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00:00Your dogs, in fact, killed 10 of your emotional support hens.
00:05I call them my girls.
00:07Now, on Tribunal Justice...
00:09Your two dogs are just mauling on these chickens.
00:12The chickens allowed me to kind of be at peace for a minute or two or ten.
00:16Nobody can really say how much somebody is struggling with something.
00:19Keeping these chickens was actually a recommendation of his doctor.
00:24He typed that up.
00:25The man served our country, and you challenge whether or not he's telling the truth?
00:29Did you ever serve in the military?
00:32Shame on you.
00:33One day full of children th ‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‥‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖‐‖‖‖‖‖‖‖‐‖‖‖‖‖‖‖‖‖‖‖‟‖‖‖‖‖‖‖‖‖‖‖‖‖‖‖�
01:03for on the calendar in the matter of McKenzie versus Hunt Dwelly.
01:07Pies have been sworn in, Judge. You may be seated.
01:09Ladies, have a seat, please.
01:11Thank you, Bird.
01:11Mm-hmm.
01:12Mr. McKenzie, you're here suing both Mr. Hunt.
01:16Correct.
01:17And Mr. Dwelly.
01:17Dwelly.
01:18For $10,000 because it was Mr. Dwelly's two dogs
01:23that left his property and killed 10 of your emotional support hens.
01:29You're suing Mr. Hunt because he is the owner of the property
01:33and he rents his property to Mr. Dwelly.
01:36And you're suing them for negligent infliction of emotional distress
01:40as well as straight negligence.
01:42Correct.
01:42Mr. Dwelly and Mr. Hunt, it's your combined position that you owe nothing
01:47because the Homeowner Association rules prohibit chickens on anyone's property.
01:53You also indicated that you offered Mr. Dwelly $300, the cost to replace them,
01:58because you do not dispute that your dogs, in fact, killed the chickens, correct?
02:03Yes, they did.
02:03And that offer was rejected.
02:05Right.
02:06Okay.
02:06Let's start right in the beginning.
02:08Mr. McKenzie, according to your complaint, you are an Air Force veteran
02:12and you were honorably discharged after suffering a catastrophic injury while on duty.
02:18Correct.
02:18You were diagnosed with post-traumatic stress disorder,
02:22due in part to your military service and the injury that you received.
02:27I received that diagnosis in 1984 when the accident occurred.
02:32I got diagnosed with PTSD and depression.
02:36Were you, in fact, under the care of a duly licensed physician and psychiatrist
02:41for that disorder and depression?
02:43Yes, sir, since 1984.
02:45And that's been continuous?
02:47Yes, sir.
02:47When did you purchase these?
02:49And I use the word chicken, but they're really hens.
02:52I call them my girls.
02:54When was it that you purchased your girls?
02:57March of 2023 at two days old.
03:01Let's take a look at video that you provided us with prior to coming in today.
03:05P2.
03:06Can you tell us what you provided?
03:08We had a big bend, probably about the size of the table,
03:11and I had a heat lamp in there.
03:12You keep it a certain temperature.
03:14And there's 12 hens.
03:16At that time, they were probably four days old.
03:19I raised them like this until they were approximately three months old,
03:23when they had enough feathers to go outside and to care for themselves.
03:26Our grandkids at that time, they would come and play with them.
03:30And they would be out of their cage or their container, and they would start playing with the chickens.
03:42And at the time, I was doing poorly with mental health issues.
03:47And it was a way that I could relate to people.
03:51And was this a recommendation from your psychiatrist as a result of your post-traumatic stress disorder diagnoses?
03:58Yes.
03:58I think the way he put it was, you better get yourself some chickens or a dog or something before
04:05you really hurt yourself.
04:06Now, you're from the state of California, correct?
04:08The law is not super clear on what type of damages you're entitled to.
04:14Is it just property, and therefore you're entitled to nothing but the replacement value?
04:18Or are you entitled to emotional distress, like you're suing the defendants for today?
04:23Some courts say yes.
04:25Some courts say no.
04:26It's very fact-specific.
04:27And what I want you to do, I want you to tell us what some of your symptoms were prior
04:32to getting your chickens and then after.
04:35I'm not proud of it, but I was extremely abusive to my family with anger and rage.
