[261]Opinion
POCHÉ, Acting P. J. Plaintiff and appellant, Steven Katsaris, brought an action for damages, negligence and intentional infliction of emotional distress resulting from the shooting of his two dogs by defendant and respondent, Melvin Kenneth Cook. Also named as defendants were Cook’s employers, Robert C. and Betty Harvey. Defendants’ motion for a judgment was granted at the close of plaintiff’s case and judgment entered. Plaintiff appeals. We affirm the judgment as to plaintiff’s claims for damages and negligence, but remand the emotional distress claim to the trial court for its further consideration.
I.
Steven Katsaris lived alone on a 120-acre plot of land adjacent to an 80-acre ranch occupied by Mr. and Mrs. Harvey. Katsaris kept two Belgian sheep dogs—a female who was his pet and a male who had been specially trained to provide personal protection for Katsaris. As was his custom when he left town, in May 1982, when Katsaris was away on business he left the dogs in the care of two neighbor boys, Patrick and Jeff Schuette, 15 and 14 years old respectively. About 8 a.m. on May 17, 1982, while the boys were cleaning the dogs’ kennels, the sheep dogs wandered away and would not come when called. Despite the boys’ efforts and those of their father, the dogs remained loose.
About 1 in the afternoon the dogs were shot on the Harvey’s property by their employee, 19-year-old Melvin Cook. Cook’s accounts of the shooting were highly inconsistent. In a declaration he claimed the dogs lacked identification, were biting and mauling the Harvey’s own dog who was chained up, and were worrying cattle penned nearby. At trial Cook testified that the sheep dogs were not biting or mauling the Harvey’s dog, but were merely growling which upset the cattle, and that after he shot the sheep dogs he had not looked for identification tags on them.
Furthermore, he testified that it was his decision to dispose of the two corpses by dumping them into a ditch on the Harvey’s property. According to Cook’s declaration and his statement to the sheriff, he dumped the corpses at the direction of the Harveys or of Mr. Harvey. Cook told Mrs. Harvey about the shooting when she arrived home late in the afternoon of the 17th.
When Katsaris returned from his business trip on the evening of May 17 he found a note from the Schuette brothers telling him the dogs were loose. [262]He searched without success that evening. The next day he widened his search by visiting various neighbors, including the Harveys, to inquire about his dogs and ask that they call him if the dogs were spotted. Mrs. Harvey denied seeing the dogs. On the following day, May 19, Katsaris again visited the Harvey home and showed Mrs. Harvey photographs of the dogs. She once more denied having seen the sheep dogs.
Ten days after the dogs disappeared Katsaris was taken to identify their decomposed remains by the Schuette family, one of whose sons had been told about the shooting by Cook. When the remains were discovered only the female still wore her collar and neither dog had ID tags.
II.
Katsaris contends the trial court erred when it granted defendants’ motion for a judgment under Code of Civil Procedure section 631.8 as to all three of his claims. The trial court found that Food and Agricultural Code1 section 31103 precluded all three claims. That section provides in pertinent part that “any dog entering any enclosed or unenclosed property upon which livestock or poultry are confined may be seized or killed by the owner or tenant of the property or by any employee of the owner or tenant. No action, civil or criminal, shall be maintained against the owner, tenant, or employee for the seizure or killing of such dog.”
The judicial construction of this statute is apparently a matter of first impression. Katsaris advances an interpretation of section 31103 which requires the dog to enter either a walled and roofed (“enclosed”) or an unroofed and partly open pen, coop or corral (“unenclosed”) area containing animals before it can be seized or killed.
We interpret statutory language “according to the usual, ordinary import of the language employed in framing [it].” (In re Alpine (1928) 203 Cal. 731, 737 [265 P. 947, 58 A.L.R. 1500]; Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal.Rptr. 144, 514 P.2d 1224].) Surely the statute means land when it refers to property. Thus, the Attorney General has restated the section as follows: “Any dog entering property outside a city on which livestock or poultry are confined may be seized or killed by the landowner, tenant or the employee of either. ” (63 Ops.Cal.Atty.Gen. 562, 564 (1980).)
