Judge: George F. Bird, Jr., Case: 23CMCV00011, Date: 2023-03-30 Tentative Ruling

Case Number: 23CMCV00011    Hearing Date: March 30, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND

             Plaintiff John Blount (“Plaintiff”), by and through his successor in interest, Naris Blount, filed the Complaint in this action on March 3, 2023, alleging causes of action for elder abuse and negligence against Secrom, Inc., doing business under the fictitious name Carson Senior Assisted Living (“Defendant”). (Complaint (“Compl.”), ¶ 2.) Plaintiff alleges that Defendant improperly evaluated the needs of John Blount, improperly staffed their facility, and fell below the standard of care required for a residential care facility for the elderly which caused Plaintiff to develop preventable skin breakdown and pressure injuries. (Compl., ¶¶ 2, 18, 19, 31.)

II.       MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS

A.    Plaintiff’s ex parte application.

            On February 22, 2023, Plaintiff filed an ex parte application for an order compelling arbitration. Plaintiff argued that the parties had agreed to arbitrate the matter, but the parties had been unable to proceed due to the inability to select an arbitrator. Plaintiff sought to have the court select an arbitrator. At the hearing on February 23, 2023, the court did not select an arbitrator and the parties agreed to leave the current Motion to Compel Arbitration filed by Defendant for hearing on March 30, 2023. (Minute Order February 23, 2023.)

B.     Defendant’s Motion to Compel Arbitration and Motion to Stay Proceedings.

            Defendant filed a Motion to Compel Arbitration and a separate Motion to Stay Proceedings. Defendant argues that Plaintiff reviewed and signed the Carson’s Admission Agreements for Residential Care Facilities for the Elderly which included an optional agreement to arbitrate (the “Agreement”). Defendant argues that the Agreement is valid and should be enforced to compel arbitration of the claims brought by Plaintiff.

C.     Plaintiff’s Opposition.

            Plaintiff filed an Opposition on March 7, 2023, in which Plaintiff agrees that there is an enforceable arbitration agreement in this matter but requests an order that Defendant either pay the costs of the arbitration or waive their right to arbitrate the claims. Plaintiff argues that such an order is in line with case law and proper under the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses. Plaintiff also seeks an order appointing one of Plaintiff’s suggested JAMS arbitrators.

D.    Defendant’s Reply.

            Defendant argues that the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses does not apply because Plaintiff had a meaningful opportunity to negotiate the Agreement. Defendant also argues that Plaintiff has failed to provide ample evidence of the inability to pay for the arbitration. Finally, Defendant argues that the Agreement calls for the selection of the arbitrator through JAMS and that such procedure agreed to by the parties should be enforced.

III.       LEGAL STANDARDS

            A written arbitration agreement is “valid, enforceable and irrevocable” unless grounds for revocation of any contract exist. (Code Civ. Proc., § 1281.) The court shall order the parties to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists unless grounds exist for rescission of the agreement. (Code Civ. Proc., § 1281.2, subd. (b).) If the court orders arbitration, the court shall stay the action or proceeding. (Code Civ. Proc., § 1281.4.)  

            California has a long-standing policy of ensuring access to the justice system to address grievances, without regard to financial means. (Weiler v. Marcus & Millichap Real Estate Investment Services, Inc. (2018) 22 Cal.App.5th 970, 978 [232 Cal.Rptr.3d 155, 161, 22 Cal.App.5th 970, 978].) This policy supports the courts’ power to consider the financial situation of a party to determine if bearing arbitration costs would result in that party effectively being deprived of any forum to resolve their claims. (Ibid.) “If sufficient evidence is presented on these issues, and the court concludes the party's financial status is not a result of the party's intentional attempt to avoid arbitration, the court may issue an order specifying: (1) the arbitration shall continue so long as the other party to the arbitration agrees to pay, or the arbitrator orders it to pay, all fees and costs of the arbitration; and (2) if neither of those occur, the arbitration shall be deemed ‘had’ and the case may proceed in the superior court.” (Weiler v. Marcus & Millichap Real Estate Investment Services, Inc., supra, 22 Cal.App.5th at p. 981.)

