Judge: Armen Tamzarian, Case: 23STCV03177, Date: 2023-11-27 Tentative Ruling

Case Number: 23STCV03177    Hearing Date: November 27, 2023    Dept: 52

Defendant St. John of God Retirement and Care Center’s Motion to Compel Arbitration

Defendant St. John of God Retirement and Care Center moves to compel arbitration and stay this action by plaintiff Mildred Reed as an individual and as successor-in-interest for decedent Raymond C. Reed.  Defendant does not move to compel arbitration of the first cause of action for violation of Health and Safety Code section 1430(b). 

The Arbitration Agreement Does Not Apply to Mildred Reed’s Cause of Action for Wrongful Death           

            Plaintiff Mildred Reed brings a cause of action for wrongful death against defendant.  Though decedent Raymond C. Reed signed the arbitration agreement (Natoli Decl., Ex. B), Mildred Reed dd not sign it and is not bound by it.  “As a general rule, a party cannot be compelled to arbitrate a dispute that he or she has not agreed to resolve by arbitration.”  (Daniels v. Sunrise Senior Living, Inc. (2013) 212 Cal.App.4th 674, 680 (Daniels).)  A “wrongful death claim is personal to [the heir] and lies independent of the survivor claims.”  (Ibid.) 

            Defendant’s reliance on Ruiz v. Podolsky (2010) 50 Cal.4th 838 (Ruiz) is misplaced.  The Court of Appeal has recognized that Ruiz does not apply “to arbitration agreements not governed by or entered into pursuant to” Code of Civil Procedure section 1295.  (Daniels, supra, 212 Cal.App.4th at p. 686; accord Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 841-843 (Avila).)  Neither Ruiz nor section 1295 applies here.  “What matters is not the license status of the defendant, but the basis of the claims as pleaded in the complaint.  If the primary basis for the wrongful death claim sounds in professional negligence as defined by MICRA, then section 1295 applies.  If, as plaintiffs claim here, the primary basis is under the Elder Abuse and Dependent Adult Civil Protection Act … then section 1295 does not apply and neither does Ruiz’s exception to the general rule that one who has not consented cannot be compelled to arbitrate.”  (Avila, supra, at p. 842.) 

The facts in Avila are analogous.  There, the surviving plaintiff alleged the decedent died “as a result of [a hospital’s] neglect.”  (Avila, supra, at p. 838.)  Plaintiff alleged, “A dislodged feeding tube began infusing into the throat and/or esophagus instead of the stomach, and [decedent’s] impaired gag reflex was unable to clear his lungs.  He aspirated, resulting in cardiopulmonary arrest and rapid decline until his death.”  (Ibid.)  The court stated that, in determining whether the arbitration agreement bound the survivor, “[t]he question … is whether Ruiz is controlling here, and we must therefore determine whether this case is about ‘professional negligence,’ as defined by MICRA, or something else.”  (Id. at p. 842.)  MICRA “defines ‘professional negligence’ as ‘a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death.’ ”  (Id. at p. 841.) 

The court reasoned, “The complaint includes allegations that could be categorized as professional negligence as well as elder abuse.  There is at least some overlap between the two.  But the complaint was pleaded as one for ‘negligence/willful misconduct,’ elder abuse and neglect under the Act, and wrongful death.  The complaint alleges a ‘conscious and continued pattern of withholding the most basic care and services,’ which included a lack of monitoring, supervision, assistance, and other adequate care and services.  It alleges the lack of availability of a physician, failure to provide properly trained staff and nursing, among other things.”  (Avila, at p. 843.) 

“Neglect includes the failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; the failure to provide medical care for physical and mental health needs; the failure to protect from health and safety hazards; and the failure to prevent malnutrition or dehydration.  [Citation.]  Under the [Elder Abuse and Dependent Adult Civil Protection] Act, neglect refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.  [Citation.]  Thus, the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care.”  (Avila, at p. 843, internal quotes omitted.)   

The court concluded, “Plaintiffs, within the limits of established law, are essentially free to plead their case as they choose.  They chose to plead a cause of action under the [Elder Abuse] Act, and they did so successfully.  The fact that they could have also pleaded a claim for medical malpractice, had they wished to do so, is irrelevant.  Accordingly, we conclude the plaintiffs’ claim is not one within the ambit of section 1295, and therefore, Ruiz’s holding does not apply.”  (Avila, supra, at p. 843.)

