Friday, September 21, 2012
Court of Appeal Holds County Not Liable for Pit Bull Attack
Ordinances Impose No Mandatory Duty on Animal Control Officers, Justices Say
By KENNETH OFGANG, Staff Writer
Los Angeles County ordinances do not impose a mandatory duty on the Department of Animal Care and Control to seize an animal in response to citizen complaints that the animal is a menace to public safety, the Court of Appeal for this district has ruled.
Div. Eight granted a writ of mandate on Sept. 5, ordering that summary judgment be entered in favor of the county in a suit brought on behalf of three brothers after one of them was attacked as they walked home from school in September 2009. Justice Elizabeth Grimes’ opinion was certified yesterday for publication.
Kameron, Devin, and Jordan Faten alleged through their guardian ad litem that two pit bulls belonging to John Bowles jumped over a fence at the Bowles residence and attacked Kameron, causing serious injuries. They named Bowles, his landlord, and the county as defendants.
The complaint alleged that the county “had received numerous complaints” regarding the dogs, but took no action. This allegedly violated a county ordinance stating that the department “shall capture and take into custody” an animal “being kept or maintained contrary to” state or local law.
Failure to respond to those complaints, the plaintiffs alleged, breached a mandatory duty pursuant to an ordinance stating that “[n]o animal shall be allowed to constitute or cause a hazard, or be a menace to the health, peace or safety of the community.”
The complaint further alleged that the dogs were seized and euthanized after the incident.
In moving for summary judgment, the county said it had received nine calls about pit bulls at the residence, all but two from anonymous callers, and had investigated each of them. In most cases, the officer did not find a dog running loose, although on one occasion a dog was found running at large; that animal was impounded, not claimed, and euthanized.
On another occasion, Bowles was served with a compliance order requiring that he keep no more than three dogs on the property, in accord with a county ordinance applicable to unincorporated areas.
In denying summary judgment, Los Angeles Superior Court Judge Randolph Rogers said the two ordinances had to be read together, so that the county had a mandatory duty to seize the dogs in response to complaints showing that they “constituted a hazard and a menace to the health, peace and safety of the community.”
Grimes, however, said the ordinance’s use of imprecise phrases such as “hazard” and “menace to the health, peace or safety of the community” were inconsistent with the finding of a mandatory duty for tort claims purposes. Whether the county complied with its obligations or not, she said, “is an inherently subjective question which requires the exercise of considerable discretion based on consideration of a host of competing factors.”
The justice distinguished Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, holding that a state regulation requiring social workers to meet with each foster child and foster care provider at least monthly, absent specified exceptions, imposed a mandatory duty.
Since the rule left social workers with no discretion to hold meetings less frequently than monthly, unless they obtained written approval from supervisors, the court explained, its requirements were “plainly...mandatory.”
In this case, Grimes explained, the cited ordinances impose “no such clear and unequivocal mandatory duty,” because the department has “considerable” discretion to determine whether a particular animal is a menace.
The county was represented on appeal by Deputy County Counsels Richard K. Mason and Diane C. Reagan; Joseph A. Heath and Renee E. Jenson of Ford, Walker, Haggerty & Behar; and Martin Stein and Carolyn Oill of Greines, Martin, Stein & Richland.
Howard S. Blumenthal and Brendan P. Gilbert of the R. Rex Parris Law Firm represented the Fatens.
The case is County of Los Angeles v. Superior Court (Faten), B241171.
Copyright 2012, Metropolitan News Company