California State Bd. of Funeral Directors and Embalmersv. Mortuary in Westminster Memorial Park

• Decision Date: 10 April 1969
• Citation: 271 Cal.App.2d 638,76 Cal.Rptr. 832
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIA STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS, Plaintiff and Appellant, v. MORTUARY IN WESTMINSTER MEMORIAL PARK, a corporation, and Westminster Memorial Park, a corporation, Defendants and Respondents. Civ. 9137.

Page 832

76 Cal.Rptr. 832

271 Cal.App.2d 638

CALIFORNIA STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS, Plaintiff and Appellant, v. MORTUARY IN WESTMINSTER MEMORIAL PARK, a corporation, and Westminster Memorial Park, a corporation, Defendants and Respondents.

Civ. 9137.

Court of Appeal, Fourth District, Division 1, California.

April 10, 1969.

[271 Cal.App.2d 639] Thomas C. Lynch, Atty. Gen., Warren H. Deering and Henry G. Ullerich, Deputy Attys. Gen., for plaintiff and appellant.

Wenke, Pilskaln, Kemble & Marx and William F. Wenke, Santa Ana, for defendant and respondent Mortuary in Westminster Memorial Park.

Clock, Waestman & Clock, Henry H. Clock, Long Beach and Abe Mutchnik, Los Angeles, for defendant and respondent Westminster Memorial Park.

OPINION

AULT, Associated Justice pro tem. ^*

This action was brought by the plaintiff, State Board of Funeral Directors and Embalmers, to enjoin the defendants, Mortuary In Westminster Memorial Park, a corporation (Mortuary), and Westminster Memorial Park, a corporation (Cemetery), from jointly engaging in allegedly false and misleading advertising in violation of Business and Professions Code, Sections 17500, 17505, 7617 and 7629. Defendants have separately answered the complaint and each has cross-complained for declaratory relief, requesting a judicial declaration that the specific advertisements referred to in the complaint are not in violation of the Business and Professions Code. After trial the court found and concluded the advertisements were not in violation of the code sections, refused to issue an injunction, and entered judgment accordingly. From this judgment plaintiff has appealed.

The two respondents are separately owned and operated corporations. The mortuary is licensed by the appellant Board, and the cemetery operates under a Certificate of Authority issued by the State Cemetery Board. The mortuary owns the land upon which its building is located in the City of Westminster, County of Orange. The mortuary property is completely surrounded by the property owned and operated by the cemetery. The building housing the administrative offices of the cemetery is adjacent to the mortuary building and the two are connected by a breezeway. One receptionist serves both respondents and they share the cost of her services. No contention is made that the two businesses are not operated separately; the objection is to their advertising.

In 1959 or 1960 respondents began to engage in joint advertising. The specific ads to which the complaint is addressed are:

a. In the yellow pages of the classified telephone directory for Orange County:

'WESTMINSTER MEMORIAL PARK Undertaking & Cemetery TOGETHER'

b. Sign posted near the entrance to the cemetery grounds:

'WESTMINSTER Memorial Park MORTUARY-CEMETERY'

c. Newspaper advertisement in Santa Ana Register:

'Everything in one Beautiful Place WESTMINSTER MEMORIAL PARK MORTUARY-CEMETERY'

The applicable sections of the Business and Professions Code read:

' § 17500. FALSE OR MISLEADING STATEMENTS. It is unlawful for any person, firm, corporation or association, or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated before the public in this State, in any newspaper or other publication, or any advertising devise, or by public outcry or proclamation, or in any other manner or means whatever, any statement concerning such real or personal property or services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, or for any such person, firm, or corporation to so make or disseminate or cause to be so made or disseminated any such statement as part of a plan or scheme with the intent not to sell such personal property or services, professional or otherwise, so advertised at the price stated therein, or as so advertised.'

' § 17505. STATEMENTS AS TO OWNERSHIP OR CONTROL; CHARACTER, EXTENT, VOLUME OR TYPE OF BUSINESS. No person shall state, in an advertisement of his goods, that he is a producer, manufacturer, processor, wholesaler, or importer, or that he owns or controls a factory or other source or supply of goods, when such is not the fact, and no person shall in any other manner misrepresent the character, extent, volume or type of his business.'

' § 7617. PLACE OF BUSINESS; NECESSITY OF LICENSE. The business of a funeral director shall be conducted and engaged in at a fixed place or establishment.

'No person, partnership, association, corporation or other organization, shall open or maintain a place or establishment at which to engage in or conduct, or hold himself or itself out as engaging in or conducting, the business of a funeral director without a license.'

' § 7629. MISLEADING NAMES; CHANGE OF NAME. No funeral establishment shall be conducted or held forth as being conducted or advertised as being conducted under any name which might tend to mislead the public or which would be sufficiently like the name of any other...