CHRISTENSEN v. PASADENA CREMATORIUM OF ALTADENA

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Court of Appeal, Second District, Division 3, California.

Donald Paul CHRISTENSEN, et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent. PASADENA CREMATORIUM OF ALTADENA, et al., Real Parties in Interest.

Civ. B042719.

Decided: June 28, 1990

Robie & Matthai, Edith R. Matthai, Los Angeles, and Pamela E. Dunn, Beverly Hills, Lieff, Cabraser & Heimann and Elizabeth Joan Cabraser, San Francisco, Kronick, Moskovitz, Tiedeman & Girard, William A. Kershaw and Robin Stewart, Sacramento, Belli, Belli, Brown, Monzione, Fabro & Zakaria, Melvin E. Belli, Sr. and Richard Brown, Los Angeles, Wilner, Narwitz, Lewin & Klein, and Walter Klein, Beverly Hills, Sayre, Moreno, Purcell & Boucher and Gilbert S. Purcell, Los Angeles, for petitioners. No appearance for respondent. Marlin & Saltzman, Louis M. Marlin and Stanley D. Saltzman, Orange, Morris, Polich & Purdy, Jeffrey S. Barron, Robert S. Wolfe, Anthony G. Brazil and Douglas J. Collodel, Adams, Duque & Hazeltine, Richard T. Davis, Jr., Jeffrey P. Smith and Berna Warner–Fredman, Pillsbury, Madison & Sutro, Los Angeles, C. Douglas Floyd, San Francisco, Anthony R. Delling and Susan A. Kerans, Los Angeles, Gerber and Donaldes and Harvey R. Gerber, Encino, for real parties in interest. Berchin & Berchin, Eugene C. Berchin and Jerome J. Berchin, Beverly Hills, joinder, for real parties in interest. Horvitz & Levy, Barry R. Levy and Christina J. Imre, Encino, amicus curiae, for real parties in interest.

This petition for writ of mandate arises out of a class action complaint which seeks redress for the alleged systematic mistreatment of human remains entrusted to the defendant mortuaries and crematoriums for cremation (defendants).

Specifically, petitioners (plaintiffs) seek review of a pretrial order in the nature of a ruling on a demurrer to the second amended complaint which limited the Plaintiff Class to those persons who contracted for mortuary services and the individuals entitled to control the disposition of the remains at the time of the decedent's death.

We issued an alternative writ.   At oral argument, we stayed all trial court proceedings and ordered further briefing on the standing of all potential plaintiffs to sue.   The parties again briefed and argued the matter.

SUMMARY STATEMENT

After a review of the pleadings, we conclude the trial court's ruling improperly restricts standing of potential plaintiffs to sue.   We reach this conclusion primarily for two reasons:  (1) the allegations of outstanding human remains and the continuing interference with the right of the bereaved families to dispose of their decedents' remains necessitates the devolution of the right to control such disposition;  and, (2) the allegations of mishandling of remains, in light of the special relationship between the bereaved and the defendants, supports a broad class of potential plaintiffs.

As to the negligent mishandling of remains, the plaintiff class may be defined to include those individuals closely related to the decedent as defined in Thing v. La Chusa (1989) 48 Cal.3d 644, 668, footnote 10, 257 Cal.Rptr. 865, 771 P.2d 814 including grandchildren, unlimited by whether a particular plaintiff has alleged presence at the scene or observation of the mishandling.

As to the intentional mishandling of remains, the Plaintiff Class may include any family member, including those omitted under the Thing definition, and close friends of the decedent.

Therefore, we grant the petition for writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

1. The pleadings.

 At the time of the trial court's ruling, the operative pleading was the second amended complaint.   Before the initial oral argument of the matter to this court in September 1989, the plaintiffs filed a third amended complaint.   We stayed proceedings in the trial court at the close of that oral argument, however, there is now a proposed fourth amended complaint (PFAC) which plaintiffs aver the trial court had ordered prepared prior to issuance of the stay order.   While the PFAC is not yet on file in the trial court due to our stay order, it is before this court as an exhibit.

Although we speak primarily in the context of the second amended complaint because the petition before us is based upon an order made with respect to that pleading, to the extent the PFAC alleges facts not contained in earlier pleadings, judicial economy requires we assess the impact of those facts on the standing issue before us.  (Respers v. University of Cal. Retirement System (1985) 171 Cal.App.3d 864, 873, 217 Cal.Rptr. 594.)   Thus, reference will be made to the PFAC as appropriate to the discussion.

2. The plaintiffs.

The individual plaintiffs named in the second amended complaint consist entirely of persons who either possessed the right to control the disposition of their respective decedent's remains under Health and Safety Code section 7100 (the section 7100 right holder) and/or entered into agreementswith the defendants for the cremation of human remains, paid for such services or represent the estate of the decedent who entered into such agreement and paid for such services.1

The second amended complaint describes the Plaintiff Class generally as “all surviving spouses, relatives, and representatives whose decedents were cremated by or through Defendants.”   Thereafter, the pleading specifically defines the “Plaintiff Class” as:  “ ‘All those who presently possess or who may subsequently acquire the right under Section 7100 of the California Health and Safety Code to control the disposition of the remains of any of those decedents entrusted, pursuant to contract or otherwise, to Defendants and allegedly mishandled, ․ while entrusted to Defendants;  all persons who were parties to any such contract with any of the Defendants;  and the estates of such deceased persons and the representatives thereof.’ ”  (Italics added.)   The PFAC reiterates this definition.

By the ruling in issue here, the trial court deleted the underscored portion of the definition of the Plaintiff Class.2

The PFAC adds two subclasses of plaintiffs:  (1) persons entitled to preferential trial setting under Code of Civil Procedure section 36, subdivisions (a) and/or (d) based upon attainment of the age of 70 years or terminal illness;  and, (2) persons whose decedents had been subjected to unauthorized removal of body parts in violation of Health and Safety Code section 7150, et seq., the Uniform Anatomical Gift Act (UAGA).

3. The defendants.

The defendants fall into three categories:  (1) the mortuaries and funeral homes with which the plaintiffs arranged for funeral and cremation services (the Mortuary Defendants);  (2) the crematoriums to which the Mortuary Defendants delivered the remains for cremation (the Crematory Defendants);  and, (3) Carolina Biological Supply Company (Carolina), a North Carolina corporation, which allegedly purchased body parts and organs from the Crematory Defendants.

The Crematory Defendants consist of David W. Sconce (Sconce) and entities owned or operated by Sconce.   Some of these businesses are Pasadena Crematorium, Coastal Cremation Service, Inc., Coastal International Eye and Tissue Bank, Inc., and Oscar Ceramics.

Some of the Mortuary Defendants are related to Sconce.   These individuals and entities include Laurieanne Lamb Sconce, Jerry Sconce, and Lamb Funeral Home.   Hence, this case has been referred to as the Sconce/Lamb Cremation Case.

4. Allegations of desecration as to all causes of action.

Plaintiffs estimate the defendants improperly handled the remains of as many as 16,000 decedents and removed organs from approximately 1,000 decedents.   The second amended complaint alleges the defendants, between 1980 and January 27, 1987, “mutilated decedents' remains by removing and ‘harvesting’ organs and body parts, performed multiple cremations;  ․ commingled decedents' cremated remains with those of other decedents, and with nonhuman residue;  extracted gold and other metals from decedents' remains;  misappropriated decedents' valuables and personal effects;  and intentionally, negligently, or otherwise mishandled, stored and disposed of decedents' remains as waste or garbage, such that the dignity and integrity of said remains were violated, and such that portions of Plaintiffs' decedents' cremated remains were not returned to Plaintiffs for disposition, were not afforded individual, respectful, and dignified disposition and were otherwise treated in a manner unbefitting their status as human remains and constituting desecration.”

