Phillips v. San Luis Obispo County Dept. etc. Regulation

• Decision Date: 15 July 1986
• Citation: 183 Cal.App.3d 372,228 Cal.Rptr. 101
• Court: California Court of Appeals Court of Appeals
• Parties: Susan PHILLIPS, Russell Phillips and Mary Phillips, Petitioners and Appellants, v. SAN LUIS OBISPO COUNTY DEPARTMENT OF ANIMAL REGULATION, San Luis Obispo County Health Agency, County of San Luis Obispo, City of Atascadero, a Municipal Corporation, the Chief of Police for the City of Atascadero, et al., Respondents. Civ. B015913.

Page 101

228 Cal.Rptr. 101

183 Cal.App.3d 372

Susan PHILLIPS, Russell Phillips and Mary Phillips, Petitioners and Appellants, v. SAN LUIS OBISPO COUNTY DEPARTMENT OF ANIMAL REGULATION, San Luis Obispo County Health Agency, County of San Luis Obispo, City of Atascadero, a Municipal Corporation, the Chief of Police for the City of Atascadero, et al., Respondents.

Civ. B015913.

Court of Appeal, Second District, Division 6, California.

July 15, 1986.

As Modified July 18, 1986.

As Modified on Denial of Rehearing August 8, 1986.

As Modified August 14, 1986.

George & Collins, a Law Corp. and Shaunna Sullivan, Los Osos, for petitioners and appellants.

Joyce S.A. Tischler, Animal Legal Defense Fund, Oakland, amicus for petitioners and appellants.

James B. Lindholm, Jr., County Counsel, Jac A. Crawford, Asst. County Counsel and John Paul Daly, Deputy County Counsel, San Luis Obispo, for respondents.

GILBERT, Associate Justice.

This is a death penalty case. We reverse. Missy, a female black Labrador, shall live, and "go out in the midday sun."

Petitioners Susan, Russell and Mary Phillips appeal the judgment of the trial court denying their petition for a writ of mandamus. (Code Civ.Proc., § 1085.) We reverse the judgment and hold that an ordinance permitting the county to destroy a dog without a noticed hearing to the dog owner who requests one is constitutionally infirm.

We resist the temptation that grabbed hold of our colleagues who have written dog opinions, and will not try to dig up appropriate sobriquets. You will not read about "unmuzzled liberty." Nor will you consider an argument "dogmatically asserted," or cringe with "we con-cur." (In re Ackerman (1907) 6 Cal.App. 5, 91 P. 429.) We will not subject you to phrases such as "barking up the wrong tree." (Romero v. County of Santa Clara (1970) 3 Cal.App.3d 700, 704, 83 Cal.Rptr. 758.) We disavow doggerel.

FACTS

The Phillips own "Missy." In 1981 and twice again in 1982, the San Luis Obispo County Department of Animal Regulation (the department) received reports that Missy bit a child. These incidents occurred while Missy lived with Mary Phillips in Morro Bay. After the third report, the department directed Mrs. Phillips to confine Missy to an enclosed kennel run.

In May 1985 Mrs. Phillips entered the hospital for surgery and surrendered Missy to the care of her son and daughter-in-law in Atascadero. On May 20 Missy bit a child entering the Phillips' residence to play. The child's mother, a registered nurse, observed a single puncture wound on the child's buttocks. The department seized Missy three days later and on the following day ordered Missy destroyed.

The Phillips demanded a hearing concerning the destruction order. The director of the department believed that the Atascadero City and San Luis Obispo County ordinances ¹ did not permit a dog owner to appeal a destruction order. As an epilogue to this tale of two cities, Steve Carnes, a county environmental health officer, conducted a "courtesy" hearing at the request of a county supervisor to determine Missy's fate.

The department sought to prove the first three biting incidents by testimony that the records reflected reports of three bites. The victim and her mother testified as to the fourth bite. The Phillips acknowledged paying medical bills for the first and third bites. The hearing officer concluded that Missy had bitten four children and that she should be destroyed.

The Phillips filed a petition for a writ of mandamus requesting that the court vacate the destruction order and declare the ordinances unconstitutional because they fail to provide notice and a hearing before permitting a destruction order. The trial judge agreed that the ordinances did not expressly provide for notice and a hearing. He found, however, that the requirement of a hearing could be implied from the language of the ordinances and that the hearing afforded the Phillips satisfied due process and produced sufficient evidence to support Missy's condemnation.

On appeal the Phillips contend (1) the ordinances are constitutionally infirm because they fail to provide for notice and a hearing prior to destruction of a dog; (2) the ordinances do not impliedly permit a noticed hearing; (3) the gratuitous hearing afforded them does not satisfy due process of law; (4) in the absence of a ordinance requiring a noticed hearing, Civil Code section 3342.5 ² governs the destruction of a biting dog; and (5) they are entitled to attorneys' fees. (Code Civ.Proc., § 1021.5.)

DISCUSSION

I.

