This case was last updated from Los Angeles County Superior Courts on 09/12/2021 at 08:46:12 (UTC).

TEVIS BARNESINDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO TOMMIE LEE BARNES (DECEASED), ET AL. VS GEM HEALTHCARE, LLC, ET AL.

Case Summary

On 12/04/2019 TEVIS BARNESINDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO TOMMIE LEE BARNES DECEASED filed a Personal Injury - Other Personal Injury lawsuit against GEM HEALTHCARE, LLC. This case was filed in Los Angeles County Superior Courts, Glendale Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE, EDWARD B. MORETON and WILLIAM A. CROWFOOT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******3918

  • Filing Date:

    12/04/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Courthouse:

    Glendale Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. SEIGLE

EDWARD B. MORETON

WILLIAM A. CROWFOOT

 

Party Details

Plaintiffs

DEJUAN BARNES

LAUREN BARNES

JEREMIAH BARNES BY AND THROUGH HIS CONSERVATOR ANGELA JACKSON INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO TOMMIE LEE BARNES DECEASED

KAHLIL BARNES

TEVIS BARNES

FREDDIE BARNES III

BRIANA BARNES

BANITA BARNES

Defendants

GEM HEALTHCARE LLC DBA GEM TRANSITIONAL CARE CENTER

GREGORY NORTHROP M.D.;

Attorney/Law Firm Details

Plaintiff Attorney

LEVIN STEWART

Defendant Attorneys

ASIRYAN OKSANNA

D'INCOGNITO MYRNA L

HEALEY JEFFREY SCOTT

 

Court Documents

Minute Order - MINUTE ORDER (POST-ARBITRATION STATUS CONFERENCE)

6/1/2021: Minute Order - MINUTE ORDER (POST-ARBITRATION STATUS CONFERENCE)

Notice of Ruling

6/1/2021: Notice of Ruling

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO COMPEL ARBITRATION FILED ON BEHALF OF DE...) OF 01/29/2021

1/29/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO COMPEL ARBITRATION FILED ON BEHALF OF DE...) OF 01/29/2021

Opposition - OPPOSITION TO PETITION TO COMPEL BINDING ARBITRATION

12/21/2020: Opposition - OPPOSITION TO PETITION TO COMPEL BINDING ARBITRATION

Reply - REPLY DEFENDANTS (GEM HEALTHCARE, LLC DBA GEM TRANSITIONAL CARE CENTER) REPLY BRIEF IN RESPONSE TO PLAINTIFFS UNTIMELY SECOND OPPOSITION TO THE PETITION TO COMPEL BINDING ARBITRATION AND TO

1/22/2021: Reply - REPLY DEFENDANTS (GEM HEALTHCARE, LLC DBA GEM TRANSITIONAL CARE CENTER) REPLY BRIEF IN RESPONSE TO PLAINTIFFS UNTIMELY SECOND OPPOSITION TO THE PETITION TO COMPEL BINDING ARBITRATION AND TO

Notice - NOTICE OF STATUS CONFERENCE

10/13/2020: Notice - NOTICE OF STATUS CONFERENCE

Proof of Service (not Summons and Complaint)

10/16/2020: Proof of Service (not Summons and Complaint)

Case Management Statement

10/16/2020: Case Management Statement

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW - COURT ORDER SETTING A STATUS CON...) OF 10/02/2020

10/2/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW - COURT ORDER SETTING A STATUS CON...) OF 10/02/2020

Order - ORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO INDEPENDENT CALENDAR (IC) COURT

6/24/2020: Order - ORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO INDEPENDENT CALENDAR (IC) COURT

Reply - REPLY BRIEF IN SUPPORT OF THE PETITION TO COMPEL BINDING ARBITRATION AND TO STAY THE SUPERIOR COURT MATTER

6/30/2020: Reply - REPLY BRIEF IN SUPPORT OF THE PETITION TO COMPEL BINDING ARBITRATION AND TO STAY THE SUPERIOR COURT MATTER

