Southern California Equestrian Directory

EQUESTRIAN QUESTION FORUM by Lisa L. Lerch, Esq.

I had an equine mortality insurance policy in place, but when I submitted my claim after the horse was euthanized, the claim was denied. Why would the insurance company deny my claim?

The two most common reasons for mortality claim denial are late notice or failure to secure consent for intentional destruction (euthanasia). A mortality policy typically insures your horse’s life subject to the policies particular terms and conditions. A policy is essentially a contract between you and your insurance company and your failure to abide by the terms of your contact i.e. proper notice and/or consent will result in a denial of coverage.

The issue of untimely notice is very common. In the event of an illness or death, the last thing a horse owner thinks to do is call his insurance company. However, mortality policy language often reads as “subject to immediate notice” of accident or illness. The issue becomes what constitutes “immediate notice”. The courts have determined that immediate notice is notice that allows the insurer an opportunity to investigate a cause of illness or death. An opportunity to investigate helps to prevent intentional injury or accident and allows the insurer a chance to mitigate its costs by seeking additional opinions as to care.

Failure to seek consent is also a common reason for denial. Equine mortality policies prohibit the intentional destruction of the insured equine unless the destruction falls within a specified exception under the policy. Common sense would dictate that if the horse is suffering there isn’t time to deal with insurance; however, make the time and obtain consent as it is not worth risking denial of coverage. Be aware that even in the event your veterinarian certifies that the horse was suffering and immediate destruction was necessary for humane reasons, the insurer may still deny your claim if it is determined that failure to obtain consent prejudiced the insurer.

In the event the insurer and the horse owner disagree as to whether the horse should be euthanized, the insurer will look to the guidelines set forth by the American Association of Equine Practitioners (AAEP). The most recent guidelines published in 2011 read:

The AAEP recommends that the following guidelines be considered in evaluating the need for humane euthanasia of a horse. The attending veterinarian is often able to assist in making this determination, especially regarding the degree to which the horse is suffering. It should be pointed out that each case should be addressed on its individual merits and that the following are guidelines only. It is not necessary for all criteria to be met. Horses may be euthanized at an owner’s request for other reasons, as the owner has sole responsibility for the horse’s care. Prior to euthanasia, clear determination of the insurance status of the horse should be made as this policy constitutes a contract between owner and insurance carrier.

In accordance with AVMA’s position on euthanasia of animals, the AAEP accepts that humane euthanasia of unwanted horses or those deemed unfit for adoption is an acceptable procedure once all available alternatives have been explored with the client. A horse should not have to endure conditions of lack of feed or care erosive of the animal’s quality of life. This is in accord with the role of the veterinarian as animal advocate.

The following are guidelines to assist in making humane decisions regarding euthanasia of horses:

• A horse should not have to endure continuous or unmanageable pain from a condition that is chronic and incurable.

• A horse should not have to endure a medical or surgical condition that has a hopeless chance of survival.

• A horse should not have to remain alive if it has an unmanageable medical condition that renders it a hazard to itself or its handlers.

• A horse should not have to receive continuous analgesic medication for the relief of pain for the rest of its life.

• A horse should not have to endure a lifetime of continuous individual box stall confinement for prevention or relief of unmanageable pain or suffering.

To ensure that your claims are not denied it is imperative to carefully review the terms of your policy and act accordingly. In the event your horse is in an accident or has an illness that results in its intentional destruction without timely notice or consent at the very least obtain your veterinarian’s certification of the necessity of the destruction for humane reasons as well as a postmortem and necropsy examination. You can request that the insurer waive the policy requirements due to exigent circumstances if you are able to show that the insurer was not prejudiced by the lack of notice or consent.

If you would like more information on this or other topics, please feel free to visit our website www.legalequestrian.com or contact our office.

This article is meant to provide general information only and is not intended to constitute legal advice. The information in this article is not intended to establish an attorney-client relationship between attorney and reader. The contents of this article are not a substitute for seeking the advice of legal counsel.

Q: I relied on my trainer to help me sell my mare. I told her I would like to get $45,000.00 for her and she agreed that in her opinion that was a fair price. She ultimately was able to sell the mare to one of her other clients and I received $40,000.00 for the sale of the horse. I was happy with the transaction until the new owner contacted me on Facebook and I found out she purchased the horse for $60,000.00. Apparently, my trainer pocketed a $20,000.00 commission. I thought my trainer was doing me a favor by helping me sell my horse. I had no idea the horse sold for that amount and I never would have paid her a $20,000.00 commission. What can I do now?

I often caution beware the trainer who offers to "help" you sell your horse. For so many of us our trainers become the center of our equine universe. They are our experts we turn to when making major decisions regarding the well-being of our horses. Of course, when we need to sell our horse, we happily turn to the trainer who has offered to help and we rarely use a written agreement.

Unfortunately, your scenario is all too common in the horse industry. California's recently modified legislation, Business and Professions Code section 19525, seeks to prevent this particular fraudulent behavior. This code section requires complete transparency in all equine sales, purchases, or transfers as they relate to a horse of any breed used for racing or showing, including prospective racehorses, breeding prospects, stallions, stallion seasons, broodmares, yearlings, or weanlings, or any interest therein in an attempt to avoid fraud and nondisclosure . This law applies to any horse except maybe a gelding trail horse that will never set hoof in any type of show ring. Given the narrow exclusion, it is simply easiest to apply this code section to all horse transactions even if you are selling your gelding trail horse.

The code requires a written bill of sale or other acknowledgement of purchase stating the purchase price signed by both buyer and seller or their agents. Dual agency (acting on behalf of the buyer and seller) is unlawful under this law without the prior knowledge and written consent of both the buyer and seller. Further, it is unlawful for any agent, whether acting for seller or buyer or both to receive in excess of $500.00 worth of compensation, fees, gratuities, or other items of value, related directly or indirectly to the transaction unless, the parties fully disclose the value in writing to the buyer or seller for whom the agent is working. Finally, both the buyer and seller must consent in writing to the agent's compensation.

In your set of facts, your trainer was functioning as a dual agent and failure on her part to obtain your written consent and buyer's written consent to her commission payment has resulted in her potential liability for extensive damages. The code provides that any person injured by violation of this law is able to recover treble damages or three times the amount from the person violating this code section. In your case, potentially $60,000.00.

One final note to consider, as this code section does not allow for attorney's fees and costs, parties should include a provision in the written agreements allowing for reasonable attorney's fees and costs, otherwise it may not be cost effective to litigate even on a $60,000.00 claim.

If you have further questions regarding this issue, please feel free to contact our office at 949-264-1464 for further information or visit us on-line at www.legalequestrian.com .

Enforcement of an ordinance regarding commercial use of a public use horse arena.

Q: The city I live in is turning a blind eye and failing to enforce an ordinance regarding commercial use of a public use horse arena. Does the city have any liability exposure for failure to enforce a law?

In order to determine whether the city has any duty to enforce a law, it first must be determined what laws are in place that may address the issue of commercial use of public property. A review of the local ordinances can quickly determine whether there is a law in place that the city is required to enforce. Typically, commercial activities affect the type of insurance coverage available in the event of an injury or property damage. One of the purposes of city ordinances requiring a permit for commercial use is to ensure the proper insurance is in place often naming the city or county as an additional insured. If it appears that, the city is failing to enforce a law it may be subject to liability for its failure to act.

California Government Code section 818.2 states, “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” [emphasis added] It would appear on its face that this code section would remove liability from a city if there were an injury while a trainer was conducting business on public property; however, Cal. Gov. Code section 815.6 imposes liability upon public entities for failure to exercise reasonable diligence to comply with a mandatory duty imposed by law. The court determined that Cal Gov. Code section 818.2, which provides immunity for damages caused by a public entity’s failure to enforce a law, did not prevent liability for breach of a mandatory law enforcement duty.

The next step is to determine whether the law in question is mandatory or discretionary. The term “mandatory” refers to an obligatory duty which a governmental entity is required to perform, as opposed to a permissive power which a governmental entity may exercise, or not as it chooses.

A mandatory duty imposed by law is an action that is required versus authorized or permitted. The typical rule regarding language within California codes is that “shall” is mandatory and “may” is permissive; however, ultimately the determination of whether a law is mandatory or discretionary is a question of law to be determined by the court. Many local city ordinances are discretionary laws and a city’s failure to enforce would place no liability on the city.

