We need address only one of their points. They assert that the trial court erred in applying the substantial evidence standard of review. We agree.
In the context before us, the right to continue to operate existing oil wells and to extract oil is a fundamental right, of particular importance in the current economic climate. Here, the fundamental right is also a vested right, given the number of years the wells have been either in operation or in idle status (Pub. Resources Code, § 3008 subd. (d)). When the wells were ordered plugged and abandoned, such that the right to extract oil from them was terminated, that fundamental vested right was affected. Ordinarily, when a fundamental vested right is at issue, and a writ proceeding is commenced, Code of Civil Procedure section 1094.5 provides that an independent judgment standard of review shall be applied. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8 (Fukuda).) However, there is an exception to this general rule. As Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335 (TexCal) teaches us, the Legislature may mandate that a substantial evidence standard of review shall be applied in a particular context instead, provided it also ensures that certain due process safeguards are met. Although Public Resources Code section 3355 sets forth a standard of review to be applied with respect to a decision of the Director, it does not clearly express a substantial evidence standard. Furthermore, the requisite due process safeguards are lacking. Consequently, the trial court should have applied the independent judgment standard of review.
We reverse the judgment and remand the matter to the trial court with directions to reconsider the matter under the independent judgment standard of review. In addition, we deny the motion to dismiss Angus's appeal and we deny Angus's request for judicial notice.
(1) Supervisor's Order
On July 19, 2005, the Supervisor, on behalf of the Department of Conservation's (Pub. Resources Code, § 3001) Division of Oil, Gas, and Geothermal Resources (Division) (Pub. Resources Code, § 3002), issued Order No. 976 (the Order) pertaining to 28 unabandoned wells comprising the Springfield Unit, located in Huntington Beach, California. The following information is taken from the Order.
Hunt Petroleum (AEC), Inc. (Hunt) and Angus each own one-half interests in the Springfield Unit and Angus was the original unit operator. There has been no production from any of the wells since August 1998. Angus wants to resume production, but Hunt does not.*fn1
Termo acquired all of the stock of Angus in 1995, and then provided a blanket bond for the wells. The Supervisor then viewed Termo as the operator of the wells under Public Resources Code section 3202.
Angus did not remain a Termo subsidiary, however. In 2004, Termo sold all of the Angus stock to South Coast Oil Corporation (South Coast). However, neither Termo nor South Coast filed a report of property/well transfer or acquisition with the Division, and South Coast provided neither a bond nor a designation of agent. Consequently, the Supervisor continues to recognize Termo as the operator of the wells.
The Order stated: "The Supervisor has concluded that the Unit wells have no potential for future commercial production and as idle wells pose a threat to public health and safety and natural resources. This unsatisfactory state appears to be the consequence of the impasse between the two working interest owners in the Unit, Hunt and Angus (as now owned by South Coast), regarding the propriety of attempting to resume unit production operations. . . . This impasse now has taken the form of litigation brought by Hunt against Angus to terminate the Unit so that the wells can be plugged and abandoned. . . . [¶] The Supervisor agrees with Hunt's assessment of the Unit wells' potential and disagrees with Angus' assessment and has determined that the state of affairs surrounding operations, or rather the absence of operations, in the Unit . . . constitutes credible evidence of desertion of all Unit wells under Section 3237(a)(2) of the [Public Resources Code], warranting the plugging and abandonment of all Unit wells. The failure of South Coast to comply with Section 3202's bonding requirement, causing a failure to complete the operator transfer from Termo to South Coast, constitutes a rebuttable presumption of desertion of all Unit wells under Section 3237(a)(3)(E) of the [Public Resources Code], warranting the plugging and abandonment of all Unit wells. The Supervisor also has determined that all Unit wells should be plugged and abandoned to protect public health and safety and natural resources."
In conclusion, the Supervisor ordered that all of the wells be plugged and abandoned and that all production facilities be removed, citing Public Resources Code sections 3208, and 3228-3230, and certain regulations. The Order stated that the implementation of its terms was the responsibility of Termo, as the operator of the wells, but that Angus and/or Hunt were at liberty to undertake the plugging, abandonment, and facilities removal. The Order also provided that if the specified work had not been undertaken within the stated timeframe, the Supervisor would contract for the work and recover the costs from Termo's blanket bond, and, furthermore, that to the extent the costs were not satisfied by the blanket bond, the unrecovered costs would constitute a lien against the real or personal property of Termo.
(2) Director's Decision
South Coast, on behalf of Angus, and Termo appealed the Order to the Director. In his November 16, 2005 decision (the Decision), the Director affirmed the Order. The Decision stated that the wells were deserted, within the meaning of Public Resources Code section 3237, because: (1) there had been no production for seven years and no attempt at production; (2) Angus and Hunt were at a stalemate concerning future operations; and (3) the geology was "not conducive to a contained flood operation." It also said that a rebuttable presumption of desertion had arisen under Public Resources Code section 3237, subdivision (a)(3)(E), since neither Angus nor South Coast had posted an indemnity bond as required by Public Resources Code section 3202.
(1) Petitions for Administrative Mandamus
Termo filed a petition for administrative mandamus in the superior court, seeking to set aside the Decision. It contended that the Director had acted in excess of his jurisdiction and that the Decision was unreasonable and unsupported by the evidence. Termo also filed an amended petition and complaint for declaratory relief. It sought a judicial declaration concerning: (1) whether it had ever been an operator of the wells; (2) whether it had, since the date it sold its interest in Angus, any obligation to maintain a performance bond; (3) the respective rights and obligations of the parties pertaining to the plugging and abandonment of the wells; (4) the respective rights and obligations of the parties with respect to the satisfaction of the costs of compliance with the Order; and (5) the party whose assets could be subjected to a lien with respect to those costs.
Angus also filed a petition for administrative mandamus to challenge the Decision. Angus joined in Termo's arguments and made additional arguments as well. The two petitions were consolidated. The court denied both petitions, dismissed Termo's complaint for declaratory relief, and entered judgment accordingly.
(2) Appellate Filings
Angus filed a petition for a writ of supersedeas and a request for a temporary stay of the Order and Decision. Termo joined in the petition. This court denied the petition and the request for stay.
Termo and Angus also filed notices of appeal from the judgment and from an order denying a request for a statement of decision. The Director, the Supervisor and the Division (collectively "the Director" where the context requires), jointly, and Hunt have filed briefs in support of the judgment, as well as the Order and Decision. We turn now to the appeals.
There are several miscellaneous items pending before this court, i.e., a motion to dismiss, a request for judicial notice, and objections to a party's appendix. We address these matters in turn.
(1) Motion to Dismiss
Two notices of appeal have been filed in this matter. The first was filed on March 26, 2007, by Termo. The notice of appeal states that the appeal is taken from a judgment entered on January 17, 2007, and from a postjudgment order denying Termo's request for a statement of decision, and that the notice of entry of judgment was served on January 25, 2007. The second notice of appeal was filed on March 28, 2007, by Angus. It states that the appeal is taken from the January 17, 2007 judgment, and from a postjudgment order denying Termo's request for a statement of decision. The second notice of appeal also states that notice of entry of judgment was served on January 25, 2007, and that the appeal is filed pursuant to California Rules of Court, rule 8.108(e).
The first notice of appeal was filed within 60 days after notice of entry of judgment was served on Termo, and is thus timely under California Rules of Court, rule 8.104(a)(2). The second notice of appeal was not filed within that 60-day period. For this reason, Hunt has filed a motion to dismiss the second appeal as untimely filed. The Director has joined in Hunt's motion to dismiss.
Angus has filed an opposition to the motion. In its opposition, Angus argues that the appeal is timely pursuant to California Rules of Court, rule 8.108(e)(1), as in effect in 2007.*fn2 That rule states: "If an appellant timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is extended until 20 days after the superior court clerk mails notification of the first appeal."
Hunt contends that California Rules of Court, rule 8.108(e)(1) is inapplicable, for two reasons. First, Hunt says the rule applies only to cross-appeals and Angus did not file a cross-appeal. Second, Hunt asserts that the rule applies only when the party seeking to utilize the 20-day extension period is adverse to the first party to file an appeal. We disagree.
