With pet custody, many judges avoid making orders, viewing this issue as just one more thing the parties will fight about. Also, pets have traditionally been classified under the law as nothing more than “property,” which ignores the emotional connection people have with their pets. Some parties have taken advantage of this situation by excluding the other party from have any contact with the pet or, worse, injuring or killing the animal.
As a result, the law will change effective January 1, 2007 to recognize the court’s authority to make orders concerning pet custody in domestic violence cases. We can assist in seeking appropriate orders for the protection of pets and to maintain the relationship each party and the children have with that animal.
Courts May Issue Pet Restraining Orders
Family Code §6320 provides “(a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in [Pen. Code §528.5], falsely personating as described in [Pen. Code §529], harassing, telephoning, including, but not limited to, making annoying telephone calls as described in [Pen. Code §653m], destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.
(b) On a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent. The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.
The facts in Martinez v. Robledo (2012) 210 Cal.App.4th 384 were that the (1) Family dog was shot by neighbor; the owner of the dog sued for negligence and conversion, seeking $20,790 in veterinarian bills plus punitive damages; (2) During surgery, the veterinarian nicked and cut dog’s intestine, causing internal bleeding, and left surgical gauze inside her body, which was not disclosed by the vet. The vet charged $4,836.16 for the procedure. The dog began vomiting blood, showed pain and developed internal bleeding. Emergency surgery center saved dog’s life, billing P $37,766. First vet refused to pay for the emergency bills. The owner sued for negligence and unfair business practices.
Trial courts ruled the measure of damages would be limited to the market value of the dogs; the parties entered into stipulated judgments for the purpose of appealing the damages issue. Court of Appeal consolidated, reversed. and remanded for further proceedings. Pet owner is not limited to market value, but may recover the reasonable and necessary costs incurred for the treatment and care of the pet attributable to wrongful injury.
Court of Appeal reviewed historical treatment of pets under CA law and relied on Kimes v. Grosser (2011) 195 Cal.App.4th 1556, in reversing:
“Given the Legislature’s historical solicitude for the proper care and treatment of animals, and the array of criminal penalties for the mistreatment of animals, as well as the reality that animals are living creatures, the usual standard of recovery for damaged personal property—market value—is inadequate when applied to injured pets. [¶] We agree with the Kimes court that allowing an injured pet’s owner to recover the reasonable and necessary costs incurred in the treatment and care for the animal attributable to the injury is a rational and appropriate measure of damages. Such evidence is admissible under [Civil Code §3333] as proof of a plaintiff’s compensable damages. And a defendant may present evidence showing the costs were unreasonable under the circumstances.” (Id. at p. 392.)Pet owner is not limited to market value, but may recover the reasonable and necessary costs incurred for the treatment and care of the pet attributable to wrongful injury.