Northern California Update. By Christine Garcia-Kelly The Animal Law Office San Francisco Bay Area

Transcription

1 Northern California Update By Christine Garcia-Kelly The Animal Law Office San Francisco Bay Area

2 Topics In This Talk Animal Custody Dispute Cases, The new dangerous at Dangerous Dog Hearings and the resistance from Cities, Counties and Animal Control Suggested Law Changes for Animal Retention in Custody and Dog Bite Law Current cases of dog shootings Over-reaching impact of law enforcement in their involvement of custody disputes and animal acquisition through threats and improper misuse of coercion and threats Nonprofit/Rescue group liability for dog bites and how to protect them

3 Licensing and Ownership CA FOOD & AG Code :Any dog license tag which is issued by any city and county or city constitutes compliance with this division if it is issued pursuant to an ordinance which (c) Provides for the keeping of a record which shall establish the identity of the person that owns or harbors the dog. CA Food & Ag Code prohibits anyone from owning or possessing **385 a dog over four months of age unless the dog has a substantial collar to which is attached either a tag identifying the name and address of the owner or a metal license tag issued by the authority of a local governmental entity. See, People v. Lowry, (1994) 29 Cal.App.4th Supp. 6, 11, 34 Cal.Rptr.2d 382,

4 Microchipping & Ownership CA Health and Safety Code (a) The owner or trainer of any attack, guard, or sentry dog shall ensure that the dog has been microchipped and the owner's identification has been entered into a local or national registry. CA Food and Ag Code 31108(c) During the holding period required by this section and prior to the adoption or euthanasia of a dog impounded pursuant to this division, a public or private shelter shall scan the dog for a microchip that identifies the owner of that dog and shall make reasonable efforts to contact the owner and notify him or her that his or her dog is impounded and is available for redemption. But the microchip companies say that they are a private organization and that they do not make any statements or opinions as to ownership

5 Juicy Case Re: Police Powers/Ownership the licensing of dogs and the regulation of the manner in which they shall be kept and controlled are within the legitimate sphere of the police power. Concerned Dog Owners of California v. City of Los Angeles (2011) 194 Cal.App.4th 1219, 1237, citing, Simpson v. City of Los Angeles, supra, 40 Cal.2d at p. 279, 253 P.2d 464.) Why Juicy? Police Power, Constitutional Law Applications, language on ownership

6 Some Other Animal Custody Dispute Issues Possessory Lien Laws Breach of Contract Claims Sneaking in to get a preliminary Restraining Order Court and adding the animal as a protected family member Family law: CA Court of Appeals stated that, [i]f property alleged by one of the spouses to be community is in fact in whole or in part claimed by third persons, the court should determine as between the spouses whether the property is community, or owned by third persons. See, Glade v. Glade (1995) 38 Cal.App.4th 1441, Cal.Rptr.2d 695.

7 Custody Statute of Interest CA Civil Code CA Civil Code 3051 reads in pertinent part as follows: Every person who, while lawfully in possession of an article of personal property, renders any service to the owner thereof, by labor or skill, employed for the protection, improvement, safekeeping, or carriage thereof, has a special lien thereon, dependent on possession, for the compensation, if any, which is due to him from the owner for such service

8 Relevant Custody Case Law. Reimbursement for actual disbursements and necessary and useful expenses incurred in preserving the property bailed, or in fulfilling the objects of the bailment, may be recovered either by a gratuitous bailee or by a bailee where the bailment is for the benefit of both parties. See, Browning v. River Farms Co. of California, 82 Cal.App. 361, 367, 255 P. 548, 551(Cal.App. 3 Dist. 1927).

9 More Custody/Lien Cases of Interest See, Quist v. Sandman, 154 Cal. 748, 754, 755, 99 Pac. 204, re: liens under sections 3051 and 3052, CA Civil Code. A lien is acquired by virtue of the work done, and it is immaterial whether the work be done by the claimant or his agents. See, Goodman v. Anglo- California Trust Co, 62 Cal.App. 702, P. 1078, 1079 (Cal.App. 1 Dist. 1923), citing, Hall v. Tittabawassee Boom Co., 51 Mich 377, 402, 16 N.W. 770.