04:42When I had the chickens, I would be willing to go outside.
04:46I have a fear of going outside because of my anger.
04:50And I was able to go outside and be what I felt would be a human to go outside.
04:55And then neighbors would come over and we'd help with yard work.
04:58But the chickens allowed me to kind of, I don't know, be at peace for a minute or two or
05:03ten.
05:03I think my therapist said it best about a week ago.
05:06She said, Brian, you haven't been written up at the VA for almost a year and a half for not
05:11dropping F-bombs.
05:12And she said she was really proud of me for that, that I had come to the point where I
05:16wasn't full of rage and anger.
05:18I'm going to bring your attention now to October 2023.
05:21Did something happen with respect to two of your hens?
05:23Two ladies came to my door and said, there's two dogs that just killed two of your chickens, that they
05:30were throwing them around and they were ragdolls flying through the air and there's feathers everywhere.
05:36And I went out and there was one of them that was just laying there in pieces, just slaughtered.
05:45And there was no evidence at that time in October 2023, according to your complaint connecting these?
05:50No, not at all.
05:51These two dogs, right. But as a result of that incident, you took some protective measures, according to your complaint,
05:56including putting up a security camera.
05:58We had a security camera that I had on my back porch and pointed it towards there.
06:03Now, something happened on April 13th, 2024. Is that correct?
06:08Yes, sir.
06:08I was down at my mom's house in the L.A. area. She's 85 and wanted to move up near
06:13where we're living.
06:14And I was down there helping her sell her house, pack it up and move up there.
06:19And my wife called me, just devastated, crying.
06:23And she said that two dogs had got in there and just tore, I mean, I don't know how to
06:31say it, just tore up.
06:32That's what your wife said.
06:33Ma'am, can you please step up?
06:37Miss McKenzie?
06:38Yes.
06:39Okay, before I ask you any questions, I want to direct some questions to you, Mr. Dwelly.
06:42Yes.
06:43Now, you have two dogs, correct?
06:44Correct.
06:45Can we put that photograph up, please?
06:47And those two dogs are Axel and Marvel?
06:49Yes, Marvel is the husky mix, the black one with the brown eyes.
06:53Husky mix.
06:54Yeah, shepherd, husky.
06:55And Axel is the shepherd mix, correct?
06:57Yes, German shepherd, Belgian Malinois, and 8% gray wolf.
07:028% gray wolf?
07:03Yes.
07:05Coming up on Tribunal Justice.
07:07Did you see the letter?
07:08Yes.
07:09The letter that I was given was not that letter presented for evidence here.
07:14Is there some reason that you doubt the legitimacy of this letter?
07:18Absolutely.
07:24Brian McKenzie is suing homeowner Ken Hunt and his tenant Robert Dwelly after Ken's dogs attacked and killed Brian's emotional
07:31support chickens.
07:31Brian wants the cost of the chickens and emotional distress totaling $10,000.
07:36Ken and Robert say Brian rejected their offer to pay for the damages, so they owe nothing.
07:41Mr. Hunt, you rented to Mr. Dwelly, correct?
07:44Yes, that's correct.
07:45And how long has he been living in your home as of April 13th, 2024?
07:49He had been living there about 10 months.
07:5210 months.
07:53And you knew when he moved in he had these two dogs?
07:55Correct.
07:56Now, Mr. Dwelly, April 13th, 2024, the date of this incident, was not the first time, according to your answer,
08:02that your dogs got off your property, right?
08:04Correct.
08:04That had happened how many times before?
08:07About five times prior.
08:08And what, if any, efforts did you make to make sure that your dogs did not get off your property?
08:14Okay, so the first effort we made was we put debris over the stump that they were using to lunge
08:21over the fence.
08:22And then, after that, it didn't work.
08:24So we cut the stump all the way to the dirt.
08:27That did not work.
08:28What else?
08:28So then we got an electric fence.
08:29All the way around the house.
08:31Yeah.
08:31And they have to wear a collar.
08:32And they have to wear a collar.
08:33So did they always wear their collars?
08:35They always wore the collar.
08:36There was never a time they did not wear their collars.
08:38No, they didn't.
08:39When we had it, they wore it all the time.
