Vasquez v. Co. of LA 9/25/07 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B192189

Case Date: 01/03/2008

Preview:Filed 9/25/07 Vasquez v. County of Los Angeles CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION FIVE

JUANA VASQUEZ et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

B192189 (Los Angeles County Super. Ct. No. BC345589)

APPEAL from a judgment of the Superior Court of Los Angeles County. Paul Gutman, Judge. Affirmed. Moreno & Perez, Hermez Moreno, Richard T. Copeland for Plaintiffs and Appellants. Lewis, Brisbois, Bisgaaard & Smith, Laura Inlow; Greines, Martin, Stein & Richland, Martin Stein, Lillie Hsu and Carolyn Oill for Defendants and Respondents. _______________

Plaintiffs, the widow and children of Julio Olvera (decedent), appeal the dismissal of their complaint against the defendant County of Los Angeles for negligent mishandling of a corpse and negligent supervision of its employees. Plaintiffs alleged that the County Coroner's office failed to preserve and/or protect the decedent's body from decay as mandated by Health and Safety Code sections 7100 et seq. The trial court found that the cited statutes do not create the mandatory duty alleged by plaintiffs, and so sustained the County's demurrer to the complaint. In addition to appealing that ruling, plaintiffs request leave to amend their complaint to state a cause of action against the County for violation of their due process rights under 42 United States Code section 1983. We affirm the judgment and deny plaintiffs' request for leave to amend.

FACTUAL AND PROCEDURAL BACKGROUND The operative first amended complaint alleges that plaintiffs' elderly husband and father suffered head injuries while on a walk on July 5, 2005. He was transported to Los Angeles County/USC Medical Center, where he died two days later. Subsequently, decedent's remains were delivered to the County Coroner's office, where they remained until August 11, 2005. The complaint alleges that the County was obligated "to take . . . measures to preserve and/or protect DECEDENT's body from decay . . . ," citing Health and Safety Code section 7100 et seq. as the source of this mandatory duty. The complaint further alleges that the County failed to preserve decedent's body, such that "DECEDENT's body decayed and decomposed to the point of being unrecognizable by his loved ones, Plaintiffs herein . . . ." Additionally, plaintiffs allege that the County was negligent in failing to adequately train its employees in the proper measures to prevent decomposition and decay as occurred here. The County demurred to the first amended complaint, arguing that the coroner had no statutory duty to preserve the remains of plaintiffs' decedent in a recognizable

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condition, and that its employees had neither a statutory nor common law duty to do so. The trial court agreed, and dismissed the complaint as to the County.1 DISCUSSION2 1. Coroner's mandatory duty A public entity such as the County is not liable for an injury arising out of a negligent act or omission except as provided by statute. (Gov. Code,

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