Tentative Rulings

Case Number: 19STCP05235    Hearing Date: December 18, 2019    Dept: 94

TENTATIVE RULING:

Petitioner Inland Valley Humane Society on behalf of The City of Pomona’s Petition for Determination of Potentially Dangerous Dog is GRANTED.

The hearing is CONTINUED as to the issue of the amount of costs Respondents must pay the City. Petitioner is ordered to submit evidence to support the amount of costs sought for incurred expenses, fines, and fees and for the costs of kenneling.

ANALYSIS:

I. Discussion

On December 4, 2019, Petitioner Inland Valley Humane Society on behalf of The City of Pomona (“Petitioner” or “IVHS”) filed a petition to determine if a dog is potentially dangerous. On December 4, 2019, the Court set a hearing on the petition for April 8, 2020. On December 9, 2019, the Court set a hearing on the petition for December 18, 2019. No opposition has been filed.

II. Legal Standard

A petition to determine if a dog is potentially dangerous or vicious may be brought pursuant to California Food and Agricultural Code sections 31601, et seq. A hearing on such a petition must be held promptly within no less than five working days nor more than 10 working days after service of the petition and notice upon the owner or keeper of the dog. (Cal. Food & Agric. Code, § 31621.) At the hearing the court may admit into evidence all relevant evidence, including incident reports and the affidavits of witnesses. (Id.) A finding that the dog is potentially dangerous or vicious must be made upon a preponderance of the evidence. (Id.)

“Potentially dangerous dog” means any of the following:

(a) Any dog which, when unprovoked, on two separate occasions within the prior 36-month period, engages in any behavior that requires a defensive action by any person to prevent bodily injury when the person and the dog are off the property of the owner or keeper of the dog.

(b) Any dog which, when unprovoked, bites a person causing a less severe injury than as defined in Section 31604.

(c) Any dog which, when unprovoked, on two separate occasions within the prior 36-month period, has killed, seriously bitten, inflicted injury, or otherwise caused injury attacking a domestic animal off the property of the owner or keeper of the dog.

(Cal. Food & Agric. Code, § 31602.)

“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.

(Cal. Food & Agric. Code, § 31603.)

A severe injury is defined 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.” (Cal. Food & Agric. Code, § 31604.)

III. Discussion

1. Determination of Potentially Dangerous Dog

Petitioner moves for a determination that the dog owned by Respondents is potentially dangerous.

A hearing on such a petition must be held promptly within no less than five working days nor more than 10 working days after service of the petition and notice upon the owner or keeper of the dog. (Cal. Food & Agric. Code § 31621.) Here, Respondents were served with the petition and notice of hearing by U.S. mail with return receipt requested on December 9, 2019.

At the hearing the court may admit into evidence all relevant evidence, including incident reports and the affidavits of witnesses. (Food & Agric. Code § 31621.) A finding that the dog is potentially dangerous or vicious must be made upon a preponderance of the evidence. (Food & Agric. Code § 31621.)

“Potentially dangerous dog” means any of the following:

(a) Any dog which, when unprovoked, on two separate occasions within the prior 36-month period, engages in any behavior that requires a defensive action by any person to prevent bodily injury when the person and the dog are off the property of the owner or keeper of the dog.

(b) Any dog which, when unprovoked, bites a person causing a less severe injury than as defined in Section 31604.

(c) Any dog which, when unprovoked, on two separate occasions within the prior 36-month period, has killed, seriously bitten, inflicted injury, or otherwise caused injury attacking a domestic animal off the property of the owner or keeper of the dog.

(Food & Agric. Code, § 31602.)

A severe injury is defined 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.” (Food & Agric. Code, § 31604.)

To support the petition, Petitioner provides a declaration from its animal cruelty investigator, Dayanera Grondin (“Officer Grondin”). Grondin declares that Petitioner is the enforcement agency for animal control and related functions for the City of Pomona (“City”). (Grondin Decl., ¶ 1.) Officer Grondin conducted an investigation of Respondents’ dog. (Id., ¶ 10, Ex. A.) During the investigation, Officer Grondin discovered that Respondents’ dog was reported to have been off leash and chased a passerby, Alberto Leon (“Leon”), into the street where he was struck by an oncoming vehicle on August 16, 2017. (Id., ¶¶ 4-5, Ex. A.) Leon was transported to the hospital and underwent surgery for his ankle injury caused by the oncoming vehicle. (Id.)