Ultimately, three factors must be determined before a public entity is required to address the rebuttable presumption of negligence: (1) the law must be mandatory (2) the law must intend to protect against the type of risk of injury asserted and (3) the breach of the mandatory duty must be a proximate cause of the injury suffered.

If you would like more information on this or other topics, please feel free to visit our website www.legalequestrian.com or contact our office at (949) 264-1464.

1 Roseville Community Hospital v. State of California (1977) 74 Cal App 3d 583, 141 Cal Rptr 593, 1977 Cal App LEXIS 1948.
2 Fox v. County of Fresno (1985) 170 Cal App 3d 1238, 216 Cal Rptr 879, 1985 Cal App LEXIS 2371.
3 Walt Rankin & Associates, Inc. v. City of Murrieta (2000) 80 Cal App 4th 1255, 95 Cal Rptr 2d 893.

Liability Release Update.

Is there any new case law that applies to equestrians?

Yes, in fact it deals specifically with liability release language.

In 2010, the California Appellate court overturned a judgment because it found the exculpatory language in the rental contract for scuba equipment did not provide a complete defense to a wrongful death action.

The case in issue, Huverserian v. Catalina Scuba Luv, Inc. (2010) 184 Cal.App.4 th 1462 reiterated the courts' previous decisions stating that for a release to be valid and enforceable, a written release must be clear, unambiguous and explicit in expressing the intent of the parties. Further, if a party is to be released from such liability, the language used must be clear, explicit and comprehensible in each of its essential details and must clearly notify the prospective releaser of the effect of signing the agreement.

The release used by the Catalina Scuba Luv company stated, "Equipment rental agreement, liability release and assumption of risk of scuba and snorkel gear for boat dives or multiple day rentals". The problem with this language is its specificity, particularly the part stating "for boat dives or multiple day rentals".

The court found the release was unambiguous, clear and explicit and had the plaintiffs rented the gear for a boat dive or a multiple day rental, the release would have adequately protected Catalina Scuba Luv. Unfortunately, Huverserian rented the scuba gear, went to a dive area without a boat, and entered the water where he subsequently died. The court found the release did not address this type of activity and therefore Huverserian was not barred from pursuing a wrongful death action.

What can equestrians take away from this ruling? That it is necessary to draft a release broadly enough to encompass all anticipated equestrian activities while avoiding ambiguity. Liability release language will continue to be challenged and the law regarding releases will continue to evolve.

One tool that can be included in a liability release to deter a legal challenge is the inclusion of a covenant not to sue clause.

This clause differs from a release in that the covenant not to sue is a promise not to pursue litigation while a release is an abandonment or relinquishment of a right or claim. When included in a liability release, if a party then proceeds with litigation against a stable, for example, the stable would be able to file a cross-complaint for breach of covenant. If paired with an attorneys' fees and costs clause to the prevailing party, the stable may be able to avoid the threat of litigation to challenge the language of the liability release.

If you would like more information on this or other topics, please feel free to visit our website www.legalequestrian.com or contact our office.

Q. The horse seller I purchased my Quarter Horse mare from misrepresented the horse's age and health and now I'm stuck with an older, lame horse. I just want to return the horse and get my money back, but the seller is refusing to correct the problem. Does California have a "lemon law" for horses?

California's Consumer Legal Remedies Act (CLRA) is very powerful pro-consumer legislation.

The Act is set forth in California Civil Code sections 1750 et seq. and applies to specifically defined "unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer." (Civ. Code § 1770 (a)). [Emphasis added] "Goods" are defined by the code as tangible chattels bought or leased for use primarily for personal, family or household purposes. (Civ. Code § 1761 (a)). The CLRA defines "consumers" as individuals who seek or acquire, by purchase or lease, any goods or services for personal, family, or household purposes. (Civ. Code § 1761 (d)).

Horses have been established as "goods" under both the Uniform Commerical Code and case law. Section 2105(a) of California's Uniform Commerical Code ("UCC") states in pertinent part as follows: "'Goods' means all things . . . which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities. . . and things in action. 'Goods' also includes the unborn young of animals. . .". Further, the court in Sessa v. Riegle 427 F.Supp. 760, 764 (E.D.Pa.1977) found that the sale of horses was governed by the UCC. Given that horses have clearly been established as 'goods' under the law, the CLRA would clearly apply to the purchase of a horse in California.

The CLRA specifically sets forth numerous practices that are deemed unlawful methods of competition, unfair or deceptive acts from which a consumer may seek protection. The most applicable sections for a horse transaction are Civ. Code section 1770 (a)(5) and (7). When a seller falsely represents a horse as having certain characteristics, uses or qualities they place themselves in violation of the Act allowing the buyer to seek protection under the CLRA.

In order to invoke the protective power of this Act, the consumer must take certain necessary steps before commencing litigation or will lose their rights to pursue litigation under the CLRA. Pursuant to section 1782 of the CLRA, thirty days or more prior to the commencement of an action for damages, the consumer shall:

• Notify the person alleged to have employed or committed methods, acts or practices declared unlawful by Section 1770 of the particular alleged violations of Section 1770.

• Demand that the person correct, repair, replace, or otherwise rectify the goods or services alleged to be in violation of Section 1770.

• Notice shall be in writing and shall be sent by certified or registered mail, return receipt requested, to the place where the transaction occurred or to the person's principal place of business within California.

** It is important to note that if the seller renders an appropriate correction, repair, replacement or other remedy, or agrees to within 30 days, no action for damages may be maintained.

The CLRA is a very effective tool for encouraging a seller to do the right thing, as consumers who suffer damages under this Act may recover actual damages, punitive damages, as well as, attorney's fees and costs. As so many horse transactions occur without the benefit of a written contract allowing for attorney's fees this aspect of the CLRA is of particular benefit to a horse buyer.

If you have further questions regarding this issue, please feel free to contact our office for further information.

July 2010

Q: My friend and I were trail riding and came across three dogs that were off-leash. The dog owners failed to get control of the dogs and the dogs attacked us while on horseback. The dogs viciously pursued us for about 15 minutes before the owners got them under control. Neither horse nor riders were injured; however, we were terrified the entire time. What legal remedies are available to horseback riders when dog owners refuse to control their animals?

There are legal remedies available in California for injuries sustained by the actions of a dog to both animals and humans; however, absent any injury or damages, there is no basis for litigation.

California's Civil Code § 3341 provides that the owner, possessor, or harborer of any dog or other animal, that shall, on the premises of any person other than the owner, possessor, or harborer of such dog or other animal, kill, worry, or wound any . . . horse. . . shall be liable to the owner of the same for the damages and costs of suit, to be recovered in any court of competent jurisdiction.

Further, California's Civil Code § 3342(a) provides that 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.

If the attack by the dogs had caused any injury to either the horses or the riders, the owners of the dogs would have been found strictly liable for the dogs' actions. Animal owner's and/or keeper's may also be sued for negligence when a characteristic of a certain animal creates a foreseeable risk of harm and the owner/keeper fails to exercise ordinary care to prevent the risk. If injuries had been sustained in the incident above, the dog owners could have been found negligent for failing to restrain the animal with a dangerous habit and failing to provide for or exercise control over the animal even if it had not previously manifested a dangerous trait.

Absent injuries, the only real recourse is to report the owners for violation of local leash laws. California Civil Code § 3342.5(e) allows local counties and cities to establish legislation for local dog control. Prior to hitting the trails, all horseback riders should check local leash laws and call authorities when necessary.

While it is terrifying to be attacked by dogs while on horseback, unfortunately California does not recognize emotional distress as an appropriate damage in this circumstance.

Drake v. Dean (1993) 15 CA4th 915, 929, 19 CR2d 325
Barnett v. La Mesa Post No. 282 (1940) 15 C2d 191, 194, 99 P2d 650, 651

January 2010

Q: Do you have any tips on leasing my horse?

A: Leasing a horse can be a nerve-wracking venture for both the lessor and the lessee. Under a lease, the horse owner temporarily transfers a non-ownership possessory interest in their horse to another.

