Filed 1/19/16 Jewish Funeral Assoc. v. Hollywood Forever CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


JEWISH FUNERAL ASSOCIATION,                                          B260906
LLC,
                                                                     (Los Angeles County
         Plaintiff and Appellant,                                    Super. Ct. No. BC531702)

         v.

HOLLYWOOD FOREVER, INC.,

         Defendant and Respondent.




                   APPEAL from a judgment of the Superior Court of Los Angeles County,
Elizabeth R. Feffer, Judge. Reversed and remanded with directions.


                   Rosario Perry for Plaintiff and Appellant.


                   Raines Feldman and Sonia Y. Lee for Defendant and Respondent.


                             ______________________________________
                                   INTRODUCTION


       In 1999 Jewish Funeral Association, LLC contracted with Hollywood Forever,
Inc. to purchase cemetery plots. Although the Association wanted double-depth graves,
the contract did not make it clear whether the graves would be single-depth or double-
depth. Apparently, the graves were not needed until 2012, when for the first time
Hollywood Forever advised the Association that the graves would be single-depth. The
Association filed this action in 2013 for declaratory relief, specific performance, and
breach of contract. The trial court sustained Hollywood Forever’s demurrer without
leave to amend on the ground that the Association’s claims were barred by the statute of
limitations. We reverse.


                     FACTUAL AND PROCEDURAL BACKGROUND


       In its operative first amended complaint, the Jewish Funeral Association alleges
that in May 1999 it entered into a written contract with Hollywood Forever for the
purchase of 60 “double depth graves” in Hollywood Forever’s cemetery.1 The total
purchase price was $200,000. The Association made a down payment of $50,000, and
agreed to pay the remaining balance of $150,000 in 18 monthly payments of $8,333.33.
       The 1999 agreement, which was attached to the first amended complaint, was
entitled “Purchase Agreement of Cemetery property” and was signed by both parties. It
identified the Association as the purchaser of 60 graves, although there was no indication




1     We assume all of the factual allegations in the first amended complaint are true.
(See Century-National Ins. Co. v. Garcia (2011) 51 Cal.4th 564, 566, fn. 1.)



                                             2
whether the graves were to be single-depth or double-depth. The agreement stated that
the price of the graves was contingent on the Association and the families it represented
purchasing from the Hollywood Funeral Home at least 75 percent of the funerals for the
interment spaces, purchasing from Hollywood Forever a monument or memorial for each
grave, and not reselling or brokering the spaces.
       Paragraph 4 of the agreement’s standard terms and conditions provided, in part,
that Hollywood Forever, upon receiving the purchase price, would execute and deliver to
the Association “a good and sufficient certificate or deed conveying the interment rights
in [the] cemetery property, and a certificate setting forth the amount deposited . . . in
connection with the purchase of said property.” Paragraph 14 stated: “Right to Correct
Errors: The Cemetery may correct any errors herein by providing a corrected copy to the
Purchaser.” Paragraph 16 provided: “Cemetery Acceptance Required: This agreement
must be first signed by the Purchaser and sent to the Cemetery office in California where
it shall be accepted or declined. Acceptance shall be by the signing of the agreement by
an authorized Officer of the Cemetery at its office in California, which shall be the place
of contracting. If the offer is not acceptable it shall be returned unsigned by the
Cemetery and any deposit shall be refunded.”
       When, after a brief delay, the graves “became ready for burial” in 2000, the parties
agreed that Hollywood Forever would sell and issue deeds for only 25 graves, rather than
60, and that the Association had paid for those 25 graves in full. The deeds Hollywood
Forever sent to the Association, however, “incorrectly reflected that [the] 25
graves . . . were single depth, not double depth. This was a clerical error, which was later
corrected.”
       In April 2002 Hollywood Forever wrote to the Association and stated that if the
Association “agreed to an amended contract,” Hollywood Forever would return an
executed new contract and deeds for double-depth graves. An officer of Hollywood
Forever wrote to the Association: “If you agree to the new contract, please send the old


