Judge: Mel Red Recana, Case: 23STCV28211, Date: 2024-03-18 Tentative Ruling
Case Number: 23STCV28211 Hearing Date: March 18, 2024 Dept: 45
Hearing date: March 18, 2024
Moving Parties: Defendants WEST VALLEY POST ACUTE, WEST VALLEYIDENCE OPCO, LLC dba WEST VALLEY POST ACUTE, PROVIDENCE GROUP, INC., PROVIDENCE GROUP NORTH, LLC, and PROVIDENCE ADMINISTRATIVE CONSULTING SERVICES, INC.
Responding Party: Plaintiff Thomas Trent
Motion to Compel Arbitration
The Court has considered the moving, opposition, and reply papers.
The Court DENIES Defendants’ motion to compel arbitration.
Background
This is an elder abuse and general negligence action. On November 17, 2023, plaintiff Thomas Trent, by and through his guardian ad litem Pat Trent (“Plaintiff”) filed this action against Defendants West Valley Post Acute, West Valleyidence Opco, LLC dba West Valley Post Acute, Providence Group, Inc., Providence Group North, LLC, and Providence Administrative Consulting Services, Inc. (collectively “Defendants”), alleging 4 causes of action for (1) elder abuse under Welfare and Institutions Code, § 15600, et seq., (2) negligence, (3) violation of Health and Safety Code § 1430(b), and (4) willful misconduct. On January 31, 2024, Defendants filed this motion to compel arbitration. Plaintiff filed an opposition on March 5, 2024 and Defendant replied on March 11, 2024.
Legal Standard
Under CCP §
When presented with a petition to compel arbitration, the trial court’s first task is to determine whether the parties have in fact agreed to arbitrate the dispute. (Id. at 88.) “[A]bsent a clear agreement to submit disputes to arbitration, courts will not infer that the right to a jury trial has been waived.” (Adajar v. RWR Homes, Inc. (2008) 160 Cal.App.4th 563, 569, internal citations and quotations omitted.)
Because the right to arbitration depends upon contract, the party seeking arbitration bears the initial burden of proving that the parties actually agreed to arbitrate the instant dispute. (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761.) If the moving party does so, the burden shifts to the opposing party to show that the subject agreement is unenforceable. (Id. at 761.) The court “sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” (Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 972.)
Discussion
Defendants move for an order to compel Plaintiff to arbitrate the causes of action in his Complaint.
1. Existence of an Arbitration Agreement
Defendants submit a copy of an Arbitration Agreement executed on October 3, 2022 which identifies the parties as “Resident” “Thomas Trent” and “Facility” “West Valley Post Acute” (the “Agreement”). (See Gobran Decl., ¶ 3; Exh. A [Arbitration Agreement].) Defendants have met their initial burden of showing the existence of an agreement to arbitrate The burden shifts to Plaintiff to show that the subject agreement is unenforceable. Plaintiff successfully met his burden.
Plaintiff, by and through his guardian ad litem, asserts that the Agreement is invalid and unenforceable because Plaintiff lacked capacity to sign the Agreement, and because Plaintiff challenges the authenticity of the electronic signature, and Defendant has not shown by a preponderance of the evidence that the signature is authentic.
Civil Code §1556 states that “all persons are capable of contracting except minors,
persons of unsound mind, and persons deprived of civil rights.” (Civ. Code, § 1565.) Under Civil
Code, § 38, a “person entirely without understanding has no power to make a contract of any kind.” (Civ. Code, § 38.)
Plaintiff attaches the declaration of Patricia Trent, Plaintiff’s wife, guardian ad litem and caregiver (“Ms. Trent”). Ms. Trent attested that Plaintiff suffers from blurry vision as a result of cataracts and a detached retina. (Trent Decl., ¶4.) From September 19 through 27, of 2022, Plaintiff was hospitalized at Northridge Hospital Medical Center for a transient ischemic attack (“TIA”). The TIA caused Plaintiff to have slurred speech, memory loss and confusion. (Id., ¶6.) On September 27, 2022, Plaintiff was transferred to West Valley Post Acute. Plaintiff continued to suffer from the post-TIA symptoms at West Valley. (Id.) Plaintiff did not have his glasses at Northridge or West Valley because Ms. Trent had taken them for safekeeping. (Id., ¶¶7-8.) At West Valley, Plaintiff could not respond to any questions or follow commands, said words that did not make sense even to his wife, and was unresponsive to anything his wife asked him. (Id., ¶¶6-8.) Hospital records submitted by Plaintiff corroborate these statements. Plaintiff’s Discharge Summary indicate that Plaintiff had limited alertness on the day of discharge from Northridge and was “not responding to commands consistently.” (See Flint Decl., Exh. 1; pp. 1-2.) Plaintiff’s discharge medications included an anti-psychotic drug. (Id. at p. 7.) On October 10, 2022, Plaintiff was re-admitted to Northridge from West Valley and was assessed to have dementia, psychosis and decreased mental status. (Flint Decl., Exh. 2.) The hospital records show that both before and after the Agreement was signed, Plaintiff had extremely low alertness.
