Filed 5/16/23 Martin v. National Autopsy Experts, LLC CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ANTHONY R. MARTIN, SR.,

Plaintiff and Respondent,

v.

NATIONAL AUTOPSY EXPERTS, 

LLC et al.,

Defendants and Appellants.

 D080031

 (Super. Ct. No. 37-2019-

 00038385 CU-BC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Kenneth Medel, Judge. Affirmed.

James Swiderski for Defendants and Appellants. 

No appearance for Respondent.

In a jury trial, Anthony Martin prevailed on his claims against 

National Autopsy Experts, LLC (NAE) and Julia McGrath (collectively, 

defendants) for breach of contract, intentional misrepresentation, and 

intentional concealment. The jury awarded Martin $8,350 in economic 

damages for his breach of contract claim, $20,000 in non-economic damages 

for his intentional misrepresentation claim, and $30,000 in non-economic 
2

damages and $83.50 in punitive damages for his intentional concealment 

claim. The jury found in favor of defendants on Martin’s other claims. 

Defendants contend on appeal that (1) the economic loss rule bars

Martin’s intentional misrepresentation and intentional concealment claims;

(2) emotional distress damages are not recoverable under Martin’s fraud 

claims because there was no proof of “substantial damages” apart from those 

due to mental distress; and (3) the trial court erred in denying defendants’ 

motions for summary judgment.1

We conclude that the economic loss rule does not apply to Martin’s 

fraud claims, and that he was entitled to recover damages for emotional 

distress. We further conclude that defendants have forfeited their summary 

judgment argument by failing to address prejudice, and alternatively, that 

the argument fails on the merits for failure to demonstrate prejudice. 

Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendants have provided us with a settled statement in lieu of a 

reporter’s transcript of the jury trial. Although the settled statement is 

cursory at best, it was approved by the trial court. Accordingly, we will 

decide the appeal based on the settled statement and trial exhibits. 

In March 2018, Martin’s wife Betty died unexpectedly at the age of 69. 

At the time, Betty had a serious heart condition and received at-home 

nursing visits. The afternoon before her death, her nurse administered 

medication intravenously and indicated she was giving Betty new medicine

authorized by her cardiologist. No autopsy was conducted after Betty’s 

1 Because Martin filed no brief, we determine the appeal based on the

record provided and defendants’ opening brief. (Cal. Rules of Court, rule

8.220(a)(2).)
3

death, and county authorities determined that her cause of death was cardiac 

arrest. 

Martin suspected that the new medication might have caused Betty’s 

death, and he attempted, unsuccessfully, to persuade the hospital or public 

medical authorities to conduct an autopsy. Martin then sought out private 

autopsy services to determine her cause of death and provide him with 

closure. His daughters introduced him to Julia McGrath, NAE’s sole owner

and employee, after they saw NAE’s website advertising its nationwide 

autopsy services. Martin signed a contract with NAE in August 2018 and

paid the company $4,650 to conduct an autopsy and produce an autopsy 

report, which NAE estimated would “take up to 120 days on average to 

receive.” He also paid the funeral home $3,700 to exhume Betty’s body so 

that, according to the contract, NAE could make “the usual customary 

incision/s” and collect tissue samples and send them for testing. 

Four months later, when Martin’s daughter contacted McGrath to ask 

for the status of the report, McGrath told her that tissues from the autopsy 

had been sent to the Mayo Clinic for analysis. In later communications, 

McGrath represented that she had met with the assigned pathologist, who

purportedly told her that it was a “very, very difficult case because the 

decomposition of tissues was extremely advanced[,]” requiring defendants to 

“send samples to advanced labs.” 

These statements by McGrath were not true. In fact, no tissue samples 

were ever sent for analysis. Moreover, when NAE sent a technician to Betty’s 

exhumation to collect tissue, the technician made no incisions to open her

body cavity or examine her organs, even though it was NAE’s standard 

procedure to do so. NAE did not disclose this fact to Martin or his daughters. 
4

Martin never received an autopsy report from NAE. Although 

McGrath eventually offered Martin a partial refund of $1,000, Martin 

declined to accept it. He ultimately hired another company, York Pathology,

to provide an autopsy report in January 2020. But doing so required him to 

spend an additional $3,500 to re-exhume the body. York Pathology’s report 

identified two likely causes of Betty’s death: pulmonary embolism and 

sudden cardiac arrhythmia. 

