HOLY CROSS MORTUARY OF CULVER CITY CALIFORNIA INC v. CRISTOBAL GARAU (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

This appeal arises out of a dispute between two brothers, Carlos Garau (Carlos) and Cristobal Garau (Cristobal),¹ over control of their deceased mother's (the decedent) remains.   Caught in the middle of this dispute, Holy Cross Mortuary of Culver City, California, Inc. (Holy Cross) brought a petition pursuant to Health and Safety Code section 7105, subdivision (c),² seeking an order determining whether Carlos or Cristobal had the right to control the decedent's remains.   The trial court issued an order granting Holy Cross's petition and appointed Cristobal “as the person authorized to make all decisions regarding interment.”   Carlos appeals.   He raises a host of arguments, all of which lack merit.   Accordingly, we affirm the trial court's order.

FACTUAL AND PROCEDURAL BACKGROUND

The Decedent's Wishes

On January 14, 2010, the decedent died.   Prior to her death, the decedent discussed with Cristobal her wish to be buried at a Catholic cemetery.   She was a practicing Catholic and has expressed her desire to have an “old fashion” funeral with a Holy Mass in Latin.   She had visited Holy Cross and expressed her desire to be buried there.

On the day of their mother's passing, Cristobal telephoned his brother Carlos twice, leaving a message on his mobile phone that their mother had passed away.   Carlos returned the call three days later, on January 17, 2010, leaving a voicemail message informing Cristobal that he was out of town on a hunting trip.   He instructed Cristobal to proceed without him because he would not return from his trip until January 22, 2010.   Carlos and Cristobal exchanged several calls thereafter regarding the burial costs.   While Cristobal advised Carlos that funeral arrangements had been made at Holy Cross, at no time did Carlos express any objection.

Cristobal's Agreement with Holy Cross;  Carlos's Objection

Meanwhile, at some point, the decedent's remains were taken to Holy Cross, which was to arrange for her funeral services and interment.   Holy Cross is a funeral establishment licensed in California, with its place of business located in Culver City.

On or about February 5, 2010, Cristobal entered into a funeral arrangement agreement and statement of funeral goods and services selected (the funeral services agreement) with Holy Cross for the interment of the decedent.   The agreement provides, in relevant part:  “The parties hereto agree that any and all disputes, claims or controversies of any kind or character arising out of or relating to this agreement, any party's performance of this agreement or the goods and/or services provided pursuant to this agreement shall be resolved exclusively by binding arbitration.”  (Capitalization omitted.)

According to the terms of the funeral services agreement, interment was to occur on February 11, 2010.   On or about February 10, 2010, Olga Garau, Carlos's wife and attorney, wrote to Holy Cross, advising that she was representing his legal interests in this matter.   She demanded to inspect and obtain copies of all documentation concerning the decedent's funeral arrangements.   On February 11, 2010, the funeral and interment were halted, pending resolution of the dispute between Carlos and Cristobal over control of the disposition of the decedent's remains.

Holy Cross's Petition

On March 16, 2010, Holy Cross served a petition for order of interment pursuant to section 7105, subdivision (c) in order to determine the right of either Cristobal or Carlos to control the disposition of the decedent's remains and seeking an order of the court to direct that person to make interment of the remains.   The petition was served by mail on Ms. Garau and on Carlos.   Three days later, Holy Cross filed the petition in Los Angeles Superior Court (West District), in Santa Monica.

The hearing on Holy Cross's petition was set for April 22, 2010.

Carlos's Motion to Quash Service and Service of Discovery

On March 30, 2010, Carlos filed and served a motion to quash service by mail and dismiss the petition on the grounds that he had not been properly served.   The hearing on Carlos's motion was set for May 12, 2010.   Holy Cross requested that the trial court hear that motion at the same time as its petition;  Carlos objected, and the trial court denied Holy Cross's request.

On or about March 31, 2010, Carlos propounded numerous discovery requests on Holy Cross, including (1) a demand to inspect and photograph the decedent's body;  (2) a notice of records and testimony deposition of Holy Cross's custodian of records, with 53 categories of records identified, and (3) notices of depositions of several individuals who were purportedly Holy Cross employees.   Carlos also served Cristobal with a notice of deposition, directing him to produce 67 categories of documents at his deposition.

