California Second Appellate District Division Four Jane Turner Plaintiffs And Appellants Los Angeles

In 1998, Nicole Wilson was diagnosed with autoimmune hepatitis.  In 2000, at age 29, she died from complications caused by liver failure. Wilson's estate and her mother Jane Turner (collectively the Estate) filed a lawsuit with two distinct causes of action requesting compensatory and punitive damages.  One cause of action was for wrongful death.  It claimed medical malpractice was committed by several of Wilson’s health care providers (collectively Kaiser).   A jury trial was conducted.  By special verdict, the jury found Kaiser had not been negligent in its care and treatment of Wilson.  The Estate has appealed from that judgment, raising diverse claims of error.  These include denial of a challenge for cause to a juror, improper evidentiary rulings and instructional error.  These include denial of a challenge for cause to a juror, improper evidentiary rulings and instructional error and other forms of abuse of discretion by the trial court. We find no error in any of these rulings and therefore affirm the judgment. The second cause of action sought to disinter Wilson’s body to permit reinterment in another cemetery.  It was based upon the following circumstances.  Wilson was raised as a Roman Catholic but converted to Islam several years prior to her death.  Her family, wishing to respect her wishes for an Islamic service, agreed to a funeral at a cemetery owned by the American Islamic Institute of Antelope Valley (AIIAV).  On the day of the funeral, the family unsuccessfully tried to rescind its authorization because, as found by the trial court, it had discovered AIIAV had made numerous material misrepresentations.  AIIAV did not honor the rescission and Wilson was buried there.  In a timely manner, the family sought to disinter her body so that they could rebury her in an Islamic service in a cemetery in San Diego near where they live.  In addition to claiming that they had been misled by AIIAV, the family produced an email Wilson had written 10 weeks before her death in which she stated her desire to be buried near San Diego in an Islamic service.  AIIAV opposed the disinterment, arguing it would violate a fundamental tenet of Islam.  A bench trial was conducted.  After weighing the relevant factors, the trial court granted the family’s request.  This appeal by AIIAV follows.  We find the trial court did not abuse its discretion and therefore affirm.
 Although the Estate initiated the litigation by filing one complaint with two causes of action, the trial court entered two separate judgments. 

The first one, entered on January 23, 2004, granted judgment to Kaiser on the cause of action for medical malpractice.  The second one, entered on February 18, 2004, granted judgment to the Estate on the cause of action to disinter Wilson from AIIAV and to “reinter her near San Diego.”  These two separate appeals have followed.  Because the factual matrix of each appeal is different, we will discuss each one separately.  We begin with the Estate’s appeal of the judgment entered in favor of Kaiser. 

I.  THE ESTATE’S APPEAL IN THE MEDICAL MALPRACTICE CASE STATEMENT OF FACTS

To give context to the evidence presented at trial, we begin with a brief synopsis of each party’s theory of the case. The Estate claimed that Kaiser’s substandard patient care during Wilson’s last hospitalization caused an ulcer to form on her back.  Unsanitary conditions in the hospital permitted an infection of the vancomynin resistant enterococcus bacteria (VRE) to enter Wilson through the ulcer.  The VRE infection not only prevented Wilson from receiving a liver transplant but the infection spread and caused her death.  Kaiser urged that the VRE could not have entered Wilson’s bloodstream through the ulcer and that Wilson did not die from a VRE infection.  Instead, she died because of a bacterial infection triggered by liver failure.

1.  Wilson’s Diagnosis and Treatment

In 1998, Wilson was diagnosed with autoimmune hepatitis, a disease in which the body’s immune system attacks the liver.  The disease cannot be contracted from another person in the same manner that infectious hepatitis A or B can be spread.  The cause of Wilson’s disease was never determined.  One of her doctors opined that the disease may have been triggered either by Wilson’s prior use of tetracycline or an earlier hepatitis A infection.   Beginning in October 1998, Dr. Jeffrey Kahn, a liver specialist at Kaiser, acted as her primary doctor in regard to her disease.   Wilson’s prior doctor had directed her to take Imuran and Prednisone.  Dr. Kahn characterized these drugs as standard life saving therapies for autoimmune hepatitis.  There are no accepted alternatives to these medications.  If  a patient takes these medications, there is almost “a hundred percent chance of surviving . . . long term.  If [the patient does] not take the medication, there is a 90 percent chance of dying in 10 years[.]” 

