Judge Mitchell L. Beckloff, Case Number: 22STCP02308, Date: 2023-09-08 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP02308, Date: 2023-09-08 Tentative Ruling

On June 20, 2022, Petitioner, Henry Kozachkov, filed his verified petition for writ of administrative and ordinary mandate and complaint for injunctive relief (petition). The petition alleged three causes of action—administrative mandate under Code of Civil Procedure section 1094.5, traditional mandate under Code of Civil Procedure section 1085, and declaratory relief.

On January 6, 2023, the court sustained Respondent’s 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 for administrative mandate. The third cause of action contends Los Angeles County Code (LACC) section 10.37 is unconstitutional in part. After Petitioner’s administrative writ claim is decided by this court, the matter will be transferred to Department 1 for reassignment to an independent calendar court for adjudication of Petitioner’s declaratory relief claim.

In this proceeding, Petitioner contends Respondent’s administrative decision must be vacated for four reasons. First, Petitioner argues Respondent exceeded its jurisdiction under LACC section 10.37. (Pet., 10:20-23.) Second, Petitioner asserts Respondent violated his substantive due process rights. (Pet., 11:6.) Third, Petitioner believes Respondent impinged his procedural due process rights through “misjoinder of two additional Respondents to [Petitioner’s] case” and its failure to provide proper notice. (Pet., 11:12-25.) Finally, Petitioner argues Respondent’s decision is not supported by the findings and/or the evidence does not support the findings. (Pet., 14:12-18.)

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 (the Department) informing him the Department had initiated an investigation into a bite incident involving Jake that occurred on July 27, 2021, months prior to Petitioner’s adoption of Jake. (Pet., ¶¶1, 9-16.)

On December 1, 2021, the Department served Petitioner with a petition for administrative hearing to determine whether Jake was “vicious.” (Pet., ¶1, 2; AR 1.)

The Department conducted a hearing to determine whether Jake was a vicious dog 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 and maintenance 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)

Petitioner seeks relief from the court through 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).)

There are two different standards of judicial review in administrative mandate for an agency’s factual findings depending upon the nature of the rights at stake. Where a fundamental vested right is involved, the independent judgment standard applies. Under independent judgment review, “abuse of discretion is established if the court determines the findings are not supported by the weight of the evidence.” (Code Civ. Proc., § 1094.5, subd. (c).)

Under independent judgment review, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.) The court may draw its own reasonable inferences from the evidence and make its determinations as to the credibility of witnesses. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817; see also Evid. Code, § 664.)

Where independent judgment review is unwarranted, “abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in light of the whole record.” (Code Civ. Proc., § 1094.5, subd. (c).)

“Under the substantial evidence test, the agency’s findings are presumed to be supported by the administrative record and the appellant challenging them has the burden to show that they are not.” (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1062.) On substantial evidence review, “courts do not reweigh the evidence. They determine whether there is any evidence (or any reasonable inferences which can be deduced from the evidence), whether contradicted or uncontradicted, which, when viewed in the light most favorable to an administrative order or decision . . . will support the administrative . . . findings of fact.” (Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 849 n. 11.)

Petitioner concedes whether a dog is vicious does not implicate a fundamental vested right. (Opening Brief 5:12-14.) Indeed, the law is clear “[r]eview of an administrative decision whether a dog is dangerous does not involve a fundamental vested right.” (Zuniga v. County of San Mateo Dept. of Health Services (1990) 218 Cal.App.3d 1521, 1530). Thus, judicial review of Respondent’s decision the dog is vicious is reviewed for substantial evidence. (Id.)

