Copyright (c) 1985 Pepperdine Law Review; William McCarty Noall (reprinted with permission).
Domestic animals have been important to man's existence and well-being for over 10,000 years.[FN1] Wild animals have helped to sustain man's survival for a much longer period. Because animals have been a part of man's society for so long, they are often taken for granted. But the law has not forgotten them. There are literally hundreds of cases and statutes struggling with animal issues, each of which testifies to the importance of the subject. It is fair to say that most attorneys will be involved with at least one case involving animal law during the course of their careers, though perhaps only a dog-bite case.
This comment will provide the reader with a straightforward background of California animal cases and statutes pertaining to state regulation of the conduct of animals and their owners. This regulation is both direct, by means of criminal and court sanctions, and indirect, by means of private lawsuits. The comment also summarizes the incidents of animal ownership and the aquisition of title to animals in California.
Of course this comment has some important limitations. It does not directly discuss regulation of commercial animal enterprises but instead focuses upon the individual owner or keeper. [FN2] Moreover, it is limited to society's sanctioning of the owner or keeper as opposed to sanctions against third parties. The comment does not discuss property covenants or other types of contractual regulation of animals or inheritance problems. Finally, neither California's Endangered Species Act nor its general wildlife regulations is discussed.
Two points must be kept in mind when resolving any animal law problem. First, different statutes are enforceable by different groups of people. Often, the author will refer to an enforcement officer; however, who this person is may vary from statute to statute. Second, different statutory schemes cover different types of animals, and often do so without precise definition. The author has discussed each statute noted herein in terms of the animals most often associated with the individual statute, but usually there is no sharp classification. Therefore the reader/researcher must often compose his own definition for a given statute. This is true even if there is a definition given, for generally they are deceptively broad.
With these concepts in mind we will begin by briefly looking at the incidents of animal ownership (Section II). These "incidents" provide the basis upon which statutory schemes are defined and enforced. Next, we will summarize how title to animals is obtained (Sections III and IV). This background may be necessary to determine who the owner or keeper is that the state may regulate. The heart of the comment (Section V) will focus on California's statutory scheme which regulates animal owners directly by means of the state's police power. Finally, some of the more commonly used private causes of action will be considered (Section VI). By sanctioning private lawsuits the state is indirectly regulating animals and how their owners care for them.
II. ANIMALS AS PROPERTY AND THE INCIDENTS OF OWNERSHIP
Regulation of animal owners in California often operates to limit the incidents of ownership normally associated with property. This section briefly reviews the incidents typically associated with animal property.
The California Constitution guarantees its citizens certain inalienable rights, one of which is the right to acquire, possess and protect property.[FN3] Property in California encompasses a broad class of "things" and is defined in terms of ownership. [FN4] Accordingly, California's Civil Code includes "all domestic animals" as property subject to ownership.[FN5]
In general, ownership encompasses the right to acquire, possess, dispose of, or exclude others from property.[FN6] All property must be real or personal in nature,[FN7] and clearly animals fall into the latter category.[FN8] The California Civil Code provides that the right to acquire, possess, dispose of, and exclude, as incidents of ownership, gives rise to two other inherent rights; the right to consume and the right to natural increase.[FN9]
Animals are a most unique form of property. They must be fed, watered, and generally cared for to survive while held in captivity. Like water, they have the power to move freely of their own volition. Man's use and control over many species of animals for several generations has created a dependence upon animals for his individual and societal well-being.[FN10] The fact that an animal is alive and has such great value to society has created many intriguing conflicts between the absolutist policies of private property ownership, and policies grounded in society's need for the care and well-being of animals. These conflicts have resulted in a complex amassment of laws elaborating standards by which owners of animals must care, maintain, and utilize their animal property. These tenets and the potential liability flowing therefrom can best be examined in terms of their effect on the six incidents of ownership listed above, as influenced by the deep-rooted society/property conflict.
Understanding how title to animals is acquired may be necessary in understanding who will be subject to state regulation. Before turning to the discussion of title in section 3, brief mention should be made regarding the status of pets.
At common law, most animals were divided into the categories noted below (wild and domestic). Personal pets, however, were considered a qualified classification of ferae naturae, falling somewhere between wild animal and domestic animal classification. Pets were considered to be kept for the "pleasure, curiosity or whim" of the owner and of little or no value. [FN11] Therefore, pets were not considered "property" in the traditional sense. This peculiar status was commented upon in People v. Spencer, [FN12] where the court refered to a case in which a defendant was charged with burglary after a prosecutor accused him of entering a building with intent to steal a dog. The charge was unsuccessful. Because a dog was not considered "property" at common law, it could not be the subject of the required intent for a burglary [FN13] In California, this special dog status has been abolished by statute and dogs are valued like all other property. [FN14] The same is true of any other pet animals in California. [FN15] Nevertheless, it is helpful to keep this history in mind when resolving animal issues, or, in particular, when considering the changing status of pets.[FN16]
III. ACQUISITION OF TITLE TO PROPERTY: THE BASIS OF REGULATION
As noted above, ownership is a term representing the rights to which an owner is entitled because he holds title to a given piece of property. This section summarizes the common methods of acquiring title to domestic animals. A review of the cases and Attorney General opinions indicate that title is important in many animal regulation cases.
Generally, people in California obtain title to animals in one of four ways: purchase, gift, finding, or increase. [FN17] Title to wild animals (those not previously the subject of ownership) can be obtained by means of capture provided it is carried out within the bounds of state and federal regulatory schemes. Two specialized areas of title acquisition which will not be discussed here are adoption and confusion (accession).[FN18] Adoption does not raise any issues not covered below, whereas concepts of title by confusion may complicate regulation in only a few specialized situations.[FN19]
It should be kept in mind that all property within the state is owned either by the state, in which case it is known as public property, or by an individual, in which case it is denoted as private property. [FN20] This distinction may be important in determining title to an animal which could be classified as either wild or domestic; many of the rules regarding title to wild animals turn on public property doctrines.[FN21]
Purchase of animals is clearly one of the most common methods of obtaining title to animals. Animals may be acquired from private vendors or from the state when it sells impounded animals. Fortunately these transactions are governed by California's version of the Uniform Commercial Code (U.C.C.) as modified by California court decisions. Because the U.C.C. is such a specialized subject, it is pointless to become overly involved with it in this context, inasmuch as there are many good treatises on the subject.[FN22]
B. Title to Animals by Gift
Oftentimes the title to animals is obtained as a gift.[FN23] California's rule regarding gifts requires that there must be: (1) intent, (2) actual or symbolic delivery, and (3) acceptance. [FN24] The intention that must be shown is that of the donor: it must be shown that the donor had the present intent to transfer title or interest to the donee. [FN25] When an inter vivos gift is evidenced by a writing signed by the donor, the animal does not actually need to be transferred-only the writing need be.[FN26] But any other inter vivos gift of an animal generally requires that there be a delivery.[FN27] The rationale for this rule is to prevent fraud and deter impulsive giving. [FN28]
California requires acceptance for a gift to be valid.[FN29] However, the law presumes that the beneficiary of a gift did in fact accept the gift.[FN30] Therefore, the law allocates the burden of showing a revocation of acceptance to a party seeking to invalidate the gift.
The California Civil Code provides that: "[a] gift, other than a gift in view of death, cannot be revoked by the giver."[FN31] That is to say, title passes, and vests, in the donor when the donor relinquishes dominion and control.[FN32]
C. Finders of Domestic Animals
In our society, possession/occupation conveys elements of title.[FN33] Moreover, title to property may become absolute if possession is held for a specified period of time. A finder of property has possession and hence is accorded many of the benefits arising out of ownership. Generally, by statute the finder may take steps to perfect ownership, but even if he does not, the law still protects his right to possession except as to the true owner. This rule is grounded in the policies of protecting title, creating societal predictability, preventing endless unlawful takings, and generally supporting man's reasonable expectations.[FN34]
California resolves issues of finder's rights to "found" property by means of a complex statutory scheme.[FN35] This scheme, however, subjects the finder to several regulatory duties and constraints. Prior to August 28, 1967, the date upon which Civil Code section 2080 became effective, there was much confusion and criticism regarding California's finders rules.[FN36] Section 2080 resolved much of this confusion; the statute goes beyond the common law rule and actually vests full title in the finder once certain conditions are fulfilled.
Today in California, one who finds a lost[FN37] domestic animal is not under a duty to take it into possession. But if a finder does take possession of the animal, or "saves any domestic animal from drowning or starvation,"[FN38] he should provide it with suitable food, shelter, and treat it kindly.[FN39] A finder, according to section 2080, should "within a reasonable time" inform the owner of his possession, and return the animal.[FN40] A finder who knows the identity of the true owner, or who reasonably has the means of locating the owner, is guilty of theft if he fails to make an honest and reasonable effort to contact the owner and return his animal.[FN41]
Under state law, if the finder is unable to locate the owner, and the animal has a value of less than ten dollars, he may appropriate the animal as his own,[FN42] subject to the rights of the true owner; the finder is a "depository." [FN43] Under this section it might be possible to show the finder of a stray dog was in fact the "owner." In many situations, however, the value of an animal would exceed this amount and therefore require the finder to turn the property over to the police [FN44] who in turn must endeavor to locate the owner.[FN45]
The Civil Code provides that the police, if they cannot locate the owner, must hold found property for 90 days, at which time they must publish notice. If no one claims the property within seven days, title vests with the finder upon payment of the publication fee. [FN46] No notice is necessary for property with a value of under $50.[FN47]
The Civil Code also provides that public agencies may promulgate their own regulations for handling the restitution, disposal, or sale of found property. [FN48] In Los Angeles, for example, the Department of Animal Regulation is charged with providing a public pound and enforcing state penal and city ordinances "relating to the care, treatment or impounding of dumb animals or for the prevention of Cruelty to the same."[FN49] Pursuant to this provision in the charter, the city has enacted ordinance section 53.09 which requires that "[a]ny person finding at any time any stray domestic animal ... may take up such animal .... ,,[FN50] The ordinance goes on to provide that a finder of any domestic animal must notify a police officer or the Department of Animal Regulation within a few hours, must file a report, and must surrender the animal upon demand of the Department. [FN51] Los Angeles has also utilized article XIII of the city charter to adopt an ordinance which provides for the notice, sale, or destruction of impounded animals (including those animals found and surrendered).[FN52]
Importantly, these laws regarding city disposition of impounded animals differ markedly from the minimum requirement set forth in the California finders laws.[FN53] The procedure in Los Angeles animal control centers is that a finder of an animal who wants to retain the animal may request a first right of refusal when surrendering the animal. If after searching for the owner and publishing notice theowner has still not been found, a sale is held. If no one purchases from the sale, the finder gets the animal.
The Civil Code makes it clear that section 2080 does not apply to intentionally abandoned property.[FN54] When no statute or decision has been decided on a point of law, the common law of England applies.[FN55] Generally at common law, abandoned property is subjected to the common law finders rules or it escheats to the state. Practically speaking, however, even if an animal is thought to be abandoned it is treated as if it had been lost or had escaped by the state, thus necessitating the finder of abandoned property to follow the statutory finders provisions.
In general the owners of animals hold legal title to the offspring of their animals; title is in the owner of the mother. This concept is frequently referred to as partus sequitur ventrem.[FN56] The California Civil Code adopts this common law maxim in section 732.[FN57] Moreover, title to the increase of the increase is vested according to this rule.[FN58]
Of course, owners of animals can agree to the contrary by express or implied contract,[FN59] for example, by a contract for future offspring. With today's high cost of caring for animals, particularly large animals, it is not uncommon for the owner of the dam to contract for her care in exchange for all her offspring. A similar type of contract may arise where an owner provides stud service to another in exchange for all offspring from a particular dam.[FN60] In California, the loan of an animal does not vest title in the borrower for "increase during the period of the loan."[FN61]
IV. TITLE TO WILD ANIMALS, WILD ANIMAL REVERSION, AND THE PUBLIC OWNERSHIP DOCTRINE
Many animals are or may be considered wild animals This section briefly distinguishes the acquisition of title in wild animals from their domestic counterparts. When examining an owner's title to wild animals, two overriding hurdles must be surpassed. First, one must overcome federal, state, and possibly local regulation. Second, one must show capture.
A. Government Regulation
At common law in England, ownership of wild game belonged to the King. Hence the "right and power to protect and preserve" such property was believed to have vested in the sovereigns of the union. [FN62] Since the people of the "state" collectively are entitled to the sovereign's resources, title to wild animals is held jointly by the people of the state.[FN63] Aside from the United States Constitution and the laws promulgated thereunder, the state's power is limited only by the grants of rights and power made to its citizenry. As would be expected, the state of California has been left with great power to protect wild animals by its citizens. [FN64] In California, therefore, wild animals are not subject to private ownership except as provided by the legislature; the legislature wields the state's police power with respect to animals.[FN65]
Fortunately, today there are a multitude of state statutes regulating the taking of wild animals. Compliance with these statutes, in addition to actually perfecting ownership, is necessary to legally obtain title. [FN66] Due to the immensity of this labyrinth of statutes, they are by necessity beyond the scope of this article.
