Judge: Maurice A. Leiter, Case: 23STCV02120, Date: 2023-04-03 Tentative Ruling

Case Number: 23STCV02120    Hearing Date: April 3, 2023    Dept: 54

Hearing Date: April 3, 2023

Department 54, Judge Maurice A. Leiter

Motion for Trial Preference

Moving Party: Plaintiff Patrick C. Flowers, by and through his Attorney in Fact, Jane Flowers

Responding Party: Defendants Oxnard Manor LP, Oxnard Manor GP, LLC and Rockport Administrative Services, LLC

T/R:     PLAINTIFF’S MOTION FOR TRIAL PREFERENCE IS GRANTED.

PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

CCP § 36(a) provides, “[a] party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.”

Plaintiff moves for trial preference under the mandatory provision of CCP § 36. Plaintiff is 79 years old and has a medical history of chronic atrial fibrillation, recurrent C. Diff. Colitis, sepsis, pneumonia, acute and chronic respiratory failure with hypoxia, 2 liters of chronic oxygen per minute, right and left hip fracture requiring surgery, multiple rib fractures of the right side, chest tube for pleural effusion due to rib fracture, hypertensive heart disease with heart failure, congestive heart failure, COPD, benign prostate hyperplasia, punctured lung, high cholesterol, gout, acute kidney injury, metabolic encephalopathy, dysphagia, history of decubitus ulcer, chronic Foley catheter, urinary tract infection, hyperlipidemia, cirrhosis of the liver, and liver failure. Dr. Shahab Attarchi declares Plaintiff is unlikely to survive beyond six months. This is sufficient to establish entitlement to trial preference.

 In opposition, Defendants argue that Plaintiff cannot move for trial preference because Plaintiff has not yet served Defendant Shlomo Rechnitz. CCP § 36(c)(1) provides, “Unless the court otherwise orders: A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared.” Plaintiff does not deny that Rechnitz has not been served. Plaintiff represents Rechnitz has purposefully evaded service, requiring Plaintiff to apply for service by publication. The Court ordered service by publication on March 27, 2023.

Subsection (c)(1) provides the Court discretion to order trial preference even though all essential parties have not been served. Plaintiff has attempted personal service on Rechnitz 18 times at his known residence. Counsel for other Defendants in this action has represented Rechnitz in many lawsuits; Rechnitz has not authorized counsel to accept service in this case. On March 27, 2023, the Court granted Plaintiff’s ex parte application to serve Rechnitz by publication. The Court will not delay trial preference and prejudice Plaintiff because Rechnitz apparently is evading service.

            Plaintiff’s motion for trial preference is GRANTED.

Hearing Date: April 3, 2023

Department 54, Judge Maurice A. Leiter

Motion to Compel Arbitration;

Moving Party: Defendants Oxnard Manor LP, Oxnard Manor GP, LLC and Rockport Administrative Services, LLC

Responding Party: Plaintiff Patrick C. Flowers, by and through his Attorney in Fact, Jane Flowers

T/R:    DEFENDANTS’ MOTION TO COMPEL ARBITRATION IS GRANTED ON THE CONDITION THAT DEFENDANTS PAY THE COSTS OF ARBITRATION.

THE COURT SETS AN OSC RE: PAYMENT OF ARBITRATION COSTS FOR APRIL 19, 2023 AT 9:00AM. DEFENDANTS ARE ORDERED TO FILE AND SERVE NO LATER THAN APRIL 14, 2023 A DECLARATION STATING WHETHER DEFENDANTS WILL PAY THE ARBITRATION COSTS AND PROCEED TO ARBITRATION.

DEFENDANTS TO NOTICE.  

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

            On January 31, 2023, Plaintiff Patrick C. Flowers, by and through his Attorney in Fact, Jane Flowers, sued Defendants Shlomo Rechnitz, Oxnard Manor LP, Oxnard Manor GP, LLC, and Rockport Administrative Services, LLC, asserting causes of action for elder abuse and negligence. Plaintiff alleges Defendants caused Plaintiff to suffer pressure sores and a broken femur.

