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.