Levy v. Only Cremations for Pets, Inc.

Filed 11/06/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
HILLARIE LEVY et al.,
Plaintiffs and Appellants, G057888
v. (Super. Ct. No. 30-2018-01016953)
ONLY CREMATIONS FOR PETS, INC., OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Craig L.
Griffin, Judge. Reversed and remanded.
The Law Office of John Derrick and John Derrick for Plaintiffs and
Appellants.
Horvitz & Levy, H. Thomas Watson, Aaron Henson; Luna & Glushon and
Sean M. Bryn for Defendant and Respondent.
* * *
Plaintiffs Hillarie and Keith Levy appeal from a judgment of dismissal
following the sustaining of a demurrer without leave to amend. Plaintiffs sued defendant,
Only Cremations for Pets, Inc., alleging it agreed to cremate individually two of their
dogs, but then intentionally sent them random ashes instead. They sought recovery of
emotional distress damages under contract and tort law.
Presently, the complaint fails to state a cause of action under any contract
theory. There are no factual allegations showing the existence of any contract between
plaintiffs and defendant. It was plaintiffs’ veterinarian, not plaintiffs, who contracted
with defendant. However, we will remand to give plaintiffs an opportunity to plead more
fully a third-party beneficiary cause of action.
On the other hand, the complaint adequately pleads two tort theories:
trespass to chattel and negligence. The allegations here fit comfortably in a cause of
action for trespass to chattel claim, which permits recovery of emotional distress
damages. The allegations also support a negligence cause of action because defendant
advertised its services as providing emotional solace, and thus it was foreseeable that a
failure to use reasonable care with the ashes would result in emotional distress.
Accordingly, we reverse and remand.
ALLEGATIONS
Plaintiffs owned two dogs, Wesley and Winnie. Plaintiffs obtained Wesley
in 2005 for their daughter, who died of cancer at the age of 29. Plaintiffs adopted Winnie
from a shelter the following year. Wesley and Winnie were cherished members of the
family.
Winnie died of heart failure in September 2016. At the time of Winnie’s
death, she weighed 25.6 pounds. On the same day, Hillarie took Winnie’s remains to
their veterinarian, Park Animal Hospital, to arrange for cremation.
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Hillarie was given two options for cremating Winnie: (1) a private cremation, in which
Winnie would be cremated separately from other pets and only her ashes would be
returned to plaintiffs in a special urn of their choice; or (2) a group cremation, in which
Winnie would be cremated with other pets and the ashes would be scattered at sea. The
group cremation was a cheaper option than the private cremation. Hillarie chose the
private cremation for Winnie and paid the veterinarian for the private cremation.
The veterinarian contracted with defendant for Winnie’s private cremation.
Defendant, through its Web site, held itself out as a provider of animal cremation services
that engaged in private and group cremation services. In its marketing materials,
defendant professes to “believe our pets are as much a part of the family as any human,
deserving the same equal, loving treatment.” Its website describes one of its goals as “to
provide [customers] with a dignified and proper farewell to [their] beloved pet.”
Approximately 10 to 15 days after leaving Winnie’s remains at the
veterinarian for cremation, Hillarie picked up a sealed box containing Winnie’s cremated
ashes from the veterinarian’s office. The box of ashes came with a certificate of
guarantee from defendant, stating, “We certify that this pet has been cremated privately
by [defendant].” Affixed to the box was a heart-shaped tag with Winnie’s name on it.
About a year after Winnie’s death, Wesley was euthanized at Park Animal
Hospital due to a lung disease. At the time of Wesley’s death, he weighed 12.5 pounds,
less than half the size of Winnie. On the same day, Hillarie again contracted with the
veterinarian to have Wesley cremated in a private cremation and paid the veterinarian for
the service. Again, Wesley’s remains were sent to defendant to be cremated privately.
