Judge Stephen Morgan, Case 22AVCV00122 2022-09-15 Tentative Ruling

This is a wrongful death action. Plaintiff Anthony Campbell, by and through his successor-in-interest, Miles Campbell (“Decedent”); and Miles Campbell as an individual (“Campbell” and collectively “Plaintiffs”) present that Decedent was between the age of 18 to 64 with physical and mental limitations that restricted his ability to carry out normal activities and his ability to protect his rights including, but not limited to, physical disabilities. Plaintiffs allege that Decedent was admitted as an inpatient to a Defendant Premiere Rehabilitation & Wellness Center dba The Ellison John Transitional Center (“Premiere”)’s 24-hour health facility on or about October 16, 2020 due to minor chest pain and abnormal labs. Plaintiffs concede that Decedent had other health issues, such as a minor stroke, kidney disease, diabetes, and that such issues required (1) dialysis treatment and (2) surgery to have a catheter placed in his chest so that he could begin his dialysis treatment. Plaintiffs’ Complaint is predicated on the care and services Decedent received at Premiere’s center. Plaintiffs allege that Premiere; defendant Premiere Wellness of Lancaster GP, LLC (“Premiere LLC”); defendant Abby GL, LLC (“Abby”); defendant Shlomo Rechnitz (“Rechnitz”); defendant Jose Lynch (“Lynch”); defendant Ruby Grajeda-Olivar (“Grajeda-Olivar”); and defendant Shane Carlson (“Carlson” and collectively “Defendants”) failed to ensure that its staffing levels were sufficient at all times in order to supervise and protect its most vulnerable residents, including Decedent, highlighting Decedent’s treatment which included neglect. Plaintiffs believe that due to the neglect (i.e., failure to keep Decedent sage and provide him with the proper monitoring and supervision), Decedent suffered substantial injuries and death.

On June 23, 2022, Plaintiffs filed their Complaint alleging five (5) causes of action for: Negligence, Willful Misconduct, Statutory Dependent Adult Abuses/Reckless Neglect; Violation of California Health and Safety Code § 1430(b), and Wrongful Death.

On June 23, 2022, Defendants Premiere, Premiere LLC, Abby, Rechnitz, Lynch, Grajeda-Olivar, and Carlson (“Premiere Defendants”) filed this instant Petition to Compel Arbitration.

August 11, 2022, notice was filed that the Petition to Compel Arbitration was taken off calendar.

On August 12, 2022, Premiere Defendants filed their second Motion to Compel Arbitration.

Legal Standard – California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-72.) Cal. Code¿Civ.¿Proc.¿§ 1281.2 permits a party to file a motion to request that the Court order the parties to arbitrate a controversy. Under Cal. Code¿Civ.¿Proc.¿section 1281.2, 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:

(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. For purposes of this section, a pending court action or special proceeding includes an action or proceeding initiated by the party refusing to arbitrate after the petition to compel arbitration has been filed, but on or before the date of the hearing on the petition. This subdivision shall not be applicable to an agreement to arbitrate disputes as to the professional negligence of a health care provider made pursuant to Section 1295.

A second statute creates further impositions for arbitration for uninsured or underinsured motor vehicles: “The policy or an endorsement added thereto shall provide that the determination as to whether the insured shall be legally entitled to recover damages, and if so entitled, the amount thereof, shall be made by agreement between the insured and the insurer or, in the event of disagreement, by arbitration. The arbitration shall be conducted by a single neutral arbitrator. . .” (Cal. Ins. Code § 11580(f).)

Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration.¿(Id.)¿The Court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute.¿(Id., Cal. Code Civ. Proc. §1281.2 [“. . .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”].)¿Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.¿(Id.)¿¿¿

The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract.¿(Id.)¿There is no public policy favoring arbitration of disputes which the parties have not agreed to arbitrate.¿(Id.)¿¿

The party seeking to enforce the arbitration agreement bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence.¿(Giuliano v. Inland Empire Personnel, Inc.¿(2007) 149 Cal.App.4th 1276, 1284.)¿The trial court first decides whether an enforceable arbitration agreement exists between the parties and then¿determine whether the plaintiff’s claims are covered by the agreement.¿(Omar v. Ralphs Grocery Co.¿(2004) 118 Cal.App.4th 955, 961.)¿¿

The party opposing the petition to compel arbitration bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.¿(Giuliano v. Inland Empire Personnel, Inc.,¿supra,¿at¿1284.)¿In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.¿(Id.)

Application – Premiere Defendants seek to compel Plaintiffs to arbitration to resolve the action.

