Mowery v. El Centro Animal Clinic CA4/1 ( 2024 )

Filed 10/28/24 Mowery v. El Centro Animal Clinic CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SIERRA MOWERY, D082522
Plaintiff and Appellant,
v. (Super. Ct. No. ECU000723)
EL CENTRO ANIMAL CLINIC, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Imperial County,
Jeffrey B. Jones, Judge. Affirmed.
Law Office of Scott Pomerantz and Scott Pomerantz for Plaintiff and
Appellant.
Collins + Collins, Robert H. Stellwagen, Jr., Tiffany E. Garrick, and
James C. Jardin for Defendant and Respondent.
Sierra Mowery appeals the judgment in her action for damages against
El Centro Animal Clinic, Inc. (the Clinic) for negligently causing the death of
her dog Bitty. Mowery contends the trial court erred by ruling in limine that
her damages were limited to the veterinary expenses she incurred in trying
to save Bitty’s life. We affirm.
I.
BACKGROUND
A. Bitty’s Death
Mowery owned Bitty, a six-year-old, pure-bred Irish wolfhound. After
Mowery noticed Bitty seemed lethargic and had vomited in several places
around the house, she took the dog to the Clinic. Mowery told Oliver C.
Kenagy, a veterinarian, that she feared Bitty’s ingestion of a foreign object
might have caused an obstruction of the gastrointestinal tract. Kenagy said
Bitty “probably ate something ‘rotten’ which was causing transient stomach
discomfort.” Kenagy palpated Bitty’s abdomen, noticed nothing abnormal,
injected several medications, and prescribed others. He did not recommend
any diagnostic tests to rule out the possibility of a gastrointestinal
obstruction. Mowery took Bitty home.
By the following morning, Bitty’s condition had deteriorated. The dog
would not swallow, appeared dazed, and could not stand on its own. Mowery
took Bitty to the San Diego Pet Emergency & Specialty Center, where the dog
was found to be in septic shock. An X-ray film revealed a gastrointestinal
obstruction. After two unsuccessful surgical attempts to repair the damage
from the obstruction, Bitty’s lungs began to fill with fluid, and Mowery
decided to euthanize the dog.
B. Mowery’s Complaint
Mowery sued the Clinic for veterinary malpractice.1 She alleged the
Clinic breached the standard of care and caused Bitty’s death by failing to
1 Mowery also sued Kenagy and asserted a count for fraudulent
nondisclosure. Kenagy accepted Mowery’s pretrial offer to compromise and
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conduct radiological studies to detect the gastrointestinal obstruction, failing
to hydrate Bitty, and failing to refer Mowery to a specialist treatment facility
for surgery. Mowery prayed for general damages, recovery of more than
$30,000 in veterinary expenses, prejudgment interest, costs, and all other
relief the court deemed just and equitable.
C. In Limine Motions
The Clinic filed four motions in limine, two of which are at issue in this
appeal. By motion No. 1, the Clinic sought to exclude “all inquiries into and
testimony concerning ‘emotional distress,’ grief, or loss of companionship, or
any physical consequence of same allegedly sustained by [Mowery] in
consequence of the negligent injury and death of [Bitty].” The Clinic argued
damages for such injuries were, as a matter of law, not recoverable for
negligent injury to a pet, and any evidence of such injuries would be
irrelevant, misleading, and prejudicial. By in limine motion No. 4, the Clinic
sought to exclude evidence of the peculiar value of the dog. Although the trial
court’s register of actions lists the motion as having been filed, Mowery did
not include a copy in the record on appeal.
According to the trial court’s register of actions, Mowery filed
opposition to both in limine motions, but she included only the opposition to
motion No. 4 in the record on appeal. There she argued a pet is comparable
to an heirloom, in that each is precious to its owner but has no market value;
and damages for a lost pet should be established the same way as damages
for a lost heirloom, namely, by testimony of the owner on the value of the
thing to her. Mowery further argued that because Bitty died, recovery of only
veterinary expenses would not provide full recovery, and the dog’s value must
agreed to entry of judgment against him for $9,999. (Code Civ. Proc., § 998.)
