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Tragic Dog Death in California & the Law on an Owner's Emotional Distress Damages

December 2016

By: Robert M. Bodzin and Aneiko L. Hickerson

California Law Update
Tragic Dog Death in California & the Law on an Owner's Emotional Distress Damages
By: Robert Bodzin and Aneiko Hickerson

Contact Information


Robert Bodzin
(510) 835-6833
Robert Bodzin is a partner and trial attorney at Burnham Brown, one of the Chairs of the firm's Business and Commercial Litigation Practice Groups and a member of the firm's Retail and Hospitality Practice Group.  Mr. Bodzin is a recent past Chair of the California State Bar Litigation Section and is an Advisor on its Executive Committee.  Mr. Bodzin has been practicing law since 1992 and is admitted as an attorney in California, New York and New Jersey.  
Aneiko Hickerson
(510) 835.6621
Aneiko L. Hickerson is an associate at Burnham Brown's Los Angeles office. Ms. Hickerson's litigation practice includes emphasis on personal injury and premises liability.  She is a member of the firm's Retail and Hospitality Practice Group and an active member of the California Minority Counsel Program (CMCP). 
Shortly before Thanksgiving 2016, a civil damages lawsuit was filed against former Petsmart employee Juan Zarate, who is accused of causing the death of a young dachshund named Henry Peacock. The lawsuit, which was filed in San Mateo County by Henry's owners Stefan Zier and Terrie Peacock, also named Petsmart as a defendant. The lawsuit accuses Mr. Zarate of causing Henry's death during a grooming session at the store. Criminal charges by the San Mateo County District Attorney against Mr. Zurate have also been filed.

The efforts of Mr. Zier and Ms. Peacock to recover emotional distress damages because of Henry's death is a reminder that California law on this subject has been emerging over the years. This Burnham Brown California Law Update provides a brief overview of the evolution in the law in this area and a roadmap for following the developments in the lawsuit against Mr. Zurate and Petsmart. 
Historical Resistance to Pet-Related Recovery For Emotional Distress
Under California statute, property subject to ownership includes "all domestic animals." (Civ. Code §655.) This classification did not, however, always include personal pets, such as dogs. Historically, animals were valued by their usefulness. Therefore, at common law, personal pets were deemed to have very little, if any, value and, accordingly, were not considered to be "property" in the traditional sense of the word. This view eventually shifted and dogs were elevated to personal property status, with California statute specifically providing that "their value is to be ascertained in the same manner as the value of other property." (See California Penal Code §491.) 

Given this historical context, it should come as little surprise that California - like other states - was largely reluctant to compensate pet owners, whose animals were hurt or killed by another person, beyond requiring the tortfeasor to pay the value of the "property" itself, generally measured by fair market value or the cost of replacement. However, in his separate concurring and dissenting opinion in the case of Katsaris v. Cook, 180 Cal.App.3d 256 (1986), Justice M.O. Sabraw opined: "We have come a long way from the old common law concept of a dog not even being considered property. Not only is he more than property today, he is the subject of sonnets, the object of song, the symbol of loyalty. Indeed, he is man's best friend." (Katsaris, supra, 180 Cal.App.3d at 270.) In Katsaris, the plaintiff brought an action for damages, negligence and intentional infliction of emotional distress ("IIED") arising out of the killing of his two dogs by the defendant. Defendant's summary judgment motion was granted at the close of the plaintiff's case and judgment was entered accordingly. The trial court viewed the IIED claim as barred by section 31103 of the Food & Agricultural Code and, therefore, did not reach the merits of that claim. The Court of Appeal affirmed the judgment as to the damages and negligence claims but, finding that the claim was not barred by statute, remanded the emotional distress claim to the trial court for the limited purpose of further evaluating whether plaintiff had proved his IIED claim.

The reality is that pet owners assign great value - both emotionally and personally - to their pets, such that the ordinary measures of damages may seem to some to be insufficient or inappropriate. But what happens when that emotional and personal value leads pet owners to seek damages not just for the pet itself, but for their own emotional distress after the animal has been injured or killed?

A 2009 case before the California Court of Appeal addressed this very issue - i.e., whether a pet owner can recover damages for emotional distress after their animal has been injured or killed. In the veterinary malpractice case of McMahon v. Craig, 176 Cal.App.4th 1502 (2009), plaintiff Gail McMahon sued veterinarian defendant Diane Craig after the death of her purebred Maltese, Tootsie, following corrective surgery under the defendant's care. Tootsie had been diagnosed with laryngeal paralysis, and Craig recommended surgery. During the pre-surgical consultations the plaintiff made her strong bond to the dog known and she alleged that defendant Craig understood that plaintiff would suffer tremendous emotional pain if Tootsie died. 

