November 9, 2020

Levy v. Only Cremations For Pets, Inc. (2020) 57 Cal.App.5th 203

Plaintiffs alleged that defendant crematorium agreed to privately cremate the remains of their two dogs, but then sent them ashes of other animals. Plaintiffs sued for emotional distress damages, asserting both contract and tort theories. The trial court sustained defendant’s demurrer to the complaint and dismissed plaintiffs’ action.

The Court of Appeal reversed in part as to plaintiffs’ contract theories. The court held that plaintiffs failed to show the existence of any contract between them and the crematorium because it was plaintiffs’ veterinarian, not plaintiffs, who actually contracted with defendant. Nonetheless, the court remanded to give plaintiffs a chance to allege that they were third-party beneficiaries of the veterinarian’s contract with the crematorium. The court also held, for the first time in California, that a plaintiff may recover emotional distress damages for the breach of a contract to privately cremate the remains of a pet.

The Court of Appeal also reversed as to plaintiffs’ tort theories, holding that plaintiffs stated two valid tort theories permitting the recovery of emotional distress damages: trespass to chattel and negligence. The trespass to chattel claim was adequately supported by allegations that the defendant had intentionally interfered with plaintiffs’ possession of their personal property (the pet remains), causing them emotional distress. The negligence cause of action arose from a special relationship between plaintiffs and the crematorium, and was supported by defendant’s advertising that its services provided emotional solace to pet owners, thus making it “foreseeable that a failure to use reasonable care with the ashes would result in emotional distress.” The court distinguished its prior decision forbidding recovery of noneconomic damages for veterinary malpractice on the ground that a veterinary service contract is for the pet’s benefit, while a cremation contract is for the benefit of the pet owner.

[Disclosure: Horvitz & Levy represented the defendant on appeal in this case.]