Upon receiving a similar box containing Wesley’s ashes, Hillarie noticed it was much
heavier than the box containing Winnie’s ashes. After comparing the weights of the two
boxes, Hillarie returned to the veterinarian’s office to express concern that Wesley’s box
contained a different animal’s ashes. The employees at the veterinarian’s office weighed
Wesley and Winnie’s ashes and found out Winnie’s ashes, despite having been the larger
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dog, weighed 6.5 ounces, while Wesley’s weighed 8 ounces. In addition to the weight
disparity, neither dog’s ashes weighed what they should, which is approximately 3
percent of the dog’s weight before being cremated.
After the investigation of the weights of Winnie and Wesley’s ashes, the
veterinarian’s office agreed “there was an issue” and refunded plaintiffs the costs of both
cremation services. That same day, Hillarie called defendant and spoke with Dr. George
Katcherian, the owner. Hillarie told him the ashes of her dogs were mixed up. Katcherian
told Hillarie he would look into the issue. Four days later, Katcherian told Hillarie that
her dogs were privately cremated. Katcherian offered to send Hillarie two of his finest
urns, but Hillarie declined. Katcherian then offered to invite Hillarie to make an
appointment to observe the private cremation process the next time her pet is cremated,
which he claimed is worth $450. Hillarie declined. After that, Katcherian sent two dozen
white roses to plaintiffs’ house.
Plaintiffs were devastated at not having received their pets’ ashes. It was
their wish to bury Wesley’s ashes next to their deceased daughter, as Wesley was their
daughter’s beloved pet. Plaintiffs planned to bury Winnie’s ashes at their vacation home,
which was Winnie’s favorite place.
PROCEDURAL HISTORY
Plaintiffs filed the underlying complaint against defendant, asserting causes
of action for (1) trespass to chattel, (2) breach of contract, (3) negligence, (4) negligent
infliction of emotional distress, (5) deceptive trade practices, (6) breach of bailment, and
(7) breach of duty of good faith and fair dealing. On appeal, plaintiffs concede the fourth
cause of action for negligent infliction of emotional distress is encompassed by the third
cause of action for negligence. Also, plaintiffs abandon their fifth cause of action for
deceptive trade practices.
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Soon after plaintiffs filed the first amended complaint, defendant demurred
to all causes of action. Before the hearing on the demurrer, the court issued a tentative
ruling sustaining defendant’s demurrer without leave to amend. The court reasoned that
plaintiffs’ “right to the ashes has not been interfered with,” and that, in any event,
plaintiffs had no recoverable damages. The tentative ruling concluded by saying “Unless
at the hearing on the demurrer plaintiffs can articulate any theory upon which defendant
can be held liable, the Court will sustain the demurrer without leave to amend.” Plaintiffs
did not appear at the hearing. The tentative ruling became the final ruling and the
demurrer was sustained without leave to amend. Plaintiffs timely appealed from the
subsequent judgment of dismissal.
DISCUSSION
Contract Claims
Plaintiffs contend all three contract claims (breach of contract, breach of the
duty of good faith and fair dealing, and breach of bailment) should survive because the
complaint adequately pleaded a factual basis for a contractual relationship between
plaintiffs and defendant. Specifically, plaintiffs argue there was an implied contract
between plaintiffs and defendant, or, alternatively, that they have standing to bring
contract claims against defendant as third party beneficiaries of the express contract
between defendant and the veterinarian. We review the court’s order de novo and
conclude the court correctly found the complaint does not presently state a cause of
action under a contract theory, but we remand to give plaintiffs an opportunity to amend
to plead third party beneficiary status, if possible.
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A. Implied-in-fact Contract
As an initial matter, plaintiffs admit there was no express contract between
plaintiffs and defendant. Plaintiffs contracted with the veterinarian; the veterinarian
contracted with defendant. Instead, plaintiffs argue there was an implied contract
between plaintiffs and defendant because defendant publicly held itself out to be a
provider of private and group cremation services, and plaintiffs accepted its offer by
requesting a private cremation service and paying for it. We are unpersuaded.
