Animal harm can be difficult to adjudicate in people courts. But the cat owner in Berry v. Frazier (D1d3 May 15, 2023 No. A164168) --- Cal.Rptr.3d --- (2023 WL 3445168), who was allegedly defrauded by her vet into a “horrific and painful” form of euthanasia for her pet, was able to reverse the order dismissing her claims.
Berry knew her pet was on the decline and decided to have it euthanized peacefully in her arms at her home before waiting nature to take its long and painful course. The vet assured her that this could be done, but when the time came, the vet told her he couldn’t place the catheter, and recommended a “heart stick” injection of fluid through the chest directly into her cat’s heart.
Berry thought that seemed rash. Her pet was not suffering, and other measures might be more reasonable. But the vet urged “its the right thing” and the pet “won’t feel a thing.”
After it was over and Berry had a chance to research the “heart stick” method, she learned it is considered “inhumane,” even the Legislature has made its use on conscious animal illegal “ ‘unless the animal is heavily sedated or anesthetized in a humane manner, or comatose, or unless, in light of all the relevant circumstances, the procedure is justifiable.’ ” (Pen. Code, § 597u, subd. (a)(2),
The trial court threw out Berry’s claims, but the First District Court of Appeal reversed.
First, the court had to determine whether there was an appealable order. Ordinarily, an order sustaining a demurrer is not an appealable order. Here, the order only knocked out most but not all of Berry’s claims.
So Berry voluntarily dismissed her other claims. But that didn’t work either, because a plaintiff who voluntarily dismisses without prejudice has no standing to appeal the order. (El Dorado Irrigation Dist. v. State Water Resources Control Bd. (2006) 142 Cal.App.4th 937, 977 [“ ‘[a] party who is not aggrieved by an order or judgment has no standing to attack it on appeal’ ”].)
So what was the appealable order? Trick question: neither the order sustaining the demurrer was appealable, nor the dismissal, but both combined:
“Together, the trial court's “order sustaining the demurrers without leave to amend, combined with the dismissal of the action, had the legal effect of a final, appealable judgment.” (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 974.)”
As for the merits, the court held that Berry had alleged explicit affirmative representations made by the vet concerning the use of an intracardiac injection – that the procedure would be quick and painless – that any animal owner would want to know before consenting to the procedure. So the claims for fraud, trespass to chattels, and intentional infliction of emotional distress could go forward.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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