Notice - NOTICE NOTICE OF SECOND CONTINUANCE OF DEFENDANT GREGORY D. NORTHROP, M.D.'S DEMURRER TO PLAINTIFFS' COMPLAINT AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT

4/21/2020: Notice - NOTICE NOTICE OF SECOND CONTINUANCE OF DEFENDANT GREGORY D. NORTHROP, M.D.'S DEMURRER TO PLAINTIFFS' COMPLAINT AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT

Minute Order - MINUTE ORDER (COURT ORDER RE: COVID-19)

4/16/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: COVID-19)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURES AND HEARING DATES

12/12/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURES AND HEARING DATES

Summons - SUMMONS ON COMPLAINT

12/4/2019: Summons - SUMMONS ON COMPLAINT

Notice of Case Assignment - Unlimited Civil Case

12/4/2019: Notice of Case Assignment - Unlimited Civil Case

Declaration - DECLARATION SUCCESSORS IN INTEREST

12/4/2019: Declaration - DECLARATION SUCCESSORS IN INTEREST

Complaint

12/4/2019: Complaint

35 More Documents Available

 

Docket Entries

  • 11/02/2021
  • Hearing11/02/2021 at 08:30 AM in Department D at 600 East Broadway, Glendale, CA 91206; Order to Show Cause Re: Dismissal After Settlement

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  • 08/30/2021
  • Docketat 08:30 AM in Department D; Post-Arbitration Status Conference - Held

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  • 08/30/2021
  • Docketat 08:30 AM in Department D; Order to Show Cause Re: (Status of Settlement) - Held

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  • 08/30/2021
  • DocketNotice of Ruling; Filed by GEM HEALTHCARE, LLC (Defendant)

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  • 08/30/2021
  • DocketMinute Order ( (Post-Arbitration Status Conference; Order to Show Cause Re: S...)); Filed by Clerk

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  • 06/02/2021
  • Docketat 08:30 AM in Department 27, William A. Crowfoot, Presiding; Non-Jury Trial - Not Held - Advanced and Vacated

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  • 06/01/2021
  • Docketat 08:30 AM in Department D; Post-Arbitration Status Conference - Held - Continued

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  • 06/01/2021
  • DocketMinute Order ( (Post-Arbitration Status Conference)); Filed by Clerk

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  • 06/01/2021
  • DocketNotice of Ruling; Filed by GEM HEALTHCARE, LLC (Defendant)

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  • 05/19/2021
  • Docketat 10:00 AM in Department 27, William A. Crowfoot, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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48 More Docket Entries
  • 01/16/2020
  • DocketProof of Service by Substituted Service; Filed by TEVIS BARNES (Plaintiff)

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  • 12/23/2019
  • DocketSummons (on Complaint); Filed by TEVIS BARNES (Plaintiff)

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  • 12/12/2019
  • DocketPI General Order; Filed by Clerk

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  • 12/12/2019
  • DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates); Filed by Clerk

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  • 12/04/2019
  • DocketComplaint; Filed by TEVIS BARNES (Plaintiff); BANITA BARNES (Plaintiff); LAUREN BARNES (Plaintiff) et al.

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  • 12/04/2019
  • DocketCivil Case Cover Sheet; Filed by TEVIS BARNES (Plaintiff); BANITA BARNES (Plaintiff); LAUREN BARNES (Plaintiff) et al.

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  • 12/04/2019
  • DocketSummons (on Complaint); Filed by TEVIS BARNES (Plaintiff); BANITA BARNES (Plaintiff)

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  • 12/04/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 12/04/2019
  • DocketDeclaration (Successors in interest); Filed by TEVIS BARNES (Plaintiff); BANITA BARNES (Plaintiff); LAUREN BARNES (Plaintiff) et al.

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  • 03/05/2002
  • Docketat 09:00 AM in Department D; Case Management Conference

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Tentative Rulings

Case Number: 19STCV43918    Hearing Date: January 29, 2021    Dept: D

TENTATIVE RULING

Calendar: 10

Date: 1/29/2021

Case No.: 19STCV43918 Trial Date: None Set

Case Name: Barnes v. Gem Healthcare, LLC, et al.