Although the topic heading to California Rules of Court, rule 8.108(e) reads "Cross-appeal," as Angus points out, "[b]y definition, a cross-appeal is any appeal filed after the first appeal [citation], and [the] rule . . . does not differentiate between cross-appeals which are protective and those which are independent." (Life v. County of Los Angeles (1990) 218 Cal.App.3d 1287, 1297-1298, fn. omitted.) Moreover, "[t]he usual rules of statutory construction are applicable to the interpretation of the California Rules of Court. [Citation.]" (Id. at p. 1296.) "'"When statutory language is . . . clear and unambiguous there is no need for construction, and courts should not indulge in it." [Citation.]' [Citation.] Under the guise of construction, the court will not rewrite a law and will not give the words an effect different from the plain and direct import of the terms used. [Citation.]" (Ibid.) Here, the text of rule 8.108(e)(1) contains no limitation of the type asserted by Hunt. It requires neither that an appeal be denominated a "cross-appeal" nor that the second party to file an appeal be adverse to the first party to do so, in order for the 20-day extension period to apply.
In this case, Termo filed a timely appeal from a judgment and an order and, two days thereafter, Angus filed an appeal from the same judgment and order. The appeal of Angus is timely filed under California Rules of Court, rule 8.108(e)(1). The motion to dismiss is denied.
(2) Request for Judicial Notice and Objections to Appendix
On August 22, 2007, Angus filed a request that this court take judicial notice of 12 designated documents. On that same date, Angus filed an appendix. The third through 14th exhibits attached to that appendix are the same as the 12 documents attached to the request for judicial notice. Hunt filed an opposition to the request for judicial notice, and objections to the third through 14th exhibits attached to Angus's appendix. Angus thereafter lodged certified copies of most the documents that are the subject of the request for judicial notice.*fn3
The items at issue include certain city council meeting minutes, a zone change ordinance, a conditional use permit, a motion for summary judgment filed in unrelated litigation, certain designations of agents, a certificate of resolution of the board of directors of Termo, a report of well transfer, a blanket bond, a certificate of deposit, and certain agreements to become parties to a unit agreement. Hunt represents that none of these documents were presented to either the administrative hearing officer or the trial court. Angus states that the materials were "referenced in the proceedings below . . . , either directly in footnotes or passing references, or indirectly by implication," but were "not directly provided." Hunt also notes that six of the documents are dated after the date of the administrative proceedings at issue here.
We do not take judicial notice of documents that were not provided to the trial court. (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1450.) Consequently, we deny the request for judicial notice.
In addition, we treat Hunt's objections to the appendix as a motion to strike. An appellant's appendix may only include copies of documents that are contained in the superior court file. (Cal. Rules of Court, rule 8.124(g).) Therefore, we strike the third through 14th exhibits attached to Angus's appendix. (Cal. Rules of Court, rule 8.124(g) [court may sanction party for filing noncompliant appendix].)
(1) Introduction
The trial court applied a substantial evidence standard of review. Both Angus and Termo contend the trial court erred in so doing. They argue that because they have fundamental vested rights at stake, the trial court should have applied the independent judgment standard of review. We agree, for reasons we shall show.
(2) Code of Civil Procedure Section 1094.5
(a) General Rule
Public Resources Code section 3354 permits the review of a decision of the Director through a writ of administrative mandamus proceeding. Code of Civil Procedure "[s]ection 1094.5 sets out the procedure for obtaining judicial review of a final administrative determination by writ of mandate. Two subdivisions of section 1094.5 are relevant here. Subdivision (b) provides that '[t]he inquiry in such a case shall extend to the questions whether the [agency] proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.'" (Fukuda, supra, 20 Cal.4th at p. 810.)
"Subdivision (c) of [Code of Civil Procedure] section 1094.5 provides in full: 'Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.'" (Fukuda, supra, 20 Cal.4th at pp. 810-811.) However, Code of Civil Procedure "[s]ection 1094.5 does not, on its face, specify which cases are subject to independent judgment review." (Fukuda, supra, 20 Cal.4th at p. 811.)
When the Legislature has not specified the standard of review that applies in a particular instance and "a trial court reviews a final administrative decision that substantially affects a fundamental vested right, the court 'not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence . . . .' [Citation.] By contrast, . . . '[i]f the administrative decision does not involve, or substantially affect, any fundamental vested right, the trial court must . . . review the entire administrative record to determine whether the findings are supported by substantial evidence and whether the agency committed any errors of law . . . .' [Citation.]" (Fukuda, supra, 20 Cal.4th at p. 816, fn. 8.)
As our Supreme Court has stated, where fundamental vested rights are at stake, "independent judgment review is necessary to protect individual liberty: 'At a time in this technocratic society when the individual faces ever greater danger from the dominance of government and other institutions wielding governmental power, we hesitate to strip him of a recognized protection against the overreaching of the state. The loss of judicial review of a ruling of an administrative agency that abrogates a fundamental vested right would mark a sorry retreat from bulwarks laboriously built. Such an elimination would . . . destroy a bed-rock procedural protection against the exertion of arbitrary power.' [Citation.]" (Fukuda, supra, 20 Cal.4th at pp. 816-817, fn. 8.)
(b) Fundamental Vested Right
Angus and Termo argue that the independent judgment standard of review applies here because a fundamental vested right is at issue. "'Whether an administrative decision substantially affects a fundamental vest right must be decided on a case-by-case basis. [Citation.]'" (Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1526 (Goat Hill Tavern).) In making that determination in this case, Goat Hill Tavern provides guidance.
In Goat Hill Tavern, supra, 6 Cal.App.4th 1519, a tavern had been in continuous operation since 1955. A conditional use permit was issued in 1974, allowing a beer garden to be added to the tavern. (Id. at p. 1522.) The tavern changed hands in 1984 and the new owner spent about $1.75 million to refurbish the establishment. Four years later, he knocked out a wall and turned an adjoining commercial space into a game room. Only afterwards, he sought and obtained a temporary conditional use permit for the expansion. (Id. at p. 1523.) The conditional use permit was renewed more than once. However, in 1990 an application for renewal of the conditional use permit was denied. (Ibid.) Tenants in a nearby apartment complex and some neighboring business owners had complained about late night noise and trash problems associated with the tavern, and about drunken patrons as well. (Id. at p. 1524.)
The tavern owner sought a writ of administrative mandamus, pursuant to Code of Civil Procedure section 1094.5, to compel the renewal of the conditional use permit. (Goat Hill Tavern, supra, 6 Cal.App.4th at p. 1525.) The trial court, applying an independent judgment standard of review, granted writ relief. (Ibid.) We affirmed. (Id. at p. 1522.)
In addressing whether the tavern owner had a vested fundamental right at stake, we noted, "'[t]he term "vested" in the sense of "fundamental vested rights" to determine the scope of judicial review . . . [in an administrative mandamus proceeding] is not synonymous with . . . the "vested rights" doctrine relating to land use and development.' [Citation.] 'When an administrative decision affects a right which has been legitimately acquired or is otherwise vested, and when that right is of a fundamental nature from the standpoint of its economic aspect or its effect . . . in human terms and the importance . . . to the individual in the life situation, then a full and independent judicial review of that decision is indicated because [t]he abrogation of the right is too important to the individual to relegate it to exclusive administrative extinction.' [Citation.]" (Goat Hill Tavern, supra, 6 Cal.App.4th at p. 1526.)
Given the facts before us, we concluded that the tavern owner had a fundamental vested right to continue the operation of the business. It was not "a 'purely economic privilege,'" but rather, was "the right to continue operating an established business in which [the owner had] made a substantial investment." (Goat Hill Tavern, supra, 6 Cal.App.4th at p. 1529.) We further explained: "'Where a permit has been properly obtained and in reliance thereon the permittee has incurred material expense, he acquires a vested property right to the protection of which he is entitled. [Citations.]'" (Id. at p. 1530.) "By simply denying renewal of its conditional use permit, the city destroyed a business which [had] operated legally for 35 years. The action implicate[d] a fundamental vested right of the property owner, and the trial court was correct in applying the independent judgment test." (Id. at p. 1531, fn. omitted.)