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deeds of trust in the self addressed envelope and I will return[ to you a] new signed
contract, along with the new deeds showing the double interment privilege clause.”
       Hollywood Forever sent a new contract, which the Association describes as the
2002 “clarification and amendment.” The Association signed this document and returned
it to Hollywood Forever. The 2002 agreement, which was also attached to the first
amended complaint, was entitled “Purchase and Security Agreement – replaces deeds
issued 10/27/2000.” It specifies the purchase of graves “1 through 25 (Double Depth)”
and included the type-written language “[f]rom single to Double Depth.” The agreement
also provided that interment services, vault setting, memorial setting, and memorial care
“will be priced as fees required at time of burial.”
       The Association further alleged that Hollywood Forever “has recognized and
agreed that the original deeds should have been issued and recorded as double depth
graves. The original sale was for double depth graves, and [Hollywood Forever]
erroneously issued the deeds as single depth. Therefore, [Hollywood Forever’s] issuing
deeds to reflect the graves as double depth is a correction in order to conform to the
original purchase and security agreement, and the . . . 2002 amendment clarifying the
double depth intent of the original contract.”
       Apparently, nothing happened for many years. The Association does not allege
that Hollywood Forever sent new or corrected deeds reflecting double-depth graves, or
that the Association had any need to bury anyone in one of the graves. Finally, in August
2012 a representative of Hollywood Forever met with a representative of the Association
and apologized for Hollywood Forever’s mistake in not issuing and recording deeds for
double-depth graves, and “orally agreed” that the Association “had the right to the 25
double depth graves based on the 1999 and 2002 agreements.” In fact, on August 20,
2012 Hollywood Forever corrected one of the 25 deeds to reflect that grave as a double-
depth grave.




                                              4
       By the next day, however, Hollywood Forever had changed its mind. On August
21, 2012 Hollywood Forever wrote the Association a letter stating that the Association
had “violated the terms of the contract by allegedly not returning the . . . 2002
clarification [agreement] to [Hollywood Forever].” The Association alleged that
Hollywood Forever anticipatorily breached the 1999 and 2002 agreements by “fail[ing]
to correct the remaining [24] deeds to reflect the correct status of those graves as ‘Double
Depth,’ continuing to refuse to correct the deeds, and failing to honor double depth
burials since August 2012.”
       The Association filed this action in December 2013. The first cause of action of
the operative first amended complaint was for declaratory relief and sought several
judicial determinations of the rights of the parties and resolution of several controversies.
The first controversy was over the parties’ rights in connection with the 1999 and 2002
agreements regarding the sale of double-depth graves. The second controversy was over
the legality under federal law of Hollywood Forever’s requirement that buyers of graves
in its cemetery “purchase goods (such as outer burial container, monument or memorial,
flower vase, floral arrangement, and urn) directly from Hollywood Forever Cemetery,”
which the Association claimed violated the Federal Trade Commission’s “Funeral
Rule.”2 In its second cause of action for specific performance, the Association sought an



2       “[T]he Funeral Rule requires funeral service providers give consumers, at the
beginning of funeral planning discussions, a general price list (GPL) detailing the retail
price of the services and goods sold. The prices of caskets and outer burial containers are
also to be disclosed. At the end of the discussion, consumers are to be given a final
statement of goods and services. Further, prices must be revealed when consumers make
telephone inquiries. [Citations.] Additionally, funeral service providers are prohibited
from bundling pricing packages, requiring the purchase of a casket for direct cremations,
‘conditioning the purchase of funeral goods or services on the purchase of any other
goods or service’ [citations], and embalming the body without obtaining approval.”
(Baudino v. SCI California Funeral Services, Inc. (2008) 169 Cal.App.4th 773, 783, fn.
omitted.)

