Filed 12/4/19 Nations v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

REGINALD O. NATIONS,

Petitioner,

v.

THE SUPERIOR COURT OF SAN BERNARDINO COUNTY,

Respondent;

OAKMONT MANAGMENT GROUP, LLC et al.,

Real Parties in Interest.

E072291

(Super.Ct.No. CIVDS1827533)

OPINION

ORIGINAL PROCEEDINGS; petition for writ of mandate. Thomas S. Garza, Judge. Dismissed as moot.

Garcia & Artigliere, Stephen Michael Garcia and David Michael Medby, for Petitioner.

Giovanniello Law Group, Alexander F. Giovanniello and Thomas C. Swann, for Real Parties in Interest.

I.

INTRODUCTION

Petitioner and plaintiff, Reginald Nations (Mr. Nations), petitions this court to issue a peremptory writ of mandate directing the trial court to vacate its order granting the motion to compel arbitration, brought by real parties in interest, Welltower, Inc., Welltower TRS Holdco, LLC, Oakmont Management Group LLC, and HCRI of Upland Tenant, LLC (defendants). Mr. Nations contends that, because his wife did not have authority to agree to arbitration on his behalf, the trial court erred in granting arbitration of his elder abuse and negligence claims against defendants.

After this court provided the parties with its tentative decision, the parties settled this matter and Mr. Nations filed a request for dismissal of his writ petition. This court will therefore dismiss Mr. Nations’s writ petition as moot.

II.

FACTS AND PROCEDURAL BACKGROUND

A. Execution of the Arbitration Agreement

From June 18, 2018, through August 24, 2018, Mr. Nations resided at Oakmont of San Antonio Heights (the Facility), owned and operated by defendants. The Facility is a licensed residential care facility for the elderly, which provides residency, care, and services to persons who are at least 60 years old. Mr. Nations was 74 years old during his residency at the Facility. Mr. Nations was placed there by his family because his family was no longer able to adequately care for him as a result of his physical and mental conditions, “including those related to his mental disorder known as Progressive Supranuclear Palsy (PSP).”

On June 17, 2018, Mrs. Nations, on behalf of Mr. Nations, and Mr. Rodriguez, on behalf of Oakmont of Upland LLC (Oakmont), signed a residence and services agreement (RSA), which provides a statement of services furnished by Oakmont to Mr. Nations at the Facility, and other legal obligations Oakmont agreed to assume. The RSA also states the legal obligations, “both financial and non-financial,” of Mr. Nations and Oakmont.

The RSA includes an arbitration agreement clause, which states that, by initialing below the clause, the resident (Mr. Nations) warrants that the Arbitration Agreement clause has been explained to him, that he understands its significance, that he voluntarily agrees to be bound by it, and that he understands that agreeing to arbitration is not a condition of admission to the Facility. Mrs. Nations initialed the Arbitration Agreement clause on the line next to “(Resident or Resident’s Representative’s Initials).” Mr. Nations did not initial the Arbitration Agreement clause.

The RSA also included a provision, entitled “REPRESENTATION OF RESPONSIBLE PARTY,” which stated, “By signing below the undersigned represents and warrants that he/she has the authority to act for the Resident in entering into this Residence and Services Agreement and with respect to any other agreement that he/she enters into with Oakmont. The undersigned further understands that Oakmont has relied on this representation in entering into this Residence and Services Agreement and admitting the Resident to the [Facility].”

The RSA signature page stated the RSA would be effective as of June 18, 2018. The signature line for the resident, Mr. Nations, was left blank. Mrs. Nations initialed the signature line for a “[s]econd [s]igner.” Below the “[s]econd [s]igner” signature line, Mrs. Nations also initialed under “[c]apacity,” on the lines next to “Durable Power of Attorney for Healthcare” and “Financial Power of Attorney.” Mrs. Nations and Mr. Rodriguez also signed on June 17, 2018, an addendum to the RSA, stating that Mr. Nations needed and requested personal care services provided through defendants’ traditions memory care program, which is “designed for residents who have a diagnosis on their physician’s report of dementia or, through an assessment of the resident, completed by the professional nurse, it has been determined that the services offered by the program are in the best interest of the resident.”

B. Mr. Nations’s Elder Abuse and Negligence Complaint

In October 2018, Mr. Nations filed a complaint against defendants in the superior court, alleging (1) elder abuse and (2) negligent hiring and supervision. Mr. Nations alleged in his complaint that, while residing at the Facility, Mr. Nations was injured, falling in August 2018, and fracturing his pelvis.

