Judge William A. Crowfoot, Case Number: 24AHCV00042, Date: 2024-08-02 Tentative Ruling

Judge: William A. Crowfoot, Case: 24AHCV00042, Date: 2024-08-02 Tentative Ruling

On January 8, 2024, this action was filed by Marilyn J. Mulkey (“Mulkey”), by and through her successor in interest/legal representative, Linda J. Simons (“Simons”), as well as Simons in her individual capacity, Cynthia J. Pereyda (“Pereyda”), Brenda J. Ontiveros (“Ontiveros”), and David S. Mulkey (“D. Mulkey”). The action is brought against defendant Santa Anita Convalescent Hospital & Retirement Center, Inc. dba Santa Anita Convalescent Hospital (“Defendant”) and arises from Mulkey’s admission and stay from October 4, 2022, to the date of her passing on May 25, 2023. The complaint contains 3 causes of action asserted by Mulkey (through Simons) for statutory elder abuse/neglect, negligence, violation of the Patient’s Bill of Rights/Health & Safety Code section 1430, and a wrongful death claim by Simons, Pereyda, Ontiveros, and D. Mulkey (collectively, “Heirs”).

On March 7, 2024, Defendant filed this petition to compel arbitration and stay action on the grounds that Mulkey executed an arbitration agreement.

In deciding a motion to compel arbitration, trial courts must decide first whether an enforceable arbitration agreement exists between the parties, and then determine the second gateway issue whether the claims are covered within the scope of the agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) The party seeking arbitration has the “burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842.) The trial court “sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.” (Id.) General principles of contract law govern whether parties have entered a binding agreement to arbitrate. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236; see also Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.)¿

“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.) Defendant attaches a copy of an Arbitration Agreement signed by Simons as Exhibit A to its motion. The Arbitration Agreement requires Mulkey to arbitrate any dispute “as to medical malpractice (that is, whether medical services rendered under this contract were necessary or unauthorized or were improperly, negligently or incompetently rendered).” However, the arbitration agreement also explicitly excludes a plaintiff’s ability to sue for violations of the California Resident’s Bill of Rights contained in Title 22, section 72527. Therefore, only Mulkey’s first and second causes of action for elder abuse and negligence are subject to arbitration. The third cause of action for violation of Health & Safety Code section 1430 is not subject to arbitration.

In opposition, Plaintiffs rely on Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835 and argue that even if Mulkey is a party to the Arbitration Agreement, the Heirs’ wrongful death claims, insofar as they are premised on elder abuse, are not subject to arbitration. Plaintiffs also argue that the Court should exercise its discretion and refuse to enforce the Arbitration Agreement pursuant to Code of Civil Procedure section 1281.2 (c) because allowing the Heirs’ wrongful death claims to proceed in court against Defendant while Mulkey’s claims are decided in arbitration would result in conflicting rulings of law and fact.

Plaintiffs’ arguments are incorrect for three reasons. First, in Ruiz v. Podolsky (2010) 50 Cal.4th 838, 849, the California Supreme Court held that Code of Civil Procedure section 1295 allows a patient to bind their nonsignatory heirs so that the heirs are required to arbitrate wrongful death claims premised on medical malpractice. Second, the Second Appellate District recently held in Holland v. Silverscreen Healthcare, Inc. (2024) 101 Cal.App.5th 1125, 1134, that an heir cannot bring their own wrongful death claim for elder abuse because such a claim belongs solely to the decedent or the decedent’s estate. Therefore, the Heirs’ wrongful death claims are necessarily premised on professional negligence and subject to arbitration under Ruiz. Although Plaintiffs attempt to minimize the Holland court’s opinion by claiming that it held only that the plaintiffs failed to plead their elder abuse claim with adequate specificity, this characterization ignores the Holland court’s conclusion that “if the [heirs] cannot maintain a claim for abuse under the Elder Abuse Act in their own name, it makes no sense for them to be able to pursue a claim for wrongful death based upon that same alleged abuse.” (Holland, supra, at p. 1134.) Therefore, without a viable claim for wrongful death based on elder abuse, the Heirs’ wrongful death claim is necessarily premised on professional negligence, and subject to arbitration under Ruiz.

Based on the foregoing, Mulkey’s first and second causes of action and the Heirs’ fourth cause of action for wrongful death are subject to arbitration. Although Mulkey’s third cause of action for violation of Health & Safety Code section 1430 cannot be arbitrated, the Court lacks discretion to deny the petition to compel arbitration because this non-arbitrable claim does not involve the nonsignatory Heirs. (Laswell v. AG Seal Beach, LLC (2010) 189 Cal.4th 1399, 1409.)

Defendant’s petition to compel arbitration is GRANTED in part. The First, Second, and Fourth Causes of Action are ordered to arbitration. This court action is STAYED as to the Third Cause of Action pending the completion of arbitration. The Court schedules a status conference for ________ at 8:30 a.m. in Department 3 of the Alhambra Courthouse. The parties are ordered to submit a joint statement providing a brief summary of the status of the arbitration no later than 5 court days before the date of the hearing.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.