Filed 11/12/20 Garcia v. Orange County Animal Care CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ILEANA GARCIA,

Plaintiff and Appellant,

v.

ORANGE COUNTY ANIMAL CARE et al.,

Defendants and Respondents.

G058438

(Super. Ct. No. 30-2019-01067423)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Thomas A. Delaney, Judge. Affirmed. Appellant’s request for judicial notice denied.

Marla A. Tauscher for Plaintiff and Appellant.

Leon J. Page, County Counsel, and Kayla N. Watson, Deputy County Counsel, for Defendants and Respondents.

* * *

Ileana Garcia appeals from the trial court’s ruling sustaining the demurrer filed by the County of Orange and its animal control agency, Orange County Animal Care (OCAC), without leave for Garcia to amend her underlying petition for a writ of administrative mandate. (Code Civ. Proc., § 1094.5.) Garcia filed the petition to overturn a county hearing officer’s determination that her pit bull—following attacks on three people on three separate occasions—was a vicious dog requiring euthanization.

We find no merit in Garcia’s core claim on appeal that the county lacked jurisdiction to designate the superior court as a forum authorized by the Legislature to hear vicious dog appeals de novo. (Food & Agr. Code, § 31622; all further undesignated statutory references are to this code.) Garcia does not assert there is anything inadequate in this remedy provided by law—only that it is not, in fact, an authorized appellate forum. We disagree with Garcia that the county’s ordinance establishing its procedures for initial vicious dog administrative adjudications precluded appeal to the superior court for de novo review. To the contrary, both the ordinance and state law authorize this procedure.

Thus, we find no basis for reversal in Garcia’s claim that the court hearing her mandamus petition lacked jurisdiction to direct her to reinstate her administrative appeal to the superior court as the proper means to challenge the underlying vicious dog determination. Instead, Garcia chose to pursue only her mandamus petition and declined to appear at the de novo vicious dog hearing in the superior court, which was decided against her. As a result, a different trial judge, hearing her mandamus petition, sustained the demurrer on res judicata grounds. As we explain, the court’s demurrer ruling was correct. We therefore deny Garcia’s request on appeal to reverse the demurrer order and reinstate her mandamus petition.

FACTUAL AND PROCEDURAL BACKGROUND

This matter has generated a large record with multiple stops first at the administrative hearing level and then in several trial court departments. In the trial court, parallel mandamus and administrative appeal proceedings were punctuated at the outset by peremptory challenges (Code Civ. Proc., § 170.6), reassignments, ex parte hearings, and writs taken to this court and denied. Assorted other proceedings followed before the court issued its final demurrer ruling, which is the subject of this appeal. Nevertheless, the relevant background can be summarized briefly.

In September 2018, Garcia’s dog, Raider, while on a leash lunged at and bit a passing jogger on a Huntington Beach bike path. In March 2019, Raider and another pit bull escaped Garcia’s residence, attacked a dog in the apartment complex’s common area, opening several wounds in the dog, and then attacked the dog’s owner, who was bitten and scratched several times. OCAC officers took Raider into custody following the second attack.

Three days later, Raider knocked over an OCAC kennel attendant, circled and then charged and bit her before latching onto her right forearm. Raider then readjusted his bite, bore down, and pulled the attendant to the ground. The dog inflicted horrific injuries to the attendant’s forearm before she was able to radio for help and escape.

Following the first two incidents, OCAC issued a preliminary assessment declaring Raider a “Potentially Dangerous Dog” pursuant to Orange County Codified Ordinance (OCCO) section 4-1-23(a)(2). After the third incident, OCAC sent Garcia a “Declaration Letter” on April 4, 2019, identifying Raider as a “Vicious Dog” pursuant to OCCO section 4-1-23(b)(1). Garcia contested the “Vicious Dog” designation and an administrative hearing was held. The hearing officer found Raider qualified as a vicious dog and ordered that he be “humanely euthanized as set forth in the April 4 Declaration Letter.”

