Relatives ordered to transfer home and pay $34,375 in elder abuse case. Ventura County.

Summary

Elderly mother’s home is purchased with her money but placed in daughter and son-in-law's names; they delay or refuse transfer of home until the court orders transfer of deed nunc pro tunc and awards $34,375.

The Case

  • Case Name: Untalan v. Gutierrez
  • Court and Case Number: Ventura County Superior Court/ 56-2011-00407089-CU-PO-VTA
  • Date of Verdict or Judgment: Tuesday, December 18, 2012
  • Date Action was Filed: Monday, October 31, 2011
  • Type of Action: Elder Abuse
  • Judge or Arbitrator(s): Hon. Mark Borell
  • Plaintiffs:
    June S. Untalan, 88
  • Defendants:
    Charles C. Gutierrez
    Marie U. Gutierrez
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $34,375 plus transfer of the house (about $500,000), plus attorney's fees
  • Economic Damages:

    $9,375, plus transfer of the house to the elder (worth about $500,000), plus attorney's fees in an amount to be determined by the Court under EADACPA.

  • Non-Economic Damages:

    $25,000

  • Trial or Arbitration Time: 8 days
  • Jury Deliberation Time: 1.5 days
  • Jury Polls: 11-1 on most issues
  • Post Trial Motions & Post-Verdict Settlements: Anticipated Attorney's Fee Motion; Stipulation to Enter Judgment against only Charles C. Gutierrez on Elder Abuse and Breach of Fiduciary Duty Claims

The Attorneys

  • Attorney for the Plaintiff:
    Nettesheim & Nettesheim by Christoph T. Nettesheim and Christine M. Nettesheim, Ventura
  • Attorney for the Defendant:
    Arnold LaRochelle Mathews VanConas and Zirbel, LLP by Dennis LaRochelle, Oxnard

The Experts

  • Plaintiff’s Medical Experts:
    None
  • Defendant's Medical Experts:
    None
  • Plaintiff's Technical Experts:
    Todd Cuffaro, real estate finance, San Diego
  • Defendant's Technical Experts:
    None

Facts and Background

  • Facts and Background:

    At the time her husband died, the elderly plaintiff decided to move to California from her native Guam.  In 1985, while she was wrapping up her husband's estate in Guam, defendants (her son-in-law and eldest daughter) offered to help her buy a new home. Initially, they used at least some of their own money to make the down payment, and they took out the loan in their name, although plaintiff moved into the home.

    Plaintiff sold her properties in Guam and from the proceeds gave defendants about $150,000 for the house. She repaid the down payment in 1992. She made all of the tax and insurance payments from 1985 to the present. Mortgage payments on the house were in dispute (see contentions below).

    In 2008, defendants secretly put the house in their family trust, set up to benefit only defendants and defendants' children, not plaintiff or her other children.

    In October 2011, defendants served plaintiff with a notice to quit or pay rent in 3 days. No one ever claimed she was a renter, until that day. Plaintiff then filed suit. 

  • Plaintiff's Contentions:

    That over the years, plaintiff asked to have the house put in her name, and was told by defendants that she could not because she allegedly would not qualify for a loan. According to expert testimony (the only expert), that was untrue, and from 1992 to the present she would have qualified for a loan and could have taken over the house and had it in her name.

    That defendants knew (having experience buying and/or selling dozens of real properties around the country) plaintiff would have qualified for a loan years before 2011, and that they deceived her about that in order to keep the house in their name as a power play in the family or out of greed, or both.

    That defendants owed her fiduciary obligations in that they held title to the property that was admittedly hers, and that they breached that duty by failing to act in her best interest and transfer the property to her when demanded.

    That when in February 2011, plaintiff finally demanded that the house be put in her name, defendants promised they would, but delayed and deferred, giving numerous explanations for why they could not do it.

    That in September and October 2011 plaintiff mailed the mortgage payments to defendants (evidenced by post office proofs of mailing), but defendants denied receiving them. One of the two payments was returned by the post office after three attempts at delivery of certified mail to defendants' home. The other was delivered according to the post office's confirmation of delivery procedure.