The case before is equally compelling. Although we do not know exactly when Angus acquired the real property in question, we do know that Angus recorded a "Unit Agreement" with respect to the real property in 1987. In 1989, it entered into a "Unit Operating Agreement" with Columbia Gas Development Corporation.*fn4 Drilling began no later than 1990. The wells began producing in 1992 and continued producing until they were idled in 1998. In 2005, the Director ordered testing of the idle wells, and the testing was performed satisfactorily. Angus now desires to put the wells back on line, and has produced at least some evidence that production may be feasible.*fn5
This notwithstanding, the Director has ordered the plugging and abandonment of the 28 wells. The implementation of the Order and Decision would have the effect not only of shutting down a business that has been in existence for 20 years or more, but also of terminating the right to produce oil-an extraordinarily valuable resource, especially in the current economic era. There is no indication that the real property underlying the Springfield Unit was not legitimately acquired or that the drilling and pumping of oil was not undertaken in accordance with applicable statutory mandates. Therefore, we must conclude that the right to extract oil is vested. Moreover, the right is fundamental considering its potentially massive economic aspect and its considerable effect in human terms. (Goat Hill Tavern, supra, 6 Cal.App.4th at p. 1526.) Certainly, a fundamental vested right is at issue.*fn6 (See also San Benito Foods v. Veneman (1996) 50 Cal.App.4th 1889.)
The Director disagrees. He maintains that Goat Hill Tavern, supra, 6 Cal.App.4th 1519 is inapplicable because, in the case before us, no license or permit granting a right to operate the 28 oil wells has been issued. In this context, this is a distinction without a difference. As the Director himself states, "the Supervisor regulates how Termo and Angus drill, operate, maintain and plug and abandon the wells they use in their oil producing business." In other words, the Supervisor, through his regulatory authority, is eliminating the right of the owners of the wells to bring them back on line, to operate them, and to extract oil. To argue that the issuance of a license or permit per se is outcome determinative is to elevate form over substance. We are talking about government permission of one sort or another to carry on a business, and here, to produce oil. The principles of Goat Hill Tavern clearly apply.
(3) Alternative Statutory Standard of Review
(a) Introduction
Although we have determined that a fundamental vested right is at issue for the purposes of the application of Code of Civil Procedure section 1094.5, that is not the end of our inquiry. As our Supreme Court has said, "the Legislature [is] free . . . to specify . . . that certain administrative determinations need to be subjected only to substantial evidence review rather than independent judgment review." (Fukuda, supra, 20 Cal.4th at p. 824, fn. 17.)
In Tex-Cal, supra, 24 Cal.3d 335, the court addressed just such a legislative pronouncement. The statute at issue there was Labor Code section 1160.8, pertaining to the review of final orders of the Agricultural Labor Relations Board (ALRB). (Id. at pp. 340-341.) Section 1160.8 provides in pertinent part: "The findings of the board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall . . . be conclusive." The petitioner in that case argued that an independent judgment standard of review was required to be applied, despite the express language of section 1160.8.
(Id. at p. 342.) The court rejected that argument. It stated that given the statutory mandate of section 1160.8 that a substantial evidence standard of review be applied, the standard of review should not vary depending on whether a fundamental vested right was at issue. (Tex-Cal, supra, 24 Cal.3d at p. 346.)
The court noted that "[u]nlike [Code of Civil Procedure] section 1094.5, which arose out of and perpetuated a state of judicially created uncertainty as to which of two standards apply in a particular case, section 1160.8 provides a single standard . . . ." (Tex-Cal, supra, 24 Cal.3d at p. 345.) It also stated that none of the case law had "invalidated any legislative command that findings be conclusive if supported by substantial evidence." (Ibid.) The court explained: "For us to create a new constitutional restriction [invalidating such a legislative command] would frustrate the Legislature's intent that the ALRB serve as 'one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.' [Citation.]" (Id. at p. 346, fn. omitted.)
The court concluded "that the Legislature may accord finality to the findings of a statewide agency that are supported by substantial evidence on the record considered as a whole and are made under safeguards equivalent to those provided by the [Agricultural Labor Relations Act, Labor Code section 1140 et seq.] for unfair labor practice proceedings, whether or not the California Constitution provides for that agency's exercising 'judicial power.'" (Tex-Cal, supra, 24 Cal.3d at p. 346; accord, Fukuda, supra, 20 Cal.4th at p. 822.)
(b) Public Resources Code section 3355
(i) Expression of Standard of Review
The question is whether, in the statutory scheme at hand, the Legislature has indeed specified that the administrative determinations at issue shall be reviewed under the substantial evidence standard, not the independent judgment standard. Public Resources Code section 3354, as we have noted, permits the review of a decision of the Director through a writ of administrative mandamus proceeding. With respect to the conduct of the writ proceedings, Public Resources Code section 3355 provides: "No new or additional evidence shall be introduced in the court, but the cause shall be heard upon the record of the director. The review shall not be extended further than to determine whether or not: [¶] (a) The director acted without or in excess of his jurisdiction. [¶] (b) The order, decision, or award was procured by fraud. [¶] (c) The order, decision, rule, or regulation is unreasonable. [¶] (d) The order, decision, regulation, or award is clearly unsupported by the evidence."
According to the Director and Hunt, subdivision (d) of Public Resources Code section 3355, enunciates the substantial evidence standard of review. However, we question whether subdivision (d) should be read in isolation. The statute as a whole charges the trial court with several tasks on review-for example, the determination of whether the order or decision is unreasonable. (Pub. Resources Code, § 3355, subd. (c).) Neither the Director nor Hunt cites any case equating a determination of reasonableness to a substantial evidence standard of review.
Even if we were to focus on Public Resources Code section 3355, subdivision (d) in isolation, however, we would not agree that it articulates a substantial evidence standard of review. Subdivision (d) requires a determination of whether the order or decision is "clearly unsupported by the evidence." This language is not as explicit as the language of Labor Code section 1160.8, at issue in Tex-Cal, supra, 24 Cal.3d 335, which expressly states that final orders of the Agricultural Labor Relations Board shall be reviewed under the "substantial evidence" standard. (Lab. Code, 1160.8.)
In addition to Tex-Cal, supra, 24 Cal.3d 335, there are other cases addressing statutes explicitly providing a substantial evidence standard of review. One such case is Kensington University v. Council for Private Postsecondary etc. Education (1997) 54 Cal.App.4th 27 (Kensington). There, Kensington University applied to operate as a degree-granting institution as provided in Education Code section 94310. The Council for Private Postsecondary and Vocational Education denied the application. The university sought a writ of mandate to compel the council to vacate its decision. The trial court denied relief and the university appealed. (Id. at p. 30.)
With respect to the standard of review of the council's decision, Education Code section 94323, subdivision (k)(2) as then in effect provided in pertinent part: "'The factual bases supporting the final decision set forth in the council's statement of decision shall be conclusive if supported by substantial evidence on the record considered as a whole.' [Citation.]" (Kensington University, supra, 54 Cal.App.4th at pp. 40-41; repealed by Stats. 2004, ch. 740, § 1, p. 4423.) The appellate court held that the substantial evidence standard of review was applicable. (Id. at pp. 41-42.)
The statute at issue in Kensington University, supra, 54 Cal.App.4th 27, just as the statute at issue in Tex-Cal, supra, 24 Cal.3d 335, expressly stated that a "substantial evidence" standard of review applied. That is not the case where Public Resources Code section 3355, subdivision (d) is concerned.
(ii) Procedural Safeguards
This is not our only concern, however. Even were we to agree that Public Resources Code section 3355, subdivision (d) articulated a substantial evidence standard of review, we still would not hold that standard applicable given the statutory scheme as a whole. This is because the apposite Public Resources Code provisions do not provide the requisite procedural safeguards. Tex-Cal, supra, 24 Cal.3d 335 requires that for a statutory substantial evidence standard of review to be applied in lieu of an otherwise applicable independent judgment standard, the statutory scheme in question must "assure[] the essentials of due process." (Id. at p. 344.) The due process requirement is satisfied when the statutory scheme in question provides the parties to the administrative proceeding with procedural safeguards equivalent to those provided in Labor Code section 1140 et seq. (Id. at p. 346.)