Petitioner argues, however, the Department’s decision implicates fundamental vested rights beyond his property interest in his dog. (Opening Brief 5:4-6.) Petitioner asserts his First Amendment rights are implicated by the Department’s decision. Petitioner argues the Department’s decision compels him to inform people that Jake is vicious, “despite no such thing being proven” and it is a “grotesque violation” of his “right against compelled false speech.” (Opening Brief 5:7-11.) Petitioner contends compelling him to provide notice of Respondent’s decision Jake is a vicious dog to the United States Post Office (USPS) and all utility companies impinges on his constitutional rights. (See AR 353.) In addition, requiring Petitioner to “post one or more signs on the premises at a location approved by the Department stating that a vicious dog resides on the premises” creates similar issues with his First Amendment rights. (Id.) Petitioner argues a fundament vested right is therefore at stake and the court must use its independent judgment in reviewing the order.

The court need not resolve whether Petitioner’s First Amendment free speech rights requires the court to use its independent judgment to review Respondent’s factual findings. Even assuming the court uses its independent judgment to review Respondent’s decision, the result here would be no different.

A “vicious dog” is “[a] dog that when, when unprovoked, in an aggressive manner, inflicts serious injury on or kills a person.” (LACC, § 10.37.030, subd. (B).)

“ ‘Provoke’ means to perform an intentional act or omission that a reasonable person would conclude is likely to cause a bite, injury, or attack by an ordinary dog.” (LACC, § 10.37.060.)

“If an animal control or a law enforcement officer has investigated and determined that there is probable cause that a dog is potentially dangerous or vicious, the Director may . . . serve a petition for an administrative hearing, to determine whether the dog should be declared potentially dangerous or vicious.” (LACC, § 10.37.110, subd. (A).)

“The Director must notify the owner or custodian of the dog that . . . an administrative hearing will be held, at which time the owner or custodian may present evidence as to why the dog should not be declared potentially dangerous or vicious.” (LACC, § 10.37.110, subd. (B).)

Where a dog is found to be vicious and will not be euthanized, “the administrative hearing officer must impose” certain “conditions on an owner and custodian” of the dog. (LACC, § 10.37.140, subd. (B)[emphasis added].) The required conditions include:

· muzzling and restraint of the dog when the dog is off of the owner’s premises

· notification to the USPS (local branch) and all utilities providing services to the premises

In addition to required conditions, the hearing officer has discretion to impose “any other conditions necessary to protect the public health, safety, or welfare.” (LACC, § 10.37.140, subd. (B).)

On March 21, 2022, Chris Cirar, the Department’s manager acted as hearing officer and conducted a hearing to determine whether Petitioner’s dog was a “Vicious Dog” under the LACC. (AR 340.) Respondent (through the Department) specifically sought a determination petitioner’s dog was vicious—i.e., a dog “that, when unprovoked, in an aggressive manner, inflicts severe injury on or kills a person.” (LACC, § 10.37.030, subd. (B).)

During the hearing, the hearing officer heard testimony from Petitioner, Robert Petrossian, Tara Chadwick, Joanna Kolodziejska, Joyce Change and two animal control officers, Alfredo Lopez and Julie Villegas. (AR 170-171, 342-343.) The hearing officer reviewed and considered a vicious dog investigation report and written statements of witnesses. (AR 173-175.) The hearing officer also received into evidence medical records, photographs and video relating to injuries inflicted upon Petrossian by the dog. (AR 173-175, 342.)

The hearing officer found Petitioner received actual notice of the hearing and any defects in service had been waived. The court noted Petitioner had the opportunity to and did present evidence and argument at the hearing. (AR 339-342.)

On March 21, 2022, the hearing officer issued a decision. The hearing officer found:

· “On July 27, 2021, ‘Jake,’ did attack and inflict severe injury, as defined in LACC

· “[T]he attack on Robert Petrossian by Respondents’ dog ‘Jake’ on July 27, 2021, was unprovoked.” (AR 344-345.)

Based on the findings, the hearing officer concluded Jake was a “a ‘Vicious Dog’ as defined by LACC § 10.37.030(B).” (AR 345.)

As part of the decision, the hearing officer imposed restrictions concerning the ownership and maintenance of Jake as mandated by LACC sections 10.37.130 and 10.37.140.

