Opinion
B158539.
11-20-2003
MERLIN HARTT et al., Plaintiffs, Appellants, and Respondents. v. COUNTY OF LOS ANGELES, Defendant, Respondent and Appellant.
Law Offices of Joel F. Citron and Thomas H. Citron; Lascher & Lascher and Wendy Cole Lascher for Plaintiffs, Appellants and Respondents Merlin Hartt and Catherine Hartt. Pollak, Vida & Fisher, Girard Fisher, Daniel P. Barer and Anna L. Birenbaum; Stephen Oringer Richman & Theodora, Todd Theodora and Darryl Ross; Thever & Armstrong and Ronald A. Chavez for Defendant, Respondent and Appellant.
Merlin and Catherine Hartt sued Los Angeles County for negligence, fraud, and violating Health and Safety Code section 7051. After a 1996 autopsy, the County donated a lung and cornea from the Hartts deceased son Justin Hartt to a medical researcher and corneal transplant company without seeking or getting the Hartts permission.
"Every person who removes any part of any human remains from any place where it has been interred, or from any place where it is deposited while awaiting interment or cremation, with intent to sell it or to dissect it, without authority of law, or written permission of the person or persons having the right to control the remains . . . , or with malice or wantonness, has committed a public offense that is punishable by imprisonment in the state prison. [¶] . . . ." (Health & Saf. Code, § 7051.)
The trial court denied the Countys summary judgment motion based on the Countys argument that the Hartts failed to timely file their government tort claim with the County. (Gov. Code, §§ 911.2, 911.4, 946.6; all further undesignated section references are to the Government Code.) However, the trial court granted the County nonsuit after the Hartts opening statement and dismissed the case. The trial court found that the 1996 versions of the controlling statutes authorized the Countys conduct. (§§ 27491.45, 27491.47; Health & Saf. Code, § 7150 et seq.)
The Hartts appealed from the judgment. The County filed a protective cross-appeal from the denial of its summary judgment motion. (Code Civ. Proc., §§ 902, 906; Cal. Rules of Court, rule 3(e)(1).)
(I) The Hartts contend the trial court erred in granting the County nonsuit. Later statutory amendments now require the County to seek permission before making such donations. However, the Hartts argue the 1996 versions of the governing statutes, read together, also required the County to obtain their permission before donating Justins lung and cornea. The Hartts also argue that to the extent the 1996 statutes did not so require, they unconstitutionally denied the Hartts due process. The County responds that the 1996 statutes expressly and constitutionally authorized its conduct.
(II) In its cross-appeal, the County contends that even if we agreed with (I), we should affirm the judgment because the trial court erred in denying it summary judgment. The Hartts learned in 1997 that at least some of Justins lung tissue had been donated without seeking or obtaining their consent, and were outraged, but did nothing because the medical researcher who received the lung, not the County, told them the conduct was lawful. Only after their 1999 discovery that Justins entire lung was donated did the Hartts file their claim. The County argues the Hartts knew enough in 1997 to require them to file, and their 1999 filing was inexcusably late. The Hartts respond their claim was timely and the County is estopped from arguing otherwise.
We reject contention (I) and affirm the judgment. As a result, we need not address issue (II). We dismiss the Countys cross-appeal as moot.
FACTS
Before trial, the parties extensively briefed several evidentiary and other motions, including the Countys motions for nonsuit and judgment on the pleadings. The parties then agreed the Hartts would submit a written opening statement to the court. The trial court would assume a jury had been sworn and had heard the Hartts opening statement. The trial court then would rule on the nonsuit and judgment on the pleadings motions. The trial court followed these procedures, granted the Countys nonsuit motion, and dismissed the case.
These facts are taken from the Hartts written opening statement. As we must, we assume the facts, but not legal conclusions, contained therein are true, indulge factual inferences in favor of the Hartts, and review de novo the trial courts legal ruling that those facts so construed fail to establish the Hartts causes of action. (See Standard of Review section below.)
The Hartts all were devout Jehovahs Witnesses. "One tenet of that religion is the prohibition against blood transfer and certain medical procedures in cases involving accidents which injure a member of the faith." (Emphasis added.)
