IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE

Transcription

1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE DOROTHY BUSHNELL, GEORGE FUGUET, ) CASE NO JOSEPH FUGUET, BETTY YOUNG, ) consolidated with AVA READDY, LAMMERCHINA ALLEN, ) CASE NO PAMELA STONEHAM, and EMILY NICHOLS, ) on behalf of themselves and ) COMPLEX CASE all others similarly situated, ) MANAGEMENT PROGRAM ) Plaintiffs, ) JUDGE: THE HONORABLE ) DONALD E. vs. ) SMALLWOOD ) CREMAR, INC., a California corporation; ) DEPT.: 30 THE TELOPHASE SOCIETY OF AMERICA, ) a California corporation; ) NOTICE OF PRELIMINARY SHEFFER MORTUARY, INC., ) CLASS ACTION SETTLEMENT a California corporation, ) WITH CREMAR, INC., dba RAY FAMILY - FLOWERS BY ) A CALIFORNIA CORPORATION; THE SEA; TUSTIN MORTUARY, INC., ) SENTINEL CREMATION a California corporation, dba ) SOCIETIES, INC.; THE SADDLEBACK CHAPEL; and ) TELOPHASE SOCIETY OF DOES 1 through 500, inclusive, ) AMERICA; SHEFFER ) MORTUARY, INC., A Defendants. ) CALIFORNIA CORPORATION, ) DBA RAY FAMILY MORTUARY; ) FERRARA COLONIAL MORTUARY; AND ALL RELATED ACTIONS. ) AND TUSTIN MORTUARY, INC., ) A CALIFORNIA CORPORATION, ) DBA SADDLEBACK CHAPEL; AND HEARINGS THEREON THIS NOTICE MAY AFFECT YOUR RIGHTS. PLEASE READ IT CAREFULLY. To all close family members of decedents who entrusted their deceased relatives to mortuaries or other funeral societies for cremation, whose relatives were cremated at Cremar Crematorium, and were allegedly mishandled, improperly or disrespectfully cremated in the course of the cremation process between January 1, 1981, and December 31, 1991, and who have opted-in to this action; and who were aware of their deceased relative's death and were aware of the funeral and/or crematory services being performed on behalf of their decedent's close family; and all persons who were parties to any such funeral and/or crematory service contracts with any of the Defendants who have opted-in: IF YOU HAD A FAMILY MEMBER CREMATED BETWEEN JANUARY 1, 1981, AND DECEMBER 31, 1991, AT CREMAR, YOU MAY BE A MEMBER OF THE BUSHNELL v. CREMAR PLAINTIFF CLASS AND YOUR RIGHTS MAY BE AFFECTED BY THIS NOTICE. THIS CLASS ACTION SETTLEMENT NOTICE DESCRIBES YOUR RIGHTS AS A CLASS MEMBER WITH RESPECT TO A PROPOSED SETTLEMENT WITH CREMAR, INC., THE TELOPHASE SOCIETY OF AMERICA AND SENTINEL CREMATION SOCIETIES, INC. (hereinafter the "CREMATORY DEFENDANTS"). Cremar Crematorium, which was owned by these two corporations, cremated decedents between January 1, 1981, and December 31, 1991; AND WITH RESPECT TO A PROPOSED SETTLEMENT WITH SHEFFER MORTUARY, INC. DBA RAY FAMILY MORTUARY, FERRARA COLONIAL MORTUARY AND TUSTIN MORTUARY, INC. DBA SADDLEBACK CHAPEL (hereinafter "MORTUARIES"), which handled decedents between January 1, 1981, and December 31, Without admitting liability to the plaintiffs and to the class, the CREMATORY DEFENDANTS, in order to resolve the pending litigation, have agreed to pay $15,000,000, and the MORTUARIES have agreed to pay $1,010,000 into a class action settlement fund. (SHEFFER MORTUARY, INC. DBA RAY FAMILY MORTUARY has agreed to pay $291,000, FERRARA COLONIAL MORTUARY has agreed to pay $59,000, and TUSTIN MORTUARY, INC. DBA SADDLEBACK CHAPEL has agreed to pay $660,000.) The purpose of this notice is to advise you that: 1. Your rights will be affected by the above-captioned lawsuit which is pending in this Court;

2 2. A settlement has been reached with the CREMATORY DEFENDANTS, which includes equitable relief and the establishment of a $15,000,000 settlement fund for the benefit of class members who have timely opted-in to the class; 3. A settlement has been reached with defendant MORTUARIES, which includes equitable relief and the establishment of a $1,010,000 settlement fund for the benefit of class members who have timely opted-in to the class; 4. By order dated September 23, 1994, the Court conditionally certified a mandatory non-opt-out class action for settlement purposes as to the CREMATORY DEFENDANTS, and by order dated October 17, 1994, ordered the same as to MORTUARIES, and has decided that the proposed settlements merit consideration as a fair, reasonable and adequate resolution of the pending claims of the class; 5. The above-referenced orders conditionally approved these settlements on a mandatory, non-opt-out basis. This means that if you are a member of the class and the Court finally approves the proposed settlements, you will not be able to file and pursue your own separate lawsuit, but rather must accept your pro rata share of the $16,010,000 plus settlement fund. This settlement relates to any claim you may have against defendants CREMAR, INC., TELOPHASE SOCIETY OF AMERICA, SENTINEL CREMATION SOCIETIES, INC., SHEFFER MORTUARY, INC. DBA RAY FAMILY MORTUARY, FERRARA COLONIAL MORTUARY, and TUSTIN MORTUARY, INC. DBA SADDLEBACK CHAPEL arising out of the allegations described hereafter. If this proposed settlement is approved, the total settlement fund will be $16,718,397, in light of the previous settlements which the Court has approved as to NEPSCI, INC. and J.D.GROW, INC. dba NEPTUNE SOCIETY OF ORANGE COUNTY. 