Judge: Nathan R. Scott, Case: Cornell v. Kofford, Date: 2022-07-29 Tentative Ruling

Case Management Conference

The CMC is vacated.

Arbitration Motion  

Defendant Jeannine Kofford motion to compel arbitration (and defendant Kofford Limited Partnership’s joinder) is granted.  (See Code Civ. Proc., § 1281.2.)

The court orders plaintiff Karen Cornell to arbitrate her claims in this action in accordance with the parties’ arbitration agreement. 

The action is stayed pending completion of arbitration. (See Code Civ. Proc., § 1281.4.)

An status conference re binding arbitration is set for 4/20/23 at 2 pm in this department.

Defendants met their initial burden “of producing ‘prima facie evidence of a written agreement to arbitrate the controversy.’  [Citation.]  The moving party ‘can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party's] signature.’” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165; see also Costa Decl. ¶ 2.) 

“For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication.”  (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218.)  It is sufficient at the first step for defendants to attach an arbitration agreement with plaintiff’s purported signature.

Plaintiff did not meet her shifted “burden of producing evidence to challenge the authenticity of the agreement.”  (Gamboa, supra, 72 Cal.App.5th at p. 165.)  In her declaration, plaintiff fails to “declare under penalty of perjury that [she] never saw or does not remember seeing the agreement, or that [she] never signed or does not remember signing the agreement.”  (Ibid.)  If the signature was not hers, she would be reasonably expected to dispute it.

The arbitration agreement covers plaintiff’s claims arising from the CO2 laser treatment.  Defendants showed they had an ongoing patient-physician relationship with plaintiff and that the CO2 laser treatment was an “open book account transaction” for medical services for which plaintiff contracted in 2018.  (See Code Civ. Proc., § 1295, subd. (c); Gross v. Recabaren (1988) 206 Cal.App.3d 771, 777-778; see also Costa Decl. at Ex. B [arbitration agreement]; Supp. Costa Decl. at Ex. B, Set 1 of 4 [exhibit 1 to Dr. Kofford’s responses to plaintiff’s requests for production, pp. 0001-0002, 0009].)

The arbitration agreement broadly applies to any dispute arising from any and all services provided to plaintiff by defendants.  (See Costa Decl. at Ex. B.)  It is not limited to Botox treatments or contemporaneous services.

Defendants also showed they recommended C02 laser treatment to plaintiff when she came to them in 2018.  (See Supp. Costa Decl. at Ex. B, Set 1 of 4 [exhibit 1 to Dr. Kofford’s responses to plaintiff’s requests for production, pp. 0001-0002].)  While plaintiff chose Botox treatments at first, she later returned for the recommended CO2 laser treatment.  (See id. at Ex. B, Set 1 of 4 [exhibit 1 to Dr. Kofford’s responses to plaintiff’s requests for production, pp. 0001-0002, 0009].)

Plaintiff’s objection to exhibit B of the Costa declaration (ROA #35) is immaterial to the determination of this motion.  (See Gamboa, supra, 72 Cal.App.5th at p. 165; Condee, supra, 88 Cal.App.4th at p. 218.)  The remaining objections are immaterial to the determination of this motion.

Defendants shall give notice.