                                              5
order directing Hollywood Forever to deliver double-depth deeds for the remaining 24
graves. And in its third cause of action for breach of contract, the Association alleged
that Hollywood Forever breached the 1999 agreement, the 2002 agreement, and a 2012
oral agreement “by failing to correct the status of the graves to ‘Double Depth,’
continuing to refuse to correct the deeds, and failing to honor double depth burials since
August 2012.”
       Hollywood Forever demurred to the first amended complaint, arguing, among
other things, that all three causes of action were barred by the applicable statutes of
limitations. Hollywood Forever argued that claims based on the 1999 agreement were
barred because the Association alleged that the breach occurred in 2000, when
Hollywood Forever issued deeds for single-depth graves rather than double-depth graves,
so that the statute of limitations expired four years later in 2004. Hollywood Forever
argued that claims based on the 2002 agreement were also barred because Hollywood
Forever never signed it and therefore it was “not a valid and enforceable written
contract.”
       The trial court, in a signed order, found that all three causes of action were “time-
barred by the applicable statute of limitations” and that amendment could not cure the
defects. The court sustained the demurrer without leave to amend and dismissed the
action with prejudice. The Association timely appealed.3




3      “A signed order of dismissal is an appealable judgment.” (Siliga v. Mortgage
Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 81, fn. 3; see Code Civ.
Proc., §§ 581d, 904.1, subd. (a)(1).)



                                              6
                                        DISCUSSION


       A.     Standard of Review
       “We review an order sustaining a demurrer de novo, and we assume the truth of all
properly pleaded facts unless contradicted by judicially noticed facts. [Citation.] When
the demurrer is sustained without leave to amend, we review the determination that no
amendment could cure the defects for abuse of discretion.” (Doe v. Superior Court
(2015) 237 Cal.App.4th 239, 243.) “The trial court errs in sustaining a demurrer ‘if the
plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of
discretion for the court to sustain a demurrer without leave to amend if the plaintiff has
shown there is a reasonable possibility a defect can be cured by amendment.’ [Citation.]
‘To meet the . . . burden of showing abuse of discretion, the plaintiff must show how the
complaint can be amended to state a cause of action. [Citation.] However, such a
showing need not be made in the trial court so long as it is made to the reviewing court.’
[Citation.] Logically, this showing can be made by materials in the record.” (Annocki v.
Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 36-37.) “If the complaint states
any possible legal theory, the trial court’s order sustaining the demurrer must be reversed.
[Citation.] Also, ‘if there is a reasonable possibility the defect in the complaint could be
cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to
amend.’ [Citation.] Whether a plaintiff will be able to prove its allegations is not
relevant. [Citation.]” (Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th
1052, 1057.) We also “‘liberally construe [the] complaint, and draw all reasonable
inferences in favor of its allegations.’” (Coleman v. Medtronic, Inc. (2014) 223
Cal.App.4th 413, 422.)
       “‘“‘A demurrer based on a statute of limitations will not lie where the action may
be, but is not necessarily, barred. [Citation.] In order for the bar . . . to be raised by
demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it
is not enough that the complaint shows that the action may be barred.’”’” (Lee v. Hanley
                                               7
(2015) 61 Cal.4th 1225, 1232; see Alexander v. Exxon Mobil (2013) 219 Cal.App.4th
1236, 1262 [“[g]enerally, a demurrer may only be sustained on statute of limitations
grounds if the ‘complaint disclos[es] on its face that the limitations period has
expired’”].) “‘Questions concerning whether an action is barred by the applicable statute
of limitations are typically questions of fact.’” (Snyder v. California Ins. Guarantee
Assn. (2014) 229 Cal.App.4th 1196, 1207.)


