Spadaro v. City of Rialto

Filed 6/18/07 Spadaro v. City of Rialto CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Bob N. Krug, Judge. (Retired judge of the San Bernardino Super. Ct., sitting under assignment by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Charlotte Spadaro, in pro. per., for Plaintiff and Appellant.

Law Offices of Robert A. Owen and Kathy M. Gandara for Defendant and Respondent.

Charlotte Spadaro appeals the denial of a petition for writ of mandate. The trial court affirmed an administrative decision upholding the City of Rialtos (the city) seizure of approximately 180 dogs and cats from Spadaros kennel pursuant to Penal Code section 597.1^[1]without affording her a pre-seizure hearing, and its imposition of approximately $28,000 in costs of impoundment and care as a condition of returning the animals to Spadaro. Spadaro contends that Penal Code section 597.1 applies only to abandoned animals and that in any event, the conditions at the kennel did not warrant seizure without a prior hearing.

We will affirm the order.

BACKGROUND

Spadaro operated an animal shelter out of a house in Rialto. (The operation is referred to as a kennel, but there is no evidence that it was a commercial venture. We infer that it was an animal rescue operation.) A complaint by neighbors concerning a strong odor and blood running down the driveway prompted an inspection. It was discovered that Spadaro had placed the remains of three dogs, including a Great Dane, in a freezer which had ceased to function. Inspection of the property revealed numerous violations of city ordinances and the presence of a large number of dogs and cats in unsanitary conditions. Spadaro and the city reached an agreement for abatement of the violations. In February 2005, animal control officers began visiting the premises weekly to inspect the condition of the premises and the animals. At one point, Spadaro was ordered to remove a large quantity of animal remains from the premises. Before the next inspection, she rented a truck, placed approximately 2,000 pounds of animal carcasses in it, and abandoned the truck in Riverside County.

Spadaro made some improvements in the conditions at the kennel but did not bring the property into compliance. Rialto Police Sergeant Crispin determined that an unannounced inspection should be made and obtained a search warrant. The search warrant was executed on May 12, 2005. Spadaro was not present.

Crispin and other animal control officers observed that the house was filthy with animal feces, diarrhea and vomit, as well as rodent droppings. There were two dogs in the kitchen area, both of which were very thin. One had a large hot spot, or skin lesion, on its flank, and the other had an infected leg and had difficulty walking. There were about 45 adult cats and kittens in one bedroom of the house. The room was filthy, and several of the adult cats and all of the kittens appeared ill, with watery eyes, sneezing and conjunctivitis. The kittens were thin and appeared dehydrated. One kitten was dead. There were several dogs in another room, including several puppies. One of the puppies appeared to be dying. Officers found approximately 14 cats in the garage, several of whom also appeared ill.

Outside, the kennel area was also filthy. One dog, which had an open sore, was in contact with other dogs and was lying in feces. A number of the dogs had skin lesions and many had fly strikes, or open sores caused by biting flies.

The officers seized 184 dogs and cats. Those needing immediate care were taken directly to veterinarians; the others were taken to the county animal shelter, where they were examined by a veterinarian and treated as necessary. Spadaro was given notice of her right to an administrative hearing pursuant to Penal Code section 597.1.

At the conclusion of the first day of the hearing, the hearing officer determined that the animals, except for a few which were still seriously ill, could be released to Spadaro, on the condition that she place them at specified boarding facilities. After a two-day evidentiary hearing, the hearing officer determined that the animal control officers reasonably believed that it was necessary to seize the animals without a prior hearing in order to protect the health or safety of the animals. He ordered Spadaro to pay all costs incurred in the seizure and impoundment of the animals. Those costs apparently amounted to over $28,000.

Spadaro filed a petition for writ of mandate in the superior court. The petition is not included in the appellate record. After briefing and argument, the court affirmed the hearing officers order. Spadaro filed a timely notice of appeal.

LEGAL ANALYSIS

STANDARD AND SCOPE OF REVIEW

We must first determine the applicable standard of review. Spadaro does not address this fundamental question. However, her arguments focus primarily on the superior courts review of the administrative proceeding rather than on the administrative proceeding itself.^[2] She argues, among other things, that the superior court failed to discharge its duty because it failed to consider evidence she sought to present, which she claims the city concealed from the administrative hearing officer. Implicitly, then, she appears to contend that the superior courts function was to examine the evidence independently, including new evidence she sought to bring to the courts attention, and that we are to review the superior courts findings and procedures.

