Law Offices of John J. Murphy, Iii, Apc

JOHN J. MURPHY, III CSBN129034

LAW OFFICES OF JOHN J. MURPHY, III, APC

3990 Old Town Avenue, Suite 200-A

San Diego, CA92110

Tel. (619) 291-9593

Facs.(619)291-2866

Attorney for Plaintiff

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN DIEGO

CENTRAL DIVISION

TRACI L. PUTNAM,
Plaintiff,
vs.
LENEDA, INC., A California Corporation; TELOPHASE CREMATION SOCIETY, an unknown business entity; PAUL R. HILDEBRAND, an individual; ROD HILDEBRAND, an individual; JOHN STIVERS, an individual;EDWIN H. STIVERS, an individual; and DOES 1, through 100, inclusive ,
Defendants. / )
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COMPLAINT FOR DAMAGES FOR:

1. BREACH OF CONTRACT;
2. BREACH OF IMPLIED COVENANT;
3. NEGLIGENCE;
4. NEGLIGENCE PER SE;
5. INTENTIONAL MISREPRESENTATION-FRAUD;
6. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;
7. NEGLIGENT INLFICTION OF EMOTIONAL DISTRESS;
8. UNFAIR BUSINESS PRACTICES;

(Unlimited Civil)

Plaintiff, TRACI L. PUTNAM, alleges as follows:

GENERAL ALLEGATIONS

1. Plaintiff TRACI L. PUTNAM is, and at all times relevant to this Complaint

was, a competent adult, and the natural daughter of decedent KAREN MARIE BENNETT, and a is resident of the State of Texas. At the time of the events described herein, and particularly at the time of the death and cremation of decedent and at the time that Plaintiff entered into the subject contract with Defendants, Plaintiff and decedent were residents of the County of San Diego, State of California.

1. Defendant, LENEDA, INC., is and at all times relevant to this Complaint was,

a California Corporation, doing business in the County of San Diego and State of California, with its principal place of business in the County of San Diego and State of California.

3. Defendant, TELOPHASE CREMATION SOCIETY is, and at all times relevant to this Complaint was, an unknown form of business entity, doing business in the County of San Diego and with its principal place of business in the County of San Diego and State of California.

4.Defendant, PAUL R. HILDEBRAND is, and at all times relevant to this Complaint was, a competent adult and resident of the County of San Diego, State of California. Plaintiff is informed and believes and on that basis alleges that Defendant, PAUL R. HILDEBRAND is an owner, officer, director and/or managing agent of Defendants, LENEDA, INC. and/or TELOPHASE, and as such was personally aware of the negligent and wrongful acts and business practices of these Defendants alleged in this Complaint, and approved of, allowed and ratified the negligent and wrongful acts and business practices to take place at Defendants place of business.

5.Defendant, ROD HILDEBRAND is, and at all times relevant to this Complaint was, a competent adult and resident of the County of San Diego, State of California. Plaintiff is informed and believes and on that basis alleges that Defendant, ROD HILDEBRAND is an owner, officer, director and/or managing agent of Defendants, LENEDA, INC. and/or TELOPHASE, and as such was personally aware of the negligent and wrongful acts and business practices of these Defendants alleged in this Complaint, and approved of, allowed and ratified the negligent and wrongful acts and business practices to take place at Defendants place of business.

6.Defendant, JOHN STIVERS is, and at all times relevant to this Complaint was, a competent adult and resident of the County of San Diego, State of California. Plaintiff is informed and believes and on that basis alleges that Defendant, JOHN STIVERS is an owner, officer, director and/or managing agent of Defendants, LENEDA, INC. and/or TELOPHASE, and as such was personally aware of the negligent and wrongful acts and business practices of these Defendants alleged in this Complaint, and approved of, allowedand ratified the negligent and wrongful acts and business practices to take place at Defendants place of business.

7.Defendant, EDWIN H. STIVERS is, and at all times relevant to this Complaint was, a competent adult and resident of the County of San Diego, State of California. Plaintiff is informed and believes and on that basis alleges that Defendant, EDWIN H. STIVERS is an owner, officer, director and managing agent of Defendants, LENEDA, INC. and/or TELOPHASE, and as such was personally aware of the negligent and wrongful acts and business practices of these Defendants alleged in this Complaint, and approved of, allowed and ratified the negligent and wrongful acts and business practices to take place at Defendants place of business.

8.Plaintiff is ignorant of the true names and capacities of Defendants sued herein as Does 1 through 100, inclusive, and therefore sues said Defendants by such fictitious names. Plaintiff will amend this Complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes and thereon allege that each of these fictitiously named Defendants is responsible in some manner for the occurrences herein alleged, and that Plaintiff’s damages as herein alleged were caused in whole or in part by their conduct.

