MARIA PATRICIA GARCIA, ET AL. VS BRIGHTON CARE CENTER, ET AL.

Tentative Rulings

Case Number: *******9727 Hearing Date: October 15, 2021 Dept: X

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT X

MOVING PARTIES: Defendants, Brighton Care Center, Brighton Convalescent, LLC, and 1836 Fair Oaks, L.P.

RESPONDING PARTY: Plaintiffs, Maria Patricia Garcia and Miriam Cadena, as individuals, and as successors in interest of Socorro Molina, deceased.

Motion to Compel Arbitration

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.

Tentative Ruling

Defendants' Motion to Compel Arbitration is DENIED

BACKGROUND

On March 10, 2019, Socorro Molina (“Decedent”) was admitted to Brighton Care Center (“Defendant”), a convalescent hospital, in Pasadena, California. Decedent required 24-hour care and treatment as a result of her health condition. On March 13, 2019, Decedent passed away, allegedly, as a result of Defendant’s failure to properly care for Decedent. Defendant allegedly failed to monitor Decedent for signs and symptoms of infection, blood sugar levels, and eating.

On March 9, 2020, Decedent’s daughters, Maria Patricia Garcia and Miriam Cadena, in their individual capacity, and as successors in interest of Decedent (“Plaintiffs”) initiated the present action, seeking damages as a result of Decedent’s death. Plaintiffs’ Complaint alleges the following causes of action: (1) Abuse and Neglect of a Dependent Adult in Violation of California Welfare and Institutions Code Section 15600 et seq., and (2) Wrongful Death.

On June 25, 2021, Defendants Brighton Care Center, Brighton Convalescent, LLC, and 1836 Fair Oaks, L.P. filed a Motion to Compel Arbitration. Defendants’ Motion is currently before the Court.

LEGAL STANDARD

Under both the Federal Arbitration Act and California law, arbitration agreements are valid, irrevocable, and enforceable, except on such grounds that exist at law or equity for voiding a contract. (Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.) “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.) In deciding whether to compel arbitration, judges identify the controversy and then decide whether it is within the scope of the arbitration provisions. (Titolo v. Cano (2007) 157 Cal.App.4th 310, 316.) “‘Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute.’” (California Correctional Peace Officers Ass'n v. State (2006) 142 Cal.App.4th 198, 205.)

DISCUSSION

Defendants, Brighton Care Center, Brighton Convalescent, LLC, and 1836 Fair Oaks, L.P. seek an Order from the Court compelling Plaintiffs to arbitration. In the event Defendants’ Motion is granted, Defendants additionally request that the Court stay the litigation pending the outcome of arbitration. Plaintiffs oppose Defendant’s Motion.

1. Existence of Arbitration Agreement

Defendants have demonstrated that an agreement to arbitrate the issues subject to the present litigation exists as between Defendants and Plaintiff Maria Patricia Garcia. However, Defendants have failed to demonstrate the same with respect to Plaintiff Miriam Cadena.

Here, Defendants produce a “Resident-Facility Arbitration Agreement” (“Agreement”) which has been signed by Plaintiff Maria Patricia Garcia as well as Defendants’ representative. (Drake Decl., ¶¶ 3-5, Ex. A, B, C.) The Agreement provides, in relevant part:

It is further understood that any dispute between Resident and Brighton Care Center, its owners, operators, officers, directors, administrators, staff, employees, agents, and any management company that provides services to the Facility that relates to the provision of care, treatment and services the Facility provides to Resident, including any action for injury or death arising from negligence, intentional tort and/or statutory causes of action (including California Welfare and Institutions Code sections), will be determined by submission to binding arbitration as provided by California law, and not by lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings.

(Drake Decl., Ex. A, B, C at Article 2.) By signing the Agreement, Plaintiff Maria Patricia Garcia has agreed to submit any dispute as to the “care, treatment and services” provided by Defendant to Decedent to binding arbitration. (Ibid.) This expressly includes claims for “injury or death arising from negligence, intentional tort and [sic] statutory causes of action [under the] California Welfare and Institutions Code”. (Ibid.) Accordingly, Plaintiff Maria Patricia Garcia’s agreement to arbitrate such controversies would undoubtedly include her present claims for violation of California Welfare and Institutions Code Section 15600 et seq., and Wrongful Death, which arise from Defendants’ alleged failure to properly care for Decedent while a patient within their facility. (Compl., ¶¶ 18-30.) Therefore, Defendants have demonstrated that an agreement to arbitrate the issues subject to the present litigation exists as between Defendants and Plaintiff Maria Patricia Garcia.

