When Your Dog is Taken and Has Puppies At the Pound, Are the Puppies Yours?

March 14, 2016 11:49 pm Published by

Zuniga v. County of San Mateo Dept. Of Hlt. Serv., 218 Cal. App. 3d 1521, 267 Cal. Rptr. 755 (1990).

If the animal pound, animal control, or human society takes your pregnant dog, cat, or other animal do you have the right to get the puppies, kittens, or off spring from your impounded animal?

Yes

Can a search warrant issued to seize your dog, cat, or other animals include unborn puppies, kittens, or offspring ?

Yes

SUMMARY OF FACTS

On July 1, 1987, police searched Zuniga’s home authorizing a search for American pit bull terriers, fighting dogs, guard dogs, and specifically described dogfighting paraphernalia. Among the items seized pursuant to the warrant were three adult American pit bull terriers. The seized dogs were housed at the Humane Society. On July 31, 1987, one of the seized dogs gave birth to seven puppies at the Humane Society. On or about July 27, 1987, Zuniga made repeated verbal demands for release of the puppies. He was told that the puppies were being held pursuant to Penal Code section 599aa and could not be released without a court order. On August 12, 1987, the San Mateo County Department of Animal Control Services wrote to the district attorney, indicating concern with the cost of caring for the animals pending trial and asking for a court order to destroy the dogs. On October 8, 1987, Zuniga made a written demand for release of the puppies. On January 8, 1988, Zuniga applied to the court for an order to return the puppies. The district attorney stated that only the adult dogs would be used as evidence. On January 27, the court issued an order to return the six remaining puppies. Instead of returning the puppies, the Humane Society served Zuniga with a notice of impoundment stating that the six-month-old puppies were believed to be dangerous. Zuniga requested a post impoundment hearing.

On February 11, 1988, Hearing Officer George Nakamura, after a hearing, determined that the puppies were “dangerous animals” pursuant to section 3330.0(j)(4) of San Mateo County Ordinance No. 03123, and ordered that Zuniga forfeit all rights of ownership and control of the puppies. On March 16, 1988, Zuniga filed a petition for writ of mandate seeking review of the hearing officer’s decision. On May 24, 1988, the superior court denied the petition. Zuniga filed an appeal.

Court’s Opinion

The court looked to the definition of a dangerous animal pursuant to the ordinance.

A “Dangerous Animal,” as defined in the ordinance, means an animal that “demonstrates any or all of the following behavior”: attacks a person or other animal without provocation; runs at large and molests people; “creates a danger or constitutes a menace to the public’s health and safety due to its training or the inherent nature of the animal”; or has scars or wounds attributable to fights. (San Mateo County Ord., § 3330.0(j).)

Based on the facts contained in the record on appeal, it appears that the puppies were in the county’s possession as a result of execution of the search warrant, as evidenced by the county’s letter to the district attorney, and the fact that the puppies’ dam was seized pursuant to the search warrant.

The court of appeal determined that Zuniga’s remedy for an initial improper detention of the puppies is by way of motion in the criminal court for return of his property. (§ 1540; Buker v. Superior Court, supra, 25 Cal. App.3d 1085, 1089.) Zuniga had availed himself of that remedy.
The Humane Society, was instructed to hold the animals pending criminal proceedings, and had no power to release the dogs or the puppies absent a court order. (§§ 599aa, 1536.) The Humane Society was not required to serve the 24-hour notice prior to that time to the court order.

The hearing officer found that the six-month-old puppies were “dangerous animals” under section 3330.0(j)(4) of the county ordinance, because the puppies have been confined in kennels under the control of respondent all their lives. The hearing officer relied on: (1) the parents of the puppies were fighting dogs; (2) county employees, including a veterinarian, testified that the puppies were observed to have “dangerous propensities including extremely aggressive behavior requiring the puppies to be housed separately so they would not injure each other”; and (3) appellant was a known dogfighter, with criminal dogfighting charges pending. The hearing officer also viewed videotapes of Zuniga t a dogfight and examined veterinary records indicating that the adult dogs had multiple lacerations. The only evidence relevant to the puppies’ “inherent nature” was the observed aggressive behavior toward each other while caged.

As a matter of common knowledge, the court agrees that wild animals or poisonous reptiles may possess an inherent nature that makes them dangerous to the public safety if not properly confined. In this case it found no evidence to support a finding that the six-month-old puppies confined in kennels constitutes a threat to the public safety. There is no indication that the puppies threatened human health and safety, as required under the ordinance definition. There was no evidence that the young puppies had ever harmed each other or engaged in unprovoked attacks on humans or other animals. The governing ordinance does not make aggressive behavior among caged puppies the criteria for a finding of dangerousness. The unspecified aggressive behavior observed by the county staff fails to support a finding of an inherently dangerous nature, because in the absence of testimony regarding the cause of such behavior could easily attributed to a number of factors including the fact of being caged. Absent expert evidence on the cause and nature of the puppies’ perceived aggressive behavior which might comply with the ordinance requirement of “inherent nature,” or any indication of how the puppies impact public health or safety, the hearing officer’s conclusion regarding an inherently dangerous nature is speculative. The court agreed with Zuniga that the finding of dangerousness is not supported by the evidence in the record. The court of appeal reversed the judgment and directed the Superior court to issue a writ of mandamus requiring San Mateo County to vacate its decision of February 11, 1988, depriving Zuniga of ownership of the puppies.

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