10 Dangerous Dog Hearings and the resistance from Cities, Counties and Animal Control Half Moon Bay, California Case Study Musical Dogs Writ Appeals CCP or Trial de Novo (mostly Writ) Mention of Virginia Handley California legislative hero from Fund for Animals

11 One Target Area on Writs for Dogs

12 Suggested Law Changes for Animal Retention in Custody and Dog Bite Law Dogs held as evidence in criminal cases Dogs held in quarantine for dangerous dog cases Cost prohibitive nature of appeals to pay for impound (pay for play cases) New Law: To allow all animals held as custody in criminal cases to be held in foster homes or with animal rescue sanctuaries. How to deal with liability? New Law: To allow dogs held in custody for allegedly being vicious and dangerous to be held in the care of a secure 501(c)(3). Perhaps start at municipal level?

13 Old Case of Dog Shootings Favorable in State Court, Kari R. Dixon v City of Woodland Police Dept (no urgency), Superior Court of California, County of Yolo, Case No: CV 03536, Order Confirming Settlement from 7/21/2008 from Judge Kent O Mara Favorable in Federal Court, Northern District of California, Case 3:03-cv Ghnaim v. Police Department of Berkeley et al (unlawful entry)

14 Language from CV Dixon Settlement Order

15 Current Cases of Dog Shootings Prado v East Palo Alto (Superior Court of California, San Mateo County) (Court of Appeal No. A151297, San Mateo Superior Court No. CIV535677) What went wrong? San Mateo/Police Defense of Hot Pursuit Reid v Whittier Police (Superior Court of California, Los Angeles County)

16 Over-reaching impact of law enforcement in custody disputes and animal acquisition Scenario Party A calls the police and gets them to go to Party B s home to go collect a cat or dog Under duress Party B hands animal over and then is left with an uphill battle It s a civil matter not a criminal matter if there is a basis of a claim for ownership (which varies by county here), then I advise my clients to submit that to the police officers under letter of an attorney a supplement to the police incident report so they have something to show upon arrival

17 Nonprofit/Rescue group liability for dog bites and how to protect them Insurance: Consider having the nonprofit reimburse the fosters individually for individual renters insurance coverage for animals separate from the nonprofit and language in the foster agreement to state for purposes of dog bite liability, the foster is considered the owner and guardian of the dog and assumes all liability (perhaps indemnity agreement) Volunteer Agreement: I ALSO AGREE THAT THE STRICT LIABILITY CAUSE OF ACTION UNDER THE CA DOG BITE STATUTE ( 3342) IS UNAVAILABLE TO VOLUNTEER PURSUANT TO PRIEBE V. NELSON (2006) 39 CAL.4TH 1112, 1132 [47 CAL.RPTR.3D 553, 140 P.3D 848].

18 Nonprofit/Rescue group liability for dog bites and how to protect them (continued) Make sure there is a form/agreement that must be signed prior to a dog being pulled from the shelter that shows consent to use the nonprofits name State in the above contract that the puller has conducted his own review/analysis of the dog and that they assume all liability If the nonprofit is not taking the dog, immediately file transfer of ownership to the person who pulled the dog

19 Sample of Rescue Pulling Form Include in Orientation Packet along with: 1) Policy of Nonprofit (don t discriminate, etc) 2) Rules at the Kennel 3) Social Media Policy (using names) 4) Volunteer Agreement 5) Foster Agreement

20 Zoom in of the Mice Print on the Other Slide The Requestor hereby states that a dog (or other animal) will not be taken in under the nonprofit ABC Rescue until approval has been received and this document is fully executed. Requestor has conducted his or her own due diligence and investigation on the dog prior to pulling the dog and takes full responsibility for the decision to pull the dog. If approval has been provided via electronic mail or text message, such approval must be printed out and attached to this form. ABC Rescue approves of the intake once this form is executed in full. If approval is not received, then the intake is not authorized, nor is the intake the responsibility of ABC Rescue.

21 Keep Trying!! If we don t use it, we lose it! Contact me if you are a vegan and want a free listing on vegattorney.com Contact Adam (animal-lawyer.com) if you practice animal law/referral list Christine Garcia-Kelly Phone: christine@animalattorney.com