California Clarifies Nature of “Takings” Actionable Under Elder Abuse Law

Bounds, an 88–year–old widow allegedly suffering from Alzheimer’s disease, alleges in her cross-complaint that for approximately six months, Real Parties in Interest Gerry Mayer (Mayer), Joseph Sojka (Sojka), and their associated businesses entities (KMA Group, LLC, Kopykake Enterprises, and Sojka–Nikkel Commercial Realty Group) engaged in abusive conduct, resulting in her signing, among other documents, escrow instructions authorizing the sale of real property owned by the Trust. Because escrow was cancelled, the Trust retains title to, and Bounds remains in possession of, the property. However, petitioners allege that the existence of the escrow instructions significantly impairs their right to sell the property at fair market value or to use it to secure a loan on favorable terms.

 

These alleged facts raise an issue of first impression: whether to allege a “taking” of a property right under the [California Elder Abuse] Act, it is sufficient to plead that an elder has entered into an unconsummated agreement which, in effect, significantly impairs the value of the elder’s property, or whether the Act requires that the agreement have been performed and title have been conveyed…..

As explained more fully below, we conclude that because property rights include, among other things, the right to use and sell property … petitioners’ allegations that Bounds entered into an executor agreement which significantly impaired the value of the property owned by the Trust adequately pleads a “taking” — that is, adequately pleads that Bounds has been “deprived of [a] property right …. by means of an agreement,” within the meaning of [California law] section 15610.30(c).