Mr. Nations also filed a motion for trial preference under Code of Civil Procedure section 36, which states that Mr. Nations is “a wheelchair bound 74 year old male with a medical history of supranuclear palsy, kyphosis, depression, permanent pacemaker, left ventricular hypertrophy, glaucoma, osteoarthritis, degenerative joint disease of the knees, left shoulder joint disease secondary to torn rotator cuff, GERD, bilateral hearing loss, difficulty opening his eyelids, high cholesterol, anemia, stroke with residual left sided weakness, bilateral cataracts surgery, and multiple unsuccessful cardio revisions due to atrial fibrillation. (See Declaration of Shahab Attarchi, M.D., at [¶] [¶] 8 and 9). [¶] Dr. Shahab Attarchi, a hospitalist with over 15 years of experience, has determined that Reginald Nations suffers from health conditions such that there exists substantial medical doubt of Mr. Nations’ survival beyond six months. (See Declaration of Shahab Attarchi, M.D., at [¶] [¶] 6, 7, 8, 9 and 10). This six-month determination was made by Dr. Shahab Attarchi on October l9, 2018. Thus, the need for trial preference is urgent.”

C. Defendants’ Motion to Compel Arbitration

In November 2018, defendants filed a motion to dismiss Mr. Nations’s complaint and or compel arbitration and stay the action (motion to compel arbitration). Defendants also filed a declaration by Mr. Rodriguez and exhibits, which included a Fidelity Investments Durable Power of Attorney (FPOA), advance health care directive (HPOA), and the RSA.

The FPOA was executed on June 5, 2018, by Mr. Nations as account owner, and by Mrs. Nations. The FPOA added Mrs. Nations as Mr. Nations’s attorney-in-fact, effective on June 5, 2018. The HPOA, signed by Mr. Nations on April 12, 2011, designated Mrs. Nations as his authorized agent to make health care decisions for him, effective when his “primary physician determines that [Mr. Nations is] unable to make [his] own health care decisions.”

Mr. Nations filed opposition to defendants’ motion to compel arbitration. Mr. Nations argued that he never entered into the Arbitration Agreement defendants were seeking to enforce. He further asserted he did not have the resources to pay for arbitration. Mr. Nations’s attorney, Stephen Garcia, filed in support of the opposition his declaration estimating the length of a court ordered arbitration in the instant case. Also filed was a Judicial Arbitration and Mediation Services (JAMS) general fee schedule and ADR invoices for arbitrations in three unrelated cases.

Mrs. Nations filed a declaration supporting the opposition, stating that she never asked Mr. Nations if she could execute on his behalf any legally binding documents between him and defendants, including an arbitration agreement. She stated that, when Mr. Nations was admitted to the Facility, she was given a stack of documents, which she was told she needed to sign before her husband could be admitted. Defendants did not provide any explanation regarding the Arbitration Agreement. Mrs. Nations further stated Mr. Nations cannot afford the cost of arbitration because he is 74 years old, not working, and “has significant health issues.” According to Mrs. Nations, the Nations’ monthly expenses are much greater than their monthly income. Mrs. Nations concluded that if Mr. Nations were required to pay the cost of arbitration, he would not be able to pursue his case against defendants.

Mr. Nations filed supplemental opposition asserting that his case is entitled to trial setting priority under Code of Civil Procedure section 36. Mr. Nations also objected to defendants’ discovery, and argued that defendants waived and unreasonably delayed seeking arbitration, which prejudiced him. Defendants filed opposition to Mr. Nations’s motion for trial preference, and Mr. Nations filed a reply.

On January 14, 2019, the trial court heard defendants’ motion to compel arbitration. The court acknowledged that Mr. Nations’s motion for trial preference was also set that same day but first heard defendants’ motion to compel arbitration. The court explained it would not hear the motion for trial preference if the court granted the motion to compel arbitration, because the court would not have jurisdiction to decide the motion for trial preference. The court then granted defendants’ motion to compel arbitration, and stayed the case while the parties mediated the case, before proceeding with arbitration.

III.

DISPOSITION

Because the parties recently settled this matter and Mr. Nations filed a request for dismissal after receiving this court’s tentative decision, Mr. Nations’s request for dismissal of his petition for a peremptory writ is dismissed as moot. The parties will bear their own costs of this writ proceeding.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

MENETREZ

J.