The Legal Status of Animals as Property
Frustratingly, the law throughout most of the world and within the United States still views animals as chattel, or property. While our law firm and our sister nonprofit, Expand Animal Rights Now, are actively working to change the law for the betterment of our animal companions and their advocates and to increase and expand available monetary damages, California still treats all domestic animals as personal property.
Thus, legal disputes over animals are considered property disputes, not personal injury cases, as a general matter. For instance, when custody matters arise in family court proceedings—in the context of a marital dissolution or similar action—the law considers the placement of the animal as a property determination. Often, these cases are not addressed with the urgency required, and the emotional toll of the cases is easily overlooked. (Some courts are beginning to supplement property determinations with considerations of the animal’s best interests, but the embracement of this practice has been slow.)
The property status of animals also impacts damages in animal cases; they are unfortunately limited, which can make pursuing these cases cost-prohibitive for most people. In custody cases that also involve injuries to animals, out-of-pocket costs are the most easily recoverable monetary damages. These include the costs of veterinary care (or any other cost to “repair” the “damage” to the “property,” as the law frames it) and the costs of future care (again, framed in terms of “repairing the property”). Allowing a pet owner to recover the reasonable costs of the care and treatment of an injured pet reflects the basic purpose of tort law: to make the plaintiff as close to whole again as possible (see Martinez v. Robledo, 210 Cal. App. 4th 384, 390 (2012)).
If the animal passes away, one can recover damages for “replacement value.” Our cherished companions can never be replaced, but the law is quite behind here and looks at fair market value. There are some exceptions to this that can increase the amount of damages, including the idea of special value, but the application of those exceptions is still limited.
Finally, in some egregious cases, there may be a reason to pursue punitive damages. In California, there is a special code section that allows for punitive damages for injuries to animals. California Civil Code Section 3340 states, “For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given.”
We often pursue punitive damages in non-custody cases, but in tragic custody cases where an animal has been injured or killed, it may be worthwhile to seek punitive damages as well, although this has not been the norm historically.
Acknowledging the Emotional Value of Companion Animals
Increasingly, courts are beginning to recognize the emotional value of companion animals. Since 1872, for example, California law “has recognized . . . that animals are special, sentient beings, because unlike other forms of property, animals feel pain, suffer and die” (Martinez v. Robledo, 210 Cal. App. 4th at 392).
As California’s high court long ago recognized regarding dogs, “there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt” (Johnson v. McConnell, 80 Cal. 545, 549 (1889)). “We have come a long way from the old common law concept of a dog not even being considered property. Not only is he more than property today, he is the subject of sonnets, the object of song, the symbol of loyalty. Indeed, he is man’s best friend” (Katsaris v. Cook, 180 Cal. App. 3d 256, 270 (1986)).
In California, case law now explicitly allows for the recovery of emotional distress damages in certain animal cases (see Levy v. Only Cremations for Pets, Inc., Cal. App. 5th 203, 214 (2020); Berry v. Frazier, 90 Cal. App. 5th 1258 (2023)). Courts are recognizing that animals are at least a special category of property.
While generally, no mental or emotional damages are available for breach of contract cases, there are two exceptions to this general rule: (1) when the emotional distress caused by the breach is accompanied by a physical injury or (2) when the breach is of such kind that serious emotional disturbance is a particularly likely result (particularly relevant for a custody matter) (Only Cremations for Pets, Cal. App. 5th 203). Also, emotional distress damages are available for intentional torts, which may be applicable to a custody case where one alleges the intentional tort of conversion (Berry, 90 Cal. App. 5th 1258).
Thus, in California, emotional distress damages are available when the actions extend beyond negligence. And this is a trend we are seeing throughout the country.
In custody cases, in particular, emotions run high. Legal professionals must keep in mind that these disputes are fueled by emotions and the emotional bond with an animal. It may be appropriate and authorized for one to seek damages for emotional distress. Use this to your advantage when seeking the return of the animal. Explain in declarations the unique bond between your client and the animal.
Ownership Disputes Over Animals, Generally
As the saying goes, possession is nine-tenths of the law. The party in possession of the animal is in a far superior position vis-à-vis court proceedings. The onus is usually on the person who wishes to obtain possession of the animal to file suit. As discussed below, there are limited options for seeking the recovery of an animal: small claims court and civil court via a replevin or writ of possession application.
One can transfer their ownership of an animal by gifting the animal to a third party, by relinquishing the animal to an animal shelter (or veterinarian, kennel, or similar facility), by abandoning the animal in a public place, or by failing to claim a lost animal after the applicable holding period.
When an animal is abandoned at a facility, most states require that the facility contact the owner and notify them as to how to reclaim the animal. (The law may require the facility then to turn the animal over to an animal shelter.)
What happens when one finds a lost animal? In short, if the person wants to keep the animal, they needs to make all reasonable efforts to locate a lost animal’s owner.
Reasonable efforts may include posting on social media, posting on lost pet websites, contacting local shelters or rescues, putting up flyers, canvassing the neighborhood, etc.
When an animal lacks identification, one will have an easier time transferring title, as the animal is considered abandoned.
How do courts view these cases? Courts often look at all the circumstances: How did one come into possession of the animal? What expenses for the animal or costs for care has the party paid? Who is registered on the microchip or other documents as the owner?
In our experience, police and animal control tend to respond to custody disputes by explaining that these are civil matters. In other words, they tend not to get involved without a court order.
