Judge: Deirdre Hill, Case: 22TRCV00610, Date: 2022-10-28 Tentative Ruling

Case Number: 22TRCV00610    Hearing Date: October 28, 2022    Dept: M

Hearing Date:                          October 28, 2022

Moving Parties:                      Defendants Avenir Senior Living, LLC, AMCLA, LP dba Avenir Memory Care Westside, and AMCLA GP Inc.

Responding Party:                  Plaintiffs Judith Whitesman, et al.

Petition to Compel Arbitration

            The court considered the motion, opposition, and reply.

RULING

            The motion is DENIED.

BACKGROUND

            On July 21, 2022, Judith Whitesman, in and through her successor in interest Robert Whitesman, Robert Whitesman, Richard Whitesman, and Deena Whitesman filed a complaint against Avenir Memory Care Westside, Avenir Senior Living, LLC dba Avenir Memory Care Westside, AMCLA GP, Inc. dba Avenir Memory Care Westside, and AMCLA LP dba Avenir Memory Care Westside for (1) elder abuse, (2) negligence, (3) breach of contract, (4) willful misconduct, and (5) wrongful death.

            On October 18, 2022, plaintiffs filed an amendment designating Marissa Drinkhouse-Quintana as Doe 1.

LEGAL AUTHORITY

Under CCP § 1281, a “written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and revocable, save upon such grounds as exist for the revocation of any contract.”

Under CCP § 1281.2, “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: . . . (c) A party to the arbitration agreement is also a party to a pending court action . . . 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. . . . (d) . . . . If the court determines that a party to the arbitration is also a party to litigation in a pending court action . . . with a third party as set forth under subdivision (c) herein, the court (1) may refuse to enforce the arbitration agreement . . . ; (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 . . . pending the outcome of arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding.” 

DISCUSSION

            Defendants request an order compelling plaintiffs to arbitration of the claims asserted in the complaint and to stay the action.

            The complaint alleges that defendants failed to provide decedent with proper assistance and a fall care plan, which caused her to fall five times in six months.  Throughout her admission at Avenir Memory Care from February 1, 2022 through June 6, 2022, decedent required one-person physical assistance to use the restroom and the use of a walker to ambulate at all times.  Defendants knew that decedent was at high risk for falls, and yet failed to create a care plan with fall prevention interventions to maintain her safety.  Therefore, she fell five times in six months.  Complaint, ¶29.  Defendants failed to provided decedent with assistance with medications and failed to notify her physician of a change in condition, depriving her of life-saving treatment.  On June 1, 2022, decedent suffered from constipation.  Defendants violated a statute requiring defendants to store all medications in a safe and locked by leaving a full bottle of Milk of Magnesia in decedents’ room.  Id., ¶36.  That night she was found by defendant’ staff in a pool of her own blood and feces. The full bottle of was found empty in her bed.  The charge nurse failed to notify decedent’s physician and her family and her change in condition, depriving her of any care and treatment.  Id., ¶37.  The next morning she continued to suffer from loose stools and heavy rectal bleeding.  Id., ¶38.  On June 3, decedent was found covered in her own feces and the charge nurse finally notified decedent’s physician and family of her loose stools and bleeding but not that she had ingested an entire bottle of Milk of Magnesia.  Id., ¶¶40-41.  Defendants pushed the family to put decedent into hospice.  She was put into hospice on June 3 and died on June 6 because she was never treated for her gastrointestinal bleeding.  Id., ¶42.

            Existence of an agreement to arbitrate

“As stated in Cione v. Foresters Equity Services, Inc. (1997) 58 Cal. App. 4th 625, 634 ‘The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract.  There is no public policy favoring arbitration of disputes that the parties have not agreed to arbitrate.’”  Lopez v. Charles Schwab & Co., Inc. (2004) 118 Cal. App. 4th 1224, 1229.