As a preliminary matter, the Court has noticed that Exhibit 3, though described the same way as the Exhibit 3 to the removed Petition to Compel, has some distinct differences. The Court takes judicial notice of the first petition to compel under Cal. Evid. Code § 452(d). (See Cal. Evid. Code § 452(d) [“Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. First, the original Exh. 3 has some issues thar render it inadmissible as evidence.”].) Under Cal. Code Civ. Proc. § 2003, an affidavit is a written declaration under oath. The first Declaration of Madyson Loera (“Loera”), attached to the removed Petition to Compel, was unsigned and ipso facto was not under oath. (See Petition to Compel Arbitration, Exh. 3.) However, in the newly submitted Motion to Compel, it is now signed. (See Motion to Compel Arbitration, Exh. 3.) No explanation is given for this difference in the moving papers. The declaration for both the Motion to Compel Arbitration and the Petition to Compel Arbitration states: “Attached hereto as Exhibit “3” is a true and correct copy of Madyson Loera’s Declaration regarding Anthony Campbell’s signature and authority to sign the Arbitration Agreement and her explanation that the agreement was not a condition of admission to the facility, which I obtained from Premiere Rehabilitation & Wellness Center Of Lancaster, LP who maintains the document in their ordinary course and scope of business.” (Exh. 3 to the Motion to Compel Arbitration and Exh. 3 to the Petition to Compel Arbitration.) The Reply provides that in the first petition a mistake was made whereby the attached a copy that did not include the Loera’s digital signature was uploaded.

Plaintiffs point out this discrepancy in their Opposition to the Motion to Compel Arbitration. Plaintiffs also highlight that they objected to the original Exhibit 3 as it was unsigned in its entirety. Plaintiff believes that Premiere Defendants are engaging in gamesmanship and creating issues of credibility by presenting conflicting declarations and objects to the new Exh. 3.

The Court errs on the side of caution and allows the new declaration of Loera to be considered.[1] Plaintiff’s objections 1 to 3 are OVERRULED.

The declaration, despite being resubmitted as signed, still presents issues. The Court notes that this declaration is designed as a form (i.e., so that Loera may just check off boxes and fill in blanks). Despite this, Loera has failed to fill in certain crucial sections. Loera did not check Decedent’s identity. (See Motion to Compel Arbitration, Exh. 3 at No. 11.) Additionally, the Court questions whether Loera, an admissions coordinator, has the authority to determine a resident’s capacity to understand based solely on “general questions.” (See Exh. 3, No. 4; see also Cal. Health & Safety Code § 1599.65(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.”] [emphasis added].)

As to other changes that Plaintiffs have objected to (See Opposition, Exh. C, No. 4), the minute changes such as changing "Decedent" to "Anthony Campbell,” changing “Plaintiff and Moving Defendant entered into a 7-page, Arbitration Agreement” to
Plaintiff and Defendants entered into an Arbitration Agreement,” and the like are minute and non-prejudicial. This objection is OVERRULED.

Plaintiffs object to the new Motion to Compel Arbitration. The case that Plaintiffs cite, O'Donnell v. Municipal Court (1989) 207 Cal.App.3d 714 is distinguished as the holding specifically discusses withdrawals of motions for new trials. (O’Donnell, supra, at 717 [A litigant's withdrawal of her motions to vacate a municipal court judgment and for a new trial was the equivalent of denial of the motions for purposes of the timeliness of her notice of appeal pursuant to Cal. Rules of Court, rule 123].) Plaintiffs’ objection number 5 is OVERRULED.

Premiere Defendants have presented objections to: (1) the Decl. of Jessica G. Wilson (“Wilson”); (2) the Decl. of Miles Campbell; (3) the Decl. of Enchantee Minor (“Minor”); (4) the Decl. of Steven H. Fugaro; and (5) objection to exhibits. This is a total of 46 objections. All objections are OVERRUELED, conditioned upon the submission of an affidavit by the custodian of records for exhibits regarding Decedent’s records.

Under both the Federal Arbitration Act (“FAA”) and California law, arbitration agreements are valid, irrevocable, and enforceable, except on such grounds that exist at law or equity for voiding a contract. (Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.) The party moving to compel arbitration must establish the existence of a written arbitration agreement between the parties. (Code of Civ. Proc. § 1281.2.) In ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute, and general principles of California contract law help guide the court in making this determination. (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.)

Once petitioners allege that an arbitration agreement exists, the burden shifts to respondents to prove the falsity of the purported agreement, and no evidence or authentication is required to find the arbitration agreement exists. (See Condee v. Longwood Mgt. Corp. (2001) 88 Cal.App.4th 215, 219.) However, if the existence of the agreement is challenged, "petitioner bears the burden of proving [the arbitration agreement's] existence by a preponderance of the evidence." (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413. See also Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1058-1060.)

“With respect to the moving party's burden to provide evidence of the existence of an agreement to arbitrate, it is generally sufficient for that party to present a copy of the contract to the court. (See Condee, supra, 88 Cal.App.4th 215, 218; see also Cal. Rules of Court, Rule 3.1330 [“A petition to compel arbitration or to stay proceedings pursuant to Code of Civil Procedure sections 1281.2 and 1281.4 must state, in addition to other required allegations, the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference”].) Once such a document is presented to the court, the burden shifts to the party opposing the motion to compel, who may present any challenges to the enforcement of the agreement and evidence in support of those challenges. [Citation]” (Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, 1160.)