The standard of review in administrative mandate proceedings depends upon the nature of the right affected by the administrative proceeding. If the decision of the administrative agency will substantially affect a fundamental vested right, then the trial court must not only examine the record of the administrative proceeding for errors of law, but must also exercise its independent judgment on the evidence. However, when the administrative proceeding neither involves nor substantially affects such a right, the trial courts duty is merely to examine the entire record of the administrative proceeding to determine whether the findings are supported by substantial evidence and whether the agency committed any errors of law. (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 217.) It need not look beyond the record of the administrative proceeding. (Bixby v. Pierno (1971) 4 Cal.3d 130, 144.)

For administrative review purposes, a right is fundamental if it is important enough to individuals in their life situations to require an independent judicial review of the evidence. (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 397.) Spadaro has provided no argument or authority which would support the conclusion that possession of animals in her capacity as the operator of what is apparently a nonprofit animal rescue operation is a fundamental right, and we are not aware of any such authority.^[3] Accordingly, the trial court was not required to conduct an independent review of the evidence. (MHC Operating Limited Partnership v. City of San Jose, supra, 106 Cal.App.4th at p. 217.)

If the trial court was not required to conduct an independent review of the evidence, then on appeal, the appellate court also conducts only a review of the administrative record to determine whether the agencys findings are supported by substantial evidence and whether the agency committed errors of law. The appellate court does not review the findings of the superior court. (MHC Operating Limited Partnership v. City of San Jose, supra, 106 Cal.App.4th at pp. 218-219.) We therefore review the administrative record and the factual findings of the administrative hearing officer under the deferential substantial evidence standard. (Ibid.) We review Spadaros contentions concerning the applicability of statutes, including Penal Code section 597.1, independently. (MHC Operating Limited Partnership v. City of San Jose, supra, at p. 219.)

Because we have determined that our function is to review the conduct of the administrative hearing under the standards described above, we need not address Spadaros various contentions pertaining to the superior courts alleged failure to apply a correct standard of review, its alleged failure to consider her arguments, or its refusal to examine evidence Spadaro claims the city concealed from the administrative hearing officer. Because the tone and substance of these arguments infects much of her briefing, however, we feel that it is worth noting that Spadaros arguments concerning the trial courts review are replete with unsupported and spurious assertions. For example, she repeatedly asserts that the administrative hearing was criminal in nature, a statutorily provided hearing process of the penal code, for the purpose of determination of criminal liability. This is incorrect. The sole subjects of the administrative hearing were whether the seizure of the animals was justified and whether they could be returned to Spadaro. (Pen. Code, 597.1, subds. (f) & (h).)^[4] Misdemeanor proceedings under Penal Code section 597.1 were separately pending in the criminal courts.

In a similar vein, Spadaro contends that the city improperly relied on hearsay evidence in support of its assertion that Spadaro had concealed approximately 2000 pounds of animal remains, but wrongfully failed to produce the police report on which the testimony was based. She asserts that if the city had produced the report, she would have been able to demonstrate that the report was grossly exaggerated. She provides no authority for the assertion that the city was required to produce the report rather than rely on the witnesss testimony concerning the contents of the report, and she does not explain why she could not have obtained and produced a copy of the report to refute the witnesss testimony, if in fact the report does refute it.

Spadaro also claims that the trial court improperly refused to consider a videotape which, she contends, showed that the animal control officers had already decided, before they went to her kennel, that they were going to seize her animals. She contended in the superior court and contends on appeal that the videotape was exculpatory and that the city wrongfully failed to produce it during discovery. However, the superior court did view the videotape and determined that it was not exculpatory. Spadaro does not challenge that finding.

Much of the rest of Spadaros contentions concerning the administrative hearing and the superior courts review are nothing more than an attempt to reargue the evidence and to argue that the hearing officer and the court should have reached different conclusions. As we have stated above and will discuss further below, we cannot reweigh the evidence but must review the record only to determine whether it contains substantial evidence which supports the hearing officers conclusions.

PENAL CODE SECTION 597.1 APPLIES^[5]

Spadaro contends that section 597.1 applies only to stray or abandoned animals, while section 597f applies to abused or neglected animals generally. She argues that because the city and the hearing officer applied section 597.1, rather than section 597f, the hearing officer lacked jurisdiction.

