Case Number: BC524972 Hearing Date: September 12, 2014 Dept: NCD
TENTATIVE RULING (9-12-14)
#5
BC 524972
MILLAR v. SINGING OAKS RETIREMENT COMMUNITY, INC.
Defendant Singing Oaks Retirement Community’s Renewed Petition to Compel Arbitration
TENTATIVE:
Renewed Petition to Compel Arbitration is DENIED.
The “renewed” petition is an improper and untimely motion for reconsideration of the court’s March 28, 2014 order denying a petition to compel arbitration. The motion was not brought within ten days of the court’s previous order, but over five months later.
To the extent defendant now submits evidence garnered in discovery which defendant claims meets its burden of establishing that a valid enforceable arbitration agreement exists between plaintiff and defendant, such evidence was in existence and should have been obtained or sought prior to the previous hearing.
Even if the court were to reconsider its previous order, the petition would be denied, as the new evidence submitted is apparently not admissible as unauthenticated, and even if considered, does not on its face establish the validity of the arbitration agreement given its express terms and limitations and the failure of defendant to submit any other evidence establishing authority to enter the agreement. In addition, it appears to the court that by conducting discovery in this action on matters beyond the arbitrability of the claims, defendant has waived its right to arbitrate the matter, and deprived the other party of the advantages of arbitration.
Finally, the trial herein is now set to commence on November 3, 2014, less than two months from the date of the hearing on this renewed motion to compel arbitration. In addition to prejudicing plaintiff, to send this case to arbitration now might very will delay an adjudication of the pending claims for a year or more.
BACKGROUND:
MP: Defendant Singing Oaks Retirement Community, Inc. dba Singing Oaks Retirement Community
RP: Plaintiff Helen Millar
FACTUAL BACKGROUND:
Plaintiff Helen Millar alleges that she was admitted to defendant’s facility, Singing Oaks Retirement Community, in October, 2012 after undergoing surgery due to a broken arm and pelvis she suffered in a fall at her home. Plaintiff alleges that upon admission to the facility she was at high risk for falls, and the facility was aware of this circumstance, but failed to implement appropriate fall risk prevention measures, as a result of which within the first week of her residency plaintiff suffered a fall resulting in a fractured femur. The complaint alleges that plaintiff suffered at least three more falls while a resident of the facility. It is also alleged that during plaintiff’s residency, the facility failed to consistently monitor and observe Millar’s condition, which resulted in her suffering a urinary tract infection. Plaintiff alleges that the facility was underfunded, understaffed and personnel were not properly trained in a profit scheme and in conscious disregard of the increased likelihood that residents such as plaintiff would suffer harm and injuries.
The complaint alleges causes of action for Elder Abuse and Negligence.
On March 28, 2014, the court heard a Petition by defendant Singing Oaks Retirement to compel arbitration, which was denied, in a detailed minute order.
ANALYSIS:
The Durable Power of Attorney now submitted is not authenticated, but is merely attached to the moving papers by counsel for plaintiff, who has no personal knowledge concerning the document. [See Anderson Decl., para. 20, Ex. P]. There seems to be an argument that plaintiff’s counsel requested permission to conduct discovery on this issue at the hearing, an undertaking that would not apparently require the Court’s permission. Moreover, even if such permission were granted, certainly the Court did not then have in mind some kind of open-ended opportunity to seek reconsideration of its previous denial of defendant’s prior Motion to Compel Arbitration.
Substantive
Even if the court were to reconsider its previous order, the moving papers are not persuasive. As noted above, the purported Durable Power of Attorney is not authenticated, so not admissible, and cannot meet defendant’s burden of establishing by a preponderance of the evidence the validity of the arbitration agreement. In addition, the court had previously noted that authority to enter the agreement for plaintiff “might be shown by establishing the existence of a health care power of attorney or durable power of attorney.” [Minute Order, p. 7].
Here, the Durable Power of Attorney expressly gives the agent the power to deal with real and personal property, tax matters, and estate planning matters. [Ex. P, Article 5]. There is no express provision concerning health care matters or decisions made concerning medical matters. The document expressly states the following limitations:
“The Agent shall not take any actions under this Power of Attorney without first consulting with me and obtaining my instructions and directions, provided I am physically and mentally capable of giving such instructions and directions. If I am physically and mentally capable of giving such instructions and directions, the Agent shall follow such instructions and directions, without any personal liability whatsoever. If, however, I am not physically and mentally capable of giving the Agent instructions or directions, the Agent shall have the authority, in the exercise of his absolute discretion, to consult with my children regarding any actions the Agent proposed to take under this Power of Attorney. Notwithstanding the foregoing, the Agent shall have no duty or obligation to consult with any of my children regarding actions to be taken under this Power of Attorney.”
[Ex. P, Article 6].
The moving papers fail to establish that plaintiff was not at the time of her admission, not physically or mentally capable of giving instructions or directions. Again, this new evidence does not satisfy defendant’s burden.
In addition, it now appears that by delaying in this matter, and engaging in general discovery, there is an argument that defendant has waived the right to enforce the arbitration agreement.
CCP § 1282.2 , governing orders to arbitrate controversies, provides:
“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, 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.”
In order to avoid arbitration on the ground of waiver, a respondent must satisfy a heavy burden of proof that petitioner waived its right to arbitration. The court will apply three factors, including whether the party:
(1) has previously taken steps inconsistent with an intent to invoke arbitration;
(2) has unreasonably delayed seeking arbitration;
(3) has acted in bad faith or engaged in willful misconduct.
Keating v. The Superior Court of Alameda County (1982) 31 Cal.3d 584, 604-5, reversed in part on other grounds, Southland Corp. v. Keating (1984) 465 U.S. 1. Additionally, the court must make a finding that the party asserting there has been a waiver has suffered prejudice. Id.
“The question of waiver is one of fact, and an appellate court’s function is to review a trial court’s findings regarding waiver to determine whether these are supported by substantial evidence.” Berman v. Health Net (2000) 80 Cal.App.4th 1359.
In Berman, the Second District affirmed the trial court’s denial of a petition to compel arbitration on the ground of waiver, holding that the respondent had waived the right to compel arbitration by engaging in substantial discovery, by which it had discovered information about respondent’s actions and theories which it would not have been able to discover in arbitration. The court suggested that the prejudice which must be shown to establish a waiver is prejudice which deprives one side of the advantages of arbitration. See Berman, at 1367.
Here, defendant in the moving papers indicates that discovery has been propounded to plaintiff, to which plaintiff has responded, which responses involve the substance of this action, not merely the issue of arbitrability. [See Exs. K, L]. In addition, it appears that the deposition of plaintiff’s son was conducted in August. [See Ex. M]. The parties have also evidently proceeded to retain experts and are preparing for an exchange of expert information. [See Ex. N]. This now presents a situation where the litigation has proceeded to the point where any benefits of arbitration have been lost, to plaintiff’s prejudice, due to defendant’s proceeding to litigate matters other than the issue of arbitrability, which it could have done by seeking appropriate discovery limited to the power of attorney issue without otherwise addressing the merits of the action prior to arbitration. The petition is accordingly denied.