The first thing to determine is what type of lease arrangement you would like to enter into. Typical options include a full lease or exclusive use lease; a half lease; a broodmare lease and a lease with an option to purchase. If you still want to use and enjoy your horse on a part-time basis the half lease would be the best option.

All lease agreements should be in writing to clearly define the rights and responsibilities of each party. Oral agreements can quickly lead to misunderstandings and ultimately litigated disputes. If you are placing your horse in a full lease, be cautious if allowing the lessee to have possession of the horse at their facility. If the horse is stabled on lessee's private property, you may ultimately require a court order to gain possession of your horse in the event of a breach of the agreement if lessee denies you access to the horse.

When drafting the agreement the following basic provisions should be included:
1. Proper identification of the parties to the lease
2. Term of the lease
3. Proper identification of the horse
4. Terms of payment
5. Expenses the lessee is responsible to pay
6. Provisions for emergency vet care
7. Limitations and use of the horse
8. Location of the horse during the lease
9. Termination of lease
10. Insurance requirements
11. Attorney Fees provision
12. Liability release
13. Lessor's right to access and inspect.

It is important to note that a horse owner's general liability insurance coverage does not extend to the individual leasing the horse. In order to be protected from liability during the term of the lease, the lessee should be required to obtain their own general liability insurance coverage naming the owner(s) as an additional insured. In the event the lessee's homeowner insurance does not provide adequate coverage, the horse owner should insist on a separate equine general liability policy.

Finally, the lessee will most likely want assurances that the horse will be suitable for the intended use, i.e. jumping, trail use, dressage, etc. In lieu of providing warranties and representations regarding the horse's soundness and suitability for intended use, the horse owner should simply allow the lessee to fully inspect and vet check the horse at their own expense prior to executing the lease.

Leasing a horse can be a wonderful experience for all parties and the horse if basic provisions and adequate insurance requirements are established at the beginning of the transaction.

If you would like more information on this or other topics, please feel free to visit our website or contact our office.

November 2009

Q: I recently bought a horse and discovered it has a pre-existing lameness issue that the seller knew about and failed to disclose. I would like to return the horse, but the seller refuses based on the "AS-IS" clause of our contract. Is there any way to deal with an "AS-IS" contract?

A: Absolutely. When there is fraud in the inducement of the contract, the buyer can seek to rescind or unwind the contract.

The "AS-IS" clause is a favorite among horse sellers and is commonly found in sales contracts. In a horse sales contract, the "AS-IS" clause is used to describe a sale of a horse in its then-existing condition. The use of the phrase "AS-IS" or "With All Faults" will generally relieve the seller of any liability for visible and observable existing defects.

Where the seller has knowledge of a pre-existing condition and fails to disclose that information to the detriment of the buyer, the buyer can seek rescission of the contract based on fraud. The "AS-IS" language will not protect a seller from liability for the seller's fraudulent representations.

If a seller misrepresents the condition of the horse or intentionally conceals any of the horse's defects that are not otherwise visible or observable by the buyer and that misrepresentation or concealment affects the value or desirability of the horse, the seller cannot escape liability through an "AS-IS" clause.

Both intentional misrepresentation and the concealment of a material fact are forms of fraud. Seller's failure to disclose a material fact such as a previous surgery to correct a lameness issue would constitute a concealment of a material fact. Seller actively injecting a horse to mask a lameness issue and failing to disclose that injection and lameness issue would constitute an intentional misrepresentation. Once a buyer determines fraud has taken place, the buyer should seek to repudiate the contract in a prompt and timely manner. Buyers should note that general statements by the seller regarding the horse's soundness or ability to win blue ribbons in the future may not rise to the level of fraud and would most likely be considered "puffing" by the courts.

A pre-purchase exam can often determine whether the horse has any visible or observable defects that may affect the horse's performance or value. Unfortunately, a typical pre-purchase exam does not include x-rays or blood work and many pre-existing conditions and medications can go undetected.

In an effort to avoid costly litigation, sellers with knowledge of a problem or condition that may render the horse less valuable or desirable than that which the buyer bargained for should always error on the side of disclosure. Buyers should also further protect themselves and include both x-rays and blood work in their pre-purchase exams.

If you would like more information on this or other topics, please feel free to visit our website or contact our office.

July 2009

Q: Our facility is growing and we need to hire additional help. I would like to hire independent contractors and not have employees. How can I make sure I don’t accidentally end up with employees?

A: The line between an employee and an independent contractor is often blurred. It is important to properly classify your workers at the beginning of employment as their status affects whether you as an employer need to withhold income tax, social security and Medicare taxes.

The courts have determined that there are three categories the parties can look to in order to determine whether a worker is an independent contractor or an employee. These categories are behavioral control, financial control, and the relationship between the parties.

Behavioral control is a determination of whether the business has the right to direct and control the worker. For example if the business sets specific hours and requires that specific facilities or equipment be used for the job, the business may be exhibiting sufficient control over the worker’s actions to be designated as an employer. In addition, if the business provides very extensive and detailed instructions on how, when, or where the work is to be performed or completed this may result in the finding of an employer/employee relationship. A business that provides training or requires specific company procedures to be followed may also be fostering an employer/ employee relationship.

Independent contractors will have a significant financial investment in their own venture with the ability to make a profit or sustain a loss. A worker who is not reimbursed for some or all of their business expenses may also be determined to be an independent contractor. Another determining factor is whether the worker is able to provide services for other businesses. For example, a trainer working at a barn who is only allowed to work with horses boarded on the property during specific times may be an employee, while a trainer working at a barn who is allowed to work with any horses on or off the property may be more likely determined to be an independent contractor.

Finally, the relationship of the parties can often define the status of the worker. If the business is providing the worker with benefits it will likely be determined that there is an employer/employee relationship. The best strategy for any business that wants to only utilize independent contractors with no confusion is to enter into a written contract for services clearly defining the relationship as that of a business/ independent contractor.

If a business or a worker would like a determination of status as to whether the worker is an independent contractor or an employee they should fill out IRS form SS-8 Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding and submit it to the IRS for review.

If you would like more information on this or other topics, please feel free to visit our website or contact our office.

May 2009

Q: I am not able to pay some of my bills and I now owe a lot of money. Could I lose my horses to my creditors?

A: Possibly, yes. If your creditor files a lawsuit against you and obtains a money judgment, your creditor may seek to levy on your real and/or personal property ( i.e. your horses ) to satisfy the judgment.

Upon obtaining a money judgment against you, your creditor has the ability to levy your assets. If your horses have any monetary value, your creditor may seek to obtain them by a writ of execution and sell them in an effort to satisfy the judgment.

California Civil Code of Procedure section 700.030 states ". . . to levy upon tangible personal property in the possession or under the control of the judgment debtor, the levying officer shall take the property into custody." Under section 700.040, the levying officer also has the ability to levy personal property under a third party's control or possession. Therefore, even if you stable your horses elsewhere and do not keep them on your property and in your possession, they can still be located and levied upon.

As the judgment debtor, you have the right to claim certain exemptions. Any claim of exemption for the property may be made within 10 days after the date the notice of levy was served on the judgment debtor. While there are no specific exemptions for horses, under Civil Code of Procedure section 704.060(a), a judgment debtor is allowed a $6,750.00 exemption for trade, business, or professional property. The downside is the total amount allowed under this exemption is $6,750.00 and the horse(s) must be considered reasonably necessary to and actually used by the judgment debtor in the exercise of the trade, business, or profession by which the judgment debtor earns a livelihood. This exemption would only apply if you are a professional in the horse industry and your horse did not have a high monetary value.

The most common mistake people make is to transfer their property to someone else in an effort to avoid the levy. Any transfer of property that is not to a good faith purchaser for value may be considered a fraudulent transfer by the creditor and may expose the debtor, the transferee or the person for whose benefit the transfer was made to additional legal actions by the creditor.

On a final note, while a discharge in bankruptcy can eliminate certain judgments and debts and can cease all collection activities you may still lose your horses. Upon filing for bankruptcy, your assets (horses) become assets of the estate and the bankruptcy trustee may order your horses sold to pay creditors whose debts are not dischargeable.

If you would like more information on this or other topics, please feel free to visit our website or contact our office.

April 2009

Q: A prospective buyer took my horse for a 2 week trial before purchase. Buyer has neither paid for the horse or returned the horse. What do I need to do to get my horse back?

