The opinion
Filed 6/26/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
CANDIS DANIELSON,
A166787
Plaintiff and Appellant,
v. (Humboldt County
Super. Ct. No. CV2200262)
COUNTY OF HUMBOLDT,
Defendant and Respondent.
Appellant Candis Danielson was seriously injured by dogs owned by
Donald Mehrtens. She filed this action for damages against numerous
parties, including Mehrtens and the County of Humboldt (Humboldt County
or County). The County demurred.
Government Code section 815.6 provides that “[w]here a public entity is
under a mandatory duty imposed by an enactment that is designed to protect
against the risk of a particular kind of injury, the public entity is liable for an
injury of that kind proximately caused by its failure to discharge the duty
unless the public entity establishes that it exercised reasonable diligence to
discharge the duty.” The trial court sustained the County’s demurrer without
leave to amend.
Danielson argues the trial court erred. The crux of her arguments is
that she sufficiently pleaded that Humboldt County failed to discharge
certain mandatory duties regarding dangerous and unvaccinated dogs under
both state law and the Humboldt County Code, and those failures
proximately caused her injuries. We affirm. The duties Danielson identifies
were not mandatory within the meaning of Government Code section 815.6,
and the County is therefore immune from liability as a matter of law.
I. BACKGROUND
Plaintiff Candis Danielson was on defendant Donald Mehrtens’s rented
property in Humboldt County on January 28, 2021, when she was attacked
and mauled by Mehrtens’s two pit bulls, Sissy and Huss. Danielson lost the
lower half of her right leg at the knee, sustained extensive damage to her left
leg, and was bitten on her right hand. As a result of the incident, she
reportedly suffered from wound infections, posttraumatic stress disorder, and
emotional distress. Apparently, Mehrtens told Danielson that Sissy was the
primary aggressor, and Huss just followed Sissy’s lead. Mehrtens
surrendered both dogs to Humboldt County before the County held a hearing
to determine whether they were vicious or dangerous, and they were
euthanized on or about February 9, 2021. Two days later, on February 11,
2021, the County held a hearing at which Sissy and Huss were declared
vicious dogs, and Mehrtens was barred from owning dogs for three years.
(See Humboldt County Code,1 §§ 547-8, 547-19.)
A. The Complaint
Danielson’s first amended complaint alleged causes of action for
negligence and statutory (Civ. Code, § 3342) and common law strict liability
with respect to known dangerous animals against Mehrtens; negligence and
premises liability against various owners and landlords of the property where
the attack took place; and failure to perform a mandatory duty (Gov. Code,
1 Further undesignated statutory references are to the Humboldt
County Code.
2
§ 815.6) against Humboldt County. This appeal concerns solely the cause of
action against the County for its alleged failure to perform a mandatory duty.
Danielson alleged a number of facts on information and belief with
respect to the County’s prior contacts with Mehrtens involving various dogs.
In November 2010, the County dispatched an animal control officer to an
address in Garberville after a report that two aggressive dogs owned by
Mehrtens had gotten loose. Mehrtens told the officer that he owned three pit
bulls—Gouda, Kano, and Kona—and said that the dogs must have somehow
gotten out of his backyard. The County informed Mehrtens that one of the
dogs was unvaccinated and unlicensed and could be declared potentially
dangerous if there was a new incident. Mehrtens was told to have all of his
dogs vaccinated for rabies as soon as possible. Approximately two weeks
later, animal control was dispatched to another address in Garberville to deal
with a report that two dogs owned by Mehrtens had aggressively trapped a
woman in her own backyard. This time, the County cited Mehrtens for two
dogs being at large, unvaccinated, and unlicensed. (See §§ 541-21, subd. (a),
541-32, subd. (a), 542-10.)
Another report was investigated in June 2011 that Gouda and Kona
had entered the backyard of a third property, and attacked and injured
another dog. The County served Mehrtens with notice of a hearing to
determine whether the dogs were potentially dangerous and returned the
dogs to him pending the hearing. Several days later, Gouda and Kona
attacked another dog on that same property. Mehrtens voluntarily
surrendered both dogs to the County prior to the hearing.
Five years later, in November 2016, Mehrtens reported to the County
that he was bitten on the hand by his pit bull named Scrappy while they were
playing, and he sustained a broken finger and two deep puncture wounds.
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He was considering whether to have the dog euthanized after the expiration
of the 10-day home quarantine period. A County animal control officer told
Mehrtens to have Scrappy and another of his pit bulls (Sissy) vaccinated or
he would be cited. In a phone call from an animal control officer the following
week, Mehrtens reported he was contacting rescue groups to have the dogs
spayed and was looking into rabies vaccinations. On April 1, 2017, the
County learned that Scrappy had bitten someone on the leg. Apparently,
Scrappy, Sissy, and another of Mehrtens’s dogs escaped the property after
they chewed through the foundation skirting of the house while Mehrtens
was gone. Scrappy was put on a 10-day quarantine. However, after the
County was notified on April 11, 2017 that Scrappy bit another person on the
hand and attacked that person’s dog, Mehrtens surrendered Scrappy to the
County to be euthanized.
Three years later in June 2020, a County animal control officer
responded to Mehrtens’s home after receiving a report that Sissy had jumped
on a neighbor and bit him on the shoulder. Sissy was placed on a 10-day
quarantine. When the officer followed up approximately two weeks later,
Mehrtens said that he had an appointment to have Sissy spayed in two weeks
and that he would update the dog’s license and vaccinations at that time.
