In Danielson v. County of Humboldt, published June 26, 2024, the First District Court of Appeal, Division 1 affirmed the trial court's decision sustaining the defendant county's demurrer without leave to amend. The plaintiff was seriously injured by two dogs on property the dog owner leased. On multiple other occasions, dogs owned by the same owner had gotten loose and were found to be unvaccinated for rabies or had injured persons or other dogs. One of the dogs that attacked the plaintiff had gotten loose and attacked another person the year before. The owner told a county officer that he would have the dog spayed and would update the dog's licenses and vaccinations at that time. The plaintiff alleged that the county was liable for her injuries under Government Code section 815.6, because various state and county code provisions imposed a mandatory duty upon the county to impound or euthanize dogs that are unvaccinated, unlicensed, or dangerous; and that if the county had discharged its mandatory duties, the owner would have surrendered the dogs to be euthanized and she would not have been injured.
The appellate court agreed with the trial court's conclusion that no provision imposed a mandatory duty upon the county to perform the acts alleged. Public entities are immune from liability for legislative action or discretionary law enforcement activity. An exception is under Government Code section 815.6: Where a public entity is under a ministerial, mandatory duty imposed by enactment, and the duty is not subject to discretion, the entity is liable for an injury proximately caused by the failure to discharge the duty unless it establishes reasonable diligence to perform the duty. All of the state and local provisions at issue involved the exercise of discretion. A county code provision stating an animal control officer shall petition for a hearing regarding whether a dog is potentially dangerous or a nuisance upon investigation and conclusion of probable cause did not impose a mandatory duty to petition, because whether to investigate is discretionary, as is whether and how to make a probable cause determination. Health & Safety Code section 121690 , which requires that all dogs must be licensed and vaccinated against rabies, and that dogs in violation of the chapter shall be impounded as provided by local ordinance, does not create a mandatory duty to impound dogs that are not licensed or vaccinated. The term "shall" in a section of the Health & Safety Code does not necessarily create a mandatory duty if there are other factors that indicate the language was not intended to foreclose discretion. The statute provides for impound to the extent provided as a remedy in local law, and under local law impoundment is discretionary.
Comments