¿¿Background 

 

This is a cause of action for negligence arising from a slip and fall incident which took place in August 2021. Plaintiff Ada Jackson filed her Complaint against Defendants The Grove at Cerritos and Welltower Victory II Landlord LP on June 15, 2022. 

 

Defendants Welltower Victory II Landlord LP and Cerritos Subtenant LP/SRG Pacific Mgmt LLC dba The Grove at Cerritos filed their motion to compel arbitration on February 24, 2023. 

 

On April 13, 2023, the Court continued the hearing on this matter to allow Defendant to conduct limited discovery on the issue of Plaintiff’s signature. 

 

Summary 

 

Moving Arguments 

 

Defendants move to compel arbitration on the grounds that Plaintiff signed an arbitration agreement in her Residence and Care Agreement. 

 

Opposing Arguments 

 

 Plaintiff argues that (1) the FAA does not apply, (2) Plaintiff did not initial the portion of the agreement covering the arbitration agreement, and (3) the arbitration agreement is unconscionable. 

 

Reply Arguments 

 

Defendants argue that they are not required to authenticate the arbitration agreement. Defendants also argue that Plaintiff contractually agreed to the FAA and that there is no evidence the agreement is procedurally or substantively unconscionable. Finally, Defendants argue that limited discovery should be permitted regarding Plaintiff’s claim that she did not initial the arbitration agreement. 

 

Supplemental Briefing 

 

Defendant took Plaintiff’s deposition and Plaintiff now believes she did initial the arbitration agreement. Additionally, Plaintiff testified that she did not sign the declaration submitted with Plaintiff’s opposition. Finally, Defendant alleges that Plaintiff’s counsel refused to participate in the limited discovery granted by the Court. 

 

Legal Standard 

 

Code Civ. Pro. section 1281.2 permits a party to file a petition to request that the Court order the parties to arbitrate a controversy.¿Under section 1281.2, a party is permitted to file a motion to request an order directing the parties to arbitrate a controversy.¿ Section 1281.2 also states that the Court may grant the motion if the Court determines that an agreement to arbitrate the controversy exists.¿ 

 

When seeking to compel arbitration, the initial burden lies with the moving party to demonstrate the existence of a valid arbitration agreement by a preponderance of evidence.¿ (Ruiz v. Moss Bros. Auto Group (2014) 232 Cal.App.4th 836, 841-42; Gamboa v. Northeast Community Clinic (2021), 72 Cal.App.5th 158, 164-65.)¿ It is sufficient for the moving party to produce a copy of the arbitration agreement or set forth the agreement’s provisions.¿ (Gamboa, 72 Cal.App.5th at 165.)¿ The burden then shifts to the opposing party to prove by a preponderance of evidence any defense to enforcement of the contract or the arbitration clause.¿ (Ruiz, 232 Cal.App.4th at 842; Gamboa, 72 Cal.App.5th at 165.)¿ The trial court then weighs all the evidence submitted and uses its discretion to make a final determination.¿ (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)¿ 

 

In determining the enforceability of an arbitration agreement, the court considers “two ‘gateway issues’ of arbitrability: (1) whether there was an agreement to arbitrate between the parties, and (2) whether the agreement covered the dispute at issue.”¿¿(Omar v. Ralphs Grocery Co. (2004)¿118 Cal.App.4th 955, 961.)¿ 

 

Since binding arbitration is a matter of contract, the parties may freely delineate the area of its application, and a proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract.¿(Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479; Morris v. Zuckerman (1967) 257 Cal.App.2d 91, 96.)¿Arbitration, as a general rule, should be upheld by the court, unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute.¿(Bos Material Handling, Inc. v. Crown Controls Corp. (1982) 137 Cal.App.3d 99, 105; O’Malley v. Wilshire Oil Co. (1963) 59 Cal.2d 482, 490-491.)¿The court should, nonetheless, give effect to the parties’ intentions in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made.¿(Victoria v. Superior Court (1985) 40 Cal.3d 734, 744.)¿ 

 

“‘Reasonable diligence requires the reading of a contract before signing it. A party cannot use his own lack of diligence to avoid an arbitration agreement.’”¿ (24 Hour Fitness, Inc. v. Superior Court¿(1998) 66 Cal.App.4th 1199, 1215 [internal citation omitted].)¿“It is well established, in the absence of fraud, overreaching or excusable neglect, that one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it.”¿(Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal. App. 4th 158, 163.)¿Generally, “one who accepts or signs an instrument, which on its face is a contract, is deemed to assent to all its terms, and cannot escape liability on the ground that he has not read it. If he cannot read, he should have it read or explained to him.”¿(Id.)¿¿ 

 

Evidentiary Objections 

 

Plaintiff objects to Defendant’s evidence submitted in support of its motion to compel arbitration: 

 

The following objections are OVERRULED: 

 

1, 2, 3, 4, 5, 6. 