He is not a party to this appeal. Mowery dismissed the fraudulent
nondisclosure count with prejudice. That count is not at issue on appeal.
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be established by testimony from Mowery “as to how she acquired Bitty, her
time spent training and working with Bitty[,] and Bitty’s nature and
character.”
D. Trial Management Conference
At the trial management conference, Mowery’s counsel told the trial
court she planned to call Mowery and one or two treating veterinarians to
testify. The trial court noted liability seemed to be conceded and asked what
the veterinarians would testify about. Mowery’s counsel replied that the
Clinic admitted breach of the standard of care but not causation. The Clinic’s
counsel stated the Clinic would stipulate that it breached the standard of
care, the breach was a cause of Bitty’s death, and the reasonable value of the
harm was the veterinary expenses Mowery incurred in trying to save Bitty’s
life. When the court asked Mowery’s counsel what other damages Mowery
sought, he said: “There was money spent on veterinarian expenses to try to
save the property. [¶] . . . [¶] And that’s one damage. Then there was the
loss of the property, in addition to that.” The court expressed doubt Mowery
could recover both “the cost to repair, here the vet bills,” and “the diminution
in the value of the [dog].”
When the trial court turned to the in limine motions, it granted the
Clinic’s motion to exclude evidence of emotional distress, grief, or loss of
companionship, on the ground that damages for such injuries were not
available for veterinary malpractice. On the Clinic’s motion to exclude
evidence of Bitty’s peculiar value, the court engaged in a lengthy discussion
with Mowery’s counsel about the evidence she intended to put on to establish
the dog’s value. The court stated the “veterinarian bills” were recoverable as
“based on the peculiar value of the pet,” but “emotional distress,” “care,
comfort and society” were unrelated to the dog’s economic value and were not
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recoverable. The court repeatedly asked Mowery’s counsel for an offer of
proof as to what evidence other than the veterinary expenses he intended to
present to establish Bitty’s value. Mowery’s counsel responded that “there is
a special value that does not hinge on economic value” and that Mowery
sought “[t]he special value of the family pet to the owner.”
When the court pressed for more specificity, counsel stated Mowery
would testify about: (1) how she acquired Bitty; (2) time spent acquiring
Bitty; (3) time spent training Bitty; (4) time spent with Bitty; (5) how often
she traveled with Bitty; (6) things she purchased for Bitty; (7) what she fed
Bitty (8) money spent on toys, collars, leashes, and other pet accessories; and
(9) the significance of Bitty in her daily life. The Clinic’s counsel argued
these items did not show “a peculiar value” or “a unique value to [Mowery]
that [they] would not have to any other owner because every other owner
with any good dog like Bitty would also feed and care for and go on trips with
[the dog].”
The court noted that generally the measure of damages for the death of
a dog is “the value of the dog at the time of its death if caused by negligence
or other wrongful conduct,” but an exception allows recovery of veterinary
expenses exceeding the dog’s value “because the dog has peculiar economic
value to its owner.” The court went on to state that a pet’s peculiar economic
value “does not mean the total amount that [the owner] ha[s] invested in the
animal because, of course, [the owner] received the benefit along the way.”
For the court, “the vet bill after the dog is injured [is] different,” because that
expense is “a result of someone else’s negligence.” Mowery’s counsel argued
that when a dog is negligently killed, the owner should recover not only the
out-of-pocket expenses for the unsuccessful efforts to save the dog’s life but
also an amount to compensate for the loss of the dog.