9.Plaintiff is informed and believes and thereon alleges that at all times herein mentioned, each of the Defendants, including all Defendants who are sued herein underfictitious names, are and were the agent or employee or co-conspirator of each of the remaining Defendants and, in doing the things hereinafter alleged, said Defendants were acting within the course and scope of said agency or employment, in furtherance of a plan or conspiracy, and with the knowledge and consent of each and every other Defendant. Plaintiff is further informed and believes and thereon alleges that at all times mentioned herein, the Defendants, and each of them, were the principals and/or agents, servants, or employees of said principals and that all of the acts performed by said Defendants as agents, servants, or employees were performed withinthe course and scope of their agency and employment and/or authority of said agency and employment. Plaintiff alleges that each Defendant corporation either performed the acts herein alleged through its managing agents, officers and/or directors or had advance knowledge of the events complained of herein and/or the unfitness of their employees and/or agents and employed said agents and/or employees with a conscious disregard of the rights an/or safety of others, and/or authorized, permitted, consented to and ratified the conduct described herein.

10.Decedent, KAREN MARIE BENNETT, was the natural mother of Plaintiff, TRACI L. PUTNAM and was a resident of the County of San Diego at the time of her untimely passing and at the time of her cremation by Defendants herein. Decedent passed away on September 13, 2006, while a patient at SharpGrossmontHospital, located in the City of La Mesa, County of San Diego. In the years prior to her passing, Plaintiff was the primary care giver and care taker for her mother and had a very close and loving relationship with her mother. At one point, Plaintiff’s mother had moved in with Plaintiff and her husband and Plaintiff cared for her daily needs and helped her with her medical care. In the last years of her life, Plaintiff and her mother spoke to each other about how Plaintiff’s mother wanted her remains to be handled and Plaintiff intended on following her mother’s wishes and desires. The dignity and grace of her mother’s life was important to Plaintiff and Plaintiff hoped to be able to celebrate the end of her mother’s life in a manner fitting and appropriate with how her mother had lived her life.

11.Earlier in her life, in approximately 1993-1994, while she was living in Tucson, Arizona, Plaintiff’s mother had all of her teeth removed from her mouth. Shortly thereafter, she was fitted with and received full upper and lower dentures. Decedent wore the full upper and lower dentures in her mouth until September 12, 2006, when they were removed by the staff at SharpGrossmontHospital and they were given to Plaintiff. Plaintiff is still in possession of her mother’s full, upper and lower dentures. Additionally, on September 12, 2006, after removal of the full, upper and lower dentures, staff at SharpGrossmontHospital took a CT Scan of decedent’s head. The films from the CT Scan show several angles of Plaintiff’s mother’s mouth and confirm that she had no teeth or dental roots/ bones remaining in her mouth.

12.On September 13, 2006, Plaintiff’s mother suffered a respiratory failure along with other fatal medical conditions related to septic shock and she passed away at SharpGrossmontHospital. Immediately after the death of her mother, Plaintiff began making arrangements to ensure that her mother’s passing was celebrated and carried out in the way that she wanted it to be and in a fashion worthy of her mother’s dignity and grace.

13. On or about September 15, 2006, Plaintiff personally met with the staff at Defendants LENEDA, INC. and TELOPHASE CREMATION SOCIETY place of business located in the City of San Diego, County of San Diego. On that date, and in consideration of the payment of charges and fees of $1,145.00, made by Plaintiff, Defendants and each of them, by their duly authorized agent Defendant JOHN STIVERS, entered into a written contract (hereinafter "the Contract") with Plaintiff in which Defendants, and each of them expressly promised, represented and warranted that KAREN MARIE BENNETT’S remains would be cremated and disposed of to Plaintiff in a lawful, dignified and appropriate fashion. (Attached hereto as Exhibit "A" and incorporated herein by reference is a true and correct copy of the “Contract”.)

14.On September 15, 2006, Plaintiff met with Defendant, JOHN STIVERS to complete the funeral/cremation arrangements and sign the paperwork required by DEFENDANTS, LENEDA, INC. AND TELOPHASE. On September 15, 2006, when meeting with Defendant, JOHN STIVERS, Plaintiff was required to initial and sign a document entitled “AUTHORITY TO CREMATE LENEDA, INC.”. In that document, Defendants, and each of them, requested Plaintiff review and determine if she wanted to initial the following paragraph related to the disposition of her mother’s remains:

“Certain items, including, but not limited to body prostheses, dentures, dental bridgework, jewelry, dental gold or silver or mementos may not be destroyed by this cremation process and I/We hereby request that it be separated from the cremated remains and authorize LENEDA, INC., to dispose of it in such manner it deems advisable.”(Emphasis Added.)

Ms. Putnam initialed this paragraph thereby specifically instructing Defendants, and each of them to remove any and all dental fragments or pieces that could have survived the cremation process. At the time of her death and thereafter at the time of cremation of her remains, Plaintiff’s mother did not have any “dentures”, “dental bridgework”, or “dental gold or silver” in her mouth/head. Even if she had, Plaintiff specifically requested and instructed that Defendants, and each of them remove any such materials that survived the cremation process. (Attached hereto as Exhibit "B" and incorporated herein by reference is a true and correct copy of the “AUTHORITY TO CREMATE LENEDA, INC.”.)

