Case Name: Anetsky, et al. v. Smart Cremation of California Services, Inc.
Case No.: 16-CV-295536

Defendant Smart Cremation of California Servicers, Inc. (“Defendant”) demurs to the complaint (“Complaint”) filed by plaintiffs Cameron Anetsky (“Ms. Anetsky”) and Brandon Anetsky (“Brandon”), a minor by and through his guardian ad litem, Cameron Anetsky (collectively, “Plaintiffs”) and moves to strike portions contained therein.

This is an action for breach of contract and intentional infliction of emotional distress, among other causes of action, arising out of the alleged mishandling of the remains of Plaintiffs’ close relative. According to the allegations of the complaint (“Complaint”), on January 9, 2011, Ms. Leonteene Gildez (“Ms. Gildez”), Plaintiffs’ mother and grandmother, entered into a Pre-Arrangement Funeral Service Contract with Defendant (the “Contract”). (Complaint, ¶ 9 and Exhibit A.) In consideration of payment for the total purchase price, which Ms. Gildez paid, Defendant agreed to provide transportation of the decedent from place of death to a licensed holding facility, procurement a death certificate and disposition permit, a cremation container, the cremation process and common scattering or release of cremated remains to person-in-charge. (Id., ¶¶ 10, 11.) Ms. Gildez elected to have her cremains delivered to the Los Gatos Memorial Park so that they could be interned in the shared plot with her late husband, Plaintiffs’ father and grandfather. (Id., ¶ 11.)

Ms. Gildez passed away on November 2, 2014 and Ms. Anetsky notified Defendant of her death. (Complaint, ¶ 13.) Shortly thereafter, Defendant delivered what Plaintiffs believed were Ms. Gildez’s remains to the Los Gatos Memorial Park. (Id.) Plaintiffs held a graveside service with friends and family during which Brandon placed his grandmother’s cremains in the vault to lay at rest with his grandfather. (Id., ¶ 14.)

Approximately one to four weeks after the funeral, Cameron received a phone call from one of Defendant’s representatives who insisted on meeting in person. (Complaint, ¶ 15.) The representative met Plaintiffs at their home, which they had shared with Ms. Gildez, and informed them that Defendant had made a mistake and delivered someone else’s cremains to the Los Gatos Memorial Park. Plaintiffs had therefore unknowingly buried the remains of stranger in the grave shared with Plaintiffs’ father and grandfather. (Id.) The representative further stated that Ms. Gildez was “on a shelf back at the office” or words to that effect. (Id., ¶ 16.) Plaintiffs were informed that the grave needed to be opened so that the stranger’s cremains could be returned to his family. (Id., ¶ 17.)

Plaintiff wanted a proper burial and ceremony for Ms. Gildez with the family pastor but Defendant refused to accommodate the scheduling and demanded that the excavation be done immediately. (Complaint, ¶ 18.) When she arrived at the cemetery prior to the scheduled time, Defendant was already there and her late-father’s grave was being “callously” excavated without her. (Id., ¶ 19.) Once it was excavated, Ms. Gildez’s cremains were “callously and unceremoniously” buried in the shared plot. (Id.)

On May 24, 2016, Plaintiffs filed the Complaint asserting the following causes of action: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) negligence (mishandling of cremains); (4) negligent infliction of emotional distress; and (5) intentional infliction of emotional distress.

On June 24, 2016, Defendant filed the instant demurrer to the first and second causes of action on the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Defendant also filed the motion to strike portions of the Complaint, including Plaintiffs’ request for punitive damages and allegations relating thereto.

In demurring to the first cause of action, Defendant contends that no claim for breach of contract has been stated because per the allegations of Plaintiffs’ Complaint, no breach of the express terms of the Contract occurred.

Under California law, in order to succeed on a claim for breach of contract, a plaintiff must plead and prove the following elements: (1) the existence of a contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s breach; and (4) damages to plaintiff as a result of the breach. (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.) In the first cause of action, Plaintiffs alleges that Defendant breached the Contract by delivering the cremains of an unknown individual so that those remains were buried in Ms. Gildez’s late-husband’s grave instead of Ms. Gildez. (Complaint, ¶ 24.) Defendant argues that the element of breach is not pleaded here because it is not alleged to have failed to do something that it was required to do under the express terms of the Contract. That is, Plaintiffs have pleaded that the Contract required Defendant to deliver Ms. Gildez’s cremains to the Los Gatos Memorial Park and Defendant’s note that that actually occurred, and thus that there was no breach of the Contract.