The officer told Mehrtens that the County would follow up again and might
impose penalties if those actions were not taken.
As stated above, Danielson was attacked by Sissy and Huss in
January 2021. She filed her government tort claim for damages with the
County in July 2021, stating it was responsible for her injuries. The County
rejected the claim the following month. In her amended complaint in
superior court, Danielson averred that the County was liable for her injuries
because it failed to perform mandatory duties imposed by various sections of
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the Humboldt County Code and the Health and Safety Code that require the
impound or euthanasia of dogs that are unvaccinated, unlicensed, or
dangerous. She alleged the statutes were designed to protect individuals
from attacks by dangerous or vicious dogs such as the attack on her by Sissy
and Huss. She asserted the following failures by the County to perform its
mandatory duties: failure to hold a hearing to determine whether Sissy was
potentially dangerous, vicious, or a nuisance; failure to euthanize Sissy after
her prior attack on a neighbor; failure to bar Mehrtens from owning dogs for
three years after that prior attack; and failure to impound Sissy and Huss for
being unlicensed and unvaccinated. Danielson further alleged that, had the
County discharged its mandatory duties, Mehrtens would have surrendered
the dogs to be euthanized long before she was injured in the vicious mauling.
She made no allegation that either Sissy or Huss had rabies.
B. The Demurrer
The County demurred to Danielson’s first amended complaint on the
grounds that her allegations against the County failed to allege sufficient
facts to state a cause of action in several respects. Most prominently, the
County argued it was under no mandatory duty warranting liability under
Government Code section 815.6, and the actions of its employees were
immune from liability under Government Code sections 818.2 and 820.2 as
discretionary acts or possible failures to enforce a statute or regulation. The
County also argued that the allegations were insufficient to support
causation and that the dangerous dog statutes at issue were designed to
protect against the particular kind of injury alleged by Danielson.
Danielson’s opposition essentially contested every argument advanced by the
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County. She requested the trial court take judicial notice of Humboldt
County’s status as a designated rabies area in 2018, 2019, and 2020.
After argument, the court sustained the demurrer without leave to
amend. The court reasoned that, even if the Humboldt County Code had
created a mandatory duty to hold a potentially dangerous dog hearing, it was
uncertain that the hearing would have resulted in Sissy’s destruction or
quarantine. The court found speculative the assertion that Mehrtens would
have surrendered Sissy to the County if faced with such a hearing. The court
also concluded that the vaccination statutes created a mandatory duty to set
up an impoundment system (which the County had done) but did not
mandate the impound of any specific, unvaccinated animals. A judgment
dismissing Humboldt County from the action was filed on October 21, 2022,
with notice of entry on October 24, 2022. This timely appeal followed.
II. DISCUSSION
Danielson contends that the trial court erred because the County’s
failure to perform mandatory duties proximately caused her injuries. She
argues that the Humboldt County animal control officer who responded to
Sissy’s previous dog bite incident had a mandatory duty under local
ordinance to petition the Humboldt County Animal Control Director for a
hearing at that time to determine whether Sissy was potentially dangerous
or a nuisance. She also claims that the County had a mandatory duty to
impound Sissy under state vaccination statutes and local ordinance. We
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disagree. The enactments identified by Danielson, and upon which she relies,
do not create the mandatory duties she suggests.
A. Standards of Review and the Possible Legal Bases of Liability
1. Standard of Review for Order Sustaining Demurrer
“ ‘ “In reviewing an order sustaining a demurrer, we examine the
operative complaint de novo to determine whether it alleges facts sufficient to
state a cause of action under any legal theory.” ’ ” (Beasley v. Tootsie Roll
Industries, Inc. (2022) 85 Cal.App.5th 901, 910–911 (Beasley).) We can also
consider matters which may be judicially noticed. (Howard Jarvis Taxpayers
Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814.) “ ‘We give the
complaint a reasonable interpretation, reading it as a whole and its parts in
their context. [Citation.] Further, we treat the demurrer as admitting all
material facts properly pleaded, but do not assume the truth of contentions,
deductions or conclusions of law. [Citations.] When a demurrer is sustained,
we determine whether the complaint states facts sufficient to constitute a
cause of action. [Citation.] And when it is sustained without leave to amend,
we decide whether there is a reasonable possibility that the defect can be
cured by amendment: if it can be, the trial court has abused its discretion and
we reverse.’ ” (County of Santa Clara v. Superior Court (2023) 14 Cal.5th
1034, 1041 (Santa Clara County).)
2. The Government Claims Act
“[T]he Government Claims Act ‘is a comprehensive statutory scheme
that sets forth the liabilities and immunities of public entities and public
employees for torts.’ ” (Santa Clara County, supra, 14 Cal.5th at p. 1047,
italics omitted.) Government Code section 815 declares the general rule of
immunity for public entities under the act, providing that “ ‘[e]xcept as
otherwise provided by statute’ ‘[a] public entity is not liable for an injury,
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whether such injury arises out of an act or omission of the public entity . . . or
any other person.’ ” (Santa Clara County, at p. 1045.) For example, “[a]
public entity is not liable for an injury caused by adopting or failing to adopt
an enactment or by failing to enforce any law.” (Gov. Code, § 818.2; see also
Gov. Code, § 821 [companion section extending the same immunity to public
employees].)
