Opinion
B297096
05-28-2020
FRANCISCO MARTINEZ, Plaintiff and Appellant, v. CITY OF LOS ANGELES DEPARTMENT OF ANIMAL SERVICES, et al. Defendants and Respondents.
Law Office of Norma Ann Dawson, Norma Ann Dawson; Ryther Law Group and Jill Ryther for Plaintiff and Appellant. Thompson Gould Page for The Center for Animal Litigation, Inc. as Amicus Curiae on behalf of Plaintiff and Appellant. Michael N. Feuer, City Attorney, Kathleen A. Kenealy and Scott Marcus, Chief Assistant City Attorneys, Blithe S. Bock, Assistant City Attorney, and Jonathan H. Eisenman, Deputy City Attorney, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BS170967) APPEAL from a judgment of the Superior Court of Los Angeles County, Mary H. Strobel, Judge. Affirmed. Law Office of Norma Ann Dawson, Norma Ann Dawson; Ryther Law Group and Jill Ryther for Plaintiff and Appellant. Thompson Gould Page for The Center for Animal Litigation, Inc. as Amicus Curiae on behalf of Plaintiff and Appellant. Michael N. Feuer, City Attorney, Kathleen A. Kenealy and Scott Marcus, Chief Assistant City Attorneys, Blithe S. Bock, Assistant City Attorney, and Jonathan H. Eisenman, Deputy City Attorney, for Defendants and Respondents.
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Appellant Francisco Martinez's two dogs attacked and severely injured a United States Census worker after she rang Martinez's front doorbell and stood awaiting an answer. Following an administrative hearing, the City of Los Angeles Department of Animal Services (LADAS) determined that Martinez's dogs were dangerous and ordered that they be humanely euthanized. Martinez challenged that determination through a writ of administrative mandamus directed at LADAS and the City of Los Angeles (collectively, the City); the trial court denied writ relief and entered judgment in favor the City.
On appeal, Martinez contends LADAS denied him an opportunity to be heard, the City's dangerousness decision was not supported by substantial evidence, and the provisions of the Los Angeles Municipal Code (LAMC) governing dangerous animals are infirm. Amicus curiae, The Center for Animal Litigation, Inc., argues LADAS should be guided by Los Angeles County ordinance provisions and other authorities throughout the country that it contends provide more concrete guidance than the LAMC as to the meaning of provocation excusing or mitigating an animal attack. We find no merit in these contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
When an appellant challenges " 'the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence. [Citation.] Failure to do so amounts to waiver of the alleged error and we may presume that the record contains evidence to sustain every finding of fact. [Citation.]' [Citations.]" (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) Martinez's brief fails to comply with this principle, but we decline the City's invitation to treat his appeal as forfeited given the issues at stake and the brevity of the record.
During the summer of 2016, Bola Chin was employed by the United States Census Bureau as a temporary part-time enumerator. On June 11, 2016, she was assigned to enumerate Martinez's residence in the City of Los Angeles. The property has a wrought iron fence around the front yard, through which the front yard and house are clearly visible from the street. Chin scanned the property before entering and did not see any signs regarding dogs. She entered the front yard through an unlocked gate and rang the doorbell. As she awaited an answer, a German Shepherd and a Dachshund-shepherd mix appeared from the back yard and attacked her. Chin fell to the ground and was bit several times. Chin then stumbled out of the driveway and onto the street while the dogs continued to bite her. Neighbors overheard her screams and came to assist her. One of Martinez's neighbors called 911, and Chin was taken to the hospital by an ambulance.
Chin suffered from large lacerations on her left leg that required a total of eight stitches. She was also bitten and scratched in various areas of her body, including her right torso, right triceps, left shoulder, left shoulder-blade, the middle of her back, and the middle-top-right and bottom-left of her buttocks. She also suffered a bruise on her skull above her right earlobe. She was placed on full disability for two weeks. In addition to the emergency room visit, she attended 11 doctors' appointments as a result of the incident. Chin has permanent scarring from the attack.