Conversely, Defendants have failed to demonstrate that an agreement to arbitrate exists as between Defendants and Plaintiff Miriam Cadena. Plaintiff Miriam Cadena is not a signatory to the Resident-Facility Arbitration Agreement. (Drake Decl., ¶¶ 3-5, Ex. A, B, C.) It follows Plaintiff Miriam Cadena cannot be compelled to arbitrate the present dispute unless Defendants identify an exception which would permit this Court to do so. (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 17 [“with limited exceptions[,] only parties to an arbitration agreement can enforce it or be required to arbitrate”].) Defendants assert a single argument in order to support their assertion that Plaintiff Miriam Cadena, a non-signatory to the Resident-Facility Arbitration Agreement, may be compelled to arbitration according to the terms of the Agreement. Defendants argue, the expressed terms of Article 4 of the Agreement, establish that Plaintiff Miriam Cadena, as a successor to Decedent, is bound to arbitrate her claims. Article 4 of the Agreement provides, in relevant part:

This Agreement is binding on all parties, including the Resident’s representatives, executors, family members, and heirs. The Resident’s representatives, agents, executors, family members, successors in interest and heirs who execute this Agreement below on the “Resident Representatives/Agent Signature” line are doing so not only in their representative capacity for the Resident, but also in their individual capacity and thus agree that any claims brought individually by the Resident’s representatives, agents, executors, family members, successors in interest and heirs are subject to binding arbitration.

(Drake Decl., Ex. A, B, C at Article 4, italics added.)

Following a review of the expressed terms above, the Court is unpersuaded Article 4 provides grounds to compel Plaintiff Miriam Cadena to arbitration. While Article 4 states that the Agreement is “binding on all parties, including the Resident’s representatives, executors, family members, and heirs”, the Agreement additionally states that only those “who execute this Agreement . . . on the ‘Resident Representative/Agent Signature’ line” agree to be bound to arbitration in their individual, as well as representative, capacities. (Drake Decl., Ex. A, B, C at Article 4.) As established above, the only individual who executed the Agreement was Plaintiff Maria Patricia Garcia. (Ibid.) Plaintiff Miriam Cadena’s signature is not found on the “Resident Representative/Agent Signature line” and, therefore, has not agreed to be bound to arbitrate her claims in an individual, and representative capacity. Accordingly, the Court finds Defendants’ argument unpersuasive.

Based on the foregoing, Defendants have demonstrated that an agreement to arbitrate the issues subject to the present litigation exists as between Defendants and Plaintiff Maria Patricia Garcia. However, Defendants have failed to demonstrate the same with respect to Plaintiff Miriam Cadena.

1. Defenses to Enforcement

Plaintiff Maria Patricia Garcia advances three (3) arguments in opposition to Defendants’ Motion. First, Plaintiff argues that, as Plaintiff Miriam Cadena cannot be compelled to arbitrate and will litigate her claims in Court, there is a possibility of conflicting rulings and, therefore, Defendants’ Motion should be denied pursuant to Code of Civil Procedure ; 1281.2, subdivision (c). Second, Plaintiff argues that the Agreement is unconscionable. Lastly, Plaintiff argues that Defendants have waived their right to arbitration. The Court will address Plaintiff’s arguments in turn.

Code of Civil Procedure ; 1281.2, subdivision (c) provides:

On a petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate the 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] party to the arbitration agreement is also a party to a pending court action . . . with a third-party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law and fact.

(Code Civ. Proc., ; 1281.2, subd. (c), italics added.) A party opposing a Motion to Compel Arbitration pursuant to Section 1281.2, subdivision (c) “does not bear an evidentiary burden to establish a likelihood of success or make any other showing regarding the viability of the claims and issues that create a possibility of conflicting rulings.” (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 972.) The party opposing the Motion must merely demonstrate that a “possibility” of conflicting rulings exists. (Ibid.)

Here, Plaintiff has demonstrated there would be a possibility of conflicting rulings in the event the Court granted Defendants’ Motion to Compel Arbitration. If the Court granted Defendants’ Motion to Compel Arbitration, the Motion would be granted only as to signatory Plaintiff Maria Patricia Garcia. Plaintiff Miriam Cadena would not be compelled to arbitrate, and would be permitted to litigate her claims—which are identical to those of her sister, Plaintiff Maria Patricia Garcia—in Court. Plaintiff Miriam Cadena is a third-party within the meaning of Section 1281.2, subdivision (c). (Thomas v. Westlake (2012) 204 Cal.App.4thh 605, 612 [“[a]s used in section 1281.2, subdivision (c), the term ‘third party’ means a party to the action that is not bound by . . . the arbitration agreement”].) In the event Plaintiff Maria Patricia Garcia arbitrated her claims, and, in contrast, Plaintiff Miriam Cadena litigated her claims before the Court, there is a possibility different fact-finders would come to different and conflicting conclusions with regards to identical claims which revolve around the same transaction or occurrence. Accordingly, Plaintiff has demonstrated a possibility of conflicting rulings in the event the Court granted Defendants’ Motion to Compel Arbitration. (See Birl v. Heritage, LLC (2009) 172 Cal.App.4th 1313, 1321 [holding there was a possibility of conflicting rulings on common issues of law and fact if trial court granted nursing facility's motion to compel arbitration of elder abuse and wrongful death action by patient’s family, thus supporting denial of arbitration, where arbitration agreement did not cover two nursing facilities, a hospital, physicians, or patient’s family members in their individual capacities because different triers of fact in different proceedings could come to different and conflicting conclusions as to which party or parties were liable].)

