In California, a plaintiff may plead fraud and intentional infliction of emotional distress against a D.V.M. for the botched euthanasia of a pet and thus may state a claim for punitive damages
In Berry v. Frazier (May 15, 2023) A164168, plaintiff engaged a service to provide humane in-home euthanasia of her cat. This service in turn engaged defendant Frazier, a Doctor of Veterinarian Medicine, who ultimately ended up utilizing an intracardiac injection, allegedly without anesthesia, upon plaintiff’s feline. As the doctor allegedly said, this was because an overdose of medication would “take too long:”
Frazier and an assistant arrived at Berry’s home in the late afternoon. The euthanasia was to take place in the backyard, where Frazier and his assistant prepared the cat for the insertion of a catheter. During this initial attempt to sedate the cat, Frazier told Kraus and Berry [the owners of the cat], “ ‘Go over there,’ ’’ indicating they should move 30 feet away. They complied, and waited for Frazier to indicate when they could return. After a few moments, Frazier told them that he was unable to place the catheter even though he had tried to do so in all the cat’s limbs. Berry and Kraus became upset and Kraus suggested an overdose of an oral medication (buprenorphine) that had been prescribed for the cat. Frazier responded that it would “ ‘take too long,’ ” but did not explain how long or why the length of time was significant.
Frazier then suggested euthanasia by “ ‘heart stick’ ” injection, the colloquial term for intracardiac injection, a procedure by which fluid is injected directly into the heart. When Kraus said he had never heard of the procedure, Frazier responded, in a calm and reassuring demeanor, with comments like, “ ‘[i]t’s a small needle,’ ” “ ‘it’s very quick,’ ” and the cat will “ ‘never know what’s happening’ ” and “ ‘won’t feel a thing.’ ” When Berry became emotional, Frazier again calmly described the procedure, adding phrases along the lines of “ ‘it’s the right thing.’ ” Based on Frazier’s representations and in reliance on Frazier’s expertise, Berry consented. Frazier then instructed Berry and Kraus to go inside the house, which they did. Frazier and his assistant completed the procedure and left with the cat.
Berry later learned of the “horrors” of using an intracardiac injection to euthanize a conscious cat. Contrary to Frazier’s representations, it was
“ ‘extremely painful’ ” and generally considered “ ‘inhumane’ ” when performed on a conscious cat. [Footnotes omitted.] (Id., pp. 3-4.)
Berry sued, alleging causes of action for 1) breach of fiduciary duty, 2) conversion of chattel, 3) trespass to chattel, 4) “fraud/deceit /intentional misrepresentation,” 5) intentional infliction of emotional distress, and 6) violation of Civil Code section 3340. She also alleged entitlement to punitive or exemplary damages. The trial court sustained the defendant doctor’s demurrer to the second through sixth causes of action and plaintiff dismissed the sole remaining cause of action. The Hon. Ethan P. Schulman of the San Francisco County Superior Court then denied the motion to strike portions of the complaint, including the request for punitive damages, as moot.
Judgment was then entered for the defendant and plaintiff appealed. The California Cout of Appeal for the First District, Division Three, found the appeal from the judgment timely and proper, citing Abatti v. Imperial Irrigation Dist. (2012) 205 Cal. App. 4th 650, at 655. Specifically, there were no portions of the complaint still pending and the parties had not stipulated to further litigate any claims. At the same time, the appellate court dismissed the purported appeal from the Motion to Strike ruling as being made from a non-appealable order and not a final judgment.
Plaintiff properly pled trespass and conversion of chattel
The Berry court rejected the defense claim that there could be no claims for conversion or trespass because the facts merely alleged “professional negligence.” As the appellate court explained, such defense arguments “ignore the specific allegations that Berry had a legally protectable right to decide the time and manner of the euthanasia of her cat because the cat was her personal property.” (Berry, p. 16.)
Plaintiff also properly pled intentional infliction of emotional distress and fraud based upon facts showing an intentional misrepresentation
Defendant also argued plaintiff could not state a claim for intentional infliction of emotional distress under her third cause of action, citing McMahon v. Craig (2009) 176 Cal. App. 4th 1502.) In McMahon, plaintiff plead intentional infliction of emotional distress resulting from malpractice which caused the death of the plaintiff’s dog. McMahon held the pet’s owner was not entitled to damages for loss of companionship and related emotional distress, as such a claim is not recognized by California law:
We recognize the love and loyalty a dog provides creates a strong emotional bond between an owner and his or her dog. But given California law does not allow parents to recover for the loss of companionship of their children, we are constrained not to allow a pet owner to recover for loss of the companionship of a pet. (McMahon, pp. 1519–1520.)
