Judge: Nathan Vu, Case: 30-2022-01263553, Date: 2022-10-31 Tentative Ruling
Please Note: The hearing on this matter has been changed to 8:30 A.M.
Motion to Compel Arbitration
Defendants Park View Estates’; Fountain Valley Opco LLC, dba Park View Estates’; and Sunshine Retirement Living LLC, dba Park View Estates’ motion to compel arbitration is GRANTED.
This action is STAYED as to Defendants Park View Estates; Fountain Valley Opco LLC, dba Park View Estates; and Sunshine Retirement Living LLC, dba Park View Estates, pending completion of arbitration.
An Alternative Dispute Resolution (ADR) Review Hearing shall be scheduled for 02/16/2023 at 8:30 am in Department N15.
Defendants Park View Estates; Fountain Valley Opco LLC, dba Park View Estates; and Sunshine Retirement Living LLC, dba Park View Estates move to compel arbitration of the claims asserted by Plaintiff Barbara Mukasa, through her guardian ad litem Edward Mukasa.
Compelling Arbitration
When a party to an arbitration agreement refuses to submit to arbitration, the other party may petition the court to compel arbitration and stay any pending lawsuit. (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218).
Specifically, Civil Procedure Code section 1281.2 states:
On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that 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, unless it determines that [an exception applies].
(Civil Proc. Code., § 1281.2.)
Standard for Compelling Arbitration
The right to arbitration depends upon contract, and thus, a motion to compel arbitration is akin to a suit in equity seeking specific performance of that contract. (See Little v. Pullman (2013) 219 Cal.App.4th 558, 565.)
Pursuant to section 1281.2, the court must grant the petition unless it finds that one of the exceptions applies: (1) that no written agreement to arbitrate exists; (2) that the right to compel arbitration has been waived; (3) that grounds exist for revocation of the agreement; or (4) that litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (Civil Proc. Code, § 1281.2; Condee v. Longwood Management Corp , supra, 88 Cal.App.4th at pp. 218-219.)
The moving party bears the burden of alleging and proving the existence of a valid arbitration agreement by the preponderance of the evidence. (Little v. Pullman, supra, 219 Cal.App.4th at p. 565.) Rules of Court Rule 3.1330 states:
A petition to compel arbitration or to stay proceedings pursuant to Code of Civil Procedure sections 1281.2 and 1281.4 must state, in addition to other required allegations, the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference.
(Cal. Rules of Court, rule 1.1330; see also Condee v. Longwood Management Corp. , supra, 88 Cal.App.4th at p. 218 [party seeking arbitration is required to allege existence of agreement to arbitrate].)
A party opposing the motion bears the burden of alleging and proving by a preponderance of the evidence any fact necessary to its defense. (Little v. Pullman, supra, 219 Cal.App.4th at p. 565.) 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. (Ibid.)
“California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.” (Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.) “This strong policy has resulted in the general rule that arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute.” (Id., quotations omitted.)
Existence of Arbitration Agreement (Electronic Signature)
The Supreme Court in Condee v. Longwood Management Corp. held that the party seeking arbitration was only required to state or provide the provisions of the agreement requiring arbitration. (Condee v. Longwood Management Corp., supra, 88 Cal.App.4th at pp. 218-219.) The party requesting arbitration was not required to follow the normal procedures to authenticate documents and Section 1281.2 “does not require the petitioner to introduce the agreement into evidence.” (Ibid.)
In this case, Plaintiff does not dispute that the Residency Agreement, which was signed by Edward Mukasa on behalf of Barbara Mukasa on 07/01/2021, contains an arbitration provision.
Nor does Plaintiff dispute the authenticity of the arbitration provision provided by the Moving Defendants, which states:
By signing below, you agree that any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at the Community whether made against us or any other individual or entity, including, without limitation, personal injury or wrongful death claims, shall be resolved by submission to neutral, binding arbitration in accordance with the Federal Arbitration Act . . . . You give up your constitutional right to have any such dispute decided in a court of law before a judge or jury, and instead accept the use of arbitration.
(Koester Decl., Exh. A.)
Instead, Plaintiff argues that the arbitration provision does not bind her or is not valid for several reasons.
Authority to Bind
Plaintiff contends that Edward Mukasa (Edward) signed the Residency Agreement. However, Moving Defendants submitted a power of attorney signed by Plaintiff on 08/29/2019 delegating to Edward, Plaintiff’s attorney-in-fact, the power to act on Plaintiff’s behalf.
Plaintiff argues that the 08/29/2019 power of attorney did not authorize Edward to make “healthcare decisions” for Plaintiff, including decision to enter into the Residency Agreement. Relying on Hutcheson v. Eskaton FountainWood Lodge (2017) 17 Cal.App.5th 937, Plaintiff claims that the 08/29/2019 power of attorney was created under the Power of Attorney Law, (Probate Code, §§ 4000 et seq.), rather than the “health care decisions law,” (Probate Code, §§ 4600 et seq.).
However, in Hutcheson v. Eskaton FountainWood Lodge, the defendants relied exclusively on a statutory form power of attorney. (Hutcheson v. Eskaton FountainWood Lodge, supra, 17 Cal.App.5th at pp. 941-942.) Here, Moving Defendants do not rely only on such a power of attorney. In fact, Moving Defendants submitted a Durable Power of Attorney for Healthcare that Plaintiff signed pursuant to Probate Code sections 4600 et seq. (Koester Reply Decl., Exh. E.) Moving Defendants have sufficiently established Edward’s authority to bind Plaintiff to the Residency Agreement.
