Jackie Mikaio v. Kaiser Foundation Health Plan, Inc. et al.

PETITION TO COMPEL ARBITRATION

The California Department of Health Care Service’s (DHCS) Health Care Options (HCO) department handles enrollment through a streamlined federal process permitting online, phone, mail, and in-person enrollment without requiring signed forms in many cases. (See generally Cal. Code Regs., tit. 22, §§ 53810, 53882, 53883.) According to a declaration by (and attachments to) Kaiser’s executive director of Medi-Cal contract management, Kaiser contracts with the State of California to offer managed-care plans under Medi-Cal, California’s Medicaid program, which is funded by both federal and state governments to provide health coverage to low-income persons. State and local governments can deliver Medicaid services by contracting with managed-care plans, such as Kaiser’s. Kaiser does not enroll Medi-Cal members directly. (Declaration of Kaycee B. Velarde, ¶¶ 1-3; Ex. E at p. 22.)

According to a declaration by an operations manager of Medicaid & Charitable Health Coverage at Kaiser, Plaintiff was enrolled as a Kaiser Medi-Cal member through the Santa Clara Family Health Plan (SCFHP) during multiple periods: September 2008 to September 2010; October 2010 to September 2013; and October 2013 to June 2015. (Declaration of Axel Deniz at ¶ 3-4.) According to documents subpoenaed from DHCS, Plaintiff lost Medi-Cal eligibility between the initial enrollment and June 2016, but regained eligibility in July 2016.

Plaintiff “did not choose a new plan and was therefore auto assigned to Santa Clara Health Plan in August 2016.” (Declaration of Yvonne M. Pierrou at ¶ 2, Ex. M.) Plaintiff continued with that coverage until December 2023 (when Kaiser’s contract with SCFHP ended). (Declaration of Axel Deniz at ¶ 3-4.) Her membership then automatically transferred to a direct Kaiser Medi-Cal plan in 2024. (Declaration of Axel Deniz at ¶ 3, Ex. D.) She remained enrolled in that direct plan until December 2024, and then re-enrolled in February 2025. (Declaration of Axel Deniz at ¶ 3.)

Plaintiff signed a Medi-Cal Choice form in 2008. Her signature is on the bottom of the form, below the following arbitration notice:

NOTICE: I have read the plan description. I understand that Kaiser requires the use of binding neutral arbitration to resolve certain disputes. This includes disputes about whether the right 11

medical treatment was provided (called medical malpractice) and other disputes relating to benefits or the delivery of services. If I pick Kaiser, I give up my right to a jury or court trial for those certain disputes. I also agree to use binding neutral arbitration to resolve those certain disputes. I do not give up my right to a State hearing of any issue which is subject to the State hearing process.

(Declaration of Yvonne Pierrou Decl. at ¶ 2, Ex. N.) That form was subpoenaed from DHCS by Kaiser.

Kaiser’s 2023 Medi-Cal Plan Member Handbook/Evidence of Coverage (EOC) contains the following arbitration provision:

Binding Arbitration Binding Arbitration is a way to resolve problems using a neutral third party. This third party hears both sides of the issue and makes a decision that both sides must accept. Both sides give up the right to a jury or court trial.

Scope of Arbitration You must use binding arbitration if the claim is related to this Member Handbook or your membership with us, if all of the following requirements are met:

• The claim is for: o Malpractice (a claim that medical services or items were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered); or o Delivery of services or items; or o Premises liability • The claim is brought by: o You against us; or o Us against you • Governing law does not prevent the use of binding arbitration to resolve the claim • The claim cannot be settled through Small Claims Court Keep in mind: o You do not have to use binding arbitration for claims that can be settled through a State Hearing o You cannot use binding arbitration if you have gotten a decision on the claim through a State hearing In this “Binding Arbitration” section only, “you” means the party who is asking for binding arbitration: o You (a Member) o Your heir, relative, or someone you name to act for you o Someone who claims that a duty to them exists due to your relationship with us

In this “Binding Arbitration” section only “us” and “we” mean: o Kaiser Foundation Health Plan, Inc. (“KFHP”) o Kaiser Foundation Hospitals (“KFH”) o Southern California Permanente Medical Group (“SCPMG”) o The Permanente Medical Group (“TPMG”) o Any SCPMG or TPMG doctor o Any person or organization with a contract with any of these parties that require the use of binding arbitration o Any employee or agent of any of these parties (Velarde Decl., Ex. E at pp. 125-126.) The EOC in effect at the time of Plaintiff’s 2016 reenrollment contains a substantially similar arbitration provision. (Id., Ex.