B. Chin's Complaint to the LADAS
Chin filed a complaint with LADAS, which triggered an investigation. An investigator went to Martinez's house, but Martinez's girlfriend denied the investigator entry to the property. While there, the investigator photographed a dog-warning sign and observed that the German Shepherd barked at him "aggressively." Neither dog had a license, or proof of vaccination or spaying, and the investigator therefore issued citations in the amount of $600.
Martinez later spoke with the investigator by telephone and provided photographs of beware of dog signs, which Martinez claimed were posted at the time Chin was mauled. Martinez also told the investigator he had surveillance video of the incident that would establish the pedestrian gate was locked and that Chin entered through a closed driveway gate. Martinez told the investigator he would provide a copy of the video to him or the hearing examiner. On or about June 28, 2016, Martinez sent this video to the investigator; the investigator was unable to open the video, and thus unable to view it or confirm whether it showed what Martinez claimed.
C. The Administrative Hearing
On June 15, 2016, LADAS issued Martinez a notice to appear at an administrative hearing scheduled for June 29, 2016. That hearing did not take place. Over a year later, on August 28, 2017, LADAS mailed notice to Chin and Martinez of a hearing scheduled for September 11, 2017. Martinez did not appear at the hearing, and maintains he never received notice of it.
At the beginning of the hearing, the hearing examiner observed that Martinez was not present. After swearing in Chin, the hearing examiner asked Chin a number of questions and inquired whether she would like to read the statement that she filed with LADAS or summarize the incident in her own words. Chin asked whether she could read a revised statement (the substance of which is summarized above in section A), and the hearing examiner granted her permission to do so.
The administrative hearing was audio recorded and transcribed.
Chin provided color photographs of her injuries that were taken at the hospital to supplement the black and white photographs already in the administrative file. Chin also provided copies of medical records regarding her injuries. The hearing examiner reviewed the photographs and noted that "[t]here's a[n] injury to the left leg, calf area, some torn flesh, fatty tissue, muscle, open wound . . . . Another photograph showing the severity of injury to the right rear-shoulder of the canine puncture wounds . . . looks like the attempt to bite and the dragging of the teeth . . . ."
Chin also presented photographs of the front gates to Martinez's property. In reviewing these photographs, the hearing examiner asked, "Is this the gate you entered or was there a pedestrian gate?" Chin responded, "No, I entered on the . . . I'll show you. I entered through this one." The hearing examiner then stated, "Okay. So, the pedestrian gate." Chin replied, "Yeah." The hearing examiner asked again, "So, this gate is [the] one I'm showing." Chin responded, "It was like that. Yeah." Later, again referring to photos, the hearing examiner inquired, "And this is the pedestrian gate that you entered." Chin responded, "Yes."
Chin also testified that there was no "beware of dog" sign posted on June 11, 2016; when she returned to the property the following Monday after the attack, she did see a sign posted. She testified that if a sign had been posted on June 11, 2016, "I wouldn't have gone" into the yard.
D. LADAS Determines that Martinez's Dogs Are Dangerous
The LAMC provides that after an administrative hearing, LADAS may declare a dog to be dangerous "whenever it has bitten, attacked or caused injury to any human being or other animal." (LAMC, § 53.34.4(b).) The LAMC further provides that "[i]n making a determination that a dog or other animal is or is not dangerous, evidence of the following shall be considered:
All unspecified statutory references are to the Los Angeles Municipal Code.