The remaining requirement in securing title to wild animals at common law is "capture" of the animal. In 1872, the legislature expanded the common law rule and decided to "prescribe the limit where public proprietorship ends and that of the individual" begins.[FN67] Section 656 of the Civil Code, which is consistent with the common law capture rule, allows wild animals to be the subject of ownership. The Civil Code provides: "[a]nimals wild by nature are the subjects of ownership, while living, only when on the land of the person claiming them, or when tamed, or when taken and held in possession, or disabled and immediately pursued." [FN68] Thus, the right of ownership when based on capture is qualified and title to a wild animal is conditional. [FN69] As at common law, title is vested in the owner only as to those animals actually reduced to possession.[FN70]
The qualification in the title of this type of property does not refer to the incidents of ownership. [FN71] Rather, it refers to the fact that if the animal escapes from its owner and reverts to a state of nature, ownership can be lost.[FN72] However, the escape doctrine only applies if the animal escapes to its "native habitat."[FN73] Moreover, as noted in section 656, where a wild animal has been "so tamed and domesticated that it has lost its disposition to return to a primitive state," the owner's qualified title remains intact even though the animal escapes. [FN74] This rule helps to resolve the classic conflict between the need to protect an owner's reasonable expectations, and protecting subsequent finders who have no knowledge of an animal's prior
The language in section 656, which provides: "when on land of the person claiming title to them," has been construed to mean that "although title to wild animals is in the state in trust . ., [the landowner] has a sufficient qualified property interest to protect such game as against trespassers."[FN76] This principle i; termed a prior right of appropriation. [FN77]
Finally, if title to a wild animal can be placed in a particular person, that person and the animal's keeper will be personally liable for any damages incurred by the animal.
V. LIMITATIONS ON ANIMAL OWNERSHIP
Direct government regulation of animals and the ways in which their owners treat them can issue from three sources: federal, state, and local law. Since the thrust of this comment is on state law, only the minimum emphasis absolutely necessary is spent upon federal or local regulation.
A. Federal Limitations
As was noted above, the federal government has been involving itself on an increasing basis with regulation of wildlife.[FN78] In contradistinction to this position, the federal government for many years has had a notable history in regulating domestic animals. The legislature has traditionally drawn the required power from the commerce clause.[FN79] Of course, any exercise of federal power is limited by the due process clause of the fifth amendment,[FN80] which also includes the equal protection component.[FN81] Additionally, the "no taking" clause of the fifth amendment provides further protection.[FN82] Needless to say, the statutes are pervasive, spanning portions of no less than fourteen titles of the United States Code.
Agencies are often utilized by the legislature to carry out its statutory mandate. These agencies often promulgate hundreds of regulations under a given statutory scheme. However, they must operate in compliance with the Administrative Procedures Act.[FN83]
It is therefore clear that in today's regulatory environment, resolution of issues involving limitation on ownership or handling of animals
must include assiduous research of the federal statutes and regulations.
B. State Limitations
The tenth amendment to the United States Constitution reserves certain rights and powers for the states.[FN84] This power is in part manifested by the states' ability to pass laws which preserve and protect health, safety, morals and the common good. Often the power is used to regulate the incidents derived from the ownership of property by citizen-owners within a state.[FN85]
California animal owners are regulated by a profusion of laws which limit the ways in which their animals may be exploited. In reading these statutes it is important to identify the struggle between the policies of absolute property ownership which allow an owner to utilize his property as he so chooses and the state's interest in protecting animal welfare.
One of the earliest statutes limiting an owner's conduct with respect to the treatment of his animals was the original Penal Code section 597.[FN86] Today, subsection (b) proscribes a wide order of acts, the performance of which subjects the owner, or any other person, to criminal liability. Essentially the statute provides sanctions for overworking animals, failing to feed or water animals, and cruelly killing, beating, or injuring animals.[FN87]
A recent evolution seems to have occurred in the courts' interpretation of section 597(b). In People v. Farley,[FN88] the defendant failed to water his horses which in turn caused their death. On appeal of his conviction, a felony at the time, the defendant contended that no criminal culpability was shown at trial. After a rather roundabout discussion of the various cases pertaining to the issue, the court analogized the case to one of child neglect.[FN89] The court held that cruelty laws, like child protection laws, were public welfare offenses which required no criminal intent or criminal negligence to be shown for a conviction. [FN90] Instead, the court said, the defendant need only be found to have committed the act, or negative act, voluntarily and in a negligent fashion (ordinary negligence). [FN91]
Seven years later, in People v. Brian,[FN92] an animal owner was found guilty of not caring for his animals as required by section 597(b). The judge disagreed with the Farley analogy,[FN93] holding that conviction of section 597(b):
requires proof of criminal negligence which means that the defendant's conduct
must amount to a reckless, gross or culpable departure from the ordinary
standard of due care; it must be such a departure from what would be the conduct
of an ordinarily prudent person under the same circumstances as to be
incompatible with a proper regard for [animal] life.[FN94]
It is unclear which degree of culpability future cases will find necessary to support a conviction under section 597(b). While it is socially desirable to protect people from criminal sanctions when they lack criminal intent, or were not grossly negligent, the position is hard to reconcile with the policy of protecting animals in captivity who, like children, cannot support themselves.
Section 597f of the Penal Code is similar to 597(b) but it is much broader (as to an owner). The statute makes any "owner, driver, or possessor of any animal" who fails to provide "proper care and attention" for the animal guilty of a misdemeanor.[FN95] Convictions under the statute have withstood the constitutional attack of vagueness; one court defined the phrase, "without proper care and attention," as meaning abandoned or neglected. [FN96] Oddly enough, it may be possible for ordinary negligence to sustain a conviction under this section. [FN97]
Nevertheless, in many areas violations go on without prosecution. This may be in part due to frustration on the part of enforcement personnel who find violators, when prosecuted, are neither fined nor jailed. [FN98]
If an enforcement officer finds that an animal is being abused he has several alternatives. Section 597f provides a detailed summary of situations in which an enforcement officer can take possession of an animal which is injured, abandoned or neglected and destroy the animal if necessary.[FN99] An interesting twist to section 597f power occurred in 1976 when a King County Animal Control Officer took possession of various farm animals which were in poor condition and found wandering at large.[FN100] The confiscation was challenged on procedural due process grounds pursuant to the fourteenth amendment's due process clause. The court found that although the "state" had an important interest which justified a "taking" of the property without a pre-deprivation hearing,[FN101] the confiscation was illegal because, regardless of a defense, the county failed to provide a speedy post-deprivation hearing.[FN102] The significance of this case may be tempered somewhat by the fact that many farm animals were involved in the confiscation, which, after five weeks, culminated in a feeding bill of over $2,000.[FN103] Clearly, however, section 597f is a legislative statement that the people of the state will not tolerate abuse and neglect by owners of their animals.
A notable provision governing keepers, owners, or possessors of animals is Penal Code section 597t.[FN104] Enacted in 1970, the statute makes it a misdemeanor for an owner to fail in providing any animal with an adequate exercise area. [FN105] Also, if the animal is restricted by a tether it must be attached so as to allow the animal to reach adequate food, shelter and water, without becoming entangled in the tether.[FN106]
2. Transportation by Owner[FN107]
An area which has received recent attention is the state's regulation of the transportation of animals in an owner's vehicle. The original
section setting forth limitations was enacted in 1905.[FN108] The section makes it a misdemeanor for anyone to cause an animal to be carried on a vehicle in a "cruel or inhumane manner" or to authorize or permit it to suffer, be treated cruelly or be tortured.[FN109]
No reported cases have been prosecuted under the statute due in part, no doubt, to the difficult burden of showing cruel or inhumane treatment. This burden is particularly difficult when an animal carried in a vehicle, for example, the back of a pick-up truck, is thrown to its death during an automobile collision.
In 1979, Assemblyman Mike Roose introduced bill number 214 which would have amended Vehicle Code section 21712 to provide:
(g) No person shall transport on a freeway any cat or dog in the unenclosed
portion of a vehicle designed or intended for the transportation of property
unless the cat or dog is caged or tethered with a harness or leash or is otherwise
secured to the area designed to carry property, or unless the vehicle is
enclosed in such a manner as to prevent the animal from falling out of or off
This subdivision shall apply only to the Counties of San Francisco, San Mateo,
Santa Clara, Alameda, Contra Costa, Los Angeles, Orange, and San Diego.
This provision applying only to these counties is necessary due to the volume
of traffic in such areas and the subsequent increased need for protecting the
While the bill was before the legislature, Roose requested then-Attorney General George Deukmejian, to determine if section 597a could be used to carry out a policy of protecting unsecured animals in vehicles.[FN111] The ensuing opinion defined "cruel," "inhumane," "torture" and "suffering" in the transportation mode as meaning "transporting of animals in such a manner that causes or permits, without necessity or justification, 'physical pain or suffering' or at least in such a manner as to indicate that one is 'willing or pleased' to have pain or injury or anguish inflicted upon the animal."[FN112]
While the report concluded that an animal could be transported in a vehicle unrestrained without violating section 597a,[FN113] it did recognize that it would be possible to violate the section under circumstances of, for example, extreme heat or cold.[FN114] This opinion underscored the need for some type of legislation in this area. However, the Assembly bill died pursuant to article IV, section 10(a) of the California Constitution.[FN115] However, some residual support for the bill appears to linger on. On March 8, 1982, Assemblyman Kapiloff introduced bill number 3048 which would have amended section 23116 of the Vehicle Code to specifically prohibit carrying any animals or children in the back of open-bed trucks while traveling on freeways. [FN116] However, prior to its enactment into law, the "any animals" portion of the bill was withdrawn; the section, now part of the Vehicle Code, only protects small children on highways.[FN117] As amended, however, the bill did requisition a study to determine the "number of traffic accidents caused by an animal being discharged by jumping or falling from a vehicle onto a freeway."[FN118] Why the amendment requested a study only for animal accidents on "freeways" while amending the bill, as to children, to include "highways" is unknown to the author.
One of California's strongest policy statement; regarding animals is set forth in several penal statutes dealing with fighting animals; or more particularly, animal owners fighting their animals against one another. The state has drawn the line in this area, limiting the purpose for which an owner can use his property.
Section 597b covers fighting animals generally except for dogs.[FN119] The statute covers any person who causes an animal to fight with another
animal (except as between two dogs), any person in control of a premises who acquiesces in such fighting, and any aiders or abettors. The crime is a misdemeanor. The rule is even broader with respect to cocks. It is extended to those who possess a bird with intent thatthe bird be used for fighting by him or his vendee.[FN120]
Enforcement officers have broad power under two statutes which help them enforce these statutes. The first is section 599a. The law expressly sets forth the procedure for obtaining a search and arrest warrant based upon a complainant's belief that "any provision of law relating to, or in any way affecting, dumb animals or birds, is being, or is about to be violated."[FN121] Thus a report by a neighbor, control officer or anyone else can be the basis for a search and arrest.[FN122]
Section 599aa allows an enforcement officer making an arrest under 597b, 597.5 or 599a to seize all animals and paraphernalia used, or about to be used, in violation of these animal fighting statutes.[FN123] Moreover, the statute provides that anyone convicted of the crime for which the animal or instrumentalities were seized will forfeit the property upon judicial determination of guilt; this includes judicially ordered destruction of the animals or instrumentalities. [FN124] The scope of section 599aa has been judicially broadened.
In People v. Treadway, [FN125] the defendant was charged with violating sections 597b and 597c[FN126] of the Penal Code and his fighting dogs
were impounded pursuant to section 599aa. The defendant pled guilty to only the 597c charge on the condition that the other charges be dropped. The defendant demanded return of his dogs which he received after the trial court determined that section 599aa applied only to the dropped 597b charges. [FN127] On appeal the decision was reversed. The court found that section 599aa applied to section 597c as well as 597b.[FN128]
In the same year that Treadway was decided, the legislature severed the crime of dog fighting from other animal fighting statutes. By enacting section 597.5,[FN129] the fine for dog fighting was extended to a maximum of $50,000 and/or a jail term not to exceed one year.130 These stiff fines and possible prison sentences extend to people in charge of premises upon which a dogfight occurs. The statute also covers trainers who train dogs with the intent they will be fought.
The impact upon established jurisprudence in this area is not yet fully known. But in 1980, a 32-year-old Long Beach resident was fined $625 and sentenced to six months in jail with "three years strict probation" for dog fighting and cruelty violations.[FN131]
Subsection (b) of section 597.5 makes it a misdemeanor to be present as a spectator at a dog fight or even present at preparation for a fight with intent to remain. [FN132] Finally, subsection (c) makes express exceptions for hunting dogs, dogs used to manage livestock and training dogs for purposes not prohibited by law.[FN133]
California has several other miscellaneous laws which restrict private ownership of animals without delving too far into restriction on commercial animal operations. For example, it is a misdemeanor to cut the solid portion of any horse's tail. This is commonly termed as docking and became a misdemeanor in 1905.[FN134]
Another limitation upon animal ownership, or horse ownership in particular, is Penal Code section 597g. This might commonly be referred to as the polling provision. In short, it outlaws a number of methods a horse trainer might use in training a horse to jump higher. In order to commit the crime, the method must consist of:
(1) forcing, persuading, or enticing a horse to jump in such manner that one
or more of its legs will come in contact with an obstruction consisting of any
kind of wire, or a pole, stick, rope or other object with brads, nails, tacks or
other sharp points imbedded therein attached thereto or (2) raising, throwing
or moving a pole, stick, wire, rope or other object, against one or more of the
legs of a horse while it is jumping an obstruction so I hat the horse, in either
case, is induced to raise such leg or legs higher in order to clear the
On a more practical note is California's law which outlaws the giving away or sale of "live chicks, rabbits, ducklings or other fowl as prize."[FN136] The purpose behind this law is to protect the animals from the inevitable inhumane treatment they would receive in light of the special care they require. In 1965, the statute was greatly broadened. Today the statute outlaws the non-commercial sale or gift of any such animal by a roadside vendor,[FN137] and no such person, no matter where located, may lawfully engage in the practice of selling or giving these animals when artificially colored or dyed.[FN138]
The purpose for the 1965 amendment to the provision displays the same policy contours as the original act: an endeavor to protect these animals from unnecessary cruelty, the present danger of which is continuously present both in the hands of the inexperienced vendor and short-sighted recipient.
