Judge: Cynthia A Freeland, Case: 37-2023-00012154-CU-MM-NC, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 26, 2023

10/27/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Medical Malpractice Motion Hearing (Civil) 37-2023-00012154-CU-MM-NC EPSTEIN VS. KAISER FOUNDATION HEALTH PLAN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 07/24/2023

Defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Inc., Southern California Permanente Medical Group Inc., and Donald Scott Crain, M.D. (collectively, 'Defendants')'s petition to compel arbitration and stay proceedings (the 'Petition') is granted.

The court construes Plaintiff Dr. Robert Epstein ('Plaintiff')'s lack of opposition as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the court finds that Defendants have satisfied their burden of proving the existence of a valid arbitration agreement between Plaintiff and Defendants. 'For purposes of a petition to compel arbitration . . . the court is only required to make a finding of the agreement's existence, not an evidentiary determination of its validity.' Condee v. Longwood Management Corp. (2001) 88 Cal. App. 4th 215, 218-219; see also Lane v. Francis Capital Management LLC (2014) 224 Cal. App. 4th 676, 683; Cal. R. Ct. 3.1330. Toward that end, Defendants have provided a copy of the Senior Advantage Medicare (HMO) Evidence of Coverage Agreement (the 'Agreement') through which Plaintiff became a Kaiser Medicare Senior Advantage member effective July 1, 2020. See Defendants' Index of Exhibits, Ex. A. He remained so enrolled as a Kaiser member in 2021 when the subject medical care occurred. Ibid., Ex. B. By virtue of Plaintiff's enrollment as a Senior Advantage member and his acceptance of benefits under the Agreement, he was bound by all of its terms and conditions, including that which requires binding arbitration. See Agreement, pp. 244, 247. In relevant part, the Agreement provides that: Any dispute shall be submitted to binding arbitration if all of the following requirements are met: The claim arises from or is related to an alleged violation of any duty incident to or arising out of or relating to this Evidence of Coverage or a member Party's relationship to Kaiser Foundation Health Plan, Inc. (Health Plan), including any claim for medical or hospital malpractice (a claim that medical services or items were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered), for premises liability, or relating to the coverage for, or delivery of, services or items, irrespective of the legal theories upon which the claim is asserted.

The claim is asserted by one or more member Parties against one or more Kaiser Permanente Parties or by one or more Kaiser Permanente Parties against one or more member Parties.

Governing law does not prevent the use of binding arbitration to resolve the claim.

Ibid., p. 248.

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3000324 CASE NUMBER: CASE TITLE:  EPSTEIN VS. KAISER FOUNDATION HEALTH PLAN [IMAGED]  37-2023-00012154-CU-MM-NC In addition, the court finds that Defendants have demonstrated that the claims underlying Plaintiff's Complaint fall squarely within the Agreement's scope. More specifically, on March 23, 2023, Plaintiff filed a Complaint alleging causes of action for: (1) professional negligence; (2) lack of informed consent; (3) negligent infliction of emotional distress; (4) negligent misrepresentation; (5) intentional misrepresentation; (6) concealment; (7) battery; and (8) loss of consortium. See ROA No. 1. The Complaint alleges, inter alia, that Defendants injured Plaintiff through the negligent completion of penile implant surgery. Plaintiff's professional negligence and related claims, all arising from medical services provided to him by Defendants, fall within the ambit of the Agreement's arbitration provisions, i.e., 'claim[s] for medical . . . malpractice . . . or relating to the coverage for, or delivery of, services or items, irrespective of the legal theories upon which the claim is asserted.' The burden thus shifts to Plaintiff to prove by a preponderance of the evidence any facts necessary to preclude enforcement of the Agreement. By failing to oppose the motion, Plaintiff has not met his burden.

In light of the foregoing, the court grants the Petition. This litigation is stayed pending the outcome of the arbitration hearing. See 9 U.S.C. § 3; Cal. Code Civ. P. § 1281.4. The court vacates the currently set Case Management Conference and sets a status conference in this matter for February 23, 2024 at 9:30 a.m. in this department.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, October 27, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of October 27, 2023, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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