Thus, public entities and their employees are immune from tort
liability for legislative action or discretionary law enforcement activity.
(Guzman v. County of Monterey (2009) 178 Cal.App.4th 983, 996; see also
Gov. Code, § 820.2 [“Except as otherwise provided by statute, a public
employee is not liable for an injury resulting from [his or her] act or omission
where the act or omission was the result of the exercise of the discretion
vested in [him or her], whether or not such discretion be abused.”]; id.,
§ 815.2, subd. (b) [public entity not liable for an injury resulting from an act
or omission by an employee where that employee is immune from liability].)
These statutes recognize “ ‘that the wisdom of legislative or quasi-legislative
action, and the discretion of law enforcement officers in carrying out their
duties, should not be subject to review in tort suits for damages if political
responsibility for these decisions is to be retained.’ (Cal. Law Revision Com.
com., Deering’s Ann. Gov. Code (1982 ed.) foll. § 818.2, p. 165.)” (Guzman, at
p. 996.)
However, this broad grant of immunity is subject to the exception
contained in Government Code section 815.6 for certain ministerial acts not
subject to the exercise of discretion. “Where a public entity is under a
mandatory duty imposed by an enactment that is designed to protect against
the risk of a particular kind of injury, the public entity is liable for an injury
of that kind proximately caused by its failure to discharge the duty unless the
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public entity establishes that it exercised reasonable diligence to discharge
the duty.”2 (Gov. Code, § 815.6, italics added.) In other words, “ ‘[a]ctions
that are manifestly ministerial, because they amount only to obedience to
orders which leave the officer no choice, plainly include actions governed by
specific statutory or regulatory directives. Such actions have been found
nondiscretionary, and thus not immunized, because they entail the
fulfillment of enacted requirements.’ ” (Ortega v. Sacramento County Dept. of
Health & Human Services (2008) 161 Cal.App.4th 713, 728; see, e.g., Scott v.
County of Los Angeles (1994) 27 Cal.App.4th 125, 141 [liability could be
imposed for social worker’s failure to comply with mandatory requirement of
monthly face-to-face contact with child placed in foster care]; see also State
Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 350 (State
Dept.) [Sexually Violent Predators Act creates mandatory duty to have
inmate referred by Department of Corrections evaluated by two mental
health professionals].)
As our Supreme Court has explained: “[A]pplication of [Government
Code] section 815.6 requires that the enactment at issue be obligatory, rather
than merely discretionary or permissive, in its directions to the public entity;
it must require, rather than merely authorize or permit, that a particular
action be taken or not taken.” (Haggis v. City of Los Angeles (2000)
22 Cal.4th 490, 498 (Haggis).) It follows that “the duty of a public entity is
not mandatory if it is debatable whether the duty was adequately fulfilled.”
(County of Los Angeles v. Superior Court (2012) 209 Cal.App.4th 543, 554
(Los Angeles County).) Whether an enactment creates a mandatory duty is a
question of law. (Haggis, at p. 499.) This is because “ ‘[w]hether a particular
2 “ ‘Enactment’ ” for these purposes means “a constitutional provision,
statute, charter provision, ordinance or regulation.” (Gov. Code, § 810.6.)
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statute is intended to impose a mandatory duty, rather than a mere
obligation to perform a discretionary function, is a question of statutory
interpretation for the courts.’ ” (Ibid.) “We must, therefore, examine the
language, function and apparent purpose” of each cited enactment “to
determine if any or each creates a mandatory duty designed to protect
against the kind of injury plaintiff allegedly suffered here.” (Id. at p. 500.)
3. The County’s Regulation of Dangerous Animals
“Cities and counties have broad powers to regulate and control dogs
within the boundaries of their jurisdictions.” (San Diego County Veterinary
Medical Assn. v. County of San Diego (2004) 116 Cal.App.4th 1129, 1134 (San
Diego County).) Humboldt County has a comprehensive statutory framework
for addressing vicious, potentially dangerous, and nuisance dogs. (§ 547-1 et
seq.)3 Most applicable in this case is section 547-8, which provides in
relevant part: “If an animal control officer or a law enforcement officer has
investigated and determined that there exists probable cause to believe that
a dog is potentially dangerous, vicious or a nuisance, the animal control
officer, or his or her designee, shall petition the Animal Control Director, or
his or her appointee, for a hearing for the purpose of determining whether or
not the dog in question should be declared potentially dangerous, vicious, or a
nuisance.”
A “ ‘potentially dangerous dog’ ” includes any unprovoked dog which
(1) twice within a 36-month period when off the owner’s property “engages in
3 We grant the County’s request for judicial notice filed in
September 2023 with respect to relevant provisions of the Humboldt County
Code. (Evid. Code, §§ 451, subd. (a), 453.) When we cite to provisions of the
Humboldt County Code not encompassed within the County’s judicial notice
request, we take judicial notice on our own motion. (Evid. Code, § 459,
subd. (a).)
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any behavior that requires a defensive action by any person to prevent bodily
injury”; (2) bites a person causing a less-than-severe injury; or (3) twice
within a 36-month period when off the owner’s property attacks a domestic
animal causing injury. (§ 547-3.) A dog is considered “vicious” under the
Humboldt County Code if it is involved in dog fighting; has already been
declared potentially dangerous and later engages in behavior similar to the
behavior causing the potentially dangerous designation; or “when
unprovoked, in an aggressive manner inflicts severe injury or kills a human
being.” (§ 547-2.) “ ‘Severe injury’ ” is defined in the Humboldt County Code
as “any physical injury to a human being that results in muscle tears, broken
bones, or disfiguring lacerations or requires multiple sutures or corrective
cosmetic surgery.” (§ 547-5.)