15. On September 15, 2006, Plaintiff signed the documents provided by and reviewed with

her by Defendant JOHN STIVERS and paid the fees required by Defendants, LENEDA, INC. and TELOPHASE in full. In addition, she purchased a keepsake urn necklace that Defendants represented would hold a small amount of her mother’s cremated remains. No other urns or containers were purchased by Plaintiff at this time. Plaintiff was also informed that her mother’s remains would be cremated at Defendant, LENEDA’S crematorium located in the City of El Cajon, County of San Diego.

16. Several days later, Plaintiff was notified that her mother’s ashes were ready to be picked up at Defendants’ office. On September 29, 2006, Plaintiff appeared at the same office where she had arranged and contracted for her mother’s cremation and disposition. Again, Defendant JOHN STIVERS met with her and presented her with three (3) items: (1) an envelope containing several death certificates, copies of purchase receipts and a requested lock of hair; (2) a standard brown, plastic box of cremated remains labeled with her mother’s name, date of cremation (which was seven days after her death) and an identification number used to indentify the body; and, (3) the small, silver keepsake urn she had purchased which purportedly contained a small amount of her mother’s cremated remains.

17. Shortly after receiving what was represented by Defendants, and each of them, to be her mother’s cremated remains, Plaintiff moved with her husband and daughter to Houston, Texas. After moving to Houston in the fall of 2006, Ms. Putnam began searching for a container to permanently store her mother’s remains. Her mother had a life long interest and love for Native American Indian history and artifacts and Plaintiff searched for a container that she believed would honor her mother and honor her interest in Native American peoples. During her search, the brown, plastic container provided to her by Defendants was kept and stored on the top shelf in her closet where it would be safe. The container was never opened from the date Defendant STIVERS provided it to Plaintiff until September of 2009.

18. In August of 2009, Plaintiff found a container to store permanently hold her mother’s cremated remains that she believed would provide honor and dignity to her mother. On September 13, 2009, the anniversary of her mother’s death, Plaintiff decided to transfer her mother’s cremated remains from the original container provided to her by Defendants, and into the container she purchased one month earlier. It was Plaintiff’s hope that this act would provide her mother with some final peace, honor and dignity and would provide herself with some peace and closure with her mother’s passing. After she removed the bag of cremated remains from the brown plastic container, she began to notice a few fairly sizeable objects that appeared to be metal in nature pressing against the inside of the bag. After removing a few pieces of these objects from the bag, Plaintiff looked more closely at the objects and they appeared to be of dental origin or nature. Plaintiff continued to closely inspect the cremated remains and noticed more suspicious looking objects. Eventually, after sifting the cremated remains, Plaintiff discovered approximately eight (8) pieces of what appeared to be of dental origin and numerous other metal objects and debris, including what appeared to be burned or heated hospital gown buttons or snaps and other miscellaneous items and debris of unknown nature.

19. Within several days after her discovery, Plaintiff learned that the many of the objects which she discovered in the bag of cremated remains provided to her by Defendants were in fact dental in origin. This discovery was shocking and saddening to Plaintiff as she knew that her mother did not have any teeth or dental objects of any kind in her mouth when she was cremated by Defendants. Plaintiff has also discovered, based upon information and belief, that the keepsake urn provided to her by Defendants, and each of them, and purported and represented by Defendants and each of them to contain the cremated remains of her mother, may not contain the cremated remains of her mother. This was extremely upsetting to Plaintiff as she had been wearing the keepsake urn around her neck on an almost daily basis since her mother had passed away.

20. Contrary to the representations, warranties, promises and certifications made by Defendants, and each of them, to Plaintiff, the remains of her mother, KAREN MARIE BENNETT, were not cremated in the lawful, dignified, appropriate and proper manner. Instead, it appears based upon information and belief, that Plaintiff’s mother was either cremated with the body or bodies of other deceased persons, that her remains were commingled with the cremated remains of another deceased person or persons, or that Plaintiff was provided the cremated remains of a deceased person other than her own mother.

21. Plaintiff did not and could not have discovered the existence of the wrongful conduct of Defendants until September 13, 2009, when she first opened the original container provided to her by Defendants. On that date, and several days thereafter, Plaintiff first discovered that the cremated remains she was given by Defendants may not be the cremated remains of her mother as they contained numerous objects that were of dental nature or origin and numerous other metal or other object and debris of unknown origin and nature.

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FIRST CAUSE OF ACTION

(BREACH OF CONTRACT)

(Against all Defendants and DOES 1-50)

1. Plaintiff realleges and incorporates by reference paragraphs 1 through 21, above, as

though fully set forth herein.

1. On or about September 15, 2006, Plaintiff and Defendants entered into a contract for the

cremation and disposition of Plaintiff’s mother, KAREN MARIE BENNETT. Defendants and each of them breached said contract, and the promises, representations, and warranties contained therein, as described above. More specifically, and based upon information and belief, Defendants provided Plaintiff with the cremated remains of someone other than her mother, cremated her mother’s body with the body or bodies of other deceased persons or, mixed and commingled the cremated remains of one or more persons with that of her mothers remains.