Specifically, the hearing officer ordered (1) Jake be properly licensed, microchipped and vaccinated at Petitioner’s expense; (2) while on Petitioner’s property, Jake “be kept indoors, or in a securely fenced yard or enclosure from which he cannot escape, and into which children cannot enter”; (3) Jake be “muzzled and restrained by a substantial leash . . . and under control of an adult capable of restraining and controlling him” and at no time, be left unattended while off of Petitioner’s premises; (4) Petitioner inform the Department immediately if Jake “is at large or attacks any person, domestic animal, or livestock”; (5) Petitioner inform the Department if Jake no longer resides with Petitioner or is transferred to another location;

(6) Petitioner complete an obedience training course consisting of a minimum of 10 hours of training; (7) Petitioner obtain approval of the course within 14 days of service of the decision on him; (8) Petitioner maintain specified insurance and provide proof of insurance to the Department; (9) Petitioner provide an enclosure as required by LACC section 10.37.130, subdivision (B); (10) Petitioner give written notice of the Vicious Dog determination to the local branch of the USPS and to all utility companies providing services to the premises where Jake is kept; and (11) Petitioner post one or more signs on the premises where Jake is kept stating a vicious dog resides on the premises. (AR 348-349.)

As a preliminary matter, “[t]he California Supreme Court has established that ‘the licensing of dogs and the regulations of the manner in which they shall be kept and controlled are within the legitimate sphere of the police power.’ [Citation.]” (Concerned Dog Owners v. City of Los Angeles (2011) 194 Cal.App.4th 1219, 1237.)

The LACC sets forth the purpose of Respondent’s dangerous and vicious dog ordinance:

Within the County of Los Angeles there are potentially dangerous and vicious dogs that have become a serious and widespread threat to the safety and welfare of the citizens of the County, which should be abated. The provisions of this chapter set forth the procedures by which the Department can find a dog to be a potentially dangerous dog or a vicious dog and the consequences of such a finding. This chapter is intended to supplement rather than supplant any other remedy available under state statute or County ordinance. (LACC, § 10.37.010.)

Petitioner first attacks the Department’s decision on substantive due process grounds. (Opening Brief 5:19-20.) “Substantive due process protects against arbitrary government action.” (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 855.) “A substantive due process violation requires some form of outrageous or egregious conduct constituting ‘a true abuse of power.’ ” (Id. at 856.)

This case is, in toto, a substantive-due-process violation. [Petitioner] adopted a dog in need of a home, is accused of no wrongdoing, deficiency, or failing, and is praised by the Department for his standard of care. And yet, the Decision inflicts extreme burdens on [Petitioner] for an incident he had nothing to do with. A flogging for the innocent, for someone else’s alleged violations, and to nobody’s benefit. (Pet. 11:6-11.)

Even the most elaborate procedures cannot validate a situation where, for example, person A is punished for a crime committed by person B. ¶ Here, [Petitioner] was hauled into a Hearing about an incident which occurred two months before he because involved in the situation in any way. Subsequently, a decision was issued which severely burdened [Petitioner], again, based on events that he had nothing to do with. This is anathema to our system of laws; it is a violation of substantive due process. ¶ But if Substantive Due Process it too grand a label to apply here, calling it a gross Kafkaesque violation of basic fairness will do.” (Opening Brief 5:20-6:4.)

Petitioner’s substantive due process argument is somewhat difficult to decipher; his complaint appears to be one of generalized unfairness. Petitioner does not sufficiently define his substantive due process claim and provides no analysis of it. He also provides no legal authorities to support the broad position.

To be clear, the hearing officer did not find Petitioner or Cheng committed some wrongdoing for which punishment was imposed. Indeed, Petitioner had no contact with Jake until months after Jake attacked Petrossian. The hearing officer’s vicious dog finding simply had nothing to do with anything Petitioner did on July 27, 2021.