While the Director cites Tex-Cal, supra, 24 Cal.3d 335, he does not address whether equivalent procedural safeguards are offered under the statutory scheme at issue. However, Hunt asserts, albeit with little discussion, that Public Resources Code sections 3350 through 3359 plainly provide such safeguards. Termo counters that the due process criteria of Tex-Cal are obviously not met in the statutory scheme before us. We take a closer look.
Tex-Cal, supra, 24 Cal.3d 335 observed that: "The ALRA incorporates procedural safeguards of the [National Labor Relations Act, 29 U.S.C. § 151 et seq.] including the separation of prosecutorial from adjudicatory functions ([Lab. Code] § 1149; cf. 29 U.S.C. § 153(d)), notice, written pleadings, evidentiary hearings ([Lab. Code] § 1160.2; cf. 29 U.S.C. § 160(b)), and a requirement that orders be accompanied by findings based on the preponderance of the reported evidence ([Lab. Code] § 1160.3; cf. 29 U.S.C. § 160(c).)" (TexCal, supra, 24 Cal.3d at p. 345.) Termo correctly points out that some of those safeguards are missing in the statutory scheme before us.
Termo first notes that the statutory scheme in question lacks any separation of prosecutorial and adjudicatory functions. Where the ALRA is concerned, Labor Code section 1149 provides for a general counsel of the ALRB with final authority to investigate charges, issue complaints, and prosecute such complaints before the ALRB. (Lab. Code, § 1149.) The statute requires that the duties be performed "in an objective and impartial manner without prejudice toward any party . . . ." (Ibid.) The general counsel is not selected by the ALRB itself, but is appointed by the Governor. (Lab. Code, § 1149.) The general counsel acts autonomously, and is not an agent of the ALRB. (Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21 Cal.3d 551, 557.) Only the general counsel, not the ALRB itself, is authorized to issue unfair labor practice complaints. (Id. at p. 558.)
Neither the Director nor Hunt cites any comparable provision in the Public Resources Code, vesting authority to investigate charges, issue complaints, and prosecute complaints in an individual separate from either the Supervisor who issues the order or the Director who reviews it. Termo is correct that there is no separation of prosecutorial and adjudicatory functions comparable to that found in the ALRA.
Termo next complains about inadequate notice provisions in the Public Resources Code, and contends that it did not have notice of the alleged violations that were to be addressed. Neither the Director nor Hunt cites any Public Resources Code provision requiring a notice of particular charges to be provided either before the Supervisor issues a written order concerning the operation of the wells or before the Director renders a decision, even if it may be based on grounds other than those addressed in the Supervisor's order. We observe that, once a notice of appeal from the Supervisor's order is filed, Public Resources Code section 3351 requires a hearing de novo. While Public Resources Code section 3352 requires written notice of the time and place of the hearing, it does not require that a written notice of charges be provided. In contrast, where the ALRA is concerned, Labor Code section 1160.2 requires that "a complaint stating the charges," together with advance notice of a hearing thereon, be served upon a person charged with engaging in unfair labor practices. The ALRA plainly requires notice of a type that the Public Resources Code does not.
In addition to the points Termo mentions, we notice that the ALRA provides more comprehensive procedural safeguards than the apposite Public Resources Code provisions in a few other respects as well. For example, Labor Code section 1160.2 provides that the party charged "shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony . . . ." It further provides that the proceeding shall "be conducted in accordance with the Evidence Code," to the extent practicable. However, neither Public Resources Code section 3351 nor Public Resources Code section 3352 provides a right to file an answer to the charges or requires the proceedings to be conducted in accordance with the Evidence Code.
Finally, we note that Labor Code section 1160.3 requires that the ALRB make its decision based upon the preponderance of the testimony taken. On the other hand, Public Resources Code section 3353, pertaining to the decision of the Director, does not impose a preponderance of the evidence standard, or indeed specify any standard at all.
Clearly, there are several points where the Public Resources Code provisions at issue do not provide "safeguards equivalent to those provided by the ALRA." (Tex-Cal, supra, 24 Cal.3d at p. 346.) Consequently, even were we to construe the standard of review set forth in Public Resources Code section 3355, subdivision (d) as a substantial evidence standard of review, we would still hold that the independent judgment standard of review must nonetheless be applied, because the apposite Public Resources Code provisions do not satisfy the due process requirements of Tex-Cal, supra, 24 Cal.3d 335.
(4) Conclusion
"Since the superior court expressly indicated that it was utilizing a 'substantial evidence' standard of review rather than the appropriate 'independent judgment' standard of review, it erred and reversal is required. [Citation.]" (San Benito Foods v. Veneman, supra, 50 Cal.App.4th at p. 1897.) We remand for reconsideration, applying the independent judgment standard of review, as more fully described in Fukuda, supra, 20 Cal.4th 805. Inasmuch as we remand the case for this purpose, we need not address the parties' many other assertions of error.
The trial court rejected Termo's request for a statement of decision, explaining that no statement of decision is required when a trial court applies the substantial evidence standard of review in a writ of mandate proceeding. "It has been held that findings of fact by the trial court in an administrative mandamus proceeding 'are not essential to effective appellate review of the decision of the trial court' when the trial court applies the 'substantial evidence in the light of the whole record' test provided for in [Code of Civil Procedure] section 1094.5. [Citations.] However, 'findings must be made if requested' when the trial court applies the independent judgment test. [Citation.]" (Angelier v. State Board of Pharmacy (1997) 58 Cal.App.4th 592, 598, fn. 5.) Consequently, when the trial court completes its review under the independent judgment standard on remand, it must, if requested, issue a statement of decision. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 67.)
The motion to dismiss is denied. The request for judicial notice is denied. The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion. Termo and Angus shall recover their costs on appeal.
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Tag: deaths
Memorial service planned for 14 dogs who died at Saskatchewan boarding facility
A memorial service will be held in Canada Saturday for the owners, families and friends of 14 dogs who died at a Saskatchewan kennel with a faulty heating system.
Until then, outraged owners and an outraged community will try to work through their anger — much of which is being expressed on the Facebook page of the Playful Paws Pet Centre in Saskatoon.
"You better lawyer up," one irate owner warned. "The fact you knew that overheating occurs and have no temperature monitoring, what the **** is wrong with you. You better get a lawyer because I will make it my personal mission to shut your negligent business down. Absolutely unforgivable my dog dies under your watch. By Christ I will never forgive you."
The kennel's post about the deaths has drawn close to 600 comments — some from families of the victims, nearly all expressing outrage.
Despite having knowledge of a faulty heater, the kennel — which boasts of providing 24-hour supervision — left the dogs unattended in an upstairs kennel room overnight Friday.
Though a mild evening, the heater pumped hot air into the room all night and the dogs all died of suspected heat-related causes.
In a statement on its Facebook page, Playful Paws said "staff and management … are devastated to acknowledge the loss of life of 14 dogs on early Saturday morning. We are incredibly saddened by this travesty of life and cannot express enough our sympathy to the families of these dogs…
"A mechanical failure on one of our roof top heating units caused it to continuously push heat into one of our upstairs kennel rooms, to the point that the dogs being kept there passed away.
"We love our dogs and each of our team is trying to personally cope with this terrible loss. Having said that we understand that our pain is small compared to the loss that is being experienced by our dog's owners. Our sincerest of sympathy goes out to all of these individuals and the family and friends who loved these dogs."
A former employee of the kennel said management was well aware of ventilation problems and other health issues.
"A proper kennel exchanges its air four to six times an hour. They did not have any type of fresh air exchange for the entire building," dog trainer Fred Glawischnighe told CBC.
Among the 14 dogs being cared for at the kennel was an autism service dog named Ardie who belonging to 6-year-old Easton Irwin, who waited three years to get him.