The defendants are alleged to have “mishandled, ․, and illegally cremated the remains of decedents, and/or knowingly, recklessly, or negligently authorized and allowed such desecration to occur at the hands of their codefendants.”

The Crematory Defendants are alleged to have physically removed the body parts and organs from plaintiffs' decedents' remains.

As against all defendants, the second amended complaint seeks the return of all metal, valuables and personal effects taken from the decedents, and the dignified disposition of all human remains.

With respect to the Mortuary and Crematory Defendants, plaintiffs allege:  breach of contract;  breach of the covenant of good faith and fair dealing;  breach of fiduciary duty;  fraud and deceit;  negligent misrepresentation;  negligence;  intentional and negligent interference with human remains;  intentional and negligent infliction of emotional distress;  and, unfair business practices.   They seek damages for physical injury and shock as well as punitive damages for oppression, fraud and malice.

With respect to Carolina, plaintiffs allege negligence in that Carolina entered into an agreement with a newly formed entity for the purchase of such a large quantity of human organs that Carolina should have made inquiry to ascertain whether the seller had the right to deliver the organs, and knew or should have known that fulfillment of such a purchase order would involve the desecration of human remains.

The PFAC seeks essentially the same relief as that sought by the second amended complaint.   However, commencing in the third amended complaint and continuing in the PFAC, the plaintiffs allege a conspiracy by the Mortuary and Crematory Defendants to “desecrate plaintiffs' decedents' remains and ․ to misrepresent to the public and the Plaintiff Class that they would handle and were handling the disposition of plaintiffs' decedents in a respectful and dignified fashion.”

The PFAC adds further factual detail to the cause of action for conspiracy.   Specifically, and by way of background, the PFAC alleges the mortuary industry disfavored cremation because it was not profitable and was viewed as disrespectful.   The Mortuary Defendants knew that crematoriums sometimes engaged in disrespectful treatment of the dead because mortuary industry publications had discussed this problem in the late 1970's and the 1980's.   The Mortuary Defendants were aware of these publications as well as the Harbor Lawn and Neptune Society Cases.3

The specific knowledge which the plaintiffs allege should have alerted defendants to the desecrations includes the following:  Shortly after Sconce took over operation of the Pasadena Crematorium, cremations there increased from 25 per year to 400 per month.   The Sconce cremation fee of $55 was approximately one half that charged by other crematoriums.   The $55 rate included “ ‘first call service’ and post cremation return of the cremated remains back to the Mortuary Defendants.”   This “did—or should have—alarmed the Mortuary Defendants.”

In the presence of Mortuary Defendants, crematorium van drivers “unceremoniously loaded [bodies] one on top of another ․ and then hauled [them] away.”   The Crematory Defendants took gold from the decedents' teeth in a practice called “ ‘popping chops,’ ” and cremated the decedents 30 to 40 at a time.   Ashes were placed in 55 gallon drums and thereafter, returned to bereaved families in a commingled state.

The PFAC also alleges the Mortuary and Crematory Defendants belong to the Los Angeles County Funeral Directors Association (the Association) and that the incoming president of the Association, Ronald Hast (Hast), of Abbot and Hast, one of the Mortuary Defendants, knew the “ ‘statistics and the propriety of things' at Lamb Funeral Home's cremation facilities ‘just did not add up.’ ”

Hast obtained the “Sconce/Lamb cremation statistics” from the California State Cemetery Board and wrote a letter on behalf of the Association to Laurieanne Lamb, a part owner of Lamb Funeral Home, requesting that she sign an agreement to abide by the cremation standards of the Cremation Association of North America “ ‘so that they would have a point of reference should there ever be any problem.’ ”   Lamb refused to sign the letter.

Despite this refusal, Hast and the Mortuary Defendants continued to do business with the Crematory Defendants and continued fraudulently to represent to the public that cremations would be performed with dignity and respect although they knew of the potential for abuse.

The Mortuary Defendants did not inspect the Sconce/Lamb cremation facility and failed to take any steps to assure whether the Lamb Funeral Home utilized proper cremation procedures.   Inspection would have revealed the abuse because “[t]he conditions at those [cremation] facilities were so horrid that the smell of cremated human remains was strong enough to be detected outside the facility on the street․”

With respect to Carolina, which is not alleged to have been involved in the conspiracy, the PFAC alleges it offered to purchase a “virtually unlimited” quantity of body parts, i.e., “ ‘750–1,000’ human brains, ‘500+’ human hearts, and an ‘open’ quantity of human uteri,” from an unknown supplier with no operating history over three thousand miles away.   In so doing Carolina violated the UAGA and participated in a scheme to obtain large quantities of body parts to be resold at profit.   Its conduct is alleged to have been so negligent or reckless as to make it reasonably foreseeable that injury to plaintiffs would result.

In support of this assertion, the PFAC alleges two employees of Tissue Bank told Pasadena police officers they worked 12 to 14 hours a day to complete the first shipment to Carolina.

The PFAC states Carolina acted as a primary violator of the UAGA, did not inquire whether the Crematory Defendants had obtained consent to harvest organs, and that Carolina could have requested copies of the donation authorization forms for the body parts it purchased.   Had Carolina taken this precaution, it would have discovered the Crematory Defendants had no authority to procure or sell organs.

Carolina's purchase of the organs from the Crematory Defendants on such a large scale and without the necessary written authorization is also alleged to constitute negligence per se under the UAGA.

5. The trial court's ruling.

In part pertinent to this writ petition, the trial court ruled:  “With respect to the standing of various plaintiffs to assert claims against defendants, the Court holds that only those claimants who were entitled to control disposition of their decedent's remains under California Health and Safety Code Section 7100, as of the date of death of their decedent, or who actually contracted for such disposition, have standing to assert the claims set forth, in the Model Pleading against the defendants.   The Court finds that this holding is compelled by the California appellate decisions in Cohen v. Groman Mortuary Inc. (1964) 231 Cal.App.2d 1 [41 Cal.Rptr. 481];  and Sinai Temple v. Kaplan (1976) 54 Cal.App.3d 1103 [127 Cal.Rptr. 80].”

CONTENTIONS

Plaintiffs, who originally sought to modify the order of the trial court to allow the section 7100 right to devolve, now seek to include in the Plaintiff Class not only contracting parties and section 7100 right holders but also the decedents' close family members and certain friends involved in the funeral arrangements.

Defendants counter that only the person who contracted for the mortuary service and the holder of the section 7100 right at the time of the decedent's death have standing to sue.

Carolina also contends plaintiffs did not file the writ petition timely, and have not pointed to an adversely affected individual plaintiff.

In their supplemental briefs, the parties have tendered additional issues to this court.   Specifically, plaintiffs ask this court to certify the Plaintiff Class and to rule that each of the asserted causes of action is valid.

Custer Christiansen, one of the Mortuary Defendants, urges this court to determine whether the PFAC states a cause of action as against it.

DISCUSSION

1. Plaintiffs timely filed their petition, properly sought writ review, and may amend their complaint to name an aggrieved party.a. The plaintiffs timely sought review.

 A challenge to an interlocutory ruling must be filed within the 60–day statutory period prescribed for appeals.  (People v. Municipal Court (Mercer) (1979) 99 Cal.App.3d 749, 752, 160 Cal.Rptr. 455.)

 Carolina claims the time for filing the instant writ commenced on February 15, 1989, when the trial court orally announced its ruling and issued a minute order rather than on April 19, 1989, the date the trial court signed and filed its formal order.

