Opinion
H025549.
10-20-2003
BONNIE RIDINO, Plaintiff and Appellant, v. COUNTY OF SANTA CRUZ et al., Defendants and Respondents.
Plaintiff Bonnie Ridino appeals the Santa Cruz County Superior Court’s denial of her petition for a writ of mandate commanding the County Animal Nuisance Abatement Appeals Commission set aside its order for destruction of her two-year-old female pit bull mix Coco Puff, whose bad behavior consisted of running at large, growling and barking, and threatening people. On appeal she challenges the sufficiency of the evidence supporting the order and claims her due process rights were denied.
Defendants were the County of Santa Cruz, Santa Cruz County Animal Services Authority (Authority) and its general manager Michael McFarland, and the Animal Nuisance Abatement Appeal Commission (Commission).
FACTS
Twelve separate occasions of Coco Puff’s running loose and/or threatening people since November 2000, earned her an Animal Control Order for Confinement issued on January 26, 2002, by the Poundmaster of the Santa Cruz SPCA/Department of Animal Control Services (SPCA). Coco Puff was determined to be a vicious animal, and was ordered to be confined in an enclosure, in the house, or on a leash and muzzled at all times while off plaintiff’s property. The order required plaintiff to comply with all Santa Cruz County animal control ordinances and warned, “[i]f there are any incidents of &# 8216;Coco Puff’ being loose or inadequately confined and threatening people or other animals she may be impounded and ordered destroyed per section 6.24.070 [of the Santa Cruz County Code].” It concluded, “[t]his order will follow your dog throughout her life and will not be voided by changes in location or ownership, as long as she remains in Santa Cruz County.” In a March 11, 2002, hearing on plaintiff’s appeal, the order was reviewed and upheld by the Commission with the exception that the muzzle requirement was deleted.
A composite of the narratives of the 12 individual complaints contained in the Animal Control Order for Confinement reveals that Coco Puff could jump plaintiff’s seven-foot fence which also contained a large gap. Thereafter, she was repeatedly found running loose, chasing children on their scooters and bicycles, running onto a neighbor’s driveway and growling at the occupants of a car, and running away from plaintiff when she called her. On plaintiff’s part, when an animal control officer came to her house to counsel her after six previous warnings, plaintiff “tore [her] copy of the 24-hour animal control notice that advised [her] of the complaint, possible further action[,] and which instructed [her] to contact [the officer].” Plaintiff refused to contact the officer, refused to answer the door or relinquish the dog when the officer and sheriff’s deputies attempted to seize Coco Puff and hold her at the SPCA while an investigation was conducted, and less than two weeks after plaintiff’s ex-husband contacted the SPCA and offered to “reason with [her] to keep [her] dog securely contained while an investigation was conducted . . . ,” Coco Puff was again seen loose.
Further references to ordinances are to the Santa Cruz County Code unless otherwise indicated. This court has augmented the record on appeal with the administrative record of the proceedings below. (Cal. Rules of Court, rule 12.)
However, on February 9 and March 18, Coco Puff was running at large and threatening people including children (she was impounded on March 18); on June 1, she charged out of her yard with the gate wide open and threatened a pedestrian; and on August 18, she was unsupervised in a vehicle with a wide open window through which she was barking and growling at children who were playing and riding their bikes in the neighborhood. On August 21, 2002, the Authority received a petition signed by 22 neighbors complaining that Coco Puff commonly ran at large in the neighborhood.
On September 16, 2002, the Poundmaster ordered Coco Puff’s destruction. She had been found to be a vicious animal and an habitual offender (having had three or more violations involving separate incidents (§ 6.04.20, subd. (L)).
Plaintiff appealed the order to the Commission. A hearing was held on November 13 and 20, 2002, and the order was upheld. Plaintiff was ordered to surrender the dog within 48 hours and the Authority was ordered to postpone destruction for 15 days to attempt to find a placement for her. At the end of the hearing plaintiff told Animal Control Officer L. Janet Goulette that “ ‘Coco Puff’ had run away and would never be surrendered to the Animal Services Authority.”
Plaintiff filed a petition for a writ of mandate in the superior court and obtained a temporary restraining order against the destruction of the dog but was required to surrender the dog within 24 hours. The trial court found there was no violation of plaintiff’s due process rights and that the evidence adduced supported the finding that Coco Puff was vicious. The court denied the petition and ordered Coco Puff destroyed. This appeal ensued.
