Judge: Teresa A. Beaudet, Case: 20STCV20624, Date: 2023-03-30 Tentative Ruling

Case Number: 20STCV20624    Hearing Date: March 30, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Griselda Nava (“Nava”), individually and as successor and heir of Florentina Lopez (“Lopez”), deceased (“Plaintiff”) filed this action on June 1, 2020 against Defendants Parkwest Rehabilitation Center, LLC (“Parkwest”) and Crystal Solorzano (“Solorzano”).

On June 12, 2020, Plaintiff filed the operative First Amended Complaint (“FAC”) against Parkwest, Solorzano, and Renew Health Group LLC (“Renew Health”). The FAC asserts causes of action for (1) elder abuse, (2) willful misconduct, (3) custodial negligence, and (4) wrongful death.

In the FAC, Plaintiff alleges that Lopez lived for the last approximately seven years of her life in the Parkwest Healthcare Center nursing home. (FAC, ¶ 3, p. 3.) Plaintiff alleges that during the midst of the Coronavirus pandemic, Parkwest “intentionally concealed when staff members had been exposed to the virus and directed them to continue treating patients while failing to provide any type of personal protective equipment…such as gloves or masks to any of its staff members,” and “direct[ed] staff members who had tested positive but had yet to exhibit symptoms to continue to work until symptoms did arise.” (FAC, ¶ 1.) Plaintiff alleges that “[a]s a result, multiple residents, including Florentina Lopez, were infected with the Coronavirus and died.” (FAC, ¶ 2.)

Parkwest and Solorzano (jointly, the “Parkwest Defendants”) petition for an order compelling Plaintiff to adjudicate in binding arbitration the controversy alleged in the FAC. Renew Health joins in the petition. Plaintiff opposes.

Request for Judicial Notice

The Court grants Plaintiff’s request for judicial notice as to Exhibit A and denies the request as to Exhibits B and C.

Legal Standard

In a petition to compel arbitration, the moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The burden then shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud, unconscionability, etc.). ((Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413-414.) 

Generally, on a petition to compel arbitration, the court must grant the petition unless it finds either (1) no written agreement to arbitrate exists; (2) the right to compel arbitration has been waived; (3) grounds exist for revocation of the agreement; or (4) litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. ((Code Civ. Proc., § 1281.2); (see Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218-219.)

“California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.” ((Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.) “This strong policy has resulted in the general rule that arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute.” ((Ibid. [internal quotations omitted].) This is in accord with the liberal federal policy favoring arbitration agreements under the Federal Arbitration Act (“FAA”), which governs all agreements to arbitrate in contracts “involving interstate commerce.” (9 U.S.C. section 2, et seq.; (Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1247.)

            Discussion

A.    Existence of Arbitration Agreement

The Parkwest Defendants provide evidence of a “Resident-Facility Arbitration Agreement” (the “Arbitration Agreement”) pertaining to Lopez. (Kanno Decl., ¶ 4, Ex. A; Pelaez Decl., ¶ 3, Ex. 1.) The Parkwest Defendants note that the Arbitration Agreement provides, inter alia, as follows:

“It is…understood that any dispute between Resident and Facility, including any action for injury or death arising from negligence, intentional tort and/or statutory causes of action (including all California Welfare and Institutions Code sections, but not including California Health & Safety Code§ 1430 and/or California Administrative Code § 72527), will be determined by submission to arbitration as provided by California law, and not by lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Resident and Facility, as parties to this agreement, are giving up their Constitutional rights to have a dispute under this agreement decided in a court of law before a jury, and instead are accepting the use of arbitration.” (Pelaez Decl., ¶ 3, Ex. 1, Art. 2.)

            The Arbitration Agreement also provides that “[i]t is understood that any dispute as to medical malpractice, that is, as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process, except as California law provides for judicial review of arbitration proceedings...” (Pelaez Decl., ¶ 3, Ex. 1, Art. 1.)

