Metropolitan News-Enterprise


Monday, May 1, 2023


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C.A. Restores Action Against Veterinarian Based on Pain to Cat He Euthanized

Opinion Says Punitive Damages May Be Sought


By a MetNews Staff Writer


The First District Court of Appeal on Friday ordered reinstatement of an action against a veterinarian by a woman who wanted his ailing cat put to sleep mercifully and alleges that she has suffered severe emotional distress because, instead, the defendant injected a needle into the animal’s heart, causing extreme pain.

Plaintiff Ryan Berry may amend her complaint, Justice Ioana Petrou of Div. Three said, to include allegations in support of a claim for punitive damages.

 Petrou’s opinion reverses a judgment of dismissal that followed San Francisco Superior Court Judge Ethan P. Schulman sustaining of demurrers without leave to amend. On remand, Petrou said, Berry may pursue her causes of action against veterinarian Jeffery R. Frazier for fraud/deceit/intentional misrepresentation, conversion/trespass to chattels, and intentional infliction of emotional distress.

It is alleged that Frazier falsely said of an intracardiac injection that “it’s very quick” the cat will “never know what’s happening” and “won’t feel a thing” and “it’s the right thing.” Berry said she later learned the procedure is “extremely painful” and generally regarded as “inhumane.”

Punitive Damages

Frazier contended that Berry cannot recover punitive damages because she cannot meet the requirement of Civil Code §3294 of showing “oppression, fraud, or malice.” That section says, with italicizing added by Petrou:

“(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

“(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

“(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

Two Discrete Statutes

Petrou wrote:

“As is evident on its face, section 3294 governs an award of exemplary damages for wrongful conduct that causes injury to persons.”

But the inapplicability of §3294, she said, has no effect on §3340, enacted in 1872, which provides:

“For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given.”

The jurist declared:

“[T]he few published California cases citing section 3340 interpret the statute as permitting an animal owner to seek exemplary damages for intentional conduct in disregard of humanity in conjunction with traditional tort causes of action without reference to the procedural requisites of section 3294….

“Considering the clear focus of section 3340, we see no reason to engraft the procedural requisites of section 3294 into section 3340.”

Among Frazier’s other contention was that Berry cannot recover based on his alleged malpractice because she was not his patient. He cited, in support, the 2009 Court of Appeal opinion in McMahon v. Craig which says:

“[Although 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.”

Petrou responded:

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.”

The case is Berry v. Frazier, 2023 S.O.S. 1235.


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