Hearing on Holy Cross's Petition

On April 22, 2010, Carlos filed objections to Holy Cross's petition with the trial court, alleging lack of personal jurisdiction, failure to provide notice to an indispensable party, and Holy Cross's lack of capacity to sue.

At the hearing on April 22, 2010, the trial court read and considered the petition and Carlos's objections.   It then continued the hearing to April 28, 2010.   Carlos was not present at the April 22, 2010, hearing.

On April 28, 2010, the trial court granted Holy Cross's petition and appointed Cristobal “as the person authorized to make all decisions regarding interment.”   While Carlos was not present at the April 28, 2010, hearing, he did file additional objections, asserting that the proper burial place for the decedent was at Forest Lawn Cemetery in Long Beach, where the decedent's husband, husband's parents, and husband's brother are buried.

Appeal

Carlos's timely appeal ensued.

DISCUSSION

I. Standard of review

The parties dispute the appropriate standard of review.   Carlos asserts that we review the trial court order de novo.   Cristobal and Holy Cross contend that we review the trial court order for abuse of discretion.

We conclude that the proper standard of review is abuse of discretion.   (Maffei v. Woodlawn Memorial Park (2005) 130 Cal.App.4th 119, 123 [holding that “the applicable standard of review from a trial court's decision under section 7526 is abuse of discretion”].)   That being said, to the extent we are called upon to interpret a statute, we do so de novo.  (Ho v. Hsieh (2010) 181 Cal.App.4th 337, 344.)   And, factual disputes resolved by the trial court are subject to substantial evidence review on appeal.  (In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 991, fn. 8.)

II. The trial court did not err in granting Holy Cross's petition and appointing Cristobal as the person authorized to make all decisions regarding interment

A. Holy Cross had the authority and standing to file the petition

Section 7105, subdivision (c), provides, in relevant part:  “If any persons listed in [paragraph] ․ 3 ․ of subdivision (a) of Section 7100 that would otherwise have equal rights to control the disposition and arrange for funeral goods and services fail to agree on disposition and funeral goods and services to be provided within seven days of the date on which the right and duty of disposition devolved upon the persons, a funeral establishment or a cemetery authority having possession of the remains, or any person who has equal right to control the disposition of the remains may file a petition in the superior court in the county in which the decedent resided at the time of his or her death, or in which the remains are located, naming as a party to the action those persons who would otherwise have equal rights to control the disposition and seeking an order of the court determining, as appropriate, who among those parties will have the control of disposition and to direct that person to make interment of the remains.” (§ 7105, subd. (c).)

Section 7100, subdivision (a)(3), indicates that the right to control a decedent's remains can vest in “[t]he sole surviving competent adult child of the decedent, or if there is more than one competent adult child of the decedent, the majority of the surviving competent adult children.” (§ 7100, subd. (a)(3).)

Pursuant to these statutes and because Carlos and Cristobal could not agree on the interment of the decedent's remains, Holy Cross properly filed its petition, naming Carlos and Cristobal as respondents.

Relying principally on inflammatory remarks and unfounded accusations against Cristobal and Holy Cross, Carlos urges us to reverse.   But his opening brief and, even worse, his unnecessarily lengthy reply brief, are confusing, lack adequate legal authority, and are missing record citations.   While we cannot consider evidence purportedly contained in the briefs (Westoil Terminals Co., Inc. v. Industrial Indemnity Co. (2003) 110 Cal.App.4th 139, 152), the appellate briefs confirm deep hostilities between Carlos and Cristobal, and the relationship between them is spoiled.   With that said, we set aside the rhetoric, ranting, and raving in an attempt to address each argument challenging the propriety of Holy Cross's petition.   We reject each in turn.