 

Discussion 

 

Defendants move to compel arbitration on the grounds that Plaintiff entered into an arbitration agreement when she signed her Residence and Care Agreement. Defendants attached a copy of the agreement as Exhibit A to their motion. The parties do not dispute that the arbitration agreement, if it exists, would include Plaintiff’s fall within its scope. Thus, the only remaining issue is whether an arbitration agreement exists. 

Defendants allege that Plaintiff is subject to arbitration because she signed a Residence and Care Agreement, which contains an arbitration agreement, when she became a resident of Defendants’ assisted living facility on August 20, 2020. The agreement provides in relevant part: 

 

“m. Arbitration 

 

BOTH PARTIES UNDERSTAND THAT AGREEING TO ARBITRATION IS NOT A CONDITION OF YOUR ADMISSION TO THE COMMUNITY. By initialing the line at the end of this Section, however, you agree that any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at the Community, whether made against us or any other individual or entity, shall be resolved by submission to neutral, binding arbitration in accordance with the Federal Arbitration Act; provided, however, that any or dispute involving unlawful detainer proceedings (eviction) or any claims that are brought in small claims court shall not be subject to arbitration unless all Parties involved agree to arbitrate such proceedings. If someone other than the resident signs this arbitration clause, he/she understands and agrees that he/she is agreeing to arbitrate on behalf of the resident and on behalf of him/herself as an individual. You give up your constitutional right to have any such dispute decided in a court of law before a jury, and instead accept the use of arbitration. You further waive your right to participate in a representative capacity, or to participate as a member of a class, in any litigation or arbitration proceeding with respect to any such dispute.  

 

Arbitrations shall be administered by the Judicial Arbitration and Mediation Services (“JAMS”) in accordance with the Federal Arbitration Act then in effect. Arbitrations shall be conducted by a single arbitrator agreed to by the Parties, or if the Parties cannot agree upon an arbitrator, before an arbitrator assigned by JAMS. Arbitrations will be held at an agreed upon location, or in the absence of such agreement, at the Community. The dispute will be governed by the laws of the State. The arbitrator’s fee shall be shared equally by the Parties. Any award by the arbitrator may be entered as a judgment in any court having jurisdiction. In reaching a decision, the arbitrator shall prepare findings of fact and conclusions of law. Each Party shall bear its own costs and fees in connection with the arbitration unless otherwise provided by law.  

 

If you initial in the space at the end of this Section, this arbitration clause shall remain in effect for the resolution of all claims and disputes that are unresolved after the termination of this Agreement. In the event that any part of this arbitration agreement is determined to be unenforceable, the remaining portions of the Agreement shall remain valid and shall be enforced by the Parties. If JAMS is unable to administer the arbitration in accordance with the terms of this Agreement, the Parties shall select another arbitration administer that is able to do so, and if no such arbitration administrator is available, the Parties shall select an arbitrator in accordance with the Federal Arbitration Act. If the Federal Arbitration Act does not permit arbitration in accordance with this agreement, then the matter shall be arbitrated in accordance with State law.  

 

… 

 

n. Collective Action 

 

BOTH PARTIES UNDERSTAND THAT AGREEING TO THIS PROVISION IS NOT A CONDITION OF YOUR ADMISSION TO THE COMMUNITY. By initialing the line at the end of this Paragraph, however, the parties waive their right to commence and/or be a party to any class or collective action in any court against the other party relating in any matter whatsoever to the Resident’s residency at the Community. Further, the parties waive their right to commence or be a party to any group, class or collection action claim in arbitration or any other forum.” 

 

Applicability of the FAA 

 

Defendants argue that the FAA applies to this proceeding and that the Court must therefore apply general rules of contract law to the arbitration agreement. Plaintiff argues that this dispute is not governed by the FAA because the case does not involve interstate commerce.  

 

The Federal Arbitration Act (“FAA”) applies when an arbitration clause is present in an agreement involving transnational commerce.¿(Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal. App. 4th 1705, 1712; see also 9 U.S.C., section 1 (scope of FAA includes arbitration under any contract involving “commerce among the several states or with foreign nations”); Mitsubishi Motors Corp. v. Soler Chrysler Plymouth (1985) 473 U.S. 614, 631 (FAA’s presumption in favor of arbitration “applies with special force in the field of international commerce”).)¿¿When an arbitration agreement expressly provides that its enforcement shall be governed by the Federal Arbitration Act (FAA), the FAA governs a party’s motion to compel arbitration. (Victrola 89, LLC v. Jaman Properties 8, LLC (2020) 46 Cal.App.5th 337, 347).¿¿¿ 

