Piedra v. City of Long Beach CA2/3

Filed 12/9/24 Piedra v. City of Long Beach CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has

not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

REINALDO PIEDRA, B332748

(Los Angeles County

Plaintiff and Appellant, Super. Ct.

No. 22STCV03072)

v.

CITY OF LONG BEACH,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Daniel M. Crowley and Lisa R. Jaskol, Judges.

Affirmed.

The Gould Law Firm, Michael A. Gould, and Aarin A. Zeif,

for Plaintiff and Appellant.

Office of the Long Beach City Attorney, Dawn McIntosh,

City Attorney, and Michael A. Swift, Deputy City Attorney, for

Defendant and Respondent.

______________________________________________

INTRODUCTION

Plaintiff and appellant Reinaldo Piedra appeals from a

judgment of dismissal following a successful demurrer brought by

defendant and respondent City of Long Beach (the City). Piedra

was bitten by a pit bull and then sued City for his injuries under

a theory of negligence. Piedra asserted the City was on notice

that the pit bull was a vicious animal because the dog had

attacked a city attorney six years prior to his injuries. Piedra

alleged the City was required but failed to hold a public hearing

under Long Beach Municipal Code section 6.16.270 to determine

the “vicious animal” status of the pit bull, which would have been

then euthanized or contained. The trial court sustained the

City’s demurrer, concluding the City was immune from liability

for its discretionary acts under Government Code section 815.1

Piedra argues this was error because the City is liable

under section 815.6, which creates an exception to governmental

immunity when the entity fails to discharge a mandatory duty

imposed by an enactment. Alternatively, Piedra argues that even

if the City is immune from liability for its discretionary decisions

and acts, the City is liable here because it failed to exercise such

discretion. We affirm because the City is immune from liability

under section 815.

1 All undesignated statutory references are to the

Government Code. All undesignated municipal code references

are to the Long Beach Municipal Code.

2

FACTS AND PROCEDURAL BACKGROUND

1. Piedra’s Lawsuit

In 2021, a pit bull attacked and bit Piedra. In January

2022, Piedra sued the City, the dog’s owner, and other

defendants, alleging the City failed to take action to prevent

Piedra from being bitten by the dog, which the City knew was a

danger to the public. After the court sustained multiple

demurrers, in October 2022, Piedra filed the operative third

amended complaint (TAC), which alleged causes of action for

general negligence and strict liability. Only the first cause of

action for general negligence was asserted against the City.

The first cause of action alleged that in April 2015, the City

received complaints that the dog was running loose in the

neighborhood. The City investigated the dog’s owner’s residence

and found that the side gate in the driveway allowed the dog to

slip under and run free. The City issued a warning to the dog’s

owner for a leash violation, advising her that any further

complaints could result in the dog being seized for public safety

reasons.

In June 2015, without provocation, the dog allegedly bit a

city attorney on his inner thigh while the City was performing a

raid on a condemned property where the dog’s owner lived. The

City prepared a bite report following the incident and informed

the dog’s owner that it intended to impound her dog. After

holding the dog for 10 days, the City determined that it would not

place a “vicious hold” on the dog and informed the dog’s owner

that she could redeem her dog.

Piedra alleged the City violated Municipal Code section

6.16.270 by failing to hold a public hearing to determine whether

the dog was a “vicious animal,” within the meaning of Municipal

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Code section 6.16.250, subdivision A. Piedra asserted the dog

would not have attacked him had the City held the meeting

because the City would have “humanely destroyed” or “issue[d]

certain rules and regulations pertaining to the keeping and

containing of” the dog.

2. The Demurrer

In November 2022, the City demurred to the TAC on the

same grounds as its prior demurrers. The City maintained that

it was immune from direct liability under section 815 and from

vicarious liability under section 820.2. The City contended

Municipal Code section 6.16.270 did not impose a mandatory

duty to hold a public hearing as to the dog’s “vicious animal”

status because such a hearing was required only when there was

sufficient evidence giving rise to a suspicion that the dog met the

qualifications of a “vicious animal.” In addition, the City asserted

that the connection between the City’s last involvement with the

dog and Piedra’s injuries years later was tenuous.