Accordingly, the Court finds Defendants’ Motion must be denied pursuant to Code of Civil Procedure ; 1281.2, subdivision (c).

As the Court has found merit to Plaintiff’s first argument, the Court will only briefly address the additional grounds asserted by Plaintiff in Opposition to Defendant’s Motion to Compel Arbitration.

As noted above, Plaintiff additionally argues that the Resident-Facility Arbitration Agreement is not enforceable because the Agreement is unconscionable. (See Armendariz v. Foundation Health Psychcare Servs. (2000) 24 Cal.4th 83, 113-127 [unconscionability is a valid defense to enforcement of an arbitration agreement].) In order for the defense of unconscionability to apply, Plaintiff must demonstrate that the Agreement was both procedurally and substantively unconscionable. (Crippen v. Central Valley RV Outlet. Inc. (2004) 124 Cal.App.4th 1159, 1165 [holding the party opposing a motion to compel arbitration has the burden to prove the existence of both procedural and substantive unconscionability].) “Procedural and substantive unconscionability must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.” (Armendariz, supra, 24 Cal.4th at p. 114.)

In the present case, Plaintiff argues that the Resident-Facility Arbitration Agreement was unconscionable because Plaintiff was unable to understand the terms of the Agreement because she was unable to read English, and the Agreement constituted a contract of adhesion because Plaintiff was told she was required to sign the contract in order for her mother to remain in Defendants’ facility. Both arguments asserted by Plaintiff constitute arguments of procedural unconscionability. (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795 [“[p]rocedural unconscionability pertains to the making of the agreement; it focuses on the oppression that arises from unequal bargaining power and the surprise to the weaker party that results from hidden terms or the lack of informed choice”].) Plaintiff has failed to make any argument with regard to the possible substantive unconscionability associated with the specific terms of the Agreement. (Id. at p. 797 [“[s]ubstantive unconscionability arise when a contract imposes unduly harsh, oppressive, or one-sided terms”].) Accordingly, as Plaintiff has failed to proffer any argument or evidence with regard to substantive unconscionability, Plaintiff’s argument is insufficient to warrant denial of Defendants’ Motion.

Lastly, Plaintiff argues that Defendants have waived their right to arbitration. “While in general[,] abirritation is a highly favored means of settling disputes [citation], it is beyond dispute a trial court may deny a petition to compel arbitration if it finds the moving party has waived that right.” (Berman v. Health Net (2000) 80 Cal.App.4th 1359, 1363.) “The question of waiver is one of fact[.]” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 983.) There is no single test employed to determine whether waiver has occurred. (Davis v. Continental Airlines, Inc. (1997) 59 Cal.App.4th 205, 211-212.) However, a Court may consider the following factors: “(1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether ‘the litigation machinery has been substantially invoked’ and the parties ‘were well into preparation of a lawsuit’ before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) ‘whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place’; and (6) whether the delay ‘affected, misled, or prejudiced’ the opposing party.’” (Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196, quoting Sobremonte v. Superior Court (1998) 61 CalApp.4th 980, 992.)

Here, the Court is unpersuaded that Defendants waived the right to compel arbitration. The Court would like to note that Plaintiff is correct in arguing that Defendants did not file the present Motion until fifteen (15) months after the Complaint was filed. Additionally, Plaintiffs are correct that Defendants have propounded written discovery upon Plaintiffs—including Form Interrogatories, Special Interrogatories, and Requests for Production—and have also subpoenaed records from various medical facilities. (Seuthe Decl., ¶¶ 5-6.) However, even considering these points, the Court is not persuaded Defendants have waived the right to compel arbitration. Defendants have not filed the present Motion on the eve of trial. Rather, Defendants filed the present Motion eight (8) months before the trial date. Further, Defendants have not invoked the machinery of litigation as Defendants have not engaged in any law and motion practice, but have only filed the present Motion and an Answer. Additionally, while Defendants have engaged in discovery, a portion of the discovery procedures employed are permitting during arbitration and are not specific to litigation. (Code Civ. Proc., ; 1282.6 [permitting subpoenas in arbitration discovery].) Defendants have not filed a counterclaim in this action. Based on the totality of the relevant facts, the Court is not persuaded Defendants have abandoned their right to compel arbitration.

Based on the foregoing, Defendants' Motion to Compel Arbitration is DENIED.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: October 15, 2021

_____________________________

Joel L. Lofton

Judge of the Superior Court