In the meantime, Martin retained a lawyer, who sent a letter in June 

2019 on his behalf to defendants providing notice of claims under the 

Consumer Legal Remedies Act (Civ. Code, § 1750 et seq. (CLRA)). The letter

stated that Martin had claims based on “alleged unlawful acts and omissions 

in advertising, contracting for, and failing to perform autopsy and toxicology 

services” for Martin and his family. Martin’s attorney proposed a settlement 

amount consisting of the $4,650 Martin paid to NAE, the $3,700 he paid to 

the funeral home to exhume Betty’s body, and $3,500 in legal fees, for a total 

of $11,850. Defendants responded with a corrective offer (Civ. Code, § 1782, 

subd. (b)) of $8,350 to reimburse Martin for the autopsy and exhumation fees,

but the offer excluded legal fees. Martin rejected the offer and filed suit in 

July 2019, alleging: (1) violation of the CLRA; (2) fraud in the inducement of 

contract; (3) breach of contract; and (4) bad faith breach of the implied 

covenant of good faith and fair dealing. 

Defendants moved for summary judgment before trial. The trial court

granted summary judgment solely in favor of McGrath as to the breach of 

contract claim, but otherwise denied summary judgment on all claims. 

Before trial, NAE stipulated to the fact that it breached its contract 

with Martin. NAE also moved to exclude any evidence in support of

emotional distress damages, but the court allowed Martin to testify at trial 
5

that he suffered emotional distress because of defendants’ delay and failure 

to perform the promised autopsy and toxicology testing. Martin also testified 

that his suffering was aggravated by defendants’ dishonesty during the 

process. 

The verdict forms and pre-trial briefing reflect that at some point in

addressing the parties’ motions in limine, the trial court re-organized 

Martin’s claims.2 The causes of action ultimately decided by the jury 

consisted of the following: (1) breach of contract as to NAE only; 

(2) intentional misrepresentation regarding NAE’s qualifications; 

(3) concealment regarding NAE’s qualifications; (4) intentional 

misrepresentation regarding the status of contract performance; 

(5) concealment regarding the status of contract performance; and (6) unfair 

or deceptive acts or practices. 

The jury found in favor of Martin in his first cause of action for breach 

of contract, awarding him $8,350 in economic damages. It also found in his 

favor in his fourth cause of action for intentional misrepresentation regarding 

contract performance status, awarding Martin $20,000 in non-economic 

damages. Finally, in the fifth cause of action, the jury found that defendants 

intentionally concealed facts regarding the status of contract performance, 

and did so with malice, oppression, or fraud, and it awarded Martin $30,000 

in non-economic damages and $83.50 in punitive damages.

For the second and third causes of action for fraud relating to NAE’s 

qualifications, the jury found defendants not liable. And while the jury found 

2 Defendants note in their brief that at a hearing on motions in limine, 

the trial court ordered Martin to split his fraud claim into separate causes of 

action. However, the only minute order included in the record that addresses 

motions in limine does not include any reference to splitting up claims. We 

presume, for our purposes, that the resulting verdict forms accurately reflect

the court’s orders. 
6

defendants liable for the sixth cause of action for unfair or deceptive acts, the 

court later granted defendants’ post-trial request for judgment on that claim, 

finding that defendants had an affirmative defense under the CLRA because

their corrective offer precluded liability. The court denied defendant’s 

motions for judgment notwithstanding the verdict as to the fourth and fifth 

causes of action for intentional misrepresentation and concealment relating 

to contract performance. Defendants timely appealed.3

DISCUSSION

I

Defendants first argue that the economic loss rule barred Martin’s 

fourth and fifth causes of action for intentional misrepresentation and 

intentional concealment relating to contract performance. We disagree.

The economic loss rule bars a tort action, in some circumstances, in the 

absence of personal injury or physical damage to other property. (Robinson 

Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 984 (Robinson).) 

The rule also generally bars claims that arise from, or are not independent of,

an underlying contract between the parties. (Sheen v. Wells Fargo Bank, 

N.A. (2022) 12 Cal.5th 905, 923.) However, in Robinson, the Supreme Court 

reiterated its prior holding in Erlich v. Menezes (1999) 21 Cal.4th 543, 553–

554 (Erlich), that tort damages are available in a case involving a breach of 

contract when “ ‘(1) the breach is accompanied by a traditional common law 

tort, such as fraud or conversion; (2) the means used to breach the contract 

are tortious, involving deceit or undue coercion; or (3) one party intentionally 

breaches the contract intending or knowing that such a breach will cause 

severe, unmitigable harm in the form of mental anguish, personal hardship, 

3 Martin also filed a notice of cross-appeal, but we later dismissed his 

cross-appeal for failure to file a brief.
7

or substantial consequential damages.’ [Citation.] Focusing on intentional 

conduct gives substance to the proposition that a breach of contract is 

tortious only when some independent duty arising from tort law is violated. 