PETITION TO COMPEL ARBITRATION

Moving Party: Defendant Gem Healthcare, LLC dba Gem Transitional Care Center

Responding Party: Plaintiffs Tevis Barnes, Banita Barnes, Lauren Barnes, Dejuan Barnes, et al.

MOTION TO COMPEL ABITRATION / STAY PROCEEDINGS TO COMPEL ARBITRATION

Written arbitration agreement (CCP §1281.2; CRC 371): Exhibit A

Demand and refusal to arbitrate (CCP §1281.2): Not mentioned

No waiver of right to compel arbitration (CCP §§1281.2(a); 1281.5): Not mentioned

No grounds for rescission of agreement to arbitrate (CCP §1281.2(b)): Not mentioned

Parties to the agreement are not parties to an action with a third party arising out of the same transaction, occurrence, or event with the possibility of conflicting rulings on a common issue of law or fact (CCP §1281.2(c))* [but does not apply to arbitration of professional negligence of health care providers made pursuant to CCP §1295): Argument in Opposition

FACTUAL BACKGROUND: Plaintiffs are the two surviving adult daughters and six grandchildren of decedent Tommie Lee Barnes. Plaintiffs allege that they are the heirs and successors in interest of decedent, and bring this action against defendant Gem Healthcare, LLC dba Gem Transitional Care Center, a skilled nursing facility in Pasadena, and defendant Gregory Northrop, M.D., a physician and surgeon.

Plaintiffs allege that on May 1, 2018, decedent, then 78 years old, was admitted to the Gem facility where decedent was supposed to receive occupational and physical therapy, rehab, and then discharge. On May 7, 2018, decedent was left unattended while complaining of feeling faint and vomiting, and lost consciousness in the bathroom, and fell, which resulted in a broken ankle. Decedent activated the emergency alert system in the bathroom, which system either malfunctioned or no staff member responded. The complaint alleges that decedent was discovered unconscious in the bathroom by her daughter Tevis Barnes, who had gone to the facility to visit her mother. It was later learned that decedent had been left by a nurse in her bathroom vomiting, growing weaker with the vomiting and faintness, resulting in the fall and broken ankle.

Decedent was then taken to Huntington Hospital, where she was attended by Dr. Northrup, who plaintiffs allege negligently applied an inferior quality cast to decedent’s fractured ankle, despite the fact that decedent was diabetic and at risk of injury from a cast, and applied the cast when decedent was on her bed, instead of applying it in the cast room or surgical station. The complaint alleges that the cast rubbed causing injury and resulting in the amputation of decedent’s fifth toe. The amputation was performed on July 11, 2019.

Decedent died on September 16, 2019. The complaint alleges that on March 18, 2019 (sic?), when plaintiffs received decedent’s death certificate, they discovered the cause of decedent’s death was “Septic Shock,” due to the injury to the ankle, followed by gangrene to her toe due to negligence in applying the cast by Dr. Northrop.

The complaint alleges causes of action for wrongful death, elder abuse, medical malpractice, negligence and violation of patient’s rights.

ANALYSIS:

CCP § 1281.2, governing orders to arbitrate controversies, provides, in pertinent 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 to the agreement refuses to arbitrate that 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 rescission of the agreement.”

There is a strong public policy in favor of arbitration of disputes and any doubts concerning the scope of arbitrable disputes should be resolved in favor of arbitration. Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 (“courts will ‘indulge every intendment to give effect to such proceedings.’”) (quotation omitted). “[A]rbitration agreements should be liberally interpreted, and arbitration should be ordered unless the agreement clearly does not apply to the dispute in question.” Vianna v. Doctors’ Management Co. (1994) 27 Cal.App.4th 1186, 1189, quoting Weeks v. Crow (1980) 113 Cal.App.3d 350, 353.

In this case, defendant has alleged the existence of a written arbitration agreement. Where a petition is opposed, the burden is on the party seeking to compel arbitration to establish the existence of a valid agreement to arbitrate. Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356. The determination of arbitrability is a legal question subject to de novo review. An appellate court will uphold the trial court's resolution of disputed facts if supported by substantial evidence. Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267.