“This situation is expressly covered by the provisions of the California Rules of Court, rule 2(b)(2), which provides in substance that when a formal written order is to be prepared, signed and filed, the time for the filing of notice of appeal [in this case the writ petition] does not begin to run until the filing of the formal order.”  (Monarch Cablevision, Inc. v. City Council (1966) 239 Cal.App.2d 206, 210, 48 Cal.Rptr. 550.)   Therefore, the time for filing petitioners' writ began to run on April 19, 1989.

 Carolina further claims even if the 60 days commenced upon filing of the formal order, plaintiffs filed the writ petition on the 61st day.

However, because the 60th day fell on Sunday, June 18, 1989, the writ petition, filed the following Monday, was timely.  (Code Civ.Proc., §§ 12, 12a, 12b.)  “Where the last day of the period within which an appeal from an order is permitted is Sunday, a non-judicial day, an appeal filed on the following day, Monday, is in time.”  (Grande v. Donovan (1942) 55 Cal.App.2d 694, 695, 131 P.2d 855.)

b. Writ review is proper in this matter.

 Carolina also argues an appeal can accomplish the same result as the instant petition because the challenged order is tantamount to a dismissal of the action as to all persons denied membership to the class, and in legal effect, constitutes a final judgment as to these parties.  (Daar v. Yellow Cab. Co. (1967) 67 Cal.2d 695, 699, 63 Cal.Rptr. 724, 433 P.2d 732.)   Carolina concludes writ review, therefore, is not appropriate.

However, “an appeal from an intermediate order on class certification violates the ‘final judgment rule’ set forth in Code of Civil Procedure section 904.1 unless the order disposes of the entire action.”  (Rosack v. Volvo of America Corp. (1982) 131 Cal.App.3d 741, 749, 182 Cal.Rptr. 800;  Vasquez v. Superior Court (1971) 4 Cal.3d 800, 806–807, 94 Cal.Rptr. 796, 484 P.2d 964.)

Like an intermediate order on class certification, the standing ruling here limits the class but does not dispose of the entire action.   Therefore, the trial court's order is not appealable (Code Civ.Proc., § 904.1), but may be reviewed in the instant writ petition (Code Civ.Proc., § 1086).

c. This court may grant plaintiffs leave to amend the complaint and their petition to name a beneficially interested party.

 Finally, Carolina contends the petition does not identify by name any person having a beneficial interest in the instant proceeding.  Code of Civil Procedure section 1086 requires a writ petition be brought by a beneficially interested party.   Thus, plaintiffs must show the requested writ will protect a right or interest peculiar to a representative.   Without such a person the writ will not lie.  (Parker v. Bowron (1953) 40 Cal.2d 344, 351, 254 P.2d 6.)

In Parker a labor union representative sued on behalf of city employees as a class.   Despite the existence of potentially aggrieved parties, the court held no party named had such a beneficial interest to justify the issuance of a writ.

Similarly here, although there are clearly persons within the original class definition who are potentially aggrieved by the trial court's standing ruling, i.e., those to whom the right to sue in this matter under section 7100 might devolve, no representative party so aggrieved has been named in the petition.

However, the issuance of a writ is an equitable proceeding.   Our Supreme Court has held it “desirable for the trial court to retain some measure of flexibility in the pretrial and trial of a class action, ․”  (Vasquez v. Superior Court, supra, 4 Cal.3d at p. 821, 94 Cal.Rptr. 796, 484 P.2d 964.)

In keeping with the Vasquez mandate to develop “innovative procedures” fair to litigants and “expedient in serving the judicial process,” we conclude this court should allow plaintiffs leave to amend the complaint and their petition in order to name a beneficially interested representative.   Such a ruling will expedite the judicial process and prevent multiple appellate hearings on this matter.4

2. Contracting parties clearly have standing to sue.

The plaintiffs have alleged breach of contract and tortious breach of the implied covenant of good faith and fair dealing by the Mortuary Defendants.   The trial court limited standing with respect to this cause of action only to contracting parties.

 The Mortuary Defendants concede the right of contracting parties to sue for breach of contract.   However, they oppose the plaintiffs' assertion that third-party beneficiaries may sue to enforce the mortuary contract.   We address this issue below.5

a. Third-party beneficiary theory limited to section 7100 right holders who are not contracting parties.

 Plaintiffs urge third-party beneficiaries of the contract for mortuary services, presumably close family members, also must be allowed class membership.   They argue the respect for the feelings of survivors implied in a mortuary contract renders it foreseeable that breach of the contract will cause mental anguish to the decedent's bereaved family.   (Allen v. Jones, supra, 104 Cal.App.3d at p. 211, 163 Cal.Rptr. 445.)   We disagree.

Civil Code section 1559 provides:  “A contract, made expressly for the benefit of a third person, may be enforced by [the third person] at any time before the parties thereto rescind it.”

 Because the contract must be made “expressly” for the benefit of the third party, an “intended” beneficiary may enforce the contract but an “incidental” beneficiary may not.  (1 Witkin, Summary of California Law (9th ed. 1987) Contracts, § 657, p. 596, italics deleted.)

 A beneficiary need not be identified specifically in order to be considered an express beneficiary.   It is sufficient if the third party “is a member of a class for whose benefit the contract was created.”  (Outdoor Services, Inc. v. Pabagold, Inc. (1986) 185 Cal.App.3d 676, 681, 230 Cal.Rptr. 73.)  “ ‘[T]he test is whether an intent to benefit the third party appears from the terms of the contract [citation].’ ”  (Id., at p. 682, 230 Cal.Rptr. 73.)

Because the section 7100 right holder has a statutory duty to dispose of the remains of the deceased, as well as the right to control the disposition, he or she is the only express beneficiary of a contract for mortuary services.   Therefore, if the contracting party is not the holder of the section 7100 privilege, the holder may be considered a third-party beneficiary.   However, no other person may be seen as an intended beneficiary of a mortuary contract.   Thus plaintiffs' third-party beneficiary theory adds no persons to the Plaintiff Class who were not included by the trial court's order.

3. The cause of action for breach of fiduciary duty adds no persons to the Plaintiff Class.

 Plaintiffs assert the defendants' mistreatment of remains breached a fiduciary duty owed them.   Defendants counter that no fiduciary relationship exists between mortuary and bereaved.

Even if the relationship of mortuary/bereaved is assumed to be fiduciary in nature for the purpose of this writ petition, a cause of action based upon such a theory adds no plaintiffs who are not already members of the Plaintiff Class.

“[B]efore a person can be charged with a fiduciary obligation, he [or she] must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.  [Citations.]”  (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 221, 197 Cal.Rptr. 783, 673 P.2d 660;  Tri–Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 265 Cal.Rptr. 330.)

Although the relationship between a mortuary and the bereaved has been said to involve a “special duty” (Draper Mortuary v. Superior Court (1982) 135 Cal.App.3d 533, 536, 185 Cal.Rptr. 396) which, on its face, differs from an ordinary commercial relationship such as distributor/dealer (Rickel v. Schwinn Bicycle Co. (1983) 144 Cal.App.3d 648, 654–655, 192 Cal.Rptr. 732), we need not determine whether a mortuary can be said to have entered a relationship that is, in law, fiduciary in nature.

Assuming such a relationship is found to exist, it must, for policy reasons, be circumscribed to those persons with whom the mortuary has contracted or the section 7100 right holders on whose behalf the mortuary, in fact, acts.   Thus, the mortuary can be said to have entered into such a relationship only with the contracting party or the section 7100 right holder.   Therefore, no person who is not already a member of the Plaintiff Class may state a cause of action for breach of fiduciary duty.

4. Only contracting parties have standing to sue for intentional and negligent misrepresentation (fraud and deceit).

 The defendants argue only those persons to whom representations were made and who relied upon those representations may state causes of action for fraud or deceit.   As mentioned above, plaintiffs assert standing on behalf of all contracting parties and third-party beneficiaries.   The defendants appear to be correct.

