Wilson v. Houston Funeral Home

• Decision Date: 22 February 1996
• Docket Number: No. B087323,B087323
• Citation: 50 Cal.Rptr.2d 169,42 Cal.App.4th 1124
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 1228, 96 Daily Journal D.A.R. 2064 Mavis WILSON, et al., Plaintiffs and Appellants, v. HOUSTON FUNERAL HOME, et al., Defendants and Respondents.

Page 169

50 Cal.Rptr.2d 169

42 Cal.App.4th 1124, 96 Cal. Daily Op. Serv. 1228,

96 Daily Journal D.A.R. 2064

Mavis WILSON, et al., Plaintiffs and Appellants, v. HOUSTON FUNERAL HOME, et al., Defendants and Respondents.

No. B087323.

Court of Appeal, Second District, Division 7, California.

Feb. 22, 1996.

[42 Cal.App.4th 1128] Edward M. Daley, Long Beach, for Plaintiffs and Appellants.

Ford, Walker, Haggerty & Behar and Maxine J. Lebowitz, Long Beach, for Defendants and Respondents.

JOHNSON, Associate Justice.

Plaintiffs are the wife, daughter and sister of Melvin Wilson, deceased. Defendants are the Houston Funeral Home and its director, Willie Houston (sometimes referred to collectively as "Houston.") Plaintiffs seek damages from Houston for breach of contract and fraud in connection with the burial service of Mr. Wilson. The trial court found plaintiffs' second amended complaint failed to state a cause of action and sustained Houston's demurrer without leave to amend. Plaintiffs appeal from the judgment of dismissal. We reverse and remand the matter to the trial court with directions to overrule the demurrers to the causes of action for breach of contract, breach of the covenant of good faith and fair dealing and fraud and to sustain the demurrers to the causes of action for unfair business practices and breach of fiduciary duty without leave to amend.

FACTS AND PROCEEDINGS BELOW

Construed in the light most favorable to plaintiffs, (Westinghouse Electric Corp. v. Newman & Holtzinger (1995) 39 Cal.App.4th 1194, 1199, 46 Cal.Rptr.2d 151), the second amended complaint alleges as follows:

Melvin Wilson died on September 18, 1991. Two days later plaintiffs entered into a contract with Houston under which Houston agreed to handle the funeral and burial services. Attached to the complaint is a written contract between Houston and Mavis Wilson the decedent's wife, providing for professional services, funeral home facilities, transportation, a casket and other items commonly associated with a funeral.

At the time the parties entered into the contract, Ms. Wilson showed Houston an insurance policy on Mr. Wilson and a check from a mortgage loan broker payable to her in the amount of $5,000. She was informed Houston did not foresee the necessity of any payment from her and the funeral and burial arrangements could be paid for out of the insurance policy. It was agreed Ms. Wilson would retain the $5,000 check and, should the need arise for Ms. Wilson to cash the check to pay for Houston's services, Houston would so inform Ms. Wilson and wait for payment until the check had cleared the bank.

The funeral service for Mr. Wilson was to be held in Los Angeles with burial the following day in Riverside. Houston conducted the funeral service as scheduled. On the day of the funeral, Houston asked Ms. Wilson if she still had the $5,000 check. She stated she did and that she had been informed it would take three days for the check to clear once it was deposited. Houston did not request any payment from Ms. Wilson at that time or request she deposit the check to make funds available.

On the day following the funeral, plaintiffs gathered at Ms. Wilson's home to await the arrival of Houston's limousine to take them to the burial service in Riverside. While they were waiting an employee of Houston called Ms. Wilson and again inquired if she still had the check. Ms. Wilson informed the caller she had the check and repeated that it would take three days for the check to clear the bank once it was deposited. The caller did not ask Ms. Wilson to deposit the check or to make any payment to Houston but informed her the limousine was on the way to take her to the cemetery in Riverside.

When the limousine arrived the plaintiffs got in believing they were going to Riverside for the burial service. The limousine, however, drove past the mortuary without stopping to join the hearse carrying the body. Plaintiffs asked the driver where they were going and he replied, "Willie Houston wants to see you." At this point plaintiffs became fearful and frightened because, despite their insistence they be taken to the mortuary, the driver refused to stop or turn around.

Eventually the limousine arrived at a bank where plaintiffs were met by Willie Houston. Houston asked Ms. Wilson if she had the check with her. She told him she did. Houston then shouted at Ms. Wilson: "Give me the check!" Ms. Wilson gave Houston the check and he told her to accompany him into the bank. Once in the bank, Houston went from teller to teller trying to persuade one to cash the check. When none would do so, Houston shouted in a voice loud enough to be heard by plaintiffs and the bank employees: "I want my money and I want it now! Ain't nobody going nowhere until I get paid." This statement caused plaintiffs to fear they might never be taken to the cemetery or allowed to bury the decedent.

