Judge: Glenn R. Salter, Case: 21-1210777, Date: 2022-10-20 Tentative Ruling

The motion of the defendant for summary judgment on the ground that a plaintiff may not recover emotional distress damages for the loss of a pet harmed by another animal is GRANTED.

The basic facts are undisputed:  The defendants’ dog was off leash when it attacked the plaintiff’s cat on the plaintiff’s property.  The cat was seriously injured and was eventually put to sleep because of its injuries.  The plaintiff filed a complaint for negligence.  She claimed that the cat was her “emotional support animal” and that its loss caused her, in addition to economic damages, damages for emotional distress.

Other facts are disputed:  The plaintiff asserts, for example, that the defendants made no effort to stop the attack despite repeated requests from the plaintiff and that they simply walked away once the cat had escaped.  But the court finds those other facts are not relevant.

There are only three cases in California that speak to the issue of emotional distress damages in actions involving loss of a pet.  And all come from Orange County.  However, none of them involve the situation where, as here, the claim is based on one animal attacking another.  (See Levy v. Only Cremations for Pets, Inc. (2020) 57 Cal.App.5th 203; Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590; and McMahon v. Craig (2009) 176 Cal.App.4th 222.)  Or where the attacking animal’s owner is accused of allowing the attack to occur and of not stopping it.

Moreover, none of the cases appear to address the situation where, as here, the injured animal is claimed to be an “emotional support animal.”  That could add an additional layer to the legal analysis, but there is no evidence in the record—other than plaintiff’s say-so—the cat was an emotional support animal.  In a general sense, all animals are emotional support animals.  But there are provisions under the Health and Safety Code, for example, that allow an animal such as a cat to be designated an “emotional support animal” for a person with a disability.  It does not appear this cat was so designated, or that the plaintiff has a recognized disability.

The court independently researched the law all across the country.  Out-of-state cases that have addressed a pet owner’s claim for emotional distress damages in such a situation almost exclusively hold that such damages are not recoverable.  If there is a case out there that has allowed such damages, the court did not find it.  Further, the parties did not provide citations to any non-California cases that address this issue.

Finally, the plaintiff asserts the motion is improper because it does not resolve an entire cause of action.  In their reply, the defendants charge that the plaintiff has fabricated evidence to suggest she was there when the attack occurred and that contradicts prior testimony.  The court finds the claim for emotional distress damages a separate claim under the negligence cause of action that can be resolved on summary adjudication.  The notice of motion expressly identifies this as the one issue to be resolved, and resolution of the issue appears dispositive as to all non-economic damages.  (Code Civ. Proc., § 437c, subd. (f)(1) [summary adjudication may be granted if it disposes of “a claim for damages.”].)

The plaintiff’s Request for Judicial Notice of applicable city ordinances is GRANTED.  The defendants’ evidentiary objection to the declaration of the plaintiff and her husband on the ground they are fabricated is OVERRULED.

Trial remains scheduled for January 9, 2023.

The defendants shall prepare the appropriate order and give notice.