5. Open Grazing Law
Division 9 of the Agricultural Code contains several sections covering animals generally.[FN139] Within the division is the California Open Range Grazing law which places some restrictions upon all animal owners falling within the statute.
The Open Grazing Law prohibits any person from turning out certain bulls onto unenclosed lands located outside the city limits where cattle are permitted to roam.[FN140] To fall within the section, the bull must be over eight months in age and not a purebred.[FN141] The law goes on to require that at least one bull be allowed to roam with each thirty cows while pastured on open range. [FN142] The violators of the law are liable not only for civil and criminal penalties, [FN143] but also subject to a private right of action for any actual damages arising from a violation.[FN144]
6. Special Statutes Pertaining to Dogs
Division 14 of the Agriculture Code contains provisions relating to the regulations and licensing of dogs.[FN145] The division can be broken into two types of statutes. The first are recommended statutes which a county may adopt. These statutes are designed to provide a framework for county dog control ordinances.[FN146] Therefore, if one has a problem dealing with dog licensing or regulation, he must research local ordinances to determine what sections have been adopted.
The second type of regulation found in Division 14 are mandatory regulations. Most of these are found in Chapters 4 and 5. Chapter 4's section 30951 makes it unlawful for any person to have a dog over four months old unless the dog has a dog tag or license tag fastened to a collar worn on its neck or leg.[FN147]
Provided an owner complies with the tagging rule, and other statutes and ordinances promulgated thereunder, a dog cannot be impounded, injured or killed.[FN148] There are, however, many statutes and ordinances subject to violation. Note that many of these and other dog statutes were promulgated in response to the old common law notion that dogs were not property and thus placed within a special classification. Today, remnants of this classification system have led to these special dog laws.
Thus, the state prohibits the owner of a female dog, which is in heat, from permitting the dog to run at large.[FN149] The state further prohibits an owner from permitting any dog to run at large on a farm where "livestock or domestic fowls" are kept, absent special circumstances. [FN150]
Two statutes are worthy of particular attention. Section 31102 allows any person to kill any dog if:
(a) [t]he dog is found in the act of killing, wounding, or persistently pursuing
or worrying livestock or poultry on land or premises which are not owned
or possessed by the owner of the dog [or]
(b) [t]he person has such proof as conclusively shows that the dog has been
recently engaged in killing or wounding livestock or poultry on land or premises
which are not owned or possessed by the dog's owner. [FN151]
Section 31103 is more limited in its provision which states that "any dog entering any enclosed or unenclosed property upon which livestock or poultry are confined may be seized or killed by the owner or tenant of the property or by any employee of the owner or tenant.' [FN152] No criminal or civil liability will lie for a killing under either section 31102 or 31103.[FN153]
As noted, violation of these laws may lead to impounding, injuring or killing of the dog.[FN154] These violations may also lead to criminal and civil charges against the animal owner. Any violation of the division's laws is an infraction punishable by a $50 fine for the first offense. [FN155] If the violation results in the death or serious injury of poultry or livestock, it is a misdemeanor and can bring a $500 fine, six months in jail, or both.[FN156]
The dog owner is also liable in a private cause of action for damages covered by the section in double the amount of actual damages. [FN157] Additionally, if the incident happened while the dog was in the charge of the owner, he must show cause why the animal should not be destroyed.[FN158] Finally, if a livestock owner suffers injuries from livestock killed by dogs and the owner cannot be identified, he may recover from the county in which the damages occurred.[FN159]
It appears that two separate state political bodies have the power to quarantine an owner's animals. They are the California Department of Agriculture and the Department of Health Services.
Pursuant to Health and Safety Code section 3051,[FN160] the State Department of Health Services [FN161] has the power to quarantine animals
"whenever in its judgment such action is necessary to protect or preserve the public health." This power includes the power to destroy an animal when it becomes "an imminent menace to the public health."[FN162] This power is delegated to county, city or district health officers, [FN163] and gives the locality the power to compensate injured parties for destroyed animals.[FN164]
The other body which has the power of quarantine over animals is the Department of Agriculture. The Director of Agriculture [FN165] has the power to [FN166] inspect any domestic animals[FN167] upon receiving information of the existence of any "contagious, infectious or transmissible disease[s] which [affect] . . . domestic animals."[FN168] If the Director's suspicions are confirmed, he must create a quarantine area in which the infected animal must remain; other animals which have been, or might have been, in contact with the diseased animal may also be so detained.[FN169] Movement of quarantined animals without a written permit is unlawful. [FN170] Violators of the quarantine provisions [FN171] are subject to the criminal sanctions of fine, imprisonment or both.[FN172]
Once a quarantine is established, the Director has broad power which includes the power to destroy animals that are "dangerous to
themselves or other animals."[FN173] Importantly, animals destroyed pursuant to section 9569 [FN174] entitle the owner to compensation [FN175] unless he violates a quarantine order.[FN176]
Although contribution for this reimbursement by the state to the Department is conditional upon matching federal funds, or the director
finds that the failure to dispose of the animal would be detrimental to the welfare of the animal industry,[FN177] the Department is authorized to allow compensation to owners of destroyed animals to be paid from their general funds [FN178] in an amount determined by an appraisal committee. [FN179]
8. Death Chambers and Their Inspection (A Brief Word)
In recent years the California legislature has decided that when animals are destroyed, they must be destroyed in a humane manner. To attain this goal the state has enacted a host of laws regulating euthanasic devices.[FN180] The state has outlawed the use of decompression chambers [FN181] and placed strict limitations on the use of nitrogen gasl [FN182] and carbon monoxide gas chambers.[FN183] Special methods are required when killing newborn dogs and cats. [FN184] Violation of any of these laws is a misdemeanor.[FN185]
C. Local Limitations
Cities and townships generally derive their power from charters which are similar to a state's constitution. The charter and all ordinances promulgated thereunder must not contravene the restrictions of the United States Constitution or certain provisions in the state constitution. Moreover, ordinances may not exceed the scope of powers enumerated in the charter under which the ordinance has been enacted. As this paper is generally limited to state law, the author does not endeavor to set forth local ordinances. Needless to say, when any regulation problem arises, the researcher must thoroughly check the city and county ordinances within his jurisdiction.
VI. CIVIL LIABILITY IMPOSED ON ANIMAL OWNERS; INDIRECT REGULATION
Potential civil liability of animal owners canvasses several areas of the law. The three major areas are: absolute liability, trespass actions, and negligence actions. All three may be discussed in terms of three generic classes of animals: wild animals, domestic animals, and dogs.
The three actions can be broken down into two types: strict liability and negligence. Strict liability is the basis of the absolute liability actions and trespass actions. Three elements must be proved: (1) causation in fact, (2) proximate cause, and (3) damages.
The materials on title noted above will help in determining the causation in fact issue when it must be shown that it was a particular defendant's animal which caused the harm. The rationale for imposing strict liability is not based so much on the notion of a duty owed to someone but rather as a means of balancing the legally protected right of owning certain animals with the great harm which these animals
Negligence by comparison requires, in addition to the three factors above, that the plaintiff prove: (1) a duty, and (2) a breach of that
duty. Thus, the rationale for negligence is based on the defendant's activities; liability is imposed when his activities go beyond the required standard of care.
Two additional possible causes of action will not be discussed due to their complexity and the limitations of this article. They are nuisance
and product liability theories.
A. Strict Liability/Absolute Liabilityls[FN187]
1. Wild Animals
Perhaps the seminal case which introduced absolute liability in California as to wild animals is Laverone v. Mangianti. [FN188] The case itself dealt with a ferocious dog. The court first held "that a person may lawfully keep a ferocious dog ... [and] he has the same right to keep a tiger." [FN189] The court went on to analogize a domesticated dog, with known vicious propensities, to wild animals, finally holding that the doctrine of absolute liability applicable to wild animals was applicable to such dogs.[FN190] The judge stated:
[T]he only difference I can see between the two cases is, that in case of an injury
caused by a dog, the knowledge of the keeper that the dog was ferocious,
must be alleged and proven, for all dogs are not ferocious; while in the case of
a tiger, such knowledge will be presumed from the nature of the animal. [FN191]
This bit of tiger dicta, and the dicta noted earlier above, have been cited time and time again as authority for three propositions: first, that people have the right to keep animals with a vicious propensity; second, that owners of wild animals are presumed to have knowledge of their pets' vicious propensities; and finally, and most importantly, injuries caused by wild animals subject the owner to absolute liability. [FN192] Therefore, if a traveler returning to California imports a cobra and keeps it as a pet, he will be held absolutely liable if it bites anyone.
This is not true of all wild animals, however; a distinction must be drawn between wild animals and wild animals subject to domestication. Opelt v. Al G. Barnes Co.[FN193] dealt with the liability of a leopard owner. Clearly a leopard falls within the first group. Animals such as leopards are never truly domesticated. Therefore, the owner is conclusively imputed with knowledge of the animal's vicious propensities, [FN194] and the animal is presumed to possess this propensity.
The second group is composed of wild animals as well. However, this group of animals is generally thought to be subject to domestication. When dealing with this class of animals, the propensity presumption is no longer conclusive. If the parties establish that the animal belongs to this second group,[FN195] the owner/keeper must show the animal was tamed. If he fails to do so then the case is disposed of in the same fashion as a case involving wild animals not subject to domestication (like a leopard).
But if the defendant owner can show that the animal was tamed, the burden of proof is shifted to the plaintiff who must make the same showing as that required for domestic animals noted below.[FN196] In Gooding v. Chutes Co.,[FN197] the plaintiff was a non-keeper employee who was bitten by a camel. The report states that the camel took him up by the leg, "lifted him from the ground and swung him about in the air, biting his leg so severely that the bones were crushed, rendering amputation necessary." [FN198] The court viewed the camel as a domesticated animal and thereby affirmed the defendant's liability on the grounds that the animal had a vicious propensity and that the defendant possessed knowledge of the propensity.[FN199] This is the same general rule the courts use in determining the liability of owners of any domesticated animal.
2. Domestic Animals
California law generally makes distinctions between liability for domestic animals generally and that concerning dogs. As to domestic animals generally, "[t]he rule is well settled that the owner of an animal, not naturally vicious, is not [absolutely] liable for an injury done by such animal, unless it is affirmatively shown, not only that it was vicious, [FN200] but that such owner had knowledge of the fact."[FN201] Accordingly, in Heath v. Fruzia,[FN202] the owner of a horse with a propensity to kick people was held liable because the plaintiff, who had suffered a broken leg when kicked, proved the owner had knowledge that the horse had a propensity to kick people.[FN203]
The rules pertaining to dogs and absolute liability are slightly different than those dealing with wild or domestic animals generally. Therefore, they must be examined separately. At common law, there was no duty, and thus no liability, for injuries inflicted by a dog, provided that the dog had not previously displayed a vicious propensity. [FN204] This rule led to a flood of litigation brought to determine whether the dog had a vicious propensity which was known, or should be known, to the owner. The rule also may lead to unjust results in cases where the plaintiffs cannot show this propensity.[FN205]
Thus, in 1931, the legislature enacted what is now California Civil Code section 3342, a strict liability dog statute. [FN206] The law states:
The owner of any dog is liable for the damages suffered by any person who is
bitten by the dog while in a public place or lawfully in a private place, including
the property of the owner of the dog, regardless of the former viciousness
of the dog or the owner's knowledge of such viciousness. A person is lawfully
upon the private property of such owner within the meaning of this section
when he is on such property in the performance of any duty imposed upon
him by the laws of this State or by the laws or postal regulations of the
United States, or when he is on such property upon t he invitation, express or
implied, of the owner.[FN207]
The California law has further provided that once a dog has bitten a person the owner must take steps to prevent the incident from happening again.[FN208] When a dog has bitten a person on more than one occasion, an action may be brought by anyone in municipal court to determine if court-ordered sanctions will be imposed. The court may even order the dog destroyed.[FN209]
4. Affirmative Defenses to Strict Liability
In Opelt v. Al G. Barnes Co.,210 the court held a leopard owner not liable for injuries sustained by a 10-year-old when the child stuck his
hand in the cat's cage. The court held "if the injured party imprudently, or negligently, places himself in a position to be attacked, or by his own negligence contributes to his injury, the owners of the wild beast may be exonorated."[FN211]
Next, the doctrine was extended to domestic animals with a known vicious propensity.[FN212] And finally, in Gomes v. Byrne,[FN213] it was held
that the rule was also a defense to the 1942 dog bite statute.[FN214] A good statement of the general rule was set forth:
In adopting Section 3342 of the Civil Code, the Legislature did not intend to
render inapplicable such defense as assumption of the risk or willfully invited
injury.. . . The "elements of the defense of assumption of the risk are a
person's knowledge and appreciation of the danger involved and his voluntary
acceptance of the risk."'[FN215]
Early on it was held that the attractive nuisance doctrine (no longer valid in California), would not supplant assumption of the risk as to
children.[FN216] Finally, it should be noted that, should assumption of the risk successfully block a cause of action based upon absolute liability, a cause of action may still be pled in negligence (except for the actions of dogs).[FN217]
In order to bring a cause of action for trespass, two hurdles must be cleared. First, at common law, the courts felt that an owner of dogs and cats, as opposed to horses or cattle, should not be liable for their animals' trespasses.[FN218] The stated reasons for the rule are many, but the underlying rationale seems to be that dogs and cats tend to stray by nature and do not generally cause harm when they do so. [FN219] This rule has been noted by California courts.[FN220] However, at least as to dogs, the rule has been abrogated to some degree,[FN221] suggesting a retreat from the common law rule.