"1. Any previous history of the dog or other animal attacking, biting or causing injury to a human being or other animal;
"2. The nature and extent of injuries inflicted and the number of victims involved;
"3. The place where the bite, attack or injury occurred;
"4. The presence or absence of any provocation for the bite, attack or injury;
"5. The extent to which property has been damaged or destroyed;
"6. Whether the dog or other animal exhibits any characteristics of being trained for fighting or attack or other evidence to show such training or fighting;
"7. Whether the dog or other animal exhibits characteristics of aggressive or unpredictable temperament or behavior in the presence of human beings or dogs or other animals;
"8. Whether the dog or other animal can be effectively trained or retrained to change its temperament or behavior;
"9. The manner in which the dog or other animal had been maintained by [its] owner or custodian;
"10. Any other relevant evidence concerning the maintenance of the dog or other animal;
"11. Any other relevant evidence regarding the ability of the owner or custodian, or [LADAS], to protect the public safety in the future if the dog or other animal is permitted to remain in the City." (§ 53.34.4(c).)
Following the hearing at issue here, the examiner issued a report and recommendation to the general manager of LADAS. The hearing examiner recommended "[a]fter careful review of [s]ection [ ]53.34.4(c), the preponderance of evidence and direct testimony," that Martinez's dogs be declared "Dangerous Animals for the following reasons: severity of injury to a human, disregard for public safety, unprovoked attack, [and] non-responsive dog owners who failed to appear as summoned." The hearing examiner also recommended that Martinez not own any dog within the City for three years.
In reaching these recommendations, the hearing examiner enumerated his factual findings pursuant to section 53.34.4 as follows: "# 2 - The nature of extent of injuries inflicted and the number of victims involved (victim severely mauled on her legs, arms, shoulder, hip/waist area and buttocks), # 3 - The place where the bite, attack or injury occurred (victim was working when she was attacked on the front yard of the dog owners property), # 4 - The presence or absence of any provocation for the bite, attack or injury (there was no evidence to prove that the attack was provoked), # 7 - Whether the dog exhibited characteristics of aggressive or unpredictable temperament or behavior in the presence of humans or other animals (the dogs unpredictable temperament was demonstrated as the victim entered the unsecured front gate and she was attacked without warning), # 9 - The manner in which the dog had been maintained by its owner or custodian (the dogs had access to the front yard and the gate was not secured and no warning dog signs were posted), #11 - Any other relevant evidence regarding the ability of the owner or custodian, or [LADAS], to protect the public safety in the future if the dog is permitted to remain in the City (1. The dog owners disregarded public safety, 2. The dog owners failed to appear as summoned, 3. The dogs caused severe and traumatic injuries to a person)."
On September 15, 2017, the general manager issued a determination that Martinez's dogs were dangerous. Because "[p]ursuant to section 53.34.4(d) LAMC, it is unlawful for any person to own or possess any dog declared dangerous by [LADAS] after a hearing," the general manager ordered that Martinez deliver his dogs to LADAS for impoundment and humane euthanasia, and that Martinez be prohibited from owning a dog for three years. The determination also stated that because Martinez failed to appear for the administrative hearing, under section 53.18.5(q), he forfeited his right to an administrative appeal, but could seek judicial review of the City's decision via a writ of mandate to the superior court.
Following receipt of the determination, Martinez delivered his dogs to LADAS, where they remain impounded.
The trial court stayed the dogs' euthanasia pending the trial court's judgment, and thereafter granted Martinez's application to stay euthanasia pending appeal.
E. Martinez's Petition for Writ of Administrative Mandamus
Martinez thereafter timely filed a petition for writ of administrative mandamus with the trial court. Martinez argued he was denied due process because he was not provided the required written notice of the hearing, and that section 53.34.4 was unconstitutional because it did not specify what steps must be taken if the dog owner fails to appear at the administrative hearing. Martinez also argued the City abused its discretion in finding the dogs dangerous because that determination was not supported by substantial evidence. In particular, Martinez claimed that Chin trespassed onto his property, and perjured herself when she testified that she entered his property through a "pedestrian gate" and that there were no "[b]eware of [d]og" signs posted. Martinez finally contended that because Chin trespassed, Los Angeles County Code of Ordinances (LACCO) section 10.37.170(A) precluded the City from concluding his dogs were dangerous or ordering their euthanasia.