[263]By enacting section 31103 the Legislature found the public’s interest in protecting farm animals outweighed the dog owners’ right to permit their animals to roam freely on land occupied by livestock.2 [264]To promote the Legislature’s goal, it gave livestock owners, in section 31103, a privilege to kill or seize trespassing dogs.3
[265]A privilege is either absolute or conditional. Absolutely privileged conduct does not permit any remedy by way of a civil action, regardless of whether or not the privileged conduct was undertaken in bad faith or with malice. (Saroyan v. Burkett (1962) 57 Cal.2d 706, 708 [21 Cal.Rptr. 557, 371 P.2d 293].) A qualified or conditional privilege protects the actor only if he acts for the purpose of advancing or protecting the interest which the privilege seeks to protect. (Rest.2d Torts, § 10, com. d, p. 18.) The privilege created by section 31103 is a qualified privilege under the definitions employed by the Restatement, because it protects nonoflicial actors and is based upon the value of the interest protected. (Ibid.) Likewise sections 31152 and 31153, parallel sections to 31102 and 31103, create, according to Witkin, a qualified privilege to kill or seize trespassing dogs. (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 166, p. 2454.) Thus, under a qualified privilege an actor may be liable for conduct which he undertakes with an improper motive.
Likewise a qualified privilege may be lost if the actor engages in conduct outside the scope of the privilege, thus “abusing” it. (Rest.2d Torts, § 890, com. e, p. 358.) The scope of the privilege created by section 31103 is not clear from its face. The statute proscribes liability for “seizure” or “killing” of a trespassing dog.
The general rule of statutory construction is that a legislative grant of privilege or immunity is strictly construed against the grantee. (3 Sutherland, Statutory Construction (4th ed. 1974) § 63.02, p. 81.) However, the statute must only be strictly construed where it grants a privilege as against the general public as distinguished from a right against some other party. (Ibid.) Section 31103 grants livestock owners immunity from both civil and criminal liability. Thus, the privilege is both immunity from crim[266]inal actions brought in the name of the people and immunity from claims brought by individual dog owners. Because the privileged killing of a dog deprives its owner of his property rights in the animal without his consent the statute should be construed strictly. (Trumpler v. Bemerly (1870) 39 Cal. 490, 491 [statute permitting sale of stray livestock].)
To determine the scope of the section 31103 privilege we borrow the analytical model adopted by this court in defamation cases. In analyzing the absolute privilege protecting communications made in judicial proceedings (Civ. Code, § 47) we use a two step analysis. First, what is the policy rationale which underlies the privilege? Second, does that policy justify applying the privilege to this particular conduct? (Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 824 [106 Cal.Rptr. 718] [dismissal on demurrer reversed where complaint alleged defamatory publication was made in court documents which were not filed in furtherance of pending litigation].)
If the policy choice made by the Legislature in enacting section 31103 is to protect livestock owners from economic loss stemming from the death or injury of their animals, then arguably conduct by livestock owners which goes beyond what is necessary to protect their livestock from trespassing dogs is not covered by the privilege.
Any conduct necessary to the killing of a trespassing dog will be within the privilege. Decisions by the owner of livestock about when, where or how to kill a trespassing dog and dispose of its body, as well as the owner’s delegation of those decisions to his employees, is conduct which comes within the privilege.
In applying this test to the case before us we conclude that the trial court correctly granted defendants’ motion for judgment as to the first cause of action—the claim for damages arising from the killing of the dogs. The question before us is whether the motion for judgment4 was also properly granted as to Katsaris’ other two claims, the causes of action for negligence and for intentional infliction of emotional distress. Are both these claims likewise within the privilege created by section 31103?
Katsaris alleged that the Harveys negligently permitted guns to be kept and to be shot on the ranch near habitable structures, that they negligently supervised, and that they negligently withheld facts of the dogs’ deaths. In all of these claims except the last, if the duty of care was breached by the [267]shooting of the dogs, the claim is barred by section 31103. In the last claim—which alleges that the Harveys negligently failed to tell Katsaris what had happened—the alleged breach was not an act necessary to the killing itself, and thus would not be barred by the statute. The trial court could have granted the motion for judgment on the ground that the Harveys had no duty to tell Katsaris what had happened to his dogs, and therefore Katsaris had not established a prima facie case of negligence. Instead, the court found the negligence claim barred by section 31103. Because there is no duty to speak, Katsaris has no claim for negligent infliction of emotional distress against the defendants. Therefore, we affirm the granting of the motion for judgment on the second cause of action.
Katsaris’ third cause of action was for intentional infliction of emotional distress, If the factual basis of this claim lies in the manner in which the defendants killed the dogs or disposed of their bodies, then the privilege of section 31103 bars the claim. Both the manner of killing and of disposing of the carcasses are matters so intimately linked to the deaths that they are within the scope of the privilege. However, to the extent that the basis of the claim lies in Mrs. Harvey’s post shooting assertions that she knew nothing about the dogs or their whereabouts, her conduct does not come within the scope of the privilege created by section 31103.5
To prevail on his intentional distress claim Katsaris would have to prove that Mrs. Harvey’s conduct was extreme and outrageous, that she acted with intent to cause him emotional distress or with reckless disregard of the probability of causing him emotional distress, that he suffered severe distress, and that her conduct was the actual and proximate cause of his injury. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209 [185 Cal.Rptr. 252, 649 P.2d 894]; Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 394 [89 Cal.Rptr. 78, 47 A.L.R.3d 286].)