6. The settlement fund created by the settlement with the CREMATORY DEFENDANTS and the MORTUARIES and the other defendants who have previously settled will be held in an interest-bearing trust account, to be distributed to the entire class in the near future. These funds will only be distributed pursuant to order of the Court after a plan of allocation (how much each class member gets) is approved by the Court. However, in order to receive a share of the settlement proceeds, you must comply with the claims procedure described in Section VI of this Notice. 7. If you wish to object to the proposed settlement or to any portion of it, you must do so, in writing, by November 25, If you do not timely send your objections in writing, you will not be allowed to speak at the December 2, 1994, hearing on final approval. 8. A hearing on whether the proposed settlement and Class Counsel's request for attorneys' fees and reimbursement of expenses should be finally approved will be held on December 2, 1994, at 10:00 a.m. in Department 30 of the Orange County Superior Court, located at 700 Civic Center Drive West, Santa Ana, California before the Honorable Donald E. Smallwood. SECTION I. SUMMARY 1. By orders of the Court dated September 23, 1994, and October 17, 1994, respectively, this Court ruled that the proposed settlements may be maintained on a mandatory non-opt-out basis as to all class members who timely opted-in to these class action proceedings. Again, this means that only those persons possessing a claim against the CREMATORY DEFENDANTS or the MORTUARIES concerning the alleged mishandling of human remains and whose relatives were cremated at Cremar Crematorium between January 1, 1981, and December 31, 1991, may pursue those claims as a claimant in this class action. In other words -- if you are a class member and opted-in, you must accept the benefits of this lawsuit and may not pursue your own individual action. 2. The court has also ruled that the proposed settlements merit consideration as a fair, adequate and reasonable resolution of this action. The court has scheduled a hearing for December 2, 1994, at 10:00 a.m. to consider whether the settlements should be finally approved. As a member of the class, you may appear in person, or through your authorized attorney, and may be heard on any aspect of the settlement. However, if you wish to object to the proposed settlement at the hearing on December 2, 1994, you must make your objection in writing as set forth in Sections VI and XII below. 3. The aforementioned settlement fund will be established upon the court granting final approval of these settlements. If you desire to make a claim against this fund, you can only do so by returning the claim form accompanying the notice by January 10, THE CLAIMS OF ALL CLASS MEMBERS WHO PREVIOUSLY OPTED-IN AS TO CREMAR, INC., TELOPHASE SOCIETY OF AMERICA, SENTINEL CREMATION SOCIETIES, INC., SHEFFER MORTUARY, INC. DBA RAY FAMILY MORTUARY, FERRARA COLONIAL MORTUARY AND TUSTIN MORTUARY, INC. DBA SADDLEBACK CHAPEL, WILL BE EXTINGUISHED BY THE COURT'S FINAL APPROVAL OF THIS SETTLEMENT, REGARDLESS OF WHETHER OR NOT YOU RETURN THE CLAIM FORM. SECTION II. DESCRIPTION OF THE ACTION 1. On or about May 16, 1991, a proposed class action lawsuit was filed in the Superior Court of California, County of Orange, Case No entitled Dorothy Bushnell v. Cremar, Inc. On or about July 12, 1991, a proposed class action lawsuit was filed in the Superior Court of California, County of Orange, Case No entitled Arthur L. Gobster v. Cremar, Inc. The lawsuits were consolidated for all purposes by order of the court on October 1,

3 2. The lawsuit alleges that during the class period of January 1, 1981, through December 31, 1991, the CREMATORY DEFENDANTS mishandled and disrespectfully treated the remains of decedents cremated at Cremar Crematory, including: a. Commingling or permitting the mixing of cremated remains; b. Removing gold from the cremated remains and selling it; c. Improperly storing the bodies prior to cremation; d. On occasion cremating more than one body at the same time; specifically cremating infants with adult decedents; e. Mishandling of remains during the cremation process; and f. Some mislabeling of containers of ashes. 3. The mortuary and crematory defendants deny that any of the alleged mishandling or disrespectful treatment occurred. They maintain that the crematory provided dignified and proper treatment to the remains which it cremated, and/or in the alternative that they neither knew nor could have known of the allegations made by Plaintiffs. 