Defendants assert that on January 31, 2022, plaintiff Judith Whitesman’s agent and son, Robert Whitesman, signed a Residency and Care Agreement on behalf of his mother.  Included within the Residency and Care Agreement is a detailed Arbitration Clause, which was also signed by Robert Whitesman on behalf of his mother.  Defendants contend that Robert Whitesman was authorized to act on behalf of Judith Whitesman because she granted broad powers in the form of a Durable Power of Attorney, including the right to submit claims to arbitration.  Defendants assert that the Arbitration Agreement is very broad, stating that “any and all claims or disputes arising from or related to his Agreement or to your rights, obligations, care, or services at Avenir MC Westside shall be resolved by submissions to neutral, binding arbitration in accordance with the Federal Arbitration Act.”  It also states that “it includes, without limitation, personal injury and wrongful death claims.”  Defendants also argue that the arbitration agreement applies to the other defendants as they are sued under agency and alter ego theories.  See Jodi Kanowitz decl., and exhibits.

In opposition, plaintiffs argue that defendants have failed to meet their burden in establishing the existence of a valid arbitration agreement between Judith Whitesman and defendants as the arbitration agreement is fatally defective because it failed to identify the name of the decedent/resident, Judith Whitesman, as required under Civil Code §1558.  Plaintiffs also contend that the agreement refers to inapplicable Arizona law.  Further, plaintiffs argue, an arbitration agreement contained in a residence agreement for assisted living facilities, such as the Resident Care Agreement, is unenforceable as a matter of public policy.  See Harris v. University Village Thousand Oaks, CCRC, LLC (2020) 49 Cal. App. 5^th 847, 851 (“the agreements compelling arbitration arising from or related to the tenancy provisions of the continuing care contracts are void.”).  Moreover, plaintiffs argue, Robert, Richard, and Deena Whitesman are not parties to the arbitration agreement and thus their wrongful death cause of action cannot be compelled into arbitration.  See Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC (2007) 150 Cal. App. 4^th 469, 474 (“Because there is no evidence that [spouse and agent for decedent] signed the arbitration agreements in his personal capacity, and because [the two adult sons] did not sign the arbitration agreements, there is no basis to infer that they waived their personal right to jury trial on the wrongful death claim.”); Birl v. Heritage Care, LLC (2009) 172 Cal. App. 4^th 1313, 1322 (the plaintiffs qualify as third parties within the meaning of Code of Civil Procedure §1281.2(c) as to the wrongful death cause of action and that the wrongful death claim “arose out of the same transaction or series of transactions involved in the injury causes of action” that survived the decedent and pled against the defendant” and there is a possibility of conflicting rulings).

            In reply, defendants argue that they have met their burden.  Defendants contend that Appendix O to the Residence and Care Agreement states that it is “between the Resident and the Community” and that Judith Whitesman is specifically identified as the “Resident” in the Residence and Care Agreement.  Defendants also argue that the Harris case is distinguishable and does not apply because the Harris decision states that section 1953(a)(4) applies only to disputes regarding the rights and obligations as a tenant and that in the herein case, plaintiffs are not alleging claims related to the tenancy provisions of a lease agreement and the agreement at issue carves out claims involving rights and obligations as a tenant.  As for the wrongful death claim, defendants argue that it should be included in the arbitration because the argument specifically applies to “wrongful death claims.”

            The court finds that defendants have met their burden of showing the existence of an enforceable arbitration agreement, which covers the scope of the 1^st through 4^th causes of action.

