Legal Question in Business Law in California

Interesting question. I have no idea if you have a right to have the body exhumed and moved, but you certainly have a claim for damages.

Well, this has turned out to be a tough question. There seems to be a general lack of either case law or statutes on this subject in California.

First, as to California case law, I only found one case that covers the topic of burial in the wrong plot; in that case, the court allowed damages for negligent infliction of emotional distress to the plot owners when a stranger was interred next to a relative. Not exactly on point, but you may want to look it up and review the court's reasoning. Try "Binns v. Westminster" in a search engine are look for Binns v. Wesminster Memorial Park (2009) 171 Cal.App.4th 700.

You might also look at a California Supreme Court case, Christensen v. Superior Court (1991) published at 54 Cal.3d 868. There may be some tidbits here.

Next, there are many provisions in the California Health and Safety Code covering cemeteries and their operation (starting at around Section 8500), but I found nothing that covers mis-burials or liability therefor.

I researched cases from other states. In a Tennessee case, Clark v. Service Corp. (1999) M1998-0160-COA-R3-CV, on facts similar to yours the court held that plaintiff could not recover for negligent infliction of emotional distress or breach of contract (as a third-party beneficiary), but could recover for trespass.

There are also two Alabama cases somewhat on point, but whether California courts would follow the holdings in TN or AL is unknown. You can probably find these cases on line: Jakeman v. Lawrence Group Management Co., LLC (Alabama, 2011) published at 82 So.3d 655; and Smith & Gaston Funeral Directors v. Dean (Alabama, 1955) 80 So.2d 227. The latter case allowed recovery by plaintiff on trespass theories.

Before inaugurating any legal action, I'd try to get the cemetery management to deal with the problem voluntarily, including dealing with the family of the mis-buried person. These matters can be very touchy, and court is not always the best place to get them straightened out. However, if you were obliged to sue, trespass is probably the best theory and an injunction the proper remedy. Even if the plot is held only as a "right of interment" rather than outright ownership, the right would be akin to an easement, and the holder of an easement can bring an action for third-party trespass.