Judge: Melissa R. Mccormick, Case: "Wiseman v. GHC of La Mesa, LLC, et al.", Date: 2022-12-08 Tentative Ruling

Defendants GHC of La Mesa and Life Generations Healthcare LLC’s Petition to Compel Arbitration

Defendants GHC of La Mesa and Life Generations Healthcare LLC petition the court for an order compelling plaintiff Donald Wiseman to arbitrate his claims against them.  Wiseman’s complaint alleges two causes of action against defendants:  elder abuse and negligence.  Defendants move to compel arbitration pursuant to the Federal Arbitration Act (FAA) “or in the alternative” California Civil Procedure Code sections 1281, 1281.2, 1281.4, “and 1290 et seq.”  Notice of Motion at 2:5-6.  Wiseman filed a “partial opposition” to defendants’ petition.  Wiseman asks the court to order the case to arbitration, but also to (i) appoint one of four arbitrators Wiseman proposes, (ii) order defendants to pay all of the arbitrator’s fees, (iii) strike a sentence from the arbitration agreement, and (iv) order that the California Code of Civil Procedure, including the Civil Discovery Act, applies in the arbitration.  For the following reasons, defendants’ petition to compel arbitration is granted.  Wiseman’s requests are addressed below.

The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract.  Little v. Pullman (2013) 219 Cal.App.4th 558, 565.  The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.  Id.  In these summary proceedings, the trial 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.  Id.

Wiseman does not oppose defendants’ contention that Wiseman’s causes of action should be arbitrated pursuant to the arbitration agreement Wiseman’s spouse executed on Wiseman’s behalf.  Indeed, in his partial opposition, Wiseman “requests that the Court . . . order this matter to arbitration.”  Partial Opp. at 8:17-18; see also Deborah Wiseman Decl. ¶ 2 (“I am the individual who executed the admission paperwork on my husband’s behalf as his power of attorney, including the arbitration agreement.”).    The court grants the parties’ request that the case be ordered to arbitration.

Appointment of arbitrator

Wiseman asks the court to select an arbitrator from one of four arbitrators Wiseman proposes.  Wiseman states Civil Procedure Code section 1281.6 authorizes the court to do so.  Assuming arguendo the California Arbitration Act applies, section 1281.6 authorizes a court to appoint an arbitrator under some circumstances, but those circumstances do not include selecting an arbitrator from a list prepared unilaterally by one side.  Section 1281.6 states that if an arbitration agreement provides a method of appointing an arbitrator, that method shall be followed, and if the agreement does not provide a method for appointing an arbitrator, the parties to the agreement may agree on a method.  Section 1281.6 further provides: 

“In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement shall appoint the arbitrator.

“When a petition is made to the court to appoint a neutral arbitrator, the court shall nominate five persons from lists of person supplied jointly by the parties to the arbitration or obtained from a governmental agency concerned with arbitration or private disinterested association concerned with arbitration.  The parties to the agreement who seek arbitration and against whom arbitration is sought may within five days of receipt of notice of the nominees from the court jointly select the arbitrator whether or not the arbitrator is among the nominees.  If the parties fail to select an arbitrator within the five-day period, the court shall appoint the arbitrator from the nominees.”  Cal. Civ. Proc. Code § 1281.6.

Wiseman’s request that the court appoint an arbitrator from Wiseman’s list of four proposed arbitrators does not comply with any of above procedures in section 1281.6.  The court thus declines Wiseman’s request that the court select one of Wiseman’s four proposed arbitrators.  This denial is without prejudice to Wiseman and/or defendants filing a petition with the court to appoint an arbitrator pursuant to section 1281.6, should any party contend section 1281.6 applies and desire to file such a petition. 

Payment of arbitrator’s fees

The arbitration agreement states:  “The expenses and fees of the arbitrator(s) shall be apportioned equally among all parties to this Agreement except as otherwise permitted by law.”  Arbitration Agreement, Article 6.  Wiseman asserts he cannot pay the arbitrator’s fees and the court therefore should order defendants to pay all of the arbitrator’s fees pursuant to Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87. 

