Judge Richard S. Whitney, Case 37-2022-00034639-CU-PO-CTL 2023-12-08 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2022-00034639-CU-PO-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2022-00034639-CU-PO-CTL MONTES VS PACIFIC CHINO HILLS LP [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT HSRE PACIFICA HILLSBOROUGH TRS, LLC'S MOTION TO COMPEL ARBITRATION is DENIED.

Defendant HSRE PACIFICA HILLSBOROUGH TRS, LLC ('Defendant') seeks to compel Plaintiffs SALVADOR H. MONTES, by and through his Successor-in-Interest Alexander Montes, and ALEXANDER MONTES ('Plaintiffs') to arbitrate Plaintiffs' claims and to stay this matter pending arbitration.

CCP section 1281.2 provides On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such 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: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement. (c) 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....

(CCP §1281.2.) The moving party must prove by a preponderance of the evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) The burden then shifts to the resisting party to prove by a preponderance of the evidence a ground for denial, e.g., unconscionability or waiver. (Id.) It is undisputed that ALEXANDER MONTES signed the Residence and Care Agreement, which contains an arbitration provision. However, Plaintiffs dispute that Defendant has demonstrated that ALEXANDER MONTES had power of attorney. 'When a defendant contends an agreement to arbitrate is binding because it was signed by an agent of the plaintiff, the defendant bears the burden of proving the signatory was the plaintiff's actual or ostensible agent.' (Kinder v. Capistrano Beach Care Center, LLC (2023) 91 Cal.App.5th 804, 812.) Defendant asserts that Exhibit B to the declaration of Erika A. De La Torre is a power of attorney. While the title of the document is readable as a general power of attorney, the remainder of the document is unreadable.

In reply, Defendant relies upon Evidence Code section 1414. Under Evidence Code section 1414, '[a] writing may be authenticated by evidence that: (a) The party against whom it is offered has at any time Calendar No.: Event ID: TENTATIVE RULINGS

3022067 60 CASE NUMBER: CASE TITLE: MONTES VS PACIFIC CHINO HILLS LP [IMAGED] 37-2022-00034639-CU-PO-CTL admitted its authenticity; or (b) The writing has been acted upon as authentic by the party against whom it is offered.' (Evid. Code, § 1414.) Tammy Lundeen declares that she requested ALEXANDER MONTES provide a power of attorney and that in response to same ALEXANDER MONTES provided the illegible document that is purportedly a power of attorney. Plaintiffs provide evidence that they acted as if it was a power of attorney because on November 5, 2021, ALEXANDER MONTES emailed a withdrawal of agreement to the arbitration agreement. The Court agrees that the document has been authenticated.

However, Defendant must also prove the power of attorney is legally sufficient.

A power of attorney is legally sufficient if all of the following requirements are satisfied: (a) The power of attorney contains the date of its execution.

(b) The power of attorney is signed either (1) by the principal or (2) in the principal's name by another adult in the principal's presence and at the principal's direction.

(c) The power of attorney is either (1) acknowledged before a notary public or (2) signed by at least two witnesses who satisfy the requirements of Section 4122.

(Prob. Code, § 4121.) The Court finds the document is too blurry to accurately determine the date it was executed, whether it was signed by SALVADOR H. MONTES, or was properly acknowledged before a notary public as what appears to be the name of the notary is too blurry to be read. The Court finds that Defendant has not met its burden to demonstrate the arbitration agreement was signed by an agent with authority to sign on behalf of SALVADOR H. MONTES.

Plaintiffs also assert that on November 5, 2021, pursuant to the terms of the arbitration agreement, ALEXANDER MONTES withdrew agreement to the arbitration agreement. The Residence and Care Agreement provides '[y]ou may withdraw your agreement to arbitrate within thirty (30) days after signing this Agreement by giving written notice of your withdrawal to us. After termination of this Agreement, this arbitration clause shall remain in effect for the resolution of all claims and disputes that are unresolved as of that date.' (Decl., De La Torre, Exhibit A.) Further, it provides '[t]his Agreement shall terminate automatically upon your death.' (Decl., De La Torre, Exhibit A.) It is undisputed that SALVADOR H. MONTES died on October 20, 2021, just six days after the Residence and Care Agreement was executed, and sixteen (16) days before Plaintiffs purported to withdraw agreement to the arbitration agreement. Plaintiffs could not withdraw on November 5, 2021, as the agreement had already terminated such that the 'arbitration clause shall remain in effect for the resolution of all claims and disputes that are unresolved as of that date.' (Decl., De La Torre, Exhibit A.) Plaintiff's argument in this respect fails.

Plaintiff asserts the Court should not enforce the arbitration agreement pursuant to CCP section 1281.2(c) because there is a risk of inconsistent rulings. While the Court need not reach this issue, the Court agrees there is at least some risk of inconsistent rulings given the fact there are remaining defendants, albeit nominal defendants, who are not bound by the arbitration agreement. In any event, as discussed above, Defendant has not met its burden as to the existence of an enforceable arbitration agreement. The motion is denied.

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