Judge: Michelle Williams Court, Case: 22STCV01945, Date: 2022-08-22 Tentative Ruling
Case Number: 22STCV01945 Hearing Date: August 22, 2022 Dept: 74
22STCV01945 SKYLER
A. WOMACK vs SILVERSCREEN HEALTHCARE, INC
Defendant’s (Silverscreen Healthcare, Inc. dba Asistencia
Villa Rehabilitation and Care Center) Petition to Compel Binding Arbitration
and to Stay the Superior Court Matter Pending the Hearing on the Petition
TENTATIVE RULING:
The motion is GRANTED in part.
The claims asserted against Defendant Silverscreen Healthcare, Inc.,
other than the fourth cause of action for wrongful death, are ordered to arbitration. The action is STAYED as to all claims against
Defendant Silverscreen Healthcare, Inc. only, other than the fourth cause of
action for wrongful death, pending the outcome of arbitration. Today’s Case Management Conference and OSC re
Proof of Service are CONTINUED to September 6, 2022 at 8:30 a.m.
Background
On January
18, 2022, Plaintiffs Skyler Womack, by and through his successor in interest
Jonie Holland, Jonie Holland, individually, and Wayne Womack filed this action
against Defendants Silverscreen Healthcare,
Inc. dba Asistencia Villa Rehabilitation and Care Center, KND Development 55,
LLC dba Kindred Hospital Rancho, and Redlands Community Hospital. The complaint
asserts causes of action for: (1) dependent adult abuse; (2) negligence; (3)
violation of residents rights; and (4) wrongful death.
On May 11,
2022, the clerk entered Plaintiff’s request to dismiss KND Development 55, LLC dba Kindred
Hospital Rancho without prejudice.
Motion
On February
18, 2022, Defendant Silverscreen Healthcare,
Inc. filed its petition to compel plaintiffs to submit their claims against it
to arbitration pursuant to the arbitration agreement signed by Plaintiff Skyler
Womack.
Opposition
In
opposition, Plaintiffs contend Plaintiffs Jonie Holland and Wayne Womack did
not sign an arbitration agreement, the wrongful death cause of action cannot be
ordered to arbitration, the agreement violates 42 C.F.R. § 483.70, and the
Court should deny enforcement of the arbitration agreement pursuant to Code of
Civil Procedure section 1281.2(c).
Reply
In reply,
Defendant contends all Plaintiffs’ claims are arbitrable, the agreement
complies with the federal regulations, and Code of Civil Procedure section
1281.2(c) does not apply.
Motion to Compel
Arbitration
Standard
“California
law reflects a strong public policy in favor of arbitration as a relatively
quick and inexpensive method for resolving disputes. To further that policy,
section 1281.2 requires a trial court to enforce a written arbitration
agreement unless one of three limited exceptions applies. Those statutory
exceptions arise where (1) a party
waives the right to arbitration; (2) grounds exist for revoking the arbitration
agreement; and (3) pending litigation with a third party creates the possibility
of conflicting rulings on common factual or legal issues.” (Acquire II, Ltd. v. Colton Real Estate Group
(2013) 213 Cal.App.4th 959, 967; Code Civ. Proc. § 1281.2.) Similarly, “under
the FAA, the strong federal policy favoring arbitration agreements requires
courts to resolve any doubts concerning arbitrability in favor of arbitration.”
(Valencia v. Smyth (2010) 185 Cal.App.4th 153, 176 (internal quotations
omitted).)
In deciding a petition to compel
arbitration, trial courts must decide first whether an enforceable arbitration
agreement exists between the parties, and then determine the second gateway
issue whether the claims are covered within the scope of the agreement. (Omar
v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) The opposing party
has the burden to establish any defense to enforcement. (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579 (“The
petitioner, T–Mobile here, bears the burden of proving the existence of a valid
arbitration agreement and the opposing party, plaintiffs here, bears the burden
of proving any fact necessary to its defense.”).)
Procedurally, a petition to compel
arbitration or stay proceedings must state verbatim the provisions providing
for arbitration, or must have a copy of them attached. (Cal. R. Ct., rule 3.1330.)
Defendant Demonstrates the
Existence of an Arbitration Agreement
“With
respect to the moving party’s burden to provide evidence of the existence of an
agreement to arbitrate, it is generally sufficient for that party to present a
copy of the contract to the court.” (Baker
v. Italian Maple Holdings, LLC
(2017) 13 Cal.App.5th 1152, 1160.)
Defendant
attaches a copy of the Resident-Facility Arbitration Agreement, (“Agreement”),
between Plaintiff Skyler Womack and Asistencia Villa Post Acute signed by
Skyler Womack on January 5, 2020. (Healey Decl. Ex. A.) The Agreement provides,
in relevant part:
Article
1. It is understood that any dispute as to medical malpractice, that is as to
whether any medical services rendered under this contract were unnecessary or
unauthorized or were improperly, negligently or incompetently rendered, will be
determined by submission to arbitration as provided by California law, and not
by a lawsuit or resort to court process except as California law provides for
judicial review of arbitration proceedings.