After a hearing, the Department found Jake to be a vicious dog. To make such a finding, the hearing officer focused on Jake’s acts, not those of his owner or custodian. Under the LACC, a vicious dog is “[a] dog that when, when unprovoked, in an aggressive manner, inflicts serious injury on or kills a person.” (LACC, § 10.37.030, subd. (B).) Thus, whether a dog is vicious generally does not involve an owner or custodian’s acts.[1]

Further, Petitioner’s claims of the burden he now bears “based on events he had nothing to do with” ignores Respondent’s police power and ability to regulate how dogs are kept and controlled when the dog is vicious. (Opening Brief 6:1)(Las Lomas Land Co., LLC v. City of Los Angeles, supra, 177 Cal.App.4th at 855.) Petitioner has not demonstrated Respondent (through the Department) violated his substantive due process rights by imposing reasonable regulations about how Jake is kept and controlled after an adjudication finding him to be a vicious dog.

Procedural Due Process Rights—Misinforming Petitioner of Nature of Relevant Evidence and Applicable Statute

Petitioner argues the Department failed to provide him with proper notice of the administrative hearing in three ways. According to Petitioner, the Department allegedly provided materials to him that prejudicially misinformed him about (i) the hearing, (ii) evidence relevant for the hearing and (iii) applicable ordinances. Petitioner’s argument is again unsupported by any legal authorities.

Petitioner argues the “documents” the Department provided to him stated “any previous history related to the dog” and “evidence about the dog-owners would be relevant.” (Opening Brief 6:7-8.) Petitioner argues the Department misled him because the Department did not consider such evidence to decide whether Jake is a vicious dog. Instead, according to Petitioner, the Department did nothing more than engage in a formalist application of the definition of “vicious” under LACC section 10.37.030 to decide whether Jake was a vicious dog. (Opening Brief 6:12-13.)

The Department’s petition for administrative hearing was not misleading. Evidence pertaining to the dog’s history or the dog-owners is directly relevant to the consequences of a finding a dog is a vicious. The evidence informs on appropriate restrictions on ownership where the dog is not euthanized. (AR 2.) While Respondent’s ordinance specifies how a vicious dog must be kept and controlled, the Department also has the authority to impose any non-specified “conditions necessary to protect the public health, safety, or welfare.” (LACC, § 10.37.140, subd. (B).) Thus, evidence about the dog’s history and the dog’s owners provides important information for purposes of regulating the care and control of the vicious dog.

Moreover, the hearing officer did consider—contrary to Petitioner’s claims otherwise—evidence regarding Jake’s history and the dog’s owners, including Petitioner, Cheng and Chadwick (a foster-care provider). (AR 342-343.) Such evidence included a defense to the claim Jake was aggressive. (AR 342 [never before experienced aggression], 343 [medication effect].)

Petitioner also argues the Department prejudicially misled him about the ordinances applicable to a vicious dog hearing. (Opening Brief 6:13-14.) Petitioner reports the Department’s petition for administrative hearing attached a copy of the relevant statutes but omitted LACC section 10.37.060, the definition of the word “provoke.”

Petitioner is correct. The Department did not include LACC section 10.37.060 in the materials attached to the Department’s petition for administrative hearing. (AR 7.) The statute is relevant in a vicious dog determination because a vicious dog is one who inflicts severe injury or kills a person in an aggressive manner when unprovoked. (See LACC, § 10.37.030, subd. (B).)

The court finds it curious the Department omitted LACC section 10.37.060 from the materials it provided with the petition for administrative hearing.[2] Nonetheless, LACC section 10.37.030, subdivision (B) does explain a vicious dog is one who acts aggressively and causes injury or death when unprovoked. The Department clearly identified whether Jake was “unprovoked” as an issue for the hearing. Indeed, it is within the definition of a vicious dog. Thus, there could be no question all participants were on notice that provocation would be at issue.

