Serrano v. Jimenez (56 Cal. App. 4th 733, 1997)

Opinion

VOGEL (C. S.), P. J.

Introduction

The decedent was buried at Resurrection Cemetery by arrangement of three of her four surviving children. The fourth child subsequently petitioned the probate court for an order that decedent be disinterred from Resurrection Cemetery then reinterred at Oakwood Memorial Park, which she asserts was decedent’s wish, and for an order imposing costs and “consequential damages” upon the funeral home and other “responsible parties” for the allegedly improper burial at Resurrection Cemetery.

The probate court dismissed the petition on the ground that this dispute is not within the jurisdiction of the probate court. We agree and affirm the order of dismissal.

Factual and Procedural Background

The decedent Gregoria C. Jimenez (decedent) died testate on May 17, 1993. Decedent’s last will devised her estate in equal shares to her four adult children: Margarita Serrano (appellant), Ramon C. Jimenez, Lily Alexander, and Philip Jimenez (the three collectively, respondent children). Decedent’s will named Georgia L. Jensen as executor; Georgia L. Jensen is appellant’s daughter, decedent’s granddaughter. Decedent’s will did not contain any instructions or wishes concerning disposition of her remains.

In 1977 decedent executed a form with respondent Roy C. Addleman & Son Funeral Home, which expressed her wish to be buried at Resurrection Cemetery. The form states, “This petition is an earthly accounting of my last wishes to come into force in the event of my death. It is my earnest desire that these plans be carried out by The Roy C. Addleman & Son Funeral Home in so far as is reasonably possible.” Decedent checked “burial” and wrote in “Resurrection Cemetery.”

On or about April 22, 1986, decedent executed a different form with the Addleman funeral home, requesting “the following actions be taken upon my death”: decedent checked “burial” and wrote in “Oakdale Memorial Park.” On April 23, 1986, decedent executed a “before-need purchase . . . agreement” with Oakdale Memorial Park Mortuary for a grave and a marker. In November 1986 Oakdale Memorial Park sent decedent a deed to a grave site and a notice that decedent’s grave marker had been set.

Decedent died May 17, 1993. Decedent was buried at Resurrection Cemetery by arrangement of respondent children. The exact circumstances are a matter of dispute which was not resolved by the trial court because the court concluded it had no jurisdiction. Respondent children contended they were unaware of any contrary wishes of decedent, and that appellant made no protest at the time. Respondent funeral home contended that it disclosed to respondent children the two conflicting forms, that respondent children chose Resurrection Cemetery, and that the funeral home received no written objection by appellant. Appellant contended that respondent children were well aware of decedent’s purchase of a grave at Oakdale Memorial Park, but “took charge of the body of the decedent and disregarded the wishes of the decedent,” and “although [appellant] protested such arrangements, such protests and the directions of the decedent were ignored.”

On September 17, 1993, Georgia L. Jensen requested admission of the will to probate and appointment as executor. Respondent Philip Jimenez objected to appointment of Jensen as executor. Not until February 24, 1995, did the court appoint Jensen as executor.

On April 25,1995, appellant filed the petition involved in this appeal. It is entitled, “Petition for Instructions and Authorization to the Executrix to Transfer and Properly Inter the Remains of the Decedent, and for Orders Surcharging the Responsible Parties.” After alleging that respondent children and respondent funeral home buried decedent at Resurrection Cemetery contrary to decedent’s expressed wishes and over appellant’s protest, appellant requested (1) an order that decedent’s remains be disinterred from Resurrection Cemetery and reinterred at Oakdale Memorial Park; (2) an order directing the executor to make appropriate arrangements; (3) an order that Resurrection Cemetery comply with such directions; and (4) an order “requiring that Roy C. Addleman & Son Funeral Home and the parties responsible for disregarding the directions of the decedent be surcharged for all of the costs and expenses relating to the interment of the decedent, including but not limited to consequential damages and attorney’s fees, and to hold the estate harmless.”

Respondent children and respondent funeral home opposed the petition. Initially and in response to the trial court’s request for additional briefing concerning jurisdiction, they argued that the rights and obligations involving disposition of a decedent’s remains vest exclusively with the persons designated in Health and Safety Code sections 7100 and 7525 (here the children) and not with the executor of the decedent’s estate, therefore the dispute is not within the jurisdiction of the probate court, but rather is a civil matter.

The trial court agreed and dismissed the petition on the ground that “this is a matter that must be pursued by civil complaint, rather than a petition in probate.”

Appellant appeals from the order dismissing the petition and from an order denying reconsideration. Appeal lies from an order refusing to instruct or direct the personal representative of the estate. (Prob. Code, § 7240, subd. (k).)

Discussion

We begin by stating what is not the issue here. This appeal does not concern whether decedent’s wishes were violated, nor whether respondents have liability for the alleged violation, nor whether, under all the circumstances, decedent’s body should be disinterred from Resurrection Cemetery and reinterred at Oakdale Memorial Park. The only issue is, in what court should these questions be determined? Some of the underlying law is useful, however, as background.

Health and Safety Code Governs Disposition of a Decedent’s Remains

The rights and obligations concerning disposition of dead bodies are controlled by statutes contained in the Health and Safety Code. (Walsh v. Caidin (1991) 232 Cal.App.3d 159, 162 [283 Cal.Rptr. 326].) Section 7100, subdivision (a) provides, “The right to control the disposition of the remains of a deceased person, including the location and conditions of interment, unless other directions have been given by the decedent, vests in, and the duty of interment and the liability for the reasonable cost of interment of the remains devolves upon the following in the order named: fiD (1) The surviving spouse. [^] (2) The surviving child or children.[] ...[*]□ (3) The surviving parent or parents .... [H (4) The person or persons respectively in the next degrees of kindred, [f] (5) The public administrator when the deceased has sufficient assets.”

Section 7100 contains explicit rules, however, that the wishes of the decedent should be followed. As noted, subdivision (a) lists the persons entitled to control disposition “unless other directions have been given by the decedent." Subdivision (d) provides, “(1) A decedent, prior to his or her death, may direct the preparation for, type, or place of interment of his or her remains, either by oral or written instructions, but a written contract for funeral services may only be modified in writing. The person or persons otherwise entitled to control the disposition of the remains under the provisions of this section shall faithfully carry out the directions of the decedent ....[% (2) If the instructions are contained in a will, they shall be immediately carried out, regardless of the validity of the will in other respects or of the fact that the will may not be offered for or admitted to probate until a later date.” (Italics added.) Subdivision (e) declares, “This section shall be administered and construed to the end that the expressed instructions of the decedent or the person entitled to control the disposition shall be faithfully and promptly performed.” Prior to enactment of this statutory policy, Estate of Henderson (1936) 13 Cal.App.2d 449, 455 [57 P.2d 212], declared that a decedent’s wishes expressed in a will should be followed “so far as possible,” “if considerations of propriety and decency do not intervene,” even against the wishes of the surviving kin otherwise entitled to dispose of the remains.

An additional factor here is that decedent has already been buried in Resurrection Cemetery, and the controversy concerns, in part, whether her remains should be disinterred and removed to Oakdale Memorial Park. In such cases section 7525 provides, “The remains of a deceased person may be removed from a plot in a cemetery with the consent of the cemetery authority and the written consent of one of the following in the order named: m (a) The surviving spouse, [f] (b) The surviving children. [