Opinion
A121346.
2-19-2009
DEBORAH NORTON et al., Petitioners and Appellants, v. GLENN HOWELL et al., Respondents.
Not to be Published in Official Reports
I. INTRODUCTION
After two episodes in which appellants dog Lucy allegedly attacked and injured two other dogs in the Walnut Creek area, Glenn Howell, the Director of the Contra Costa County Animal Services Department (Department) gave notice of, and held, a public hearing to determine if Lucy should be designated a "potentially dangerous animal" (PDA) pursuant to a relevant county ordinance. At the conclusion of that hearing, at which testimony was taken and other evidence admitted, the Director adopted the Hearing Officers findings and recommendations and designated Lucy a PDA.
The same day appellants applied for and obtained a permit for a PDA, they also filed a petition for a writ of administrative mandamus in the Contra Costa County Superior Court. After finding that the Hearing Officers findings were supported by substantial evidence, and that the Department did not lack jurisdiction in the matter, the trial court denied the petition. Appellants appeal from this denial, but we affirm the trial court.
II. FACTUAL AND PROCEDURAL BACKGROUND
On October 11, 2005, Jim Parent was walking his dog, Rio, on a fire trail in an open space area of Walnut Creek. Appellants Ronald Rose and Deborah Norton (hereafter appellants) were in the same area with their dog, Lucy. When Parent and Rio were allegedly about 30 yards away, Lucy, not on a leash, charged Rio, knocked him over, and then bit him on both his left rear side and neck. About 20 minutes later, also in an open space area, Lucy, still not on a leash, charged Rio again.
Two weeks later, Parent took Rio, who had an abscess on his left flank, to a veterinarian (vet), who drained the wound surgically. A year or so later, the same vet noted in a letter that she believed the wound was caused by a dog bite. Parent paid approximately $2,200 in vet bills for the treatment given Rio.
Less than two years later, on June 28, 2007, Eugene Farley was walking his dog, Buddy, on a public sidewalk in Walnut Creek, a sidewalk adjacent to appellants home. Buddy began urinating on shrubs on appellants premises directly adjacent to that sidewalk; Lucy apparently did not like this, and came through the bushes, grabbed Buddy with her teeth, and bit him on his abdomen. Farley struggled to keep Lucy away from Buddy, and appellant Norton came out of the house and also assisted in that endeavor. But even then, Lucy bit Buddy again on the right flank, and then a third time on his tail.
Per appellants briefs to us and their position in the administrative hearing, Buddy was "trespassing" on appellants property. We respectfully decline to address the issue of whether dogs (or cats, or any other pet) can be found legally guilty of "trespassing."
Farley took Buddy to a vet hospital after this incident; Buddy was treated there for a three-centimeter laceration on his left groin and then placed under anesthesia to treat the laceration. It had to be drained and then closed via five sutures, at a cost of over $1,000 to Farley.
The same day of the "Buddy incident," Farley contacted the Department which promptly initiated a "potentially dangerous dog" investigation Lucy was impounded pursuant to Contra Costa County Ordinance section 416-12.428 pending the outcome of that investigation, but was allowed to be kept at home for one day, following which appellants posted a bond for her return home.
After the investigation was completed a few days later, the Department found probable cause to believe Lucy was a potentially dangerous animal. It thus served appellants with a notice of a public hearing regarding that designation pursuant to county ordinance No. 416-12.406.
A public hearing was held before a Hearing Officer on July 13, 2007. After hearing testimony from both sides and receiving other evidence, the Hearing Officer concluded that Lucy did, indeed, confront and aggressively engage the two other dogs without provocation. He thus recommended that Lucy be designated a PDA under the ordinance. The Director of the Department, respondent Howell, adopted the Hearing Officers findings and recommendations and so designated Lucy on July 28, 2007.
After appellants received notice of Howells decision, they requested, and were given, a meeting with him; Howell also responded to their concerns by several letters.
Subsequent to these communications, on September 27, 2007, appellants applied for and obtained a PDA permit for Lucy. Per the relevant ordinance, if there were no more incidents involving Lucy, her PDA designation would be removed after three years.
