California's Dog Lemon Law - Some Things Everyone Should Know

by Steve Reiss (stevenreiss@scienbizippc.com)

I was recently studying California's dog lemon law, known as the Polanco-Lockyer Pet Breeder Warranty Act. Cal. Health & Safety Code § 122045 - 122315, which went into effect 1995.

As of late 2017, about 22 states have a dog lemon law, and if you are buying a dog across state lines, you will probably want to see if your state or the seller's state has the law if lemon law protection is critical to you. Out of state purchasers also need to be aware of the act's California vet certification requirements when certain claims against a breeder are going to be made. These in-state vet certifications are described below and not unique to California.

From a seller standpoint, it does not take much be deemed a "breeder" and subjected to the act. The act defines "breeder" as:

a person, firm, partnership, corporation, or other association that has sold, transferred, or given away all or part of three or more litters or 20 or more dogs during the preceding 12 months that were bred and reared on the premises of the person, firm, partnership, corporation, or other association. California Health and Safety Code §122045 (emphasis added).

On first skimming, seeing the "20 or more dogs" during the year language, you can easily get lulled into the impression that small-time breeders are not going to be covered by this law. Selling 20 dogs in a year is selling a lot of dogs. The law is not that crystal clear, however.

First, despite the act never using the word "puppy", the act places more responsibility on those dealing in puppies. Puppies are typically referred to as "parts of litters"; grown dogs are usually not so characterized (despite, obviously, originating from litters).

So, if you are dealing in puppies, transacting away just three in a year will place you under the act.

If you are dealing in grown dogs, transacting away twenty dogs in one year will place you under the act. You can decide to only sell 19 dogs in one year, making thousands of dollars, and not fall under the act. But give away 3 cute puppies from your family pet's litter of 4 to friends and family and you are a "breeder". Then, if you want to sell the last puppy from that litter, all the obligations of the act apply to you. This is a stark difference in treatment of puppy breeders and grown dog breeders. Apparently, the state feels sellers of puppies need more supervision. This is consistent with the state's crackdown on retail puppy stores. See Lockyer-Polanco-Farr Pet Protection Act. § 122125 et seq. (1995); Pet Rescue & Adoption Act § 122354.5 (2017).


Second, to be a breeder, the dogs or litters must have been "bred and reared" (my emphasis) on the premises of the person, firm, partnership, corporation, or other association. So, if I sell 20 dogs that were born on my property but reared on my friend's, am I not a breeder? Will the relationship between me and my friend be an "association", even if we have no legal agreements between us?

NOTE: Sales of any type of dog (grown/puppy) by a seller not a "breeder" under the act or otherwise not falling under the act, would still be subject to breach of contract actions in the case of issues with the dog. If the seller is able to be deemed a "merchant" under California's version of the Uniform Commercial Code, additional warranties would result. See this article for more information.
 
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Now, if you are a "breeder" in the Golden State, you need to understand this act, as well as your obligations under it. Some of the interesting highlights of the act are:

1. The act only protects purchasers. You knowingly gave away a sick dog that dies the day after the person takes possession? This act does not apply. § 122045. The purchaser will have to look into other, non-contract based, potential causes of actions, such as negligence or product liability, which may not require a "purchaser" or contract.
   
2. The only exception to (1), above, is all breeders must keep their dogs in properly sized and sanitary kennels, provide their dogs with adequate: nutrition and potable water, socialization and exercise, and veterinary care without delay when necessary. § 122065.
3. Breeders need to be ready to provide, with every dog sold, the California-mandated written "Notice of Purchaser Rights, as set out in §122100 and all the other dog information listed in § 122050. 
4. There is a rebuttable presumption that an illness existed at the time of sale, if the dog dies within 15 days of delivery to the purchaser. § 122075.
5. In any case where a dog you sell dies or becomes sick less than 15 days from taking possession of the dog, even if in another country, only a California vet can make the findings necessary for the purchaser to recover. § 122070.
6. Just because a dog a breeder sold the purchaser died, the breeder is not automatically liable to the purchaser under this act (again the purchaser may have a breach of contract claim against the breeder).  Liability under the act requires the dog be certified by a California vet to have died due to an illness or disease that existed within 15 days after the purchaser obtained physical possession of the dog or a congenital or hereditary condition that was diagnosed by the California vet within one year after the purchaser obtained physical possession of the dog. See chart below. § 122070.
7. There is the potential for civil penalties if a breeder "knowingly sells a dog that is diseased, ill or has a condition, any one of which that requires hospitalization or nonelective surgical procedures", Penalties include civil fines and prohibitions from selling dogs for a period of time. The fines and prohibition times begin at $1000 and 30 days for the first offense. § 122060. 
8. There is also the potential for civil penalties if a breeder violates any other portions of the act, such as the dog anti-neglect provisions. Fines are $1000 per offense. § 122110.
9. A breeder can still sell a sick dog, so long as a thorough and accurate statement of the sickness is provided to the purchaser and any medical conditions the dog may have do not require hospitalization or nonelective surgical procedures, nor likely to require hospitalization or nonelective surgical procedures in the future. § 122050.
10. The law does not apply to sales made by publicly operated pounds, humane societies, or privately operated rescue organizations. § 122045.