A: First, make a written demand that the horse be returned to your possession immediately. If the other party fails to return your property, you will need to sue to regain possession of your horse.

At no time should you enter upon the buyer’s property to reclaim your horse as doing so may subject you to a trespass claim by buyer. There is also a common believe that the sheriff can help you get your horse back. This perception is often incorrect. Even with proof of ownership in hand, the sheriff will not reclaim your property without a court order.

The proper course of action is to obtain a writ of possession from the court. A writ of possession is a provisional remedy that allows an individual to obtain possession of his/her property prior to obtaining a court judgment. A writ of possession application needs to include the following:

1. That the seller is entitled to possession of the horse. This can usually be established with the registration papers or any contract showing ownership.
2. The horse is being wrongfully detained despite a demand for return of the horse.
3. A particular description of the horse and a statement of its value. **Seller should note it is important not to over inflate the value of the horse, particularly if value is referenced somewhere else such as an insurance policy.
4. A statement of where the horse is most likely located.
5. A statement that the horse has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the seller.

Seller should note that pursuing a writ of possession is a costly endeavor and should be done with the assistance of legal counsel. In addition to the cost of obtaining the writ itself, the seller must also file an undertaking for twice the estimated value of the horse.

People, in general, have an emotional attachment to their horses and consider them unique and special in their own right. Because of this whenever a horse is in the wrongful possession of another individual, the horse owner considers it an emergency and often wants to get into court right away. Generally, the court will not entertain a writ of possession on an ex parte (emergency) hearing basis, as it is hesitant to interfere with property rights of an individual if that person has not had adequate notice of the hearing.

An ex parte hearing may be justified if the seller can prove there is a danger the horse will be concealed, sold, or endangered by acts of destruction or failure to care in a reasonable manner. Absent these concerns, proper notice under the code is required.

The California law of claim and delivery is unique in that a plaintiff may actually obtain possession of their property prior to the outcome of the lawsuit. The benefits of this particular remedy for the horse owner usually outweigh the cost associated with it as the horse owner gains access to their horse during what is often a lengthy litigation.

If you would like more information on this or other topics, please feel free to visit our website or contact our office.

March 2009

Q: In light of the recent fires, what are my duties as a boarding facility owner to evacuate my boarders' horses if they are not present or able to do so themselves?

A: This is a great question. The relationship and responsibilities of a boarding facility and its boarders is based on the legal principal of bailment.

Under California law, a bailment is a contractual relationship and is created when one person delivers his/her personal property into the possession of another. A person becomes a bailee for hire when he/she accepts property into his/her care, custody and control for compensation. This is also referred to as a mutual benefit bailment. California legislation currently terms a bailment as a depository. A boarding facility is also categorized as a depository for animals.

When boarding horses, the bailor (horse owner) delivers possession of the horse to the bailee (boarding facility). Remember, possession does not equal ownership . Under California's Civil Code, upon delivery, the bailee has a duty to provide the animal with necessary and prompt veterinary care, nutrition, and shelter, and treat them kindly. 1Where the property is damaged, lost or stolen while in the bailee's possession, the bailee may be held liable for negligence to the bailor. In other words, if a stable takes possession of a horse and does not return the horse in the same condition, the stable is presumed to be negligent and has the burden to prove they were not responsible in the loss or damage to the horse.

A boarding facility must utilize a reasonable standard of care for the animals in its care, custody and control and that standard is not removed simply because of an emergency. The duty of a boarding facility to evacuate a horse(s) in its care would be a triable issue of fact and would depend on the particular facts of a situation. An important consideration is whether it is reasonable for the horse owner to assume the horse would be evacuated. It is not difficult to imagine a scenario where the horse owner assumed the facility would handle the evacuation in the event of an emergency and the facility assumed the horse owner would evacuate the horse. All the while, the horse is left behind.

Common sense would dictate that if the fire was started due to the boarding facilities negligence then they should do all they can to evacuate the horses and minimize their responsibility for property loss. In the situation of a wildfire, ( that was not caused by the boarding facilities negligence ) the boarding facility is still under the same duty to keep the horses safe. A strong argument could be made that the boarding facility may have a reasonable duty to evacuate the horses from harms way if possible.

The best way to avoid confusion as to who will be responsible for the loss or damage of a horse in the course of a fire or natural disaster ( that was not caused by boarding facilities negligence ) is to incorporate an additional paragraph in the boarding agreement that states the boarding facility either will or will not attempt evacuation of the horse(s) in its care and that the horse owner releases them from all liability associated with such rescue or acknowledged non-rescue.

In addition to this, the boarding facility should have the necessary insurance coverage in place including care, custody and control coverage to minimize its liability exposure.

1 California Civil Code section 1834

If you would like more information on this or other topics, please feel free to visit our website or contact our office.

January 2009

Q: Are there any lien laws other than the Livestock Servicer Lien that affect horse owners in California?

A: Yes. There are two additional lien laws worth noting. If you are a breeder, you should be aware that California has a breeder’s lien law. California Civil Code section 3062 states “Every owner or person having in charge any stallion, jack, or bull, used for propagating purposes, has a lien for the agreed price of its service upon any mare or cow and upon the offspring of such service, unless some willfully false representation concerning the breeding or pedigree of such stallion, jack, or bull has been made or published by the owner or person in charge thereof, or by some other person, at the request or instigation of such owner or person in charge.” This code section provides a lien on both the mare and any foal derived from the breeding to the stallion owner for stud service fees. I suggest that breeding agreements be in writing and incorporate a specific provision addressing the stallion owner’s lien rights and remedies. This lien, unlike the livestock servicer lien is not a possessory lien. As the stallion owner, you do not need to have possession of the mare and foal to attach the lien and pursue your legal remedies. This lien is simply recorded in the county recorder’s office in the county where the mare is kept. The lien functions as notice to subsequent purchasers and others who may seek a lien on the mare that you have an interest in the horse. As a practical matter, if there is a horse registry involved, you may want to send a copy of the recorded lien to them as the lien would affect ownership interest of a third party purchaser. It is important to note that to enforce your lien rights as a breeder; you must correctly record the lien and seek your legal remedies in court, which may include the sale of the mare pursuant to a court order. At no time is the stallion owner entitled to regain possession of the mare and sell the horse without proper court proceedings as doing so could result in both criminal and civil actions against the stallion owner. It is also worth mentioning California’s veterinary lien law. California Civil Code section 3051 provides veterinary proprietors and veterinary surgeons with a possessory lien for their compensation in caring for, boarding, feeding, and medical treatment of animals. This lien allows the vet to sell the horse at public auction without order from a court after 10 days notice to the horse owner.

If you would like more information on this or other topics, please feel free to visit our website or contact our office.

December 2008

Q: My neighbor wants to give my daughter a miniature horse for Christmas. Do I need any paperwork if the horse is a gift?

A: Yes. Regardless of whether or not the horse is registered, you will still want some type of writing to reflect the transfer of the horse to you as the new owner. If the horse is registered, you will need the proper transfer of ownership documentation to reflect your right to title of the horse for the breed registry. You will also want to have some type of writing to reflect your neighbor's intent to give you the horse. At a bare minimum, the document should contain the following:

Name of the parties
Name and description of the horse (including registration #)
Date of transfer
Description of transfer as gift ** "the horse is given voluntarily and without further consideration"

If the horse is not registered, this document is even more important. Too often, I receive phone calls from people who have been "given" a horse only to have the previous owner demand it back at a later date claiming they still own it. Without a written agreement, your possession of the horse may not be enough to prove you now own it free and clear. Without documentation showing your right to possession, the previous owner can claim conversion (civil theft) of their property.

In California, the test to determine whether something has been given as a gift is whether it is given voluntarily and without payment of any kind. Further, California's Civil Code section 1147 states that a verbal gift is not even valid unless there is an actual delivery of the thing given. Your possession of the horse may comply with the code if you are able to prove the previous owner physically gave you the horse, but be cautious. A common argument by previous owners is that the horse is simply being loaned and that the horse was never actually intended as a gift.

In my opinion, if it is worth doing, it is worth writing about. The neighbor who may be your very best friend this month may decide that you have stolen her horse next month. A written agreement setting forth the terms of the transfer may very well prevent a nasty lawsuit in the future.