“[T]he vital elements of a cause of action based on contract are mutual
assent (usually accomplished through the medium of an offer and acceptance) and
consideration. As to the basic elements, there is no difference between an express and
implied contract. While an express contract is defined as one, the terms of which are
stated in words [citation], an implied contract is an agreement, the existence and terms of
which are manifested by conduct [citation].” (Division of Labor Law Enforcement v.
Transpacific Transportation Co. (1977) 69 Cal. App. 3d 268, 275, italics added.) Mutual
assent “‘is determined under an objective standard applied to the outward manifestations
or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not
their unexpressed intentions or understandings.’” (DeLeon v. Verizon Wireless, LLC
(2012) 207 Cal. App. 4th 800, 813.)
It is axiomatic that an “acceptor must have knowledge of the offer . . . .”
(1 Witkin, Summary of Cal. Law (11th ed. 2020) Contracts, § 181(a).) Thus, to establish
an implied-in-fact contract, plaintiff must have been aware of some conduct by defendant
which could have been understood to be an offer to perform a private cremation service.
Yet the complaint does not allege plaintiffs were aware of any conduct by defendant
which implied an offer to perform a private cremation. Nor do they allege they were
aware of defendant’s Web site, which described how a private cremation would be
conducted. Since plaintiffs were not aware of any conduct by defendant, from which the
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terms of a contract for private cremation could be implied, plaintiffs could not have
accepted an offer to do so.
B. Third Party Beneficiary
Plaintiffs’ more plausible theory is that they have standing to bring contract
causes of action as third party beneficiaries. Civil Code section 1559 states, “A contract,
made expressly for the benefit of a third person, may be enforced by him at any time
before the parties thereto rescind it.” In Goonewardene v. ADP, LLC (2019) 6 Cal. 5th
817 (Goonewardene) our high court set forth three prerequisites to apply this doctrine:
(1) the third party would in fact benefit from the contract; (2) a motivating purpose of the
contracting parties was to provide a benefit to the third party; and (3) permitting a third
party to bring its own breach of contract action against a contracting party is consistent
with the objectives of the contract and the reasonable expectations of the contracting
parties. (Id. at p. 830.) As to the second element, “the contracting parties must have a
motivating purpose to benefit the third party, and not simply knowledge that a benefit to
the third party may follow from the contract.” (Ibid.) As to the third element, it “calls
for a judgment regarding the potential effect that permitting third party enforcement
would have on the parties’ contracting goals, rather than a determination whether the
parties actually anticipated third party enforcement at the time the contract was entered
into.” (Id. at p. 831.)
The overarching structure of the cremation transaction here is common: A
company contracts to provide a service to a customer but then employs a subcontractor to
perform the service. Perhaps the most common example of this arrangement is found in
the construction industry, wherein a property owner will enter into a contract with a
construction company (a “general contractor”) to construct a building on the property,
and the general contractor will then enter into a series of subcontracts with purveyors of
the various construction trades, such as framers, drywall installers, electricians, plumbers,
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etc. In the ordinary course of things, the subcontractor will charge a certain amount to
the general contractor, and then the general contractor will charge more to the property
owner. In other words, the general contractor makes a profit on the transaction, even
though it did not actually perform the service. Under this common scenario, and
depending upon the terms of the subcontract, the property owner may be a third-party
beneficiary of the subcontract. (See Gilbert Financial Corp. v. Steelform Contracting
Co. (1978) 82 Cal. App. 3d 65, 69-70 [property owner was third party beneficiary of
contract between general contractor and a subcontractor roofing company where owner
was “more than incidentally benefitted by the contract”]; Goonewardene, supra, 6
Cal.5th at p. 830 [Supreme Court emphasized that its “intent-to-benefit caselaw remains
pertinent in applying [the motivating purpose formulation] of the third party beneficiary
doctrine”].)
