Judge: Barbara M. Scheper, Case: 20STCV10236, Date: 2022-10-04 Tentative Ruling
Case Number: 20STCV10236 Hearing Date: October 4, 2022 Dept: 30
Dept. 30
Calendar No.
Princess Naope
vs. Serenity Family Mortuary, et. al., Case No. 20STCV10236
Defendants Forest Lawn Mortuary,
Forest Lawn Memorial-Park Association, and Jeffery Rice (collectively, Forest
Lawn Defendants) move for summary judgment against Plaintiff Princess Naope
(Plaintiff). Summary judgment is granted in favor of the Forest Lawn Defendants.
The
function of a motion for summary judgment or adjudication is to allow a
determination as to whether an opposing party can show evidentiary support for
a pleading or claim and if not to enable an order of summary dismissal without
the need for trial. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843 (Atlantic Richfield).) Code
of Civil Procedure Section 437c, subdivision (c) “requires the trial judge to
grant summary judgment if all the evidence submitted, and ‘all inferences reasonably
deducible from the evidence’ and uncontradicted by other inferences or
evidence, show that there is no triable issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.)
Once the
moving party has met that burden, the burden shifts to the opposing party to
show that a triable issue of one or more material facts exists as to that cause
of action or a defense thereto. To establish a triable issue of material fact,
the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68
Cal.App.4th 151, 166.)
Plaintiff’s
claims in this action arise from alleged misconduct by the defendants in
conducting mortuary and funeral services for Plaintiff’s deceased son.
Plaintiff alleges that the death certificate issued for her deceased son by
Defendant Serenity Family Mortuary (Serenity) contained erroneous information,
including misspelling his name and misstating his gender. (SAC ¶ 17.) Plaintiff
alleges further issues with obtaining her son’s death certificate and burial
permit from Serenity which lead her to believe that her son’s remains, which
were interred at the Forest Lawn Defendants’ cemetery, were mishandled, or
confused with another’s. (FAC ¶¶ 19-22.)
On March 28, 2018, Plaintiff
entered into a contract with Serenity to provide mortuary and funeral-related
services and to act as the funeral director for the funeral of Plaintiff’s
stillborn son. (Defendant’s Undisputed Material Facts (DUMF) 1; Smith Decl. ¶
4, Ex. C.) Plaintiff understood that Serenity had sole responsibility for
embalming the remains, obtaining the application and Permit for Disposition of
human remains, and transporting the remains to the plot. (DUMF 2.)
On March
30, 2018, Plaintiff entered into the Memorial Arrangement Agreement (Memorial
Agreement) with the Forest Lawn Defendants. (DUMF 4.) The Memorial Agreement lists
charges for “New Property: Cypress, Compassion, Ground, 3101, 1,” “Property
Endowment Care Fund,” Park Assistance – Cemetery Attendant,” “Ca. Department of
Consumer Affairs Fee,” “Interment & Recording,” and “Concrete Vault.” (Ladd
Decl. ¶ 8, Ex. 2.) The Memorial Agreement also names “Cypress” as the funeral
director, though the Forest Lawn Defendants did not charge for any mortuary or
funeral services. (DUMF 4; Ladd Decl. ¶ 8, Ex. 2, p. 2.) Lawana Pitchford, a
representative of Serenity, paid Forest Lawn for the services to Plaintiff.
(Plaintiff’s Undisputed Material Facts (PUMF) 6.)
Plaintiff
also signed an Order of Interment on March 30, 2018, authorizing Forest Lawn to
inter the remains of the decedent. (Ladd Decl. ¶ 9, Ex. 3.) The Order names
Serenity as the funeral director, and also includes a provision that Plaintiff
would “assume full responsibility for the identity of the remains whether or
not I viewed the remains. I agree to indemnify, protect, defend and hold
[Forest Lawn Defendants] harmless against any claims and/or damages including
attorneys’ fees and costs, that may result from my certification and direction
or my failure to properly identify the remains.” (Ladd Decl. ¶ 9, Ex. 3.)
Plaintiff testified that she signed the Order. (Smith Decl., Ex. H, pp. 43-44
[83].)
Plaintiff’s
Second Amended Complaint asserts claims against the Forest Lawn Defendants for
Negligence and Breach of Contract.
Cause of Action for Breach of Contract
The elements of a cause of action
for breach of contract are: (1) the contract, (2) the plaintiff’s performance
of the contract or excuses for nonperformance, (3) the defendant’s breach, and
(4) the resulting harm to the plaintiff. (Careau & Co. v. Sec. Pacific
Bus. Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)
Plaintiff’s third cause of action
for breach of contract alleges that the Forest Lawn Defendants breached their
contract with Plaintiff by conducting mortuary and funeral services without the
necessary paperwork, failing to verify the remains of Plaintiff’s son, and
creating doubt as to whether the remains of Plaintiff’s son are in fact buried
in the plot purchased by Plaintiff. (SAC ¶ 52.)
The Forest Lawn Defendants have
presented undisputed evidence that their duties under the Memorial Agreement
did not include identifying the remains of the decedent. The Memorial Agreement
lists charges for “New Property: Cypress, Compassion, Ground, 3101, 1,”
“Property Endowment Care Fund,” Park Assistance – Cemetery Attendant,” “Ca.
Department of Consumer Affairs Fee,” “Interment & Recording,” and “Concrete
Vault.” (Ladd Decl. ¶ 8, Ex. 2.) Jeffrey Rice, the assistant director of Forest
Lawn who prepared the Memorial Agreement, testified as to the substance of each
of these items, none of which involved either funeral services or the
identification of the decedent’s remains. (Smith Decl., Ex. I, pp. 24-26
[113].) The Agreement makes no express statement that the Forest Lawn
Defendants would verify the remains within the casket at the time of
internment. (DUMF 13.)