In conjunction with his writ petition, Martinez initially filed an incomplete administrative record that lacked, for example, the hearing examiner's report and recommendation and LADAS's final determination. After the City pointed out the record was incomplete, Martinez lodged a corrected verified administrative record, including the hearing examiner's report and recommendation, LADAS's final determination, and a copy of the notice of the September 11, 2017 hearing and proof of service of that notice.
Following the arguments of counsel, the trial court denied Martinez's petition in a thorough and well-reasoned ruling. The trial court held that Martinez was provided an opportunity to be heard prior to the decision to euthanize his dogs, and that his arguments that section 53.34.4 failed to provide due process were either insufficiently developed or meritless.
The court further found "[t]he dangerous animal determination is supported by substantial evidence." The trial court held there was no evidence that Chin perjured herself, and "even if there is some conflicting evidence as to whether or not dog warning signs were posted in the front yard . . . , the record does not contain evidence that would compel a finding that Chin trespassed." As to the surveillance video, the trial court found the video was not part of the certified administrative record. Further, "even if the video were part of the record, the video generally corroborates Chin's testimony and [LADAS]'s dangerous animal determination. While Chin apparently entered through the unlocked driveway gate, [Martinez] does not explain why such conduct would constitute trespass. The gate was clearly unlocked in the video. No dog warning signs [were] visible." The trial court also ruled LACCO section 10.37.170(A) was not applicable, and even if it were, "there is substantial evidence that Chin was not willfully trespassing at the time of the attack (i.e., there were no visible dog warning signs, and she entered an unlocked gate)."
The trial court entered judgment on May 8, 2019. This appeal followed.
Martinez filed a notice of appeal seeking review of the trial court's April 11, 2019 minute order before the trial court entered judgment. California Rules of Court, rule 8.104(d) states that "[a] notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment" and permits an appellate court to "treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment." (Id., rule 8.104(d)(1) & (2); see Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1189.) Thus, we treat this appeal as one from the trial court's judgment.
DISCUSSION
A. Standard of Review
"Where, as here, it is claimed that a public agency abused its discretion because its findings are not supported by the evidence, a superior court's review of an agency's adjudicatory administrative decision under Code of Civil Procedure section 1094.5 is subject to two possible standards depending on the nature of the rights involved. [Citation.] If the administrative decision involved or substantially affected a 'fundamental vested right,' the superior court exercises its independent judgment upon the evidence disclosed in a limited trial de novo in which the court must examine the administrative record for errors of law and exercise its independent judgment upon the evidence. [Citations.] The theory behind this kind of review is that abrogation of a fundamental vested right 'is too important to the individual to relegate it to exclusive administrative extinction.' [Citation.]
"Where no fundamental vested right is involved, the superior court's review is limited to examining the administrative record to determine whether the adjudicatory decision and its findings are supported by substantial evidence in light of the whole record. [Citation.] Substantial evidence, of course, must be ' "of ponderable legal significance," ' which is reasonable in nature, credible and of solid value. [Citations.]" (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1056-1057, fns. omitted.)
Martinez urges us, as he urged the trial court, to find a fundamental vested right is at issue. As the trial court correctly noted, courts have held that ownership of dogs does not implicate a fundamental right. (Zuniga v. County of San Mateo Dept. of Health Services (1990) 218 Cal.App.3d 1521, 1530-1531; see also People v. Olguin (2008) 45 Cal.4th 375, 385, fn. 3 [collecting cases finding that ownership of dogs does not implicate a fundamental constitutional right].)