       B.     The Trial Court Erred in Sustaining the Demurrer to the Breach of
              Contract and Declaratory Relief Causes of Action
       The trial court ruled that all three causes of action in the first amended complaint
were barred by the statute of limitations. None is.
       “The limitations period, the period in which a plaintiff must bring suit or be
barred, runs from the moment a claim accrues. [Citations.] Traditionally at common
law, a ‘cause of action accrues “when [it] is complete with all of its elements”—those
elements being wrongdoing, harm, and causation.’ [Citations.] This is the ‘last element’
accrual rule: ordinarily, the statute of limitations runs from ‘the occurrence of the last
element essential to the cause of action.’” (Aryeh v. Canon Business Solutions, Inc.
(2013) 55 Cal.4th 1185, 1191; see Ferguson v. Yaspan (2014) 233 Cal.App.4th 676, 683
[“[a]s a general rule, statutes of limitations begin to run once every element of a cause of
action has occurred”].)
       In its breach of contract cause of action, the Association alleged that Hollywood
Forever breached the 1999 agreement in three ways: (1) failing to correct the deeds to
show double-depth graves rather than single-depth graves, (2) continuing to refuse to
correct the deeds, and (3) failing to honor double-depth burials. Hollywood Forever
argues that the four-year statute of limitations for breach of written contract in Code of
Civil Procedure section 337 barred the Association’s claim because, according to the
allegations in the first amended complaint, Hollywood Forever breached the 1999
agreement in October 2000 when it issued deeds for single-depth graves rather than
                                              8
double-depth graves. Perhaps. But at most that would only be true for breaches (1) and
perhaps (2), and not breach (3). The Association alleged that it was not until 2012 that
Hollywood Forever told the Association that it would not provide double-depth graves.
There is no allegation that Hollywood Forever ever actually refused to deliver double-
depth graves. (See Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 488 [“[a]
cause of action for breach of contract does not accrue before the time of breach”].)
       According to the allegations in the first amended complaint, the earliest possible
date for accrual for breach (3) was Hollywood Forever’s repudiation or anticipatory
breach in August 2012, approximately a year and one-half before the Association filed
this action and well within the statute of limitations. Even then, however, such an
anticipatory breach would not necessarily start the running of the statute of limitations.
Where a promisor merely announces that it will not honor a promise, “such a repudiation
may constitute an anticipatory breach, giving the aggrieved promisee the option of suing
immediately. [Citation.] But it does not accelerate the accrual of a cause of action for
limitations purposes; the promisee remains entitled to wait until performance is due and
the promisor has failed to perform, i.e., to do the thing promised.” (McCaskey v.
California State Auto. Assn. (2010) 189 Cal.App.4th 947, 958; see Romano v. Rockwell
Internat., Inc., supra, 14 Cal.4th at p. 489 [“whether the breach is anticipatory or not,
when there are ongoing contractual obligations the plaintiff may elect to rely on the
contract despite a breach, and the statute of limitations does not begin to run until the
plaintiff has elected to treat the breach as terminating the contract”]; Taylor v. Johnston
(1975) 15 Cal.3d 130, 137 [“[w]hen a promisor repudiates a contract, the injured party
faces an election of remedies: he can treat the repudiation as an anticipatory breach and
immediately seek damages for breach of contract, thereby terminating the contractual
relation between the parties, or he can treat the repudiation as an empty threat, wait until
the time for performance arrives and exercise his remedies for actual breach if a breach
does in fact occur at such time”].) Thus, the Association could have waited to file suit
until Hollywood Forever actually failed to deliver double-depth graves, if it ever did.
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       Hollywood Forever also argued in the trial court and argues on appeal that the
Association cannot state a claim for breach of the 1999 agreement because the
Association claimed the 2002 agreement superseded the 1999 agreement, and the
Association cannot state a claim for breach of the 2002 agreement because it was not
signed. Putting aside the circularity of this argument, the 2002 agreement, signed or
unsigned, does not bar the Association’s claim for breach of the 1999 agreement.
Paragraph 14 of the 1999 agreement provides that Hollywood Forever has the right to
correct any errors by providing a corrected copy of the agreement to the Association.
This is exactly what the Association alleged Hollywood Forever did by sending the 2002
agreement to correct the “clerical error” in the 1999 agreement of failing to specify
double-depth graves. Thus, the Association stated a (timely) claim for breach of the 1999
agreement regardless of whether the 2002 agreement was separately enforceable.
       Which it is, according to the allegations of the complaint. True, the copy of the
2002 agreement attached to the first amended complaint is not signed by a representative
of Hollywood Forever, and under paragraph 15 of that agreement (paragraph 16 of the
1999 agreement) Hollywood Forever accepts by signing the agreement. But that only
means that the Association did not have a signed copy in its possession. Discovery may
reveal that Hollywood Forever never signed the 2002 agreement, although the allegations
regarding the August 2012 meeting and the correction of one deed on August 20, 2012 to
double-depth suggest that Hollywood Forever believed it had signed the 2002 agreement.
(See Eisert v. Archdiocese of Santa Fe (N.M. Ct. App. 2009) 146 N.M. 179, 184 [207
P.3d 1156] [extrinsic evidence is admissible to determine whether contract with cemetery
was for single-depth or double-depth graves].) In any event, that issue cannot be decided
on demurrer. Hollywood Forever’s assertion that it did not sign the 2002 agreement
relies on evidence outside the allegations in the first amended complaint. (See Mt.
Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385, 1426 [trial court properly
overruled demurrer that was based on evidence that was outside the pleadings and not
subject to judicial notice]; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181
                                            10
Cal.App.4th 471, 482 [“[b]ecause a demurrer challenges defects on the face of the
complaint, it can only refer to matters outside the pleading that are subject to judicial
notice”].)4 Moreover, paragraph 15 of the 2002 agreement provides that if Hollywood
Forever decided not to accept the agreement, it had to return the agreement unsigned and
refund the deposit, and the Association does not allege that either of these events
occurred.
       The Association’s cause of action for declaratory relief is not barred by the statute
of limitations because its breach of contract cause of action is not barred. (See Snyder v.
California Ins. Guarantee Assn. (2014) 229 Cal.App.4th 1196, 1208 [“[t]he duration of
the limitations period applicable to a declaratory relief action is determined by the nature
of the underlying obligation sought to be adjudicated”]; cf. Maguire v. Hibernia Savings
& Loan Society (1944) 23 Cal.2d 719, 734 [“if declaratory relief is sought with reference
to an obligation which has been breached and the right to commence an action for
‘coercive’ relief upon the cause of action arising therefrom is barred by the statute, the
right to declaratory relief is likewise barred”].) Moreover, the Association sought
declaratory relief on an issue that has nothing to do with double-depth graves and that
Hollywood Forever did not even address in its demurrer: the two agreements’ alleged
violation of the Federal Trade Commission’s Funeral Rule. The Association sought a
declaration that its families, when the time comes to bury their loved ones in whatever
grave is available after the merits of this litigation are resolved, do not have to purchase