Spadaro bases her argument primarily on the following language of section 597.1:

Every owner, driver, or keeper of any animal who permits the animal to be in any building, enclosure, lane, street, square, or lot of any city, county, city and county, or judicial district without proper care and attention is guilty of a misdemeanor. Any peace officer, humane society officer, or animal control officer shall take possession of the stray or abandoned animal and shall provide care and treatment for the animal until the animal is deemed to be in suitable condition to be returned to the owner. ( 597.1, subd. (a), italics added.)

In construing a statute, our primary task is to determine the intent of the Legislature so as to effectuate the purpose of the law. (Dyna-Med, Inc. v. Fair Employment and Housing Com. (1987) 43 Cal.3d 1379, 1386.) To determine legislative intent, we look first to the statutory language. (Ibid.) Even a cursory glance at the language employed in sections 597f and 597.1 demonstrates that in enacting those statutes, the Legislature did not intend to provide only for abandoned animals in one statute and for neglected animals generally in the other. Rather, both statutes are entitled failure to care for animals, and both contain language which applies to stray or abandoned animals and language which applies more broadly to abused or neglected animals generally.

In pertinent part, section 597f provides as follows:

(a) Every owner, driver, or possessor of any animal, who permits the animal to be in any building, enclosure, lane, street, square, or lot, of any city, city and county, or judicial district, without proper care and attention, shall, on conviction, be deemed guilty of a misdemeanor. And it shall be the duty of any peace officer, officer of the humane society, or officer of a pound or animal regulation department of a public agency, to take possession of the animal so abandoned or neglected and care for the animal until it is redeemed by the owner or claimant, and the cost of caring for the animal shall be a lien on the animal until the charges are paid. Every sick, disabled, infirm, or crippled animal, except a dog or cat, which shall be abandoned in any city, city and county, or judicial district, may, if after due search no owner can be found therefor, be killed by the officer; and it shall be the duty of all peace officers, an officer of such society, or officer of a pound or animal regulation department of a public agency to cause the animal to be killed on information of such abandonment. The officer may likewise take charge of any animal, including a dog or cat, that by reason of lameness, sickness, feebleness, or neglect, is unfit for the labor it is performing, or that in any other manner is being cruelly treated; and, if the animal is not then in the custody of its owner, the officer shall give notice thereof to the owner, if known, and may provide suitable care for the animal until it is deemed to be in a suitable condition to be delivered to the owner, and any necessary expenses which may be incurred for taking care of and keeping the animal shall be a lien thereon, to be paid before the animal can be lawfully recovered.

(b) It shall be the duty of all officers of pounds or humane societies, and animal regulation departments of public agencies to convey, and for police and sheriff departments, to cause to be conveyed all injured cats and dogs found without their owners in a public place directly to a veterinarian known by the officer or agency to be a veterinarian that ordinarily treats dogs and cats for a determination of whether the animal shall be immediately and humanely destroyed or shall be hospitalized under proper care and given emergency treatment. [] . . . []

(d) Notwithstanding any other provisions of this section, any officer of a pound or animal regulation department or humane society, or any officer of a police or sheriffs department may, with the approval of his or her immediate superior, humanely destroy any abandoned animal in the field in any case where the animal is too severely injured to move or where a veterinarian is not available and it would be more humane to dispose of

the animal. ( 597f, subds. (a), (b) & (d).)

Similarly, section 597.1 provides, in pertinent part, as follows:

(a) Every owner, driver, or keeper of any animal who permits the animal to be in any building, enclosure, lane, street, square, or lot of any city, county, city and county, or judicial district without proper care and attention is guilty of a misdemeanor. Any peace officer, humane society officer, or animal control officer shall take possession of the stray or abandoned animal and shall provide care and treatment for the animal until the animal is deemed to be in suitable condition to be returned to the owner. . . .

(b) Every sick, disabled, infirm, or crippled animal, except a dog or cat, that is abandoned in any city, county, city and county, or judicial district may be killed by the officer if, after a reasonable search, no owner of the animal can be found. It shall be the duty of all peace officers, humane society officers, and animal control officers to cause the animal to be killed or rehabilitated and placed in a suitable home on information that the animal is stray or abandoned. The officer may likewise take charge of any animal, including a dog or cat, that by reason of lameness, sickness, feebleness, or neglect, is unfit for the labor it is performing, or that in any other manner is being cruelly treated, and provide care and treatment for the animal until it is deemed to be in a suitable condition to be returned to the owner. . . . ( 597.1, subds. (a) & (b), italics added.) Thus, both statutes provide both for the care of abandoned animals and for the seizure of and care for any animal which is neglected or cruelly treated.

