Opinion
TROTTER, J. Petition for writ of mandate after the denial of defendants’ motion for summary judgment.
Plaintiff in a first amended complaint stated two causes of action against defendants, one sounding in negligence and the other in breach of an oral contract. Defendants’ motion for summary judgment was denied as to the negligence cause of action and a petition for writ of mandate or prohibition is now before us. We granted an alternative writ but refuse to issue the permanent writ.
Facts
Plaintiff’s first amended complaint filed on April 9, 1981, states that defendants are engaged in the business of maintaining an establishment [535]for the preparation and transportation or disposition of and for the care of dead human bodies. On November 27, 1979, plaintiff gave to defendants the temporary custody, care and possession of plaintiff’s deceased wife’s remains. Defendants placed decedent’s remains in their chapel and negligently interfered with the right of plaintiff to dispose of and to the remains of the decedent by failing to provide adequate protection for decedent’s remains. The defendants are alleged to have been negligent in that they failed to lock the door to the chapel where the decedent’s remains were placed and thus allowed access to the decedent’s remains by unauthorized persons. On that same date defendant Gill entered the chapel through the unlocked door and tipped the coffin off its stand, removed the decedent’s clothing and sexually assaulted the decedent’s remains. Other allegations were made that defendants knew or should have known that the failure to provide a secure facility would have allowed the desecration in question since prior to November 27, 1979, other persons had committed similar acts. Defendants’ motion for summary judgment, including affidavits and declarations established that prior to the date in question no remains at their mortuary had ever been sexually molested or abused. Based on this record, the trial court granted the motion as to the cause of action based upon breach of an oral contract for reasons not before us but denied it as to the first cause of action which alleged negligence on the part of the defendants.
Discussion
“It is elementary that summary judgment is a drastic measure which deprives the losing party of trial on the merits. It therefore may not be invoked unless it is clear from the affidavits (or declarations) filed in connection with the motion that there are no triable issues of fact. (Code Civ. Proc., § 437c.) Doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Lacy v. Laurentide Finance Corp., 28 Cal.App.3d 251, 256 [104 Cal.Rptr. 547]; Crescenta Valley Moose Lodge v. Bunt, 8 Cal.App.3d 682, 686 [87 Cal.Rptr. 428]; Rafeiro v. American Employers’ Ins. Co., 5 Cal.App.3d 799, 804 [85 Cal.Rptr. 701].)” (People ex rel. Riles v. Windsor University (1977) 71 Cal.App.3d 326, 331 [139 Cal.Rptr. 378].)
It is now well established in California that a party moving for summary judgment must establish that the opposing party’s action or any portion thereof is without merit. (Kelleher v. Empresa Hondurena De Vapores S.A. (1976) 57 Cal.App.3d 52 [129 Cal.Rptr. 32].)
[536]It is further clear that if the moving party fails to sustain its burden that the claims are made entirely without merit on any legal theory, the adverse party is not required to demonstrate the validity of the claims by the filing of counterdeclarations or affidavits. In Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink Bell (1977) 70 Cal.App.3d 331, at page 339 [138 Cal.Rptr. 670], the court stated: “When the moving party is the defendant the latter must conclusively negate a necessary element of the plaintiffs case and demonstrate that under no hypothesis is there a material factual issue which requires the process of a trial.” And in Murphy v. Allstate Ins. Co. (1978) 83 Cal.App.3d 38 [147 Cal.Rptr. 565], the court reinforced the well-known rule, stating “the party moving for summary judgment has the burden of showing by declarations or affidavits setting forth facts admissible as evidence in a trial that the claims or defenses of the adverse party are entirely without merit on any legal theory and that if the moving party’s showing is insufficient, the adverse party is not required to demonstrate the validity of his claims or defenses or even to file counterdeclarations or counter affidavits.” (Id., at p. 41.)
Petitioners urge that they owe no duty to plaintiff in the instant case, since plaintiff was unable to establish the existence of either prior similar acts on behalf of a third party or some knowledge on behalf of petitioners that the third party would so act whether or not he had ever done so before. They allege that absent either of the above no duty of care exists running from petitioners to plaintiff. We disagree.
“The assertion that liability must nevertheless be denied because defendant bears no ‘duty’ to plaintiff ‘begs the essential question whether the plaintiffs interests are entitled to legal protection against the defendant’s conduct.... It [duty] is a shorthand statement of a conclusion, rather than an aid to analysis in itself... . But it should be recognized that “duty” is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ (Prosser, Law of Torts, ... at pp. 332-333.)” (Dillon v. Legg (1968) 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316].)
“Any number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall.” (Weirum v. RKO [537]General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal.Rptr. 468, 539 P.2d 36]; Prosser, Palsgraf Revisited (1953) 52 Mich.L.Rev. 1, 15.)
Petitioners’ reliance on cases that found no duty because of acts committed by third parties and therefore not foreseeable is misplaced. That limited view of duty is based upon cases wherein no special relationship existed and where the defendant did not undertake to care for or take custody of plaintiffs and therefore no duty of care was imposed to control the conduct of third persons. However, it has long been held that a special relationship between parties may give rise to a duty which would not otherwise be imposed. “Although, as we have stated above, under the common law, as a general rule, one person owed no duty to control the conduct of another (Richards v. Stanley (1954) 43 Cal.2d 60, 65 [271 P.2d 23]; Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277 [40 Cal.Rptr. 812]; Rest.2d Torts (1965) § 315), nor to warn those endangered by such conduct (Rest.2d Torts, supra, § 314, com. c.; Prosser, Law of Torts (4th ed. 1971) § 56, p. 341), the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct (see Rest.2d Torts, supra, §§ 315-320). Applying this exception to the present case, we note that a relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in section 315 of the Restatement Second of Torts, a duty of care may arise from either ‘(a) a special relation ... between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation ... between the actor and the other which gives to the other a right of protection.'” ( Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166], fn. omitted, italics supplied.)
Thus, courts have increased the number of instances in which affirmative duties are imposed by expanding the list of special relationships which justify a departure from the common law rule. (See Prosser, Law of Torts (4th ed. 1971) § 56, pp. 348-350.) The basis for analysis of whether or not there is a duty is the relationship of the parties. For if the conduct of the one who is to be charged with the duty brings him into a human relationship with another where social policy requires that either affirmative action or precaution be taken on his part to avoid harm, then a duty to act or to take the precaution should be imposed by law. Justice Cardozo, more than half a century ago, clearly analyzed [538]the problem by saying: “Given a relation involving in its existence a duty of care irrespective of a contract, a tort may result as well from acts of omission as of commission in the fulfillment of the duty thus recognized by law.... What we need to know is not so much the conduct to be avoided when the relation and its attendant duty are established as existing. What we need to know is the conduct that engenders the relation. It is here that the formula, however incomplete, has its value and significance.” (H. R. Moch Co., Inc. v. Rensselaer Water Co. (1928) 247 N.Y. 160, 167 [159 N.E. 896, 898, 62 A.L.R. 1199].)
The facts of the instant case compel the imposition of duty. Once a mortuary such as petitioners’ herein undertakes to accept the care, custody and control of the remains, a duty of care must be found running to the members of decedent’s bereaved family. Whether or not that duty has been breached by the omission of petitioners in failing to lock its chapel door is a question of fact for the jury. While a duty is a question of law, foreseeability is a question of fact for the jury. (Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 46; Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277 [40 Cal.Rptr. 812]. We therefore affirm the trial court’s denial of a motion for summary judgment.
Writ denied; alternative writ discharged.
Morris, P. J., concurred.