08:40All the time.
08:41Because you would agree that if there was a time where they were not wearing their collars, that that would
08:44just be negligence on your part.
08:46Sure, yes.
08:47So, I'm asking you now, Ms. McKenzie, I would like you to tell us what you witnessed on April 13th,
08:532024.
08:54A bunch of dead chickens, feathers everywhere, and just pieces.
09:00And your husband was not home?
09:01No.
09:01There came a time that you went back in the house and you looked at the video, correct?
09:05Yes.
09:06Let's take a look, please.
09:07Now, listen.
09:09This is tough, especially for you, sir.
09:11If you don't want to watch it, you most certainly do not have to watch it.
09:13Thank you, Your Honor.
09:14All right?
09:15If you would like to step out for a moment, you're more than welcome to step out.
09:18We don't need you here for this part.
09:19Thank you, sir.
09:22So, let's put that up.
09:23P1.
09:25This is your backyard, is it not?
09:26Yes.
09:27Which dog is that?
09:28That would be Marvel.
09:29Marvel.
09:31That's Axel.
09:32That's Axel.
09:33With the chicken in its mouth going around the other side.
09:35Now, I will note, sir, that neither of those dogs have collars on them.
09:38That is correct.
09:39And your two dogs are just mauling on these chickens.
09:42Yes.
09:43We had feathers scattered from there all the way across our driveway up to the end of the driveway, which
09:49is about the length of our motorhome, our mobile home.
09:52We can take that down, and we can have your husband come back in, please.
09:59And now I'm going to pass it to my colleague, Judge Acker. Thank you very much.
10:03Thank you, Judge.
10:04What happened to your dogs?
10:06We surrendered them, and they were euthanized.
10:10So just so we're clear, you've actually, in your answer, acknowledged some degree of negligence.
10:15Absolutely.
10:16So Mr. McKenzie is alleging $600 in, we'll call it, property damage for the chickens themselves, but he also has
10:25a claim for $9,400 in emotional distress damages.
10:29If we find those damages are valid, why wouldn't you be liable for that?
10:33Well, nobody can really say how much somebody is struggling with something.
10:37Did you hear him?
10:38Did you hear his testimony about how much he's struggling?
10:40Could we please put up Exhibit 3, that's the Vet Affairs letter that the plaintiff has submitted to show that
10:48keeping these chickens was actually a recommendation of his doctor.
10:52And in fact, sir, it was May 1st, 2023.
10:55And the reason I underscore that date is that you established what these chickens were and what they meant to
11:02you long before the incident.
11:03But, sir, one of the elements of the defendant's defense that they haven't really gone into here is that your
11:11community doesn't allow you to keep poultry.
11:14I was going to mention that the POA is like a property owners association, and I supplied the letter to
11:20them, and then that gives me the ability to have chickens legally.
11:25My chickens were contained where they belong.
11:28Your chickens were, and I'm sorry to interrupt, but I just want to make sure that we're underscoring that point.
11:32You are going to attract coyotes, and you're going to attract other animals that might pose a danger to someone's
11:39puppy or to another domesticated animal.
11:43So I think there are good reasons for the prohibitions, but when a doctor says these chickens are pets that
11:50are important to your recovery,
11:52then I think it really takes it out of the realm of that homeowner's prohibition.
11:57Were you about to say something, sir?
11:58I would like to address that.
12:00Please, please.
12:00Please do.
12:01The doctor did not say that.
12:03Did you see the letter?
12:04Yes.
12:04Not only did I see a letter, the letter that I was given was not that letter presented for evidence
12:12here.
12:13Is there some reason that you doubt the legitimacy or the authenticity of this letter?
12:18Absolutely.
12:19I just dug this out and got it after researching what you had to do.
12:24Okay.
12:24And it said that a letter by a licensed physician.
12:31Bird, could you get that, please?
12:33And all this does is to show that they did not follow the protocol to get a licensed physician to
12:42fill out a form,
12:43to put it on a letterhead of the VA, and may I approach the screen over there?
12:51Sure.
12:51And then I'm going to, after you make this point, I'm going to pass the case to Judge Domingo.
12:55You see how this indicates Department of Veterans Affairs right up there in the center, all centered script?