On September 22, 1996, Justin, then a high school senior, became a homicide victim. Because of that fact, police delivered Justins body and personal effects to the coroner for a required autopsy. Justins personal effects included an identity card which said: "`As parents we are deeply interested in the welfare of our child Justin Hartt. Because of our familys convictions as Jehovahs Witnesses we do not accept non-blood expanders and other medical treatment. In case of accident, please contact us immediately. We likely can provide information as to the physicians who respect our religious convictions and may already have provided medical care for us." (Emphasis added.) Police told Mr. Hartt that after the autopsy Justins body would be sent to Rose Hills Mortuary, the Hartts choice, for cremation and burial.
On September 23, 1996, Mr. Hartt signed a form at the coroners office which asked whether Justin was married or had living children. The form also quoted a portion of Health and Safety Code section 7100, subdivision (a), stating: "`The right to control the remains of a deceased person, unless other directions have been given by the decedent, vests in, and the duty of interment and the liability for the reasonable costs of interment of such remains, devolves upon the following in the order named: . . . . The surviving parent or parents of the deceased . . . [.]"
"Within twenty-four hours after the coroners office received Justins body, it allowed a third party to remove Justins cornea, which was taken to the Doheny Eye Bank for resale for profit. Removal of the cornea was not necessary to confirm the circumstances, manner, and cause of Justins death."
"[D]eputy medical examiner [] Dr. Pedro Ortiz performed the autopsy on Justins body on September 24, 1996. Dr. Ortiz concluded Justin died from gunshot wounds, but there were no injuries at all to Justins right lung. After Dr. Ortiz examined the lung, that organ was not needed to confirm or verify the cause, manner, or circumstances of Justins death. . . . [S]omeone told [Dr. Ortiz] that Dr. Russell Sherwin, a professor of pathology at USC School of Medicine, wanted a lung. Therefore, Dr. Ortiz harvested Justins healthy right lung and provided it to Dr. Sherwin."
Among other research, Dr. Sherwin conducted studies on the effect of air pollution on otherwise healthy people living in urban areas. Dr. Sherwin sent letters to next-of-kin, including the Hartts, of decedents stating they would be contacted "`to collect information about the health of people who died suddenly." The letter said nothing about any tissue removal or donation.
Neither the coroner, the eye bank, nor Dr. Sherwin attempted to or did contact the Hartts, or obtain their consent, before Justins cornea and lung were removed and donated, although the coroners existing internal rules required them to at least attempt to gain consent before doing so.
The Hartts knew nothing about the donations until USC contacted them by telephone in the spring of 1997 to inquire about Justins health. When Mr. Hartt asked why USC wanted this information, the caller told him "a small tissue sample had been taken for . . . research." "Mr. Hartt was very upset[.]" When Mr. Hartt asked who gave permission, a doctor came on the line, said only a small sample had been taken, and that he was allowed to take the sample by law. Mr. Hartt believed the statement and took no further action at that time.
The Hartts did not learn that Justins entire lung had been donated until a reporter contacted them in 1999. Only thereafter did the Hartts file their case. The Hartts did not learn about the donation of Justins cornea until post-filing discovery.
The trial court granted the County nonsuit and dismissed the case. The trial court found that the 1996 versions of sections 27491.45, subdivisions (a) and (b), and 27491.47 expressly allowed the coroner to make the challenged donations without seeking or obtaining consent. The trial court found that earlier and later amendments to these and other related statutes supported its finding by showing the legislature expressly required consent at other times and in other statutes.
STANDARD OF REVIEW
"Only after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit." (Code Civ. Proc., § 581c, subd. (a).) A nonsuit "motion is tantamount to a demurrer to the evidence [citations] by which a defendant can test the sufficiency of the plaintiffs case before presenting his or her own. [Citation.] It presents a question of law [citations], namely, whether the evidence offered in support of plaintiffs case could justify a judgment for plaintiff. [Citations.] On appeal we are required to evaluate the plaintiffs evidence under the same rules governing the trial court. [Citation.] The evidence most favorable to the plaintiff must be accepted as true unless it is inherently incredible [citation], and conflicts must be resolved and reasonable inferences drawn in the plaintiffs favor. [Citations.]" (Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268, 272.)
"A motion for judgment on the pleadings is tantamount to a general demurrer [citations], although it is not governed by statute and may be made at any time prior to a final judgment [citation]. On appeal from the granting of the motion, the standard of review is the same as for a judgment of dismissal following the sustaining of a general demurrer. [Citations.]" (Orange Unified School Dist. v. Rancho Santiago Community College Dist. (1997) 54 Cal.App.4th 750, 764.)
