Judge: Virginia Keeny, Case: 2STCV21220, Date: 2022-12-12 Tentative Ruling
Case Number: 2STCV21220 Hearing Date: December 12, 2022 Dept: W
MARQUITA HAIRE
LOFLIN, et al. v. CREATIVE CARE, INC., et al.
defendant
farrah khaleghi’s and defendants CREATIVE CARE, INC., DR. MORTEZA KHALEGHI, and
DR. KAREN KHALEGHI’s motions to compel arbitration
Date of Hearing: December
12, 2022 Trial Date: None
set.
Department: W Case No.: 22STCV21220
BACKGROUND
On June 29, 2022, Plaintiffs Marquita
Haire Loflin, McKenzie Loflin, and the Estate of Johnathon Loflin, through his
successor in interest, McKenzie Loflin filed a complaint against Creative Care,
Inc. (“CC”), Morteza Khaleghi, Karen Khaleghi, and Farrah Khaleghi asserting
causes of action for (1) Wrongful Death, CCP §377.60; (2) Survival, CCP §377.30;
(3) Violations of California Elder Abuse and Dependent Adult Civil Protection
Act, Welf. & Inst. Code §15600, et seq.; (4) Fraudulent Misrepresentation (5)
Intentional Infliction of Emotional Distress; and (6) Professional Liability – Negligence.
Plaintiff named Cliffside Malibu, Inc. as Doe 1. On October 13, 2022, Plaintiff
dismissed their sixth cause of action against Doe 1.
On October 18, 2019, Johnathon “Johnny”
Loflin checked into a rehabilitation facility in Woodland Hills, California
owned and operated by Defendants CC, Morteza Khaleghi, and Karen Khaleghi, and
where Defendant Farrah Khaleghi was the Clinical Director. Plaintiffs allege late
at night on February 12, 2020, CC informed Johnny’s family that CC would be transferring
Johnny immediately against Johnny’s therapist, Johnny’s, and his family’s
wishes. Plaintiffs allege given CC’s professed expertise in mental health and
substance abuse treatment, as well as CC’s experience in treating Johnny and
knowledge of his psychiatric and addiction treatment needs, CC knew, or
reasonably should have known, that Johnny should not have been transferred. On
April 10, 2020, Johnny was found unresponsive in a bathroom at the facility
after ingesting fentanyl.
[Tentative] Ruling
I.
Defendant
Farrah Khaleghi’s Motion to Compel Arbitration is DENIED.
II.
Defendants
Creative Care, Inc., Dr. Morteza Khaleghi, and Dr. Karen Khaleghi’s Motion to
Compel Arbitration is DENIED.
DISCUSSION
I.
DEFENDANT FARRAH KHALEGHI’S MOTION TO
COMPEL ARBITRATION
Defendant Farrah Khaleghi moves for an
order compelling Plaintiffs to arbitrate the controversy alleged in the complaint
in binding arbitration and to stay the Superior Court matter will be heard.
Code of Civil Procedure section 1281.2
permits a party to file a petition to request that the court order the parties
to arbitrate a controversy. The trial court first determines whether an
enforceable arbitration agreement exists between the parties and then whether
the plaintiff’s claims are covered by the agreement. (Omar v.
Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) “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 Hosp. v. Blue Cross of Cal. (2000) 83 Cal.App.4th 677,
686.)
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
party opposing the petition to compel arbitration bears the burden of proving
by a preponderance of the evidence any fact necessary to its
defense. (Id.)
Plaintiffs do not dispute that Johnny
signed the agreement. The arbitration provision of the agreement states:
12.
BINDING ARBITRATION. The Client, any guarantor of the Client’s payment and the facility
agree that Binding Arbitration is the sole and the exclusive remedy against Creative
Care and its staff. Any such Binding Arbitration must be conducted in Los Angeles
County and the prevailing party, in addition to any other awards received, shall
be entitled to reasonable attorney’s fees and costs.
