Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 814953, William F. MacDonald and David C. Velasquez, Judges.
Law Offices of Federico Castelan Sayre, Federico Castelan Sayre and James F. Rumm for Plaintiffs and Appellants.
Marlin & Saltzman, Louis M. Marlin and Dale A. Anderson for Defendant and Respondent.
OPINION
ARONSON, J.
Plaintiffs Butch Vanderpool and Catherine Vanderpool challenge the judgment entered in favor of defendant Regents of the University of California (Regents) on the Vanderpools’ claims arising from the failure of the University of California, Irvine (UCI) to return the remains of Isol Cartheuser after Cartheuser donated her body to UCI’s willed body program (WBP). The Vanderpools assert the trial court erred in sustaining a demurrer with leave to amend on their breach of contract cause of action and in granting summary judgment on their claims of negligence and negligent misrepresentation.
We conclude the trial court properly sustained the Regents’ demurrer. The Vanderpools’ breach of contract claim failed to describe with sufficient specificity the purported “arrangement” with UCI for the return of Cartheuser’s remains. The trial court also properly rejected the Vanderpools’ negligence claim on summary judgment because the Vanderpools did not submit evidence demonstrating UCI owed them a duty to track or return Cartheuser’s remains. The trial court also properly rejected the Vanderpools’ misrepresentation claim because they provided no evidence UCI made any representations to either Cartheuser or them. Accordingly, we affirm.
I
Factual and Procedural Background
In March 1996, Isol Cartheuser executed and returned to UCI a donation agreement providing: “I here state that it is my wish to donate my body to the Department of Anatomy and Neurobiology, College of Medicine, University of California, Irvine (UCI), immediately following my death, for teaching purposes, scientific research, or such purposes as the said University or its authorized representative shall in their sole discretion deem advisable. My body, when delivered to UCI, will be unembalmed and in good condition. It is further understood and agreed that final disposition of my body by UCI shall be in accordance with the State Code.” At this time, Cartheuser was living with her grandson and adopted son, Butch Vanderpool and his wife, Catherine Vanderpool.
In May 1996 Cartheuser died at UCI Medical Center, and Catherine informed the medical center personnel that Cartheuser had donated her body under the WBP. After receiving Cartheuser’s body, the WBP sent the Vanderpools a letter expressing condolence and thanking them for their family’s participation in the program.
We refer to Catherine and Butch Vanderpool by their first names for clarity and ease of reference, and intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
Approximately two years later, both Butch and Catherine contacted UCI to learn when it would return Cartheuser’s remains to her family. Both were told that someone would get back to them with this information. Neither received a return telephone call. A few months later, news stories emerged about problems with the WBP, including the program’s failure to keep track of donated bodies and unauthorized sale of body parts. In April 2000, UCI sent Butch a letter confirming the program’s receipt of Cartheuser’s body, but informing him the WPB was unable “to obtain information on the disposition of Ms. Cartheuser’s cremated ashes.” The letter noted that no request had been made for the return of Cartheuser’s remains, and explained UCI would not contact him again unless it received additional information.
Upset and emotionally distressed upon learning of the problems with the WBP, the Vanderpools and the family members of other body donors sued the Regents. After the trial court sustained a demurrer to a breach of contract cause of action in the Vanderpools’ second amended complaint, the case was consolidated for discovery and trial management purposes with other similar cases against the Regents. The trial court granted the Regents’ summary judgment motion on the Vanderpools’ remaining causes of action for negligence, negligent misrepresentation, and fraud/intentional deceit. The Vanderpools now appeal.
II
Discussion
A. The Trial Court Did Not Err in Sustaining the Demurrer to the Vanderpools’ Breach of Contract Cause of Action
The Vanderpools contend the trial court erred in sustaining a demurrer to their breach of contract cause of action in their second amended complaint. We disagree.
As an initial matter, we note the record does not reflect the trial court’s ruling on the Regents’ demurrer to the Vanderpools’ second amended complaint. “[A] party challenging a judgment has the burden of showing reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) The Vanderpools’ failure to furnish a complete record on this issue warrants rejection of their claim. On the merits, the Vanderpools fare no better, as we explain.
Code of Civil Procedure section 430.10 provides: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: [¶] . . . [¶] (f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” The complaint describes the contract alleged to have been breached as follows: “At a date certain, but presently unknown to Plaintiffs, ISOL CARTHEUSER made arrangements and contracted to donate her body to the ‘Willed Body Program’ upon her death for the purposes of medical research and education. . . . ISOL CARTHEUSER had arranged for, and her family specifically requested and expected, the return of her cremated remains after her body had been used for the proper purposes specified by the ‘Willed Body Program.’”