Assuming one is involved with a trespass of other domestic animals, the second hurdle must be cleared. In order to successfully assert a cause of action based upon strict liability for trespassing animals, the owner/occupier must show that he has conformed with all applicable fencing laws. At common law, owners of stray cattle were strictly liable for damages done while the animals were trespassing on the lands of another. [FN222] California abandoned this rule in the first session of the California legislature, preferring instead the fence-out approach.[FN223] The rule was subsequently amended and interpreted to restore the common law approach in all but certain listed counties.[FN224]
The residual effects of California's brief departure from the common law rule are found today in the Agricultural Code sections 17001-17128.[FN225] The statutory scheme continues the common law approach except as in listed counties. Thus, in all parts of Siskiyou, Lassen and Modoc Counties, and in parts of Trinity and Shasta counties, a fencing law is in effect.[FN226] In these counties, in order to bring a cause of action for trespass, or to take-up an estray under section 17041, the owner/occupier's property must be "entirely enclosed with a good and substantial fence." [FN227]
In summary, in order to bring a trespass action in specified counties, the landowner must establish there was a good and substantial fence surrounding his property. This need not be proven under the common law rule.
VII. DIGRESSION: ESTRAY ACT
The Estray Act goes further than just to partially repeal the fencing statutes. Section 17041 provides that any person that finds any estray or domestic animal upon his property or upon the roadway adjacent to his property may take the animal into possession [FN228] and have a statutory iien [FN229] on the animal for all the expenses incurred for its care.[FN230]
The statute used to appear quite broad regarding what animals are to be included in the scope of the statute, but in 1982, the legislature defined an "estray" animal within the statute as potentially any horse, mule, bovine animal, burro, sheep or swine whose owner is unknown. [FN231] Any person who holds an estray as provided in section 17042 must, within five days, file a notice with the Department of Agriculture.[FN232]
An authorized inspector can take possession of the animal from the "taken-up" on demand and if so taken, he must attempt to locate the owner.[FN233] If the owner is found, the animal is returned provided that the owner pay all expenses incurred for its handling.[FN234] If the owner is not located and if no one comes forward for the animal within 14 days [FN235] from the posting of the first notice,[FN236] the animal may be sold by public or private sale.[FN237] Proceeds from the sale go into the Department of Agriculture Fund, and from this the "take-up" and the Department are reimbursed for any costs of keeping and caring for the animal.[FN238] The owner has no right to obtain sold animals from the buyer at the sale,[FN239] but if the owner can prove ownership within one year from the date of the sale he may recover the net proceeds.[FN240]
Once a plaintiff is over the two preliminary requirements for a trespass action, California follows the common law rule which allows the owner to file suit for any property damages caused by the animal; the liability is imposed irrespective of fault.[FN241] Because an animal has no legal rights and thus no duty, at common law a rationale was adopted which in essence treated a trespass by an animal as if the owner had done the act.[FN242] Today liability is imposed because of the owner's possession and control of the animal.[FN243] In essence, the elements which must be proved by the owner/occupier are:
1. That the plaintiff is an owner or occupier of the injured
2. That the defendant is an owner or keeper of the animal
At common law, damages were only allowed for injury to crops and land. This rule was recognized in many cases. [FN244] In Williams v.
River Lakes Ranch Development Corp., the court extended the rule to cover personal injuries regardless of other injury.[FN245] Ownership would generally not be difficult to prove, but causation has a caveat which should be considered: the owner will only be held responsible for those damages that are reasonabLy forseeable-that is, the kind of damages the animal could be expected to cause if trespassing.[FN246] Williams also made it clear that one need not be an owner of the land upon which the trespass occurs. Instead, possession is sufficient.[FN247] If one cannot bring a cause of action for trespass, a negligence action may be pursued.
Negligence acts as a catch-all for cases in which either propensity cannot be shown or when there has been no trespass. Moreover, the negligence concept pulls together many of the liability concepts raised above.
It was well settled at common law that owners were not liable for injuries caused by their animals while on a public road or highway.[FN248]
California, however, adopted a different rule. In Ficken v. Jones,[FN249] a defendant keeper was driving his herd down a street when a steer became wild, "ran against the plaintiff, knocking him down and goring him in a terrible manner." [FN250] Although propensity could not be shown, the court upheld a cause of action in negligence holding that an owner or keeper has a duty to exercise reasonable care while herding his cattle on the street.[FN251]
With the growth of the state's highway system, the California legislature realized there was a need to change the common law rule by statute; the potential for accidents involving vehicles and animals on the roadway was just too great, so statutory law was enacted. The statute is now located in section 16902 of the Agricultural Code.[FN252]
The rule makes it unlawful for any owner or person controlling the possession of livestock to "negligently" or "willfully" allow the livestock to remain upon the highway unaccompanied by someone if the highway is bordered on both sides by a "fence, wall, hedge, sidewalk, curb, lawn, or building."[FN253] It should be noted that the statute requires at a minimum that the plaintiff prove negligence.
The history of the law is quite informative. Prior to 1935, a plaintiff could invoke the doctrine of res ipsa loquitur to raise an inference of defendant's negligence under the statute whenever someone hit a farm animal in the road. A 1935 amendment abolished use of the inference under section 16902;[FN254] the section specifically dealing with the amendment is found in the Agricultural Code, section 16904.[FN255] Prior to the 1935 amendment, a plaintiff's chances of recovery were good.[FN256] Suits brought subsequent to the enactment of section 16904 have had less success.[FN257]
Where the plaintiff cannot show the required fencing/border at or near the scene of the accident, no recovery is permitted under section 16902. However, the courts have recently allowed recovery unde Civil Code section 1714(a) which provides:
(a) every one is responsible, not only for the result of his willful acts, but
also for an injury occasioned to another by his want of ordinary care or skill
in the management of his property or person, except so far as the latter has,
willfully or by want of ordinary care, brought the injury upon himself. The
extent of liability in such cases is defined by the Title on Compensatory
Recovery for injuries sustained when a driver hits an animal in the road have often been awarded under this law.[FN259]
It has been settled since Finney v. Curtis [FN260] that if a plaintiff can show both a vicious propensity and the owner/keeper's knowledge of that propensity, a cause of action in negligence may be pleaded.[FN261] The action may lie, for example, for negligently handling a vicious animal, [FN262] or one not known to be vicious. [FN263] Moreover, it is clear that a cause of action might lie for negligently handling a wild animal [FN264] found or presumed to be dangerous. [FN265] However, some courts have noted they may treat the negligence cause of action as surplusage where the animal is shown to be vicious and the knowledge imputed to the owner.[FN266]
Finally, a word should be said about negligence and dog cases. Common law liability did not extend to injuries inflicted by dogs that had previously been gentle and friendly.2 67 Thus, complaints based upon the general negligence of the dog owner for injuries sustained have not stated a valid cause of action. 268 The reason for this rule is that a dog is presumed to be good-natured "until the contrary appears."[FN269] Therefore, any action in negligence for injuries caused by a dog must be based on specific acts of negligence on the part of the owner or keeper or upon a negligence per se theory grounded upon a state statute.
An ambiguous area of liability, which pertains to animals generally and to dogs in particular, arises from the duty that a landowner or occupant owes a trespasser. The old rule of liability as to a trespasser, to which the strict liability dog bite statutes appear not to apply, [FN270] has an interesting history. In 1872, the legislature adopted Civil Code section 1714,[FN271] which created a duty on the part of a property owner to exercise reasonable care in the management of his person or property.[FN272] Many California courts, however, disregarded the statute and followed the common law rule which made trespassers a separate classification subject to special rules.273 Thus, as to a trespasser, the owner or occupier of land had only a duty to refrain from willful and wanton conduct. The rule was subsequently eroded, however.[FN274]
In Radoff v. Hunter,[FN275] a dog bite case, the court stated that the California rule as to a known trespasser is that the owner or occupier has a duty to exercise reasonable care "so far a:; active [as opposed to passive] operations are concerned." [FN276] While the court did not find that having a vicious animal (a dog) was an active operation which breached this duty, it found liability by determining the dog was a trap; the dog was concealed from view immediately preceding the incident which led to the suit.[FN277] In 1968, the California Supreme Court decided Rowland v. Christian,278 which led to the abolition of the distinctions between persons present on a premises. When the active/passive concept was abolished, Radoff was overruled.[FN279] In Mark v. Pacific Gas & Electric Co., the court stated:
[Iln Rowland we declined to follow and perpetuate the foregoing rigid classifications,
immunities and exceptions, adopting in their place the basic test
"whether in the management of his property he [the possessor of land] has
acted as a reasonable man in view of the probability of injury to others, and,
although the plaintiff's status as a trespasser, licensee, or invitee may in the
light of the facts giving rise to such status have some bearing on the question
of liability, the status is not determinative. . . . Where the occupier of land is
aware of a concealed condition involving in the absence of precautions an unreasonable
risk of harm to those coming in contact with it ... the trier of fact
can reasonably conclude that a failure to warn or to repair the condition constitutes
The impact from Rowland upon this area of the law is unclear. Specifically as to dogs, both before and after Rowland it appears a trespasser cannot recover under Civil Code section 3342. However, it now appears, based upon Rowland, that a trespasser has more flexibility in successfully bringing a cause of action based upon a negligence theory and a common law absolute liability theory. The state of the law in this area is unclear and only additional cases will help to clarify it.
In 1975, a new cause of action was approved in the case of Uccello v. Laudenslayer.[FN281] . In that case, the defendant landlord had leased a dog-owning tenant a house on a month-to-month tenancy. The landlord gave specific permission to the tenants to keep a dog, and knew "beware of dog" signs had been posted on the property.[FN282] Plaintiff, a child, was bitten by the dog after being invited to the tenant's house to play with the tenant's children; the child had visited many times in the past.[FN283]
In deciding the case the court noted that the difficulties some animal owners have in objectively evaluating their dog's propensities was important in determining whether or not public policy required placing the burden of attacks on the owner of the premises where the animal is kept.[FN284] The court held that a duty of care arises when the landlord has actual knowledge of the presence of the dangerous animal and when he has the right to have it removed from the leased property.[FN285] However, actual knowledge of the dog's propensities is required, as distinguished from constructive knowledge, thereby relieving any duty to inspect.28 6 This case should be conceptually distinguished from Nava v. McMillan,[FN287] where a teenage minor was so frightened by barking dogs located in a fenced yard owned by the defendant that she stepped into the street, only to be struck by a car.[FN288] The court, focusing on the policies surrounding real property and ownership doctrines, found that there was no legal duty owed to the plaintiff by the defendant, [FN289] and so there could be no liability.
This article has canvassed laws pertaining to the ownership of animals, title to animals and regulation of animals in California. While laws concerning title and ownership are remaining fixed with time, it is clear that laws concerning animal regulation are in a state of flux. Clearly, this is more pronounced in the area of direct state regulation. Recently pressure has been brought to bear on the California Legislature concerning such issues as fighting animals, euthanasic devices, and cruelty. There is no reason to believe this trend will not continue. Comparatively, indirect regulation through the sanctioning of private law suits remains more stable. However, recent changes in California's view of owners and occupiers of land has introduced new areas in which negligence actions will withstand judicial scrutiny.
1. See infra note 10.
2. Animal law treats owners and keepers in a similax fashion.
3. CAL. CONST. art. I, § 1 (1849, amend. 1974). Article one, section one provides:
"All people are by nature free and independent and have inalienable rights. Among
these are enjoying and defending life and liberty, acquiring, possessing, and protecting
property, and pursuing and obtaining safety, happiness, and privacy." Id.
4. CAL. CIV. CODE § 654 (West 1982) ("[i]n this Code, the thing of which there
may be ownership is called property").
5. CAL. CIV. CODE § 655 (West 1982). See, e.g., Yuba River Power Co. v. Nevada
Irrigation Dist., 207 Cal. 521, 523, 279 P. 128, 129 (1929) (property is a broad term but is
specifically defined in California by sections 654 and 655 of the Civil Code), followed in
Lugosi v. Universal Pictures, 25 Cal. 3d 813, 841 n.22, 603 P.2d 425, 443 n.22, 160 Cal.
Rptr. 323, 341 n.22 (1979) (Bird, C.J., dissenting) ("the term property . . . 'extends to every species of right and interest capable of being enjoyed as such upon which it is
practicable to place a money value' ").
6. Ownership is defined as "the right of one or more persons to possess and use [a
thing] to the exclusion of others." CAL. CIV. CODE § 654 (West 1982). See CAL. CIV.
CODE § 671 (West 1982) (people authorized to own property). See also supra note 3.
7. CAL. CIV. CODE § 657 (West 1982).
8. See CAL. CIV. CODE §§ 658-660, 662 (West 1982) (further defining real property);
see also CAL. CIV. CODE § 663 (West 1982) (stating that all property which is not
real is defined as personal).
9. The Code states "[tihe owner of a thing owns also all its products and accessions."
CAL. CIV. CODE § 732 (West 1982).
10. THE NEW COLUMBIA ENCYCLOPEDIA 107 (W. Harris & J. Levey ed.; 4th ed.
1975) (regarding animal husbandry).
11. 2 W. BLACKSTONE, COMMENTARIES 446 (B. Gavit ed. 1941). Interestingly, however,
the ancient Britons considered the stealing or killing of a cat to be "a grievous
crime, punishable by fine." Id.
12. People v. Spencer, 54 Cal. App. 54, 201 P. 130 (1921), rev'd on other grounds,
People v. Odenwalds, 104 Cal. App. 203, 285 P. 406 (1930).
13. 54 Cal. App. at 58, 201 P. at 131. By contrast, the theft of domestic animals or
wild animals held in captivity was a felony at common law. Depending upon one's
viewpoint, they might find it odd to know that a dog could be the subject of a criminal
charge of malicious trespass. Johnson v. McConnell, 80 Cal. 545, 549, 22 P. 219, 220
14. The Penal Code provides that "[d]ogs are personal property, and their value is
to be ascertained in the same manner as the value of other property." CAL. PENAL
CODE § 491 (West 1970) (enacted in 1872).
