Carrera v. Bertaini

• Decision Date: 12 November 1976
• Citation: 134 Cal.Rptr. 14,63 Cal.App.3d 721
• Court: California Court of Appeals Court of Appeals
• Parties: Inez CARRERA, Plaintiff and Appellant, v. Ernest BERTAINI, as Animal Control Officer, etc., et al., Defendants and Respondents. Civ. 2713.

Page 14

134 Cal.Rptr. 14

63 Cal.App.3d 721

Inez CARRERA, Plaintiff and Appellant, v. Ernest BERTAINI, as Animal Control Officer, etc., et al., Defendants and Respondents.

Civ. 2713.

Court of Appeal, Fifth District, California.

Nov. 12, 1976.

California Rural Legal Assistance, Robert T. Olmos, McFarland, Neil J. Roberts, Claudia E. Smith, Delano, for petitioner and appellant

[63 Cal.App.3d 724] Allen C. Wait, County Counsel, James B. Orton, Deputy County Counsel, Hanford, for respondents.

OPINION

FRANSON, Associate Justice.

INTRODUCTION

In this case we declare that the Kings County ordinance allowing the impoundment and sale of farm animals found to be 'at large' upon any street or public place or upon any private property against the wishes of the owner of the property, and Penal Code section 597f, to the extent that it commands the impoundment of any farm animal 'neglected' by its owner, are constitutionally invalid for failure to provide the owner or person entitled to possession of the animals a reasonable notice and hearing as required by the due process clause of the Fourteenth Amendment. ¹ Because of the constitutional infirmity of the ordinance and statute, we hold that the impoundment of appellant's animals in the instant case was unlawful, and respondents must be ordered to return to appellant the animals or their reasonable value.

FACTS

The factual and procedural chronology is as follows: On November 9 and 10, 1974, the Kings County Animal Control Officer and his agents entered appellant's property in Corcoran, Kings County, California, and over appellant's protest took possession of her farm animals consisting of three bulls, six cows, six sows, two boars, one gelding horse, three goats, sixteen chickens, and three roosters. Shortly before the seizure some of the animals had been seen in a corn field adjacent to appellant's property and next to a public highway. The animals appeared to be 'very hungry, poor, starved.' Several of the cattle were hobbled and their legs were swollen and bleeding.

The fences surrounding appellant's property were down in various places with 'loose spaces--big enough for an animal to go through.'

Appellant was told by the officers that her animals were being impounded for running 'at large' and for 'cruelty and neglect.'

Appellant also was told that she could appear at the Animal Control Office on November 12 to obtain information regarding redemption of her animals.

On November 12 appellant went to the Animal Control Office and was told that the impound fees and daily fees for food and care already totaled 'over $300.' However, appellant testified that she was told that it would cost her about $900 to get her animals back. At the time of the superior court hearing on the order to show cause, the fees required to be paid by appellant for the release of her animals had increased to $2,477.

On November 20 appellant was served a written notice of impoundment and sale pursuant to section 4--72 of the Kings County Ordinance Code. The notice stated that the animals described therein had been impounded and if not reclaimed by the owner on or before December 3, 1974, they would be sold as provided in section 4--74 of the code.

On December 3, 1974, appellant petitioned the superior court for a writ of mandamus to compel respondents to return her animals to her, or in the alternative to show cause why they had not done so. The superior court issued an order to show cause why a preliminary injunction should not issue restraining respondents from selling the impounded animals, and it also issued a temporary order against the sale of the animals.

The order to show cause came on for hearing on December 19 and 23, 1974. Appellant at the hearing asserted the constitutional invalidity of the impoundment and sale procedures under the ordinance and penal statute.

The trial court denied appellant's petition, apparently on the ground that since appellant had a right to institute a civil proceeding in the superior court to restrain the sale and to determine the merits of the impoundment of her animals, her procedural due process rights had been satisfied.

Judgment was entered against appellant on January 24, 1975. She filed a timely notice of appeal.