Kelsey Friesen said she was informed on Saturday that her four-year-old daughter's dog, a catahoula mix named Kali, was one of the 14 dogs that perished.
"It's her best friend and now we have to tell her that her dog is not coming home," she told CBC News.
Acadia McKague's Funeral Centre will be holding a public memorial for the families Saturday.
(Photos provided by families)
Posted by John Woestendiek September 14th, 2016 under Muttsblog.
Tags: 14 dogs, animals, autism, boarding, canada, dead, deaths, died, facility, faulty, fourteen dogs, health, heat, heat related, heating, ignored, kennel, malfunction, pets, playful paws, playful paws pet centre, safety, saskatchewan, saskatoon, service dog, system, ventilation, warnings
Comments: none
Dog show goes on, despite 14 dog deaths
Thirteen golden retrievers and a Brittany spaniel scheduled to take part in an Indiana dog show over the weekend died Friday from heat related causes.
The dogs, in town for Michiana Kennel Club AKC Dog Show, were spending the night inside the back of a truck, parked in a lot at the Quality Inn in Roseland.
The truck's air conditioning, powered by an extension cord plugged into the exterior of the hotel, shut down when a circuit breaker in the truck tripped during Friday's heat and humidity, according to WBST in South Bend, Indiana.
A kennel operator from Ohio, who was caring for the dogs during the trip, found them dead when she went to check on them Friday night.
The dogs — three of them puppies — were supposed to be a part of the weekend show at St. Joseph County fairgrounds.
"To have something this tragic happen, it affects everybody," said Cheryl Crompton, of the Michiana Kennel Club. "It's been very solemn all day. I've cried, just at the loss of life."
"It was an unfortunate incident, that was not in any way the fault of anybody," she added. "It was an accident, just like a car wreck. An unfortunate car wreck, where lives are lost."
"It appeared it was just a very tragic accident," said Lt. William Redman of the St. Joseph County Police Department. "It was difficult, no question."
Some of the dogs belonged to the woman caring for the dogs, Cortney Corral of Lakesyde Kennels; at least eight of them belonged to other people who entrusted her to care for them during the show.
Necropsies will be performed on some of the dogs this week as part of an investigation by the St. Joseph County Humane Society.
National officers with the American Kennel Club will also be investigating the incident, Crompton told the South Bend Tribune.
The annual dog show, which began Thursday and concluded Saturday, is hosted by three AKC clubs — Michiana, LaPorte and Berrien Springs.
(Photo: Michael Caterina / South Bend Tribune)
Posted by John Woestendiek July 25th, 2016 under Muttsblog.
Tags: air conditioner, akc, american kennel club, animals, dead, deaths, die, dog, dog show, dogs, golden retrievers, heat, humane society, indiana, investigation, kennels, lakesyde, michiana kennel club, pets, show, st. joseph county, truck
Comments: 1
About 70 dogs die in Texas shelter fire
About 70 shelter dogs were killed in a fire at the Humane Society of Southeast Texas.
About 200 animals were being housed at the shelter and, according to various reports, anywhere between 67 and 74 of them died in the Tuesday night fire, all of them dogs.
Beaumont Fire Department Captain Brad Penisson told KHOU the fire was apparently sparked by malfunctioning dryer.
The Humane Society of Southeast Texas reported what happened early yesterday on its Facebook page.
"It is with heavy hearts that we must inform you of the great loss we suffered tonight. Earlier this evening our facility caught on fire. Though the fire and police department did everything in their power to save all of our animals a total of 67 dogs died in the fire.
"There are no words to describe the pain we are feeling right now. Thank you to all of the staff, volunteers, veterinarians, and service men and women who came and assisted us tonight. We will be walking through the shelter in the morning to assess the damage and to make decisions on the best way to move forward."
While foster homes have been found for the cats and the 11 dogs that survived, the society is taking names of those interested, and it is accepting donations to help in recovery efforts.
Donations of money can be made through The Humane Society of Southeast Texas website.
These scenes of the fire's aftermath are from a Beaumont Enterprise photo gallery.
(Photos: At top, one of the surviving dogs; at center, the dryer where the fire is believed to have started; at bottom, two shelter staff members console each other; by Ryan Pelham / The Beaumont Enterprise)
Posted by John Woestendiek March 17th, 2016 under Muttsblog.
Tags: animal welfare, animals, beaumont, cats, cause, deaths, dogs, donations, dryer, fire, foster homes, humane society of southeast texas, pets, rescues, shelter, shelters, texas, tragedy, tragic
Comments: none
Heat has killed 11 police dogs this summer
If it seems you've seen a lot of stories about police dogs dying of heat exhaustion this summer, it's because you have.
Since the last week of May, 11 police dogs have died from the heat, and nine of those cases stemmed from dogs left in hot police cars, according to the Weather Channel.
The 11 deaths this summer compare with four nationwide in 2014 and three in 2013, according to records kept by the Officer Down Memorial Page.
The latest death came last week in Kohler, Wisconsin, when a police dog named Wix (pictured above) died in a squad car as his handler worked at a PGA Championship event.
Wix died as the result of heat exhaustion after the air conditioning unit in the vehicle malfunctioned, and the heat alarm in the vehicle failed to go off.
Wix, a Belgian malinois, was on special assignment with his handler at the Whistling Straights golf course. His handler found him unresponsive in the vehicle when he went to check on him.
Several other police dog deaths this summer have been blamed on faulty air conditioners.
In Oklahoma, a Muldrow Police Department dog named Zeke died from heat exhaustion after the air conditioner in his handler's patrol car malfunctioned.
His handler was inside the police station working on a case and left Zeke in the car for at least an hour. At some point the air conditioner malfunctioned and began blowing only hot air. His handler returned to the car to find him dead.
Zeke had served with the Muldrow Police Department for four years.
Two more police dogs died in the same incident in Hialeah, Florida; and in Jim Wells County, Texas, deputy Latham Roldan was fired from the department after the K-9 he left in his squad car died from the heat.
(Photo:Brown County Sheriff's Department Facebook page)
Posted by John Woestendiek August 21st, 2015 under Muttsblog.
Tags: air conditioning, animals, cars, deaths, dogs, heat, heat exhaustion, heat-related deaths, increase, K-9, k9, law enforcement, pets, police, police dog deaths, police dogs, vehicles
Comments: 1
Two police dogs die in Florida after being left in vehicle for six hours
A Hialeah, Florida, officer has been suspended without pay pending an investigation into the deaths of two police dogs that he left in his parked vehicle for six hours or more.
The K-9s – Jimmy, 7, a bloodhound, and Hector, 4, a Belgian Malinois — were assigned to Officer Nelson Enriquez, who left them in a police SUV parked outside his home in Davie after his shift ended.
According to the Sun-Sentinel, he has worked 13 years for the department, the last seven as a K-9 officer.
At a news conference Thursday, Hialeah Police Sgt. Carl Zogby called the incident "a terrible tragedy. Every member of the Hialeah Police Department was beyond fond of Jimmy the Bloodhound and of Hector. We were in love with those dogs."
Zogby described Enriquez as "extremely distraught … He has lost two beloved members of his family."
Enriquez is married with two children who were also very attached to the dogs, Zogby said.
Enriquez returned home from his shift at 10 a.m. Wednesday.
"He did not remove either dog from the cargo compartment of his marked police vehicle," before entering his home, Zogby said. The SUV has K-9 compartments, called cradles, for each dog.
Enriquez discovered the dead animals about 5 p.m.
The bodies of the two dogs were taken to the University of Florida's College of Veterinary Medicine, which will perform necropsies.
Davie police are investigating the deaths and Hialeah police are conducting an internal affairs investigation.
Jimmy, the bloodhound, was donated to the Hialeah Police Department by the Jimmy Ryce Center, which was formed by the parents of a nine-year-old boy who was abducted, raped and murdered while walking from his school bus to his southwest Miami-Dade home in 1995.
Don and Claudine Ryce created the Center to provide free bloodhounds to police departments. The Ryces felt that if a bloodhound was used in their son's case, he may have been recovered alive.
