Case Number: BC555343    Hearing Date: November 07, 2014    Dept: B

NOTICE: Department B will be dark on November 7, 2014. Please review the following tentative ruling. If you wish to have oral argument, please contact opposing counsel and agree upon one of the following dates for argument: November 21 or December 5. Then, please send an email to lmcfarlane@lacourt.org stating your case number, the agreed upon date for argument, and which party will give notice. The email must be received by 4:30 p.m. on November 7, 2014, or the Court’s tentative ruling will be the ruling and order of the Court. You may also send an email if you submit to the tentative ruling.

TENTATIVE RULING:

Petition to compel Arbitration

This case arises from the Plaintiffs’ claim that the Defendants engaged in elder abuse against Tran Truong and caused her wrongful death. Trial is set for February 22, 2016.

This hearing concerns the Defendants’ motion to compel arbitration. CCP section 1281.2 permits the Court to order parties to a written arbitration agreement to arbitrate a controversy. Since the party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement, the Defendants have the burden of proof. Garrison v. Superior Court (2005) 132 Cal.App.4th 253, 263.

The Defendants offers a copy of the arbitration agreement as exhibit A to their motion. The agreement indicates in Article 2 that it is between a resident and a facility. The arbitration agreement states in the second paragraph that any dispute between the resident and the facility will be determined by submission to arbitration.

The arbitration agreement does not identify the resident or the facility. It was not signed by the resident. Instead, there is a signature in the line labeled “Legal Representative”. The Defendants’ attorney, Robert Shephard, states in paragraph 1 that it was signed by Peter Quach. Mr. Shepherd offers no facts in his declaration to demonstrate how he has personal knowledge that Peter Quach signed the arbitration agreement.

The agreement was not signed by Tran Truong. Instead, it was signed by Peter Quach, who is her son. The Defendants do not demonstrate that Peter Quach could bind Tran Truong to the agreement to arbitrate.

Generally, a person who is not a party to an arbitration agreement is not bound by it. Flores v. Evergreen at San Diego, LLC (2007) 148 Cal. App. 4th 581, 587. However, a person who is authorized to act as the patient’s agent can bind the patient to an arbitration agreement. Id.

An agency cannot be created by the conduct of the agent alone; instead, conduct by the principal is essential to create the agency. Id. The principal must in some manner indicate that the agent is to act for the principal, and the agent must act or agree to act on the principal’s behalf and subject to the principal’s control. Id.

For example, in Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal. App. 4th 298, the trial court denied a nursing home’s motion to compel arbitration because there was insufficient evidence to demonstrate that the daughters had agency to bind their mother to the arbitration agreement. The Court of Appeal affirmed because the daughters’ act of signing did not create agency status; instead, there must be evidence that their mother had engaged in conduct that demonstrated that her daughters were her agents.

In Flores, the husband signed arbitration agreements when admitting his wife, who suffered from dementia and other ailments, into a skilled nursing facility. At the time the husband signed these documents, the husband did not yet have a power of attorney to act for his wife, nor had he been declared her conservator or guardian. The nursing facility sought to compel arbitration. The trial court denied the petition because it found that the husband did not have authority to agree to arbitration on his wife’s behalf. The trial court found no evidence that the wife gave her express or implied consent to have her husband act as her agent in signing the agreements. The Court of Appeal affirmed.

The facts in the present case fall directly within these principles of law. Peter Quach signed the arbitration agreement for his mother, Tran Truong. The Defendants have failed to provide sufficient evidence to establish that Peter Quach could bind his mother, Tran Truong. There is no evidence that Peter Quach had a durable power of attorney or that Tran Truong gave her express or implied consent to have Peter Quach act as her agent in signing the arbitration.

The Defendants argue the Supreme Court in Ruiz v. Podolsky (2010) 50 Cal.4th 838 is “controlling” and that appellate decisions in conflict with its rulings are neither “relevant, persuasive, nor controlling”. In Ruiz, the Supreme Court found that arbitration agreement between the physician and the patient under CCP section 1295 may bind the spouse and heirs of the patient with regards to wrongful death and loss of consortium claims. The Supreme Court found that the Legislative intent was to create through statute, for public policy reasons, a capacity of health care patients to bind their heirs to arbitrate wrongful death actions.

The Supreme Court noted that case law has recognized a number of instances in the health care setting in which agreements to arbitrate have bound nonsignatory third parties, including children both born and not yet born, spouses, and employees who are the beneficiaries of health care agreements between an employer and a group health plan. Id. at 852. The Supreme Court found that these cases rely upon common law principles such as fiduciary duty and agency to bind the nonsignatories. Id.

As noted above, Flores articulates the principle that a spouse can bind another spouse if there is an agency relationship. This is not inconsistent with the Supreme Court’s holding in Ruiz because the Supreme Court found that the basis for binding nonsignatory third parties, such as spouses, is based on agency law. Further, there are no grounds to find that Flores is in conflict with Ruiz because the Supreme Court in Ruiz did not overrule, disapprove, distinguish, question, explain, or comment on the previously decided Flores.

As noted above, an agency cannot be created by the conduct of the agent alone; instead, conduct by the principal is essential to create the agency. Flores, 148 Cal. App. 4th at 587. The Defendants offer evidence that Peter Quach signed a number of documents, e.g., the arbitration agreement or the authorization for disclosure of medical information. These are acts of the purported agent. The Defendants have offered no evidence to establish that the principle, Tran Truong, acted in some manner to indicate that Peter Quach was to act for her. Without some conduct from the principal indicating that she consented to have Peter Quach act as her agent, there is no agency.

Accordingly, the Court denies the Defendants’ motion because the Defendants have not met their burden of demonstrating that Tran Truong had given her express or implied consent to have Peter Quan act as her agent when he signed the arbitration agreement.