Judge Thomas D. Long, Case Number: 24STCV02136, Date: 2024-12-05 Tentative Ruling

On July 16, 2024, Plaintiffs Parvin Hashemi (by and through her Successor-in-Interest, Sean Hash), Sean Hash, and Raymond Hash filed this action against Defendant Beverly Hills Rehabilitation Centre LLC.

On September 4, 2024, Defendant filed a motion to compel arbitration and stay the action.

When seeking to compel arbitration of a plaintiff’s claims, the defendant must allege the existence of an agreement to arbitrate. (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219.) “[T]he right to compel arbitration depends upon the existence of a valid agreement to arbitrate between the parties.” (Garrison v. Superior Court (2005) 132 Cal.App.4th 253, 263 (Garrison).) “The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement.” (Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 586 (Flores).)

The arbitration agreement identifies Hashemi as the Resident and states that all claims and disputes with Defendant will be determined by binding arbitration. (Flores Decl., Ex. A [“Arbitration Agreement”].) But Hashemi did not sign the agreement. Sean Hash signed it as the “Resident’s Authorized Agent.”

Defendant contends that Sean Hash “was also noted to be [Hashemi’s] healthcare agent in the attached Power of Attorney,” and the Arbitration Agreement provided, “By virtue of the Resident’s consent, instruction, and/or durable power of attorney, I hereby certify that I am authorized to act as the Resident’s agent in executing and delivering this Agreement.” (Motion at pp. 5-6.)

Sean Hash’s representations are not enough to create an agency relationship here. “Generally, a person who is not a party to an arbitration agreement is not bound by it.” (Flores, supra, 148 Cal.App.4th at p. 587.) However, a person acting as a patient’s agent who signs an arbitration agreement with a health care facility can bind the patient. (Ibid.; Garrison, supra, 132 Cal.App.4th at p. 264, citing Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 709.) Thus, whether the patient is bound to an arbitration agreement the patient did not sign depends on whether the person signing the agreement was acting as the patient’s agent. “Actual agency typically arises by express agreement.” (van’t Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 571.) Conduct by the agent alone is not sufficient to establish agency; “‘[w]ords or conduct by both principal and agent are necessary to create the relationship . . . .’” (Ibid.; Flores, supra, 148 Cal.App.4th at pp. 587-588 [“[A]n agency cannot be created by the conduct of the agent alone; rather conduct by the principal is essential to create the agency.”].)

The agency designation signed by Hashemi is not a broad “Healthcare Power of Attorney,” as characterized by Defendant. (See Flores Decl. ¶ 3 & Ex. B.) Instead, it designates Sean Hash as Hashemi’s “Healthcare Agent” who may “speak for me if healthcare decisions need to be made and I am unable to communicate. My agent will represent my interests to the best of his/her ability, considering what he/she knows about my goals and wishes as well as any preferences I have expressed in this document.” (Flores Decl., Ex. B at p. 1.) It grants Sean Hash authority to “begin to represent me when my physician says I am unable to make my own healthcare decisions.” (Id. at p. 2.) A “healthcare decision” within Sean Hash’s authority excludes the optional, separate Arbitration Agreement that does not accomplish health care objectives. (Harrod v. Country Oaks Partners, LLC (2024) 15 Cal.5th 939, 964, 966 (Harrod).)

Defendant further argues that Sean Hash filed the original complaint as Hashemi’s “Attorney-in-Fact,” and “[a]s decedent’s ‘Attorney in Fact’ Sean Hash had the power to initiate the instant action on decedent’s behalf, which is exactly what he did. As such, he also has the power to bind the decedent to the subject arbitration agreement.” (Reply at p. 2.) According to Defendant, “Had he not been her agent or ‘Attorney in Fact’ (not just a healthcare agent) the instant action would have been improperly filed as he would have lacked standing to bring the original complaint. Under Harrod a[n] ‘Attorney in Fact’ has the power to execute arbitration agreements.” (Ibid.)

The operative complaint is the FAC, which was filed by Parvin Hashemi (by and through her Successor-in-Interest, Sean Hash), Sean Hash, and Raymond Hash. Defendant stipulated to this amendment. (See July 16, 2024 Joint Stipulation.) Even when the original complaint was purportedly brought by Sean Hash as Hashemi’s “Attorney-in-Fact,” it is Defendant’s burden to show that signing the Arbitration Agreement was within Sean Hash’s authority. (See, e.g., 3 Witkin, Summary 11th Agency § 143 (2024) [“a third party who deals with an agent and knows of the agency is under a duty to ascertain its scope”].) Defendant has not done so.

Because there is no binding arbitration agreement with Parvin Hashemi and Raymond Hash, the motion is denied for those Plaintiffs’ claims.

The Arbitration Agreement “is binding on all parties,” and “[t]he Resident’s representatives . . . who execute this agreement below as the ‘Resident's Agent’ are doing so not only in their representative capacity for the Resident, but also in their individual capacity.” (Arbitration Agreement at p. 2, ¶ 7.) When Sean Hash signed the Arbitration Agreement, he “also acknowledge[d] that pursuant to the terms of this Agreement, any claims that [he] may assert in [his] personal capacity that arise out of or relate to the provision of or failure to provide any services (medical or otherwise) or goods by the Facility to the Resident or the admission agreement are governed by this Agreement.” (Arbitration Agreement at p. 4.)

Accordingly, Sean Hash’s claim for wrongful death (brought in his individual capacity) must be arbitrated.

C. The Court Will Stay this Action Pending Arbitration of Sean Hash’s Claims.

A court must grant a motion to compel arbitration unless a party to the arbitration agreement is also a party to a pending court action with a third party arising out of the same transaction and there is a possibility of conflicting rulings on a common issue of law or fact. (Code Civ. Proc., § 1281.2, subd. (c).) If the court does determine that subdivision (c) applies, the court 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 may stay arbitration pending the outcome of the court action. (Code Civ. Proc., § 1281.2.)

Sean Hash’s arbitrable claim for wrongful death is allegedly jointly with Raymond Hash and is based on the same facts as Hashemi’s non-arbitrable claims. The Court will therefore stay the remainder of the action while Sean Hash and Defendant arbitrate his individual claim.

The motion to compel arbitration is GRANTED IN PART. This entire action is STAYED pending the conclusion of the arbitration of Sean Hash’s individual claim.

A Status Conference re: Arbitration is scheduled for December 4, 2025 at 8:30 a.m. in Department 48 at Stanley Mosk Courthouse. Five court days before, the parties are to file a joint report stating the name of their retained arbitrator and the status of arbitration.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court