The foregoing description is subject to demurrer for uncertainty because it is unclear whether the “arrangement” for the return of Cartheuser’s remains was part of her original donation agreement, or constituted a separate agreement. If a separate agreement, the complaint does not indicate with whom Cartheuser made the arrangement for the return of her remains, or to whom her family made the request. Accordingly, it is unclear whether these allegations allege a single contract, or two or three separate contracts. In addition, the complaint fails to state whether the contracts were written, oral, or implied by conduct. (See Code Civ. Proc., § 430.10, subd. (g); Holcomb v. Wells Fargo Bank, N.A. (2007) 155 Cal.App.4th 490, 500.) Under de novo review, we conclude the allegations of the Vanderpools’ cause of action for breach of contract are uncertain. Consequently, the trial court did not err in sustaining the Regents’ demurrer.
B. The Trial Court Did Not Err in Granting Summary Judgment
1. Negligence
The Vanderpools contend UCI owed them a duty to return Cartheuser’s remains to them after the WBP no longer needed her body, and failed to comply with its obligation to return the remains. We disagree.
The Vanderpools argue Cartheuser’s execution of the donation card did not alter their rights under Health and Safety Code section 7100 to control the disposition of her remains. The version of section 7100, subdivision (a), in effect at the time of Cartheuser’s death in 1996 provided, in relevant part: “The right to control the disposition of the remains of a deceased person, including the location and conditions of interment, unless other directions have been given by the decedent, vests in, and the duty of interment and the liability for the reasonable cost of interment of the remains devolves upon the following in the order named: [¶] (1) The surviving spouse. [¶] (2) The surviving child or children of the decedent . . . .” (Italics added.)
As the foregoing statutory language makes clear, the right of family members to control disposition of the decedent’s body is subject to the limiting phrase, “unless other directions have been given by the decedent . . . .” Here, the decedent gave “other directions” in the donation agreement, which provided: “[F]inal disposition of my body by UCI shall be in accordance with the State Code.” (Italics added.) The Vanderpools read the phrase “in accordance with the State Code” as a reference to Health and Safety Code section 7100, which grants family members the right to control disposition of the body. By including the phrase “by UCI,” however, the donation agreement clarified that Cartheuser granted UCI final dispositional rights to her body. The provision’s reference to “State Code” thus is properly read as describing the manner in which the body is to be disposed, not who can make that decision.
The Vanderpools also rely on the provision in Health and Safety Code section 7100, subdivision (d)(1), providing: “A decedent, prior to his or her death, may direct the preparation for, type, or place of interment of his remains, either by oral or written instructions . . . . The person . . . otherwise entitled to control the disposition of the remains . . . shall faithfully carry out the directions of the decedent . . . .” The Vanderpools argue that Cartheuser’s execution of the donation agreement calling for UCI to dispose of her remains in accordance with the “State Code” fell within the foregoing provision, and required UCI to honor her wishes. Further, the Vanderpools argue that the term “State Code” was ambiguous because it did not designate which statutory provisions were to be followed, and therefore UCI should have consulted the family members to clarify Cartheuser’s dispositional wishes. The Vanderpools note that Cartheuser had expressed to her family the desire to have her either placed next to her mother’s tomb, or scattered of Font’s Point in Borrego Springs where she enjoyed camping with her grandchildren.
We reject this argument. The donation agreement unmistakably granted final dispositional rights to UCI, not family members. True, the term “State Code” is imprecise. But this imprecision provided UCI latitude in the method of disposition. Nothing in the statutes requires a person or entity with rights of final disposition over a decedent’s remains to consult with family members whose dispositional rights have been superseded.
The Vanderpools also contend UCI voluntarily undertook a duty to track and return Cartheuser’s remains by agreeing to do so. Specifically, approximately two years after Cartheuser’s death, a WBP representative responded to a telephone call from Butch regarding disposition of Cartheuser’s remains by promising to contact him. Based on this conversation, Butch believed the WBP would return Cartheuser’s remains. Also, Catherine called the WBP around the same time period and was told: “‘We’re not through using the body yet, but it won’t be long and we’ll be in touch with you.’”
WBP’s promises to contact the Vanderpools did not constitute an agreement to return Cartheuser’s remains. Because the WBP undertook no legal duty to return Cartheuser’s remains, it cannot be held liable for failing to do so.
Apart from the WBP’s failure to return Cartheuser’s remains, the Vanderpools also contend the WBP owed them a duty to account for the final disposition of the body. We again disagree.
Nothing in the donation agreement suggests UCI undertook a legal duty to track Cartheuser’s body or provide her family a description of how UCI utilized the body. Indeed, the nature of study and scientific research involving cadavers suggests such an agreement cannot be implied. (See Bennett v. Regents of University of California (2005) 133 Cal.App.4th 347, 355–356.)
Relying on Saari v. Jongordon Corp. (1992) 5 Cal.App.4th 797 (Saari), the Vanderpools contend they may recover damages for the uncertainty surrounding final disposition of a loved one’s remains. In Saari, the defendant agreed to cremate the decedent’s body and release his ashes to his partner without performing any religious service. (Id. at p. 801.) Instead of complying with the contract, the defendant performed a Christian service while scattering the ashes at sea. (Ibid.) The decedent’s mother, sister, and partner sued the defendant for failing to perform the services as arranged. The mother asserted her emotional distress arose in part when she could not sleep at night, “wondering what had happened to her son’s remains.” (Id. at p. 806.)
