# Piedra v. City of Long Beach CA2/3

> California Court of Appeal · December 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10757006

## Case

- **Court:** California Court of Appeal
- **Decided:** December 9, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115(a).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

3
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]

4
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

5
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

6
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

7
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.)

8
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.”

9
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

12
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.

15
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.

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10757006. Public record. Not legal advice.