No Generic “Pitbull” Issue in CA Federal Court

California Courts of Appeal Opinions

Hupp v. Solera Oak Valley Greens Assn.
Docket: E065766 (Fourth Appellate District)

Opinion Date: June 23, 2017

Judge: Carol D. Codrington

Areas of Law: Animal / Dog Law, Real Estate & Property Law

Plaintiff Aristea Hupp (Aristea) appealed after the trial court granted defendants Solera Oak Valley Greens Association and City of Beaumont Animal Control Officer Jack Huntsman’s ex parte application to dismiss Aristea’s first amended complaint (FAC) as a vexatious litigant.

Aristea argued: (1) the trial court’s order granting Solera’s ex parte application to dismiss deprived her of her due process rights to notice and an opportunity to be heard; (2) Solera waived its vexatious litigant defense by not raising it in its first responsive pleading; and (3) under the Davis-Stirling Common Interest Development Act (Davis-Stirling Act), she was authorized to seek recovery of damages sustained by her son, Paul Hupp (Paul), from violations of Solera’s Covenants, Conditions and Restrictions (CC&Rs).

In 2014, Paul was declared a vexatious litigant. In 2015, Aristea and Paul filed a complaint against Solera over enforcing a community rule regarding muzzling of Pit Bulls on properties within the Solera community. The Hupps walked their dogs through the community without a muzzle. The Hupps argued the rule was only applied to the Hupps, and that Solera could not single out any one breed.

After review, the Court of Appeal affirmed dismissal as to all claims alleged in the FAC which were brought by or for the benefit of Paul, on the ground he has been declared a vexatious litigant. Because Aristea had not been declared a vexatious litigant, the judgment of dismissal was reversed as to all claims in the FAC that were solely personal to Aristea.

 

 

The case above does mention that the litigant believed her dog or dogs could not be properly identified as “pitbull” since there is no actual breed of dog. In order to decide the case, we imagine the association’s rule would be examined, and the definition of the word pitbull would be determined.  Since DNA testing for animals is not considered forensically 100% accurate, especially as to “pitbull” types, and in many cases, it is not even possible to do; therefore, the evidence on that issue may be non-obtainable.

In case some are not aware, there is no generic “pitbull” breed of dog. Pitbull may mean to refer to any number of alleged bully type dog, but each actual bully type has already been standardized over the course of history, and then plausibly expanded by creating new types, such as low slung bulldog types used mainly just for show.  Research on the subject, especially with many books out there……………..is made more difficult by animal rights, who believe the dogs are “what you make them” or “how you raise them.”

It has been the mixing down of actual APBT dogs (resulting in curs) that often create animals which act unpredictably.

It appears in many cases that mixing APBT with larger guardian dogs tends to result in both bad temperament and unpredictability, but this is not a proven fact, just something that has been noted from having done rescue of animals, and in working with people who know breeding.  Many dogs which are held responsible for killing people have unknown backgrounds but to some people, they may resemble the “pitbull” look because they have a blocky head, short fur, etc.

pit-princess

An actual purebred APBT which has been breed correctly for BREED standard– should be, and would be, a game dog, and therefore will be animal aggressive, quite predictably.  It should NOT be human aggressive.  This trait, of being animal aggressive historically, which was purposely bred for, is not considered a fault in the breed, but is an accepted trait inherent to the breed (to be animal aggressive..)   On the other hand, dogs such as American Staffordshire Terriers (currently an AKC recognized breed) may not have this tendency; the AKC does not recognize APBTs. 

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