ISSUES ON APPEAL
Plaintiff challenges the sufficiency of the evidence that Coco Puff was a vicious dog and an habitual offender. She also complains that she was denied due process in the hearing before the Commission because she was denied the right of effective cross-examination and the right to make evidentiary objections.
STANDARD OF REVIEW
Plaintiff claims the standard of review for “an order for seizure of property . . . is equivalent to those cases involving the seizure of property or money. In such seizure cases the standard on appeal is a de novo review of the facts by the appellate court.” (Fn. omitted.) Defendants assert that since the trial court employed the independent judgment test, the standard of review on appeal is the substantial evidence test.
“The appropriate standard to be applied here after superior court review of an administrative proceeding depends on what was the appropriate standard of review at the superior court level. That, in turn, depends on the type of rights affected by the administrative proceeding. [Citations.] [¶] If the appropriate superior court standard had been the substantial evidence standard, then the question before this court would be whether the administrative agency’s findings were supported by substantial evidence. [Citation.] [¶] If, on the other hand, the independent review standard had been appropriately applied by the superior court, then the question before this court would be whether the superior court’s findings (and not those of the administrative agency) were supported by substantial evidence. [Citation.]” (Kimbrough v. Police & Fire Retirement System (1984) 161 Cal.App.3d 1143, 1148-1149 (Kimbrough).)
State law authorizes the hearing officer at a hearing to declare a dog potentially dangerous or vicious to “find, upon a preponderance of the evidence, that the dog is potentially dangerous or vicious and make other orders [i.e., for the enclosure or destruction of the animal (Food & Ag. Code, § 31642)] authorized by this chapter.” (§ 31621.) The parties agreed that the appeal of the Poundmaster’s second order (for destruction of Coco Puff), which was appealed to the superior court (§ 31622) via petition for a writ of mandate, was a hearing de novo “because it’s a fundamental right dealing with due process.” “Since the superior court standard in the present case was independent review, the appropriate scope of review on appeal is to determine whether that court’s findings are supported by substantial evidence. [Citation.]” (Kimbrough , supra, 161 Cal.App.3d at p. 1149.) We must indulge every reasonable inference and presumption in favor of the superior court’s findings. When more than one inference can reasonably be deduced from the facts in the record, we may not substitute our deductions for those of the superior court. (MCM Construction,Inc. v. City and County of San Francisco (1998) 66 Cal.App.4th 359, 368.)
Further statutory references are to the Food & Agriculture Code unless otherwise stated.
SUFFICIENCY OF THE EVIDENCE
Plaintiff disputes the sufficiency of the evidence to support the finding to destroy Coco Puff as an habitual offender and a vicious animal because “[t]he evidence before the trial court was, at best, a mixed bag of hearsay allegations and marginally relevant evidence.” The charge that the court received inadmissible hearsay is disposed of by reference to the governing statute. Section 31621, subdivision (b), allows the hearing officer and section 31622 allows a court hearing an appeal to “admit all relevant evidence, including incident reports and the affidavits of witnesses, . . .” In addition, the Administrative Procedure Act allows affidavits to be used in lieu of oral testimony and with the same effect provided that prior notice is given to the opposing party so that he or she has the opportunity to cross examine the affiant. (Gov. Code, § 11514.) Hearings before the Commission are not covered under the Act but since they are allowed by applicable state law, admission of affidavits under the same conditions as provided in the Act comply with principles of fundamental fairness. Here, the court found that the procedure established by the Commission: “Each side makes your case. We can ask questions. Witnesses may be called. Then the [plaintiff] makes their [sic] case. We can ask questions. And then finally there can be cross examination”; with objections during the testimony of the witnesses precluded until some later time, were “less than typical approaches to hearing evidence during the course of this proceeding,” but it also found that “the evidence is competent. Hearsay is allowed if it’s reliable, if you know the source of that information, and the ability to subpoena that person to bring them forward to examine them or cross-examine them. It seems to me that that is the protection that we’re looking for in an administrative hearing.”