 Wilson told Dr. Kahn she had taken the medications for only several days.  He asked her why she had stopped but she did not give him a reason.   In the next year, Dr. Kahn saw Wilson “multiple times” and on each occasion told her these medications would save her life.  She refused, explaining she was concerned about possible side effects.   By September 2000, Wilson’s condition was “significantly worse.”  Dr. Kahn told her “she must take Prednisone or she would die” and she needed to be tested weekly.  He believed a liver transplant was necessary.  He initiated testing to evaluate her for a transplant.  She told him she intended to travel.  Against Dr. Kahn’s advice, she left California and went first to Georgia and then to Syria.  During that period, he left several messages for her because she had not been in for her laboratory tests.   Wilson returned from Syria on October 31.  The next day she was admitted to Kaiser with a bacterial infection.  The infection precluded an immediate liver transplant.  On November 6, Wilson was transferred to UCLA to be evaluated for a liver transplant.   On November 15, UCLA discharged Wilson, free of infection.   On November 20, Wilson was re-hospitalized at Kaiser because she again had an infection.  During this stay at Kaiser, Wilson developed a stage 2 decubitus ulcer or bedsore.  Stage 2  signifies that there is only a slight break of the skin.  There is no direct connection between the ulcer and the major blood vessels. 
 On November 27, Wilson was transferred to UCLA.  The UCLA hospital records noted the presence of the stage 2 decubitus ulcer.  A rectal swab taken on December 2 indicated the presence of a colony of VRE.  As will be explained below in more detail, a colony does not necessarily indicate the individual is infected.  Tests conducted during the prior month had not disclosed VRE.  

 Wilson died on December 2.  None of the doctors at UCLA told the family that Wilson died from VRE.  No autopsy was conducted.  Wilson’s death certificate stated the underlying cause of death was autoimmune hepatitis which ultimately caused liver failure.  The end stage liver disease led, in turn, to a widespread bacterial infection (sepsis) throughout her body.  The infection resulted in a failure of the blood to clot (diffuse intervascular coagulopathy), causing massive hemorrhaging and death. 

2.  The Estate’s  Evidence of  Medical Malpractice

The Estate offered two expert witnesses.

The first one was Wilson’s mother Jane Turner, who had worked as a nurse for 26 years.  The court permitted Turner to testify as an expert on nursing practices.  Turner testified about multiple nursing practices she witnessed in her daughter’s room that she believed fell beneath the standard of care.  These included the nurses’ failures to wash hands properly, to wear gloves, to change soiled sheets, to remove bodily discharge from the commode,  and to move or ambulate the sedentary Wilson.  Turner characterized as unhygienic the practice of some nurses to wear acrylic fingernails.  She also testified that her daughter was not treated under a protocol she called “total patient care.”

 Turner opined that Wilson died due to a VRE infection.  She believed the VRE entered Wilson’s bloodstream at Kaiser through the decubitus ulcer and then spread.  She disagreed with UCLA’s evaluation that it was a stage 2 ulcer; she believed it to be a higher (more aggravated) stage. 
 The Estate’s second expert witness was Dr. John Cooper, a forensic pathologist.  Based upon a review of Wilson’s medical records, he testified that “it is definitely more probable than not that VRE was instrumental” in causing the ultimately fatal bacterial infection (sepsis).  According to Dr. Cooper, VRE is “hospital acquired.  It is found in hospitals only.”  He believed that it would have been “easy” for Wilson’s decubitus ulcer to be the entry point for the VRE into her bloodstream.  However, he conceded that the theory (as testified to by Turner) was “no more than a possibility” and that “there is no medical proof that theory holds water to a reasonable medical probability[.]”  He also agreed that colonization of VRE does not necessarily indicate a VRE infection.  

Dr. Cooper did not express an opinion on the ultimate issue of whether Kaiser’s treatment of Wilson had fallen beneath the standard of care. 

3.  Kaiser’s Evidence re Wilson’s Care and Treatment

Dr. John Vierling, the director of hepatology at Cedars-Sinai Hospital, reviewed Wilson’s medical records and testified as an expert for Kaiser.  He explained that enterococcus is a bacteria normally found in most people’s intestinal system.  Ninety percent of the population would test positive for it were a rectal swab done.  Misuse of antibiotics has created a strain of enterococcus resistant to the antibiotic vancomycin.  This strain is called vancomycin resistant enterococcus (VRE).  VRE can cause bloodstream infections.  Colonization of VRE does not necessarily indicate an infection. 

