Judge Jill Feeney, Case Number: 22STCV03075, Date: 2023-07-21 Tentative Ruling

The motion is granted with respect to the following causes of action: (1) breach of implied warranty of habitability (survival action); (2) elder abuse and neglect (survival action); and (3) negligence/negligence per se (survival action).

The motion is denied with respect to the following causes of action: (1) violation of Residents’ Bills of Rights (survival action expressly exempted from arbitration pursuant to the arbitration agreement); (2) wrongful death (nonsurvival action); and (3) concealment (nonsurvival action).

Plaintiffs Sarah Johnson (“Johnson”), Kathryn Casalettea (“Casalettea”), and Benjamin Lester (“Lester” and collectively, “Plaintiffs”) are the natural born children and heirs of Suellen Kaye Boss (“Decedent”). (Compl. ¶¶ 1-4.) Decedent was a resident of defendant AG West Covina, LLC’s (“Defendant”) skilled nursing facility (the “Facility”) from 2020 to her death in 2021. (Compl. ¶¶ 7-8.)

While a resident in the Facility, Decedent received substandard care with respect to her nourishment and general treatment. (Compl. ¶ 14.) In January 2021, while under Defendant’s care, Decedent tested positive for Covid-19. (Compl. ¶ 16.) Decedent passed away as a result of her deteriorated medical condition shortly thereafter. (Compl. ¶ 18.) Defendant’s failure to care for Decedent’s safety and wellbeing was a substantial factor in causing Decedent’s demise. (Compl. ¶ 28.)

California law reflects a strong public policy in favor of arbitration as a relatively quick and inexpensive method for resolving disputes. To further that policy, California Code of Civil Procedure section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues.” (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967 [citations omitted]; Code Civ. Proc. § 1281.2.)

In deciding a motion to compel arbitration, trial courts must decide first whether an enforceable arbitration agreement exists between the parties, and then determine the second gateway issue whether the claims are covered within the scope of the agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) The party seeking arbitration has the “burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842.) The trial court “sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.” (Id.) General principles of contract law govern whether parties have entered a binding agreement to arbitrate. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236; see also Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.)

Plaintiffs contend that the Arbitration Agreement does not apply to the instant claims because Plaintiffs were not parties to the agreement. Plaintiffs note that the gravamen of their Complaint is wrongful death, and as in California wrongful death is considered an independent cause of action in favor of the decedent’s heirs based upon the heirs’ own independent injury suffered by loss of a relative, Decedent’s assent to the Arbitration Agreement does not bind Plaintiffs.

Any contract for medical services which contains a provision for arbitration of any dispute as to professional negligence of a health care provider shall have such provision as the first article for the contract and shall be expressed in the following language: ‘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, will be determined by submission to arbitration as provided by California law, and not by a lawsuit of 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 purpose of section 1295 is to encourage and facilitate arbitration or medical malpractice disputes. [Citations.] Accordingly, the provisions of section 1295 are to be construed liberally. In other words, the encouragement of arbitration as a speedy and relatively inexpensive means of dispute resolution [Citation] furthers MICRA’s goal of reducing costs in the resolution of malpractice claims and therefore malpractice insurance premiums.” (Ruiz v. Podolsky (2010) 50 Cal.4th 838, 844.)

Where…a patient expressly contracts to submit to arbitration ‘any dispute as to medical malpractice,’ and that agreement fully complies with Code of Civil Procedure section 1295, it must be deemed to apply to all medical malpractice claims arising out of the services contracted for, regardless of whether they are asserted by the patient or a third party. [Citations]. (Ibid.)

Here, the Arbitration Agreement is in compliance with section 1295. However, Plaintiffs contend that, because their wrongful death cause of action is predicated on elder abuse rather than medical malpractice, section 1295 does not apply.

Plaintiffs contend that, as they do not assert a medical malpractice cause of action, and as their wrongful death cause of action is predicated on elder abuse rather than professional negligence, section 1295 does not apply. Section 1295 defines professional negligence as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death.” (§ 1295(g)(2).)

Both Daniels and Avila agree that Ruiz created “an exception to the general rule that arbitration agreements must be the subject of consent rather than compulsion.” (Avila, supra, 20 Cal.App.5th at 841.) Thus, the central question here is“whether Ruiz is controlling here,” which requires “determin[ing] whether this case is about ‘professional negligence,’ as defined by MICRA ....” (Id. at 842.)

In making that determination “[w]hat matters is ... the basis of the claims as pleaded in the complaint. If the primary basis for the wrongful death claim sounds in professional negligence ... then section 1295 applies. If ... the primary basis is under the Elder Abuse and Dependent Adult Civil Protection Act [citations] ..., then

The precise nature of the care facility or their licensing does not control, only the allegations in the complaint. (Ibid.) “Plaintiffs ... are essentially free to plead their case as they choose.... The fact that they could have also pleaded a claim for medical malpractice, had they wished to do so, is irrelevant.” (Id. at 843.)

As in Avila, the complaint in the instant case contains allegations that could be categorized as both professional negligence as well as elder abuse. Under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) “ ‘ “the statutory definition of ‘neglect’ speaks not of the undertaking of medical

Here, Plaintiffs allege a series of omissions on the part of Defendant including the failure to provide medical care, the failure to provide staff with adequate training and other alleged failures, including the failure to take proper precautions with respect to COVID-19, which Plaintiffs allege ultimately resulted in the death of Decedent. (Complaint Paragraphs 38 and 62.) Thus, the primary basis for the wrongful death claim is neglect, not professional negligence by a health care provider.