Berry, however, did not find McMahon dispositive, explaining that liability in McMahon was limited because it involved the measure of damages for professional malpractice. Here, by contrast, plaintiff alleged not only fraud but also trespass to personal property:
In McMahon, the plaintiff alleged defendants engaged in negligent veterinary malpractice and lied to her to cover up their malpractice. (Id. at p. 1506.) While the complaint included a cause of action for conversion, McMahon did not address that cause of action in resolving the appeal. (Id. at pp. 1508– 1520.) Nor did the McMahon court address a cause of action for trespass to chattels. (See Plotnick, supra, 208 Cal.App.4th at p. 1606 [court held plaintiff could recover emotional distress damages for trespass to chattels cause of action, finding McMahon was inapposite as it “did not involve an action for trespass to personal property”].) (Id., pp. 14-15.)
The First District further explained McMahon was inapposite because it did not involve a claim for fraud. In stark contrast, here plaintiff alleged Dr. Frazier made an intentional misrepresentation to her. Therefore, his actions were directed toward plaintiff Berry and not merely her animal:
In urging that Berry’s claimed loss (her right to “ ‘give the cat a good death’ ”) is not actionable because Berry was not the subject or beneficiary of the veterinary care, Frazier asks us to consider McMahon v. Craig (2009) 176 Cal.App.4th 1502 (McMahon) at page 1510: “[A]lthough a veterinarian is hired by the owner of the pet, the veterinarian’s medical care is directed only to the pet. Thus, a veterinarian’s malpractice does not directly harm the owner in a manner creating liability for emotional distress.” McMahon is inapposite as that court was not concerned with, and therefore had no occasion to address, the nature of damages that could be recovered for a claim of fraud based not on a veterinarian’s malpractice but rather on intentional misrepresentations made to induce a pet owner to consent to an unnecessary, unjustified, and painful procedure. [Citation.] (Id., p. 12; emphasis added.)
Plaintiff could not state a separate cause for action based upon Civil Code section 3340, though this statute could be the basis for a claim for punitive damages
The Berry court termed section 3340 “broadly-worded.” This section provides for punitive damages for “willful” and “inhumane” injury to animals and states in full:
For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given.
According to Berry, this section remains valid and relevant, but it does not support a separate cause of action. Rather, it permits an award of punitive damages where a plaintiff proves its elements. In other words, section 3340 may be the basis for punitive damages to be pled as part of the damages in other causes of action.
More importantly, Berry held that this section may support a claim for punitive damages independent of such a claim being made under Civil Code section 3294. This latter section sets forth the basis for punitive damages in California and requires a plaintiff prove such by way of “clear and convincing evidence.” Section 3294 also defines the “malice, oppression, and fraud” necessary to state a claim for punitive damages.
However, as Berry explained, the procedural safeguards found in section 3294 do not apply to a claim for punitive damages under section 3340, which, as quoted above, applies where there has been an injury to an animal “in disregard of humanity.” In holding each section could be read independently of the other, Berry aptly noted sections 3294 and 3340 were both enacted in 1874. While the legislature has amended section 3294 multiple times over the years, it has not made similar changes to section 3340 despite the opportunity to do so.
Advice for practitioners defending or prosecuting claims for injuries to animals
In summary, Berry overturned the judgment in favor of the defendant and remanded the matter back to the trial court. Plaintiff was to be given an opportunity to amend her complaint to attempt to state a claim for punitive damages under section 3340 as to any remaining causes of action.
Counsel for plaintiffs are therefore advised to consider whether, under a cause of action involving a claim for injury to an animal which may be considered “inhumane,” they may claim punitive damages under either, or both, section 3340 (for injuries to animals “in disregard of humanity”) or section 3284 (for “malice, oppression, or fraud”).
Defendants should, of course, be prepared to test the applicability and scope of these allegations by way of demurrer and/or motion to strike. They should be aware that while section 3340 may provide the basis for a claim for punitive damages, it should not be pled as a separate cause of action.
Depending on the facts pled, a defendant may also wish to make public policy arguments in presenting their defense. On the one hand, public policy supports discouraging any licensed professional from making fraudulent misrepresentations. On the other hand, the doctor in Berry was likely paid only a modest fee for his services, being in turn hired by the service plaintiff engage. Moreover, even plaintiff admitted the doctor attempted to use a catheter before pivoting to the injection plaintiff alleges was inhumane. Despite this, the defendant doctor now faces potentially ruinous liability, given that any award of punitive damages is uninsurable. (See Insurance Code section 533 prohibiting the insurability of claims based upon intentional conduct.) Therefore, California public policy may not favor making it riskier for a veterinarian to attempt at-home euthanasia of a pet.
1 - For a discussion of negligent versus intentional infliction of emotional distress, see our discussion of (Downey v. City of Riverside (April 26, 2023) D080377.
