*1 2713. Fifth Nov. No. Dist. 1976.] [Civ. CARRERA,
INEZ Plaintiff and Appellant, etc., al., Officer, BERTAINI, et Animal Control ERNEST Defendants Respondents.
Counsel Claudia E. Smith Olmos, Pineda, Neil J. Roberts and T. A. Robert Lynn for Plaintiff and Appellant. Wait, Counsel, Orton,
Allen C. and James B. County Deputy County Counsel, Defendants Respondents.
Opinion
FRANSON, J.
Introduction In this case we declare that ordinance County Kings *4 and sale of farm found be allowing animals to “at impoundment street or or large” any upon public place upon private any the wishes of the of owner and Penal Code section against property, 597f, to the extent it commands the of farm impoundment any owner, animal its are invalid for failure “neglected” by constitutionally to or owner entitled of to the animals a provide person possession reasonable notice and as the due clause of required by the Fourteenth Amendment.1 Because of the constitutional of infirmity statute, the ordinance and we hold that the of appellant’s animals in the unlawful, instant case was and must be respondents ordered to return to the animals or their reasonable value.
Facts The factual and on follows: November procedural chronology 10, 1974, and Animal Control and Officer his Kings County agents V, 1Section 4-68 of article of the chapter Ordinance Code Kings County provides: “It is unlawful for any or person owning, harboring, any livestock controlling permit such livestock to run at large of another without the upon private property of the permission or said or person owning the streets occupying private property, upon or in public The animal control officer is authorized he places Kings County. whenever , deems it . . . necessary, and livestock which is in capture transport running large violation of this Each animal or shall chapter. captured hereto be transported pursuant at the risk of the owner impounded and owner or of animal for such is liable keeper all fees set forth in section 4-75.” owner, driver, Penal Code section 597f provides in or pertinent part: “Every possessor animal, lane, enclosure, street, who shall the same to be any in permit any building, lot, district, or square, any city without care and city, county, judicial proper shall, attention, conviction, on be deemed And it be of a misdemeanor. shall guilty officer, officer of humane of a duty or officer or animal any peace society, pound animal take so abandoned regulation department public agency, possession claimant, or cost and care for the same until it is and the redeemed owner neglected for such animal shall be a lien on the same until the are charges caring paid.” California, Corcoran,. County, Kings entered appellant’s property of her farm animals took consisting over protest possession appellant’s horse, boars, three sows, two one bulls, cows, six goats, six gelding three the seizure some of chickens, three roosters. sixteen Shortly corn field had seen in a the animals been appellant’s property adjacent to be The animals to a and next “very hungry, appeared public highway. and their were of the cattle were hobbled Several legs starved.” poor, swollen and bleeding. in various were down
The fences surrounding appellant’s for an animal to with “loose go through.” enough spaces—big places animals were the officers that her told being Appellant “at and for neglect.” “cruelty running large” impounded she at the Animal Control also was told that could appear Appellant Office 12 to information on November obtain redemption regarding her animals. Office and was
On went to the Animal Control November 12 appellant *5 for food and care the fees and fees told that daily already impound However, $300.” she told that it “over testified that was totaled appellant $900 her At time of the would cost her to animals back. the about get cause, fees to court on the order to show the be superior hearing required $2,477. to for the release of her animals had increased by paid appellant On a written notice of November 20 served impound- appellant 4-72 of the Ordinance ment and sale section pursuant Kings County had been Code. The notice that the animals described therein stated 3, before December and if not reclaimed the owner on or impounded 1974, would 4-74 of the code. be sold in section they provided 1974, 3,
On court for a December the petitioned superior appellant her, writ to return her animals mandamus compel respondents in the had not done so. The alternative to show cause superior why they should an show cause court issued order to injunction why preliminary issue animals not the from restraining selling impounded respondents it the sale of animals. also issued a order against temporary 23, 19 and on December order show cause came for on hearing 1974. asserted constitutional invalidity hearing Appellant under the and sale ordinance procedures penal impoundment statute. court on
The trial denied appellant’s petition, apparently ground that since had to institute a civil in the right proceeding court to restrain the sale and to determine the merits of the superior animals, of her due had procedural process rights been satisfied. 24, was entered on 1975. She filed
Judgment against appellant January notice of timely appeal.
Discussion
Where a
is taken
the due
person’s property
government,
clause of the Fourteenth Amendment
some form
process
requires
notice
448,
Court
(Beaudreau
Cal.3d
(1975)
Superior
585, 535 P.2d
713]; Mathews
U.S.
Cal.Rptr.
(1976)
Eldridge
18,
L.Ed.id
96 S.Ct.
Absent
902].)
circum
extraordinary
stances
resort to
must take
justifying
summary procedures,
is taken. As
in Fuentes
Shevin
place
explained
570-571,
U.S.
81-82
92 S.Ct.
“If
1983];
then,
to notice and a
is to
full
serve its
it is clear
right
purpose,
that it must be
at a time when the
can still be
granted
deprivation
At a later
an individual’s
can be returned
hearing,
prevented.
possessions
to him if
were
taken in the first
they
unfairly
mistakenly
place.
even be awarded to him the
But
may
Damages
wrongful deprivation.
no later
can
no
award
undo
fact that
damage
that was
to the
due
arbitrary taking
subject
right
procedural
*6
has
occurred. This court
. .
has not
.
the
embraced
already
general
that a
be
can
done if it
be undone.’
may
proposition
wrong
[Citation.]”