Piedra argued in opposition that the City had a mandatory

duty under section 815.6 because the pleaded Municipal Code

sections use mandatory language requiring the City to hold a

public hearing when a dog bites. Piedra also asserted the City

was not immune under section 820.2 because its employees never

consciously exercised discretion to consider if the dog should be

destroyed.

In sustaining the City’s demurrer, the trial court found

Piedra “failed to identify a statute that imposes liability on the

City for his injuries.” The court concluded that “[n]one of [the

pleaded Long Beach] ordinances impose liability on the City for a

dog bite.” The court also found Piedra had “no factual allegations

that establish how the City’s failure to hold [the public hearing]

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was a substantial factor in causing damages to Plaintiff 6 years

later.” The court denied Piedra leave to amend, finding he failed

to articulate how he could amend his pleading to render it

sufficient.

On September 11, 2023, the court entered a judgment

dismissing Piedra’s cause of action against the City. Piedra

timely appealed.

DISCUSSION

Piedra contends it was error to sustain the demurrer

because prior to his injuries, the City had a mandatory duty

under section 815.6 to hold a public hearing as to the dog’s

“vicious animal” status pursuant to Municipal Code section

6.16.270. Alternatively, Piedra argues that even if the City has

immunity for its discretionary decisions and acts, the City is

liable because it failed to exercise such discretion.

1. Standard of Review

“On review from an order sustaining a demurrer, ‘we

examine the complaint de novo to determine whether it alleges

facts sufficient to state a cause of action under any legal theory,

such facts being assumed true for this purpose.’ ” (Committee for

Green Foothills v. Santa Clara County Bd. of Supervisors (2010)

48 Cal.4th 32, 42.)

“A demurrer tests the legal sufficiency of the challenged

pleading.” (Brown v. Los Angeles Unified School Dist. (2021) 60

Cal.App.5th 1092, 1103.) “We accept as true all material facts

properly pleaded in the complaint, but do not assume the truth of

contentions, deductions, or conclusions of fact and law.” (Ibid.)

“The question of a plaintiff’s ability to prove the allegations, or

the possible difficulty in making such proof, does not concern the

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reviewing court and plaintiffs need only plead facts showing that

they may be entitled to some relief.” (Ibid.)

Central to this appeal is whether Piedra alleged that the

City had a mandatory duty. “Whether an enactment creates a

mandatory duty is a question of law: ‘Whether a particular

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.’ ” (Haggis v. City of Los

Angeles (2000) 22 Cal.4th 490, 499 (Haggis).) “The enactment’s

language ‘is, of course, a most important guide in determining

legislative intent, [but] there are unquestionably instances in

which other factors will indicate that apparent obligatory

language was not intended to foreclose a governmental entity’s or

officer’s exercise of discretion.’ ” (Ibid.) “In construing the

statute, we must give the statute a reasonable construction that

conforms to the apparent purpose and intention of the

lawmakers, and ‘the various parts of the statutory enactment

must be harmonized by considering the particular clause in the

context of the whole statute.’ ” (Department of Corporations v.

Superior Court (2007) 153 Cal.App.4th 916, 927.)

2. Public Entity Liability

“Public entities in California are not liable for tortious

injury unless liability is imposed by statute. (§ 815.) ‘[S]overeign

immunity is the rule in California; governmental liability is

limited to exceptions specifically set forth by statute.’ ” (San

Mateo Union High School Dist. v. County of San Mateo (2013) 213

Cal.App.4th 418, 427 (San Mateo); § 815 [“A public entity is not

liable for an injury, whether such injury arises out of an act or

omission of the public entity or a public employee or any other

person.”].) “However, this broad grant of immunity is subject to

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the exception contained in Government Code section 815.6 for

certain ministerial acts not subject to the exercise of discretion.”

(Danielson v. County of Humboldt (2024) 103 Cal.App.5th 1, 13

(Danielson).)