15. See the dicta in People v. Fimbres, 107 Cal. App. 778, 780, 288 P. 19, 20 (1930).
16. See CAL. HEALTH & SAFETY CODE § 19901 (West Supp. 1984) ("pet," as construed
by this section, means "domesticated dog, cat, bird, or aquarium").
17. As noted earlier, issues surrounding inheritance are beyond the scope of this
18. See CAL. CIV. CODE §§ 1025-1033 (West 1982).
19. For a sample adoption agreement, see D. FAvRE & M. LORING, ANIMAL LAW
20. See CAL. CIV. CODE § 669 (West 1982).
21. See infra notes 62-77 and accompanying text.
22. See, e.g., J. WHITE & R. SUMMERS, UNIFORM COMMERCIAL CODE (1972). Nevertheless,
two basic provisions should be noted. Article 2 of the Code covers transactions
in goods which are defined as all things movable at the time of identification to the
contract. CAL. COM. CODE §§ 2102, 2105 (West 1964). Section 2105 expressly defines
goods to include "unborn young of animals" which by implication brings animals into
the scope of Article 2. CAL. COM. CODE § 2105 (West 1964).
23. In California, "[a] gift is a transfer of personal property, made voluntarily, and
without consideration." CAL. CiV. CODE § 1146 (West 1982).
24. See, e.g., In re Hall's Estate, 154 Cal. 527, 531-32, 98 P. 269, 271 (1908).
25. Id at 532, 98 P. at 271. Intent must always be shown.
It is a uniform rule that to consummate a gift of personal property without
consideration under Sections 1146-1148 at the Civil Code, it is necessary that
there be an immediate surrender of the article which is the subject of the gift,
together with all dominion and control over it.
Morehead v. Turner, 41 Cal. App. 2d 414, 422, 106 P.2d 969, 973 (1940), followed in
Rolinson v. Rolinson, 132 Cal. App. 2d 387, 390, 282 P.2d 98, 100 (1955); CAL. CIV. CODE
§ 1147 (West 1982) (providing that "[a] verbal gift is not valid, unless the means of obtaining
possession and control of the thing are given, nor, if it is capable of delivery,
unless there is an actual or symbolic delivery of the thing to the donee").
Retention of any control over the gift or right to use it may cause the gift to be invalid.
Blonde v. Estate of Jenkins, 131 Cal. App. 2d 682, 686, 281 P.2d 14, 17 (1955).
Where the property is already in possession of the donee, it is sufficient for purposes
of delivery that the donor merely relinquish dominion and control over the property;
there need not be a re-delivery. Skellenger v. England, 81 Cal. App. 176, 184, 253 P.
191, 194-95 (1927).
28. See, e.g., Gordon v. Barr, 13 Cal. 2d 596, 601, 91 P.2d 101, 104 (1939).
29. See supra note 24.
30. Kropp v. Sterling Savings & Loan Ass'n, 9 Cal. App. 3d 1033, 1046, 88 Cal.
Rptr. 878, 885 (1970).
31. CAL. CIV. CODE § 1148 (West 1982). A gift in view of death is known as a gift
causa mortis. It is characterized by the fact it is revokable upon the amelioration of
the donor. The Civil Code discusses the nature of the gift causa mortis in three sections.
See CAL. CIV. CODE §§ 1149-1151 (West 1982).
32. Two ways around the rule of non-revocation should be noted. First, it is possible
that a gift of an animal with a reserved power of revocation may be allowed. This
theory is based on a long line of cases implying that gifts in trust are not invalid
although the donor reserves a power of revocation. See, e.g., American Bible Soc'y v.
Mortgage Guar. Co., 217 Cal. 9, 14, 17 P.2d 105, 108 (1932) ("The circumstance that the
donor reserved the power to revoke the gift does not invalidate the trust.") (citation
omitted). Cf. Gordon v. Barr, 13 Cal. 2d 596, 602, 91 P.2d 101, 104 (1939) (court allowed
donor to reserve management control and pecuniary benefits from gifted property
without the establishment of a trust).
The second method of overcoming the non-revocation rule is to show the donor's intent was induced by fraud, misrepresentation, see, e.g., Murdock v. Murdock, 49 Cal.
App. 775, 781, 194 P. 762, 765 (1920) (and cases cited therein), or undue influence. See,
e.g., McDonald v. Hewlett, 102 Cal. App. 2d 680, 686, 228 P.2d 83, 87 (1951) (terminally
ill patient gifts practically all his property to attorney).
33. See supra notes 4-6 and accompanying text. Cf. CAL. CIv. CODE § 1000 (West
1982) (property may be acquired by occupancy, accession, trtmsfer, will or succession).
34. One of the earliest finders cases was Armory v. Delemire, 93 Eng. Rep. 664, 1
Strange 504 (K.B. 1722).
35. See CAL. CIV. CODE §§ 2080-2080.9 (West Supp. 1984).
36. See Elliott, The Work of the 1947 Legislature; Personal Property, 21 S. CAL. L.
REV. 30, 30-31 (1947) (criticizing the inconsistencies amid the finders rules which formerly
were contained in the California Civil Code §§ 1865, 1871, repealed by Act of
Aug. 28, 1967, ch. 1512 § 1, 1967 CAL. STAT. 3601, 3601, and in the California Political
Code §§ 3146-3142, repealed by Act of May 25, 1951, ch. 656, § 1, 1951 CAL. STAT. 1866,
37. In People v. Stay, 19 Cal. App. 3d 166, 172, 96 Cal. Rptr. 651, 655 (1971), the
court held the term "lost," as used in section 2080 of the Civil Code and section 485 of
the Penal Code, was used in its ordinary sense: the same meaning given lost property
in the "finders" common law.
38. CAL. CIV. CODE § 2080 (West Supp. 1984). Section 2080 is the heart of California's
any person who finds a thing lost is not bound to take charge of it, but if he
does so he is thenceforward a depository for the owner, with the rights and
obligations of a depository for hire. Any person who finds and takes possession
of any money, goods, things in action, or other personal property, or saves
any domestic animal from drowning or starvation, shall, within a reasonable except a reasonable charge for saving and taking care of the property.
Id. But see infra notes 229-247 and accompanying text describing the specialized procedure
to be followed when finding livestock.
39. CAL. CIv. CODE § 1834 (West 1954). See CAL. CIV. CODE § 1815 (West 1954) (regarding
involuntary deposit of personal property, e.g., an animal).
40. CAL. CIV. CODE § 2080 (West Supp. 1984). As noted above, section 2080 provides
that the finder is entitled to a reasonable charge for expenses incurred while saving
or possessing the animal. Expenditures on animal care can of course become quite
These costs may be recovered in addition to any offer of reward accepted by the
finder. See, e.g., Berthiaume v. Doe, 22 Cal. App. 78, 79, 133 P. 515, 515 (1913) (construing
sections 1865 and 1867 of the Civil Code, now codified at section 2080 of the Civil
41. CAL. PENAL CODE § 485 (West 1970). The section provides:
One who finds lost property under circumstances which give him knowledge
of or means of inquiry as to the true owner, and who appropriates such property
to his own use, or to the use of another person not entitled thereto, without
first making reasonable and just efforts to find the owner and to restore
the property to him, is guilty of theft.
For a definition of lost property, see supra note 37.
42. CAL. CIV. CODE § 2080.1 (West Supp. 1984). This section requires that property
with a value of over $10 be turned over to the appropriate law enforcement agency
with an affidavit outlining the circumstances of the finding.
43. See CAL. CIV. CODE § 2080 (West Supp. 1984) (quoted supra note 38).
44. See supra note 42.
45. CAL. CIV. CODE § 2080.2 (West Supp. 1984).
46. CAL. CIV. CODE § 2080.3(a) (West Supp. 1984). See also CAL. CIV. CODE § 2080.5
(West Supp. 1984) (providing the police with power to sell property when charges
against it amount to two-thirds of its value).
47. CAL. CIV. CODE § 2080.3(b) (West Supp. 1984).
48. CAL. CIv. CODE §§ 2080.4, 2080.6 (West Supp. 1984).
49. Los ANGELES, CAL. City Charter, art. XIII, § 155, el. 1-2 (1973).
50. LoS ANGELES, CAL. MUNICIPAL CODE § 53.09 (1978)
51. Id. The Department takes possession of animals reported under the provision.
52. Los ANGELES, CAL. MUNICIPAL CODE § 53.11 (1978).
54. CAL. CIV. CODE § 2080.7 (West Supp. 1984).
55. CAL. CIv. CODE § 22.2 (West 1982).
56. BLAcK'S LAW DICTIONARY 1010 (5th ed. 1979) ("the brood of an animal belongs
to the owner of the dam"). A dam is "[a] female parent, [especially] of a quadruped."
AMERICAN HERITAGE DICTIONARY 182 (P. Davis ed. 1976) (paperback ed.). The reason
for the rule is that the mother is of little value while pregnant yet must still be cared
for. On a more practical note, the father may be impossible to ascertain. D. FAVRE &
M. LORING, ANIMAL LAW 22 (1983).
57. CAL. CIV. CODE § 732 (West 1982).
58. 3A C.J.S. Animals § 9 (1973).
60. Offspring have also been used as collateral for a loan. See Calva Prods. v. Security
Pac. Nat'l Bank, 111 Cal. App. 3d 409, 412, 168 Cal. Rptr. 582, 583 (1980).
61. CAL. CIv. CODE § 1885 (West 1954). Of course the borrower must "treat it with
great kindness, and provide everything necessary and suitable for it." CAL. CIV. CODE
§ 1887 (West 1954).
62. People v. Stafford Packing Co., 193 Cal. 719, 727, 227 P. 485, 488 (1924) (citations
64. CAL. CONST. art. IV, § 20. The provision establishes the Fish and Game Commission
and Fish and Game districts. Accord CAL. CONST. art. IV § 25 1/2 (repealed
Nov. 8, 1966).
65. See, e.g., Takahashi v. Fish and Game Comm'n, 30 Cal. 2d 719, 728, 185 P.2d
805, 810-11 (1947), rev'd on other grounds, 334 U.S. 410 (1948). The power of the state
to regulate the taking of wild animals has been litigated on many occasions. The state
has extensive power subject only to constitutional limitations. Id. The legislature may
totally prohibit the taking of wild animals and bar any commerce dealing with them.
See, e.g., Ex Parte Kennke, 136 Cal. 527, 529, 69 P. 261, 262 (1902); Ex Parte Maier, 103
Cal. 476, 483, 37 P. 402, 404 (1894).
66. A good place to begin searching for these statute:; is the California Fish and
Game Code. The Code generally covers the taking of mammals, birds and fish which
usually are considered game animals.
One must understand some additional basics regarding the state ownership doctrine
to be truly enlightened as to its ambiguities and constitutional dimension. The doctrine
for many years, in addition to being the framework of state wildlife regulation,
acted to prohibit the federal government from regulating wildlife. Perhaps the key
case setting forth the doctrine is Geer v. Connecticut, 161 U.S. 519 (1896). See also Mc-
Cready v. Virginia, 94 U.S. 391 (1876). In a series of subsequent cases, the Supreme
Court eroded the doctrine, allowing some federal regulation to withstand constitutional
attack. For example, in Missouri v. Holland, 252 U.S. 416 (1920), the Court upheld
the Federal Migratory Bird Act based upon the federal treaty power. Id. at 435.
Finally, in 1979, the Court totally abrogated the doctrine in Hughes v. Oklahoma, 441
U.S. 322, 335 (1979). Nevertheless, state wildlife regulatory schemes still hang onto the
skeleton of the doctrine. More importantly, any research regarding the regulation of
the taking of wild animals must include a thorough search of federal law. For a good
overview of the rise and fall of state wildlife regulation with future predictions, see
Coggins, Wildlife and the Constitution: The Walls Come Tumbling Down, 55 WASH.
L. REV. 295 (1980). In any event, although the federal legislature appears to respect
state regulation of wildlife, it clearly can and will regulate any area it so desires.
On an aside, one must distinguish the public ownership doctrine and the public trust
doctrine which require a state to care for the animals for which it holds title for the
benefit of its citirens. See Qualified Ownership of Falcons, 56 Op. Cal. Att'y Gen. 190,192 n.2 (1973).
67. Kellogg v. King, 114 Cal. 378, 388, 46 P. 166, 169 (1896). The court went on to
say: "when within the provisions of such statute, an individual is as much to be protected
in the enjoyment of his rights in this species of the property as in any other
under the law." Id.
68. CAL. CIV. CODE § 656 (West 1982). Compare Pierson v. Post, 3 Cai. R. 175
(N.Y. Sup. Ct. 1805).
69. See CAL. CIv. CODE § 656 (West 1982).
70. People v. Truckee Lumber Co., 116 Cal. 397, 401, 48 P. 374, 375 (1897).
71. See supra notes 3-10 and accompanying text.
72. Qualified Ownership of Falcons, 56 Op. Cal. Att'y Gen. at 192. Under the Civil
Code there are two types of property, absolute and qualified. CAL. CIV. CODE § 678
(West 1982). One form of qualified property is property with its use restricted. CAL.
CIV. CODE § 680 (West 1982). When the legislature passes laws which restrict wild life
appropriation, they fall under the control rubric of section 680, thus qualifying the
common law right to qualified ownership. Therefore, all statutes which limit appropriation
limit ownership as well.
73. Elliott, The Work of the 1941 Legislature; Personal Property, 15 S. CAL. L.
REv. 218 (1942). The "natural habitat" doctrine has been abrogated as to fur bearing
animals raised on a farm or ranch for commercial pelting purposes. CAL. CIv. CODE
§ 996 (West 1982).