Moreover,
the fact
the
that
be
does not
may
deprivation
temporary
alter
need
the
for due
As stated in Fuentes:
it is now
“But
well
process.
settled that a
non-final
of
is nonetheless
temporary
deprivation
property
in the
of
terms
the Fourteenth Amendment. Sniadach v.
‘deprivation’
Finance
Similarly, to invoke the a notice and “It is obviate the enough necessity that a of the Fourteenth Amendment significant procedural safeguards stake, interest at whatever the ultimate outcome Shevin, . 407 U.S. at L.Ed.2d at . .” (Fuentes p. supra, Therefore, S.Ct. even 1983].) though guilty probably run in violation of some of her livestock to county large permitting 4-68, care for her animals in ordinance code section and of failing 597f, violation of Penal Code section she nonetheless was entitled to a to the seizure of her animals. hearing prior *7 formality procedural requirements
Necessarily,
will
to the
interests
government
hearing
vary according
competing
371,
Connecticut
401 U.S.
378
the citizen.
v.
(1971)
(Boddie
[28
113,
15 Cal.3d
State Personnel Bd. (1975)
not
A
trial before a court.
before an administrative
require
proceeding
officer or board is
if the basic
of notice and
adequate
requirements
Witkin,
Law,
are met.”
(See
Cal.
opportunity
Summary
for
Law,
299,
course,
Constitutional
Of
must be
3588.)
§
p.
before an
officer
v. McGrath
(See
impartial
body.
Yang Sung
Wong
616,
306,
Witkin,
L.Ed.
There
situations where the
seizure of
summary
has
held
been
to be essential
property
legitimate
overriding
Shevin,
interests of
In Fuentes v.
(407 U.S. at
government.
supra,
p.
576,
L.Ed.2d at
Under it is that clear at times the seizure of supra, summary farm animals must be permitted protect personal safety of our citizens. For where an animal has rights example, strayed onto it must be removed from the to avoid public highway, highway case, 2In the seized animals were she should present suggests have been afforded an informal an officer of health hearing before the county where she could called her own department have witnesses and cross-examined those determine the the seizure. While the county justification designation board or officer to conduct an administrative is a matter for appropriate determine, to review legislative body subject the courts as to constitutional only fairness it would seem that merit. procedures, has appellant’s suggestion
729 Also, if an animal with the to motorists and others using highway. injury enclosure, it must be has from its escaped dangerous propensities too, So an avoid to others. returned to its enclosure to injured, injury humane if sick, must be cared for in a animal way, possible. starving the unable situations, officer is In if after a reasonable these investigation the animal for to the of the owner or entitled to locate possession person the animal him the the recapturing giving opportunity purpose demand, then the officer the animal as the situation may caring Here, of the animal. to take have the must summarily possession power of others the in the interest property protecting person governmental of the owner. the must be deemed to override right the summary where However, the instances in all of government’s statute has has been provided seizure upheld, civil initiate a or has government obligated hearing, post-seizure Union Trust Central (See if the seizure to determine action justified. 409, 408, 41 567, L.Ed. at Garvan, 568 254 U.S. at Co. v. pp. pp. [65 supra, Revenue, 283 U.S. Internal Commissioner 214]; S.Ct. supra, Phillips 1298, at 1297, 608]; 51 S.Ct. 597, L.Ed. at Fahey 598 p. pp. [75 pp. 2039, 1552]; 67 S.Ct. Mallonee, L.Ed. at 332 U.S. at p. p. [91 supra, Inc., 339 U.S. at & pp. Casselberry, supra, Mytinger Ewing Cold North American 1092, 1093, S.Ct. at 870]; L.Ed. at Storage pp. 195, 29 S.Ct. see also 101]; L.Ed. 211 U.S. Co. v. Chicago, supra, U.S. Co. v. W. T. Grant Mitchell
419-420,
The applicable hearing particularly post-seizure requirement contribute to the which of farm animals normally impoundment to the owner. The economic livelihood of their hardship support demonstrated from such an owner vividly impoundment resulted in case. immediately present had to be and costs which dollars in fees paid several hundred incurring able time she was of her animals. could before she By get possession court, fees had in and obtain to institute a lawsuit impound fairness, to avoid $2,477. As a matter of basic increased incurrence was entitled to unnecessary expenses appellant or, seizure if the circumstances were seized animals justified after she was entitled to notice and a without prompt hearing hearing, court six were seized. animals superior Manifestly, due cannot be said to weeks after seizure satisfy appellant’s rights. *9 that the ordinance and statute should be
Respondents argue
interpret-
ed
a
owner,
as
when demanded
requiring
post-seizure hearing
citing
Los
action remanded court with directions conduct a superior to determine if animals can be returned to her and if appellant’s not, to ascertain the reasonable value thereof and to enter judgment favor of for said amount. against respondents
Brown concurred. (G. A.), THOMPSON, J.*I I concur. wish to note that in this nothing opinion Code, herein 597f, Penal section which derrogates provision section, other of this provides: any “Notwithstanding provisions any officer or animal or humane pound regulation society, department officer of or sheriff’s with the any police department may, approval his immediate abandoned animal in the superior, humanely destroy any field in case where the animal is too to move or any severely injured where a veterinarian is not available and it would be more humane to of such animal.” dispose *Retired court under the Chairman of superior sitting assignment by judge
Judicial Council.