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Court of Appeal:
Immunity Shields City From Liability Where Pitbull Previously Bit Deputy City Attorney
Opinion Says Demurrer Proper in Dog Bite Negligence Action, Saying Earlier Attack Did Not Impose Mandatory Duty to Conduct Hearings on Dangerousness of Animal
By Kimber Cooley, associate editor
An exception to statutory immunity—applicable when a public entity fails to discharge a “mandatory duty imposed by an enactment”—does not apply to a negligence action seeking damages against the City of Long Beach for injuries caused by the second attack by a pit bull after the municipality failed to conduct public hearings on dangerousness after the animal’s first bite incident, Div. Three of this district’s Court of Appeal held yesterday.
Saying that the use of the word “shall” is insufficient to show a mandatory duty, the court found that the municipal code sections calling for public hearings after a bite incident by a “vicious animal” are actually discretionary as the question of whether an animal qualifies as “vicious” is left open to interpretation.
The first attack occurred in 2015, when the dog allegedly bit a deputy city attorney on his inner thigh during a raid on a condemned property in which the owner lived. After holding the dog for 10 days, the city declined to hold the pit bull as a “vicious animal” and released the dog to the owner.
Appealing a judgment of dismissal was Reinaldo Piedra, who filed a complaint against the city, as well as the owner and other defendants, alleging that the municipality failed to take action to prevent him from being bitten in the eye by a dog known to be a danger to the public.
Long Beach filed a demurrer to the third amended complaint, asserting the same defense it had raised against the earlier pleadings—that Government Code §815 shields it from liability. The section provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”
Piedra points to §815.6, which carves out an exception to immunity if the entity fails to act on a “mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury.”
Municipal Code
Arguing that the city breached a mandatory duty by failing to hold a public hearing on the dangerousness of the pit bull, plaintiff cites Long Beach Municipal Code §6.16.270, which provides:
“Where there exists evidence sufficient to give rise to the suspicion that a dog [is a vicious animal], the [director of the Long Beach Animal Care and Services Bureau] shall cause a public hearing to be conducted for the purpose of determining whether the dog…is a vicious animal.”
Sec. 6.16.250 defines “vicious animal” as “any animal which bites or attempts to bite any human or animal without provocation, or which has a disposition or propensity to attack, bite or menace any human or animal without provocation and endangers the health and safety of any person.” Any animal meeting the definition may be impounded and destroyed.
Siding with the city, Los Angeles Superior Court Judge Daniel M. Crowley sustained the demurrer without leave to amend, saying:
“Plaintiff identifies Long Beach Ordinances…that define ‘vicious animal’, that state when a hearing shall be heard on whether a dog is a vicious animal, and that any animal found to be vicious may be destroyed. None of these ordinances impose liability on the City for a dog bite.”
Los Angeles Superior Court Judge Nicole C. Bershon, sitting by assignment, authored the unpublished opinion affirming the judgment of dismissal. Acting Presiding Justice Anne H. Egerton and Justice Rashida A. Adams joined in the opinion.
Obligatory Versus Discretionary
Bershon noted that §815.6 requires that any qualifying “enactment” must impose obligatory directions to the public entity, rather than discretionary or permissive ones. She wrote:
“[T]he inclusion of ‘shall’ does not in and of itself create a mandatory duty. We must evaluate the nature of the statutorily commanded act to determine whether there is a mandatory duty….While Municipal Code section 6.16.270 specifies that ‘the Director shall cause a public hearing to be conducted,’ this act is dependent on the…decision that ‘there exists evidence sufficient to give rise to the suspicion that a dog or other animal falls within the provisions of Subsection 6.16.250[].’ ”
Piedra asserts that the “vicious animal” definition requires the city to hold a public hearing when a dog actually bites, offering no discretion. Citing the “last antecedent” rule of statutory interpretation, Piedra asserts that the phrase “without provocation” only modifies the phrase “attempts to bite” in the statute.
Unpersuaded, the jurist said:
“[W]e conclude that ‘without provocation’ modifies both ‘bites’ and ‘attempts to bite.’ Although ‘bites’ is separated from ‘attempts to bite’ by the conjunction ‘or,’ the phrases are parallel because they share the same subject—’any animal’—and the same object—’any human or animal.’….Since the verbs are closely related and connected in the sentence structure, the natural construction of the language demands that the adverbial modifier, ‘without provocation,’ applies to both ‘bites’ and ‘attempts to bite.’ Thus, under Municipal Code section 6.16.250,…a dog that bites a human is categorized as a vicious animal only if it bit without provocation.”
She continued:
“Reading Municipal Code sections 6.16.250…and 6.16.270…together, we conclude that the City was required to hold a public hearing about the pit bull only if the Director determined there was sufficient evidence that the pit bull bit the [deputy] city attorney without provocation or had a disposition or propensity to attack or bite. In other words, there was no mandatory duty to hold the hearing if the City concluded that there did not exist ‘evidence sufficient to give rise to the suspicion that’…the pit bull was a vicious animal under Municipal Code, section 6.16.250….”
No Specific Guidelines
Turning to the question of how to determine if an animal was provoked, Bershon remarked:
“Other than mandating notice to the animal’s owner, Long Beach’s Municipal Code has no specific guidelines directing the City as to how it should investigate or evaluate evidence about provocation and the animal’s behavior….Thus, whether to conduct a public hearing about the dog in the present case involved an ‘inherently subjective question’ and ‘the exercise of considerable discretion based on consideration’ of the evidence.”
Looking to the plaintiff’s allegations, she concluded:
“The [operative complaint] stated that in June 2015, ‘Long Beach Animal Care Services/Animal Control prepared a bite report’ after the pit bull bit the [deputy] city attorney. Piedra alleged that the City immediately quarantined the pit bull, and that the City’s Animal Control informed the dog’s owner that it intended to impound the pit bull. Then, ‘[o]n June 13, 2015, Long Beach Animal Control/Animal Control determined there was no vicious hold on [the] vicious Pitbull and informed [the owner] that she could redeem the vicious Pitbull….’ In sum, plaintiff specifically alleged the City determined that the pit bull need not be held in impound as a vicious animal and then released the dog to its owner. The decision that the pit bull did not constitute a vicious animal was clearly an exercise of discretion….”
Bershon declared that “absent a mandatory duty, Piedra cannot state a claim against the City.”
The case is Piedra v. City of Long Beach, B332748.
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