The Phillips contend the dog destruction ordinances deny them due process of law because the ordinances do not provide for a hearing prior to the seizure or the destruction of a dog. We agree that due process requires that a dog owner have an opportunity to be heard prior to the destruction of his dog unless there is need for prompt government action. (Fuentes v. Shevin (1972) 407 U.S. 67, 81-82, 92 S.Ct. 1983, 1994-1995, 32 L.Ed.2d 556; Carrera v. Bertaini (1976) 63 Cal.App.3d 721, 728-729, 134 Cal.Rptr. 14.)

Procedural due process imposes constraints on governmental decisions depriving individuals of liberty or property interests. (Mathews v. Eldridge (1976) 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18; Isbell v. County of Sonoma (1978) 21 Cal.3d 61, 68, 145 Cal.Rptr. 368, 577 P.2d 188.) Principles of due process apply to all takings of non de minimus property, including such disparate objects as farm animals (Carrera, supra, 63 Cal.App.3d 721, 724, 134 Cal.Rptr. 14), a motorcycle engine (Hughes v. Neth (1978) 80 Cal.App.3d 952, 959, 146 Cal.Rptr. 37), a tortoise (Jett v. Municipal Court (1986) 177 Cal.App.3d 664, 668, 223 Cal.Rptr. 111) or a newsrack (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 308, 138 Cal.Rptr. 53, 562 P.2d 1302). We think that dogs, being personal property and having economic value, are also included within its reach. (Civ.Code, § 655; Pen.Code, § 491; Johnson v. McConnell (1889) 80 Cal. 545, 548-549, 22 P. 219; People v. Sadowski (1984) 155 Cal.App.3d 332, 335, 202 Cal.Rptr. 201; Roos v. Loeser (1919) 41 Cal.App. 782, 785, 183 P. 204.) Aside from their economic value, however, "... it is equally true that there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt" (Johnson, supra, at p. 549, 22 P. 219), unless the animal is a cat, to which many people have equally strong attachments, but will reluctantly agree that the word "owner" is inappropriate. (See also Eliot, T.S., Old Possum's Book of Practical Cats (1939).)

Carrera v. Bertaini, supra, 63 Cal.App.3d 721, 134 Cal.Rptr. 14 concerned an ordinance and penal code section permitting the impoundment and sale of neglected farm animals. The court declared the ordinance invalid because it failed to provide reasonable notice and a hearing either before or after seizure: "As a matter of basic fairness, to avoid the incurrence of unnecessary expenses appellant was entitled to a hearing before her animals were seized or, if the circumstances justified a seizure without notice and a hearing, she was entitled to a prompt hearing after the animals were seized." (Carrera, 63 Cal.App.3d 721, 729, 134 Cal.Rptr. 14. See also Anderson v. George (1977) 100 W.Va. 76, 233 S.E.2d 407, 409 invalidating seizure, without notice or hearing, of abandoned or neglected animals.)

Hughes v. Neth, supra, 80 Cal.App.3d 952, 146 Cal.Rptr. 37 involved the forfeiture and disposal of a motorcycle engine bearing a defaced serial number without notice and hearing to the owner. Notwithstanding the court's judicial notice "... that our society is overburdened with thieves and burglars ...," the court concluded that law enforcement officials failed to prove the extraordinary situation justifying a summary forfeiture without notice and hearing. (Hughes, 80 Cal.App.3d 952, 959-960, 146 Cal.Rptr. 37; Fuentes v. Shevin, supra, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556.) Thus plaintiff Hughes was entitled to return of the motorcycle engine or a noticed hearing where she might oppose its forfeiture and destruction. (Id., 80 Cal.App.3d at p. 960, 146 Cal.Rptr. 37.)

The County unleashes an argument that Atascadero City ordinance 4-1.207, providing a hearing regarding the lawfulness of impound, offered the Phillips a hearing on Missy's condemnation. The relevant portion of that ordinance provides in part: "No fees whatsoever shall be charged or collected for or on account of any dog which has been unlawfully taken up or impounded. If the owner or person entitled to the custody of the dog believes that the dog has been unlawfully taken up or impounded, that owner or person may, within the seventy-two (72) hour redemption period, request that an impartial hearing be conducted to determine the sole issue of whether the dog was lawfully seized and impounded ..." This argument strays from the point. Section 4-1.207 is not pertinent.

We agree with the trial judge that ordinance 4-1.207 concerns stray or trespassing dogs and not the legality of an order of destruction. Subdivision (b) concerns the collection of fees from the owner of an unlawfully impounded dog. Moreover, the placement of this ordinance within the code suggests that it applies to stray dogs (Ord. 4-1.201) and dogs at large (Ord. 4-1.204) and not vicious or biting dogs. Therefore, we must bury this argument. It does not concern the destruction of a vicious dog because he cannot be controlled in order to ensure public safety.

We also disagree with the County that Simpson v. City of Los Angeles (1953) 40 Cal.2d 271, 253 P.2d 464 legitimizes the County's actions regarding Missy. Simpson involved the constitutionality of a vivisection ordinance permitting the Department of Animal Regulation to donate unclaimed animals to medical research laboratories. (Simpson, at pp. 275-276, 253 P.2d 464.) Simpson approved the ordinance and...