“ ‘The elements of a cause of action for negligent misrepresentation are:  [¶] “1. The defendant must have made a representation as to a past or existing material fact;  [¶] 2. The representation must have been untrue;  [¶] 3. Regardless of his actual belief the defendant must have made the representation without any reasonable ground for believing it to be true;  [¶] 4. The representation must have been made with the intent to induce plaintiff to rely upon it;  [¶] 5. The plaintiff must have been unaware of the falsity of the representation;  he must have acted in reliance upon the truth of the representation and he must have been justified in relying upon the representation;  [¶] 6. And, finally, as a result of his reliance upon the truth of the representation, the plaintiff must have sustained damage.”   [Citations.]’  [Citation.]”  (Christiansen v. Roddy (1986) 186 Cal.App.3d 780, 785–786, 231 Cal.Rptr. 72.)

For the purpose of this discussion, intentional misrepresentation has the same elements but also requires knowledge of the falsity of the representation.

“ ‘[T]he class of persons entitled to rely upon the representations is restricted to those to whom or for whom the misrepresentations were made.   Even though the defendant should have anticipated that the misinformation might reach others, he is not liable to them.’  [Citation.]”  (Christiansen, supra, 186 Cal.App.3d at p. 787, 231 Cal.Rptr. 72.)

Because representations of respectful cremation were relied upon only by those who directed the cremation (section 7100 right holders) or those who contracted for cremation services, it follows that only those parties have standing to sue for fraud and deceit.

5. The rights afforded by section 7100 devolve after the death of the respective decedents on the facts alleged in this case.

 Section 7100 confers the privilege and the obligation to dispose of human remains as the holder of the right sees fit and to the exclusion of the wishes of all others.

Plaintiffs argue the trial court erroneously refused to allow this right to devolve after the date of death of the respective decedents.   They claim the propriety of their position is evident because, unless the section 7100 right reposes in a living person, the cause of action now held by elderly or infirm section 7100 right holders will die with the right holder.   They fear the wrong committed by the defendants as to decedents in this category will go unredressed.

The defendants argue the right to control disposition of remains is fixed at the time of the decedents' death and is not related to standing to sue.   The defendants also claim they will not be able to defend this action against a constantly changing Plaintiff Class.

To the extent the continuing devolution of the section 7100 right will present a tactical problem, the defendants have caused the problem of the outstanding and missing remains and cannot be heard to complain about the result of that conduct now.

Moreover, as to those plaintiffs whose decedents' organs are alleged to be in the possession of Carolina, and as to “any and all remains, residue metal, valuables, and personal effects of defendants who were cremated ․ which are still in Defendants' possession, custody, or control,” the purpose of the section 7100 right has yet to be effectuated.

In order that there be a representative in the class with the right to control the disposition of found remains, the statutory right to control such outstanding remains must continue to devolve according to the statutory scheme.   Therefore, the trial court improvidently limited the Plaintiff Class to the person or persons who held the section 7100 right at the time of the various decedents' deaths.

6. The plaintiffs' standing to assert other causes of action for tortious conduct.

a. Introduction.

The plaintiffs have alleged numerous torts which they assert the defendants have committed.   Other than the causes of action already discussed, these torts include intentional infliction of emotional distress (IIED) and interference with remains, negligent infliction of emotional distress (NIED) and interference with remains, and negligence.   They contend all family members and certain close friends have standing to sue for each of these torts.

Defendants argue no plaintiff can fulfill the elements of IIED or NIED because no one is alleged to have observed the desecrations.   They assert all plaintiffs are “bystander” victims.  (See, Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814;  Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912.)   They also argue the defendants' attempt to conceal the desecrations belies an intent to cause emotional distress to anyone.   Plaintiffs insist they are “direct” victims of the defendants' conduct.  (See, Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, 257 Cal.Rptr. 98, 770 P.2d 278;  Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.)

The great bulk of the supplemental briefing received by this court has addressed this dichotomy.   Two recent cases, Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 and Quesada v. Oak Hill Improvement Co. (1989) 213 Cal.App.3d 596, 261 Cal.Rptr. 769, have been the focus of much of the discussion.   These cases circumscribe our consideration of the instant petition in this regard.

In Thing, our Supreme Court determined a mother, who had not witnessed an accident but had arrived on the scene shortly after it occurred, could not recover damages for emotional distress from the negligent driver who had struck and injured her child.  Thing held, in the absence of physical injury or impact, damages for NIED should be recovered only if the plaintiff:  (1) is closely related to the victim;  (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.  (Thing, supra, 48 Cal.3d at p. 647, 257 Cal.Rptr. 865, 771 P.2d 814.)

Thing defined close family relationship, absent extraordinary circumstances, as one involving “relatives residing in the same household, or parents, siblings, children, and grandparents of the victim.”  (Thing, supra, 48 Cal.3d at p. 668, fn. 10, 257 Cal.Rptr. 865, 771 P.2d 814.)

Thing reasoned “[i]n order to avoid limitless liability out of all proportion to the degree of a defendant's negligence, and against which it is impossible to insure without imposing unacceptable costs on those among whom the risk is spread, the right to recover for negligently caused emotional distress must be limited.”  (Thing, supra, 48 Cal.3d at p. 664, 257 Cal.Rptr. 865, 771 P.2d 814.)

Thing cited with approval earlier rulings in which the court had limited the availability of money damages for other intangible losses.  (Turpin v. Sortini (1982) 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954 [wrongful life];  Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858 [loss of parental consortium].)

In Quesada, a mortuary negligently displayed the wrong body to a bereaved family at a funeral.   When the family objected, the defendants “ ‘ridiculed and mocked’ ” them and buried the incorrect body despite the family's protests.  (Quesada v. Oak Hill Improvement Co., supra, 213 Cal.App.3d at p. 600, 261 Cal.Rptr. 769.)   When the county admitted it had delivered the wrong body, the mortuary had to exhume it and lay the correct decedent to rest.

Among the bereaved family members present at the funeral were the decedent's sister and niece.   The trial court dismissed their suit based upon Cohen v. Groman Mortuary, Inc. (1964) 231 Cal.App.2d 1, 41 Cal.Rptr. 481, one of the cases relied upon by the trial court in this case to limit the definition of the Plaintiff Class.

In Cohen the plaintiffs asserted a mortuary negligently had substituted the body of another for their decedent, and upon viewing the wrong body at the funeral, the plaintiffs suffered shock and mental anguish.   The trial court granted judgment on the pleadings against all plaintiffs except the decedent's spouse, who was the section 7100 right holder, and a brother who had contracted to pay the funeral expenses.

Cohen held a complaint founded upon a contractual duty to prepare the body may be asserted only by the contracting party.   Further, only the section 7100 right holder may claim tortious interference with undertaking.  Cohen upheld the judgment on the pleadings against the decedent's noncontracting brother and sister.

Cohen based its holding on the Supreme Court's then most recent pronouncment on NIED, Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513.  Amaya found no derivative cause of action for NIED in the absence of physical injury or impact.

Our Supreme Court overruled Amaya in Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912.   Despite the rejection of the underpinning of Cohen, no court had addressed the limitation on standing stated there until Quesada.

Quesada found the Cohen rule outdated, and held the sister and niece had been direct victims of the mortuary's conduct even though a surviving spouse, who had filed a separate action against the mortuary, possessed the section 7100 right.