It is undisputed that the Forest
Lawn Defendants did not charge any fees for mortuary or funeral services to
Lawana Pitchford, who paid for Plaintiff’s services. (DUMF 4.) Additionally,
Forest Lawn’s price sheet listing the services included with “Burial
(Internment, Title & Recording)” does not include among them mortuary
and/or funeral services. (DUMF 6; Ladd Decl. ¶ 3, Ex. 1.) Rice also testified
that Serenity was “responsible for getting all the proper burial permits filed
and handling the embalming and taking care of identification, as for as the
decedent, and handling everything as far as services.” (Smith Decl., Ex. I p.
71 [121].)
Furthermore, the Order of Interment
names Serenity as funeral director, and provides that Plaintiff would “assume
full responsibility for the identity of the remains whether or not I viewed the
remains. I agree to indemnify, protect, defend and hold [Forest Lawn
Defendants] harmless against any claims and/or damages including attorneys’
fees and costs, that may result from my certification and direction or my
failure to properly identify the remains.” (Ladd Decl. ¶ 9, Ex. 3.) Plaintiff
testified that she signed the Order. (Smith Decl., Ex. H, pp. 43-44 [83].)
The undisputed evidence shows that
the Forest Lawn Defendants had no duty under the Memorial Agreement either to
conduct mortuary and funeral services or to verify the remains of Plaintiff’s
son. Furthermore, pursuant to the Order of Interment, Plaintiff assumed
responsibility for identification of the remains and indemnified the Forest
Lawn Defendants for any related claims or damages. The Forest Lawn Defendants
have thus met their burden to show no triable issue of material fact as to the
cause of action for breach of contract.
Plaintiff
first argues that Defendants have failed to present competent evidence because
the declaration of Nickol Ladd lacks personal knowledge. The Court disagrees. Ladd’s
statement that she is the custodian of records for the Forest Lawn Defendants
and has access to all attached business records is sufficient to show personal
knowledge. (Ladd Decl. ¶ 1.)
Plaintiff
next argues that the indemnification provision in the Order for Interment is
unenforceable as against public policy, citing Civil Code section 1668. Under section
1668, “All contracts which have for their object,
directly or indirectly, to exempt anyone from
responsibility for his own fraud, or willful injury to the person or property
of another, or violation of law, whether
willful or negligent, are against the policy of the law.”
Civil
Code section 1668 is inapplicable here, because the indemnification provision
in the Order of Interment is expressly authorized by Health & Safety
Code § 7110. That section provides, “Any person signing any authorization for
the interment or cremation of any remains
warrants the truthfulness of any fact set forth in the authorization, the
identity of the person whose remains are sought to be interred or cremated, and his or
her authority to order interment or cremation.
He or she is personally liable for all damage
occasioned by or resulting from breach of such warranty.” The language of
section 7110 mirrors that of the indemnification provision in the Order of Interment.
Given that the provision is specifically authorized by statute, the Order of
Internment is not unenforceable as against public policy.
Cause of Action for Negligence
The
elements of negligence are “(1) a legal duty of care toward the plaintiff;
(2) a breach of that duty; (3) legal causation;
and (4) damages.” (Century Surety
Co. v. Crosby Insurance, Inc. (2004) 124 Cal.App.4th 116, 127.)
Under her
first cause of action, Plaintiff alleges that the Forest Lawn Defendants breached
their duty to Plaintiff by (1) failing to ensure that the remains described in
the Application and Permit for Disposition matched the actual remains brought
by Serenity to the cemetery; (2) failing to ensure that the necessary paperwork
required before disposition of the remains was completed accurately and
registered with the local registrar before the burial, pursuant to Health &
Safety Code § 103050; and (3) inserting language into the Order of Interment
signed by Plaintiff indemnifying the Forest Lawn Defendants for any resulting
claims or damages. (SAC ¶ 35.)
Plaintiff
has presented no basis for imposing a legal duty to verify the remains of the
decedent on the Forest Lawn Defendants. While
Plaintiff cites Christensen v. Superior Court (1991) 54 Cal.3d 868, that
case concerned the duties owed to the bereaved by entities providing mortuary
or crematory services. (Id. at 875.) The holding in Christensen
does not support imposing a duty to verify remains on a cemetery that is
interring the decedent’s remains, but not providing funeral, mortuary, or
crematory services.
Plaintiff’s
second alleged breach of duty is also unavailing. Under Health & Safety
Code § 103050, “A person shall not dispose of human remains unless both of the
following have occurred: (1) There has been
obtained and filed with a local registrar a death certificate, as provided in
Chapter 6 (commencing with Section 102775). (2) There has been obtained
from a local registrar a permit for disposition.” Health & Safety
Code § 103080 provides that the funeral director has the duty to obtain permits
for burial and return the copy to the local registrar. However, the undisputed evidence here shows
that Serenity was the funeral director for the burial of Plaintiff’s son, and
not the Forest Lawn Defendants. Accordingly, the Forest Lawn Defendants were
not required under the Health & Safety Code to obtain the burial permits
and file them with the local registrar.
Lastly, as
discussed above, the indemnification provision in the Order of Interment is
specifically authorized by Health & Safety Code § 7110. The Forest Lawn
Defendants thus could not have breached any legal duty to Plaintiff by
including the provision in the Order.