Judge Jill Feeney, Case 22STCV01148 2022-08-01 Tentative Ruling

Let’s assume arguendo that Decedent Arthur Safarian, by and through his Representative Plaintiff Marina Safrian, signed the arbitration agreement at the nursing home and agreed to be bound by it.

The issue then becomes whether that agreement waived the rights of Decedent’s heirs, including Plaintiff here, to pursue a wrongful death cause of action, the only cause of action brought by Plaintiff.

This Arbitration Agreement is executed by and between College Vista ("Facility”) and Safarian, Marina either for him/herself or as the Legal Representative and/or Agent for Safarian, Arthur ( collectively, "Resident") in conjunction with the Resident's admission to the Facility and relating to the provision of nursing facility services by Facility to Resident. The parties to this Arbitration Agreement acknowledge and agree that the Admission Agreement and this Arbitration Agreement evidence a transaction in interstate commerce governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16.

The items that are underlined are handwritten in the actual agreement. Based on this initial language, it appears that this form creates a contract between an individual entering the facility, whether it be directly or through the authority of that individual’s agent or legal representative, and the facility.

1.1 It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompetently rendered or not rendered, will be determined by submission to arbitration and not by a lawsuit or resort to court process. Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. The type of award requested (e.g., treble damages, punitive damages or attorneys' fees) shall not affect whether a dispute is subject to arbitration by this Agreement.

1.2 It is also understood that any and all other disputes, controversies, demands or claims that relate or arise out of the provision of services or health care or any failure to provide services or health care by Facility, the admission agreement and/or this Agreement, the validity, interpretation, construction, performance and enforcement thereof, including, without limitation, claims that allege: breach of contract; unpaid nursing home charges; fraud; deceptive trade practices; misrepresentation; negligence; gross negligence; Health and Safety Code section 1430 claims; violations of the Elder Abuse and Dependent Adult Civil Protection Act, the Unfair Competition Act, the Consumer Legal Remedies Act;

and/or any right granted to Resident by law or by the admission agreement will be determined by submission to arbitration and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. The type of award requested (e.g., treble damages, punitive damages or attorneys' fees) shall not affect whether a dispute is subject to arbitration by this Agreement. Notwithstanding anything in this paragraph, any appeals made by Resident concerning his/her transfer or discharge, as provided under state and federal law and any dispute not justiciable in a court of law will not be governed by this Agreement.

The Court does not see anything in the language above that would evidence an agreement by Decedent to limit the rights of Decedent’s heir to bring a wrongful death cause of action, which by defintion is not a right or cause of action that may be enforced by Decedent. The agreement repeatedly refers to both parties, meaning the Resident or the Resident’s Agent/Legal Representative who stands in the stead of the Resident and the Facility. Moreover, nothing is expressly stated about wrongful death or any other action that may be brought on behalf of a third party (as opposed to an action that the Resident’s Agent/Legal Representative may bring on behalf of the Resident).

1.3 Resident (or Resident's Legal Representative and/or Agent on behalf of Resident) and Facility agree that they will arbitrate each dispute, controversy, demand or claim described in sections 1.1 or 1.2 ( each, a "Dispute") on an

2.2 Consistent with the Federal Arbitration Act, this arbitration agreement binds the parties hereto, including the heirs, representatives, executors, administrators, successors, and assigns of such parties whose claims may arise out or relate to any services (medical or otherwise) or goods provided by the Facility or the admissions agreement.

These provisions are at best confusing. The arbitration agreement consistently states that it is between the Parties who are defined as Decedent and the facility. Moreover, the particular language of 2.2 is confusing as as well. It does no explicitly refer to individual claims, such as wrongful death, and could be fairly read, given the context of the entire agreement, as referring to successor claims.

There is no dispute that pursuant to California Code of Civil Procedure Section 1295 and Ruiz v. Podolsky (2010) 50 Cal.4th 838. patients may limit the actions of their heirs with respect to wrongful death claims. The issue is whether that has occurred here.

As explained by the California Supreme Court in Ruiz, a wrongful death cause of action under Code of Civil Procedure Section 377.60 is a separate cause of action that may be brought by a decedent’s heirs and is separate and distinct from any rights that the deceased may have retained had decedent survived. (50 Cal.4th at 844.)

In Ruiz the arbitration agreement stated that it “binds all parties whose claims may arise out of or relate to treatment or service provided by the physician including any spouse or heirs of the patient and any children.” Additionally, that agreement “specifically provided for arbitration of wrongful death and loss of consortium claims.” (50 Cal.4th at 854.). In Ruiz, the Supreme Court found that “wrongful death claimants are bound by arbitration agreements entered into pursuant to Section 1295, at least when, as here, the language of the agreement manifests an intent to bind these claimants.” (50 Cal.4th at 841.)

