Filed 2/24/20 Demauro v. Prospect Medical Holdings Inc. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

CHRISTINA DEMAURO,

Plaintiff and Respondent,

v.

PROSPECT MEDICAL HOLDINGS INC., et al.,

Defendants and Appellants. B296060

(Los Angeles County

Super. Ct. No. SC129061)

APPEAL from an order of the Superior Court of Los Angeles County, Mark A. Young, Judge. Affirmed.

Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg, & Rhow, Ekwan E. Rhow, Terry W. Bird, & Patricia H. Jun for Defendants and Appellants.

Geragos & Geragos, Mark Geragos & Marcus Petoyan; Kirtland & Packard, Michael Louis Kelly, Joshua A. Fields, & Heather B. Dobbs for Plaintiff and Respondent.

INTRODUCTION

Plaintiff and respondent Christina Demauro sued defendants and appellants Prospect Medical Holdings, Inc. and Alta Hospitals System, LLC (collectively, the Hospital) in the Los Angeles Superior Court for claims arising out of her employment as a nurse with Southern California Hospital at Culver City (SCHCC). The Hospital moved to compel arbitration based on its alleged policy and practice of requiring all SCHCC employees to sign arbitration agreements. In support of its motion, the Hospital did not submit an arbitration agreement signed by Demauro because, the Hospital asserts, the signed agreement “is missing.” In opposition, Demauro submitted a declaration stating she neither signed an arbitration agreement nor agreed to arbitrate any claims against the Hospital. The trial court denied the Hospital’s motion to compel arbitration, finding the Hospital failed to prove by a preponderance of evidence that a valid arbitration agreement with Demauro exists. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Demauro began working as a licensed vocational nurse for SCHCC in August 2012. On April 2, 2018, Demauro filed her complaint against the Hospital, alleging causes of action for whistleblower retaliation, whistleblower protection, intentional interference with contractual relations, and intentional infliction of emotional distress. In response, the Hospital filed a motion to compel arbitration. In support of its motion, the Hospital submitted the declaration of Patricia Hawkins, a former Human Resources Director of SCHCC. Hawkins declared that, during the open enrollment period from October 2013 to November 2013, “[a]ll SCHCC employees were required to sign and return” an arbitration agreement. She further declared that SCHCC’s Human Resources department (HR) maintained a “not seen employees” list comprised of “any SCHCC employees who did not receive or return” the signed arbitration agreement to HR. According to Hawkins, although Demauro’s personnel file did not include a signed copy of the arbitration agreement, if she had not signed and returned the agreement to HR, her name would have been included on the list. Demauro’s name was not on the list. Hawkins’ declaration does not explain what steps were taken to ensure the accuracy of the list.

In opposition to the Hospital’s motion to compel, Demauro submitted her own declaration stating she never signed an arbitration agreement with SCHCC or the Hospital, and no one from SCHCC or the Hospital ever asked her to sign an arbitration agreement. She also declared she never signed “any document that refers to an agreement to arbitrate between myself and SCHCC and/or [the Hospital], nor have I signed any acknowledgment of receipt of any document referencing an arbitration agreement . . . .”

The trial court denied the Hospital’s motion, finding the Hospital “failed to prove by a preponderance of evidence that a valid arbitration agreement exists with [Demauro].” The Hospital timely appealed.

DISCUSSION

An appeal of a denial of a motion to compel arbitration is governed by the substantial evidence standard of review where, as here, the trial court’s order is based on a decision of fact. (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 60.) In applying this standard of review, we do not reweigh evidence; we are not a second trier of fact. (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1246 (Babick).)

“[W]hen presented with a motion to compel arbitration, the court’s first task is to determine whether the parties have entered into an agreement to arbitrate their claims.” (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 685.) “The petitioner [seeking arbitration] bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] The trial court sits as the trier of fact, weighing all affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination. [Citation.]” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842.)

The Hospital contends the trial court erred by denying its motion to compel arbitration because it established by a preponderance of the evidence that Demauro entered into an arbitration agreement with the Hospital. It argues the trial court “erroneously gave undue weight” to Demauro’s declaration over the Hospital’s evidence.

The trial court discussed how it weighed Demauro’s declaration against Hawkins’s: “[The Hospital] provide[s] the declaration of Patricia Hawkins . . . . Ms. Hawkins states that the hospital had a business practice requiring all [the Hospital’s] ‘at will’ employees to sign arbitration agreements, and that any employee who did not sign and return an arbitration agreement would be placed on a list of ‘not seen’ employees. [Citation.] She states that Plaintiff’s absence from the ‘not seen’ [list] indicates that she must have signed the agreement. Declarant does not allege that she has any personal knowledge that Plaintiff signed the agreement, nor does she provide a basis for the court to find that the ‘not seen employees’ list was maintained perfectly, and accurately reflected each employee [who] failed to sign an arbitration agreement. [¶] Plaintiff provides a declaration of her own, affirmatively stating that she never signed any arbitration agreement and never agreed to arbitrate any disputes with defendants. [Citation.] Plaintiff has provided evidence based on personal knowledge, which is stronger than the circumstantial and speculative evidence provided by [the Hospital].”

The trial court therefore held the Hospital failed to prove by a preponderance of evidence that a valid arbitration agreement exists with Demauro. Substantial evidence supports that conclusion, and as noted above, we will not reweigh the evidence. (See Babick, supra, 229 Cal.App.4th at p. 1246.)

The Hospital further argues secondary evidence is admissible to prove the contents of a missing agreement. Although we do not disagree, application of this general principle to the facts here does not warrant reversal. The trial court acknowledged “[l]ost documents may be proved by secondary evidence, such as declarations or oral testimony, after a diligent and bona fide search for the document,” but the “existence of the document must be proved by a preponderance of the evidence. (Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1169.).” As stated above, after weighing the evidence, the trial court held the Hospital failed to meet its burden of proving the existence of an arbitration agreement with Demauro, and that conclusion is supported by substantial evidence.

Alternatively, the Hospital contends the trial court abused its discretion by not holding an evidentiary hearing before ruling on its motion to compel arbitration. It argues that because “the declarations [of Demauro and Hawkins] are in conflict with each other, an evidentiary hearing was required before a ruling on the Motion.” The Hospital forfeited this argument, however, by failing to request an evidentiary hearing in the proceedings below. (See, e.g., Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1286-1287.) Because it did not raise the issue of a hearing, the Hospital did not tell the trial court (nor has it told us) what additional evidence, if any, it would have presented at an evidentiary hearing, nor why that evidence could not have been presented by declaration.

Even assuming the Hospital’s argument was not forfeited, it lacks merit. Ordinarily, on a motion to compel arbitration, facts are to be proved by affidavit or declaration and documentary evidence, “with oral testimony taken only in the court’s discretion.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 414.) “There is simply no authority for the proposition that a trial court necessarily abuses its discretion, in a motion proceeding, by resolving evidentiary conflicts without hearing live testimony.” (Ibid.) Here, the trial court gave more weight to Demauro’s declaration based on her personal knowledge than to Hawkins’ “circumstantial and speculative” one. We conclude the trial court was well within its discretion to make this determination without hearing live testimony. This is particularly true because an evidentiary hearing was not requested and there is no basis upon which to conclude it would have yielded additional information.

DISPOSITION

The order is affirmed. Demauro is awarded her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

WE CONCUR:

WILLHITE, acting P. J.

COLLINS, J.