Happy Holidays!

If you would like more information on this or other topics, please feel free to visit our website or contact our office.

November 2008

Q: My trainer and I have been working together for a few months. She offered to help me find a suitable horse to purchase. I thought that was great as I really respect her opinion. Unfortunately, when she found a horse she thought I would like, she took possession of the horse and told the horse seller that I would buy it. Now the seller is looking to me for payment. The horse costs more than I can afford and I never told her I would buy it. Do I have to pay for the horse?

A: Maybe. First, you will have to determine whether or not you and your trainer established an agency relationship regarding the purchase of the horse.

An agency relationship is a fiduciary relationship requiring the agent to act in the principal’s best interest at all times. It is very common for trainers and clients to enter into verbal agency relationships for the purchase of a horse. Under California law, an agent is simply someone who represents another (called the principal) in dealings with third persons. An agent can represent and bind his/her principal for all purposes within the scope of the agent’s actual or apparent authority. Your agent can do anything for you that you could do for yourself.

The problem with verbal agreements of any kind is that misunderstandings are more likely to occur. Compounding the problem is that an agent’s authority is not required to be express and can be implied based on the facts of the situation. For example, your trainer said she would keep an eye on the market and try to locate an appropriate horse for you. If you had further discussions involving what breed you would like, how much you would like to spend, whether it should be registered, and what discipline you would prefer, it is possible she may be able to show she was your agent acting on your behalf when she obligated you for the purchase of the horse. If on the other hand, she simply stated she would keep an eye out for a nice horse for you without further discussion, it is unlikely any agency relationship was ever established and she acted without authority.

A transaction is voidable by the principal should the agent be found to have acted without authority or in excess of his/her apparent authority. When an agent acts outside their authority and an innocent third party is involved, it is important for the principal to promptly deny the transaction. In some instances, silence is viewed as the principal’s endorsement of the deal. In the above scenario, a prompt correspondence to the horse seller stating that the trainer had no authority to act was necessary to void the transaction.

Written agency agreements are highly recommended and can prevent misunderstandings between parties. The agreement should clearly establish the scope of the agent’s authority on behalf of the principal and the agent’s compensation. It is not uncommon for a trainer to receive a commission on the sale of a horse; however, section 19525 of the California Business and Professional Code prohibits an agent from accepting “a commission, fee, gratuity, or another form of compensation in connection with the sale or purchase of a racehorse, prospective racehorse, stallion or broodmare, unless the purchaser or seller have agreed in writing to the payment of the commission, fee, gratuity, or other compensation.”

Unfortunately, unless the horse seller is willing to walk away from the deal, you may find yourself in an unwanted lawsuit trying to prove that no agency relationship existed between you and your trainer.

If you would like more information on this or other topics, please feel free to visit our website or contact our office.

October 2008

Q: My horse died from a colic complication. I believe the vet was negligent and I would like to pursue the matter. What is my next step?

A: If possible, obtain a complete copy of your file from your vet. Next, you should seek the advice of legal counsel to determine whether your case has merit.

One of the most important issues to be aware of is the statute of limitations on your matter. A statute of limitation is a state law that establishes the timeframe within which a lawsuit must be filed. Typically, the statute begins when the injury occurred or from the date of discovery.

In California, any lawsuit for professional malpractice against a vet must be filed within one (1) year from the injury or death of the animal. Cal. Civ. Proc. §340(c).

Another consideration, before filing a lawsuit is the animal’s monetary value. If successful in your lawsuit, you will typically receive the value of the animal. If your horse had more sentimental value than dollar value, it may not be prudent to proceed in court. Despite how much we love our horses, they are still considered personal property and the courts generally will not award damages for any emotional distress you or your family has suffered due to the horse’s death.

If a court proceeding does not seem warranted, but you still feel the vet was professionally negligent and would like the matter investigated, you can contact the California Veterinary Medical Board at (916) 263-2610 to lodge a complaint. You can also submit your complaint online at https://app.dca.ca.gov/cru/gencomplaint.asp.

Finally, if you are tempted to file your malpractice claim in small claims court, I would strongly urge against it. Small claims court has its challenges with regard to presenting evidence and chances are you will not have an adequate platform to prove your vet did something wrong. Remember, you are not a vet nor are you an expert on veterinary medicine and without clear-cut evidence from an expert showing your vet did something wrong, your claim with most likely fail.

If you would like more information on this or other topics, please feel free to visit my website or contact my office.

If you have further questions regarding this issue, please feel free to contact our office for further information. For past editions, please visit www.legalequestrian.com

September 2008

Q: During a recent trail ride one of the horses stumbled over a tree that was blocking the trail and the rider was thrown and injured. His injuries are significant and he has been off work for months. Who should we look to for compensation?

A: First, you would want to determine whether the injury occurred on private or public property. Often, trail systems run through both private and public land at any given time. Discovering the status of the property where the injury occurred would help establish who was responsible for the care and maintenance of the trail and who the rider should look to for compensation for his injuries. However, since the injury occurred during a recreational activity the injured rider will most likely be barred from recovery by state law.

If the trail was on private property, California’s recreational use statute would apply.

California Civil Code §846 states “An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section.

A “recreational purpose”, as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.

An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission had been granted except as provided in this section.

This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.

Nothing in this section creates a duty of care or ground of liability for injury to person or property.” [emphasis added]

An owner’s property interests protected under this statute are very broad. The legislature’s purpose and intent in enacting this statute is to encourage owners to allow the public to use land for recreational purposes without exposure to liability that otherwise might exist.

In order to overcome the immunity granted by Civil Code §846, the injured rider would need to prove that the owner of the trail was willful or malicious in their failure to guard or warn against the dangerous condition, in this instance the downed tree, or that he had paid the trail owner money for the use of the trail. Otherwise, any lawsuit would most likely be unsuccessful.

If the trail was on public property, California’s Tort Claims Act would apply.

This law is in place to protect public entities from liability and provides immunity for injuries arising from hazardous recreational activities. Public entities include the state, a county, a city and a district just to name a few.

Under this act, public entities may claim immunity from unpaved access roads and recreational trails , as well as, immunity from hazardous recreational activities . CA Gov Code §831.7 specifically includes trail activities such as animal riding, bicycle racing or jumping, and mountain biking. [emphasis added]

As with Civil Code §846, there are also exceptions to the hazardous recreational activities immunity under the Tort Claims Act and in order to overcome these immunities, the injured rider would need to prove one of the following exceptions had occurred:

1. The public entity failed to warn of a known dangerous condition or of another hazardous recreational activity that was not assumed by the participant as inherently part of the activity.
2. The injured rider paid a fee to the public entity to participate in the hazardous activity.
3. The public entity was grossly negligent in its conduct.
4. The public entity engaged in negligent failure to properly construct and maintain in good repair any structure, recreational equipment or machinery, or substantial work of improvement.

In addition to overcoming the immunities under California Tort Claims Act, there are substantial timing issues that must be addressed when trying to sue a public entity. Failure to comply with the statutory notice and timing requirements would result in an unfavorable outcome for the rider.

Trail riding is a hazardous activity and every rider must be alert to potential accidents and possible injuries. Overcoming the immunities provided by California law is a difficult task, but not impossible. If you do sustain an injury on trail, you should consult with an attorney to determine merits of your case.

If you would like more information on this or other topics, please feel free to visit my website or contact my office.

If you have further questions regarding this issue, please feel free to contact our office for further information. For past editions, please visit www.legalequestrian.com

August 2008

Q: The stable where I board my horse is pursuing a livestock servicer lien. I’m afraid they’re going to sell my horse. Is there anything I can do to get my horse back?

A: Yes, if you find yourself subject to a livestock servicer lien it can be addressed in a few different ways.

First, if you don’t dispute the validity of the stable’s claim against you it should be relatively easy to establish a payment plan acceptable to both parties and prevent the need for further litigation. In most cases, the stable would rather have your money than your horse.

If you find yourself subject to court proceedings, you may seek relief from the court by way of an undertaking. Anytime after the lien holder, in this case, the stable has filed a complaint, the horse owner may request an order for substitution of an undertaking. The purpose of the undertaking is to preserve the stable’s legal claims while at the same time allowing the horse owner to reclaim his/her property.