13:02Yes, sir.
13:03The blurred out items here are not that way on the copy of the letter that I was given.
13:10This second line started way the heck over here.
13:13It's right here.
13:13And then they went the third line here.
13:16Bird, can you get that other item?
13:17Which made me believe that the plaintiff created this letter.
13:23I can address that if you'd like.
13:24Please do.
13:24When I originally filed the claim, they suggested I try to mediate with Mr. Hunt.
13:30So I just gave him letters.
13:32And what it had done is that when I printed it on my format versus the VA, when I downloaded
13:38it off of my healthy vet,
13:40it had shifted the title all the way like the column left justification.
13:46And then when I was preparing for court here, I made the correct one.
13:51Thank you, sir.
13:52Thank you, Judge.
13:53I need to bring something up.
13:54What is it you want to bring up?
13:55He just mentioned that he typed that up.
13:58I didn't say typed it up.
14:00Stop.
14:00Both of you, stop.
14:02Okay, look.
14:02That letter was not written in accordance with the veteran rules.
14:06That letter was typed up, it looks like, by somebody at home.
14:09Does that mean you're not going to prevail in this matter?
14:12Absolutely not.
14:12It just means you didn't comport with those rules.
14:15Now, for somebody who's so interested in following rules, let me ask you, sir, both of you,
14:20were your dogs, were they licensed?
14:22No.
14:22No.
14:23Why weren't your dogs licensed?
14:25Coming up on Tribunal Justice.
14:28The letter that he provided while the heading might be off, your better argument was it wasn't signed.
14:34Your copy is signed.
14:36So you just made his case.
14:43Brian McKenzie is suing homeowner Ken Hunt and his tenant Robert Dwelly for $10,000 after Robert's dogs mauled and
14:51killed Brian's emotional support chickens.
14:53But Ken and Robert say chickens are not allowed in their community.
14:57Plus, they offered to pay for them.
14:59Brian refused, so they owe nothing.
15:01Were your dogs, were they licensed?
15:03No.
15:04No.
15:04Why weren't your dogs licensed?
15:06I'm just pointing out, you know, if you want to really go by strict rules and all, we can do
15:11that across the board.
15:12But sometimes the law bends a little bit and listens in its attempt to be fair and just.
15:16By the way, gentlemen, even though your HOA rules prohibit poultry and chickens and so on,
15:21I think that's all superseded by California's Fair Employment and Housing Act, which requires that if people have legitimate support
15:30animals, that those animals be permitted.
15:32So that's when these documents will have some more significance in the course of this case.
15:37But on the other hand, sir, pets are what they call chattel.
15:42They're property.
15:43They don't enjoy the same rights that humans have.
15:47And that holds even for support animals.
15:51So there are certain rules and certain laws that are called negative infliction of emotional distress.
15:58And the reason why that's important is because it's very difficult to even establish the intentional infliction of emotional distress.
16:08They're called bystander laws, which means if you're walking on the street and you have your child with you and
16:14a car comes by and intentionally crashes into your child,
16:19you're not injured, you're not hurt, but you are emotionally traumatized by that.
16:25The law has taken a while to carve out an exception to say if you are a close relative,
16:30if you were present at the time of the injury and several other factors,
16:34then you could recover under what they call the bystander law for an intentional infliction of emotional distress.
16:41Very limited.
16:43What you're missing in your case is, one, you were not present.
16:47Two, your girls are not humans under the law.
16:51And the actions by the defendants, if we say, would be negligent,
16:58which would mean that there would be no recovery for you other than the actual out-of-pocket cost of
17:05the girls.
17:06Even if you were to show that their acts were intentional, that he should have had a collar on those
17:12dogs when he lied in this courtroom.
17:13By the way, I know you don't like lying, and he did lie to us about the fact that the
17:17dogs were collared,
17:18because in the video, they were not.
17:20And he's in a bad place, because honestly, we can all make an assessment that the behavior that we've seen
17:26is in dire need of some sort of outside support, so that he can maintain his ability to function.
17:33At this point, if my colleagues have other questions, they're going to continue.
17:37Okay. So, ma'am, do you have anything to add?
17:39Can you help out Mr. Hunt? Because he seems to think that your husband's malingering.
