Vasquez v. Co. of LA

Filed 9/25/07 Vasquez v. County of Los Angeles CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JUANA VASQUEZ et al.,
Plaintiffs and Appellants,
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
B192189
(Los Angeles County
Super. Ct. No. BC345589)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Paul Gutman, Judge. Affirmed.
Moreno & Perez, Hermez Moreno, Richard T. Copeland for Plaintiffs and
Appellants.
Lewis, Brisbois, Bisgaaard & Smith, Laura Inlow; Greines, Martin, Stein &
Richland, Martin Stein, Lillie Hsu and Carolyn Oill for Defendants and Respondents.
_______________

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Plaintiffs, the widow and children of Julio Olvera (decedent), appeal the dismissal
of their complaint against the defendant County of Los Angeles for negligent
mishandling of a corpse and negligent supervision of its employees. Plaintiffs alleged
that the County Coroner's office failed to preserve and/or protect the decedent's body
from decay as mandated by Health and Safety Code sections 7100 et seq. The trial court
found that the cited statutes do not create the mandatory duty alleged by plaintiffs, and so
sustained the County's demurrer to the complaint. In addition to appealing that ruling,
plaintiffs request leave to amend their complaint to state a cause of action against the
County for violation of their due process rights under 42 United States Code
section 1983. We affirm the judgment and deny plaintiffs' request for leave to amend.
FACTUAL AND PROCEDURAL BACKGROUND
The operative first amended complaint alleges that plaintiffs' elderly husband and
father suffered head injuries while on a walk on July 5, 2005. He was transported to Los
Angeles County/USC Medical Center, where he died two days later. Subsequently,
decedent's remains were delivered to the County Coroner's office, where they remained
until August 11, 2005.
The complaint alleges that the County was obligated "to take . . . measures to
preserve and/or protect DECEDENT's body from decay . . . ," citing Health and Safety
Code section 7100 et seq. as the source of this mandatory duty. The complaint further
alleges that the County failed to preserve decedent's body, such that "DECEDENT's body
decayed and decomposed to the point of being unrecognizable by his loved ones,
Plaintiffs herein . . . ." Additionally, plaintiffs allege that the County was negligent in
failing to adequately train its employees in the proper measures to prevent decomposition
and decay as occurred here.
The County demurred to the first amended complaint, arguing that the coroner had
no statutory duty to preserve the remains of plaintiffs' decedent in a recognizable

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condition, and that its employees had neither a statutory nor common law duty to do so.
The trial court agreed, and dismissed the complaint as to the County.1
DISCUSSION2
1. Coroner's mandatory duty
A public entity such as the County is not liable for an injury arising out of a
negligent act or omission except as provided by statute. (Gov. Code, § 815, subd. (a);
Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 896-897.)
Government Code section 815.6 provides that "[w]here a public entity is under a
mandatory duty imposed by an enactment that is designed to protect against the risk of a
particular kind of injury, the public entity is liable for an injury of that kind proximately
caused by its failure to discharge the duty unless the public entity establishes that it
exercised reasonable diligence to discharge the duty." As the court in Davila v. County of
Los Angeles (1996) 50 Cal.App.4th 137, 140, explained: "For liability to attach under
this statute, (1) there must be an enactment imposing a mandatory duty, (2) the enactment
must be intended to protect against the risk of the kind of injury suffered by the
individual asserting liability, and (3) the breach of the duty must be the cause of the
injury suffered."
1 The complaint also contained a cause of action against unnamed Doe defendants,
with whom we are not here concerned.
2 On appeal of a demurrer, we accept as true all well-pleaded facts of the
complaint, and determine whether the complaint states a cause of action as a matter of
law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