On the same day appellants obtained the permit, they filed a petition for a writ of administrative mandate with the Contra Costa Superior Court; they filed an amended notice and petition several months later. (See Code Civ. Proc., § 1094.5.) After the submission of written briefing by both sides, the trial court issued a tentative ruling denying the petition. Neither party requested oral argument regarding the tentative ruling, and it was adopted as an order on February 19, 2008. In it, the trial court found that the Hearing Officer did not act in excess of his jurisdiction and that his findings were supported by substantial evidence. It also denied appellants request for attorney fees. A thorough (three and a half pages) judgment consistent with this order was entered on February 29, 2008.
Appellants filed a timely notice of appeal on April 21, 2008.
III. DISCUSSION
The parties start by differing regarding the number of issues (aside from our standard of review) that are before us. In their opening brief, appellants identify three such issues. Respondents identify the same number, but label them differently. In their reply brief appellants enlarge the number to six.
We think there are essentially only two issues, and will discuss them in the order shown below, starting with our standard of review as to each.
A. The Order and Ensuing Judgment are Supported by Substantial Evidence.
In both their briefs, appellants claim that the Hearing Officer erred in admitting into evidence hearsay statements, e.g., letters and notes written by the two vets who treated Rio, the dog who was the victim of the alleged 2005 attack by Lucy, and that the trial court subsequently erred in allowing that use of hearsay in the administrative hearing. They argue that this issue is entitled to de novo review because (1) the Hearing Officers ruling admitting the hearsay evidence was contrary to Government Code section 11513, subdivision (d) and (2) an abuse of discretion standard of review is not appropriate because the Department engaged "in ultra vires acts," namely acting "contrary to the County Code" meaning— at least per appellants—Contra Costa County Code provisions "pertaining to administrative hearings" which require "that written statements be signed under penalty of perjury."
With regard to the hearsay issue, respondents argue that the proper standard of review is substantial evidence, i.e., was there substantial admissible evidence sustaining the Hearing Officers initial ruling. In the few pages of their reply brief addressing the standard of review issue, appellants start out by reiterating that "this Courts determination of which statute (state or county) sets the applicable evidence rules for [county] administrative hearings is a de novo review . . . ." However, two paragraphs later appellants state that, under the applicable Code of Civil Procedure provisions, "this Courts inquiry is whether there is `substantial evidence in light of the whole record." (Citing Code Civ. Proc., § 1094.5, subd. (c).)
We agree with respondents and with the last-quoted statement of appellants: our review on this issue is clearly whether there was substantial evidence supporting the Departments factual findings. Such was the holding of a unanimous panel of this court in a decision authored by Presiding Justice Kline, Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1212-1213; see also BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1244-1246; Young v. Gannon (2002) 97 Cal.App.4th 209, 224-225, and the many other appellate decisions to the same effect cited in these three cases.
We conclude there was such substantial evidence. First of all, regarding the allegedly hearsay evidence admitted by the Hearing Officer, as noted above this consisted of two handwritten "To Whom it May Concern" letters written over a year later by the vets who had treated Rio a year earlier. Both apparently emanated from a contention made by appellants that Rios wound was caused, and caused only, by plant material which had been taken out of his body. The first such letter, written by the first vet "to evaluate Rio" on October 25, 2005, recited that, when she saw Rio, he had a "large, painful swelling of his left flank, which [she] explored and drained surgically . . . ." She then went on to opine that Rios wounds were "more consistent with a bite wound than they are with a foreign body" and that a "plant foreign body" found after surgery could have entered Rios body via the drains inserted or via the initial bite to him.
The second letter, by a vet who treated Rio two months later was consistent with this, and stated that the "entire event was caused by the initial bite . . . ."
There are three reasons why appellants contention that the admission of this evidence constituted prejudicial error fails: (1) this contention was raised first in appellants writ petition and not before either the Hearing Officer or the head of the Department, and hence was waived; (2) hearsay evidence may be admissible in local agency, as well as state, administrative proceedings; and (3) there was other substantial evidence upon which the Department and the trial court could rely to support the essential findings of the harm caused to Rio by Lucy.
Points (1) and (2) can and will be considered together because they largely implicate the same legal authority.