 In contrast to Dr. Cooper, Dr. Vierling did not believe that VRE is typically contracted in a hospital.  He explained that since “the early 1990’s,”  VRE has been “present now in large quantities in the general community[.]”  Furthermore, he testified that it was not possible for the VRE to have entered Wilson through the decubitus ulcer.  Because there had been no positive cultures for VRE in November, he did not believe Wilson had a VRE infection in her bloodstream at the time of her death.  In his opinion, a VRE infection was “not the cause or contributing factor” to her death.  Instead, she died because of a bacterial infection triggered by liver failure.  According to Dr. Cooper, Kaiser did not fall beneath the standard of care in the services it provided to Wilson.  

 Kaiser also proffered the testimony of Barbara Martin.  Martin has been a registered nurse since 1971.  She took care of Wilson for two days during her last hospitalization at Kaiser (Nov. 20 to 27).  She contradicted Turner’s testimony that the conditions in Wilson’s room had been unsanitary.  She explained how she treated Wilson’s ulcer to prevent it from being exposed to infection. 

4.  The Jury’s Verdict
By special verdict, the jury found that Kaiser had not been negligent in the care and treatment of Wilson. 

DISCUSSION
A.  JURY SELECTION
The Estate contends that the “trial court committed reversible error” by denying its challenge for cause to Juror No. 2, Bijan Ghaderi.  It argues that Ghaderi’s inability to fully understand English “appears in the record as a demonstrable reality.”  We disagree.  The trial court observed Ghaderi’s demeanor and listened to his answers.  It did not abuse its discretion in finding that Ghaderi had sufficient command of English to serve as a juror.

1.  Factual Background

 Pursuant to the court’s request, Ghaderi read and answered all of the standard background questions found on a chart posted in the courtroom.  These included name, place of residence, occupation, marital status and prior jury experience. 
 
 During voir dire, Ghaderi explained that his native language is Farsi.  He has been in the United States 18 or 19 years.  He ordinarily speaks Farsi.  He lives in an Iranian community.  He works as a pianist in an Iranian restaurant where most of the customers speak Farsi.  He stated that his “English is not very well” and he speaks it “a little bit.”  He explained:  “I understand, but sometimes a lot of words I don’t understand, especially in court.  That is the first time here.  I’m a musician.  I’m not familiar with this.”

 In response to the court’s questions, Ghaderi agreed that if something were said during trial that he did not understand, he would raise his hand so that it could be clarified.  He understood that he was required to be fair to all parties and he could think of no reason he could not be fair.  When the court asked him if he would be willing to deliberate with the other jurors at the close of trial, he replied:  “No. . . .  []  Because I don’t know the conversation between them.  You know, I can’t judge at all.  I’m a musician, a singer and piano player.  I’m not familiar with this type of thing at all.”  The Estate’s counsel asked if he would have trouble expressing his opinion to other jurors during deliberations.  He answered:  “Sometimes if I don’t understand the words.  You know, some words make me confused about the judging.”  He thought he would have trouble understanding the other jurors during deliberations.  He did not know if he would feel uncomfortable asserting himself during deliberations if he could not do it “in clear English terms[.]” 
 At sidebar, the court discussed the Estate’s challenge for cause to Ghaderi.  Kaiser’s attorney stated:  “I would say my impression is his command of the language seems better than Mrs. Sanchez who there was no objection made by counsel for the plaintiff.

 “Secondly, when he began talking about how he is a musician and so on, his English became better.

  “Thirdly, he seemed to have no problem reading the board.”

 The Estate’s attorney did not object to any of defense counsel’s characterizations of Ghaderi.
 The court ruled:   “This gentleman has been on -- in this country for 18 years.  I take it from hearing him speak that he has associated with Americans and English-speaking people.  He has been gainfully employed since he has been here.  It seems to me that he speaks enough English.  I get a sense that he doesn’t want to sit on this jury, but it seems that he speaks sufficient English to understand enough to handle this case.

 “Again and again this afternoon, we have had a lot of people that have been on the panel here that have had problems with the English language.  I think a lot of these cases involving medical malpractice claims, if there is terminology used that people don’t understand, the experts that appear in this case have to kind of explain it and put it in layman’s terms. 

 The objection for cause is denied.”   When the jury returned with its special verdict, counsel for both parties waived polling of the jury. 

2.  Discussion

Kaiser argues the Estate’s contention is not properly before us because the Estate had not exhausted all of its peremptory challenges when it challenged Ghaderi for cause.  Kaiser is correct on the law  but wrong on the facts.  The Estate was entitled to six peremptory challenges.  (Code Civ. Proc., § 231, subd. (c).)  It had used all six before  challenging Ghaderi for cause.  The portion of the record Kaiser cites involved the  peremptory challenges to which the Estate later became entitled because the court decided to select alternate jurors.  (Code Civ. Proc., § 234.)  We therefore turn to the merits of the Estate’s contention.

