County
Angeles v. Super. Ct.
Filed 9/5/12
County of Los Angeles v. Super. Ct. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION EIGHT
COUNTY OF LOS
ANGELES,
Petitioner,
v.
THE SUPERIOR COURT
OF LOS ANGELES
COUNTY,
Respondent;
KAMERON FATEN,
a Minor, etc., et al.,
Real Parties in Interest.
No. B241171
(Los
Angeles County
Super. Ct.
No. MC021875)
ORIGINAL
PROCEEDING in mandate. Randolph
A. Rogers, Judge. Petition granted.
John
F. Krattli, County Counsel, Richard K.
Mason, Diane C. Reagan, Deputy County Counsels; Ford, Walker, Haggerty &
Behar, Joseph A. Heath, Renee E. Jenson; Greines, Martin, Stein & Richland,
Martin Stein and Carolyn Oill for Petitioner.
R.
Rex Parris Law Firm, Howard S. Blumenthal and Brendan P. Gilbert for Real
Parties in Interest.
No
appearance for Respondent.
___________________________
Under Government Code section 815.6,
a public entity may be liable for injury caused by its failure to discharge a
“mandatory duty” imposed by an enactment designed to protect against that type
of injury.
mandatory, “the enactment [must] be obligatory,
rather than merely discretionary or permissive, in its directions to the public
entity . . . .” (
(2000) 22 Cal.4th 490, 498 (Haggis).) In addition, “[i]t is not
enough . . . that the public entity or officer have been under
an obligation to perform a function if the function itself involves the
exercise of discretion.” (
Therefore, an enactment’s use of mandatory language such as “shall” is
not dispositive. An enactment creates a
mandatory duty “only where the . . . commanded act [does] not lend
itself to a normative or qualitative debate over whether it was adequately
fulfilled.” (de Villers v. County of
(2007) 156 Cal.App.4th 238, 260 (de
Villers).)
The
main issue raised in this writ proceeding is whether the County of Los Angeles
(County) had a mandatory duty to capture and take into custody two
privately-owned pit bulls before they attacked one of the plaintiffs in this
case. The trial court concluded it did
based on certain provisions in the Los Angeles County Code (LACC) which, when
read together, require the Director of the County Department of Animal Care and
Control to capture and take into custody any animal that “constitute[s] or
cause[s] a hazard, or [is] a menace to the health, peace or safety of the
community.”
We
hold the trial court erred in its construction of the LACC provisions in
question. We also reject plaintiffs’
additional arguments that other provisions in the LACC imposed a mandatory duty
on the County to take certain actions that might have prevented the pit bull
attack in this case. Accordingly, we
grant the County’s petition for a writ of mandate and direct the trial court to
vacate its order denying the County’s motion for summary judgment and to
thereafter enter a new order granting the motion.
FACTUAL AND PROCEDURAL HISTORY
One
afternoon in September 2009, Kameron Faten and his brothers, Devin and Jordan,
were walking home from school when two pit bulls belonging to John Bowles
jumped over a fence at Bowles’s residence and attacked Kameron, causing serious
injuries. In August 2010, the three
brothers filed this action by and through their guardian ad litem, Melissa
Faten. The complaint named three
defendants: Bowles, the dogs’ owner;
Daniel Miller, Bowles’s landlord; and
the County.
The
second amended and operative complaint
(complaint) contains three causes of against the County, all of which sound in
negligence. Two are substantially
similar and are denominated “negligence,” while a third, asserted by the two
brothers who witnessed the attack, is for negligent infliction of emotional
distress. Among other things, the
complaint alleges that the County “had received numerous complaints about
the . . . pit bulls yet failed to capture and take the pit bulls
into custody pursuant to [LACC], § 10.12.090, knowing that they posed an
immediate threat to public
safety.”
The
LACC section cited in the complaint, and the one upon which the trial court
ultimately relied to deny summary judgment in this case, provides in pertinent
part that “[t]he director [of the County Department of Animal Care and Control]
shall capture and take into custody
[¶] . . . [¶] [a]ny animal being kept or maintained contrary to the
provisions of this Division 1, the Animal Control Ordinance, or any other
ordinance or state statute.” (LACC, §
10.12.090(C), italics added.)
LACC
section 10.40.010 provides that all persons in the County who own an animal
must comply with a list of 21 conditions.
