Does the judge or the jury decide impracticability of performance as a defense to a breach of contract claim? That question now has a new answer under California law as of April 8, 2026. In Gonzalez v. Community Mortuary, Inc., No. D084738, 2026 WL 947994 (2026), the Court of Appeal held that the judge decides impracticability as an equitable defense and that submitting it to a jury for a binding verdict is reversible error. But Gonzalez is a significant departure from prior law on multiple issues, and trial counsel should understand what it means and how to plan accordingly.
The facts and proceedings below
Jose Gonzalez Jr. died in Texas in March 2020. His widow, Celina, contracted with Community Mortuary, Inc. (the Mortuary) to retrieve his body, embalm it, and return it to San Diego for an open-casket funeral. The Texas medical examiner’s office inadvertently released Jose’s body to a donor program. The donor program then cremated the body before anyone discovered the mistake. When Celina and her daughter arrived at the Mortuary’s chapel for the viewing, the wrong body was in the casket.
Celina and her daughter sued the Mortuary for negligence and breach of contract. The jury found for the Mortuary on negligence. On the contract claim, the Mortuary raised the defense of impracticability of performance. The Mortuary argued that the medical examiner’s misidentification of the remains rendered its performance of the contract with Celina impracticable. The trial court submitted that defense to the jury, which found that the Mortuary had met its burden.
The California Constitution only preserves jury trial rights that existed in 1850 or when the “gist” of the claim or defense is legal, not equitable
Article I, section 16 of the California Constitution provides that “[t]rial by jury is an inviolate right and shall be secured to all.” “From the outset of [the] state’s history,” however, “courts have explained that this provision was intended to preserve the right to a civil jury as it existed at common law in 1850 when the jury trial provision was first incorporated into the California Constitution.” Nationwide Biweekly Admin., Inc. v. Superior Court, 9 Cal. 5th 279, 315 (2020). This means that the right to a jury trial “is generally limited to those causes of action (and their analogues) that were historically triable in a court of law.” Hoopes v. Dolan, 168 Cal. App. 4th 146, 155 (2008). When the cause of action has “no counterpart in English law,” Nationwide, 9 Cal. 5th at 319, the right to a jury trial depends on whether “the gist of the action” is legal or equitable, People v. One 1941 Chevrolet Coupe, 37 Cal. 2d 283, 299 (1951).
The modern impracticability defense did not exist until the California Supreme Court decided Mineral Park Land Co. v. Howard in 1916
With this legal background in mind, the Gonzalez court traced the development of the impracticability defense from its pre-1850 root in the common law defense of impossibility. According to the United States Supreme Court in Dermott v. Jones, the traditional doctrine of impossibility does not excuse performance unless “performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse [the breaching party].” 69 U.S. 1, 7 (1865).
The impossibility defense began to expand in 1863 when an English court decided Taylor v. Caldwell, 122 Eng. Rep. 309 (Q.B. 1863), which many lawyers study in their first year of law school. In that case, the parties had contracted for the use of a music hall for a series of concerts, but the hall burned down before the first performance. Although payment for the music hall was still possible after the fire, the court held that the existence music hall was an implied condition of the contract without which neither party was obligated to perform. That implied-condition rationale, according to the Gonzalez court, expanded the impossibility doctrine beyond its rigid common-law origins. Following suit, California adopted the Taylor rule in Ontario Deciduous Fruit Growers’ Assn. v. Cutting Fruit Packing Co.,134 Cal. 21, 24 (1901).
In 1916, California expanded the impossibility doctrine even further in Mineral Park Land Co. v. Howard, 172 Cal. 289 (1916). In that case, the court held that the doctrine excused performance of a contract to remove a set amount of gravel from the plaintiff’s land at a set price where performance was not impossible, but would have cost “ten or twelve times as much as the usual cost” because some of the gravel unexpectedly lay below the water table. 172 Cal. at 291, 293. The court held that “where the difference in cost is so great as here, and has the effect, as found, of making performance impracticable, the situation is not different from that of a total [impossibility].” Id. at 293.
The California state constitution provides no right to a jury trial on the impracticability defense because the “gist” of the defense is equitable
Uncovering “no historical counterpart in English law prior to 1850,” the Gonzalez court assessed whether the gist of the defense is legal or equitable. The court held that the defense is equitable and identified three reasons supporting its conclusion, although the first two reasons are quite similar.
First, two of the four required elements of impracticability call for the kind of judgment that courts of equity were designed to make. To determine whether the non-occurrence of a particular event was a basic assumption of the agreement of the parties or whether the language of the contract or the circumstances warrant a reallocation of the risk, “the decision-maker must assess a wide range of circumstances and exercise ‘judgment as to which party assumed the risk of [the event’s] occurrence.'” Restatement (Second) of Contracts ch. 11 introductory note; id. § 261 cmt. c (1981).
Second, the ultimate question is “whether justice requires a departure from the general rule that the obligor bear the risk that the contract may become more burdensome or less desirable.” Restatement (Second) of Contracts ch. 11 introductory note. As Justice Kruger observed in Nationwide, “[d]etermining what is unfair calls on [a decision-maker] to exercise the sort of flexible discretion that characterized the courts of equity.” 9 Cal. 5th at 336 (Kruger, J., concurring).