The county sent Garcia the hearing officer’s detailed “notice of decision” and advised her in boldface type: “You have five (5) calendar days from the receipt of this letter to file an appeal with the Orange County Superior Court.” The notice specified, “Pursuant to Food and Agricultural Codes 31621 and 31622, if you disagree with this decision [by the hearing officer], you may file an appeal in the limited civil division of the appropriate justice center branch of the Orange County Superior Court having jurisdiction over your location of residence.” The letter emphasized the necessity of filing a “Notice of Appeal, Menacing Dog,” and provided further filing information including the superior court’s telephone number.

In e-mail correspondence with county counsel, Garcia’s attorney disputed the relevance of the cited statutory sections, asserting to the contrary that “the City of Fullerton,” where Garcia resided, “adopted the Orange County Municipal Code related to potentially dangerous and vicious dogs, not the Food & Ag. Code.” Garcia’s attorney therefore requested information regarding the local administrative appeal procedure, if any. County counsel replied advising Garcia’s attorney that “no local appeal process for vicious or potentially dangerous dogs exists in Fullerton or the County of Orange . . . [, stating instead that a]ll vicious and potentially dangerous dog appeals in both jurisdictions are held pursuant to section 31622.”

On May 2, 2019, instead of filing an appeal in the superior court, Garcia filed her petition for administrative mandamus that underlies this appeal, along with an ex parte request for a temporary restraining order (TRO) and a request for a preliminary injunction. The trial court granted the TRO the next day and set an order to show cause hearing regarding the preliminary injunction request, warning Garcia that if she “did not exercise her appeal rights this case may be dismissed.”

That same day, Garcia filed her appeal in the superior court. Later, after filing peremptory challenges related to both the appeal and her writ proceeding, which were pending under different case numbers, she voluntarily filed a request to dismiss her appeal with prejudice.

In the writ proceeding, the trial court by minute order, converted the TRO to a preliminary injunction pending a further hearing on Garcia’s administrative mandamus petition and ordered Garcia to reinstate her appeal. Specifically, the court directed “the parties to conduct an appeal of the administrative hearing, pursuant to the procedures of Food & Agricultural Code section 31622, in the form of a Trial de Novo . . . .”

The court directed that the appeal be heard before the judicial officer assigned to the appeal before Garcia dismissed it, citing the applicable local rule. (See Super. Ct. Orange County, Local Rules, rule 309 [“Whenever a case is dismissed and thereafter another case is filed involving the same, or essentially the same, parties, facts, or causes of action as the prior case, the plaintiff in any such subsequently filed case must disclose such facts on the face of the new complaint. The subsequently filed case will be assigned to the same judicial officer for all purposes as the prior case”].)

Garcia was granted a two-week continuance of the trial setting conference to set a hearing date in the appeal, which pursuant to statute (§ 31622) would be a de novo review by the superior court of the hearing officer’s administrative decision. After the court set the appeal hearing date for September 3, 2019, Garcia sought writ relief in this court to vacate the de novo appeal, which we denied.

Thereafter, Garcia filed a “Notice of Intent Not to Appear” for the administrative appeal in the trial court. The court conducted the de novo hearing as scheduled, considered the documents on file, heard argument by county counsel, noted Garcia’s absence, and issued its ruling denying Garcia relief by means of appeal under section 31622 “based on her intent to not appear this date.”

Respondents previously had filed in the mandamus proceedings a demurrer to Garcia’s petition for a writ of mandate and a motion to dissolve the preliminary injunction, both of which the court heard on October 4, 2019. The court sustained the demurrer without leave to amend on grounds that the de novo appeal “cured any due process complaints that Petition[er] had concerning the previous administrative hearing.” The court concluded, “Based on res judicata, Petitioner is foreclosed from relitigating the due process issues.” The court similarly indicated it would dissolve the preliminary injunction, finding that “[s]ince the appeal has been determined on the merits, Petitioner cannot prevail on the merits.”

Garcia then filed this appeal.

