Blanche Sherr vs. Cascade Living Group

Private arbitration is a matter of agreement between the parties and is accordingly governed by contract law. Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 313. Under both federal and state law, a threshold question for any petition to compel arbitration is whether there exists an agreement to arbitrate. Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396. Once the party seeking arbitration has met its burden proving the existence of a valid arbitration agreement, the 3

“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. If the court determines an agreement to arbitrate the controversy between the parties exists, the court “shall” compel arbitration. Code Civ. Proc., § 1281.2; 9 U.S.C., § 4. It is the petitioner that carries this initial burden of proving, by a preponderance of the evidence, the existence of a valid arbitration agreement. Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972. “‘[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’” AT&T Technologies v. Communications Workers (1986) 475 U.S. 643, 648; see Cronus Investments, Inc. v. Concierge Svcs. (2005) 35 Cal.4th 376, 384 85.

Discussion

Plaintiff disputes the existence of the arbitration agreement. Specifically, Plaintiff argues her son, Gregory Sherr, only held a Power of Attorney for Health Care at the time the arbitration agreement was signed, and because he did not have general authority over Plaintiff’s financial and legal affairs when he signed the arbitration agreement, no enforceable arbitration agreement exists. The Court agrees.

Here, Defendants submit evidence that on January 5, 2024, Gregory Sherr signed a voluntary arbitration agreement which included a 30-day revocation clause, acting as Plaintiff’s representative. Parker Decl., Ex. A, pp. 10-11. Defendants aver, “Greg Sherr signed the arbitration agreement on behalf of” Plaintiff. Parker Decl., ¶ 4. Defendants also submit a California Uniform Statutory Form Power of Attorney (“General POA”) granting Gregory Sherr general authority over Plaintiff’s financial and legal affairs, executed on February 1, 2025.

Scharg Decl., ¶ 4, Ex. B, Feb. 2025 Legal POA. That instrument grants Gregory Sherr authority over claims and litigation. Ibid. Finally, Defendant includes a “Power of Attorney for Health Care and Advance Health Care Directive” (“Health Care POA”) designating Gregory Sherr “as my agent, with my Power of Attorney to make health care decisions for me,” dated October 27, 2023. Scharg Decl., Ex. B, Oct. 2023 Healthcare POA.1

Defendants argue the February 1, 2025 General POA gave Gregory Sherr authority to agree to arbitrate. The Court cannot agree. At bar, Defendants have only provided evidence Gregory Sherr had power of attorney over health care decisions at the time he signed the arbitration agreement in January 2024. The Health Care POA authorized Gregory Sherr “to make all health care decisions” for Plaintiff. Scharg Decl., Ex. B, Oct. 2023 Healthcare POA. A “health care decision” “excludes an optional, separate arbitration agreement that does not accomplish health care objectives.”

Harrod v. Country Oaks Partners, LLC (2024) 15 Cal.5th 939, 965. “[T]he facility's owners and operators may not, therefore, rely on the agent's execution of that second agreement to compel arbitration of claims arising from the principal's alleged maltreatment that have been filed in court.” Id. at 947; see Theresa D. v. MBK Senior Living LLC (2021) 73 Cal.App.5th 18, 29-31. Therefore, at the time the arbitration agreement was signed on January 5,

1 Defendants rely on the February 1, 2025, POA to establish the existence of an arbitration agreement. Mot., 4:14-16 (“Plaintiff’s Power of Attorney, Greg Sherr, executed the Agreement on behalf of Plaintiff, which is squarely within the rights granted by the Power of Attorney executed on February 1, 2025.”). Defendants do not rely on the October 27, 2023, POA.

2024, Gregory Sherr only held authority to make “health care decisions” on behalf of Plaintiff; he did not hold authority over claims and litigation until February 1, 2025.

Defendant failed to establish the existence of a valid and binding arbitration agreement. As such, the motion is denied.

Plaintiff’s Motion for Trial Preference

Plaintiff Sherr’s motion for trial preference is granted.

Legal Standard

Under Code of Civil Procedure section 36, if a party to a civil action is over 70 years of age, that party may “petition the court for a preference, which the court shall grant” upon a finding that the party “has a substantial interest in the action as a whole” and the “health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” Code Civ. Proc. § 36(a)(1)-(2). In addition, a party who reaches 70 years of age during the pendency of an action may file and serve a motion for preference. Code Civ. Proc. § 36(c)(2). A motion for preference “may be granted only upon an affirmative showing by the moving party of good cause based on a declaration served and filed with the motion or application.” Cal. Rules of Court, rule 3.1335(b).

