Zuniga v. County of San Mateo Dept. of Health Services
| Decision Date | 23 March 1990 |
| Docket Number | No. A042530,A042530 |
| Citation | 218 Cal.App.3d 1521,267 Cal.Rptr. 755 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Richard C. ZUNIGA, Plaintiff and Appellant, v. SAN MATEO DEPARTMENT OF HEALTH SERVICES, Defendant and Respondent. PENINSULA HUMANE SOCIETY, Real Party in Interest. |
Thomas F. Casey, III, County Counsel, Mary K. Raftery, Deputy County Counsel, and Gretchen A. Radtke, Law Clerk, Redwood City, for respondent, San Mateo Dept. of Health Services.
Richard C. Zuniga appeals from the denial of his petition for writ of mandate seeking release of six puppies being held by the real party in interest Peninsula Humane Society (Humane Society) pursuant to the direction of respondent San Mateo County. 1 We reverse.
On July 1, 1987, police searched appellant's residence pursuant to a warrant authorizing a search for American pit bull terriers, fighting dogs, guard dogs, and specifically described dogfighting paraphernalia. Among the items seized pursuant to the warrant were three adult American pit bull terriers. Multiple charges of illegal dogfighting were subsequently brought against appellant. (Pen.Code, § 597.5.) The seized dogs were housed at the Humane Society.
On July 31, 1987, one of the seized dogs gave birth to seven puppies at the Humane Society. Beginning on July 27, 1987, appellant made repeated verbal demands for release of the puppies. Appellant was told that the puppies were being held pursuant to Penal Code section 599aa and could not be released without a court order. 2
On August 12, 1987, the San Mateo County Department of Animal Control Services wrote to the district attorney, indicating concern with the cost of caring for the animals pending trial and asking for a court order for "humane destruction" of all of the dogs "as soon as possible." The letter noted "possible behavioral problems with the puppies being raised in a prolonged kennel environment along with their generic [sic ] propensities."
On October 8, 1987, appellant delivered a written demand to the Humane Society for release of the puppies.
On January 8, 1988, appellant applied to the municipal court where the criminal charges were pending for an order to return the puppies. In response, the district attorney stated that only the adult dogs would be used as evidence. On January 27, that court ordered return of the six remaining puppies. 3 Rather than release the puppies, the Humane Society served appellant with a notice of impoundment stating that the six-month-old puppies were believed to be dangerous. Pursuant to provisions of a county ordinance, appellant requested a post-impoundment hearing.
On February 4, 1988, an administrative hearing was held. On February 11, 1988, Hearing Officer George Nakamura determined that the puppies were "dangerous animals" pursuant to section 3330.0(j)(4) of San Mateo County Ordinance No. 03123, and ordered that appellant forfeit all rights of ownership and control of the puppies.
Appellant argues that the county failed to follow the procedural requirements set out in the county animal control ordinance. He emphasizes that failure to promptly give him notice of impoundment when the puppies were born has delayed his ability to obtain the return of the puppies and, presumably, maximized the possibility of behavioral problems due to being raised in a prolonged kennel environment. Appellant also argues that the puppies were not evidence in the criminal proceeding and that respondent's failure to hold a hearing until six months after the puppies' birth is an abuse of discretion and a denial of due process. He also challenges the decision of the hearing officer as unsupported by the evidence. In addition, he asserts the following challenges to the proceedings: vagueness of the section of the animal control ordinance providing for impoundment due to the "inherent nature of the animal"; the county's failure to preserve an audible tape of the hearing; the hearing officer's failure to state his reasons for the decision; the hearing officer's viewing of the puppies outside of the hearing; and the county's failure to allow appellant to apply for a dangerous animal permit pursuant to the terms of the county ordinance.
