Filed 7/14/20 Varela v. Corona Cemetery Assn. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

LOLA VARELA et al.,

Plaintiffs and Appellants,

v.

CORONA CEMETERY ASSOCIATION,

Defendant and Respondent.

E071960

(Super.Ct.No. RIC1504822)

OPINION

APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, Judge. Affirmed.

Law Offices of Scott E. Schutzman and Scott E. Schutzman and Amador L. Corona for Plaintiffs and Appellants.

Law Offices of Jesse D. Marr and Jesse D. Marr for Defendant and Respondent.

INTRODUCTION

Lola Varela, Diane M. Rosales, William Cervantes, Lupe C. Solorio, John Cervantes, Richard E. Becerra, Eva R. Mejia, Art Mejia, Elizabeth Mory, Joseph Vega, Alice T. Brown, John Angel Delgado, and Manuel Escobar (plaintiffs), sued Corona Cemetery Association (CCA), defendant, for breach of contract, breach of good faith and fair dealing, negligence, fraud by concealment, violation of Business and Professions Code section 17200, and declaratory relief and imposition of a constructive trust. Plaintiffs contended that CCA resold the land on which their relatives were buried to the Islamic Society of Corona Norco (ISCN). Defendant moved for summary judgment, which was granted. Plaintiffs appealed.

On appeal, plaintiffs argue there is a triable issue of material fact as to whether defendant was negligent in selling the land in which plaintiffs’ decedents were interred. We affirm.

BACKGROUND

Between 1918 and 1941, plaintiffs’ relative decedents were buried in Potter’s Field, an area in the lower portion of the cemetery owned by defendant. Plaintiffs’ relative decedents, with the exception of Arnulfo Felix’s relative decedent, were buried to the left of the pepper tree at Potter’s field from the perspective of Circle City Drive. In May 2014, defendant sold 200 burial plots within a section of Potter’s Field with an option to purchase 200 more burial plots in the future to the ISCN.

By June 2017, ISCN had used 47 of the burial plots initially purchased in Potter’s Field but exercised its options under the 2014 contract and traded in the rest of the burial plots in Potter’s Field for plots in the upper section of the cemetery and purchased 200 more plots in that same upper section, known as Islamic section II. At some point in time, there was minimal grading done to the lower portion of the cemetery which included Potter’s Field. The grading consisted of pulling out the weeds in the lower portion of the cemetery. Plaintiffs contended defendant regraded the whole area and removed crosses to the left and right of the pepper tree.

In April 2015, plaintiffs sued defendant for breach of contract, breach of good faith and fair dealing, negligence, fraud by concealment, violation of Business and Professions Code section 17200, and declaratory relief and imposition of a constructive trust. Initially, plaintiffs’ lawsuit began as a proposed class action lawsuit, but the trial court denied class certification in January 2018. In the course of that ruling, the trial court acknowledged plaintiffs’ contention that defendant regraded Potter’s Field, specifically the land where their decedents were buried, and systematically removed their decedents’ grave markers, crosses, and headstones to resell the land to ISCN. Plaintiffs had contended that in doing so, defendant sold ISCN burial plots on land that was already occupied. However, in the course of the ruling on class certification, the trial court expressly concluded that none of plaintiffs’ decedents were buried in the section sold to ISCN.

Subsequently, CCA moved for summary judgment in 2018. According to the evidence presented in the summary judgment motion, while defendant sold plots to ISCN within Potter’s Field it did not sell plots in the same section where plaintiffs’ decedents are buried. CCA presented evidence that from the perspective of City Circle Drive, plaintiffs’ decedents are buried to the left of the pepper tree on Potter’s Field and the plots sold to ISCN are to the right of that pepper tree.

Further, the only evidence of a grave marker being removed related to the removal of plaintiff Mejia’s decedent’s decayed cross. The cross had been found leaning against a tree and defendant removed the damaged cross, placed it in storage and attempted to contact the decedent’s family members regarding the cross. Although defendant had removed the grave marker, plaintiff’s own expert, Mark Peterson, stated defendant was right to do so. Plaintiffs opposed the summary judgment motion, arguing that the cemetery records on which CCA relied in arguing that the grave sites sold were not in the section in which plaintiffs’ decedents were buried were inaccurate.