IV.       DISCUSSION

A.    Valid arbitration agreement.

            “The arbitration proponent must first recite verbatim, or provide a copy of, the alleged agreement. (Cal. Rules of Court, rule 3.1330; Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219, 105 Cal.Rptr.2d 597.) A movant can bear this initial burden ‘by attaching a copy of the arbitration agreement purportedly bearing the opposing party's signature.’ (Espejo, supra, 246 Cal.App.4th at p. 1060, 201 Cal.Rptr.3d 318.) At this step, a movant need not ‘follow the normal procedures of document authentication’ and need only ‘allege the existence of an agreement and support the allegation as provided in rule [3.1330].’ (Condee, supra, at pp. 218–219, 105 Cal.Rptr.2d 597.) If the movant bears its initial burden, the burden shifts to the party opposing arbitration to identify a factual dispute as to the agreement's existence….” (Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 755 [303 Cal.Rptr.3d 835, 842, 87 Cal.App.5th 747, 755], review filed (Feb. 27, 2023).)

            Here, Defendant provides the declaration of Ginger Enriquez, Assistant Administrator of Carson Senior Assisted Living, who declares that Exhibit B is a true and correct copy of the relevant arbitration agreement between the parties. (Decl. of Ginger Enriquez, ¶ 8.) Ginger Enriquez also declares that Plaintiff signed the Agreement. (Ibid.) Upon reviewing Exhibit B, the document is titled “ARBITRATION OF DISPUTE OTHER THAN MEDICAL MALPRACTICE (OPTIONAL FOR RESIDENTS AND FACILITY).” (Decl. of Ginger Enriquez, Exhibit B.) The document bears the signature of the Resident and the Facility Representative. (Ibid.) The terms of the Agreement send any claim arising out of the “provisions of service by the Facility, the admission agreement, the validity, interpretation, construction, performance, and enforcement thereof…” to arbitration. (Ibid.)

            The Agreement satisfies Defendant’s burden and shifts the burden to Plaintiff to demonstrate a factual dispute as to the existence of an agreement to arbitrate. In Plaintiff’s Opposition, Plaintiff does not dispute that the Agreement exists, that Plaintiff signed the presented Agreement, and that the claims made by Plaintiff are subject to arbitration under the terms of the Agreement. In fact, Plaintiff brought an ex parte application for an order compelling arbitration on February 22, 2023.

            Based on the foregoing, this Court finds that a valid, enforceable arbitration agreement exists between the parties.

B.     Plaintiff’s request that the Court appoint an arbitrator.

            Plaintiff requests that this Court appoint an arbitrator from the four arbitrators suggested by Plaintiff. (Opposition, pp. 8-9:24-1.) Plaintiff relies on Code of Civil Procedure section 1281.6 which allows the court to appoint an arbitrator “In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed….” Defendant opposes having the court appoint an arbitrator because the Agreement calls for the appointment of an arbitrator using the JAMS procedure.

            When reviewing the terms of the Agreement, the parties agreed that “The arbitrator shall be selected from a panel of JAMS arbitrators using the process for selection employed by the [arbitration service].” (Decl. of Ginger Enriquez, Exhibit B.) California Code of Civil Procedure section 1281.6 explicitly states, “If the arbitration agreement provides a method of appointing an arbitrator, that method shall be followed.” This Court finds that the parties have not yet engaged in selecting an arbitrator using the agreed upon method, the JAMS selection procedures. Only once the agreed upon method fails, or cannot be followed, will the court step in and select the arbitrator.

            Based on the foregoing, Plaintiff’s request that this Court select an arbitrator is DENIED.

C.     Plaintiff’s request that Defendant either pay the arbitration costs or waive their right to arbitrate.

            Plaintiff requests, in their Opposition, that this Court order Defendant to either agree to pay the arbitration costs for Plaintiff or waive their right to arbitration because Plaintiff cannot afford to bear their portion of the arbitration expenses. Defendant opposes this request on several grounds.

            In Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 89–90 [161 Cal.Rptr.3d 493, 494–495], as modified (Sept. 18, 2013), the Court of Appeal evaluated the trial court’s order denying a motion by plaintiffs seeking that the court order defendant either pay the arbitration costs or waive their right to arbitrate because plaintiffs were allegedly indigent and unable to pay the costs. The Court of Appeal reversed the trial court decision and ordered the trial court to “(1) estimate the reasonable costs of arbitration previously ordered; (2) determine whether any of these plaintiffs are financially able to pay their anticipated share of the costs; and (3) if any of them are unable to do so, issue an order specifying that [Defendant] has the option of either paying that plaintiff's share of the costs of arbitration, or waiving its right to arbitrate that plaintiff's case and allowing the case to proceed in court.” (Ibid.)

            Defendant argues that Plaintiff has failed to present sufficient evidence of the inability to pay their anticipated share of the arbitration costs. The only evidence before this Court demonstrating Plaintiff’s financial situation is a declaration of Naris Blount, son of Plaintiff, who declares that Plaintiff had an income from Social Security of approximately $1,500.00 a month and that Plaintiff’s monthly expenses exceeded this amount. (Decl. of Naris Blount, ¶ 5.) Naris Blount declares that the estate is penniless. (Id. at ¶ 6.)