1. The arbitration agreement

Carlos argues that the trial court erred in granting Holy Cross's petition because the funeral services agreement contains an arbitration provision, precluding Holy Cross from instituting this litigation.   This argument fails for at least three reasons.   First, Carlos neglected to cite any legal authority in support of this argument.  (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)   Second, the funeral services agreement requires arbitration of any dispute arising out of or relating to that agreement.   The funeral services agreement is not at issue in this litigation.   Rather, this litigation arises out of a dispute between Cristobal, a party to the funeral services agreement, and Carlos, who is not a party to that agreement, regarding the interment of their mother's remains.   Third, section 7105, subdivision (c), provides that “a funeral establishment or a cemetery authority having possession of the remains ․ may file a petition in the superior court ․ seeking an order of the court determining, as appropriate, who among those parties will have the control of disposition and to direct that person to make interment of the remains.” (§ 7105, subd. (c), italics added.)

In sum, Cristobal's arbitration agreement with Holy Cross does not preclude this proceeding.

2. Business and Professions Code section 17918

Citing Business and Professions Code section 17918, Carlos argues that Holy Cross could not file the petition because it is not a licensed funeral establishment and does not hold a license to do funeral business in California.   He asserts that this action is prohibited because “ ‘Holy Cross Mortuary’ ․ is not a dba of ․ ‘Holy Cross Mortuary of Culver City, California, Inc.’ ” Setting aside the question of whether Holy Cross is operating under a proper fictitious business name, Carlos's argument lacks merit.

Business and Professions Code section 17918 provides, in relevant part:  “No person transacting business under a fictitious business name contrary to the provisions of this chapter, or his assignee, may maintain any action upon or on account of any contract made, or transaction had, in the fictitious business name in any court of this state until the fictitious business name statement has been executed, filed, and published.”   Because this action is not “upon or on account of any contract made, or transaction had,” this statute does not apply.  (Dennis v. Overholtzer (1960) 178 Cal.App.2d 766, 774 [because the transaction at issue was “outside of and apart from the fictitious entity” and the parties knew who they were dealing with, the statute did not bar the litigation], disapproved on other grounds in Ellis v. Mihelis (1963) 60 Cal.2d 206, 221;  see also Hydrotech Systems, Ltd. v. Oasis Waterpark (1991) 52 Cal.3d 988, 1001, fn.   8 [“Noncompliance [with Business and Professions Code section 17918] merely prevents a fictitiously named business from enforcing obligations owed to it until it places on record its true nature and ownership.   The object of [Business and Professions Code] section 17918 is simply to ensure that those who do business with persons operating under a fictitious name will know the true identities of “ ‘the individuals with whom they are dealing or to whom they are giving credit or becoming bound” ’ ”].)   Since Holy Cross is not suing on a contract and is neither extending nor seeking credit this statute does not apply.

Carlos attempts to refute this proposition by claiming that he “did not know whom to file his own petition against, because of [Holy Cross's] multiplicity of deceptive alter egos.”   We are utterly confused by this contention.   Did Carlos want to and attempt to file some sort of protective petition against Holy Cross?   Was he prevented from doing so because Holy Cross has multiple alter egos?   Assuming that Holy Cross operates under numerous alter egos, are those alter egos deceptive?   None of these questions is answered by Carlos, leaving us with no reason to adopt his reasoning and reverse the trial court order.

3. Holy Cross named all appropriate persons

Carlos asserts that Holy Cross's petition could not proceed because it failed to name all of the “persons who would otherwise have equal rights to control the disposition” of the decedent's remains, as required by section 7105, subdivision (c).  Specifically, Carlos claims that Holy Cross should have named his adult daughter in the petition or that Cristobal should have filed a cross-complaint including her in this litigation.   Carlos is mistaken.   Section 7100 sets forth an order of preference regarding the right to control the disposition of the remains of a deceased person. (§ 7100, subd. (a) [“The right to control the disposition of the remains of a deceased person, the location and conditions of interment, and arrangements for funeral goods and services to be provided, unless other directions have been given by the decedent ․ vests in ․ the following in the order named”].)   Where there are surviving children and no surviving spouse, other relatives have neither the right to control the disposition of the remains of a deceased person nor the duty of interment and liability therefore.  (Benbough Mortuary v. Barney (1961) 196 Cal.App.2d Supp. 861, 863-864.)   Since Carlos and Cristobal were the only surviving sons of the decedent and there was no surviving spouse, they were the only proper respondents to Holy Cross's petition; ³  no one was obligated to include Carlos's adult daughter in this litigation.⁴