Plaintiffs were free to plead their case as one for professional negligence or elder abuse. They chose to plead a cause of action for elder abuse and have done so successfully. Thus, the Arbitration Agreement is not controlled by section 1295. While Decedent did bind herself to arbitration of her elder abuse claims and other claims, the Arbitration Agreement does not bind Plaintiffs as to her wrongful death.

This case involves additional causes of action other than for wrongful death. It appears that wrongful death is the only cause of action brough directly by Plaintiffs. The rest of the causes of action are brought on behalf of Decedent as a survival action.

“The court's discretion under section 1281.2, subdivision (c) does not come into play until it is ascertained that the subdivision applies ....” (Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1288, fn. 6.) There are three conditions necessary for section 1281.2, subdivision (c) to apply: (1) there must be ongoing litigation between a signatory and a third party; (2) this litigation arises out of the same facts, incidents, or transactions as the dispute between signatories; and (3) conflicting rulings may result if these disputes are heard separately in arbitration and in court. (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967-968.)

“A trial court has no discretion to deny or stay arbitration unless all three of section 1281.2[, subdivision] (c)'s conditions are satisfied.” (Acquire II, Ltd. v. Colton Real Estate Group, supra, 213 Cal.App.4th at 968.) “Whether there are conflicting issues arising out of related transactions is a factual determination subject to review under the substantial evidence standard.” (Id. at 972.) “[T]he allegations of the parties' pleadings may constitute substantial evidence sufficient to support a trial court's finding that section 1281.2[, subdivision] (c) applies.” (Ibid.)

Once these conditions are met, the court may exercise its discretion to choose among four options: (1) “refuse to enforce the arbitration agreement,” (2) “order intervention or joinder as to all or only certain issues,” (3) order arbitration as to the parties in agreement and stay the pending court action, or (4) stay the arbitration until completion of the pending court action. (§ 1281.2.)

All three conditions necessary for the court to exercise discretion are met here. As discussed above, Plaintiffs are third parties because they are not bound by the Arbitration Agreement. (Daniels, supra, 212 Cal.App.4th at 680.) There is also no dispute that the wrongful death cause of action arises from the same set of operative facts as Decedent’s elder abuse cause of action, as well as the other causes of action. Finally, given that Plaintiffs’ wrongful death action is premised on the elder abuse action, there is substantial evidence to support the conclusion that litigating them separately will result in inconsistent rulings on common questions of law or fact.

Plaintiffs here urge the Court to deny arbitration for all the causes of action in the case. On reply, among other arguments, Defendant contends that the Court may not apply Section 1281.2(c) here since the Agreement expressly provides that it is governed by the Federal Arbitration Act.

(1) [W]hether all causes of action (other than the one for wrongful death) are survival causes of action; (2) the applicability of the Arbitration Agreement to all survival causes of action; (3) whether any survival causes of action are covered by Section 1295; (4) the impact of the FAA choice of law provision on the applicability of Section 1281.2(c) to this case; and (5) the impact of the statement in Section 1281.2(c) that “This subdivision shall not be applicable to an agreement to arbitrate disputes as the professional negligence of a health care provider made pursuant to Section 1295.” to this case.

(1) The first four causes of action are brought as survival claims, while the fifth and sixth causes of action are brought by Plaintiffs in their individual capacities; (2) the Arbitration Agreement applies to the all survival causes of action; (3) all survival actions are covered by Section 1295; (4) that the choice of law provision mandates that the Arbitration Agreement be governed by the FAA; and (5) that the Arbitration Agreement is governed by the FAA and therefore precludes application of Section 1281.2(c).

The Court agrees with Defendant’s take on items number one and two above, except that the Arbitration Agreement specifically states that the Decedent did not waive her right to bring a lawsuit alleging violations of the patient’s Bill of Rights.(Page 18 of 24, Defendant’s Motion)

With respect to item three, the Court finds that the survival causes of action alleged here (breach of implied warranty of habitability, elder abuse and neglect, negligence/negligence per se; and violation of residents’ Bill of Rights) do not fall under Section 1295 as they are not claims for professional negligence or medical malpractice. The Complaint does not plead medical or professional malpractice and Plaintiffs have indicated that they are not pursuing such claims either on their own behalf or on behalf of Decedent. Therefore, the language of Section 1281.2(c) does not bar the application of its provisions here.

Defendant notes that in Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, the Court of Appeal stated that “the procedural aspects of the FAA do not apply in state court absent an express provision in the arbitration agreement.” (Avila at 840.) Defendant notes that here, the Arbitration Agreement states that it “shall be construed and enforced in accordance with and governed by the Federal Arbitration Act and the procedures set forth in the Federal Arbitration Act shall govern any petition to compel arbitration.” (Arbitration Agreement ¶ 1.8.) Accordingly, Defendant argues, the procedural aspects of the FAA apply to the instant arbitration agreement and render the Court without jurisdiction to deny the petition to compel arbitration with respect to the survival claims pursuant to Code of Civil Procedure section 1281.2(c).