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Can Cremation Services be Held Responsible for Mishandling of Pet Remains?

Can Cremation Services be Held Responsible for Mishandling of Pet Remains?  This was one of the questions recently taken on by the California Court of Appeal for the Fourth District in Levy v. Only Cremations for Pets, Inc. (Nov. 6, 2020, No. G057888) _Cal.App.5th_ [2020 Cal. App. LEXIS 1056.)

The Levy family sued defendants, alleging defendant agreed to cremate individually two of plaintiffs’ dogs, but then intentionally sent them random ashes instead. Defendant demurred to all causes of action. The trial court sustained defendant’s demurrer without leave to amend.

On Appeal, the Court affirmed the judgment in part, reversed the judgment in part, and remanded the case with directions.

The court concluded that plaintiffs’ complaint failed to state a cause of action under any contract theory. It was plaintiffs’ veterinarian, not plaintiffs, who contracted with defendant to cremate individually plaintiff’s dogs. The complaint did not allege plaintiffs were aware of any conduct by defendant which implied an offer to perform a private cremation of their dogs. Nor did plaintiffs 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 terms of a contract for private cremation could be implied, plaintiffs could not have accepted an offer to do so.

Conversely, the Court found that plaintiffs adequately pleaded a trespass to chattel claim.

The Levys’ allegation of intentional misconduct was corroborated by the allegation that defendant twice, over the course of more than a year, failed to return plaintiffs’ dogs’ remains. Once could be a mixup; twice suggested intentionality. Moreover, the Court held that defendant had 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. The Court also found that plaintiffs’ allegations also supported 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.

As to the trespass to chattel claim, the Court held: 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.

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Mr. Serrano has been admitted to practice before California State and Federal Courts. He was named to the Super Lawyers’ 2012, 2013, 2014, 2015, and 2016 Southern California Rising Stars List, an honor awarded to no more than 2.5% of attorneys in Southern California each year. View Attorney Jean-Simon Serrano's Attorney Bio Here.

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