Officer Grondin states that IVHS responded to a call at 1451 W. Holt Avenue in Pomona, CA on September 8, 2019 for a report of a dog bite. (Grondin Decl., ¶ 6, Ex. A.) Jorge Soriano (“Soriano”) advised IVHS officers that, ten minutes prior to their arrival, he had been walking east on the 1400 block of Holt Avenue when the dog, confirmed by residents at 1451 W. Holt Avenue as belonging to Respondents, bit his right calf. (Id., ¶ 6.) IVHS officers met with Respondent James at her apartment and Respondent James claimed ownership of the dog and stated that the dog got out of the house through one of the windows. (Id.) IVHS officers explained the 10-day quarantine procedure to Respondent James and ordered her to comply. (Id.) Grondin states that Respondent James became very confrontational, grabbed the dog and ran off into the street. (Id.) The IVHS officers placed a notice on Respondent James’ door to contact IVHS and left the scene. (Id.)

Officer Grondin further declares that, on September 17, 2019, IVHS received a call from the Pomona Police Department regarding a dog biting incident. (Grondin Decl., ¶ 7, Ex. A.) Officer Grondin states that Joe Pedroza (“Pedroza”) was walking past 1451 W. Holt Avenue when Respondent James opened her front door and the dog exited the home and bit Pedroza, puncturing his right calf. (Id.) After the incident, IVHS officers observed that the dog was off leash and in the front yard of Respondent James’ residence, in violation of the 10-day quarantine order. (Id.) IVHS officers informed Respondent James that she had violated the 10-day quarantine order, advised that the dog would need to be taken into custody as a consequence of the attacks, issued her a citation for failure to quarantine the dog, and took the dog into custody. (Id.) When Respondent James went to IVHS to pick up the dog on September 20, 2019, Officer Grondin met with her and advised her that the dog would need to remain in IVHS custody for public safety because the dog was involved in multiple attacks. (Id., ¶ 8.)

Officer Grondin opines that, based upon the information she gathered during her investigation, Respondents’ dog is potentially dangerous. (Grondin Decl., ¶ 11.) Officer Grondin declares that all three attacks were unprovoked and the dog was running at large during the attacks. (Id., ¶ 9.)

Aside from Officer Grondin’s declaration, Petitioner has also submitted declarations from Soriano and Pedroza to confirm the September 8, 2019 and September 17, 2019 incidents where they were bitten by Respondents’ dog, respectively, with attached photographs of their dog bite injuries. (See Soriano Decl., ¶ 1, Ex. 2; Pedroza Decl., ¶ 1, Ex. 1.)

The Court finds that Petitioner’s evidence is sufficient to establish that Respondents’ dog is potentially dangerous as defined by California Food and Agricultural Code section 31602(a). The three incidents took place within a 36-month period and occurred off of Respondents’ property when the dog was unprovoked. With respect to the incident with Leon, Leon actually engaged in defensive action by running into the street where he was struck by a vehicle. As for the incidents involving Soriano and Pedroza, while there are no indications that they actually engaged in any defensive action, the fact that the dog actually went after and bit them demonstrates that the dog engaged in behavior that would require defensive action to prevent bodily injury. The Court also notes that Respondents’ dog is potentially dangerous as defined by California Food and Agricultural Code section 31602(b), given that the dog bit two people when unprovoked.

Accordingly, the petition for determination of potentially dangerous dog is granted.

1. Requested Orders

Petitioner has requested that the Court order Respondents to surrender the dog to a rescue shelter as Respondents have demonstrated a blatant disregard for IVHS officers’ orders to quarantine the dog in the interest of public safety. While Officer Grondin’s declaration indicates that Respondent James failed to comply with the quarantine order issued by IVHS officers, the Court finds the requested order is excessive at this time.