At the hearing on the petition, the trial court considered a transcript of the tape of the administrative hearing, exhibits, the previous finding of viciousness that was not appealed on that issue, and the complaints of neighbors. They consisted of the complaints listed ante. The trial court listed each of them and heard argument from plaintiff’s counsel. On appeal, plaintiff again raises specific objections to each that we will discuss.
First, the March 18, 2002, sworn statement “from Susan [sic Suzanne] Fisher [complained] that the dog was at large in the neighborhood without a leash, aggressively threatening an adult and three minor children.” This complaint was corroborated by Officer Goulette’s incident report and testimony. Fisher testified and was available for cross examination at the hearing regarding this and the August 21, 2002, incidents. Plaintiff complained and the court noted that “there is no evidence of this dog biting anyone, . . .” Now she challenges the sufficiency of that complaint because “there is no evidence that Coco Puff bit or attempted to bite anyone.”
“ ‘Vicious animal’ means any animal, except a dog assisting a peace officer engaged in law enforcement duties which bites any human being or any domestic animal or which threatens or attempts to bite or attack human beings or domestic animals, but does not include an animal which bites, attacks or threatens to bite or attack a trespasser on the property of its owner or harms or menaces anyone who has tormented, tortured or exhibited cruelty to such animal as such terms are defined in Section 599(b) [sic, should be Section 599b] of the California Penal Code.” (& sect; 6.04.20, subd. (W).) Coco Puff’s conduct brings her into the category of animal which threatens to bite or attack human beings.
Next, the May 1, 2002, sworn statement of Amy Doolittle reported &# 8220;that the dog was running at large in the neighborhood, again without a leash in violation of certain sections, . . .” The exhibit also “indicates at least fear of other individuals in the area, apparently children in the area.” Plaintiff raises no specific objection to this incident in her brief.
The third incident arose on June 18, 2002, and was reported in a memo from “a Miss Heinsinger” who stated “the dog is running at large in the neighborhood without a leash, charging, chasing and threatening minor child. [Sic.]” Plaintiff complained at the hearing and here that the evidence in the record consisted of a report log that did not identify the reporting party and that the evidence was unreliable. To this objection, the trial court specifically responded that the name of the reporting party was identified by opposing counsel at the hearing and that plaintiff had been granted a continuance to call witnesses and present evidence if she wanted to, including calling the June 18 complainant. Plaintiff also objected there and again here that the report was solely based upon unsupported hearsay. As it turned out, Roxanne Heinsinger testified at the hearing about another incident when Coco Puff was in her garage trying to get into some dog food and she “started growling me down back into my house.” Heinsinger was available for cross-examination but not asked about the first incident. The objection is unfounded.
Plaintiff objects to the August 18, 2002, complaint that the dog was in plaintiff’s car parked in her driveway with the window open because the evidence “clearly shows that such conduct by [plaintiff] and Coco Puff was not a violation of the Santa Cruz County Code. More specifically, . . . section 6.04.020 [sic should be 6.04.20,] [subdivision (C)2,] provides” that a dog is considered “at large” when the following circumstances exist: “2. Any dog while on the owner’s premises or the premises of a third party with the permission of that party, that is not confined to the premises either by a leash, tether, adequate fencing, or other adequate physical custody or control. A dog shall be considered under adequate physical custody or control if it has not left the premises of its owner or caretaker.”
The complainant, Suzanne Fisher, was present at the second day of the hearing and could respond to plaintiff’s counsel’s question of Officer Goulette how far open the window was. However, plaintiff’s counsel refused to call her for cross-examination. County Counsel recalled Fisher, however, who testified that the window was unrolled approximately seven-eighths of the way. “It was more than three quarters down. We were close enough to the car parked in the driveway that we could see the dog unrestrained because he [sic] was barking and in the front seat running around in the front.”
Plaintiff’s counsel stated: “the evidence is before the panel. We have to submit it on that. This is an actual proceeding that has to follow rules. We are following the rules. [¶] THE CHAIRPERSON: So you are never going to call that witness? [¶] [COUNSEL]: I am not going to call that witness.”
At the hearing on the writ petition, the court and plaintiff’s counsel believed that there was no evidence whether the car was parked on plaintiff’s property.