DISCUSSION

1. Appealability and Mootness

Garcia does not furnish in the record on appeal any indication that the trial court entered a dismissal of her petition following its demurrer ruling. Ordinarily, “[a]n order sustaining a demurrer without leave to amend is not appealable, and [instead] appeal is proper only after entry of a dismissal on such an order.” (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.) Nonetheless, to avoid wasting judicial resources by remanding the matter for entry of a dismissal, which would only result in a second appeal raising the same challenges, we exercise our discretion to treat the appeal as a petition for a writ of mandate. (Olson v. Cory (1983) 35 Cal.3d 390, 401.)

Respondents contend Garcia’s appeal should be dismissed as moot because Raider has been euthanized. In October 2019, this court denied Garcia’s petition for a writ of supersedeas and request for an immediate stay pending appeal, and the dog was subsequently put down in November 2019.

The mandamus petition underlying Garcia’s appeal sought writ relief from the trial court to “invalidat[e] the decision of [the county hearing officer] in its entirety,” requiring a new hearing at the local level to remedy what Garcia asserted were “Procedural Defects in the County’s Conduct of the Administrative Hearing.” (Capitalization adjusted.) Garcia also sought in her mandamus petition her attorney fees, costs, and “any fees paid to OCAC and/or the County of Orange in connection with this matter.” Garcia premised her bid for fees on a statute providing that the trial court, in its discretion, “may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest.” (Code Civ. Proc., § 1021.5.) Garcia sought through her mandamus petition to vindicate her belief that “OCAC Did Not Conduct a Fair ‘Trial’ (Administrative Hearing).”

Although a new administrative hearing complete with the due process protections Garcia claims were originally absent would be a moot undertaking now that Raider has been euthanized, we deny respondents’ request for dismissal for two reasons. First, Garcia’s request for fees and costs would remain for the trial court to decide on remand if she prevailed on appeal in demonstrating that a new, local administrative hearing should have been held. Second and related, given the weighty interests at stake related to the death of a pet, we proceed to the merits regardless of fee considerations to explain why the trial court’s demurrer ruling was correct: no new administrative rehearing was required.

2. Standard of Review

“Our review is governed by settled standards, which apply equally whether a demurrer challenges a complaint or a petition.” (SJJC Aviation Services, supra, 12 Cal.App.5th at p. 1051.) Whether the underlying proceedings have been initiated by a writ petition or by a complaint, we review each “de novo ‘to determine whether it alleges facts stating a cause of action under any legal theory . . . .’” (Ibid.)

Here, the legal question is one of jurisdiction. Garcia’s core contention is that the county and the trial court lacked jurisdiction under state law or a local ordinance to require her to pursue a de novo appeal of the hearing officer’s vicious dog determination in the superior court. To resolve this contention, we must interpret the relevant statutes and ordinance. We review issues of statutory construction, including the interpretation of local ordinances and municipal codes, de novo. (City of San Diego v. San Diego City Employees’ Retirement System (2010) 186 Cal.App.4th 69, 78.) ““‘[O]ur fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’”” (Orange County Water Dist. v. Public Employment Relations Bd. (2017) 8 Cal.App.5th 52, 63-64.)

3. Jurisdiction

A. State Law Framework

Because “[p]otentially dangerous and vicious dogs have become a serious and widespread threat to the safety and welfare of citizens,” the Legislature has established provisions “for the regulation and control” of such animals. (§ 31601, subds. (a), (c).)

These provisions include a nonjury “judicial process” for a hearing as “a limited civil case” in the superior court, in which the court “may find, upon a preponderance of the evidence, that the dog is potentially dangerous or vicious and make other orders authorized by this chapter.” (§ 31621.) Those orders may relate to fines (§ 31662), licensing and vaccination requirements (§ 31641), other restrictions on retaining such animals (§ 31642), outright prohibition against owning or custody of individual dogs so designated (§ 31646), and their destruction (§ 31645, subd. (a)).

