Northern California Record

Thursday, November 21, 2019

Barking dogs get a hearing before the First District Court of Appeals in a dog park nuisance case

Lawsuits

By Carrie Salls | Aug 26, 2018

Dog
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SAN FRANCISCO – An appeals court has sided with the City of San Francisco in a dog park case filed by a city resident who claims the barking is a nuisance.

The Court of Appeal of the State of California, First Appellate District, sided with the City of San Francisco on Aug. 15 in a dog park case filed by a city resident who claimed the barking is a nuisance.

The opinion, written by Court of Appeal Associate Justice Kathleen Banke, said Gilbert did not do enough to prove his case against the city.


Associate Justice Kathleen Banke | California courts

Victor Gilbert, the plaintiff, had said his nuisance claim was “based on the constant barking of dogs at a dog park the city established across the street from his home,” the appeals court ruling said.

However, the city of San Francisco and the County Superior Court granted summary judgment in favor of San Francisco. Gilbert appealed the trial court’s judgment, saying it was based on a San Francisco ordinance under which “(nothing) done or maintained under the express authority of a statute can be deemed a nuisance.”

The appeals court ruling said Gilbert argued that the provision of the San Francisco Civil Code in question “provides a defense to the city” in lawsuits like his.

“Even were we to agree that section 3482 does not apply, Gilbert has failed to address the additional grounds on which the city sought, and the trial court granted, judgment, and we must therefore affirm the judgment,” Judge Banke said in the opinion.

Specifically, the appeals court said in its opinion that San Francisco’s motion for summary judgment also asked the court to rule on the “reasonableness” and “causation” of Gilbert’s lawsuit. 

Banke said the lower court did touch on those two issues in its ruling, “albeit briefly,” and that Gilbert himself “has not, however, addressed either alternative ground” in his appeal.

“Accordingly, even if we were to agree with Gilbert that the city has not identified any ‘statute’ (whether an ordinance, regulation, rule or policy) ‘authorizing’ barking so loud, continuous and pervasive as to be a nuisance, error as to the section 3482 defense, alone, cannot support reversal,” the appeals court said.

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