Monday, September 21, 2015

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C.A. Revives Suit Over Claimed Removal of Remains for Profit

By KENNETH OFGANG, Staff Writer

Plaintiffs who claim that a San Fernando Valley cemetery moved their mother’s remains in order to profit on the fact that their location was next to those of comedian Groucho Marx presented enough evidence to survive summary judgment, the Court of Appeal for this district has ruled.

Justice Thomas Willhite, in an unpublished opinion for Div. Four Thursday, described the case brought by Stephanie Kirschner and Brad J. Kane as weak, but said the trial judge erred by weighing the evidence brought by both sides, rather than crediting the plaintiffs’ sworn recollection that their mother’s niche was next to that of the celebrated comic.

The plaintiffs claimed that Service Corporation International, owner/operator of Eden Memorial Park Cemetery in Mission Hills, inurned Jeannine Kane’s remains on April 1, 1979, then moved them sometime between then and Sept. 9, 2011. The plaintiffs say they only learned of the fact when they went to the cemetery to arrange the inurnment of their father’s remains.

Plaintiffs’ Observations

Kirschner and Kane said they noticed when their mother was inurned that the niche was adjacent to Marx’s, but that when they returned more than 32 years later, it was in a different space nearby. Alleging that the contract their father had signed had been altered to show a different niche number, they claim the defendant likely moved it in order to resell the space at a profit.

They linked that belief to the ongoing problems at the cemetery. Their attorneys are Michael J. Avenatti and Ahmed Ibrahim of Eagan Avenatti, the same firm that won a settlement of more than $80 million last year for families who claimed that burial vaults at Eden had been broken by workers who were told by management to create space for more burials.

Kirschner and Kane said they were told by a cemetery employee that he believed their mother’s remains had been moved and that a “a lot of terrible things have happened” but “the people responsible for it were not there anymore.”

The defendant responded with records showing that Jeannine Kane’s niche had always been below and four columns to the right of Marx’s niche, and that none of the families who had purchased niches in the area had paid a premium.

It also produced a declaration from Kenneth Bassman, who said that his mother, who died in 1975, had been inurned in the space where the plaintiffs claimed their mother’s niche had been located, and that he had noticed sometime after Marx’s 1977 death that Marx’s niche was directly above. He said he had visited the site a number of times over the years, and that his mother’s niche and Marx’s were always in those same places.

‘Just Overwhelming’

In granting summary judgment, Los Angeles Superior Court Judge Mark Mooney said the evidence favoring the defendant was “just overwhelming,” while the plaintiffs were “probably sincere in their recollection” but had produced “no evidence” their mother’s remains had ever been inurned in a niche other than the one shown by the contract.

But Willhite, writing for the Court of Appeal, said the trial judge should not have discounted the plaintiffs’ deposition testimony.

The justice acknowledged that the defense case was strong, that an employee’s mere belief that the remains had been mishandled “added little or nothing” to the case, that the contract for the inurnment of their mother did not appear to have been altered as plaintiffs claimed, and that the contract produced by SCI for the niche occupied by Bassman’s mother appeared to be authentic.

“Nonetheless, despite these weaknesses, plaintiffs did offer evidence – their personal observations of their mother’s inurnment and later visits to her niche – which, if believed, could lead a reasonable trier of fact to conclude that their mother’s remains were originally inurned in Row F, Niche 11. That defendants’ evidence shows plaintiffs are wrong, and that plaintiffs have produced no evidence to explain away most or all that evidence, does nothing more under the standard of review for summary judgment than create a triable issue of fact.”

Timeliness

The jurist went on to say that there was also a triable issue of fact as to whether the suit was timely. Although it was filed more than three decades after Jeannine Kane’s remains were inurned, under the discovery rule, there was evidence supporting a finding that it was filed within two years of the earliest date on which the plaintiffs were on notice of the possibility of wrongdoing and resultant harm.

That the plaintiffs, by their testimony, did not visit the niche during the ensuing years, even though they attended funerals at Eden in that time, does not render the suit time-barred, the justice added, because they were under no duty to monitor their mother’s remains.

“To the contrary, they were entitled to assume that once inurned, the remains would not be moved,” he explained.

Steven H. Gurnee and Toby M. Magarian of Gurnee Mason & Forestiere represented SCI in the case, Kirschner v. Service Corporation International, B260044.