F at pp. 91-92.) Until the 2019-2020 plan year, Kaiser mailed a copy of the EOC to the family unit of each new subscriber in the SCFHP. (Id. at ¶ 6.) Kaiser now provides an Annual Medi-Cal Member Notice to Medi-Cal members with instructions on how to view the EOC online or to request a paper copy. (Id. at ¶¶ 6-7; Declaration of Ujjwal Guha at ¶¶ 1-3, Ex. G-J.) The notice also advises members that the plan uses arbitration to resolve disputes as follows:

I understand that Kaiser Permanente requires the use of binding arbitration to solve certain problems. This includes: • Problems about whether the right medical treatment was provided (called medical malpractice) • Other problems related to benefits or the delivery of care In selecting Kaiser Permanente as my health network: • I understand that I give up my right to a jury or court trial for these certain disputes • I also agree to use binding arbitration to resolve these certain disputes • I understand that I have not given up my right to a state hearing on any issue, which is subject to the sate hearing process If I choose arbitration, I will be responsible for paying my share of the cost of the binding arbitration, including lawyers’ fees, witness fees, and other costs.

(Guha Decl., Ex. G at p. 2, Ex H at p. 2, Ex. I at p. 2.) This notice was sent to Plaintiff in 2021, 2022, and 2023. (Id., Ex. J at pp. 1-2.)

LEGAL STANDARD

The court agrees with Kaiser that the “FAA1 and its standards apply – even though the CAA governs the general arbitration procedure – because the EOC ‘evidences a transaction 2

involving’ interstate commerce within the meaning of 9 U.S.C. § 2.” (Motion to Compel Arbitration (MTCA) at p. 5:14-16.) “Congress’s Commerce Clause power ‘may be exercised in individual cases without showing any specific effect upon interstate commerce’ if in the

1 Federal Arbitration Act (FAA) 2 California Arbitration Act (CAA) 13

aggregate the economic activity in question would represent ‘a general practice . . . subject to federal control.’” (Citizens Bank v. Alafabco, Inc. (2003) 539 U.S. 52, 56-57, quoting Mandeville Island Farms, Inc. v. American Crystal Sugar Co. (1948) 334 U.S. 219, 236.) Kaiser’s operations affect interstate commerce because many of the physicians who treat Health Plan members are recruited from outside California. (Declaration of Ana B. Kimoto at ¶ 4.) In addition, medical equipment, supplies, and medications used at hospitals and clinics owned or operated by Kaiser are purchased and shipped from outside California. (Ibid.) (Scott v.

Yoho (2016) 248 Cal.App.4th 392, 401-402 [finding that the defendants’ medical practice affected interstate commerce because, among other reasons, the medical supplies used originated from outside California].) Because the FAA’s coverage is intended to extend to the full reach of the commerce clause power, the court finds that Kaiser’s operations affect interstate commerce and the FAA applies. (Nieto v. Fresno Beverage Co. (2019) 33 Cal.App.5th 274, 279.)

Under the FAA, the court’s role is limited to determining “(1) whether a valid agreement to arbitrate exists, and if it does (2) whether the agreement encompasses the dispute at issue.” (Chiron Corp. v. Ortho Diagnostic Systems, Inc. (9th Cir. 2000) 207 F.3d 1126, 1130.) To determine “whether a valid contract to arbitrate exists,” courts apply “ordinary state law principles that govern contract formation.” (Davis v. Nordstrom, Inc. (9th Cir. 2014) 755 F.3d 1089, 1093, citations omitted; Ingle v. Circuit City Stores, Inc. (9th Cir. 2003) 328 F.3d 1165, 1170.)

