Case Number: 19STCV30635 Hearing Date: December 10, 2019 Dept: 31

PETITION TO COMPEL ARBITRATION IS DENIED.

Background

On August 29, 2019, Plaintiffs Albert Melkonian, as Successor in Interest of Arsham Melkonian (hereinafter referred to as “Decedent Melkonian”) and individually, filed the instant action against Defendants OPHC, LLC dba Oakpark Healthcare Center; Citrus Administrative Services, Inc.; Soopian Ebrahim; Alvart Melkonian; Aida Melkonian; and Does 1 through 100. The Complaint asserts causes of action for:

Elder Abuse and Neglect (pursuant to the Elder Abuse and Dependent Adult Civil Protection Act – Welf. & Inst. Code §§ 15600, et seq.);

Negligence/Willful Misconduct;

Wrongful Death; and

Violation of Patients’ Bill of Rights (pursuant to Health & Safety Code § 1430).

Legal Standard

California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-72.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, the party opposing the petition then bears the burden of proving by a preponderance of the evidence any fact necessary to demonstrate that there should be no enforcement of the agreement, and the trial court sits as a trier of fact to reach a final determination on the issue. (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413.) The Court is empowered by CCP Section 1281.2 to compel parties to arbitrate disputes pursuant to an agreement to do so.

CCP Section 1281.2 states that:

The court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:

(a) The right to compel arbitration has been waived by the petitioner; or

(b) Grounds exist for the revocation of the agreement.

(c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. For purposes of this section, a pending court action or special proceeding includes an action or proceeding initiated by the party refusing to arbitrate after the petition to compel arbitration has been filed, but on or before the date of the hearing on the petition. This subdivision shall not be applicable to an agreement to arbitrate disputes as to the professional negligence of a health care provider made pursuant to Section 1295.

(CCP § 1281.2.) The party petitioning to compel arbitration under written arbitration agreement bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, and party opposing petition must meet the same evidentiary burden to prove any facts necessary to its defense. The trial court acts as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence. (CCP § 1281.2; Provencio v. WMA Securities, Inc. (2005) 125 Cal.App.4th 1028, 1031.)

Discussion

Defendants OPHC, LLC dba Oakpark Healthcare Center and Citrus Adminstrative Services, Inc. (hereinafter “Defendants”) seek an order compelling Plaintiffs to arbitrate all claims asserted in the Complaint and to say the action pending arbitration.

Existence of an Arbitration Agreement

Under both the Federal Arbitration Act and California law, arbitration agreements are valid, irrevocable, and enforceable, except on such grounds that exist at law or equity for voiding a contract. (Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.) The party moving to compel arbitration must establish the existence of a written arbitration agreement between the parties. (Code of Civ. Proc. § 1281.2.) In ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute, and general principles of California contract law help guide the court in making this determination. (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.)

Once petitioners allege that an arbitration agreement exists, the burden shifts to respondents to prove the falsity of the purported agreement, and no evidence or authentication is required to find the arbitration agreement exists. (See Condee v. Longwood Mgt. Corp. (2001) 88 Cal.App.4th 215, 219.) However, if the existence of the agreement is challenged, “petitioner bears the burden of proving [the arbitration agreement’s] existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413. See also Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1058-1060.)

“With respect to the moving party’s burden to provide evidence of the existence of an agreement to arbitrate, it is generally sufficient for that party to present a copy of the contract to the court. (See Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218, 105 Cal.Rptr.2d 597 (Condee ); see also Cal. Rules of Court, rule 3.1330 [“A petition to compel arbitration or to stay proceedings pursuant to Code of Civil Procedure sections 1281.2 and 1281.4 must state, in addition to other required allegations, the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference”].) Once such a document is presented to the court, the burden shifts to the party opposing the motion to compel, who may present any challenges to the enforcement of the agreement and evidence in support of those challenges. [Citation]” (Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, 1160.)

Defendants present evidence of an Arbitration Agreement that was purportedly executed upon admission of the decedent to Defendants’ Skilled Nursing Facility by the decedent’s designated agent and daughter Ayda Melkonian. (Healey Decl., Exh. A.)

In opposition, Plaintiffs argue that Defendants have failed to meet their burden establishing the validity of the Arbitration Agreement because the evidence shows that Ayda Melkonian did not sign the Agreement. Plaintiffs present the declaration of Ayda Melkonian who attests to having reviewed the Arbitration Agreement after Defendants filed their Petition and confirms under penalty of perjury that she did not sign the agreement. (Melkonian Decl., ¶ 3.) Plaintiffs assert that the signature purporting to be Decedent Melkonian’s representative is not Ayda Melkoninan’s and that at no time did anyone at Oakpark Healthcare Center present her the Arbitration Agreement to sign. (Melkonian Decl., ¶ 3.)

Plaintiffs contend that Defendants seemingly concede this point as the Declaration attached to Defendants’ Petition attempting to authenticate the document does not state who signed the Arbitration Agreement on behalf of the facility or Decedent Melkonian. Plaintiffs argue that while the brief itself claims Ayda Melkonian signed it, this is not evidence and not proper authentication of the signature. Plaintiffs assert that, without more, a contract should not be enforceable without some evidence of who signed on behalf of Decedent Melkonian.

Plaintiffs contend that Defendants present no evidence that Decedent Melkonian conveyed authority to anyone to sign the Arbitration Agreement on his behalf. Plaintiffs argue that it is unclear from Defense Counsel’s declaration whether Decedent Melkonian was in the room at the time the Arbitration Agreement was signed, who signed on behalf of the facility, what was said before it was signed, or whether Decedent Melkonian was made aware and approved someone signing on his behalf. There is no evidence about any other circumstances surrounding the signing of the Agreement. Plaintiffs also assert that there is no explanation as to why Decedent Melkonian did not sign the Agreement himself and Defendants do not attach a valid Power of Attorney or other documents confirming that Decedent Melkonian was either incompetent or prepared any kind of legal instrument allowing someone to act on his behalf.

Plaintiffs additionally contend that the Court should deny Defendants’ petition because the wrongful death Plaintiff – Albert Melkonian – did not agree to arbitrate his claims. Plaintiffs argue that Albert Melkonian, the decedent’s son, did not sign the Arbitration Agreement nor did he agree to waive a jury trial for his wrongful death claim.

The Court finds that Defendants have failed to carry their burden establishing the existence of an Arbitration Agreement between the parties. Although Defendants present evidence of an Arbitration Agreement that was purportedly signed by Decedent Melkonian’s daughter, Ayda Melkonian, she denies having signed the agreement and Defendants have failed to counter that evidence. Plaintiffs present evidence challenging the existence of a valid Arbitration Agreement and the burden of proving the Arbitration Agreement’s existence by a preponderance of the evidence is thus placed on Defendants. Defendants have failed to file a Reply in support of their petition, essentially conceding the veracity of Plaintiffs’ assertion that Ayda Melkonian did not sign the Arbitration Agreement. Accordingly, there is no evidence before the Court that an Arbitration Agreement exists between the parties.

Based on the foregoing, Defendants’ petition to compel arbitration and stay proceedings is DENIED.

Moving party to give notice.