A “ ‘[p]ublic nuisance dog’ ” is “any dog which gives offense to human
senses or substantially interferes with the rights of persons, other than its
owner or keeper, to the enjoyment of life or property.” (§ 547-4.)
Nonexclusive examples of public nuisance dogs include a dog which (1) has
been cited or impounded three times within a 36-month period for being off
the owner’s property in violation of state or local law “prohibiting the running
at large of dogs”; (2) causes damage to property other than its owner’s;
(3) harasses or intimidates persons on public or private property other than
property owned or controlled by its owner; (4) chases vehicles repeatedly
while off its owner’s property; (5) makes disturbing noises causing the
discomfort of neighbors or others in the vicinity of the property where the dog
is maintained; (6) has been allowed by its owner to produce odors which cause
discomfort to persons in the vicinity of the property where the dog is
maintained; (7) is one of a number of dogs or other animals maintained on
the property owned or controlled by its owner so as to be offensive to persons
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or dangerous to the public health, safety or welfare; or (8) when unprovoked,
has “bitten any person who is lawfully on the owner’s or keeper’s property
causing minor injury.” (§ 547-4, subds. (a)–(f).)
“If upon investigation it is determined by the animal control officer or
law enforcement officer that probable cause exists to believe the dog in
question poses an immediate threat to public safety the animal control officer
or law enforcement officer may seize and impound the dog pending the
hearing . . . . If public safety is adequately assured, the animal control officer
of the county may permit the dog to be confined at the owner’s expense in an
approved kennel or veterinary facility or on the owner’s premises.” (§ 547-14,
italics added.)
Following a hearing, a dog determined to be potentially dangerous or
vicious must be properly licensed and vaccinated at twice the usual cost, with
the dog’s status included in the licensing records. (§ 547-16, subd. (a).) When
on the owner’s property, it must be either indoors or in an approved
enclosure. A potentially dangerous dog may be off the owner’s property only
if it is restrained by a “substantial leash” or within an enclosed vehicle. (Id.,
subd. (b).) A vicious dog off the owner’s property must be “securely muzzled
and restrained, with a leash sufficient to restrain the dog, having a minimum
tensile strength of 300 pounds and not exceeding three feet in length,” and
under the owner’s direct control and supervision. (§ 547-17, subd. (h).) An
owner of a vicious dog must also comply with numerous other conditions,
including posting a sign on the premises and procuring liability insurance.
(§ 547-17.)
A vicious dog may be destroyed if it is determined that the dog’s release
would create a significant threat to the public health, safety, and welfare; the
owner of a vicious dog violates the conditions for keeping such a dog; or a
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vicious dog, when unprovoked, subsequently attacks or otherwise injures a
person. (§ 547-18.) The owner of a dog determined to be a vicious dog “may
be prohibited by the Animal Control Director from owning, possessing,
controlling, or having custody of any dog for a period of up to three years,” if
it is found that such ownership or possession “would create a significant
threat to the public health, safety, and welfare.” (§ 547-19.)
When a dog is declared to be a public nuisance dog at a hearing, the
hearing officer “may impose any reasonable conditions upon the ownership of
the dog which shall correct the circumstances which created the nuisance.”
(§ 547-20, subd. (c).) The dog must be delivered to the animal control officer
for impoundment until the owner satisfies the animal control officer that they
have taken steps to abate the nuisance. Failure to abate the nuisance within
five working days following impoundment results in forfeiture of ownership of
the dog. (Id., subd. (d).)
Violations of the Humboldt County Code relating to vicious or
potentially dangerous dogs are misdemeanors, and violations related to
public nuisance dogs are infractions. (§ 547-22.) If a potentially dangerous or
public nuisance dog has no additional prohibited behaviors for 36 months, the
dog “shall be removed” from the list of potentially dangerous or public
nuisance dogs. (§ 547-21.) The dog may be taken off the list earlier if the
owner demonstrates a change in circumstances, such as dog training that
mitigates the public risk. (Ibid.)
4. State and Local Vaccination and Licensing Statutes
State and local law contain provisions requiring that dogs be licensed
and vaccinated. In a chapter entitled “Rabies Control,” Health and Safety
Code section 121690 provides that cities and counties in rabies-designated
areas are responsible for ensuring that dog owners secure a dog license and
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have their dogs vaccinated for rabies. (Health & Saf. Code, § 121690,
subds. (a) & (b); see also San Diego County, supra, 116 Cal.App.4th at
p. 1134.) Generally speaking, a person who possesses any animal in violation
of the provisions of the chapter is guilty of an infraction. (Health & Saf.
Code, § 121630.) Health and Safety Code section 121690, subdivision (d)
(hereafter section 121690(d)) further states: “A dog in violation of this
chapter or any additional provisions that may be prescribed by a local
governing body shall be impounded, as provided by local ordinance.” In
addition, Health and Safety Code section 121690, subdivision (e) (hereafter
section 121690(e)) provides: “The governing body of each city, city and
county, or county shall maintain or provide for the maintenance of an animal
shelter system and a rabies control program for the purpose of carrying out
and enforcing this section.”