 “‘Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court.  [Citation.]’  [Citation.]  On appeal, we will uphold the trial court’s decision if it is fairly supported by the record, and accept as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has given conflicting or ambiguous statements.  [Citations.]”  (People v. Farnam (2002) 28 Cal.4th 107, 132, fn. omitted.)

 This record supports the trial court’s finding that Ghaderi sufficiently understood English to serve as a juror.   Ghaderi, who has been in the United States for close to 20 years, understood and answered all of the questions posed by the court and counsel.  He indicated he would raise his hand during trial if he did not understand anything.   He understood what it meant to be fair to both parties and stated there was no reason he could not be fair.  Many of the answers that the Estate relies upon to argue against the trial court’s finding merely indicate that Ghaderi’s discomfort was with legal terminology and the deliberative process, not English.   And as the trial court noted, technical terms were being used in this medical malpractice action that, in any event, needed to be explained to all of the jurors.  

 To avoid the force of this conclusion, the Estate focuses on Ghaderi’s remarks that indicated a lack of fluency in English and discomfort in participating in deliberations.  This approach misses the mark.  The record contains conflicting evidence about Ghaderi’s fluency in English.  The court had the opportunity to observe Ghaderi’s demeanor and evaluate the credibility of Ghaderi’s characterizations about his command of English.  The court opined that Ghaderi was motivated by a desire not to serve as a juror and found him to be sufficiently fluent in English.  The trial court’s resolution of this evidentiary conflict is binding upon us.  (People v. Weaver (2001) 26 Cal.4th  876, 910.)

B.  EXCLUSION OF EVIDENCE
 Prior to trial, the court granted Kaiser’s motion to preclude the Estate from offering testimony from two Kaiser administrators that the Estate had subpoenaed:  Richard Cordova and Anthony Armada.  Cordova was Kaiser’s Regional President and Armada was Kaiser’s Los Angeles Service Manager.  During trial, the court sustained Kaiser’s objection to testimony from Zivia Sweeney about the costs of providing certain elements of patient care.  The Estate urges these rulings were prejudicial error.  We disagree.

1.  Factual Background
 The Estate’s pretrial offer of proof explained its theory of the case as “basically that Nicole [Wilson] was removed from consideration for a liver transplant by an infection gotten from Kaiser’s sloppy hospital care[.]”  It urged that the testimony of Cordova and Armada would “corroborate that Kaiser’s patient care was substandard; such testimony plays into the details of plaintiffs’ evidence about the exact failures of the hospital care and would tend to impeach any denial of Kaiser that their patient care is good generally or was good as applied to Nicole Wilson.” 
 A declaration from Zivia Sweeney (Wilson’s sister) explained that shortly after her sister’s death on December 2, 2000, she complained to Kaiser about her sister’s care.  Sweeney then held the position of assistant controller for Kaiser’s Southern California region and consequently had regular contact with Kaiser’s management.  She met with Armada in mid December 2000.  “[He] apologized for what [Nicole Wilson] had to endure, indicated that incidence reports had been filed, and that Kaiser was investigating the matter.”
 In January 2001, Sweeney met with Cordova who “acknowledged the continuing and severe problems with patient care at the [Kaiser] Sunset facility. . . .  []  He informed [Sweeney that he] was systematically trying to remove the old ‘Kaiserites’ who were not interested in making improvements in patient care [and that Dr.] Irving Goldstein[ ] and the medical group were responsible for many of the problems at the Sunset and other Kaiser facilities and that changes could be made quicker once [Dr. Goldstein] and the medical group’s ‘old guard’ retired.”  Sweeney claimed “there can be no dispute that [Cordova] and other Kaiser executives knew full well how poor it [patient care] was at the time of [her] sister’s treatment there.”
 Sweeney further averred that because she “regularly met” with Kaiser management “about the financial statements and month end close, [she] had knowledge about the severe patient care problems at the Kaiser Sunset facility.”  She explained:  “As Assistant Controller, it was my job to understand the operational drivers behind the financial numbers.  My staff and I prepared the financial packages for executive management which included explanations from operations.  The Sunset Facility was consistently one of the facilities underlying unfavorable financial trends.” 
 Sweeney attached to her declaration copies of emails she had sent to Kaiser personnel detailing her complaints.  There were, however, no emails from Cordova or Armada to Sweeney. 
 Kaiser’s motion in limine sought to bar the Estate from calling Cordova and Armada.  It urged the evidence was not relevant (Evid. Code, §§ 210 and 350) and any potential probative value was outweighed by the factors set forth in Evidence Code section 352.   Kaiser explained:  “The instant case is a medical malpractice alleged case.  It relates to the wrongful death of [Nicole Wilson], who had auto-immune hepatitis.  The case therefore involves whether the respective physicians treating the Decedent evaluated her competently.  Neither Mr. Cordova nor Mr. Armada are health care practitioners, nor have any such training, experience or skill as health care professionals.  Rather, they are corporate officers who oversee Kaiser business interests.  []  . . .  []  Any alleged opinion [they have] is simply irrelevant and incompetent.”  At another point, Kaiser argued:  “Absent their medical expertise, they are no more than lay people assumably listening to complaints voiced by the Plaintiffs, acknowledging that if that were in fact true, that should not have been done.  This is not competent medical testimony.” 
 At the hearing on the motion, the Estate’s counsel conceded neither Cordova nor Armada was a percipient witness to the care given to Wilson.  The court granted Kaiser’s motion to bar the Estate from calling the two men as witnesses.  The Estate’s counsel then asked if Sweeney could testify to the statements the two men had made to her.  Counsel argued the authorized admissions exception would overcome any hearsay objection to that testimony.  After agreeing that hearsay would not be a valid objection, the court ruled:  “They [the statements made to Sweeney] are not coming in under [Evidence Code section]  352.  I think it would be unduly time consuming, and the probative value would be outweighed by the prejudicial effect of the defense.  I think it would be confusing to the jury.”  The court did state that Sweeney could testify about her personal observations of her sister’s care. 
 Sweeney testified at trial.  After explaining her job as assistant controller, she was asked:  “Did you have intimate knowledge about the costs of various Kaiser Health Services?”  Kaiser raised a relevancy objection.  At sidebar, the Estate’s counsel explained:  “She [Sweeney] has detailed information that Kaiser targeted patient care . . . in this very area, linens and nursing staff, the very issues that we are talking about that we are complaining about. . . .  [A]nd she [Sweeney] did work there in the period that my client was deceased.”  The court ruled:  “I’m going to sustain the objection on the basis that I think this type of information is too vague and I think it is irrelevant and I think it is immaterial, and exercising my discretion under 352 of the Evidence Code, I think the probative value would [be] outweigh[ed by] any prejudicial effect to the defense . . . and also, I think it would be confusing to the jury.”

