Judge Ralph C. Hofer, Case Number: 24GDCV00306, Date: 2024-06-28 Tentative Ruling

Plaintiff Rosalba Florencio, individually and as successor in interest to Carmen Martinez, deceased, as well as plaintiffs Hector Javier Florencio and Marisol Barrera, the other adult children of Martinez, allege that in February of 2023, following a hospital stay for surgery to repair a fracture in her femur, Martinez was admitted to a skilled nursing facility operated and managed by defendant Leisure Healthcare LLC dba Leisure Glen Post Acute Care Center.

The complaint alleges that upon admission, defendant knew that Martinez suffered from diabetes, immobility, and other conditions which left her at a high risk for serious infections, dehydration, malnutrition, diabetic ketoacidosis and other injuries if not provided with the care and services required by her needs.

The complaint alleges that Martinez, an elder at the time, was recklessly neglected as soon as she arrived at the facility, as no care plan was initiated for Martinez which included administration of insulin or diabetic medications, assistance with infection control, hygiene, toileting, or assistance with nutrition and fluid intake.

Plaintiffs allege that the facility, administrator, director of nursing and the caregivers assigned to Martinez knowingly and repeatedly failed to assist with hygiene, toileting, and changing clothes and bedding, and Martinez was left sitting in clothing soiled and in her own urine and feces for long periods of times, despite complaints from Martinez and the family members, and failed to maintain good nutrition and hydration so that Martinez lost 16 pounds in the first ten days of her residency.

It is also alleged that the facility and staff knowingly and repeatedly failed to administer diabetes medications, knowing Martinez was a diabetic, and that by February 15, 2023, Martinez began suffering severe nausea and vomiting due to low blood sugar levels, which contributed to Martinez’ inability to eat or drink. The complaint alleges that by the time Martinez was hospitalized on March 3, 2023, Martinez had become so sick that she could not swallow her medications anymore, and facility staff had been failing to make sure Martinez took her medicine each day.

The complaint alleges that while at the facility, Martinez’ blood sugar condition continued to deteriorate, but the facility and staff failed to intervene, that Martinez developed a serious urinary tract infection, and sepsis which progressed into septic shock, and suffered a diabetic stroke and diabetic ketoacidosis, and fell into a diabetic coma, losing consciousness. At this point, defendants called 911, but concealed the diabetic stroke when they called 911, reporting only that Martinez suffered shortness of breath.

The complaint alleges that prior to her hip surgery, Martinez was a woman who was able to walk, cook, and clean for herself, but because of defendant’s neglect, it took only one month of being in defendants’ care and custody for Martinez to be on life support fighting for her life. The complaint alleges that the neglect caused Martinez’ body to become too weak to stave off infections, and Martinez was discharged to hospice for comfort care on March 19, 2023, and died on April 22, 2023. The causes of death were gram negative sepsis, UTI, e. coli, pseudomonas, and cholecystitis, which plaintiffs allege were directly caused by defendants’ conduct.

“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:

There is a strong public policy in favor of arbitration of disputes and any doubts concerning the scope of arbitrable disputes should be resolved in favor of arbitration. Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 (“courts will ‘indulge every intendment to give effect to such proceedings.’”) (quotation omitted). “[A]rbitration agreements should be liberally interpreted, and arbitration should be ordered unless the agreement clearly does not apply to the dispute in question.” Vianna v. Doctors’ Management Co. (1994) 27 Cal.App.4th 1186, 1189, quoting Weeks v. Crow (1980) 113 Cal.App.3d 350, 353. See also AT&T Mobility, LLC v. Concepcion (2011) 563 U.S. 333, 339.

However, arbitration is “strictly a matter of consent.” Granite Rock Co. v. International Broth. of Teamsters (2010) 561 U.S. 287, 299, quotation omitted; Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 252; Civil Code section 1648 (a contract “extends only to those things concerning which it appears that the parties intended to contract.”) Accordingly, “[t]he strong public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement.” Comedy Club, Inc. v. Improv West Associates (9th Cir. 2009) 553 F.3d 1277, 1287, quoting Buckner v. Tamarin (2002, 2nd Dist.) 98 Cal.App. 4th 140, 142; see also, Engineers & Architects Assn. v. Community Development Dept. (1994, 2nd Dist.) 30 Cal.App.4th 644, 653.

In this case, defendant has alleged the existence of a written arbitration agreement. Where a petition is opposed, the burden is on the party seeking to compel arbitration to establish the existence of a valid agreement to arbitrate. Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356. The determination of arbitrability is a legal question subject to de novo review. An appellate court will uphold the trial court's resolution of disputed facts if supported by substantial evidence. Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1277.