The Humboldt County Code has two chapters, including the provisions
for potentially dangerous or vicious dogs, that address possible impoundment
of dogs. Chapter 1 of division 4 of title V, entitled “Regulating and Licensing
Dogs,” appoints the Humboldt County Sheriff as the “Animal Control Officer”
(§ 541-12), authorizes the appointment of deputies (§§ 541-11, 541-13),
requires unspayed female dogs to be confined when in breeding condition
(§ 541-25), requires all dogs over four months of age to be licensed (§ 541-32,
subd. (a)), requires proof of rabies vaccination prior to licensing (id.,
subd. (b)), and authorizes creation of an animal control center under the
control of the Animal Control Officer for impound purposes (§ 541-61). Dogs
running at large may be impounded at the discretion of the Animal Control
Officer. (§§ 541-21, subd. (a), 541-26.) With one exception not relevant here,
violation of any of the provisions of this chapter is an infraction. (§§ 541-32,
subd. (c), 541-81.)
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Chapter 2 of division 4 of title V of the Humboldt County Code, entitled
“Compulsory Rabies Vaccination,” requires periodic vaccination of all dogs
over four months of age with an antirabies vaccine. (§ 542-3.) Pursuant to
section 542-13: “The Animal Control Officer shall operate a pound for the
purpose of isolating dogs that have bitten human beings. In each instance
the dog shall be held for such time as is prescribed by the [Humboldt County]
Health Officer; provided that when the Health Officer deems it proper, a
licensed and vaccinated dog that has bitten a human being may be
quarantined on the owner’s premises or in the care of a veterinarian or in a
licensed kennel.” Violation of any of the provisions of this chapter is a
misdemeanor. “Every person convicted of a violation of any such provision
shall be punished by a fine of not more than Five Hundred Dollars ($500.00)
or less than Twenty-five Dollars ($25.00), or by imprisonment in the County
Jail for not more than six (6) months, or by both such fine and
imprisonment.” (§ 542-14.)
B. Neither the Humboldt County Code nor the Health and Safety
Code Impose a Mandatory Duty in This Case
1. Hearings Regarding Potentially Dangerous Dogs
Danielson first argues that section 547-8 placed a mandatory duty on
Humboldt County to petition for a hearing regarding whether Sissy was
potentially dangerous or a nuisance after investigating the report that Sissy
had bitten a neighbor in June 2020, seven months before Danielson was
seriously attacked. She says the failure to convene such a hearing was a
breach of duty. According to Danielson, the use of “shall petition” in
section 547-8 makes the duty to convene a hearing obligatory. Once the
officer investigated, it would have been clear that probable cause existed to
believe Sissy was a potentially dangerous or nuisance dog because probable
cause is an objective standard.
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In making this argument, Danielson seeks to distinguish Los Angeles
County. But Los Angeles County is not only instructive, it is persuasive.
There, the question was whether the county had a mandatory duty under
local ordinance to capture and take into custody two privately owned pit bulls
before they attacked one of the plaintiffs in that case. (Los Angeles County,
supra, 209 Cal.App.4th at p. 546.) Dog owners were required by local
ordinance to comply with 21 conditions, including the following
requirement: “ ‘No animal shall be allowed to constitute or cause a hazard, or
be a menace to the health, peace or safety of the community.’ ” (Id. at p. 547.)
Upon a violation of the ordinance, “ ‘the director [of the County Department
of Animal Care and Control] shall capture and take into custody [¶] . . . [¶]
. . . [a]ny animal being kept or maintained contrary to the provisions of this
Division 1, the Animal Control Ordinance, or any other ordinance or state
statute.’ ” (Ibid., italics omitted.) The appellate court concluded that this
scheme created no mandatory duty, reasoning that “what constitutes a
‘hazard’ or a ‘menace to the health, peace or safety of the community’ is an
inherently subjective question which requires the exercise of considerable
discretion based on consideration of a host of competing factors.” (Id. at
p. 550.)
The Los Angeles County court then considered whether a local
ordinance, identical in all relevant respects to section 547-8 at issue in this
case, created a mandatory duty to petition for a potentially dangerous dog
hearing because the dog involved had previous incidents in the months
preceding the plaintiff’s injury. (Los Angeles County, supra, 209 Cal.App.4th
at pp. 547–548, 553.) The Los Angeles County court concluded there was no
mandatory duty. It explained: “This provision obligates the County to file a
petition in the superior court when an officer has determined a dog is
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‘potentially dangerous.’ But there is no obligation to act until an animal
control officer or a law enforcement officer has ‘determined’ that there is
probable cause to believe ‘the dog in question’ is ‘potentially dangerous or
vicious.’ In this case plaintiffs presented no evidence that such a
determination had been made.” (Id. at p. 553.)
The court went on to explain that “[a]n enactment requiring a public
entity to conduct an investigation under certain circumstances does not,
without more, impose a mandatory duty to take certain specified action.”
(Los Angeles County, supra, 209 Cal.App.4th at p. 554; ibid., citing
MacDonald v. California (1991) 230 Cal.App.3d 319, 331 [“ ‘[E]xecution of the
[statutory] duties to visit day care homes and investigate complaints
necessarily involves some exercise of discretion in deciding what action to
take, and when, to evaluate and assess a particular situation. A party
disagreeing with or harmed by the exercise or nonexercise of such discretion
has not explicitly been provided any remedy in damages by the Legislature.
[¶] Moreover, . . . a mandatory duty to investigate is not the same as a
mandatory duty to take action after the investigation.’ ”].)
