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.

Dog Breeders and Trademarks (Part III)

by Steve Reiss (stevenreiss@scienbizippc.com)

Need for Trademark Protections...

It is far easier for brand new kennels, without a history, to receive a US trademark registration than register with the AKC. A US trademark can be applied for as early as when you have an intent to use the kennel name in commerce. That is, you can file for a US trademark before you are actually in business so long as the breeder has a bona fide intent to use the mark in commerce. Therefore, a US trademark can provide some protection for the kennel owner before the kennel is eligible for AKC registration. It is quite possible that if the new kennel files and receives its trademark early in the kennel's life, by the time the kennel name can be AKC registered in five or so years, the kennel's trademark may become incontestable.

So, new kennel owners should strongly consider whether acquiring a US trademark is a good investment for a business that is strongly dependent upon name recognition and good will. Reliance upon AKC registration, common law trademarks, or state trademarks, is simply not enough, especially for the critical first years in which the kennel is trying to establish the value of its dogs.

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Best of luck in the canine competition and exhibition world.

We are there if you need us...

This post is advertising material and not legal advice.

Dog Breeders and Trademarks (Part II)

by Steve Reiss (stevenreiss@scienbizippc.com)

In our previous post, we discussed the value of kennel names and the limited trademark-like protection provided to kennel's registered with the American Kennel Club (AKC).

We ended that post by raising the question of whether this AKC protection is enough?

The answer to that question can be "no".

First, the AKC protection does not give the kennel owner any protection outside AKC events or the registration of dogs with the AKC. With a registered US trademark, the kennel owner is protected nationwide against any unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services. In other words, the US trademark will give its owner both wider territorial coverage and wider range of potential infringers. Indeed, a business' trademark is often considering that business' most valuable asset.

While admittedly an inability to be able to register a dog with a confusingly similar name with the AKC is a powerful tool. An inability to register the puppies with the AKC can make the puppies valueless. After all, it is the AKC chain of pedigree is what evidences value of a puppy.

Second, the AKC requires potential registrants to have a history with the AKC and a history of breeding or studing. This can mean a minimum of 5 years to be eligible to register with AKC. Accordingly, brand new kennels, without a history with the AKC, will be unable to register their kennel name and therefore potential shady kennels are free to have dogs with potentially confusing names registered with the AKC.

More to come...

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Best of luck in the canine competition and exhibition world.

We are there if you need us...

This post is advertising material and not legal advice.

Dog Breeders/Kennels and Trademarks (Part I)

by Steve Reiss (stevenreiss@scienbizippc.com)


The value of a dog is in large part based upon its pedigree. Its pedigree is not only based upon the dog's particular parents. Its pedigree is also based upon the reputation and good will of its breeder. The reputation and goodwill of the breeder is probably more important. Hearing that famous Kennel XYZ just had a litter of pups, may be enough to have potential purchasers of those pups running to Kennel XYZ before even knowing about the parents of those puppies.

Given that so much value of a dog is based on the name of its breeder, breeder kennel names are ripe for protection.

That dog breeder kennel names huge carry good will, are valuable, and should be protected, has been long recognized.

Almost concurrently with the founding of the AKC (American Kennel Club) in 1887, kennel names of prominent breeders were recognized. The first publication of registered kennel names was in the January 1889 issue of the Gazette. The first official rule governing kennel names appeared in the January 1, 1903 AKC's Rules for the Government of Dog Shows, See Registered Kennel Names.

Today, the AKC allows the registration of kennel names:

When a kennel name is registered [with the American Kennel Club], the American Kennel Club will exercise reasonable care in protecting the name for the use of the individual(s) to whom it has been registered. Currently, a Registered Kennel Name is protected in all positions of a dog's name. For example, if the name "Bob" was a Registered Kennel Name, then the name could not appear anywhere in the name of a dog without the written permission of the owner of that kennel name. Further, a dog or litter cannot be registered with a kennel as its owner unless the kennel name is registered with the AKC. Id.

So, the AKC offers a very limited trademark-like protection to those who register their kennel name with the AKC.


The question kennel owners must ask themselves is "Is the AKC protection enough?"

We will try and answer that question in Part II of the post.

This post is advertising material and not legal advice.