Judge: Linda S. Marks, Case: 2022-01260260, Date: 2023-05-15 Tentative Ruling

1. Motion to Compel Arbitration filed by 1130 W. La Palma Ave, Inc.

The Petition to Compel Arbitration and Motion for Stay of Proceedings filed by Defendant, 1130 W. La Palma Ave., Inc. dba La Palma Nursing Center (“La Palma”) is GRANTED.

La Palma confirms in the moving papers that the Federal Arbitration Act applies. Section 1.8 of the Arbitration Agreement expressly provides that the parties agree that enforcement of the Arbitration Agreement would be governed by the FAA.

La Palma has met their burden to show that a valid written agreement to arbitrate as between La Palma and Plaintiff Coco IV Chew exists. La Palma submits the Declaration of Natalie Galvez, the Admissions Coordinator at La Palma when the Arbitration Agreement between Plaintiff Coco IV Chew aka Rathaphirom IV and La Palma was executed, and the individual who signed the Arbitration Agreement as the facility representative of La Palma. (Declaration of Natalie Galvez (“Galvez Decl.”), ¶ 1.) Galvez states, in part:  “[o]n or about June 4, 2021, I personally met with Plaintiff Chew at La Palma to review the admission paperwork, including the arbitration agreement. I was explaining the arbitration agreement to IV according to my custom and practice, but she interrupted me and stated she understood with arbitration agreements are. Plaintiff Chew further stated that she signs arbitration agreements with her own clients all the time and that she wanted to sign the agreement.” (Id., ¶ 5.) Galvez additionally states, “I explained to Plaintiff Chew that she could elect to physically draw her signature using the tablet stylus or use a pre-selected signature for her name. Plaintiff Chew elected to draw her own signature using the stylus. Plaintiff Chew then proceeded to electronically sign the admission paperwork and arbitration agreement in my presence.” (Id., ¶ 6.) Galvez further provides that a true and correct copy of the Arbitration Agreement signed by her and Plaintiff Chew is attached as Exhibit AA. (Id., ¶¶ 6-7.)

The Arbitration Agreement provides that it was executed between “1130 W. La Palma Ave., Inc dba La Palma Nursing Center (“Facility”) and RATHAPIROM IV either for him/herself or as the Legal Representative and/or Agent for RATHAPHIROM IV (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.” (Ex. AA to Galvez Decl., Arbitration Agreement, at p. 1.)

Section 1.2 states:

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.

(Ex. AA to Galvez Decl., Arbitration Agreement, at pp. 1-2, Section 1.2, emphasis added.)

Section 5.3 additionally states:

The parties further acknowledge and agree that any and all 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:  medical malpractice; 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, which seeks an award of treble damages, punitive damages or attorneys’ fees, will be determined by submission to neutral arbitration, and not by a lawsuit or court process, except as California law provides for judicial review of arbitration proceedings. Such arbitration will be governed by this Arbitration Agreement.

(Ex. AA to Galvez Decl., Arbitration Agreement, at p. 5, Section 5.3.)

In addition, the Complaint asserts claims by Plaintiffs Coco IV Chew and Jeffrey Chew for dependent adult abuse/neglect/physical abuse and loss of consortium arising from allegations that Defendant Ray “creepy guy”, a nurse at La Palma, sexually abused, accosted, touched, and whispered to Coco, a dependent adult as defined by Welfare and Institutions Code section 15610.23, on June 3, 2021, while Coco was a patient at La Palma. (Complaint, ¶¶ 21, 23, 28-30.) The Complaint alleges that La Palma was a skilled nursing facility and “care custodian.” (Id., ¶¶ 11, 22.) Based on the allegations, Plaintiffs’ claims constitute claims that “relate or arise out of the provision of services or health care” and the Arbitration Agreement expressly includes violations of the Elder Abuse and Dependent Adult Civil Protection Act such that the Arbitration Agreement encompasses the claims at issue in this action.

Contrary to Plaintiffs’ assertion that the Arbitration Agreement pertains to medical malpractice, the Arbitration Agreement expressly states in the first paragraph under Article I, entitled “Recitals,” “As set forth herein, both parties agree to arbitrate disputes as described in clauses 5.1 (medical malpractice) and 5.3 (all other disputes or claims).” (Ex. AA to Galvez Decl., Arbitration Agreement at p. 1.) The Arbitration Agreement then goes to discuss these two categories in separate sections, i.e., medical malpractice in Sections 1.1 and 5.1, all other disputes or claim in Sections 1.2 and 5.3. (Id. at pp. 1-2, 4-5.) Additionally, Plaintiff Coco IV Chew was required to sign under Sections 5.1 and 5.2 concerning claims for medical malpractice, as well as sign under Sections 5.3 and 5.4 concerning “all other disputes or claims.” (Id., at pp. 4-5.) As a signature for “Resident” appears under Sections 5.1 and 5.2, and then after Sections 5.3 and 5.4, the implication is that Plaintiff Coco IV Chew read and signed not only page 4, but also page 5 of the Arbitration Agreement.