Guidance for Lawyers Representing Clients Seeking to Regain Custody
In representing clients seeking to regain custody of their pet, you must first keep in mind the applicable statute of limitations. A lawsuit must be filed within the deadline, or your client will be barred from pursuing these claims in court.
In California, the most common causes of action in custody cases, for example, have the following deadlines:
- Breach of oral contract: two years from the date of breach for an oral contract and four years for a written contract.
- Intentional infliction of emotional distress: two years from the incident.
- Conversion: three years from the date of damage/loss.
Further, the longer your client waits to pursue a custody matter, the less likely a court will be to think that the matter is urgent and/or that the animal should be returned on an emergency basis.
It often makes sense to try to resolve these matters informally before pursuing litigation. Start with a call to the opposing party and/or a representation letter to try to resolve the matter quickly and amicably. Sometimes, it is simply not possible to resolve the case, especially when emotions are involved—as they always are when it comes to companion animals. If the case does not settle, discuss with your client the pros and cons of litigation (either in small claims court or in civil court, as applicable).
Small Claims Court
In California, small claims court allows your client to recover damages of up to $12,500, has a small filing fee (approximately $75 instead of the civil court’s $435 fee), is a much cheaper and quicker means of obtaining a resolution, and is less formal. Your client will not need an attorney in small claims court (in fact, attorneys are not allowed in small claims court except with small claims appeals).
There are, however, some drawbacks to small claims court in general and for custody matters more specifically. First, in California, there is no discovery in small claims court. Your client can only subpoena records to be produced at trial or subpoena a witness to attend trial; he or she cannot issue written discovery requests or take depositions. Second, only the defendant can appeal in small claims court (at least in California).
We have seen many clients have success in custody matters in small claims court. But it is also often the case that small claims judges do not feel they can make “custody” or visitation decisions with respect to animals and instead will simply decide if one party is entitled to any monetary damages (i.e., compensation).
Moreover, in California, small claims courts are not authorized to issue injunctive relief. California Code of Civil Procedure Section 116.220 explains a small claims court may issue “an injunction or other equitable relief only when a statute expressly authorizes a small claims court to award that relief.” But, “the court may grant equitable relief in the form of rescission, restitution, reformation, and specific performance, in lieu of, or in addition to, money damages” (id.). This means that judges in small claims court can issue relief related to a contract. As such, we only recommend small claims court to clients who have a clear oral or written (and sometimes implied) contract related to the ownership or custody of an animal.
Thus, there are risks to litigating these matters in small claims court given the limitations on the small claims court’s ability to issue injunctive relief and the fact that the plaintiff cannot appeal.
Civil Court
Civil court is more formal, and your client can seek a higher damages award (for instance, if your client alleges emotional distress or the like, depending on the circumstances of the case). But the process takes much longer and is much more expensive.
In custody cases, our ultimate goal is not commonly monetary compensation but the return of the animal. We generally recommend civil court and the filing of a writ of possession, which is a pre-trial motion to obtain custody of the “property” pending trial. We have had success in filing writs of possession and find that the cases will often settle in a satisfactory manner either before or after that writ of possession hearing. But there is no guarantee of success with a writ, especially in cases of potential joint ownership.
In civil court, too, one is generally not able to obtain a visitation order. Because of the legal status of animals, courts are generally not amenable to visitation or custody orders.
A writ of possession is issued as a provisional remedy in a cause of action for claim and delivery, also known as replevin. To prevail on an application for writ of possession, a plaintiff must establish (1) a right to immediate possession of the animal and (2) the wrongful detention of the animal by the defendant.
California Code Civil Procedure Section 512.010 provides that the plaintiff must prove:
- that he or she is entitled to the property claimed;
- that the property is being wrongfully detained by the defendant;
- that the plaintiff has provided a particular description of the property and a statement of value; and,
- that there is probable cause to believe that such property is located at the listed location.
Individuals fail to recover an animal in the writ stage if they cannot prove the right to possession of the animal to the exclusion of the other party. In other words, when an animal is “jointly owned,” a writ may not succeed.
When there is a real possibility that the defendant would further conceal or transfer the animal to prevent the plaintiff from recovering possession, seek a temporary restraining order in addition to the writ, prohibiting the defendant from transferring, concealing, destroying, or removing the animal in such a way that would make the animal less available to seizure. You should request this order remain in effect until the property is seized.
It may also be worth seeking a preliminary injunction as alternative relief, especially in joint custody cases or cases when ownership is not as clear-cut. When deciding whether to issue a preliminary injunction, a trial court will evaluate (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff is likely to sustain if the injunction were denied, as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued.
As a practice tip, note that a preliminary injunction may be granted solely on affidavits—the court does not have to hear testimony from witnesses at the hearing (see, e.g., Cal. Civ. Proc. Code § 526(a)(2)). You should still offer the testimony of your client and witnesses at the hearing. Include a declaration from your client and declarations from supporting witnesses who can testify to the bond between your client and the animal, ownership, any abuse, and anything else relevant to obtaining a writ, temporary restraining order, or preliminary injunction.
In civil court, it is also important to keep in mind that custody cases can become expensive quickly as the initial pleadings that must be filed with the court are extensive—it is almost like putting on a mini-trial on paper at the very outset.
Considerations When Pursuing Custody
There are many considerations when determining whether and how to pursue an animal custody matter. The legal status of animals as property plays a significant role in how these cases are handled by the courts, along with potential damages, but the emotional component of these cases cannot be ignored. We hope that, in years to come, the law will evolve to more accurately reflect how many of us view animals: as members of our family. For more information on custody matters, we invite you to reach out to our office at any time.
