Judge: Shirley K. Watkins, Case: 22VECV02010, Date: 2023-04-25 Tentative Ruling

Case Number: 22VECV02010    Hearing Date: April 25, 2023    Dept: T

22VECV02010 VERA HOOS vs NORTHRIDGE CARE CENTER, INC.

[TENTATIVE] ORDER: Defendant Northridge Care Center, Inc.’s Motion to Compel Arbitration and Motion to Stay the Action are DENIED pursuant Code of Civil Procedure sections 1008(a), 1008(b), and 1281.7

Introduction

            Defendant Northridge Care Center, Inc. (Defendant) separately moved to compel arbitration and stay Plaintiff Vera Hoos’ (Plaintiff) action.  The instant motions were filed on March 15, 2023.  On February 23, 2023, the Court heard and denied Defendant’s separate motions to compel arbitration and motion to stay Plaintiff’s action.  The prior motions were filed on January 3, 2023. 

            Procedure

            Plaintiff objected to the instant motions and argued that they are actually motions under Code of Civil Procedure section 1008 (Section 1008.)  Specifically, Plaintiff asserted that the instant motions are motions for reconsideration (Code Civ. Proc. sec. 1008(a).)  Section 1008 authorizes two separate types of motions: motion for reconsideration and motion for renewal.  (Code Civ. Proc. sec. 1008(a) and (b).)  The main differences between the two types of motions are that renewal motions have no time limit and can only be filed by the moving party of the prior motion.  Reconsideration motions have a 10-day time limit and can only be made by the losing party on the prior motion.  The name on the motion is not controlling and the requirements under Section 1008 apply to any motion that asks the judge to decide the same matter previously ruled on.  (Lennar Homes of California, Inc. v. Stephens (2014) 232 Cal.App.4th 673, 681-682.)  In that Defendant was both the moving party and losing party on the prior motions, the Court exercises its discretion and reviews the matter under Sections 1008(a) and 1008(b). 

            Like Reconsideration Motions, Renewal Motions require the moving party to show “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”  (Code Civ. Proc. sec. 1008(b).)  Renewal motions also require a showing of reasonable diligence – a satisfactory explanation for failing to present the information at the first hearing.  (California Correctional Peace Officers Association v. Virga (2010) 181 Cal.App.4th 30, 45-47.)  An affidavit showing these requirements is mandatory and jurisdictional.  (Code Civ. Proc. sec. 1008(b).)  Defendant did not submit an affidavit in compliance with these jurisdictional requirements.  Failure to comply with these jurisdictional requirements mandate that the Court deny the Renewal Motions.

            Even if the Court were to consider the two motions as Reconsideration Motions under Code of Civil Procedure, section 1008(a), the same defects reviewed above would apply.  The Reconsideration Motions would also be untimely.  The Notice of the Court’s February 23, 2023, was mailed by the Clerk on the same day.  The 10-day time limit for Reconsideration Motions is extended by five days due to the mailing.  The deadline to file Reconsideration Motions expired on March 10, 2023.  The instant motions would have been untimely filed on March 15, 2023.  Due to the failure to submit an affidavit and comply with the deadline for Reconsideration Motions, the motions, if considered as Reconsideration Motions, would be denied. 

            Defendant argued that the two motions were re-filed based upon Attorney Marissa Mendoza making her intention known at the prior hearing to continue to pursue a Petition to Compel Arbitration in open Court and the Court’s "invitation" to file another Petition if and when Defendant was able to make the requisite capacity showing.  (Reply’s Decl. of Marissa Mendoza, par. 2.)  However, Counsel’s stated intention and the Court’s offhand response (there is no official transcript of those proceedings) to Counsel’s stance are not sufficient grounds to usurp the procedural requirements in the Code of Civil Procedure.  Any "discussio between Counsel and the Court are not “above the law.”  Even so, the court would not have granted moving parties the right to file a further motion without following the law, nor have moving parties so suggested.  The court issued no order allowing a further motion without complying with statutory requirements of a renewal motion or a reconsideration motion.  The court did not and could not pre-judge at the hearing on February 23, 2023, whether a subsequently filed motion would be timely or proper.

            The instant motions to compel arbitration and stay the action are DENIED under Code of Civil Procedure sections 1008(a) and 1008(b).         

            Discussion re CCP sec.1281.7 (Petition filed in lieu of Answer)

            Defendant’s Reply argued that the instant motion to compel (as opposed to the concurrent motion to stay) was filed under Code of Civil Procedure section 1281.7.  The statute allows a defendant to file a “petition” “in lieu of filing an answer to a complaint.”  The Court noted that the statute was not cited as grounds to file the instant “petition to compel arbitration” and titling the instant “petition” as a “petition to compel arbitration” did not give proper notice as to this statutory ground for the “petition.”  Despite these defects in proper notice, the Court considered the matter under Code of Civil Procedure section 1281.7.  In support of the petition, Defendant added the Plaintiff’s medical records to assert that Plaintiff was diagnosed with Alzheimer’s in or around 2017 and was the principal diagnosis for her admission in 2020 to Defendant’s facility.  Further, the records showed that Plaintiff had “nonsensible speech” from October 2019 through August 2020.  Plaintiff’s March 5, 2020 medical note also stated that she “has no real understanding of cognitive abilities.  They have to feed her.  She is dependent on all activities of daily life.”     (Decl. of Karen Madrid, Exh. F.)  On these facts, Defendant argued that Plaintiff was “determined” to be incapacitated.  However, as previously cited by the Court, the Probate Code expressly provides that there is rebuttable presumption that “all persons have the capacity to make decisions and to be responsible for their acts.”  (Prob. Code sec. 810(a).)  The additional medical records show a diagnosis of a mental or physical disorder and appear to show significant impairment (i.e., impairment of the person's ability to understand and appreciate the consequences of their actions with regard to the type of act or decision in question (Prob. Code sec. 811(b).)  However, Plaintiff HCD’s “Power of Attorney For Health Care” is silent as to who can determine Plaintiff’s incapacity and/or how her incapacity is to be determined.  The Court notes that Advanced Health Care Directives, in general, are effective and exercisable free of judicial intervention or court approval.  (Prob. Code sec. 4750(a) & (b).)  However, Plaintiff HCD’s condition precedent and silence as to the decision-maker and/or procedure in determining incapacity makes the provision and grant of authority vague.   Because Plaintiff HCD’s Power of Attorney provision is vague, it is insufficiently shown that Plaintiff’s daughter had the authority to bind Plaintiff to the arbitration agreement on November 13, 2020. 

            The instant motion to compel arbitration and stay the action is DENIED under Code of Civil Procedure sections 1271.8.