APPEAL from a judgment of the Superior Court of Los Angeles County, Emilie H. Elias, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC324007).
The opinion of the court was delivered by: Aldrich, J.
CERTIFIED FOR PUBLICATION
After her father died, plaintiff and appellant Mary L. Baudino (Baudino) obtained funeral goods and services from a mortuary. Thereafter, she filed this lawsuit against the mortuary alleging it did not abide by the Federal Trade Commission's "Funeral Rule," 16 Code of Federal Regulations parts 453.1 to 453.9 (2008), and specifically the "cash advance" provisions of that rule, 16 Code of Federal Regulations parts 453.1(b) and 453.3(f) (2008). After rulings on a motion for summary judgment and a demurrer, the trial court entered judgment against Baudino. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts are undisputed.
Baudino's father, Manuel Alcarez, passed away on February 7, 2000. On February 8, 2000, Baudino went to defendant and respondent Mirabal Mortuary (Mirabal), a funeral home. Baudino met with funeral counselor Jose Arizmendi.
At Baudino's request, Arizmendi arranged for an open-casket visitation and funeral mass at a Los Angeles church. Thereafter, Mr. Alcarez's remains were to be cremated, placed into a container, and released to Baudino.
Baudino agreed to pay Mirabal a total of $2,015.89 for goods, services, merchandise, and taxes. Baudino signed a contract, entitled "statement of funeral goods and services selected/purchase agreement." This contract identified all of the choices Baudino had made with regard to her father's funeral. The first page of this three-page agreement contained four sections: I -- funeral services and merchandise; funeral director and staff services; II -- charges to be incurred by us on your behalf; III -- other; and IV -- tax.
In addition to other goods and services, Baudino agreed to purchase from Mirabal the following four items which are the subject of this appeal: (1) $225 for embalming; (2) $125 for "other preparation"; (3) $225 for transferring remains to funeral home; and (4) $295 for casket/cremation, casket item No. 403559. The four items were delineated, along with other items, in section I of the contract.
It is undisputed that: (a) these four items were procured by Mirabal from third party vendors; (b) Mirabal charged Baudino more than the wholesale price it had paid for the items; and (c) Mirabal did not disclose these facts to Baudino. It is also undisputed that Mirabal did not say anything that caused Baudino to believe that the price she was charged for any goods or services identified in section I of the contract was the same price it had paid to the third party vendor. Additionally, Mirabal never described these items as "cash advances."
With regard to the four items in issue: (1) The $225 embalming services were obtained from Snyder Embalming Service; (2) The $125 "other preparation" reflected charges for services such as dressing, casketing, cosmetizing, and otherwise preparing Mr. Alcarez's remains for viewing at the funeral service. These "other preparation" services were performed by Snyder Embalming Service employees; (3) The $225 for transferring remains reflected transportation services for picking up Mr. Alvarez's remains from the hospital where he had died, and transporting them to Mirabal's service center for preparation and safekeeping. These transportation services, commonly referred to as "first call" services, were performed by East Accommodations, Inc.; and (4) The $295 casket was purchased at wholesale directly from Batesville Casket Company.
Snyder Embalming Service and East Accommodations, Inc. provide services only to the funeral industry and not to members of the general public.
Customers can purchase caskets from a number of sources other than from a licensed funeral establishment. However, Batesville Casket Company only directly sells its caskets to licensed funeral directors operating in licensed funeral establishments. Mirabal kept a model of the casket Baudino purchased in its show room. Baudino viewed the model prior to making her selection. Mirabal's price list that was given to Baudino included the price of the casket chosen by Baudino. Mirabal faxed an order to Batesville on February 8, 2002, after the arrangement meeting with Baudino concluded. Batesville typically delivers caskets to funeral homes the day after an order is received.
As agreed, Mirabal arranged for Mr. Alcarez's body to be transported by East Accommodations, Inc. from the hospital to Mirabal's service center where Snyder Embalming Service embalmed and prepared it for viewing.*fn1 Mirabal employees then transported the casketed remains to a Catholic church where a visitation and funeral mass were held on February 11, 2002. Following the service, Mirabal transported the remains to a crematory where the body was cremated. Thereafter, Mirabal transported the cremated remains back to the mortuary, where Baudino picked them up on March 3, 2002.
Baudino paid Mirabal $2,015.89, as had been agreed. Included within the charges were those items that had been delineated in section II of the contract, identified as "charges to be incurred by us on your behalf." The section II fees were $33 for certified copies of the death certificate, $100 for an honorarium paid to the clergy, and $7 for disposition permits. The charges to Baudino for these items were the same as Mirabal had paid.
1. The Complaint and Mirabal's Summary Judgment Motion
Baudino's original complaint was filed on November 3, 2004, for herself and on behalf of a class of similarly situated plaintiffs.*fn2 The operative complaint is the third amended complaint. It alleges three causes of action: breach of contract; restitution; and violation of the Unfair Practices Act (the UCL, Bus. & Prof. Code, § 17200 et seq.). The essence of the complaint is that Mirabal (defendant and respondent SCI California Funeral Services, Inc., a California corporation doing business as Mirabal Mortuary) violated the "cash advance" provisions of the Funeral Rule with regard to four items: (1) embalming; (2) other preparation; (3) first call transportation services; and (4) the casket. Baudino alleged that Mirabal violated the Funeral Rule by failing to disclose to her price markups on these items.
Mirabal filed a summary judgment motion contending it had complied with the Funeral Rule. Baudino filed a motion for summary adjudication asserting that the Funeral Rule obligated Mirabal to notify her that it had charged her a price higher than it had paid for the four items obtained from the third party vendors.
The trial court granted Mirabal's motion for summary judgment and denied Baudino's motion. Baudino appealed from the subsequently entered ...