Mowery v. EL Centro Animal Clinic, Inc.

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SIERRA MOWERY, Plaintiff and Appellant, v. EL CENTRO ANIMAL CLINIC, INC., Defendant and Respondent.

D082522

California Court of Appeals, Fourth District, First Division

October 28, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Imperial County, No ECU000723 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.

IRION ACTING P. J.

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 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 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 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.

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."

E. Stipulated Judgment

The parties...