2013-00151248-CU-PO

Dixie Roby vs. Bristol Hospice LLC

Nature of Proceeding: Petition to Compel Arbitration and Stay Action

Filed By: Pierrou, Yvonne M.

This tentative ruling shall become the final ruling of the Court unless a
party wishing to be heard so advises the Clerk of this Department no later than
4:00 p.m. on the court day preceding the hearing, and further advises the Clerk
that such party has notified the other side of its intention to appear.

In the event hearing is requested, this matter will be heard by Judge Loncke at
or around 9:00 a.m.

This matter was continued to this date for supplemental briefing on the issue of
whether the 2013 EOC arbitration provisions or early provisions (2011/2012) apply.
The 2013 EOC includes a provision whereby the FAA preempts CCP section 1281.2
(c). The earlier versions of the EOC do not include the preemption provision. The
Court has reviewed Plaintiff’s and Kaiser’s supplemental briefs and rules as follows.

Plaintiffs argue in its supplemental brief that: (1) Kaiser’s position that it is permitted to
change the nature of the arbitration agreement without the patient’s consent is unfair
and unconscionable and would render the contract illusory, (2) Kaiser’s interpretation
is not supported by the 2013 EOC, and (3) assuming Kaiser’s interpretation is correct,
the 2012 EOC (which does not contain the FAA preemption language) applies to
conduct that occurred in 2012 (i.e. allegations that Kaiser wrongfully discharged Ms.
Roby to hospice in September 2012), thus, the Court should consolidate the elder
abuse cause of action relating to the 2012 conduct in superior court.

The Court disagrees with Plaintiffs. As explained in Madden v. Kaiser Foundation
Hospitals (Cal. 1976) 17 Cal. 3d 699, 705 “contract provisions, as well as amendments
to the contract, negotiated by the board within the scope of its authority as an agent,
bind those employees who enroll under the contract.” [emphasis added.] In Madden,
plaintiff was a state employee who enrolled in the Kaiser plan, which was offered
pursuant to a contract between Kaiser and the Board of Administration of the State
Employees Retirement System. At the time plaintiff enrolled in the Kaiser plan, it did
not include an arbitration provision. The board and Kaiser later amended their contract
to include a provision for binding arbitration. The court held that plaintiff was bound by
the arbitration agreement. The court also held that the principles pertaining to
adhesion contracts did not apply because the arbitration provision was a product of
negotiations between parties possessing parity of bargaining strength (i.e. the board
and Kaiser) and plaintiff had the opportunity to select from several medical plans or
contract individually for medical care.

Here, Kaiser proffers evidence that the EOC is a negotiated agreement between
CalPERS and Kaiser. (Declaration of Christina Splendorio, ¶2.) Although the
agreement and corresponding EOCs are amended annually, Kaiser cannot unilaterally
amend the agreement/EOC. (Id.) Moreover, because the agreement is governed by Medicare, neither Kaiser nor CalPERS has the authority to delete or exclude benefits
mandated by Medicare. (Id.) Any change that Kaiser proposes must be reviewed and
approved by CalPERS. (Id.) Once CalPERS gives final approval, Kaiser is required to
mail Senior Advantage enrollees the EOC for the new contract year. (Id. ¶3.) The
2013 EOCs were mailed to Senior Advantage enrollees on August 21, 2012. (Id.)
Open enrollment took place between September 10 and October 5, 2012. (Id.)
Kaiser’s records confirm the Ms. Roby was on the mailing list provided to the mailing
service that actually performed the mailing. (Id.)

Given the above, pursuant to Madden, the Court agrees with Kaiser that Plaintiffs are
bound by the 2013 EOC arbitration provisions and the principles pertaining to
adhesion contracts do not apply. Thus, given the 2013 EOC’s FAA preemption of CCP
section 1281.2(c), Elder Abuse cause of action against Kaiser must be arbitrated and
not stayed.

The Court also disagrees with Plaintiffs that the Court should consolidate the elder
abuse cause of action relating to the 2012 conduct in superior court. Here, Ms. Roby
was recommended to hospice care in September 2012 and injured herself in
December 2012. (Complaint, ¶¶ 12-13.) Ms. Roby was sent to Kaiser on January 1,
2013 and left on January 9, 2013 at which time she was sent home with her right foot
in a protective boot. (Id. ¶ 14.) She then alleges that after being sent home, the Bristol
Defendant’s care plan failed to mention the boot or wound care. (Id. ¶ 15.) Thus, as
currently alleged, Ms. Roby’s injuries arose in 2013 and the 2013 EOC applies.

Accordingly, the motion to compel arbitration is GRANTED as to Plaintiffs Roby and
Flynn (as successor-in-interest) on their cause of action for Elder Abuse against
Kaiser. The causes of action against the Bristol Defendants are hereby STAYED
pending completion of the arbitration proceedings.