San Mateo County Ordinance No. 03123 regulates animal control matters in the county. County animal control officers are authorized to impound any animal kept under conditions constituting a violation of the animal control ordinance, or when the officer has reasonable cause to believe the animal is dangerous. (San Mateo County Ord., § 3330.7.) Notice of impoundment must be given to the owner within 24 hours of impoundment. (San Mateo County Ord., § 3330.7.1.) Upon written request, a hearing must be held within 10 days of impoundment. (San Mateo County Ord., § 3330.7.2.) Following the hearing, the hearing officer "may rule that the owner or possessor of the animal will lose all rights of ownership and control of the animal; may order that the animal will be destroyed if the animal has bitten or injured a person or domestic animal; may declare an animal to be a Dangerous Animal as defined in this ordinance; and may require the owner or possessor before the animal is released to his custody to obtain a permit under Section 3330.6.1 and sign an agreement which contains conditions, ..." (San Mateo County Ord., § 3330.7.2.)
A "Dangerous Animal," as defined in the ordinance, means an animal that "demonstrates any or all of the following behavior": attacks a person or other animal without provocation; runs at large and molests people; "creates a danger or constitutes a menace to the public's health and safety due to its training or the inherent nature of the animal"; or has scars or wounds attributable to fights. (San Mateo County Ord., § 3330.0(j).) It is a violation of the animal control ordinance to keep an animal previously identified as dangerous without applying for a dangerous animal permit. (San Mateo County Ord., § 3330.6.) The ordinance provides for a hearing to contest the designation of an animal as dangerous. (San Mateo County Ord., § 3330.6(c).) The only sanction attached to a finding of dangerousness under section 3330.6 is that the owner must comply with the dangerous animal rules and regulations. (San Mateo County Ord., § 3330.6(c).) A dangerous animal permit may be denied to a person with a history of complaints regarding animal care and control violations. (San Mateo County Ord., § 3330.6.1(b).) Permits may be revoked upon conviction of an offense related to the care and keeping of animals. (San Mateo County Ord., § 3330.6.5(a)(1).) Following revocation of a permit, the owner has the choice of surrendering the animal to the county or removing it permanently from the county. (San Mateo County Ord., § 3330.6.5(d).) It is undisputed that appellant never had a dangerous animal permit. 5
Appellant contends that the puppies, since they had not been born at the time of the search, were not seized pursuant to the search warrant, and were not held as evidence in the criminal trial. He argues, therefore, that the puppies were impounded at birth, and the 24-hour notice mandated by section 3330.7.1 of the county ordinance was not timely served. He also argues that the ordinance allows the county to hold an impounded animal for only 10 days, and that the retention of his puppies for 6 months constitutes agency action in excess of its jurisdiction. (Code Civ.Proc., § 1094.5.)
Based on the facts contained in the record on appeal, it appears that the puppies were in the county's possession as a result of execution of the search warrant, as evidenced by the county's letter to the district attorney, and the fact that the puppies' dam was seized pursuant to the search warrant. The propriety of that seizure and of the subsequent detention are not before us. Appellant's remedy for an initial improper detention of the puppies is by way of motion in the criminal court for return of his property. (§ 1540; Buker v. Superior Court, supra, 25 Cal.App.3d 1085, 1089, 102 Cal.Rptr. 494.) Appellant availed himself of that remedy. The criminal court's ultimate release of the puppies indicates that they were not considered evidence in the criminal matter. Appellant has not challenged the procedure for holding animals seized pursuant to a search warrant.
The Humane Society, apparently having been instructed to hold the animals pending criminal proceedings, had no power to release the dogs or the puppies absent a court order. (§§ 599aa, 1536.) Appellant requested and, ultimately, obtained the release of the puppies by the January 27 order of the municipal court. Respondent was not required to serve the 24-hour notice prior to that time.
Appellant argues that he was denied due process of law by the hearing officer's failure to give reasons for his findings. Respondent does not dispute the requirement that an administrative agency must make findings (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 113 Cal.Rptr. 836, 522 P.2d 12 [] ) but notes, correctly, that the hearing officer did make a finding that the puppies were dangerous animals pursuant to a specified subdivision of the county ordinance. Findings need not be formal but should serve to inform a reviewing court as to the basis for depriving appellant of ownership rights. In light of the lack of complexity of the issues involved, we conclude that the finding of...
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