2017-00216757-CU-NP

Michael Lester vs. Thompson Rose Chapel, Inc.

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Carruth, Michael W.

Defendants Thompson Rose Chapel, Inc.’s and Ladonna Olden’s motion for summary judgment, or in the alternative summary adjudication, is granted.

Standard of Review

The party moving for summary judgment always “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as amatter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 ), fn. omitted.) A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid., fn. omitted.) Defendants bear “the burden of persuasion that ‘one or more elements of’ the ’cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto. [Citation.]” (Ibid.)

The moving party “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) A judge may not grant summary judgment when any material factual issue is disputed. (O’Riordan v. Federal Kemper Life Assur. (2005) 36 Cal.4th 281, 289.) When a defendant moves for summary judgment against a plaintiff who ultimately bears the burden of proof at trial by a preponderance (as plaintiffs do in this case), the defendant “must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not-otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Id. at p. 851, fn. omitted.) California summary judgment law does not require a defendant moving for summary judgment “to conclusively negate an element of the plaintiff’s cause of action.” (Id. at p. 853, fn. omitted.) Rather, “all that the defendant need do is to ‘show[] that one or more elements of the cause of action . . . cannot be established’ by the plaintiff.

[Citation.]” (Ibid.) In other words, “if a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment.” (Id. at p. 855.)

“‘In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted, as well as those admitted and uncontested in the pleadings. [Citations.] The materiality of a disputed fact is measured by the pleadings (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252; 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 212, p. 650), which “set the boundaries of the issues to be resolved at summary judgment.” ( Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648; see generally Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 [“pleadings serve as the outer measure of materiality in a summary judgment proceeding”].) The court must consider all evidence set forth in the parties’ papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action, thereby entitling the moving party to judgment as a matter of law. [Citation.]’ [Citation.] ‘Summary judgment shall not be granted . . . based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.’ [Citations.]” (Elcome v. Chin (2003) 110 Cal.App.4th 310, 316.)

The court is obligated to 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.) “A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

Defendants’ request for judicial notice is granted.

Facts/Analysis

In this action Plaintiffs, who are the children of Randal Lester (“Decedent”) bring causes of action for negligence and breach of contract in connection with allegations that the Decedent’s body had a “strong and horrific” odor during an open air public funeral service and that Defendants did not properly manage and administer the service. After a series of demurrers, only the first and third causes of action for negligence and breach of contract remain in the Second Amended Complaint (“SAC”).

Defendants’ evidence shows that the Decedent passed away on August 21, 2015 at the UCD Medical Center. The Sacramento County Coroner’s Office performed an autopsy on the Decedent’s body. Jermaine Lester entered into a contract with Thompson Rose for funeral services. Ramonn Lester paid for the funeral services. Jacqueline Lester, Michael Lester Susan Moseley, and Debra Harris did not pay any consideration to Thompson Rose for the funeral services. Jermaine Lester planned his father’s funeral services with Thompson Rose employee Vanessa Griffin-Thomas. A private family service and a public funeral service were planned. The funeral services contract provided that the Decedent would have an open casket at both services which required that his remains be embalmed. LaDonna Olden embalmed the Decedent’s remains on August 27, 2016. Plaintiffs’ discovery responses admit that no agent or employee of Thompson Rose made any derogatory statement to them during the September 6, 2016 public funeral service. After the service, the Decedent’s remains were cremated pursuant to the terms of the funeral services contract.

First Cause of Action (Negligence)

Defendants’ motion is granted. The essential elements of a negligence cause of action are (1) duty, (2) breach, (3) causation, and (4) damages. (See Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 57.) It is a fundamental principle of tort law that one is liable for injuries caused by a failure to exercise reasonable care. Christensen v. Superior Court, (1991) 54 Cal. 3d 868, 887.

Defendants first argue that they undisputed evidence shows that they did not breach the applicable standard of care. In the Second Amended Complaint Plaintiffs allege that Defendants were negligent in embalming the Decedent’s remains as the remains emitted a “strong and horrific odor”. They also allege that Defendants were negligent in preparing the Decedent’s remains as the body appeared more “swollen” and the body was warm and he was wearing a dress hat in a Baptist church. Finally they allege that Defendants were negligent in the funeral administration and management in that a fly was seen near the casket, the lid was not totally closed prior to commencement of the services, Plaintiffs were rushed through while paying their respects and that someone was spraying air freshener during the services.

