Judge: Mel Red Recana, Case: 22STCP02308, Date: 2024-08-20 Tentative Ruling
Case Number: 22STCP02308 Hearing Date: August 20, 2024 Dept: 45
Hearing Date: August
20, 2024
Moving
Party: Respondents
County of Los Angeles & Marcia Mayeda
Responding
Party: Petitioner
Dr. Henry Kozachkov
Motion:
Demurrer and Motion
to Strike
Tentative
Ruling: The
Court considered the moving papers, opposition, and reply. The demurrer is SUSTAINED. The motion to strike is DENIED
as moot. Petitioner is granted 20 days leave to amend.
Background
Procedural Background
On June 20, 2022
Dr. Henry Kozachkov (Petitioner) filed a petition for writ of administrative
and ordinary mandate and complaint for injunctive relief (the Petition). The
Petition alleged three causes of action – administrative mandate under Code
Civ. Proc. §1094.5, traditional mandate under Code Civ. Proc. §1085, and
declaratory relief.
The
County of Los Angeles, and Marcia Mayeda in her capacity as Director of the
County of Los Angeles Department of Animal Care and Control (Respondents)
demurred to the Petition. On January 6, 2023, the Court sustained Respondents’
demurrer to the second cause of action for traditional mandate and ordered the
proceedings on Petitioner’s third cause of action stayed pending resolution of
the first cause of action. The third cause of action contends Los Angeles
County Code (LACC) section 10.37 (LACC §10.37) is unconstitutional in part. Respondents
now demur to the third cause of action.
Factual Background
On
September 27, 2021, Petitioner adopted a dog, Jake, through the organization
AllJoy4Paw. (Pet. ¶1.) Later, Petitioner received a call from Respondent’s
Department of Animal Care & Control (DACC) informing him the DACC had
initiated an investigation into a bite incident involving Jake that occurred on
July 27, 2021, prior to Petitioner’s adoption of Jake. (Pet., ¶¶1, 9-16.)
On
December 1, 2021, the DACC served Petitioner with a petition for administrative
hearing to determine whether Jake was “vicious”. (Pet., ¶¶1-2.) The hearing
took place on March 8, 2022 and upon the DACC issuing its decision on March 21,
2022, Jake was declared a vicious dog, and restrictions on Petitioner’s
ownership and maintenance of Jake were imposed. (Pet., ¶32.)
The
motion now before the Court is Respondents’ demurrer to the third cause of
action and motion to strike portions of the third cause of action. Petitioner
opposes both motions, Respondents file reply for both motions.
Meet and Confer
“Before filing a
demurrer…the demurring party shall meet and confer in person or by telephone
with the party who filed the pleading that is subject to demurrer for the
purpose of determining whether an agreement can be reached that would resolve
the objections to be raised in the demurrer.” (Code Civ. Proc. §430.41(a); see
also Code Civ. Proc. §435.5 (imposing similar requirements for a motion to
strike).) Attached to their moving papers, Respondents filed the Declaration of
John J. Strumreiter, which states the parties conferred telephonically on
October 12, 2023, but no agreement was reached. Nonetheless, the requirements
of Code Civ. Proc. §430.41(a) and Code Civ. Proc. §435.5 have been satisfied.
The Court now turns its attention to the demurrer and motion to strike.
Discussion
Legal Standard
“[A]
demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235
Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that
appear on the face of the pleading under attack or from matters outside the
pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in
ruling on a demurrer, a court may not consider declarations, matters not
subject to judicial notice, or documents not accepted for the truth of their
contents].) For purposes of ruling on a demurrer, all facts pleaded in a
complaint are assumed to be true, but the reviewing court does not assume the
truth of conclusions of law. (Aubry v.
Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)
Analysis
The
LACC is promulgated by the Los Angeles County Board of Supervisors, the
governing body of Los Angeles County. The LACC is then enforced by the
appropriate department or office in Los Angeles County. Pertinent here, is LACC
§10.37, which is enforced by the County of Los Angeles Department of Animal
Care and Control (DACC). The primary contention of the petition is large swaths
of LACC §10.37 are unconstitutional for various reasons. As explained below,
the Court disagrees and sustains the demurrer.
a)
LACC §10.37.110(a) – the DACC may
elect a court or administrative hearing
Petitioner’s
contention surrounding LACC §10.37.110(a) upon Petition and opposition to the
demurrer is the DACC was delegated a power to decide whether to adjudicate
cases in an administrative hearing or a court, and that this was delegated
without an intelligible principle. In making such a contention, Petitioner
relies on the non-binding Fifth Circuit case Jarkesy v. Securities and
Exchange Commission (2022) 34 F.4th 446 (Jarkesy). That
reliance is misplaced.
First, in
addition to noting that Jarkesy is non-binding, Jarkesy stands
for the constitutional principle that prevents Congress from delegating its
legislative powers to another branch or agency. Petitioner provides no case law
for this principle applying to state legislatures.
Second, Jarkesy
runs counter to Balakrishnan v. Regents of University of California
(2024) 99 Cal.App.5th 513 (Balakrishnan) which counsels this
Court to give an administrative agency like the DACC great weight and deference
when it interprets its own regulations. Balakrishnan was a case where a
former professor filed a petition for writ challenging the Regents of the University
of California for dismissing him for sexual abuse allegations. The allegations
violated the Regents’ internal policies, rules and regulations. In affirming
the decision of the Regents’ to dismiss the professor, the court noted that,
although the Regents are not a government body, “policies established by the
Regents according to their constitutionally derived rulemaking and policymaking
power…have the force and effect of statute.” Additionally, because of the level
of expertise and its familiarity with regulatory issues within its universities,
Courts give an agency like the Regents of the University of California great
deference. (Balakrishnan, supra, 525.)
Here, the Court
can analogize. The Los Angeles County Board of Supervisors is granted
quasi-legislative powers by the California Constitution. (Cal.Const., Art. XI,
§§4-5.) In promulgating the LACC, it allows for the appropriate departments and
offices to enforce the LACC. The DACC here is granted the power to choose
whether an administrative hearing or a hearing before the trial courts is
appropriate. In making such a decision, this Court grants heavy deference to
the DACC because of its familiarity and expertise with issues involving dog
bites. DACC’s expertise is to be relied upon because DACC is in the best
position to make such a decision, considering the objective of LACC §10.37. Petitioner
presents no authority to the contrary.
Finally,
assuming the doctrine applies to the states, and specifically as between the
County Board of Supervisors and DACC, deferring legislative power is
inappropriate when it has “the purpose and effect of altering the legal rights,
duties, and relations of persons…”. (Jarkesy, supra, 461.) Here,
(a) the LACC contains an intelligible principle as it relates to LACC §10.37
and (b) allowing DACC to choose to bring an administrative hearing or petition
the Los Angeles Superior Court does not alter any of the legal rights or duties
Petitioner had.
With regard to
whether LACC §10.37 contains an intelligible principle, the Court rules in the
affirmative. A concrete definition of “intelligible principle” may best be
lifted from Mistretta v. U.S. (1989) 488 U.S. 361 (Mistretta),
where the U.S. Supreme Court stated an intelligible principle exists if it
“delineates the general policy, the public agency which is to apply it, and the
boundaries of this delegated authority.” (Mistretta, supra, at 373.) The
policy of Chapter 10.37 of the LACC is clear, vicious dogs had become a
widespread threat to public safety and should be abated. (LACC, §10.37.010.)
The department specified to handle this issue was DACC. The boundaries of the
DACC’s authority with regard to Chapter 10.37 in the LACC was specific to
issues of vicious dogs. Here, the Court finds an intelligible principle.