            The Parkwest Defendants assert that Nava signed the Arbitration Agreement as Lopez’s representative. The Arbitration Agreement contains a signature block for “Resident Representative’s Signature,” which contains a signature and the date of May 11, 2013. (Pelaez Decl., ¶ 3, Ex. 1.) The Parkway Defendants assert that Nava had authority to sign the Arbitration Agreement as her mother’s “durable power of attorney.” In support of this assertion, the Parkway Defendants provide a document entitled “Documentation of Appointment of Proxy Decision Maker By Statute,” which indicates that Nava will act as “Proxy” for Lopez. (Pelaez Decl., ¶ 4, Ex. 2.)

In the opposition, Plaintiff asserts that the Arbitration Agreement was not entered into between Lopez and Parkwest.

Plaintiff indicates that the “Facility Name” written in the bottom left-hand corner of the Arbitration Agreement is “The Center at Park West.” (Pelaez Decl., ¶ 3, Ex. 1.) As set forth above, Parkwest Rehabilitation Center LLC is the defendant named in Plaintiff’s FAC. However, as Plaintiff notes, the Arbitration Agreement does not name “Parkwest Rehabilitation Center LLC” as a party to the agreement. (Pelaez Decl., ¶ 3, Ex. 1.) Plaintiff notes that “[g]enerally speaking, one must be a party to an arbitration agreement to be bound by it. The strong public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement, and a party cannot be compelled to arbitrate a dispute that he has not agreed to resolve by arbitration.” ((Buckner v. Tamarin (2002) 98 Cal.App.4th 140, 142 [internal quotations omitted].)

Plaintiff also submits the Declaration of Griselda Nava, who states that in 2013, her mother, Florentina Lopez, was admitted for long term care at what was then called “the Center at Park West,” located at 6740 Wilbur Avenue, Reseda CA 91335.” (Nava Decl., ¶¶ 2-3.) Nava states that she “initially wrote checks to the Center at Park West for [her] mother’s care. In 2018, a staff member, Domingo, told [her] that the facility changed ownership, and he instructed [her] to start writing checks to Parkwest Rehabilitation.” (Nava Decl., ¶ 12.) Nava states that Parkwest Rehabilitation never requested that she sign any new documentation for her mother’s care and treatment. (Nava Decl., ¶ 13.)

Plaintiff also provides a copy of the results of a search for “Parkwest Rehabilitation Center, LLC” on the website for the California Secretary of State, downloaded on October 7, 2020. (Glovsky Decl., ¶ 2, Ex. A.) The California Secretary of State website lists a “Registration Date” of May 19, 2015 for Parkwest Rehabilitation Center, LLC. (Ibid.) As set forth above, the Arbitration Agreement was signed on May 11, 2013, before this registration date. (Pelaez Decl., ¶ 3, Ex. 1.)

In the reply, the Parkwest Defendants do not dispute that the Arbitration Agreement references “The Center at Park West.” However, they appear to assert that Parkwest Rehabilitation Center LLC is a successor to The Center at Parkwest. They note that the Arbitration Agreement provides that “[t]his Agreement is binding on all parties, including their personal representatives, successors, family members and heirs.” (Pelaez Decl., ¶ 3, Ex. 1, Art. 5.) However, the Parkwest Defendants do not provide any evidence that Parkwest Rehabilitation Center LLC is a successor to The Center at Parkwest.

Plaintiff also asserts that even if an arbitration agreement existed between Parkwest Rehabilitation Center, LLC and Lopez, it would not be enforceable because Nava did not have authority to sign the Arbitration Agreement on behalf of Lopez.