Here, given the context of the agreement as a whole and the particular language used, it cannot be said that the agreement manifests an intent to bind Decedent’s heirs from bringing a claim for wrongful death. Thus, the Court does not find that Decedent by and through his agent Plaintiff bound his heirs from bringing a wrongful death claim.

This would be the end of the analysis, but for additional language added above the signature blocks where Plaintiff signed as Representative/Agent for Decedent. If Decedent had signed the agreement himself, these signature blocks would not have come into play.

In the alternative, Defendant contends that Plaintiff is bound in her individual capacity because (1) she is clearly defined as a “party” under the terms of the agreement and (2) due to language contained above the signature blocks of the arbitration agreement.

It is clear from the language of the agreement set forth above that Plaintiff in her individual capacity is not defined as a Party under the terms of the agreement. Defendant contends that the opening language of the agreement, which is repeated below, supports the conclusion that Plaintiff in her individual capacity was defined as a party to the contract.

The first blank indicates that the name inserted is either the Resident him or herself or another individual who is the Legal Representative or Agent for the Resident. The term collectively “Resident” does not turn the Legal Representative and/or Agent as a party to the contract as individual. Rather, it means that the Legal Representative or Agent stands in the stead of the Resident. This interpretation is supported by additional language of the agreement which references two parties several times.

The language above the signature blocks referenced by Defendant for the first time in its reply is set forth in bold and italics below. The bold and italics have been added by the Court and are not contained in the original of the agreement.

By virtue of Resident's consent, instruction and/or durable power of attorney, I hereby certify that I am authorized to act as Resident's agent in executing and delivering of this arbitration agreement. I acknowledge that the Facility is relying on this representation. I also acknowledge that pursuant to the terms of this agreement, any claims that I may assert in my personal capacity that arise out of or relate to any the provision of or failure to provide services (medical or otherwise) or goods by the Facility to the Resident or the admission agreement are governed by this arbitration agreement.

This language is contained twice in the agreement, above the two signature blocks titled “Legal Representative/Agent”. This language is the only mention of individual claims in the entire agreement.

Pursuant to Lopez v. Bartlett Care Center, LLC (2019) 39 Cal.App.5th 311, the agreement is procedurally unconscionable as to Plaintiff in her individual capacity. In Lopez, an article of the arbitration agreement stated that it bound “in their individual capacity” any person who executed the agreement as a representative/agent.

“This Agreement shall be binding for any dispute, except for disputes pertaining to collections or evictions brought by the parties hereto. This Agreement is binding on all parties, including the Resident's representatives, executors, family members and heirs. The Resident's representatives, agents, executors, family members, successors in interest and heirs who execute this Agreement below on the ‘Resident Representative/Agent Signature’ line are doing so not only in their representative capacity for the Resident, but also in their individual capacity and thus agree that any claims brought individually by the Resident's representatives, agents, executors, family members, successors in interest and heirs are subject to binding arbitration. This Agreement may be rescinded by written notice within thirty (30) days of signature.” (Italics added.)

There, the Court of Appeal focused on the fact that the agreement on its face was between the resident and the facility, that the language regarding individual capacity did not contain a heading or other visible warning that it included a waiver of individual, and that the signature block did not warn of the purported dual capacity.

The Court does not find that the facts of Lopez are substantially different than the facts here. Here, the language in question was not highlighted in any way, either in bold, in another color, or with a specific heading. Moreover, as in Lopez, the rest of the language of the agreement clearly indicated that it was between the resident and the facility. The Court further notes that the signature block title (“Legal Representative/Agent”) does not indicate that the signature is in both an individual and representative capacity.

The Court further notes that the declaration submitted by Plaintiff Marina Safarian, Plaintiff states that the agreement was not explained to her, but rather was part of a large stack of documents that she signed. She also specifically states that no one explained to her that she was signing the agreement on her own behalf. (Safarian Decl., Paragraphs 4, 6.) The declaration provided by Defendant’s Admissions Coordinator Annie Tu does not indicate that she specifically explained the individual capacity portion of the agreement. (Tu Decl. Paragraph 1.)

Turning to substantive unconscionability, that concept focuses on overly harsh or one-sided results. (Lopez, 39 Cal.App.5th at 321-22.) Here, there does seem to be a one-sided result with respect to any individual claims brought in an individual capacity. Essentially, the arbitration agreement as written makes this a stand-alone provision whereby the Legal Representative/Agent agrees to arbitrate claims in her personal capacity. However, there is no corresponding provision mandating that the Defendant facility is bound to arbitrate any claims that it might have against the Legal Representative/Agent individually.