Code of Civil Procedure section 1281.2 provides: “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 such controversy, the court shall order the petitioner and respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for rescission of the agreement.”

To determine whether an arbitration agreement exists between the parties, the court employs a three-step burden shifting analysis. (Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 755 (Iyere); Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060.) The party seeking to compel arbitration bears the initial burden of showing an agreement to arbitrate. If that burden is met, the burden shifts to the opposing party to show a factual dispute regarding the agreement’s existence. If the opposing party does so, then the burden shifts back to the proponent of arbitration to show the existence of a valid agreement by a preponderance of the evidence. (Iyere, supra, 87 Cal.App.5th at p. 755.)

ANALYSIS

There is a Valid Agreement to Arbitrate

The records before the court support a finding that there is a valid agreement to arbitrate. An agreement to arbitrate can be shown even when the provision is not signed by all parties. (Banner Entertainment v. Superior Court (1988) 62 Cal.App.4th 348, 361 [noting that “it is not the presence or absence of evidence of a signature which is dispositive; it is the presence or absence of evidence of an agreement to arbitrate which matters.”].) Here, Plaintiff signed the Medi-Cal Choice form in 2008 that notified her the Kaiser plan required binding 14

neutral arbitration. (Declaration of Yvonne Pierrou Decl. at ¶ 2, Ex. N.) Plaintiff was assigned to Kaiser again when she regained Medi-Cal eligibility in 2016 because she failed to elect a health plan. (Declaration of Yvonne M. Pierrou at ¶ 2, Ex. M [Plaintiff did “not choose a new plan and was therefore auto assigned to Santa Clara Health Plan in August 2016.”].) Kaiser submitted evidence showing that it provides annual notices describing the arbitration provision. That evidence includes screenshots showing the actual dates that the notices were mailed to Plaintiff in 2021, 2022, and 2023. (Guha Decl., Ex. J at pp. 1-2.)

“A party’s acceptance of an agreement to arbitrate may be express, as where a party signs the agreement. A signed agreement is not necessary, however, and a party’s acceptance may be implied in fact [citation] or be effectuated by delegated consent.” (Pinnacle Museum Tower Assn v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) An “agent or other fiduciary who contracts for medical treatment on behalf of his beneficiary retains the authority to enter into an agreement providing for arbitration of claims for medical malpractice.” (Madden v.

Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 709.) On this record, “DHCS and PHC negotiated the agreements on behalf of Medi-Cal beneficiaries under federal Medicaid and state Medi-Cal law. [Citations.] By enrolling in the plans, Medi-Cal beneficiaries bind themselves to the terms of the plan set forth in the plan handbooks, including arbitration and the jury-trial waiver.” (Willis v. Kaiser Found. Hosp. (C.D. Cal. Nov. 6, 2025) 25-cv-01948-LB, 2025 U.S. Dist. LEXIS 219378 at p. *11 (Willis) [granting petition to compel arbitration where Medi-Cal-enrollee plaintiff had not signed an arbitration provision but “was notified about the plan terms in the plan handbooks and through annual notices from Kaiser”].)

Likewise here, DHCS and SCFHP negotiated the agreements on behalf of Plaintiff. And by enrolling in the plan, Plaintiff is bound by the terms set forth in the EOC, including the arbitration provision.

Plaintiff relies on Chambers v. Crown Asset Management, LLC (2021) 71 Cal.App.5th 583 to argue Kaiser’s general testimony about mailing procedures is insufficient to demonstrate Plaintiff received the arbitration language contained in the EOC attached to the motion. (Opposition, p. 6:8-28.) But Plaintiff does not actually make any specific evidentiary objections to any declaration. The Declaration of Ujjwal Guha sets forth the process for “Kaiser’s mailings to members through a contracted print vendor” and provides “records prepared and maintained in the normal course of Kaiser’s business at or near the time of the event by Kaiser employees who are required to accurately enter information into the computer system.” (Guha Decl. at ¶ 1.)

