2017-00213057-CU-PO

Mary Vochatzer vs. Golden National Senior Care

Nature of Proceeding: Petition to Compel Arbitration

Filed By: Swann, Thomas C.

Defendants’ Motion to Compel Arbitration is DENIED.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by with C.R.C., Rule 3.1308 and Local Rule 1.06(D). Local Rules for the Sacramento Superior Court are available on the Court’s website at Counsel for moving party is ordered to notify opposing party immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06(B).

Complaint

The Complaint filed on May 25, 2017 by Plaintiffs Mary Vochatzer, by and through her successor in interest, Gary Vochatzer and Gary Vochatzer, individually, alleges a 1st cause of action for elder abuse (W&I §§15600, et seq.), a 2nd for negligent infliction of emotional distress, a 3rd for violation of Patients’ Bill of Rights and a 4th for wrongful death against Defendants Golden National Senior Care, LLC, Beverly Enterprises, Inc. and Does 1-100.

Agreement to Arbitrate

Moving party defendants assert that the parties agreed to submit this controversy to Alternative Dispute Resolution (ADR) pursuant to the Alternative Dispute Resolution document executed by Gary Vochatzer.

Defendants assert that Plaintiffs’ decedent Mary Vochatzer was admitted to Golden Living Center – Chateau on May 25, 2016. At the time of this admission, Mary Vochatzer had a valid and enforceable Durable Power of Attorney for Health Care (“DPOA”) identifying Gary Vochatzer as her attorney in fact. Under the Durable Power of Attorney for Health Care, defendants contend that Gary Vochatzer had “full power and authority to make health care decisions” for Decedent. Gary Vochatzer executed the ADR agreement with defendants, pursuant to the authority granted to him by the DPOA.

The law contemplates the execution of an ADR Agreement to be a “health care decision.” (Garrison v. Superior Court (2005) 132 Cal. App. 4th 253; Hogan v. Country Villa Health Services (2007) 148 Cal. App. 4th 259.)

In opposition, Plaintiffs assert that moving party defendants have the burden of establishing a valid contract to arbitrate, but have failed to do so. There is no public policy in favor of compelling persons to accept the arbitration of controversies they have not agreed to arbitrate. (Victoria v. Superior Court (1985) 40 Cal.3d 734, 744.) Absent a clear and unmistakable agreement to arbitrate, the court will not infer the waiver of the right to a jury trial. (Titan Group, Inc. v. Sonoma Valley County Sanitation Dist. (1985) 164 Cal.App.3d 1122, 1127-1128, 1129.) “While this state has an interest in promoting good health care to its citizens, it has an equal interest in safeguarding citizens from unknowing waivers of the right to jury trial in civil cases.” (Rosenfield v. Superior Court (1983) 143 Cal. App. 3d 198, 203.)

Here, the plaintiffs assert that Mary Vochatzer never agreed to arbitrate. The Durable Power of Attorney for Health Care only became effective at the time of her incapacity to make health care decisions. The DPOA provides that “you [Mary Vochatzer] have the right to make medical and other healthcare decisions so long as you can give informed consent with respect to the particular decision” (Renneisen Dec., Exh. A., p.1 ) [emphasis added]

Probate Code, § 4682 provides: “Unless otherwise provided in a power of attorney for health care, the authority of an agent becomes effective only on a determination that the principal lacks capacity, and ceases to be effective on a determination that the principal has recovered capacity.”

The Law Revision Comment to that code section provides: “As under former law, the default rule is that the agent is not authorized to make health care decisions if the principal has the capacity to make health care decisions.

“A patient is presumed to have the capacity to make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate. This presumption is a presumption affecting the burden of proof.” (Prob. Code, § 4657.) “Unless otherwise specified in a written advance health care directive, for the purposes of this division, a determination that a patient lacks or has recovered

capacity, or that another condition exists that affects an individual health care instruction or the authority of an agent or surrogate, shall be made by the primary physician.”(Prob. Code, § 4658.)

A determination of incapacity cannot be tacit because Probate Code section 4732 provides that “[a] primary physician who makes or is informed of a determination that a patient lacks or has recovered capacity” is required to “promptly record the determination in the patient’s health care record and communicate the determination to the patient, if possible, and to a person then authorized to make health care decisions for the patient.” (Goldman v. Sunbridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1170.)

Here, moving party defendants have presented no evidence that the decedent’s primary care physician ever declared her to lack capacity to make her own decisions. Rather, the Physician Admit Progress Notes dated 6/3/16 by Dr. Shrivastava reflects that “Mary Vochatzer is able to understand and sign his/her admission agreement, and has the capacity to make health care decisions.” (Renneisen Dec., Exh B) On May 25, 2016, Dr. Shrivastava also prepared a Clinical Health Status report reflecting that Mary was “not cognitively impaired” and was alert and oriented to surroundings with no memory impairment. (Renneisen Dec., Exh C) Several subsequent cognitive assessments also noted that her memory was good and that she had the ability to make decisions for herself.

Plaintiffs assert that defendants have not and cannot show that Ms. Vochatzer was incompetent or incapable of making her own decisions, including the decision whether to sign, or not sign, an arbitration agreement. Under the terms of the DPOA and the requirements of the Probate Code, defendants’ motion to compel arbitration must be denied because they have not and cannot show that Ms. Vochatzer was not competent to make her own healthcare decisions at the time the document was signed. On this basis the petition shall be denied.

Additionally, plaintiffs oppose the motion to compel arbitration, on the grounds that no representative of the defendants has signed the Alternative Dispute Resolution document. Although the document recites that it “shall be deemed to be binding upon the Facility, without the need for any signature by a Facility representative, when it has been signed by a Resident or by a person on Resident’s behalf.” (Defendants’ Exhibit 1, at p. 1.), Plaintiffs contend that it is a legal nullity that either Mary or Gary Vochatzer’s signature could legally bind the facility to an agreement. C.C.P., sec. 1281. In the absence of its signature, the Facility cannot be bound by the terms of the ADR agreement.

In the absence of a valid contract to arbitrate between Defendants and Mary Vochatzer, the petition to compel arbitration must be denied.

Gary Vochatzer Individual Claims

Defendants further assert that by signing the Arbitration Agreement on behalf of his mother (even if he had no authority to do so) he is personally bound by that agreement.

Article 1 of the Arbitration Agreement provides in pertinent part:

“If this Agreement is signed by a person other than the Resident, on behalf of the

Resident, then the signer shall be deemed a party to this Agreement and bound to all the terms hereof (emphasis added.)”

Plaintiffs assert that the independent claims of Gary Vochatzer for wrongful death and negligent infliction of emotional distress are not arbitrable.

Goldman v. Sunbridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1176, provides a similar factual and legal posture to this action. There, the court found that a family member’s signature on an arbitration agreement as the resident’s legal representative, did not bind the family member in his individual capacity. Because there was no such person acting as legal representative at the time the arbitration agreement was signed, there was also no legal representative to sign in his or her individual capacity. Id.

Here, the Court has found that as Mary Vochatzer was competent at the time of her admission, the sole signature of her son was ineffective to bind either of them to the arbitration agreement.

A long line of cases has held that a decedent’s adult children are not bound by arbitration agreements signed by the decedent or her unauthorized agent. (See Oppo, 12:5-14) (see, e.g. Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC (2007) 150 Cal.App.4th 469; Daniels v. Sunrise Senior Living (2013) 212 Cal.App.4th 674.)

The motion is denied.