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The court then asked, “What is the value of the dog, by the way? What
does a dog like that go for?” Mowery’s counsel responded variously that
“adult family pets don’t have a market value,” “our position is there’s not a
market value,” and Bitty had “[z]ero market value.” Counsel said Mowery
was seeking “[t]he value of the dog to the owner, which we know is as least as
much as the vet bills.” The court responded that Mowery “is allowed to
recover the damages incurred by reason of the negligence of the [Clinic]. One
element of those damages, and the only one [the court] heard so far, being the
veterinarian bills expended to try to save the dog.” When the court said it
would allow as additional damages the market value of Mowery, counsel
responded: “Adult family pets don’t have a mar[ke]t value,” and presentation
of evidence on that issue was “not going to happen.”
The court also asked Mowery’s counsel for his “view of the economic
value of the dog.” Counsel was “not sure how to distinguish that from market
value,” which he conceded Bitty did not have, and went on to admit the dog
generated no income, was not in commercials or dog shows, and had no
breeding value. Counsel refused to give the court a number and stated he
was “going to leave it to the fact finder to determine what the value of the
property was to the owner.” In counsel’s view, “Bitty should be valued [like] a
family heirloom,” and “the facts and circumstances of [Mowery’s] ownership
of Bitty would be used as evidence to support such a value.”
The court “grant[ed] the motion and limit[ed] the evidence as to the
value of the dog to . . . its economic value,” which the court ruled was “either
the value of the dog or the cost to repair or the veterinarian bills that were
expended. [¶] And here, I don’t think we have anything but the veterinarian
bills as far as . . . economic value of the dog.”
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E. Stipulated Judgment
The parties stipulated to entry of judgment in favor of Mowery and
against the Clinic on the veterinary malpractice count for $24,812.84, which
was the amount of veterinary expenses less a $9,999 offset for the settlement
with Kenagy. The judgment also awarded Mowery $12,659.11 in
prejudgment interest.
II.
DISCUSSION
A. Appellant’s Contentions
Mowery contends that limiting to veterinary expenses the damages an
owner of a negligently killed pet with no market value may recover is unjust
and inconsistent with case law allowing an owner of other negligently
destroyed personal property with no market value to recover the special
value of the property to the owner. She acknowledges California courts have
held that reasonable veterinary expenses are a proper measure of value when
the pet is negligently injured and survives, and that damages for emotional
distress and loss of companionship are not compensable when a pet dies due
to another’s negligence. Mowery argues, however, that the value of a pet to
its owner necessarily includes some sentimental value, not just economic
value; the difficulty of measuring the value does not relieve the tortfeasor of
the obligation to compensate the owner for its loss; and its measurement
must be left largely to the discretion of the trier of fact. She also makes
policy arguments that limiting damages for tortiously killed pets would harm
Californians, and any such limitation is a matter for the Legislature, not the
courts. Mowery claims the judgment and the trial court’s in limine rulings
should be reversed and the matter “remanded with further instructions to the
trial court,” but she does not specify what those instructions should be.
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B. Appealability and Standard of Review
A stipulated judgment, though ordinarily not appealable, is appealable
where, as here, the appellant stipulated to facilitate an appeal of an adverse
ruling on a key issue and the judgment resolved all claims among all parties.
(Martinez v. Robledo (2012) 210 Cal.App.4th 384, 387, fn. 2 (Martinez);
McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1508, fn. 1 (McMahon).) The
proper measure of damages is a legal question we review de novo. (Coziahr v.
Otay Water Dist. (2024) 103 Cal.App.5th 785, 820-821; Martinez, at p. 387, fn.
2.)
