Thursday, April 9, 2026
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C.A.: Impracticability Affirmative Defense to Breach of Contract Claim Sounds in Equity
Opinion Says Judge Wrongly Submitted Viability to Jury Over Plaintiffs’ Objection in Case Against Mortuary Alleging That Mix-Up at Coroner’s Office Led to Wrong Corpse Being Cremated
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal held yesterday, as a matter of first impression, that the impossibility affirmative defense in a breach of contract cause of action, which shields a defendant from liability if the party establishes that an unforeseen event either prevented performance or rendered it impracticable, sounds in equity and is to be determined by a judge and not the jury.
The question arose after a Texas coroner’s office mixed up the cadavers of two men who died one day apart, causing a California family to receive the wrong body for burial after their loved one’s remains were cremated against their wishes. The widow and others asserted causes of action for negligence and breach of contract against the San Diego-area mortuary hired to bring the corpse home.
At trial, the mortuary defendants asserted the affirmative defense of impracticability, citing errors by the coroner’s office that they said made it nearly impossible for them to have performed their obligations under the contract, a question the trial judge submitted to the jury for final resolution over the plaintiffs’ objection. The jury found for the defendants on all claims.
Writing for the court, Justice Truc T. Do declared:
“We are asked to answer an open question in California: When a party asserts the affirmative defense of impracticability of performance in a breach of contract cause of action, is the defense properly submitted for decision to the judge or the jury? The answer depends on whether impracticability is a legal or equitable defense….[T]he defense is equitable and is triable to a court, not a jury. We therefore agree with the family’s…contention that the court erred when it submitted the defense to the jury for decision. As a remedy, we reverse the jury’s verdict on the breach of contract cause of action and remand for a bench trial of the mortuary’s affirmative defense, and if needed, a trial of damages on the breach of contract cause of action.”
Justices Martin N. Buchanan and Julia C. Kelety joined in the opinion.
Unexpected Death
The mix-up occurred during a series of events that began on March 20, 2020, when Jose Gonzalez Jr., a long-haul truck driver from California, unexpectedly died in Texas. His body was taken to the Tarrant County Medical Examiner’s Office, where an autopsy was performed.
On March 21, a man named Jesse Gonzales passed away in Fort Worth, and his body was transported to Tarrant County for autopsy services. The case numbers assigned to each of the two bodies differed only in the last two digits.
Jose Gonzalez’s widow, Celina Gonzalez, contacted Dolores Humphrey, the office manager for Community Mortuary Inc., to make arrangements to have her husband’s remains embalmed and returned to Chula Vista. Humphrey contracted with a Texas provider to have the body preserved and transported.
After the coroner’s office mixed up the bodies, Jose Gonzalez’s body was cremated that April by a donor facility selected by the other decedent’s family, and Gonzales’ body was embalmed and returned to the family in California.
Two complaints were filed against Community Mortuary and Humphrey, among others, relating to the mix-up, one by extended family members and another by Celina Gonzalez together with the decedent’s daughter. The cases were consolidated in September 2022, and the operative complaint includes negligence and breach of contract claims.
During a May 2024 trial, the jury was instructed on the affirmative defense. The panel returned a verdict in favor of Humphrey and Community Mortuary on both causes of action and found that “full performance of all terms of the contract” was “excused due to impossibility or impracticability.”
At the close of evidence, Humphrey and Community Mortuary filed a motion for nonsuit, arguing that the evidence required judgment as a matter of law on the affirmative defense and that the decedent’s daughter and extended family members did not have standing to sue for breach of contract.
San Diego Superior Court Judge Richard S. Whitney granted the motion only as to the standing issue. The plaintiffs appealed, challenging only the jury’s verdict on the contract claim.
Equitable Issues
Saying that parties are entitled to have equitable issues tried by a judge and legal ones submitted to a jury, Do remarked that “the question here is, which decision maker adjudicates the affirmative defense of impracticability.”
Opining that “there is no question the cause of action for breach of contract was properly tried to the jury, with questions of law, such as contract language interpretation, determined by the court,” she said:
“By contrast, whether the impracticability defense is properly tried to a judge or a jury is an open question that has brought the parties into stark disagreement…..[W]e decide this question based on consideration of the historical development of the defense, the nature of the relief sought, and whether the substantive elements to be adjudicated require the consideration and application of equitable principles not suitable for assessment by a jury.”
Turning to the historical background of the defense, she pointed out that the doctrine was not recognized in California until 1916 and has been expanded from its original understanding, based on contract principles rooted in the consent of the parties, to incorporate “principles of fundamental fairness.” She explained:
“Today, a party relying on the defense of impracticability of performance must establish (1) the occurrence of an event that makes performance impossible or impracticable…, (2) the event occurred through no fault of the party seeking relief…, (3) the event was unexpected in the sense that its non-occurrence was a basic assumption of the agreement of the parties…, and (4) the language of the contract or the circumstances warrant a reallocation of the risk of impracticability to another party.”
Substantial Justice
Noting that “[i]f the defense is established, the trial court is then empowered ‘to do substantial justice’ by choosing from several remedies,” including restitution for expenses made in reliance on the contract, she concluded that “we are persuaded that the fundamental nature of the defense, in its current form, is equitable.”
Rejecting the defendants’ assertion that the trial court had broad discretion to decide to submit the question to the jury even if it is equitable in nature, she recognized that a jury may be empowered to give advisory verdicts as to facts in issue where both legal and equitable issues are present but commented:
“[I]t was long-ago settled under California Supreme Court holdings that trial court judges are required to decide equitable causes of action and defenses….”
Applying those principles, she said that “[t]he trial court here accordingly erred when it submitted Community and Dolores’s impracticability defense to the jury over the Gonzalez family’s objection” but that the judge “properly granted nonsuit because the extended family lacked standing to pursue damages for breach of contract.”
She declared:
“Judgment on the breach of contract cause of action is reversed and remanded as to Celina only. On remand, the trial court must make an independent decision on Dolores and Community’s impracticability defense. In making its determination, the court may use the evidence presented at the original trial, together with such additional evidence as it may deem necessary and advisable. If Dolores and Community fail to sustain their burden of proof as to the defense, the court is directed to try the question of damages on the breach of contract cause of action, and to submit the question to a jury at the request of either party.”
The case is Gonzalez v. Community Mortuary Inc., 2026 S.O.S. 995
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