Although Quesada noted the ridicule of the family members by the mortuary employees implied more than negligence, it based its ruling on an analysis of the duty of care owed the family members.   Employing a Dillon foreseeability analysis, tempered by public policy considerations enunciated in Elden v. Sheldon (1988) 46 Cal.3d 267, 250 Cal.Rptr. 254, 758 P.2d 582, and Thing, Quesada reasoned the duty of the mortuary to prepare the body for burial and to supply a meeting place for family and friends to view the body before interment rendered it foreseeable “that negligently allowing family and friends to view another person's body instead of the deceased's might well cause severe mental trauma to members of the family or friends who had a close relationship with the deceased.”  (Quesada v. Oak Hill Improvement Co., supra, 213 Cal.App.3d at p. 605, 261 Cal.Rptr. 769.)

Quesada concluded the mortuary owed a duty of reasonable care to all close family members and refused to determine that a neice, as a matter of law, might not fall within the “extraordinary circumstances” category of nonhousehold member in the Thing definition of close family relationship.

b. The plaintiffs lack standing to sue for NIED and IIED.

 The plaintiffs assert that family members and certain close friends of the deceased have standing in this case to sue for NIED and IIED.   Synthesizing the holdings of Thing and Quesada, the defendants argue no plaintiff has standing to sue for NIED because no one witnessed the alleged desecrations.

The defendants similarly argue no plaintiff may state a cause of action for the tort of IIED.6  They base this reasoning on the assertion that transferred intent does not apply to the tort of IIED.  (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 237 Cal.Rptr. 873.)   They point out that a victim of IIED must, in all but the most violent instances of behavior, witness the outrageous conduct in order to state a cause of action for that tort.   (See, Rest.2d Torts, § 46.)

An exception to the immediate presence requirement has been recognized where intentional conduct is such that profound and extreme emotional consequences reasonably may be inferred.

The case of Delia S. v. Torres (1982) 134 Cal.App.3d 471, 184 Cal.Rptr. 787, illustrates the principle.   There the defendant, the plaintiff's “friend,” raped the plaintiff's wife after dropping the plaintiff off at the airport.   The Delia S. court found the plaintiff husband could state a cause of action because he inevitably suffered humiliation and profound emotional consequences such as to constitute a personal wrong against him by virtue of his relationship to the victim.  (Id., at p. 484, 184 Cal.Rptr. 787.)

Because neither violent conduct against a living person nor immediate presence at the scene of the mishandling of the decedents is alleged here, the conduct of the defendants is not actionable under theories of NIED or IIED.

Thus, we agree no member of the Plaintiff Class has standing to sue for the tort of NIED as limited in Thing or the tort of IIED.

However, a different tort is before us in this case.   As stated in Quesada, “Contract analysis aside, the tort involved here, and in Cohen, is the negligent mishandling of a corpse.”  (Quesada v. Oak Hill Improvement Co., supra, 213 Cal.App.3d at p. 603, 261 Cal.Rptr. 769.)   The plaintiffs' suit is not based upon their asserted observation of negligently or intentionally inflicted injury to a third party but upon a personal injury, specifically, the tortious mishandling of remains.   Therefore, the fact none of the plaintiffs observed the desecrations is not determinative.

c. Standing to sue for tortious mishandling of remains.

Cases addressing liability for the mistreatment of human remains have referred to the conduct variously as “mishandling of a corpse” (Quesada, supra, 213 Cal.App.3d at p. 603, 261 Cal.Rptr. 769), or “interference with disposition of a decedent's body” (Sinai Temple v. Kaplan (1976) 54 Cal.App.3d 1103, 1110, 127 Cal.Rptr. 80).   We refer to the conduct in issue as tortious mishandling of remains.

(1) Negligent mishandling of remains cause of action.

Before determining who has standing to sue for this cause of action, we recall certain basic tort law.

 Negligence traditionally involves a legal duty of care which is breached and thereby proximately or legally causes injury.   Conduct which creates an unreasonable risk of harm to some general class of persons is negligent.  (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 733, p. 61.)

“ ‘[T]he negligent causing of emotional distress [or any other tort referred to by specific name] 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 upon a weighing of policy considerations for and against imposition of liability.’  [Citation.]”  (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 588, 257 Cal.Rptr. 98, 770 P.2d 278.)  “Damages for severe emotional distress, rather, are recoverable in a negligence action when they result from the breach of a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.”  (Id., at p. 590, 257 Cal.Rptr. 98, 770 P.2d 278.)

Contrary to the conclusion reached by the defendants that no plaintiff has standing to sue for any negligent conduct they did not witness, the direct victim/bystander dichotomy is properly explained as follows:  “[I]n order to recover for negligently inflicted emotional distress damages, a plaintiff must either have a special relationship to the defendant (Marlene F.), be the direct object of some aspect of the defendant's conduct (Molien ) or personally witness a negligently caused physical injury to a closely related primary victim (Dillon;  Ochoa [v. Superior Court (1985) 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1];  Thing ).”  (Holliday v. Jones (1989) 215 Cal.App.3d 102, 111, 264 Cal.Rptr. 448.)

An analysis of the relevant cases causes us to conclude this case falls into the special relationship category.

In Marlene F., a leading special relationship case, two mothers and their sons sought family counseling from a psychotherapist.   Our Supreme Court held the mothers could state a cause of action against the therapist for molestation of the children because the therapist “knew or should have known in each case that his sexual molestation of the child would directly injure and cause severe emotional distress to his other patient, the mother, as well as to the parent-child relationship that was also under his care.   His abuse of the therapeutic relationship and molestation of the boys breached his duty of care to the mothers as well as to the children.  [Citation.]”  (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 591, 257 Cal.Rptr. 98, 770 P.2d 278.)

Similarly, the duty owed by a mortuary to a bereaved family has been analyzed in the context of the special relationship that arises upon an agreement to care for a decedent.   In Draper Mortuary v. Superior Court, supra, 135 Cal.App.3d at page 537, 185 Cal.Rptr. 396, a third party entered an unlocked mortuary chapel door and sexually violated a decedent.   The mortuary asserted it had no duty to the plaintiff, the decedent's spouse, absent a showing of a prior similar act or knowledge that a third party would act in such a manner whether or not there had been a prior act.

The Draper court reasoned:  “The basis for analysis of whether or not there is a duty is the relationship of the parties.   For if the conduct of the one who is to be charged with the duty brings him into a human relationship with another where social policy requires that either affirmative action or precaution be taken on his part to avoid harm, then a duty to act or to take the precaution should be imposed by law.”  (Draper, supra, 135 Cal.App.3d at p. 537, 185 Cal.Rptr. 396.)  Draper found such a relationship, and stated it was for the jury to determine whether the mortuary had breached its duty by failing to lock the mortuary door.

Draper concluded, “The facts of the instant case compel the imposition of duty.   Once a mortuary such as petitioners' herein undertakes to accept the care, custody and control of the remains, a duty of care must be found running to the members of decedent's bereaved family.”  (Draper, supra, 135 Cal.App.3d at p. 538, 185 Cal.Rptr. 396;  Sinai Temple v. Kaplan, supra, 54 Cal.App.3d at p. 1112, 127 Cal.Rptr. 80.)

Indeed, it has long been the law in this state that human remains are the subject of “a sacred trust for the benefit of all who may, from family or friendship, have an interest in [them].”  (Huntly v. Zurich General A. & L. Ins. Co. (1929) 100 Cal.App. 201, 208, 280 P. 163.)

The Quesada court concluded:  “As a society we want those who are entrusted with the bodies of our dead to exercise the greatest of care․  [I]t is beyond a simple business relationship—they have assumed a position of special trust toward the family.  [Citation.]  Few among us who have felt the sting of death cannot appreciate the grief of those bereaved by the loss.   It is neither unreasonable nor unfair to expect the same appreciation by those who prepare our dead.”  (Quesada v. Oak Hill Improvement Co., supra, 213 Cal.App.3d at p. 610, 261 Cal.Rptr. 769.)