(Photos: At top, Jimmy fetching; lower photo, Jimmy with Enriquez, by Allison Diaz / Miami Herald)
Posted by John Woestendiek May 29th, 2015 under Muttsblog.
Tags: animals, belgian malinois, bloodhound, dead, deaths, died, dogs, handler, hector, hialeah police department, investigation, jimmy, jimmy ryce center, K-9, law enforcement, left in car, necropsy, nelson enriquez, pets, police, police dogs
Comments: 3
Four indicted in Green Acre boarding deaths
The owners of Green Acre Dog Boarding and two caretakers, including the son of a senator, were indicted yesterday on animal cruelty charges in connection with the deaths of more than 20 dogs at the kennel in Gilbert.
Owners Jesse Todd Hughes and his wife, Maleisa Hughes, were indicted by a Maricopa County grand jury on 22 felony counts and seven misdemeanor counts of cruelty to animals, and one felony count of fraudulent schemes and artifices, according to County Attorney Bill Montgomery's office.
The two caretakers in charge of the kennel while the owners were on vacation in June — Logan Flake, the Hughes' daughter, and her husband, Austin Flake — were indicted on 21 felony counts and seven misdemeanor counts of cruelty to animals.
Austin is the son of U.S Sen. Jeff Flake,R-Ariz. All four defendants are scheduled to be arraigned Oct. 23, the Arizona Republic reported.
The indictments came after more than four months of investigation by the Maricopa County Sheriff's offie, which learned early on that 28 dogs at the kennel had spent the night in one 9-foot-by-12-foot room.
Some customers arriving to pick up their dogs were told their pets had run away, when in fact they had died.
"How would you like your dog stuffed in a small room? Twenty-eight dogs," Sheriff Joe Arpaio said Wednesday night. "Think about that. I feel sorry for the owners. … This has been one of the toughest cases we have worked. We had over 17 people work this case, between the posse, other volunteers, our deputies."
The Hughes told investigators that a dog had apparently chewed through a wire, cutting off the air-conditioning in the single room they were being kept in, but the air conditioning was found to be functioning.
A spokesman for the county attorney's office said the charges stem from the deaths of 21 dogs and the injury of four others at the kennel.
"We have to prove how each of those dogs died," said Jerry Cobb. "They basically suffocated. They were in a tight room without enough air."
One of the dogs escaped from the kennel and was found on the side of a Gilbert road weeks later, hit by a car.
Dennis Wilenchik, an attorney for the Flakes, said he will file a motion to dismiss the case or remand it back to the grand jury. "They're innocent," he said. "They will be proven innocent. There is no evidence to convict them of any felony charge."
(Photo: Green Acre client Valerie Collins looks under a blanket where her two dogs lie; by D.S. Woodfill / The Republic)
Posted by John Woestendiek October 16th, 2014 under Muttsblog.
Tags: animal cruelty, arizona, austin flake, boarding, charges, county attorney, cruelty to animals, deaths, died, dog, dogs, gilbert, green acre, green acre dog boarding, indicted, indictments, investigation, logan flake, maleisa hughes, maricopa county, sheriff, suffocated, todd hughes
Comments: none
Felony charges urged in Green Acre case
Justice for the more than 20 dogs who died at an Arizona boarding kennel came one step closer this week with a recommendation from the Maricopa County Sheriff's Office that both felony and misdemeanor animal cruelty charges be brought against the kennel's owners and two caretakers, one of them the son of a U.S. senator.
Sheriff Joe Arpaio said he is recommending prosecutors file 21 felony charges of neglect against Todd and MaLeisia Hughes, who own Green Acre Dog Boarding in Gilbert; their daughter Logan Flake; and her her husband, Austin Flake, who is the son of U.S. Sen. Jeff Flake.
The final decision on filing charges will be made by Maricopa County Attorney Bill Montgomery, the Arizona Republic reported. He says that process could take a few weeks.
Authorities found 21 dead dogs on the property June 21 when they went to the kennel after customers began learning something was amiss.
Some customers whose dogs had died while cramped with more than 25 others in a 12-by-12-foot laundry room were told their dogs had run away. Later, the kennel owners said there had been a "freak accident" that knocked out the room's air conditioning.
The sheriff's department investigation concluded the dogs died of "apparent suffocation and overheating."
Two other dogs also died, including one who ran away.
The kennel owners were on vacation in Florida when the dogs died, and had left the animals in the care of the Flakes.
Sheriff Arpaio, said to have a soft spot for dogs, vowed at the investigation's start to get to the bottom of what happened: "If a crime occurred, someone will be held accountable," he said. It took nearly three months to accomplish that, but Arpaio was being praised this week, by the owners of pets who died and some members of the news media.
Arizona Republic columnist Laurie Roberts commended Arpaio's actions, saying, "Of course, there are bigger cases to be cracked, more horrifying things that happen to humans every day. But on this day, there is no more important story than this one and the statement that it makes.
"For Parker and Rosie and Zed. For Ellie and Roxie and Francis.For Remy and Buick. For Valor and Patrick and Sonny.
"For a pair of Bernese Mountain dogs named Carson and Daisy.
"For all good dogs everywhere."
(Photo: A memorial created near the Green Acre kennel in Gilbert to commemorate the more than 20 dogs that died there; by Corina Vanek / The Republic)
Posted by John Woestendiek September 12th, 2014 under Muttsblog.
Tags: animal, animals, arizona, boarding, charges, cramped, criminal, cruelty, deaths, dogs, felony, gilbert, green acre, heat, jeff flake, joe arpaio, justice, kennel, logan flake, maleisia hughes, maricopa county, misdemeanor, neglect, pets, room, senator, sheriff, son, suffocation, todd hughes
Comments: 1


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August 4, 2011 (Chinavestor) Chinese stocks extended the slide in Hong Kong, sending the Hang Seng Index (INDEXHANGSENG:.HSI) 108.0 points or 0.5% lower on Thursday. Airliners advanced on falling oil/kerosene prices but most components of the index declined. Stocks that fell outnumbered those that advanced four to one among components of the 42 member index. But the picture was different on the Mainland. The Shanghai Composite Index (SHA:000001) advanced 5.6 points or 0.2% as investors focused on Chinese macro economic indicators. Monetary tightening kept Chinese stocks at bay for most of 2011 but that is about to change as global economic woes render additional tightening measures unnecessary. Falling financial stocks bode ill for the iShares/FTSE Xhinua 25 China index (NYSE:FXI) but the Guggenheim China Small Cap ETF (NYSE:HAO) is expected to weather the storm better.
China Southern Airlines (SHA:601766), the largest domestic airline, was among the best five stocks in Hong Kong and Shanghai as well. China Mobile (HKG:0941)(NYSE:CHL), the largest mobile carrier in the world, rose the most among components of the Hang Seng Index (INDEXHANGSENG:.HSI). Latest subscriber numbers suggests CHL is going to retain its leading position in the 3G smartphone arena as well.
Air China (HKG:0753) was behind China Coal (HKG:1898) among best performing stocks of the 25 member Xinhua 25 Index. But most components of the index fell, boding ill for the iShares FTSE/Xinhua China 25 Index (NYSE:FXI). The decline was less universal among small cap stocks where stocks that fell outnumbered those that advanced two to one.
Earnings sank China BAK Battery (NASDAQ:CBAK) on Wednesday while AgFeed Industries (NASDAQ:FEED) continued to slide. The latter dived over 30% a day before and is off almost 50% in just two days.
Outlook remains sound for NYSE listed Chinese carriers, such as China Southern Airlines (NYSE:ZNH) and China Eastern Airlines (NYSE:CEA), if components of the Hang Seng index (INDEXHANGSENG:.HSI) were proxy for ADR trading. But chances are that CNOOC Ltd. (NYSE:CEO) and China Telecom (NYSE:CHA) will decline on Thursday.