Further, Petitioner identifies no prejudice he suffered based on the omission of LACC section 10.37.060 from the materials attached to the petition for administrative hearing. The word “unprovoked” is not a technical one or a term of art for vicious dog litigation—the context for its use and the word’s plain meaning undermine any claim of confusion. Moreover, the administrative hearing transcript makes clear the participants understood the term in the context of determining whether a dog is vicious. In fact, Petitioner argued Petrossian’s injuries were not the result of an “unprovoked attack from the perspective of an injured, extremely stressed, pharmacologically restless, frightened and cornered dog.” (AR 245.) Chadwick made a similar argument. (AR 302-303.)

Petitioner’s claim the Department’s petition for administrative hearing misinformed him of the evidence or statutes relevant to the vicious dog determination is unpersuasive. Even assuming the Department erred, any error was not prejudicial.

Petitioner contends the Department prejudicially erred by joining Cheng and Chadwick as respondents in the administrative proceeding. Petitioner argues Cheng and Chadwick had “no stake whatsoever” in the administrative hearing and their interests were “imperfectly aligned” with those of Petitioner. (Opening Brief 7:3-9).

The Department properly named all persons with an interest in the findings and outcome of the administrative hearing. Cheng and Chadwick clearly had interests in the proceeding. Petitioner acknowledges Petrossian filed suit against the dog’s “previous owner.” (Pet. 2:11-14). Petitioner concedes at the time of the attack, Cheng owned the dog through her organization AllJoy4Paws, and Chadwick fostered the dog. (Pet. ¶¶1, 5.) Petitioner also concedes Chadwick hired Petrossian to walk Jake, and Jake attacked Petrossian when he attempted to walk him. (Pet. ¶¶ 7-14.) The hearing officer made findings as to Cheng and Chadwick and their roles in the attack. Such findings might be used in a liability context to attribute some responsibility to Cheng and/or Chadwick for the attack. (AR 344.) Based on these facts, Cheng and Chadwick had a “stake” in the administrative hearing and their inclusion as respondents was proper.

Petitioner cites no legal authority to support his position. Petitioner also identifies no prejudice he suffered based on interests he asserts did not “perfectly align” with his. In fact, it appears all three respondents had the same general interest in avoiding a finding Jake was a vicious dog. Nothing suggests the respondents’ interests had to “perfectly align” with one another.

Petitioner has not demonstrated the Department erred by joining Cheng and Chadwick in the administrative proceedings with him.

Petitioner contends the Department exceeded its jurisdiction (or failed to proceed in the manner required by law) when it initiated the administrative proceedings. (Opening Brief 7:9-10.) Petitioner provides no legal authority for his claim. Petitioner sets forth four reasons to support his position:

(1) [Petitioner] was neither Jake’s owner nor his custodian at the time of the Incident, which occurred two months before [Petitioner] met any of the parties involved, including Jake. (2) This Statute cannot be coherently applied in cases where the dog changes ownership between the incident and the hearing. (3) This Statute cannot be coherently applied when the injured party is a paid profession[al] dog-walker who was alone with the dog and was being paid to care for and control the dog (4) This Statute is incoherent if each of its 59 uses of the phrase “owner or custodian” can refer to a different person, or to a person who was not the dog’s owner or custodian at the time of the incident.

Petitioner’s complaint fails to acknowledge Respondent’s police powers and ability to regulate how dogs are maintained and controlled. (Las Lomas Land Co., LLC v. City of Los Angeles, supra, 177 Cal.App.4th at 855.) The initial focus of the administrative proceedings to declare a dog a vicious dog is on the dog and any alleged attack. Whether a dog is vicious turns on the dog’s acts and is unrelated to ownership. That Petitioner did not own Jake until two months after Jake attacked Petrossian is irrelevant to the finding Jake is a vicious dog. While the ownership of a dog may change, the dog nonetheless maintains his vicious dog status.[3]

Further, that the attack happened to a professional dog walker is irrelevant to the vicious dog finding. The status of the injured party as a dogwalker does not inform on whether a dog aggressively inflicted severe injury or death when unprovoked.