"The function of a demurrer is to test the sufficiency of the complaint by raising questions of law. [Citation.] The complaint must be given a reasonable interpretation and read as a whole with its parts considered in their context. [Citation.] A general demurrer admits the truth of all material factual allegations of the complaint; plaintiffs ability to prove the allegations, or the possible difficulty in making such proof, does not concern the reviewing court. [Citation.] `As a reviewing court we are not bound by the construction placed by the trial court on the pleadings but must make our own independent judgment thereon, even as to matters not expressly ruled upon by the trial court. [Citation.]" (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238-239; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "`We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.]" (Ibid .)
Where "the issues [on review of a nonsuit motion] deal solely with statutory interpretation and application of a statute to undisputed facts, `[r]eview of such issues takes place de novo. [Citations.]" (Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346, 352.)
DISCUSSION
I
The Hartts contend the trial court erred in granting the County nonsuit. The Hartts argue the 1996 versions of sections 27491.45, subdivisions (a) and (b), governing the donation of Justins lung, and 27491.47, governing the donation of Justins cornea, did not immunize the County from liability for donating Justins organs without seeking their prior consent because, when read together and with other relevant statutes, those two sections did not authorize unconsented-to donations. The Hartts further claim that, even if the 1996 versions did so authorize, they unconstitutionally denied the Hartts due process. The Hartts also argue their opening statement at least raised triable factual disputes whether the County (1) relied on those statutes, since it had existing internal rules requiring it to seek consent before donating Justins organs, and (2) committed fraud by not disclosing the cornea donation or telling the Hartts they could object.
Unless otherwise noted, all further references to sections 27491.45 and 27491.47 are to the versions in effect in 1996. As noted, 2000 and 1998 amendments to those two statutes now require the coroner to at least attempt to obtain permission before making the kind of donations challenged here.
The Hartts contention lacks merit.
Resolving this issue requires us to interpret the relevant statutes. The rules governing statutory construction are well established. "The interpretation of a statute . . . is a question of law . . . ." (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699.) "`Interpretation and applicability of a statute or ordinance is clearly a question of law. [Citation.] It is the duty of an appellate court to make the final determination from the undisputed facts and the applicable principles of law. [Citation.]" (Sutco Construction Co. v. Modesto High School Dist. (1989) 208 Cal.App.3d 1220, 1228.)
Statutory interpretation involves a three step analysis. "First, a court should examine the actual language of the statute. [Citations.] Judges, lawyers and laypeople all have far readier access to the actual laws enacted by the Legislature than the various and sometimes fragmentary documents shedding light on legislative intent. More significantly, it is the language of the statute itself that has successfully braved the legislative gauntlet. It is that language which has been lobbied for, lobbied against, studied, proposed, drafted, restudied, redrafted, voted on in committee, amended, reamended, analyzed, reanalyzed, voted on by two houses of the Legislature, sent to a conference committee, and, after perhaps more lobbying, debate and analysis, finally signed `into law by the Governor. The same care and scrutiny does not befall the committee reports, caucus analyses, authors statements, legislative counsel digests and other documents which make up a statutes `legislative history. [¶] In examining the language, the courts should give to the words of the statute their ordinary, everyday meaning [citations] unless, of course, the statute itself specifically defines those words to give them a special meaning [citations]). [¶] If the meaning is without ambiguity, doubt, or uncertainty, then the language controls. [Citations.] . . . [¶] But if the meaning of the words is not clear, courts must take the second step and refer to the legislative history. [Citations.] [¶] The final step—and one which we believe should only be taken when the first two steps have failed to reveal clear meaning—is to apply reason, practicality, and common sense to the language at hand. If possible, the words should be interpreted to make them workable and reasonable [citations])." (Halberts Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238-1240.)
Generally, donations of body parts are governed by the Uniform Anatomical Gift Act. (Health & Saf. Code, § 7150 et seq.) Generally, consent is required before such a donation may be made. Specifically, "[o]nly an individual may make an anatomical gift of all or part of the individuals body or a pacemaker, if it is made known that the individual at the time of death was a member of a religion, church, sect, or denomination which relies solely upon prayer for the healing of disease or which has religious tenets that would be violated by the disposition of the human body or parts thereof or a pacemaker . . . ." (Health & Saf. Code, § 7152.)