It is held that because the existence of the agreement is a statutory prerequisite to granting a petition to compel arbitration, the petitioner bears the burden of proving its existence by a preponderance of the evidence. Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230, citing Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th at p. 413.

The moving papers fail to establish by admissible evidence the existence of an agreement, as the purported Arbitration Agreement is simply attached to a declaration of defendant’s counsel, who has no personal knowledge concerning the document or its preparation, but states that the document is an arbitration agreement pertaining to decedent, “which my office obtained from my client who maintains the document in its ordinary course and scope of business.” [Asiryan Decl., para. 2]. It is not clear why a representative of defendant did not submit a declaration authenticating this document and establishing a hearsay exception for its admissibility. The motion is denied on the ground the moving papers do not establish by admissible evidence the existence of an arbitration agreement.

The papers are a bit troubling here, as there are two sets of opposition and reply papers and moving party has objected to any consideration of the second opposition. The petition was originally filed and served by facsimile and email on April 17, 2020, for a hearing in Department 27 in July 2020.

Under CCP § 1290.6, a response to a petition to compel arbitration “shall be served and filed within 10 days of the service of the petition.”

Defendant does not dispute that the original opposition was timely served and filed on April 28, 2020.

However, defendant objects to consideration of the second opposition, filed on December 21, 2020, in advance of this continued hearing date, on the ground it would be untimely, and, on the ground that since it was filed after the filing of the reply papers, it would effectively constitute a sur-reply, as it responds to the original reply.

This is not an ideal situation, but in light of the fact that defendant has in fact served and filed a second reply addressing the second opposition on its merits, the court will consider both sets of oppositions and replies in making its determination on this motion.

While the original opposition did not argue that defendant had not met its burden to establish the existence of a valid arbitration agreement, the second opposition argues as much, and the court finds it likely that even in the absence of argument in the original opposition, the court would have recognized this flaw in the moving papers and either denied the petition outright or continued it to permit defendant the opportunity to submit evidence authenticating the subject agreement to arbitrate on this opposed petition to establish that such an agreement actually exists.

The objection by defendant to the second opposition in the second set of reply papers actually argues that plaintiffs did not authenticate the evidence they rely on in the second opposition, and which objection will be sustained.

Defendant in support of the second reply evidently attempts to respond to the argument to meet their burden of establishing the existence of an agreement to arbitrate by submitting the Declaration of Lemelyn Dela Cruz, LVN, who indicates that she is the Health Information Director at the Gem Transitional Care Center, who oversees all resident records and files, and states that the declarant is attaching copies of decedent’s records, including the arbitration agreement, as well as documents evidently to establish that decedent was competent at the time of her admission and when decedent executed the agreement. [Dela Cruz Decl., paras. 2, 3].

As an initial matter, this evidence should have been submitted with the moving papers, and it is widely recognized that evidence submitted for the first time in a reply should not be considered by the court, without giving the opposing party the opportunity to respond to it. See Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362.

In addition, the declarant does not state she has personal knowledge concerning decedent’s execution of the arbitration agreement, and it is not clear that the terse statements submitted are sufficient to establish a business records exception to the hearsay rule. Evidence Code sec. 1271 provides:

“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

(a) The writing was made in the regular course of business;

(b) The writing was made at or near the time of the act, condition, or event;

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

The court will hear argument concerning whether plaintiffs object to the submission of this evidence with the reply papers, and whether defendant can in fact submit evidence establishing a hearsay exception to

establish the existence of an agreement to arbitrate, as well as decedent’s competence at the time decedent executed the agreement.

The petition argues that decedent executed an arbitration agreement during decedent’s residency at defendant’s facility, and that the claims asserted against the moving defendant arise from, or are related to, the care and services rendered to plaintiff during the residency, so the arbitration agreement clearly applies here and should be enforced.