The defendants voluntarily have assumed this sacred trust by agreeing to dispose of human remains.   With such an assumption runs a corresponding duty to discharge the responsibility with care.   We now address who has standing to sue for a breach of that duty.

(2) Close family members have standing to sue for negligent mishandling of remains.

 Quesada extended standing to sue for mishandling of remains to the decedent's sister and niece who had neither contracted for the mortuary services nor held the section 7100 right.

Defendants dismiss Quesada because the plaintiffs there were present at the funeral scene.   They reason the presence of the plaintiffs at the funeral ceremony in Quesada provides the element of NIED which is missing in this case and brings the Quesada result in harmony with Thing.

We disagree.   Presence at the funeral or at the scene of the mishandling is not a pivotal factor in imposition of a duty to refrain from negligent mishandling of remains.   The mortuarys' duty to exercise reasonable care is founded upon the special relationship that arises when the remains of a loved one are entrusted to a mortuary for cremation.   That duty is breached when the mortuary negligently performs the mortuary service.

In contrast, Thing addressed the duty owed by a negligent driver to individuals with whom the driver had no pre-existing relationship.   In that circumstance it is appropriate to limit the driver's liability for negligent conduct to those who witness the negligent event.

Mortuaries accept human remains for disposition with the knowledge that mishandling will cause distress not only to the person with whom the mortuary contracted or the section 7100 right holder, but potentially to all persons bereaved by the death.   Indeed, a recognized aspect of the service provided by the mortuary is the comfort and reassurance that the decedent has been cremated in a respectful manner.

It is illogical to require the presence of the bereaved as an element of standing to sue for the negligent mishandling of the remains when, as a result of the special relationship between the bereaved and the mortuary, the bereaved have entrusted the remains of a loved one to a mortuary for cremation, which by its nature is performed outside the presence of the bereaved.7

 We therefore conclude that presence at the scene of the mishandling is not an element of negligent mishandling of remains and adopt, as did Quesada, the Thing definition of close family relationship to determine who has standing to sue for this tort.

To reiterate, a close family relationship is defined, “absent extraordinary circumstances”, as one involving “relatives residing in the same household, or parents, siblings, children, [grandchildren,] and grandparents of the victim.”  (Thing, supra, 48 Cal.3d at p. 668, fn. 10, 257 Cal.Rptr. 865, 771 P.2d 814.)

Thing omitted grandchildren from the definition of close family relationship.   We believe this omission was an oversight grounded in the fact that the victim in Thing was a minor.   Because this case involves occurrences after death, the standing of grandchildren to sue for the negligent mishandling of the remains of a grandparent was a natural consideration.   We conclude if a grandparent is defined as standing in a close family relationship with a grandchild, a similar relationship running from grandchild to grandparent is necessarily implied.   For this reason, grandchildren expressly have been included in the Thing definition of close family relationship for the purposes of this case.

The Mortuary Defendants argue standing to sue for negligent conduct must be limited for policy reasons.   They claim the funeral industry provides a vital and necessary social service which would have to be performed by the state as a matter of public health if mortuaries did not offer it.   They assert standing for close family members who did not witness the mishandling will constitute so broad a class of plaintiffs that the costs of funerals will increase, the courts will be clogged with the claims of bereaved families, and liability disproportionate to the negligent conduct will be imposed.

Although these policy considerations are valid, they do not override the duty to care properly for our dead running in favor of the decedent's close family members.

We also acknowledge this ruling grants a wider scope of standing to sue for negligent mishandling of remains than is available for negligent injury to a living person.   That is, a mortuary may be liable for negligently mishandling human remains although the same mortuary would not have been liable to absent family members if the mortuary's driver had negligently caused the decedent's death.

We justify the difference based upon a phrase borrowed from death penalty litigation which embodies what we perceive to be the common human experience, “death is qualitatively different.”  (People v. Hernandez (1988) 47 Cal.3d 315, 362, 253 Cal.Rptr. 199, 763 P.2d 1289.)

That is, we are willing to accept the risk that a driver might carelessly injure or kill another, but the risk that human remains might negligently be mishandled by those to whom we have entrusted them resonates more deeply in our collective psyche.

We therefore conclude the plaintiffs' allegations of negligent mishandling of human remains will support a Plaintiff Class which includes close family members as defined in Thing and grandchildren.

d. All family members and close friends of the deceased have standing to sue for intentional mishandling of remains.

 The plaintiffs' supplemental brief requests the Plaintiff Class be defined as to intentional torts to include close family members and close friends directly involved in the funeral plans.   They suggest bereaved friends who do not fall into the class as so defined be afforded an opportunity, after notice, to join the class action as individual party plaintiffs.

As previously mentioned, the defendants resist inclusion of anyone other than a contracting party or a holder of the section 7100 right.

However, it is hornbook law that an intentional wrongdoer is liable for a broad range of the effects of intentional acts.  “[T]he increased liability imposed on an intentional wrongdoer appears to reflect the psychological fact that solicitude for the interests of the actor weighs less in the balance as his [or her] moral guilt increases and the social utility of his [or her] conduct diminishes.”  (Thing v. La Chusa, supra, 48 Cal.3d at pp. 652–653, 257 Cal.Rptr. 865, 771 P.2d 814, quoting Amaya v. Home Ice, Fuel & Supply Co., supra, 59 Cal.2d at p. 315, 29 Cal.Rptr. 33, 379 P.2d 513.)

The abhorrence of intentional mistreatment of the dead frequently has been expressed.  “We can imagine no clearer or dearer right in the gamut of civil liberty and security than to bury our dead in peace and unobstructed;  none more sacred to the individual, nor more important of preservation and protection from the point of view of public welfare and decency;  certainly none where the law need less hesitate to impose upon a willful violator responsibility for the utmost consequences of his act.”  (Koerber v. Patek (1905) 123 Wis. 453, 102 N.W. 40, 43.)

Avoidance of liability out of all proportion to a defendant's negligence is not a concern when an intentional tort is alleged.   As a society, we seek to punish the intentional wrongdoer and deter such conduct by others.  (Thing v. La Chusa, supra, 48 Cal.3d at pp. 649, 667, 257 Cal.Rptr. 865, 771 P.2d 814.)

Therefore, as to those causes of action in which the Mortuary and Crematory Defendants are alleged to have mishandled, mutilated and desecrated human remains intentionally, or acted in knowing combination to accomplish that result, the Plaintiff Class should not be limited to the contracting party, the section 7100 right holder, the successor to that right, or close family members.

We perceive no sound policy reason to impose any arbitrary limitation, such as close family relationship, upon standing to sue for intentional mishandling of remains.   Thus, family members who fall outside the Thing definition and close friends of the decedent should not be denied standing.

The plaintiffs suggest involvement in the funeral arrangements as prima facie evidence of a sufficiently strong bond to merit standing to sue for intentional mishandling of remains.   Rather, this is merely one of many factors which the trial court must weigh in determining whether an individual adequately can show he or she should be allowed membership in the Plaintiff Class.   While this factual determination must be left to the sound discretion of the trial court, we stress that lack of a legally recognized marital or family relationship is not a sufficient basis, by itself and in the face of other strong evidence of close friendship, to deny an individual standing to sue for intentional mishandling of remains.

We are aware that our Supreme Court, in Elden v. Sheldon (1988) 46 Cal.3d 267, 250 Cal.Rptr. 254, 758 P.2d 582, refused to allow a decedent's unmarried cohabitor to sue for loss of consortium and NIED.   We justify the difference in result here on numerous factors which include the intentional, as opposed to negligent nature of the conduct alleged, the special relationship between the bereaved and the defendants, and the fact that the intentional mishandling of remains is a uniquely disturbing tort which merits a broad scope of liability.   Based on these considerations, we conclude standing to sue for intentional mishandling of remains is not governed by the rule in Elden.