Accordingly, our "function is identical to that of the trial court. [We] review[ ] the administrative record to determine whether the agency's findings were supported by substantial evidence, resolving all conflicts in the evidence and drawing all inferences in support of them. [Citations.] [¶] If the administrative findings are supported by substantial evidence, the next question is one of law—whether those findings support the agency's legal conclusions or its ultimate determination. [Citation.] If the administrative record reveals the theory upon which the agency has arrived at its ultimate decision, the decision should be upheld so long as the agency found those facts that as a matter of law are essential to sustain the decision. [Citation.]" (JKH Enterprises, Inc. v. Department of Industrial Relations, supra, 142 Cal.App.4th at pp. 1058-1059, fn. omitted.)
If the trial court is argued to have erroneously refused to augment the administrative record with additional evidence, its decision to refuse augmentation is reviewed for an abuse of discretion. (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.)
B. The City Provided Adequate Notice of the Administrative Hearing
Martinez argues the City did not provide him adequate notice of the September 11, 2017 administrative hearing, and thereby denied him an opportunity to be heard. In Phillips v. San Luis Obispo County Dept. etc. Regulation (1986) 183 Cal.App.3d 372, the Court of Appeal held that "an ordinance permitting the county to destroy a dog without a noticed hearing to the dog owner who requests one is constitutionally infirm." (Id. at p. 374.) Consistent with this principle, the LAMC requires that LADAS serve written notice of the administrative hearing at least 10 days in advance. (§ 53.18.5(c).) Service of the notice may be accomplished by United States mail and is deemed complete at the time of the mailing. (§ 11(i).)
The administrative record includes a copy of the September 11, 2017 hearing notice and a related proof of service, dated August 28, 2017. Martinez does not dispute his address is correctly listed, or that he received other notifications sent to that address. Accordingly, there is a presumption of valid service. (See Evid. Code, § 641 ["A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail"].) Given that our review for substantial evidence, we must infer that Martinez received the notice at issue.
We reject Martinez's insinuation that the proof of service was created after the fact. Martinez asserts that it was only after he claimed lack of notice that LADAS delivered a revised administrative record that included the proof of service showing the September 11, 2017 hearing was mailed to him on August 28, 2017. This ignores that the initial copy of the administrative record on which Martinez relies was limited to only those documents in the City's possession prior to July 15, 2016 and indisputably incomplete. The updated administrative record that Martinez later procured included additional documents, including those generated after July 15, 2016, such as a copy of the September 11, 2017 hearing notice and proof of service.
Martinez also suggests that section 53.18.5(q)(3) is facially unconstitutional because it permits the City to issue a dog destruction order without providing the owner an opportunity to be heard. This section, however, applies not to the initial hearing but to administrative appeals. Section 53.18.5(q)(3) prohibits an administrative appeal if the owner does not appear at the noticed administrative hearing; it does not permit an initial hearing absent notice to the owner. Nor does section 53.18.5(q)(3) impact the ability of the dog owner to challenge a determination by LADAS by writ of administrative mandate in the trial court, followed by an appeal to this court, as Martinez has done.
Martinez also suggests other due process infirmities without developing any argument in support of them. For example, he cites Carrera v. Bertaini (1976) 63 Cal.App.3d 721, 729 for the proposition that an animal control officer's confiscation of animals found wandering at large was illegal because "the county failed to provide a speedy post-deprivation hearing" (italics omitted), but says nothing more on this issue. Putting aside that Carrera is inapposite because Martinez remained in possession of his dogs until after LADAS issued its determination, Martinez has waived such arguments by his failure to develop them. (See Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862-863.)
C. Substantial Evidence Supports LADAS's Administrative Determination
Martinez challenges the evidence supporting LADAS's administrative determination on several grounds. He first claims the City had the burden to "establish" that each of the 11 factors listed in section 53.34.4 weighed in favor of a finding of dangerousness, and failed to do so. Martinez cites no authority for this proposition, nor does the plain language of section 53.34.4 warrant such an interpretation. Section 53.34.4(c) states only that "evidence of the following [11 factors] shall be considered." (Italics added.) The report and recommendation reviewed the relevant law, Chin's testimony, photographs in the record, and set forth an analysis of six applicable factors under section 53.34.4(c) that weighed in favor of finding Martinez's dogs were dangerous. More was not required. (See, e.g., Zuniga v. County of San Mateo Dept. of Health Services, supra, 218 Cal.App.3d at p. 1530 ["Findings need not be formal but should serve to inform a reviewing court as to the basis for depriving appellant of ownership rights. In light of the lack of complexity of the issues involved, we conclude that the finding of dangerousness made in the hearing officer's written opinion was sufficient to 'bridge the analytic gap between the raw evidence and ultimate decision or order' "].)
