Judge: Carolyn M. Caietti, Case: 37-2023-00049394-CU-PO-CTL, Date: 2024-05-10 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 09, 2024

05/10/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2023-00049394-CU-PO-CTL DE VOS VS FRONT PORCH COMMUNITIES AND SERVICES [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Front Porch Communities and Services dba Wesley Palms Retirement Community and Benjamin Geske's Motion to Compel Arbitration is DENIED.

Preliminary Matters The Court will refer to the plaintiffs by their first names to avoid confusion. No disrespect is intended.

Defendant's reply objections to the Declaration of Karen de Vos are overruled. (ROA 39; Evid. Code, § 1271 [business records exception]; McDowd v. Pig'n Whistle Corp. (1945) 26 Cal. 2d 696 [medical records are admissible in evidence to prove such matters as the condition or nature and extent of a party's injuries]; 31 Cal. Jur. 3d Evidence § 416; Estate of Clegg (1978) 87 Cal.App.3d 594, 601, fn. 4 ['Opinion evidence on the issue of mental capacity may be given by an intimate acquaintance.'], citing Evid. Code, § 870.) Defendant's reply objections to the Declaration of Robert Dieringer are overruled. (ROA 40.) Defendant's reply objections to the Declaration of Stephen de Vos are overruled. (ROA 41; Estate of Clegg, supra.) Discussion As to Christiaan de Vos, based on the evidence provided, including a copy of the purported Arbitration Agreement (Appendix G), Defendants did not prove the existence of an arbitration agreement. (C.C.P., § 1281.2; ROA 14 – Declaration of Roxane Reyna, at Ex. 3.) An arbitration agreement, like any contract, requires the mutual consent of the parties. (Algo-Heyres v. Oxnard Manor LP (2023) 88 Cal.App.5th 1064, 1067, rev. denied (May 31, 2023). Here, there is evidence Christiaan lacked capacity to consent to arbitrate and waive his right to a jury trial on the claims alleged.

As explained in Algo-Heyres: 'Probate Code section 811 requires that incapacity to contract be supported by evidence of a deficit in at least one of four areas: alertness and attention, information processing, thought processes, and ability to modulate mood and affect. (Prob. Code, § 811, subd. (a).) The deficit must 'significantly impair[ ] the person's ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.' (Prob. Code, § 811, subd. (b).) The capacity to make a decision requires the person have the ability to communicate the decision verbally or by other means, and to understand and appreciate the rights and responsibilities Calendar No.: Event ID:  TENTATIVE RULINGS

3084257  58 CASE NUMBER: CASE TITLE:  DE VOS VS FRONT PORCH COMMUNITIES AND SERVICES  37-2023-00049394-CU-PO-CTL affected by the decision, the probable consequences, and the 'significant risks, benefits, and reasonable alternatives involved in the decision.' (Prob. Code, § 812.)' (Algo-Heyres, at p. 1070-71.) More complicated decisions and transactions require greater mental function. (Id., at p. 1071.) In Algo-Heyres, relying on information in medical records, the appellate court concluded the trial court properly denied a petition to compel arbitration where a patient in a skilled nursing facility lacked mental capacity to consent to arbitration under Probate Code sections 810-812. Medical professionals concluded the patient had deficits in receptive and expressive communication, memory, problem solving, following abstract directions and executive functioning. (Algo-Heyres, at p. 1071.) Their reports showed deficits in mental functions pertaining to information processing, such as memory and ability to plan, organize, and carry out actions. (Ibid.) There was deficit in alertness and attention, including the ability to understand or communicate with others. (Id., at p. 1072.) The patient was also unable to recognize familiar persons. (Ibid.) The court found the trial court could reasonably infer from the evidence of the patient's inability to recognize his wife or granddaughter, failure to respond to questions about his care, inability to understand speech, and ability to respond to only simple questions or commands, that his deficits 'significantly impair[ed]' his 'ability to understand and appreciate the consequences' of waiving his right to trial. (Ibid., citing Prob. Code, §§ 811(b), 812.) Similarly, here, as described in Karen and Stephen's declarations, the move to San Diego/Wesley Palms was necessitated by Christiaan's deteriorating condition. At the time the decision to move was made, Christiaan was having trouble remembering to use the bathroom and urinating on himself about once a week. (Declaration of Karen de Vos, at ¶ 5.) In July 2022 and shortly before the move, Christiaan's physician's primary diagnosis was Alzheimer's Dementia and reported Christiaan: (i) could not manage his own treatment, medication or equipment; and (ii) his dementia included the 'loss of intellectual function (such as thinking, remembering, reasoning, exercising judgment [sic] and making decisions) and other cognitive functions, sufficient to interfere with an individual's ability to perform activities of daily living or to carry out social or occupational activities'; and (iii) exhibited confusion/disorientation and sundowning behavior. (Karen Decl., at ¶ 6, Ex. C.) Even if the personal physician's records are inadmissible for the truth of the matter, they explain, in part, the De Vos' conduct by moving to a community such as Wesley Palms offering independent, assisted and memory care living assistance.

