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Cervantes v. City of Los Angeles3/12/2003
d should be destroyed. (Food & Agr. Code, ยง 31621.) Thus, hearings are not requested in every case when an animal is impounded by the animal control officer as dangerous.
Second, the purpose of the lawmakers in enacting this section was to protect the due process rights of the impounded animal's owner, not protect the public. That a hearing under Los Angeles Municipal Code section 53.34.4 may result in the destruction of a dangerous animal and thereby confer a benefit on the public is incidental to the ordinance's purpose. Under Los Angeles Municipal Code section 53.34.2, animal control officers are authorized to summarily detain an animal where there is evidence the animal has attacked a person or other animal. The Department has seven days after the impound to determine whether to notice a dangerous dog hearing. If no hearing is noticed within that time, the impounded animal must be returned to the owner. Before the animal may be destroyed, notice and an opportunity to be heard must be afforded the owner. The owner may appeal a decision declaring an animal dangerous. In light of the purpose of Los Angeles Municipal Code section 53.34.4, the term "shall" does not create a mandatory duty to hold a hearing every time a dog is impounded pursuant to Los Angeles Municipal Code section 53.34.2, before a determination is made that the animal is not dangerous and can be released to the owner. A hearing is not required unless the Department believes the animal is dangerous and should be destroyed. Protection of the owner's interests does not require a hearing if the Department is going to release the animal to the owner. Since the purpose of the enactment is to prevent the destruction of animals without due process to the owner, Cervantes's injury is not one of the consequences the lawmakers sought to prevent through the enactment of Los Angeles Municipal Code section 53.34.4.
Third, it would make no sense to require the Department to hold a hearing in cases where the Department, after further consideration or review of additional information, decides the animals can be safely released to the owner.
Food and Agricultural Code section 31621 also does not create a mandatory duty. Like Los Angeles Municipal Code section 53.34.4, Food and Agricultural Code section 31621 is concerned with the rights of the owner of the animal. Food and Agricultural Code section 31621 establishes procedures to safeguard the owner's right to notice and an opportunity to be heard before the animal is declared dangerous and destroyed. Moreover, the holding of the dangerous dog hearing under Food and Agricultural Code section 31621 involves an exercise of discretion. The hearing is held only if the animal control officer determines there is probable cause to believe the dog is potentially dangerous.
Vicarious Liability
It is not clear whether plaintiffs contend the City is vicariously liable for the negligence of Officers Maldonado and Vail in failing to impound the dogs as dangerous animals and releasing the dogs to Curry without requesting a hearing. In the reply brief, plaintiffs contend: "Once they exercised their ministerial or operative discretion to impound the dogs, they became obligated to follow their own procedures and are responsible for the negligent conduct of employees which caused the improper release of these dangerous animals." Further, plaintiffs contend Officers Maldonado and Vail are not immune under Government Code section 820.2 for the negligent discharge of their operational duties. Plaintiffs did not make these contentions in the opening brief. Matters raised for the first time in a reply brief are waived. Moreover, plaintiffs did not allege the vicarious liabili
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