Like Avila, plaintiff’s claims sound in elder abuse and neglect, not professional negligence.  The second amended complaint alleges, “On the morning of February 14, 2022, Mr. Reed was not well, exhibiting choking and multiple episodes of vomiting.  SJGRCC and its staff failed to timely assess him, report his symptoms timely to the family or treating physician or obtain necessary medical services for him.  This failure was caused, among other things, by the failure of SJGRCC to have sufficient, qualified, trained and adequately supervised staff.  As a result of these events, Mr. Reed choked to the point of suffering severe hypoxia (deprivation of oxygen to the brain), resulting in his death.”  (SAC, ¶ 2.)

Preventing someone from choking is a matter of ordinary custodial supervision of a resident in a nursing facility.  Rather than “ ‘a negligent act or omission to act by a health care provider in the rendering of professional services’ ” (Avila, supra, 20 Cal.App.5th at p. 841), such conduct constitutes “failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations” and “the failure to provide medical care” (id. at p. 843).  Plaintiff’s allegation that Raymond Reed died because of “the failure of SJGRCC to have sufficient, qualified, trained and adequately supervised staff” (SAC, ¶  2) is equivalent to the allegations in Avila of wrongful death due to “a lack of monitoring, supervision, assistance, and other adequate care and services” and “failure to provide properly trained staff and nursing.”  (Avila, supra, at p. 843.) 

Plaintiff’s allegations are also like those in Daniels, where the decedent “died as a result of receiving inadequate care at” a residential care facility for the elderly.  (Daniels, supra, 212 Cal.App.4th at p. 676.)  In contrast, in Ruiz the plaintiffs alleged an orthopedic surgeon “failed to adequately identify and treat [decedent’s] hip fracture resulting in complications, and eventually his death.”  (Ruiz, supra, 50 Cal.4th at p. 842).  The second amended complaint alleges Raymond Reed died because defendant negligently allowed him to “choke[] to the point of suffering severe hypoxia.”  (SAC, ¶ 2.)  It does not allege negligent “undertaking of medical services” (Avila, supra, 20 Cal.App.5th at p. 843), such as a medical professional examining Raymond Reed and failing to properly diagnose or treat him.    

Defendant’s reply makes conclusory arguments that Mildred Reed’s cause of action for wrongful death arises from professional negligence of a health care provider.  (Reply, pp. 2-3.)  The reply cites Ruiz but does not address Daniels or Avila.  Defendant argues Ruiz and Code of Civil Procedure section 1295 apply because plaintiff alleges decedent “was ‘admitted for rehabilitation following a stroke.’ ”  (Id., p. 3.)  The reason for admission is not the issue.  The inquiry turns on “whether this case is about ‘professional negligence,’ as defined by MICRA, or something else.”  (Avila, supra, 20 Cal.App.5th at p. 842.)  In Avila, the Court of Appeal held Ruiz did not apply though the decedent was admitted to defendant’s “long-term acute care hospital” because he suffered “from various conditions, including sepsis and chronic renal failure.”  (Id. at p. 838.)  This case arises from the reasons for Raymond Reed’s death, not the reasons for his admission to defendant’s facility—which occurred over a year before his death.  (SAC, ¶¶ 1-2.) 

The Court’s Discretion Under Code of Civil Procedure § 1281.2(c)

The arbitration agreement does not apply to plaintiff Mildred Reed’s cause of action for wrongful death.  As a result, “[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.”  (CCP § 1281.2(c).)  As in Daniels, “if the survivor claims are ordered to arbitration but [the heir’s] wrongful death claim was not, there is a possibility of inconsistent rulings on the claims given that they are the claims are based on the allegation that [decedent] received inadequate care at” the facility.  (Daniels, supra, 212 Cal.App.4th at p. 686.)  Code of Civil Procedure section 1281.2(c) applies because the “claims involve the same set of operative facts.”  (Avila, supra, 20 Cal.App.5th at p. 845.) 

The court therefore has discretion to choose one of four options.  The court: “(1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding.”  (CCP § 1281.2.) 

The court chooses the first option.  The court will refuse to enforce the arbitration agreement and require all parties to litigate their disputes in this civil action.        

Disposition

Defendant St. John of God Retirement and Care Center’s motion to compel arbitration is denied.