Judge: Elaine W. Mandel, Case: 23SMCV02634, Date: 2023-09-01 Tentative Ruling

Case Number: 23SMCV02634    Hearing Date: September 1, 2023    Dept: P

Tentative Ruling

Smith v. Washington Senior Care, LLC et al., Case No. 23SMCV02634

Hearing Date September 1, 2023

Plaintiff’s Motion for Preference (CCP 36(a))

Defendants’ Washington Senior Care, LLC et al.’s Petition to Compel Arbitration

Plaintiffs allege elder abuse, neglect and negligence at defendant Terraza Court residential care facility. Defendants argue Sharon Roberts, power of attorney/legal representative for plaintiff Smith, signed an arbitration agreement on August 17, 2021 applying to any claim or controversy arising out of care at Terraza Court. Plaintiff Smith moves for trial priority; defendants move to compel arbitration.

Trial Preference

Under Cal. Code of Civil Procedure §36(a), a court will grant trial preference to a party to a civil action over 70 years old if the party has a substantial interest in the action, and the party’s health is such that preference is necessary to prevent prejudicing the party’s interest. Per Section 36 “Elder litigants are clearly entitled to have their case effectively tried and to the opportunity to enjoy during their own lifetime any benefits received.” Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1086.

Smith is 85 years old whose medical history includes hypertension, congestive heart failure, a history of falling and deep vein thrombosis. See Shahab Attarchi, M.D. decl. ¶8. Based on the history and examination, Dr. Attarchi opined Smith is unlikely to live more than six months after April 17, 2023. Id. ¶10. Preference under §36 is GRANTED.

Motion to Compel Arbitration

The arbitration agreement provides “you agree that any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at Terraza Court, whether made against us or any other individual or entity, including, without limitation, personal injury or wrongful death claims, shall be resolved by submission to neutral, binding arbitration in accordance with the Federal Arbitration Act[.]” Defendants’ Exh. 2. The agreement states it is subject to the Federal Arbitration Act. Id. An agent acting under a power of attorney has authority to execute binding arbitration agreements on behalf of their principal. Garrison v. Superior Court (2005) 132 Cal.App.4th 253, 256.

Defendants argue Smith’s claims are subject to the arbitration agreement signed by Roberts, and the Power of Attorney executed March 18, 2019 gives Roberts authority to act on Smith’s behalf. Defendants’ Exh. 3. All Smith’s claims arise out of care at Terraza Court.

Plaintiffs argue the arbitration agreement is void as contrary to public policy. Under Cal. Civ. Code §1953, “[a]ny provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive . . . [h]is procedural rights in litigation in any action involving his rights and obligations as a tenant.” In 2020, the California Court of Appeal for the Second District held this statute applied to contracts for continuing care retirement communities. See, Harris v. University Village Thousand Oaks, CCRC, LLC (2020) 49 Cal.App.5th 847, 853-854. Under the binding authority of Harris, an arbitration clause in a residential care agreement is void as against public policy. DENIED.