C. Measure of Damages for Negligently Caused Death of Pet
Dogs and other pets are personal property of their owners (Civ. Code,
§ 655; Pen. Code, § 491; Roos v. Loeser (1919) 41 Cal.App. 782, 785 (Roos)),
and “their value is to be ascertained in the same manner as the value of other
property” (Pen. Code, § 491, subd. (a)). “It may be the market value, or some
special or peculiar value to its owner to be ascertained by reference to its
usefulness or other qualities.” (Roos, at p. 785.) The “peculiar value” of a dog
“refer[s] to special characteristics,” such as “pedigree, reputation, age, health,
and ability to win dog shows,” which “increase the animal’s monetary value,
not its abstract value as a companion to its owner.” (McMahon, supra,
176 Cal.App.4th at p. 1518; see King v. Karpe (1959) 170 Cal.App.2d 344, 349
[value of destroyed cow may include breeding potential]; Dreyer v. Cyriacks
(1931) 112 Cal.App. 279, 284 [value of dog that appeared in films may be
based on earnings].) Most pets have no such peculiar or special value,
however, and “there is generally no market for other people’s pets.”
(Martinez, supra, 210 Cal.App.4th at p. 390.)
When personal property with no market value is negligently destroyed,
the measure of damages is “the amount which will compensate for all the
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detriment proximately caused thereby, whether it could have been
anticipated or not.” (Civ. Code, § 3333; see Willard v. Valley Gas & Fuel Co.
(1915) 171 Cal. 9, 15 (Willard).) For such property, the value or the owner’s
damages “ ‘must be ascertained in some other rational way and from such
elements as are attainable,’ ” including testimony of the owner “regarding
[the property’s] value to him.” (Willard, at pp. 15–16 [owner of negligently
destroyed scrapbooks with no market value could testify about their value to
him in his occupation as a writer].) Following Willard, one Court of Appeal
held that allowing an owner of a tortiously injured pet to present evidence of
costs incurred to treat the pet was “a ‘rational way’ of demonstrating a
measure of damages apart from the [pet’s] market value.” (Kimes v. Grosser
(2011) 195 Cal.App.4th 1556, 1561 (Kimes).) Another Court of Appeal agreed
with Kimes and added that “allowing a pet owner to recover the reasonable
costs of the care and treatment of an injured pet reflects the basic purpose of
tort law, which is to make plaintiffs whole, or to approximate wholeness to
the greatest extent judicially possible.” (Martinez, supra, 210 Cal.App.4th at
p. 390; see Johns, Cal. Damages: Law and Proof (5th ed. 2024) Property
Damage § 6.23, p. 6-32 [in addition to lost market value, owner of injured
animal “may . . . recover other special damages for items such as veterinarian
fee, medical bills, transportation costs, and other special expenses incurred as
a proximate result of the defendant’s tort”].) Thus, the owner of a tortiously
injured pet with no market value may recover the reasonable and necessary
treatment costs and other special expenses attributable to the injury.
An owner of a pet that dies from the negligence of another, however,
may not recover damages for the emotional distress the owner suffers as a
result of the negligence. (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590,
1605 (Plotnik); McMahon, supra, 176 Cal.App.4th at pp. 1509–1515.) Nor
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may such an owner recover damages for the loss of the companionship of the
pet caused by the negligence. (McMahon, at p. 1518–1520.)
D. Trial Court’s In Limine Rulings
Applying the statutory and case law discussed above, we must now
determine whether Mowery has shown the trial court committed prejudicial
error in its in limine rulings regarding the damages she could recover for
Bitty’s death. (See, e.g., D.D. v. Pitcher (2022) 79 Cal.App.5th 1047, 1057
[appellant has burden to show prejudicial error]; Scheenstra v. California
Dairies, Inc. (2013) 213 Cal.App.4th 370, 403 [same].) As we shall explain,
she has not done so.
During the trial management conference at which the trial court ruled
on the in limine motions, the court had an extensive discussion with
Mowery’s counsel about how to measure the damages for Bitty’s death. (See
pt. I.D., ante.) During that discussion, counsel repeatedly admitted Bitty had
no market value and stated he would not present any evidence of such value.
