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 p. 731; Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal. App. 3d 712, 728-730
[195 Cal. Rptr. 325].) However, the contract between appellant and respondent did not require exclusion of potential customers. Guests at funerals and burials do not seek to "obtain the services" of cemeteries. (Marina Point, Ltd. v. Wolfson, supra, at p. 738.) People attend funerals and burial services to grieve for the dead and to comfort the survivors. If their presence brings no comfort or worse brings only discomfort to family members, it is, ironically, the attendees who are interfering with the right of cemetery patrons to the services of the business establishment. Under Cox, a business may ask disruptive persons to leave the premises. Respondent would have us hold that an already bereaved family must not only suffer the indignity of intruders at their time of mourning, they must wait until the attendees "damage property, injure others, or otherwise disrupt . . . business" before the cemetery can ask them to leave. (In re Cox, supra, at p. 217.) The law cannot, and does not, demand this. Given the sensitive nature of the services offered by the cemetery, a policy permitting private funerals by which those who are not invited may not attend is a reasonable regulation "rationally related to the services performed." (Id.; see Marina Point, Ltd. v. Wolfson, supra, at pp. 741-743.)
Moreover, it is not clear from the pleadings that anyone had to be excluded from the premises. Appellant requested that the funeral and burial services be kept private. Respondent agreed to provide private services. Whether that required anyone's total exclusion from the business establishment during the services is a question of fact. It may be that respondent could have kept its end of the bargain not by exclusion but by temporarily limiting the areas open to the public.
We find that the complaint does express a duty to provide appellant with a private funeral. The duty is based on the oral contract between the parties by which respondent agreed to accommodate appellant by excluding uninvited guests. The fact that by its title the first cause of action purports to be in tort is of no consequence. "'[The] nature of an action and the issues involved are to be determined, not from the appellation given the pleading, but from the facts alleged and the relief that ...