The condition that is relevant to this writ proceeding provides: “No animal shall be allowed to constitute or
cause a hazard, or be a menace to the health, peace or safety of the community.” (LACC, § 10.40.010(W).)
According
to the complaint, after the attack, the County seized the dogs and they were
euthanized within one month of their capture.
In October 2011, the County
moved for summary judgment, claiming it had no mandatory duty to capture the
dogs before the attack on Kameron. As
part of its motion, the County presented evidence reflecting that, in the
approximately two and-one-half years before the attack on Kameron, its Department
of Animal Care and Control had received nine calls about pit bulls at Bowles’s
residence. All but the last two were
from anonymous callers. The anonymous
calls were made between April 18, 2007, and February 4, 2008. The callers
reported that pit bulls jumped the fence and were running loose, and some
callers reported they were chasing people.
In each case, an officer was sent to the location. In most cases, the officer was unable to find
a dog running loose or to make contact with the owner. In several cases, legal notices were
left. In one case, the officer impounded
a pit bull found running at large after an anonymous caller reported the pit
bull was chasing a County inspector. The
officer went to the Bowles property, found no one at home, and posted a notice
on the door. No one claimed the
impounded dog, and it was euthanized.
The first time a caller
identified herself by name was when Dawn Harrison called twice, at the end of
May and beginning of June 2009. She
first reported two pit bulls jumped their fence, then jumped over Harrison’s fence and killed two
goats. She called again a few days later
to report the dogs were loose again and chased her son. The Department sent an officer to the
Bowles’s residence in response to both of Harrison’s
complaints. The first time, the officer
was unable to make contact with the owner of the dogs, and the officer posted a
24-hour notice on the door. The second
time, the officer contacted Bowles’s daughter, Jordan Bowles, and issued an
Order to Comply, requiring Bowles to keep not more than three dogs on his
property, the legal limit permitted in unincorporated areas of the County.
Harrison testified
in deposition there were many dogs coming and going on Bowles’s property. Another neighbor testified that Bowles would
acquire dogs and get rid of dogs so there was a free flow of animals in and out
of Bowles’s house. The anonymous
complaints to the Department described a pit bull that escaped from the Bowles
property but not specifically which pit bull.
The anonymous complaints variously described a “Black and White
Pitbull,” a “White Pitbull,” and a “Brown/white Pitbull.”
The
trial court denied the County’s summary judgment motion. According to the court, the
“undisputed facts indicate that Defendant Bowles’s dogs constituted a hazard and
a menace to the health, peace and safety of the community.” Therefore, the court concluded, when read
together, LACC
sections 10.12.090(C) and 10.40.010(W) gave rise to a mandatory duty on
the part of the County to take custody of the dogs before the attack.
The
County filed a timely writ petition challenging the trial court’s ruling. We issued an alternative writ, received
additional briefing from the parties and heard oral argument.
DISCUSSION
1. Applicable Law and the
Standard of Review.
Under
the Government Claims Act (§ 810 et seq.), there is no common law tort
liability for public entities. Tort
liability may be imposed against a public entity only pursuant to statute. (§ 815, subd. (a); Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897.)
One
statute that may give rise to public entity liability is section 815.6, which
provides: “Where a public entity is
under a mandatory duty imposed by an enactment that is designed to protect
against the risk of a particular kind of injury, the public entity is liable
for an injury of that kind proximately caused by its failure to discharge the
duty unless the public entity establishes that it exercised reasonable
diligence to discharge the duty.” For purposes of section
815.6, enactment means “a constitutional provision, statute, charter provision,
ordinance or regulation.” (§ 810.6.)