74. Qualified Ownership of Falcons, 56 Op. Cal. Att'y Gen. at 198 (see also cases
cited therein). The opinion goes on to point out that someone who finds such an
animal must return the property pursuant to Civil Code section 2080, or be guilty of
theft under Penal Code section 485. Id. See supra notes 38, 41 and accompanying text.
75. Cf. Pierson, 3 Cal. R. at 175.
76. Qualified Ownership of Falcons,56 Op. Cal. Att'y. Gen. at 192 n.2. This is a
departure from the common law rule which requires possession. See RESTATEMENT OF
PROPERTY § 450, comment g (1944) ("Subject to such paramount authority as may be
asserted by the state, he not only has this power to prevent appropriation by others"
but he may also invalidate any attempt to take possession).
77. RESTATEMENT OF PROPERTY § 450, comment g (1944).
78. See supra note 66.
79. U.S. CONST. art. I, § 8, cl. 3.
80. The fifth amendment provides in pertinent part that: "[n]o person shall . . .
be deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation." U.S. CONST. amend. V.
See generally L. TRIBE, AMERICAN CONSTITUTIONAL LAW (1978).
81. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
82. See supra note 80.
83. 5 U.S.C. §§ 551-559, 701-706 (1982).
84. The tenth amendment provides that: "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people." U.S. CONST. amend. X.
85. BLACK'S LAW DICTIONARY 1041 (5th ed. 1979) (definition of "police power").
86. The original provision enacted in 1872 provided: "Every person who maliciously
kills, maims, or wounds an animal, the property of another, or who maliciously
and cruelly beats, tortures or injures any animal, whether belonging to himself or another,
is guilty of a misdemeanor." See CAL. PENAL CODE § 597 (West 1970) (historical
notes) (emphasis added). Under title 14 of the Penal Code "animal" means "every
dumb creature." CAL. PENAL CODE § 599b (West 1970).
87. CAL. PENAL CODE § 597(b) (West Supp. 1984). See id. § 597(c). The Code contains
some limitations on this provision. Section 599c acknowledges that none of the
statutes in title 14 of the Penal Code (sections 594-625c) are to be construed to invalidate
any "game laws" or laws involving destruction of certain birds. CAL. PENAL CODE
§ 599c (West 1970).
The provision also makes a common exception to cruelty laws by excluding from the
protected classification of animals: "venomous reptile[s]," "animal[s] known as dangerous
to life, limb or property," and animals used in "properly conducted scientific experiments
or investigations performed under the authority of the faculty of a regularly
incorporated medical college or university .. " Id.
Another clause in section 599c has stirred recent controversy. It exempts from the
title 14 killing proscriptions, the "right to kill all animals used for food." Id In 1980, a
Samoan family living in Sacramento, "killed, skinned, and presumably ate their pet
dog." The SPCA commented that there was no state or federal law which prevented
the act provided it was carried out for personal use. See Animals as Property: Eating
Your Pet, ANIMAL RTS. L. REP., Jan. 1981, at 5. Attempts to prohibit such acts have
not been successful. See Animals as Property: Pet Killing, ANIMAL RTs. L. REP., July
1981, at 7.
88. 33 Cal. App. 3d Supp. 1, 109 Cal. Rptr. 59 (1973).
89. Id. at 7, 109 Cal. Rptr. at 62.
90. Id. at 10, 109 Cal. Rptr. at 64.
92. 110 Cal. App. 3d Supp. 1, 168 Cal. Rptr. 105 (1980). The Farley case was decided
in the Appellate Department of San Joaquin County Superior Court. Brian is a
Los Angeles County case.
In Brian, the defendant had left her horses, dogs, cats, goats, and birds in the custody
of her stepfather while she was away. The stepfather, after some time, left the
area and refused to pay the feeding bills. The defendant, stranded with car problems,
attempted to have the animals cared for until she returned but was unsuccessful. She
was charged with neglect the day of her eventual return. Id. at 3, 168 Cal. Rptr. at 106.
93. Id. at 3, 168 Cal. Rptr. at 106. The court noted that the child neglect cases
upon which Farley was decided had been undermined by People v. Peabody, 46 Cal.App. 3d 43, 119 Cal. Rptr. 780 (1975). 110 Cal. App. 3d Supp. at 4, 168 Cal. Rptr. at 107.
Moreover, the judge noted the California Supreme Court's policy of requiring proof of
criminal intent or criminal negligence before one is convicted of a crime. Id.
94. 110 Cal. App. 3d Supp. at 4, 168 Cal. Rptr. at 107 (quoting Peabody, 46 Cal.
App. 3d at 48-49, 119 Cal. Rptr. at 783) (insertion added to reflect holding's applicability
to animal life).
95. CAL. PENAL CODE § 597f (West Supp. 1984).
96. People v. Untiedt, 42 Cal. App. 3d 550, 554, 116 Cal. Rptr. 899, 901 (1974).
97. In dicta, the court stated that simple negligence would support a conviction
thus perpetuating the confusion surrounding the required culpability. Id. at 555, 116
Cal. Rptr. at 901. See also People v. Reed, 121 Cal. App. 3d Supp. 26, 33, 176 Cal. Rptr.
98, 101 (1981).
98. See, e.g., Cruelty: Criminal Prosecutions/Convictions, ANIMAL RTS. L. REP.,
July 1982, at 1, 2. The segment comments on the first animal neglect case ever filed in
Solano County, California. The case involved a Great Dane which was 50 pounds
99. CAL. PENAL CODE § 597f (West Supp. 1984). A 1970 amendment created a distinction
for dogs and cats as well as providing for their conveyance to a veterinarian
when injured. Act of August 4, 1970, ch. 580 § 1, 1970 Cal. Stat. 1155. See CAL. PENAL
CODE § 599e (West 1970) (giving power to police to destroy animals if owner refuses).
100. Carrera v. Bertaini, 63 Cal. App. 3d 721, 725, 134 Cal. Rptr. 14, 16 (1976).
101. Id. at 728, 134 Cal. Rptr. at 18.
102. Id. at 729, 134 Cal. Rptr. at 19. The court held that a hearing on the merits of
the seizure six weeks subsequent to the confiscation did not satisfy due process.
103. Id. at 725, 134 Cal. Rptr. at 16.
104. CAL. PENAL CODE § 597t (West Supp. 1984).
106. Id. See section 5971 for a multitude of care and facility requirements for pet
shops. CAL. PENAL CODE § 5971 (West Supp. 1984).
107. For other provisions dealing with transportation of amimals, see generally CAL.
AGRIC. CODE §§ 21051-21591 (West 1968 & Supp. 1984).
108. CAL. PENAL CODE § 597a (West 1970).
110. Cal. A.B. 214, 1979-80 Reg. Sess. (1979) (emphasis added). See section 597t,
supra note 104, which provides in part: "This section shall not apply to an animal
which is in transit, in a vehicle, or in the immediate control of a person." CAL. PENAL
CODE § 597t (West Supp. 1984).
111. Transporting A Dog or Cat, 62 Op. Cal. Att'y Gen. 708, 708-09 (1979).
112. Id. at 710 (referring to section 599b).
114. Id. The opinion closed by emphasizing that "risk of injury is not sufficient
within itself to render such transporting" a misdemeanor under section 597a. Id. (emphasis
115. Cal. Assembly Final Hist., 1979-80 Reg. Sess. vol. 1 at 202. The bill failed for
lack of support. It was opposed by humane societies and other animal rights groups
which felt more suffering would result in requiring animal restraints than would occur
without them. They felt the animals may become entangled in restraints while trying
to escape after an accident.
116. Cal. Assembly Weekly Hist., 1981-82 Reg. Sess., Aug. 31, 1982, Pt. 3 at 1047.
117. CAL. VEH. CODE § 23116 (West Supp. 1985).
118. Cal. Assembly Daily J., 1981-82 Reg. Sess., Aug. 26, 1982 at 17937 (emphasis added).
See the vote on page 17808, and the amendment on page 17937. The study will be
conducted monthly through 1985.
119. CAL. PENAL CODE § 597b (West Supp. 1984).
120. CAL. PENAL CODE § 597j (West Supp. 1984) ("Any person who owns, possesses
or keeps any cock with the intent that such cock shall be u;ed or engaged by himself
or by his vendee or by any other person in any exhibition of fighting is guilty of a
121. CAL. PENAL CODE § 599a (West 1970). The section applies to other statutes
within title 14. Section 597d sets forth the situations in which an officer may arrest
without warrant violators of sections 597b, or presumably 597.5. CAL. PENAL CODE
§ 597d (West 1970). The provision, as usual, sets forth clear cut categories of who can
exercise the power. Id.
122. The officer may also confiscate the animals in certain conditions. See supra
note 99 and accompanying text.
123. CAL. PENAL CODE § 599aa (West Supp. 1984).
124. Id. The statutory scheme goes even further. Section 597c makes the training
with intent that the animal will be fought a crime, and even covers persons present at
preparations for fights, with the intent to be present at the fight. CAL. PENAL CODE
§ 597c (West Supp. 1984). Section 597i makes the manufacture, possession, or movement
of gashes or slashes (sharp metal spurs attached to legs of game cocks) a misdemeanor.
CAL. PENAL CODE § 597i (West Supp. 1970).
125. 55 Cal. App. 3d Supp. 15, 127 Cal. Rptr. 306 (1975).
126. See supra notes 119 and 124 and accompanying text for these provisions. The
case occurred before section 597.5 was enacted.
127. 55 Cal. App. at 17, 127 Cal. Rptr. at 308.
128. Id. at 17-18, 127 Cal. Rptr. at 308-09. In noteworthy dicta, the court inferred
that 599aa might apply to other Penal Code sections as well. Id.
129. CAL. PENAL CODE § 597.5(a) (West Supp. 1985).
130. Id. Section 4830.5 of the Business and Professions Code requires licensed veterinarians
(see CAL. Bus. & PROF. CODE § 4828 (West Supp. 1984)) which treat animals
they believe were killed or injured in fight to "promptly report the same to law enforcement
authorities." CAL. Bus. & PROF. CODE § 4830.5 (West Supp. 1985).
131. Cruelty: Convictions, ANIMAL RTS. L. RPTR., Jan. 1981, at 5, 6.
132. CAL. PENAL CODE § 597.5(b) (West Supp. 1984).
133. Id. at (c). On a final note, California provides bulls with their own statutory
protection. Section 597m of the Penal Code makes any kind of bullfighting illegal.
CAL. PENAL CODE § 597m (West 1970). Of course the section would not be complete
without an exception for "religious celebrations" or "religious festivals". Id. In fact
the only reported opinion touching on the section is a case in which a promoter sought
to stage a bloodless bullfight by allowing a priest to bless the bulls with a catholic
mass. Then-Attorney General George Deukmejian found that such an event would violate
the law. See Bloodless Bullfights, 64 Op. Cal. Att'y Gen. 151 (1981).
134. CAL. PENAL CODE § 599d (West 1970). See generally CAL. PENAL CODE § 597q
(West 1970) (regarding proof). But see CAL. PENAL CODE § 597r (West 1970) (dealing
with exceptions to the rule).
135. CAL. PENAL CODE § 597g (West Supp. 1984). Another statute limiting an cerowner
or keeper's actions in respect to his animal is Penal Code section 597k prohibiting
the use of a bristle bur or tack bur. CAL. PENAL CODE § 597k (West Supp. 1984).
After much searching, this author still has not been able to find anyone who knows
what these devices are -or what they do. Therefore, in his opinion, the statute, upon
which no reported cases have been decided, may possibly fail for vagueness.
136. CAL. PENAL CODE § 599(a) (West 1970). Another statute that can be classified
as a curiosity is Penal Code section 598. The statute set forth below has never been
cited in a reported case, yet stands on the books today as it has for over 110 years. It
provides "[elvery person who, within any public cemetery or burying-ground, kills,
wounds, or traps any bird, or destroys any bird's nest other than swallows' nests, or
removes any eggs or young birds from any nest, is guilty of a misdemeanor." CAL. PENAL
CODE § 598 (West 1970).
137. But see CAL. PENAL CODE § 599(d) (West 1970) (does not affect "dealers, hatcheries,
poultrymen or stores regularly engaged in the business of selling the same").
138. CAL. PENAL CODE § 599(b), (c) (West 1970). The statute goes even further in
that it requires dealers of these animals to provide for "adequate food, water and temperature
control." Id. § 599(c).
For general provisions dealing with poultry and rabbits, see generally CAL. AGRIC.
CODE §§ 24501-27673 (West 1968 & Supp. 1984).
139. The Agricultural Code's Division 9 deals with animal law generally. The statutory
scheme is quite extensive.
Part 1 of Division 9 deals with animals at large and provides both civil and criminal
sanctions for violators of its many statutes. The criminal sanctions of part 1 include
$100 to $1,000 fines, jail sentences of 10 days to six months, or both. CAL. AGRIC. CODE
§ 16421 (West Supp. 1984). While this penalty may not appear very stiff it should be
noted that each day of sustained violation constitutes a separate offense. Id.
The Code further provides that the Attorney General may upon his own initiative
institute civil proceedings against a violator for damages, not to exceed $500 for each
violation, and injunctive relief. CAL. AGRIC. CODE §§ 16441-16443 (West 1968).