An undertaking is obtained by filing a bond with either personal sureties or the guarantee of an independent insurance company with the court. Once a proper undertaking is filed, the court should order the horse returned to its owner. The merits of the lien can then be litigated while you have the horse back in your care.

• A note of caution: If the stable is successful in its action against you, you will need to have the funds to pay the judgment plus any attorneys fees and costs that may have been awarded or risk losing your horse again.

If the stable is making a claim under the livestock servicer lien law and will not release your horse, but has not filed a lawsuit, you can proceed in court with an action for claim and delivery to regain possession of your horse. Even in this instance, the court will not order the return of your horse until you have filed a written undertaking.

The filing of an undertaking is required in both types of litigation. It is also important to remember that obtaining possession of your horse by filing a written undertaking has no effect on the determination of any of the issues in the pending action.

If you have further questions regarding this issue, please feel free to contact our office for further information. For past editions, please visit www.legalequestrian.com

July 2008

Q: I’m running a summer riding camp and want to use pictures of the campers on my website to promote my business. Is this okay or do I need some type of release?

A: It is okay, but you do need a signed release from the participant(s). If the participant is a minor, the release should be signed by the minor’s parent(s) or legal guardian. Remember, a minor cannot enter into a contract, so having the minor sign is of no consequence.

California Civil Code § 3344(a) states in pertinent part as follows:

“Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by person or persons injured as a result thereof. …”

This type of “injury” is known as “appropriation of likeness” and is considered a form of invasion of privacy. It can subject you to liability for not only damages, but also attorney’s fees and costs and punitive damages. These lawsuits can be very costly in both defending and potential damages.

The best way to protect yourself and your business from exposure is to obtain your client or camper’s consent. This can be achieved with a basic media release (yes, more paperwork).

Most stables and/or trainers don’t consider how vulnerable they are to litigation when they are posting pictures of their clients on their sites. A picture of a happy camper promotes your business and provides you a benefit. Your camp participation might be quite small or non-existent if you did not promote how much fun campers have at your facility or how safe you keep your riders. Unfortunately, your happy campers can sue you if you don’t have permission to use their picture or likeness.

A properly drafted media release can protect you if you are sued.

If you have further questions regarding this issue, please feel free to contact our office for further information.

June 2008

Q: I run a riding school and was wondering if I should have the child as well as the parent sign the liability release?

A: Children under the age of 18 are usually not legally able to enter into a contract. A liability release is essentially just that, a contract or a promise not to sue.

If a release agreement is only signed by the child, without an additional parent signature, the child could disaffirm the release and sue you and your riding school if he/she were to sustain injuries. However, when a valid liability release is signed by a parent on behalf of the child, California courts have held that it is binding on the child. I know of many instances where riding schools have been lax on the paperwork and have had the child sign with the intention of having the parent sign later. Often “later” never happens and the school is vulnerable to a lawsuit every time that child rides. It is important to make sure the parent signs and waives both their right to sue and their child’s right to sue.

Now that we know who needs to sign it, what makes a valid liability release?

California courts have held that a liability release is not enforceable if it is not easily readable. Typically, anything smaller than 8 pt. is unsatisfactory and may not be enforceable. In addition, the courts want to see the important language of the release placed in a position which requires notice. A liability release cannot blend in with the rest of the document. Whenever you are asking someone to give up his or her legal rights, the language must be clear, concise and easily readable. The release must also clearly convey what it is the signer is releasing. Typically, that means any personal injuries caused by the releasor’s negligence.

More often than not riding schools try to cram their entire contract, including the liability release onto one or two pages in an effort to keep the paperwork to a minimum. This is not a good rule of thumb. If your release is not sufficient then it will be invalidated in a legal proceeding. The time to find out if your release is in compliance with California law is not during a court case.

If you have further questions regarding this issue, please feel free to contact our office for further information

Lisa Lerch will be teaching a 3 hour seminar at Rancho Santiago College on Monday, June 16th from 6:30pm - 9:30pm.
The topic is Equine Law for the horse owner. Contact Lisa for more info.

May 2008

Q: Can I board horses on my property to help with the monthly mortgage?

A: You will need to do a little research before you get going. First, if you live in a HOA (Home Owners Association) you will need to review the CC&Rs to determine if there are any animal restrictions associated with your property. If CC&Rs do not apply to the situation then you should check local city and county ordinances to ensure your horse boarding does not violate any laws.

If you’ve made it this far and haven’t hit any road blocks then the next step would be to check with your homeowner’s insurance company to find out if you horse boarding endeavor will be covered. In usual situations, whenever you receive money for horse boarding on your property your homeowner’s policy will not cover it as they consider it a business activity. That means anyone who comes onto your property in relation to the boarding of horses is not covered under your homeowner’s policy. You will most likely need to obtain a separate policy just as if you were a professional boarding facility. In addition to a general liability policy you will also need a care, custody and control policy. The care, custody and control policy will protect you from liability if a horse becomes injured or dies while in your care. I would urge you to contact an insurance company that specializes in equine insurance to discuss your options.

If you are still interested in boarding horses, your next step is to make sure you have great contracts. At a minimum, you will need a boarding contract, emergency horse care agreement and a liability release. Contracts are necessary because they establish the rules for your relationship with your boarder. Another important thing to remember is that vaguely worded liability releases are often unenforceable. The courts in California have determined that liability releases are valid so long as they are sufficiently worded.

Some things to remember when putting together a boarding contract:

1. Who is involved in the transaction?
2. How many horses are boarding?
3. What are the board and feed charges?
4. Do you require proof of vaccinations?
5. Will you allow farriers/vets onto your property?
6. Do you want the ability to remove the horse from your property if it is a problem?
7. When can the boarder have access to your property? – Unless you want your boarder on your property at 11:00 pm or 5:00 am, you will need to set some rules
8. Can the boarder bring friends, family or animals to your property?
9. What services will you as the boarding facility provide?
10. Is horse owner required to provide insurance? – Horse owner should obtain horse owner’s general liability insurance and name you as the additional insured
11. What are the obligations of horse owner to the facility?
12. What are the obligations of the boarding facility to the horse owner?
13. If there is a lawsuit, do you want the ability to recoup any attorney fees expended?

For the emergency horse care agreement, you will want to determine what your responsibilities are or should be in an emergency if the owner is unavailable.

1. Which vet should be called?
2. Is the horse a surgical candidate?
3. How much cost is owner willing to incur without notice?
4. Who should be contacted if the owner is unavailable?
5. Who is responsible for the vet payment?
6. Can a decision be made to euthanize the horse without owner consent?
7. Does the owner have major medical insurance coverage?
8. Is the boarding facility responsible for contacting the owner’s insurance company?
9. If there is a lawsuit, do you want the ability to recoup any attorney fees expended?

ALWAYS put it in writing. NEVER rely on an “understanding”.

Once you begin boarding horses for a fee, you will become a livestock servicer and if your boarder does not pay, you will have the right to foreclose on their horse. Also, as a boarding facility you will need to post an abandoned animal notice to ensure your ability to legally handle the abandonment of any horse on your property.

If you are running your boarding facility as an individual and not as a corporation or LLC, you should be able to apply any profit from this endeavor towards your monthly mortgage, but I would urge you to have a conversation with an accountant to verify.

Finally, check with your neighbors to make sure they will not be impacted by the additional activity at your property. Happy neighbors are less likely to complain.

Happy boarding!!!

If you have further questions regarding this issue, please feel free to contact our office for further information

Lisa Lerch will be teaching a 3 hour seminar at Rancho Santiago College on Monday, June 16th from 6:30pm - 9:30pm.
The topic is Equine Law for the horse owner. Contact Lisa for more info.

April 2008

Q: I live in an equestrian community governed by a homeowner’s association. Local zoning allows for 4 horses, but my homeowner’s association says I can only have 2 horses. I do not want to get rid of 2 of my horses. Can I legally keep 4 horses on my property?

A: I think every horse owner longs for a nice 100 acre spread which would allow us the freedom to do as we wish. Unfortunately, the reality is most of us find ourselves on small patches of land that are often subject to rules and regulations.

For the longest time the only rules one encountered regarding the number of horses one could have came from local city government in the form of zoning compliance. Today, with the onset of Common-Interest-Developments, most of us now have to deal with the city and a homeowner’s association.