Wesley Palms staff also noted Christiaan's mental condition and limitations and that he needed help moving about the facility due to confusion and dementia. Within two months of moving into Wesley Palms, Christiaan was moved to a memory care unit, not understanding the unit was not to rent for someone else. (Karen Decl., at ¶ 9.) As Stephen explains, even in 2018, conversations with Christiaan were harder to have and, in spring 2022, Christiaan did not remember his grandsons names and could not tell them apart. (Declaration of Stephen de Vos, at ¶¶ 4-5.) Even if the Court does not consider the medical records, there is sufficient evidence Christiaan was not competent to enter into an arbitration agreement, including Christiaan's: difficulties processing information, following instructions, getting dressed and sequencing putting on and taking off clothing; incontinence; inability to participate in the process of moving and forgetting the names of his grandchildren.

In addition, the agreement is a nearly 1.5-page, single-spaced document attached as an appendix that included legal terms, reference to several statutes and types of claims and waived the constitutional right to a jury trial and other class/representative actions. The Court also notes Christiaan did not appear to initial the second page of the arbitration agreement, acknowledging his ability to rescind the agreement within 30 days, like Karen did.

Taken as a whole, this evidence shows Christiaan had deficits in mental functions described in Probate Code section 811 and lacked legal capacity at the time the arbitration agreement was signed.

As to Stephen de Vos, the moving briefing is silent as to how Stephen de Vos contracted with Calendar No.: Event ID:  TENTATIVE RULINGS

3084257  58 CASE NUMBER: CASE TITLE:  DE VOS VS FRONT PORCH COMMUNITIES AND SERVICES  37-2023-00049394-CU-PO-CTL Defendants to arbitrate. He is not a signatory to the arbitration agreement. (See, Goldman v. Sunbridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1178 ['it is well settled that an arbitration agreement requires consent' and the 'strong public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement'].) Even if Karen validly entered into the arbitration agreement with Defendants, there is no valid arbitration agreement with Christiaan and Steven, thus, C.C.P. section 1281.2(c) applies as there is a strong possibility of conflicting rulings on a common issue of law or fact. (See, Daniels v. Sunrise Senior Living Inc. (2013) 212 Cal.App.4th 674 (holding a daughter could not be compelled to arbitrate her individual wrongful death claim because she had not signed the residency agreement in her individual capacity and there would be a danger of inconsistent rulings if the survivor claims, but not the wrongful death claim, were ordered to arbitration).) Here too, all claims are based on the allegations that Christiaan received inadequate care. The witnesses, factual determinations and legal issues will overlap or be the same.

Defendants' reliance on Valencia v. Smyth (2010) 185 Cal.App.4th 153 is misplaced. There, the appellate court concluded that by adopting the Federal Arbitration Act (FAA) for purposes of contract interpretation, the parties did not displace the procedural provisions of the California Arbitration Act.

Further, the court found no abuse of discretion in finding the parties could expressly agree to the FAA's procedural rules but that there were nothing in the parties' arbitration clause indicating such an agreement. (Id., at p. 180.) Here too, Defendants do not point to any provision indicating an express agreement to follow the FAA's procedural rules.

For these reasons, the petition, including the stay request, is DENIED.

Concluding Orders The Case Management Conference remains on calendar.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendants are ordered to serve notice of the Court's final ruling by May 24, 2024.

Plaintiffs are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of motion paperwork.

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