The court finds this declaration sufficient for establishing that the Annual Medi-Cal Member Notices were sent. Mr. Guha provides that the name and address of each recipient is given to the vendor with instructions to print and mail the documents. (Guha Decl. at ¶ 2.) Mr. Guha attaches screenshots showing the actual dates the notices were mailed to Plaintiff. (Id., Ex. J.)

Brockman v. Kaiser Foundation Hospitals (2025) 114 Cal.App.5th 569 (Brockman), is distinguishable. (Opposition at p. 4:1-2.) The Brockman court affirmed the denial of a petition to compel arbitration in a non-Medi-Cal case where the moving party failed to submit to the trial court the documents containing the full arbitration provisions for the years when Brockman had enrolled in coverage. (Brockman, at p. 588.) Kaiser’s evidentiary submissions and the nature of Plaintiff’s automatic Medi-Cal re-enrollment in Kaiser in 2016 after she failed to elect a Medi-Cal plan distinguish this case from Brockman.

The Scope of the Agreement Covers Plaintiff’s Claims

As noted above, the scope of the arbitration provision provides: You must use binding arbitration if the claim is related to this Member Handbook or your membership with us, if all of the following requirements are met: • The claim is for: o Malpractice (a claim that medical services or items were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered); or o Delivery of services or items; or o Premises liability • The claim is brought by: o You against us; or o Us against you • Governing law does not prevent the use of binding arbitration to resolve the claim • The claim cannot be settled through Small Claims Court (Velarde Decl., Ex. E at pp. 125-126.)

Plaintiff’s allegations in the Complaint are that she stepped on a wet substance on the floor causing her to slip and fall and endure severe pain and injury. Plaintiff brings two causes of action for general negligence and premises liability. Plaintiff’s claims fall within the scope of the arbitration clause.

Section 1363.1 Does Not Apply to Medi-Cal Enrollments

Kaiser argues California Health and Safety Code section 1363.1 does not apply to Medi-Cal enrollments because it is preempted by the Affordable Care Act (ACA). (MTCA at pp. 7:19-27, 8:25-13:8.)

“Section 1363.1 requires healthcare plans with binding arbitration and jury-trial-waiver provisions to include a disclosure that meets the following conditions: (a) a statement that ‘the plan uses binding arbitration to settle disputes,’ including, specifically, claims of medical malpractice; (b) a prominent disclosure as a separate article on the enrollment form signed by each enrollee; (c) an express waiver of the right to a jury trial; and (d) in an enrollment agreement for a healthcare service plan, a disclosure immediately above the signature line for the contracting group or the enrolling individual.” (Willis, supra, 2025 U.S. Dist. LEXIS 219378, p. *8 [citing Cal. Health & Safety Code § 1363.1(a)-(d)].)

That section is preempted by the ACA for Medi-Cal enrollees. Under federal law, states are to simplify the Medi-Cal enrollment process by allowing phone enrollments and enrolling persons by default who fail to select a plan. (Willis, supra, 2025 U.S. Dist. LEXIS 219378 at p. *9 [citing 42 U.S.C. § 180383, 42 U.S.C. § 1396u-2(a)(D); 42 C.F.R. § 438.54(d)(5)].) In Willis, the court noted that

[DHCS’s] use of a simplified process is consistent with the Legislature’s approval of the use of managed-care plans for Medi- 16

Cal beneficiaries to encourage efficient delivery of healthcare services, reduce the ‘inflationary costs of healthcare,’ improve the quality of services, and reduce the administrative costs of operating the Medi-Cal program. Id. at § 14021. It also is consistent with the Affordable Care Act’s simplification of Medicaid enrollment by permitting enrollment by means other the paper. Requiring disclosure of the arbitration provision is inconsistent with a mandated default enrollment.

(Willis, supra, 2025 U.S. Dist. LEXIS 219378 at p. *9, 10.)

