gavel.jpgA state appeals court in San Francisco has ruled that a Brentwood man whose cat was partly paralyzed by a shot from a pellet gun can try to sue the alleged perpetrator for $36,000 in surgery and care costs.

The Court of Appeal, in a ruling issued Tuesday, said that even though the costs exceed the market value of Kevin Kimes’ cat, California law allows him to seek the reasonable costs of repair of his property.

Pets are considered property under California law.

Kimes’s cat, a long-haired orange tabby named Pumkin, was shot with a pellet gun on Oct. 28, 2005, as he sat on a fence between Kimes’ and his neighbors’ backyards.

Kimes, 46, a semiconductor engineer, claims in a Contra Costa County lawsuit that the neighbors–either Charles Grosser, who was then an 18-year-old student at Los Medanos College, or his father, Joseph Grosser–shot Pumkin.

The Grossers deny they had anything to do with the shooting and maintain they did not own a pellet gun, according to their lawyer, Kevin Cholakian.

“This is not the Kennedy assassination,” Cholakian said. “This is a poor cat someone shot with a pellet gun. It’s really terrible, but it wasn’t our kid,” the attorney said, referring to Charles Grosser.

The appeals court ruling did not address whether the Grossers are liable for the shooting, but merely allows Kimes to claim at a future trial that they were responsible and to seek reimbursement for $6,000 in veterinary surgery costs and $30,000 for additional care expenses.

A trial jury will decide whether the Grossers were responsible and if so, whether the $36,000 costs were reasonable.

Kimes said of the ruling, “I’m ecstatic about it. Win, lose or draw, I want to be heard in court. I want Pumkin to get his justice.”

Kimes said that Pumkin, who was injured in a back leg, tail and bladder, eventually recovered about 75 percent of his mobility.

“He had a good quality of life. He could stand up and eat and walk about 20 steps. He was a real hero of mine,” Kimes said.

Pumkin died of unrelated causes in 2009, he said.

The engineer also said of the decision, “Words can’t describe it.

It’s about time a court said that pets have some value or worth and pet owners will be able to go after people who abuse and shoot animals.”

A three-judge panel of the appeals court overturned a ruling in which Superior Court Judge Barbara Zuniga said California property law would not allow Kimes to recover any compensation greater than the value of the cat, which had little or no market value.

But the appeals panel, citing a different California property rule and a 1915 California Supreme Court decision, said the law allows compensation for damage to property that has worth other than market value.

The panel said Kimes’ claims meet the state Supreme Court’s requirement that the non-market worth must be calculated in a rational way.

Justice James Marchiano wrote, “In this case, plaintiff is not plucking a number out of the air for the sentimental value of damaged property; he seeks to present evidence of costs incurred for Pumkin’s care and treatment by virtue of the shooting–a rational way of demonstrating a measure of damages apart from the cat’s market value.”

Kimes said he adopted Pumkin, a stray who came to his doorstep, about two years before the shooting.

He said he was traveling in Mexico at the time of the incident. A different neighbor who was caring for Pumkin and several other cats owned by Kimes saw Pumkin sitting on the backyard fence and also saw Charles and Joseph Grosser in their backyard at the time, Kimes said.

When the neighbor returned from a jog, she saw Pumkin lying wounded on the ground and rushed him to a veterinary hospital.

Cholakian said that at the apparent time of the shooting, Charles Grosser was in a classroom at Los Medanos College.

Both sides have hired ballistics experts. Kimes said his expert says the shot must have come from the Grossers’ backyard, and Cholakian said the Grossers’ expert says the shot could have come from any of several directions.

In addition to allowing Kimes to pursue his claim for damages, the appeals court said the engineer could seek a punitive award as well if he can show that the shooting was intentional.

Julia Cheever, Bay City News

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