Metropolitan News-Enterprise


Tuesday, July 8, 2003


Page 3


Immunity for Neutering Legislated by Mistake, C.A. Rules


By a MetNews Staff Writer


A statutory provision immunizing cities and counties from suits by owners of spayed or neutered animals was enacted by mistake, the Fourth District Court of Appeal ruled yesterday.

Justice James A. McIntyre, writing for Div. One, said the provision resulted from legislative oversight and does not bar a pet owner’s action for damages based on his dog’s death from the neutering procedure. Food and Agriculture Code Sec. 30804.7(d) was inadvertently retained when provisions mandating spaying and neutering were dropped during adoption of the bill enacting it, the justice explained.

Sec. 30804.7(d) provides that “[n]o city or county . . . is subject to any civil action by the owner of a dog that is spayed or neutered in accordance with this section.” But McIntyre noted that portions of the legislation requiring local entities to spay or neuter impounded animals were never enacted into law.

The legislature did not intend to confer immunity for the activities of cities and counties in connection with the voluntary spaying and neutering programs, funded from impound fees, that were enacted by the final bill, the justice said.

“The legislative history shows that the statutory immunity was created to protect local agencies from civil liability for carrying out mandatory spayings and neuterings pursuant to a provision that was later deleted from the statute,” McIntyre wrote. “Based on the statutory language and the legislative history, we conclude that the Legislature did not intend to create a broad statutory immunity for civil claims arising out of the spaying or neutering of a dog pursuant to any low cost spaying or neutering program maintained by a city or county.”

Joseph Tarpley sued the County of San Diego, the Otay Lakes Veterinary Clinic, and a number of individuals after his dog Luke died following surgery in September, 2000. The dog, impounded after a complaint it was running loose on the grounds of the Jamacha Elementary School, was neutered by a clinic veterinarian under the county’s voluntary spaying and neutering program (SNIP).

“Contrary to the County defendants’ arguments, the statute’s directive that local agencies use the fines received from impounding dogs to fund low cost spaying and neutering programs or other administrative expenses does not address local agencies’ activities in spaying or neutering dogs,” McIntyre wrote. “The meaning and significance of the immunity provision of section 30804.7 is thus ambiguous.”

McIntyre said San Diego Superior Court Judge Kevin A. Enright erred in relying on the immunity provision in granting summary judgment in favor of the county defendants. But the appellate court affirmed Enright’s ruling, which was also based on the release Tarpley signed prior to the surgery.

The release, McIntyre said, barred the action against both the county and the clinic defendants.

The justice rejected Tarpley’s argument that he signed the release under duress.

Though Tarpley wrote “under duress” beside his signature on the release form, McIntyre said his circumstances met the requirements for neither statutory nor economic duress. Nor, he continued, was there a triable issue of fact as to whether the county’s failure to offer Tarpley reduced or deferred fees amounted to “mental coercion.”

The justice explained:

“The evidence shows that the Department declined to offer Tarpy deferred billing because it was Luke’s second impound in just over a month and it declined to waive the fees because Luke was still unneutered.”

Justices Richard D. Huffman and Terry B. O’Rourke concurred. The case is Tarpey v. County of San Diego, D039932.


Copyright 2003, Metropolitan News Company