Judge William A. Crowfoot, Case Number: 24NNCV04215, Date: 2025-01-09 Tentative Ruling

Judge: William A. Crowfoot, Case: 24NNCV04215, Date: 2025-01-09 Tentative Ruling

On September 11, 2024, plaintiff Yester Akopyan (“Plaintiff”) filed this action for elder abuse/neglect, negligence, negligent hiring, supervision and retention, and violation of residents’ rights pursuant to Health & Safety Code section 1430(b) against defendant Leisure Healthcare, LLC (“Defendant”).

On October 28, 2024, Defendant filed this petition to compel binding arbitration and stay action.

“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 a 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 . . . .” (Code Civ. Proc., § 1281.2.) The right to compel arbitration exists unless the court finds that the right has been waived by a party’s conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact. (Code Civ. Proc., § 1281.2(a)-(c).) “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)

Defendant argues that Plaintiff agreed to arbitrate her claim pursuant to an Admissions Agreement and an Arbitration Agreement executed by Plaintiff’s daughter and “self-appointed agent”, Lucy Aslanian (“Aslanian”). (Motion, p. 3; Exs. A-B.) Defendant contends that the agreements were executed by Aslanian on Plaintiff’s behalf because Aslanian declared, under penalty of perjury, that she was authorized to do so.

While a person who is not a party to an arbitration agreement is generally not bound by it, an exception exists where a person authorizes another to enter into an arbitration agreement on their behalf as their agent. (Rogers v. Roseville SH, LLC (2022) 75 Cal.App.5th 1065, 1074.) Agency is either actual or ostensible. (Id, citing Valentine v. Plum Healthcare Group, LLC (2019) 37 Cal.App.5th 1076, 1086.) “Actual agency arises when the principal’s conduct causes the agent reasonably to believe that the principal consents to the agent’s act on behalf of the principal.” (Id., citing Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 643.) Ostensible agency arises when the principal’s conduct causes the third party reasonably to believe that the agent has the authority to act on the principal’s behalf. (Ibid.)

Regardless of whether agency is actual or ostensible, it cannot be created by the conduct of the agent alone. Rather, conduct by the principal is essential to create the agency. (Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 586.) The party seeking to compel arbitration does not meet its burden of proving the existence of an arbitration agreement when it does not present any evidence that the purported principal’s conduct caused the agent or the third party to believe that the agent had the authority to bind the principal. (Rogers, supra, 75 Cal.App.5th at p. 767.)

Here, Defendant presents no evidence of Plaintiff’s conduct which would substantiate the existence of an actual agency relationship. (See Valentine, supra, 37 Cal.App.5th at p. 1087.) Even if Aslanian declared under penalty of perjury that she was authorized by Plaintiff to execute those documents, an agent’s conduct (or belief), alone, is not sufficient to create an agency. There must be some evidence that “the belief was engendered by the conduct of the principal.” (Ibid.) “To hold otherwise would give any agent, not the authority, but the naked power to bind his principal to any contract within the general scope of his duties, however fantastic or detrimental to the principal’s interest such contract may be.” (Ibid., citing South Sacramento Drayage Co. v. Campbell Soup Co. (1963) 220 Cal.App.2d 851, 856-857.) Therefore, Aslanian’s declaration, standing alone, cannot create an agency. (Rogers, supra, 75 Cal.App.5th at p. 1075; see also Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, 301.)

The Court additionally notes that Aslanian’s declaration fails to state when Plaintiff purportedly requested that she make health care decisions on her behalf. The declaration, which is a form declaration, includes the following sentence: “On or about _____________________, the Resident requested that I make health care decisions on his/her behalf. I have been signing documents on behalf of the Resident and making health care decisions on behalf of the Resident at the Resident’s request since that time.” (Motion, Ex. B.) Aslanian did not fill out this blank and therefore Aslanian has not provided testimony of Plaintiff’s conduct authorizing her to act on her behalf.

Since Defendant fails to show that an arbitration agreement exists, Defendant’s motion to compel arbitration is DENIED.

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.