7. The Carolina subclass has standing to sue for negligence.

The second amended complaint alleges the Crematory Defendants offered to supply body parts and organs to Carolina in such a large quantity that Carolina knew or should have known the orders could not be filled without unauthorized desecration of human remains.   Plaintiffs assert Carolina easily and inexpensively could have determined whether the crematory defendants had consent to procure the organs purchased simply by contacting the relatives of the decedent or by requesting copies of the documents of gift.  (Health & Saf.Code, §§ 7150.5, subd. (b), 7151, subd. (c), 7153.5, subd. (b).)

Plaintiffs allege even inspection of a blank “Authority to Cremate” form relied upon by the Crematory Defendants as the basis of their consent, on its face, would have alerted Carolina that the Crematory Defendants had not obtained the needed consent.

 Plaintiffs also urge that Carolina did not appeal from the Rulings of April 19, 1989, in which the trial court overruled Carolina's demurrer to plaintiffs' equitable relief claims and granted plaintiffs leave to amend to state a negligence claim based upon breach of the statutory duty imposed by the UAGA.

Thereafter, on September 15, 1989, the trial court overruled Carolina's demurrer to plaintiffs' negligence claim set forth in the third amended complaint.   Carolina did not appeal that ruling.   Plaintiffs conclude Carolina procedurally has no standing to raise the issue before this court.

 Plaintiffs' point is well taken.   However, even had Carolina properly placed the propriety of the trial court's ruling before this court, we find the allegations of the Carolina negligence cause of action, treated as true for the purpose of a demurrer (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58), are sufficient to survive demurrer.

The UAGA provides an anatomical gift may be made only by document of gift signed by the donor.   An anatomical gift made by a person other than the donor must be made by a person authorized to do so under the UAGA and “shall be made by a document of gift signed by the person or the person's telegraphic, recorded telephonic, or other recorded message or other form of communication from the person that is contemporaneously reduced to writing and signed by the recipient.”  (Health & Saf.Code, § 7151, subd. (c).)

“On request of an interested person, upon or after the donor's death, the person in possession [of a document of gift] shall allow the interested person to examine or copy the document of gift.”  (Health & Saf.Code, § 7153.5, subd. (b).)

Viewed against this statutory backdrop, the trial court did not err in overruling Carolina's demurrer to the negligence cause of action.   The Carolina subclass, composed of those section 7100 right holders entitled to control the disposition of the remains purchased by Carolina, have standing to sue Carolina for negligence.

However, because Carolina does not stand in a special relationship with the bereaved, the Carolina subclass is limited to section 7100 right holders and their successors.

8. All potential plaintiffs have standing to sue for unfair business practices.

 Finally, plaintiffs seek relief under Business and Professions Code, section 17200, et seq.   Specifically, they demand that defendants disgorge all profits and compensation obtained as a result of their unfair business practices.

Business and Professions Code section 17204 confers standing on “any person acting for the interests of itself, its members or the general public.”   Business and Professions Code section 17203 allows a court to make such orders “as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.”  (See, e.g., Consumers Union of United States, Inc. v. Fisher Development, Inc. (1989) 208 Cal.App.3d 1433, 1437–1444, 257 Cal.Rptr. 151.)   Thus, regardless of how the Plaintiff Class is defined, its members have standing to sue to enjoin further unfair business practices by the defendants and to obtain restitution of any sums obtained by means of such unfair competition.

9. We decline to address several issues which the parties have not proffered to the trial court in the first instance.

 The parties have asked this court to resolve several issues which have not been ruled upon by the trial court.   Specifically, plaintiffs' seek certification of the Plaintiff Class, and a ruling that each cause of action is viable.   Mortuary Defendant Custer Christiansen requests a ruling in the nature of a demurrer as to the PFAC.

We decline to usurp the function of the trial court in the certification of the class and to determine these issues in the first instance.

a. Class certification.

 Plaintiffs concede the trial court as yet has not denied class certification but has “hinted” it would do so.   Plaintiffs request the guidance of this court on the class certification.   The Mortuary Defendants join the plaintiffs in this request, and ask this court to determine whether, as a matter of law, this matter may proceed as a class action.   But for the stay issued by this court, the trial court would have conducted a class certification hearing on January 16, 1990.

The factors that impact the decision to grant or deny class certification are numerous.   Generally, there must be an ascertainable class and a well defined community of interest in the questions of law and fact presented.  “[T]he ‘community of interest requirement embodies three factors:  (1) predominant common questions of law or fact;  (2) class representatives with claims or defenses typical of the class;  and (3) class representatives who can adequately represent the class.’ ”  (Baltimore Football Club, Inc. v. Superior Court (1985) 171 Cal.App.3d 352, 358, 215 Cal.Rptr. 323;  Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 469–470, 174 Cal.Rptr. 515, 629 P.2d 23;  Vasquez v. Superior Court, supra, 4 Cal.3d at p. 809, 94 Cal.Rptr. 796, 484 P.2d 964;  Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 704, 63 Cal.Rptr. 724, 433 P.2d 732;  Civ.Code, § 1781;  Code Civ.Proc., § 382.)   Additionally, California courts have benefited from the substantive and procedural guidance found in the Federal Rules of Civil Procedure relating to class actions.  (See, Vasquez v. Superior Court, supra, 4 Cal.3d at p. 821, 94 Cal.Rptr. 796, 484 P.2d 964;  Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 709, 63 Cal.Rptr. 724, 433 P.2d 732;  Fed.Rules Civ.Proc., rule 23, 28 U.S.C.A.)

“The burden rests with the plaintiff to show that substantial benefits, both to the litigants and to the court, will result from class certification.   [Citation.]”  (Collins v. Safeway Stores, Inc. (1986) 187 Cal.App.3d 62, 68, 231 Cal.Rptr. 638.)

“ ‘Procedurally, where there is a “reasonable possibility” that the plaintiff in a class action can establish a community of interest among potential claimants, the preferred course is to defer decision on the propriety of the class action until an evidentiary hearing has been held on the appropriateness of class litigation.  [Citations.]  But when the complaint on its face fails to contain sufficient allegations of fact to establish a class interest, the class issue may be properly disposed of by demurrer.’   [Citations.]”  (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 423, 231 Cal.Rptr. 113.)

Defendants argue class action treatment should be denied here because “ ‘each member of the class will be required to litigate numerous and substantial issues affecting his [or her] individual right to recover damages after the common questions have been determined,’ ” (Fuhrman, supra, 179 Cal.App.3d at p. 424, 231 Cal.Rptr. 113), and that “mass tort actions for personal injuries are not appropriate for class-action treatment [citation], in that the major elements in tort actions for personal injuries—liability, causation, and damages—may vary widely․  [Citations.]   Rather, consolidation of actions is the preferred procedure for disposition of such cases.”  (Rose v. Medtronics, Inc. (1980) 107 Cal.App.3d 150, 155, 166 Cal.Rptr. 16 (italics added);  Fuhrman, supra, 179 Cal.App.3d at p. 425, 231 Cal.Rptr. 113.)

Additionally, defendants assert factual diversity fatal to a class action is present here because no one plaintiff is alleged to have dealt with each defendant.  (See, Newberg on Class Actions (2d ed. 1985) § 3.18, pp. 183–184.)

The plaintiffs respond that the existence of a conspiracy among the defendants obviates the need for one plaintiff to have dealt with each defendant.   The plaintiffs also assert it is desirable to devise a uniform plan for the disposition of the commingled and harvested remains.

