The consolidated appeals in these two cases present the same legal issue: What is the measure of damages for the wrongful injury of a pet? We hold that a pet owner is not limited to the market value of the pet and may recover the reasonable and necessary costs incurred for the treatment and care of the pet attributable to the injury. Accordingly, we reverse the stipulated judgments and remand the cases for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiffs in both cases are represented by the same attorneys, but the parties and facts are otherwise unrelated.
Eliseo Martinez, Jr., individually and as guardian ad litem for minors Eliseo Martinez III, Russell Eric Martinez, and Arlene Gonzalez (collectively Martinez) alleged the following: On the morning of February 5, 2009, Martinez's family dog, Gunner, a two-year-old German shepherd, got loose from his yard and entered the property next door belonging to respondent Enrique Robledo. At the time, the neighbors were involved in a dispute over a hedge and were not on good terms. Gunner and Robledo's dog began
Margaret Workman alleged the following: In December 2008 she took Katie, her nine-year-old golden retriever, to respondent Stephen E. Klause, a veterinarian with respondent Arcadia Small Animal Hospital, for surgery to remove a small liver lobe. During the procedure, Klause nicked and cut Katie's intestine, causing internal bleeding, and left a piece of surgical gauze inside her body. Klause did not disclose what had happened. Workman was charged $4,836.16 for the procedure. Almost immediately, Katie began vomiting blood, exhibited signs of pain and developed internal bleeding. Workman took Katie to the Animal Emergency Referral Center for emergency surgery. The center saved Katie's life by stopping the bleeding and removing remnants of the gauze, which had begun to dissolve and cause infections. The center billed Workman $37,766.06. When Workman confronted Klause, he offered to return the $4,836.16 she had paid him, but refused to pay the emergency bills. Workman sued for negligence and unfair business practices (Bus. & Prof. Code, § 17200).
In both cases, respondents filed motions in limine regarding the issue of damages. In Martinez's case, Robledo sought to limit evidence of damages to Gunner's market value. In Workman's case, the respondents sought to preclude evidence purporting to show that Katie had a "peculiar" or "unique" value. In both cases, after the trial courts had ruled that 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. The parties stipulated that the market value of each dog was $1,000, that judgments would be entered in favor of appellants in this amount, and that appellants would not seek execution of the judgments while the appeals were pending.
Summary of Contentions
Appellants contend that pets are and should be treated as fundamentally more significant than mere personal property and that the appropriate measure of damages for an owner whose pet is wrongfully injured should be the reasonable and necessary costs incurred for the pet's care and treatment. They argue that damages should not be limited to the market value of the animal. Appellants rely on Kimes v. Grosser (2011) 195 Cal.App.4th 1556 [126 Cal.Rptr.3d 581] (Kimes) (discussed below) and Civil Code section 3333, which provides: "For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not."
Respondents contend that because domestic animals are considered the personal property of their owners (Civ. Code, § 655; Pen. Code, § 491 ["Dogs are personal property, and their value is to be ascertained in the same manner as the value of other property."]), the appropriate measure of damages for wrongful injury to a pet should be the same as that for other personal property, as set forth in CACI No. 3903J and the supporting cases. CACI No. 3903J provides that the measure of damages for injury to personal property is either the difference in market value immediately before and after the injury, or the cost of repairs, whichever is less. The instruction also provides that if the property "cannot be completely repaired, the damages are the difference between its value before the harm and its value after the repairs have been made, plus the reasonable cost of making the repairs. The total amount awarded must not exceed the [property]'s value before the harm occurred." (See Smith v. Hill (1965) 237 Cal.App.2d 374, 388 [47 Cal.Rptr. 49]; Hand Electronics, Inc. v. Snowline Joint Unified School Dist. (1994) 21 Cal.App.4th 862, 870 [26 Cal.Rptr.2d 446].)
