Archive for October, 2012

What is the Value of an Injured Pet?

October 31, 2012

by Jean-Simon Serrano

In what seems to be a trend of new cases expanding the rights of pet owners, the Court of Appeal for the Second District recently ruled that the usual standard of recovery for a dead or injured pet (market value) is inadequate when applied to injured pets.

The recent case, Martinez v. Robledo, (2012) 2012 Cal. App. LEXIS 1098, which was actually the consolidation of two similar cases, presented the legal issue: What is the measure of damages for the wrongful injury of a pet?

In both of the consolidated cases, the trial court ruled that the measure of damages would be limited to the market value of the injured dogs.

On Appeal, the Court held that a pet owner is not limited to the market value of the pet and may recover the reasonable and necessary costs incurred for the treatment and care of the pet attributable to the injury.

The Court reasoned:

“There can be little doubt that most pets have minimal to no market value, particularly elderly pets. As amicus notes, while people typically place substantial value on their own animal companions, as evidenced by the large sums of money spent on food, medical care, toys, boarding and grooming, etc., there is generally no market for other people’s pets.   We agree that the determination of a pet’s value cannot be made solely by looking to the marketplace. If the rule were otherwise, an injured animal’s owner would bear most or all of the costs for the medical care required to treat the injury caused by a tortfeasor, while the tortfeasor’s liability for such costs would in most cases be minimal, no matter how horrific the wrongdoer’s conduct or how gross the negligence of a veterinarian or other animal professional.”

Using the notion that tort law was designed such that injured parties are to be “made whole,” the Court held, “that allowing an injured pet’s owner to recover the reasonable and necessary costs incurred in the treatment and care for the animal attributable to the injury is a rational and appropriate measure of damages. Such evidence is admissible under Civil Code section 3333 as proof of a plaintiff’s compensable damages. And a defendant may present evidence showing the costs were unreasonable under the circumstances.”

Thus, with this ruling, those who have the misfortune of having their pets injured by another are no longer constrained to the mere market value of their fuzzy friends.  Instead, owners may now recover reasonable costs incurred for the treatment and care of the pet which arose as a result of the injury.

As an animal lover, I believe this ruling is long since overdue and I am pleased to see the Court recognizing that pets have some intrinsic value beyond their mere market or replacement price.

Trick or Treating for the Veterans

October 19, 2012

Please join us in assisting our veterans.

WHEN CHILD SUPPORT & CUSTODY GET UGLY: IS IT DEFAMATION?

October 13, 2012

By Sara B. Morgan, Esq.

There is no such thing as “happy law”, especially in contested child support, custody, and visitation cases. Of course, the nature of the contested matter is expected to breed a degree of contention and aggravation between the two (or more) parties each contending for what they believe is in the best interests of the child. Unfortunately, this discord often spills over onto the surrounding family members, particularly grandparents, dragging them into the dispute. But what happens when the drama spills over into the public? Is it defamation for a parent or a grandparent to make those nasty comments about you?

A recent court decision, Chaker v. Mateo et al., says it may be free speech. In that case, Plaintiff Darren D. Chaker and his ex-girlfriend Nicole Mateo were engaged in a contentious paternity and support dispute regarding their child. Plaintiff Chaker filed the suit against Nicole and her mother, Wendy Mateo, for alleged defamatory statements posted on various internet websites. Chaker v. Mateo et al, 2012 DJDAR 13830. Some statements, posted on a consumer rating/awareness website, warned would-be consumers to steer clear of the plaintiff and his forensics business, saying he was scary and may take steroids. Other statements, posted on a social networking site, speak of the plaintiff’s poor character, referring to him as a deadbeat dad and a criminal. Ultimately, the courts determined that the child’s grandmother, Wendy Mateo, was exercising her constitutional right to free speech by expressing non-actionable, although negative, opinions about the child’s father.

