Judge: Cherol J. Nellon, Case: 22STCV39383, Date: 2024-04-02 Tentative Ruling
Case Number: 22STCV39383 Hearing Date: April 2, 2024 Dept: 14
Loaiza v. Kaiser
Case Background
This is a medical malpractice case,
though the exact nature of the alleged malpractice is unclear.
Complaint
On December 19, 2022, Plaintiff filed
her Complaint for (1) Medical Malpractice and (2) Loss of Consortium against
Defendants Kaiser Foundation Hospitals, Kaiser Foundation Health Plan, Inc.,
Southern California Permanente Medical Group (collectively “Kaiser”), Excell
Home Care Inc. (“Excell”), and DOES 1-100.
On July 28, 2023, Defendant Kaiser filed
their Answer.
On September 22, 2023, Plaintiffs
stipulated to arbitrate their claims against Defendant Kaiser.
On October 5, 2023, Defendant
Excell filed their Answer.
Cross-Complaint
On October 5, 2023, Defendant
Excell filed their Cross-Complaint for (1) Indemnification, (2)-(3) Declaratory
Relief, (4) Contribution, and (5) Contractual Defense against Cross-Defendants Kaiser
Foundation Hospitals and ROES 1-50.
On March 26, 2024, Cross-Complainant
Excell voluntarily dismissed Cross-Defendant Kaiser Foundation Hospitals,
without prejudice.
Trial Date
No trial date has yet been set.
Instant Motion
Defendant Excell
now moves this court for an order staying this case and compelling Plaintiffs
to arbitrate their claims, on the basis that the parties have entered into a
binding arbitration agreement.
Decision
The motion
is DENIED.
Governing Standard
Code of Civil Procedure § 1281.2
states, in pertinent part, as follows:
On petition of a party to an
arbitration agreement alleging the existence of a written agreement to
arbitrate a controversy and that a party thereto refuses to arbitrate such
controversy, the court shall order the petitioner and the respondent to
arbitrate the controversy if it determines that an agreement to arbitrate the
controversy exists, unless it determines that:
(a) The right to
compel arbitration has been waived by the petitioner; or
(b) Grounds exist
for the revocation of the agreement.
(c) 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 . . . .
Code of Civil Procedure § 1295
states in part that:
(a) Any contract for medical
services which contains a provision for arbitration of any dispute as to
professional negligence of a health care provider shall have such provision as
the first article of the contract and shall be expressed in the following
language: “It is understood that any dispute as to medical malpractice, that is
as to whether any medical services rendered under this contract were
unnecessary or unauthorized or were improperly, negligently or incompetently
rendered, will be determined by submission to arbitration as provided by
California law, and not by a lawsuit or resort to court process except as
California law provides for judicial review of arbitration proceedings. Both
parties to this contract, by entering into it, are giving up their
constitutional right to have any such dispute decided in a court of law before
a jury, and instead are accepting the use of arbitration.”
(b) Immediately before the
signature line provided for the individual contracting for the medical services
must appear the following in at least 10-point bold red type:
“NOTICE: BY SIGNING THIS CONTRACT
YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL
ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE
ARTICLE 1 OF THIS CONTRACT.”
…
(e) Such a contract is not a
contract of adhesion, nor unconscionable nor otherwise improper, where it
complies with subdivisions (a), (b), and (c) of this section.
California procedural rules govern
the determination of a party's motion to compel arbitration, unless the parties
clearly and unambiguously elect to use federal procedural rules or those of
another state. See Cronus Investments, Inc. v. Concierge Services (2005)
35 C.4th 376, 394; Vivid Video, Inc. v. Playboy Entertainment
Group, Inc. (2007) 147 Cal.App.4th 434; see also Peleg v. Neiman Marcus
Group, Inc. (2012) 204 C.A.4th 1425, 1442. And even if the
parties elect to use the rules of the Federal Arbitration Act, courts apply
state law to determine whether the arbitration clause is binding and enforceable.
McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, 964. “Arbitration
is a matter of contract and a party cannot be required to submit to arbitration
any dispute which he has not agreed so to submit.” United Steelworkers of America
v. Warrior & Gulf Nav. Co. (1960) 363 U.S. 574, 582. A party
petitioning to compel arbitration has the burden of establishing the existence
of a valid agreement to arbitrate and the party opposing the petition has the
burden of proving, by a preponderance of the evidence, any fact necessary to
its defense. Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th
348, 356-57.
Discussion
It is
undisputed that Plaintiff Alma Loaiza signed an agreement which states as
follows:
“Governing Law and Arbitration.
This Agreement shall be governed by and construed in accordance with the laws
of the State of California without reference to the conflict of law provisions
thereof. Any dispute, claim or controversy arising out of or related to this
Agreement shall be resolved by binding arbitration by a single arbitrator in
the County of Los Angeles, in accordance with the Commercial Arbitration Rules
of the American Arbitration Association then in effect. Judgment upon the
arbitration award shall be final, binding and conclusive and may be entered in
any court having jurisdiction. In agreeing to proceed by arbitration, each
party waives and gives up any and all procedural and substantive rights
otherwise available by law to file a civil action in the Superior Court of the
State of California, or in any state or federal court; and neither party may
bypass arbitration by filing a civil action in the Superior Court of the State
of California, or in any state or federal court.” (Declaration of Nicole
Fassonaki Exhibit A).
Plaintiffs argue that this contract does not comply with
Section 1295(a)&(b), quoted above. They are correct.
Defense
argues on reply that the differences are “minor discrepancies” and that the
agreement substantially complies. This is simply not accurate. The quoted text
of the agreement does not remotely resemble the mandatory text set forth in Section
1295(a). Nor is it the first article of Plaintiff’s contract, as also required there.
Finally, the contract makes no attempt at all to comply with the signature line
requirements set forth in Section 1295(b).
Conclusion
Because
this agreement violates Code of Civil Procedure §§ 1295(a)-(b), it cannot
be enforced. Therefore, the motion is DENIED.