In Kimes, supra, 195 Cal.App.4th 1556, which was decided after the appeals were filed here, Division One of the First District was called upon to address the same issue confronting us: What damages can be awarded for the wrongful injury to a pet with little to no market value? (Id. at p. 1558.) In Kimes, the owner of an adopted stray cat sued his neighbors alleging they
In reaching its holding and the conclusion that "the rule in CACI No. 3903J has no application in this case to prevent proof of out-of-pocket expenses to save the life of a pet cat" (Kimes, supra, 195 Cal.App.4th at p. 1560), the Kimes court relied in part on the century-old case of Willard v. Valley Gas & Fuel Co. (1915) 171 Cal. 9 [151 P. 286] (Willard). In Willard, the plaintiffs' home and contents were destroyed by a fire negligently caused by the defendant. Lost in the fire were scrapbooks and other data used by the plaintiff in his occupation as a writer. (Id. at pp. 14-15.) Though the property had no market value, the court ruled that the property's value "`must be ascertained in some other rational way, and from such elements as are attainable.'" (Id. at p. 16.) The court held that the plaintiff could testify regarding the value of the property to him. (Id. at p. 15.) Numerous cases have followed Willard, overruled on another ground in Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 465-467 [106 P.2d 895].)
The Kimes court stated: "In this case, plaintiff is not plucking a number out of the air for the sentimental value of damaged property; he seeks to present evidence of costs incurred for [the cat's] care and treatment by virtue of the shooting — a `rational way' of demonstrating a measure of damages apart from the cat's market value." (Kimes, supra, 195 Cal.App.4th at p. 1561.) The Kimes court noted that other states have applied a similar measure of damages (citing Zager v. Dimilia (N.Y.J.Ct. 1988) 138 Misc.2d 448 [524 N.Y.S.2d 968, 970] and Burgess v. Shampooch Pet Industries, Inc. (2006) 35 Kan.App.2d 458 [131 P.3d 1248]). The court also cited Evidence Code section 823, which provides that "`the value of property for which there is no relevant, comparable market may be determined by any method of valuation that is just and equitable.'" (Kimes, supra, at pp. 1561-1562.)
Respondents argue that Kimes was wrongfully decided because it did not adhere to the traditional measure of damages for injury to personal property, and urge us not to follow it. Additionally, they seek to distinguish Kimes by pointing out that the cat in Kimes had little to no market value, whereas the parties here stipulated that Gunner and Katie each had a market value of $1,000. We note that this stipulated value was agreed upon solely for the purpose of taking an appeal.
Respondents argue that "[t]o permit animal owners — or at least the owners of otherwise `valueless' animals — to effectively dictate a value by their unilateral choice concerning the amount they are willing to spend for veterinary care is to treat animals as sui generis, as fundamentally different from any other sort of personal property." But the law already treats animals differently from other forms of personal property. For example, 48 states, the District of Columbia, Guam, Puerto Rico and the Virgin Islands, classify some form of animal cruelty as a felony. (See U.S. Jurisdictions With and Without Felony Animal Cruelty Provisions <http://aldf.org/article.php?id=261> [as of Oct. 23, 2012].) By contrast, the law generally does not treat the abuse or intentional destruction of other forms of one's own property as a crime. State and federal pet evacuation legislation enacted in the wake of Hurricane Katrina also acknowledges the value of animal companions to their human families by providing assistance for the evacuation and temporary shelter of pets in times of emergency or disaster. (See Pets Evacuation and Transportation Standards Act of 2006 (PETS) (Pub.L. No. 109-308 (Oct. 6, 2006) 120 Stat. 1725 (42 U.S.C. § 5121)); Louisiana Pet Evacuation Bill (2006 La. Acts 615 (codified at La. Rev. Stat. Ann. §§ 29:726(E)(20)-(21), 29:729(E)(13)-(14), 29:733.1)).) As amicus curiae states, "These laws reflect the widespread socially-accepted significance of animals and their connection with people, and demonstrate that our legal system recognizes that animals are a unique kind of property." In addition to the out-of-state cases cited in Kimes, appellants and amicus curiae cite numerous other foreign cases that support awarding owners damages for injured pets in excess of the pet's value.
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 of the animal attributable to the injury is a rational and appropriate measure of damages. Such evidence is admissible under Civil Code section 3333 as proof of a plaintiff's compensable damages. And a defendant may present evidence showing the costs were unreasonable under the circumstances.
The stipulated judgments are reversed and the cases remanded for further proceedings in accordance with the views expressed herein. The parties to bear their own costs on appeal.
Boren, P. J., and Ashmann-Gerst, J., concurred.