“[A]pplication
of section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its
directions to the public entity; it must require,
rather than merely authorize or permit, that a particular action be taken or
not taken.” (Haggis, supra, 22 Cal.4th
at p. 498.) Even where an enactment
imposes an obligation, it does not necessarily follow that the obligation gives
rise to a mandatory duty. The key
question is whether the obligation involves an exercise of discretion. As the Supreme Court explained, “[i]t is not
enough . . . that the public entity or officer have been under
an obligation to perform a function if the function itself involves the
exercise of discretion.” (
Therefore,
specific terms used in the enactment are not dispositive. For example, in some contexts, use of the
word “shall” will impose a mandatory duty (see, e.g., Morris v. County of Marin (1977) 18 Cal.3d 901, 904-911 [statute
providing that local government entity “shall require” applicant for building
permit to provide proof of workers’ compensation coverage creates mandatory
duty]), while in others it will not (see, e.g., de Villers, supra, 156
Cal.App.4th at pp. 256-263 [federal regulation stating that entities licensed
by federal Drug Enforcement Agency to store controlled substances “shall
provide” effective controls against theft did not create mandatory duty]). As the Court of Appeal explained in
actionable under section 815.6 had been imposed, the Legislature’s use of
mandatory language (while necessary) is not the dispositive criteria. Instead, the courts have focused on the
particular action required by the statute, and have found the enactment created
a mandatory duty under section 815.6 only
where the statutorily commanded act did not lend itself to a normative or
qualitative debate over whether it was adequately fulfilled.” (Italics added, fn. omitted; see also
(Terrell R.) (2002) 102
Cal.App.4th 627, 639 [“An enactment creates a mandatory duty if it requires a
public agency to take a particular action. [Citation.]
An enactment does not create a mandatory duty if it merely recites
legislative goals and policies that must be implemented through a public
agency’s exercise of discretion.
[Citation.] The use of the word
‘shall’ in an enactment does not necessarily create a mandatory duty.” (Italics added.)].)
Whether
an enactment creates a mandatory duty is a question of law which we review de
novo. (Haggis, supra, 22 Cal.4th
at p. 499.)
LACC Imposed a Mandatory Duty
on the County to Capture the Pit
Bulls Before the Attack.
In
this case, LACC sections 10.12.090(C) and 10.40.010(W) may be read together as
requiring the County to capture any animal that “constitute[s] or cause[s] a
or safety of the community.”
(Italics added.) However, what
constitutes a “hazard” or a “menace to the health, peace or safety of the
community” is an inherently subjective question which requires the exercise of
considerable discretion based on consideration of a host of competing
factors. (See
whether hazard is “likely to be of such extent as to be an immediate hazard to
occupancy of [a] proposed building”]; Department
of Corporations v. Superior Court (2007) 153 Cal.App.4th 916, 933-934
[discussing “sound judgment, expertise and discretion” inherent in
determination whether action is “necessary or appropriate in the public
interest or for the protection of
investors . . . .”].)
It involves “debatable issues over whether the steps taken by the
entity adequately fulfilled its
obligation.” (de Villers, supra, 156
Cal.App.4th at p. 260.) The LACC
sections therefore did not impose a mandatory duty on the County to capture the
pit bulls in question before they attacked Kameron.
The
cases upon which plaintiffs rely are inapposite. Thus, in Scott
v. County of Los Angeles (1994) 27 Cal.App.4th 125, the court considered
whether the County could be held liable for injuries a child sustained at the
hands of her foster care provider. To
answer this question, the court had to determine whether a state Department of
Social Services regulation requiring social workers to have monthly
face-to-face contact with each child in foster care, as well as monthly contact
with each foster care provider (id. at
p. 134), imposed a mandatory duty. The
court determined the regulation in question imposed such a mandatory duty. The court explained that the regulation, “including
the requirement of monthly face-to-face contact, plainly constituted mandatory requirements which left [the social
worker] no choice on the issue of the frequency of visits to [the child].” (Id. at
p. 142.) Because the regulation
authorized less frequent visits under certain circumstances only if approved in
writing by a second level supervisor, and because such approval had not been
obtained, the social worker’s “failure to visit [the child] on a monthly basis
was not an omission resulting from an exercise of discretion vested in [the
social worker] under the regulation.” (
Stated
simply, the regulation in question contained a specific obligation which left
no room for the exercise of discretion.
There was no room for debate whether the obligation had been adequately
performed. Here, in contrast, the LACC
provisions upon which the plaintiffs rely imposed no such clear and unequivocal
mandatory duty. A duty to capture any animal that constitutes
or causes “a hazard, or [is] a menace to the health, peace or safety of the
community,” involves considerable exercise of discretion.
In
Braman v. State of California (1994)
28 Cal.App.4th 344, 356-357, the Court of Appeal considered whether certain
amendments to Penal Code section 12076 requiring the Department of Justice to
check mental health records
of persons attempting to purchase a handgun created a mandatory duty. The statutory amendments were a response to
an earlier appellate decision (Gray v.