2.  Discussion
 We review the trial court’s evidentiary rulings for abuse of discretion.  (See, e.g., City of Ripon v.  Sweetin (2002) 100 Cal.App.4th 887, 900-901.)  As appellant, the Estate has the burden “to demonstrate the court’s ‘discretion was so abused that it resulted in a manifest miscarriage of justice.  [Citations.]’  [Citation.]”  (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 456.)  We conclude the Estate has not carried that burden.
 The Estate argues:  “Proof that Nicole Wilson was treated in a dirty hospital would have directly bolstered her argument that she contracted VRE from the dirty conditions that existed there.  In turn, it would have added enormous benefit to Wilson’s presentation at trial.”
 To begin, the Estate’s argument overstates the nature of the excluded evidence in regard to the two Kaiser executives.  Its pretrial offer of proof asserted only that Cordova had acknowledged there were severe problems in patient care and that once the “old guard” was gone, the necessary improvements could be made.  Cordova gave no specifics and certainly made no concession that Kaiser ran a “dirty” hospital.  Furthermore, the offer of proof did not represent that Armada had made even the limited acknowledgements attributed to Cordova.  Armada simply indicated that Kaiser was investigating the care provided to Wilson.  The record therefore does not support the Estate’s claim that the court “refused to allow evidence of Kaiser’s severe patient care problems through the confessions of its corporate executives” or that the evidence “was tantamount to a confession that Kaiser was a dirty hospital.”  (Italics added.)
 In any event, the evidence had, at best, tangential relevancy.  The ultimate issue for the jury was whether Kaiser’s care and treatment of Wilson fell beneath the standard of care.  In specific, the jury was required to determine whether the evidence supported the Estate’s theories that Kaiser provided substandard care to Wilson which permitted the VRE to enter her bloodstream through the ulcer and that the VRE infection ultimately led to her death.  The proffered testimony of the two Kaiser executives was not probative on these issues.  Neither had any personal knowledge of Wilson’s care.  Neither had any medical knowledge or training.  Whether Wilson had been infected with VRE in the manner claimed by the Estate and whether the VRE infection caused her death were matters to which only an expert could testify.  The Kaiser executives were not qualified to give any opinion, pro or con, on those issues.  Consequently, the Estate errs when it claims that this “[e]vidence of patient care was directly relevant to explaining the mechanism and cause of these three distinct, yet related injuries:  the decubitus ulcer, the infection, and death.”  Testimony about generalized problems in patient care would have had little, if “any[,] tendency in reason to prove or disprove any disputed fact that [was] of consequence to the determination of the action.”  (Evid. Code, § 210.)
 In addition, the evidence could have confused the jury because it would have required the jury to address collateral issues such as why Kaiser instituted the challenged policies and the merit of those polices.  In turn, this would have resulted in undue consumption of time if Kaiser sought to introduce evidence about the reasons for the policies and why the policies did not negatively impact patient care.  More time would have been consumed and more collateral issues raised had the executives testified and attempted to explain or clarify whatever remarks they had made to Sweeney (e.g. to which problems of patient care was Cordova referring).
 In light of all of these considerations, the trial court did not abuse its discretion in precluding the evidence. 
 Lastly, we note that the Estate’s emphasis on the authorized admissions exception to the hearsay rule (Evid. Code, § 1222) is misplaced.  Whether or not that exception would have applied were Sweeney to have testified to the two Kaiser executive’s statements is a separate issue from whether or not the evidence was relevant.  The trial court disallowed the evidence on relevancy and Evidence Code section 352 grounds, not hearsay.  As explained above, its relevancy decision was not an abuse of discretion.

