2017-00214459-CU-PO

Doris Bagatti vs. S.H.C.C., Inc.

Nature of Proceeding: Petition to Compel Binding Arbitration

Filed By: Choi, Christopher T.

Defendant S.H.C.C., Inc. dba Sherwood Healthcare Center’s (“Sherwood” or “Defendant”) petition to compel arbitration is UNOPPOSED and is ruled upon as follows.

Defendant’s request for judicial notice of Sherwood’s 2014 and 2014 Long-Term Care Facility Integrated Disclosure and Medi-Cal Costs Reports is denied. As noted in Jolley v. Chase Home Finance, LLC (2013) 2013 Cal.App.4th 772, “we know of no ‘official Web site’ provision for judicial notice in California.” (See L.B. Research & Education Foundation v. UCLA Foundation (2005) 130 Cal.App.4th 171, 180, fn. 2.) “Simply because information is on the Internet does not mean that it is not reasonably subject to dispute.” (Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1605, fn. 10.)

In this elder abuse action, plaintiff Lyle Bagatti, individually and on behalf of his mother, Doris Bagatii, allege causes of action arising out of the care Ms. Bagatti received at Sherwood. Plaintiff alleges causes of action for elder abuse, fraud, violation of resident’s bill of rights, and wrongful death. Sherwood now moves to

compel the matter to arbitration based upon the arbitration agreement Lyle signed on behalf of Ms. Bagatti.

A written agreement to submit a controversy to arbitration is valid, enforceable, and irrevocable consistent with standard contract principles. There is a strong public policy favoring the enforcement of arbitration agreements. (Code Civ. Proc. §1281; Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706.) On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy, the court shall order the petitioner and the respondent to arbitrate the matter if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) the right to compel arbitration was waived by the petitioner; (b) grounds exist for the revocation of the agreement; or, (c) a party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. (Code Civ. Proc. §1281.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.)

An agent or fiduciary has the authority to require a patient’s medical malpractice claims to be arbitrated.” (Garrison v. Superior Court (2005) 132 Cal.App.4th 253, 264.) However, “the right to compel arbitration depends on the existence of a valid agreement between the parties.” (Id. at 263.)

Here, the arbitration agreement was signed by Lyle, Ms. Bagatti’s son, on Ms. Bagatti’s behalf. Saliently, Sherwood presents a durable power of attorney appointing Lyle and Gerald Bagatti (Ms. Bagatti’s other son) as her attorneys in fact. (Choi Decl., Exh. C.) The power of attorney authorizes Lyle and Gerald to act on Ms. Bagatti’s behalf for all purposes, including the ability to make decisions relating to Ms. Bagatti’s medical care and finances, and indicates either one may act independently of each other. (Ibid.)

“Whether to admit an aging parent [or other relative] to a particular care facility is a health care decision.” (Garrison, supra, at 266.) Arbitration agreements executed in the care facility admission process are “part of the health care decision making process.” ( Id.)

Because the power of attorney granted Lyle the express authority to make medical decisions on behalf of Ms. Bagatti, which includes executing an arbitration agreement in the care facility admission process, the Court concludes a valid agreement to arbitrate exists binding Ms. Bagatti and Defendant to arbitration of certain claims.

The arbitration agreement complies with the requirements of CCP § 1295 and Health

& Safety Code § 1599.81. The agreement requires that all claims as to medical malpractice and any action for injury or death arising from negligence, intentional tort and/or statutory causes of action arising between the parties (Ms. Bagatti and Defendant) shall be submitted to arbitration. The language of the agreement, as well as evidence submitted by Sherwood, also establishes Sherwood explained the arbitration agreement to Lyle and that the agreement was optional and signed voluntarily. There is also no evidence the agreement was ever rescinded or revoked. By signing the agreement, Lyle, on behalf of Ms. Bagatti, clearly agreed his mother was to arbitrate those disputes arising out of the care rendered by Sherwood to her.

However, despite Defendant’s contentions, there is no evidence Lyle signed the arbitration agreement in his personal capacity. The arbitration agreement clearly states it is between the resident (Doris Bagatti) and Defendant and that “any dispute between Resident and Facility, including any action for injury or death arising from negligence, intentional tort and/or statutory causes of action …” shall be submitted to arbitration. (Dockter Decl. ¶ 9, Exh. A (emphasis added).) Therefore, the Court is not persuaded the agreement extends to Lyle’s personal cause of action for wrongful death.

Lyle cannot be forced to arbitrate his wrongful death claim if he is not contractually obligated to arbitrate the claim, and the fact that the decedent would have been required to arbitrate any claims against Defendant will not generally obligate the decedent’s heirs to arbitrate their wrongful death action. The same rule applies if the decedent’s personal representative brings a wrongful death action on behalf of the decedent’s heirs and none of the heirs were bound personally by the arbitration agreement. (See Daniels v. Sunrise Senior Living, Inc. (2013) 212 Cal. App. 4th 674, 681 (daughter suing elderly care facility for wrongful death of mother was not bound by arbitration agreement governing claims mother would have had, even when agreement was signed by daughter in her capacity as mother’s representative); Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC (2007) 150 Cal. App. 4th 469, 474-475.) In both Fitzhugh and Daniels, surviving relatives who had signed arbitration agreements as authorized representatives of nursing home residents were held not to be bound to arbitrate their individual claims for wrongful death. As the court stated in Daniels, “[b]ecause Daniels signed the residency agreement solely as Barcena’s agent and not In her personal capacity, there is no basis to infer that Daniels agreed to arbitrate her wrongful death claim.” (Id. at p. 681.) Similarly, in Bush v. Horizon West (2012) 205 Cal.App.4th 924, the Court held that although the daughter had signed an arbitration agreement as her mother’s attorney-in-fact, she had not agreed to it in her personal capacity, and therefore her negligent infliction of emotional distress (NIED) claim was not subject to arbitration. (Id. at 931.) Thus, the trial court was justified in its conclusion that sending the mother’s elder abuse claim to arbitration, while litigating the daughter’s NIED claim in civil court, posed a danger of inconsistent rulings of law and fact. No evidence is presented that Lyle signed the agreement in his personal capacity and he is therefore a third party to the agreement. (See also, Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298 [a patient’s adult children sued a skilled nursing facility as their mother’s successors in interest (as well as on their own behalf, for wrongful death.]).

The Court also notes Plaintiff’s cause of action for violation of resident’s bill of rights pursuant to H&S Code § 1430 based on the same alleged improper care as the other causes of action does not provide justification for denying the motion. (Laswell v. AG Seal Beach, LLC. (2010) 189 Cal.App.4th 1399, 1409 (inclusion of cause of action under H&S Code § 1430 based on same alleged improper care as other causes of action did not give trial court discretion to deny arbitration–this cause of action can be addressed at a time subsequent to the Arbitrator’s decision).)

Further, because Plaintiff has alleged all defendants are one entity/alter egos and that they are all responsible for the improper care Ms. Bagatti received at Sherwood, the defendants who are not parties to the arbitration agreement can in fact enforce the agreement and are “not third parties within the meaning of Code of Civil Procedure section 1281.2, subdivision (c).” (Laswell, supra, 189 Cal.App.4th at 1407.)

Finally, the case is in its infancy. There is no trial date and the parties and the parties have not engaged in any motion practice.

Pursuant to CCP § 1281.2, the Court must order all of decedent’s (Ms. Bagatti) causes of action to arbitration as an agreement to arbitrate exists, Defendant has not waived the right to arbitrate and no grounds for revocation exist. Lyle may litigate his personal cause of action for wrongful death, but the litigation is stayed pending completing of the arbitration.

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.