ANALYSIS

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate a controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists….”  (CCP § 1281.2.)  The right to compel arbitration exists unless the court finds that the right has been waived by a party’s conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact.   (CCP § 1281.2(a)-(c).)  “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.”  (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)

A. Existence of Arbitration Agreement and Applicable Law

            Defendants move to compel arbitration based on the arbitration agreement executed by Plaintiff on December 16, 2022. (Decl. Gomez, Exh. B.) The agreement provides 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… 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…” (Id.) This action arises from the “provision of services or health care or any failure to provide services or health care by Facility.” The agreement provides that it is governed by the FAA.

Defendants have met their burden to establish the existence of an agreement to arbitrate. The burden shifts to Plaintiff to establish any defenses to enforcement.

B. Enforceability

            Plaintiff argues the agreement should not be enforced because it does not apply to injuries sustained in the three days of admission before the agreement was signed, and because Plaintiff cannot afford to pursue his claims in arbitration. Plaintiff’s first argument is unpersuasive. The agreement states it applies to any and all claims arising from the services provided by Defendants and to “all claims based in whole or in part on the same incident, transaction, or related course of care or services provided by Facility…” (Decl. Gomez, Exh. B.) The first three days of Plaintiff’s admission are a part of the same course of care or services as those after the date of execution of the arbitration agreement.

            Plaintiff’s second argument has merit. California and federal appellate courts have held that one party’s inability to pay and the other’s refusal to pay for arbitration may be grounds to abandon arbitration as the dispute resolution forum. (See e.g. Roldan v. Callhan & Blaine (2013) 219 Cal.App.4th 87; Aronow v. Superior Court (2022) 76 Cal.App.5th 865; Weiler v. Marcus & Millichap Real Estate Investment Services, Inc. (2018) 22 Cal.App.5th 970; Tillman v. Tillman, 825 F.3d 1069 (9th Cir. 2016.))

Just last month the Court of Appeal addressed this circumstance in Hang v. RG Legacy I, LLC (2023) 88 Cal.App.5th 1243. In Hang, the plaintiff, in his capacity as successor-in-interest to decedent resident of a residential care facility, sued the residential care facility for elder abuse, negligence and wrongful death. The defendant moved to compel arbitration; the plaintiff claimed an inability to pay his pro rata share of the arbitration costs. The trial court granted the motion to compel arbitration and ordered plaintiff file a separate motion to allocate costs of arbitration. The trial court granted that motion and ordered Defendant to pay the arbitration costs or waive the right to arbitrate.

The Court of Appeal affirmed the trial court’s orders, relying on Roldan v. Callhan & Blaine (2013) 219 Cal.App.4th 87 and Weiler v. Marcus & Millichap Real Estate Investment Services, Inc. (2018) 22 Cal.App.5th 970. These cases held that if a plaintiff is unable to pay their share of arbitration costs, the court may order a defendant pay the costs of arbitration or waive the right to arbitration and proceed in court. To hold otherwise would deprive the plaintiff of any right to pursue their claims against the defendant. “Though the law has great respect for the enforcement of valid arbitration provisions, in some situations those interests must cede to an even greater, unwavering interest on which our country was founded—justice for all. Consistent with Roldan, and federal and California arbitration statutes, a party's fundamental right to a forum she or he can afford may outweigh another party's contractual right to arbitrate.” (Weiler, supra, 22 Cal.App.5th at 973.)

            Here, Plaintiff has presented evidence showing an inability to pay for arbitration. (Decl. Flowers.) Plaintiff asserts he receives $4,200.00 per month, including social security and pension benefits. (Id. ¶ 3.) Plaintiff represents that after his insurance stops paying for his stay at his current residential care facility, the stay will cost Plaintiff $4,000.00 per month. (Id.) This is sufficient to show Plaintiff is unable to pay for arbitration.

            In reply, Defendants assert the arbitrator should decide cost allocations under the agreement’s delegation clause. The delegation clause states the arbitrator will decide “the validity, interpretation, construction, performance and enforcement” of the agreement. Courts have held that even after arbitration has begun, a party may apply to the Court for an allocation of costs and/or relief from arbitration due to inability to pay. (Weiler, supra, 22 Cal.App.5th at 981.) This implies that ultimate determination of this issue belongs to the court.

            Plaintiff has established an inability to pay for arbitration. Defendant’s motion is GRANTED on the condition that Defendant pay the costs of arbitration.