The Resident-Facility Arbitration Agreement relied upon states that the parties agree to arbitrate “any dispute as to medical malpractice,” and further provides:

“It is further understood that any dispute between Resident and GEM Transitional 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 the Resident (collectively referred to herein as "Facility"), including any action for injury or death arising from negligence, intentional tort and/or statutory causes of action (including all 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. Resident and Facility, as parties to this agreement, are giving up their Constitutional right to have a dispute under this Agreement decided in a court of law before a jury, and instead are accepting the use of binding arbitration.”

[Exhibit A, Article 1, Article 2].

Plaintiffs argue in opposition that none of the plaintiffs in this case signed an agreement to arbitrate or waive their right to a jury trial, and that the claims for wrongful death and elder neglect and abuse are not subject to the limitations of Section 1295, which govern only medical malpractice.

With respect to the elder abuse claim, plaintiffs rely on Fitzhugh v. Granada Healthcare and Rehabilitation Center, LLC (2007) 150 Cal.App.4th 469, in which the court of appeal affirmed the trial court’s denial of a petition to compel arbitration of an action for wrongful death, elder abuse, fraud and violations of the Patient’s Bill of Rights arising from the alleged mistreatment of plaintiffs’ decedent in a healthcare and rehabilitation center. Defendants had conceded that the agreement at issue expressly excluded claims for Violation of the Patient’s Bill of Rights but argued that the other causes of action should have been subject to the arbitration provision. In Fitzhugh, one agreement at issue expressly provided for binding arbitration of “any claim” arising out of the provision of services by the facility, including those “which allege violations of the Elder Abuse and Dependent Adult Civil Protection Act…” Fitzhugh, at 472. In connection with the Elder Abuse cause of action, the court of appeal observed that it, like the Patient’s Bill of Rights claim, could not have been subject to arbitration as a matter of public policy. Fitzhugh, at 476.

However, although not cited in the papers, the Second District has disagreed with Fitzhugh in this respect, and expressly held that Fitzhugh does not stand for the proposition that an Elder Abuse claim is per se not subject to arbitration, and that the trial court had erred in the case before it in refusing to compel arbitration of the arbitrable claims under CCP § 1282.2(c) where there was no situation involving third parties, but only separate causes of action. See Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399. In Laswell, the Second District noted in a footnote:

Because, as noted, the presence of a nonarbitrable cause of action does not trigger Code of Civil Procedure section 1281.2, subdivision (c), Laswell's additional contention that her elder abuse cause of action is nonarbitrable does not change our conclusion that the trial court lacked discretion to deny arbitration. Because we direct the trial court to grant the petition to compel arbitration, we note that the elder abuse cause of action may appropriately be resolved in arbitration. (Hogan v. Country Villa Health Services (2007) 148 Cal.App.4th 259, 263–269 [55 Cal. Rptr. 3d 450] [reversing order denying petition to compel arbitration because daughter had authority to bind mother to arbitration agreement for purposes of an elder abuse cause of action]; Garrison v. Superior Court, supra, 132 Cal.App.4th at pp. 257, 263–267 [daughter's execution of arbitration agreement required arbitration of damages causes of action, including one for elder abuse].) Indeed, judicial authority on the Elder Abuse and Dependent Adult Civil Protection Act does not “give any indication that the policies favoring the enforcement of arbitration agreements [citation] conflict with the policies aimed at ‘protect[ing] a particularly vulnerable portion of the population from gross mistreatment in the form of [elder] abuse and custodial neglect.’” (Hogan, at p. 269.) We do not agree with Laswell that Fitzburg v. Granada Healthcare & Rehabilitation Center, LLC (2007) 150 Cal.App.4th 469 [58 Cal.Rptr.3d 585] stands for the proposition that an elder abuse cause of action is nonarbitrable per se, as the appellate court's analysis in that case focused on the presence of third party plaintiffs, who were not subject to the arbitration agreement, and their individual causes of action for wrongful death, as well as noting that the successor claim for violation of Health and Safety Code section 1430, subdivision (b), was nonarbitrable. (Fitzhugh, at pp. 473–475.) Laswell, at 1409, n. 3.