Defendants offer the expert declaration of Roger Lori who opines that Defendants acted within the standard of care as to their management and administration of funeral services and the handling of the Decedent’s remains. Mr. Lori has been involved in the funeral service industry since 1970 and is a licensed embalmer, licensed crematory manager/operator, and licensed cemetery salesperson. (Lori Decl. ¶ 2.) Mr. Lori has owned over 18 mortuaries, crematoriums and related business since 1975. He has embalmed over 20,000 human remains and cremated over 3,500 remains. (Id. ¶¶ 3-4.) Mr. Lori is a subject matter expert for the California Cemetery and Funeral Bureau and has assisted in writing state exams for embalmers, funeral directors, and crematory managers. He has been designated as an expert witness by the California Cemetery and Funeral Bureau and by the California Attorney General’s Office. He has been an expert witness in 30 to 40 cases. (Id. ¶¶ 6-7.)

Mr. Lori reviewed the subject pleadings in this case, the Mortuary Embalming Report

prepared by Ms. Olden, the declarations filed in support of the instant motion the coroner’s report, Plaintiffs’ deposition testimony and written discovery. Mr. Lori sets forth the relevant standard practice for embalming in the industry and indicates that the Mortuary Embalming Report noted that Ms. Olden saw skin slip which is a sign of decomposition which cannot be reversed, only slowed. ((Lori Decl. ¶¶ 10-20.) He opines that Defendant properly embalmed the Decedent’s body.

Mr. Lori also discusses handling the Decedent’s remains. He indicates that it is a common practice when handling a body to make cranial incisions to the skull and to place a dress hat on the body if the decedent is bald, as there is no other way to hide the cuts. (Id. ¶¶ 22-23.) If a body is starting to decompose, it is accepted practice in the industry to refrigerate the body between viewings which means that the body may be in slightly different positions at different viewings. It is also common practice, where, as here, there has been an autopsy and cranial incisions to place the body as low in the casket as possible. (Id. ¶¶ 23-24.) Mr. Lori further declares that it is standard practice to use professional lighting to enhance the cosmetic effect of a body but that most churches do not have such lighting. Mr. Lori opines that Defendants met the standard of care with respect to handling the Decedent’s remains. (id. ¶ 27.)

Finally Mr. Lori addresses the funeral service. He declares that it is standard practice for mortuary staff to use sprays such as fly sprays, air neutralizers, or air fresheners as they are often trying to combat odors from flowers, food, and body chemicals. (Id. ¶ 28.) He states that mortuary professionals who hold funeral services at a third party location such as a church have to also deal with natural environmental elements such as flies which necessitates use of fly spray. (Id. ¶ 29.) He states that it is a common practice to keep the casket’s lid propped open prior to the service to allow air to enter the remains and alleviate odor from cosmetics and embalming chemicals. Further he states that it is standard practice that when a funeral service is held at a church, that mortuary professionals must defer to church staff. (Id. ¶¶ 30-31.) Mr. Lori opines that Defendants properly managed and handled the funeral services and met the standard of care in the industry for a funeral director/administrator. (Id. ¶ 32.)

Defendants’ evidence is sufficient to demonstrate that they did not breach the standard of care in connection with embalming the Decedent, handling the Decedent’s remains, and administering the funeral services. The evidence is sufficient to shift to Plaintiffs the burden of demonstrating the existence of a triable issue of material fact.

Plaintiffs have failed to meet their burden. While Plaintiffs filed an opposition, they failed to present any evidence whatsoever. Indeed, their responsive separate statement in most cases fails to even respond to Defendants’ undisputed material facts. Where Plaintiffs do response they simply indicate “Inference disputed” but cite no evidence. Further in a few instances they respond “[l]acks foundation. Calls for legal conclusion. Fails to provide potential ‘best evidence’ (Documents contemporaneous to embalming). It appears that Plaintiffs were attempting to object to Mr. Lori’s declaration through this statement but they did not file any evidentiary objections and even if they had they would be overruled. Mr. Lori’s detailed declaration provides a more than sufficient basis for his opinion and it is not offering a legal conclusion but rather is attesting the applicable standard of care in the funeral service industry and opining that Defendants met that standard. The “best evidence” assertion has no merit.