4      Hollywood Forever did not ask the trial court to take, does not ask this court to
take, nor could we take, judicial notice of the fact that Hollywood Forever signed or did
not sign the 2002 agreement. (See Gould v. Maryland Sound Industries, Inc. (1995) 31
Cal.App.4h 1137, 1145 [“the existence of a contract between private parties cannot be
established by judicial notice”].) Hollywood Forever argues only that its signature does
not appear on the copy of the agreement attached to the complaint.



                                             11
Hollywood Forever’s funeral goods and services. The Association is entitled to seek this
declaration without alleging that this alleged violation of federal law has occurred. (See
Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 883 [“[a] party may seek declaratory
relief before there has been an actual breach of an obligation; in such cases the limitations
period still does not begin to run until the breach occurs”].) And the trial court cannot
sustain Hollywood Forever’s demurrer to some but not all of the declaratory relief cause
of action. (See Ellena v. Department of Insurance (2014) 230 Cal.App.4th 198, 217
[“‘[a] demurrer does not lie to a portion of a cause of action’”]; Fremont Indemnity Co. v.
Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 [“[a] demurrer must dispose of
an entire cause of action to be sustained”].)


       C.     The Trial Court Erred in Sustaining the Demurrer to the Specific
              Performance Cause of Action Without Leave to Amend
       Specific performance is a remedy for breach of contract, not a cause of action.
(Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 49; Miller v.
Dyer (1942) 20 Cal.2d 526, 531.) This pleading defect in the Association’s first amended
complaint, however, is curable. Although the Association cannot maintain a cause of
action for specific performance, it can amend to allege specific performance as a remedy
for its breach of contract and declaratory relief causes of action.


                                      DISPOSITION


       The judgment is reversed and remanded with directions to vacate the order
sustaining the demurrer to the first amended complaint without leave to amend, and to
enter an order overruling the demurrer to the first cause of action for declaratory relief




                                                12
and third cause of action for breach of contract, and sustaining the demurrer to the second
cause of action for specific performance with leave to amend. The Association is to
recover its costs on appeal.




              SEGAL, J.


We concur:




              PERLUSS, P.J.




              BLUMENFELD, J.*




*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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