Section 815.6 states: “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 public entity

establishes that it exercised reasonable diligence to discharge the

duty.” “Thus, the government may be liable when (1) a

mandatory duty is imposed by enactment, (2) the duty was

designed to protect against the kind of injury allegedly suffered,

and (3) breach of the duty proximately caused injury.” (State

Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339,

348.)

“[A]pplication of 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, supra, 22 Cal.4th at p. 498.)

Courts have “recognized that under section 815.6, inclusion of the

term ‘shall’ in an enactment ‘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.”

[Citations.]’ [Citation.] ‘In determining whether a mandatory

duty actionable under section 815.6 had been imposed, the

Legislature’s use of mandatory language (while necessary) is not

the dispositive criteria. Instead, the courts have focused on the

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particular action required by the statute, and have found the

enactment created a mandatory duty under section 815.6 only

where the statutorily commanded act did not lend itself to a

normative or qualitative debate over whether it was adequately

fulfilled.’ [Citation.] ‘It is not enough,’ the California Supreme

Court has declared, ‘that the public entity or officer have been

under an obligation to perform a function if the function itself

involves the exercise of discretion.’ ” (San Mateo, supra, 213

Cal.App.4th at p. 429.)

3. Plaintiff Failed to Plead a Mandatory Duty

Piedra asserts the City violated a mandatory duty created

by Municipal Code section 6.16.270, which states in relevant part:

“Where there exists evidence sufficient to give rise to the

suspicion that a dog or other animal falls within the provisions of

Subsection 6.16.250.A., the Director shall cause a public hearing

to be conducted for the purpose of determining whether the dog

or other animal is a vicious animal.”2 (Mun. Code, § 6.16.270,

subd. B.) Piedra asserts this Municipal Code section imposes a

mandatory duty on the City because it indicates that the Director

shall hold a public hearing if there is evidence that a dog is a

“vicious animal.”

As mentioned above, the inclusion of “shall” does not in and

of itself create a mandatory duty. We must evaluate the nature

of the statutorily commanded act to determine whether there is a

mandatory duty. (San Mateo, supra, 213 Cal.App.4th at p. 429.)

While Municipal Code section 6.16.270 specifies that “the

2 “Director” means the City’s “Director of Animal Care

Services Bureau of the Department of Health and Human

Services or his/her designee.” (Mun. Code, § 6.04.020.)

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Director shall cause a public hearing to be conducted,” this act is

dependent on the Director’s decision that “there exists evidence

sufficient to give rise to the suspicion that a dog or other animal

falls within the provisions of Subsection 6.16.250.A.” (Mun.

Code, § 6.16.270, subd. B.) Municipal Code section 6.16.250,

subdivision A, states: “ ‘Vicious animal’ is any animal which

bites or attempts to bite any human or animal without

provocation, or which has a disposition or propensity to attack,

bite or menace any human or animal without provocation and

endangers the health and safety of any person.”

Piedra asserts that the vicious animal definition requires

the City to hold a public hearing when a dog actually bites

without regard to whether the animal was provoked. Citing the

“last antecedent rule,” Piedra contends that the phrase “without

provocation” modifies only the immediately preceding phrase

“attempts to bite,” and not “any animal which bites.” (Mun.

Code, § 6.16.250, subd. A.)

We disagree with Piedra’s construction of the statute. “A

longstanding rule of statutory construction—the ‘last antecedent

rule’—provides that ‘qualifying words, phrases and clauses are to

be applied to the words or phrases immediately preceding and

are not to be construed as extending to or including others more

remote.’ ” (White v. County of Sacramento (1982) 31 Cal.3d 676,

680.) However, an exception to the last antecedent rule provides

that “ ‘ “[w]hen several words are followed by a clause which is

applicable as much to the first and other words as to the last, the

natural construction of the language demands that the clause be

read as applicable to all.” ’ [Citations.]” (Id. at pp. 680–681.)

Applying those rules here, we conclude that “without

provocation” modifies both “bites” and “attempts to bite.”

