Adamson v. Cnty. of L. A. Dep't of Animal Care

• Decision Date: 06 March 2019
• Docket Number: B278803
• Parties: ETHAN ANDREWS ADAMSON, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES DEPARTMENT OF ANIMAL CARE AND CONTROL, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

ETHAN ANDREWS ADAMSON, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES DEPARTMENT OF ANIMAL CARE AND CONTROL, Defendant and Respondent.

B278803

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

March 6, 2019

ORDER MODIFYING OPINION; DENYING REQUEST FOR JUDICIAL NOTICE; AND DENYING PETITION FOR REHEARING; [NO CHANGE IN JUDGMENT]

The opinion filed March 6, 2019, and not certified for publication, is modified as follows:

1. On page 18, in heading D, the word "Unsigned" is deleted and the word "Unverified" is inserted.

Heading D as modified reads: The Hearing Officer Should Not Have Considered the Smiths' Unverified Statements

2. On page 19, line 10, after the citations ending with "considered'].)" insert as footnote 8 the following:

⁸ Although the Adamsons did not raise this issue until their reply brief, we address it to guide further proceedings. (See Mateel Environmental Justice Foundation v. Office of Environmental Health Hazard Assessment (2018) 24 Cal.App.5th 220, 241 [Court of Appeal has "discretion to consider issues first raised in a reply brief"].)

This order does not change the judgment. Respondent's request for judicial notice is denied and respondent's petition for rehearing is denied.

/s/_________

PERLUSS, P. J.

/s/_________

ZELON, J.

/s/_________

SEGAL, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BS156279)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mary H. Strobel, Judge. Reversed and remanded with directions.

The Treadway Law Firm, Arran S. Treadway; Law Offices of Steven L. Martin and Steven L. Martin for Plaintiff and Appellant.

Mary C. Wickham, County Counsel, Jennifer A.D. Lehman, Assistant County Counsel, and Diane C. Reagan, Principal Deputy County Counsel, for Defendant and Respondent.

____________________

INTRODUCTION

After Ethan Adamson's dog Venice attacked and injured Michael and Shannon Smith, an administrative hearing officer found Venice was a vicious dog within the meaning of a Los Angeles County Code ordinance and ordered Venice destroyed. Adamson filed a petition for writ of administrative mandate arguing, among other things, the vicious dog ordinance did not apply because the Smiths were trespassing on premises occupied by Venice's owner or custodian, which is an exception to the vicious dog ordinance. The superior court ultimately denied the petition, ruling substantial evidence supported the hearing officer's findings that the trespassing exception did not apply and that Venice was a vicious dog. We reverse and remand with directions for the trial court to remand the matter to the administrative hearing officer for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

A. Venice and Max Attack the Smiths

Late one afternoon in May 2015, Michael Smith and his wife, Shannon Smith, were walking on a street called Wildwood Canyon Road. Wildwood Canyon Road is a gated street, approximately one mile long, used by residents of six homes located on private property inside the gate. The Smiths were on the road to "inquire about the neighborhood."

As the couple walked past a horse stable, Max, a seven-month-old American Staffordshire mix, and Harley, a Labrador Retriever, ran toward the Smiths from the property at 23485 Wildwood Canyon Road. Max, barking and lunging aggressively,bit Shannon on the legs multiple times. Harley did not participate in the attack. As Michael stepped between Max and Shannon to keep the dog away from his wife, the Smiths yelled for help. The location, however, was remote, and no one heard them.

Meanwhile, a third dog, a four-year-old brown pit bull mix named Venice, jumped over or through a two-foot fence surrounding the same property on Wildwood Canyon Road. Venice charged at Michael and repeatedly bit his legs while Michael tried to defend himself with a stick. As Michael and Shannon screamed for help and tried to escape, Venice and Max continued to bite them, with Venice acting as the primary aggressor and inflicting most of the injuries.¹

The attack lasted 10 minutes, during which Michael and Shannon walked backward, retreating down Wildwood Canyon Road, hoping the dogs would eventually relent and return to their home. The dogs continued to follow and attack them. Eventually, the Smiths came to a house, where Shannon ran to the door and knocked loudly, but no one answered. When she turned back to Michael, she saw Venice and Max trying to bring him to the ground. She feared they were trying to kill him.