In October 2018, the trial court held a hearing on the summary judgment motion, and granted the motion as to all plaintiffs, who now appeal. In its ruling, the trial court made certain findings: First, the court found CCA did not remove the grave markers of any of the plaintiffs’ decedents, and that there was no evidence CCA removed the grave marker of plaintiff Eva Mejia’s relative or that CCA did anything but preserve the marker and attempt to contact relatives. After all, plaintiff’s expert, Mark Peterson, conceded that defendant “did the right thing” when they removed the decaying cross and placed it in a shed to protect it from further erosion and damage and attempted to contact family members. The trial court went on to find that “the evidence reflects that plaintiffs’ decedents were buried in gravesites outside of the area of the cemetery where 47 burials occurred in the Islamic section.” Thus, defendant “did not allow burials in the same location as plaintiffs’ decedents.”

Plaintiffs appealed.

DISCUSSION

A. General Principles and Standard of Review Relating to Summary Judgment
B.
A trial court properly grants a motion for summary judgment where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Once a moving defendant has shown that “one or more elements to the cause of action, even if not separately pleaded, cannot be established,” the burden shifts to the plaintiff to show a triable issue. (Id. at subd. (p)(2).) In showing a triable issue of fact, a plaintiff “shall not rely upon the allegations or denials of its pleadings,” but must point to “specific facts showing that a triable issue of material fact exists.” (Ibid.)

On appeal, we review the trial court’s grant of summary judgment de novo, “liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party.” (Ennabe v. Manosa (2014) 58 Cal.4th 697, 705.) In reviewing the motion, “‘we apply the traditional three-step analysis used by the trial court, that is, we (1) identify the pleaded issues, (2) determine if the defense has negated an element of plaintiff’s case or established a complete defense, and if and only if so, (3) determine if the plaintiff raised a triable issue of material fact.’ [Citation.]” (Leber v. DKD of Davis, Inc. (2015) 237 Cal.App.4th 402, 405-406.) We review the ruling, not the rationale; therefore, the trial court’s reasons for granting summary judgment are not binding on us. (Gramercy Investment Trust v. Lakemont Homes Nevada, Inc. (2011) 198 Cal.App.4th 903, 909.)

C. Trial Court Properly Granted Summary Judgment Because There Is No Triable Issue of Material Fact as to Plaintiffs’ Cause of Action for Negligence
D.
Plaintiffs contend that defendant failed to meet its burden of proof, that there is no triable issue of fact, and that the order granting the motion for summary judgment was improper because there is a triable issue of material fact as to plaintiffs’ negligence cause of action. We disagree.

First, a defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the [plaintiff’s] cause of action . . . cannot be established.” (Code Civ. Proc. §437c, subd. (p)(2).) At that point, the burden shifts to plaintiff show that a triable issue of one or more material facts exists as to that cause of action. (Ibid.) In this case, the trial court granted summary judgment because the defendant had produced evidence showing that the gravesites sold were not in the area where plaintiffs’ decedents were buried, thereby finding defendant met that burden. At that point, the burden shifted to plaintiff to introduce evidence contradicting the defense. On review, we examine the record to determine whether there is sufficient evidence to support the ruling and whether there exists a triable issue of material fact, for that determines whether defendant met its burden or not.

Addressing the question of whether there is a triable issue of material fact as to the negligence claim, liability under a negligence theory requires plaintiff prove duty, breach, causation, and damages. (Conroy v. Regents of the University of California (2009) 45 Cal.4th 1244, 1250.) “‘The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide.’ [Citation.]” (McGarry v. Sax (2008) 158 Cal.App.4th 983, 994.) However, breach of duty and causation are usually questions of fact for the trier of fact’s determination. (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 83.)

In evaluating whether causation exists in negligence suits for the mistreatment of a relative decedent’s remains, “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. . . . [A]n allegation that a plaintiff suffered emotional distress on learning of that pattern of misconduct does not allege injury caused by a breach of a duty owed to the plaintiffs.” (Christensen v. Superior Court (1991) 54 Cal.3d 865, 901.) “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.) Instead, decisional authority requires a “‘well-founded substantial certainty that [plaintiff’s] decedent’s remains were among those reportedly mistreated.” (Conroy v. Regents of the University of California, supra, 45 Cal.4th at p. 1251.)