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Although “bites” is separated from “attempts to bite” by the

conjunction “or,” the phrases are parallel because they share the

same subject—“any animal”—and the same object—“any human

or animal.” (Mun. Code, § 6.16.250, subd. A [“ ‘Vicious animal’ is

any animal which bites or attempts to bite any human or animal

without provocation”].) Since the verbs are closely related and

connected in the sentence structure, the natural construction of

the language demands that the adverbial modifier, “without

provocation,” applies to both “bites” and “attempts to bite.” Thus,

under Municipal Code section 6.16.250, subdivision A, a dog that

bites a human is categorized as a vicious animal only if it bit

without provocation.

Reading Municipal Code sections 6.16.250, subdivision A,

and 6.16.270, subdivision B, together, we conclude that the City

was required to hold a public hearing about the pit bull only if

the Director determined there was sufficient evidence that the

pit bull bit the city attorney without provocation or had a

disposition or propensity to attack or bite. In other words, there

was no mandatory duty to hold the hearing if the City concluded

that there did not exist “evidence sufficient to give rise to the

suspicion that” (Mun. Code, § 6.16.270, subd. B) the pit bull was a

vicious animal under Municipal Code, section 6.16.250,

subdivision A.

In the present case, the operative complaint alleged that

the City determined the pit bull was not vicious after

quarantining the dog for 10 days. This determination necessarily

included an implicit finding that the animal did not bite the city

attorney without provocation during the City’s raid on the

owner’s home. Therefore, the City did not have a mandatory

duty to hold a hearing.

10

The decision of whether to hold a public hearing at issue in

the present case is much like that in Danielson, supra, 103

Cal.App.5th 1, which involved an appeal following the trial

court’s sustaining of a demurrer based on governmental

immunity. There, the plaintiff, who was mauled by two pit bulls,

sued the County of Humboldt for her injuries. (Id. at p. 9.) She

asserted the county had violated its mandatory duty to petition

for a hearing to determine whether one of the pit bulls, who had

bitten a neighbor seven months prior to her injuries, was

potentially dangerous or a nuisance. (Id. at p. 18.) The county’s

ordinance required an animal control officer or a law enforcement

officer to investigate and determine whether probable cause

existed that a dog was potentially dangerous, vicious, or a

nuisance. If there was probable cause, the officer was to petition

the Animal Control Director for a hearing to decide if the dog

should be declared as such. (Id. at pp. 14–15.) Like in the case at

bar, the plaintiff urged that the language “shall petition” made

the duty to conduct a hearing mandatory. (Id. at p. 18.)

The Danielson court disagreed. The court stated:

“[W]hether 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 steps taken by the [county] adequately fulfilled its

obligation.” ’ ” (Danielson, supra, 103 Cal.App.5th at p. 19.) The

court held that the appellant’s pleadings were insufficient

because plaintiff had not alleged that the animal control officer

concluded the investigation or made a probable cause

determination. (Id. at p. 20.)

11

Similarly, in County of Los Angeles v. Superior Court (2012)

209 Cal.App.4th 543, 547 (County of Los Angeles), the appellate

court concluded the County of Los Angeles did not have a

mandatory duty to take certain actions to prevent an attack. The

ordinance at issue, like the one in Danielson, required the

director of the department of animal care and control to petition

the superior court for a determination of whether a dog should be

declared dangerous or vicious after an animal control or law

enforcement officer investigated and determined that probable

cause existed that the dog was dangerous or vicious. (Id. at p.

553.) The plaintiffs argued the county breached its mandatory

duty to petition the superior court for this determination because

in the two years prior to the attack on the plaintiffs, the county

investigated complaints that the dogs were jumping their owner’s

fence, running loose, and chasing people. (See id. at pp. 548,

553.)

The appellate court concluded that the county had no

obligation to act until an animal control officer or a law

enforcement officer determined there was probable cause that the

dog was potentially dangerous or vicious. (County of Los Angeles,

supra, 209 Cal.App.4th at p. 553.) As the plaintiffs did not

produce any evidence at summary judgment that the county

made such a determination, the county did not have a duty to

petition the court. (Ibid.) The appellate court further explained

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.”

(Id. at p. 554.)