In their memorandum of points and authorities in support of their amended writ petition, filed on January 4, 2008, appellants for the first time raised the issue that the Hearing Officer had "acted in excess of jurisdiction by relying on the [two] unsworn statements to make findings of fact." The trial court, in its minute order filed on February 29, 2008, adopted its tentative opinion, which had stated that appellants "waived their objection to this evidence by failing to raise it at the hearing and when they sought reconsideration by [the Department head, respondent Howell] of that decision." It cited in support of this ruling Government Code section 11513, subdivision (d) (section 11513(d)), which, addressing the controlling procedure regarding state agencies, provides: "(d) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. An objection is timely if made before submission of the case or on reconsideration."
Although the word "hearsay" is not specifically used in this argument, the underlying basis of the objection is essentially the same.
Appellants argue that this section is not applicable to local, but only to state, agency procedure, presumably relying on Government Code section 11410.30, which states: "This chapter does not apply to a local agency except to the extent the provisions are made applicable by statute." (Gov. Code, §11410.30, subd. (b).)
Although this section is not specifically cited in either of appellants briefs to us.
However, as respondents correctly point out (a) there is no Contra Costa County ordinance relevant to the issue of whether hearsay evidence may or may not be admissible and, if so, under what circumstances, and (b) there are several appellate decisions which state that "the provisions of the APA [i.e., the statute which includes section 11513(d)] are helpful as indicating what the Legislature believes are the elements of a fair and carefully thought out system of procedure for use in administrative hearings." (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 91 (Nightlife); see also Tucker v. San Francisco Unified School District (1952) 111 Cal.App.2d 875, 883.)
Clearly, when our Legislature amended section 11513 to add subdivision (d) in 1995 (albeit effective in 1997), it thought that, as regards State of California administrative hearings, (a) hearsay evidence is permissible when, but only when, used to supplement unobjectionable evidence and (b) an objection to hearsay evidence must be made "before submission of the case or on reconsideration." We hold that the same rules apply to local agency administrative hearings for the reason suggested in Nightlife, but also for an important additional reason not discussed in any of the briefs before us.
The principal authority relied upon by appellants, McNary v. Department of Motor Vehicles (1996) 45 Cal.App.4th 688, was published the year before section 11513(d) became effective, and hence is not relevant to this case. (See Dibble v. Gourley (2002) 103 Cal.App.4th 496, 503, overruled on different grounds by McDonald v. Gutierrez (2004) 32 Cal.4th 150. This fact was pointed out to appellants counsel by both the trial court and in respondents brief to us, but appellants counsel nevertheless relied on McNary at oral argument.
That additional reason is that rulings of both our Supreme Court and some of our sister courts suggest rather strongly that the law as enunciated in section 11513(d) is reflective of prior common law. Thus, well before section 11513(d) was enacted, our Supreme Court held: "The general rule is that in the absence of a special statute an administrative agency cannot over objection make findings of fact supported solely by hearsay evidence." (Steen v. Board of Civil Service Commrs. (1945) 26 Cal.2d 716, 726-727, emphasis supplied; see also Fox v. San Francisco Unified School Dist. (1952) 111 Cal.App.2d 885, 891; Frudden Enterprises, Inc. v. Agricultural Labor Relations Bd. (1984) 153 Cal.App.3d 262, 270 & fn. 5.)
Equally importantly, those cases are simply reflective of a much broader rule that, in administrative agency proceedings, liberal admissibility of evidence is favored, especially when no objections are raised. There are many cases so holding, and they treat the issue precisely the same whether the administrative proceeding is at the state or local level. (See, e.g., Tennant v. Civil Service Comm. (1946) 77 Cal.App.2d 489, 498-499; Rinaldo v. Board of Medical Examiners (1947) 82 Cal.App.2d 213, 216-217; Jenner v. City Council (1958) 164 Cal.App.2d 490, 496; Carmel Valley View, Ltd. v. Board of Supervisors (1976) 58 Cal.App.3d 817, 823; Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 294.)
Thus, we reject appellants hearsay argument for the first two reasons stated earlier, i.e.: (1) appellants failure to raise a hearsay objection at the administrative hearing constituted waiver and (2) hearsay evidence is admissible at local administrative proceedings if simply supplementary to other, clearly admissible, evidence.