Being the member of a homeowner’s association has its pros and cons. On the one hand, if the development is established as an equestrian community, a homeowner might benefit from well-maintained trails. On the down-side, the covenants, conditions and restrictions (CC&Rs) often restrict the number of horses you can keep, as well as how you can keep them.

A common misconception is that if local zoning permits something and the CC&Rs are different then the CC&Rs are wrong and do not need to be followed. That misconception can cause a lot of headaches for the homeowner. CC&Rs are the governing documents for the development and mandate how the homeowners association functions, as well as the rules that owners, tenants and guests must follow. The documents are legally enforceable by the homeowner association.

CC&Rs differ from local zoning in that they are private land use restrictions put in place by the original land owner and not by government legislation. CC&Rs have the ability to further restrict the actions of a homeowner that would otherwise be legally permissible under local zoning laws. For example, if local zoning allows for 4 horses on your property and your CC&Rs only allow for 2 horses then, despite zoning, you can only have 2 horses on your property.

When you purchased your home in a Common-Interest-Development, you agreed to abide by the terms set forth in the CC&Rs, whether you read them or not. Every homeowner should carefully read the CC&Rs prior to purchase to ensure they allow you to have the lifestyle you want on your property. It is even more important to do so when animals are involved because misunderstandings and violations of CC&Rs usually result in costly legal battles and the eventual loss of your animals.

If you have further questions regarding this issue, please feel free to contact our office for further information.

Lisa Lerch will be teaching a 3 hour seminar at Rancho Santiago College on Monday, June 16th from 6:30pm - 9:30pm.
The topic is Equine Law for the horse owner. Contact Lisa for more info.

March 2008

Q: My boarder left his horse on my property and has not paid his bill. What are my responsibilities to the animal and how can I get it off my property?

A: This is a great question. Once you accept an animal into your facility, you become responsible for the care and well-being of the animal regardless of whether your board bill is paid.

California CC §1834 establishes that a boarding facility, (large or small, professional or hobby) has a legal duty to provide the animal with necessary and prompt veterinary care, nutrition and shelter and treat them kindly. Any boarding facility failing to do these things may be liable for civil damages. Unfortunately, this means it costs the boarding facility money if the horse owner fails to uphold his/her end of the agreement.

A boarding facility has a few options to help reduce the financial strain. The first and easiest way to handle the problem is to have the horse owner waive their ownership rights and release the horse to the facility. Always do this in writing to avoid further issues down the road. Once the facility owner actually owns the horse he/she can either sell it or find it a new owner (hopefully one that will pay for it). If this option is not feasible, for example, due to the owner’s failure to be reached, then the boarding facility can seek to enforce its livestock lien. As this is a possessory lien the facility must continue to “hold” and care for the animal until such time as a court order can be obtained to sell the animal. The process for this is more thoroughly discussed in my previous article “My boarder left the horse and a huge bill!!!! How do I get paid?”. If the horse is of little value, the lien option may be unappealing as the expense in maintaining the horse and costs involved are often greater than the money realized from selling the horse.

If the horse has little monetary value, the boarding facility may finally choose to relinquish their lien rights and deem the horse abandoned. This will not get the board bill paid, but sometimes getting the horse off the property is the most cost effective solution.

In order to comply with California’s abandonment law, the boarding facility must first post California CC §1834.5 in a conspicuous place warning each border of the provisions of this code section.

California CC §1834.5 states in pertinent part that if the owner of an animal does not pick the animal up within fourteen (14) calendar days after the day the animal was due to be picked up the animal shall be deemed abandoned. To protect itself from further legal problems, the boarding facility should send written notice by certified letter to horse owner at his/her last known address demanding the horse be removed from the property by a clearly stated date.
The notice should further advise that failure to remove the horse will result in the horse being deemed abandoned and euthanized.

The owner then has fourteen (14) calendar days to reclaim his/her horse. If, within these fourteen (14) days, the horse owner cannot be reached and/or does not respond, the horse is then deemed abandoned. Once the horse can legally be determined abandoned, the boarding facility must try for a period of at least ten (10) days to find a new owner for the animal. If the animal cannot be placed with a new owner during this time period, the boarding facility may have the horse humanely destroyed.

Prior to proceeding under the abandonment statute, boarding facilities should also notify their local animal control to ensure they are in compliance with all local ordinances. Remember, animal abandonment can also result in criminal charges against the horse owner and the local animal control would help make those determinations.

As a form of notice, boarding facilities may opt to include a provision in the boarding agreement reciting California CC §1834.5 and have the boarder initial by the paragraph. This done in connection with the posting on the premises ensures the boarding facility has adequately notified horse owners of this potential outcome animal abandonment.

If you have further questions regarding this issue, please feel free to contact our office for further information.

February 2008

Q: I often need to ride my horse on the street to access trails. What are the rules of the road for horseback riders?

A: This is a great question. The California Vehicle Code provides three code sections that specifically address equestrian issues.

CVC § 21759 states “ The driver of any vehicle approaching any horse drawn vehicle, any ridden animal, or any livestock shall exercise proper control of his vehicle and shall reduce speed or stop as may appear necessary or as may be signaled or otherwise requested by any person driving, riding or in charge of the animal or livestock in order to avoid frightening and to safeguard the animal or livestock and to insure the safety of any person driving or riding the animal or in charge of the livestock.”

If you are on horseback and indicate to a car that you need it to slow down or stop to avoid a problem then the driver needs to respond appropriately. If the driver fails to respond and an injury occurs, the driver may be found liable for any and all damages that flow from the accident.

CVC § 21050 states “ Every person riding or driving an animal upon a highway has all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this division and Division 10 (commencing with §20000), except those provisions which by their very nature can have no application.”

While horseback riding, you are for all intents and purposes considered a driver on the road and need to follow all applicable traffic laws. Some things riders can do to keep themselves safe and be in compliance with the law are signal appropriately, yield when necessary and stop at traffic lights. When an automobile driver doesn’t have to guess what your next move will be chances are everyone will stay safe.

CVC § 21805 states “(a) The Department of Transportation, and local authorities with respect to highways under their jurisdiction, may designate any intersection of a highway as a bridle path or equestrian crossing by erecting appropriate signs. The signs shall be erected on the highway at or near the approach to the intersection, and shall be of a type approved by the Department of Transportation. The signs shall indicate the crossing and any cross marks, safety devices, or signals the authorities deem necessary to safeguard vehicular and equestrian traffic at the intersection.
(b) The driver of any vehicle shall yield the right-of-way to any horseback rider who is crossing the highway at any designated equestrian crossing, which is marked by signs as prescribed in subdivision (a).
(c) Subdivision (b) does not relieve any horseback rider from the duty of using due care for his or her own safety. No horseback rider shall leave a curb or other place of safety and proceed suddenly into the path of a vehicle which is close enough to constitute an immediate hazard.”

Riding in Southern California we should all be familiar with the yellow equestrian crossing signs. These are for our use and safety and provide us with the right-of-way. However, common sense still needs to prevail. If you see a car is not slowing, do not proceed. The horseback rider is required to wait until they are able to cross safely. A horseback rider who proceeds in an unsafe manner and causes an accident may be liable for the damages that result from that accident. Know your rights and responsibilities and ride safe.

If you would like more information on this or other topics, please feel free to visit my website or contact my office.

January 2008

Q: I have just suffered the loss of my horse due to my neighbor’s inability to control his dogs. How do I pursue compensation for the loss of my animal?

A: There are a variety of ways to pursue this matter. You may choose to allow the local prosecutor to pursue criminal charges or you may choose to sue in civil court.

California law states the dog owner may be both strictly liable for injury, harm or loss caused by his animal as well as general negligence. Injury, harm or loss could be to an individual or an individual’s property, in this case your horse. These claims would be brought in civil court.

Typically, when an animal is injured or killed, the owner is entitled to compensation in the form of the “market value” of the animal, vet bills and possibly punitive and emotional distress damages. Emotional distress awards are generally not large and these issues can be very difficult to prove. However, California law specifically provides that owner of any livestock (horse) which is injured or killed by any dog may recover in civil court as liquidated damages from the owner of the dog twice the actual value of the animal killed or twice the value of the damages sustained because of the injuries, as the case may be. Civil litigation can be quite expensive but if your horse was of substantial value, you may want to pursue this option.