C.  WILSON’S HEARSAY STATEMENTS
1.  Factual Background
 On direct examination, Michael Turner, Wilson’s stepfather, was asked:  “Did you ever receive information directly from Nicole [Wilson] about how she felt the medication [Prednisone and Imuran] acted on he[r]?”  He answered he had.  He explained:  “We would talk on the phone or during the course of our visits.  I would ask, how you doing with your program, with the treatment, knowing that she was taking medication.  []  She said -- ”  Kaiser then raised a hearsay objection.  The court instructed counsel for the Estate to ask his next question.  He asked:  “Did she tell you that the medication made her feel a certain way?”  Kaiser renewed its hearsay objection.  The court sustained the objection.  Turner was permitted to testify that she gave him reasons why she did not take the medication.  He also testified that that during the period she had taken the medicine she had “a roundish face, a moon face, which was not her normal appearance.  She had put on some weight.  She looked very weak and sluggish[.]”
 Jane Turner, Wilson’s mother, examined her daughter’s medical records.  She testified that as of October 1998, Wilson was taking Prednisone as prescribed by the doctors.  Turner explained that the medication caused hair loss, thinning hair, significant weight gain, and a “moon face.”  She testified that a November 1998 notation in the doctor’s records indicated “the Prednisone was causing her problems” and that she (Wilson) felt better after she stopped taking the medicine.  After Turner testified to additional statements Wilson had made to her about how she felt, Kaiser made a hearsay objection.  Following a sidebar discussion, the court sustained the objection. 
 The next day, counsel for the Estate submitted a brief urging that Wilson’s statements to her family about why she discontinued the medications were not inadmissible hearsay.   The court agreed with the Estate.  It stated that it would overrule the defense objection and permit counsel to ask the questions.  Kaiser’s counsel requested that that the jury “be admonished that the evidence . . . is not for the truth of the matter asserted, but it is going to impeachment to Dr. Kahn’s record.”  The Estate’s attorney replied:  “The initial evidence was offered for the truth of the matter.  I don’t see how, in fairness in our situation, it could be offered for less than the truth of the matter.”  The court replied:  “I won’t admonish the jury right now.  It would be confusing.  However, if you want to fashion a jury instruction, I will take a look at it at that time.”
 Thereafter, Jane Turner testified to Wilson’s statements about the effects of the Prednisone and why she had discontinued its usage. 
 When the parties later proffered jury instructions, Kaiser never sought a limiting instruction directed at Jane Turner’s testimony.  Kaiser did request the following instruction.  “Several doctors have testified that Nicole Wilson made statements about her medical history.  These statements helped the doctors diagnose Nicole Wilson’s condition.  You may use these statements to help you examine the basis of the doctor’s opinion.  However, you cannot use them for any other purpose.  []  However, a statement by Nicole Wilson to her doctor or other health care provider of her current medical condition may be considered as evidence of that medical condition.”  Counsel for the Estate objected to the instruction.  The following exchange occurred:
 “[Counsel for the Estate]:  The objection is this is done by the defense in a couple different instructions.  They are tailoring the instructions to apply to particular evidence in this case.  I think it is unduly --

 “THE COURT:  They are also supposed to be tailored to apply to the evidence in the case.

