Opinion
B330328
10-08-2024
PRINCESS NAOPE, Plaintiff and Appellant, v. FOREST LAWN MORTUARY et al., Defendants and Respondents.
Law Office of Frank P. Barbaro and Yolanda M. Medina for Plaintiff and Appellant. Horvitz & Levy, Frederic D. Cohen, Lisa Perrochet; Yoka | Smith, Alice Chen Smith, Chad Chen and Kimberly A. Byrge for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 20STCV10236 Barbara Marie Scheper, Judge. Affirmed.
Law Office of Frank P. Barbaro and Yolanda M. Medina for Plaintiff and Appellant.
Horvitz & Levy, Frederic D. Cohen, Lisa Perrochet; Yoka | Smith, Alice Chen Smith, Chad Chen and Kimberly A. Byrge for Defendants and Respondents.
GRIMES, J.
Plaintiff Princess Naope appeals summary judgment on her causes of action for breach of contract and negligence against defendants Forest Lawn Mortuary and Forest Lawn Memorial-Park Association. As the parties do not distinguish between them in their briefs, we refer to these entities collectively as "defendant."
Defendant operates a cemetery. Plaintiff's causes of action hinge on whether defendant was obligated to confirm that (i) human remains delivered by a funeral director for burial were actually those of the person described in plaintiff's contract with defendant; (ii) the funeral director obtained a death certificate for the decedent; and (iii) the burial permit tendered by the funeral director was free of errors. The trial court concluded defendant had none of these duties and granted summary judgment on that basis. Plaintiff fails to show error in the trial court's conclusion. We therefore affirm.
BACKGROUND
1. Factual Background
Plaintiff delivered twin baby boys in March 2018. One, named Khaelyn Lyndell Naope, was stillborn.
Plaintiff contracted with Serenity Family Mortuary (Serenity) to serve as the funeral director for Khaelyn's funeral. The contract reflects Serenity charged plaintiff $1,080 for "[m]inimum services of funeral director and staff."
Plaintiff separately contracted with defendant to purchase a gravesite where Khaelyn could be buried. The contract reflects defendant charged plaintiff a total of $834.40 for six different goods or services plaintiff selected. None of the selected services includes acting as a funeral director.
The record contains another document plaintiff and Serenity both signed relating to defendant's services. By this document, designated an "Order for Interment," plaintiff directed defendant "to make disposition of the remains of [Khaelyn] as [therein] indicated . . . ." She further agreed to "hold [defendant] harmless against any claims and/or damages including attorneys' fees and costs, that may result from [her] failure to properly identify [Khaelyn's] remains." For its part, Serenity agreed it, as the "Funeral Home," was responsible for, among other things, "providing the permit" and "transportation of the remains to the place of interment."
On the day of the funeral, Serenity transported what plaintiff refers to as Khaelyn's "alleged remains" to defendant's cemetery for burial. We will refer to these remains simply as "the remains." The remains were delivered in a baby blue coffin. As plaintiff explains, "all indications were that the funeral was for a baby boy." In accordance with Health and Safety Code section 103075, Serenity delivered defendant a permit for disposition of the remains. However, the permit erroneously stated Khaelyn was female. Nevertheless, the funeral proceeded and the remains were interred in defendant's cemetery.
Plaintiff later obtained from Serenity, whose responsibility it was to procure (Health &Saf. Code, § 102780), a copy of Khaelyn's original death certificate. Like the permit for disposition Serenity provided defendant, the original death certificate also stated Khaelyn was female. After plaintiff raised the issue with Serenity, Serenity obtained and provided to plaintiff an amended death certificate correcting the error.
Notwithstanding the correction of the death certificate, plaintiff claims the incorrect gender stated on the permit for disposition causes her to doubt the interred remains are those of Khaelyn.
2. Procedural Background
Plaintiff sued Serenity and defendant for breach of contract and negligence. She claims damages for emotional distress arising from her alleged doubt about the identity of the remains.
Plaintiff represents that Serenity was uninsured and went out of business. It settled with plaintiff for a nominal sum, leaving defendant the sole target of the lawsuit.
After discovery, defendant moved for summary judgment. The trial court granted defendant's motion on the grounds that defendant had no contractual nor tort duty to plaintiff to verify the identity of the remains, confirm the accuracy of the permit for disposition, or confirm issuance of a death certificate.
Plaintiff timely appealed.
