Judge: Walter P. Schwarm, Case: 30-2021-01236966, Date: 2022-07-26 Tentative Ruling
Defendant’s (Garden Park Care Center, LLC) Motion to Compel Arbitration (Motion), filed on 3-17-22 under ROA No. 18, is DENIED.
Code of Civil Procedure section 1281.2, states, in part, “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such 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: [¶] (a) The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for the revocation of the agreement.”
Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1219, provides, “In Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 58 Cal.Rptr.2d 875, 926 P.2d 1061 (Rosenthal ), our Supreme Court set forth the procedure to be followed when a petitioner seeks to compel arbitration: ‘[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement—either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation [citation]—that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.’ [Citation.]” (Fn. 8 omitted.) Ruiz v. Moss Bros. Auto Group, Inc. (Ruiz) (2014) 232 Cal.App.4th 836, 846, states, “Properly understood, Condee holds that a petitioner is not required to authenticate an opposing party’s signature on an arbitration agreement as a preliminary matter or in the event the authenticity of the signature is not challenged. [Citations.]” (Italics in Ruiz.) Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060 (Espejo), provides, “In context, the brief discussion of Condee by the court in Toal regarding a petitioner's ultimate burden has no bearing on the question before us—whether defendants may meet their initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purportedly bearing the opposing party's signature. We conclude they may, in compliance with the requirements of section 1281.2 and California Rules of Court, rule 3.1330.” (Italics in Espejo.)
Chambers v. Crown Asset Management, LLC (2021) 71 Cal.App.5th 583, 590-591 (Chambers), states, “ ‘ “An ‘arbitration agreement is subject to the same rules of construction as any other contract . . . .’ ” [Citation.] For any contract, the parties' consent is a basic element. [Citation.] In addition, the parties' consent must be communicated to one another. [Citation.] Thus, a party's consent is essential to “the contractual underpinning of the arbitration procedure . . . .” [Citation.] “[T]he asserted absence of contractual consent renders arbitration, by its very definition, inapplicable to resolve the issue.” ’ [Citation.]”
Plaintiff’s (Luis Feruglio) Opposition to Defendant Garden Park Care Center’s Motion to Compel Arbitration (Opposition), filed on 7-12-22 under ROA No. 122, states, “Garden Park fails to meet its burden of proving that Luis Feruglio agreed to arbitration. Significantly, Mr. Feruglio was blind and relied on the assistance of his sister to review and sign any medical/legal forms.” (Opposition; 1:26-28.) This declaration states in part, “On or about 11/14/20 . . . at approximately ________ . . . I explained the Arbitration Agreement to Luis Feruglio . . . .” (Tran Decl., ¶ 1.)
Here, Defendant has met its initial burden of showing the existence of an agreement to arbitrate between Plaintiff and Defendant. (Tran Decl., Exhibit A.) In response, Plaintiff provides Plaintiff’s deposition testimony. (Kang Decl., ¶ 7 and Exhibit 3.) Plaintiff provided the following testimony at his deposition: (1) Plaintiff was “. . . legally blind . . .” during his stay at Defendant’s facility. (Kang Decl., ¶ 7 and Exhibit 3; Plaintiff’s Depo., 26:23-25.); (2) Plaintiff did not knowingly sign an arbitration agreement and did not knowingly give up his right to a jury trial. (Kang Decl., ¶ 7 and Exhibit 3; Plaintiff’s Depo., 25:20-26:3.); (3) Defendant did not explain to Plaintiff what an arbitration agreement was or that he would be giving up his right to a jury trial by signing a document. (Kang Decl., ¶ 7 and Exhibit 3; Plaintiff’s Depo., 26:7-13.); and (4) Plaintiff would not be able to read a document placed in front of him. (Kang Decl., ¶ 7 and Exhibit 3; Plaintiff’s Depo., 27:4-22.)
Plaintiff also provided the declaration of Amalia Netto, Plaintiff’s sister. This declaration states in part, “During the time of my brother’s stay at Garden Park Care Center (hereinafter referred to as “Defendant) from November 13, 2020 to December 1, 2020, my brother was legal blind and could not read any documents even if they were placed right in front of his eyes. Accordingly, my brother relied on me to review legal and medical forms prior to him signing them. It was my brother’s custom and habit not to sign any legal and medical forms unless I reviewed it first and explained what the forms stated. Indeed, I would have to guide my brother’s hand to the place on the document for him to sign. [¶]. I never reviewed any arbitration agreement for my brother to sign. Moreover, my brother never told me that he signed an Arbitration Agreement. Further, my brother never mentioned anything about anyone from Garden Park explaining to him what an arbitration agreement was.” (Netto Decl., ¶¶ 2 and 3.)
Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Petition to Compel Arbitration (Reply), filed on 7-19-22 under ROA No. 130, states, “. . . As Ms. Netto was not even present at Garden Park on November 19, 2020, her Declaration is purely speculative as to what did and/or did not happen that day, and therefore, it is not admissible or reliable evidence . . . .” (Reply; 3:3-5.)
Based on the totality of the evidence, the court finds that Plaintiff has not carried its burden, by a preponderance, of the evidence, of demonstrating that Plaintiff consented to the arbitration agreement. The declaration from Mr. Tran does not provide the details of what he explained to Plaintiff. Defendant has provided his deposition testimony regarding his blindness and the declaration from Ms. Netto to corroborate that Plaintiff was legally blind, and that Plaintiff relied on her to review legal and medical forms. Since the evidence is insufficient to show Plaintiff’s consent to arbitration, Defendant has not carried its burden of demonstrating the existence of an arbitration agreement between Plaintiff and Defendant.
Therefore, the court DENIES Defendant’s (Garden Park Care Center, LLC) Motion to Compel Arbitration filed on 3-17-22 under ROA No. 18.
Plaintiff is to give notice.