It is not readily apparent why the Penal Code contains two such overlapping provisions. However, where two statutes overlap in their treatment of a subject, they should be construed together and reconciled to the extent possible. If it is reasonable to do so, effect should be given to both. (Tripp v. Swoap (1976) 17 Cal.3d 671, 679.) Here, the two statutes are so similar in their substance and overlap to such an extent that we cannot say that one is a general statute while the other is a special statute, as Spadaro seems to imply.^[6] The statutes do not conflict, and the differences between them are slight. Both statutes penalize failure to provide proper care and attention to an animal as a misdemeanor. ( 597f, subd. (a); 597.1, subd. (a).) Section 597.1 provides for hearings prior to seizure in some instances and after seizure in other instances. Section 597f does not, and to that extent has been found unconstitutional. (Carrerav. Bertaini (1976) 63 Cal.App.3d 721, 726-730.) Apart from the pre- or post-seizure hearing provisions, or lack thereof, the sole significant difference between the two statutes which we can discern is that whereas section 597f requires the owner to reimburse the agency only for the cost of caring for the animal during the impoundment as a condition of the return of the animal, section 597.1 requires the owner to reimburse the agency for the cost of seizing the animal, as well as for the cost of caring for it, either as a condition of returning the animal if the seizure is found to have been proper ( 597.1, subd. (h)) or as a penalty if the owner is convicted criminally of violating section 597.1 or other specified statutes. ( 597.1, subd. (k).) Even if section 597.1 were a special statute with respect to section 597f, as Spadaro appears to contend, however, it clearly applies to her situation: Every owner . . . of any animal who permits the animal to be in any . . . lot of any city . . . without proper care and attention is guilty of a misdemeanor ( 597.1, subd. (a)), and an animal control officer may take charge of any animal which is being cruelly treated ( 597.1, subd. (b)). Subjecting animals to filthy conditions such as those alleged here, in which serious infections and illnesses can breed, is cruel treatment. Thus, neither the city nor the hearing officer erred in applying the statute to Spadaro.^[7]

Spadaro also contends that the legislative history of a 1998 amendment to section 597.1 supports her contention that the statute applies only to stray or abandoned animals. The amendment Spadaro refers to is part of a bill entitled Stray animals: duties of pounds and shelters. (Sen. Bill No. 1785 (1997-1998 Reg. Sess.).) However, although Senate Bill No. 1785 enacted a substantial amount of legislation pertaining to the treatment of stray and abandoned animals, it made only minor changes to section 597.1 and did not affect its substance. (Stats. 1998, ch. 752; see Historical and Statutory Notes, 49 Wests Ann. Pen. Code (1999 ed.) foll. 597.1, pp. 57-58.) Thus, the fact that section 597.1 was amended along with the enactment or amendment of other statutes involving stray animals does not establish that section 597.1 applies only to stray or abandoned animals.

THE ADMINISTRATIVE HEARING WAS CONDUCTED PROPERLY

Spadaro contends that, even assuming section 597.1 was the correct statute, the administrative hearing was invalid because it did not comply with provisions of the Government Code pertaining to administrative proceedings. Specifically, she contends that the city was not permitted to conduct an informal hearing or rely on hearsay evidence because the proceeding involved disputed issues of material fact.

Spadaro relies on Government Code sections 11415.10 and 11425.10. Both are part of the Administrative Procedure Act. (Gov. Code, 11400.) That act applies to the conduct of adjudicative proceedings by state departments and agencies. (Gov. Code, 11405.20, 11405.30, 11410.10, 11410.20.) It does not apply to local agencies, such as cities, unless the provisions of the act are made applicable by statutes to proceedings of the local agency. (Gov. Code, 11410.30.) Spadaro has not cited any statute which makes these procedures applicable to an administrative hearing conducted pursuant to Penal Code section 597.1 by a city or other local agency. We are not aware of any such provision, and we therefore conclude that the Administrative Procedure Act does not apply to the proceeding conducted in this case.