4. The lawsuit alleges that the CREMATORY DEFENDANTS, defendant TELOPHASE SOCIETY, defendant MORTUARIES and other funeral service providers negligently referred bodies to Cremar Crematory for cremation and breached contractual and other duties to the class. The CREMATORY DEFENDANTS, defendant TELOPHASE SOCIETY, defendant MORTUARIES and other funeral service providers deny that they acted negligently and deny that they breached any duties to the class. 5. On behalf of themselves and the class, Representative Plaintiffs seek to recover damages for emotional distress, bodily injury, fraud, and breach of contract resulting from the improper handling of remains, as well as punitive damages. The plaintiffs also seek to stop the defendants from engaging in such alleged conduct in the future. 6. THIS NOTICE IS NOT AN EXPRESSION BY THE COURT OF AN OPINION CONCERNING THE MERITS OF ANY CLAIM OR DEFENSE. THE COURT HAS NOT MADE ANY FINDINGS REGARDING ANY OF THE ISSUES IN THE LAWSUIT. You do not have to participate in the settlement and need do nothing further at this time if that is your decision. If you do want to make a claim on the settlement fund, you must follow the procedures set forth in Section VII. SECTION III. CLASS ACTIONS 1. Class actions are lawsuits in which the claims and rights of many people are decided by a single court proceeding. Representative Plaintiffs ("class representatives") are named in the lawsuit to assert claims for the entire class. This avoids the necessity of thousands of people having to file similar individual lawsuits, and enables the court system to resolve these claims in an efficient and economical way. Class actions assure that people with similar claims are treated alike. In a class action, the court is the guardian of class interests and supervises the prosecution of the class claims by class counsel to assure that the representation is fair. Class members are not responsible for the costs or fees of class counsel which are subject to court approval, and which are deducted from the total settlement fund prior to distribution of any sums to members of the class. SECTION IV. CLASS CERTIFICATION 1. On September 23, 1994, and October 17, 1994, the court granted preliminary approval to these proposed settlements between class plaintiffs, and the CREMATORY DEFENDANTS and the MORTUARIES, and provisionally certified a plaintiff class for settlement purposes only as to all timely opting-in class members, with respect to the foregoing defendants on a mandatory non-optout basis. Again, the "mandatory non-opt-out basis" means you cannot file your own lawsuit and must participate in the class action. Accordingly, persons who come within the definition of the class will be bound by the court's orders and judgments regarding the CREMATORY DEFENDANTS and MORTUARIES settlements. 2. Mandatory class certification brings all potential claimants together, before a single court, for the fair and equitable resolution of all claims and the fair and equitable allocation and distribution of the settlement fund, and prevents a minority of the class from interfering with or disrupting the comprehensive effect of this settlement. 3

4 SECTION V. SETTLEMENT FUND DISTRIBUTION PLAN 1. This class action settlement notice has been mailed to you because you previously opted-in to this litigation and you have been identified, through the CREMATORY DEFENDANTS, the MORTUARIES and other defendants' records as the next of kin of a decedent cremated during the class period at Cremar Crematorium, or as a person who contracted for said cremation services through any of the defendants. The Settlement Agreements provide for pro-rata allocation of the settlement fund (an equal amount as to each decedent). However, the Court has not yet addressed or approved a specific distribution plan and the Court will first review, and then approve of any distribution plan prior to the funds being distributed to some or all of the class members. SECTION VI. HOW TO COMMENT ON THE SETTLEMENT In a mandatory class, all those who come within the class definition may comment in support or in opposition to the final settlement approval, but may not exclude themselves from the class if the court grants final approval on a mandatory basis. Members of the class may object to the mandatory nature of the proposed class or to the proposed settlement terms prior to the court issuing its final approval order. However, in order to speak in support of or against the settlements, you must put your comments in writing and mail them to: William A. Kershaw, Esq. Michael McShane, Esq. KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor Sacramento, CA on or before November 25, You must also mail a copy of your comments to each of the law firms identified in Section XII below. If you do not put