.
. .
Article
2. It is further understood that any dispute between Resident and Asistencia
Villa Post Acute (Facility Name), that relates to the provision of care,
treatment and services the Facility provides to the Resident (collectively
referred to herein as “Facility”), including any action for injury or death
arising from negligence, intentional tort and/or statutory causes of action
(including all California Welfare and Institutions Code sections), will be
determined by submission to binding arbitration as provided by California law,
and not by lawsuit or resort to court process except as California law provides
for judicial review of arbitration proceedings.
.
. .
Article
4. This Agreement shall be binding for any dispute, except for disputes
pertaining to collections or evictions brought by the parties hereto. This
Agreement is binding on all parties, including the Resident's representatives,
executors, family members, and heirs.
(Ibid.)
Thus, the Agreement covers the claims asserted on behalf of Plaintiff Skyler
Womack.
Federal Regulations Do Not Bar
Enforcement Here
Plaintiffs
contend the arbitration agreement must comply with Title 42, section 483.70 of
the Code of Federal Regulations. (Opp. at 6:9-7:12.) Plaintiffs rely upon the
subsections of the regulation providing:
(n) Binding arbitration
agreements. If a facility chooses to ask a resident or his or her
representative to enter into an agreement for binding arbitration, the facility
must comply with all of the requirements in this section.
(1) The facility must not
require any resident or his or her representative to sign an agreement for
binding arbitration as a condition of admission to, or as a requirement to
continue to receive care at, the facility and must explicitly inform the
resident or his or her representative of his or her right not to sign the
agreement as a condition of admission to, or as a requirement to continue to
receive care at, the facility.
(2) The facility must ensure that:
(i) The agreement is
explained to the resident and his or her representative in a form and manner
that he or she understands, including in a language the resident and his or her
representative understands;
(ii) The resident or his or
her representative acknowledges that he or she understands the agreement;
(Opp.
at 6:11-21; 42 C.F.R. § 483.70(n).) Plaintiffs argue that “the Court must
conclude that the failure to have any evidence that the plaintiffs acknowledged
that he or she understood the agreement render the subject Arbitration
Agreement legally invalid. There is no evidence proffered in this particular
Petition to Compel Arbitration, nor in any of the declarations in support
thereof, that decedent SKYLAR WOMACK, HOLLAND, or WOMACK actually acknowledged
that he or she understands / understood the agreement as required by Law.”
(Opp. at 7:5-12.) Plaintiff failed to cite any authority for the proposition
that an arbitration agreement may be deemed unenforceable on this basis or that
a defendant must provide such evidence. (See generally Fenton v. City of
Delano (1984) 162 Cal.App.3d 400, 410 (“A point totally unsupported by
argument and authority may be rejected by the reviewing court without
discussion.”).)
Additionally,
the regulation imposes requirements “that an institution must meet in order to
qualify to participate as a Skilled Nursing Facility in the Medicare program,
and as a nursing facility in the Medicaid program.” (42 C.F.R. § 483.1(b).) By
its terms the regulation does not expressly regulate the enforceability of
arbitration agreements. Moreover, in promulgating this regulation, the Centers
for Medicare & Medicaid Services (CMS) noted the regulation would not
prevent enforcement of arbitration agreements. (See 84 Fed. Reg. 34,718, 34,718
(July 18, 2019) (codified at 42 C.F.R. § 483.70(n) (“This final rule does not
purport to regulate the enforceability of any arbitration agreement.”); Id. at
34,732 (“This rule in no way would prohibit two willing and informed parties
from entering voluntarily into an arbitration agreement.”).)
Finally,
there is no evidence demonstrating Skyler Womack was incapable of reading or
understanding the arbitration agreement and is therefore bound by its terms.
(See e.g. Randas v. YMCA of Metropolitan Los Angeles (1993) 17
Cal.App.4th 158, 163; Ramos v. Westlake Services LLC (2015) 242
Cal.App.4th 674, 687 (“the fact that Ramos signed a contract in a language he
may not have completely understood would not bar enforcement of the arbitration
agreement.”); Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586, 1590
(“When a person with the capacity of reading and understanding an instrument
signs it, he may not, in the absence of fraud, coercion or excusable neglect,
avoid its terms on the ground he failed to read it before signing it.”).) Plaintiffs
bore the burden to establish a defense to enforcement and failed to meet that
burden.
The Wrongful Death Claim is
Not Subject to Arbitration
Defendant
contends the wrongful death claim is subject to arbitration, citing Ruiz v.