Plaintiffs’ four page opposition memorandum simply argues that “[t]he negligence and breach of contract allegations may be and are rebutted by expert testimony.” To the extent that Plaintiffs suggest that Defendants are not able to rely upon expert testimony in this case they are wrong. “In negligence cases arising from the rendering of professional services, as a general rule the standard of care against which the professional’s acts are measured remains a matter peculiarly within the knowledge of experts. Only their testimony can prove it, unless the lay person’s common knowledge includes the conduct required by the particular circumstances.” ( Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284, 288 [citation omitted].) “By definition a funeral director is one who, inter alia, engaged in: ‘Preparing for the transportation or burial or disposal, or directing and supervising for transportation or burial or disposal of human bodies.’ (Bus. & Prof. Code § 7615.)” (Christenesen v. Superior Court (1991) 54 Cal.3d 868, 886, fn. 15.) “[T]he decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (People v. Cole (1956) 47 Cal.2d 99, 103.) The issue of whether Defendants complied with the standard of care in this specific context, specifically, with respect to embalming a body, handling remains and administering a funeral is sufficiently beyond the common experience of lay individuals and involves the rendering of professional services such that expert testimony is required. “When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.) Plaintiffs have submitted no evidence, much less a conflicting expert declaration.

Plaintiffs then argue that Mr. Lori does not address the allegations in the complaint because he does not address the allegation that Defendants were aware of the “strong and horrific odor” emanating from the remains and did not inform them or provide an option for a closed casket. The Court rejects this contention. Mr. Lori expressly declared that he reviewed all pleading and discovery and relevant documents, including the Embalming Report and the Coroner’s report and opined that Defendants met the applicable standard of care in embalming and handling the Decedent’s remains and administering the funeral. Plaintiffs’ argument that claiming Defendants’ conduct was within the standard of care raises the question of “exactly how bloated and rotten a corpse has to be before a funeral director has a duty to advise the family to have a closed casket” adds nothing to the analysis. Defendants’ expert declared that Defendants conduct met the standard of care and Plaintiffs offer no evidence whatsoever to dispute those opinions. Further, as seen from Defendants’ evidence, Plaintiffs contracted for an open casket and for a public funeral at a church where the services were actually handled by the pastor at the church and Defendants’ employees were in a purely secondary role. Mr. Lori opined that Defendants met the standard of care in this regard. Plaintiffs also argue that Mr. Lori did not address the allegations regarding using air fresheners in front of the casket during the service but again, Mr. Lori reviewed the complaint and specifically discussed air fresheners.

As a result, the Court concludes that Defendants have demonstrated that the met the applicable standard of care and that Plaintiffs failed to demonstrate the existence of a triable issue of material fact. Again, Plaintiff presented no evidence in opposition.

Defendants’ motion for summary adjudication as to the first cause of action for negligence is granted.

Given the above, the Court need not address Defendants’ additional argument that Plaintiffs cannot show causation because the Decedent’s body was cremated.

Third Cause of Action (Breach of Contract)

Defendants’ motion is granted. The elements of a breach of contract cause of action are: (1) the existence of a contract; (2) Plaintiff’s performance or excuse for nonperformance; (3) breach; and (4) that the breach caused Plaintiff’s harm. ( Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913.) Plaintiffs allege that Defendants breached the Funeral Services Agreement by failing to properly embalm the Decedent and perform the agreed upon services.

Defendants’ evidence shows that Defendants agreed to provide embalming, dress and casketing, rental of the chapel for family viewing and cremation. Defendants’ evidence shows that they provided the agreed upon services, and as already discussed above, that the services were provided in accordance with the relevant industry standards. Defendants’ evidence is sufficient to demonstrate that they are entitled to judgment as a matter of law on the breach of contract cause of action and sufficient to shift to Plaintiffs the burden of demonstrating the existence of a triable issue of material fact.

Plaintiffs have again failed to meet their burden. Again, Plaintiffs presented no evidence in opposition. Plaintiffs’ opposition arguments which were asserted equally to the negligence and breach of contract causes of action were addressed and rejected above. Plaintiffs’ citation to Christenesen, supra, 54 Cal.3d 868 does not assist them as that case only supports the ability of a family member who did not execute a funeral services contract to recover emotional distress damages for mishandling of a decedent’s remains. It has no bearing on the question of whether Defendants breached the contract at issue here and no evidence was presented to dispute Defendants’ showing that they did not.

As a result, the Court concludes that Defendants have demonstrated that they did not breach the Funeral Service Agreement and that Plaintiffs failed to demonstrate the existence of a triable issue of material fact.

Given the above, the Court need not address Defendants’ additional argument that Plaintiffs are not parties to the subject contract and that some of them paid no consideration.

As Defendants’ motions for summary adjudication were granted as to all remaining causes of action in the SAC, the motion for summary judgment is granted.

Defendants’ counsel shall submit an order pursuant to CRC 3.1312 and CCP § 437c (g).