“Because third party beneficiary status is a matter of contract interpretation,
a person seeking to enforce a contract as a third party beneficiary ‘“must plead a contract
which was made expressly for his [or her] benefit and one in which it clearly appears that
he [or she] was a beneficiary.”‘ [Citation.] [¶] ‘“‘[E]xpressly[,]’ [as used in [Civil Code
section 1559] and case law,] means ‘in an express manner; in direct or unmistakable
terms; explicitly; definitely; directly.’” [Citations.] “[A]n intent to make the obligation
inure to the benefit of the third party must have been clearly manifested by the
contracting parties.”‘ [Citation.] Although this means persons only incidentally or
remotely benefited by the contract are not entitled to enforce it, it does not mean both of
the contracting parties must intend to benefit the third party: Rather, it means the
promisor . . . ‘must have understood that the promisee . . . had such intent. [Citations.]
No specific manifestation by the promisor of an intent to benefit the third person is
required.’” (Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal. App. 4th 949, 957-
958.) Here, defendant must have understood that the veterinarian had the intent to benefit
plaintiffs when it contracted with defendant for the private cremation.
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The facts of Goonewardene are instructive in determining whether the
motivating purpose of a contract was to provide a benefit to a third party. There, the
plaintiff employee sued a payroll company, who had contracted with the plaintiff’s
employer, for breach of contract, alleging the failure to pay the plaintiff various wages.
(Goonewardene, supra, 6 Cal.5th at p. 820.) The plaintiff did not allege she was privy to
the contract between the payroll company and her employer, but instead contended she
was entitled to bring a breach of contract action against the payroll company on a third
party beneficiary theory, since the contract was “for the benefit of [the employer’s]
employees . . . .” (Id. at p. 833.) The Supreme Court disagreed for two reasons. First, the
relevant motivating purpose of the contract was “simply to assist the employer in the
performance of its required tasks, not to provide a benefit to its employees with regard to
the amount of wages they receive.” (Id. at p. 835, italics added.) Second, even if a
motivating purpose were to provide a benefit to employees, the plaintiff was not entitled
to sue the payroll company for breach of contract, because “it still may be inconsistent
with the objectives of the contract and the reasonable expectations of the contracting
parties to permit the employees to sue the payroll company for an alleged breach of the
contract.” (Id. at p. 836.) Accordingly, the court affirmed the trial court’s order
sustaining the payroll company’s demurrer without leave to amend. (Id. at p. 842-843.)
As currently framed, the complaint fails to state a cause of action as a third
party beneficiary of the contract between the veterinarian and defendant. In fact,
plaintiffs failed even to raise the theory in their opposition to the demurrer. But if
plaintiffs could plead the sort of facts we identified above, the case would be more
analogous to Lucas v. Hamm (1961) 56 Cal. 2d 583 (Lucas), a case Goonewardene
described as one of the “two most prominent third party beneficiary decisions.”
(Goonewardene, supra, 6 Cal.5th at p. 831.) In Lucas, plaintiffs were the intended
beneficiaries under a will. They sued the lawyer who drafted the will for breach of
contract. But the contract to draft the will, of course, was between the decedent and the
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lawyer. Nevertheless, the court allowed the beneficiaries to sue as third party
beneficiaries. “Obviously the main purpose of a contract for the drafting of a will is to
accomplish the future transfer of the estate of the testator to the beneficiaries named in
the will, and therefore it seems improper to hold . . . that the testator intended only
‘remotely’ to benefit those persons.” (Lucas, supra, at p. 589-590.) “Insofar as intent to
benefit a third person is important in determining his right to bring an action under a
contract, it is sufficient that the promisor must have understood that the promisee had
such intent.” (Id. at p. 591.)
