INLAND VALLEY HUMANE SOCIETY ON BEHALF OF THE CITY OF POMONA VS JORGE HIDALGO

Tentative Rulings

Case Number: 20STCP01937    Hearing Date: July 21, 2020    Dept: 25

PETITION TO DETERMINE IF DOG IS VICIOUS

(Food & Agric. Code § 31603)

TENTATIVE RULING:

Petitioner Inland Valley Humane Society’s Petition for Determination of Vicious Dog is GRANTED. In addition, Respondent is ordered to pay a fine of $500.00 to the City of Pomona as well as fees and costs to Petitioner in the amount of $1,181.00. within thirty (30) days of this order.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of July 17, 2020 [ ] Late [X] None

REPLY: None filed as of July 17, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On June 17, 2020, Petitioner Inland Valley Humane Society (“Petitioner”) filed the instant Petition for Determination of Vicious Dog and Imposition of Fines (the “Petition”) against Respondent Jorge Hidalgo (“Respondent”). On June 23, 2020, the Court found that the hearing on the Petition was incorrectly scheduled it, and scheduled it for July 21, 2020 at 10:30 a.m. (6/23/20 Minute Order.) On June 24, 2020, Petitioner filed a proof of service demonstrating Respondent was served with the Petition and notice of hearing on June 23, 2020 via certified mail, return receipt requested. (6/24/20 Proof of Service.)

1. Legal Standard

“‘Vicious dog’ means any of the following:

(a) Any dog that, when unprovoked, in an aggressive manner, inflicts severe injury on or kills a human being.

(b) Any dog previously determined to be and currently listed as a potentially dangerous dog that, after its owner or keeper has been notified of this determination, continues the behavior described in Section 31602 or is maintained in violation of Section 31641, 31642, or 31643.”

(Food & Agric. Code, § 31603.)

The Food & Agricultural Code section 31604 defines “severe injury” as “any physical injury to a human being that results in muscle tears or disfiguring lacerations or requires multiple sutures or corrective or cosmetic surgery.”

In addition, Food & Agricultural Code section 31626 provides several circumstances in which a dog may not be declared dangerous or vicious:

“(a) No dog may be declared potentially dangerous or vicious if any injury or damage is sustained by a person who, at the time the injury or damage was sustained, was committing a willful trespass or other tort upon premises occupied by the owner or keeper of the dog, or was teasing, tormenting, abusing, or assaulting the dog, or was committing or attempting to commit a crime. No dog may be declared potentially dangerous or vicious if the dog was protecting or defending a person within the immediate vicinity of the dog from an unjustified attack or assault. No dog may be declared potentially dangerous or vicious if an injury or damage was sustained by a domestic animal which at the time the injury or damage was sustained was teasing, tormenting, abusing, or assaulting the dog.

(b) No dog may be declared potentially dangerous or vicious if the injury or damage to a domestic animal was sustained while the dog was working as a hunting dog, herding dog, or predator control dog on the property of, or under the control of, its owner or keeper, and the damage or injury was to a species or type of domestic animal appropriate to the work of the dog.”

A finding that the dog is potentially dangerous or vicious must be made upon a preponderance of the evidence. (See Food & Agric. Code, § 31621.)

1. Discussion

A. Determination that Dog is Vicious

Petitioner seeks a determination that Kaliman or Caliman, an adult male, brindle and white Belgian Malinois (“Kaliman”) owned by Respondent, is vicious as defined by Food and Agricultural Code section 31603, subdivision (a). (Pet., p. 2:3-8.) The Petition is supported by the declaration of Inland Valley Humane Society Animal Cruelty Investigator, Daniel Pena (“Officer Pena”), the Declaration of Claudia Segura (“Segura”), and an Investigation Report created by Officer Pena.