DISCUSSION
1. Summary Judgment and Standard of Review
On a motion for summary judgment, a defendant must show "that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) Summary judgment is appropriate only "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Id., subd. (c).) A triable issue of material fact exists if the evidence and inferences therefrom would allow a reasonable juror to find the underlying fact in favor of the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
Our Supreme Court has made clear that the purpose of the 1992 and 1993 amendments to the summary judgment statute was" 'to liberalize the granting of [summary judgment] motions.'" (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542 .) It is no longer called a "disfavored" remedy. (Ibid.) "Summary judgment is now seen as 'a particularly suitable means to test the sufficiency' of the plaintiff's or defendant's case." (Ibid.)
"' "We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained."' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
In conducting our review, we presume the trial court's judgment was correct until error is affirmatively shown. (Murchison v. County of Tehama (2021) 69 Cal.App.5th 867, 882.) "Under this principle, plaintiff bears the burden of establishing error on appeal, even though defendants had the burden of proving their right to summary judgment before the trial court. [Citation.] For this reason, our review is limited to contentions adequately raised and supported in plaintiff's brief." (Ibid.)
2. Plaintiff Fails to Show Error in the Trial Court's Determination that Defendant Never Undertook the Contract Duties Plaintiff Alleges It Breached
The elements of a cause of action for breach of contract are (1) the existence of a contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)
Plaintiff alleged defendant breached its contract with her by "[c]onducting the mortuary and funeral services . . . without the necessary paperwork required before disposition of the remains," "[f]ailing to ensure that the remains . . . that were buried were in fact [those] of Khaelyn," and "[c]reating doubt as to whether the remains of Khaelyn . . . are in fact buried in the plot purchased by [p]laintiff."
The trial court concluded the contract between plaintiff and defendant did not impose on defendant any of the duties plaintiff alleges defendant breached. Plaintiff fails to show error in the trial court's interpretation of the contract.
Her attempt to impose the duties of validating burial paperwork and confirming the identity of the remains begins with a line item in her contract with defendant for "Interment &Recording." For this, plaintiff was charged $375. The contract does not state what "Interment &Recording" includes. However, plaintiff points to a document that is not part of the contract as establishing what "Interment &Recording" means. The document is entitled "Selected Cemetery Prices." The sheet provides that "Burial (Interment, Title &Recording)" includes "legal requirements, verifying right of interment, [and] checking and recording interment order." Defendant performed these duties by receiving from Serenity a permit for disposition of the remains before the interment. Plaintiff implies the description of "Burial (Interment, Title &Recording)" in the "Selected Cemetery Prices" document imports into her contract with defendant additional obligations to verify the identity of remains, confirm a death certificate has been obtained and refuse interment if not, or refuse interment of remains when a burial permit specifies a gender that is different than the gender typically associated with the color of the coffin the remains are delivered in. In support, plaintiff notes that Health and Safety Code section 103050, subdivision (a) provides that human remains shall not be disposed of unless a death certificate has been filed with the local registrar and that registrar has issued a permit for disposition. Plaintiff's argument is unpersuasive.
The statutory duties plaintiff attempts to import via the price sheet are not obligations of cemeteries. Rather, they are obligations of funeral directors. It was Serenity, not defendant, who acted as funeral director. It was therefore Serenity who had the obligation to prepare and register the death certificate (Health &Saf. Code, § 102780), whereupon a permit for disposition would issue if the death certificate was "properly executed and complete" (§ 103055). And it was Serenity who had the obligation to bring the permit to defendant's cemetery at the time of the funeral and present the permit to defendant (see §§ 103055, subd. (a) &103075 [transporter of remains must deliver permit for disposition to "person in charge of the place of interment"]).
The statute says nothing about a cemetery's obligation to verify the remains, receive or verify the existence of a death certificate, or ascertain whether the permit for disposition accurately describes the remains. The cemetery's related statutory obligations are limited to signing, endorsing as of the date of interment, and returning the permit for disposition to its issuer and the local registrar. (Health & Saf. Code, § 103080, subd. (a).) From the perspective of defendant, the "legal requirements" were satisfied, and there was a "right of interment," when Serenity presented it with a permit for disposition, because that implied a death certificate had been issued. (See § 103055.)
We note plaintiff's reference to her acknowledgment in the order of interment that "interment may be delayed due to conditions beyond [defendant's] control, including but not limited to weather conditions, power outages, difficulty in obtaining the death certificate and/or burial permit." Nothing in this acknowledgment by plaintiff of a possibility that defendant's performance of the contract could be delayed for reasons outside of defendant's control imposes on defendant any obligation to delay its performance.
Also, plaintiff agreed in the interment order that she, not defendant, was solely responsible for identifying the remains.
