Judge Mitchell L. Beckloff, Case 22STCP02308 2023-01-06 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP02308, Date: 2023-01-06 Tentative Ruling

On June 20, 2022, Henry Kozachkov, filed his verified petition for writ of administrative and ordinary mandate and complaint for injunctive relief (petition). Respondent, County of Los Angeles, demurs to and moves to strike various allegations in the petition.

The demurrer is sustained in part and overruled in part. The motion to strike is granted in part and denied in part.

The court stays these proceedings on the third cause of action, a declaratory relief claim, pending resolution of petitioner’s writ claim. (The third cause of action will be transferred to Department 1 after resolution of the Petitioner’s writ claim for assignment to an independent calendar court. Respondent is granted leave to calendar its demurrer on the third cause of action after reassignment.)

Respondent’s request for judicial notice of Exhibit A (the petition) is granted.

On September 27, 2021, Petitioner adopted a dog, Jake, from Joyce Cheng through her organization, AllJoy4Paws. (Pet., ¶ 1.) Thereafter, Petitioner received a call from Respondent’s Department of Animal Care and Control (Department) informing him the Department had initiated an investigation into a bite incident involving Jake that occurred on July 27, 2021, well prior to Petitioner’s adoption of Jake. (Pet., ¶¶ 1, 9-16.) On December 1, 2021, the Department served Petitioner with a petition for a hearing to determine whether Jake was “vicious.” (Pet., ¶ 2.)

The Department conducted a hearing on the petition on March 8, 2022. (Pet., ¶ 22.) On March 21, 2022, the Department issued its decision declaring Jake to be a vicious dog and imposed restrictions on Petitioner’s ownership of Jake. (Pet., ¶ 30.) On March 31, 2022, Petitioner appealed the Department’s decision. (Pet., ¶ 30.) Thereafter, on April 14, 2022, the Department advised Petitioner the “decision would remain unmodified.” (Pet., ¶ 32.)

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civil Proc., § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State (2008) 161 Cal.App.4th 242, 247.) Allegations in a petition are “broadly read” on demurrer. (A.F. Arnold & Co. v. Pacific Professional Ins., Inc. (1972) 27 Cal.App.3d 710, 717.)

A demurrer may be sustained without leave to amend when there is no reasonable possibility the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at 318.) Indeed, where the facts are not in dispute and the nature of the plaintiff's claim is clear, but no liability exists under substantive law and no amendment would change the result, sustaining the demurrer without leave to amend is proper. (City of Ceres v. City of Modesto (1969) 274 Cal. App. 2d 545, 554.) The burden is on a petitioner to show how the complaint might be amended so as to cure the defect. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.)

The County demurs on the grounds the petition fails to state a claim. The court recognizes the petition is prolix, difficult to follow and unorganized. Nevertheless, Petitioner has stated a cognizable claim.

Based on the allegations, Petitioner has sufficiently stated a claim under Code of Civil Procedure section 1094.5.

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

The petition adequately alleges the findings do not support the decision, the evidence does not support the findings, Respondent failed to proceed in the manner required by law, Respondent exceeded its authority and failed to provide Petitioner with a fair hearing.

The Findings do not Support the Decision, the Evidence does not Support the Findings:

The petition alleges: “The Department can point to no defect in Jake’s temperament, nor does it dispute the voluminous evidence presented to the contrary.” (Pet., 1:20-21.) The petition further alleges Respondent “ignored” “every single other piece of evidence and every argument contrary to the Department’s conclusion.” (Pet., 3:3-4.) The petition also challenges the findings made by the Department (the decision) arguing the “unprovoked” findings completely omits any consideration of Petrossian’s actions.[2] (Pet., 15:11-23, 16:1-15.)

Petitioner also alleges the Department failed to make a safety determination as to Jake. Further, Petitioner challenges the underlying evidence stating the only percipient witness testimony about the incident (Petrossian’s testimony) is “inconsistent.” (Pet., p. 2:12.)

The allegations sufficiently support Petitioner’s claim in administrative mandamus. Petitioner has pled ultimate facts to support his cause of action. He has adequately alleged the evidence does not support the findings and the findings do not support the decision Jake is “vicious.”

Petitioner also appears to challenge the Department’s findings and decision on legal grounds. Petitioner contends the relevant LACC provision considers the dangerousness of the dog by examining both the dog and its owner, and the Departments’ decision here did not comply as it failed to identify any evidence supporting any findings of responsibility with respect to Petitioner. (Pet., p. 10:5-20.)

