Conservatorship of Frazier
Filed 6/28/12 Conservatorship of Frazier CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
Conservatorship of the Person
and Estate of THELMA LOUISE FRAZIER.
H037162
(Santa Clara
County
Super. Ct.
No. CV122604)
DONALD MOODY,
Plaintiff,
Cross-defendant and Respondent,
v.
PHILLIP H. FRAZIER,
Defendant,
Cross-complainant and Appellant.
Phillip H.
Frazier sued Donald Moody as Public Guardian of the County
of Santa Clara for interference
with the disposition of his mother’s remains and other causes of action related
to his mother’s death arising from Moody’s role as his mother’s
conservator. The trial court sustained
Moody’s demurrer to the third amended
complaint without leave to amend and dismissed the action. Frazier appeals from the judgment and
contends that he stated four causes of action.
scope of review
We review an order sustaining a
general demurrer under well-established principles. The appeal presents the question of law
whether the complaint, liberally construed, contains facts sufficient to
entitle plaintiff to any relief. We
assume the truth of all material facts properly pleaded in the complaint unless
they are contradicted by facts judicially noticed, but no such credit is given
to pleaded contentions or legal conclusions.
(Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764,
768-769.)
first cause of action
Moody was the conservator of
Frazier’s mother, Thelma Louise Frazier.
Thelma Louise died at O’Connor Hospital on Saturday, May 23, 2009, Memorial Day weekend. O’Connor placed the body in the hospital
morgue. On Tuesday, May 26, O’Connor
informed Moody that Thelma Louise had died and was in the morgue. Thelma Louise had three surviving children
and left a will naming Frazier as executor.
The will stated: “I direct all my
just debts and funeral expenses be paid as soon as possible after my death,
with the EXECUTOR to finalize such debts and funeral expenses.”
about the disposition of the remains and funeral arrangements. On May 28, Frazier spoke with his sister,
Dolores Jean Cross-Douglas, and the two agreed on “an open casket viewing,
funeral, burial and Catholic Mass.” On May 28, Frazier discovered that his
brother, Carl Frazier, had learned of the death and arranged for an acceptable
funeral package. On May 28, Frazier
informed Moody that he would take custody of the remains and place them for
funeral care at Lima Family Mortuary. On
June 2, Frazier gave the hospital his identification and a copy of the will. The hospital agreed to release the body to
Frazier, but Frazier had become ill and left San Jose
for his home in San Diego before he
could complete the hospital’s paperwork, which included Moody’s consent. Moody, however, believed that the siblings had
not spoken to each other and had no agreement as to how Thelma Louise should be
buried or interred. He refused to
consent
and, on or about June 24, filed an ex parte petition within the conservatorship
proceeding in the probate department seeking instructions on the disposition of
the remains.
title="">[4] The petition explained: “It has been reported by O’Connor Hospital
that the three siblings have not been able to come to an agreement as to how
their mother should be buried or interred.
[Moody] does not believe that any of the three children have spoken to
the other children to try and resolve this issue.”
executor did not provide written directions on how to dispose of the remains
and what funeral goods and services were to be provided. It informed that Carl had received an
estimate from Cedar Lawn
Memorial Park (burial for
approximately $4,200 and cremation for approximately $904) and Moody had
received estimates from Lima Family Mortuary (cremation for approximately
$2,695) and Chapel of Flowers (cremation for approximately $1,303). It estimated that the estate had
approximately $4,700 in two accounts. It
asked for an order that Moody control disposition of the remains and contract
and pay for cremation services.
Frazier, Carl, Dolores (by speaker
phone), Moody, and O’Connor Hospital appeared at a hearing on the
petition. The siblings agreed on certain
disposition particulars and the court so ordered. The order specifically recites: “The Court accepts the agreement of
Conservatee’s children . . . and orders that Conservatee shall be buried in the
grave of her deceased husband at Cedar
Lawn Memorial Park.”
exceed the amount contributed by the estate be split between Frazier and Carl.
Frazier claims that Moody is
tortiously liable for interfering with his paramount right to dispose and inter
his mother’s body. He alleges that
Moody’s actions caused a delay that allowed the body to decompose and prevent
an open casket viewing and timely funeral.