 “[Counsel for the Estate]:  Most of the instructions are general in nature and some instructions are given because they apply to evidence, not because they are written with particular evidence in mind, including and citing that evidence in the instruction.  That is different.

 “We think it unduly focuses the jurors’ attention upon, you know, her statements given to the doctors.  That is a big part of the case.  They belabored it at trial; I understand that.  But for the court to cite it in the instructions is too much focus.

 “THE COURT:  Submitted?

 “I think the evidence in the case justifies the instruction.  I think it complies with the law.

 “The objection is overruled.

 “I will give it.” 

 In closing argument, Wilson’s statements received scant attention.  Kaiser’s attorney never mentioned them.  Counsel for the Estate conceded she had not taken the Prednisone in 1999 but argued that circumstantial evidence established she had taken it in 2000 because several witnesses testified she displayed its side effects (moon face, weight gain).  In response, Kaiser’s attorney argued that it was unlikely she took the Prednisone in 2000 given her rapid physical deterioration that year. 

2.  Discussion
 The Estate contends:  “The trial court committed prejudicial error by excluding statements by Nicole Wilson to her father and limiting the admissibility of statements to her mother regarding her then-existing pain and bodily health.”  (Capitalization and boldface omitted.)  The record does not support either of these claims.
 It is true that the court sustained Kaiser’s hearsay objection when Michael Turner was asked what Wilson had said to him about taking the prescribed medication.  However, during Jane Turner’s testimony, the court reconsidered that ruling and permitted her to testify to similar statements made by her daughter.  Therefore, it is clear that the court had concluded it had erred in sustaining the hearsay objection to Michael Turner’s testimony.  At that point, the Estate could have recalled Michael Turner as a  witness and asked him what, if anything, Wilson had said to him about the effects of the medication.  The Estate chose not to do so.  It therefore cannot complain that it was precluded from having Michael Turner give this testimony.
 The Estate also errs in claiming that the court limited the admissibility of the statements testified to by Jane Turner.  Kaiser requested a limiting instruction when she testified but the court declined to give one, inviting Kaiser to submit such an instruction later.  Kaiser never pursued this point.  It never tendered such a limiting instruction and it never argued to the jury that the statements had limited admissibility.  Accordingly, there is no factual basis for the Estate’s complaint.
 Lastly, the Estate challenges the instruction, set forth above, about the use(s) the jury could make of Wilson’s statements to her doctors.  The Estate argues submission of the instruction over its objection was error because it gave “unfair weight to Nicole Wilson’s statements to her doctors while diminishing the value of statements she made to her parents on the same issue. . . .  In particular, the defense introduced statements from her doctors tending to show that [she] did not take her medication, and the family sought to rebut that testimony with her statements explaining that the side-effects were unbearable. . . .  The [challenged] instructions allowed the jury to highlight and focus on that evidence, while statements offered to contradict those claims were not given such marquee status.”  We are not persuaded.  For one thing, in closing argument, Kaiser never utilized the instruction or mentioned any of Wilson’s statements.  For another thing, nothing in the instruction precluded the Estate’s attorney from vigorously arguing to the jury that Wilson’s statements to her family were credible and probative evidence.  He simply chose not to do so.

D.  CACI No. 3928
 Over the Estate’s objection, the court declined to instruct pursuant to CACI No. 3928.  The instruction is contained in the “Damages” chapter of CACI.  The instruction, entitled “Unusually Susceptible Plaintiff,” reads:  “You must decide the full amount of money that will reasonably and fairly compensate [name of plaintiff] for all damages caused by the wrongful conduct of [name of defendant], even if [name of plaintiff] was more susceptible to injury than a normally healthy person would have been, and even if a normally healthy person would not have suffered similar injury.”
 In rejecting the instruction, the trial court reasoned:  “[T]his [instruction] talks about a tortfeasor taking the person that he injures as he finds them.  I mean, it really is like a preexisting condition in an automobile accident and stuff like that.  []  . . .  []  I don’t think it applies.  I’m not going to use it.”
 The Estate contends:  “The trial court erred by refusing [its] request to instruct the jury on Nicole Wilson’s heightened susceptibility to infection based on a compromised immune system, which was the result of autoimmune hepatitis and her treatment medication designed to suppress the immune system. . . .  [The Estate] was entitled to have the jury instructed that Kaiser was liable if its negligence caused the infection, even if a normally healthy person would not have suffered similar injury.”  We disagree.
 Contrary to what the Estate suggests, this instruction does not address causation.  Instead, it addresses the award of damages for aggravation of a pre-existing condition.  (See Ng v. Hudson (1977) 75 Cal.App.3d 250, 254.)   Furthermore, the instruction was inapplicable because this is a wrongful death action.  (Vecchione v. Carlin (1980) 111 Cal.App.3d 351, 357-358.)  While the lawsuit is grounded in a claim that Kaiser’s treatment of Wilson constituted medical malpractice, the action sought to compensate Wilson’s heir Jane Turner for the damages resulting from her death.   In this context, aggravation of a preexisting condition -- the issue addressed by CACI No. 3928 -- is not compensable.  (Id. at p. 358.)  Therefore, the trial court did not err in declining to submit the instruction. 