The petition also contains allegations which suggest the Department abused its discretion with the penalty it imposed: “So this Decision does not protect the public safety. It is so substantively unjust that individuals within the Department—who are decent people—feel compelled to apologize for it.” (Pet., 3:21 [“this Decision does not protect the public safety”].)

Finally, Petitioner alleges the Department’s decision failed to comply with Topanga Asso. for Scenic Community v. County of Los Angeles (1974) 11 Cal 3d 506. (Pet., 15:24-28.) Petitioner notes the Department failed to bridge the analytical gap between the evidence and its finding Jake acted in an aggressive manner.

At the pleading stage, these allegations are sufficient to state a cause of action under Code of Civil Procedure section 1094.5.

Petitioner further alleges the Department denied him a fair trial by “lump[ing]” Petitioner and “Cheng (Jake’s previous owner), and Chadwick (Jake’s foster) together” in the proceeding. (Pet., 11:12-20.) The allegations also allege an unfair trial based on the Department’s failure to provide “proper notice” of the hearing—that is, the notice lacked complete information thereby preventing Petitioner from a full and fair opportunity to mount a defense against the allegations. (Pet., 11:21-12:3; see also Pet., 12:17-22.)

At the pleading stage, these allegations are sufficient to state a cause of action under Code of Civil Procedure section 1094.5.

The petition alleges the Department failed to proceed in the manner required by law when it “substituted” its obligation under the relevant statute to “to hold a hearing” “to determine whether the dog should be declared potentially dangerous or vicious” and instead conducted a “hearing . . . to determine whether the dog . .. meets the legal definition of a vicious dog as defined in LACC § 10.37.030.72.” (Pet., 12:23-13:2.) According to the petition, this “substitution” relies on an improper interpretation of the statute. (Pet., 13:11-19.) Petitioner argues the Department’s focus on a single definition does not focus on whether the dog should be declared vicious even if it meets the LACC’s definition of a vicious dog. While nuanced, Petitioner contends not all dogs who meet the definition of vicious “must” be declared vicious. That is, the dog’s particular circumstances must be considered in addition to whether the dog falls within the vicious dog definition.

At the pleading stage, these allegations are sufficient to state a cause of action under Code of Civil Procedure section 1094.5.

Finally, Petitioner alleges Respondent exceeded its jurisdiction under LACC Chapter 10.37—or, alternatively, failed to proceed in the manner required by law—when it initiated these proceedings; Petitioner alleges Respondent improperly applied the statute to him and Jake after there was change of ownership. (Pet., p. 10:21-11:5.)

At the pleading stage, these allegations (in combination with the other allegations) are sufficient to state a cause of action under Code of Civil Procedure section 1094.5.

The petition alleges the Department’s hearing officer read a script that “give[s] a different, impermissible purpose to the hearings.” (Pet., 17:20-21:2.) Petitioner reports he obtained the script through a public records request. (Pet., 17:27.) Petitioner alleges: “And the script clearly instructs the hearing officer to give a different, impermissible purpose to the hearings.” (Pet., 17:27-28.)

Ordinary mandate under Code of Civil Procedure section 1085 is generally used to review an agency’s ministerial acts, quasi-legislative acts, and quasi-judicial decisions which do not meet the requirements for review under Code of Civil Procedure section 1094.5. (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848; Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1264-1265.)

“may be issued by any court to any . . . board . . . to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” (Code Civ. Proc., § 1085, subd. (a).)

“To obtain a writ of mandate under Code of Civil Procedure section 1085, the petitioner has the burden of proving a clear, present, and usually ministerial duty on the part of the respondent, and a clear, present, and beneficial right in the petitioner for the performance of that duty.” (Marquez v. State Dept. of Health Care Services (2015) 240 Cal.App.4th 87, 103.)

Petitioner’s briefly stated second cause of action appears derivative of his first cause of action under Code of Civil Procedure section 1094.5 and the Department’s alleged failure to proceed as required by law. That is, as the court understands the petition, the Department’s script appears to flow from the Department’s interpretation of the LACC. To the extent Petitioner is successful before the court and the court adopts an interpretation of the law consistent with Petitioner’s view, the Department will have been advised by the court on the proper interpretation of the law and be bound by that interpretation.