Defendant relies on an Arbitration Agreement which defendant indicated was executed not by decedent, the resident, but by plaintiff Rosalba Florencio, decedent’s daughter. [Reganyan Decl., para. 4, Ex. A]. The agreement is signed by “R. Florencio,” “on behalf of the Resident and as an Individual.” [Ex. A]. Defendant relies on the declaration of its employee Aida Reganyan, who works in the admissions department of Leisure Glen, and who states:

“ROSALBA FLORECIO voluntarily signed the attached Arbitration Agreement on behalf of, and at the request of, CARMEN MARTINEZ, which was not a requirement for her admission. Per my custom and practice, I would have approached CARMEN MARTINEZ about the admission paperwork and the arbitration agreement and would have obtained consent from CARMEN MARTINEZ to have ROSALBA FLORENCIO sign those documents on her behalf.”

Plaintiffs in opposition argue that defendant cannot meet its burden of demonstrating that a valid arbitration agreement exists, because defendant cannot meet its burden to prove that a proper agency relationship existed between plaintiff Florencio and decedent Martinez.

Plaintiffs argue that the declaration of Reganyan is extremely weak evidence, essentially admitting that Reganyan has no direct recollection of what occurred with this particular admission, and failing to offer any affirmative facts supporting the conclusion that consent from decedent was in fact obtained, only that Reganyan “would have obtained” such consent.

Plaintiff also argue that to the extent defendant appears to argue that consent was obtained from decedent and an agency relationship confirmed, this is not what occurred. Plaintiffs submit a declaration of the daughter, plaintiff Florencio, in which she states:

5. I remember Aida Reganyan. I remember meeting with her. She never spoke with my mother, my mother did not speak or understand English. Based on everything I observed, I believe it is impossible for my mother to have ‘requested’ that I sign any document on her behalf. I never had a power of attorney my mother. When Aida Reganyan presented my mother’s documents to me for me to sign, I just wanted my mother to get treatment and I believed that’s what I was signing.

6. Ms. Reganyan’s never acquired assistance of a translator in order to acquire my mother’s oral consent for me to sign on my mother’s behalf. I know firsthand that this is not true. My mother did not speak English. Ms. Reganyan never had a translator speak with my mother. Nobody at the facility mentioned anything to my mother about the Admission Agreement nor the Arbitration Agreement.

7. My mother never asked me to sign anything for her, she did not even know that I signed anything for her at any time while she was at the nursing home. I just signed because Aida Reganyan presented the paperwork to me electronically on a Docusign. I have never dealt with a nursing home before, I thought this was all normal, in hindsight I feel betrayed by Aida Reganyan who I thought was being nice to me…. During the time I was in Ms. Reganyan’s presence, she never mentioned anything about whether I had permission to sign, nor any of the details or terms of what I was signing…”

“In determining whether an enforceable arbitration agreement exists, the initial burden is on the party petitioning to compel arbitration. “Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th at p. 413; see Engalla v. Permanente Medical Group (1997) 15 Cal.4th 951, 972 [64 Cal. Rptr. 2d 843, 938 P.2d 903].) Once the petitioner has met that burden, the burden shifts to the party opposing arbitration, to “produc[e] evidence of, and prov[e] by a preponderance of the evidence, any fact necessary to the defense.” (Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th at p. 413.”

Plaintiffs argue that no agency relationship was created here, as decedent never asked her daughter to sign anything for her, never made her daughter her agent, and decedent did not consent or ask Reganyan to allow her daughter to sign on her behalf, which was impossible given no translator was provided, which would have been necessary for decedent, who only spoke Spanish, to speak to Reganyan.

Plaintiffs rely on case law in which it is held that nursing home residents cannot be bound to arbitration agreements signed by their adult children in the absence of a showing that the child had the authority to bind the parent and act as an agent.

In Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, the Second District affirmed a trial court order denying a petition to compel arbitration, in a case where decedent’s adult daughters had signed arbitration agreements after their comatose mother had been admitted to a skilled nursing facility, where there was no evidence that the daughters had authority from their mother to do so:

“Defendants bore the burden of establishing a valid agreement to arbitrate. Defendants admit Johnnie Pagarigan did not sign either arbitration agreement. They further admit Ms. Pagarigan was mentally incompetent at the time she was admitted to Magnolia Gardens and at the time her daughters signed the arbitration agreements approximately a week later. There was no evidence Ms. Pagarigan had signed a durable power of attorney. It necessarily follows Ms. Pagarigan lacked the capacity to authorize either daughter to enter into the arbitration agreements on her behalf. Consequently, no valid arbitration contract exists.”