[Citation.]” (Robinson, at pp. 989–990, quoting Erlich, at pp. 553–554.) 

At least two of these circumstances are present here. First, Martin’s

breach of contract claim was accompanied by independent causes of action for 

fraud. (See Jahn v. Brickey (1985) 168 Cal.App.3d 399, 406 [emotional 

distress damages recoverable in contract rescission action where rescission 

“was only one of several causes of action and [plaintiff] also prevailed on the 

tort theories of fraud and breach of fiduciary relationship[]”].) Martin’s 

breach of contract claim was based on the fact that NAE did not perform its 

contractual obligations and Martin never received the autopsy report he paid

for. Separately, Martin’s fraud claims were based on (1) McGrath’s false 

representation that tissue samples were sent to the Mayo Clinic for testing

even though no one had sent them, and (2) the fact that defendants did not 

disclose to Martin that NAE performed no surgical procedures to examine 

Betty’s organs. Although the alleged fraud occurred during the performance 

of the contract, defendants’ tortious conduct was independent from the breach 

of contract itself. Thus, the fraud claims are not barred by the economic loss 

rule.

The Supreme Court has recognized that public policy favors this result 

in cases like Martin’s. “ ‘In pursuing a valid fraud action, a plaintiff advances 

the public interest in punishing intentional misrepresentations and in 

deterring such misrepresentations in the future. [Citation.] Because of the 

extra measure of blameworthiness inhering in fraud, and because in fraud 

cases we are not concerned about the need for “predictability about the cost of 

contractual relationships” [citation], fraud plaintiffs may recover “out-of-
8

pocket” damages in addition to benefit-of-the bargain damages.’ [Citation.]” 

(Robinson, supra, 34 Cal.4th at p. 992.) “As one court stated, ‘Simply put, a 

contract is not a license allowing one party to cheat or defraud the other.’

[Citation.]” (Ibid.) Allowing Martin’s claims for intentional 

misrepresentation and intentional concealment “discourages such practices in 

the future while encouraging a ‘business climate free of fraud and deceptive 

practices.’ [Citation.]” (Ibid.)

Second, the record also supports a finding that defendants intentionally 

breached the contract knowing that the breach would cause “severe, 

unmitigable harm in the form of mental anguish” or “personal hardship.” 

(See Robinson, supra, 34 Cal.4th at pp. 989–990, quoting Erlich, supra, 21 

Cal.4th at p. 554.) Courts have long recognized the potentially devastating 

nature of breaches in similar contexts involving the handling of remains. 

(See, e.g., Christensen v. Superior Court (1991) 54 Cal.3d 868, 894–895 

[“Even in the context of an action for breach of contract, where recovery of 

damages solely for emotional distress resulting from a breach is not normally 

allowed, the provision of services related to the disposition of human remains 

has been distinguished because of the unique nature of the services.”]; Allen 

v. Jones (1980) 104 Cal.App.3d 207, 214–215 [“Public policy requires that 

mortuaries adhere to a high standard of care in view of the psychological 

devastation likely to result from any mistake which upsets the expectations 

of the decedent’s bereaved family.”].) 

According to the evidence, defendants themselves recognized the 

sensitivity of their autopsy services. In recognition of the personal hardship 

that accompanies a death in the family, McGrath offered “sincere 

condolences” in a letter to the “family of Betty” and wished them “comfort 

during this most difficult time in [their] lives.” NAE’s website also 
9

acknowledged the sensitive nature of its business, stating that the company’s 

“main concern is to provide answers and closure[,]” and that an autopsy “can 

provide closure to unanswered questions.” NAE’s website acknowledged that 

“[t]he sooner an autopsy is performed, more information can be discovered[]” 

and that the passage of time “can compromise the tissue and toxicology 

report due to decomposition.” 

The jury found not only that NAE breached its contract with Martin, 

but that McGrath intentionally misrepresented and concealed material facts. 

The jury further found, by clear and convincing evidence, that McGrath’s 

intentional concealment was done with malice, oppression, or fraud. Martin 

testified that McGrath’s misrepresentations caused him to suffer hurt and 

disappointment from being unduly delayed in discovering the cause of Betty’s 

death, which ultimately required that her body be exhumed again. He also 

testified about his feelings of betrayal from defendants’ fraud. If not for the 

misrepresentation and concealment, Martin could have immediately engaged 

another autopsy provider and gained some measure of closure sooner. 