Podolsky (2010) 50 Cal.4th 838. (Mot. at 6:1-19; Reply at 2:2-4:3.) In
opposition, Plaintiffs Jonie Holland
and Wayne Womack note they did not sign the arbitration agreement and argue
they cannot be compelled to arbitrate their individual wrongful death claims.
(Opp. at 1:24-6:8.)
Plaintiffs cite Avila v. Southern California
Specialty Care, Inc. (2018) 20 Cal.App.5th 835, in their opposition and
heavily quote the opinion without using quotations or providing proper
citations. For example, Plaintiffs state “Defendants, herein, argue
vociferously that Daniels [v. Sunrise Senior Living, Inc. (2013)
212 Cal.App.4th 674] is irrelevant because the defendant in that case was not a
licensed health care provider. We disagree” without quotations. (Opp. at
3:17-18. See Avila, supra, 20 Cal.App.5th at 842 (“Defendants argue
vociferously that Daniels is irrelevant because the defendant in that
case was not a licensed health care provider. We disagree.”).) Defendant did
not cite Daniels in its initial motion here. While Defendant cites Avila
in its reply as to the Code of Civil Procedure section 1281.2(c) issues
discussed below, (Reply at 6:1-3), it does not address the court’s discussion
in Avila of the wrongful death issue. As framed by the court in Avila:
Carving
out an exception to the general rule that arbitration agreements must be the
subject of consent rather than compulsion, in Ruiz v. Podolsky (2010) 50
Cal.4th 838, 849, 114 Cal.Rptr.3d 263, 237 P.3d 584 (Ruiz), the
California Supreme Court held that section 1295 permitted patients who
consented to arbitration to bind their heirs in actions for wrongful death. (Id.
at p. 841, 114 Cal.Rptr.3d 263, 237 P.3d 584.) It concluded that “all wrongful
death claimants are bound by arbitration agreements entered into pursuant to
section 1295, at least when, as here, the language of the agreement manifests
an intent to bind these claimants.” (Ibid.)
The
question, then, is whether Ruiz is controlling here, and we must
therefore determine whether this case is about “professional negligence,” as
defined by MICRA, or something else.
(Avila, supra, 20 Cal.App.5th at 841–842.)
The Complaint alleges Defendant is “a licensed
24-hour skilled nursing facility.” (Compl. ¶ 4.) Plaintiffs allege Defendant
“‘neglected’ WOMACK as that term is
defined in Welfare and Institutions Code §15610.57 in that ASISTENCIA . . .
failed to exercise the degree of care that reasonable persons in a like
position would exercise by denying or withholding goods or services necessary
to meet the basic needs of WOMACK as is more fully alleged.” (Id. ¶ 18.)
Plaintiffs allege “[w]hile under the care and treatment of ASISTENCIA, KINDRED
and RCH, WOMACK suffered from multiple falls with injury, and infections which
caused him pain and suffering and were substantial factors in his untimely
demise.” (Id. ¶ 20.) As to the wrongful death claim, the complaint alleges “[a]s a proximate result of negligence and
“neglect” as that term is defined in Welfare & Institutions Code §15610.57
as more particularly alleged above perpetrated by ASISTENCIA, KINDRED and RCH,
and each of them, WOMACK died on October 29, 2020.” (Id. ¶ 37.)
In
reply, Defendant contends it is a healthcare provider and therefore is entitled
to the benefits of MICRA. (Reply at 2:19-3:1.) As quoted above, the court in Avila
found it is the claims at issue, not the status of the Defendant, that
ultimately governs. “What matters is not the license status of the defendant,
but the basis of the claims as pleaded in the complaint. If the primary basis
for the wrongful death claim sounds in professional negligence as defined by
MICRA, then section 1295 applies. If, as plaintiffs claim here, the primary
basis is under the Elder Abuse and Dependent Adult Civil Protection Act (Welf.
& Inst. Code, § 15600 et seq.) (the Act), then section 1295 does not apply
and neither does Ruiz’s exception to the general rule that one who has
not consented cannot be compelled to arbitrate.” (Avila, supra, 20
Cal.App.5th at 842.)
Defendant
also argues “the Complaint asserts a Negligence cause of action against a
healthcare defendant which squarely triggers Ruiz.” (Reply at 3:8-15.)
However, the assertion of negligence alone is not sufficient. Plaintiffs’
claims in this action are akin to those asserted in Avila and found not
to be arbitrable against heirs:
The complaint includes
allegations that could be categorized as professional negligence as well as
elder abuse. There is at least some overlap between the two. But the complaint
was pleaded as one for “negligence/willful misconduct,” elder abuse and neglect
under the Act, and wrongful death. The complaint alleges a “conscious and
continued pattern of withholding the most basic care and services,” which
included a lack of monitoring, supervision, assistance, and other adequate care
and services. It alleges the lack of availability of a physician, failure to
provide properly trained staff and nursing, among other things.