On May 1, 2020, Officer Pena was notified of a severe dog bite incident that occurred at 1315 South San Antonio Ave., in the City of Pomona. (Pet., Pena Decl., ¶ 5.) The reporting party, Ms. Segura, and Respondent live at the same address. (Pet. Segura Decl., ¶ 1.) Ms. Segura reported to Officer Pena that on April 30, 2020, herself, her husband, her children, and their small dog were on the front porch of her home. (Pet., Pena Decl., ¶ 8; Segura Decl., ¶ 2.) When Ms. Segura’s young daughter followed their small dog onto the grass to pick it up, Kaliman attacked and bit her. (Id.) The bite resulted in a severe laceration to her upper left thigh that required several stitches. (Pet., Pena Decl., ¶¶ 5, 8; Segura Decl., ¶¶ 1-3, Exh. 1.) After seeking care for her daughter’s injury and returning home from the hospital, Ms. Segura states that Respondent turned to Kaliman and said, “next time, bite her head or her hands off.” (Pet., Segura Decl., ¶ 2.) Ms. Segura also states that Kaliman had twice previously bitten her children, but those incidents were not reported because the bites were not as severe. (Pet., Pena Decl., ¶ 8; Segura Decl., ¶ 4.)

Based on the evidence presented, the Court finds Kaliman caused severe injuries, as defined by Food & Agricultural Code section 31604, to Ms. Segura’s daughter in an unprovoked manner. None of the exceptions provided by Food & Agricultural Code section 31626 appear to apply here. Notably, Respondent has not submitted any evidence to demonstrate otherwise.

Therefore, the Court finds, by a preponderance of the evidence, that Kaliman is vicious as defined by Section 31603.

B. Destruction

Petitioner also requests that Kaliman be destroyed pursuant to Food & Agricultural Code section 31645. (Pet., p. 4:27-5:1.)

Food and Agricultural Code section 31645 provides, in relevant part:

(a) A dog determined to be a vicious dog may be destroyed by the animal control department when it is found, after proceedings conducted under Article 2 (commencing with Section 31621), that the release of the dog would create a significant threat to the public health, safety, and welfare.

(b) If it is determined that a dog found to be vicious shall not be destroyed, the judicial authority shall impose conditions upon the ownership of the dog that protects the public health, safety, and welfare.

(Food & Agric. Code, § 31645, subds. (a), (b).)

Given that Kaliman attacked children on at least three occasions and that Respondent appears to encourage this kind of aggressive behavior, the Court finds that releasing Kaliman would be a threat to the public health and safety. Respondent has not submitted any evidence to demonstrate otherwise. Thus, the Court orders the destruction of Kaliman by the animal control department.

C. Fines

Lastly, Petitioner seeks costs and the imposition of a fine against Respondent. (Pet., p. 6:2-19.)

If a dog is adjudicated potentially dangerous or vicious, the owner or keeper of the dog shall be liable to the city or county where the dog is impounded for the costs and expenses of keeping the dog. (Food & Agric. Code, § 31625, subd. (a).)

Here, IVHS took Kaliman into custody on May 1, 2020, and has remained in custody since then. (Mot., Pena Decl., ¶ 11.) Thus, Petitioner is entitled to a total of $1,181.00 in costs, which includes $810.00 for the cost kenneling Kaliman at a rate of $10.00 per day and $371.00 in other expenses. (Id., Exh. B.)

In addition, Food and Agricultural Code section 31662 requires that a violation involving a vicious dog be punished by a fine not to exceed $1,000.00. Any fines imposed must be paid to the city or county in which the violation occurred to defray the costs of implementing these regulations. (Food & Agric. Code, § 31663.) Thus, the Court imposes a fine of $500.00 to be paid to the City of Pomona.

1. Conclusion & Order

For the foregoing reasons, Petitioner Inland Valley Humane Society’s Petition for Determination of Vicious Dog is GRANTED. In addition, Respondent is ordered to pay a fine of $500.00 to the City of Pomona as well as fees and costs to Petitioner in the amount of $1,181.00. within thirty (30) days of this order.

Moving party is ordered to give notice.