Martinez also summarily asserts section 53.34.4 is unconstitutional because it does not contain "standards setting out the conditions for destruction" and permits the City to render arbitrary and capricious decisions. "Mere suggestions of error without supporting argument or authority other than general abstract principles do not properly present grounds for appellate review." (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078.) In any event, section 53.34.4 is far from standardless. It requires that LADAS must first find, after consideration of competent evidence relating to 11 detailed and specified factors, that the dog is dangerous before ordering humane euthanasia. (§ 53.34.4(b), (c).)
Martinez next argues LADAS erred by ignoring his video evidence and photographs, which he contends establish not only that Chin willfully trespassed and thereby provoked his dogs to attack her, but also that she perjured herself because she claimed she walked through a pedestrian gate and that there were no dog warning signs posted.
Regardless of what the video showed, Chin's testimony that she entered through an unlocked gate and approached the front door was itself substantial evidence that she did not trespass. (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1144 ["the uncorroborated testimony of a single witness may constitute substantial evidence"].) The law provides an implied license to approach a home by the front path, knock promptly, and wait briefly to be received. (Florida v. Jardines (2013) 569 U.S. 1, 8 [133 S.Ct. 1409, 185 L.Ed.2d 495].) This is exactly what Chin did. While that implied license may be revoked, courts have found that a fence or no trespassing signs alone are not sufficient to revoke that license. (See State v. McIntyre (1993) 123 Ore.App. 436, 440-441 [finding house surrounded by tall fence with metal driveway gate insufficient to conclude homeowner intended to exclude visitors]; State v. Rogoulot (Idaho App. 1992) 846 P.2d 918, 923 [" 'No Trespassing' " signs "cannot reasonably be interpreted to exclude normal, legitimate, inquiries or visits by mail carriers, newspaper deliverers, census takers, neighbors, friends, [and] utility workers"].) Even if the curtilage of Martinez's property was surrounded by a wrought iron fence, the pedestrian gate was locked, and his driveway gate unlocked, but closed, such obstacles did not mandate that LADAS find Martinez revoked the implied license to a census enumerator such as Chin, who had proper reason to knock on Martinez's front door. (See, e.g., U.S. v. Holmes (M.D.Fla. 2015) 143 F.Supp.3d 1252, 1266 [finding fence with unlocked gate, no trespassing and beware of dog signs, lack of knocker or doorbell, and other physical obstructions to front door did not revoke implied license of police conducting a knock and talk].)
Martinez claims Penal Code section 602.8, subdivision (a), establishes that a person who enters an enclosed area without written permission of the owner is a trespasser. Citing Edgerly v. City and County of San Francisco (9th Cir. 2010) 599 F.3d 946, 955, footnote 13, the City argues courts have questioned whether the Legislature intended for Penal Code section 602.8 to apply to non-rural areas. We need not resolve that issue, because even if it were applicable, Penal Code section 602.8, subdivision (c)(2), exempts "[a]ny person on the premises who is engaging in activities protected by the California or United States Constitution." Chin, as a census enumerator, was at Martinez's front door pursuant to her duties under the United States Constitution, and thus exempt. (See, e.g., U.S. Const. art. I, § 2, cl. 3.)