In his reply brief, Carlos argues that Cristobal never should have been named in the petition.   According to Carlos, because Cristobal's competence is in “serious question” and his “sanity is reasonably in issue,” he is not a competent adult child of the decedent. (§ 7100, subd. (a)(3).)   This argument fails.   First, Carlos did not raise this argument below, thereby waiving it on appeal.  (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.)   Second, many alleged instances of his purported insanity are not supported by adequate record citations.  (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.)   Third, even if Carlos believes his brother is delusional, that does not mean Holy Cross should not have filed the petition and named Cristobal as a respondent.   There is no evidence that Holy Cross had any reason to believe that Cristobal was not a “competent” adult child of the decedent. (§ 7100, subd. (a)(3).)

4. Holy Cross properly filed the petition

Carlos argues that instead of seeking a court order, Holy Cross should have obtained a prior authorization of interment signed by both Carlos and Cristobal.   This makes no sense.   Holy Cross did not have a proper prior authorization from both Cristobal and Carlos, which is why it filed this petition seeking a court order regarding control over the decedent's remains.   If the brothers had reached an agreement, Holy Cross would not have needed to file this petition.

In a similar vein, Carlos asserts that Cristobal committed fraud ⁵ in connection with his signing of certain burial documents for Holy Cross.   This argument is irrelevant.   Regardless of whether Carlos fraudulently signed documents or not, Holy Cross saw itself caught in the middle of a bitter and macabre family dispute and sought the aid of our courts to resolve the disagreement.   That is exactly what section 7105, subdivision (c) is for.

5. Venue in Santa Monica

In light of our conclusion that the trial court properly granted Holy Cross's petition, the question of whether venue was proper in Santa Monica is moot as Carlos asks us to resolve the question of venue only if we remand.

B. Filing before service

Carlos contends that the petition should not have been granted because it was not properly served.   According to Carlos, there is no proper proof of service on file because (1) he was served by mail as opposed to personal service, and (2) the petition was served three days before it was filed.   He claims that this error deprived him “of the opportunity to present evidence in his favor and refute [Cristobal's] false allegations.”   We are not convinced.   Aside from the fact that Carlos offers no legal authority whatsoever to support his claims (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852), we see no connection between the allegedly improper service and how that prevented Carlos from entering a special appearance to challenge Holy Cross's petition.

Moreover, Carlos waived any objection.  “ ‘A general appearance by a party is equivalent to personal service of summons on such party.’  [Citation.]”  (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147.)   While Code of Civil Procedure section 1014 defines “[a]ppearance,” this statutory definition is not exclusive.  (Hamilton v. Asbestos Corp., supra, at p. 1147.)  “[A] general appearance need not be ‘ “a formal, technical step or act ․” ’ [citation];  rather the term may apply to various acts which, under all of the circumstances, are deemed to confer jurisdiction of the person.  [Citation.]”  (Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1397.)  “In general, propounding discovery constitutes a general appearance.”  (Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250.)

By propounding a host of discovery that was not limited to jurisdictional issues on both Holy Cross and Cristobal, Carlos entered a general appearance in this litigation.  (Factor Health Management v. Superior Court, supra, 132 Cal.App.4th at pp.   250-251.)

The fact that Carlos served his motion to quash before he served his discovery requests is irrelevant.   No legal authority is offered to support Carlos's novel proposition by serving a motion to quash first, a defendant has not submitted to the trial court's jurisdiction.

