Judge: Marcella O. Mclaughlin, Case: 37-2023-00016970-CU-NP-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2023-00016970-CU-NP-CTL JULIE LAGALLE THROUGH HER SUCCESSOR IN INTEREST JOSE OROZCO VS ELDORADO CARE CENTER LP [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 09/21/2023

The motion to compel arbitration is GRANTED.

'The party seeking to compel arbitration has the burden of proving the existence of an enforceable arbitration agreement by a preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance any fact necessary to its defense.' Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, 1157.

A. Defendant has established – and plaintiffs do not dispute – the existence of an agreement to arbitrate between defendant and decedent Julie Lagalle that satisfies the requirements of Code of Civil Procedure section 1295. (Prukop Decl., Ex. B.) Thus, decedent' survivor claims must be arbitrated.

B. Defendant has also established that the arbitration agreement covers plaintiff Jose Orozco's individual wrongful death claim. See Code Civ. Proc. § 1295; see also Ruiz v. Podolsky (2010) 50 Cal.4th 838, 841.

Plaintiffs argue that Ruiz is distinguishable and that Avila v. Southern California Specialty Care, Inc.

(2018) 20 Cal.App.5th 835 controls this case. The court disagrees. Although Ruiz did not involve allegations of elder abuse, nothing in the opinion suggests there should be a carve out for wrongful death claims that are based on such allegations. To the contrary, the California Supreme Court broadly held that 'all wrongful death claimants are bound by arbitration agreements entered into pursuant to section 1295, at least when...the language of the agreement manifests an intent to bind these claimants.' Ruiz, 50 Cal.4th at 841 (emphasis added).

The court recognizes that Avila declined to apply Ruiz where the primary basis of the wrongful death claim sounded in elder abuse rather than professional negligence. Avila, 20 Cal.App.5th at 842. But Avila is distinguishable because the agreement in that case did not indicate an intent to bind third parties with claims independent of the survivor claims, such as wrongful death claimants. See id. at 838 (''This ADR agreement also covers any claim or action brought by a party other than you (e.g., an action by your spouse, legal representative, agent, heir) arising out of or relating to your hospitalization.''). Avila is also difficult to reconcile with the Elder Abuse and Dependent Adult Civil Protection Act (the 'Act'), by which 'claims and remedies are afforded only to victims of elder or dependent adult abuse.' Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1284. Under the Act, in the event of the victim's death, the cause of action becomes a survivor action 'pursued by the personal representative of the estate or the decedent's successor in interest on the decedent's behalf.' Id. Calendar No.: Event ID:  TENTATIVE RULINGS

3037798 CASE NUMBER: CASE TITLE:  JULIE LAGALLE THROUGH HER SUCCESSOR IN INTEREST JOSE  37-2023-00016970-CU-NP-CTL Thus, defendant has met its burden of proving the existence of an agreement between the parties to arbitrate all of plaintiffs' claims. The burden shifts to plaintiffs to show that the arbitration agreement is unenforceable.

C. The doctrine of unconscionability has both procedural and substantive elements, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results. Armendariz v. Foundation Healthy Psychare Services, Inc. (2000) 24 Cal.4th 83, 114. While both elements must be shown for the defense to be established, they are evaluated on a sliding scale, so that 'the more substantively one-sided the contract term, the less evidence of procedural unconscionability is required to conclude the term is unenforceable, and vice versa.' Davis v. Kozak (2020) 53 Cal.App.5th 897, 905. 'The burden of proving unconscionability rests upon the party asserting it.' OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126.

In this case, section 1295(e) expressly forecloses plaintiffs' arguments regarding unconscionability.

However, even in the absence of the statute, plaintiffs have failed to meet their burden. No evidence has been submitted regarding procedural unconscionability. See Performance Team Freight Systems, Inc. v. Aleman (2015) 241 Cal.App.4th 1233, 1248 (explaining that courts 'cannot just assume there was procedural unconscionability'); see also Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590 ('Matters set forth in points and authorities are not evidence.').

Turning to substantive unconscionability, the clause regarding payment of the arbitrator's fees and expenses is not unconscionable as it is limited to what is 'permitted by law.' Moreover, while the agreement arguably lacks mutuality (Lopez v. Bartlett Care Center, LLC (2019) 39 Cal.App.5th 311, 321-22), this provision can be easily severed. See Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 985 ('Where, as here, only one provision of the agreement is found to be unconscionable and that provision can easily be severed without affecting the remainder of the agreement, the proper course is to do so.').

In sum, given that there is little (if any) procedural and substantive unconscionability, the court concludes that plaintiffs have failed to make a sufficient showing that the doctrine of unconscionability renders the arbitration agreement unenforceable.

D. Accordingly, the motion to compel arbitration is granted. The case is hereby stayed while the arbitration is conducted. See Code Civ. Proc. § 1281.4; see also 9 U.S.C. § 3. The CMC set for today (ROA 30) is vacated. An arbitration status conference will be held on February 14, 2025 at 10:00 a.m. in Department 72.

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