With respect to the wrongful death cause of action, plaintiffs further rely on Daniels v. Sunrise Senior Living (2013) 212 Cal.App.4th 674, in which the court of appeal affirmed a trial court order refusing to compel arbitration of any arbitrable claims in an action brought against an elder care facility for elder abuse, various survivor claims and wrongful death. The court of appeal found that the trial court had appropriately found that the wrongful death claim was not subject to arbitration under the facility residency agreement, as the agreement signed by the adult daughter on behalf of her mother was not an agreement to which the daughter agreed to be personally bound, giving rise to the wrongful death claim being one made by a third party to the arbitration provision. The court of appeal also found that the trial court had not abused its discretion in refusing to compel arbitration on the ground there was a danger of inconsistent rulings if the survivor claims but not the wrongful death claim were ordered to arbitration. Daniels, at 686.

Defendant argues in the reply that the wrongful death cause of action is in fact subject to the Arbitration Agreement here under Ruiz v. Podolsky (2010) 50 Cal.4th 838, in which the California Supreme Court reversed a court of appeal order affirming the trial court’s denial of a physician’s petition to compel arbitration of wrongful death claims asserted by the adult children of a deceased patient. The arbitration agreement in that case provided for the arbitration of any malpractice claims, that it was the intention of the parties “that this agreement binds all parties whose claims may arise out of or relate to treatment or services provided by the physician, including any spouse or heirs of the patient and any children, whether born or unborn, at the time of the occurrence giving rise to the claim.” Ruiz, at 841-842. The agreement also specifically provided for arbitration of wrongful death and loss of consortium claims. The Court found in that situation, where the arbitration agreement complied with CCP § 1295, and included the above language, the trial court had erred in failing to enforce the arbitration provision, holding, "all wrongful death claimants are bound by arbitration agreements entered into pursuant to section 1295, at least when, as here, the language of the agreement manifests an intent to bind these claimants." Ruiz, at 841.

The Court in Ruiz discussed the split among the courts of appeal in connection with the issue of non-signatories to an arbitration agreement who later sought to pursue a wrongful death claim in their individual capacities, and concluded, “we are persuaded that section 1295, construed in light of its purpose, is designed to permit patients who sign arbitration agreements to bind their heirs in wrongful death actions.” Ruiz, at 849. The Court reasoned that it is clear that section 1295 was intended to include the arbitration of wrongful death claims according to its definitions of professional negligence of a health care provider, and that given the evident purposes of the statute, requiring potential wrongful death claimants to be signatories to an arbitration agreement would be “highly problematic,” including based on the matter of practicality, in effect that heirs are not identified until the time of death, and what the Court characterized as substantial privacy concerns, potentially “authorizing an intrusion into the patient’s confidential relationship” with a medical care provider, as well as the defeating of the purpose of the savings in in medical malpractice claims afforded by arbitration. Ruiz, at 849-852.

The Arbitration Agreement here provides that “This Agreement is binding on all parties, including the Resident’s representatives, executors, family members, and heirs.” [Ex. A, Article 4].

In Daniels, relied upon by plaintiffs, the court of appeal had found that the case before it was distinguishable from Ruiz on several grounds, including the following:

“The court in Bush v. Horizon West (2012) 205 Cal.App.4th 924, 140 Cal.Rptr.3d 258 recently concluded that the rationale of Ruiz did not apply to the plaintiff's claim for negligent infliction of emotional distress against the operators of a skilled nursing facility based on its alleged negligence in providing care and treatment for the plaintiff's mother. The mother asserted a claim against the facility for elder abuse, among other causes of action. ( Bush v. Horizon West, supra, at p. 926, 140 Cal.Rptr.3d 258.) The court distinguished Ruiz on the ground that the case before involved neither medical malpractice nor wrongful death. ( Bush v. Horizon West, supra, at pp. 929–930, 140 Cal.Rptr.3d 258.) Similarly here, Daniels's wrongful death claim is not based on medical malpractice, and the arbitration clause that Daniels signed as Barcenas's agent is not governed by section 1295.”

Daniels, at 684.

