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Mactagone v. Schindler2/24/2003
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Sophie (a bulldog) bit a cow, generating a $700 veterinary bill and two superior court lawsuits. This is an appeal from an order denying a SLAPP motion. (Code Civ. Proc., § 425.16, further section references are to this code.) We reverse with directions to grant the motion.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs (collectively Mactagone) and defendants (collectively Schindler) are neighbors. Schindler claimed Sophie attacked his cow and reported the incident to the Placer County Health and Human Services Department, Division of Environmental Health, Animal Control Section (Animal Control). As part of Animal Control's investigation, Schindler signed a form entitled "Order of Arrest by Private Persons" the handwritten portion of which states in part: "I witnessed [Sophie] chasing our cows," causing "three animals stamped across the muddy creek, all three fell, piling on each other[.] . . . The current bill is for 717.05, however the vet. informed us the two cows are pregn nt and could abort causing additional problems and expenses." A typed page adds that he checked the cows later that afternoon and found a nursing cow had "a large hole in her chest area . . . . When she fell she had [impaled] herself on an exposed root." A couple of days later, he invited the Mactagones to look at the cow and take pictures, which was done.
Animal Control filed an action against Mactagone, captioned "Affidavit for Summons to Show Cause why Dog Should not be Destroyed," but did not seek Sophie's destruction, only restitution of $717.05 and an order to "contain the dog in an enclosure from which it cannot escape or in which a child cannot enter," except while Sophie was on a leash.
"It is unlawful for any person to permit any dog . . . to run at large on any farm on which livestock or domestic fowls are kept, . . ." (Food & Agr. Code, § 30955.) "In an action for violation of Section 30955, the court may stay imposition of a sentence and order the defendant to compensate the owner of the farm in an amount equal to the cost of the damage done . . . . If the defendant refuses . . . the court shall impose the appropriate sentence. [ ] Acceptance by the owner of compensation under this section precludes that person from bringing an action under any other law for damages caused by the defendant's dog." (Id., § 30956.) Depending on the severity of the injuries to the animal, violation of these sections can result in a $50 fine or up to a $500 fine plus six months in jail. (Id., §§ 31401, 31402.)
At a contested hearing in which Mactagone was represented by counsel, Animal Control reiterated that it sought damages for Schindler and confinement of the bulldog. Referee John Ross found Sophie chased the cows, causing injury to one cow, but gave Mactagone 30 days to pay damages ($670.74), before imposing any sentence. Schindler is captioned on this order as "complainant;" Animal Control is the plaintiff.
Mactagone requested a hearing before a judge and retired Judge Wayne Wylie remanded the matter, and on remand, the referee dismissed the action. Mactagone's counsel filed a declaration setting forth his version of why the referee dismissed the action, but, as Schindler pointed out, there is no court order or transcript showing the reason.
Mactagone filed suit, claiming malicious prosecution and abuse of process
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