The statutory framework allows for parallel local programs that “may incorporate all, part, or none of this chapter,” with a sole restriction that is inapplicable here: the local program may not adopt regulations that apply only to particular breeds rather than all dogs. (§ 31683.) Specifically, the statute states, “Nothing in this chapter shall be construed to prevent a city or county from adopting or enforcing its own program for the control of potentially dangerous or vicious dogs that may incorporate all, part, or none of this chapter, or that may punish a violation of this chapter as a misdemeanor or may impose a more restrictive program to control potentially dangerous or vicious dogs. Except as provided in [s]ection 122331 of the Health and Safety Code, no program regulating any dog shall be specific as to breed.” (§ 31683.)

The initial hearing in this process may be in “the superior court of the county in which the dog is owned or kept.” (§ 31621.) Or, as contemplated by section 31683’s authorization of local programs, “[a] city or county may establish an administrative hearing procedure to hear and dispose of petitions filed pursuant to this chapter.” (§ 31621.) The process contemplated by the Legislature includes the right to “appeal the decision of the court or hearing entity of original jurisdiction.” (§ 31622, subd. (a), italics added.) Nevertheless, the Legislature specified in section 31683 that local programs “may incorporate all, part, or none” of the Legislature’s provisions. If an appeal is authorized when the original administrative hearing “was before a hearing entity other than a court of the jurisdiction, appeal shall be to the superior court.” (§ 31622, subd. (a).) Appeals in cases first heard in the superior court are to a superior court judge “other than the judge who originally heard the petition.” (Ibid.)

Appeals authorized by the Legislature consist of “a hearing de novo, without a jury,” in which the superior court “make[s] its own determination as to potential danger and viciousness and [may] make other orders authorized by this chapter, based upon the evidence presented.” (§ 31622, subd. (b).) The preponderance of the evidence standard governs, and the court “may admit all relevant evidence, including incident reports and the affidavits of witnesses, limit the scope of discovery, and may shorten the time to produce records or witnesses.” (Ibid.) The appellate determination is final: “The determination of the court hearing the appeal shall be final and conclusive upon all parties.” (§ 31624.) If a dog is deemed vicious or potentially dangerous on appeal, the “time schedule to ensure compliance with this chapter” must be expedited, usually within no more than 30 days after the determination. (§ 31622, subd. (b).)

B. Analysis

We find no merit in Garcia’s two contentions that the state law appellate procedure described above did not apply to her. First, she relies on an inapplicable exception. Section 31609 specifies that the chapter regarding vicious dogs does not apply to dogs used by “any law enforcement officer in the performance of police work” (id., subd. (b)), nor generally “to licensed kennels, humane society shelters, animal control facilities, or veterinarians” (id., subd. (a), italics added).

The broad latter exception, which Garcia invokes, does not apply to her situation. Garcia argues that because OCAC performs animal control functions (see § 31606), the Legislature’s vicious dog provisions did not apply to Raider because he was confined to OCAC’s kennel. We disagree. The notion that legislation specifically designed to combat “the serious and widespread threat” posed by vicious dogs (§ 31601) is not applicable to a canine passing through an animal control facility contravenes the purpose of the enactment. In interpreting a statute, we must avoid constructions “‘that would produce absurd consequences, which we presume the Legislature did not intend.”’ (In re Greg F. (2012) 55 Cal.4th 393, 406.)

The exception identified in section 31609, subdivision (a), is by its terms applicable to certain enumerated facilities—not to individual animals or their owners. Statutes must be read in context, harmonizing their various parts. (In re Greg F., supra, 55 Cal.4th at p. 406.) The statutory scheme expressly applies to dog owners and their dogs, including the manner in which owners keep their dogs “on the owner’s property” (§ 31642), and other far-reaching restrictions and “conditions upon the ownership of the dog” (§ 31645), with penalties, depending upon the circumstances of each case, up to and including destruction of the dog. (Id., subd. (a)). These restrictions and potential penalties apply “even if the owner or keeper fails to appear” at a vicious dog hearing or on appeal (§ 31623). There is no contradiction in construing these provisions to apply to Garcia and Raider despite his brief stay at OCAC’s kennel. The exception on which Garcia relies does not apply to her since she is not an animal control facility or other enumerated entity.

