Court lets companion pet Pooky out of doghouse


Article Courtesy of the Sacramento Bee

By Denny Walsh
Published August 27, 2004


In a legal wrestling match over a depressed couple's right to a companion animal of their choice, Pooky is once more on top.

Jayne and Ed Elebiari suffered from severe depression when Jayne found the 11-pound wire-haired terrier at an animal shelter in the spring of 1999 and brought her home to the couple's Auburn condominium.

The outlook of all three improved dramatically. Taking care of Pooky alleviated the Elebiaris' symptoms and enabled them to function more productively.

"Pooky had a separation-anxiety problem, and we matched up perfectly," Jayne Elebiari said Wednesday after a state appeals court agreed that Pooky qualifies under disability law as legitimate therapy. "We all needed somebody emotionally."

Two months after the Elebiaris had brought Pooky home, however, there was trouble. The Auburn Woods I Homeowners Association invoked a covenant barring dogs and forced them to give Pooky to a friend.

Ed "cried for three days ... and had sleeping problems, as well as increased anger and irritability," according to court papers. "He stopped activities and 'basically did nothing.' "

In the absence of Pooky's affection and energy, Jayne's depression returned and she was irritable.

"We took it very hard," she recalled in a telephone interview from the couple's home in upstate New York.

Appeals to the association for dispensation, including assurances from a psychiatrist and psychologist that Pooky was required therapy, fell on deaf ears.

In February 2000, the Elebiaris filed a complaint with the state Department of Fair Employment and Housing, charging that Auburn Woods discriminated by failing to reasonably accommodate their disabilities.

The agency decided in their favor in May 2002, awarding them $12,500 in emotional-distress damages. But a Placer Superior Court judge nullified the decision, finding no evidence that a companion dog was a reasonable accommodation.

On Wednesday, a three-justice panel of the 3rd District Court of Appeal in Sacramento reversed that ruling and reinstated the damages award.

"The evidence established that the Elebiaris repeatedly made their needs known and offered to provide additional medical evidence to support their claim," the justices said in a 40-page opinion. "Auburn Woods never requested that information and instead, over a nine-month period from September 1999 until late June 2000, repeatedly denied their request for reasonable accommodation. It did not explain its position other than to present an inflexible response: no dogs.

"Each inquiry is fact-specific and requires a case-by-case determination. But it is clear that, under the right circumstances, allowing a pet despite a no-pets policy may constitute a reasonable accommodation."

Jayne Elebiari said she and her husband are "ecstatic" over the ruling. "This is a victory not just for us, but for all disabled people in California who have a right to accommodations that will help them cope.

"California is a great state that has historically looked out for the underdog."

Auburn Woods' attorney, Michael Thomas of Roseville, did not return a phone call requesting comment.

Also hailing the opinion as one with broad implications was Marjorie Murray, chief legislative advocate for the Congress of California Seniors, which urged the Fair Employment and Housing Commission to appeal the Placer court's ruling.

"For the first time in California, the courts have linked fair housing with the companion-animal principle," Murray said. "They have made clear that, just as a guide dog helps a blind person, the emotional-support pet can help the person suffering from depression or other emotional illness.

"We hope that California's 37,000 homeowner associations take note of the ruling and comply."

Elebiari attorney Athena Roussos cautioned that it is not a published opinion, so it cannot be cited as precedent.

"There's really no law that deals with this issue," she said. "The principles are well established, but they haven't been applied in this kind of situation."

The Elebiaris sold their condominium and moved to Oklahoma four years ago. By then, however, the daughter of a Nevada County friend keeping Pooky had become so attached to her they left her behind.

"Pooky lives there happily," Jayne Elebiari reported Wednesday. "We have Pooky II," a male Lhasa apso.

She said the long struggle - even the seeming insensitivity of their opponents - has been worth it.

These are some of the reactions cited in the appellate opinion:

* An Auburn Woods property manager left a voice-mail message for the Elebiaris that concluded, "So, (laugh) I just don't understand why you're doing this, to tell you the truth."

* An Auburn Woods attorney asked in a letter to the Elebiaris' psychiatrist, "Is there any reason to believe that a cat would not make just as good a companion as the dog?"

* In challenging the state housing agency's award of damages, Auburn Woods attorney Thomas wrote in court papers, "There is no finding that a reasonable person, normally constituted, would have suffered severe and substantial emotional distress as a result of having to remove a dog from their premises."