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"Shall" is not always mandatory language; LA County not required to capture pit bulls because whether "hazard" is discretionary decision under immunity statute

October 5, 2012
By Justice Steven Vartabedian (Ret.) on October 5, 2012 6:00 AM |

Beware.pngCalifornia Government Code section 815.6 exempts a public entity from immunity if it has failed to discharge a statutory "mandatory duty" designed to protect from injury. Los Angeles County Code (LACC section 10.12.090C states that the county animal care and control department "shall capture and take into custody . . . [a]ny animal being kept or maintained contrary to [LACC sect. 10.40.010W]." That section states, "No animal shall be allowed to constitute a hazard or be a menace to the health, peace or safety of the community."

In County of Los Angeles v. Superior Court (Faten) (filed September 5, 2012, certified for publication on Sept. 20) 2012 DJDAR 13264, minor Kameron Faten and his two bothers were walking home from school when two pit bulls jumped over the fence of John Boles' residence and viciously attacked Kameron. The boys' parents sued on their behalf for personal injury and emotional distress, naming Bowles, his landlord and the County of Los Angeles.

The County moved for summary judgment in the Superior Court, claiming the above-cited portions of the county ordinance were merely discretionary or permissive, thus it was immune and owed no duty.

The evidence reflected that on one occasion, a pit bull running loose in the neighborhood was seized and eventually euthanized, but not identified with any residence or owner. The County had received 9 previous telephone calls about the many pit bulls that had been at the Bowles' residence during the past two-and-a-half years before the attack on Cameron. Pit bulls at the residence were reported to have jumped the fence, to have run loose and chase people. However, County animal control officer were unable to find any dogs of the Boles to be running loose. Officers had gone to the residence and posted notices, finding no responsible person home except on one occasion. The one time contact was made with a member of the Boles family occurred three months before the Faten incident when an identified neighbor reported that two pit bulls had jumped the Boles' fence and killed two of her goats in her yard. Officers gave written notice at that time that the Boles could keep no more than 3 dogs.

The trial court denied the motion for summary judgment. The County petitioned for a writ of mandate to direct the trial court to vacate its order and instead grant defendant County summary judgment. As discussed in previous blogs, equitable writ relief is typically very difficult to obtain where the court proceedings will be ongoing and the seeking party has an opportunity to prevail in those further proceedings. But much like the case in the recent Touchstone case (see blog of August 23, 2012), the appellate court here felt the result was obvious and stepped in to manage the result.

The Court of Appeal, Second Appellate District, Division Eight, granted the petition and directed that the trial court grant the County's motion for summary judgment. It found as a matter of law that the County was immune because "what constitutes a 'hazard' or 'menace to health, peace or safety of the community' is an inherently subjective question which requires the exercise of considerable discretion."

I have always viewed a finding as a "matter of law" to mean that the result is either based on uncontested facts or the determination of any questions of fact would not matter because they are immaterial to the legal result. Whether the County knew of a public hazard in the form of pit bulls kept by the Boles certainly seems to be a material factual issue. Would not the County's responsibility have become "mandatory" if the facts were that the County knew that the very same pit bulls had previously seriously injured other persons? It just seems the County's duty is fact-intensive rather than a question of law, thus warranting a trial on the merits.


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