The defendant informed McMahon that the biggest post-operative concern was aspiration pneumonia, and that all necessary precautions would be taken to reduce this risk, including withholding food and water from Tootsie for 24 hours after the surgery. Despite these representations to the plaintiff, defendant Craig instructed a technician to give food and water to Tootsie within hours of her surgery, which was immediately aspirated into her lungs resulting in aspiration pneumonia. Craig informed the plaintiff of the pneumonia, but falsely represented to the plaintiff that only water had been given. She promised the plaintiff that Tootsie would be closely monitored and afforded the best possible care. Much to the contrary of defendant's promises, Tootsie was left unmonitored, in a cage in the back of the hospital, without appropriate medications and supportive care. Tootsie died the day after surgery and her death was accidentally discovered by a technician who was checking on another animal. In the days following, the defendant continually lied and withheld information to cover up her errors in the post-operative care provided. 

Plaintiff McMahon filed suit seeking damages for, inter alia, IIED. The trial court sustained defendants' demurrer to the IIED cause of action, without leave to amend, and also struck the plaintiff's damage claims for emotional distress. Agreeing with the trial court, the Court of Appeal held that emotional distress damages for negligence were not available to the plaintiff because she was not a witness or a direct victim of the negligent acts by defendant. Finding the plaintiff's reliance on a line of cases to support her direct victim theory to be inapposite, the Court noted that "[a]lthough a pet owner may be emotionally involved in the pet's health, nothing in [the case cited by plaintiff] suggests this relationship would give rise to a 'direct victim' liability for a veterinarian's malpractice." (McMahon, supra, 176 Cal.App.4th at 1511.) 

The court in McMahon warned that expanding the law to permit recovery of emotional distress damages for harm to pets would likely result in increased litigation, significantly impacting the limited resources of the court. Further, the court was reluctant to extend emotional distress damages to pet owners for claims based on veterinary malpractice, concluding that any extension of a duty of care to avoid causing emotional distress to pet owners is a more appropriate undertaking for the legislature. 

While the McMahon decision seemingly closed the door on emotional distress damages for pet owner plaintiffs, it is important to note that McMahon only addressed the availability of such damages in the context of negligence. The McMahon ruling did not address whether damages for emotional distress are recoverable by a pet owner where his or her animal is harmed as a result of intentional conduct by the defendant. 

Three years after the appellate court's decision in McMahon, the pendulum shifted and came to rest on a ruling much friendlier to the interests of pet owners claiming emotional distress as a result of injury to their animals. 
2012 Case Allows Emotional Distress Recovery in California 

In Plotnik v. Miehaus, 208 Cal.App.4th 1590 (2012), the California Court of Appeal held that a pet owner is entitled to recover for emotional distress caused by the intentional act of another that injures or kills his animal. Alleging that a neighbor struck their dog with a bat, plaintiffs David and Joyce Plotnik filed a lawsuit against defendant John Meihaus, Jr. and two of his sons, seeking to recover, in part, for the emotional distress they suffered as a result of the dog's injury. 

The rear of plaintiffs' property abutted the lot owned and occupied by defendant Meihaus. Plaintiffs began having problems with the defendant neighbor shortly after moving into the home in 2003. This brewing bad blood between neighbors reached a boiling point when, in 2009, plaintiff heard loud banging on the opposite side of his rear fence. He opened the gate and his 12-15 pound miniature pinscher, Romeo, ran into the defendant neighbor's backyard. Believing Romeo to have run to the front of the defendant's house, Plotnik had begun to walk along the adjacent public street, when he heard Romeo bark and then squeal. Plaintiff returned to his property to see Romeo roll through the open gate, down the sloped yard, and then hit a tree. David Plotnik went through the gate and observed the defendant neighbor to be holding a bat. He told Plotnik to stop his dog from barking. When the plaintiff returned to his yard he found that Romeo was having difficulty walking, and so the family took him to a veterinarian. Romeo required surgery to repair his right rear leg, which the veterinarian testified resulted from a traumatic event. Later that day the plaintiff had another confrontation with Meihaus' sons who, among other things, threatened to kill Plotnik and his dog. 

At trial, the jury awarded plaintiffs damages for emotional distress on their causes of action for trespass to personal property and negligence arising out of Meihaus hitting the dog with a bat. The jury also awarded damages for both the intentional and negligent infliction of emotional distress claims. Finding McMahon v. Craig to be controlling, the court reversed the emotional distress damages awarded on the negligence count.