Shannon yelled for Michael to follow her over a wall on the property, and he did, but because the wall did not completely surround the property, the dogs were able to follow them. The Smiths climbed on top of a covered whirlpool, then onto the roof of the house. They were able to get into the house through a sliding glass door on a second-floor balcony.

The owners of the house, John and Janice Hoskinson, came upstairs and helped the couple by talking to the 911 operator, elevating Michael's legs, and providing clean water and towels. After continuing to circle the property, the dogs eventually left. When paramedics and sheriff deputies arrived, they could still hear the dogs barking down the road. John Hoskinson later found a trail of blood leading to his house.

Michael's injuries were severe. The dogs had mauled his legs, right arm, back, and torso. Doctors performed a four-hour surgery that same day to repair the muscle lacerations on his lower legs and right arm.

B. The Department of Animal Care and Control Impounds Venice and Max

Animal Control Officer Paul Maradiaga of the Department of Animal Care and Control arrived and spoke briefly with the paramedic. He learned that several dogs were roaming freely on the properties inside the gate, that possibly three dogs had attacked the Smiths, and that deputies were trying to capture those dogs on a nearby property.

When Officer Maradiaga arrived at 23485 Wildwood Canyon Road, he found Venice, Max, and Harley in an agitated state. Unable to round them up, he contacted dispatch to get information about their owner. Eventually, the owners of the property, Marsha and Todd Adamson, arrived. Officer Maradiaga learned that the Adamsons operated an equestrian business on the property, that their adult son Ethan owned Venice, and that their adult daughter Carrie owned Max. After the Adamsons secured the dogs, Marsha admitted the familyallowed the dogs to go off their property, but she maintained the area was private and not open to the public.

Officer Maradiaga ultimately concluded he had to impound the dogs because they were acting aggressively, he could not contain them, and the Smiths had suffered severe injuries. He later obtained statements from the Smiths and photographed their injuries at the hospital. He also interviewed John Hoskinson.

C. An Animal Control Hearing Officer Rules Venice Is a Vicious Dog and Orders Him Destroyed

The Department filed an administrative petition seeking to have Venice declared a vicious dog under Los Angeles County Code section 10.37.030 and ordered destroyed.² Ethan requested an expedited hearing. The hearing officer was a lieutenant who had worked 33 years with Orange County Animal Care and had experience with its vicious dog program. He advised the parties he would determine, "based on preponderance of the evidence," whether Venice was a vicious dog under the Los Angeles County Code.

Officer Maradiaga described how he captured the dogs and obtained the victims' statements. When asked how the Smiths came to be walking on Wildwood Canyon Road, he stated the Smiths told him they drove their car through an open gate, parked, and proceeded to explore the neighborhood. However, he did not recall seeing the Smiths' car.

Animal Control Officer Kim Schumann stated Venice was the primary aggressor and had inflicted most of the bites on the Smiths. He also described the surgery on Michael Smith's legs and right arm, which required irrigation and debridement (removal of damaged tissue) down to the muscle level and removal of some of Michael's calf muscle to cover the damage. Another officer read the Smiths' statements into the record.

Carrie stated that she found Venice on Venice Beach and that the dog became Ethan's companion after Ethan became sober. She acknowledged that the dogs were out of line and that no one should have to go through what the Smiths experienced. She asserted, however, that this was an isolated incident, that she had spoken to a trainer about providing the dogs with extensive training, and that the dogs would be leashed, muzzled, and watched closely if allowed to return home. She also insisted that the gate on Wildwood Canyon Road had been "very much closed" before the incident, that "[w]hen it's open we all get alerted that the gate is broken because it's unusual," and that Michael and Shannon Smith had parked outside the gate and walked in. She said that, when she spoke with Michael after the incident, he told her the couple had parked outside the gate and walked in, even though the gate was closed, to visit the area where his old college roommate lived.³ She also said that Shannon told her the dogs initially did not charge, but merely circled the couple while growling, and that Max only attacked when Shannon backed into him.

Carrie also testified that Wildwood Canyon Road was "all privately owned," maintained by an unofficial association of theresidents of the houses along the road, and marked "the whole way up" with "no trespassing" signs "because no one wants anybody on their property back here unless you're invited." She described the portion of the road that lay on the Adamsons'...