Superior Court of Los Angeles County, No. C 21614B, Thomas C. Murphy, Judge.
Opinion by Ashby, J., with Feinerman, P. J., and Hastings, J., concurring.
Appellant Francine Ross appeals from the dismissal of her fourth amended complaint against respondent Forest Lawn following the granting of a demurrer without leave to amend. Appellant is attempting to establish respondent's liability for events surrounding the funeral and burial services of her 17-year-old daughter, Kristie.
We accept as true the following facts, as alleged in the complaint. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal. 3d 493, 496 [86 Cal. Rptr. 88, 468 P.2d 216].) Appellant and respondent entered into a contract whereby Kristie's funeral and burial would be handled by respondent, a corporation engaged in business as a cemetery.*fn1 At the time the arrangements were being made appellant advised respondent that she wanted the funeral and burial services to be private. Only family members and invited guests were to be permitted to attend. In particular, appellant requested that no "punk rockers" be allowed at the services. Kristie had been a punk rocker. Appellant was fearful that her daughter's former associates would disrupt the private services, and so advised respondent. Respondent agreed to use all reasonable efforts and means to comply with appellant's request.
Many punk rockers attended both the funeral services in the chapel and the gravesite burial services. Neither their appearance nor comportment was
in accord with traditional, solemn funeral ceremonies. Some were in white face makeup and black lipstick. Hair colors ranged from blues and greens to pinks and oranges. Some were dressed in leather and chains and twirled baton-like weapons, while yet another wore a dress decorated with live rats. The uninvited guests were drinking and using cocaine, and were physically and verbally abusive to family members and their guests. A disturbance ensued and grew to the point that police had to be called to restore order.
Later that day, in light of what took place at the burial, appellant became concerned that the punk rockers might return to the grave and vandalize or desecrate it. She requested respondent's agents to especially guard Kristie's grave, and they agreed to do so. Upon returning to the gravesite the next day, however, appellant discovered that the flowers and surface of the grave had been disturbed. Appellant then arranged to have Kristie's body moved to another, secret gravesite.
Appellant requested permission to hire someone to guard the original grave overnight until the body could be moved to the new grave. Respondent's agent first gave her the permission and then informed her that she could not have a private guard for the night.
The complaint alleges that respondent, after agreeing to exclude the punk rockers from the cemetery grounds during the services, negligently failed to do so. Respondent demurred on the ground that appellant failed to show a right or duty on the part of respondent to exclude these people from the premises during the funeral and burial. Respondent relies on the interpretation of the Unruh Civil Rights Act, Civil Code section 51,*fn2 found in Marina Point, Ltd. v. Wolfson (1982) 30 Cal. 3d 721 [180 Cal. Rptr. 496, 640 P.2d 115] and In re Cox (1970) 3 Cal. 3d 205 [90 Cal. Rptr. 24, 474 P.2d 992], for the position that it was prohibited by law from excluding anyone from the cemetery. These cases have been misread.
Cox held that "the Civil Rights Act forbids a business establishment generally open to the public from arbitrarily excluding a prospective customer." (In re Cox, supra, at p. 217.) No argument is made that respondent is not a "business establishment," understandably so, given the broad parameters of that phrase. (See Marina Point, Ltd. v. Wolfson, supra, at ...