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Cognizant of these requirements, plaintiffs cite Health and Safety Code
section 7100 et seq.3 as the source of the mandatory duty underlying their lawsuit against
the County. Section 7100 identifies the person or persons responsible for disposition of a
deceased person's body, including "the location and conditions of interment, and
arrangements for funeral goods and services to be provided." (Health & Saf. Code,
§ 7100, subd. (a).) The person who has the duty to inter the body also has the right to
possess the body for that purpose. (Health & Saf. Code, § 7102.) While these statutes do
not explicitly mandate the preservation of a corpse by embalming or refrigeration,
3 Health and Safety Code section 7100 provides in pertinent part as follows:
"(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 pursuant to Section
7100.1, vests in, and the duty of disposition and the liability for the reasonable cost of
disposition of the remains devolves upon, the following in the order named:
"(1) An agent under a power of attorney for health care who has the right and duty
of disposition under Division 4.7 (commencing with Section 4600) of the Probate Code, .
. . [¶] . . . [¶]
"(2) The competent surviving spouse.
"(3) The 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. . . .
"[¶] [¶] . . .
"(d) The liability for the reasonable cost of final disposition devolves jointly and
severally upon all kin of the decedent in the same degree of kinship and upon the estate
of the decedent. . . .
"(e) This section shall be administered and construed to the end that the expressed
instructions of the decedent or the person entitled to control the disposition shall be
faithfully and promptly performed. . . ."
Health and Safety Code section 7102 provides: "When a person is charged by law
with the duty of interment he is entitled to the custody of the remains for the purpose of
interment or, with respect to cremated remains, for the purpose of burial at sea in
accordance with the provisions of this division; except that in any case where a coroner is
required by law to investigate the cause of death, the coroner is entitled to the custody of
the remains of the person whose death is the subject of investigation until the conclusion
of the autopsy or medical investigation by the coroner. Any person in whose possession
such remains are found, shall, upon demand by the coroner, surrender such remains to
him."

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plaintiffs argue that they implicitly impose on the County a duty to deliver remains to
next of kin in a condition which permits them to exercise their right to inter the body as
they see fit. Plaintiffs allege that they wished to bury their loved one's body, but that, as a
result of its negligence, the County delivered the body in a condition which precluded
burial, forcing them to choose cremation.
In support of their argument, plaintiffs cite Quesada v. Oak Hill Improvement Co.
(1989) 213 Cal.App.3d 596 for the proposition that a county has a duty to "properly
handle" a decedent's remains, and Davila v. County of Los Angeles, supra, 50
Cal.App.4th 137 for the proposition that that mandatory duty resides in Health and Safety
Code sections 7100 et seq. Both cases are distinguishable.
In Quesada, defendant County of Santa Clara delivered to defendant funeral home
a body other than the plaintiffs' decedent. The defendants ignored plaintiffs' protestations
that the body was not that of their loved one, and conducted the funeral service with the
stranger's body, burying it in the decedent's stead. Plaintiffs, the sister and niece of the
decedent, sued the county and funeral home for negligent infliction of emotional distress
arising out of defendants' mishandling of their decedent's remains. The bulk of the
appellate opinion concerned whether plaintiffs, who had not entered into a contractual
relationship and who did not have the right to control disposition of remains pursuant to
Health and Safety Code section 7100, were within the class of persons to whom a duty of
due care was owed under these factual circumstances. Although the Court of Appeal
found plaintiffs had stated a cause of action against the county for negligent mishandling
of a corpse, there was no discussion of the statutory basis of the county's mandatory duty.
Nevertheless, the court's implied conclusion – that a county's duty to deliver a corpse in
its custody to the persons having a right to dispose of it under Health and Safety Code
section 7100 encompasses the mandatory duty to deliver the right corpse to those
relatives – is assuredly correct. However, plaintiffs' complaint includes no allegation that
the County delivered the wrong body to them for interment, and thus Quesada has no
relevance to this case.

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Plaintiffs also rely on Davila v. County of Los Angeles, supra, 50 Cal.App.4th 137.
In Davila, plaintiffs were the children of a man found dead in a parked car. Even though
the decedent had on his person identification which included his son's home and work
telephone numbers, the county made no effort to notify plaintiffs and, after no one
contacted the coroner's office during the 30 days that it had custody of the body, the
coroner cremated the body pursuant to Health and Safety Code section 7104. Division
One of this District's Court of Appeal found on these facts that Government Code section
27471, subdivision (a)4 imposes on the coroner a mandatory duty to make a reasonable
attempt to locate a decedent's next of kin. The court concluded that the cited statutes
"impose upon the coroner a duty to act with reasonable diligence in attempting to identify
a body placed in his custody and then to attempt with reasonable diligence to locate some
family member." (Id. at p. 143.) Again, plaintiffs do not allege that the County failed to
exercise diligence in notifying them of its custody of their decedent's body.
Consequently, the holding of Davila has no application to the facts of this case.
Plaintiffs contend that a duty to preserve a corpse must be read into the statute in
order to protect the next of kin's rights to control the disposition of the remains of their
loved one. Otherwise, plaintiffs argue, the coroner "could store the bodies at an
unacceptable temperature thereby causing them to rot and decay at an accelerated rate,
and leaving the remains in an unrecognizable condition. This would result in family
members being divested of their right to control the disposition of their decedent's
remains and the condition of the interment, violating their clearly enumerated rights
under Health and Safety Code §§7100, et.seq."
On July 31, 2007, after completion of briefing on appeal, our colleagues in
Division Two of this District Court of Appeal filed its opinion in Perryman v. County of
Los Angeles (2007) 153 Cal.App.4th 1189 ("Perryman"). That court considered this
same argument, on somewhat different facts.
4 "Whenever the coroner takes custody of a dead body pursuant to law, he or she
shall make a reasonable attempt to locate the family."