The court in Willis further found that “the regulatory scheme leaves no room for health plans to impose an additional requirement to sign an enrollment form complying with § 1363.1: once DHCS/PHC notified Kaiser that the plaintiff was a member of the plan, Kaiser was required to accept him.” (Willis, supra, 2025 U.S. Dist. LEXIS 219378 at p. *10.) The court in Willis determined that the ACA’s amendments requiring a simplified enrollment process preempt section 1363.1. (Id. at *10 [citing Winninger v. Scott (N.D. Cal. 2022) 21- CV-4689-HSG, U.S. Dist. LEXIS 117756 at p. *4; Hunter, supra, 434 F.Supp.3d at p. 773].) The court finds those authorities persuasive.

Defendants are exempt from the disclosure requirements under Health and Safety Code section 1363.1. Nevertheless, Kaiser is a Knox-Keene plan and notice to enrollees of binding arbitration is still required. (Civ. Code, § 1295, subd. (f); Health & Saf. Code, §§ 1363, subd. (a)(1) and 1373, subd. (i).) Here, the arbitration provision is contained within the EOC. (Velarde Decl., Ex. A at pp. 125-126.) Kaiser sends an annual notice to all enrollees that directs them to the EOC. (Guha Decl., Exs. G, H, I.) The notice includes a separate and outlined section advising members that the plan uses arbitration to resolve disputes. (Ibid.) Notice of the agreement to arbitrate is sufficient under these facts. Defendants need not do more because the Medi-Cal plan is exempt from the requirements of Health and Safety Code section 1363.1.

The Court does not reach Kaiser’s arguments about the lack of waiver and lack of unconscionability. Plaintiff forfeited any argument about waiver and unconscionability by not addressing Kaiser’s arguments on those points. The petition to compel arbitration is GRANTED. A stay of these proceedings is proper under Code of Civil Procedure section 1281.4 and 9 U.S.C. § 3. The court STAYS this action in its entirety pending the outcome of arbitration.

MOTION TO SEAL

Defendants move to seal the confidential unredacted versions of the Declarations of Axel Deniz, Ujjwal Guha, and Yvonne M. Pierrou lodged conditionally under seal on December 8, 2025 in support of their petition to compel arbitration.

“Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c).) The sealed records rules “do not apply to records that are required to be kept confidential by law.” (Cal. Rules of Court, rule 2.550(a)(2).) “A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules 17

of Court, rule 2.551(a).) “The court may order that a record be filed under seal only if it expressly finds facts that establish: [¶] (1) There exists an overriding interest that overcomes the right of public access to the record; [¶] (2) The overriding interest supports sealing the record; [¶] (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; [¶] (4) The proposed sealing is narrowly tailored; and [¶] (5) No less restrictive means exist to achieve the overriding interest.” (Cal. Rules of Court, rule 2.550(d).)

Where some material within a document warrants sealing, but other material does not, the document should be edited or redacted if possible, to accommodate the moving party’s overriding interest and the strong presumption in favor of public access. (Cal. Rules of Court, rule 2.550(d)(4), (5).) In such a case, the moving party should take a line-by-line approach to the information in the document, rather than framing the issue to the court on an all-or-nothing basis. (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 309.)

The information requested to be sealed is Plaintiff’s personal identifying protected health information (PHI). This includes Plaintiff’s street address and the name of a member of her household found on her healthcare membership records. (Deniz Decl., Ex. D; Guha Decl. Exs. I & J; Pierrou Decl., Ex. N.) Under the federal Health Insurance Portability and Accountability Information Act (45 C.F.R. § 164.502(b)) and the California Confidentiality of Medical Information Act (Civ. Code, § 56.10, subd. (b)(7)), a health care provider shall not disclose the medical information of a patient without authorization and must take reasonable efforts to limit the disclosure of PHI.

There exists an overriding interest that overcomes the right of public access to this information and that Plaintiff will be prejudiced if the record is not sealed. The proposed sealing is narrowly tailored to Plaintiff’s PHI, and no less restrictive means exist to achieve this overriding interest. Accordingly, the motion to seal is GRANTED.

CONCLUSION

The petition to compel arbitration is GRANTED. The motion to seal is GRANTED. This matter is stayed pending completion of arbitration. A case status review regarding arbitration will take place on April 1, 2027, at 11:00 a.m. in Department 10. The court will prepare the order.

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