Because of the unique nature of the underlying contract for autopsy services, 

and the high likelihood of mental anguish resulting from fraud in the 

performance of the contract, this case falls squarely within the third Erlich 

category of exceptions to the economic loss doctrine. (Erlich, supra, 21 

Cal.4th at p. 554.)

Accordingly, we conclude that the economic loss rule did not foreclose 

Martin’s fraud claims. 

II

Defendants next argue that emotional distress damages are not 

recoverable for Martin’s fraud claims because there was no proof of 

“substantial damages” from the fraud, apart from those due to mental 
10

distress. Specifically, defendants contend that to recover damages for 

emotional distress in connection with fraud, substantial economic damages 

must have resulted directly from the misrepresentations and omissions 

themselves, rather than from the related breach of contract. We disagree.

Not only do the cases defendants cite provide little support for their

position, but they actually support Martin’s entitlement to damages. In 

Crisci v. Security Insurance Company of New Haven, Connecticut (1967) 66 

Cal.2d 425 (Crisci), which defendants rely upon heavily, the Supreme Court 

considered the propriety of awarding emotional distress damages in an 

insured’s action against her insurer for failing to accept a settlement offer 

within policy limits. (Id. at pp. 428–429.) The Court held that “a plaintiff 

who as a result of a defendant’s tortious conduct loses his property and 

suffers mental distress may recover not only for the pecuniary loss but also 

for his mental distress.” (Id. at pp. 433–434.) The Court went on to state 

that “[n]o substantial reason exists to distinguish the cases which have 

permitted recovery for mental distress in actions for invasion of property 

rights. The principal reason for limiting recovery of damages for mental 

distress is that to permit recovery of such damages would open the door to 

fictitious claims, to recovery for mere bad manners, and to litigation in the 

field of trivialities. [Citation.]” (Id. at p. 434.) The Court referred to 

situations where actionable claims result in “substantial damages apart from 

mental distress” to point out that in such cases, “the danger of fictitious 

claims is reduced,” and courts are “not concerned with mere bad manners or 

trivialities but tortious conduct resulting in substantial invasions of clearly 

protected interests.” (Ibid.)

Contrary to what defendants contend, Crisci does not require that a

fraud claim be accompanied by substantial economic damages flowing 
11

directly from the fraud for emotional distress damages to be recoverable. 

Rather, Crisci merely recognized that the existence of substantial damages 

apart from mental distress can serve as a hallmark of a valid claim for 

emotional distress damages. This principle was confirmed in Gruenberg v. 

Aetna Ins. Co. (1973) 9 Cal.3d 566, also cited by defendants, in which the 

Supreme Court stated that Crisci limited recovery of damages for mental 

distress to protect against fictitious claims. (Id. at p. 579.) 

The Supreme Court made this point again in Molien v. Kaiser 

Foundation Hospitals (1980) 27 Cal.3d 916 (Molien), when it observed that 

courts have “devised various means of compensating for the infliction of 

emotional distress, provided there is some assurance of the validity of the 

claim. As we have seen, physical injury . . . provides one such guarantee. 

[Citations.] Another arises when the plaintiff asserts an independent cause 

of action apart from personal injury.” (Id. at pp. 926–927, italics added.) The 

Court quoted the “substantial damages” language in Crisci, then went on to 

conclude that requiring physical injury to prove that an emotional distress 

claim is genuine was “no longer justifiable.” (Molien, at pp. 927–928.) The 

Court’s concern in Molien, as in Crisci, was to screen for false claims while 

also allowing for valid ones. (See Crisci, supra, 66 Cal.2d at p. 434; Molien, at 

pp. 928–929.) Nowhere in these cases did the Court state that a plaintiff

alleging fraud must prove substantial economic damages flowed directly from 

the fraudulent conduct alone before recovering for emotional distress.

Here, Martin’s fraud claims go beyond accusations of mere bad 

manners or trivialities, and do not implicate the concern about fictitious 

claims identified in Crisci and its progeny. (See Crisci, supra, 66 Cal.2d at 

p. 434.) Not only did Martin suffer economic harm in the form of the contract 

damages awarded by the jury, but he suffered substantial, non-trivial, non-
12

economic harm from his discovery that defendants had been dishonest about 

his deceased wife’s autopsy and their performance of the contract. As noted, 

the jury found that defendants’ intentional misrepresentations and omissions

regarding their treatment of Betty’s remains caused significant injury to 

Martin and awarded him $50,000 in non-economic damages—which 

defendants do not claim is excessive. The jury credited Martin’s testimony 

that he endured deep hurt, disappointment, feelings of betrayal, and lack of 

closure from his wife’s death as a result of defendants’ tortious conduct, and 

even awarded punitive damages. In light of governing case law and the 

nature of Martin’s fraud allegations involving his wife’s remains, we conclude 

that the award of emotional distress damages was proper. (See also Sprague 

v. Frank J. Sanders Lincoln Mercury, Inc. (1981) 120 Cal.App.3d 412, 417 

[“That general damages for mental pain and suffering are recoverable in a 

tort action of deceit is established by the cases.”].)