If I am the victim of negative, harassing, abusive statements, what should I do? The only one-size-fits-all advice on how to respond if you find yourself in such a situation is:  TALK TO AN ATTORNEY! Although this plaintiff’s case was dismissed against the grandmother, that ruling was based on a specific set of circumstances. No two situations are alike, and there are many possible solutions to your concerns.

TALK TO AN ATTORNEY TODAY! In most legal situations, time is of the essence. The mere passage of time can harm your ability to obtain the best possible outcome for your particular circumstances. Because the law firm of Heiting & Irwin offers free consultations, there is no reason to put off calling today. We welcome your calls regarding paternity, child support, child custody and visitation, and divorce matters at (951) 682-6400.

Recent Changes to Jury Fee Rules

October 1, 2012

by Jean-Simon Serrano

In California, if you demand a jury trial, you are required to pay a deposit for exercising that right.  In recent years, prior to June 5, 2012, the Code of Civil Procedure § 631(b) read:

 

“Each party demanding a jury trial shall deposit advance jury fees with the clerk or judge.  The total amount of the advance jury fees may not exceed on hundred fifty ($150) for each party.  The deposit shall be made at least 25 calendar days before the date initially set for trial…” [emphasis added].

 

Earlier this year, Code of Civil Procedure § 631(b) was amended to read:

 

“(b) Each party demanding a jury trial shall deposit advance jury fees with the clerk or judge. The total amount of the advance jury fees shall be one hundred fifty dollars ($150) for each party.

(c) The advance jury fee deposit shall be made on or before the date scheduled for the initial case management conference in the action. If no case management conference is scheduled in a civil action, the advance jury deposit shall be made no later than 365 calendar days after the filing of the initial complaint. If the party has not appeared before the initial case management conference or has appeared more than 365 calendar days after the filing of the initial complaint, the deposit shall be made as provided in subdivision (d).” [emphasis added].

 

There are three things to note: (1) the “fee” is non-refundable; (2) each party is responsible for depositing this fee; and (3) the fee is required to be paid on or before the first Case Management Conference or within one year of the filing of the action.

 

Under the June 5, 2012 Amendment, every plaintiff is required to pay $150.00, in addition to the $450.00 filing fee (Riverside County), simply for bringing a civil action – this could amount to many hundreds of dollars in non-refundable fees being paid in a case where multiple plaintiffs are injured.

 

Additionally, because the vast, vast majority of personal injury cases in California settle before trial (indeed many statutes are engineered to promote the goal of settlement), this non-refundable fee gets paid to the court, never to be used to pay for the plaintiff’s non-existent jury and never to be returned to him/her.  Previously, the jury fees were only to be paid 25 calendar days before the initial trial date and, in many cases, an action would settle before such fees were deposited.  Now, the fee must be paid very early in litigation, often before any meaningful attempts to settle can be made.

 

As a result of much discontent regarding the June amendment to Section 631(b), Assembly Bill 1481 was introduced, passed, and signed into law on September 17th 2012, to take effect immediately.  Code of Civil Procedure § 631(b) now reads:

 

At least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150), unless the fee has been paid by another party on the same side of the case. The fee shall offset the costs to the state of providing juries in civil cases. If there are more than two parties to the case, for purposes of this section only, all plaintiffs shall be considered one side of the case, and all other parties shall be considered the other side of the case.” [emphasis added].

 

The language of the Section now requires only one party per side to pay the jury deposit fee.  Unfortunately, the requirement that these fees be deposited on or before the date of the first Case Management Conference remains (a few narrow exceptions are listed in Section 631(c)).

 

It seems clear that the recent changes to these rules were designed to provide the Courts with more funding.  It is also clear that, given the early requirement for depositing such non-refundable fees, this is another non-recoverable cost that must be incurred by a plaintiff in bringing an action for damages.  What are less clear are the implications these rules have on one’s Constitutional Right to a jury trial and whether we will see further outrage like that which resulted in AB 1481.