Plaintiffs were detained at the bank, unable to leave, for 45 minutes to an hour while Willie Houston tried to cash Ms. Wilson's check. Finally, a bank employee agreed to allow Houston to cash or deposit the check if he purchased a cashier's check payable to Ms. Wilson for the amount in excess of the burial charges he claimed were due. Prior to this incident at the bank plaintiffs had never been told they had to negotiate the check or make any payment to Houston.

After leaving the bank, plaintiffs were driven to the mortuary where the casket, which they were told contained Mr. Wilson, was loaded into a hearse. Plaintiffs were refused permission to check to make sure Mr. Wilson's body was in the casket.

Burial services were eventually held that day for Mr. Wilson. However, on the way to and from Riverside the limousine driver drove in a reckless manner reaching speeds of approximately 90 mph, weaving in and out of traffic and tailgating all the while eating grapes and spitting the seeds out the window. Plaintiffs repeatedly asked the driver to slow down but he ignored them. Despite the 90-degree temperature, the driver also ignored plaintiffs' requests to roll up the window and turn on the air conditioning. The driver's conduct caused Ms. Wilson's daughter to hyperventilate and caused shock, fear and emotional distress to all the plaintiffs who remained hot, sweaty and frightened from Riverside to Los Angeles.

Plaintiffs filed their original complaint in this action on September 23, 1993. The second amended complaint, at issue here, claimed damages based on breach of written and oral contracts, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, fraud and unfair business practices. ¹ Houston demurred to the second amended complaint on the ground it failed to state any cause of action and moved to strike the portions of the complaint seeking an award for emotional distress and punitive damages. The trial court sustained the demurrer without leave to amend and ordered the action dismissed. The court did not rule on the motion to strike. Plaintiffs filed a timely appeal from the judgment of dismissal.

DISCUSSION

I. STANDARD OF REVIEW.

For purposes of this appeal we accept as true the properly pled factual allegations of the complaint. (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 746, 167 Cal.Rptr. 70, 614 P.2d 728.) Furthermore, the allegations of the complaint must be read in the light most favorable to the plaintiff and liberally construed with a view to attaining substantial justice among the parties. (Code Civ.Proc., § 452; King v. Central Bank (1977) 18 Cal.3d 840, 843, 135 Cal.Rptr. 771, 558 P.2d 857.) With these considerations in mind, we review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.

II. THE TRIAL COURT WAS NOT PREVENTED BY ITS OWN LOCAL RULES FROM HEARING AN UNTIMELY DEMURRER.

Plaintiffs contend the trial court should not have considered Houston's demurrer to the second amended complaint because it was untimely under rule 7.7 of the Los Angeles County Superior Court. Rule 7.7(a)(3) provides that where a demurrer has previously been sustained with leave to amend, as occurred in this case, the defendant has 20 days in which to respond to the amended pleading. Houston's demurrer to the second amended complaint was filed beyond the 20-day time limit.

Rule 7.7(c) provides that if a timely response is not filed, the plaintiff may request an order to show cause why sanctions should not be imposed. Plaintiffs did not request sanctions and the trial court is not required by rule 7.7 to issue an OSC on its own motion. Thus, the trial court did not err in hearing the demurrer. Furthermore, a contention the complaint fails to state a cause of action is never waived and could have been raised at a later stage in the proceedings such as by a motion for judgment on the pleadings or for summary judgment. Therefore, plaintiffs suffered no prejudice by the court's consideration of the demurrer even though it was filed beyond the time specified in the local rules.

III. THE COMPLAINT STATES A CAUSE OF ACTION FOR BREACH OF THE IMPLIED COVENANT TO PROVIDE AN APPROPRIATE AND DIGNIFIED BURIAL SERVICE.

A. California Recognizes an Implied Covenant to Provide an Appropriate and Dignified Burial Service.

In contending the complaint fails to state a cause of action for breach of contract, Houston relies on its written contract attached to the complaint which specifically provides Houston will transport the body and the family to Riverside for burial services. The complaint does not allege Houston failed to transport the family and the decedent's remains to the cemetery on the agreed upon date. Therefore, Houston concludes, plaintiffs have failed to allege a breach of contract.

We disagree with such a narrow view of the contract between a mortuary and the bereaved family of the deceased.

A contract for burial services involves more than just driving the...