Filed 4/28/20 Nida v. Chapman Care Center CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THERESE NIDA et al.,

Plaintiffs and Respondents,

v.

CHAPMAN CARE CENTER,

Defendant and Appellant.

G057211

(Super. Ct. No. 30-2018-00989050)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Thomas A. Delaney, Judge. Affirmed.

Lewis Brisbois Bisgaard & Smith, Kathleen M. Walker, Jeffrey S. Healey, Lann G. McIntyre, and Tracy D. Forbath for Defendant and Appellant.

Law Offices of Goodwin & Ghecea and Gregory J. Goodwin for Plaintiffs and Respondents.

* * *

Plaintiffs and respondents Therese Nida (Therese) and Craig Nida (Craig; collectively plaintiffs), sued defendant and respondent Chapman Care Center (defendant) for various claims including wrongful death, based on alleged wrongful conduct leading to the death of William Nida (William). Defendant contends the court erroneously denied its motion to compel arbitration of Craig’s wrongful death claim.

After oral argument, we invited the parties to submit supplemental briefs discussing whether the court’s ruling should be affirmed on the ground a cause of action for wrongful death may not be split.

We conclude the order must be affirmed on that ground. Defendant did not appeal the denial of its motion to compel arbitration as to Therese. Because that order is final as to Therese, her wrongful death claim will be litigated in the trial court. Craig’s wrongful death claim cannot be litigated separately, so it may not be arbitrated. In light of this conclusion, we need not and do not consider any other arguments raised.

FACTS AND PROCEDURAL HISTORY

William was admitted to defendant’s skilled nursing facility in May 2017 and resided there for about two months. Plaintiffs alleged that as a result of defendant’s negligence when William was at the facility, he died in March 2018.

At the time William was admitted to defendant’s facility, Craig signed a two-page arbitration agreement (Arbitration Agreement) between defendant and William as William’s “Legal Representative/Agent.” The Arbitration Agreement provided the substance and procedures of the Federal Arbitration Act (9 U.S.C. § 1) would apply.

The Arbitration Agreement stated the parties would arbitrate “any dispute as to claims of medical malpractice”; “any and all disputes or claims other than a claim for medical malpractice arising out of the provision of services by [defendant]”; and “any and all other claims arising from, in connection with, or relating in any way to the Admission Agreement (including the validity, interpretation, construction, performance, and enforcement thereof), or to any services or goods provided by [defendant] to [William].”

Just above the signature line for the resident, the Arbitration Agreement stated in all caps and red lettering, “Notice: By signing this contract, you are agreeing to have any issue of medical malpractice decided by neutral arbitration, and you are giving up your right to a jury or court trial. See Article I of this Contract.” Just below the signature line for the resident the Arbitration Agreement provided: “By virtue of Resident’s consent, instruction, and/or durable power of attorney, I hereby certify that I am authorized to act as Resident’s agent in executing and delivering of this Arbitration Agreement. I acknowledge that [defendant] is relying on this representation. I also acknowledge that pursuant to the terms of this [Arbitration] Agreement, any claims that I may assert in my personal capacity that arise out of or relate to any services (medical or otherwise) or goods provided by [defendant] to the Resident or pursuant to the Admission Agreement are governed by this Arbitration Agreement.” Craig signed below that provision as William’s “Legal Representative/Agent.” Craig signed again, under the same provision that he was authorized to sign and signing on behalf of William, and that he was agreeing any claims brought in his personal capacity would be subject to arbitration pursuant to the Arbitration Agreement.

After plaintiffs filed the complaint, defendant petitioned to compel arbitration of all of plaintiffs’ claims, including their wrongful death claims. An opposition, a reply, and supplemental briefs were filed. After hearing, the court denied the petition.

It found defendant failed to show a written arbitration agreement between defendant and any of the plaintiffs, specifically finding neither William nor Therese were parties. It also found defendant failed to provide evidence William agreed to have Craig sign the Arbitration Agreement on his behalf. Finally, it found defendant did not show an arbitration agreement existed with Craig because there was no evidence of consideration inducing Craig’s promise to arbitrate.

1. Standard of Review

On appeal from an order denying a motion to compel arbitration, “‘“[i]f the court’s order is based on a decision of fact, then we adopt a substantial evidence standard. [Citations.] Alternatively, if the court’s denial rests solely on a decision of law, then a de novo standard of review is employed.”’” (Jensen v. U-Haul Co. of California (2017) 18 Cal.App.5th 295, 300.) Here, there is no disputed evidence. Therefore, contrary to plaintiffs’ argument, we review the order de novo.

2. Wrongful Death Claims

Both parties correctly recognize in their supplemental briefs a wrongful death claim may not be split. Rather, the statutes “‘authorize only a single action, in which all the decedent’s heirs must join.’” (Adams v. Superior Court (2011) 196 Cal.App.4th 71, 75.) Thus, the wrongful death claim “must be tried in a single forum.” (Herbert v. Superior Court (1985) 169 Cal.App.3d 718, 722.)

In this case, although defendant moved to compel both plaintiffs to arbitrate all of their claims, including their wrongful death claims, it appealed only that portion of the court’s order denying arbitration of Craig’s wrongful death claim. Consequently, the portion of the order denying the motion to compel arbitration of Therese’s wrongful death claim is final, and her wrongful death claim will be litigated in the superior court. It follows that Craig’s wrongful death claim must be litigated in the superior court as well, because the wrongful death claims may not be split and tried in separate forums.

Defendant’s arguments to the contrary are not well taken. Under the procedural circumstances of this case, whether the language of the Arbitration Agreement was intended to bind all plaintiffs to arbitrate their wrongful death claims is of no import. Likewise, the mutual intent of the parties at the time the Arbitration Agreement was executed is irrelevant. Nor does it matter whether Craig stands in the shoes of William. And the general principal that an arbitration agreement complying with Code of Civil Procedure section 1295 binds nonsignatory heirs to arbitrate wrongful death claims does not apply here.

Similarly, the principles for determining when nonsignatories to an arbitration agreement may be required to arbitrate are irrelevant. Plus, given the finality of the portion of the order denying arbitration of Therese’s claims, which defendant fails to discuss, there is no basis for us to compel her to arbitrate her wrongful death claim, notwithstanding the strong public policy favoring arbitration. The portion of the order denying the motion to compel arbitration of Therese’s wrongful death claim is not properly before us.

 

DISPOSITION

The order is affirmed. Plaintiffs are entitled to costs on appeal.

THOMPSON, J.

WE CONCUR:

IKOLA, ACTING P. J.

GOETHALS, J.