However, section 27491.45, subdivision (a), permitted the coroner to retain body tissues removed during an autopsy "as may, in the opinion of the coroner, be necessary or advisable for scientific investigation. [¶] Such tissues may be submitted by the coroner to hospitals, medical educational research institutions, and law enforcement agencies for training, educational, and research purposes." Subdivision (a) authorized the coroner to make such donations without seeking consent, unless the patient died in a state hospital, which Justin did not.
Subdivision (b) of the same section permitted the coroner to allow specified third parties to remove organs not during an autopsy but rather "for transplant, or therapeutic, or scientific purposes", but only after seeking consent. The coroner, not a third party, removed Justins lung during the autopsy, not as part of a procedure designed to obtain body parts for transplant.
"(a) The coroner shall have the right to retain tissues of the body removed at the time of autopsy as may, in the opinion of the coroner, be necessary or advisable for scientific investigation.
"Such tissues may be submitted by the coroner to hospitals, medical educational research institutions, and law enforcement agencies for training, educational, and research purposes.
"However, the provisions of this subdivision shall not apply if (1) the [t]issues of the body sought to be retained are those of a patient who has died in a state hospital, and (2) if the patient requested that such provisions shall not apply, or, absent the request of the patient, if permission for such retention is not received by the coroner from the person responsible for the disposition of the body . . . .
"(b) The coroner may, in his or her discretion, allow removal of parts of the body by a licensed physician and surgeon or trained transplant technician for transplant, or therapeutic, or scientific purposes . . . if the following conditions are met:
"(1) The provision of the part will not unnecessarily mutilate the body or interfere with the autopsy.
"(2) The decedent or other person . . . has consented to the provision of the part . . . . If the decedent has not made such a gift of a part of his or her body, the coroner, or a person designated by the coroner, shall make diligent efforts to locate and secure such gift within 24 hours of the decedents death from an appropriate person . . . . In obtaining such gift, the coroner shall notify the donor of the specific part or parts requested and shall obtain the donors informed consent . . . ." (Former § 27491.45, subds. (a) and (b).)
Section 27491.47 permitted the coroner or an authorized third party to remove a cornea from a body within the coroners control for transplant without permission unless the coroner knew of an objection to doing so.
"Notwithstanding any other provision of law, the coroner may, in the course of an autopsy, remove and release or authorize the removal and release of corneal eye tissue from a body within the coroners custody, if all of the following conditions are met:
"(1) The autopsy has otherwise been authorized.
"(2) The coroner has no knowledge of objection to the removal and release of corneal tissue having been made by the decedent or any other person . . . .
"(3) The removal of such tissue will not unnecessarily mutilate the body, be accomplished by enucleation, nor interfere with the autopsy.
"(4) The tissue will be removed by a coroner, licensed physician and surgeon, or a trained transplant technician.
"(5) The tissue will be released to a public or nonprofit facility for transplant, therapeutic, or scientific purposes." (Former § 27491.47, subd. (a).) Subdivision (b) immunized entities performing such acts from civil liability.
The Hartts argue that the Legislature must have intended subdivision (b) of section 27491.45 to modify subdivision (a) by inserting a general consent requirement, separate from subdivision (a)s specific consent requirement for such donations where the deceased died in a state hospital. This argument is contradicted by subdivision (a)s express language omitting a consent requirement where the body part was removed by the coroner as part of an approved autopsy. Under those circumstances, subdivision (a) then vested within the coroners sole discretion whether such parts needed to be retained as part of the autopsy record, and, if not, whether to donate them for specific purposes. Subdivision (a) then carved out an express exception to the no consent rule by requiring consent where the deceased died in a state hospital. Obviously, if the coroner needed to obtain consent in all cases, the state hospital consent exception in subdivision (a) would be meaningless surplusage.
Moreover, subdivision (b) contained another express consent requirement for tissue removed under very different circumstances, i.e., where a third party, not the coroner, removed the body part, and where the removal was not as part of the autopsy but for the purpose of transplant or therapy. Subdivisions (a) and (b) expressly pertain to removals by different people as part of different procedures. The Legislatures inclusion of consent requirements in some circumstances and omission in others demonstrate the Legislatures intent to require consent where noted and to dispense with it where omitted.
Moreover, sections 27491.47, discussed above, and 27491.46, which permits the coroner to donate pituitary glands without permission if the coroner is unaware of any objection, or if a body remains unclaimed 48 hours after an autopsy, support rather than undermine our reading of the controlling statutes. Those two sections permit the donation of specific organs without permission if the coroner is unaware of objections. Again, these two sections demonstrate the Legislatures specific choices about consent in different contexts. The Legislature made specific provision for those two glands, also permitting their non-consented-to donation, but only if the coroner was unaware of objections. Again, these sections demonstrate that the omission of consent requirements in the governing sections was deliberate, rational, and express.