Here, plaintiffs first contend that defendant was negligent in the treatment of their decedents by reselling the land on which their decedents were buried to ISCN. However, plaintiffs never established that the graves of their relatives were actually in the section that was sold to ISCN. Focusing its attention on the element of breach of duty, the trial court independently found that CCA did not allow the burials in the same location of the cemetery as plaintiffs’ decedents and that “the evidence reflects that plaintiffs’ decedents were buried in gravesites outside the area of the cemetery where 47 burials occurred in the Islamic section.” Having found no breach of duty, assuming there was one, the trial court properly concluded there was no triable issue of material fact.

Plaintiffs also argued that defendant breached its duty, thereby establishing negligence, by removing the grave markers of plaintiff Eva Mejia’s decedent’s grave. Plaintiff Eva Mejia’s decedent’s grave marker was the only one that was out of place and there is no evidence of defendant removing it. However, the evidence showed that defendant found the decaying grave marker leaning against a tree and then moved it into storage and attempted to contact the decedent’s relatives to inform them of the grave marker’s condition, an act which even plaintiffs’ own expert considered appropriate. Thus, the trial court determined that there was no evidence that defendant removed the marker. Therefore, no triable issue of material fact exists under this theory of negligence, either.

Plaintiffs also attempted to make a negligence claim under the theory that plaintiffs suffered emotional distress by learning that there was an option for ISCN to purchase more graves in the Potter’s Field area. However, plaintiffs did not present any evidence to support an inference that any plaintiff suffered emotional distress and the trial court determined the evidence proved plaintiffs’ decedents were not affected by the sale to ISCN. Hence, plaintiffs cannot prove their decedents’ remains were mistreated with “well-founded substantial certainty.” (See Conroy v. Regents of the University of California, supra, 45 Cal.4th at p. 1250.) There is no triable issue of material fact before the court and summary judgment was properly granted.

E. The Trial Court Properly Granted Summary Judgement on Plaintiffs’ Business and Professions Code Section 17200 Cause of Action
F.
Plaintiffs also claim, in their introduction and argument summary but not in the argument itself, that there is a triable issue of material fact regarding their Business and Professions Code section 17200 cause of action. Although the issue was forfeited by failing to develop it (see, Okorie v. LA Unified School Dist. (2017) 14 Cal.App.5th 574, 600; see also Wall Street Network, Ltd. v New York Times Co. (2008) 164 Cal.App.4th 1171, 1177 [failure to argue contentions in briefs following summary adjudication]), we address its merits anyway. We disagree.

“[U]nfair competition shall mean any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising . . .” (Bus. & Prof. Code § 17200.) For private parties to establish standing under the Unfair Competition Law the private party must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that economic injury was the result of, i.e., caused by the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310. 322.)

Here, plaintiffs claim it was an unfair business practice for defendant to sell ISCN burial plots where plaintiffs’ decedents were buried. Plaintiffs, however, were not a party to that transaction. Given that plaintiffs were not parties to the transaction between ISCN and defendant, plaintiffs cannot establish an economic injury, which deprives plaintiffs of the required standing to bring such a claim. (See Kwikset Corp. v. Superior Court, supra, 51 Cal.4th at p. 322.) Since plaintiffs have no standing, even if there had been evidence that the plots sold were those where plaintiffs’ decedents were interred, there is no triable issue of material fact as to whether there was any unfair business practice vis-à-vis the named plaintiffs.

Moreover, as to any deceptive business practice, the sale of gravesites was a transaction between defendant and the ISCN, so any redress for an alleged failure to disclose that the sale involved occupied gravesites inures to the ISCN only. Plaintiffs have no standing to appeal on this issue as they are not an aggrieved party because they were not a party to the sale of the land by defendant. (Code Civ. Proc., § 902.)

The trial court correctly determined that there was no triable issue of material fact and properly granted summary judgment in favor of defendant.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MILLER

J.