State of California (1989) 207 Cal.App.3d 151) holding that a prior version
of the statute did not impose a mandatory duty.
(See Braman,
349-351.) Before the amendments, the
statute required the Department of Justice to advise gun dealers if it
“determines that the purchaser is a person described in” certain sections of
the Penal Code or Welfare and Institutions Code. (Id. at
p. 349.) Construing this earlier
statutory language, the Court of Appeal in Gray
held that it “ ‘does not describe the type of investigation required,’
an omission which ‘suggests that this is a matter left to the Department of
Justice.’ ” (Ibid., quoting Gray,
155-157.) In response to this decision,
the Legislature amended the statute by, among other things, specifying the
examine. (See Braman, supra, 28
Cal.App.4th at pp. 350-352.) Based on
this very specific language, as well as unequivocal evidence that the
amendments were designed to “overthrow Gray,”
the Court of Appeal in Braman had
little difficulty holding that the amendments gave rise to a mandatory
duty. (Id. at pp. 349-353; see especially id. at p. 352 [“The Legislature inserted language of unavoidable
obligation and specified the nature of that obligation with some
precision. It then linked nonperformance
of that obligation to liability under the California Tort Claims Act.”].)
In
this case, we are not dealing with such precise language that is not subject to
interpretation and discretion in its application. In addition, plaintiffs have offered no
legislative history of LACC sections 10.12.090 and 10.40.010 which reflects an intent to impose
liability on the County in case of nonperformance.
Finally,
in Alejo v. City of Alhambra (1999)
75 Cal.App.4th 1180 (Alejo), the
Court of Appeal considered the potential liability of a city for abuse suffered
by a three-year-old boy after a police officer allegedly failed to conduct any
investigation in response to a detailed report of abuse. In considering the issue, the court was
required to determine whether a mandatory duty was imposed by Penal Code
section 11166, subdivision (a). At the
time, the statute provided that an employee of a child protective
agency—defined to include a police officer—“who has knowledge of or observes a
child . . . whom he or she knows or reasonably suspects has been
the victim of child abuse shall
report the known or suspected instance of child abuse to a child protective
agency immediately or as soon as practically possible by telephone and shall
prepare and send a written report thereof within 36 hours of receiving the
information concerning the incident.”
(See Alejo,
1185-1186.) The Court of Appeal
concluded the statute imposed two mandatory duties on a police officer who
received a report of child abuse—the duty to investigate and the duty to file a
report of child abuse when an objectively reasonable person in the same
situation would suspect abuse. (
While
it is true that the second of the duties identified by the Court of Appeal in
objectively reasonable person in the same situation would suspect
abuse”—requires the exercise of some judgment, it is not one that involves the
exercise of discretion. It is an
inherently objective determination that does not require consideration of a
host of potentially competing factors.
In contrast, determining whether an animal constitutes or causes a
“hazard, or [is] a menace to the health, peace or safety of the community,” is
an inherently subjective process which requires the exercise of professional
expertise and consideration of a host of potentially competing factors.
In
sum, even when read together, LACC sections 10.12.090(C) and 10.40.010(W)
cannot be construed in the manner urged by plaintiffs. These sections did not impose a mandatory
duty on the County to take custody of the pit bulls before Kameron was
attacked.
3. Plaintiffs’ Additional Arguments for
Imposing Liability on the County Lack
Merit.
Plaintiffs
cite two additional LACC provisions which they claim impose mandatory duties
that can serve as a basis for imposition of liability against the County in
this case. Plaintiffs cited these
provisions in their opposition to the County’s summary judgment motion, but the
trial court did not address their applicability, presumably because it was not
necessary to do so. Because these claims
raise issues of law, and to avoid additional unnecessary proceedings, we
address them here.
First,
plaintiffs claim the County had a mandatory duty to petition the trial court
“for a determination as to whether the pit bulls were potentially dangerous
dogs.” Plaintiffs cite LACC section
10.37.110.A, which provides: “If an
animal control officer or a law enforcement officer has investigated
probable cause to believe that a dog is potentially dangerous or vicious, the
director of the department of animal care and control shall petition the
Superior Court, within the judicial district wherein the dog is owned or kept,
for a hearing, or shall conduct an administrative hearing, for the purpose of
determining whether or not the dog in question should be declared potentially
dangerous or vicious.” (Italics added.)