As can be seen from this brief discussion, the certification in this case is multifaceted and cannot be granted or denied solely on basis of the pleadings before us.   Rather, the issue must be determined by the trial court after benefit of a hearing on the matter.   Finally, even if the trial court determines a class action is inappropriate, some form of coordinated proceedings properly might be ordered.

b. Custer Christiansen's (CC) request for an order in the nature of a demurrer is inappropriate.

CC asks this court to protect it from the “insertion of new and different claims of new plaintiffs who have slept on their rights for the last three years.”

CC asserts the PFAC is the first pleading to allege a named plaintiff, one Barbara Morse (Morse), who had contracted with CC.  “In none of the prior complaints have any plaintiffs ever alleged that they had any relationship with or were injured as a result of any misconduct of defendant, Custer Christiansen.”   CC asserts the claim of Barbara Morse is now barred by the statute of limitations.

Although CC concedes it has been named in the caption of the first, second and third amended complaints, it argues “there were no allegations in them to apprise Custer Christiansen of the identity of any claimant against it, the acts of which it is accused, the dates of its alleged misconduct, or the particular agreements which it allegedly breached over the seven years of the class period.”

It appears the original complaint was amended to add CC as a Doe defendant within one year of the discovery of the mutilations alleged.

CC's claim is devoid of merit.   The filing of a class action tolls the statute of limitations if “a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.   Within the period set by the statute of limitations, the defendants have the essential information necessary to determine both the subject matter and size of the prospective litigation, whether the actual trial is conducted in the form of a class action, as a joint suit, or as a principal suit with additional intervenors.  [Fn. omitted.]”  (American Pipe and Construction Co. v. Utah (1974) 414 U.S. 538, 554–555, 94 S.Ct. 756, 766–767, 38 L.Ed.2d 713, 727.)

Before Morse appeared as a named plaintiff, her claim against CC had been asserted by the class of which Morse is a party.  (Crown, Cork & Seal Co. v. Parker (1983) 462 U.S. 345, 354, 103 S.Ct. 2392, 2397, 76 L.Ed.2d 628;  Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 706, 63 Cal.Rptr. 724, 433 P.2d 732;  cf. Jolly v. Eli, Lilly & Co. (1988) 44 Cal.3d 1103, 1122, 245 Cal.Rptr. 658, 751 P.2d 923.)   However, in deference to the trial court, we do not address CC's statute of limitations assertion in the first instance in a writ proceeding.

c. Plaintiffs' request for a determination each cause of action states a viable basis for the relief answered indirectly.

Plaintiffs seek to have this court address the sufficiency of the allegations of the PFAC before that question has been submitted to the trial court.   To the extent this court has ruled on the standing of potential class members to sue, we necessarily have discussed potential causes of action.   Beyond the foregoing exposition of our views, we decline to address this request.

CONCLUSION

Plaintiffs do not allege an individual representative plaintiff who has been aggrieved by the trial court's order.   However, because the ruling in issue relates to standing to sue, we address the merits in the interest of judicial economy.

The parties concede that contracting parties and section 7100 right holders have standing to sue.

Based upon the allegations of outstanding human remains, we conclude the section 7100 right must devolve after the death of the decedents.

Because of the special relationship between a mortuary and the bereaved, a potential plaintiff need not allege presence at the scene of the mishandling in order to have standing to sue for negligent mishandling of remains.   Thus, close family members, as defined in Thing and modified to include grandchildren, have standing to sue for negligent mishandling of remains.

Allegations of intentional mishandling of remains permit the plaintiffs to define a Plaintiff Class that includes all family members, including those who fall outside the Thing defintion, and close friends of the deceased.

The Carolina subclass, consisting of section 7100 right holders and their successors, have standing to sue Carolina for negligence.

Accordingly, the trial court's ruling on standing must be reversed.

We decline to address certain issues raised by the parties in supplemental briefs as these issues have not been presented to the trial court in the first instance.

DISPOSITION

The alternative writ heretofore issued is discharged.   Let a peremptory writ of mandate issue directing respondent court to vacate its order on standing to sue, and to enter instead an order in accordance with the views expressed herein.

FOOTNOTES

1.   Health and Safety Code section 7100 (section 7100) provides in pertinent part:  “The right to control the disposition of the remains of a deceased person, unless other directions have been given by the decedent, vests in, and the duty of interment and the liability for the reasonable cost of interment of such remains devolves upon the following in the order named:  [¶] (a) The surviving spouse.  [¶] (b) The surviving child or children of the decedent.  [¶] (c) The surviving parent or parents of the decedent.  [¶] (d) The person or persons respectively in the next degrees of kindred in the order named by the laws of California as entitled to succeed to the estate of the decedent.  [¶] (e) The public administrator when the deceased has sufficient assets.”

2.   The trial court's order, as written, limited the Plaintiff Class to the contracting party or the section 7100 right holder.   The parties agree the trial court intended both groups to enjoy class membership.

3.   The Harbor Lawn case involved multiple cremation and commingling of remains.   The Neptune Society Cases alleged the dumping of cremated remains on the foothill property of B.J. Elkin, a pilot employed by Bay Area mortuaries to scatter ashes in the High Sierras.In 1984 the Legislature enacted Health and Safety Code, section 7054.7, which prohibited multiple cremation and commingling of remains.

4.   After filing of this opinion, plaintiffs filed a document entitled “Notice of Beneficially Interested Representatives to be Named in Petitioners' Complaint and Writ Petition.”   At the request of the Reporter of Decisions, the caption of this case has been modified to substitute the name of the first mentioned beneficially interested party, Donald Paul Christensen, et al., in lieu of the previous reference to Unidentified Relatives or Family Members Who Claim Standing as Individual Plaintiffs in Sconce/Lamb Cremation Cases.

5.   In their supplemental brief the Mortuary Defendants also urge that Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373, prevents recovery of tort damages, i.e., damages for emotional distress, in a suit founded on breach of contract.   The Lamb defendants characterize the mortuary contract as “an ordinary commercial contract.”Although our stay order improvidently included reference to “any other relevant issue,” we did not intend thereby to usurp the trial court's function in the litigation of this matter.However, in the event this case progresses to the point contract damages become a relevant issue and in the interest of judicial economy, we note the rule in this state is “[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.”   (Allen v. Jones (1980) 104 Cal.App.3d 207, 211, 163 Cal.Rptr. 445;  Ross v. Forest Lawn Memorial Park (1984) 153 Cal.App.3d 988, 995, 203 Cal.Rptr. 468.)   Thus, a contract for mortuary services so intimately involves the emotional security of the living that the contracting party may recover for emotional distress as an element of contract damages upon a breach.We do not believe the Foley rationale impairs the rule that when a contract, by its nature, contemplates emotional or mental security, damages for such distress are available upon a breach.  Foley did not address the proper measure of damages upon the breach of a contract which contemplates emotional security.However, plaintiffs may not recover punitive damages on a contract cause of action.  (Allen v. Jones, supra, 104 Cal.App.3d at p. 216, 163 Cal.Rptr. 445;  Walker v. Signal Companies, Inc. (1978) 84 Cal.App.3d 982, 996, 149 Cal.Rptr. 119.)

6.   “The elements of a cause of action for intentional infliction of emotional distress are (i) outrageous conduct by defendant, (ii) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress, (iii) severe emotional distress, and (iv) an actual and proximate causal link between the tortious conduct and the emotional distress.  [Citation.]  The ‘[c]onduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’  [Citations.]”  (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300, 253 Cal.Rptr. 97, 763 P.2d 948;  State Rubbish, etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 338, 240 P.2d 282.)

7.   Although the defendants pointed out at oral argument that an agreement to cremate typically permits the presence of the bereaved, they concede that in the normal course of events family and friends are not present when remains are cremated.

KLEIN, Presiding Justice.

DANIELSON and CROSKEY, JJ., concur.