Coco Puff was untethered in a car with a window open wide enough for her to jump out and she was barking and growling at children who were nearby on a public sidewalk. Enclosure in the car under those circumstances was tantamount to enclosing Coco Puff untethered in a fenced yard but leaving the gate open, an indiscretion that plaintiff had also committed. However, because plaintiff’s property was fenced with self-closing gates, and there was no testimony whether the gate was open or closed, it was not clearly shown that this was a violation of the Poundmaster’s order.
Finally, on October 10, 2002, the dog was growling and barking near a vehicle in which an individual had children. This statement was contained in an animal control witness statement by Brent and Amy Brandoleno. The statement was unsworn, but plaintiff made no objection to its admission or took the opportunity of the continuance to call the witnesses.
Plaintiff complains that by her reckoning, “there existed exactly one sustainable allegation of misconduct by [plaintiff] and Coco Puff. Based upon this one allegation, the trial court was able to determine that Coco Puff was presently dangerous.” Plaintiff adds, “It should be noted that the trial court did not sustain the decision of McFarland on the basis that Coco Puff was an habitual offender. Rather, the decision was based entirely on the finding that Coco Puff was vicious.” The reporter’s transcript shows that the court did not make the finding that Coco Puff was an habitual offender. The order after hearing states, “the Court finds that there was no violation of [plaintiff’s] due process rights; that the evidence supports the determination that ‘Cocopuff [sic ]’ is a vicious animal, independent of the Animal Service’s [sic] Authority’s January 26, 2002, finding; that sufficient and reliable evidence supports the Animal Nuisance Abatement Appeals Commissioner’s November 20, 2002, destruction order; . . .” Plaintiff concludes her brief with the conclusion that “[g]iven the lack of credible or admissible evidence as set forth above, it is respectfully submitted that the decision of the trial court was error.”
The court concluded the five incidents recounted above show &# 8220;at least a consistent pattern of conduct that demonstrated the owner was not complying with the earlier orders.” Even omitting the open car window incident, substantial evidence, which we stated in detail, supports the finding of the trial court. There was no error.
DUE PROCESS
Next, plaintiff claims her due process rights were violated because she was denied the right of effective cross-examination and the right to make evidentiary objections. The Commission refused to allow plaintiff to object to introduction of evidence and her counsel was required to wait to cross-examine witnesses until defendants’ case in chief and the examination of witnesses by the Commission was completed.
“The requirements of due process, . . . are not inflexible. [Citations.] . . . [¶] California has expanded upon the federal analytical base by focusing on the administrative process itself. . . . [¶] . . . [¶] No firm rule can be established to ascertain what protections are necessary in a particular situation. Rather the relief to be afforded depends upon balancing the various interests involved. . . . Thus we must look to and weigh the various interests at stake before deciding what procedures are constitutionally required. [¶] . . . [¶] The opportunity to be heard is ‘a fundamental requirement of due process.’ [Citations.] However, there is no precise manner of hearing which must be afforded; rather the particular interests at issue must be considered in determining what kind of hearing is appropriate. A formal hearing, with full rights of confrontation and cross-examination is not necessarily required. [Citation.] What must be afforded is a ‘ “reasonable” opportunity to be heard. [Citations.]’ [Citation.]” (Saleeby v. State Bar (1985) 39 Cal.3d 547, 563-566.) Due process does not require any particular method of procedure. (Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75, 80.) Whether there was a fair administrative hearing is a question of fact for the trial court to determine by independent evaluation of the administrative record. (Bekiaris v. Board of Education (1972) 6 Cal.3d 575, 587.) The trial court here found the proceeding fair.
Although the procedure required by the Commission for the hearing did not follow courtroom procedures, counsel was allowed to ask questions of witnesses and call witnesses. Counsel was able to cross examine witnesses. Counsel was able to assert objections during his presentation of plaintiff’s case and he did so. During closing argument, counsel objected to the SPCA’s failure to include the October 10, 2002, incident in the Notice of Destruction. The Commission granted a continuance to allow plaintiff time to respond and present witnesses. Counsel also argued the sufficiency of the evidence of many of the incidents on which the SPCA relied. Finally, plaintiff presented the testimony of witnesses and letters from friends and neighbors to counter the allegations that Coco Puff was vicious. Plaintiff, herself, testified on Coco Puff’s behalf. Under these circumstances, the court correctly found that she was not denied due process.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J. and Bamattre-Manoukian, J.