Northern California Update - PowerPoint Presentation

Slide1

Northern California Update

By Christine Garcia-Kelly

The Animal Law Office

San Francisco Bay Area

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

Licensing and Ownership

CA

FOOD & AG Code

§ 30502

: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

§ 30951

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, 384-385.

Microchipping & Ownership

CA Health and Safety Code

§

121920

. (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”

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

…

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, 1451 45 Cal.Rptr.2d 695 .

Custody Statute of Interest

CA Civil Code § 3051. 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

…

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

).

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, 705 217 P. 1078, 1079 (

Cal.App

. 1 Dist. 1923),

citing

, Hall v.

Tittabawassee

Boom Co., 51

Mich

377, 402, 16 N.W. 770.

Dangerous Dog Hearings and the resistance from Cities, Counties and Animal Control

Half Moon Bay, California

–

Case Study

Musical Dogs

🎶

Writ Appeals

–

CCP 1094.5 or Trial de Novo (mostly Writ)

Mention of Virginia Handley

–

California legislative hero from Fund for Animals

One Target Area on Writs for Dogs

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?

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-04897

Ghnaim

v. Police Department of Berkeley et

al (unlawful entry)

Language from

CV 03536

Dixon Settlement

Order

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

)

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

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

].”

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

Sample of

Rescue Pulling Form

Include in Orientation Packet along with:

Policy of Nonprofit (don’t discriminate,

etc

)

Rules at the Kennel

Social Media Policy (using names)

Volunteer Agreement

Foster Agreement

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

.

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 listChristine Garcia-Kelly Phone: 415-297-3109E-mail: christine@animalattorney.com