Penal Code section 602.8 states that "[a]ny person who without the written permission of the landowner . . . willfully enters any lands under cultivation or enclosed by fence, belonging to, or occupied by, another, or who willfully enters upon uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering the lands, is guilty of a public offense." (Id., subd. (a).)
Martinez's reliance on Civil Code section 3342 is similarly misplaced. Civil Code section 3342 permits a dog-bite victim to hold the owner liable for compensatory damages if the victim was lawfully on private property. Compensatory damages are not at issue here, and thus this section is inapplicable. Further, Civil Code section 3342 describes a person as lawfully upon private property when she is there "in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner." (Id., subd. (a), italics added.) Once again, as a census enumerator, Chin was on Martinez's property in the performance of her federal duties.
As to any dog warning signs, LADAS was entitled to credit Chin's testimony that no signs were posted on the day of the attack. There is no evidence that LADAS failed to consider photographs in the record that showed beware of dog, no trespassing and private property signs posted. That Martinez provided, and the investigator took, photographs days after the incident showing posted signs does not refute Chin's testimony that no signs were visible the day she was attacked.
We come now to Martinez's claim that his surveillance video proves Chin was trespassing and that warning signs were posted on the day of the attack. We need not determine whether the refusal to consider the video was error, because any such error was harmless. While the video was not part of the administrative record, the trial court nevertheless reviewed it and stated that even if the video had been considered it was largely consistent with Chin's testimony. Having granted Martinez's request for judicial notice and reviewed the video ourselves, we agree. The video shows Chin entering the front yard through an unlocked gate. It also confirms there were no visible signs posted, and that the photographs taken at some point after the attack did not accurately represent the lack of signage on the day of the attack. Any failure to consider the video was therefore harmless.
While Martinez makes much of the video showing Chin entering through the driveway gate, instead of what he terms the pedestrian gate, that difference is inconsequential. First, there is no dispute Chin entered through an unlocked gate in the front yard; whether it was one gate or the other was immaterial. Second, the video does not show that Chin willfully gave false testimony. In referring to photographs, the hearing examiner asked "Is this the gate you entered or was there a pedestrian gate?" Chin replied, "No, I entered on the . . . I'll show you. I entered through this one." The record does not reflect what Chin was pointing to when she said, "this one." Whatever it was, the hearing officer thereafter referred to it as a pedestrian gate and Chin replied, "Yeah." The record also does not reflect what the hearing officer was later pointing to when he asked "And this is the pedestrian gate that you entered?"
Martinez claims it was error for LADAS to consider Chin's medical records because they were not authenticated by a custodian of records, and therefore constituted hearsay. Government Code section 11513, however, provides that an administrative hearing "need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort 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 the evidence over objection in civil actions." (Id., subd. (c).) Our Supreme Court held, for example, an unsigned police report was admissible at an administrative hearing because it was the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. (See MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158-159.) Chin's own medical records were similarly appropriately considered by the hearing examiner as corroborating Chin's firsthand testimony under oath about the injuries she suffered.
Martinez finally asserts that the hearing examiner was biased, asked leading questions, and improperly permitted Chin to read a revised statement into the record. The record does not reflect any evidence that the hearing examiner was biased. (Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568, 582 ["our Supreme Court requires a party seeking to show bias or prejudice on the part of an administrative decisionmaker to prove the same with concrete facts"].) Nor has Martinez sufficiently developed an argument that the hearing examiner could not ask leading questions or permit Chin to read her revised statement into the record. "[L]eading questions are not always impermissible on direct examination" (People v. Harris (2008) 43 Cal.4th 1269, 1285), and Martinez fails to explain any injustice resulting from the allegedly leading questions. As for Chin's revised statement, it was provided under oath and was generally consistent with the one she provided shortly after the event; it was therefore properly considered.