Plaintiffs argue, however, that the
arbitration clause (1) does not purport to bind Johnny’s heirs, successors, assigns,
or family members; and (2) is not signed by anyone except Johnny. Plaintiffs
contend Monschke v. Timber Ridge Assisted Living, LLC (2016) 244
Cal.App.4th 583, 585, is instructive.
In Monschke, decedent’s
daughter, acting as personal representative for the estate of her mother, filed
a wrongful death and elder abuse action against the defendant assisted living
center. (Monschke v. Timber Ridge Assisted Living, LLC (2016) 244
Cal.App.4th 583, 585.) The defendant petitioned to compel arbitration on the
ground plaintiff, on behalf of decedent, had signed an agreement with an
arbitration clause before enrolling decedent in defendant's facility. (Id.)
The arbitration agreement stated in relevant part: “’[Y]ou agree that any and
all claims and disputes arising from or related to this Agreement or to your
residency, care or services at Timber Ridge shall be resolved by submission to
neutral, binding arbitration .... This arbitration clause binds all parties to
this Agreement and their spouse, heirs, representatives, executors,
administrators, successors, and assigns, as applicable.’” (Ibid.) Because
decedent was not plaintiff's agent, plaintiff and decedent were not married,
and plaintiff is not a minor child, the court found the only parties to the
residency agreement were defendant and decedent. (Id. at p. 587.) The
court had relied on a Second District case, which held “[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.) “Under three circumstances,
however, someone can bind another person to a medical arbitration agreement
without that other person's consent. First, an agent can bind a principal.
[Citation.] Second, spouses can bind each other. [Citations.] And, third, a
parent can bind a minor child. [Citations.]” (Id.)
However, the California Supreme Court
has held that a patient seeking medical care can bind other persons to
arbitrate their claims for the patient’s wrongful death. In Ruiz v. Podolsky
(2010) 50 Cal.4th 838, the California Supreme Court held that “wrongful
death plaintiffs may be bound by agreements entered into by decedent that limit
the scope of the wrongful death action.” There, a patient had entered into an
arbitration agreement with a doctor, which provided that it was binding on
"' . . . all parties whose claims may arise out of or relate to treatment
or service provided by the physician including any spouse or heirs of the
patient . . . ." (Id. at pp. 841-842.) The provision also
specifically provided for arbitration of wrongful death claims. (Id. at
p. 842.) The Court then held that “section 1295, construed in light of its
purpose, is designed to permit patients who sign arbitration agreements to bind
their heirs in wrongful death actions." (Id. at p. 849.) It
concluded that "all wrongful death claimants are bound by arbitration
agreements entered into pursuant to section 1295, at least when, as here, the
language of the agreement manifests an intent to bind these claimants.” (Id.
at p. 841.)
In determining whether section 1295
applies, the court must look at “the basis of the claims as pleaded in the
complaint. If the primary basis for the wrongful death claim sounds in
professional negligence as defined by MICRA, then section 1295 applies. If, as
plaintiffs claim here, the primary basis is under the Elder Abuse and Dependent
Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (the Act),
then section 1295 does not apply and neither does Ruiz ’s exception to the
general rule that one who has not consented cannot be compelled to arbitrate.”
(Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th
835, 842.) “Section 1295 is part of California’s Medical Injury Compensation
Reform Act (MICRA). It created certain requirements for arbitration agreements
of “any dispute as to professional negligence of a health care provider.”
[Citation.] It defines “professional negligence” as “a negligent act or
omission to act by a health care provider in the rendering of professional
services, which act or omission is the proximate cause of a personal injury or
wrongful death, provided that such services are within the scope of services
for which the provider is licensed and which are not within any restriction
imposed by the licensing agency or licensed hospital.” [Citation.]
Plaintiffs argue their claims against Defendants
are not ones for “professional negligence” as defined in Section 1295 as
Plaintiffs allege intentional misconduct, neglect, and abuse throughout their complaint,
which go far beyond professional negligence.