Just as in Lucas, where the testator entered into a contract that was intended
to benefit third parties, here, if the facts show that the veterinarian was acting for the
purpose of benefitting plaintiffs, then its contract with defendant would likewise
principally benefit plaintiffs. Plaintiffs have not pleaded such facts because they did not
plead third party beneficiary status at all. However, in light of our guidance on the legal
framework applicable to a third party beneficiary cause of action in this context, we will
1
give plaintiffs another opportunity to amend.
C. Emotional Distress Damages
Defendant nevertheless contends we should not grant leave to amend
because, even if plaintiffs have standing to assert a contract claim, the only damages they
suffered—emotional distress—is not an available remedy. While that is ordinarily the
case, this action falls under an exception to the rule.
Except for a potential award of nominal damages, a breach of contract is
not actionable without damages. (Bramalea California, Inc. v. Reliable Interiors,
Inc. (2004) 119 Cal. App. 4th 468, 473.) Plaintiffs acknowledge they were fully
1
Plaintiffs are entitled to seek leave to amend even though they did not seek
such relief in the trial court. (Code Civ. Proc., § 472c, subd. (a).) They sought such
relief here.
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compensated for the cost of the private cremation by the veterinarian, and thus they have
no economic damages. They seek damages for emotional distress. However, “damages
for mental suffering and emotional distress are generally not recoverable in an action for
breach of an ordinary commercial contract in California.” (Erlich v. Menezes (1999) 21
Cal. 4th 543, 558 (Erlich).) There are two exceptions to this rule: (1) when the emotional
distress caused by the breach is accompanied by physical injury; or (2) when “‘the breach
is of such kind that serious emotional disturbance was a particularly likely result.’”
(Ibid.) Here, there was no physical injury. That leaves only the second exception.
For this exception, the Erlich court specified that “when the express object
of the contract is the mental and emotional well-being of one of the contracting parties,”
then that party can collect damages for emotional distress (Erlich, supra, 21 Cal.4th at p.
559.) “Courts have carved out a narrow range of exceptions to the general rule of
exclusion where emotional tranquility is the contract’s essence.” (Id. at p. 560; see
Chelini v. Nieri (1948) 32 Cal. 2d 480 [mortician’s failure adequately to preserve a corpse
permitted contract damages arising from emotional shock at seeing rotted corpse];
Windeler v. Schemers Jewelers (1970) 8 Cal. App. 3d 844 [emotional distress damages
recoverable for breach of contract where jeweler lost plaintiff’s family heirlooms]; Ross
v. Forest Lawn Memorial Park (1984) 153 Cal. App. 3d 988 [cemetery’s breach of
agreement to keep burial service private and to protect grave from vandalism permitted
emotional distress damages].)
That exception applies here. The sole purpose of a private cremation of a
pet is the emotional tranquility of the owner. There is no economic benefit to a private
cremation—to the contrary, it is more expensive than a group cremation. That additional
cost is incurred solely for an emotional benefit. That fact is reflected in defendant’s
alleged marketing material. According to the complaint, defendant advertised the
emotional benefit of a private cremation, professing that “our pets are as much a part of
the family as any human, deserving the same equal, loving treatment.” Its Web site
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described one of its goals was “to provide [customers] with a dignified and proper
farewell to [their] beloved pet.” Plainly, this is an appeal to the emotional satisfaction of
potential customers. Accordingly, to the extent that plaintiffs can allege they are third
party beneficiaries of the contract between the veterinarian and defendant, emotional
distress damages are available.
C. Applicable Contract Claims
Assuming plaintiffs can adequately plead third party beneficiary status,
causes of action for breach of contract and breach of bailment can be stated. But the
cause of action for breach of the implied covenant of good faith and fair dealing is
superfluous. “If the allegations do not go beyond the statement of a mere contract breach
and, relying on the same alleged acts, simply seek the same damages or other relief
already claimed in a companion contract cause of action, they may be disregarded as
superfluous as no additional claim is actually stated.” (Careau & Co. v. Security Pacific
Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1395, italics added.) That is the case
here. The only breach alleged by plaintiff in their bad faith cause of action is the failure
to conduct a private cremation as promised. Accordingly, the court did not err by
sustaining the demurrer to the cause of action for breach of the implied covenant of good
faith and fair dealing.