Plaintiff Coco IV Chew also submits a declaration stating that at the time of her admission and “purported signing of the Arbitration Agreement,” she had suffered a stroke and was paralyzed and could not have read through the “boilerplate Arbitration Agreement”; that she remembers she was asked to sign it saying that she had agreed to arbitrate any claim for medical malpractice; that she did not understand that it would later be claimed that this included claims for sexual assault or sexual abuse by an employee of La Palma; and that she did not contemplate when she authorized the nurse to sign the Arbitration Agreement to arbitrate sexual assault or invasion of her in her vulnerable state. (Declaration of Coco IV Chew, ¶¶ 2-5, ROA 56.) However, the “mere fact that a contract term is not read or understood by the non-drafting party or that the drafting party occupies a superior bargaining position will not authorize a court to refuse to enforce the contract.” (A&M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486.)

Where an agreement is not one of adhesion, the general rule is that “one who signs an agreement cannot avoid its terms on the ground that he failed to read it. (Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586, 1590.) “When a person with the capacity of reading and understanding an instrument signs it, he may not, in the absence of fraud, coercion or excusable neglect, avoid its terms on the ground he failed to read it before signing it. [Citation.]” (Ibid.)

As discussed more fully below, the Arbitration Agreement was not adhesive as Plaintiff Coco IV Chew was not required to sign it to receive care. Additionally, Plaintiff Coco IV Chew’s own statement that she had suffered a stroke and was paralyzed, without any explanation as to why this rendered her without capacity to read or sign the Arbitration Agreement, and without any other showing of fraud, coercion or excusable neglect is insufficient to allow a court to refuse to enforce the Arbitration Agreement.

Plaintiffs cite to Victoria v. Superior Court (1985) 40 Cal.3d 734, where a hospital patient who was allegedly sexually assaulted by a hospital orderly was not required to arbitrate her claims against the health care provider since the ambiguity in the arbitration agreement covering any claim ‘arising from rendition or failure to render to services” was to be interpreted against the drafter and did not apply to a claim for negligent employment of an orderly accused of sexual assault. However, the facts of this case are distinguishable from the facts in Victoria v. Superior Court (1985) 40 Cal.3d 734, which involved an arbitration clause in a contract which the Supreme Court found had adhesive characteristics because it was a lengthy, standard form contract where the arbitration clause was a small, indistinguishable part, and was drafted by the hospital. (Victoria v. Superior Court (1985) 40 Cal.3d 734, 743.)

Here, the Arbitration Agreement is entirely separate from the Admission Agreement, and the top of first page, in bolded text contained in a box, states “Residents shall not be required to sign this arbitration agreement as a condition of admission to this facility or to continue to receive care at the facility.” (Ex. AA to Galvez Decl., Arbitration Agreement at p. 1.) Section 1.7 additionally states, “[a]greement to arbitration is not a precondition for admission to the Facility or to continue to receive care at the Facility. In other words, Resident has the right not to sign the agreement and still be admitted to, or continue receiving care at, the Facility.” (Id. at p. 2.) Thus, the Arbitration Agreement is not an adhesion contract and does not have adhesive characteristics like the arbitration clause at issue in Victoria.

In addition, while the language in the Arbitration Agreement here includes similar language to the one in Victoria as to claims that “arise out of the provision of services or health care,” the Arbitration Agreement here expressly includes claims that allege violations of Elder Abuse and Dependent Adult Civil Protection Act, which the Complaint does here by asserting a cause of action for dependent adult abuse/neglect/physical abuse and loss of consortium based on said alleged abuse and/or neglect. As a result, the language of the Arbitration Agreement dealing with “all other disputes and claims” is not ambiguous.

There are two long-standing principles of interpretation for arbitration agreements. (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 247.) First, “when the allocation of a matter to arbitration or the courts is uncertain, we resolve all doubts in favor of arbitration.” (Ibid.) “Second, ambiguities in written agreements are to be construed against their drafters. [Citations.]” (Ibid.) To the extent that allocation of this matter to arbitration is uncertain, all doubts are resolved in favor of arbitration.

The Court GRANTS the order compelling arbitration and staying the instant action only as to La Palma pending completion of arbitration.  (9 U.S.C.A. § 3.) 

The Court sets a Post Arbitration Review hearing for December 5, 2023, at 10:00 a.m.

La Palma to give notice and prepare Order.

2. Motion for Order to Stay Proceedings    

Matter is stayed pending arbitration only as to La Palma.

3. Case Management Conference