Respondent’s demurrer to the second cause of action appears well taken. Petitioner’s claim concerning the interpretation of the law (the basis of the script) is adequately addressed through administrative mandamus. Petitioner has not identified any duty enforceable under Code of Civil Procedure section 1085 requiring the Department to utilize a script for its hearings.[3]

Based on the foregoing, the demurrer as to the second cause of action is sustained. Petitioner may address during the hearing whether he wishes leave to amend, and, if so, how he might amend the second cause of action such that there is a reasonable likelihood he will be able to state a cause of action in traditional mandate.

The Petition’s third cause of action (labeled—in the court’s view, incorrectly—a Code of Civil Procedure section 1094.5 claim) seeks a judicial declaration that LACC section 10.37 is unconstitutional and unlawful for multiple reasons. (Pet., p. 18:3-21:15.)

The claim is not a writ claim and is not derivative of his administrative mandamus claim. As noted earlier, the third cause of action is stayed pending reassignment to an independent calendar court at the conclusion of these proceedings. Respondent may renew its demurrer to the third cause of action after reassignment.

Respondent moves to strike several unspecified portions of pages in the petition. Specifically, Respondent moves to strike the following groups of allegations in the petition:

Code of Civil Procedure section 436 authorizes a court to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b) [emphasis added].) Code of Civil Proceudre section 431.10, subdivision (b)(3) defines an “immaterial allegation in a pleading” as “[a] demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” [Emphasis added.]

As a preliminary matter, based on the court staying Petitioner’s third cause of action (the declaratory relief claim) contesting the constitutionality of LACC section 10.37, the motion to strike the following allegations from the petition is stayed pending reassignment to an independent calendar court. The motion as to the following allegations may be renewed upon reassignment:

The challenge to the remaining four allegations identified in Group A repeat and rely on the arguments made in Respondent’s demurrer. As discussed, the court finds Petitioner has sufficiently stated a cause of action under Code of Civil Procedure section 1094.5. While Petitioner’s legal labels may be inaccurate or incorrect, the underlying factual allegations inform on the administrative mandamus claim. For example, the facts associated with Petitioner’s purported substantive and procedural due process claims inform on Petitioner’s claim the Department has misinterpreted the LACC. The facts alleged—Petitioner had nothing to do with Jake’s acts before Petitioner adopted him and the Departments failure to consider Jake’s current circumstances—support Petitioner’s legal position the Department (and its hearing officers) misinterprets the LACC.

While the petition is not a model of clarity, that the petition states a cause of action the court must proceed with a motion to strike cautiously. A motion to strike should not function as a line-item veto eliminating facts that may (and likely do) inform on a cause of action despite an inaccurately alleged label for those facts. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683 [motion to strike’s use “should be cautious and sparing” so as not to create a “procedural ‘line item veto’ for the civil defendant”].) Therefore, the court declines to strike allegations that may provide context, background and support, and/or are material to Petitioner’s cognizable claims.

Finally, the motion to strike is granted as to the Group C allegation—the prayer for attorney’s fees. Petitioner, litigating on his own behalf, is not entitled to attorney’s fees.

Based on the foregoing, the court overrules the demurrer as to the first cause of action (Code of Civil Procedure section 1094.5 claim) and sustains the demurrer to the second cause of action (Code of Civil Procedure section 1085 claim). The court makes no ruling as to the third cause of action (declaratory relief) having stayed the proceedings on the third cause of action. Respondent may renew its demurrer to the third cause of action upon reassignment to an independent calendar court at the conclusion of the proceedings on Petitioner’s writ claim.

The court is not inclined to grant leave to amend as to the second cause of action but will hearing argument from Petitioner if requested.

The motion to strike is granted as to Group C, the prayer for attorney’s fees.

The motion to strike the remaining allegations in Group A and Group B are related to the third cause of action which has been stayed. Like the demurrer, the motion to strike to these allegations may be renewed upon reassignment to an independent calendar court.

[1] As the court has stayed the third cause of action for declaratory relief, the court substantively addresses only Petitioner’s writ claims.

[2] Petrossian is a dog walker who alleged suffered the dog bite.

[3] Respondent also challenges Petitioner’s taxpayer standing allegations to bring this claim, but the court need not address this standing argument given its inclination to sustain the demurrer to this claim.