As argued in the reply, the facility in Daniels was not a licensed health care facility, and the court of appeal declined to extent Ruiz to arbitration agreements “entered into with a person other than a health care provider for claims other than medical malpractice,” and noted that arguments that the facility in that matter was an “extension of a health care facility,” were unavailing. Daniels, at 683-684.

Defendant argues here that this case is in fact brought against a licensed health care facility and includes a cause of action against the facility for medical negligence, which is based on facts which form the basis of the wrongful death cause of action. There is a medical malpractice cause of action included in the complaint, which is brought against all defendants, including the moving defendant. It would appear that in such a circumstance, the Ruiz decision would control, and the matter would subject to binding arbitration. Once the Court is satisfied that there exists an arbitration agreement, the matter would be appropriately subject to that agreement, and the entire complaint should be arbitrated.

However, the court is finds that the wrongful death cause of action should not be submitted to arbitration because the plaintiffs as individuals did not agree to arbitrate that claim, and because it is distinct from medical malpractice given that, but for the nursing home’s negligence, there would have been no medical malpractice.

Plaintiffs also argue that if the wrongful death claims are not subject to arbitration, the petition should be denied pursuant to CCP section 1281.2(c), under which the court may refuse to enforce an arbitration

agreement where it determines that

"(c) A party to the arbitration agreement is also a party to a pending court action or special proceeding 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 or fact."

Under this section, where the court makes this determination, it has specified options:

"If the court determines that a party to the arbitration is also a party to the litigation in a pending court action or special proceeding with a third party as set forth under subdivision (c) herein, the court (1) may refuse to enforce the arbitration agreement and may order intervention of joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding."

The standard of review of such determination is "abuse of discretion, which looks to see whether the trial court exceeded the bounds of reason." Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 349 (internal citation, quotations omitted).

In Fitzhugh, the court of appeal as one basis for its affirmance noted that although the wrongful death action in that matter was arguably subject to the arbitration provision, the trial court had acted within its discretion to refuse to have the matters proceed in two different forums under the circumstances. The court of appeal observed:

“Pursuant to Code of Civil Procedure section 1281.2, subdivision (c), “the court may, in its discretion, refuse to compel arbitration or may stay arbitration where ‘there is a possibility of conflicting rulings on a common issue of law or fact.’ ” (Henry v. Alcove Investment, Inc. (1991) 233 Cal. App. 3d 94, 100 [284 Cal. Rptr. 255].) While there is a strong public policy in favor of arbitration, there is an “equally compelling argument that the Legislature has also authorized trial courts to refuse enforcement of an arbitration agreement [or stay the arbitration] when, as here, there is a possibility of conflicting rulings. ([Code Civ. Proc.,] § 1281.2, subd. (c).)” (C. V. Starr & Co. v. Boston Reinsurance Corp. (1987) 190 Cal. App. 3d 1637, 1642 [236 Cal. Rptr. 167].) Defendants argue the court should have stayed the litigation pending resolution of any claims subject to arbitration because the litigation may not render the arbitration unnecessary. But that concern does not warrant reversal. We will not disturb the court's discretionary ruling unless it exceeded the bounds of reason. (Henry v. Alcove Investment, Inc., supra, at p. 101; see Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–479 [243 Cal. Rptr. 902, 749 P.2d 339].) If plaintiffs' claims proceed in different forums, there is a potential for inconsistent rulings on a common fact, such as whether any violations of the Patients Bill of Rights caused the decedent's injuries or her death. “The existence of this possibility of conflicting rulings on a common issue of fact is sufficient grounds for a stay under [Code of Civil Procedure] section 1281.2.” (Henry v. Alcove Investment, Inc., supra, at p. 101.)

Fitzhugh, at 475-476.