140. CAL. AGRIC. CODE §§ 16801(b)-16802 (West 1968).
141. CAL. AGRIC. CODE §§ 16801(a), 16802 (West 1968).
142. CAL. AGRIC. CODE § 16803 (West 1968).
143. See supra note 139.
144. CAL. AGRIC. CODE § 16804 (West 1968). Part one, chapter four of Division 9
does contain two additional statutes designed to protect society from any "indecent exposure"
of certain animals. Essentially the owner is prohibited from commingling
"stallion[s] or jack[s]" with "jennies or mares" within 400 yards of a populated area unless
the horses are kept within an enclosure which prevents inhabitants from viewing
the animals. See CAL. AGRIC. CODE § 16701 (West 1968). An accompanying section
prohibits owners of a "stallion, bull, boar, ram or male goat" from allowing the animal
to run at large. CAL. AGRIC. CODE § 16702 (West 1968). The sanctions provided by
these laws differ from other penalties found in provision 9. See supra note 139. Violation
of either statute is a misdemeanor and prior to 1983 was punishable by a $5-$20
fine, imprisonment in the county jail for not less than 30 days or both. See CAL.
AGRIC. CODE § 16703 (West 1968) (fine increased to $10-$40 effective January 1, 1984).
Additionally, one must not forget the infamous crime against nature. CAL. PENAL
CODE § 286.5 (West Supp. 1984). Originally the crime, placed on the books in 1872, was
a felony punishable by no less than 5 years in prison: "Every person who is guilty of
the infamous crime against nature, committed with mankind or with any animal, is
punishable by imprisonment in the state prison not less than five years." California
Code Commissioners, THE PENAL CODE OF CALIFORNIA 65 (1872).
When certain acts of sodomy were decriminalized, the legislature relegated this
crime to its own isolated section which provides: "Any person who sexually assaults
any animal protected by Section 597f for the purpose of arou;ing or gratifying the sexual
desire of the person is guilty of a misdemeanor." CAL. PENAL CODE § 286.5 (West
145. See generally CAL. AGRIC. CODE §§ 30501-31508 (West 1968 & Supp. 1984).
146. See CAL. AGRIC. CODE § 30501 (West 1968).
147. CAL. AGRIC. CODE § 30951 (West 1968). See CAL. AGRIC. CODE § 31101 (West
1968) (dogs at large). For the sections on dog tags, see CAL. AGRIC. CODE §§ 30801-
30807 (West 1968 & Supp. 1984). Incorrectly applying a license tag is unlawful. CAL.
AGRIC. CODE § 30952 (West 1968).
148. See CAL. AGRIC. CODE § 30953 (West 1968).
149. See CAL. AGRIC. CODE § 30954 (West 1968).
150. See CAL. AGRIC. CODE § 30955 (West 1968). The circumstances are (1) owner
consent, (2) livestock control, (3) "hunting and sporting purposes" or (4) contests. Id.
See infra note 156 regarding a special provision for violators of this section. See also
CAL. AGRIC. CODE § 31109 (West 1968) (holding tagged dogs on farms).
151. CAL. AGRIC. CODE § 31102 (West 1968).
152. CAL. AGRIC. CODE § 31103 (West 1968).
153. CAL. AGRIC. CODE §§ 31102-31103 (West 1968). The provisions do not apply
within the city limits or when the animal is under owner control, unless actually
caught in a prohibited act. See CAL. AGRIC. CODE § 31104 (West 1968).
154. Owners are responsible for impound fees; failure to pay the fee constitutes an
abandonment. See CAL. AGRIC. CODE §§ 31253-31254 (West 1968).
155. CAL. AGRIC. CODE § 31401 (West Supp. 1984). Prior to 1971, a violation of this
division was a misdemeanor. Today a second violation costs $100.00. Id.
156. CAL. AGRIC. CODE § 31402 (West Supp. 1984). Serious injury occurs when an
animal "must be destroyed" or "may not be profitably sold". Id. Violators of section
30955 may, in the court's discretion, have their sentence stayed if they pay actual damages
to the land owner for his injuries; this precludes any other action for damages.
See CAL. AGRIC. CODE § 30956 (West Supp. 1984). See also CAL. GOV'T CODE § 25803
(West Supp. 1984); CAL. HEALTH & SAFETY CODE § 18601 (West 1984).
157. See CAL. AGRIC. CODE § 31501 (West 1968). See infra notes 206-09, 281-83 and
158. See CAL. AGRIC. CODE § 31505 (West 1968). See ge.nerally CAL. AGRIC. CODE
§§ 31501-31508 (West 1968).
159. See generally CAL. AGRIC. CODE §§ 30651-30656 (West 1968 & Supp. 1985).
160. CAL. HEALTH & SAFETY CODE § 3051 (West 1979). "Statutes which are enacted
for the purpose of eradicating animal diseases detrimental to health and public welfare
come within the police power and 'every reasonable intendment is in favor of their validity,
on the theory that such diseased animals constitute public nuisances.'" Dairy
Cattle, 27 Ops. Cal. Att'y Gen. 384, 385 (1956) (quoting Affonso Bros. v. Brock, 29 Cal.
App. 2d 26, 32, 84 P.2d 515, 518 (1938)).
161. CAL. HEALTH & SAFETY CODE § 100 (West 1979).
162. CAL. HEALTH & SAFETY CODE § 3052 (West 1979). This section covers general
diseases that affect all animals. See CAL. HEALTH & SAFETY CODE §§ 1900-2000 (West
1979 & Supp. 1984) for a separate and distinct quarantine scheme for control of rabies;
the extensive provision provides for the destruction of animals and $1,000.00 fines for
violators of its provisions.
163. CAL. HEALTH & SAFETY CODE §§ 3000-3110 (West 1979).
164. CAL. HEALTH & SAFETY CODE § 3114 (West 1979).
165. See CAL. AGRIC. CODE § 102 (West Supp. 1984).
166. See CAL. AGRIC. CODE § 9561 (West 1968). The provision allows the director to
"establish such quarantine, sanitary, and police regulations as may be necessary to circumscribe
and exterminate any contagious, infectious, or transmissible disease which
affects domesticated animals within the state." Id.
167. The definition of animal is very broad. CAL. AGRIC. CODE § 9502 (West 1968)
(" 'Animal,' 'livestock,' or 'domestic animal,' includes poultry"). Compare section
16302's definition which provides that the term "'animal' includes any domestic bovine
animal, horse, mule, burro, sheep, goat, or swine, or the hide, carcass, or portion of a
carcass of any such animal." CAL. AGRIC. CODE § 16302 (West 1968).
168. CAL. AGRIC. CODE § 9531 (West 1968). See CAL. AGRIC. CODE § 9532 (West
1968) (chapter does not preempt local city and county inspection ordinances).
169. See CAL. AGRIC. CODE §§ 9562, 9564-9565 (West 1968). Depending upon the situation,
the animal may be detained at the place where it is found.
170. See CAL. AGRIC. CODE §§ 9563, 9566 (West 1968).
171. See CAL. AGRIC. CODE §§ 9691-9693, 9696-9700 (West 1968) (specifying violations
of quarantine provisions).
172. CAL. AGRIC. CODE § 9701 (West Supp. 1985) (the fine was raised in 1983 and
173. CAL. AGRIC. CODE § 9569 (West 1968). Hiding the animal or resisting its destruction
is unlawful. CAL. AGRIC. CODE §§ 9694-9695 (West 1968).
174. See CAL. AGRIC. CODE § 9569(d), (e) (West 1968) (power of Director of Agriculture
to destroy animal property in quarantined area).
175. CAL. AGRIC. CODE § 9591 (West Supp. 1984).
176. CAL. AGRIC. CODE § 9595 (West Supp. 1985).
177. CAL. AGRIC. CODE § 9592 (West Supp. 1985).
178. CAL. AGRIC. CODE § 9594 (West Supp. 1984).
179. CAL. AGRIC. CODE § 9593 (West Supp. 1985). However, if an animal is affected
with dourine or is classified as a public nuisance, no indemnity will be provided for
state imposed destruction. See CAL. AGRIC. CODE § 9621 (West 1968).
180. A euthanasic device is an instrument used to kill animals. See CAL. Bus. &
PROF. CODE § 13200 (West Supp. 1984).
181. CAL. PENAL CODE § 597w (West Supp. 1985).
182. Id. See CAL. PENAL CODE § 597x (repealed by Act of July 5, 1984, ch. 281, § 2,
1984 Cal. Stat.-).
183. CAL. PENAL CODE § 597u (West Supp. 1984).
184. CAL. PENAL CODE § 597v (West Supp. 1984).
185. CAL. PENAL CODE § 597y (West Supp. 1984). Recently California enacted a vigorous
enforcement program to verify that euthanasic devices were being properly
maintained. The general provision may be found in the Business and Professions
Code. See CAL. Bus. & PROF. CODE §§ 13200-13206 (West Supp. 1984) (general provisions);
CAL. PENAL CODE § 597z (West Supp. 1985) (power to enter facility). See also
CAL. Bus. & PROF. CODE §§ 12012.1, 12013, 12016 (West Supp. 1984) (injunctive relief,
power to arrest and interference with the sealer).
186. W. PROSSER, LAW OF TORTS 536-38 (5th ed. 1984) (footnotes omitted).
187. Primitive law tended to hold the owner of property strictly liable for the
harm it did. The owner of a slave, an animal, or even an inanimate thing, was
so far identified with his chattel that he was liable, without any fault of his
own, for the damage it might inflict on his neighbors. It is characteristic of
certain stages of development in all legal systems of which we have
knowledge, that he might escape liability by surrendering the harmful agent itself, either to the injured party or to the crown. The present state of the
common law may be said to begin with the disappearance of this "noxal
surrender" and the rule of strict liability for harm done by harmless things.
So far as the responsibility of keepers of animals is concerned, the survival of
the primitive notion of strict liability has been due in part to modern views of
policy. Certain kinds of animals involve an obvious danger to the community,
even if they are carefully kept; . . . [They] can never be regarded as safe.
Those who keep such animals for their own purposes are required to protect
the community, at their peril, against the risk involved. The strict liability is,
in general, co-extensive with the obvious risk.
Id. at 538-39 (footnotes omitted).
188. 41 Cal. 138 (1871).
189. Id. at 139.
190. Id. at 139-40.
191. Id. at 139 (emphasis added).
192. E.g., Opelt v. Al G. Barnes Co., 41 Cal. App. 776, 779, 183 P. 241, 242 (1919).
193. Id. at 776, 183 P. at 241.
194. The owner is imputed with the natural propensities of that particular animal.
Whether an animal is deemed "wild" at all varies from location to location.
195. Again, which animals fall in this group depends upon the community.
196. See infra notes 200-03 and accompanying text.
197. Gooding v. Chutes Co., 155 Cal. 620, 102 P. 819 (1909).
198. Id. at 622, 102 P. at 820.
199. Id. at 624-25, 102 P. at 821. See also Clowdis v. Fresno Flume & Irrig. Co., 118
Cal. 315, 50 P. 373 (1897) (injuries caused by wild bull; same test used as in Gooding).
200. But see Talizin v. Oak Creek Riding Club, 176 Cal. App. 2d 429, 1 Cal. Rptr. 514
(1959) (propensity to hurt human beings is enough).
201. Finney v. Curtis, 78 Cal. 498, 501, 21 P. 120, 120 (1889). See Mann v. Stanley,
141 Cal. App. 2d 438, 296 P.2d 921 (1956) (judgment for the defendant upheld based
upon the finding that defendant had no knowledge of the animal's dangerous propensities).
Some courts use the test: whether the defendant knew of the propensity or
should have known of it.
202. 50 Cal. App. 2d 598, 123 P.2d 560 (1942).
203. Id. at 600-01, 123 P.2d at 562.
204. See Chandler v. Vaccaro, 167 Cal. App. 2d 786, 789, 334 P.2d 998, 1000 (1959).
205. See, e.g., id. (no liability when plaintiff failed to prove owner's prior knowledge
of the dog's vicious nature). As will be seen, a plaintiff who could not show such a
propensity could not recover under any theory.
206. This statute was originally enacted as Act of May 29, 1931 ch. 503, 1931 Cal.
Stat. 1095-96. Dog statutes of this nature are employed in many jurisdictions to resolve
207. CAL. CIv. CODE § 3342 (West 1970). It is important to note that the statute creates
a strict liability cause of action; no propensity or knowledge need be shown.
208. CAL. CIv. CODE § 3342.5(a) (West 1970 & Supp. 1985).
209. CAL. CIv. CODE § 3342.5(b) (West 1970 & Supp. 1985). See also CAL. CIV. CODE
§ 3341 (West 1970) (strict liability for injuries by any animal to certain stock animals;
permissive killing of such animals).
210. 41 Cal. App. 776, 780, 183 P. 241, 242 (1919).
212. See, e.g., Heath v. Fruzia, 50 Cal. App. 2d 598, 602, 123 P.2d 560, 563 (1942)
(owner held liable when shown he knew of his horse's vicious propensity). The same
rule was applied when a four-year-old stuck his hand through the bars of an ape's cage
at a circus and was injured. See Baugh v. Beatty, 91 Cal. App. 2d 786, 205 P.2d 671
213. 51 Cal. 2d 418, 333 P.2d 754 (1959).
214. Id. at 420, 333 P.2d at 755.
215. Id. (emphasis added) (citation omitted). Assumption of the risk depends upon
the "actual or assumed mental capacity of the actor." Greene v. Watts, 210 Cal. App.
2d 103, 105, 26 Cal. Rptr. 334, 336 (1962).
216. Cf. Baugh v. Beatty, 91 Cal. App. 2d 786, 791, 205 P.2d 671, 674 (1949).
217. Id. at 790-91, 205 P.2d at 674.
218. See Buckle v. Holmes, 2 K.B. 125 (1926), 54 ALR 89 (suit against neighbor
whose cat admittedly killed thirteen pigeons and two bantams). Moreover, an owner/
occupier cannot recover for trespassing wild animals.