 

Health Situation When  Finding Required Illness 15 days from transfer to buyer the dog has become ill due to any illness or disease that existed in the dog on or before delivery of the dog to the purchaser Illness Within one year from transfer to buyer the dog has a congenital or hereditary condition that adversely affects the health of the dog, or that requires, or is likely in the future to require, hospitalization or nonelective surgical procedures Death Anytime the dog has died due to an illness or disease that existed within 15 days after the purchaser obtained physical possession of the dog after the sale by a breeder Death Anytime the dog has died due to a congenital or hereditary condition that was diagnosed by the veterinarian within one year after the purchaser obtained physical possession of the dog after the sale by a breeder
This post does not contain legal advice; it is strictly for informational purposes.  Breeders, purchasers, and members of the public should always consult with an attorney about any specific issues they have.

Prosecution Delays at the USPTO of the Type We Are Not Meant To Hear About (Part II)

by Steve Reiss (stevenreiss@scienbizippc.com)

Part I of this Article is here.

Part I of this article discussed William Friedman's USP 6,097,812 (2000), with its 66 year pendency due to 65, yearly, security holds, currently holds the "world record" for suppressed/classified inventions. 

Friedman's crypto patent's 66 year security hold/pendency is longer than any security hold for any atomic weapon technology that was actually granted a patent. I have to use the caveat "actually granted" because there is a possibility that there are atomic weapon technology patent applications still under secrecy hold. However, who knows if another 1930's filed Friedman invention is also still under secrecy hold.

The closest atomic weapon application pendency length I could find was USP 6,761,862 (filed 1945/granted 2004)(59 years) and I was only able to find it with the help of the website Atomic Patents.

 USP 6,761,862 is directed to:

some obscure chemical process in the enrichment of uranium (uranium hexafluoride is the "fluorine-containing gas" in question), probably in relation to the gaseous diffusion method used to enrich uranium at Oak Ridge, Tennessee, during the Manhattan Project.

See Atomic Patents.

The author of Atomic Patents interviewed the Department of Energy's legal counsel in charge of the uranium processing patent. The author of Atomic Patents asked him why these patents are still prosecuted despite their extremely extended age. He said (emphasis added):

Our feeling has been that a significant taxpayer investment was made to create the inventions and to prosecute the patents so that payment of the issue fee finalizes the effort to provide a property right arising from the government funding. Of equal merit is the recognition provided to the inventors. When the patent issues we make a small good faith effort to find the inventor or a surviving spouse and notify them of the issuance of the patent. When notify someone, they are usually deeply moved by the recognition provided for their long ago secret efforts.

It is reported that the Manhattan Project inventor of this uranium processing patent, James P. Brusie, had been some time deceased by the time his patent was issued, though I could not find out how long.

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Closing Thoughts:

When I was a patent examiner at the USPTO from 1988-1993, the secrecy examining group was, I believe Examining Group 220 and, if I recall, also examined design applications. Talk about a range of subject matter.

Examining Group 220 was located on a top floor in one of the then-USPTO's Crystal Plaza buildings in Crystal City.

One day, I needed to go to another USPTO building to “search the shoes” (i.e., the paper patent files) of some other class from the class I regularly examined. These were the days before there was any way to efficiently do computer searches in the electro-mechanical arts. But that is a different story.

When I got off the elevator, the first thing I saw was wood grained, locked double doors to the office space for Examining Group 220 and their "Do Not Enter" signs. Friedman’s crypto and Brusie’s uranium processing patent applications were probably still locked in vaults behind those double doors.

However, back among us regular examiners, the gossip was not about what kind of cryptographic or atomic weapons patent applications were behind those doors. 

Our pondering was on far more mundane subjects, such as: never-dulling razor blades or everlasting light bulbs.