Normally the test of extreme and outrageous conduct is an objective one—would the conduct involved outrage the “average member of the community”? (BAJI No. 12.74 (6th ed. 1977); Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297 [131 Cal.Rptr. 547].) The outrageousness of the conduct may arise instead, however, from the actor’s knowledge of the plaintiff’s particular susceptibility. (BAJI No. 12.76 (6th ed. 1977); Newby v. Alto Riviera Apartments, supra, at p. 297.) In the case at hand Mrs. Harvey arguably knew by the time of Katsaris’ second [268]visit to her house that he was extremely concerned by the disappearance of the dogs and anxious to locate them.
The specific intent required for intentional infliction of emotional distress is that the defendant either acted intending to inflict the injury or with the realization that the injury was substantially certain to result from his conduct. (Davidson v. City of Westminster, supra, 32 Cal.3d at p. 210; BAJI No. 12.77 (6th ed. 1977).) Alternatively, the defendant may fulfill the specific intent requirement if he acts recklessly in disregard of the likelihood that he will cause emotional distress to the plaintiff. (Spackman v. Good (1966) 245 Cal.App.2d 518, 530 [54 Cal.Rptr. 78]; BAJI No. 12.77 (6th ed. 1977).)
Reckless disregard can, like any other specific intent, be proven circumstantially by inference from the conduct of the actor. (Evid. Code, § 665; Pelletti v. Membrila (1965) 234 Cal.App.2d 606, 611 [44 Cal.Rptr. 588].) In the context of section 31103, however, it is not, as a matter of law, sufficient to prove reckless disregard by showing merely that the livestock owner failed to notify the dog’s owner of its death, or failed upon inquiry by the dog’s owner to tell him what happened to the dog or lied in response to inquiry by the owner.6
Unless these limitations circumscribe an emotional distress claim made where the killing itself is privileged under section 31103, the purpose of the section’s privilege will be hopelessly undercut. The irate dog owner whose pet has been killed will not be able to bring an action for damages for the loss of the dog, but he will be able to get to a jury on the claim that the livestock owner intentionally caused the dog owner emotional anguish by failing to notify him of his pet’s death, or by not being truthful or forthcoming when asked about its fate. A more lenient rule would disturb the balance of economic interests apparently intended by the Legislature.7 Livestock owners, insulated by section 31103 from often negligible liability for the value of the destroyed dog, would instead be exposed to potentially substantial liability for the dog owner’s emotional suffering.
Because Mrs. Harvey’s post shooting conduct was not within the scope of the privilege created by section 31103, the trial court erred when it [269]granted the motion for judgment as to the claim for intentional infliction of emotional distress. On a motion for judgment the trial court is authorized to, and required to act as a trier of fact. (Code Civ. Proc., § 631.8; County of Ventura v. Marcus (1983) 139 Cal.App.3d 612, 615 [189 Cal.Rptr. 8].) Here the trial court viewed the emotional distress claim as barred by section 31103, and thus it did not reach the merits of that claim. We remand to the trial court for the limited purpose of determining, in light of the foregoing discussion, whether Katsaris proved his claim for intentional infliction of emotional distress.
The judgment is reversed insofar as it dismisses plaintiff’s cause of action for intentional infliction of emotional distress; in all other respects the judgment is affirmed. Each party to bear its own costs on appeal.
Channell, J., concurred.
All further statutory references are to the Food and Agricultural Code, unless otherwise indicated.
Statutes such as section 31103 apparently reflect the dog’s disadvantaged status at common law where it was not considered property. (Comment, Animal Law in California (1985) 12 Pepperdine L.Rev. 567, 590.) However, we cannot say that in modern day California, where ranches are often located next door to suburbia, that there is no longer any need to protect livestock from packs of or from individual roaming dogs. Reports of farm animals being killed or mutilated periodically appear in the news media such as a recent article entitled When Pets Become Killers. (S.F. Chronicle (Mar. 7, 1986) at p. 6, cols. 1-4.) *
In discussing dogs and the common law the dissent makes much of the language “lawful inclosure” in the case of Sabin v. Smith (1915) 26 Cal.App. 676, 680 [147 P. 1180]. (Dis. opn., post, p. 272) Both the Sabin case and the earlier case of Johnson v. McConnell (1889) 80 Cal. 545, 548 [22 P. 219], were cases construing Civil Code section 3341 which permitted killing of a dog caught in the act of worrying, wounding, or killing farm animals. In Sabin the worrying dog had actually entered the enclosure in which the worried poultry was kept. Thus, the Sabin case quite understandably emphasized that the fowl were enclosed, and hence helpless, as justification for the poultry owner’s need to take immediate action to protect his property rights in the chickens. The Sabin court found protection for animals not enumerated in the statute, hence the rule stated in the case is really a fact-specific worst case, e.g., dog within the enclosure, which permitted the court to rely upon a general common law right to act even where statute provided no privilege for the actor. (Dis. opn., post, p. 271.)