Like the ordinances in Danielson and County of Los

Angeles, the ordinances in the present case did not require a

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hearing until a city official considered the evidence and made an

assessment that the dog was vicious. Other than mandating

notice to the animal’s owner, Long Beach’s Municipal Code has

no specific guidelines directing the City as to how it should

investigate or evaluate evidence about provocation and the

animal’s behavior. (See id., § 6.16.270.) Thus, whether to

conduct a public hearing about the dog in the present case

involved an “inherently subjective question” and “the exercise of

considerable discretion based on consideration” of the evidence.

(County of Los Angeles, supra, 209 Cal.App.4th at p. 550.)

Accordingly, we conclude Municipal Code sections 6.16.270

and 6.16.250 do not impose a mandatory duty under section

815.6. Absent a mandatory duty, Piedra cannot state a claim

against the City.3 (See Danielson, supra, 103 Cal.App.5th at pp.

13–14.)

Citing Bell v. State of California (1998) 63 Cal.App.4th 919,

929, Piedra argues the City is liable for the dog bite because it

failed to exercise its discretion. But even if governmental

immunity is limited to the entity’s “actual exercise of discretion”

3 The TAC additionally pleads violations of Municipal Code

sections 6.04.040, 6.16.280, and 6.16.290, which respectively

discuss the City’s duty to take up and deliver loose animals,

determine whether a vicious animal should be destroyed, and

issue rules for containing a vicious animal that is not destroyed.

In his appellate briefs, plaintiff does not address how these

sections created a mandatory duty separate from the failure to

hold a hearing. Therefore any such assertion is forfeited.

(United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36

Cal.App.5th 142, 146, 153 [absent cogent argument supported by

legal analysis, the appellate court may treat the claim as

forfeited].)

13

(ibid.), Piedra pled facts that showed the City in fact exercised

discretion. The TAC stated that in June 2015, “Long Beach

Animal Care Services/Animal Control prepared a bite report”

after the pit bull bit the city attorney. Piedra alleged that the

City immediately quarantined the pit bull, and that the City’s

Animal Control informed the dog’s owner that it intended to

impound the pit bull.4 Then, “[o]n June 13, 2015, Long Beach

Animal Control/Animal Control determined there was no vicious

hold on [the] vicious Pitbull and informed [the owner] that she

could redeem the vicious Pitbull ‘with a promissory if needed.’ ”

In sum, plaintiff specifically alleged the City determined that the

pit bull need not be held in impound as a vicious animal and then

released the dog to its owner. The decision that the pit bull did

not constitute a vicious animal was clearly an exercise of

discretion as discussed above.

4 Pursuant to Municipal Code section 6.16.260, “Any law

enforcement officer or Animal Care Services Bureau enforcement

officer or inspector of the City shall have the authority

summarily and immediately to impound a dog or other animal

where there is evidence it is vicious.”

14

Therefore, the City is immune from liability pursuant to

section 815.5 We conclude the trial court did not err in sustaining

the demurrer.6

5 We note that Piedra argues the City is not immune from

liability under section 820.2. Section 820.2 states, “ ‘[A] public

employee is not liable for an injury resulting from his act or

omission where the act or omission was the result of the exercise

of the discretion vested in him, whether or not such discretion be

abused.’ ” (Johnson v. State (1968) 69 Cal.2d 782, 787.) Although

section 820.2 facially insulates public employees, but not public

entities, from liability, public entities can assert section 820.2

defensively because “ ‘a public entity is not liable for an injury

resulting from an act or omission of an employee of the public

entity where the employee is immune from liability’ (Gov. Code, §

815.2, subd. (b)).” (Johnson, at p. 787.) As the TAC does not

assert claims against individual employees, and because we

conclude the City is immune from liability under section 815, we

need not address the City’s derivative immunity under section

820.2.

6 Because Piedra does not challenge whether the trial court

erred by denying leave to amend, we do not consider this issue.

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DISPOSITION

We affirm the judgment of dismissal. Defendant and

respondent City of Long Beach is awarded its costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BERSHON, J.*

We concur:

EGERTON, Acting P. J.

ADAMS, J.

* Judge of the Los Angeles Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.

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