Likewise, in Daniels, as noted above, the court of appeal found that the trial court had not abused its discretion in refusing to compel arbitration on the ground there was a danger of inconsistent rulings if the survivor claims but not the wrongful death claim were ordered to arbitration, holding, “Indeed, if the survivor claims are ordered to arbitration but Daniels’ wrongful death claim was not, there is a possibility of inconsistent

rulings on the claims given that they are the are [sic] based on the allegation that Barcena received inadequate care at Sunrise.” Daniels, at 686. Similarly, the court in the instant case could refuse to order the wrongful death cause of action to arbitration, even if there were danger of inconsistent ruling as envisioned by CCP Section 1281.2(c)

Defendant argues in the reply that in this case the arbitration agreement at issue expressly states that:

“The parties agree that California Code of Civil Procedure § 1281.2(c) is excluded from this Agreement as the parties mutually desire to have any and all disputed outlined in Article 1 and 2 submitted to binding arbitration. The parties do not want any claims not subject to arbitration to impede any and all other claims from being ordered to binding arbitration.”

[Ex. A, Article 6]. The Agreement also provides, “Accordingly, this Agreement invokes the Federal Arbitration Act.” [Ex. A, Article 7].

This clause is an enforceable provision of the agreement. Defendant relies on Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal. 4th 376, in which the California Supreme Court recognized that where the FAA’s procedural rules are clearly invoked, application of CCP § 1281.2(c) is improper, stating:

“Our opinion does not preclude parties to an arbitration agreement to expressly designate that any arbitration proceeding should move forward under the FAA's procedural provisions rather than under state procedural law. We simply hold that the language of the arbitration clause in this case, calling for the application of the FAA “if it would be applicable,” should not be read to preclude the application of 1281.2(c), because it does not conflict with the applicable provisions of the FAA and does not undermine or frustrate the FAA's substantive policy favoring arbitration.”

Cronus, at 394.

Here, the language expressly excludes Section 1281.2(c), and could hardly be clearer.

Plaintiffs do not discuss this case law or cite to any authority under which such a term in the agreement would not be enforceable. Hence, the court may not exercise its discretion to refuse to enforce the arbitration provision under CCP § 1281.2 (c), as the parties clearly agreed the section does not apply. The court because it finds the wrongful death cause of action excluded, it orders the other causes of action to binding arbitration. Accordingly, the court cannot consider granting relief under CCP § 1281.2 (c).

Under CCP § 1281.4, where the court has ordered arbitration of a controversy, the court

"shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies."

Because arbitration is ordered, this matter, including the wrongful death cause of action, is stayed in its entirety pending resolution of the arbitration.

RULING:

Defendant’s (Gem Healthcare, LLC dba Gem Transitional Care Center) Petition to Compel Binding Arbitration and Stay the Superior Court Matter:

The Court in its discretion has considered both sets of oppositions and reply papers filed in connection with the petition.

Petition is DENIED. Defendant as moving party has failed to establish by a preponderance of the evidence that an agreement to arbitrate exists. The moving papers do not appropriately authenticate the purported Arbitration Agreement, and the declaration submitted in support of the second reply is (a) submitted for the first time in support of the reply papers, which has deprived plaintiffs of the opportunity to object or challenge the showing, and (b) fails to sufficiently establish that the subject records fall within an exception to the hearsay rule.

Or (if Court is satisfied that the agreement to arbitrate exists)

Petition is GRANTED in part.

The Court finds that as to the second through fifth causes of action of the Complaint, defendant has sufficiently established that an agreement to arbitrate those controversies exist due to the provision invoking the Federal Arbitration Act which specifically preempts CCP Section 1281.2(c). Also, the court finds that there is no showing that there has been any waiver of the right to compel arbitration, and no showing that the agreement has been rescinded or that grounds exist for rescission of the agreement. Plaintiffs Tevis Barnes, Banita Barnes, Lauren Barnes, Dejuan Barnes, Freddie Barnes III, Brianna Barnes, Kahlil Barnes, and Jeremiah Barnes, and defendant Gem Healthcare, LLC dba Gem Transitional Care Center are ordered to arbitrate those causes of action according to their Resident Facility Arbitration Agreement.

As to the first cause of action for wrongful death, the petition is DENIED. Plaintiffs as individuals did not agree to arbitrate these claims.

The court further orders under CCP § 1281.4 that this action shall be STAYED in its entirely until an arbitration has been had according to this order.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

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