Los Angeles County is on all fours with this case, and we adopt its
analysis. Section 547-8 requires that an animal control officer petition for a
potentially dangerous dog hearing only if he or she has investigated and
determined “that there exists probable cause to believe that a dog is
potentially dangerous, vicious or a nuisance.” Thus, whether to investigate is
discretionary, and there are no explicit instructions directing how such an
investigation should be conducted, how long it can continue, or what must be
done at its conclusion. Under these circumstances, the ordinance creates no
mandatory duty because it presents “ ‘debatable issues over whether the
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steps taken by the [county] adequately fulfilled its obligation.’ ” (Los Angeles
County, supra, 209 Cal.App.4th p. 550.)
Danielson seeks to distinguish Los Angeles County because, in that
case, the government presented evidence that it did not know which of the
defendant’s many dogs was involved in previous incidents before the plaintiff
was attacked. (Los Angeles County, supra, 209 Cal.App.4th at p. 553.) While
this is true, it is a distinction without a difference. Just as there was no
evidence in Los Angeles County supporting a conclusion that a probable cause
determination had been made, there is similarly no evidence here. Indeed,
there is some evidence that suggests the animal control officer had not
finished his investigation. At his follow-up visit two weeks after the 2020 dog
bite incident, Mehrtens told the officer he was in the process of getting Sissy
spayed, licensed, and vaccinated. The officer responded that the County
would consider assessing penalties if those actions were not taken, but the
record contains no further evidence regarding the investigation. There is no
evidence that the officer ever concluded the investigation or made a probable
cause determination.
Danielson’s argument that probable cause is an objective standard and
that the record is clear Sissy fell within the definition of potentially
dangerous or nuisance dogs misses the mark. We agree that Sissy could have
been deemed potentially dangerous in June 2020 for an unprovoked bite of a
person causing injury. (§ 547-3.) However, this possibility does not compel
the conclusion that the animal control officer had completed his investigation
and actually reached that conclusion. Rather, the inquiry necessarily
involved exercises of discretion in deciding what actions were warranted,
when to take them, and how to evaluate and assess the situation. Here, it
seems clear that Mehrtens’s expressed willingness to get Sissy spayed,
18
vaccinated, and licensed bore on the officer’s decision whether to make the
probable cause finding which would trigger a dangerous dog hearing. The
evidence of Mehrtens’s history of dog ownership might also be relevant in this
context.
Moreover, our “[a]nalysis of duty occurs at a higher level of generality”
than urged by Danielson. (See Vasilenko v. Grace Family Church (2017)
3 Cal.5th 1077, 1084; id. at p. 1083, citing Rest.3d Torts, Liability for
Physical and Emotional Harm, § 7, com. a, p. 78 [“ ‘No-duty rules are
appropriate only when a court can promulgate relatively clear, categorical,
bright-line rules of law applicable to a general class of cases.’ ”].) As the
County pointed out in its briefing, many determinations under section 547-8
are significantly more complex than the one at issue here and involve
“inherently subjective question[s] which require[] the exercise of considerable
discretion based on consideration of a host of competing factors.” (Los
Angeles County, supra, 209 Cal.App.4th at p. 550.) As just one example,
determining under section 547-4 whether a dog “gives offense to human
senses or substantially interferes with the rights of persons, other than its
owner or keeper, to the enjoyment of life or property” is clearly subjective and
based on consideration of many competing factors. There is considerable
discretion involved both in the scope of an investigation and in whether and
how to make a probable cause determination.
Finally, we agree with Danielson that the use of “shall” in section 547-8
creates a mandatory duty for an animal control officer or a law enforcement
officer to petition for a dangerous dog hearing, but that is only after the
officer has exercised his or her discretion in conducting the investigation and
has concluded there is probable cause. We view section 547-8 as being
similar to the statute said to create a mandatory duty in Haggis, supra,
19
22 Cal.4th 490. That case involved several local ordinances regarding
development of property in landslide zones. (Id. at p. 495.) One such
provision stated: “ ‘Whenever the Superintendent of Building determines by
inspection that a property, either improved or unimproved, is unstable
because of landslide, subsidence or inundation he shall give written notice to
the owner that the property is substandard. Notice shall specify conditions
creating substandard classification. [¶] At the time of giving the above
mentioned notice, the Superintendent of Building shall also file with the office
of the County Recorder a certificate that the property is substandard and that
the owner thereof has been so notified. The certificate shall specify conditions
creating substandard classification.’ ” (Id. at p. 501, italics added by Haggis.)
Our Supreme Court found a mandatory duty under the ordinance to
record a certificate of substandard condition, but only after the discretionary
decision had been made that the property was unstable. The court stated:
“We agree that the determinations whether a property is unstable, and what
conditions make it so and thus must be remedied, rest, under the ordinance,
with the judgment and discretion of the superintendent of building or his or
her staff. But once these determinations have been made—as they allegedly
were in this case in 1966 and 1970—the ordinance does not contemplate any
further discretionary decision as to whether to record the certificate of
substandard condition; rather, the ordinance commands that such a
certificate be recorded when the owner is given notice of the substandard
condition. In this respect—the only respect pertinent to plaintiff’s first cause
of action—[the provision] create[d] a mandatory duty.” (Haggis, supra,
22 Cal.4th at p. 502.) So too here, once an officer conducts a discretionary
investigation and makes a probable cause determination, section 547-8
mandates that officer petition for a dangerous dog hearing. But this does not
20
save Danielson’s complaint, as there is no evidence here that the
investigation was ever completed or a probable cause determination made.