In Johnson the court makes no reference to any common law rule because the case is construing the specific provisions of Civil Code section 3341. To that end the court distinguishes a case reaching the opposite result under a differently worded statute. (Johnson v. McConnell, supra, 80 Cal. at p. 551.)
“When Pets Become Killers [fl The two pet dogs looked harmless enough, out for a Saturday romp in a rainsoaked Marin County pasture where sheep were grazing, [f] Then canine instinct took over and the cute dogs, one brown and one black, suddenly acted like hunters. [1] When they were through, seven badly mauled ewes and 20 lambs lay dying on the bloodstained ground near San Domenico School in San Rafael. Don Mills, owner of the slain livestock, said it was the worst such attack he had seen in 35 years of ranching. [1] Dog attacks on livestock increase during the winter lambing season, according to animal control officers around the Bay Area. Yet the problem persists year round, resulting in the death or maiming of a wide range of livestock and wild animals, [f] The part-time predators have been known to attack animals much larger than themselves. Last year, a registered dairy cow valued at $50,000 was killed by dogs in Sonoma County, according to the California Farm Bureau Federation. m ‘There is no doubt that when dogs run loose this way, they undergo a behavior change that most of their owners would not recognize,’ said Diana Allevato, Marin County Humane Society director, after the attack on Mills’ flock several weeks ago. [1] Wherever open space collides with residential development, some seemingly docile pets lead double lives, [t] The problem is not limited to large dogs. Cocker spaniels and small poodles have been seen hunting in packs with other dogs, [f] ‘Even in Hillsborough, people let their dogs go romping loose, and they have been known to run down deer and kill them,’ said Paul Galloway, animal control manager for San Mateo County, [f] In Santa Clara County, animal control officials give farmers posters to display on their fences, warning naive dog owners that their pets may be shot if they stray onto pastureland. [f] ‘Dogs are naturally predatory animals,’ said, Bob Gantt, supervisor of animal control services for the county. ‘A dog will chase, bring down and kill, and he’s not being anything but a dog.’ [t] ‘They’ll do their marauding, then trot on home. People just can’t believe it—they say, “Not my dog.” The dog can go home with a bloody chicken in his mouth and the owner will say he must’ve just found it somewhere, already dead.’ [t] ‘They think their dog is just going down the street to visit his friend the Irish setter,’ Allevato said, ‘In fact, he picks up his friend and they go into the hills to harass and kill livestock. ’ [f] A 1983 [264]Farm Bureau survey of California sheep ranchers showed that dogs and coyotes each commit about half the attacks on sheep, with dog attacks concentrated closer to urban areas, [¶] The majority of dog attacks on livestock and wild animals are committed by pets, animal control officials say. The dogs that killed Don Mills’ sheep were described as medium-size, possibly a Chow and a retriever, each wearing a collar and tag. [¶] They got away. But Mills shot two other dogs—one fatally—when they invaded his sheep pen on Lucas Valley Road a few days later. [¶] T don’t blame the dogs,’ said Mills, ‘I blame the owners.’ [¶] Although pets do most of the hunting in the Bay Area, there are a few cases of wild dogs living by tooth and claw in parks and other open spaces. [¶] Police for the East Bay Regional Park District report that packs of wild, or feral, dogs can be seen from the air during helicopter patrols of the Hayward shoreline, Briones Regional Park and the Las Trampas and Sunol regional wilderness areas, [¶] Several of the animals have been shot and killed by park police for attacking deer. Authorities say the wild dogs are usually wary of humans, but can be dangerous if they are interrupted while attacking their prey. ”
In its summary of the legislative history of sections 31102 and 31103 the dissent conclusively demonstrates that these sections ultimately derive from the 1921 general law as amended in 1929 establishing a comprehensive scheme for the regulation of dogs. (Dis. opn., post, pp. 273-274) What the legislative history does not reveal, however, is a persuasive argument for the next step the dissent takes in reading the “ ‘enclosed or unenclosed property’ ” language of section 31103 to mean that trespassing dogs must enter an enclosed or unenclosed enclosure in which livestock or poultry are confined before the dogs can be killed or impounded.