Garcia’s alternative argument to evade the appeal procedure identified in section 31622 is likewise unconvincing. She contends that the county did not adopt the procedure, and therefore Fullerton did not either when it adopted the county’s vicious dog ordinance. We are not persuaded.

The county’s municipal code includes OCCO section 4-1-95, which is entitled, “Declaration and possession of [a] vicious or potentially dangerous dog.” This code section sets out a local administrative procedure, as authorized by the Legislature in section 31683, for finding that a dog qualifies as “vicious” or “potentially dangerous,” using definitions of those terms (see OCCO § 4-1-23) that mirror those adopted by the Legislature in sections 31602 and 31603. In light of this overlap, we find the manifest intent of the ordinance was to adopt, as authorized by the Legislature, a local “administrative hearing procedure to hear and dispose of petitions filed pursuant to this chapter.” (§ 31621.)

In other words, the local procedure is an analogue that substitutes for the initial judicial process provided by the Legislature for that same determination in the superior court. (§ 31621.) This initial administrative proceeding comports with the Legislature’s authorization of local programs adopted by a city or county “for the control of potentially dangerous or vicious dogs,” incorporating “all, part, or none of this chapter . . . .” (§ 31683.)

The ordinance provides for selection of a hearing officer “from among those individuals appointed by the County Executive Officer, or designee, for the purpose of conducting administrative hearings.” (OCCO § 4-1-95(d).) The ordinance also establishes general rules of procedure for the hearing, including that it “need not be conducted according to technical rules relating to evidence and witnesses.” (Ibid.) Instead, admissible evidence consists of “evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions.” (Ibid.)

Despite the ordinance’s relative detail concerning the initial administrative hearing to determine whether a dog is vicious or potentially dangerous—including time limits in which the hearing must occur and when the hearing officer must render his or her decision (OCCO § 4-1-95(d))—the ordinance does not expressly specify any manner of appeal.

Instead, it provides the following: “The Director shall have the discretion, in any event, to directly petition the court to seek a determination whether or not the dog in question should be declared potentially dangerous or vicious and, if applicable, whether the ownership or possession of any dog by the owner or custodian of the declared vicious dog would create a significant threat to the public health, safety or welfare.” (OCCO § 4-1-95(k).) The “Director” is defined by the ordinance as “the Health Officer of Orange County, his agents or deputies.” (OCCO § 4-1-5.)

The ordinance continues with language that provides insight into the enacting body’s intent regarding appeals: “The Director shall follow the procedures set forth in Food and Agriculture Code [s]ections 31621 and following for this purpose.” (OCCO § 4-1-95(k), italics added.)

Garcia does not dispute county counsel’s representation in her e-mail to Garcia’s attorney early in the proceedings that, in Fullerton and the county generally, “All vicious and potentially dangerous dog appeals in both jurisdictions are held pursuant to section 31622.” The county similarly represented below as its governing practice that Garcia’s right to appeal was to the superior court pursuant to sections 31621 and 31622. It thus appears to be undisputed that the county’s established practice was to extend the right to appeal in their own name to dog owners themselves, rather than to the Director.

We find no fault with this procedure. The ordinance implicitly authorized the Director to approve such appeals, by providing that “[t]he Director shall follow the procedures set forth in Food and Agriculture Code [s]ections 31621 and following for this purpose”—with that purpose being a final determination “whether or not the dog in question should be declared potentially dangerous or vicious . . . .” (OCCO § 4-1-95(k).) Section 31621 specifies that, consistent with section 31683’s authorization of hybrid procedures incorporating “all, part, or none of this chapter,” the underlying administrative hearing may originate in the “city or county,” rather than the superior court. Section 31622, in turn, similarly recognizes the underlying administrative hearing may have been “before a hearing entity other than a [superior] court of the jurisdiction” in which the dog owner resides, but the “de novo” appeal is nevertheless to the superior court. (§ 31622, subds. (a) & (b).)