With regard to whether Petitioner’s legal
rights or duties were altered, the Court answers in the negative. Jarkesy
may allow a delegation of legislative power to be unconstitutional if it alters
the rights or duties of persons outside of the legislative branch. DACC is
outside of the legislative branch, however, in its choice to bring an
administrative hearing prior to the instant court proceedings, none of
Petitioner’s rights were altered. The record indicates that at the hearing held
on March 8, 2022 to determine whether Jake was a “vicious dog” under the LACC,
Petitioner was permitted to offer testimony, enter evidence, and appeal the
decision, much like Petitioner would have been able to do if the case was
brought to court first. Petitioner fails to put forth any contention that his
rights were altered by DACC’s decision to bring an administrative hearing,
therefore, there was no unconstitutional delegation of legislative power.
b)
LACC §§10.37.130(d), 10.37.140(d)
&10.37.140(e) – Neither the signage requirement nor the notices operate as
compelled public noncommercial speech
In contending
that the “vicious dog” label is unconstitutional, Petitioner relies on a
non-binding case from the Eleventh Circuit, McClendon v. Long (2022) 22
F.4th 1330 where sex offenders successfully petitioned to have signs
in their front yard removed after the Eleventh Circuit determined it was
compelled government speech. However, the Court can distinguish, the signs at
issue in McClendon were signs that indicated an ideological message
(“WARNING! STOP. NO TRICK-OR-TREAT AT THIS ADDRESS!! A COMMUNITY SAFETY MESSAGE
FROM BUTTS COUNTY SHERIFF GARY LONG”). McClong is not analogous to the
case at bar. The “vicious dog” label was established through an administrative
hearing where both sides were permitted to present evidence as to whether the
label should be applied, with full knowledge of the consequences as articulated
in the LACC. There was no such hearing with regard to the Sheriff’s sign in McClendon.
Moreover, the “vicious dog” label carries with it a specific meaning under
LACC, whereas the Sheriff’s sign in McClendon was his own ideological
opinion of what should happen during Halloween. Finally, the Court agrees with
Respondents in that the warning required by LACC is simply a safety regulation
that counties may utilize for the safety of the general public. For example,
designating an over-wide vehicle as a “wide load” is an ordinance a county is
well-within its power to make, regardless of whether the owner of the vehicle
agrees.
c)
LACC §10.37.130(g) passes the
rational basis test
Petitioner next
argues that LACC §10.37.130(g) fails the rational basis test because the
insurance amount required to be carried by owners is too high. Without any
authority to support such a conclusory contention, the Court disagrees. Within
equal protection claims, rational basis is the tier in which the burden is on
the challenger to show that one class of persons is being treated differently
from another similarly situated class. “The decision of the Legislature as to
what is a sufficient distinction to warrant the classification will not be
overthrown by the courts unless it is palpably arbitrary and beyond rational
doubt erroneous.” (Sulla v. Board of Registered Nursing (2012) 205
Cal.App.4th 1195, 1207.) Not only does the Petition ignore the
differences between the promulgation of automobile insurance by the state’s
legislature versus the promulgation of insurance requirements for a vicious dog
by the County Board of Supervisors, but Petitioner has also failed to plead how
LACC §10.37.130(g) fails the rational basis test.
d)
LACC §10.37.140(c) does not require
Petitioner to build an enclosure
Finally,
Petitioner argues that LACC §1037.140(c) is unconstitutional because it requires
an enclosure for the vicious dog, which Petitioner cannot meet because he rents
an apartment unit. This is a misreading of the ordinance. An enclosure is only
required if the dog cannot be kept inside. LACC §10.37.130(b) states “The dog,
while on the owner or custodian’s property, must be kept indoors or in a
securely fenced yard or enclosure from which the dog cannot escape…” (emphasis
added.) If the dog can be kept inside, as Petitioner as indicated it could,
then there is no need for an enclosure.
Leave to Amend
Leave to amend
must be allowed where there is a reasonable possibility of successful
amendment. (See Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to
amend if there is any reasonable possibility that the defect can be cured by
amendment”]. As there is reasonable possibility of successful amendment, the
Court will grant Petitioner 20 days leave to amend.
Conclusion
Respondents’
demurrer to the third cause of action is SUSTAINED. The motion to
strike is DENIED as moot. Petitioner is granted 20 days leave to
amend.
It is so ordered.
Dated: August 20, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court