Whenever a litigant is 70 years old and qualifies for protection, Code of Civil Procedure § 36(a), “is mandatory and absolute in its application and does not allow a trial court to exercise the inherent or statutory general administrative authority it would otherwise have.” Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 692. In addition, the “[f]ailure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36. The trial court has no power to balance the differing interests of opposing litigants in applying the provision. The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations.” Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085-1086.

Evidentiary Objections

Defendants’ evidentiary objections are overruled in their entirety. See, e.g., Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534 (“a motion under subdivision (a) may be supported by nothing more than an attorney's declaration ‘based upon information and belief as to the medical diagnosis and prognosis of any party.’ ([Code Civ. Proc] § 36.5; accord Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 12:247.1, p. 12(I)-44 [attorney declaration under section 36.5 ‘can consist entirely of hearsay and conclusions’].”)

Analysis

Counsel Nguyen declares that Plaintiff was born on February 11, 1939 and is 87 years old. Nguyen Decl., ¶ 3. Plaintiff suffers from acute myeloid leukemia (“AML”), an aggressive blood cancer, and, per a note from Plaintiff’s doctor, the condition is terminal. Nguyen Decl., ¶ 6, Ex. 5

B. Nguyen also declares Plaintiff is extremely frail, that she suffers from anemia and immunosuppression as a result of the AML, and has hypertension. Nguyen Decl., ¶ 7. Plaintiff also takes a number of medications daily for her symptoms and various medical conditions. Nguyen Decl., ¶ 7. The medical records attached to the declaration state Plaintiff has “profound osteoporosis”, which affected the treatment plan for the injury underlying Plaintiff’s Complaint. Nguyen Decl., Ex. D. Plaintiff’s terminal diagnosis, her discontinued treatment, her chronic pain, her compounding fracture injury, and her declining condition raise genuine concerns about her ability to meaningfully participate in this litigation, including her ability to provide testimony, assist counsel, attend trial, and endure the trial process. See Pl. Reply, 4:1-23 and citations therein.

In addition, Nguyen asserts, and the procedural history of this action shows, that all defendants have been served with process or have appeared in the action. Nguyen Decl., ¶ 2.

At bar, the information and evidence offered in the Nguyen declaration and the exhibits to that declaration are sufficient to show Plaintiff’s age (87) and present medical condition. Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534; Code Civ. Proc. § 36(a). As the only plaintiff in the action, Plaintiff has a substantial interest in the action as a whole. Plaintiff has presented specific evidence to show she suffers from a number of medical illnesses which include AML, hypertension, and osteoporosis.

Nguyen Decl., Exs. B-D. The documented medical illnesses are significant and, indeed, one is considered terminal. Nguyen Decl., Exs. B-D. Defendants present no evidence to challenge the veracity of the medical information submitted by Plaintiff or which show there exists some circumstance under which a basis exists to require more detail. See Fox, 21 Cal.App.5th at 535. Under these circumstances, the Court finds Plaintiff has made a sufficient showing that she has a substantial interest in the action and her health is such that a preference is necessary to prevent prejudicing her interest in the litigation.

Code Civ. Proc. § 36(a)(1)-(2). The Court lacks discretion to dispense with the statutory mandates under the record presented. Miller v. Superior Court (1990) 221 Cal.App.3d 1200, 1208-1209.

Plaintiff’s motion is granted. Trial is set for September 15, 2026, at 09:00 (the maximum 120- day trial date is September 19, 2026). See Code Civ. Proc. § 36(f). Pretrial conference is set for September 4, 2026, at 11:00. Mandatory settlement conference is set for August 10, 2026, at 10:00. All matters are set in Department 6.

4. CU0002532 Brian Taylor vs. Rolling Green, Inc.

Defendant Rolling Green, Inc.’s (“Rolling Green”) motion to set aside or vacate entry of default is granted.

Legal Standard

Relief under Code of Civil Procedure section 473(b) is either discretionary or mandatory. A motion for mandatory relief must be made no more than six months after entry of judgment and be accompanied by an attorney’s sworn affidavit attesting to the attorney’s “mistake, inadvertence, surprise or neglect.” Code Civ. Proc. § 473(b). The attorney affidavit of fault must contain a “straight forward admission of fault.” State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610. But it need not contain an explanation of the reasons for 6