Judge: William A. Crowfoot, Case: 22STCV12362, Date: 2022-12-19 Tentative Ruling

Case Number: 22STCV12362    Hearing Date: December 19, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On April 12, 2022, Lia Ishkhanian (“Plaintiff”), individually and as the successor-in-interest of Haroutune Ishkhanian (“Decedent”) filed this wrongful death action against defendants Kaiser Foundation Hospitals (“Hospitals”), Kaiser Foundation Health Plan, Inc. (“Health Plan”), and Southern California Permanente Medical Group, Inc. (“SCPMG”) (collectively, “Defendants”), as well as Ara Ishkhanian as a nominal defendant. 

On October 26, 2022, Defendants filed this petition to compel arbitration and motion to stay action.  Defendants contend that Decedent elected to enroll as a Medicare Senior Advantage Health Plan member effective December 1, 2001, and remained enrolled until May 1, 2015, at which point he enrolled as a member of a Senior Advantage Medicare Medi-Cal Special Needs Plan; he remained enrolled as a Kaiser member until his death in 2021.  Decedent also had dual coverage under a Medicaid plan, but his Medicare Senior Advantage membership in Health Plan remained his primary coverage until his death. 

Defendants contend that the Medicare Senior Advantage Agreement requires binding arbitration of any claims by Decedent against them arising out of this membership or their duties, and expressly binds his heirs and successors to arbitration as well.  Defendants also contend that the action should be stayed pending completion of the arbitration proceedings. 

The motion is unopposed.

II.          LEGAL STANDARD

“A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.” (Code Civ. Proc., § 1281.) “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.” (Code Civ. Proc., § 1281.2.)

In a motion 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'l Securities Corp. (1996) 14 Cal.4th 394, 413-414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758.) Any challenges to the formation of the arbitration agreement should be considered before any order sending the parties to arbitration. The trier of fact weighs all evidence, including affidavits, declarations, documents, and, if applicable, oral testimony to determine whether the action goes to arbitration. (Hotels Nevada v. L.A. Pacific Ctr., Inc., supra, 144 Cal.App.4th at p. 758.)

III.        DISCUSSION

Defendants contend that Plaintiff’s claims are subject to binding arbitration pursuant to the provisions of the Kaiser Permanente’s Medicare Senior Advantage Plan and its Senior Advantage Medicare Medi-Cal Plan South (HMO SNP) Special Needs Plan (the “Agreement/EOC”), which Decedent became enrolled as a member effective December 1, 2001 and May 2015, and through the date of his death.  A copy of the Senior Advantage Agreement/EOC was provided to him at the time of his Medicare enrollment and annually thereafter, which states that Defendants and Decedent agree to arbitrate any claim between “member Parties” and “Kaiser Permanente Parties”  that “arises from or is related to an alleged violation of any duty incident to or arising out of or relating to this Evidence of Coverage or a member Party’s relationship to Kaiser Foundation Health Plan, Inc. (Health Plan), including any claim for medical or hospital malpractice (a claim that medical services or items were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered), for premises liability, or relating to the coverage for, or delivery of, services or items, irrespective of the legal theories upon which the claim is asserted.”  (Petition, Ex. A, p. 220-224.)  “Member parties” are defined in the agreement as including a member’s heir, relative, or personal representative, such as Plaintiff; “Kaiser Permamente Parties” include all three Defendants. 

The binding arbitration provision was disclosed to Decedent when he initially enrolled as a Medicare Senior Advantage member in 2001, immediately before the signature line on enrollment forms that he submitted to Kaiser.  (Petition, Ex. C.)  In addition, Kaiser provides separate notice of the arbitration provision to Senior Advantage enrollees when they enroll in a new Senior Advantage plan after 2008, and gives them the right and opportunity to opt-out of the arbitration program within 60 days of their enrollment effective date, by submitting an opt-out form, entitled “Your Right to Opt Out of Kaiser Permanente Senior Advantage’s Arbitration Program.” The Opt-Out notice was mailed to Mr. Ishkhanian on April 23, 2015 when he enrolled in Kaiser’s Medicare Special Needs plan. (Petition, ¶ 10 & Ex. E;  Covarrubio Decl. ¶ 5.) The Senior Advantage member may opt-out of the Binding Arbitration provision by completing the Arbitration Opt-Out Notice and returning it to the Office of Independent Administrator (“OIA”) in an enclosed pre-addressed envelope. (Id.) The opt-out notice and procedure was approved by CMS in 2007. (Petition, Decl. of Judy Tome, & Petition, Exs. F & G.)  The OIA’s records reflect that Mr. Ishkhanian did not submit an Arbitration Opt-Out Notice. (Petition, ¶ 10.)

Defendants submit sufficient evidence of the existence of an arbitration agreement with Plaintiff and Decedent.  (Ruiz v. Podolsky (2010) 50 Cal.4th 838, 851 [“[W]rongful death plaintiffs may be bound by [arbitration] agreements entered into by decedent.”].)  Accordingly, the unopposed motion to compel arbitration and stay the action is granted. 

IV.         CONCLUSION

Defendants’ motion to compel arbitration and stay action is GRANTED.  The Court sets a status conference re: arbitration for June 19, 2023 at 8:30 a.m. in Department 27. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.