C. Public policy

Finally, public policy supports the trial court's order.  “[T]here is a well-established presumption against removing the remains of a deceased person, i.e., against disturbing ‘the repose of the dead.’ ”  (Maffei v. Woodlawn Memorial Park, supra, 130 Cal.App.4th at p. 125.)  “ ‘Despite the inconsistencies with which American cases on exhumation and removal of the remains are rife, to this extent they all agree in principle:  The normal treatment of a corpse, once it is decently buried is to let it lie.   This idea is so deeply woven into our legal and cultural fabric that it is commonplace to hear it spoken of as a ‘right’ of the dead and charge on the quick.'   [Citations.]  ‘[C]ourts are generally reluctant to order or sanction the removal of a body after interment, and it is the policy of the law that, except in cases of necessity or for laudable purposes, the sanctity of the grave should be maintained, and the body once suitably buried should remain undisturbed.’ ”  (Ibid.) That policy holds particularly true in this case given the decedent's indication before she passed away that she wanted to be buried at Holy Cross.⁶

Carlos asks us to set aside the presumption against removing the remains of the decedent in favor of his “laudable purpose,” namely his “desire to have his parents buried in as much physical proximity as possible.”   In other words, he is asking us to remove the decedent's remains from her current burial location and move them to a different cemetery because he wants his mother buried in the same cemetery as his father, even though there were no plots purchased together and there is no space next to Carlos and Cristobal's father for the decedent to be buried.   While we sympathize with what appears to be an agonizing situation for the family, we cannot conclude that Carlos's desire is a “laudable purpose” that justifies the exception to the general rule of not removing remains once they are buried.

D. Arguments first raised in reply brief

Carlos submitted a lengthy reply brief in response to Cristobal's and Holy Cross's respondent's briefs.   We will not consider the arguments first raised in his reply brief.  (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)

DISPOSITION

The order of the trial court is affirmed.   Holy Cross and Cristobal are entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1. For convenience, we refer to the brothers by their first names.   (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.).  FN1. For convenience, we refer to the brothers by their first names.   (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.)

FN2. All further statutory references are to the Health and Safety Code unless otherwise indicated..  FN2. All further statutory references are to the Health and Safety Code unless otherwise indicated.

FN3. In light of this conclusion, we need not address the parties' dispute as to whether this litigation constitutes an “action” or a “special proceeding.”.  FN3. In light of this conclusion, we need not address the parties' dispute as to whether this litigation constitutes an “action” or a “special proceeding.”

FN4. Certainly there was no legal obligation to include Carlos's daughter in this litigation just so that “her wishes might [be] taken into consideration.”.  FN4. Certainly there was no legal obligation to include Carlos's daughter in this litigation just so that “her wishes might [be] taken into consideration.”

FN5. In line with his belief that fraud is permeating this litigation, Carlos requested that we take judicial notice of an application and permit for disposition of human remains “to show the forgery of [Cristobal's] signature, evidencing even more fraud by [Holy Cross].”   We decline his request as irrelevant and unfounded..  FN5. In line with his belief that fraud is permeating this litigation, Carlos requested that we take judicial notice of an application and permit for disposition of human remains “to show the forgery of [Cristobal's] signature, evidencing even more fraud by [Holy Cross].”   We decline his request as irrelevant and unfounded.

FN6. Carlos objects to any mention of the decedent's verbal wishes on the grounds that pursuant to section 7100.1, only a decedent's wishes in writing may be considered.   Carlos overstates the import of the statutory language.   Section 7100.1, subdivision (a) provides that a “decedent, prior to death, may direct, in writing, the disposition of ․ her remains and specify funeral goods and services to be provided.” (§ 7100.1, subd. (a).)  We are not affirming the trial court order on the grounds based upon the decedent's directives.   Rather, we only point out the evidence of her wishes and consider it in conjunction with the other factors at play in this appeal..  FN6. Carlos objects to any mention of the decedent's verbal wishes on the grounds that pursuant to section 7100.1, only a decedent's wishes in writing may be considered.   Carlos overstates the import of the statutory language.   Section 7100.1, subdivision (a) provides that a “decedent, prior to death, may direct, in writing, the disposition of ․ her remains and specify funeral goods and services to be provided.” (§ 7100.1, subd. (a).)  We are not affirming the trial court order on the grounds based upon the decedent's directives.   Rather, we only point out the evidence of her wishes and consider it in conjunction with the other factors at play in this appeal.

_, P.J. _, J. BOREN CHAVEZ