Monday, October 21, 2019
Court of Appeal:
By a MetNews Staff Writer
A dog who was spooked by a smoke detector going off and attacked a man will be put to death because the owner’s lawyer did not show up at an administrative hearing, and there was consequently no objection to the case being decided on the basis of hearsay, under a decision Friday by the Court of Appeal for this district.
Justice Thomas Willhite of Div. Four wrote the opinion, which was not certified for publication. It affirms a judgment by Los Angeles Superior Court Judge Mitchell L. Beckloff denying a petition for a writ of administrative mandamus.
Melva Calderon, the owner of “Precious,” a pit bull mix, challenged the city’s determination that her dog is vicious and must be killed. The flaw in the administrative procedure, she argued was that the man weho was attacked did not testify; instead, his affidavit was used.
She pointed out that while hearsay is admissible in an administration hearing, a decision may not be founded solely on such evidence. Calderon invoked the “residuum rule” requiring that there be some evidence of the sort that is admissible in a courtroom.
“Her contention fails, however, because she failed to object at the administrative hearing or seek reconsideration by the hearing officer.”
Objection Too Late
He said in a footnote:
“Calderon’s assertion that her attorney raised objections to the hearsay evidence in the superior court does not assist her. To bring the residuum rule into play, the objection must be timely made, i.e., before submission of the case to the hearing officer, or in a request for reconsideration by the hearing officer. An objection made in the appeal of the hearing officer’s decision (by means of a petition for writ of administrative mandamus) is not a timely objection.”
Two other dogs owned by Calderon, who joined in the attack, have already been killed by city employees.
The case is Calderon v. L.A. County Dept. of Animal Care and Control, B294293.
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