Judge: Shirley K. Watkins, Case: 22VECV02010, Date: 2023-02-23 Tentative Ruling

Case Number: 22VECV02010    Hearing Date: February 23, 2023    Dept: T

            [TENTATIVE] ORDER: 

            1.         Defendant Northridge Care Center, Inc.’s Motion to Compel Arbitration is                                 DENIED.

            2.         Defendant Northridge Care Center, Inc.’s Motion to Stay the Action Pending                                   Arbitration is DENIED.

            Introduction

            Defendant Northridge Care Center, Inc. (Defendant) separately moved to compel arbitration and stay plaintiff Vera Hoos’ (plaintiff) action pending arbitration. 

            Discussion 

            Defendant argued that the parties entered into an arbitration agreement on November 13, 2020.  The statutory scheme for enforcing arbitration agreements provides for a summary way in the manner and upon the notice provided by law for making and hearing of motions.  (9 U.S.C. sec. 6; Code Civ. Proc. sec.1290.2.)  Whether under Federal or California law, trial courts must decide the first gateway issue of whether an enforceable arbitration agreement exists between the parties.  (9 U.S.C. sec. 2; Code Civ. Proc. sec. 1281.2.)  It is the court’s responsibility to determine whether the parties agreed to arbitrate the matter.  (9 U.S.C. sec. 4; Code Civ. Proc. sec. 1281.2.)  Defendant submitted that non-party, Gina Presta, plaintiff's daughter, and alleged agent, signed the arbitration agreement on behalf of plaintiff.  (Williams Decl. Exh. B.)  Defendant asserted that Ms. Presta was authorized to sign the arbitration agreement pursuant plaintiff's “Health Care Directive (Living Will/Health Care Power of Attorney)” (HCD.)  (Williams Decl. Exh. C.)  “The scope of a power of attorney depends on the language of the instrument, which is strictly construed. [Citation.]”  (Tran v. Farmers Group, Inc. (2002) 104 Cal.App.4th 1202, 1214.) 

            In pertinent part, the HCD’s “Power of Attorney For Health Care” provision stated:  “In the event that I have been determined to be incapacitated to provide informed consent for medical treatment and surgical and diagnostic procedures, I wish to designate as my agent for health care decisions: . . .”  (Williams Decl. Exh. C., page 1, Section III.)  The express language designating an agent contained a condition precedent.  Plaintiff was required to have been “determined to be incapacitated to provide informed consent for medical and surgical and diagnostic procedures…”.  Defendant’s motion failed to present any evidence to show that plaintiff was determined incapacitated to provide informed consent for medical and surgical and diagnostic procedures on November 13, 2020, prior to Ms. Presta signing the arbitration agreement.  Because Defendant did not submit evidence to show the condition precedent before Ms. Presta signed, there is insufficient showing that the HCD conferred the authority upon Presta to sign the arbitration agreement.  Because Presta was not authorized to act in any capacity under the HCD, there is insufficient showing that plaintiff, through any alleged agent, entered into an arbitration agreement.

            Defendant asserted that plaintiff was diagnosed with Alzheimer’s disease and dementia.  (Reply, pg. 7:1; Mendoza Decl. Exh. A.)  However, the document to support Defendant’s contention is merely an “Admission Record” which expressly stated: “Alzheimer’s Disease, Unspecified” and “Dementia in other diseases classified elsewhere, unspecified severity, without behavioral disturbance, psychotic disturbance, mood disturbance, and anxiety.” These entries are insufficient to show incapacity.  The Admission Record is not shown to be a medical diagnosis of plaintiff's condition.  Even if the Admission Record entries are diagnoses, the Admission Record does not show the disease’s severity to allow a determination of incapacity.  The Admission Record is insufficient to show the existence of the condition precedent of incapacity and the evidence is insufficient to meet the statutory grounds for determination of incapacity.

            Probate Code section 810 states:

            "The Legislature finds and declares the following:

(a) For purposes of this part, there shall exist a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions.

(b) A person who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions.

(c) A judicial determination that a person is totally without understanding, or is of unsound mind, or suffers from one or more mental deficits so substantial that, under the circumstances, the person should be deemed to lack the legal capacity to perform a specific act, should be based on evidence of a deficit in one or more of the person’s mental functions rather than on a diagnosis of a person’s mental or physical disorder."

            (Emphasis added.)     

            Probate Code section 811 states:

"(a) A determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act, including, but not limited to, the incapacity to contract, to make a conveyance, to marry, to make medical decisions, to execute wills, or to execute trusts, shall be supported by evidence of a deficit in at least one of the following mental functions, subject to subdivision (b), and evidence of a correlation between the deficit or deficits and the decision or acts in question:(1) Alertness and attention, including, but not limited to, the following:(A) Level of arousal or consciousness.(B) Orientation to time, place, person, and situation.(C) Ability to attend and concentrate.(2) Information processing, including, but not limited to, the following:(A) Short- and long-term memory, including immediate recall.(B) Ability to understand or communicate with others, either verbally or otherwise.(C) Recognition of familiar objects and familiar persons.(D) Ability to understand and appreciate quantities.(E) Ability to reason using abstract concepts.(F) Ability to plan, organize, and carry out actions in one's own rational self-interest.(G) Ability to reason logically.(3) Thought processes. Deficits in these functions may be demonstrated by the presence of the following:(A) Severely disorganized thinking.(B) Hallucinations.(C) Delusions.(D) Uncontrollable, repetitive, or intrusive thoughts.(4) Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual's circumstances.

(b) A deficit in the mental functions listed above may be considered only if the deficit, by itself or in combination with one or more other mental function deficits, significantly impairs the person's ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.

(c) In determining whether a person suffers from a deficit in mental function so substantial that the person lacks the capacity to do a certain act, the court may take into consideration the frequency, severity, and duration of periods of impairment.

(d) The mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act. . . " (Emphasis added.)

            The court finds that Garrison v. Superior Court (2005) 132 Cal.App.4th 253 (Garrison) is inapplicable to the instant action.  The Garrison case involved a durable power of attorney for health care that was “effective immediately upon the execution of this document.”  (Id. at pg. 258.)  As reviewed above, the HCD contained a condition precedent to the creation of the agency relationship between plaintiff and Ms. Presta.  Because the Garrison case did not involve a condition precedent like the one found in the instant HCD, the Garrison case is inapplicable to the court’s review. 

            Because Logan v. Country Oaks Partners, LLC, review granted September 26, 2022, S276545, is currently under review by our Supreme court, the court did not consider the Court of Appeal opinion in reviewing the instant motion to compel arbitration. 

            The parties further argued over whether the HCD authorized Ms. Presta to enter into an arbitration agreement due to the issue of whether entering into an arbitration agreement is a “healthcare decision.” 

            Because Defendant did not meet its initial burden on the gateway issue of the existence of an arbitration agreement, the burden did not shift to plaintiff to dispute the motion.  Plaintiff's Opposition arguments as to unconscionability and as to the fourth cause of action’s arbitrability were not considered. 

            The motion to compel arbitration is DENIED.

            Because the court denied the concurrent motion to compel arbitration, there is no good cause to stay the action.  The concurrent motion to stay the action is also DENIED.

            Finally, because the objection to the opposition on the grounds of technical defects did not cause prejudice to the moving party, as it was fully able to and, in fact, did file a reply on the merits, the court overrules the objection.  However, plaintiff's counsel is put on notice that further violations of the rules on formatting and page limitations may result in the issuance of monetary sanctions, refusal of the court to consider the papers, and/or both.

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.