Rather, on this record, there was no mandatory duty to petition for a
dangerous dog hearing.
2. Impoundment for Failure to Vaccinate or License
Danielson also claims the County had a mandatory duty to impound
Sissy under county ordinances and the Health and Safety Code provisions
mandating rabies vaccination. She asserts that, after Sissy bit Mehrtens’s
neighbor in June 2020 and Mehrtens told the responding officer that Sissy
was neither licensed nor vaccinated, the officer had a mandatory duty to
impound the dog under section 121690(d) and Humboldt County Code
section 542-13. We disagree.
Nothing in the Humboldt County Code mandates impoundment under
these circumstances. Humboldt County Code provisions with respect to the
regulation and licensing of dogs authorize creation of an animal control
center under the control of the Animal Control Officer for impound purposes.
(§ 541-61.) But only dogs running at large may be impounded at the
discretion of the Animal Control Officer. (§§ 541-21, 541-26.) In addition,
with respect to potentially dangerous dogs, section 547-14 states: “If upon
investigation it is determined by the animal control officer or law
enforcement officer that probable cause exists to believe the dog in question
poses an immediate threat to public safety the animal control officer or law
enforcement officer may seize and impound the dog pending the hearing.”
(Italics added.) This provision is clearly discretionary as it does not mandate
seizing or impounding any dog.
Finally, the chapter on compulsory rabies vaccination in the Humboldt
County Code mandates: “The Animal Control Officer shall operate a pound
21
for the purpose of isolating dogs that have bitten human beings. In each
instance, however, the dog shall be held for such time as is prescribed by the
Health Officer.” (§ 542-13, italics added.) Danielson argues that this
language creates a mandatory duty to impound unvaccinated dogs that have
bitten someone. However, “[a] mandatory duty is created only when an
enactment requires an act that is clearly defined and not left to the public
entity’s discretion or judgment. [Citation.] Such an act is mandated only to
the extent of the enactment’s precise formulation. When the enactment
leaves implementation to an exercise of discretion, ‘lend[ing] itself to a
normative or qualitative debate over whether [the duty] was adequately
fulfilled,’ an alleged failure in implementation will not give rise to liability.”
(State Dept., supra, 61 Cal.4th at p. 350; accord, Guzman v. County of
Monterey (2009) 46 Cal.4th 887, 894 [“ ‘ “the mandatory nature of the duty
must be phrased in explicit and forceful language” ’ ”].) Here, section 542-13
leaves the length of impoundment to the discretion of the Humboldt County
Health Officer, which presumably could include a decision not to impound at
all. Since the length of any impoundment is entirely within the discretion of
a public official, section 542-13 does not create a mandatory duty.
Thus, Danielson can prevail on this point only if Health and Safety
Code section 121690 creates a mandatory duty to impound unvaccinated or
unlicensed dogs. It does not. With exceptions not relevant here, the statute
provides generally that all dogs must be licensed and vaccinated against
rabies. (Health & Saf. Code, § 121690, subds. (a) & (b).)4 Section 121690(d)
4 The requirements of Health and Safety Code section 121690 are only
applicable in “rabies areas.” A rabies area is “any area not less than a county
as determined by the [State Director of Health Services] within a region
where the existence of rabies constitutes a public health hazard, as found and
22
states: “A dog in violation of this chapter or any additional provisions that
may be prescribed by a local governing body shall be impounded, as provided
by local ordinance.” (Italics added.) According to Danielson, the italicized
language in section 121690(d) creates a mandatory duty to impound dogs
that are not licensed or vaccinated in accordance with subdivisions (a) and
(b).
Danielson also argues that section 121690(e) creates a mandatory duty.
Pursuant to section 121690(e): “The governing body of each city, city and
county, or county shall maintain or provide for the maintenance of an animal
shelter system and a rabies control program for the purpose of carrying out
and enforcing this section.” (Italics added.) Thus, she argues there are two
mandatory duties in section 121690, a duty to impound unvaccinated dogs
contained in section 121690(d) and a duty to implement a local regulatory
scheme requiring impoundment contained in section 121690(e).
In addition to the use of the word “shall” in these two subdivisions of
the statute, Danielson relies on Department of Public Health v. Board of
Supervisors (1959) 171 Cal.App.2d 99, 101 (Dept. of Health), in which the
state Department of Health sought a writ of mandate to compel various
boards of supervisors and city councils who had failed or refused to adopt
ordinances under a predecessor to section 121690(e) to do so. (Dept. of
declared by the director.” (Health & Saf. Code, § 121585.) Designation of a
rabies area lasts for one year, unless continued or terminated prior to its
conclusion. (Ibid.) Danielson filed a request for judicial notice in this action
in June 2023 asking us, among other things, to take judicial notice of official
documents declaring Humboldt County a “rabies area” during 2018, 2019,
and 2020. For purposes of this opinion, we will assume without deciding that
Humboldt County was a rabies area during relevant timeframes. We
therefore deny the request for judicial notice in its entirety as unnecessary to
our decision.