Here, Plaintiffs plead wrongful death
by negligence. A review of the allegations incorporated into the wrongful death
claim demonstrates that the wrongful death claim arises from Defendants
depriving the decedent the goods and/or services necessary to avoid physical
harm or mental suffering, failing to provide medical care for his physical and
psychiatric health needs, and wrongfully transferring the decedent against the
advice of his therapist and the wishes of Johnny and his family, ultimately
resulting in his death. (Compl. ¶¶28-33.)
As the wrongful death claim is based on
neglect, Code of Civil Procedure section 1295 and the exception under Ruiz
do not apply. Even if the exception in Ruiz were to apply to the facts
here, the court finds the language of the agreement does not manifest an intent
to bind Plaintiffs. The express language of the subject arbitration clause
specifies that it is limited to the client and any guarantor of the client.
This is not like the broad language in Ruiz where the express language
included “any spouse or heirs of the patient and any children, whether born or
unborn, at the time of the occurrence giving rise to the claim.” (Ruiz, supra,
50 Cal.4th at p. 842.) Nor has Defendant established Plaintiffs are the
decedent’s agent, spouse, or parent of a minor child. (See Buckner, supra,
98 Cal.App.4th at p. 142.)
Plaintiffs also argue the court should
exercise its discretion under Code of Civil Procedure section 1281.2(c) and
deny the motion because there is a strong possibility of inconsistent rulings
if the survivorship claims were arbitrated while the wrongful death claim was
litigated. (Avila, supra, 20 Cal.App.5th at 845.) As
discussed above, Plaintiffs are not bound by the arbitration agreement. As the
wrongful death claim is based on the same facts as the survivorship claims,
there is a possibility of conflicting rulings on common issues of law and fact
as between Plaintiffs’ claims.
Given the possibility of conflicting
rulings, the court finds that no claims should be sent to arbitration pursuant
to Code of Civil Procedure section 1281.2(c).
Accordingly, Defendant Farrah Khaleghi’s Motion to Compel
Arbitration is DENIED.
II.
DEFENDANTS CREATIVE CARE, INC., DR.
MORTEZA KHALEGI, AND DR. KAREN KHALEGHIS’ MOTION TO COMPEL ARBITRATION
Based on the discussion above, the
court denies Defendants Creative Care,
Inc., Dr. Morteza Khaleghi, and Dr. Karen Khaleghi’s Motions to Compel
Arbitration. The court notes Defendants have cited several additional cases to
support their motion. However, each case differs from the facts in the instant
matter.
In Laswell
v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, an elderly patient was
admitted to a rehabilitation facility that was owned by one entity, operated by
another as licensee and had a management contract with a third entity. The
patient signed an arbitration agreement with only one of the entities upon
admission. The patient sued all three entities. The court found the two
nonsignatory entities were not third parties to the arbitration agreement, and
accordingly could be compelled to arbitration on the grounds of equitable estoppel.
Similarly, in Caballero v. Premier Care Simi Valley LLC (2021) 69
Cal.App.5th 512, 515, the plaintiff was the signatory to the arbitration
clause and the arbitration clause complied with Section 1295.
Hogan v.
Country Villa Health Services (2007) 148 Cal.App.4th 259, involved a daughter of
a decedent who had been designated power of attorney for health care. Here,
there are no allegations Johnny had designated his mother or sister in durable
power of attorney for his health care. Similarly, Gordon v. Atria Management
Co., LLC (2012) 70 Cal.App.5th 1020 involved an arbitration agreement
signed by a power of attorney.
In Baker
v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, the court had
found the agreements substantially complied with all of the material
requirements set forth in section 1295. Lastly, Herbert v. Superior Court
(1985) 169 Cal.App.3d 718 is inapplicable here as the court did not want to
split the wrongful death cause between those bound by the arbitration agreement
signed by the decedent and those who were not signatories to the arbitration
agreement. Here, neither Johnny’s mother nor sister is bound by the arbitration
agreement.
Accordingly,
Defendants Creative Care, Inc., Dr. Morteza Khaleghi, and Dr. Karen Khaleghi’s
Motions to Compel Arbitration is DENIED.