your statement in writing, you will not be able to speak at the final approval hearing on December 2, SECTION VII. HOW TO MAKE A CLAIM Accompanying this notice you will find a one-page claim form. IN ORDER TO RECEIVE MONEY FROM THE SETTLEMENT FUND, YOU MUST COMPLETE, RETURN, AND SIGN THE CLAIM FORM POSTMARKED NO LATER THAN JANUARY 10, If you do not return the claim form in a timely manner, you will not receive any money from the settlement fund at this time, or at any time in the future, nor will you be able to pursue your claims independently against the Settling Defendants. SECTION VIII. CLASS COUNSEL AND CLASS REPRESENTATIVES 1. The court has appointed the following Plaintiff Class counsel and class representatives to represent the class. 2. The Plaintiff Class Representatives are JORGE FUGUET, JAIME FUGUET, BEVERLY JACOBS, AVA READDY, BETTY YOUNG and ROGER CERVANTES. Plaintiff Class Counsel are: William A. Kershaw, Esq. Michael McShane, Esq. Kronick, Moskovitz, Tiedemann & Girard 400 Capitol Mall, 27th Floor Sacramento, CA Richard E. Brown, Esq. Brown, Monzione, Fabbro, Zakaria & Scarlett 900 Montgomery Street San Francisco, CA Law Offices of Gary Sodikoff 219 E. Washington Avenue Santa Ana, CA SECTION IX. TERMS OF SETTLEMENT AND RELEASE 1. After extensive discussion and arm's-length negotiation, Class counsel and counsel for the CREMATORY DEFENDANTS and defendant MORTUARIES have reached proposed settlements which have been preliminarily approved by the court. This settlement will generate in the range of $16,010,000 to be allocated and distributed under court supervision. These funds will be used to compensate class members for contractual and emotional distress injuries, and to pay for prosecution of the case by class counsel. In return for payment made to the settlement fund, class plaintiffs will release all claims arising out of or in any way related to the arrangements for disposition, handling, transportation, cremation, processing, loss, appropriation and/or disposition of remains (including dental metal and prosthetic devices) of any decedent cremated at Cremar Crematory between January 1, 1981, and 4

5 December 31, 1991, and all other claims which were or could have been asserted in the Bushnell or Gobster cases as against the CREMATORY DEFENDANTS and the MORTUARIES. 2. These settlements are a result of vigorous arms length negotiations between counsel under the supervision of a Justice Robert Feinerman, Judge George M. Dell (retired), and Mediator Anthony Piazza, following substantial investigation and discovery into the claims and defenses, pretrial motions and hearings on many aspects of the case. SECTION X. EQUITABLE RELIEF 1. Part of the consideration to be received by the class is in the form of equitable relief. The Bushnell model class action complaint sought injunctive relief to make sure that alleged wrongful cremation practices would never occur again. The lawsuit sought to have Cremar Crematorium follow guidelines for proper cremation practices, and sought to assure that gold and other precious metals would not be used for anyone's profit. The lawsuit also sought injunctive relief as to the MORTUARIES. As part of the settlement, Defendants have agreed to certain forms of equitable relief, which class counsel and the representative plaintiffs believe accomplish the goals of this litigation. SECTION XI. ATTORNEYS' FEES AND COSTS 1. All petitions for attorneys' fees and expenses are subject to court approval. To date, class counsel have incurred hundreds of thousands of dollars in out-of-pocket costs related to the investigation, litigation, and settlement of claims as against the CREMAR, INC., TELOPHASE SOCIETY OF AMERICA, SENTINEL CREMATION SOCIETIES, INC., SHEFFER MORTUARY, INC. DBA RAY FAMILY MORTUARY, FERRARA COLONIAL MORTUARY and TUSTIN MORTUARY, INC. DBA SADDLEBACK CHAPEL. Class counsel have likewise spent substantial time to protect and prosecute the class claims without receiving compensation of any kind. In class actions, the attorneys who generate monetary recovery for the benefit of the class are entitled to an award of attorney's fees and costs representing a percentage of the recovery in recognition of their efforts, expenses, risks and performance. The amount of attorneys' fees varies from case to case depending upon the overall difficulty of the litigation, and the performance of the attorneys in light of the results achieved. The fee awards in class action litigation range from 20% to 50% of the amount generated in recovery for the class. In this case, class counsel will apply to the court at the time of hearing on final approval for reimbursement of their actual out-of-pocket costs, and for an award of attorney's fees in the range of 38% of the class action settlement fund. This settlement fund, less court approved attorneys' fees