The defendant in Saari argued the mother’s uncertainty about the disposition of her son’s remains could not form the basis of a recovery for emotional distress. (Saari, supra, 5 Cal.App.4th at p. 806.) The appellate court disagreed, explaining the mother’s claim was not that she did not know if the decedent’s remains were mishandled, but that she was not certain what actual disposition was made of his ashes. Because there was no question the decedent’s remains had been mishandled, the plaintiff could recover for distress caused by her uncertainty regarding final disposition. (Ibid.) Unlike Saari, the Vanderpools have provided no evidence UCI mishandled Cartheuser’s remains or breached any contractual or legal duty.
The Vanderpools also cite evidence that the WBP mishandled the remains of other donated bodies, and argue such evidence creates an inference that the WBP also mishandled Cartheuser’s body. But the Supreme Court in Christensen v. Superior Court (1991) 54 Cal.3d 868, recognized that “reports of a general pattern of misconduct are not sufficient, in and of themselves, to establish that defendants’ misconduct included mishandling of the remains of each plaintiff’s decedent.” (Id. at p. 901.) The court elaborated: “A generalized concern that the remains of a relative may have been involved, arising out of a media report of a pattern of misconduct, is insufficient to satisfy the requirement that there be a direct connection between a defendant’s conduct and the injury suffered by the plaintiff. It does not supply a necessary element — that the injury, here emotional distress, be caused by a breach of the defendant’s duty to the particular plaintiff.” (Id. at p. 902.)
Finally, the Vanderpools contend the WBP undertook the duties of a mortuary or crematory service provider, and breached those duties by failing to keep track of Cartheuser’s remains. We disagree. As we noted in Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 179 (Melican): “UCI does not purport to provide funeral-related services, and is not licensed to do so. ‘[F]uneral-related services are principally for the comfort of the living, having as their aim the consolation of the leading mourners. The expectations of the survivors, and “essence of the contract [for such services is] a reasonable expectation of dignity, tranquility, and personal consolation.” [Citation.]’ [Citation.] In contrast, the mission of UCI’s WBP is to obtain cadavers for study and dissection by medical students. In recognition of this distinction, the Legislature specifically exempted public institutions, hospitals, and medical schools from the Funeral Directors and Embalmers Law. [Citation.]”
As we recognized in Melican, a party may voluntarily undertake a duty from which it is exempt by law. (Melican, supra, 151 Cal.App.4th at p. 179.) But the Vanderpools have cited nothing in the record suggesting UCI’s WBP undertook the duties of a mortuary or crematory operator. Accordingly, we conclude the trial court did not err in rejecting the Vanderpools’ negligence cause of action.
2. Negligent Misrepresentation and Fraud/Intentional Deceit
The Vanderpools contend the trial court erred in rejecting their claims for negligent misrepresentation and fraud/intentional deceit, arguing they presented sufficient evidence of misrepresentations made to the decedent before she signed the donation card. The Vanderpools, however, provide no record citation to support their claim. Instead, they make the following unsupported statement in their brief: “UCI WBP misrepresented to Ms. Cartheuser that her body would be used for scientific study, be tracked while in the custody of UCI, and that her remains would be returned to the family after about two years. As evidence that Ms. Cartheuser understood her remains would be returned to her family is the fact that she requested that her ashes be placed next to her mother’s grave.” The foregoing is apparently a reference to Cartheuser’s journal entry approximately one month before she executed the donation agreement, which states: “Please crimate [sic]me and put my ashes in my mother[’]s [crypt] with her at Melrose abbey.”
The foregoing journal entry is insufficient to create a triable issue of fact that UCI made any material misrepresentations to Cartheuser. That Cartheuser donated her body to the WBP just over a month after she expressed a desire to have her ashes placed in her mother’s crypt could have been the result of a UCI misrepresentation, but it could as easily have reflected her change of mind or her confusion about the donation agreement through no fault of UCI.
True, we are required to draw all reasonable inferences from the evidence in favor of the party opposing summary judgment, but the conclusion drawn by the Vanderpools is based on speculation. “[T]o constitute an inference, the conclusion must to some degree reasonably and logically follow from the preliminary facts. If, upon proof of the preliminary facts, the conclusion is mere guesswork, then we refer to it by such words as speculation, conjecture, surmise, suspicion, and the like; and it cannot rise to the dignity of an inference.” (People v. Massie (2006) 142 Cal.App.4th 365, 374.) Thus, “‘[a] finding of fact must be an inference drawn from evidence rather than on a mere speculation as to probabilities without evidence . . . .’” (California. Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 45.) Here, Cartheuser’s journal entry simply does not support an inference that UCI misrepresented Cartheuser’s rights to control the disposition of her remains. Accordingly, we conclude the Vanderpools failed to produce evidence sufficient to raise a triable issue of fact that UCI made a misrepresentation of fact to Cartheuser. The trial court thus properly rejected their claims for negligent misrepresentation and fraud.
III
Disposition
The judgment is affirmed. The Regents are entitled to their costs of this appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.