Spadaro also contends that the hearing was not properly conducted because the hearing officer failed to determine whether the seizure of the animals was actually justified by the condition of the animals, as opposed to determining whether the officers had reasonable grounds to believe that very prompt action is required to protect the health or safety of an animal or of others. ( 597.1, subd. (b).) She relies on an unpublished case, Spencer v. Placer County Animal Control (Mar. 27, 2003, C039081 [nonpub. opn.]), and asks that we take judicial notice of that case. We are, of course, precluded by the rules of court from considering an unpublished case except under circumstances not applicable here. (Cal. Rules of Court, rule 8.1115.) We cannot circumvent this rule by taking judicial notice of the content of the unpublished opinion; we can take judicial notice only of the existence of the opinion as a record of a court of this state. (Evid. Code, 452, subd. (d).) We have previously denied Spadaros request for judicial notice.

In any event, her argument is without merit. Subdivision (f) of section 597.1 provides for a post-seizure hearing to determine the validity of the seizure or impoundment, or both. The seizure is valid, as discussed above, if the officer has a reasonable belief that prompt action, i.e., impoundment, is required to protect the health or safety of the animal or of others. ( 597.1, subd. (b).) If the seizure is justified under that standard, the impoundment is necessarily justified as well, as is the imposition on the owner of the cost of the seizure and impoundment. (See 597.1, subd. (h).) If the owner demonstrates at the post-seizure hearing that she can adequately care for the animal, then the animal will be returned, subject to payment of the cost of seizure and impoundment. ( 597.1, subds. (b), (f).) If the hearing officer determines that the animal was not properly seized, then the animal must be returned without requiring the owner to pay the costs of seizure and impoundment. ( 597.1, subd. (b).)

Spadaro contends that this interpretation of the statute does not comport with the intent of the Legislature, but she does not cite any evidence which establishes that the Legislature did not so intend. In interpreting a statute, we look first to the statutory language. If it is clear and unambiguous, we look no further; rather, we assume that the Legislatures intent is reflected in the words it chose in enacting the statute. (Hunt v. Superior Court (1999) 21 Cal.4th 984, 1000.) Here, the language is unambiguous and clearly reflects an intention to permit seizure and impoundment of an animal if the officer reasonably believes that the action is necessary to protect the animal, followed by a hearing to determine the validity of that belief.

Spadaro also contends that section 597.1 fails to afford constitutionally adequate due process unless it provides for a hearing in which it is determined whether the animals actual condition justified seizure and impoundment, as opposed to reasonableness of the officers belief that seizure was necessary to protect the animals health or safety. We disagree. Procedural due process is satisfied by affording the owner or keeper of the animal notice and an opportunity to be heard on the validity of the seizure of the animal, with provision for return of the animal if the seizure was not justified. (Carrera v. Bertaini, supra, 63 Cal.App.3d at p. 729, and cases cited therein.) Section 597.1 complies with those requirements. ( 597.1, subds. (b), (f).)

SUBSTANTIAL EVIDENCE SUPPORTS THE HEARING OFFICERS FINDINGS

As pertinent, section 597.1, subdivision (b) provides: When the officer has reasonable grounds to believe that very prompt action is required to protect the health or safety of an animal or the health or safety of others, the officer shall immediately seize the animal and comply with subdivision (f). In all other cases, the officer shall comply with subdivision (g).

Section 597.1, subdivision (f) provides, in pertinent part: Whenever an officer authorized under this section seizes or impounds an animal based on a reasonable belief that prompt action is required to protect the health or safety of the animal or the health or safety of others, the officer shall, prior to the commencement of any criminal proceedings authorized by this section, provide the owner or keeper of the animal, if known or ascertainable after reasonable investigation, with the opportunity for a postseizure hearing to determine the validity of the seizure or impoundment, or both.^[8] As we have discussed above, the validity of the seizure and the impoundment depends upon whether the officer had a reasonable belief that seizure of Spadaros animals was necessary to protect the health or safety of the animals. We therefore review the record of the administrative hearing to determine whether substantial evidence supports the hearing officers finding that Officer Crispin had such a reasonable belief. (MHC Operating Limited Partnership v. City of San Jose, supra, 106 Cal.App.4th at pp. 218-219.)