17:43Well, before, he had a very bad anger.
17:46After he's picked up lawnmowers and thrown them at the fences, because it wouldn't start.
17:51And he got better after he was following the recommendations of the most recent psychiatrist at the VA in Chico,
18:00California, right?
18:01Yes.
18:01Put up number 04.
18:02I figured, you know what, I said, let me just grab this, just in case one of the litigants makes
18:07a moronic argument.
18:09There might be a question with the documentation that she provided in which she identified his disability,
18:15and the fact that she was specifically recommending chickens.
18:18She, in fact, works at the Department of Veteran Affairs, and she worked there May 1, 2023, consistent with the
18:25letter, sir, that you provided.
18:27And I thank you for providing this letter, because, quite frankly, the letter that he provided, while the heading might
18:32be off,
18:33your better argument was it wasn't signed.
18:37Your copy is signed.
18:38Give it back to him.
18:40Thank you, Byrd.
18:41So, you just made his case.
18:44Now, you had that letter in your possession for how long?
18:47Three or four weeks.
18:47Good.
18:48Did you ever contact the number to see if, in fact, she wrote that letter, yes or no?
18:53No.
18:53So, that argument, gone.
18:56The man served our country, suffered catastrophic injuries.
19:00Did you ever serve in the military?
19:01Yes, I did.
19:02You did?
19:03So, you have brothers and sisters that you served with that suffer the same exact things that he does,
19:08and you challenge whether or not he's telling the truth without ever calling his doctor beforehand?
19:13Shame on you.
19:14I challenge that.
19:15Shame on you.
19:16And any effort to undermine your emotional distress, what you suffered, I think is deplorable.
19:22I'm done.
19:23Judge Acker.
19:24Mr. Hunt, I actually want to sort of give you a minute to respond.
19:29I know you've had some things to say.
19:31Yes.
19:32The Paradise Pines Property Owners Association rules and regulations have this regulation about not having fowls on your property.
19:45Why would they do that?
19:47Somebody didn't like chickens?
19:49No.
19:50They are bear bait.
19:52They are mountain lion bait.
19:53Those are the animals that we live with in our mountain community.
19:57I still believe he caused an endangerment to his neighbors and anyone who lives in that area by having the
20:06predator bait in his yard.
20:08All right.
20:09I don't have anything else.
20:10Thank you both.
20:11All right.
20:11We're going to retire to deliberate.
20:12Court now stands in recess.
20:14This case will be recalled.
20:17Parties are excused.
20:25Okay, so the first cause of action, the plaintiff needs to prove for negligent infliction of emotional distress that the
20:33state of California, as most states do, are moving away from a plain chattel view, recognize the right of owners
20:42of emotional support pets to sue for negligent infliction of emotional distress.
20:47So I believe under that cause of action, the defendant's effort, that is the landlord, Mr. Hunt's effort, to argue
20:53that the rules of his property owners association trump federal and state law that specifically state that individuals with disabilities,
21:06which the plaintiff has, are allowed to request a reasonable accommodation for support animals, even in housing situations where pets
21:15are typically restricted.
21:17So defendant loses because his little property owners of association does not trump federal and state law.
21:27And shame on him.
21:28Shame on him for trying to throw shade on the letter and on the testimony of the plaintiff under these
21:34circumstances.
21:35He's just as responsible as his co-defendant, Mr. Dwelly, who owns the dogs.
21:40So in my opinion, I believe the plaintiff has succeeded on both grounds, negligent infliction of emotional distress and straight
21:46negligence with damages.
21:48That's my point.
21:48I feel a little bit compelled to speak in Mr. Hunt's defense because I live in the hills and when
21:54my dogs were puppies, my dogs were bait.
21:57As puppies, they are bait.
21:59I mean, I've seen coyotes walking down my street.
22:02I think the rule makes perfect sense.
22:04You don't have livestock in a community that's urban.
22:07But to your first point, if we went down an analytical pattern that said HOA rules could supersede federal and
22:18state law, this country would look a lot different.
22:21My parents would not have been able to buy the house that they bought, perhaps.
22:25Homeowners associations, no matter how well founded the rules, do not get to say our rules are bigger than the
22:33federal government or the state government.
