Judge: Layne H. Melzer, Case: 2022-01278984, Date: 2022-12-15 Tentative Ruling
Petitioner Mark Sork
Motion - Other (Petition for Permission to Remove and Cremate Remains)
The Petition of Petitioner Mark Sork to remove and cremate remains is CONTINUED to 2/9/23 at 2PM, as the Court requests supplemental briefing addressing the issue of whether or not Decedent’s ashes can be legally disposed of according to Decedent’s wishes, and, if not, whether he should still be exhumed and cremated.
Section 7526 grants the trial court broad discretion, sitting in equity, to consider the particular facts of each case in deciding whether to grant permission to disinter the remains of a deceased person. Maffei v. Woodlawn Memorial Park (2005) 130 Cal.App.4th 119, 122.
Although the statutes give the superior court authority to grant permission to disinter, they are silent concerning the factors that would move the superior court to grant its permission. However, the courts have announced certain general principles through case precedent that govern the right to remove the bodies of the dead. Among the factors courts have considered in deciding to disinter a body are the following:
• The interests of the public.
• The wishes of the decedent.
• The rights and feelings of those entitled to be heard by reason of relationship or association with the decedent.
• The degree of relationship to the decedent of those opposing or seeking disinterment.
• The conduct of the parties seeking and opposing reinterment, especially as it relates to the circumstances of the original interment, the integrity and capacity of the person seeking reinterment to provide a secure and comparable resting place for the decedent.
• Any agreement with, or regulations of, the persons or associations maintaining the cemetery in which the decedent is buried.
• The rights and principles of the religious body or other institution that granted the right to inter the body initially.
• Whether consent was given, by persons with authority to do so, to the burial in the first place of interment.
(Id. at 128.)
Although not all of the authorities give the same order to the factors to be considered, all of the cases give primary importance to the public interest and the wishes of the decedent. In other words, with respect to disinterment and reinterment, the same rules regarding the wishes of the decedent apply as to the original interment. Mitty v. Oliveira (1952) 111 Cal. App. 2d 452. However, there is a presumption against disinterment that grows stronger with remoteness of connection with the decedent; furthermore, the court always reserves the right to require that reasonable cause be shown for the disinterment. Ibid.
Here, Decedent died on 12/30/08 and was buried on Respondent’s grounds on 01/03/09. Decedent has no surviving spouse, children or parents. Petitioner is Decedent’s brother and the Executor of Decedent’s estate. Petitioner handled decedent's estate and forgot that Decedent gave him a handwritten note asking that his remains to be cremated. Petitioner found the note and asked the cemetery in 2017 to release the remains for cremation. Cemetery said they would but would need permission from all surviving siblings or a court order. This Petition follows.
Petitioner states that Decedent informed him that he wished to be cremated and that his ashes be spread in the ocean. Ex. 1 attached to the Petition is a handwritten letter purportedly written by Decedent and dated 10/18/98. Decedent states that upon his death that his remains be cremated, and in Petitioner’s plane, scatter his cremated remains over the Pacific Ocean at Newport Beach, preferably at or near their old beach house. The letter goes on to state that Petitioner could still maintain a headstone for him, near their mother’s grave.
Here, Decedent desired cremation. Neither religious principles, nor any rule of the cemetery association is involved and the primary considerations would seem to be the public policy requiring a proper respect for the bodies of the dead, Decedent’s wishes and the integrity and capacity of the person seeking reinterment to provide a secure and comparable resting place for the decedent. There is no objection or opposition to the Petition, thus the feelings and desires of those entitled to be heard by reason of relationship and association do not appear to be a strong factor here.
The Petition prays for the court to authorize the removal of the remains of the Decedent from the Pacific View Cemetery so Decedent’s remains can be “cremated and scattered in accordance with Decedent’s expressed wishes.” However, the Petition fails to address Petitioner’s ability to provide a secure and comparable resting place for the decedent.
Decedent requested that his remains be scattered at sea by Petitioner, in his plane, at or near their old house in Newport Beach. Petitioner has failed to address all relevant rules and regulations pertaining to burials at sea, which include scattering of ashes, and in consideration of these applicable rules, whether or not Decedents wishes can be fulfilled. If Decedent’s wishes are unable to be fulfilled, it appears to the Court that the factors weigh against disinterment.
A supplemental brief shall be filed and served on all interested parties, by Petitioner no later than 9 court days prior to the continued hearing and shall not exceed 5 pages, exclusive of any declarations or supplemental evidence.
Moving Party to give notice.