23
Health, at pp. 101–102.) The court concluded that the former statute “clearly
set[] forth the duty of the governing body of each city, city and county, or
county to provide for the maintenance of a pound system and a control
program for the purpose of carrying out and enforcing provisions of said
section.”5 (Dept. of Health, at p. 104.) In other words, “[t]he duty imposed
under [the prior statute was] absolute. The local agencies in carrying out
state affairs perform a mere ministerial duty.” (Id. at p. 105.) Since
section 121690(e) was found to create a mandatory duty in Dept. of Health,
Danielson posits, we should reach the same conclusion with respect to
section 121690(d).
We have no quarrel with the analysis in Dept. of Health. But it does
not compel a conclusion that section 121690(d) creates a mandatory duty to
impound unvaccinated dogs. Preliminarily, and contrary to Danielson’s
argument, our Supreme Court has concluded that the use of “shall” in the
Health and Safety Code is not always mandatory. (Guzman v. County of
Monterey, supra, 46 Cal.4th at p. 899 [the inclusion of “shall” in a section of
the Health and Safety Code “does not necessarily create a mandatory duty;
there may be ‘other factors [that] indicate that apparent obligatory language
was not intended to foreclose a governmental entity’s or officer’s exercise of
discretion’ ”]; accord, AIDS Healthcare Foundation v. Los Angeles County
Dept. of Public Health (2011) 197 Cal.App.4th 693, 701 [“ ‘Even if mandatory
language appears in [a] statute creating a duty, the duty is discretionary if
5 As adopted and in effect at the time Dept. of Health was decided, the
provision provided: “It shall be the duty of the governing body of each city,
city and county, or county to maintain or provide for the maintenance of a
pound system and a rabies control program for the purpose of carrying out
and enforcing the provisions of this section.” (Health & Saf. Code, former
§ 1920, subd. (e); Stats 1957, ch. 1781, § 2, p. 3175.)
24
the [public entity] must exercise significant discretion to perform the
duty.’ ”].) More importantly, however, Danielson ignores critical differences
between section 121690(d) and (e).
As stated above, section 121690(d) provides: “A dog in violation of this
chapter or any additional provisions that may be prescribed by a local
governing body shall be impounded, as provided by local ordinance.”
Danielson refers to Health and Safety Code section 121695, which clarifies
that local governments have the discretion to enact more stringent
ordinances in this context, to argue that any more stringent local ordinance
must provide for the impoundment of unvaccinated or unlicensed dogs. But
her proposed construction ignores the comma before the concluding phrase
“as provided by local ordinance.” A fair interpretation of the statutory
language is that a local entity has the authority to impound dogs in violation
of Health and Safety Code section 121690 or related local provisions to the
extent impoundment is provided for by local ordinance. In other words,
violations of state law or local ordinance are punishable by impound to the
extent it is provided as a remedy in a local law.6
6 Although we base our conclusion on the plain language of Health and
Safety Code section 121690, we note that the legislative history of the statute
supports our construction. As originally adopted in 1957, subdivision (d)
stated: “Any dog in violation of the provisions of this article, and such
additional provisions as may be prescribed by any local governing body, shall
be impounded as provided by local ordinance.” (Health & Saf. Code, former
§ 1920, subd. (d); Stats. 1957, ch. 1781, § 2, p. 3175.) In 1986, the statute was
amended as follows: “Any dog in violation of the provisions of this article and
any additional provisions which may be prescribed by any local governing
body, shall be impounded, as provided by local ordinance.” (Health & Saf.
Code, former § 1920, subd. (d); Stats. 1986, ch. 664, § 3, p. 2244.) Finally, in
1999, the Legislature removed the extraneous comma after “governing body,”
to leave us with the current version of section 121690(d). (Stats. 1999,
25
Here, as we explained in part II.B.1., ante, under local ordinance a dog
that has bitten a person may be impounded in Humboldt County at the
discretion of the health officer. Thus, Danielson cannot establish that
Humboldt County had a mandatory duty to impound Sissy for being
unvaccinated or unlicensed after she bit Mehrtens’s neighbor in 2020.
Danielson’s injuries in this case were no doubt severe and likely life
altering. We sympathize with her desire to be compensated for her injuries.
But she has failed to identify any statute creating a mandatory duty which
was breached by the County in this context, a situation that cannot be
rectified by further amendment of the pleadings. Because the lack of a
mandatory duty is dispositive, we will not consider Danielson’s other
arguments. We do, however, agree with the trial court that her claim raises
a serious question of causation. The trial court correctly granted Humboldt
County’s demurrer without leave to amend because the County is immune
from the tort liability alleged in Danielson’s complaint. (See Gov. Code,
§§ 815.2, 818.2, 820.2, 821.)
III. DISPOSITION
The judgment is affirmed. Each party shall bear their own costs on
appeal.
ch. 418, § 2, p. 2783.) In our view, all of these iterations group together state
and local violations, which are subject to impoundment “as provided by local
ordinance.” (§ 121690(d).)
26
SIGGINS, J.*
WE CONCUR:
BANKE, ACTING P. J.
LANGHORNE WILSON, J.
A166787
Danielson v. County of Humboldt
* Retired Presiding Justice of the Court of Appeal, First Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
27
Trial Court: Humboldt County Superior Court
Trial Judge: Timothy A. Canning
Counsel:
Steven B. Stevens, a Prof. Corp., Steven B. Stevens; Conal F. Doyle; and
Zachary Zwerdling for Plaintiff and Appellant.
The Mitchell Law Firm, LLP, Nicholas R. Kloeppel and Karen J. Roebuck for
Defendant and Respondent.
28