Tort Claims
Plaintiffs contend their two tort claims (trespass to chattel and negligence)
should survive because the complaint sufficiently pleaded a factual basis supporting both
causes of action. As to the cause of action for trespass to chattel, plaintiffs argue there
were factual allegations showing defendant’s intentional interference with their property.
As to the cause of action for negligence, plaintiffs contend the complaint adequately
pleaded facts supporting defendant’s duty to avoid causing emotional distress in
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connection with the cremations. We review the court’s order de novo. We conclude the
court erred on both counts.
A. Trespass to Chattel
Plaintiffs contend the complaint pleaded a factual basis supporting their
cause of action for trespass to chattel. Trespass to chattel “lies where an intentional
interference with the possession of personal property has proximately caused injury.”
(Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal. App. 4th 1559, 1566.) Emotional distress
damages may be recovered for a trespass to chattel. (Plotnik v. Meihaus (2012) 208
Cal. App. 4th 1590, 1606-1608 (Plotnik) [allowing recovery of emotional distress damages
from trespass to chattel arising from defendant’s act of intentionally striking the
plaintiff’s dog with a bat].)
The court grounded its ruling on two bases: that plaintiffs’ “right to the
ashes has not been interfered with,” and “there are no apparent measurable damages from
the comingling.” To those arguments, defendant adds that the complaint fails to allege
intentional conduct.
We are puzzled by the court’s first basis. We must assume the allegations
of the complaint are true. (Serrano v. Priest (1971) 5 Cal. 3d 584, 591.) Plaintiffs allege
defendant “cremated Plaintiffs’ dogs in group cremations that mixed the cremains of
multiple animals and/or remains,” and that the remains of group cremations are scattered
at sea. Plaintiffs allege they did not receive their pets’ ashes, which were instead
comingled with the ashes of other animals. Indeed, the court’s second basis recognizes
that the ashes were “comingled.” We would be hard pressed to imagine a greater
interference with the one’s property than having it scattered at sea.
The court’s second basis—that plaintiffs failed to allege recoverable
damages—fails for two reasons. To start with, emotional distress damages are available
in a trespass to chattel action. In Plotnik, a trespass to chattel case that involved
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intentional injury to an owner’s dog, another panel of this court concluded emotional
distress damages were recoverable. (Plotnik, supra, 208 Cal.Ap.4th at p. 1607.) The
Plotnik court reasoned that the cause of action trespass to chattel is the little brother of
conversion, which permits recovery of emotional distress damages, and bears obvious
relation to trespass to real property, which also permits recovery of emotional distress
damages. (Ibid.) We agree with the analysis in Plotnik. Alternatively, even if plaintiffs
could not recover emotional distress damages, they could, at minimum, recover nominal
damages. (See Genisman v. Carley (2018) 29 Cal. App. 5th 45, 53 [nominal damages
available “[w]here there is no loss or injury to be compensated but where the law still
recognizes a technical invasion of a plaintiff’s rights or a breach of a defendant’s duty”].)
For both reasons, the court’s rationale does not withstand analysis.
Defendant’s argument that the complaint fails to allege intentional
misconduct simply fails to give the allegations the credit they are due. The complaint
literally alleges defendant’s conduct was “intentional” in the very first sentence of the
complaint. It repeats that allegation throughout, and in particular in connection with the
trespass to chattel cause of action. Although, as defendant points out, allegations of
intentional misconduct cannot be “mere[ly] conclusory” (Charpentier v. Von Geldern
(1987) 191 Cal. App. 3d 101, 114) that is not the case here. Plaintiffs’ allegation of
intentional misconduct is corroborated by the allegation that defendant twice, over the
course of more than a year, failed to return plaintiffs’ pets’ cremains. Once could be a
mixup; twice suggests intentionality. Moreover, defendant has the motive and means to
deceive customers: group cremations are cheaper, and customers are unlikely to notice
any discrepancies between a particular pet’s ashes and any other ashes. These allegations
and circumstances adequately allege intentional interference. Accordingly, the court
erred in dismissing the trespass to chattel cause of action.
