Los Angeles County Department of Animal Care and Control does not have a mandatory duty to seize an animal in response to a complaint by a citizen that the animal is a menace to public safety, according to a ruling by Justice Elizabeth A. Grimes, Division 8 of the Second District Court of Appeals in California. The opinion was certified on September 20 for publication, according toMetropolitan News-Enterprise.
The writ of mandate granted on September 5 ordered that summary judgment be entered in favor of the county in County of Los Angeles v. Superior Court (Faten.) The lawsuit was brought on behalf of three brothers, one of which was attacked by two pit bulls as they walked home from school in September 2009.
The brothers, Kameron, Devin, and Jordan Faten, who live in the Little Rock area of the Antelope Valley, 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 of Los Angeles as defendants.
DOES ORDINANCE IMPOSE A MANDATE ON ANIMAL CONTROL?
The suit alleged that County Animal Care & Control “had received numerous complaints” regarding the dogs, but had failed to take action. The contention was that the failure to act upon complaints 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.
The plaintiffs alleged that failure by Animal Control to respond to those complaints breached a mandatory duty pursuant to a county 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 a motion for summary judgment, the County stated it had received nine calls about pit bulls at the Bowles residence--all but two from anonymous callers--and they had investigated each of them. In most cases, the officer did not find a dog running loose. On one occasion a dog was found running at large and that animal was impounded. However, the dog was not claimed by anyone and was subsequently euthanized. Since the dog was not microchipped nor licensed, it could not be determined that it belonged to Bowles.
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 dog-limit ordinance which is applicable to unincorporated areas.
CONFLICTING OPINIONS BY JUDGES
Superior Court Judge Randolph Rogers had originally ruled that the two ordinances had to be read together, so that the county had a mandatory duty to seize the dogs in response to complaints which clearly demonstrated the dog(s) “constituted a hazard and a menace to the health, peace and safety of the community.”
Appeals Court Judge 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.”
DIFFERING MANDATES IN ORDINANCES DISTINGUISH CASES
Justice Grimes 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.
The court explained that, since the state rule leaves social workers with no discretion to hold meetings less frequently than monthly--unless they obtained written approval from supervisors—the requirements are “plainly...mandatory.”
In the case of Los Angeles Animal Control, Grimes distinguished that the cited ordinances impose “no such clear and unequivocal mandatory duty,” because the department has “considerable” discretion under the ordinance to determine whether a particular animal is a menace." See: County of Los Angeles v. Superior Court (Faten), B241171.
THE PERSPECTIVE OF THE ANIMAL CONTROL AGENCY
Marcia Mayeda, Director of Los Angeles Animal Care and Control, states, while she understands the plaintiff’s frustration with the irresponsibility of a neighboring dog owner, the decision by Judge Grimes takes into consideration the pragmatic and legal obstacles for a public animal control agency in attempting to respond to complaints about animals that are not maintained in accordance with law.
After the Faten children were attacked, Bowles’ dogs were impounded and ultimately euthanized. The question in this case was, should that have been done prior to the attack? When can or should Animal Control take dogs because of what they might do?
Director Mayeda stated that L.A. County Animal Care and Control has a “Safe Neighborhood” program, which encourages county residents to call and report situations in which animals are not being properly confined or create a nuisance. Officers will then check departmental records for prior problems at the location, whether the animals are licensed and spayed/neutered. They will then attempt to contact the pet owner to discuss neighbors’ concerns and bring about voluntary compliance with animal care/confinement ordinances.
She also stated that county residents can be assured that L.A. County Animal Care and Control will continue to take proactive measures to insure the safety of the community.
County of Los Angeles v. Superior Court (Faten), B241171