Petitioner alternatively requests an order for Respondents to meet the conditions described in Food and Agricultural Code sections 31641 through 31644, as well as an order requiring Respondents to place a sign on their gate and a warning on the collar of the dog identifying the dog as potentially dangerous.

Food and Agricultural Code section 31641 requires potentially dangerous dogs to be properly licensed and vaccinated and for the licensing authority to include the potentially dangerous designation in the registration records of the dog after either the owner of the dog has agreed to the designation or the court has determined the designation applies to the dog. (Food & Agric. Code, § 31641.) Section 31642 requires potentially dangerous dogs to be kept indoors or in a securely fenced yard from which the dog cannot escape and into which the children cannot trespass while the dog is on the owner’s property. (Id., § 31642.) Section 31642 further provides that a potentially dangerous dog may be off the owner’s premises only if it is restrained by a substantial leash, of appropriate length, and if it is under the control of a responsible adult. (Id.) Section 31643 requires the owner of a potentially dangerous dog to notify the animal control department if the dog dies or is sold, transferred or permanently removed from the city or county in writing within two working days of the changed condition and new location of the dog. (Id., § 31643.) Finally, section 31644 states that the dog shall be removed from the list of potentially dangerous dogs if there are no additionally instances of the behavior described in section 31602 within a 36-month period from the date of designation as a potentially dangerous dog. (Id., § 31644.) Section 31644 provides that a dog may be removed from the list of potentially dangerous dogs prior to the expiration of the 36-month period if the owner demonstrates to the animal control department that changes in circumstances or measures taken by the owner, such as training of the dog, have mitigated the risk to public safety. (Id., § 31644.)

The Court finds Petitioner’s request for an order for Respondents to meet the conditions described in Food and Agricultural Code sections 31641 through 31644 to be appropriate under the circumstances. Respondents are thus ordered to meet the conditions described in Food and Agricultural Code sections 31641 through 31644.

As for the request for an order requiring Respondents to place a sign on their gate and a warning on the collar of the dog identifying the dog as potentially dangerous, the Court finds that while the warning sign on the gate would serve a purpose in ensuring people are adequately warned, it is unclear how a warning on the dog’s collar would serve any purpose. The Court will thus order Respondents to place a warning sign on their gate, but not on the dog’s collar.

1. Requested Costs and Fines

Petitioner has requested that the Court order Respondents to reimburse IVHS in the amount of $959.00 for expenses, fines, and fees incurred and for the costs of kenneling at a rate of $10 per day since September 17, 2019 and impose a fine in the amount of $500.00 payable to the City.

Food and Agricultural Code section 31625 provides that “[t]he 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, if the dog is later adjudicated potentially dangerous or vicious.” (Food & Agric. Code, § 31625(a).) As the Court has determined that the dog is potentially dangerous, the City is entitled to the costs and expenses of keeping the dog from Respondents. However, Petitioner has failed to submit evidence to support the amount of costs sought. While Petitioner requests $959.00 for incurred expenses, fines, and fees and for the costs of kenneling at a rate of $10 per day since September 17, 2019 in the memorandum of points and authorities, there is no declaration or documents to support this amount. The Court will thus continue the hearing on this issue for Petitioner to submit evidence to support the amount sought.

With respect to the requested $500.00 fine, the Court finds Petitioner has failed to demonstrate the City’s entitled to such a fine. Food and Agricultural Code section 31662 provides that “[a]ny violation of this chapter involving a potentially dangerous dog shall be punished by a fine not to exceed five hundred dollars ($500).” (Food & Agric. Code, § 31662.) There are no indications that Respondents have violated any statutes regarding potentially dangerous dogs. The City is thus not entitled to a $500.00 fine pursuant to Food and Agricultural Code section 31662.

IV. Conclusion & Order

Based on the foregoing, the petition for determination of a potentially dangerous dog is GRANTED. Respondents are ordered to meet the conditions described in Food and Agricultural Code sections 31641 through 31644. Respondents are also ordered to place a sign on their gate warning of the potentially dangerous dog.

The hearing is CONTINUED as to the issue of the amount of costs Respondents must pay the City. Petitioner is ordered to submit evidence to support the amount of costs sought for incurred expenses, fines, and fees and for the costs of kenneling.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.