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B. Negligence
Plaintiffs contend the complaint properly stated a cause of action for
negligence, which encompasses negligent infliction of emotional distress. We agree.
“‘[T]he negligent causing of emotional distress is not an independent tort,
but the tort of negligence. [Citation.] The traditional elements of duty, breach of duty,
causation, and damages apply. [¶] Whether a defendant owes a duty of care is a question
of law. Its existence depends upon the foreseeability of the risk and a weighing of policy
considerations for and against imposition of liability.” (Burgess v. Superior Court (1992)
2 Cal. 4th 1064, 1072.) “The law in California imposes a duty to avoid causing emotional
distress in two general instances”: (1) “‘bystander’” situations wherein a plaintiff seeks
to recover damages as a witness to the injury of another (McMahon v. Craig (2009) 176
Cal. App. 4th 1502, 1509 (McMahon)); and (2) “‘direct victim’” situations wherein the
emotional distress damages result from a duty owed the plaintiff that is assumed by the
defendant as a matter of law, or that arises out of a special relationship between the
plaintiff and the defendant. (Id. at p. 1510.) Only the second of those instances is
relevant here.
We conclude defendant owed a duty to plaintiffs arising out of a special
relationship between it and plaintiffs. We find guidance from Christensen v. Superior
Court (1991) 54 Cal. 3d 868 (Christensen), which also arose in the context of a demurrer.
There, the plaintiffs alleged the defendant crematory had mishandled human remains by
harvesting organs without permission, then cremating 10-15 bodies together at a time,
and then placing “cremated remains in urns or other containers without preserving their
integrity or identity.” (Id. at p. 879.) The relationship between the plaintiffs (family
members of the decedent) and the crematory bore similar relationship to our case: certain
family members contracted with a mortuary, and the mortuary contracted with the
crematory. (Id. at p. 877.) The principal issue on appeal was whether the family
members who had not contracted with the mortuary, and who did not have a possessory
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interest in the remains under Health and Safety Code section 7100, could state a claim for
negligence against the crematory. (Id. at p. 875.)
The Christensen court held they could. “Defendants here assumed a duty
to the close relatives of the decedents for whose benefit they were to provide funeral
and/or related services. They thereby created a special relationship obligating them to
perform those services in the dignified and respectful manner the bereaved expect of
mortuary and crematory operators.” (Christensen, supra, 54 Cal.3d at pp. 890-891.)
Analogizing the negligence action to one for breach of contract, where emotional distress
damages are available for the mishandling of remains, it quoted a Colorado case as
follows: “‘A contract whereby a mortician agrees to prepare a body for burial is one in
which it is reasonably foreseeable that breach may cause mental anguish to the
decedent’s bereaved relations. “One who prepares a human body for burial and conducts
a funeral usually deals with the living in their most difficult and delicate moments . . . .
The exhibition of callousness or indifference, the offer of insult and indignity, can, of
course, inflict no injury on the dead, but they can visit agony akin to torture on the living.
So true is this that the chief asset of a mortician and the most conspicuous element of his
advertisement is his consideration for the afflicted. A decent respect for their feelings is
implied in every contract for his services.”‘“ (Id. at p. 895.) It noted that the very
purpose of a proper burial is to “alleviate existing and avoid future emotional distress
arising from the death.” (Id. at p. 899.)