            As Plaintiff notes, the Parkway Defendants’ petition asserts that “[o]n February 9, 2013, Ms. Nava signed and authorized, a Durable Power of Attorney (‘DPOA’), in Colorado, for her mother, Ms. Lopez…” (Pet. at p. 6:20-21.) However, the Parkway Defendants do not provide a “Durable Power of Attorney” form. As set forth above, Exhibit 2 to Ms. Pelaez’s Declaration is a “Documentation of Appointment of Proxy Decision Maker By Statute.” (Pelaez Decl., ¶ 4, Ex. 2.) This document provides, inter alia, that “[a] Proxy can make decisions about personal and medical care, according to the patient’s wishes and goals, if known.” (Ibid.) The proxy document also provides that “[t]he Proxy has the authority to discuss the patient’s condition and care with all his or her healthcare providers, to examine medical records, and consent to or refuse any medical treatment, procedure, medication, or care…The Proxy may decide to stop, or not to start, tube feeding only when two doctors…agree that tube feeding would only prolong dying and is unlikely to help the patient recover.” (Ibid.) Plaintiff asserts that nothing in the proxy document allows a proxy to make legal decisions.

            Plaintiff also notes that the proxy document provides that “[i]f an individual does not have capacity to name a surrogate decision maker and has not designated a person to make healthcare decisions through a Medical Durable Power of Attorney or Designated Beneficiary Agreement, and does not have a Guardian, Colorado Law allows family members and close friends to select a Proxy Decision Maker through mutual agreement.” (Pelaez Decl., ¶ 4, Ex. 2.)

The bottom left hand-corner of the proxy document states “[p]ursuant to Colorado Revised Statute 15-18.5-101-105.” (Ibid.)[1]

            Plaintiff cites to Lujan v. Life Care Ctrs. of Am. (Colo.App. 2009) 222 P.3d 970, 972, where the Colorado Court of Appeals noted that “[s]ections 15-18.5-103 and 15-18.5-104, C.R.S. 2009, provide for the selection of a health care proxy to make medical treatment decisions and health care benefit decisions on behalf of an incapacitated patient.” The Lujan Court held that “a health care proxy is distinct from an attorney-in-fact acting under a power of attorney. Specifically, in the case of a health care proxy, the patient did not select the proxy, nor did the patient have any say in the powers to be granted to the proxy. Thus, in our view, the statutory authority afforded a health care proxy should be construed narrowly, unlike the broad powers presumed to be afforded under a medical durable power of attorney.” (Id. at p. 977.)

The Lujan Court also found that “although a health care proxy can make major life and death decisions, such authority does not necessarily imply the authority to agree to arbitrate. For the reasons set forth above, the power to make life and death decisions is clearly within the statutory authority provided to a health care proxy. §§ 15-14-505(7), 15-18.5-103(1). The decision to enter into an arbitration agreement is not.” ((Id. at p. 978.)

Plaintiff thus asserts that based on a reading of the proxy document as well as the holding in Lujan, the proxy did not grant Nava the power to agree to arbitration on behalf of Lopez. The Court agrees. In addition, the Parkway Defendants do not address the Lujan case in the reply.

            The Parkway Defendants also provide a document entitled “Appointment of Representative,” which indicates that Lopez appoints Nava “as my authorized representative to accompany, assist, and represent me in my application for, or redetermination of, Medi-Cal benefits.” (Pelaez Decl., ¶ 5, Ex. 3.) As Plaintiff notes, this case does not involve Lopez’s Medi-Cal benefits. In addition, as noted by Plaintiff, the Appointment of Representative document is signed and dated May 13, 2013, two days after the Arbitration Agreement was signed on May 11, 2013. (Pelaez Decl., ¶ 3, Ex. 1.)

            Based on the foregoing, the Court does not find that the Parkway Defendants have established the existence of the arbitration agreement between the Parkway Defendants and Plaintiff.

Renew Health’s Joinder

In its joinder, Renew Health asserts that pursuant to the “Arbitration Agreement attached to the Petition to Compel Arbitration,” the Court should order all causes of action against Renew Health be adjudicated in arbitration. Renew Health does not demonstrate that it is a party to the Arbitration Agreement attached to the Parkway Defendants’ petition. Accordingly, and for the reasons set forth above in connection with the Parkway Defendants’ petition, the Court denies Renew Health’s joinder.

Conclusion

For the foregoing reasons, the Parkway Defendants’ petition to compel arbitration is denied. Renew Health’s joinder in the petition is also denied.

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Plaintiff is ordered to provide notice of this Order.¿ 

DATED:  March 30, 2023                             

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court