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In a groundbreaking decision, a San Francisco judge has ruled that the same-sex partner of a local woman mauled to death by two dogs has standing to sue their owners in a wrongful death case. Superior Court Judge A. James Robertson II held Friday that if Sharon Smith was prevented from suing, she would be denied equal protection under the California Constitution. “This is the first decision of this kind not only in California, but in the country,” Smith’s attorney, Shannon Minter, said. “It’s a major victory.” During a hearing Friday, Robertson closely questioned Minter, a staff attorney for the San Francisco-based National Center for Lesbian Rights, about whether California law forbids same-sex partners from having the same legal standing as married couples. Minter replied that California Code of Civil Procedure Sect. 377.60 does not explicitly define surviving spouses for the purpose of filing wrongful death suits. Minter said Smith and her deceased partner, Diane Whipple, could not have done anything more to become spouses. “Same-sex couples are legally unable to marry,” the attorney said. “So you can’t use that to deny same-sex couples survivor standing.” When the judge asked whether the code section could be read to include a surviving same-sex partner, Minter said to read it otherwise would “set up a situation of a complete and unavoidable barrier [and] an insurmountable and unavoidable exclusion” for Smith. Minter said Robertson appeared to have read all the briefs and “had given the matter a great deal of thought … . I think he was interested in exploring the issues.” Cooper White & Cooper partner Stephen Kaus, who has filed several wrongful death cases, said he expected the matter to reach the Court of Appeal in a hurry. But he congratulated Robertson on his ruling. “My first reaction is that it’s pleasant to see judges are willing to think somewhat outside the box and are able to do the right thing,” Kaus said. Attorneys Marjorie Knoller and Robert Noel — who were sued by Smith after their dogs mauled to death her partner, Whipple, on Jan. 26 — filed a demurrer and a motion to strike all claims. They argued that Smith lacked standing. Robertson overruled the demurrer and denied the motion to strike the claims alleged by Smith in her lawsuit. “The claims are reasonable,” the judge said. No trial date for the litigation has been set. Robert Lazo, Smith’s other attorney, praised the judge for his courage in breaking new legal ground in securing an individual right. “This is a momentous day, not only for gay rights, but for human rights as well,” Lazo said. Neither Noel nor Knoller was in Robertson’s court. Their arguments to deny Smith standing were submitted on their court papers. But the couple did appear in a San Francisco criminal court Friday, dressed in their orange jail clothes. Their defense attorneys asked for the continuance of a stay of execution of Hera, one of the two dogs involved in the mauling. Bane, the other dog, has already been destroyed. Judge James Warren denied the request and lifted the stay that would allow animal control officers to put down Hera. Yet in a case where nothing goes smoothly or quickly, the dog’s stay of execution was extended at least until Aug. 15, when another hearing on her death sentence is scheduled. This will also be held in Robertson’s court, where Berkeley, Calif., sole practitioner David Blatte will argue on Knoller’s behalf that the hearing in which Hera was handed a death sentence was flawed and a new hearing should be held. “What we’re trying to do is keep her alive forever,” Blatte said, not just until the criminal trial of Noel and Knoller is completed. Knoller is charged with second-degree murder, manslaughter and failure to control a mischievous dog. Noel faces the manslaughter and mischievous dog charges. Both have pleaded not guilty. Their trial is set for Oct. 22. Deputy Public Defender Jan Lecklikner, Knoller’s criminal defense attorney, told Warren that Hera should be kept alive so tests on her could determine if she is a vicious dog. But the judge wasn’t buying it. He questioned how tests in August could determine what the animal’s condition had been in January, when she and Bane attacked Whipple. Moreover, Warren said he has had dogs all his life “and dogs don’t change overnight.” “I’m having a lot of trouble with what is going to be done with this dog that is going to have any effect on the evidentiary value on this case,” Warren said. Lecklikner said the dog should be removed from animal control cages and placed in a private kennel paid for by private funds raised from individuals sympathetic to Hera’s plight. Deputy City Attorney Margaret Baumgartner, who represents the city’s animal control officers — who fear Hera — told the court that the only issue before it was whether the dog was exculpatory evidence for the defendants. “There is no evidence today before the court that this dog is exculpatory,” Baumgartner said. The judge agreed that Lecklikner’s argument was no more than “a hope and prayer” that tests would prove Hera to he exculpatory. “The court finds a failure by the defendants to demonstrate any meaningful exculpatory value” in Hera, Warren ruled.

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