DISCUSSION

Where a person's property is taken by the government, the due process clause of the Fourteenth Amendment requires some form of notice and a hearing. (Beaudreau v. Superior Court of Los Angeles County (1975) 14 Cal.3d 448, 458, 121 Cal.Rptr. 585, 535 P.2d 713; Mathews v. Eldridge (1976) 424 U.S. 319, 96 S.Ct. 893, 902, 47 L.Ed.2d 18.) Absent extraordinary circumstances justifying resort to summary procedures, the hearing must take place Before the property is taken. As explained in Fuentes v. Shevin (1972) 407 U.S. 67, 81--82, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556:

'If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. At a later hearing, an individual's possessions can be returned to him if they were unfairly or mistakenly taken in the first place. Damages may even be awarded to him for the wrongful deprivation. But no later hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred. 'This Court has not . . . embraced the general proposition that a wrong may be done if it can be undone.' (Citation.)'

Moreover, the fact that the deprivation may be temporary does not alter the need for due process. As stated in Fuentes:

'But it is now well settled that a temporary, nonfinal deprivation of property is nonetheless a 'deprivation' in the terms of the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90. Both Sniadach and Bell involved takings of property pending a final judgment in an underlying dispute. In both cases, the challenged statutes included recovery provisions, allowing defendants to post security to quickly regain the property taken from them. Yet the court firmly held that these were deprivations of property that had to be preceded by a fair hearing. . . .' (407 U.S. at 84--85, 92 S.Ct. at 1996.)

Thus, even though the impoundment fees properly can be classified as payments to reimburse the county for the cost of seizing, feeding, and housing the animals, the holding and consequent deprivation to appellant of her right to possession of the animals constituted a taking of her property. Regardless of how soon appellant might have been able to pay the costs of impoundment, the seizure of the animals activated the due process requirements of notice and a hearing.

Nor does the fact that appellant had the right to institute a court action to review the propriety of the seizure of her animals alleviate the need for a prior notice and hearing. In Sniadach v. Family Finance Corp., supra, 395 U.S. at 338--339, 89 S.Ct. 1820, the Supreme Court explained that a taking of property without a notice and hearing violates due process even if the taking may only be temporary because the deprived party Might have it returned in a subsequent adjudication of the factual dispute in a civil court. (See also T. M. Cobb Co. v. County of Los Angeles (1976) 16 Cal.3d 606, 617, fn. 6, 128 Cal.Rptr. 655, 547 P.2d 431.) The fact that the temporary deprivation may later be remedied at a civil trial does not relieve the government of the duty of providing a reasonable notice and hearing before the seizure. (See Beaudreau v. Superior Court, supra, 14 Cal.3d at 455, 121 Cal.Rptr. 585, 535 P.2d 713; Fuentes v. Shevin, supra; Sniadach v. Family Finance Corp., supra.)

Similarly, the lack of a meritorious defense by the owner does not obviate the necessity of a notice and hearing. 'It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake, whatever the ultimate outcome of a hearing . . .' Fuentes v. Shevin, supra, 407 U.S. at 87, 92 S.Ct. at 1997.) Therefore, even though appellant was probably guilty of permitting some of her livestock to run at large in violation of county ordinance code section 4--68, and of failing to care for her animals in violation of Penal Code section 597f, she nontheless was entitled to a hearing prior to the seizure of her animals.

Necessarily, the formality and procedural requirements for a hearing will vary according to the competing interests of the government and the citizen. (Boddie v. Connecticut (1971) 401 U.S. 371, 378, 91 S.Ct. 780, 28 L.Ed.2d 113; Skelly v. State Personnel Board (1974) 15 Cal.3d 194, 209, 124 Cal.Rptr. 14, 539 P.2d 774.) 'Procedural due process does not require a trial before a court. A proceeding before an administrative officer or board is adequate if the basic requirements of Notice and Opportunity for hearing are met.' (See 5 Witkin, Summary of Cal.Law, Const.Law, § 299, p. 3588.) Of course, the hearing must be before an impartial officer or body. (See Wong Yang Sung v. McGrath (1950) 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616; Witkin, Supra, § 306, p. 3598. ²

There are, of course, situations where the summary seizure of property has been held to be essential to the legitimate and overriding interests of government. In Fuentes v. Shevin, supra (407 U.S. at 90, 92 S.Ct. at 2000) the following is stated:

'. . . in a few limited situations . . . this court (has) allowed outright seizure without opportunity for a prior hearing. First in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been special need for very prompt action. Third, the state has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly...