Judge Mark E. Windham, Case Number: 24STCP02749, Date: 2024-09-13 Tentative Ruling

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Inland Valley Humane Society v. Noriega, et al.

PETITION TO DETERMINE IF DOG IS VICIOUS

Petitioner Inland Valley Humane Society, on behalf of City of Pomona (“Petitioner”) filed the instant Petition to Declare Dog Vicious against Respondent Martin Noriega (“Respondent”) on August 26, 2024. No response to the Petition has been filed to date.

Petitioner moves to declare a dog owned or kept by Respondent a vicious dog pursuant to Cal. Food & Agriculture Code section 31600, et seq. A hearing on such a petition must be held promptly within no less than five working days nor more than 10 working days after service of the Petition and notice upon the owner or keeper of the dog. (Cal. Food & Agric. Code, § 31621.) “The owner or keeper of the dog shall be served with notice of the hearing and a copy of the petition, either personally or by first-class mail with return receipt requested.” (Cal. Food & Agric. Code, § 31621.) Petitioner filed proof of service of the Petition and Notice of Hearing by certified mail with Return Receipt Requested on August 28, 2024.

At the hearing on the Petition, the Court may admit into evidence all relevant evidence, including incident reports and the affidavits of witnesses. (Cal. Food & Agric. Code, § 31621.) A finding that the dog is potentially dangerous or vicious must be made upon a preponderance of the evidence. (Cal. Food & Agric. Code, § 31621.)

(a) Any dog that, when unprovoked, in an aggressive manner, inflicts severe injury on or kills a human being.

(b) Any dog previously determined to be and currently listed as a potentially dangerous dog that, after its owner or keeper has been notified of this determination, continues the behavior described in Section 31602 or is maintained in violation of Section 31641, 31642, or 31643.

The Petition is supported by the declaration of Animal Control Officer, Stephanie Aldaco (“Aldaco”), who makes the following statement. Petitioner’s dispatch received a call on July 7, 2023, from Respondent, stating that his dog, Quimbo, bit his neighbor’s boyfriend, Joe Gonzales (“Gonzales”). (Pet., Aldaco Decl., ¶4.) Respondent also stated that Gonzales was transported to a local hospital by first responders. (Ibid.) On July 8, 2023, Gonzales came to Petitioner and asked to make a statement about the dog bite incident. (Id. at ¶5.) Gonzales said he had been bitten by Quimbo at approximately 7:00 p.m. on July 6, 2023. (Ibid.) At the time of the incident, Gonzales was in the yard of his girlfriend’s mother, Jamie Butler, when he saw two dogs chained up in the neighbor’s front yard. (Id. at ¶5.) One of the dogs broke free and charged at Gonzales, biting him on the left buttock and right arm. (Ibid.) The attack caused several bite marks, puncture wounds, bruising and lacerations requiring five sutures. (Ibid.) The injuries are documented in Gonzales’ medical records. (Id. at Exh. B.) On July 10, 2023, Respondent came to Petitioner and relinquished ownership of Quimbo and paid for his cremation. (Id. at ¶6.) On July 17, 2023, Respondent returned to Petitioner and said he would like to get Quimbo back but was informed that the case was still pending. (Id. at ¶7.) On July 18, 2023, Gonzales provided Petitioner with a Voluntary Statement Form recounting the incident. (Id. at ¶8 and Exh. C.) Additional reports were filed by other Animal Control Officers regarding the incident after they spoke with Respondent and Gonzales. (Id. at Exh. D.)

This evidence demonstrates that, as a result of the attack on Gonzales, Quimbo falls within the definition of “vicious dog” pursuant to Cal. Food & Agriculture Code section 31603, subdivision (a). The evidence shows that the dog attacked Gonzales without provocation and that the injuries he sustained were severe. A severe injury is defined as “any physical injury to a human being that results in muscle tears or disfiguring lacerations or requires multiple sutures or corrective or cosmetic surgery.” (Cal. Food & Agric. Code, § 31604.) Based on the foregoing, the Court finds that the dog that is the subject of this Petition is “vicious” as defined by Cal. Food & Agriculture Code section 31603, subdivision (a).

Based on the foregoing findings, the Court adopts Petitioner’s recommendations for the conditions for Quimbo’s release to Respondent, as follows:

(2) When off the property of the Respondent, Quimbo must be kept on a 6-foot leash, muzzled and wear a Vicious Dog collar at all times;

(3) Respondent must post a sign with lettering at least two inches in both height and width that reads, “Beware of Vicious Dog,” in a conspicuous place at or near the front and rear entrances of Respondent’s property;

(4) Should a move or transfer of ownership occur, Respondent must notify Petitioner of the move or transfer of Quimbo, in writing, 15 days prior to the occurrence;

(5) Respondent must always maintain Quimbo away from the front yard or any yard adjacent to a street or sidewalk;

(6) Respondent must obtain a liability insurance policy in the amount of $100,000.00 that covers Quimbo for any future injuries or damages caused by Quimbo and evidence of such policy must be provided to Petitioner;

(7) Respondent must install a secure kennel that is bolted to cement ground and topped with chain linked material at the rear of the property and all points of access must be securely locked with padlock, which Petitioner will inspect prior to the release of Quimbo;

(8) Respondent must enroll Quimbo in obedience training classes and provide proof of completion within 60 days after the release of Quimbo;

(9) Quimbo must be microchipped and spayed or neutered prior to his release at the expense of Respondent;

(10) Respondent shall pay all related fees for impound, food and care, dog license and vicious dog license;

(11) Respondent shall maintain a current dog license and vicious dog license due every year;

(12) Respondent must notify Petitioner immediately if Quimbo gets out, is at large, or has

committed any assault or attack on any person, domestic animal or livestock; and

Finally, Petitioner requests that Respondent be fined in the amount of $2,369.00 for expenses, fines, and fees incurred and for the costs of kenneling at a rate of $10 per day since July 6, 2023. (Food & Ag. Code, §§ 31662, 31663.) Respondent is ordered to pay the costs stated above.

Petition of Inland Valley Humane Society, on behalf of the City of Pomona, to Declare Dog Vicious is GRANTED. PETITIONER TO FILE AND SERVE PROPOSED ORDER IN ACCORDANCE WITH THIS RULING WITHIN 20 DAYS OF THIS RULING.