Hence, the governing statutes clearly and unambiguously authorized the coroner to donate Justins lung without seeking the Hartts consent. Moreover, the Hartts do not seriously dispute that section 27491.47 authorized the donation of Justins cornea because the County was not aware of any objection to doing so.
We reject the Hartts suggestion that Justins Jehovahs Witness identification card somehow put the County on notice that Justin or the Hartts objected to such post-autopsy donations under Health and Safety Code section 7152. The card referred exclusively to medical treatment for someone who was still alive. The card was silent regarding post-death disposition of remains. Moreover, the form Mr. Hartt signed at the coroners office referred only generally to control of disposition of the remains. The form did not purport to waive or contradict statutes establishing the coroners control over the body while it was within the coroners legitimate control.
We also reject the Hartts argument that subdivision (a) of section 27491.45 does not apply to the donation of Justins lung because it was not removed during the autopsy. The coroner removed and examined the lung during the autopsy to see if it was injured and contributed to Justins death.
Thus, we conclude that in 1996 the governing statutes expressly and unequivocally authorized the Countys conduct. Although not necessary to our decision, the Legislatures later decision to amend both statutes to require the coroner to seek consent before making such donations demonstrates the Legislature earlier had chosen to permit such donations without consent. We judicially noticed legislative history regarding those later amendments. That history shows the Legislature believed the earlier law permitted coroners to make the kind of donations at issue here without seeking permission. We reject the Hartts claim that the amendments were designed to clarify existing law.
We reject, as we must, the Hartts claim that to the extent the 1996 statutes authorized the coroner to make unconsented-to organ donations, they deprived the Hartts of a constitutionally protected property interest without due process. California does not recognize a property right in body parts. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 136-147; Holm v. Superior Court (1986) 187 Cal.App.3d 1241, 1245-1249; Sinai Temple v. Kaplan (1976) 54 Cal.App.3d 1103, 1110-1111.) "While these statutes do not create a property right `as such in the body, they do recognize the existence of a `quasi property right . . . for the limited purpose of determining who shall have its custody for burial. [Citation.]" (Holm v. Superior Court, supra, 187 Cal.App.3d at p. 1245.)
The Hartts do not dispute these cases reject their argument. They rely on a recent Ninth Circuit case in which two judges, over a strong dissent, found such a right and resurrected a civil rights violation cause of action for an unconsented-to cornea donation by the Los Angeles County Coroner under the earlier, since-amended statutes. (Newman v. Sathyavaglswaran (9th Cir. 2002) 287 F.3d 786, 789-800.)
Two other cases cited by the Hartts do not find a constitutionally protected property right in body parts. In Davila v. County of Los Angeles (1996) 50 Cal.App.4th 137, we held the coroner could be liable for disposing of a body without first notifying next of kin, in violation of specific statutes requiring such notification. In Christensen v. Superior Court (1991) 54 Cal.3d 868, the Supreme Court found mortuaries could be liable in tort for mishandling remains in violation of specific governing statutes. Both cases were based on specific statutory violations; neither held or suggested such a property right existed.
We are compelled to follow Moore. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Newman is not binding authority. (Garcia v. Superior Court (1996) 42 Cal.App.4th 177, 181.) In any event, we find the Newman dissent, which rejected the majoritys conclusion that California law recognized a constitutionally-protected property right, more persuasive. (Newman v. Sathyavaglswaran , supra, 287 F.3d at pp. 800-801, dis. opn. of Fernandez, J.) Finally, the Hartts never pled a civil rights cause of action.
For all these reasons, we reject the Hartts constitutional challenge.
As discussed, the County was not required to disclose the cornea donation to the Hartts or seek their consent before completing it. Moreover, the County never told the Hartts about its internal rules. In any event, the County had no liability in light of the governing statutes. The Hartts opening statement did not raise any triable factual issues regarding any of their causes of action.
For these reasons, the trial court properly granted the County nonsuit.
II
Because of our conclusion in section I, we need not address issue (II).
DISPOSITION
We affirm the judgment. We dismiss the Countys cross-appeal as moot. The parties are to bear their own costs.
We concur: SPENCER, P.J. and VOGEL (Miriam A.), J.