    That defendants violated the elder abuse statute because they kept her property for a wrongful use. That their excuses for failing to return the property to her were just that, excuses designed to keep the property in their name until the plaintiff died. Excuses included: possible tax consequences to defendants, possible increases in property tax to plaintiff, her inability to qualify for a loan, and their claims that they paid (without any proof) the first year's mortgage, tax and insurance payments, and their claim that they were never repaid the down payment, despite a 1992 entry in a check register showing payment. Plaintiff was alive at trial.

  • Defendant's Contentions:

    That defendants made the mortgage payments for the first year because it took plaintiff one year to sell some of her Guam property. (Defendants used their money to make another year of payments in 1989, but plaintiff paid them back for those advances.)

    That they were just trying to help their mother buy the house in 1985; that they always acted in her best interest; that they believed that she would not qualify for a loan; that if they gave their mother the property back when demanded, they would have owed capital gains taxes; that they were owed about $20,000 plus interest from the first year's mortgage and tax payments, and another $20,000 from the down payment.

    That the only way to avoid capital gains taxes was to procure a court order correcting the name of the 1985 grantee by inserting plaintiff's name rather than defendants'. Plus plaintiff needed to secure sufficient funds to pay off the mortgage of $115,000 since the loan was in defendants' name. That they told plaintiff that the transfer would be made if plaintiff took over or paid off the mortgage loan that was in defendants' name and if plaintiff would be responsible for any capital gains tax.

    That it was defendant Marie Gutierrez's siblings (plaintiff's other children) who convinced plaintiff that defendants were trying to steal plaintiff's house. Plaintiff then stopped communicating with the defendants. All communications were then conducted by the siblings who accused defendants of being liars and thieves. The siblings told plaintiff that she would never get the title in her name despite the defendants stating in writing on 2/17/11 that they had no right to the house and that the house belonged to plaintiff.

    That defendants served plaintiff notice to quit or pay rent because plaintiff stopped paying the mortgage. After the notice to pay was served, plaintiff started to pay the mortgage again.

Injuries and Other Damages

  • Plaintiff suffered economic damages in the form of increased interest payments (because defendants were not owner-occupiers, the two times they refinanced her home in 1998 and 2002, they ended up paying a higher interest rate). Those economic damages amount to $9,375.

    Plaintiff also suffered emotional damages from being deprived of ownership rights to her home, and having the fear that she would not be able to control her home, sell it, put it in her will, etc.

Additional Notes

Per plaintiff's counsel, although at the outset of trial, defendants claimed they were owed money from the down payment and the first year's mortgage payments, etc., they gave that claim up by the time the parties rested. Similarly, while they had refused to transfer the house to plaintiff before or stipulate to an order transferring the house to her before trial, on the day of closing, they agreed to an order from the Court changing title to the house so that it would be in Mrs. Untalan's name alone, effective 1985. The house is worth about $500,000.

Per defense counsel, defendants' responsibility for the outstanding mortgage of $115,000 and their exposure to capital gains taxes ended with the equitable order that defendants sought and plaintiff finally agreed to on the eve of trial.

Per plaintiff's counsel, at mediation, plaintiff offered to accept $100,000 plus the house, with plaintiff assuming responsibility for the mortgage ($115,000) and waiving attorney's fees (at that time $140,000). At mediation, defendant offered to transfer the house and the mortgage responsibility, and demand waiver of fees, but no cash. During jury selection, plaintiff offered to let defendant keep the house (and the mortgage), and waive all other claims (including fees), in exchange for $500,000. Defendant did not counter.

Defendants claim that they succeeded in securing the court order they always sought, i.e., that title be transferred to plaintiff, nunc pro tunc, to 1985 and that plaintiff be responsible for paying off the current mortgage balance of $115,000. Per defense counsel, plaintiff would not agree until the eve of trial to such an order. At the outset of the litigation, plaintiff demanded that defendants be responsible for paying off the mortgage and accused defendants of misappropriation of funds, fraud, intentional infliction of emotional distress, negligent infliction of emotional distress and so forth. Plaintiff's complaint asserted 13 causes of action, all of which were abandoned by plaintiff during trial except for elder abuse, fraud and breach of fiduciary duty. Plaintiff did not recover on the fraud count.

Disclaimer

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