Judge Alison Mackenzie, Case Number: 22STCV34808, Date: 2024-05-29 Tentative Ruling

Judge: Alison Mackenzie, Case: 22STCV34808, Date: 2024-05-29 Tentative Ruling

Case Number: 22STCV34808 Hearing Date: May 29, 2024 Dept: 55

NATURE OF PROCEEDINGS: Plaintiff’s Motion to Compel Arbitration and Stay Action.

BACKGROUND

ALEXANDER WU, a minor, by and through his Guardian ad Litem, DI WU (“Plaintiff”) filed a medical malpractice case against KHALED A. TAWANSY, M.D. (“Tawansy”) and SAN GABRIEL VALLEY MEDICAL CENTER (“San Gabriel”) for damages resulting from Plaintiff’s alleged undiagnosed and untreated eye disease that caused Plaintiff’s blindness at the age of five months.

Plaintiff brings a motion requesting an order compelling arbitration as to Tawansy and staying this action as to San Gabriel. Tawansy opposes the motion.

LEGAL STANDARD

A party seeking arbitration has the burden of proving by a preponderance of evidence that a valid arbitration agreement exists. Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842; see also § CCP 1281.2. A party meets its initial burden simply by reciting the terms of the governing provision, or by attaching a copy of the provisions. Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 793. Once the petitioner meets its burden, “the burden shifts to the party opposing the motion to compel, who may present any challenges to the enforcement of the agreement and evidence in support of those challenges.” Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, 1160.

Where a court has ordered arbitration, it shall stay the action pending the outcome of the arbitration. Code Civ. Proc., § 1281.4.

ANALYSIS

Plaintiff seeks an order compelling arbitration of Plaintiff’s claims against Tawansy based on a written agreement covering the malpractice allegations in Plaintiff’s Complaint. Plaintiff submitted a declaration from Plaintiff’s mother, which states that the staff at Tawansy’s office instructed her to sign various papers, which included the arbitration agreement. Decl. Su Su; see also Mot., Ex. 1. She explained that she did not know at the time she had signed an arbitration agreement or know what it was but that she acknowledges that she is bound by the agreement. Id. Plaintiff’s father explained that he did not receive a copy of the arbitration agreement from Tawansy’s office when he requested his son’s medical records in January 2022. Decl. Di Wu. Plaintiff’s attorney reports that he did not become aware of the existence of the agreement until October 2023, when Tawansy produced documents in discovery propounded by co-Defendant San Gabriel. Decl. Christopher B. Mears. Thereafter, Plaintiff’s attorney met and conferred with Tawansy’s attorney regarding the arbitration agreement but Tawansy refused to agree to arbitrate. Id.

Plaintiff has sufficiently met his burden of showing the existence of the arbitration agreement, signed by Plaintiff’s mother, which covers the claims at issue in Plaintiff’s lawsuit against Tawansy. Michaelis v. Schori (1993) 20 Cal.App.4th 133, 137 (guardians can bind minors to arbitration).

The burden shifts to Tawansy to challenge the enforceability of the agreement. Tawansy first contends that the agreement is unenforceable because he did not sign it. “[T]he writing memorializing an arbitration agreement need not be signed by both parties in order to be upheld as a binding arbitration agreement.” Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 176. “[I]t is not the presence or absence of a signature which is dispositive; it is the presence or absence of evidence of an agreement to arbitrate which matters.” Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 361 (finding a complete absence of proof of circumstances showing assent). While Tawansy did not sign the agreement, the circumstances infer his intent to enter into the agreement with Plaintiff, including that Tawansy’s own office assistant requested Plaintiff’s signature, and Tawansy performed medical services at an appointment. Decl. Su Su and Di Wu. Analogously, arbitration agreements often have been enforced against employees even though the employers never signed the agreement. Additionally, although above the signature lines, the agreement states, “BY SIGNING THIS CONTRACT YOU ARE AGREEING…,” the agreement uniquely never defines “YOU,” making it ambiguous and subject to interpretation as to whether Tawansy must sign it into effect. Mot., Ex. 1. The Court therefore rejects Tawansy’s argument that the agreement that his office assistant provided to Plaintiff is not enforceable against him.

Tawansy also contends that the agreement is invalid because Plaintiff’s mother did not know what she was signing and thus there was no meeting of the minds. This argument is not well-taken. “‘[O]rdinarily one who signs an instrument which on its face is a contract is deemed to assent to all its terms. A party cannot avoid the terms of a contract on the ground that he or she failed to read it before signing….’” Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696, 701. The inability to understand an arbitration contract is not cognizable grounds to avoid contracts, because parties are expected to have others read or explain the contracts to them. Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163. Thus, Plaintiff, through his mother, is bound by the arbitration agreement regardless of whether Plaintiff’s mother understood what she was signing.

Tawansy next contends that Plaintiff cannot authenticate the arbitration agreement but presents no counter evidence disputing the authenticity of the document. In any event, counsel authenticates the agreement by referencing it as being part of a discovery response from co-Defendant San Gabriel. Decl. Christopher B. Mears. Attorneys with personal knowledge of discovery in the litigation are competent to testify that they obtained information as discovery responses. E.g., Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1183 (“declaration establishes that her personal knowledge of the litigation rendered her competent to testify that respondents had obtained the materials … through discovery.”).

Tawansy also asserts that Plaintiff waived any right to compel arbitration by delaying nearly a year-and-a-half after filing the case (and after the trial date was set) to bring the motion. Participating in litigation does not by itself waive a party’s right to later seek to arbitrate the matter. Whether a party’s continued litigation waives the right to seek arbitration is a factual determination that considers if the party’s actions were inconsistent with an intent to arbitrate. Desert Regional Medical Center, Inc. v. Miller (2022) 87 Cal.App.5th 295, 316, 321. No established test determines waiver of arbitration, but courts may consider whether (1) a party’s actions are inconsistent with arbitrating, (2) litigation proceedings were substantially invoked and parties were well into lawsuit preparations before party notification of intent to arbitrate; (3) a party requested arbitration close to trial or delayed for a long period; (4) a party seeking arbitration filed a cross-action without requesting arbitration; (5) important intervening steps occurred such as discovery procedures unavailable in arbitration; and (6) delay prejudiced, affected or misled parties opposing arbitration. Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 30 31. A trial court’s determination of waiver of arbitration is upheld on appeal if supported by substantial evidence. Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, 991.

Here, Plaintiff has not waived his right to seek arbitration because he consistently sought to pursue arbitration once he received the agreement in discovery, and diligently sought to enforce the arbitration agreement after failing to reach an agreement with Tawansy. The trial in the case is nearly a year away and Tawansy has provided no evidence whatsoever of any prejudice in instead enforcing the parties’ arbitration agreement to resolve this dispute. Any delay in seeking to arbitrate this matter is in fact due to Tawansy’s failure to timely provide Plaintiff with a copy of the arbitration agreement.

CONCLUSION

The motion is granted. Plaintiff and Tawansy shall arbitrate the controversies between them, including the entire Complaint, in accordance with their agreement to arbitrate. This entire case is stayed until such arbitration has been completed. The Court will set a Post Arbitration Status Conference with regards to Tawansy and TSC with regards to San Gabriel in consultation with counsel at the hearing.