 

Under the FAA, arbitration agreements are “valid, irrevocable and enforceable.” 9 U.S.C., section 2.¿The overarching purpose of the FAA is to “ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings.”¿AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 344.¿A court must interpret arbitration provisions liberally, resolving doubts in favor of arbitration.¿(Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24-25.)¿¿¿¿ 

¿ 

However, while the arbitration agreement is governed by the FAA, the agreement may be enforced via the summary procedures provided by the California Arbitration Act (“CAA”). (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal. 4th 394, 409-410.)¿It is a “general and unassailable proposition . . . that States may establish the rules of procedure governing litigation in their own courts,” even though the controversy is governed by substantive federal law.¿(Felder v. Casey¿(1988) 487 U.S. 131, 138.)¿ By the same token, however, a state procedural rule must give way “if it impedes the uniform application of the federal statute essential to effectuate its purpose, even though the procedure would apply to similar actions arising under state law.” (McCarroll v. L.A. County etc. Carpenters¿(1957) 49 Cal. 2d 45, 61, 62.)¿¿ 

¿ 

“We think it plain¿the California procedures for a summary determination of the petition to compel arbitration serve to further, rather than defeat, the enforceability policy of the [FAA.]” (Rosenthal, 14 Cal. 4th at 409.)¿Code Civ. Proc. section 1281.2 and¿1290.2¿“display no hostility to arbitration as an alternative to litigation; to the contrary, the summary procedure provided, in which the existence and validity of the arbitration agreement is decided by the court in the manner of a motion, is designed to further the use of private arbitration as a means of resolving disputes more quickly and less expensively than through litigation.”¿(Id.)¿ 

 

As with federal law, under California¿law,¿public policy favors arbitration as an efficient and less expensive means of resolving private disputes.¿(Moncharsh¿v.¿Heily¿&¿Blase¿(1992) 3 Cal.4th 1, 8-9;¿AT&T Mobility LLC v. Concepcion,¿563 U.S. at 339.)¿ “[A]rbitration agreements should be liberally interpreted, and arbitration should be ordered unless the agreement clearly does not apply to the dispute in question.”¿(Vianna v. Doctors' Management Co. (1994) 27 Cal. App. 4th 1186, 1189) .“Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration.”¿(Id.)¿ 

 

Here, the arbitration agreement expressly provides that arbitration will be administered under the FAA. Nevertheless, the agreement may still be enforced via the summary procedures provided by the California Arbitration Act. 

 

Plaintiff’s Initials 

 

Plaintiff argues that she did not agree to arbitrate and that the initials under the arbitration agreement were forged.  

 

Although a party moving for arbitration is not required to authenticate an opposing party’s signature on the agreement as a preliminary matter, the moving party bears the burden of proving by a preponderance of the evidence that the agreement, including the signature, is authentic if challenged. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846.) If the agreement is challenged, the moving party must use admissible evidence to show a valid agreement. (Gamboa v. Northeast Community Clinic (2021) 72 CA5th 158, 165-166.)  

 

The genuineness of handwriting, or the lack thereof, may be proved by a comparison made by the trier of fact with the handwriting (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court. (Evid. Code, section 1417.)  

 

A witness who is not otherwise qualified to testify as an expert may state his opinion whether a writing is in the handwriting of a supposed writer if the court finds that he has personal knowledge of the handwriting of the supposed writer acquired from either:  

 

(Evid. Code, section 1416.) 

 

The genuineness of writing, or the lack thereof, may be proved by a comparison made by an expert witness with writing (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court. (Evid. Code, section 1418.) 

 

Here, Plaintiff testifies that the initials under the arbitration agreement are not in her handwriting and she that did not place her initials there. (Jackson Decl., ¶¶7-8.)  

 

In reply, Defendants provided a Property Issuance Form containing similar initials to the ones that follow the arbitration agreement. (Reply, Exh. A.) However, there was no evidence that this writing was admitted or treated as genuine by Plaintiff, nor was there evidence that it is genuine. Defendants’ counsel testified that she did not have time obtain a declaration from employees at their facility who can testify that Plaintiff signed the arbitration provision and the Property Issuance Form. (Ajello Decl., ¶5.) Defendants requested leave to perform additional discovery on this issue. 

 

Plaintiff also argues that the arbitration agreement Defendants produced is not authenticated because Defendants’ counsel does not have personal knowledge of the signatures and initials on the documents. However, Defendants’ counsel did authenticate the agreement by testifying under penalty of perjury that the attached copy is a true and correct copy of the agreement in compliance with Evid. Code, section 1400.  

 

At the last hearing on this matter, the Court allowed limited discovery on the issue of Plaintiff’s signature. Defendants then took Plaintiff’s deposition. 