Here, Premiere Defendants present evidence of an arbitration agreement entered into by Decedent and Premiere. The Court has looked at the arbitration agreement and certain aspects raise doubts as to Decedent’s competency:

The Court also notes that it is unclear whether a facility representative actually explained the Arbitration Agreement as (1) the facility representative signature was signed on October 23, 2020, 12 days prior to Decedent’s signature; and (2) somehow decedent was given this agreement on November 04, 2020, 43 days after his alleged admission.

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:

(d) The petitioner is a state or federally chartered depository institution that, on or after January 1, 2018, is seeking to apply a written agreement to arbitrate, contained in a contract consented to by a respondent consumer, to a purported contractual relationship with that respondent consumer that was created by the petitioner fraudulently without the respondent consumer’s consent and by unlawfully using the respondent consumer’s personal identifying information, as defined in Section 1798.92 of the Civil Code.

If the court determines that a written agreement to arbitrate a controversy exists, an order to arbitrate that controversy may not be refused on the ground that the petitioner’s contentions lack substantive merit.

If the court determines that there are other issues between the petitioner and the respondent which are not subject to arbitration and which are the subject of a pending action or special proceeding between the petitioner and the respondent and that a determination of such issues may make the arbitration unnecessary, the court may delay its order to arbitrate until the determination of such other issues or until such earlier time as the court specifies.

If the court determines that a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party as set forth under subdivision (c), the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding.

“ ‘Rescission is a proper remedy by means of which to avoid a contract which is the product of an unsound mind. Cal Civ. Code § 39, provides that: “a conveyance or other contract of a person of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescission. . .’ [Citations.]” (Hellman Commercial Trust & Sav. Bank v. Alden (1929) 206 Cal. 592, 605.)

The Court believes that grounds for recission exist as it likely that Decedent was of unsound mind, based on the evidence provided, but not entirely without understanding before his incapacity had been judicially determined.

As to Plaintiffs’ Opposition, the Court notes that Plaintiff has pointed out the same issues that concern the Court. However, Plaintiffs go one step further arguing that the signature is actually a mark. The Court notes that, should the signatures be a mark, the arbitration agreement requires a separate section to be signed by a witness. The Court also notes that the Opposition contains arguments about Decedent’s capacity to consent.

The Reply argues that Premiere Defendants have met their burden. However, Premiere Defendants do not address why Decedent did not sign on the correct line or why (1) Loera’s signature is dated differently from Decedent’s, and (2) Loera did not check Decedent’s identity.

Of note, the Reply argues that (1) the signature is Decedent’s and (2) Decedent had capacity. However, the signature provided as a comparison for proof that the arbitration agreement contains Decedent’s signature in Exhibit 4 does not look like the electronic signature in the arbitration agreement. In fact, Campbell states: “I am very familiar with my father’s usual signature. I do not recognize the signatures on the purported Arbitration Agreement as the signature of my father.” (Decl. Miles Campbell ¶ 10.) Premiere Defendants have no evidence to the contrary, stating that they did not have time to procure a handwriting expert, but that the signatures on Decedent’s POLST forms vary to a certain extent and the signatures are not so dissimilar from the Arbitration Agreement. The Court disagrees. Next, Premiere Defendants’ argument regarding capacity states that Decedent signed a Physician Orders for Life Sustaining Treatment (“POLST”) on October 22, 2020 (Exh. 4) and on November 10, 2020 (Exh. 5). Premiere Defendants concede that Dr. Siddiqui determined Decedent had capacity to make the decision and sign on October 22, 2020, but Dr. Siddiqui did not indicate on November 10, 2020 whether Mr. Campbell had capacity. (Reply 10:5-9.) In trying to argue for capacity Premiere Defendants have actually bolstered the Court’s reasoning – should the electronic signature on the arbitration agreement be Decedent’s, Decedent signed on November 04, 2020, only six days prior to when Dr. Siddiqui did not state that Decedent had capacity to make decisions. The Court also highlights that Premiere Defendants state that Exhibit 5 is still signed by Decedent, therefore, he was able to make determinations. This, too, bolster’s the Court’s conclusion. As mentioned, ante, and taken in conjunction with the new information provided, it appears from the evidence Decedent lacked the capacity to enter into a legal agreement, but was not entirely without understanding before his incapacity had been judicially determined.

The issues with the evidence concerning the arbitration agreement remain. The Court’s opinion is not swayed by the Reply.

[1] The Court believes that, rather than removing the Petition to Compel Arbitration, a Notice of Errata and Errata filing would have been more appropriate.