Filed 10/2/19 Martin v. Pacifica Orange County LLC CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RICKY MARTIN, et al.,

Plaintiffs and Respondents,

v.

PACIFICA ORANGE COUNTY LLC, et al.,

Defendants and Appellants.

G056568

(Super. Ct. No. 30-2018-00966488)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Linda S. Marks, Judge. Affirmed.

Lewis Brisbois Bisgaard & Smith, Kathleen M. Walker, Lann G. McIntyre and Mason T. Smith for Defendants and Appellants.

Lanzone Morgan, James M. Morgan, Anthony C. Lanzone, Amber M. Tham and Ayman Mourad for Plaintiffs and Respondents.

Defendants Pacifica Orange County LLC, Pacifica Senior Living Management LLC, and Pacifica Companies LLC (collectively, defendants), appeal from a denial of their motion to compel arbitration of all claims alleged against them. The trial court concluded defendants, who are not signatories to the written agreement containing the arbitration clause on which they rely, did not meet their burden of demonstrating the existence of a valid agreement to arbitrate. We find no error in the trial court’s determination and we affirm the order.

FACTS

Years back, Ricky Martin (Martin) moved into a licensed residential care facility for the elderly named Villa Rosa Memory Care. His wife, who had a durable power of attorney with respect to his care, signed a rental agreement (Agreement) on his behalf. The other party to the agreement was Villa Rosa MC CA Care Properties, LLC, which was acting as an agent for Villa Rosa Memory Care.

While Martin was living at the care facility, ownership and management of it changed hands. A letter sent to residents notifying them of the change specified both ownership and management were transferred to Pacifica Companies, LLC—the former from Villa Rosa, LP, and the latter from Frontier Management, LLC.

After Martin passed away, his wife and his children (collectively, plaintiffs) filed suit against defendants for elder abuse and neglect, as well as wrongful death. In response, and relying on an arbitration clause contained in the Agreement, defendants filed a motion to compel arbitration.

The arbitration clause provided, in relevant part: “By signing below, you agree that any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at the Community, whether made against us or any other individual or entity, including, without limitation, personal injury claims, shall be resolved by submission to neutral, binding arbitration in accordance with the Federal Arbitration Act[.]” The Agreement further provided the arbitration clause (1) was to survive the earlier termination of the agreement by, among other events, Martin’s death, and (2) was binding on the parties to the Agreement, as well as “their spouses, heirs, representatives, executors, Executive Directors, successors, assigns, managers, and agents[.]”

In support of their motion, defendants offered the declaration of Mandy Taylor, an employee of Pacifica Orange County, LLC, and the executive director of Pacifica Senior Living South Coast. She stated Pacifica Senior Living Management, LLC took over both ownership and management of the residential facility where Martin lived from Frontier Management, LLC. Following plaintiffs’ opposition, defendants submitted a revised declaration from Taylor in which she elaborated that “[w]ith the change of ownership and management of the facility, Pacifica Senior Living Management, LLC assumed the rights and responsibilities outlined in [the Agreement].”

The trial court took the matter under submission following a hearing, and thereafter issued an order denying defendants’ motion without prejudice. It explained defendants did not meet their burden of proving the existence of an enforceable arbitration agreement. They were not signatories to the Agreement and the court found Taylor’s declarations were “deficient and lack[ed] the proper foundation to establish enforceability as to the non-signatory defendant[s].”

Defendants timely appealed.

DISCUSSION

Defendants contend the trial court should have granted their motion to compel because they demonstrated one of them is a successor to an original party to the Agreement. They alternatively argue they may invoke the Agreement’s provisions because they are third party beneficiaries of it. The second issue is waived due to defendants’ failure to raise it below (In re Marriage of Eden-King & King (2000) 80 Cal.App.4th 92, 117), and the first is without merit.

Code of Civil Procedure sections 1281 and 1281.2, which govern petitions to compel arbitration, reflect a ‘“strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.’ [Citations.]” (Adajar v. RWR Homes, Inc. (2008) 160 Cal.App.4th 563, 569.) When the parties to an arbitrable controversy have agreed in writing to arbitrate it and one has refused, the court, under section 1281.2, must ordinarily grant a petition to compel arbitration. (Ibid.) That said, the law does not compel persons to accept arbitration of controversies which they have not agreed to arbitrate. (Ibid.) Thus, “‘“‘when presented with a petition to compel arbitration the trial court’s first task is to determine whether the parties have in fact agreed to arbitrate the dispute. [¶] . . .’ [Citation.]” [Citations.] “A party seeking to compel arbitration has the burden of proving the existence of a valid agreement to arbitrate. [Citations.] Once that burden is satisfied, the party opposing arbitration must prove by a preponderance of the evidence any defense to the petition.”’” (Hernandez v. Ross Stores, Inc. (2016) 7 Cal.App.5th 171, 176.) We review a trial court’s denial of a petition to compel arbitration for substantial evidence unless there is no relevant factual dispute. (Ibid.; Rice v. Downs (2016) 248 Cal.App.4th 175, 185.)

Here, the trial court appropriately never got past the first analytical step. It is undisputed none of defendants were party to the Agreement. And although they claimed to be the successor to the sole other party who executed the agreement besides Martin, there was insufficient evidence to demonstrate the link. The original signatory was Villa Rosa MC CA Care Properties, LLC. Taylor’s declaration made no mention of that entity. Rather, she stated Pacifica Senior Living Management, LLC succeeded to the rights and responsibilities of Frontier Management, LLC. And nothing else in the record evidences a link between the latter and the original signatory.

The trial court’s concern about the foundation for Taylor’s statements is also supported by the record. Taylor indicated she is an employee of Pacifica Orange County, LLC, and said her duties include reviewing admission packets and business files. She then proceeds to say she has personal knowledge of a different entity’s takeover of the residential care facility where Martin lived, and claims the takeover resulted in that different entity succeeding to the rights and responsibilities outlined in the Agreement. Without any explanation of the connection between her position and duties and the change in ownership and management situation, there was no foundation for Taylor’s latter statements.

Defendants note the Agreement expressly authorized the original signatory to assign the agreement to any successor-in-interest it wished. While that may be true, there nevertheless remains the open question of whether any assignment occurred in the first instance.

For these reasons, the trial court did not err in denying defendants’ motion to compel.

DISPOSITION

The order is affirmed. Plaintiffs are entitled to costs on appeal.

THOMPSON, J.

WE CONCUR:

MOORE, ACTING P. J.

GOETHALS, J.