But, as also noted above, there is yet a third reason to reject appellants hearsay argument: as respondents correctly point out, even if the hearsay writings of the two vets in question should have been either excluded or not relied upon by the hearing officer, the trial court was correct in implicitly ruling that there was substantial other evidence to support the findings of the Hearing Officer as to the injuries to the first victim-dog, Rio. This evidence included photographs of Rios injuries, the testimony of his owner at the administrative hearing concerning the events of the October 11, 2005, incident involving Rio and Lucy, a November 1, 2005, report submitted by Animal Services Officer Bender, and handwritten notes, provided by vets and/or technicians at the vet hospital regarding the treatment of Rio. Nor do appellants assert there was any hearsay evidence admitted with regard to Lucys June 2007 attack on the second dog, Buddy. This was, clearly, ample other evidence to sustain the Hearing Officers decision and then the Departments consequent order.
B. Appellants Constitutional Argument Fails.
Appellants only other argument (aside from their request for attorney fees) is that the Contra Costa ordinance in question, No. 416-12.406, is unconstitutional because it does not mandate that a prompt hearing be held to determine if an animal is a PDA. We agree with the parties that our standard of review of such an issue is de novo. However, we do not agree with appellants contention that the ordinance is constitutionally invalid, and especially not that, as appellants argue, it is facially invalid. As another Division of this court recently held: "A party claiming that a legislative enactment is invalid on its face confronts daunting obstacles to success. The first hurdle to overcome is the bedrock principle that courts are exceedingly reluctant to declare legislation unconstitutional." (Personal Watercraft Coalition v. Marin County Bd. of Supervisors (2002) 100 Cal.App.4th 129, 137.) Appellants have not overcome this "bedrock principle."
Which also means, as appellants effectively concede, that their request for attorney fees likewise fails.
The ordinance in question was apparently spawned by the Legislatures adoption, in 1989, of Food and Agricultural Code sections 31601 et seq., which addressed the need to control "[p]otentially dangerous and vicious dogs . . . ." (§ 31601, subd. (a).) The critical—at least for this case—provision of that statute is section 31625, which provides:
Unless otherwise noted, all subsequent statutory references are to the Food and Agricultural Code.
"(a) If upon investigation it is determined by the animal control officer or law enforcement officer that probable cause exists to believe the dog in question poses an immediate threat to public safety, then the animal control officer or law enforcement officer may seize and impound the dog pending the hearings to be held pursuant to this article. The owner or keeper of the dog shall be liable to the city or county where the dog is impounded for the costs and expenses of keeping the dog, if the dog is later adjudicated potentially dangerous or vicious. [¶] (b) When a dog has been impounded pursuant to subdivision (a) and it is not contrary to public safety, the chief animal control officer shall permit the animal to be confined at the owners expense in a department approved kennel or veterinary facility."
Presumably some time after the adoption of this statute, Contra Costa County adopted an extended ordinance headed "Animals" as Division 416 of the countys ordinances. That Division contains an article entitled "Dangerous Animals." One of the sections therein is 416-12.410, the first two subsections of which read as follows: "416-12.406 Hearing procedures. [¶] (a) If an animal services officer determines there is probable cause to believe that an animal is potentially dangerous or dangerous, or that the owner or keeper of an animal previously determined to be potentially dangerous or dangerous has violated any animal permit conditions, the animal services director shall hold a public hearing to determine whether grounds exist to designate the animal potentially dangerous or dangerous, or to determine whether permit conditions have been violated, and if so, what orders and penalties should apply. If the owner or keeper of the animal does not dispute the charges alleged, he or she may waive the right to a hearing and, if eligible, immediately apply for an animal permit under this article. [¶] (b) At least five business days prior to the hearing, the animal services director shall serve the owner or keeper of the animal with a notice containing a statement of the charges, and the date, time and place of hearing. Service shall be by first-class mail or personal service."
Citing one California appellate case and several federal cases, appellants argue that, in failing to provide for a specific time by which such a hearing must be held, this ordinance is constitutionally invalid as it denies equal protection and due process.
Regarding the federal cases cited, we are, of course, not bound by federal court precedent. In any event, the federal cases cited by appellants all deal with automobile seizures. Those cases are arguably distinguishable because automobiles are seldom, if ever, inherently dangerous and, additionally, their owners often have a strong economic need for their availability.