(Avila, supra, 20 Cal.App.5th at 843.) As
in Avila, Plaintiffs’ wrongful death claim is based upon neglect within
the meaning of the Elder Abuse and Dependent Adult Civil Protection Act.
Plaintiffs’ “chose to plead a cause of action under the Act, and they did so
successfully. The fact that they could have also pleaded a claim for medical
malpractice, had they wished to do so, is irrelevant. Accordingly, we conclude
the plaintiffs’ claim is not one within the ambit of section 1295, and
therefore, Ruiz ’s holding does not apply.” (Ibid.)
Defendant
further argues “the Arbitration Agreement specifically states that the
Agreement
is
binding on the resident's family members and heirs and states that it applies
to actions arising out of the death of the resident.” (Reply at 3:16-26.)
However, Skyler Womack cannot bind
non-signatory heirs and family members to arbitrate their individual claims.
(See Monschke v. Timber Ridge Assisted Living, LLC (2016) 244
Cal.App.4th 583, 586 (“defendant appears to contend plaintiff may be bound by
the residency agreement's arbitration clause, even if she is not a party to it.
Defendant points out the arbitration clause purports to bind ‘all parties’ and
‘their spouse, heirs, representatives, executors, administrators, successors,
and assigns.’ The argument is unavailing.”).) Plaintiffs Jonie Holland and Wayne Womack are Skyler
Womack’s parents, and Skyler Womack was not a minor. (Compl. ¶¶ 2-3, 16. See Monschke,
supra, 244 Cal.App.4th at 586-587
(“one must be a party to an arbitration agreement to be bound by it . . . There
are three exceptions to the rule: (1) ‘an agent can bind a principal,’ (2)
‘spouses can bind each other,’ and (3) ‘a parent can bind a minor child.’
[Citation]. None of these exceptions apply here. Decedent was not plaintiff's
agent, plaintiff and decedent were not married, and plaintiff is not a minor
child.”).)
The
Court finds Plaintiffs Jonie Holland
and Wayne Womack’s individual wrongful death claim is not subject to
arbitration as there is no enforceable arbitration agreement between Defendant
and Jonie Holland and Wayne Womack.
The FAA Applies
Article 7 of the Agreement provides
“This Agreement relates to Resident's admission to the Facility, and the
Facility, among other things, participates in the Medicare and/or Medi-Cal
programs and/or procures supplies from out of state vendors. The parties,
therefore, agree that the underlying admission to the Facility involves
interstate commerce. Accordingly, this Agreement invokes the Federal
Arbitration Act.” (Healey Decl. Ex. A.) The FAA therefore applies. (See Victrola
89, LLC v. Jaman Properties 8 LLC
(2020) 46 Cal.App.5th 337, 355 (“But the presence of interstate commerce is not
the only manner under which the FAA may apply. As discussed above, the parties
may also voluntarily elect to have the FAA govern enforcement of the Agreement,
as they did here.”).)
Code of Civil Procedure
section 1281.2(c) Does Not Apply
Finally,
Plaintiffs contend the Court should invoke Code of Civil Procedure section
1281.2(c) to deny arbitration because their individual wrongful death claim is
not arbitrable. (Opp. at 7:12-8:26.)
“A party to
the arbitration agreement is also a party to a pending court action or special
proceeding with a third party, arising out of the same transaction or series of
related transactions and there is a possibility of conflicting rulings on a
common issue of law or fact. For purposes of this section, a pending court
action or special proceeding includes an action or proceeding initiated by the
party refusing to arbitrate after the petition to compel arbitration has been
filed, but on or before the date of the hearing on the petition.” (Code Civ.
Proc. § 1281.2(c).)
Article 6 of
the Agreement provides, in relevant part, “[t]he parties agree that California
Code of Civil Procedure § 1281.2(c) is excluded from this Agreement as the
parties mutually desire to have any and all disputes outlined in Article 1 and
2 submitted to binding arbitration. The parties do not want any claims not
subject to arbitration to impede any and all other claims from being ordered to
binding arbitration.” (Healey Decl. Ex. A.) This provision is enforceable. (Gloster
v. Sonic Automotive, Inc. (2014) 226 Cal.App.4th 438, 447 (“The parties
could not have stated their intent that section 1281.2, subdivision (c) would
not be applied to defeat enforcement of the arbitration clause in the 2008
agreement any more clearly. We are required to give effect to that intent.”).)
Plaintiffs
argue, without authority or evidence, “[it’]s also unconscionable for the
decedent SKYLAR WOMACK to waive any protections of the law such CCP 1281.2(c).”
(Opp. at 8:24-25. See Fenton, supra,
162 Cal.App.3d 400, 410 (“A point totally unsupported by argument and authority
may be rejected by the reviewing court without discussion.”).) Plaintiffs
failed to meet their burden to demonstrate unconscionability.