Enforceability as a Matter of Law
Plaintiff also argues that the Court of Appeal in Harris v. University Village Thousand Oaks, CCRC, LLC (2020) 49 Cal.App.5th 847, held that arbitration provisions in an assisted living facility’s residence agreements are unenforceable. The court in that case interpreted Civil Code section 1953(a)(4), which states that “[a]ny provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive any of the following rights shall be void as contrary to public policy: . . . (4) His procedural rights in litigation in any action involving his rights and obligations as a tenant.” (Civil Code, § 1953, subd. (a)(4).)
The Court of Appeal in Harris v. University Village Thousand Oaks, CCRC, LLC (2020) 49 Cal.App.5th 847, Section 1953(a)(4) prohibits enforcement of a predispute arbitration provision “arising from or related to the tenancy provisions of a continuing care contract.” (Id., at p. 856.) The allegations in that complaint included “claims dealing with the housing portion of the contracts, i.e., increases in monthly fees, whether the charges for utilities included electricity to charge vehicles, and failure to provide promised building and grounds security.” (Id. at p. 854.)
Harris v. University Village Thousand Oaks, CCRC, LLC is thus distinguishable. The claims there related to the conditions of the plaintiff’s tenancy and Plaintiff’s “rights and obligations as a tenant.”
Here, Plaintiff’s claims relate to the care and treatment Decedent received while she resided at Park View Estates, not to her “rights and obligations as a tenant.” Plaintiff makes this clear when she argues, as above, that Edward did not have the authority to bind her to the relevant portions of the Residency Agreement because he was not granted authority over “healthcare decisions.”
Civil Code Section 1281.2(c)
Plaintiff further contends that the court should exercise discretion under Civil Procedure Code section 1281.2(c) to deny the petition. That provision grants the court discretion to deny a petition to compel arbitration if “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.” (Civil Proc. Code, § 1281.2, subd. (c).)
The arbitration provision in this case states that arbitration will be conducted pursuant to the Federal Arbitration Act (FAA) and Section 1281.2(c) does not apply where the arbitration agreement incorporates the FAA’s procedural provisions. (See Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1116 [where parties “expressly agreed the FAA would govern arbitration of disputes under the contract,” the trial court “had no discretion to deny the petition to compel arbitration” under section 1281.2(c)].)
Moreover, like the arbitration provision in Rodriguez v. American Technologies, Inc., the Residency Agreement, here, includes “no other contract provision” that suggests “the parties intended to incorporate California arbitration law,” nor is there evidence the parties intended to arbitrate “in accordance with” some provisions of the FAA but not others. Thus, this Court cannot refuse to enforce the arbitration provision under Section 1281.2(c). (fn.1)
In addition, Plaintiff’s argument with respect to Section 1281.2(c) relies on the possibility of conflicting rulings if Plaintiff’s claims against Moving Defendants are arbitrated while her claims against the caregiver and staffing agency defendant are adjudicated in court. However, the other defendant has joined in the motion to arbitrate. While the court is denying the joinder for procedural reasons, it is doing so without prejudice. It is apparent that the other defendant wishes to have the claims against it arbitrated and may make a motion to compel arbitration in the future.
Joinder
Defendant Senior Ride and Home Care Inc., dba OC Homecare Services’ joinder to the motion to compel arbitration is DENIED without prejudice.
Defendant Senior Ride and Home Care Inc., dba OC Homecare Services filed a joinder in the motion to compel arbitration filed by Moving Defendants.
However, the joinder was filed and served on 10/17/2022, which is untimely as it is less than 16 court days before the hearing in this matter. (See Civil Proc. Code, § 1005, subd. (b) [notice of motion must be served at least 16 court days prior to the hearing if personally served or more days before that if served in some other manner].)
In addition, Defendant Senior Ride and Home Care Inc. made substantial new arguments that were not made by Moving Defendants. (See Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 661 [joinder is appropriate where joining party seeks same relief based on same arguments made in motion being joined].) Plaintiff should have been given sufficient time to respond to these arguments, which she was not. The court must deny the joinder. (See Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 719.)
Motion for Trial Preference.
Plaintiff Barbara Mukasa motion for trial preference is DENIED without prejudice.
Plaintiff Barbara Mukasa, through her guardian ad litem Edward Mukasa, moves for an order granting trial preference pursuant to Civil Procedure Code sections 36(a) and (d).
Those provisions state:
(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.
. . .
(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.
In light of the Court’s order granting the motion to compel arbitration, the motion for trial preference is moot with respect to the claims against the Moving Defendants.
However, the matter is not moot with respect to the remaining defendants. In this case, it appears that there is evidence that Plaintiff meets the requirements of both Sections 36(a) and 36(d).
The difficulty is that Plaintiff presents this evidence through her counsel, who makes declarations regarding Plaintiff’s health and medical condition without laying a foundation for Plaintiff’s counsel’s ability to do so. Plaintiff’s counsel also attaches health and medical documentation to her declaration that is hearsay.
The court must therefore deny the motion for trial preference without prejudice. However, the court encourages all parties and counsel to meet and confer to resolve the remaining issues with respect to arbitration and trial preference in the interests of saving time and expense.
Moving Defendants shall notice of this ruling.
(fn.1) Plaintiff argues that the FAA does not apply until the court has determined that there is a valid, enforceable arbitration agreement under California law. As explained above, Moving Defendants have shown the existence of an arbitration agreement and Plaintiff has not carried her burden of proving any defenses to the validity or enforceability of the arbitration agreement. The arbitration agreement is therefore valid and enforceable under California law and the FAA applies by the terms of the arbitration agreement.