Jurors on Thursday sided with Fairhaven Park and Mortuary in declining to award damages to the parents of a 2-month-old boy, whose burial service was interrupted multiple times due to staff mistakes.
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William Gutierrez and Jacqueline Bahena planned a funeral for their son, Zayid Gutierrez, at the Santa Ana memorial park, where they had a burial space picked out. Their son died Feb. 27, 2022.
On the day of the funeral and burial service, on March 17 of that year, the couple was told the plot they picked wasn’t feasible, their attorney, Eric Dubin said.
Multiple mishaps led to several delays in the funeral and burial service that day, leading to the couple’s lawsuit.
Jurors began deliberating Thursday afternoon, Sept. 17, and reached verdicts for the defense by the end of the day, Fairhaven attorney Toby Magarian said.
Dubin said jurors found Fairhaven negligent, but did not award any damages to the plaintiffs.
“We are very pleased the jury found (the company that owns Fairhaven) negligent for the improper burial of their baby,” Dubin said. “We understand the law is very difficult for proving strictly emotional distress damage claims, and respect the jury and court.”
Magarian said in his closing argument Thursday the boy’s parents “were repeatedly offered refunds that were rejected.”
The attorney disputed that the contract with the couple was breached.
“It wasn’t smooth, but it was completed,” Magarian argued.
The attorney also argued that the mistakes made by the staff did not amount to “outrageous conduct,” an element required in verdicts jurors considered. He argued that something like murder or sexual abuse would qualify.
“It does not include trivialities,” Magarian argued. “These were mistakes made. None of the conduct was outrageous. … They were in an unfortunate situation because of mistakes.”
Magarian acknowledged, “It was a difficult day for the plaintiffs … but you have to determine if this rises to the level of severe emotional distress.”
Magarian said there wasn’t any evidence the couple had to seek counseling for a mistake-ridden funeral. They did, however, receive grief counseling for the death of their son, he noted.
Magarian conceded $8,745 for the funeral expenses. “They should get that back,” he said.
“But $2 million for something that was one day in their lives,” he said. “Their son was (eventually) placed in the correct vault.”
Dubin argued it is a universally held value that the dead deserve a service with dignity.
“These are sacred issues here. This is not, ‘We’ll refund your security deposit.’ There is a need for justice in this case,” he argued.
“If a civilized society tolerates the improper burial of babies, then he’s right,” Dubin said.
He accused Fairhaven of playing “legal games,” by noting the couple did not seek counseling for the awful burial service. He said if they did, then they would have been accused of doing it for their grief, not the inconvenience.
“It was a bad day? Wow,” Dubin said.
Dubin also noted how Magarian said the couple should have considered moving on to another mortuary if they were so upset about the mishaps. “They should have run?” Dubin said. “Amen. Yes.”
“They’re telling you a dignified burial is no big deal” when that is what their business is all about, Dubin said.
“Trial and error for burying a baby? No, no, no,” Dubin argued.
The attorney also argued that the “mistakes” were easily avoided.
“A 7-year-old knows a square doesn’t fit into a circle. This is not rocket science,” Dubin said of the staff’s ordering a vault too small for the casket. “That’s outrageous conduct in and of itself.”
“We’re not here for the refund,” Dubin said. “They weren’t even offering that without waivers. I’m asking for justice, accountability and fairness.”
Bahena testified she had no experience planning a funeral before, so she searched online.
“So I just looked it up on Google. The first place that came up was Fairhaven Memorial,” she testified.
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She told the staff she wanted a “baby lot.” She said, “I wanted him to be mostly surrounded with babies … I just thought that would be like a really nice, peaceful place for him, to be around other babies.”
She was told over the phone Fairhaven had a baby lot, so she made an appointment for herself and her husband to hash out the details in person.
“As soon as we met up with them, that’s when we basically found out it was all a lie,” she testified. “There was no baby plots available. They were all taken.”
So, the couple was shown a different plot near some trees. “We fell in love,” she said of the plot. “We fell in love with the trees. It just gave like a — you know, losing my son at just two months, it feels horrible. … And I just felt that him being buried down there, it would give me like the peace that I wanted.”
From that appointment on March 1 through the day of the funeral, the couple heard nothing of any issues, she testified, adding that they had a visitation for the infant the day before the funeral and were not told of any problems then either.
The family had a funeral Mass at their church, then the 80 to 100 attendees headed to Fairhaven for the burial service, she said. “And that’s when they told us, like, ‘There’s a problem. The space that you had chosen out, it’s not going to be useable anymore, so we need to figure out the next step.”‘
The problem was the company did not have the correct size vault to protect the casket from the elements and had to order one, Dubin said. But the company didn’t order one, and never intended to, he added. “They actually changed the paperwork,” he said, to a different-sized vault.
Dubin said the company has a policy of digging a grave three days before a service, but in this case, they did it the day before. The grave-diggers came across a concrete pipe in the ground and realized the plot of land was unsuitable for burial. But instead of alerting their supervisors, they went home.
He said another problem surfaced on the day of visitation, when Fairhaven officials had trouble finding the casket. The couple did not want to reschedule the burial because so many of their friends and family had taken time off work for the service. So, on the spot, the couple had to pick one of two other plots away from the tree-shaded spot they preferred.
Fairhaven’s grave-diggers brought in the earth movers and started work. “It was like a construction zone,” Dubin said.
The funeral attendees waited about three hours and were finally about to start the service without the mariachi band, which had to leave for another engagement, when they were confronted with a new problem — the casket would not fit in the vault, Dubin said.
Then Fairhaven officials pitched the couple on moving their son into a new casket that would fit into the vault, Dubin said. They did not want to do that, so Fairhaven said they would put the casket into the ground and cover it with a lid until a proper-sized vault could be acquired.
The final mishap was the failure to get doves for release at the end of the service, so staff had to scramble to get the birds for that, Dubin said.
The next day, the couple returned to the cemetery, and the staff insisted they sign waivers for a disinterment, Dubin said. The couple was reluctant to do so.
The burial was finally completed in May of that year, Dubin said.
“And no one got in trouble,” he said.
The baby lot the family wanted their child to be buried in is usually reserved for cremated remains in urns, Magarian said.
The casket they selected was larger than the usual for an infant’s burial. So, the smaller vault for the casket was put on the form, which was signed by Gutierrez, Magarian said. “It wasn’t changed.”
The grave-digging was started later than it should have been, Magarian conceded. One of their supervisors was out on bereavement leave for his father.
When Fairhaven staffers realized the cemetery plot was unacceptable, they tried to call the couple, who were likely at the funeral Mass, Magarian said.
Fairhaven officials created space in the lobby for the mariachi band hired for the burial service, so they could perform while the funeral attendees waited for a new grave to be created, Magarian said. Fairhaven offered a full-sized vault for the casket, but the family did not want to wait another hour or two for that to be placed into the ground.
Staffers “didn’t explain it very well,” Magarian acknowledged.
But the next day, when they met with the couple, they “talked about how they could make it up to the family,” Magarian said.
They offered to do another service at no expense to the family, Magarian said. “They were also offered a full refund,” adding that it amounted to about $8,500.
The staffers also sent a letter of apology to the couple, Magarian said. “We aren’t running from the mistakes of that day.”
The couple had “every right to be angry or upset” about what happened, Magarian said. “But the folks at Fairhaven did everything they could.”
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