            In Aronow v. Superior Court (2022) 76 Cal.App.5th 865, 885 [291 Cal.Rptr.3d 784, 799, 76 Cal.App.5th 865, 885], as modified on denial of reh'g (Apr. 22, 2022) the Court of Appeal held that “the trial court has discretion to decide [Plaintiff]'s ability to pay arbitration fees and can do so upon declarations with supporting exhibits or after conducting an evidentiary hearing.” Plaintiff has not provided any supporting exhibits to demonstrate the facts stated in the declaration of Naris Blount.

            In the most recent case law cited by Plaintiff, a declaration that a plaintiff was unable to pay the arbitration fees and was ‘penniless’ was supported by a letter from the Social Security Administration, recent statements demonstrating the balance of the trust accounts, and a declaration that the plaintiff had no other assets or property. (Hang v. RG Legacy I, LLC (Cal. Ct. App., Feb. 8, 2023, No. G061265) 2023 WL 2386485, at *3.) The trial court found, and the Court of Appeal affirmed, this evidence was sufficient for the trial court to determine that the plaintiff could not afford the arbitration costs. (Id. at pp. 5-8.)

            Here, there are no letters from the Social Security Administration to support the assertion that Plaintiff received $1,500.00 per month and also no bills presented by Plaintiff to demonstrate that monthly expenses exceeded this amount. Plaintiff does not present bank statements or other evidence to demonstrate that the estate is ‘penniless.’ There is no balance sheet or Statement of Income and Expenses. Plaintiff has failed to provide sufficient evidence to demonstrate that Plaintiff cannot afford to pay his respective portion of the arbitration costs. Plaintiff’s request that this Court order Defendant to either agree to pay the arbitration costs for Plaintiff or waive their right to arbitration is DENIED.

D.    JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses.

            The parties dispute the applicability of the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses. Plaintiff asserts that such a policy is applicable to this matter and that under the policy costs and fees above $250.00 musts be shifted to Defendant. (Opposition, footnote 2.) Defendant opposes and argues that the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses is not applicable to this Agreement. (Reply, pp. 2-3.) This dispute asks the court to interpret the Agreement and determine which JAMS procedures the parties are subject to, and then further asks the Court to apply the proper procedures and make an order regarding the payment of costs that is in line with the applicable procedures. Because this Court has determined that the matter is properly compelled to arbitration, this Court lacks jurisdiction to make such a determination.

            Once the matter is submitted to arbitration a court may: “appoint arbitrators if the method selected by the parties fails ([Code Civ. Proc.,] § 1281.6); grant a provisional remedy ‘but only upon the ground that the award to which an applicant may be entitled may be rendered ineffectual without provisional relief’ ([Code Civ. Proc.,] § 1281.8, subd. (b)); and confirm, correct, or vacate the arbitration award ([Code Civ. Proc.,] § 1285). Absent an agreement to withdraw the controversy from arbitration, however, no other judicial act is authorized. [Citations.]” (Internal quotations omitted.) (Aronow v. Superior Court, supra, 76 Cal.App.5th at p. 873.) The applicable policies and procedures of JAMS must be determined by the arbitrator.

E.     Motion to Stay Proceedings.

Defendant argues that Code of Civil Procedure section 1281.4 requires the court stay this action until the application for an order to arbitrate is determined or, if the court orders the parties to arbitrate the claims, to stay the proceedings in this action until arbitration is complete. As this Court is determining the Motion to Compel Arbitration and Motion to Stay Proceedings at the same time, Defendant’s request to stay proceedings until an application for an order to arbitrate is determined is moot. Code of Civil Procedure section 1281.4 states that the court “shall” stay proceedings if the court orders arbitration of the controversy and the stay shall continue until the arbitration is had. Accordingly, this action is stayed pursuant to Code of Civil Procedure section 1281.4.

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V.       CONCLUSION

             The Court rules as follows:

            Defendant’s Motion to Compel Arbitration is GRANTED. This action is stayed pursuant to Code of Civil Procedure section 1281.4. An OSC Re: Status of Arbitration is set for ________ at 8:00 am in Department B of the Compton Courthouse.

            Plaintiff’s request for a court order selecting the arbitrator is DENIED.

            Plaintiff’s request that this Court order Defendant to either agree to pay the arbitration costs for Plaintiff or waive their right to arbitration is DENIED.

            Plaintiff to give notice.

Dated: March 30, 2023                                               __________________________________

                                                                                                Judge of the Superior Court