In reply, Defendants argue that the testimony and hospital records regarding Plaintiff’s mental state are inadmissible hearsay. The evidence is hearsay but made admissible by Evidence Code § 1250, which provides that “evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule” when “the evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action” and when “the evidence is offered to prove or explain acts or conduct of the declarant.” (Evid. Code, § 1250.) Ms. Trent’s declaration and the hospital records fall squarely within this hearsay exception. The evidence provided show that Plaintiff lacked the mental capacity to enter into the Agreement, rendering it void and unenforceable.
2. Unconscionability
Even if Plaintiff had the mental capacity to contract, the Agreement would be unenforceable due to unconscionability. “The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114, quoting Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1533.) “Both procedural unconscionability and substantive unconscionability must be shown, but they need not be present in the same degree and are evaluated on a ‘sliding scale.’ The more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that term is unenforceable, and vice versa.” (Dougherty v. Roseville Heritage Partners (2020) 47 Cal.App.5th 93, 102.) Procedural unconscionability addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. (Nelson v. Dual Diagnosis Treatment Ctr. (2022) 77 Cal.App.5th 643, 658.) “Substantive unconscionability pertains to the fairness of an agreement’s actual terms and to assessments of whether they are overly harsh or one-sided.” (Id. at 659.)
a. Substantive Unconscionability
Plaintiff asserts that the Agreement is substantively unconscionable because (1) it calls for the arbitration of claims for violation of Health and Safety Code section 1430(b), which is against policy; (2) because it is one-sided, and (3) because it limits Plaintiff’s damages in a way that directly contravenes the Elder Abuse Act. While all three propounded grounds have merit, the Court finds the second argument most convincing. In Lopez v. Bartlett Care Center, LLP (2019) 39 Cal.App.5th 311, 321-322, the court found that an arbitration agreement which “requires residents to arbitrate those claims they are most likely to bring against [a skilled nursing facility] (medical malpractice, personal injury, elder abuse) while allowing the Facility to pursue in court the actions the Facility is most likely to bring against residents (evictions and collections),” lacks mutuality, is clearly “one-sided,” benefits only the facility, and is thus substantively unconscionable. Here, the Arbitration Agreement requires that Trent arbitrate any and all claims he may bring against Defendants, such as claims relating to the services and care provided by Defendants, but it is silent on claims Defendants may bring against him. (See Gobran Decl., ¶ 3; Exh. A.) This is the exact type of arbitration clause that the Lopez court found to be unconscionable.
b. Procedural Unconscionability
Plaintiff argues that the arbitration agreement is procedurally unconscionable because of the circumstances of its execution, which were largely discussed above, and because the contract was in an electronic format and thus could not be negotiated by Plaintiff. Defendants argue in reply that Plaintiff had the opportunity to review the agreement and ask questions, but failed to do so. However, the evidence shows that Plaintiff had no capacity to review the Agreement or ask questions.
Based on the foregoing reasons, the court finds Plaintiff has met his burden of showing both procedural and substantive unconscionability. Thus, Plaintiff’s action would not be subject to arbitration even if a valid arbitration agreement existed, which does not.
The court therefore DENIES Defendants’ motion to compel arbitration.
It is so ordered.
Dated: March 18, 2024
_______________________
ROLF M. TREU
Judge of the Superior Court
Hearing date: March 18, 2024
Moving Parties: Plaintiff
Thomas
Trent
Responding Party: N/A
Motion for Trial Preference
The Court has
considered the moving papers.
The Court GRANTS Plaintiff’s motion for trial preference.
