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March 2012

San Diego Team Secures Affirmation of Summary Judgment in Veterinary Matter

Jan Buddingh, Jr. and Kenneth Perri of the Tort Litigation Practice Group were instrumental in convincing an appellate court to affirm their successful motion for summary judgment filed on behalf of a veterinarian client in the recently published decision of Scharer v. San Luis Rey Equine Hospital, Inc., et al. (D057707).  Plaintiff in that case alleged that the defendants, including Gordon & Rees's veterinarian client, committed malpractice that lead to the death of her recently purchased dressage horse following elective ovarian surgery.

Plaintiff sued for damages arising from the death of her horse but believed that the claims against the defendants were governed by California's Medical Injury Compensation Reform Act (MICRA).   Her attorney sent pre-litigation notice pursuant to California Code of Civil Procedure (CCP) Section 364.  Relying on the tolling provisions of that code section, her lawsuit was filed 19 days after the one year anniversary of the death of her horse, notwithstanding the fact that CCP Section 340(c) specifically imposes a one year statute of limitation upon claims for injury to or death of an animal caused by veterinary malpractice.

Division One of the Fourth District Court of Appeal confirmed that when analyzing the applicability of CCP Section 364 to veterinarians, who are listed as professionals under MICRA, one must look at the nature of the damages sought because CCP Section 364 applies only to claims for personal injury or wrongful death.  The court held that actions for veterinary malpractice are actions for property damage because animals are personal property.  In making this ruling, the court disagreed with dicta in the case of Williamson v. Prida which states that the statute of limitations in a veterinary malpractice action is the same as the statute of limitations in a medical malpractice case.  The appellate court also held that the requirement of pre-litigation notice contained in CCP Section 364 does not constitute a "remedy", therefore defeating plaintiff's claim of equitable tolling based upon her attorney providing such notice.


Jan K. Buddingh
Kenneth S. Perri