Third, the available remedies are equitable, “including the adjustment of the parties’ rights and obligations under the contract, so as to achieve ‘substantial justice.'” Restatement (Second) of Contracts ch. 11 introductory note.
Gonzalez’s conclusion that impracticability is an equitable defense, not a question of law, appears to be a significant departure from existing law
Before Gonzalez, the authorities had generally followed Mitchell v. Ceazan Tires in holding that “impossibility[] is a conclusion of law drawn by the court from the facts of a given case.” 25 Cal. 2d 45, 48 (1944); see, e.g., Monroe v. Oakland Unified Sch. Dist., 114 Cal. App. 3d 804, 813 (1981).
The Gonzalez court addressed Mitchell directly, explaining that Mitchell involved a purely legal question of statutory interpretation — whether a wartime federal regulation made performance literally impossible — and that the court’s statement addressed only the standard of review for a pure legal question, not the nature of the impracticability defense itself. The Gonzalez court also explained that “there may be a right to a jury trial in” cases of impossibility “with a judge . . . deciding pure questions of law that arise from the specific factual dispute.”
(Note that at least one authority had characterized impracticability as an “equitable” doctrine in dicta. See SVAP III Poway Crossings, LLC v. Fitness Int’l, LLC, 87 Cal. App. 5th 882, 886, 888, 890, 897 (2023). Gonzalez does not address this case.)
Gonzalez also departs from Unilogic in holding that the trial court has no discretion to submit the equitable defense of impracticability to the jury
The Gonzalez court’s decision that the Mortuary had no constitutional right to a jury trial on its impracticability defense was not the end of the matter because the Mortuary argued that the trial court had discretion to submit the defense to the jury under Unilogic, Inc. v. Burroughs Corp., 10 Cal. App. 4th 612 (1992). Unilogic held that trial courts have discretion to submit an equitable defense to the jury when the factual theories supporting the defense are “intertwined” with the opposing party’s legal cause of action. Id. at 623.
The Gonzalez court disagreed with the Mortuary and Unilogic. Unilogic relied on Weber v. Marshall, 19 Cal. 447 (1861), for the proposition that trial courts may submit equitable defenses to the jury for a binding decision, but the Gonzalez court held that Weber approved no such procedure. Instead, Weber characterized the trial court’s submission of legal and equitable defenses to the jury as “irregular” and explained that the correct procedure was for the judge to decide the equitable defense first and submit the remaining legal issues to the jury if necessary. 19 Cal. at 457. The Gonzalez court explained that Weber’s approval of the trial court’s discretion to submit equitable issues to a jury to “aid” or “assist him in sifting and ascertaining the facts,” id. at 457-58, was only a reference to the trial court’s discretion to obtain an advisory verdict.
What Gonzalez means for trial counsel
First, Gonzalez is a departure from existing law on multiple fronts. Under Mitchell, impracticability is a question of law for the trial court, while Gonzalez holds that impracticability is an equitable defense to be tried by the trial court. Gonzalez also disagrees with Unilogic, holding that trial courts have no discretion to refer equitable issues intertwined with legal issues to the jury. Counsel should be aware that the trial courts may follow Mitchell or Unilogic in the absence of further guidance from the California Supreme Court. The law is thus further unsettled after Gonzalez.
Second, there are significant implications for proceedings in the trial court if the trial court follows Gonzalez’s command to decide impracticability as an equitable defense, rather than as a question of law. While trial courts resolve questions of law through briefing and argument, equitable issues require full trials where the trial court hears testimony, weighs witness credibility, and resolves disputed facts under the preponderance standard. Under Gonzalez, counsel should be prepared to build a thorough factual record supporting each element of the impracticability defense to preserve their appellate options. Plaintiffs’ counsel also benefits from a thorough record, particularly on the third and fourth elements where the Gonzalez court found genuine disputes.
Third, treating impracticability as an equitable defense also has significant implications for appeal. The appellate court reviews the trial court’s factual findings made during a bench trial for substantial evidence — a deferential standard that makes those findings very difficult to overturn. In contrast, the appellate court reviews the trial court’s legal determinations de novo, meaning the appellate court owes no deference to the trial court and will independently examine the question.
Fourth, the equitable nature of the defense creates a sequencing consideration. California follows an equity-first rule: when a case involves both equitable and legal issues, the court may — and generally should — try the equitable issues first. Nationwide, 9 Cal. 5th at 317. If the court resolves the impracticability defense against the defendant, the breach of contract claim proceeds to a jury on damages where issues adjudicated in the bench trial are binding on the subsequent jury trial. Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co., 47 Cal. App. 4th 464, 488 (1996). If the court finds the defense established, nothing remains for the jury.
We can help
Gonzalez v. Community Mortuary further complicates an open question in California contract law and has real consequences for how impracticability defenses are tried. If you have a contract dispute where that defense is in play, contact our office to discuss your options.