In determining whether substantial evidence exists, we view all factual matters in the light most favorable to the prevailing party, resolving all conflicts and indulging all reasonable inferences from the evidence to support the judgment. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) We do not reweigh the evidence. We uphold the judgment if it is supported by substantial evidence, even if substantial evidence to the contrary also exists, and the trier of fact might have reached a different result if it had believed other evidence. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) Substantial evidence is not, however, synonymous with any evidence. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) To be substantial, evidence must be reasonable in nature, credible and of solid value. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.)

Here, the officers testified that the house, the garage and the outside kennel areas were filthy, with urine, feces, diarrhea and vomit everywhere. There were large numbers of rodents in the house and yard, as well as rodent droppings and cockroaches. One dog inside the house had a huge heat rash on its flank. Another had an injured leg and was very thin.

There were about 30 adult cats and 12 to 15 kittens in one room. Several of the cats and all of the kittens showed signs of upper respiratory infection. The kittens were thin and dehydrated as well. One kitten was dead. The room the female cats and the kittens were in was hot and stuffy and smelled foul. The litter boxes were full of feces and there was diarrhea on the floor. Approximately 14 male cats were confined in the garage. Many of them showed signs of upper respiratory infection as well. Officer Bluff-Hopp testified that the cats were in the worst condition she had seen among Spadaros cats during her visits to the kennel. She believed that some of cats might die if they werent removed.

Elsewhere in the house, in a room with a lot of animal diarrhea and vomit, there was a female dog with a number of puppies. One of the puppies appeared to be dying.

Outside, in the dog kennels, there was urine and feces everywhere You couldnt step and not step in something. One dog with open sores was in contact with other dogs and was lying in feces. Many of the dogs had fly strikes, which are skin lesions caused by biting flies. Others had hot spots or lesions which appeared to be mange.

The officers concerns for the health and safety of the animals were substantiated by the testimony of Dr. Odani, the veterinarian who examined the animals after they were seized. Dr. Odani testified that both fly strikes and hot spots can become infected or infested with maggots. She testified that a high bacterial load in the environment would place the animals with skin lesions at heightened risk of infection. It can be inferred from the testimony that there were feces, diarrhea, vomit and urine everywhere that the bacterial load was indeed very high. Dr. Odani testified that upper respiratory infections are contagious among cats and that the infected cats should have been isolated from the healthy cats while they were being treated. She stated that cats which are in contact with a sick animal need to be watched closely and perhaps put on prophylactic medication. By watched, she meant that someone needed to spend a significant amount of time with the animals, not just spend a few minutes with them twice a day while feeding them, because the symptoms might not be noticed in such a short time. She implied, at least, that upper respiratory infections can be fatal to cats. The cats were also severely infested with fleas and had been for some time there were flea eggs dropping off of them.

Taken all together, the evidence supports the conclusion that many of the animals were at risk of immediate harm if they were not removed, and that even those animals who were generally healthy were at risk from the filthy conditions. Therefore, the fact that many of the animals were in generally good condition and were well fed does not mandate the conclusion that those animals should not have been seized, as Spadaro asserts. Rather, because the evidence, viewed in the light most favorable to the prevailing party, supports the conclusion that the officers reasonably believed that the animals health and safety necessitated removing them from Spadaros kennel, we must uphold the hearing officers order. (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631.)

DISPOSITION

The administrative order and the order denying Spadaros petition for writ of mandate are affirmed. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Richli

J.

/s/ Miller

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1]In pertinent part, Penal Code section 597.1 provides as follows:

(b) Every sick, disabled, infirm, or crippled animal, except a dog or cat, that is abandoned in any city, county, city and county, or judicial district may be killed by the officer if, after a reasonable search, no owner of the animal can be found. It shall be the duty of all peace officers, humane society officers, and animal control officers to cause the animal to be killed or rehabilitated and placed in a suitable home on information that the animal is stray or abandoned. The officer may likewise take charge of any animal, including a dog or cat, that by reason of lameness, sickness, feebleness, or neglect, is unfit for the labor it is performing, or that in any other manner is being cruelly treated, and provide care and treatment for the animal until it is deemed to be in a suitable condition to be returned to the owner. When the officer has reasonable grounds to believe that very prompt action is required to protect the health or safety of an animal or the health or safety of others, the officer shall immediately seize the animal and comply with subdivision (f). In all other cases, the officer shall comply with subdivision (g). The cost of caring for and treating any animal properly seized under this subdivision shall constitute a lien on the animal and the animal shall not be returned to its owner until the charges are paid. [] . . . []

