Judge: Deborah C. Servino, Case: 30-2022-01276949, Date: 2022-12-09 Tentative Ruling
MOTION FOR TRIAL PREFERENCE
NO TENTATIVE RULING
Plaintiff David Alvarado’s motion for trial preference pursuant to Code of Civil Procedure section 36 is continued to January 13, 2023, at 10 am in this Department, to allow Defendants Park View Estates, Fountain Valley OPCO, LLC DBA Park View Estates, and Sunshine Retirement Living LLC to address the Pick Declaration (ROA 48). (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)
Any supplemental opposition shall be filed and served no later than nine court days prior to the continued hearing date. Any supplemental reply shall be filed and served no later than five court days prior to the continued hearing date. All supplemental briefs shall be no more than five pages in length.
Plaintiff shall give notice of the order and continued hearing.
MOTION TO COMPEL ARBITRATION
Defendants’ motion to compel arbitration is denied.
Arbitration Agreement
The applicable arbitration agreement was the Alternative Dispute Resolution Agreement Between Resident and Facility. The arbitration agreement identified Plaintiff as the “Resident”. (Koester Decl., Exh. B; Nassar Decl., Exh. B; Eddy Decl., Exh. B.) It was not signed by Plaintiff. Rather, it was signed by his daughter Diane Schwickerath. Below Schwickerath’s signature line was the following statement:
I am the Legal Representative of the Resident and, in that capacity, as well as individually, I Have read this agreement and have had it explained to me. I am signing this Agreement on behalf of the Resident as well as on my own behalf. I am authorized to sign this Agreement on behalf of the Resident. I have authority to act on behalf of the Resident, pursuant to a power of attorney, conservatorship, or guardianship, I have provided a copy of the legal documents to support my authority to sign this Agreement on behalf of the Resident.
(Koester Decl., Exh. B; Nassar Decl., Exh. B; Eddy Decl., Exh. B, at page 4 of 4; see Exh. A, at page 19 of 31 [noting Schwickerath’s relationship to Plaintiff as daughter].)
Federal Arbitration Act (“FAA”)
Defendants argue that the FAA is the controlling law. (Mot., at 9-11.) Preliminarily, both the Federal Arbitration Act (“FAA”) and the California Arbitration Act (“CAA”) require the existence of a valid arbitration agreement, before arbitration can be compelled. (See 9 U.S.C. § 2; Code Civ. Proc., § 1281.2.)
“In California, ‘[g]eneral principles of contract law determine whether the parties have entered a binding agreement arbitrate.” (Theresa D. v. MBK Senior Living, LLC (2021) 73 Cal.App.5th 18, 24.) Indeed, even where the FAA applies, “[i]n determining the rights of parties to enforce an arbitration agreement . . . courts apply state contract law. . . .” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)
Merits
“The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement.” (Goldman v. Sunbridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1169.) “Although ‘[t]he law favors contracts for arbitration of disputes between parties’ [citation removed], ‘there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate. . . .’” (Ibid.) As a result, the first step is to determine whether there as an agreement to arbitrate the pending dispute.
“[A]n agency relationship may arise by oral consent or by implication from the conduct of the parties. [Citation.] However, an agency cannot be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the agency.” (Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 587-588 [nonsignatory patient at skilled nursing facility was not bound by arbitration agreement because her signatory husband was not her agent]; see Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, 301-302 [comatose mother not bound by nursing home arbitration agreement signed by daughters because there was no evidence mother authorized daughters to act as her agents].) The existence of a familial relationship between a health care facility resident and a purported representative is insufficient, standing alone, to establish ostensible agency. (Goldman v. Sunbridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1165; Valentine v. Plum Healthcare Group, LLC (2019) 37 Cal.App.5th 1076, 1088.) Ostensible agency can only be created by the acts of the principal, not the agents. (Lopez v. Bartlett Care Center, LLC (2019) 39 Cal.App.5th 311, 318.)
Here, Defendants have not provided sufficient evidence for the court to find that Schwickerath had the authority to bind Plaintiff to the arbitration agreement. Defendants did not provide any documents, which establish that Schwickerath had legal authority to execute the arbitration agreement on Plaintiff’s behalf. (See Tran v. Farmers Group Inc. (2002) 104 Cal.App.4th 1202, 1214 [the scope of a power of attorney depends on the language of the instrument, which is strictly construed].)
The cases relied upon by Defendants in their reply, Kindred Nursing Centers LP v. Clark (2017) 137 S. Ct. 1421 and Garrison v. Superior Court (2005) 132 Cal.App.4th 253, do not assist them. Those cases involved individuals holding powers of attorney. (See Kindred Nursing Centers LP v. Clark, supra, 137 S. Ct. at pp. 1424-1425; Garrison v. Superior Court, supra, 132 Cal.App.4th at p. 265.) Defendants’ arguments as to third-party beneficiary and equitable estoppel that were raised in the reply, likewise do not assist them. Accordingly, the motion to compel arbitration is denied.
Plaintiff shall give notice of this ruling.