The principal difference between this case and Christensen, of course, is
that here we deal with pet remains rather than human remains. In all other respects,
Christensen is closely on point. It is certainly true that people generally form stronger
bonds with human family members than with pets, but that is a difference in degree, not
in kind. As our high court long ago recognized regarding dogs, “there are no other
domestic animals to which the owner or his family can become more strongly attached,
or the loss of which will be more keenly felt.” (Johnson v. McConnell (1889) 80 Cal.
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545, 549.) “We have come a long way from the old common law concept of a dog not
even being considered property. Not only is he more than property today, he is the
subject of sonnets, the object of song, the symbol of loyalty. Indeed, he is man’s best
friend.” (Katsaris v. Cook (1986) 180 Cal. App. 3d 256, 270 (conc. & dis. opn. of Sabraw,
J.).) While the distinction between pet remains and human remains may affect the degree
of harm caused by mishandling the remains, it does not change the fundamental
relationship that the crematory has to the owner where a private cremation is sought. In
both cases, the raison d’etre of the relationship is to provide emotional solace to the
survivors. The very fact that the owner incurred the additional expense of a private
cremation signals that the owner shared a strong emotional bond with the pet. That was
not only foreseeable, but it was a pillar of defendant’s marketing strategy. In offering a
private cremation service predicated on the dignified treatment of pet remains, defendant
entered into a special relationship and assumed a duty to use reasonable care in avoiding
emotional harm to the owner.
Our conclusion is consistent with the various policy considerations courts
consider in addition to foreseeability in determining whether a duty exists, which
generally involve balancing the harm to the plaintiff and the moral approbation of
defendant’s conduct against the burden on society of imposing a duty. (See Christensen,
supra, 54 Cal.3d at pp. 885-886 [“‘in considering the existence of “duty” in a given case
several factors require consideration including “the foreseeability of harm to the plaintiff,
the degree of certainty that plaintiff suffered injury, the closeness of the connection
between the defendant’s conduct and the injury suffered, the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a duty to exercise care with
resulting liability for breach, and the availability, cost, and prevalence of insurance for
the risk involved’”].) Our holding is limited to cases in which a crematory has offered
private cremation services for the solace of grieving pet owners. A negligence action has
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long been available in the context of human remains, with no apparent detriment to either
society or industry. We are confident the same will be the case in the context of pet
remains.
In contending no duty existed, defendant relies principally on McMahon,
supra, 176 Cal. App. 4th 1502, where we held a pet owner could not recover emotional
distress damages arising from veterinary malpractice resulting in the death of plaintiff’s
dog. While we recognized that the owner’s emotional harm might be foreseeable from
veterinary malpractice, “the veterinarian’s medical care is directed only to the pet. Thus,
a veterinarian’s malpractice does not directly harm the owner in a manner creating
liability for emotional distress.” (Id. at p. 1510.) We reasoned, “The contract between
[the owner] and [the veterinarian] to treat [the dog] did not by itself demonstrate
defendants undertook a duty to protect [the owner’s] mental and emotional tranquility.”
(Id. at p. 1513.) “[A] more explicit undertaking by defendants is required to impose
liability for negligent infliction of emotional distress.” (Id. at p. 1514.)
The critical distinction between this case and McMahon is that here we
have that more explicit undertaking. Emotional harm was not merely foreseeable from
defendant’s negligence, plaintiffs’ emotional wellbeing was the product it was selling.
DISPOSITION
The judgment is affirmed in part and reversed in part. The judgment is
affirmed insofar as it dismissed the second cause of action (breach of contract), fourth
cause of action (negligent infliction of emotional distress), fifth cause of action
(deceptive trade practices), sixth cause of action (breach of bailment), and seventh cause
of action (breach of implied covenant of good faith and fair dealing). The judgment is
reversed insofar as it dismissed the first cause of action (trespass to chattel), and third
cause of action (negligence). The court is directed to permit plaintiffs an opportunity to
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amend the operative complaint to allege breach of contract and breach of bailment causes
of action as third party beneficiaries. Plaintiffs shall recover their costs incurred on
appeal.
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
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