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From Business: Our experienced Customer Service Support Team is devoted to researching and acquiring the most interesting and practical home furnishings, as well as the ornate col…
5. Council On Aging For Henderson Co
802 Spartanburg HwyHendersonville, NC 28792
6. Mine & Yours Asheville Resale
Enjoy shopping in this consignment store for my grandchildren. It is family run and the employees are always friendly and helpful. Some of the clo…
7. New 2 You Consignments
I have visited New2U in Asheville, NC several times and I find the clothes to be of great name brands, a great variety shoes and purses and jewerly.…
8. Nothing New, Inc
9. Etc Consignment Shoppe Asheville
1500 Patton AveAsheville, NC 28806
10. Shabby Chic Consignment Boutique
Great clothing and home accessories as well as furniture at good prices. Staff are extremely friendly and helpful. I never leave empty handed!
11. Clothes Encounters
340 Merrimon AveAsheville, NC 28801
12. Linden Boutique
1800 Hendersonville RdAsheville, NC 28803
13. Common Ground
97 Weaverville RoadAsheville, NC 28804
14. Reciprocity
732 Haywood RoadAsheville, NC 28806
15. Excellent Seconds
I love this store!! The service and clothes are beautiful!! Great style and wonderful brands at affordable prices!
16. Clothes Mentor
Prices are good; clothing is organized by size and color. The staff I met seemed to have a "meh" attitude. I asked for use of their public restroo…
17. Goodwill Stores
1011 Patton AveAsheville, NC 28806
stinks, Stinks, STINKS! Tiny store and SMELLS HORRIBLE! Ugh.... I wanna puke now
18. Biltmore Exchange
We had furniture that was sold in Oct. 2010. I know this only because I happen to stop in and see that it was gone. Since then, I have called, the s…
19. Bon Vivant Co.
9 Reed StAsheville, NC 28803
From Business: Artisan and vintage market.
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327 New Leicester HwyAsheville, NC 28806
From Business: We are a retail and consignment store specializing in hunting, fishing, camping, hiking, biking, and paddling.
21. Bonnie Rose Appraisal Svc Inc
75 S Black Oak DrAsheville, NC 28804
From Business: Founded in 2001, Bonnie Rose Appraisal Services Inc. is in the antiques and collectibles business. Based in Asheville, N.C., The firm offers services that include v…
22. Second Chances Thrift Store
49 Glendale AveAsheville, NC 28803
23. Practical Outdoorsman
33 Holly Hill DrAsheville, NC 28806
24. The Enchanted Forrest
235 Merrimon AveAsheville, NC 28801
25. LuLu's Consignment Boutique
Absolutely love Lulu's! Great for consigning as well as shopping. The consignment process is very easy and the employees are always helpful and know…
26. The Village Trading Company
204 Railroad StreetSwannanoa, NC 28778
27. Select Furniture Consignment
I've been looking for a new dining table set for literally years, never willing to pay the asking price for what I was able to find. Select Furnitu…
28. Estate Sales By Treva
14 Allrand WayCandler, NC 28715
29. Dejavu
DejaVu Consignment Boutique has a welcoming atmosphere with a friendly and helpful staff and a great selection of women's apparel that is either bra…
30. Serendipity
The whole concept behind a consignment store is to find high-quality merchandise at a great price. Every time I've been to this particular store in…
I have frequented this consignment shop weekly for 2 months. I always find something of interest . Recently, I consigned a few items and found them to be very helpful and professional. A couple of items sold fast for more than I expected. Thanks!
Best consignment experience ever ! The staff and management at Mine & Yours always greet me with a smile even when I have large or bulky items, great communication and very professional. Thank you Mine & Yours. Your the best !!


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Watch Tabac, retenez votre souffle! (2006) Free Online
Tabac, retenez votre souffle!
IMDB Link:
Rating: 7.4/10 (47 votes)
Director: Nadia Collot
Writer: Nadia Collot
Stars: Joe Eszterhas
Runtime: 92 min
Rated: N/A
Year: 2006
Genre: Documentary
Quality: HD
Language: English, French
Released: 13 Jan 2006
|Plot: For decades, the tobacco industry has been fighting to market their products, well aware that they are addictive and deadly for their customers. This film illustrates this industry's worldwide effort to push their products through such efforts like intensive marketing, determined obfuscation of scientific facts and outright international criminal enterprise.
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Buy Imperial Dinner
Buy Tickets
Celebrate the Lunar New Year and the Year of the Rooster with the SF Symphony at this family event that draws on both ancient and contemporary Asian traditions. Arrive at 3pm for the activity-filled Festival Reception with Asian instruments, "lucky" red envelopes, lion dancing, and more. At 4pm, the concert begins and the Symphony showcases its versatility in a diverse concert featuring Eastern and Western repertoire.
Continue the festivities after the concert by purchasing a ticket to the dramatic and exciting Imperial Dinner. Call the Volunteer Council at 415-503-5500 for more details.
Proceeds from this event support the San Francisco Symphony's education and community program, which reach over 75,000 Bay Area elementary, middle, and high school students each year.
Refunds, ticket exchanges, and group discounts not available.
If you would like assistance purchasing tickets for patrons with disabilities, please call the box office at 415-864-6000.
Presented in partnership with
Davies Symphony Hall
201 Van Ness Ave
San Francisco, CA 94102
Mon - Fri: 10am - 6pm
Sat: noon-6pm
Sun: 2 hours prior to concerts
Your gift makes concerts possible.


text:
Sachems are Disney-bound - Teacher to march one last time with LHS band
By ROGER AMSDEN, LACONIA DAILY SUN
LACONIA — Members of the Laconia High School Marching Band are full of anticipation and excitement as they prepare for next week's trip to Walt Disney World in Orlando, Florida, where they will be leading the Main Street Electric Light Parade in the Magic Kingdom on Thursday, April 28, at 8:30 p.m.
It's the first performance outside of New England for clarinet player Taylor Gagne, the president of the band, who says that performing before the large crowds at Disney World is "a once in a lifetime opportunity."
Gagne, a senior, has been playing the clarinet for eight years, and is a member of the Tri-M Music Honor Society and has been selected four times to play with the New Hampshire Music Festival. He's also performed at Plymouth State University in it's All New England Festival featuring the best high school musicians from the six-state region.
"I'm definitely excited about the whole trip. It's kind of nerve racking to think about how you'll perform in such a large setting and it will be a challenge for all of us to do our best," says Gagne, who says that although he'll be far away from Laconia he won't be lonely as he'll be traveling with over 40 other band members as well as chaperones. "It's like being with a large family away from home," he says.
Gagne is the co-drum major and will be leading the marching band and along with Mariah Hawkins, the other co-drum major, who plays tenor sax, and says that she is very excited about the trip.
"It's going to be a wonderful experience for everyone involved," said Hawkins after the musicians went through a practice session Monday afternoon under the watchful eye of Laconia High School Music teacher Debbie Gibson, who has been teaching music in Laconia ever since 1988 and has led other LHS musicians on trips to Disney World. This will be her last trip with the school to Florida, as she is retiring at the end of the school year.
"Since our first trip there in 2000, we have been invited back on a regular basis," says Gibson. She says that, in addition to the marching band, complete with color guard, the school's jazz band, concert band and concert choir will also be making the trip and taking part in competitions, which will take place off grounds with the exception of a Parade March to be held on Friday, April 29, at 7:30 p.m., in the Epcot Center's Future world.
The Sachems will also be wearing new band uniforms during the trip, which were purchased thanks to a $30,000 fund raising campaign undertaken by the Laconia High School Band Boosters.
Emily Huckins, who plays the sousaphone in the band, says she has been involved in music since the sixth grade, when she started by playing a trombone, and says that all the band members are counting down the minutes until they'll be heading to Florida.
'Everyone has the countdown on their cellphone and we're staying in touch with each other and sharing the excitement we all feel about making the trip. And we're working real hard in our practices so that we'll be really prepared to good a good job when we perform," says Huckins.
Laconia High School Band members practiced Monday in preparation for next week's trip to Disney World in Florida where they will lead the Main Street Electric Light Parade in the Magic Kingdom on Thursday, April 28. (Roger Amsden photo for the Laconia Daily Sun)
The Laconia High School Marching Band will be traveling to Florida next week for performances at Disney World and the Epcot Center. (Courtesy photo)
- Category: Local News
- Hits: 1925


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Scholarship, Creative Arts and Research Projects
Summer research heats up campus
During the time of year when many college students are relaxing and vacationing, a select few choose to "stay put" on campus, all for the love of research and some one-on-one time with faculty mentors.