D. Martinez's Arguments that Section 53.34.4 is Preempted Are Meritless
Martinez lastly argues that his administrative writ of mandate should have been granted because section 53.34.4 is preempted by other ordinances or statutes. In particular, Martinez claims Food and Agricultural Code section 31645 and Civil Code section 3342.5 conflict with and therefore preempt section 53.34.4. Amici argues that LADAS should have been guided by a provision of the LACCO and authorities from other jurisdictions along with section 53.34.4 in determining whether Martinez's dogs were provoked to bite. We reject these arguments.
Amici's brief also argued the LACCO should control over the LAMC. At oral argument, amici withdrew that position.
Food and Agricultural Code section 31645 provides "A dog determined to be a vicious dog may be destroyed by the animal control department when it is found, after proceedings conducted . . . that the release of the dog would create a significant threat to the public health, safety, and welfare. [¶] . . . If it is determined that a dog found to be vicious shall not be destroyed, the judicial authority shall impose conditions upon the ownership of the dog that protect the public health, safety, and welfare." (Food & Agr. Code, § 31645, subds. (a), (b).) Martinez appears to suggest that Food and Agricultural Code section 31645 conflicts with section 53.34.4 because Food and Agricultural Code section 31645 permits, but does not require as does section 53.34.4, the destruction of a vicious dog who is a threat to public safety. However, Food and Agricultural Code section 31683 evidences the Legislature's intent not to preempt city codes regulating dangerous dogs, including those that are more restrictive in controlling dangerous dogs: "Nothing in this chapter [Chapter 9, wherein Food and Agricultural Code section 31645 is contained] 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." (Food & Agr. Code, § 31683, italics added.)
Martinez also argues that Civil Code section 3342.5 conflicts with and therefore preempts section 53.34.4. He argues that Civil Code section 3342.5 requires that before destruction of a dog may be considered, the dog must have bitten a person on at least two separate occasions and even then, euthanasia may be ordered only if necessary. Martinez ignores, however, that Civil Code section 3342.5, subdivision (e), states that "Nothing in this section shall be construed to prevent legislation in the field of dog control by any city, county, or city and county." Given that Civil Code section 3342.5 expressly provides for the municipal code provision enforced here by LADAS, Martinez's argument fails.
We also decline Martinez's request to consider the dog attack under the general doctrine of public nuisance. Here, a specific, valid municipal statutory scheme governs the control of dangerous animals within the City's limits, and Martinez develops no argument supported by appropriate legal authority that common law should govern instead of that statutory scheme.
Amici contend that in analyzing whether Chin provoked the dogs to attack, LADAS should have looked to LACCO section 10.37.170(A) and standards articulated in decisions such as Kirkham v. Will (2000) 311 Ill.App.3d 787, 788 as a supplement to section 53.34.4(c)(4)'s provisions regarding provocation. Martinez argued the applicability of LACCO section 10.37.170(A) in the trial court, but did not raise it on appeal. "As a general rule, issues not raised by the appealing parties may not be considered if raised for the first time by amici curiae." (Interinsurance Exchange v. Spectrum Investment Corp (1989) 209 Cal.App.3d 1243, 1258.) Although we need not consider it, we find amici's contention meritless. (Id. at p. 1259.) Nothing in the record suggests LADAS did not consider whether Chin was a trespasser in weighing whether Chin provoked the dogs to bite under section 53.34.4(c)(4). As we concluded above, Chin did not trespass, nor is there any evidence that she otherwise provoked either dog to attack her.
LACCO section 10.37.170(A) states that the dog may not be found to be dangerous if the person who was injured "was committing a willful trespass or other tort upon premises occupied by the owner or custodian of the dog, or was teasing, tormenting, abusing, or assaulting the dog, or was committing or attempting to commit a crime." (Ibid.) Kirkham held that "it is the reasonableness of the dog's response to the action in question that . . . determines whether provocation exists." (Kirkham v. Will, supra, 311 Ill.App.3d at p. 791.)
DISPOSITION
The judgment is affirmed. The City is to recover its costs on appeal.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
CHANEY, J.
BENDIX, Acting P. J.