In their opposition, Plaintiffs rely primarily on the case of Wilson v. Houston Funeral Home (1996) 42 Cal.App.4th 1124, in which the court held that “there is implied in every contract for funeral services a covenant the services will be conducted with dignity and respect toward the family members for whose benefit the services are performed” in arguing that they have sufficiently pleaded a claim for breach of contract. (Wilson v. Houston Funeral Home, 42 Cal.App.4th at 1133.) The court in Wilson rejected an argument by the defendant that no claim for breach of contract was stated because it had ultimately transported the body and family to the cemetery for burial services as provided in the contract with the decedent’s family. The court overruled the demurrer to the breach of written contract cause of action after concluding that the plaintiff had sufficiently pleaded a breach of the aforementioned implied covenant based on the untoward conduct of various funeral home employees on the day of the burial service. (Id. at 1134.) Plaintiffs contend that Wilson supports a similar conclusion that they have sufficiently pleaded a claim for breach of contract here because while Ms. Gildez’s remains were ultimately transferred to the Los Gatos Memorial Park as Defendant was obligated to do under the Contract, its failure to initially transfer them and instead provide the cremains of the wrong individual breached the implied covenant to conduct services with dignity.

Defendant argues that Wilson is distinguishable because it is not a mortuary and was not hired to conduct or facilitate burial services as the defendant was in that case. However, the Court does not find this argument, which takes an extraordinarily narrow view of the implied covenant recognized in Wilson, to be persuasive because Defendant was hired to provide a critical component of the burial process for Ms. Gildez and initially failed in such a way that resulted in the wrong remains being buried in the shared plot with Mr. Gildez’s husband and Plaintiffs being deprived of having a dignified service for the burial of her cremains. This is sufficient to plead a breach of this implied covenant and thus a breach of contract. (See Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 885 [“Although breach of the implied covenant is often pleaded as a separate count, a breach of the implied covenant is necessarily a breach of contract”].) Consequently, Defendant’s demurrer to the first cause of action for breach of contract on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

Based on Wilson, Defendant’s demurrer to the second cause of action for breach of the implied covenant of good faith and fair dealing on the ground of failure to state facts sufficient to constitute a cause of action is also OVERRULED. A demurrer to such a claim was overruled by the court in that case based on the defendant’s failure to provide the dignified service that they were impliedly obligated to provide. This rationale mandates a similar result here.

Finally, Defendant’s motion to strike Plaintiffs’ fifth cause of action for intentional infliction of emotional distress and punitive damages is DENIED. First, a pleading challenge to an entire cause of action is by demurrer rather than a motion to strike under Code of Civil Procedure section 436. (See Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281.) Thus, the court may not properly strike the fifth cause of action and Defendant’s request for the Court to do so is denied. Second, in alleging that Defendant refused to accommodate Plaintiffs’ schedule so as to facilitate a proper burial of Ms. Gildez’s cremains, began the excavation at the grave earlier than scheduled so that Ms. Anetsky arrived after it had begun, desecrated Plaintiffs’ father’s grave in removing the stranger’s cremains, and undertook the whole process in such a way that Plaintiffs were forced to bury Ms. Gildez’s cremains without ceremony, religious rites, and the support of their family, friends, and pastor (Complaint, ¶ 48), Plaintiffs have sufficiently pleaded “oppressive” conduct within the meaning of the punitive damages statute, i.e., Civil Code section 3294. “Oppression” is defined therein as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code, § 3294, subd. (c)(2).) “Despicable” conduct is conduct that is “so vile, base, contemptible, miserable, wretched, or loathsome that it would looked down upon and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) Considering the “dignity, tranquility and personal consolation” expected of entities providing services relating to the handling of a decedent’s remains (see Wilson, supra, 42 Cal.App.4th at 1133), the Court finds that Plaintiffs have adequately alleged despicable conduct on the part of Defendant and thus pleaded an entitlement to punitive damages.