Finally, we reject plaintiff's reliance on Christensen v. Superior Court (1991) 54 Cal.3d 868 (Christensen) to expand the scope of defendant's contractual duties to her. Christensen concerned standing of a decedent's noncontracting family members to sue funeral directors and others involved in mishandling remains for torts. (Id. at p. 875.) It does not create or impose new contractual obligations.
3. Plaintiff Fails to Show Error in the Trial Court's Determination that Defendant Did Not Owe the Duties the Breach of Which She Claims Caused Her Harm
The elements of a cause of action for negligence are (1) a legal duty to use due care, (2) a breach of that duty, and (3) such breach proximately causing injury to the plaintiff. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)
Plaintiff makes no distinction in her brief between her contract cause of action and her negligence cause of action. She does not specify what common law duty defendant breached by not verifying the identity of the remains, the existence of a death certificate, or that all information contained in the permit for disposition was correct.
"The existence of a duty is a question of law for the court." (Claxton v. Atlantic Richfield Co. (2003) 108 Cal.App.4th 327, 335.) The trial court found plaintiff failed to establish a basis for the duty to verify remains or confirm Serenity obtained the correct paperwork or completed it correctly. Plaintiff's failure to address this forfeits the issue on appeal.
In any event, as discussed above, the duty to obtain and prepare correct paperwork lay, by statute, with Serenity because Serenity was the funeral director. (Health &Saf. Code, §§ 102780, 103055, subd. (a) &103075.)
Regarding defendant's failure to confirm the identity of the remains, plaintiff agreed in the interment order that such responsibility lay exclusively with her. Plaintiff argues there is a triable issue as to the enforceability of that agreement under Civil Code section 1668, which invalidates "contracts which have for their object . . . 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 ...." In reliance on Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 43, plaintiff argues her negligence cause of action is unaffected by her assumption of responsibility in the interment order because section 1668 "prohibits contracts that release liability for ordinary negligence when the public interest involved."
Plaintiff's assumption of responsibility is not contrary to public interest as a matter of law because it is expressly provided by statute. "Duly enacted statutes reflect the public policy of this state." (Moorefield Construction, Inc. v. Intervest-Mortgage Investment Co. (2014) 230 Cal.App.4th 146, 161.) The relevant language in the interment order essentially restates Health and Safety Code section 7110, which provides, in relevant part, "[a]ny person signing any authorization for the interment or cremation of any remains warrants . . . 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." Defendant was entitled to rely on plaintiff's express contractual and statutory warranty regarding the identity of the remains. It was not negligent in doing so.
Finally, plaintiff again cites language in Christensen, supra, 54 Cal.3d 868, as imposing special duties on defendant. For the reasons already stated, Christensen is of no help to plaintiff here.
4. Plaintiff Fails to Show Reversible Error in the Trial Court's Evidentiary Rulings
Plaintiff claims the trial court erred in admitting two statements made in a declaration by defendant's custodian of records. We need not consider plaintiff's claims of error because, even if the evidence had been excluded, there would have been no change in the outcome. "A judgment of the trial court may not be reversed on the basis of the erroneous admission of evidence, unless that error was prejudicial." (Grail Semiconductor, Inc. v. Mitsubishi Electric &Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 799, citing Code Civ. Proc., § 475.) Plaintiff makes no attempt to show prejudice. It is apparent that there was none.
The first statement plaintiff contends the trial court should have excluded is that defendant "interred the remains of [p]laintiff's stillborn in the interment space that [p]laintiff purchased ...." It is undisputed that the casket which contained the remains delivered by Serenity, and was accompanied by the permit for disposition that Serenity provided, was interred in the interment space at defendant's cemetery. For the reasons already stated, it was not defendant's responsibility to show that the remains were actually those of Khaelyn because it had no contractual, statutory or common law duty to so verify. It was entirely plaintiff's responsibility to ensure that the remains were Khaelyn's.
The second statement plaintiff argues should have been excluded is that defendant "signed the permit for disposition and forwarded the executed copy to the Orange County Health Department to record the interment." There is no evidence that defendant did not perform this function. But even if it had not, plaintiff draws no connection between any such failure and the harm she alleges. The remains would have been interred at defendant's cemetery under a permit for disposition containing errors and without a proper death certificate-the events that plaintiff alleges caused her harm-regardless of whether defendant later signed and returned the permit to the health department. It was therefore unnecessary for defendant to conclusively show in its motion that it returned the signed permit, and the trial court could have granted the motion even in the absence of such proof.
DISPOSITION
We affirm the judgment of the trial court. Costs are awarded to defendants.
WE CONCUR: STRATTON, P. J., WILEY, J.