The Scholarship, Creative Arts and Research Projects (SCARP) program offers students the opportunity to engage in research with a faculty member during a three-to-10-week period over the summer. After a rigorous application process—which includes recommendations from faculty members—for the 2014 session, 30 students were selected to join 19 faculty mentors from biology, chemistry, engineering, sociology, anthropology, political science, education and social work for a summer of collaborative research. Generous gifts to the College make SCARP possible—including faculty stipends and room and board for students.
Working alongside faculty mentors, participants develop sophisticated research skills and, later, present their findings at a culminating two-day conference, where they are joined by fellow students, faculty and staff members and their friends and families. Students also are encouraged to pursue further opportunities to share their work, such as submitting a paper to a peer-reviewed, scholarly journal or to an academic conference.
Our students are not the only beneficiaries of this collaborative discovery. Faculty members have the opportunity to stay engaged with students who have chosen to spend their summers in research rather than "recreation."
Project: Robotic Pace Car
Junior mechanical engineering major, Martin Fevre, an international student from France, was thrilled to stay in the United States this past summer to participate in the donor-funded Scholarship and Creative Arts Research Program (SCARP) and to work closely with Dr. Tomas Estrada.
Fevre took over the reins of robotic research project started by upperclassmen: a pace car that uses infrared sensors to stay on a line on an indoor or outdoor track. It is used as a work-out and training tool that allows people to keep up with a certain speed. This project involves, he says, "everything I love." It's not just mechanical engineering that he enjoys, but electrical and computer engineering, as well. And sports: Fevre also is captain of the Blue Jays men's soccer team.
Fevre added that, without the funding he and Estrada received, there's no way an international student like he could have stayed in the States for the whole summer. He says the small class sizes and regular access to academic advisors are an advantage of attending a school the size of Elizabethtown, but working alongside Estrada this summer was a bonus.
"It was a very different environment. It makes me feel confident in what I want to do after my undergraduate career," he said, adding that he hopes to attend graduate school and earn a Ph.D.
At the end of the summer, Fevre shared the results at the SCARP conference—building his communication and presentation skills, too.
"A big part of this project was to be able to present this to a different audience," said Fevre. "We're working to get our research published and to present at a national conference."
Fevre said the pace car is an on-going project. The next step? Creating a smartphone application to go along with it—and to make the car go a bit faster.


text:
It has been one year and 4 months since the new administration took over the mantle to rule. Over 20 states in Nigeria have new governors. Which means it is relatively safe to assess the performance of our new governors
This list outlines the top 5 most performing governors in 2016.
Governor Akinwumi Ambode (Lagos State)
When Ambode took over from ex- governor ( now power minister) Babtunde Fashola, one would assume he will ave problem with acceptance. However Gov Ambode has so far surpassed the voter's expectation. Residents of Lagos can testify to new road projects being executed as well as the rapid increase in alien investor, lets not forget the approval of the 4th mainland bridge project.
Governor Nasir El-Rufai (Kaduna State)
Although the first few months of his administration had several controversies ranging from religious dispute to the ban on street beggars.El rufai has gone to make huge impacts in state. The kaduna state governor and his deputy recently took a 50% salary pay cut. He also launched the free education scheme in the state. In the area of security, the government donated 107 vehicles and bullet proof vests as well as 51 motorcycles to the police and other security agencies to combat crime.
Governor Willie Obiano (Anambra State)
Obiano is doing execellently well in Anambra state. If you travel to the east frequently, you can see several projects the governor has executed in less than two years. Obiano has moved the state forward through proactive commitment in the areas of agriculture, trade, commerce, oil, gas and industrialization with security as the major enabler.
Governor Ben Ayade (Cross River State)
As a former senator, Ayade came into power with so many prospects in terms of industrialization and Road project some of which the governor has achieved in little time. he has established the Cross River Garment Factory, which is the biggest in Africa with a size of 5,000sqm, and employs 3000 people. Four primary health care centres have been renovated and equipped. Currently, on going, are the construction of Calabar Pharmaceutical Company and Rice City which will serve to provide food, thus boosting the economy of the state.
Governor Aminu Tambuwal (Sokoto State)
Tambuwal is arguably the most humble and hardworking governor in the north. The former Speaker of the House of Representatives reduced the number of special advisers to cut the cost of government spending. Also the state contributory health scheme has taken off in 4 Communities.
Tanmbuwal ensured 22 major projects inherited from previous administration are funded and completed.


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With the BeFree Filter, you no longer have to worry about where your next drink will come from. Just fill up the flask and let the EZ-Clean Membrane do the work. Gently squeeze the flask for instant refreshment. Maintain the EZ-Clean Membrane quickly and easily for longer life and more enjoyment. Simply fill the flask with water, attach the cover and shake free the debris. Or, remove the filter from the flask and swish in any lake, river or stream. And when you're ready to "hit the road," the collapsible flask packs small to fit into tight spaces. Just Smash, Stash and Go! Worry less, Discover more, BeFree.
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William Adolphe Bouguereau
Portrait Painting by William Adolphe Bouguereau French Neoclassical Master #art
William-Adolphe Bouguereau working on his painting "Les Deux Soeurs" (The Two Sisters), 1899.
William Adolphe Bouguereau (William Bouguereau) (1825-1905) Pietà Oil on canvas 1876 148 x 230 cm (4' 10.27" x 7' 6.55") Dallas Museum of Fine Arts (Dallas, Texas, United States)
William-Adolphe Bouguereau, Before The Bath
Child Braiding A Crown (detail) 1874, by William-Adolphe Bouguereau French academic painter Born: November 30, 1825, La Rochelle, France
The Secret by William-Adolphe Bouguereau (La Rochelle, November 30, 1825 - La Rochelle, August 19, 1905)
William-Adolphe Bouguereau More
the transcendental modernist : L'aurore - Pencil on paper - William Adolphe Bouguereau (1825-1905)
Aphrodite by William-Adolphe Bouguereau (French, 1825–1905). If the weak-willed, slack minded Paris had not listened to her purring in his ear, a lot of pain and strife could have been avoided. More
William-Adolphe Bouguereau - Dante et Virgile au Enfers (Dante and Virgil in Hell) [1850]


text:
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The Chinese New Year is February 19. It is the year of the sheep/ram. This brooch is by St Labre, an American company (1950-1970s). The gold tone brooch has a wooly central ram surrounded by 3 new moons each of which has clear rhinestones. The brooch is topped with a clear rhinestone in a star. Marked St Labre on the back of the star. 1 7/8" tall by 1 5/8" with a sturdy safety clasp. Excellent vintage condition. No loss of gold tone. Made between 1950-1970s.
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From Liane Moriarty, author of #1 New York Times bestsellers The Husband?s Secret and Big Little Lies , comes an unforgettable novel defined by her signature sharp wit, page-turning storyline, and lovable and eccentric characters. Sophie Honeywell always wondered if Thomas Gordon was the one who got away. He was the perfect boyfriend, but... more...
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After two years of being tormented by Mother Nature's refusal to grant her a baby, Emma Hamilton and her husband James decide to go for the instant solution: finding a Russian baby in need of a home. But they haven't reckoned on the route to adoption being so complicated .... Emma and James discover that adoption is far from the easy option - and... more...
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They say trouble always comes in threes. And for sisters Lyn, Cat and Gemma Kettle, the year they turn thirty-three is no exception. Sensible Lyn is struggling to balance being a mother, wife and businesswoman without losing her mind. Cat, whose perfect marriage is the envy of all her friends, never suspects that her husband has been hiding a secret... more...
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A malfunctioning sensor in Magnolia, Wash., caused 9 million gallons of untreated wastewater to flow into Elliott Bay. The sensor at the West Point Treatment Plant misread water levels, causing an emergency bypass gate to open. The plant treats about 130 millions of gallons of water per day from Seattle and several other cities.
Full Story:SeattlePI.com