and costs (the net settlement fund), will be available for distribution to the class and will generate in the range of $1000 per decedent. SECTION XII. THE SETTLEMENT APPROVAL PROCESS 1. A final hearing will be held on December 2, 1994, at 10:00 a.m. before the Honorable Donald E. Smallwood in Department 30 of the Orange County Superior Court located at 700 Civic Center Drive West, Santa Ana, California, to hear evidence and argument regarding the fairness, adequacy and reasonableness of the proposed settlements so that the court may determine whether it should be granted final approval; whether the action(s) should be dismissed on the merits with prejudice as to the CREMATORY DEFENDANTS and the MORTUARIES pursuant to the Settlement Agreements; and the amount of any award of attorneys' fees and costs to plaintiffs' counsel. 2. Class members are entitled, but not required to attend. If you wish to comment in support of or in opposition to any aspect of the settlement or the related applications described in this notice, you are entitled to do so. However, you must submit written comments setting forth your position postmarked no later than November 25, Plaintiff Class counsel, William A. Kershaw, Kronick, Moskovitz, Tiedemann & Girard, 400 Capitol Mall, 27th Floor, Sacramento, California Plaintiffs counsel will report to the Court on the substance of all written comments. 3. Again, in order to be considered by the court, all written comments must be postmarked by November 25, If you wish to appear and be heard in person at the final approval hearing, you must mail a letter stating your position and intention to appear in person, with copies to Plaintiff Class counsel and counsel for the CREMATORY DEFENDANTS and the defendant MORTUARIES by the November 25 deadline. Counsel for Defendants are as follows: 5

6 Counsel for CREMATORY DEFENDANTS: Counsel for MORTUARIES: Anthony R. Delling, Esq. Louis M. Marlin, Esq. PILLSBURY, MADISON & SUTRO MARLIN & SALTZMAN 725 S. Figueroa Street, Suite South Parker Street, Suite 8800 Los Angeles, CA Orange, CA Carlton Lee Harpst, Esq. GORELICK, HARPST & LETHER 725 Town & Country Road, Suite 300 Orange, CA All class members have a right to be heard in support of or in opposition to the final approval of the proposed settlements by following the above procedure. Whether or not you submit any written comments, appear at the hearing, or submit a timely claim form, as a class member you will be bound by the determination, order and judgment of the court on the final settlement approval. SECTION XIII. REPRESENTATION BY COUNSEL AND FURTHER PROCEEDINGS 1. As a member of the class, you may communicate with, seek the advice of or enter an appearance through counsel of your own choice. Any member of the class who does not enter an appearance either individually or through his or her own counsel will be represented by counsel for the plaintiffs, who are proponents of the settlements, and will have no individual liability for attorneys' fees and costs, both of which will be payable from the settlement fund. 2. If the settlements do not receive final approval by the court, the case will continue to be prepared for trial. Plaintiffs' counsel cannot estimate a trial date as additional discovery and other pretrial proceedings must first be conducted. SECTION XIV. FOR MORE INFORMATION 1. This notice summarizes the basic terms and conditions of the settlements, the claims asserted in the operative Bushnell and Gobster Complaints and the status and progress of the litigation. More detailed information may be obtained on written request to the following Plaintiff Class counsel, William A. Kershaw, Kronick, Moskovitz, Tiedemann & Girard, 400 Capitol Mall, 27th Floor, Sacramento, California 95814, or you may call The number is an answering machine which will take your name and number. Your call will be returned as soon as possible and your inquiries answered. 2. DO NOT TELEPHONE OR WRITE THE ORANGE COUNTY SUPERIOR COURT OR THE HONORABLE DONALD E. SMALLWOOD FOR FURTHER INFORMATION REGARDING THESE SETTLEMENTS. ANY INQUIRIES BY MEMBERS OF THE CLASS SHOULD BE DIRECTED IN WRITING TO CLASS COUNSEL WILLIAM A. KERSHAW AS ABOVE. SECTION XV. TIME LIMIT REMINDER 1. In order to speak in support of or in opposition to the final approval of the proposed settlements and/or the attorneys' fees application, you must send your comments, postmarked no later than November 25, 1994, to the court and counsel designated in Section VI and XII of this notice. LATE SUBMISSIONS WILL NOT BE CONSIDERED. 2. The court reserves the right to extend any and all of the dates and the time set forth in this notice for good cause shown. DATED: October 17, 1994 BY ORDER OF THE COURT THE HONORABLE DONALD E. SMALLWOOD JUDGE OF THE SUPERIOR COURT 6

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