Finally, Petitioner has not demonstrated any ambiguity created by LACC Chapter 10.37’s use of the word owner and/or custodian. That the ordinance uses the phrase “owner or custodian” 59 times does not, standing alone, demonstrate the Department had no jurisdiction to find Jake is a vicious dog or to regulate his maintenance and control.

Based on Petitioner’s arguments, the court finds Respondent did not exceed its jurisdiction in adjudicating Jake to be a vicious dog or fail to proceed in the manner required by law.

Procedural Due Process Rights—Substituting the Question Determined at Hearing

Petitioner argues LACC section 10.37.110, subdivision (A) required the hearing officer “to determine whether the dog should be declared potentially dangerous or vicious.”[4] Petitioner contends the hearing officer instead conducted a hearing to determine whether Jake met the legal definition of “vicious” under LACC sec. 10.37.030. Petitioner argues the hearing officer’s focus on whether the dog was vicious under LACC section 10.37.030 created an irrebuttable presumption the dog was vicious and required the hearing officer to ignore relevant evidence.

Petitioner’s argument fails because the Department’s petition for administrative hearing expressly requested a finding that Jake be declared vicious. (AR 2.) The Department’s petition for administrative hearing unequivocally states the relief it seeks is an order “declaring that Respondents’ dog . . . is vicious within the meaning of Los Angeles County Code Section 10.37.030.” (AR 2 [emphasis added].)

The court finds the Department did not improperly substitute the “question” to be decided. The court also finds the Department did not create an irrebuttable presumption through its adjudication of whether Jake fell within the definition of a vicious dog. The hearing officer conducted a lengthy hearing, considered evidence and argument, and reached a decision. The hearing officer considered Respondents’ medication defense and rejected it. The court finds no administrative error here.

Petitioner argues the hearing officer’s finding Jake satisfied the definition of “vicious” was unsupported by proper findings or evidence. (Opening Brief 10:10-11.) Petitioner also asserts the hearing officer did not consider whether the dog should be declared vicious but instead found the dog satisfied the definition of “vicious” under LACC section 10.37.030, subdivision (B). (Opening Brief 10:1-3.)

Even assuming the court must use its independent judgment (which the court does not find), the court finds the weight of the evidence supports the Department’s finding Jake is a vicious dog as defined by LACC section 10.37.030. As noted earlier, under the LACC, a vicious dog is one that “when unprovoked, in an aggressive manner, inflicts severe injury on or kills a person.” (LACC, § 10.37.030, subd. (B).) As noted by the hearing officer, “[n]one of the Respondents contested the fact that Petrossian sustained severe injuries from the bites delivered by ‘Jake’ on July 27, 2021, at Chadwick’s property, located at 19504 Green Mountain Drive, Santa Clarita.” (AR 342.)

Petrossian testified Jake grabbed onto his face when he tried to put the harness of him and when Petrossian attempted to retreat, Jake continued to attack him, grabbing onto both of Petrossian’s arms in succession. (AR 271-272). After Jake initially grabbed Petrossian’s left arm, Petrossian attempted to extricate himself by hitting the dog with a vacuum cleaner attachment, but the dog then became more upset and attacked Petrossian’s right arm. (Id.) This undisputed evidence supports the hearing officer’s finding Jake is “vicious” under LACC section 10.37.030, subdivision (B)—Jake bit Petrossian “unprovoked, in an aggressive manner” and inflicted severe injury on him. Graphic photographs depict the severity of the injuries Petrossian suffered. (AR 53, 54, 118, 119.) Petrossian was hospitalized because of the attack and received surgery. (AR 129.)

