Here is yet another example from the Penal Code on Animal Seizure:
(j) No animal properly seized under this section or pursuant to a search warrant shall be returned to its owner until the owner can demonstrate to the satisfaction of the seizing agency or hearing officer that the owner can and will provide the necessary care for the animal.
(k)(1) In the case of cats and dogs, prior to the final disposition of any criminal charges, the seizing agency or prosecuting attorney may file a petition in a criminal action requesting that, prior to that final disposition, the court issue an order forfeiting the animal to the city, county, or seizing agency. The petitioner shall serve a true copy of the petition upon the defendant and the prosecuting attorney.
(2) Upon receipt of the petition, the court shall set a hearing on the petition. The hearing shall be conducted within 14 days after the filing of the petition, or as soon as practicable.
(3) The petitioner shall have the burden of establishing beyond a reasonable doubt that, even in the event of an acquittal of the criminal charges, the owner will not legally be permitted to retain the animal in question. If the court finds that the petitioner has met its burden, the court shall order the immediate forfeiture of the animal as sought by the petition.
(4) Nothing in this subdivision is intended to authorize a seizing agency or prosecuting attorney to file a petition to determine an owner’s ability to legally retain an animal pursuant to paragraph (3) of subdivision (l) if a petition has previously been filed pursuant to this subdivision.
(l)(1) 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.
We have seen these hearings take place, though, where owner was able to overcome the allegation that he or she would not be able to legally retain the animals.
There are limited circumstances when an owner would not be able to keep the animals, i.e. plausibly because he/she became homeless, or was without means to provide food for animals, or where owner was living in his/her car. Actually even if owner WAS living out of his/her car, that in and of itself would not mean owner could not take care of a pet.
Below is more information than you ever wanted to know on legislative history of same: ftp://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1451-1500/sb_1500_cfa_20120618_104047_asm_comm.html
NOTE—HSUS WAS MAJOR SPONSOR OF THIS BILL WHICH APPEARS TO BE DESIGNED IN PART, AGAINST PITBULLS—-no surprise! This is shown at the end of the bill analysis. Also the law was claimed to be used for “hoarding” cases…IF in fact, a case was a bona fide instance of actual “hoarding” where animals were not properly cared for, that might be a possible application of this rule. However, it has been used in cases where hoarding itself could/should have been challenged. At outset, the status of “hoarding” or being a hoarder should be brought up as a defense to make the record. If in fact there is no defense of same, then attorney would have known that from the outset and focused on other elements of the case.