When the court later asked about Bitty’s economic value, Mowery’s counsel
refused to offer a dollar amount and admitted the dog generated no income
for Mowery, did not appear in commercials or dog shows, and was not useful
for breeding. Counsel thus conceded the measure of damages he proposed
was neither market value nor peculiar value as those terms have been used
in the case law. (See, e.g., McMahon, supra, 176 Cal.App.4th at p. 1518;
Roos, supra, 41 Cal.App. at p. 785.)
That concession left as the measure of damages the one generally used
in tort cases, which is “the amount which will compensate for all the
detriment proximately caused [by the tort], whether it could have been
anticipated or not.” (Civ. Code, § 3333; see Willard, supra, 171 Cal. at p. 15;
Kimes, supra, 195 Cal.App.4th at p. 1560.) The parties and the trial court
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agreed that measure of damages included the veterinary expenses Mowery
incurred in trying to save Bitty’s life after the Clinic negligently failed to
diagnose the gastrointestinal obstruction that led to the dog’s death. (See
Martinez, supra, 210 Cal.App.4th at p. 392; Kimes, at p. 1562.) After the
court repeatedly pressed Mowery’s counsel for an offer of proof on what other
economic losses Mowery claimed as a result of the alleged veterinary
malpractice, counsel finally answered that Mowery would testify about how
she acquired Bitty, the time she spent on the acquisition, what she fed Bitty,
the pet accessories she bought for Bitty, the time she spent with Bitty, and
Bitty’s significance in her life. None of these items, however, constitutes
“detriment proximately caused by” the alleged malpractice. (Civ. Code,
§ 3333.) Whatever expenses Mowery incurred in acquiring, maintaining, and
spending time with Bitty would have been incurred regardless of the Clinic’s
alleged negligence in failing to diagnose the gastrointestinal obstruction that
led to Bitty’s death. And, as the trial court observed, those expenses cannot
be considered “detrimental” to Mowery, because she derived benefit from
them during Bitty’s lifetime.
Mowery’s counsel also asserted during the colloquy with the trial court
on the measure of damages that “Bitty should be valued [like] a family
heirloom,” and “the facts and circumstances of [Mowery’s] ownership of Bitty
would be used as evidence to support such a value.” Since the value of a
family heirloom often is largely, if not exclusively, sentimental (see, e.g.,
Windeler v. Scheers Jewelers (1970) 8 Cal.App.3d 844, 852), it seems to us
this was an offer to put before the jury inadmissible evidence of the strong
emotional attachment Mowery had to Bitty as a companion. The trial court
correctly ruled, in granting the Clinic’s motion in limine No. 1, that a pet
owner may not recover from the party that negligently caused the pet’s death
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damages for emotional distress or loss of companionship. (Plotnik, supra, 208
Cal.App.4th at p. 1605; McMahon, supra, 176 Cal.App.4th at pp. 1515, 1519–
1520.) Implicitly recognizing this legal limitation, Mowery concedes in her
reply brief that she does not seek such damages for Bitty’s death.
In sum, we conclude Mowery has not shown the trial court erred by
limiting the evidence of her damages to the veterinary expenses incurred in
trying to save Bitty’s life. The parties agreed those expenses were
recoverable, and they were the only ones Mowery identified as “detriment
proximately caused” by the Clinic’s alleged veterinary malpractice. (Civ.
Code, § 3333.) On this record, the court correctly ruled the veterinary
expenses constituted the applicable measure of damages.2
2 In reaching this conclusion, we have applied settled California law on
the measure of damages to the specific facts of this case. Because that law is
sufficient to resolve this appeal, we need not, and do not, consider the cases
from other states cited by Mowery. We reject her contentions that in
affirming the trial court’s in limine rulings we somehow harm Californians or
improperly attempt to regulate a matter within the Legislature’s domain. In
deciding this appeal, we have neither imposed any new limitation on the
damages recoverable by an owner of a pet that died as a result of veterinary
malpractice nor expanded the protections afforded veterinarians against
malpractice claims.
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III.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
IRION, Acting P. J.
WE CONCUR:
KELETY, J.
CASTILLO, J.
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