219. Id. at 128, 54 ALR at 91.
220. See, e.g., Hagen v. Laursen, 121 Cal. App. 2d 379, 381, 263 P.2d 489, 491-92
(1953) (dicta) (dogs are a class of animals which were traditionally permitted to stray).
221. See supra note 209 and accompanying text.
222. Hahn v. Garratt, 69 Cal. 146, 146, 10 P. 329, 330 (1886).
223. Act of Mar. 30, 1850 ch. 49, 1850 Cal. Stat. 131.
224. See Act of May 20, 1915 ch. 397, 1915 Cal. Stat. 636 (repeal of fencing law in all
but six counties). For an explanation of this history, see, e.g., Montezuma Improvement
Co. v. Simmerly, 181 Cal. 722, 186 P. 100 (1919).
225. CAL. AGRIC. CODE §§ 17001-17128 (West 1968 & Supp. 1984).
226. CAL. AGRIC. CODE § 17123 (West 1968). For those sections of Shasta and Trinity
Counties which are excluded from the fencing law, see CAL. AGRIC. CODE §§ 17125-
17126 (West 1968). Importantly, a county board of supervisors for Trinity and Shasta
counties may expand the area exempted by ordinance. See CAL. AGRIC. CODE § 17127
(West Supp. 1984).
Furthermore, any county by ordinance can include their county, or any part thereof,
within the fencing laws requirements. See CAL. AGRIC. CODE § 17124 (West 1968).
227. CAL. AGRIC. CODE § 17122 (West 1968). For a definition of what is considered a
lawful fence under the statutes, see CAL. AGRIC. CODE § 17121 (West 1968). This issue
can provide a defendant in a fencing zone with a good affirmative defense and has in
fact been the subject of much litigation.
228. The possessor must use reasonable care in tending to the animal to avoid liability
for injury or escape, CAL. AGRIC. CODE § 17043 (West 1968), and it is unlawful for
anyone but an authorized inspector to remove the animal from the "taker-up" once the
animal is reduced to possession. CAL. AGRIC. CODE § 17045 (West 1968).
229. Section 17044 prescribes the compensation to be awarded; it should be in accordance
with "the prevailing rates charged by commercial enterprises which feed livestock."
CAL. AGRIC. CODE § 17044 (West 1968) (citing CAL. AGRIC. CODE § 10795 (West
Supp. 1984)). The funds come from public or private sale of the animal or from the
owner. See CAL. AGRIC. CODE §§ 17069, 17092-17093 (West 1968 & Supp. 1984).
230. CAL. AGRIC. CODE § 17041 (West 1968).
231. CAL. AGRIC. CODE § 17001.5 (West Supp. 1984). Regarding the scope of authority,
section 17003 specifically states that the section's provisions do not preempt local
promulgation of regulations or ordinances related to the Estray Act area. See CAL.
AGRIC. CODE § 17003 (West Supp. 1984).
232. CAL. AGRIC. CODE § 17042 (West 1968) provides that this notice must contain:
(a) A description of the animal seized; (b) The marks or brands, if any; (c) The probable
value of the animal; (d) A statement of the date and place where it was taken up
and confined. See also CAL. AGRIC. CODE §§ 17062-17068 (West 1968 & Supp. 1984) (regarding
removal and notice requirements).
233. See CAL. AGRIC. CODE § 17061-17065 (West 1968).
234. CAL. AGRIC. CODE § 17069 (West 1968).
235. CAL. AGRIC. CODE § 17092 (West Supp. 1984). However, it should be noted that
the holding period for animals seized with a value under $225.00 is only 5 days. CAL.
AGRIC. CODE § 17066 (West Supp. 1984).
236. CAL. AGRIC. CODE § 17092.
237. CAL. AGRIC. CODE §§ 17092-17093 (West 1968 & Supp. 1984). Strict compliance
may be required by the inspector/director with these statutory provisions so as not to
violate due process. Cf. Aguiar v. Souders, 23 Cal. App. 2d 122, 127, 72 P.2d 196, 199
238. CAL. AGRIC. CODE § 17095 (West Supp. 1984).
239. CAL. AGRIC. CODE § 17092 (West Supp. 1984).
240. CAL. AGRIC. CODE § 17096 (West 1968).
241. See, e.g., William v. River Lakes Ranch Dev. Corp., 41 Cal. App. 3d 496, 502,
116 Cal. Rptr. 200, 204-05 (1974) (plaintiff was attacked by a trespassing bull).
244. For a list of cases, see id. at 504-05, 116 Cal. Rptr. at 206.
245. Id. at 506-07, 116 Cal. Rptr. at 207-08.
246. Id. at 504, 116 Cal. Rptr. at 206.
247. Id. at 508, 116 Cal. Rptr. at 209.
248. Fox v. Koehnig, 190 Wis. 528, 534-35, 209 N.W. 708, 710 (1926) (and citations
therein), overruled, Templeton v. Crull, 16 Wis. 2d 416, 114 N.W.2d 843 (1962). See
Galeppi Bros. v. Bartlett, 120 F.2d 208, 210 (9th Cir. 1941).
249. 28 Cal. 618 (1865).
250. Id. at 622-23.
251. Id. at 626. See Clowdis v. Fresno Flume & Irrig. Co., 118 Cal. 315, 50 P. 373
(1897) (upholding Ficken). Compare Roberts v. Griffith Co., 100 Cal. App. 456, 280 P.
199 (1929). The court stated:
While there is a conflict of authority on the subject in the various jurisdictions,
we are satisfied that the better rule is that it may be actionable negligence
to permit horses or mules to run at large and untended on the streets of
a municipality regardless of their vicious character or of scienter.
Id. at 457, 280 P. at 200.
252. CAL. AGRIC. CODE § 16902 (West 1968).
253. Id. See Summers v. Parker, 119 Cal. App. 2d 214, 217, 259 P.2d 59, 61 (1953)
(suggesting plaintiff need not show exact point where animal escaped).
254. The first portion was enacted in substantially its present form in 1923
(Stats. 1923, chap. 266, pp. 517, 565) as section 151 of the Motor Vehicle Act.
In 1931, the statute was in part relied upon for a holding that the doctrine of
res ipsa loquitur should be invoked in favor of an automobile occupant injured
in a collision with an animal on a highway (Kenney v. Antonetti, 211 Cal. 336
[295 P. 341]). In 1933 the statute was incorporated in the Agricultural Code as
Section 423, and a provision was added that in a collision with a domestic
animal on a highway, there should be no "presumption" of negligence (Stats.
1933, chap. 25, pp. 60, 129, § 423). The Supreme Court, in 1936, pointed out
that the doctrine of res ipsa loquitur raises only an inference and not a presumption
of negligence. Thus, it was held, the 1933 amendment did not bar
application of res ipsa loquitur (Anderson v. I.M. Jameson Corp., 7 Cal. 2d 60
[59 P.2d 962]). That case dealt with a collision which had occurred in 1933. In
1935, the statute was amended to provide, as it now does, that there should be
no presumption or inference of negligence of the livestock owner from the
fact of collision of a vehicle and an animal (Stats. 1935, chap. 265, p. 951). Anderson,
decided after the 1935 amendment, indicated that it was designed to
eliminate the doctrine of res ipsa loquitur in this type of case. The same view
has since been expressed (Jackson v. Hardy, 70 Cal. App. 2d 6, 15 [160 P.2d
161]; Galeppi Bros. v. Bartlett, 120 F.2d 208, 210; and :;ee Summers v. Parker,
119 Cal. App. 2d 214, 216 [259 P.2d 59]). The conclusion that the statute as
amended is designed to bar application of the doctrine of res ipsa loquitur
Pepper v. Bishop, 194 Cal. App. 2d 731, 733-34, 15 Cal. Rptr. 346, 348 (1961).
255. CAL. AGRIC. CODE § 16904 (West 1968).
256. See Anderson v. I.M. Jameson Corp., 7 Cal. 2d 60, 59 P.2d 962 (1936).
257. See, e.g., Pepper v. Bishop, 194 Cal. App. 2d 731, 15 Cal. Rptr. 346 (1961).
258. CAL. CIV. CODE § 1714(a) (West Supp. 1984).
259. See, e.g., Jackson v. Hardy, 70 Cal. App. 2d 6, 14, 160 P.2d 161, 165 (1945)
("There is no reason for exempting cattle owners from the same duty applicable to
other people to use 'ordinary care or skill in the management of [their] property.' ").
Several other sections of the Code deal with animals and roadways. See CAL. AGRIC.
CODE § 16903 (West 1968) (driving cattle at night); CAL. AGRIC. CODE § 16901 (West
1968) (driving cattle on railroad right of ways); CAL. STS. & HY. CODE § 105 (West
1968) (allowable locations of stock trails parallel or upon highways). An odd statute
allowing a felony conviction of an owner if his animal kills another person due to the
owner's negligence is CAL. PENAL CODE § 399 (West 1970).
260. 78 Cal. 498, 21 P. 120 (1889).
261. See id. at 502, 21 P. at 120.
262. Id. See Clowdis v. Fresno Flume & Irrig. Co., 118 Cal. 315, 50 P. 373 (1897).
Porter v. Thompson, 74 Cal. App. 2d 474, 477-78, 169 P.2d 40, 42-43 (1946) (liability to
263. See, e.g., Barnett v. La Mesa Post No. 282, American Legion Dept. of Cal., 15
Cal. 2d 191, 99 P.2d 650 (1940).
264. See Lindley v. Knowlton, 179 Cal. 298, 176 P. 440 (1918), where a cause of action
for negligent infliction of emotional distress stood on its own and without a showing
of impact. The court found for the plaintiff when it was shown a 165-pound
chimpanzee attacked her children necessitating her immediate response; she successfully
contended with the beast. Later she developed nervousness, etc. The court relied
upon common carrier cases to allow the recovery absent contemporaneous physical injury.
Id, at 299, 176 P. at 441.
265. See, e.g., Baugh v. Beatty, 91 Cal. App. 2d 786, 791, 205 P.2d 671, 674 (1949)
(wild animals presumed to be vicious).
267. Chandler v. Vaccaro, 167 Cal. App. 2d 786, 789, 334 P.2d 998, 1000 (1959).
268. See Hagen v. Laursen, 121 Cal. App. 2d 379, 382, 263 P.2d 489, 491 (1953).
270. Civil Code section 3342 states that it is only applicable when the victim is on
property because of duty or invitation, express or implied. CAL. CIV. CODE § 3342
(West 1970). See supra note 207 and accompanying text.
Moreover, section 3342.5(d), (g) of the Civil Code states:
(d) Nothing in this section shall authorize the bringing of an action pursuant
to subdivision (b) which is based on a bite or bites inflicted upon a trespasser
(g) Nothing in this section shall be construed to affect the liability of the
owner of a dog under Section 3342 or any other provision of the law.
CAL. CIV. CODE § 3342.5(d), (g) (West Supp. 1985) (emphasis added). Taken together
these two statutes (sections 3342 and 3342.5) appear not to allow a trespasser to recover
damages based on the strict liability statutes; they do demonstrate the legislature's perpetuation
of the trespasser classification. In any event ont might still try a cause of
action under common law strict liability theory if they feel the dog had vicious
271. See CAL. CIV. CODE § 1714 (West Supp. 1984).
273. Fernandez v. Consolidated Fisheries, Inc., 98 Cal. App. 2d 91, 96, 219 P.2d 73, 76
274. Id. at 97, 219 P.2d at 77.
275. 158 Cal. App. 2d 770, 323 P.2d 202 (1958).
276. Id. at 774, 323 P.2d at 205.
277. Id. at 775, 323 P.2d at 205.
278. 69 Cal. 2d 108, 443 P.2d 561, 70 Cal. Rptr. 97 (1968).
279. Mark v. Pacific Gas & Elec. Co., 7 Cal. 3d 170, 176, 496 P.2d 1276, 1279, 101 Cal.
Rptr. 908, 911 (1972).
280. Id. at 177, 496 P.2d at 1280, 101 Cal. Rptr. at 912 (citation omitted).
281. 44 Cal. App. 3d 504, 118 Cal. Rptr. 741 (1975).
282. Id. at 508, 118 Cal. Rptr. at 744.
283. Subsequent to the attack on plaintiff, the tenant ignored neighbor warnings to
get rid of the dog. Four months later the dog attacked the tenant's daughter and was
euthanised. Id. at 509, 118 Cal. Rptr. at 744.
284. Id. at 509 n.2, 118 Cal. Rptr. at 744 n.2.
285. Id. at 514, 118 Cal. Rptr. at 748. Specifically the court held: "we believe public
policy requires that a landlord who has knowledge of a dangerous animal should be
held to owe a duty of care only when he has the right to prevent the presence of the animal on the premises." Id. at 512, 119 Cal. Rptr. at 740. This rule appears to be
based upon a few New York decisions, Rowland v. Christian's interpretation of California
Civil Code section 1714, 69 Cal. 2d 108, 119, 443 P.2d 561, 568, 70 Cal. Rptr. 97, 104
(1968), and cases which hold (inter alia) a lessor liable to third parties if at the time
the lease was made or renewed it was known the tenant would use the premises to
start a public nuisance. Id. at 511, 118 Cal. Rptr. at 746.
286. Id. at 514, 118 Cal. Rptr. at 748.
287. 123 Cal. App. 3d 262, 176 Cal. Rptr. 473 (1981).
288. Id. at 263-64, 176 Cal. Rptr. at 474-75.
289. Id. at 266-67, 176 Cal. Rptr. at 476. The court said:
Needless to say, the consequences upon the community of imposing a duty as
suggested by plaintiff would be totally unreasonable: the owner of a dog
would in effect be required to keep "man's best friend" in a place where it
could neither be seen nor heard by members of the public passing by.
Id. at 266, 176 Cal. Rptr. at 476.