 

During her deposition, Plaintiff testified that she was not told by her counsel that she needed to bring records with her to the deposition as required by her deposition notice. (Jackson Depo., 13:20-14:12.) Plaintiff testified to the authenticity of her handwriting on the document titled “The Grove at Cerritos Application for Residency.” (Id., 19:14-10.) Plaintiff remembers signing the “Residence and Care Agreement” and reviewing it with her aunt. (Id., 21:10-20.) Plaintiff recognizes the initials next to the arbitration agreement on page 30 and 31 of the agreement to be her own. (Id., 22:8-23:10.) Plaintiff also recognized the initials in the “Property Issuance Form” to be hers. (Id., 28:16-31:3.) Plaintiff specifically remembers signing the form to obtain her mailbox key. (Id.) Plaintiff testified that she did not sign the declaration submitted with her opposition to the instant motion. (Id., 56:1-57:11.) Plaintiff never advised anyone in her family that the initials on the residency documents she examined during the deposition were forged. (Id., 57:19-58:24.) She does not know what arbitration is, never reviewed her declaration, and does not recognize the signature on the declaration to be hers. (Id., 59:23-60:18.) Despite not having her reading glasses at the deposition, Plaintiff testified that she could see well throughout the deposition. (Id., 64:15-16.) Although Plaintiff does not remember specifically signing the Residence and Care Agreement, Plaintiff signed those papers almost three years ago. (Id., 66:3-10.) Plaintiff testifies that the documents from the Grove that she examined during the deposition contained initials and signatures that belong to her. (66:12-67:5.) 

 

The evidence shows that Plaintiff believes the initials next to the arbitration agreement are hers. Additionally, she verified that the initials in the Property Issuance Form were hers. An examination of Property Issuance form and the arbitration agreement contained in the Residence Care Agreement shows that the initials are substantially similar. The Court is satisfied that the initials belong to Plaintiff. Moreover, it appears that Plaintiff never had concerns over whether the initials were forged. Rather, she did not review or sign the declaration Plaintiff’s counsel submitted with the opposition. Plaintiff was not even aware of what arbitration is. Because Plaintiff repeatedly verified that the initials next to the arbitration agreement belong to her, the Court is satisfied that the initials belong to Plaintiff. 

 

The Court notes that Plaintiff’s counsel refused to participate in the limited discovery the Court previously granted. Plaintiff’s counsel failed to respond to discovery requests and instead served unverified responses to discovery. (Ajello Decl., ¶¶10-17.) Plaintiff failed to respond Defendants’ request for admission. (Id., ¶19.) Plaintiff’s counsel failed to inform Plaintiff that she was required to bring documents to the deposition. Plaintiff’s counsel also failed to ensure Plaintiff had her reading glasses. To date, Plaintiff’s counsel has not produced the documents Defendants requested in their deposition notice. There is also a concern that Plaintiff’s counsel forged Plaintiff’s signature on her declaration and that this dispute over the validity of her signature was manufactured by Plaintiff’s counsel. 

Unconscionability 

 

Plaintiff also alleges that the arbitration agreement is unconscionable.  

 

¿ 

Procedural unconscionability “pertains to the making of the agreement.”¿ (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795.)¿ Procedural unconscionability “focuses on two factors: ‘oppression’ and ‘surprise.’ ‘Oppression’ arises from an inequality of bargaining power which results in no real negotiation and ‘an absence of meaningful choice.’ ‘Surprise’ involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in the prolix printed form drafted by the party seeking to enforce the disputed terms.”¿ (Zullo v. Superior Court (2011) 197 Cal.App.4th 477, 484.)¿¿ 

¿ 

A contract of adhesion typically denotes a standardized contract imposed and drafted by the party of superior bargaining strength which relegates to the subscribing party only the opportunity to adhere to the contract or reject it. (Armendariz, supra, 24 Cal.4th at 113.)¿ The adhesive nature of a contract is one factor that the courts may consider in determining the degree of procedural unconscionability.¿ (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 84 fn.4.)¿¿ 

¿ 

 

¿Here, the arbitration agreement specifies that arbitration is to take place before a neutral arbitrator assigned by JAMS. The agreement does not limit discovery and the parties are each responsible for their own costs. The parties would also share arbitrator fees. There are no provisions in the agreement which are overly harsh, unduly oppressive, or so one-sided as to shock the conscience. Plaintiff fails to identify any portion of the agreement that is substantively unconscionable. Thus, the Court finds that the arbitration agreement is not substantively unconscionable. 

 

There being no substantive unconscionability and very little procedural unconscionability, the Court finds that the arbitration agreement is not unconscionable. 

 

The Court is satisfied that an arbitration agreement exists and that it is not unconscionable. The motion to compel arbitration is granted.