Case Number: EC062567    Hearing Date: November 07, 2014    Dept: NCG

TENTATIVE RULING (11/7/14)
#14
EC 062567
DAVOODI v. ROYAL OAKS CONVALSCENT HOSPITAL, INC.

Defendants Royal Oaks Convalescent Hospital, Inc. and Trinity Nursing Home Management, Inc.’s Petition to Compel Arbitration

TENTATIVE:
Petition to Compel Arbitration is DENIED. Defendants have failed to meet their burden of establishing that a valid enforceable arbitration agreement exists between plaintiff and defendants, as they have failed to establish that at the time the agreement was executed by plaintiff’s daughter as “Representative or Agent of the Resident,” the signator had authority from plaintiff to bind him to an arbitration agreement. The document appointing a representative or agent is not signed by plaintiff, the resident, but by the daughter.

FACTUAL BACKGROUND:
Plaintiff Herand Davoodi alleges that while he was a resident at a skilled nursing facility, Royal Oaks Convalescent Hospital, owned and operated by defendants Royal Oaks Convalescent Hospital, Inc. and Trinity Nursing Management, Inc. (the “facility defendants’), he developed a rash on his upper body. Plaintiff alleges that although a physician made orders for a cream to be applied to the rash twice a day, the facility defendants failed to apply the cream as ordered.

In August 2013, plaintiff was transferred to the emergency room of defendant Glendale Adventist Medical Center for evaluation of complaints of left arm pain and swelling, at which time it was discovered that plaintiff was malnourished, dehydrated, had a urinary tract infection and had scabies. Plaintiff alleges that the facility defendants engaged in elder abuse by failing to provide appropriate nutrition, hydration, and treatment for his infection and ailments.

It is also alleged that while at the hospital, plaintiff was found by hospital staff on the floor, and it was determined that he had fallen off his bed. Plaintiff alleges that the hospital defendants knew that plaintiff was a high fall risk, yet failed to provide interventions, such as a low bed, bed alarm and fall mats.

The complaint alleges causes of action for Elder Abuse, Negligence, and Violation of Patient’s Rights.

ANALYSIS:
In this case, the facility defendants have alleged the existence of a written arbitration agreement. Where a petition is opposed, the burden is on the party seeking to compel arbitration to establish the existence of a valid agreement to arbitrate. It is held that because the existence of the agreement is a statutory prerequisite to granting a petition to compel arbitration, the petitioner bears the burden of proving its existence by a preponderance of the evidence. Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230, citing Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th at p. 413.

The opposition argues that defendant has failed to show that a valid arbitration agreement ever existed applicable to this case because the agreement to arbitrate was signed by plaintiff’s daughter, Maret Golnazarian, not plaintiff Herand Davoodi, and there is an insufficient showing that the daughter had authority to enter into the arbitration agreement on behalf of her father.

The Admission Agreement was entered into by “Representative or Agent of the Resident,” and was signed by Maret Golnazarian. [Ex. A]. As evidence that this person was an appointed representative of plaintiff, defendant submits a document entitled “Resident’s Appointment of Representative or Agent Concerning Admission to Facility” which states that “I, Davoodi, Herand” declare that he is competent, but designates Maret Golnazarian as his Agent/Representative, which document is signed, as “Signature of Resident,” by Maret Golnazarian, not plaintiff.

Plaintiff relies on case law in which it is held that nursing home residents cannot be bound to arbitration agreements signed by their children in the absence of a showing that the child had the authority to bind the parent and act as an agent.

In Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, the Second District affirmed a trial court order denying a petition to compel arbitration, in a case where decedent’s adult daughters had signed arbitration agreements after their comatose had been admitted to a skilled nursing facility, where there was no evidence that the daughters had authority from their mother to do so:
“Defendants bore the burden of establishing a valid agreement to arbitrate. 2 Defendants admit Johnnie Pagarigan did not sign either arbitration agreement. They further admit Ms. Pagarigan was mentally incompetent at the time she was admitted to Magnolia Gardens and at the time her daughters signed the arbitration agreements approximately a week later. There was no evidence Ms. Pagarigan had signed a durable power of attorney. It necessarily follows Ms. Pagarigan lacked the capacity to authorize either daughter to enter into the arbitration agreements on her behalf. Consequently no valid arbitration contract exists.”
Pagarigan, at 302.

The Second District went on to reject arguments that the daughters obtained such authority by being next of kin, or because they were statutorily authorized to make medical decisions on her behalf.

In Goliger v. AMS Properties, Inc. (2004) 123 Cal.App.4th 374, 375-376, the Second District, following Pagarigan, affirmed the trial court’s denial of a petition to compel arbitration, where a daughter had signed the arbitration agreement as the “responsible party” for her mother, rejecting arguments that agency had been established in the case because the mother had permitted the daughter to make medical decisions for her:
“AMS tries to distinguish Pagarigan. It notes that the mother in that case was comatose and therefore could not consent to her children making any decisions for her. Thus, it was reasonable, AMS argues, for the court to limit the children to those choices permitted them by statute regarding medical care, but to refuse to make them her agents for other purposes. Here, in contrast, mother was mentally alert and consented to Binshtock making health care decisions for her. Thus, there was no similar reason in AMS’s view to narrowly construe the grant of such powers. AMS’s argument does not, however, justify expanding Binshtock’s powers beyond what the evidence shows mother permitted. The record shows mother allowed Binshtock to make medical decisions for her. As the Pagarigan court stated in words that are equally appropriate here, “[the nursing home d]efendants do not explain how the next of kin’s authority to make medical treatment decisions for the patient … translates into authority to sign an arbitration agreement on the patient’s behalf at the request of the nursing home.” (Pagarigan, supra, 99 Cal.App.4th at p. 302.)
Goliger, at 377.

Here, as in the cases cited, the petitioner has failed to present evidence which would support a finding that there existed a valid agreement to arbitrate between the facility and plaintiff. The authority of the daughter to sign the agreement might be shown by establishing the existence of a health care power of attorney or durable power of attorney. See Hogan v. Country Villa Health Services (2007) 148 Cal.App.4th 259; Garrison v. Superior Court (2005, 2nd Dist.) 132 Cal.App.4th 253.

Defendants submit a declaration of the Assistant Social Services Designee at Royal Oaks, indicating that she was instructed by Mr. Davoodi to have his daughter sign admitting documents. [Avsepians Decl., paras. 4,5]. The argument is that this created an ostensible agency situation. However, the argument is that plaintiff here, unlike the plaintiff in Pagarian, was competent to make a designation in this manner. There is some dispute about plaintiff’s competence, however, as medical records attached to the opposition show that at a physical, plaintiff was determined to “NOT have the capacity to understand and make decisions.” [Ex. B, emphasis in original]. In addition, if plaintiff was competent at the time, the facility should have had him sign the document it evidently specially prepared to establish that a signatory to admitting documents was in fact an authorized representative or agent.

The petition is therefore denied for failure of petitioner to establish that a valid arbitration agreement entered by the resident exists.