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Cervantes v. City of Los Angeles3/12/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this personal injury action arising out of an attack by two pit bull dogs, plaintiffs and appellants Asencion Cervantes and his employer, Valley Crest Tree Company, appeal from the summary judgment in favor of defendant and respondent City of Los Angeles. We conclude the City had no mandatory duty to hold a dangerous animal hearing as a result of a prior incident involving the same dogs. We affirm.
FACTS AND PROCEDURAL BACKGROUND
On February 16, 2000, Cervantes was attacked by two pit bull dogs when he arrived for work at Valley Crest in Sylmar. The dogs had previously been impounded by the City's Department of Animal Regulation on November 18, 1999, after it had been reported they had escaped from their owner's property and attacked a neighbor's potbelly pig. The animal control officer who investigated the report determined the dogs were not dangerous, but no owner was present to take the dogs, so he impounded the dogs. On November 23, 1999, the owner sought release of the dogs, and the dogs were returned to the owner. No hearing was held to determine whether the dogs were dangerous and should be destroyed.
Allegations of the Complaint
The allegations of the complaint against the City are as follows. On February 16, 2000, while in the course of his employment by Valley Crest, Cervantes was attacked by two pit bull dogs. The City was responsible for the attack. The City had impounded the dogs on November 18, 1999, and then negligently released them to the owner, knowing that the dogs had previously escaped from their owner's property and caused damages to persons and property, and were vicious. This special knowledge created a duty not to release the dogs from impound without first holding a dangerous animal investigation and determining the adequacy of the housing and control of the dogs, as authorized by Food and Agricultural Code section 31601 et seq. and Los Angeles Municipal Code section 53.34 et seq. As a result of the City returning the dogs to the owners, the dogs again escaped and attacked Cervantes, resulting in injuries to Cervantes. The City's failure to hold a potentially dangerous dog hearing when the dogs were initially impounded was a violation of Food and Agricultural Code section 36121 and public policy as set forth in Food and Agricultural Code section 31601 and provisions of Los Angeles Municipal Code section 53.34 et seq. This stated public policy and specific statute imposed on the City a special duty to protect the public from potentially dangerous dogs and thereby prevented the City from any claimed discretionary act or other immunities. Immediately following the attack on Cervantes, the City impounded the dogs. A potentially dangerous dog hearing was held. After the conclusion of the hearing and appeal process, the dogs were destroyed.
Motion for Summary Judgment
The City moved for summary judgment on the following grounds: the City did not breach a mandatory duty imposed by statute; statutes or enactments not specifically identified in the complaint cannot be asserted; breach of a mandatory duty cannot be based on internal department guidelines; and the City's release of the dogs was not the legal cause of the injuries.
The City's motion for summary judgment was supported by: declarations of Rey Maldonado, the Department's animal contr
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