SANTA ANA, Calif. (Legal Newsline) – A pet cremation company that advertised the emotional solace their services would provide must face a lawsuit alleging it gave random ashes to a couple who had hoped to bury their daughter’s beloved dog next to her.
The California Fourth Appellate District ruled Nov. 6 that Only Cremations For Pets must face negligence and trespass to chattel claims, which can lead to emotional distress damages.
Hillarie and Keith Levy are pursuing a lawsuit against the company over the treatment of the remains of two dogs – one of whom was purchased for their now-deceased daughter who suffered from cancer.
Their veterinarian contracted with Only Cremations, which provided both an individual cremation that would allow owners to receive the ashes of their pet and a group cremation that led to the ashes of the group being scattered at sea.
Certificates guaranteed that the pets were cremated privately, as the Levys paid for. They say they noticed the scam when the box containing the ashes of their smaller dog weighed more than the larger’s.
Neither box weighed what it should. Ashes should weigh approximately 3% of the dog’s weight before cremation, the opinion says.
The Levys had hoped to bury their daughter’s dog, Wesley, next to her, while the other dog, Winnie, was to be buried at her favorite place – the Levys’ vacation home.
The appeals court noted statements made on Only Cremations’ website like:
-“Our pets are as much a part of the family as any human, deserving the same equal, loving treatment.”
-The company’s goal is “to provide (customers) with a dignified and proper farewell to (their) beloved pet.”
Justice Raymond Ikola wrote for the court: “Plainly, this is an appeal to the emotional satisfaction of potential customers.”
If the Levys can prove they are third-party beneficiaries of the contract between the vet and Only Cremations, they can be awarded emotional distress damages, the court ruled.
The appeals court noted it was “puzzled” by the trial court tossing the Levys’ trespass to chattel claim, which involves “intentional interference with the possession of personal property” that has caused injury.
Orange County Superior Court Judge Craig Griffin wrote that their right to ashes had not been interfered with and there were no measurable damages.
The appeals court also ruled against Only Cremations’ argument that the complaint failed to allege intentional misconduct. The word “intentional” was in the first sentence of the complaint and repeated throughout.
“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,” Ikola wrote.
“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.”