More importantly, the California precedent relied on by appellants, Phillips v. San Luis Obispo County Dept. etc. Regulation (1986) 183 Cal.App.3d 372 (Phillips), is also quite distinguishable. There, our colleagues in Division Six of the Second District ordered the defendants and respondents, the county animal control department, to immediately release to the plaintiff-owners a dog they had seized and intended to destroy because "the ordinances [at issue] here are unconstitutional for failure to provide for notice and a hearing either before or after the seizure of an uncontrollable biting or vicious dog." (Id. at p. 380.) But such is hardly the case here: the Contra Costa County ordinance, very possibly enacted as directed by section 31625, does exactly what the San Luis Obispo County ordinance did not do: provide for notice and a hearing. What it did not do is state precisely when such a hearing and a determination derived from it must issue.
Although the Phillips opinion does state that such an ordinance should provide for a "prompt postseizure hearing" (Phillips, supra, 183 Cal.App.3d at p. 379), the precedents it cites for that proposition do not support a specific "promptness" requirement. Thus, in Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 307-309, our Supreme Court held that a local ordinance allowing seizure of a news rack violated procedural due process by not allowing the owner "an opportunity to be heard on the merits of the taking." (Id. at p. 309.) However, the court specified no requirement as to the content of the ordinance regarding the hearings timing. Carrera v. Bertaini (1976) 63 Cal.App.3d 721 involved the seizure of farm animals. There, the court held that the ordinance authorizing that seizure should have provided for notice and hearing—as the ordinance before us does. The court used the word "prompt" not regarding what the ordinance should have said, but what the animals owner was entitled to.
Concurring opinion of Kline, P.J.
I concur in the judgment. I write separately to make clear that, while I agree with my colleagues rejection of appellants constitutional claim, I do so entirely on the grounds that appellants lack standing to advance that claim.
Appellants right to a meaningful and reasonably prompt hearing was not denied them. The hearing they received was not the "courtesy hearing" gratuitously afforded in Phillips v. San Luis Obispo County Dept. etc. Regulation (1986) 183 Cal.App.3d 372, 380, but one mandated by ordinance; notice of that hearing was given almost immediately after the Contra Costa County Animal Services Department found probable cause to believe their dog was a potentially dangerous animal, and the hearing took place only eight days later. An asserted right to have the government act in accordance with the law is not sufficient, standing alone, to confer jurisdiction; the plaintiff must show some injury, actual or threatened. (Allen v. Wright (1984) 468 U.S. 737; Doremus v. Board of Education (1952) 342 U.S. 429.)
But we agree with respondents that such a failing is in no manner a cause for striking down both the ordinance and the result reached in the administrative hearing and in the court below. First of all, section 31625 does not require—either implicitly or explicitly—that the hearing it mandates be "prompt." Second, the Department started its investigation on the very same day that the second incident, involving Lucy and Buddy, occurred, i.e., June 28, 2007, and the hearing resulting from this (and the 2007 event) was held 15 days later. Thus, and as appellants counsel conceded at oral argument, the seizure of Lucy and the hearing regarding her were both accomplished "promptly," i.e., after the "Buddy" episode. Third, the final provision of the relevant chapter of the Food and Agricultural Code involved here, namely section 31683, specifically gives "a city or a county" broad discretion in "adopting and enforcing its own program for the control of potentially dangerous or vicious dogs that may incorporate all, part, or none of this chapter. . . ."
Fourth, and especially pertinent to that permissive statute, our Supreme Court has often held that laws, including city and county "enactments should be interpreted when possible to uphold their validity . . . ." (Associated Home Builders v. City of Livermore (1976) 18 Cal.3d 582, 598; see also, to the same effect regarding state and local enactments generally: Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 788; and Braxton v. Municipal Court (1973) 10 Cal.3d 138, 145-146, and cases cited therein.)
We interpret the ordinance at issue here to require a county essentially following the mandates and procedures set forth in section 31625 to set a hearing regarding a PDA within a reasonable period of time after the most recent triggering incident regarding that animal. Contra Costa County did so here: its ordinance specifically provided for a hearing, and such a hearing was held promptly after that last incident.
IV. DISPOSITION
The trial courts order denying appellants petition is affirmed.
I concur:
Richman, J.