22:35So I agree with your analysis of the emotional distress claim in this context because these animals provided a certain
22:43particular value to this plaintiff.
22:46Even if I had concerns about that letter, I found him credible, I found his testimony credible, and I found
22:51his wife credible, I have no problem giving him everything he's asking for.
22:55Well, I'm going to start with the negligence claim here.
22:57I think that we all recognize, and anybody watching the plaintiff would recognize, that he is clearly an individual in
23:04need of something for emotional support.
23:07And so, therefore, his need for the emotional support falls within the federal and state statutes, supersedes the HOA.
23:14I believe that he should be reimbursed at the current market value.
23:17I believe that's the law for each of the hens and award him under that.
23:22I do not, however, think that California, nor will I be willing to, extend the negligent infliction of emotional distress
23:29claim on his emotional distress,
23:31despite the fact that he clearly is distressed over the loss of his chickens.
23:35Because, like I said, the individual who was claiming the emotional distress must be present at the scene where the
23:42injury occurs.
23:44I read it as the only people that are required to recover under that are people who are very close
23:50loved ones, and even that, generally, it's just family members.
23:54So, here we're missing, I think, some significant criteria, which would bring even a human being within the rules for
24:01negligent infliction of an emotional distress.
24:04I think, monetarily, he should be reimbursed for each of the chickens, based on the clear negligence law.
24:09You don't think the special sensitivities of the plaintiff?
24:14If you did that, more people would recover over deaths of animals than they would over human beings, because most
24:19states, including California, you cannot recover without the things that I said.
24:24And the primary thing is that the person be present on the scene.
24:27So, you'll be the dissent?
24:29Correct.
24:29But it's unanimous on the straight negligence cause of action with economic damages, and with respect to the verdict on
24:36the negligent infliction of emotional distress,
24:38we are in the majority, and the plaintiff succeeds on the $10,000...
24:42Okay, because you guys are the majority. Otherwise, for me, it's just the negligence.
24:46Right, right, right. Okay, thank you.
24:51Court is back in session. I remind parties you're still under oath.
24:55Thank you, Byrd.
24:56Mm-hmm.
24:56All right. Mr. McKenzie, with respect to the negligent infliction of emotional distress, Judge DiMango, she was right, you know.
25:05The law is changing with respect to allowing someone in your position, sir, to sue and seek emotional distress damages.
25:14The law is moving in favor of, and there are cases that do, in fact, support someone in your position
25:19from making that claim,
25:21so long as you can prove those additional elements that we discussed.
25:25Judge Acker and I believe you have met your burden in that manner,
25:29and therefore, the judgment is in your favor on that cause of action with Judge DiMango dissenting.
25:36The basis of Judge DiMango's dissent could be found in the zone of danger argument.
25:42That is that in cases where people do receive emotional distress for animals,
25:47whether it be regular, non-emotional support animals, or for humans, for that matter,
25:52that they must be in the zone of danger.
25:54They must have actually witnessed you were out of town.
25:57What you witnessed was provided to you by way of a video from your wife.
26:01That was the only way that you saw what had happened.
26:04Correct.
26:04And that was the basis of Judge DiMango's dissent.
26:07But that doesn't make much of a difference at the end of the day,
26:09because on both causes of action, you've succeeded in proving to us your damages of $10,000.
26:16And, Mr. Hunt, if every homeowners or property owners association could make up their own rules
26:22and supersede that, we'd be in a much different place today than we are.
26:27So, with that in mind, a judgment in favor of the plaintiff for $10,000.
26:31Thank you all for coming.
26:33The court has now concluded.
26:35Parties are excused and they step out.
26:41We need to have safety provisions for the people who choose to live in mountains.
26:49My heart tells me, Mr. Hunt's a politician and always will be.
26:53And he goes to the immediate lie.
26:55The bears know.
26:56He used to sit in the cage with them for hours and play with them, whatever.
27:01And now all he does is find their feathers and body parts still.
27:05That is a tragic situation.
27:06It's been crazy.
27:08Someone's dog got you barking mad.
27:11Unleash the hounds of justice.
27:14Tribunal justice.
27:15Find us on social media.
27:57You
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