This
provision obligates the County to file a petition in the superior court when an
officer has determined a dog is “potentially dangerous.” But there is no obligation to act until an
animal control officer or a law enforcement officer has “determined” that there
is probable cause to believe “the dog in question” is “potentially dangerous or
vicious.” In this case, the plaintiffs
presented no evidence that such a determination had been made. The County presented evidence that it did not
know which “dog in question” was involved in the attack on Harrison’s goats
before Kameron was attacked, nor did any of the anonymous calls identify any
particular dog on the loose. Therefore, LACC section 10.37.110.A did not impose
a mandatory duty on the County to petition the trial court before the attack on
Kameron.
Finally,
plaintiffs claim the County had a mandatory duty to investigate Harrison’s two
complaints about Bowles’s pit bulls made a few months before Kameron was
attacked. They cite LACC section
10.12.170, which provides: “The director
shall receive, investigate and report to other county officers and county
departments complaints concerning disturbing or offensive noises or conduct of
animals or fowl kept or maintained in the unincorporated territory of the
county of Los Angeles.” Plaintiffs claim
the County did not complete its investigation because the investigating officer
did not review any previous complaints about the pit bulls in the Animal
Control database.
Plaintiffs’
argument amounts to a claim that the County did not conduct an adequate
investigation. This argument demonstrates the
County’s duty was not mandatory because the duty of a public entity is not
mandatory if it is debatable whether the duty was adequately fulfilled. (See de Villers, supra, 156
Cal.App.4th at pp. 260-261 [“when the statutorily prescribed act involves
debatable issues over whether the steps taken by the entity
obligation, . . . the act necessarily embodies discretionary
determinations by the agency regarding how best to fulfill the mandate, and
this discretion removes the duty from the type of activity that supports a
claim under section 815.6”].)
Plaintiffs
rely on Davila v. County of Los Angeles
(1996) 50 Cal.App.4th 137, 140-142, which held the coroner had a mandatory duty
to make a reasonable and diligent attempt to locate the family of a dead
person. They argue that, just as the
coroner may be found to have failed to discharge the duty by not calling the
person identified in the decedent’s personal effects as the one to call in case
of accident, the County cannot show it exercised reasonable diligence by not
examining the Animal Control database in the course of investigating Harrison’s
complaints.
The mandatory duty
of the coroner involved the obligatory, ministerial task of looking through the
decedent’s personal effects and making an attempt to contact a readily
identifiable relative as a condition to disposing of a body. In contrast, the duty of the County in
question here involves permissive and discretionary decisions and conduct. Even if the investigating officer had read
all the previous complaints in the Animal Control database, the County would not then have
had an obligation to petition the court to declare a dog “potentially
dangerous,” or to seize and impound a dog.
An
enactment requiring a public entity to conduct an investigation under certain
circumstances does not, without more, impose a mandatory duty to take certain
specified action. (See
150 Cal.App.3d 848, 858 [“The commissioner’s mandatory statutory duty to
‘investigate’ the Robinson complaint may not reasonably be read as imposing a
mandatory duty on the commissioner to take
action in the event the commissioner’s investigation discloses evidence of
wrongdoing.”]; see also MacDonald v.
California (1991) 230 Cal.App.3d 319, 331[“execution of the [statutory]
duties to visit day care homes and investigate complaints necessarily involves
some exercise of discretion in deciding what action to take, and when, to
evaluate and assess a particular situation.
A party disagreeing with or harmed by the exercise or nonexercise of
such discretion has not explicitly been provided any remedy in damages by the
Legislature. [¶] Moreover, . . . a mandatory duty to
investigate is not the same as a mandatory duty to take action after the
investigation”].)
The
petition for writ of mandate is granted.
The respondent court is directed to vacate its April 12, 2012 order
denying petitioner’s motion for summary judgment, and to thereafter enter a new
and different order granting the motion.
Petitioner
is entitled to recover its costs in this writ proceeding. (Cal. Rules of Court, rule 8.493(1)(A).)
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
GRIMES,
J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
name="_ftn1" title="">[1] Undesignated statutory references are
to the Government Code.
