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Valparaiso Univ. Law School

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Thursday, June 9, 2005

Cases: Too late to raise contract claim

California_flag_5 Two bereaved daughters whose mother’s ashes were accidentally disposed of by a funeral home lost their breach of contract claim for failure to raise it before trial, in a recent decision by the California Court of Appeals.

The daughters of Gay Davis had wanted to scatter her ashes at sea, but the mortuary had already accidentally disposed of Davis’s ashes. The daughters brought suit against the mortuary, claiming negligence and negligent infliction of emotional distress. Only after trial started did they move to amend the pleadings to add a count for breach of contract.

Too late, said the court. California has a general policy allowing "liberal amendments to pleadings," but here the change would fundamentally alter the mortunary's defense strategy. Since the daughters showed no reason why they could not have raised the issue earlier, the motion was properly denied.

Baxter v. Wilson & Kratzer Mortuaries, 2005 Cal. App. Unpub. LEXIS 4363 (Cal. Ct. App. May 18, 2005).

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