He specifically pleads that “[Moody] refused to allow Frazier to take
control of his Late Mother’s remains, and disposition of his Late Mother’s
Remains although the legal department at O’Connor was prepared to release her remains
to Frazier.”
Frazier grounds his claim on
control the disposition of the remains of a deceased person, the location and
conditions of interment, and arrangements for funeral goods and services to be
provided unless other directions have been given by the decedent pursuant to
Section 7100.1,[
name="_ftnref8" title="">[8]]
vests in . . . the following in the order named: [¶] (1) An agent under a power of attorney
for health care . . . [¶] (2) The competent surviving spouse. [¶] (3) The sole
surviving competent adult child of the decedent or, if there is more than one
competent adult child of the decedent, the majority of the surviving competent
adult children. . . . [¶] (4) The surviving competent parent or parents of the
decedent. . . . [¶] (5) The sole surviving competent adult sibling of the
decedent . . . . (6) [¶] [The next of kin]. [¶] (7) A conservator of the person
. . . . [¶] (8) A conservator of the estate . . . . [¶] (9) The public administrator
when the deceased has sufficient assets.”
It is true that the right of
disposition includes the right to be free from interference with the exercise
of that right and courts of law will recognize and protect that right. (Sinai
Temple v. Kaplan (1976) 54 Cal.App.3d 1103, 1111; Ross v. Forest Lawn Memorial Park (1984) 153 Cal.App.3d 988,
994.) “In California, actions for
damages based on interference with the right to dispose have arisen in
situations in which the body has been mishandled (Allen v. Jones (1980)
104 Cal.App.3d 207), negligently prepared or preserved by the cemetery
authorities (Chelini v. Nieri (1948) 32 Cal.2d 480), or even buried
according to procedures which contravene the beliefs of the party who has the
right to dispose (Sinai Temple v. Kaplan, supra, 54 Cal.App.3d at p.
1112).” (Ross v. Forest Lawn Memorial Park, supra, 153 Cal.App.3d at p. 994, fn. 4.) In short, the holder of the statutory right
to control disposition of the body, “ ‘while not in the full proprietary sense
“owning” the body of the deceased, ha[s] property rights in the body which will
be protected, and for a violation of which [he or she] is entitled to
indemnification.’ ” (
Cal.3d 868, 890.)
Actions for damages based on
interference with the right to dispose typically lie against a mortician,
cemetery, or close relative. (
proposition that such an action can lie against the conservator of the
decedent. But, assuming that Frazier--as
one of a majority of surviving children with the paramount right to control
disposition--has stated a cause of action against Moody, Moody’s interference
with the right to dispose was in the context of contemplated litigation and
absolutely privileged.
Civil Code section 47, subdivision
(b), provides a privilege for any publication made in connection with “any . .
. official proceeding authorized by law,” with exceptions not here
relevant. “[T]he privilege applies to
any communication (1) made in judicial or quasi-judicial proceedings; (2) by
litigants or other participants authorized by law; (3) to achieve the objects
of the litigation; and (4) that have some connection or logical relation to the
action.” (Silberg v. Anderson
(1990) 50 Cal.3d 205, 212.) The
principal purpose of the privilege “is to afford litigants and witnesses
[citation] the utmost freedom of access to the courts without fear of being
harassed subsequently by derivative tort actions.” (Id. at p. 213.) The privilege extends to all kinds of tort
suits, including fraud and misrepresentation, with the exception of malicious
prosecution suits. (Id. at pp.
215-216.) The litigation
privilege is absolute, which means it applies regardless
of the existence of malice or intent to harm.
(Harris v. King (1998) 60 Cal.App.4th 1185, 1187-1188.)
The California Supreme Court has
recognized that the privilege’s “application to communications made in a
‘judicial proceeding,’ . . . is not limited to statements made in a
courtroom. Many cases have explained
that [Civil Code] section 47[, subdivision] (b) encompasses not only testimony
in court and statements made in pleadings, but also statements made prior to
the filing of a lawsuit, whether in preparation for anticipated litigation or
to investigate the feasibility of filing a lawsuit.” (Hagberg v. California Federal Bank
(2004) 32 Cal.4th 350, 361.)