II.  AIIAV’S APPEAL IN THE ACTION FOR DISINTERMENT
STATEMENT OF FACTS
1.  The Estate’s Evidence
 We review the evidence in the light most favorable to the trial court’s decision.
 Nicole Wilson (Wilson) grew up in San Diego.  Her father, Moses Wilson, died in 1974 before she was three years old.  Her mother, Jane Turner, married Michael Turner in 1978.   Jane and Michael Turner raised Wilson and her siblings.  Although Wilson was brought up as Catholic, Wilson converted to Islam in her twenties, adopting the Islamic name Daaiyah Ibadah-Ahmad.  Following her conversion to Islam, Wilson became romantically involved with Jamal Ahmad, born Kenneth Baker (Ahmad). 
 In September 2000, Wilson traveled to Syria.  Before leaving, she sent an email to her stepfather Michael Turner and two of her siblings.  Among other things, the email stated:  “If per chance I die, I wanted [sic] to have an Islamic burial service only, be buried near San Diego, and I do not donate organs.”  Emmit Clark, a longtime family friend, testified that before Wilson went to Syria, she discussed her burial wishes with him.  She indicated that in the event of her death, “she would want to be buried near her family at home, which in this case was San Diego.”  Jane Turner, Wilson’s mother, testified that in 2000 Wilson told her she wanted an Islamic burial service and that she wanted to be buried in or near San Diego. 
 After Wilson’s death on December 2, 2000, Ahmad falsely claimed to be her husband.  He tendered a marriage certificate purporting to show that an Islamic marriage had been performed between him and Wilson in August 1996.   However, the court found that Wilson’s signature on it was not genuine.   In addition, a certified document from the Los Angeles County Recorder stated there was no record of a marriage between Wilson and Ahmad.   (Ahmad did not testify at the trial held on the family’s request to disinter Wilson.)
 Wilson’s family wanted to respect her desire for an Islamic burial.  This meant an immediate burial.  Although the family did not recognize Ahmad as Wilson’s husband, they knew the two had had a relationship and they wanted to stay on “amicable” terms with him.  Given these considerations, the family turned to Ahmad to arrange an Islamic service, including the selection of an Islamic mortuary.  Jane and Michael Turner transferred legal authority to make the funeral arrangements to Zivia Sweeney (Sweeney), their eldest daughter. 
 On December 4, 2000, Sweeney received a phone call from the American Islamic Institute of Antelope Valley (AIIAV).  Sweeney believed that AIIAV had called her at Ahmad’s request.  AIIAV owns a cemetery located in Rosamond, California.  AIIAV’s representative told Sweeney that its facility was “brand new” with trees and rolling hills.  It was “very, very beautiful,” and only 25 minutes from Los Angeles.  He explained that Wilson’s body would be washed, dressed in simple but elegant garb, and buried in a container but not a coffin.  He also welcomed the family’s participation in the service.  After the funeral, the family would be free to come and visit Wilson’s grave site during normal hours of operation. 
 Ahmad insisted on using AIIAV’s services and likewise insisted on paying for the funeral without any financial assistance from Wilson’s family.  Sweeney agreed to use AIIAV because of the representative’s descriptions of the cemetery and service and her desire to keep the peace between the family and Ahmad.  The funeral was set for the next day, December 5. 
 AIIAV gave Sweeney a disclaimer sheet which contradicted some of the verbal representations she had received in her telephone conversation with the person from AIIAV.  For instance, it stated:  “No trees can be planted around or on the grave,” “Body will be buried directly on the dirt” and “Cemetery visitations can be arranged according to the schedule of the management of [AIIAV].”  Sweeney testified that she asked an AIIAV representative about these inconsistencies.  He reassured her that the facility would conform to the initial verbal representations.  Consequently, Sweeney signed the disclaimer form.
 The evening before the funeral, the family searched on Mapquest for driving directions to the cemetery.  They learned for the first time that AIIAV was approximately 225 miles (about a three and a half hour drive) from San Diego and 140 miles from Los Angeles.