(f) Whenever an officer authorized under this section seizes or impounds an animal based on a reasonable belief that prompt action is required to protect the health or safety of the animal or the health or safety of others, the officer shall, prior to the commencement of any criminal proceedings authorized by this section, provide the owner or keeper of the animal, if known or ascertainable after reasonable investigation, with the opportunity for a postseizure hearing to determine the validity of the seizure or impoundment, or both. [] . . . []

(g) Where the need for immediate seizure is not present and prior to the commencement of any criminal proceedings authorized by this section, the agency shall provide the owner or keeper of the animal, if known or ascertainable after reasonable investigation, with the opportunity for a hearing prior to any seizure or impoundment of the animal. The owner shall produce the animal at the time of the hearing unless, prior to the hearing, the owner has made arrangements with the agency to view the animal upon request of the agency, or unless the owner can provide verification that the animal was humanely destroyed. Any person who willfully fails to produce the animal or provide the verification is guilty of an infraction, punishable by a fine of not less than two hundred fifty dollars ($250) nor more than one thousand dollars ($1,000). [] . . . []

(h) If any animal is properly seized under this section, the owner or keeper shall be personally liable to the seizing agency for the cost of the seizure and care of the animal. Furthermore, if the charges for the seizure or impoundment and any other charges permitted under this section are not paid within 14 days of the seizure, or, if the owner, within 14 days of notice of availability of the animal to be returned, fails to pay charges permitted under this section and take possession of the animal, the animal shall be deemed to have been abandoned and may be disposed of by the impounding officer. [] . . . []

(k) Upon the conviction of a person charged with a violation of this section, or Section 597 or 597a, all animals lawfully seized and impounded with respect to the violation shall be adjudged by the court to be forfeited and shall thereupon be transferred to the impounding officer or appropriate public entity for proper adoption or other disposition. A person convicted of a violation of this section shall be personally liable to the seizing agency for all costs of impoundment from the time of seizure to the time of proper disposition. Upon conviction, the court shall order the convicted person to make payment to the appropriate public entity for the costs incurred in the housing, care, feeding, and treatment of the seized or impounded animals. Each person convicted in connection with a particular animal may be held jointly and severally liable for restitution for that particular animal. The payment shall be in addition to any other fine or sentence ordered by the court.

^[2]Spadaro does address some of her arguments to the conduct of the administrative proceeding, arguing that the hearing officer improperly applied Penal Code section 597.1 and that he failed to comply with statutes governing the conduct of hearings before state administrative agencies. We address those arguments below.

^[3]At oral argument, Spadaro informed us that two of the animals seized were her pets. She has not provided us with a citation to evidence in the record that any of the animals were her personal pets.

^[4]As pertinent, subdivision (f) of section 597.1 provides: Whenever an officer authorized under this section seizes or impounds an animal based on a reasonable belief that prompt action is required to protect the health or safety of the animal or the health or safety of others, the officer shall, prior to the commencement of any criminal proceedings authorized by this section, provide the owner or keeper of the animal, if known or ascertainable after reasonable investigation, with the opportunity for a postseizure hearing to determine the validity of the seizure or impoundment, or both. (Italics added.)

^[5]All further statutory references will be to the Penal Code unless otherwise indicated.

^[6][W]hen the Legislature has enacted a specific statute addressing a specific matter, and has prescribed a sanction therefor, the People may not prosecute under a general statute that covers the same conduct, but which prescribes a more severe penalty, unless a legislative intent to permit such alternative prosecution clearly appears. [Citation.] (Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250, original italics.)

^[7]The distinction, if any, in the application of sections 597f and 597.1 has not previously been addressed. We note, however, that section 597f was applied to cattle wandering at large, i.e., stray animals, in Carrera v. Bertaini, supra, 63 Cal.App.3d at pages 724-725, while section 597.1 was applied to neglected animals in a pet shop in Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1216-1218. This is the converse of the application for which Spadaro argues, i.e., that section 597f applies generally to neglected or abused animals, while section 597.1 applies specifically to abandoned animals.

^[8]Section 597.1, subdivision (f) further sets forth the requirements and procedures for notice and for the conduct of the post-seizure hearing; subdivision (g) contains similar provisions for a pre-seizure hearing when the conditions do not warrant immediate seizure.