The 1921 law added a number of new features to California dog law. It made it unlawful for “any person to permit any dog ... to run at large on any farm on which livestock or domestic fowls are kept, ...” (Current § 30955, added by Stats. 1921, ch. 757, § 3, p. 1306.) Likewise the 1921 law permitted impoundment of a dog “straying on any farm whereon livestock or domestic fowls are kept.” (1921 Stats., ch. 757, § 4, p. 1306.) We read the new provision in the 1929 amendment permitting the killing of a dog “entering any enclosed or unenclosed property upon which livestock or poultry are confined” to be a change in the prior law. Whether the change was a good or a bad legislative decision is irrelevant to our inquiry. It has long been the rule that the police power of the state permits it to regulate, even to the point of death, the lives of dogs. “[F]rom time immemorial, [dogs have] been considered as holding their lives at the will of the [Legislature, ...” (Sentell v. New Orleans &c. Railroad Co. (1897) 166 U.S. 698, 702 [41 L.Ed. 1169, 1171, 17 S.Ct. 693].)
Likewise we reject the dissent’s contention that our reading of section 31103 does not logically relate to the provisions of section 31102.
Section 31102 provides in pertinent part: “any person may kill any dog in any of the following cases: [1] (a) The dog is found in the act of killing, wounding, or persistently pursuing or worrying livestock or poultry on land or premises which are not owned or possessed by the owner of the dog. [t] (b) The person has such proof as conclusively shows that the dog has been recently engaged in killing or wounding livestock or poultry on land or premises which are not owned or possessed by the dog’s owner.”
We construe sections 31102 and 31103 to address very different circumstances. Section 31102 creates a broad privilege in “any person” to kill any dog which is misbehaving or has misbehaved around livestock, other than livestock on the premises of the dog’s owner. Such a dog may be killed at any time or any place by any person and his killing will -be privileged. This broad rule is entirely consistent with the need for stringent measures when a dog has proclivities to injure or worry farm animals.
In contrast, section 31103 creates a privilege to kill a dog which is not misbehaving only in the “owner or tenant of the property” or in their employees, and only when the dog enters upon their property. While the dog’s conduct is much less culpable, in essence no more than trespass, the occupant of the property is given broad discretion either to kill or [265]to seize the dog which comes onto his land.
By way of illustration, if rancher Smith looks over at his neighbor Jones’ land on which Jones keeps livestock confined and sees Wolf’s dog trespassing there, he may not injure the dog in any way unless Wolf’s dog worries Jones’ livestock or unless Smith has proof that Wolf’s dog has in the past worried livestock on land not owned by Wolf. Section 31102 permits Smith to intervene only where Wolf’s dog acts or has acted badly. Should Wolf’s dog, however, venture onto Smith’s land where Smith keeps livestock confined, Smith may kill the dog with impunity; under section 31103 he need not wait for the dog to pursue or injure his animals, and certainly not for the dog to actually enter the corral or shed in which the animals are confined. On his own land Smith may treat the trespass of the dog as sufficient evidence of its bad intent. This rule may be a harsh one, but it is not inconsistent with section 31102 which permits anyone, at any time, and in virtually any place to kill a dog who behaves aggressively around livestock. The two sections simply address different situations.
The dissent is much distressed by the harshness of the reading we adopt for section 31103. Yet the dissent does not mention that any county may avoid the harsh result of sections 31102 and 31103 by adopting the stricter provisions for control of trespassing dogs embodied in sections 31152 and 31153.
Code of Civil Procedure section 631.8, subdivision (b) permits the trial court to grant a partial motion for judgment.
There was no evidence before the court that Mrs. Harvey’s conduct was malicious and thus an abuse of the qualified privilege granted by section 31103. According to her statements to the deputy sheriff she did not contact Katsaris because she did not have his telephone number.
In the case before us we do not decide whether Mrs. Harvey’s conduct went sufficiently beyond the acts outlined above to demonstrate her reckless disregard for Katsaris’ emotional distress.
Section 31103 is one of a group of statutes which have been criticized because they protect the economic interests of some members of the public (here livestock owners) at the expense of a property loss suffered by other members of the public (here dog owners whose pets are destroyed). (See Van Alstyne, Statutory Modification of Inverse Condemnation: Deliberately Inflicted Injury or Destruction (1968) 20 Stan.L.Rev. 617, 631, appen., table I.)