“Nonetheless . . . this prelitigation privilege ‘applies only when the
communication has some relation to a proceeding that is contemplated in good
faith and under serious consideration.
The bare possibility that the proceeding might be instituted is not to
be used as a cloak to provide immunity for defamation when the possibility is
not seriously considered.’ [Citations.] [¶] . . . [W]e have therefore held that the
when imminent access to the courts is seriously proposed and actually
contemplated, seriously and in good faith, as a means of resolving a dispute and
not simply a tactical ploy to induce a settlement.” (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th
1359, 1378-1379.)
Here, Frazier alleges that Moody’s
interference was the refusal to consent to O’Connor’s release of the body. But that refusal was grounded upon Moody’s
beliefs that (1) the three children did not agree on disposition, and (2) a
court proceeding was required to determine disposition. Indeed, the pleadings additionally indicate
that (1) Dolores did not wish to speak with her brothers, (2) Thelma Louise may
have desired cremation but one of the brother’s would pay a share for burial,
and (3) Dolores did not agree to pay a share for burial. Moreover, litigation actually resulted from this
uncertainty. And it resulted in an agreement
among the children.
We understand that Frazier alleges
that he and his siblings were in agreement from the first. Frazier urges that we should accept the truth
of that allegation rather than Moody’s contrary assertions. But the truth of Frazier’s allegation is
immaterial. The pleadings show that
Moody (1) believed there was no agreement on disposition, and (2) interfered
with Frazier’s right of disposition for the purpose of litigating the question. The interference was therefore absolutely privileged.
second cause of action
The second cause of action appears
to be for theft. It alleges that (1)
before his death, Frazier’s late father conveyed Louisiana property to Frazier,
(2) the property generated royalties belonging to Frazier, and (3) Moody cashed
the royalty checks. In his original
complaint, Frazier more fully and somewhat inconsistently alleged that (1)
Moody cashed four royalty checks after Thelma Louise’s death, and (2) Frazier
and Carl owned one-half of each check pursuant to Thelma Louise’s will. In any event, the original complaint attached
copies of the disputed checks. Each
check is made payable to Thelma Louise and her conservator.
It is elementary that the
sufficiency of an amended complaint is determined without reference to the
original, except that the original complaint may be examined to discover
whether the new pleading, by reason of unexplained omissions, is untruthful or
a sham. (5 Witkin, Cal. Procedure (5th
ed. 2008) Pleading, § 1190, p. 621.) And
where an incorporated written instrument is the foundation of a cause of action
or defense, its recitals may serve as a substitute for direct allegations
ordinarily essential to the pleading. (
92, 103.) The recitals, if contrary to allegations
in the pleading, will be given precedence, and the pleader’s inconsistent
allegations as to the meaning and effect of an unambiguous document will be
disregarded. (Stoddard v. Treadwell (1864) 26 Cal. 294, 303.)
Here, Frazier’s allegation that he
owned the royalty checks is contradicted by the checks themselves. Since Frazier alleges nothing to the
contrary, we presume that Moody deposited the checks in the conservatorship
account as part of his duty to wind up the conservatorship and distribute the
conservatorship estate to Frazier in his capacity as executor of Thelma
Louise’s estate.
third cause of action
The third
cause of action appears to be for fraud.
It alleges that Moody cashed the royalty checks knowing that they
belonged to Frazier. This cause of
action fails for the same reason as the second cause of action fails.
fourth cause of action
The fourth
cause of action simply asserts that Moody is vicariously liable for acts
committed by his employees. Since there
are no standing claims against Moody or any employee, the cause of action
necessarily fails.
disposition
The
judgment is affirmed.
Premo,
J.
WE CONCUR:
Rushing, P.J.
Elia, J.
Moody, as Public Guardian v. Frazier
H037162
The third amended complaint alleges five causes of action, but Frazier concedes
that the fifth cause of action is moot.
Frazier attached a copy of the will to his original complaint, but did not
attach a copy to the third amended complaint.
