Judge: Richard S. Whitney, Case: 37-2023-00014890-CU-PO-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 13, 2023

12/15/2023  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) 37-2023-00014890-CU-PO-CTL JA VS IMPERIAL CARE LLC CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANTS' (IMPERIAL CARE, LLC dba EL CENTRO POST ACUTE CARE; BAYSHIRE, LLC dba BAYSHIRE SENIOR COMMUNITIES; CARETRUST REIT, INC.) PETITION TO COMPEL BINDING ARBITRATION AND TO STAY THE SUPERIOR COURT MATTER PENDING THE HEARING ON THE PETITION is DENIED.

Defendants (IMPERIAL CARE, LLC dba EL CENTRO POST ACUTE CARE; BAYSHIRE, LLC dba BAYSHIRE SENIOR COMMUNITIES; CARETRUST REIT, INC.) ('Defendants') seek to compel Plaintiff V.D. as the Personal Representative of the Estate of J.A. ('Plaintiff') to arbitrate Plaintiff's claims and to stay this matter.

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 the decedent's daughter signed the Arbitration Agreement. However, Plaintiff disputes, via the declaration of Plaintiff, that Plaintiff was not 'informed by Claudia Urbina, or anyone else, that [she] had the right to 'refuse' signing the arbitration agreement' and Plaintiff declares she was led to believe the signature was required as part of admission. (V.D. decl., ¶¶ 2-3.) Further, Plaintiff provides evidence that decedent suffered from dementia at the time of admittance. (Garcia Decl., Exhibit 2.) '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.) The Court believes the nodding of the head by a person suffering from dementia is equivocal. Plaintiff does Calendar No.: Event ID:  TENTATIVE RULINGS

2990380  58 CASE NUMBER: CASE TITLE:  JA VS IMPERIAL CARE LLC  37-2023-00014890-CU-PO-CTL not provide evidence of decedent's inability to understand English (as a purported Spanish speaker); therefore, the Court need not consider the impact of a language barrier. However, there is a bone fide dispute over whether there is signed arbitration agreement.

More importantly, it is undisputed 9 U.S.C.A. § 402 was effective on the date of the signature. The new law 9 U.S.C.A. § 402 provides: Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

(9 U.S.C.A. § 402 [Emphasis added].) While it is true Plaintiff does not allege Defendants perpetrated the sexual battery, Plaintiff's claims all arise or 'relate[] to the sexual assault dispute....' Defendants do not cite to any authority nor the plain language of 9 U.S.C.A. § 402 to support their assertion that the new law does not apply to arbitration agreements if the moving party was not the perpetrator of the sexual assault. Rather, the plain language of 9 U.S.C.A. § 402 broadly applies to cases which are filed under state law and relate to 'the sexual assault dispute.' It cannot reasonably be disputed that Plaintiff's claims against Defendants relate to 'the sexual assault dispute.' The Court finds 9 U.S.C.A. § 402 applies to bar Defendants' petition. The petition is denied.

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