Background
This
is an elder abuse and general negligence action. On November 17, 2023,
plaintiff Thomas
Trent, by and through his guardian ad litem Pat Trent (“Plaintiff”) filed this
action against Defendants West Valley Post Acute, West Valleyidence Opco, LLC dba
West Valley Post Acute, Providence Group, Inc., Providence Group North, LLC, and
Providence Administrative Consulting Services, Inc. (collectively “Defendants”),
alleging 4 causes of action for (1) elder abuse under Welfare and Institutions
Code, § 15600, et seq., (2) negligence, (3) violation of Health and Safety Code
§ 1430(b), and (4) willful misconduct. On January 31, 2024, Plaintiff filed
this motion for trial preference. No opposition was filed.
Legal
Standard
California Code of
Civil Procedure section 36 states, in relevant part:
(a)
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. . . .
(c)
Unless the court otherwise orders:
(1)
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.
(2)
At any time during the pendency of the action, a party who reaches 70 years of
age may file and serve a motion for preference.
(d)
In its discretion, the court may also grant a motion for preference that is
accompanied by clear and convincing medical documentation that concludes that
one of the parties suffers from an illness or condition raising substantial medical
doubt of survival of that party beyond six months, and that satisfies the court
that the interests of justice will be served by granting the preference.
(e)
Notwithstanding any other provision of law, the court may in its discretion
grant a motion for preference that is supported by a showing that satisfies the
court that the interests of justice will be served by granting this
preference.
(f)
Upon the granting of such a motion for preference, the court shall set the
matter for trial not more than 120 days from that date.
California Code of Civil Procedure section
36.5 states, “An affidavit submitted in support of a motion for preference
under subdivision (a) of Section 36 may be signed by the attorney for the party
seeking preference based upon information and belief as to the medical
diagnosis and prognosis of any party.
The affidavit is not admissible for any purpose other than a motion for
preference under subdivision (a) of Section 36.”
“Failure to complete discovery or other
pretrial matters does not affect the absolute substantive right to trial
preference for those litigants who qualify for preference under subdivision (a)
of Section 36. . . . The express legislative mandate for trial preference is a
substantive public policy concern which [supersedes] such considerations.” (Swaithes v. Superior Court (1989) 212
Cal.App.3d 1082, 1086-1087 [citation omitted].)
Discussion
Plaintiff moves for trial preference pursuant to CCP § 36 subds. (a) and
(d).
First, Plaintiff is 71 years old and meets the statutory age
requirement. (Trent Decl., ¶ 2; Exh. A
[Birth Certificate].) Second, the Court
finds that Plaintiff has a substantial interest in the action as he is the
named Plaintiff who is bringing this lawsuit.
Third, Plaintiff’s health is such that preference is necessary. Plaintiff’s attending physician declared under
penalty of perjury that Plaintiff has a life expectancy of less than six months.
(Kashani Decl., ¶ 8.) Dr. Kashani bases his opinion on the fact
that Plaintiff presents many co-morbidities. Plaintiff has a history of dementia,
pituitary macroadenoma status post resection, coronary artery disease,
paroxysmal atrial fibrillation, hypertension, and diabetes. (Id., ¶4.) Plaintiff has hypoxic respiratory failure and
requires a ventilator or tracheostomy for respiratory support. (Id., ¶7.) Plaintiff is bedbound. (Id.)
Plaintiff is non-responsive. (Id.,
¶ 6.) Fourth, Plaintiff will be
prejudiced if he passes away before his case is fully litigated. As a living plaintiff, if he prevails under
his Elder Abuse cause of action, there is no cap on his non-economic damages.
However, if he passes away, his non-economic damages are limited to the MICRA
limits of $390,000. (Welf. & Inst. Code §15657(a); Civ. Code § 3333.2.) Moreover, if he passes away before his case
is fully litigated, he will not be able to enjoy any recovery awarded to him if
he prevails at trial.
As such, the Court finds that Plaintiff
has satisfied the requirements to support a claim for trial preference.
Plaintiff has¿shown¿that due his and adverse health prospects, the trial must
be advanced.¿¿
Accordingly,¿Plaintiff¿qualifies for trial
preference under¿CCP §36(a) and (d),¿and the¿motion is¿GRANTED.¿¿
It is so
ordered.
Dated:
March 18, 2024
_______________________
ROLF M. TREU
Judge of the
Superior Court