Roldan held that a party cannot be forced to remain in arbitration when the party cannot pay for arbitration because doing so would effectively result in depriving the plaintiff of any forum to resolve its claims against the defendant.  Roldan, 219 Cal.App.4th at 94, 96.  Because a court does not have the authority to order arbitrators to waive their fees, if a trial court concludes a plaintiff cannot pay for arbitration, the defendant should be given the choice of either paying the arbitration fees to remain in arbitration or waiving its right to arbitrate and allow the matter to proceed in superior court.  Id. at 96; see also Weiler v. Marcus & Millichap Real Estate Investment Services, Inc. (2018) 22 Cal.App.5th 970, 981 (“In sum, we hold, as we did in Roldan, when a party who has engaged in arbitration in good faith is unable to afford to continue in such a forum, that party may seek relief from the superior court.  If sufficient evidence is presented on these issues, and the court concludes the party's financial status is not a result of the party's intentional attempt to avoid arbitration, the court may issue an order specifying: (1) the arbitration shall continue so long as the other party to the arbitration agrees to pay, or the arbitrator orders it to pay, all fees and costs of the arbitration; and (2) if neither of those occur, the arbitration shall be deemed ‘had’ and the case may proceed in the superior court.”).

Wiseman’s evidence in support of his claim that he cannot afford to pay any arbitration fees is a declaration from his spouse, Deborah Wiseman.  Deborah Wiseman identifies Wiseman’s assets, which include a home, the value of which is not set forth in the declaration.  See Deborah Wiseman Decl. ¶ 3.  Deborah Wiseman also states that Wiseman’s “monthly expenses greatly exceed the amount of income,” and that Wiseman “does not have sufficient income to pay for the home mortgage.”  Id. ¶ 4.

Deborah Wiseman’s sparse declaration does not provide sufficient evidence from which the court can conclude at this juncture that Wiseman cannot pay any of the arbitrator’s fees.  Moreover, because an arbitrator has not yet been selected, the court has no specific information regarding the cost of the arbitration in this case.  Plaintiff’s counsel provides estimates based on counsel’s experience and invoices from other cases, but that information is of limited use in determining the cost of this arbitration because different cases involve different facts, circumstances, timelines, and proceedings.  The court thus denies without prejudice Wiseman’s request that the court determine on this record that Wiseman cannot pay any of the arbitrator’s fees.

First sentence of Article 6 of arbitration agreement

The first sentence of Article 6 of the arbitration agreement states:  “Resident and Facility agree that California substantive law, including California Code of Civil Procedure § 667.7 and Civil Code §§ 3333.1-3333.2 applies to any and all claims arising out of the care, treatment and services provided to the Resident by the Facility, including those claims outlined in Article 1 and Article 2.”  Wiseman asks the court to strike this sentence from the agreement.  Wiseman argues Civil Procedure Code section 667.7 and Civil Code sections 3333.1 and 3333.2 are part of MICRA and MICRA does not apply to elder abuse claims.

Wiseman’s argument rests on Wiseman’s interpretation of this sentence as requiring application of Civil Procedure Code section 667.7 and Civil Code sections 3333.1 and 3333.2 to elder abuse causes of action as opposed to, e.g., application of those sections to causes of action as California substantive law may require.  Having concluded above that defendant’s petition to compel arbitration should be granted, the court is skeptical it nevertheless may appropriately undertake to interpret this portion of the arbitration agreement (whether the interpretation Wiseman urges or otherwise) at this juncture, and declines Wiseman’s request that it do so.  

Application of California Code of Civil Procedure, including Civil Discovery Act, in arbitration

The arbitration agreement does not expressly state that the California Code of Civil Procedure, including the Civil Discovery Act, applies in an arbitration conducted pursuant to the agreement.  Wiseman asks the court to order that those statutes must be utilized in the arbitration.  Wiseman provides no argument in support of this request in his partial opposition brief.  The court thus declines to address this request.  See, e.g., In re A.C. (2017) 13 Cal.App.5th 661, 672-73.

This action is stayed pending completion of the arbitration.  An ADR Review hearing is scheduled for June 8, 2023 at 9:00 a.m. in Department C13. 

Defendants to give notice.

Plaintiff Donald Wiseman’s Motion for Trial Preference

Plaintiff Donald Wiseman moves for pursuant to California Civil Procedure Code sections 36 and 36.5.  In light of the court’s concurrent ruling granting defendants GHC of La Mesa and Life Generations Healthcare LLC’s petition to compel arbitration and staying the case pending completion of the arbitration, Wiseman’s motion for trial preference is denied without prejudice as moot.

Defendants to give notice.

Case Management Conference

In light of the court’s concurrent ruling granting defendants GHC of La Mesa and Life Generations Healthcare LLC’s petition to compel arbitration and staying the case pending completion of the arbitration, the Case Management Conference scheduled for January 5, 2023 is vacated.

Clerk to give notice.