Although not altogether clear, Garcia at oral argument seemed to suggest the county could not lawfully incorporate section 31622’s appellate procedure absent publication in a manner she claims did not occur here. She asserts that when enacting its vicious dog ordinance, the county was required to publish not only notice of a hearing on the proposed enactment of the ordinance, but also notice specifying any statute to be incorporated and the text of the statute. Garcia argues in her brief that because “Orange County has done none of this with regard to [any portion of] Food & Agric. Code § 31601, et seq.,” the County did not incorporate section 31622’s appellate process.

We disagree. Publication requirements apply to the local ordinance itself—not to publishing the code section or sections it adopts—when “the adoption” of the underlying code is “permitted as a condition of compliance with a state statute . . . .” (Gov. Code, § 50022.2.) Such is the case here where section 31683 expressly permits the incorporation in local law of “all, part, or none” of the Legislature’s framework for addressing vicious dogs—including adoption of the statutory appellate process. The code adoption may be “by reference” to the code in the ordinance (Gov. Code, § 50022.2). The county here complied with this procedure. (OCCO § 4-1-95(k).)

Notably, section 31622 authorizes such appeals by “the owner or keeper of the dog,” provided he or she “serve[s] . . . notice of the appeal upon the other party.” (Id., subd. (a).) In directing the Director to “follow the procedures set forth in . . . [s]ections 31621 and following” (OCCO § 4-1-95(k) (italics added)), the ordinance provides ample authority for the Director to authorize such appeals to the superior court by dog owners. Nothing in our record suggests the Director has not done so, nor does Garcia claim as much. The record is uncontradicted that this procedure is well established as the county’s uniform practice for all vicious or potentially dangerous dog appeals. Nothing the Legislature has enacted prevents this; to the contrary, it is fully within the hybridization of administrative and superior court proceedings contemplated by sections 31621, 31622, and 31683.

Under these circumstances there is no basis to overturn the trial court’s demurrer ruling. The trial court was correct in concluding that there was an adequate remedy at law for Garcia to obtain redress for her due process complaints about the original hearing procedure. That remedy was a de novo appeal authorized explicitly by the Legislature in section 31622 and implicitly in OCCO section 4-1-95(k).

Consequently, the trial court did not err in concluding that Garcia’s remedy was to pursue such an appeal in the superior court, rather than mandamus. A party seeking a writ of administrative mandamus (Code Civ. Proc., § 1094.5) is subject to the same “principles, requirements and limitations” that apply generally to mandamus. (Grant v. Board of Medical Examiners (1965) 232 Cal.App.2d 820, 826.) The petitioner therefore must establish he or she has no “plain, speedy, and adequate remedy . . . in the ordinary course of law.” (Code Civ. Proc., § 1086.) Given Garcia’s right to a de novo appeal in the superior court which she declined to exercise, she cannot meet her burden.

It follows therefore that, even assuming arguendo the trial court hearing Garcia’s mandamus petition erred in ordering her to reinstate her appeal after she chose to dismiss it, the fact that she earlier chose to dismiss the appeal with prejudice forecloses any possible relief by mandamus. We hasten to add that we do not here decide whether or not the trial court erred by ordering the reinstatement. The point is that the court’s demurrer ruling in the mandamus proceedings was correct. Res judicata—whether effectuated by the superior court’s resolution of Garcia’s reinstated appeal against her when she did not appear, or by her earlier dismissal of the appeal—constituted a binding decision against her. In either case, the superior court’s decision against Garcia—on appeal or by dismissal with prejudice at her request—was made in the venue afforded by law for review of the underlying administrative hearing, namely, a de novo appeal.

The trial court in the mandamus proceedings therefore properly sustained respondents’ demurrer without leave for Garcia to amend her petition.

DISPOSITION

The trial court’s demurrer ruling is affirmed. Respondents are entitled to their costs on appeal.

GOETHALS, J.

WE CONCUR:

FYBEL, ACTING P. J.

IKOLA, J.