            The 2022 Residency and Care Agreement (see Jodi Kanowitz decl., Exh. 1) identifies that the agreement is made between AMCLA LP dba Avenir Memory Care Westside and Judy Whitesman as “Resident” and “Rob & Richard Whitesman” as “Resident’s Representative” or “Legal Representative” or “Responsible Party.”  Section U. sets forth the Arbitration Clause at pages 23-24.  It states in part:  “Therefore, by signing below, and in consideration of the parties’ mutual agreement to arbitrate, the parties agree if informal resolution is not possible, any and all claims or disputes arising from or related to this Agreement or to your rights, obligations, care, or services at Avenir MC Westside shall be resolved by submission to neutral, binding arbitration in accordance with the Federal Arbitration Act.  This agreement to arbitrate applies regardless of whether the claim is made against us, you, or any other individual or entity, and it includes, without limitation, personal injury and wrongful death claims.”  It also states, “Claims Not Subject to Arbitration.  . . . [T]o the extent required by law, claims involving your rights and obligations as a tenant, if any, shall not be subject to arbitration, consistent with Civil Code Section 1953(a)(4).”  Above the signature line, it states, “By signing below, the parties warrant that they understand the significance of this Arbitration Clause and voluntarily agree to be bound by it. . . .”  It was signed by Judith Whitesman’s representative Robert Whitesman on January 25, 2022.  Robert Whitesman also signed Appendix O “Voluntary Agreement for Arbitration.”  Kanowitz decl., Exh. 2.  The court notes that “Arizona” is crossed out and “California” was handwritten above in referencing the applicable law.  Judith Whitesman’s name is not filled out on the blank line but refers to “Resident.”  It was signed by Judith Whitesman’s legal representative.

            Further, Robert Whitesman was appointed as attorney-in-fact via a Durable Power of Attorney dated November 10, 2015.  He is authorized under “Legal Actions” “[t]o act for me in all legal matters, whether claims in my favor or against me, including but not limited to . . . sign all documents, submit claims to arbitration or mediation . . . .”

            In Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal. App. 4^th 298 the trial court’s order denying the nursing home’s petition to compel arbitration was affirmed.  Decedent mother’s daughters had signed two arbitration agreements.  There was no evidence that the mother had signed a durable power of attorney.  Thus, the appellate court held the mother lacked the capacity to authorize the daughters to enter into the arbitration agreements on her behalf.  In Flores v. Evergreen at San Diego, LLC (2007) 148 Cal. App. 4^th 581, the husband did not yet have a power of attorney to act for his wife when he signed arbitration agreements when admitting his wife into a skilled nursing facility.  In the recent case Logan v. Country Oaks Partners, LLC (2022) 82 Cal. App. 5^th 365, the appellate court found that the trial court had properly denied the skilled nursing facility’s petition to compel arbitration because a health care agent and attorney-in-fact who had been designated in an advance directive to make health care decisions lacked authority under Probate Code §4683 (power of attorney for healthcare).  As opposed to Pagarigan, Flores, and Logan, in the herein case, decedent mother signed a durable power of attorney giving her son authorization to enter into an arbitration agreement on her behalf. 

            Further, as argued by defendants, the Harris case cited by plaintiffs is inapplicable.  The arbitration agreement at issue specifically excluded any tenant related claims.

            Under CCP §1281.2(c), when there is a written arbitration agreement, a trial court shall order the parties to arbitrate the controversy unless it determines, in part, that a party to the arbitration agreement is also a party to a pending court action 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.  Here, plaintiffs’ claims for wrongful death are not subject to arbitration as they did not sign the agreement in their individual capacity.  See Fitzhugh and Birl, supra.  The court finds that there is a danger of inconsistent rulings of fact or law if the survivor claims were ordered to arbitration but the wrongful death claim was not.  As such, the possibility of conflicting rulings warrants denial of the motion to compel arbitration of the survival claims.  See also Daniels v. Sunrise Senior Living, Inc. (2013) 212 Cal. App. 4^th 674, 677 (“disagreeing that [decedent’s attorney in fact] should have been compelled to arbitrate her personal wrongful death claim along with the survivor claims pursuant to the rationale articulated in Herbert v. Superior Court (1985) 169 Cal. App. 3d 718 and Ruiz v. Podolsky (2010) 50 Cal. 4^th 838 [cases cited by moving defendants]. . . As we explain, Herbert and Ruiz have no bearing on third party wrongful death claims outside the context of section 1295 [professional negligence of a health care provider].””).  Daniels found Fitzhugh to be “on point and persuasive.”  Id. at 681.

            The motion is therefore DENIED.

            Plaintiffs are ordered to give notice of the ruling.