BC524972

Defendant’s Petition to Compel Arbitration

TENTATIVE:
Petition to Compel Arbitration is DENIED. Defendant has failed to meet its burden of establishing that a valid enforceable arbitration agreement exists between plaintiff and defendant, as it has failed to establish that at the time the agreement was executed by plaintiff’s son as “Responsible Party” that the signator had authority from plaintiff to bind her to an arbitration agreement.

FACTUAL BACKGROUND:
Plaintiff Helen Millar alleges that she was admitted to defendant’s facility, Singing Oaks Retirement Community, in October, 2012 after undergoing surgery due to a broken arm and pelvis she suffered during a fall at her home. Plaintiff alleges that upon admission to the facility she was at high risk for falls, and the facility was aware of this circumstance, but failed to implement appropriate fall risk prevention measures, as a result of which within the first week of her residency plaintiff suffered a fall resulting in a fractured femur. The complaint alleges that plaintiff suffered at least three more falls while a resident of the facility. It is also alleged that during plaintiff’s residency, the facility failed to consistently monitor and observe Millar’s condition, which resulted in her suffering a urinary tract infection. Plaintiff alleges that the facility was underfunded, understaffed and personnel were not properly trained in a profit scheme and in conscious disregard of the increased likelihood that residents such as plaintiff would suffer harm and injuries.

The complaint alleges causes of action for Elder Abuse and Negligence.

ANALYSIS:
In this case, defendant has alleged the existence of a written arbitration agreement. Where a petition is opposed, the burden is on the party seeking to compel arbitration to establish the existence of a valid agreement to arbitrate. Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356. The determination of arbitrability is a legal question subject to de novo review. An appellate court will uphold the trial court’s resolution of disputed facts if supported by substantial evidence. Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267.

It is held that because the existence of the agreement is a statutory prerequisite to granting a petition to compel arbitration, the petitioner bears the burden of proving its existence by a preponderance of the evidence. Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230, citing Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th at p. 413.

The opposition argues that defendant has failed to show that a valid arbitration agreement ever existed applicable to this case because the agreement to arbitrate was signed by Kimball Millar, not plaintiff Helen Millar, and there is no showing that Kimball Millar had authority to enter into the arbitration agreement on behalf of his mother.

The Admission Agreement was entered into by “Responsible Party” Kimball Millar, and was signed by Kimball R. Millar as “Resident’s Responsible Party or Conservator: (If Applicable).” [Ex. A].

The opposition submits a declaration from Kimball Millar stating that he is not now, nor was he at the time of his mother’s admission to Singing Oaks, Helen Millar’s Conservator. [Millar Decl., para. 3].

Plaintiff relies on case law in which it is held that nursing home residents cannot be bound to arbitration agreements signed by their children in the absence of a showing that the child had the authority to bind the parent and act as an agent.

In Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, the Second District affirmed a trial court order denying a petition to compel arbitration, in a case where decedent’s adult daughters had signed arbitration agreements after their comatose mother had been admitted to a skilled nursing facility, where there was no evidence that the daughters had authority from their mother to do so:
“Defendants bore the burden of establishing a valid agreement to arbitrate. 2 Defendants admit Johnnie Pagarigan did not sign either arbitration agreement. They further admit Ms. Pagarigan was mentally incompetent at the time she was admitted to Magnolia Gardens and at the time her daughters signed the arbitration agreements approximately a week later. There was no evidence Ms. Pagarigan had signed a durable power of attorney. It necessarily follows Ms. Pagarigan lacked the capacity to authorize either daughter to enter into the arbitration agreements on her behalf. Consequently no valid arbitration contract exists.”
Pagarigan, at 302.

The Second District went on to reject arguments that the daughters obtained such authority by being next of kin, or because they were statutorily authorized to make medical decisions on her behalf.