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In Perryman, the plaintiffs' decedent was the victim of a drive-by shooting. The
body was transported to the County Coroner's Office, where it remained "unembalmed
and unrefrigerated for one week, resulting in substantial decomposition." (Perryman,
supra, 153 Cal.App.4th at p. 1194.) The decedent's next of kin sued the County for
negligence in its handling of the body. The Court of Appeal affirmed the trial court's
sustaining of the County's demurrer, ruling that "nothing in Health and Safety Code
section 7104 required that the coroner embalm or refrigerate decedent's remains, or that
the coroner take any measures to ensure that the remains stay intact. . . . Absent a
statutory requirement that the coroner maintain a corpse in an intact condition through
embalming or refrigeration, no claim can be asserted that the coroner failed to execute a
mandatory duty when it allowed decedent's remains to decompose." (Id. at p. 1197.) We
concur with the reasoning of Perryman, and conclude that the cited statutes do not create
the mandatory duty alleged by plaintiffs.
In short, unlike the plaintiffs in Quesada and Davila, supra, plaintiffs exercised
their right to control the disposition of their loved one's body as provided by Health and
Safety Code section 7100. While they chose to cremate the body rather than bury it on
account of the state of its decomposition by the time that they claimed it, the County
fulfilled its mandatory obligations under the Health and Safety Code. Indeed, the County
cannot be faulted for "causing" the body to decompose over a period of more than 30
days; nature is responsible for that unfortunate fact.
Plaintiffs also argue that, even if the County had no duty to preserve the decedent's
remains, they should be allowed to pursue a negligence cause of action against the
County "for the negligent acts of its employees in failing to properly house, store,
refrigerate and/or other wise care for DECEDENT'S remains pursuant to Government
Code §815.2." Plaintiffs cite no authority in support of this contention, and we therefore
deem it waived. (People v. Stanley (1995) 10 Cal.4th 764, 793 ["'[E]very brief should
contain a legal argument with citation of authorities on the points made. If none is
furnished on a particular point, the court may treat it as waived, and pass it without
consideration'"]; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [scope of appeal

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is limited to those issues adequately raised and supported in opening brief even where
review is de novo].) Even if we were to consider the contention, plaintiffs cannot state a
cause of action against the County based on vicarious liability. As the court in Perryman,
supra, noted, employees of the coroner's office do not have a common law duty "to treat
human remains in the same manner as would be expected of a mortuary or
crematory, . . ." (153 Cal.App.4th at p. 1199.) And because the decision to embalm or
not embalm is discretionary, and public employees are not liable for injuries resulting
from the exercise of discretion, "the coroner's employees are immune from liability."
(Ibid.)
2. Leave to amend
Citing the well-established rule that it is an abuse of discretion to sustain a
demurrer without leave to amend if the facts alleged show entitlement to relief under any
possible legal theory (see, e.g., Platt v. Coldwell Banker Residential Real Estate Services
(1990) 217 Cal.App.3d 1439, 1444), plaintiffs maintain the trial court erred in granting
the demurrer without leave to amend.
The amendment which plaintiffs propose on appeal would include a new theory of
liability, to wit: a civil rights cause of action against the County for violation of
section 1983 of 42 United States Code. As plaintiffs explain, they contend that, based on
the authority of Newman v. Sathyavaglswaran (9th Cir. 2002) 287 F.3d 786, they had a
property right in their decedent's remains, and were deprived of that property right when
the County, acting under the color of state law, "converted DECEDENT'S remains by
letting his body decompose to a point where it was unrecognizable."
Perryman, supra, 153 Cal.App.4th 1189 considered and rejected this precise
argument. As that court explained, in California there is no property right in a dead body.
(Id. at p. 1200.) Thus, the County can have no liability for depriving plaintiffs of their

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property under color of state law. (Id. at p. 1201.) Consequently, the trial court did not
err in failing to grant plaintiffs leave to amend their complaint.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, J.
We concur:
TURNER, P. J.
KRIEGLER, J.

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