Petitioner fails to identify any evidence challenging Petrossian’s credibility. Petitioner argues there was no specific finding as to Petrossian’s credibility, and “all version of the testimony explicitly disavow any recollection of what happened between the first nip and the rest of the incident.” (Opening Brief 10:7-10). The court finds Petrossian credible.[5]

Petrossian did not “disavow any recollection,” as asserted by Petitioner. Petrossian testified, “I really don’t remember the—in between my face and the beginning of the arm part.” (AR 273) Moreover, Petrossian clearly recalled Jake bit him on the face when he attempted to put a harness on Jake. (AR 272-273.) Petrossian stated:

I was trying to put the harness on. He didn’t seem aggressive. As soon as I bent down to get the rest of the harness on, just around the belly to bring it up so I could attach it to the top, he just grabbed my left face. And if I hadn’t pulled back, he would have got my throat. While I was going backwards, next thing I know, my arm is – you know, he’s got my arm, and he’s pulling on it.¶ I’m in shock. I don’t know what was going on. I could just see my skin – just skinning me alive. . . . .” (AR 271-272.)

The weight of the evidence also supports the hearing officer’s rejection of Petitioner’s argument the attack was “provoked” because Jake was under the influence of carprofen, a medication. Petitioner (and Cheng and Chadwick) did not present any expert testimony regarding the effects of carprofen or the likelihood the dog’s attack was the result of the carprofen. The only evidence presented on the issue was a website printout regarding carprofen. (AR 156.) The printout suggested a side effect of the medication might cause aggression. (AR 156.)

The hearing officer reasoned even if Jake’s attack was due to the carprofen, this would not qualify as provocation under LACC section 10.37.060, defining “provoke” as an “intentional act or omission that a reasonable person would conclude likely to cause a bite, injury, or attack by an ordinary dog.” Petitioner does not suggest the hearing officer’s interpretation was incorrect. Instead, Petitioner concedes “nobody” argued “that the attack was provoked by Jake being under the influence of Carprofen[.].” (Opening Brief 11:12-13.) In fact, Petitioner contends the statement that carprofen could act to provoke Jake “makes no sense.” (Opening Brief 12:11.)

But in most versions of Petrossian’s testimony, he was attempting to attach a harness—a procedure that requires assuming a dominative position over the dog, holding him still, reaching an arm around his underbelly and then encircling his torso with the other arm to fasten a clip—to a dog that was either passively or actively resisting. A reasonable person would conclude this was likely to cause a bite by an ordinary dog. (Opening Brief 11:15-19.)

Petrossian was not a stranger to Jake. (AR 129.) Petrossian “walked Jake multiple times during the two weeks prior to July 27, 2021, without a problem.” (AR 129.) Petrossian had previously used a harness to walk Jake. (AR 271.) Petrossian had previously put the harness on Jake. (AR 271.) Petrossian did not take action new to Jake leading to an attack; Jake did not seem aggressive to Petrossian when Petrossian was attempting to harness him. (AR 271.) Contrary to Petitioner’s conclusion, the court cannot find placing a harness on a dog would likely cause a bite by an ordinary dog; certainly, Petitioner has identified no evidence to support such a fact.

Based on the foregoing, the court finds the weight of the evidence supports the Department’s finding Jake is a vicious dog.

[1] Of course, it is possible an owner or custodian’s acts could constitute provocation which might be relevant to the vicious dog determination.

[2] Respondent adopted LACC section 10.37.060 in 2020. Respondent adopted Chapter 10.37 in 2001. The Department likely has not updated the materials provided to participants in vicious dog hearings.

[3] Under Petitioner’s theory, despite otherwise falling within the ordinance’s definition of a vicious dog, transfer of ownership of the dog after an attack—but before an administrative hearing—would preclude Respondent from finding the dog vicious and protecting the public.

[4] The provision addresses notice.

[5] Of course, under substantial evidence review—the applicable standard of review here—the court does not consider credibility. Thus, Petrossian’s testimony supports the hearing officer’s vicious dog finding.