Plaintiff also relies on Goliger v. AMS Properties, Inc. (2004) 123 Cal.App.4th 374, 375-376, in which the Second District, following Pagarigan, affirmed the trial court’s denial of a petition to compel arbitration, where a daughter had signed the arbitration agreement as the “responsible party” for her mother, rejecting arguments that agency had been established in the case because the mother had permitted the daughter to make medical decisions for her:
“AMS tries to distinguish Pagarigan. It notes that the mother in that case was comatose and therefore could not consent to her children making any decisions for her. Thus, it was reasonable, AMS argues, for the court to limit the children to those choices permitted them by statute regarding medical care, but to refuse to make them her agents for other purposes. Here, in contrast, mother was mentally alert and consented to Binshtock making health care decisions for her. Thus, there was no similar reason in AMS’s view to narrowly construe the grant of such powers. AMS’s argument does not, however, justify expanding Binshtock’s powers beyond what the evidence shows mother permitted. The record shows mother allowed Binshtock to make medical decisions for her. As the Pagarigan court stated in words that are equally appropriate here, “[the nursing home d]efendants do not explain how the next of kin’s authority to make medical treatment decisions for the patient … translates into authority to sign an arbitration agreement on the patient’s behalf at the request of the nursing home.” (Pagarigan, supra, 99 Cal.App.4th at p. 302.)
Goliger, at 377.

Here, as in the cases cited, the petitioner has failed to present any evidence which would support a finding that there existed a valid agreement to arbitrate between the facility and plaintiff, and certainly has not established the validity of the agreement by a preponderance of the evidence. There are no substantial facts offered that would suggest that plaintiff gave her authority to her son to bind her to the arbitration agreement, and it appears from the showing in opposition that she likely could not have done so, as at the time the agreement was entered into she was 90 years old and had a diagnosis of dementia. [See Millar Decl., para. 3; Ex. F]. Such authority might be shown by establishing the existence of a health care power of attorney or durable power of attorney. See Hogan v. Country Villa Health Services (2007) 148 Cal.App.4th 259; Garrison v. Superior Court (2005, 2nd Dist.) 132 Cal.App.4th 253. Defendant has failed to make any such a showing.

The petition is therefore denied for failure of petitioner to establish that a valid arbitration agreement was entered into.

Plaintiff also cites to Fitzhugh v. Granada Healthcare and Rehabilitation Center, LLC (2007) 150 Cal.App.4th 469, arguing that plaintiff in any case could not have waived her right to have her Elder Abuse cause of action heard in court. In Fitzhugh, the court of appeal affirmed the trial court’s denial of a petition to compel arbitration of an action for wrongful death, elder abuse, fraud and violations of the Patient’s Bill of Rights arising from the alleged mistreatment of plaintiffs’ decedent in a healthcare and rehabilitation center. Defendants had conceded that the agreement at issue expressly excluded claims for Violation of the Patient’s Bill of Rights, but argued that the other causes of action should have been subject to the arbitration provision. In Fitzhugh, one agreement at issue expressly provided for binding arbitration of “any claim” arising out of the provision of services by the facility, including those “which allege violations of the Elder Abuse and Dependent Adult Civil Protection Act…” Fitzhugh, at 472.

The court of appeal as one basis for its affirmance noted that although the wrongful death action in that matter was arguably subject to the arbitration provision, the trial court had acted within its discretion to refuse to have the matters proceed in two different forums under the circumstances. Fitzhugh, at 475-476.

In connection with the Elder Abuse cause of action, the court of appeal observed that it, like the Patient’s Bill of Rights claim, could not have been subject to arbitration as a matter of public policy. Fitzhugh, at 476.

As noted above, the court of appeal made this ruling even though the arbitration provision at issue expressly included within its terms the arbitration of claims arising under the Elder Abuse Act.

However, although not cited in the papers, the Second District has disagreed with Fitzhugh in this respect, and expressly held that Fitzhugh does not stand for the proposition that an Elder Abuse claim is per se not subject to arbitration, and that the trial court had erred in the case before it in refusing to compel arbitration of the arbitrable claims under CCP § 1282.2(c) where there was no situation involving third parties, but only separate causes of action. See Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1409, n. 3.

In sum, for all of the reasons set forth above, the Petition to Compel Arbitration is denied.

In addition to whatever other dates in this case that might appear on the Court’s calendar between now and then – – e.g., discovery motion hearings – – the following dates are hereby set:
– – Continued Case Management Conference and MSC-Setting, 6-24-14, 8:30 a.m.
– – Post-Mandatory Settlement Conference Status Conference, 9-10-14, 8:30 a.m. The parties are ordered to contact Judge Patricia Schegg forthwith to schedule an MSC in July or August 2014.
– – Final Status Conference, 10/24/14, 10:00 a.m.
– – Trial, 11-3-14, 9:00 a.m.