Dog Rescue Group Prevails Over Foster Caregiver to Compel Spaying Dog

By Tom McCurnin
Barton, Klugman & Oetting

Bode Ace Menkin

Court of Appeals Does Some Legal Gymnastics to Force Dog
Owner to Spay Adopted Pet

Well, it’s a slow legal news day and I know how much Kit loves dog rescue organizations. I was involved with one for two years, rescuing 34 Labrador Retrievers through my home. So, when a dog rescue legal case came along, I knew it was time to put pencil to paper.

Today’s case is Take Me Home Rescue v. Luri, 2012 WL 3727604 (Cal. App. 2012). There, the rescue organization saved a deaf Boxer and the Dog was placed in temporary foster care with defendant Erika Luri for temporary foster care. The organization’s web site stated that “All of our animals are spayed or neutered, brought up-to-date on all shots and are micro-chipped.” Take Me Home explained to Ms. Luri that the Dog could not be placed for adoption until she was spayed. Ms. Luri agreed that the Dog would be spayed as soon as she was healthy enough. Luri signed Take Me Home’s temporary foster care agreement. The foster care agreement does not require Luri to spay the Dog, but instead specifies instructions for the dog’s care.

Ms. Luri discovered that the Dog was athletic and decided to train the Dog as an agility dog. Ms. Luri discovered that spaying or neutering a dog might interfere with the Dog’s agility skills. Ms. Luri applied to the City of Los Angeles for an intact license for the Dog that exempted her from spaying based upon the Dog’s training as an agility dog. Over the next few months, Ms. Luri and Take Me Home’s staff exchanged barbs over whether she had agreed to have the Dog spayed. She denied that oral agreement.

Take Me Home filed suit against Ms. Luri and sought a preliminary injunction to require her to spay the dog. The trial court granted the injunction. One of the chief reasons for granting the injunction was the fact that the Orange County Dog Shelter requires the foster organizations to spay every dog, and thus, Take Me Home would be in breach of their agreement with the County.

On appeal, the California Court of Appeal affirmed,
basing its decision on two legal points

First, the Court held that the oral agreement to spay was enforceable. How the Court got around legal prohibition of an integration clause (prohibiting oral agreements) is a fascinating judicial exercise of gymnastics. The Court of Appeal noted that foster care agreement did not include the material term that the Dog as a shelter dog, would either be spayed as required by Food and Agriculture Code § 30503 prior to adoption, or returned to Take Me Home. However, as Ms. Luri admitted, the parties separately orally agreed that the Dog would be spayed as soon as possible. Thus, the Court concluded, the foster care agreement did not contain the entire agreement of the parties, and was only partially integrated. It didn’t help Ms. Luri’s case that she was caught giving two different stories as to whether there was an agreement to spay.

Second, and this was important to me, Take Me Home apparently has an agreement with the County where they are required to spay every dog they receive and they would be in breach and possibly placed out of existence as a rescue organization if the Dog was not spayed. The Court noted that “Take Me Home’s entire existence depends on its ability to place pets that it obtains from shelters in adoptive homes that spay the dogs.”

I’m not sure the Court made the correct legal decision here with the stretches in the contract analysis— but the Court certainly did the right thing for dogs and pet adoption organizations everywhere.

What this case does demonstrate that if one goes into Court as the good guy, many judges, and perhaps Courts of Appeal, will bend over backwards to do the right thing.

(It also goes to show that old saying, “Too much justice is injustice.” Kit)

Tom McCurnin
Barton, Klugman & Oetting
350 South Grand Ave.
Suite 2200
Los Angeles, CA 90071
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Visit our web site at www.bkolaw.com

Dog Rescue Case:
http://leasingnews.org/PDF/DogRescueCase.pdf