III

Lastly, defendants contend that the trial court erred in denying their

motions for summary judgment as to Martin’s fraud claims relating to both 

contract inducement and contract performance. We conclude that defendants 

have forfeited this argument by making no attempt to demonstrate prejudice,

and alternatively, they would not be able to show prejudice anyway.

Although orders denying motions for summary judgment may be 

reviewed on direct appeal from a judgment after trial, the appellant must 

show the purported error was prejudicial and caused a miscarriage of justice. 

(Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 343 

(FDIC), citing Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833 (Waller).) 

Generally, an order denying a motion for summary judgment does not 

constitute prejudicial error if the same question was subsequently decided 
13

adversely to the moving party after a trial on the merits. (FDIC, at p. 343.) 

If the same question was not decided after trial, an appellant still bears the 

burden of demonstrating that a miscarriage of justice has occurred. (Waller, 

at p. 833 [“Prejudice is not presumed, and the burden is on the appealing 

party to demonstrate that a miscarriage of justice has occurred. 

[Citations.]”].) When considering whether a miscarriage of justice has 

occurred, “we are not to look to the particular ruling complained of in 

isolation, but rather must consider the full record in deciding whether a 

judgment should be set aside. Since we are enjoined to presume that the trial 

itself was fair and that the verdict in plaintiff[’s] favor was supported by the 

evidence, we cannot find that an erroneous pretrial ruling based on 

declarations and exhibits renders the ultimate result unjust.” (Ibid.) 

Here, defendants fail to demonstrate how the court’s denial, if 

erroneous, was prejudicial. Indeed, their brief is devoid of any discussion of 

any prejudice they suffered from the denial of summary judgment. We must 

assess prejudice “when and only when the appellant has fulfilled his duty to 

tender a proper prejudice argument” by “spelling out in his brief exactly how 

the error caused a miscarriage of justice.” (Paterno v. State of California

(1999) 74 Cal.App.4th 68, 106, italics added.) Our role is to evaluate “ ‘legal 

argument with citation of authorities on the points made.’ ” (People v. 

Stanley (1995) 10 Cal.4th 764, 793.) Because defendants have failed to make 

proper arguments to demonstrate prejudice, they have forfeited their 

summary judgment argument. 

Even if defendants had adequately raised the issue, they would not be 

able to demonstrate any prejudice from the court’s denial of their summary 

judgment motion. As to Martin’s fraud claims relating to contract 

inducement, the jury ultimately found in defendants’ favor. Even if the court 
14

had granted summary judgment on those two causes of action, defendants 

would have had to proceed to trial on Martin’s surviving claims, and they

would still be faced with an adverse judgment. (Cf. Waller, supra, 12 

Cal.App.4th at p. 833 [rejecting as insufficient defendant’s argument that it 

was prejudiced because “if its summary judgment motion had been granted, 

the matter would have been terminated in its favor at that point, there would 

have been no trial and it would not now be faced with an adverse 

judgment”].) 

For Martin’s claims relating to fraud in the performance of the 

contract, as discussed above, the economic loss doctrine did not bar those 

claims and they were subsequently decided adversely to defendants after 

trial. (See Waller, supra, 12 Cal.App.4th at p. 833; FDIC, supra, 167 

Cal.App.4th at p. 343.) Defendants therefore can show no miscarriage of 

justice resulting from the trial court’s denial of summary judgment as to 

those causes of action. (See South Bay Chevrolet v. General Motors 

Acceptance Corp. (1999) 72 Cal.App.4th 861, 908 [reversal unwarranted 

where there was no indication in the record that the court’s denial of 

summary judgment motions, “even if erroneous, rendered unjust the 

judgment entered after full trial on the merits[]”].) Accordingly, we conclude 

that the court did not prejudicially err in denying summary judgment.
15

DISPOSITION

The judgment is affirmed. Martin is awarded his costs on appeal, 

excluding costs associated with his abandoned cross-appeal. 

BUCHANAN, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.