The primary issue in Plotnik was whether plaintiffs could recover for their emotional distress under the trespass to property cause of action. The court concluded that there was no authority prohibiting the recovery of damages for emotional distress, and further pointed out the existence of statutes that extend both civil and criminal liability to willful and intentional conduct that injures an animal. (See Cal. Civ. Code §3340 [punitive damages for wrongful injuries to animals, committed willfully or by gross negligence]; and, Cal. Pen. Code §597(a) [malicious and intentional killing of an animal is a felony].) Accordingly, the Court found that good cause existed to allow the recovery of emotional distress damages under the circumstances of the case, and held that the plaintiffs could recover for the mental suffering that was caused by the intentional act of Meihaus that injured their dog. In holding as such, the court noted that trespass to personal property generally allows recovery for "the actual damages suffered." (Plotnik, supra, 208 Cal.App.4th at 1606.) 

As to the plaintiffs' IIED claim, the court found that while Meihaus' conduct could amount to outrageous conduct sufficient to support an award of damages for IIED, the additional award for emotional distress for the IIED cause of action had to be reversed as duplicative of those already awarded under the trespass to personal property theory. Citing an 1889 California Supreme Court decision, the court in Plotnik observed "that there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt" than dogs. (Plotnik, 208 Cal.App.4th at 1607.) 

It is important to note that Plotnick did not extend the right to recover emotional distress damages to pet-owners when the death of the pet is caused by mere negligence. When the Court in Plotnik talked about support for emotional distress damages in cases of intentional harm to an animal, they noted California Penal Code section 597(a) which makes it a crime to intentionally maim, mutilate, torture, wound, or "maliciously and intentionally" kill an animal; and, Civil Code section 3340, which allows for punitive damages if a person willfully or through gross negligence injures an animal. The criminal charges against Mr. Zarate are also based on California Penal Code section 597.
The San Mateo County Lawsuit Against Mr. Zarate and Petsmart
Plaintiffs / "pet parents" Stefan Zier and Terrie Peacock have filed a wrongful-death lawsuit against Petsmart, Inc. and Juan Zarate arising out of the death of their one year old dachshund, Henry Peacock, and seeking to recover on five causes of action, including - much like the Plotniks - trespass to chattels and IIED. (San Mateo County Superior Court Case No. 16CIV02490, filed Nov. 22, 2016.) The twenty-one page complaint alleges that Juan Zarate, an employee and groomer who worked at the Petsmart store located on S. El Camino Real in San Mateo, "intentionally and knowingly" killed plaintiffs' year old puppy. [1]
On May 15, 2016, Zier took the puppy, along with one of two other dogs plaintiffs owned, to the Petsmart store for a routine nail trim. Around the same time that Zier handed the dog off to Zarate for the service, plaintiff Peacock arrived with the third of the couple's three dogs. Minutes after Zarate took Henry to the grooming station, plaintiffs allege they heard a shout and witnessed Zarate to emerge from the station carrying Henry's limp body and exclaiming there to be a medical emergency. Rather than transporting Henry directly to the on-site Banfield Pet Hospital, the complaint alleges that Zarate stood in front of plaintiffs, holding Henry as blood foamed out of his mouth and he struggled to breathe. Zarate then walked Henry over to the pet hospital, where the plaintiffs were told the veterinarian would attempt to remove blood from Henry's lungs. 

Henry succumbed to his injuries shortly thereafter, and the veterinarian's report revealed two broken ribs and a punctured lung, which the plaintiffs alleged to be a result of Zarate's conduct. According to reports, it was subsequently determined that the dog had also been strangled . Zarate was arrested and is currently out on bail awaiting trial, after pleading not guilty to felony charges of animal cruelty and abuse. Plaintiffs Zier and Peacock, who refer to themselves as Henry's "pet parents," have been cited as saying the lawsuit is not about money, but about preventing others from dealing with the trauma they experienced. [2]

Factually, this new Petsmart case is clearly more in the vein of Plotnik than it is McMahon. Nevertheless, it is definitely a case to watch as its outcome stands to be a potential bellwether for the direction of pet owner claims for emotional distress damages. Moreover, the case is nuanced by Zarate's pending criminal case, so it will be interesting to observe the extent to which any factual findings in the criminal case are given collateral estoppel effect in the civil suit, and how that ultimately plays out. Zier and Peacock have as their goal to achieve change in the regulation and oversight of the pet grooming industry. 

This case may have large implications for the pet grooming industry and other pet-support businesses. We will be providing updates on this important and emerging area of the law. 

[1] Bay City News Service, Couple Whose Dog Died While Being Groomed File Lawsuit Against Petsmart, SFGate, November 22,   2016,
[2] Sarah Ravani, Bay Area Owners of Slain Dachshund File Lawsuit Against Petsmart, SFGate, November 23,2016,
This article is presented for informational purposes only and is not intended to constitute legal advice.


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