Plaintiffs also rely on Goliger v. AMS Properties, Inc. (2004) 123 Cal.App.4th 374, 375-376, in which the Second District, following Pagarigan, affirmed the trial court’s denial of a petition to compel arbitration, where a daughter had signed the arbitration agreement as the “responsible party” for her mother, rejecting arguments that agency had been established in the case because the mother had permitted the daughter to make medical decisions for her:

“AMS tries to distinguish Pagarigan. It notes that the mother in that case was comatose and therefore could not consent to her children making any decisions for her. Thus, it was reasonable, AMS argues, for the court to limit the children to those choices permitted them by statute regarding medical care, but to refuse to make them her agents for other purposes. Here, in contrast, mother was mentally alert and consented to Binshtock making health care decisions for her. Thus, there was no similar reason in AMS's view to narrowly construe the grant of such powers. AMS's argument does not, however, justify expanding Binshtock's powers beyond what the evidence shows mother permitted. The record shows mother allowed Binshtock to make medical decisions for her. As the Pagarigan court stated in words that are equally appropriate here, “[the nursing home d]efendants do not explain how the next of kin's authority to make medical treatment decisions for the patient … translates into authority to sign an arbitration agreement on the patient's behalf at the request of the nursing home.” (Pagarigan, supra, 99 Cal.App.4th at p. 302.)

Here, the evidence that the mother designated plaintiff Florencio as her agent is extremely weak, and inconsistent with decedent speaking Spanish. There is no dispute that there was no written power of attorney of any breadth at all. [Florencio Decl., paras. 9, 20]. It also appears that at the time of the alleged agency decedent was competent and able to make her own decisions. [Florencia Decl., para. 14]. Plaintiffs argue that under those circumstances, any argument that defendant obtained some sort of consent from decedent to have her daughter act as her agent, outside the presence of any family member or any witness whatsoever, is highly suspicious.

Although not cited by the parties, the California Supreme Court has recently, on March 28, 2024, emphasized the need to examine any agency on the part of an adult child in cases such as this because even a written agency agreement, in the form of a power of attorney for health care, for an agent to make “health care decisions” for another, would not confer agency to enter into an optional, separate arbitration agreement. See Harrod v. Country Oaks Partners, LLC (2024) 15 Cal. 5th 939, 946, 964. Here, where there is no showing of any agency agreement with respect to the authority of Florencio to bind decedent, other than a poorly supported oral assent, it would appear that any alleged actual or ostensible agency should be similarly scrutinized. It does not appear that agency to accept an arbitration agreement and waive the right to the constitutionally protected right to trial by jury has been sufficiently established here.

Plaintiffs also argue that the circumstances appear to present a situation where defendant has failed to comply with Health & Safety Code section 1599.65 (a), which applies to admission contracts for long-term health care facilities, and provides:

“(a) Prior to or at the time of admission, the facility shall make reasonable efforts to communicate the content of the contract to, and obtain on the contract the signature of, the person who is to be admitted to the facility. Unless the prospective resident has been declared legally incompetent or is unable to understand and sign the contract because of his or her medical condition, he or she shall sign or cosign the admission agreement. In the event the patient is unable to sign the contract, the reason shall be documented in the resident's medical record by the admitting physician. This provision does not preclude the facility from obtaining the signature of an agent, responsible party, or a legal representative, if applicable.”

Plaintiffs argue here that decedent did not co-sign the documents, and the moving papers fail to submit any evidence suggesting that it was documented in decedent’s medical records by the admitting physician that decedent was unable to sign the contract. Plaintiffs argue that the Reganyan Declaration, in which the admissions employee describes a “custom and practice” with respect to “residents who were alert and oriented at least x2 upon admission,” to “offer the admission agreement and arbitration agreement to their legal representative/family member…” suggests that the facility was routinely violating this statute in connection with its residents.

The fact remains here that there is insufficient evidence of conduct by decedent which gives rise to an agency, so that defendant has failed to meet its burden on this motion. In Rogers v. Roseville SH, LLC (2022) 75 Cal.App.5th 1065, the court of appeal affirmed a trial court’s order denying the petition of defendants, affiliated with a residential care facility for the elderly, to compel arbitration of claims made against them by the wife and sons of a deceased former resident of the facility for elder abuse, fraud and wrongful death, where the arbitration provision was included in a Residency Agreement signed by decedent’s son as decedent’s representative. The court of appeal reviewed the principles of agency, noted, as in the cases above, that agency requires evidence that the principal, decedent, had engaged in some conduct establishing an agency relationship, and noted:

“ ‘A third person ... is not compelled to deal with an agent, but if he [or she] does so, he [or she] must take the risk. He [or she] takes the risk not only of ascertaining whether the person with whom he [of she] is dealing is the agent, but also of ascertaining the scope of [that person's] powers.’ ” (Young, supra, 220 Cal.App.4th at p. 1134, 163 Cal.Rptr.3d 704; see also Howell, supra, 16 Cal.App.3d at p. 401, 94 Cal.Rptr. 33.) I

As argued in the opposition, here, defendant has failed to submit a sufficient, credible showing to meet its burden of showing that there was any actual agency or ostensible authority on the part of Florencio to bind her mother to the Arbitration Agreement. The court finds the showing submitted in the opposition concerning the events at the time of the execution of the document more credible than that presented in the moving papers.

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