Local authorities may also have in place dog statutes that may subject the owner to various criminal penalties.

The local District Attorney’s office may choose to file criminal charges against the dog owner. During criminal proceedings, the District Attorney would be able to seek monetary compensation for your loss and could choose to seek punitive damages if the dog owner’s actions could be proven willful and egregious.

If you would like more information on this or other topics, please feel free to visit my website or contact my office.

December 2007

Q: My boarder left the horse and a huge bill!!!! How do I get paid?

A: California law provides protection for service providers in the form of a Livestock Service Lien. A livestock servicer (in this instance a boarding facility) has a general lien upon livestock (horse) in its possession to ensure all contractual obligations are met.

The boarding facility may choose to do one of the following to recoup their costs:

1. Retain possession of the horse and charge the owner for the reasonable value of services to the horse until such time all charges have been satisfied; or
2. Sell all or any portion of the livestock so long as the lienholder obtains a favorable judgment from a court of law.

A note of caution! A lienholder may not proceed to sale without first going to court or obtaining a release from the horse owner. Any lienholder that sells a horse without applying to a court of law first is risking exposure to theft charges.

Remember, you can’t sell what isn’t yours!

Unfortunately, court hearings take time and the horse keeps eating. There is help. In circumstances where the horse’s value will not meet the outstanding debt, as well as the cost of continuing care, a lienholder may appeal to the court on an “emergency” basis to allow the lienholder to proceed to sale without the required notice to the horse owner.

One way to avoid the necessity of litigation altogether is to have the horse owner execute a “release of interest document”, which can be executed at any time after the lien has arisen, thereby erasing the necessity of a court order. The language in this release is determined by statute and lienholders should consult with an attorney to ensure it is drafted properly.

Once the boarding facility is able to proceed to sale, the proceeds of the sale must be applied in the following order:

1. The charges for livestock services from the date the lien arose to the date of sale.
2. The costs incurred for transporting and preparing the livestock for sale and of conducting the sale.
3. The reasonable attorney’s fees and legal costs and expenses incurred by the lienholder.
4. For satisfaction of the contractual indebtedness secured by the lien.
5. For satisfaction of indebtedness of subordinate liens.

Depending upon the market value of the livestock, the boarding facility may be able to recoup all outstanding debt plus attorney’s fees and costs, so it is certainly worth pursuing if you’ve been left with the feed bill.

If you have further questions regarding this issue, please feel free to contact our office for further information

November 2007

Q: Is horse tack covered by my liability release?

A: Generally, no.

California being one of the few states without specific Equestrian Activity Legislation must rely on good old-fashioned assumption of the risk doctrine. Many equine professionals rely too heavily on the “protection” afforded them under this doctrine, to their detriment. The assumption of the risk does not provide protection from any and all injuries that may arise during a participant’s involvement with an equestrian activity.

Many commercial providers of horseback riding, training or renting will often have patrons sign a liability release believing that they are then wholly protected from potential litigation should any injury occur.

That is not the case.

A general liability release, when properly signed, typically insulates the professional from claims arising from injuries that flow from the inherent risks associated with horseback riding.

In sports-related activities, the courts have determined that three basic ideas need to be addressed when deciding what duty was owed to a patron. ¹

1. What is the fundamental nature of the sport (horseback riding) and what inherent risks might be associated with said the sport?

Inherent risks can generally be categorized as falling from a horse, being bitten, kicked or thrown from a horse just to mention a few. An inherent risk is a risk that might naturally occur due to the nature of the sport. Horseback riding always carries an inherent risk that the animal may not behave in a safe and calm manner, thereby resulting in an injury.

2. What is your duty (to your customer) within the context of the sport? ²

The court has held that commercial operators of sports and recreational facilities owe a duty of care to their patrons. In broad terms, this means you as the commercial provider have a duty to ensure the facilities and related services, which are provided, do not increase the risk of injury beyond the inherent risks associated with the sport.

3. What is your duty to protect your customer from the particular risk of harm?

You certainly have a duty to make sure the sport does not become more dangerous by providing faulty equipment. A whole list of duties can be attached to professionals within the equestrian community, ie, not to provide faulty saddles, bridles and other equipment. ³
Arguably, being on the receiving end of a broken saddle is not a risk a rider would choose to assume.

A few ways to prevent litigation is to make sure your clientele is receiving safe equipment.

1. Establish a protocol for checking saddles, cinches, bridles, helmets and all the other goodies that you provide to your clientele for horseback riding. Make sure the protocol is followed by everyone who handles your tack.

2. Replace all helmets according to the guidelines of the AMEA/SRF. It is recommended that a helmet that has sustained any impact should be replaced immediately even if there is no visible damage.

3. Immediately prior to riding, check the tack to make sure it has been placed and fitted on the horse correctly. Make sure all staff (trainers, volunteers, anyone working for you in any capacity) know how to check tack on a fully saddled horse and spot potential problems. *Remember your client probably does not have a clue.

Equine professionals should include a carefully worded paragraph in their release that expressly warns about the potential injuries or problems that could occur if the horse equipment fails during your client’s ride. An express disclosure of potential injuries that may arise from faulty tack may protect you from potential liability. Let’s face it, most people in the general public who hire horse professionals have little experience with horse equipment and how it should operate. Most people do recognize that they may fall from the horse during their ride. However, people do not expect to hit the ground with their saddle still under them. Protect yourself to the best of your ability with excellent paperwork.

References:
1. Knight v. Jewett (1992) 3 Cal. 4th 296
2. Harrold v. Rolling “J” Ranch (1993) 19 Cal. App. 4th 578
3. Harrold v. Rolling “J” Ranch (1993) 19 Cal. App. 4th 578

October 2007

Q: Should I use a contract in a horse transaction?

A: Absolutely! A contract establishes the rules for the transaction. A equine-related activity that is entered into without a written agreement has the potential to unravel very quickly, often leading to the loss of a beneficial relationship. Most lawsuits happen because of a misunderstanding between the parties. A written contract sets forth the various rights, responsibilities, and possible liabilities between the parties, and is the best way to avoid problems and stay out of court. Equestrians love the simplicity and tradition of the handshake deal. However, it is the ambiguity of this type of deal that is often the source of misunderstandings. Oral contracts are valid and enforceable in California, but they rarely discuss the details of the transaction. Ultimately, litigating an oral contract turns into a war of words and is reduced to an assessment of which party is more believable.

One of the most common excuses I hear for not using a contract is, “It takes too much time and costs too much money.” As horse owners, we happily spend hours of our time researching the “perfect” saddle and spend ridiculous amounts of money for our fourlegged family member, so there is really no excuse for purchasing a horse on a handshake. It is much more cost effective to proactively determine how to deal with a potential problem that it is to litigate after the fact. One of the best options available parties is to determine whether the parties would like to mediate or arbitrate the matter should a disagreement arise. These avenues are often much less expensive and less time consuming than traditional court proceedings. Parties also find it is easier to agree to conflict resolution before a problem has occurred. There are many standardized contracts available to the equestrian community. However, just because they have been made available to the mass market doesn’t mean they will meet the specific needs of the parties involved. At the very least, an attorney should always review any paperwork to ensure all aspects of the transaction are adequately addressed.

At a minimum, a basic contract should contain the following: 1. Name the parties to the transaction. 2. A detailed description of the horse. 3. Detailed terms of the transaction. 4. A provision on how a default or disagreement will be handled. 5. The county or city the parties wish to litigate if there is a disagreement. 6. A determination of attorney fees and costs if there is a lawsuit. An important note for all horse purchasers is that a “Bill of Sale” is typically only a receipt of a sales transaction and is not a contract capable of addressing the information set forth above. A “Bill of Sale” is often an “AS IS” sale and the purchaser is left with little protection if the horse doesn’t work out. If the transaction amount is greater than $7,500.00 (the maximum amount you can sue for in small claims court in California) it may be worth investing a small amount of money to have an attorney prepare your paperwork. Every horse transaction is unique to the parties involved; make sure your paperwork is
unique as well.

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Southern California Equestrian Directory
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PO Box 893997, Temecula, CA 92589-3997
Main Office: 951.240.0921