JOANNE SMITH, ET AL. VS. ANDRE NICOLAS GAY M.D., ET AL.

2. It is understood that any and all other disputes, controversies, demands, or claims that relate to or arise out of the provision of services by the Facility to Resident, including, but not limited to, any action for injury or death arising from negligence, wrongful death, intentional tort, or statutory causes of action, including, but not limited to, the Elder Abuse and Dependent Adult Civil Protection Act, the Unfair Competition Act, the Consumer Legal Remedies Act, and Health & Safety Code Section 1430, will be determined by submission to arbitration as provided by the F.A.A., and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings.

Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. The Parties agree that any such action or claim must be brought within the statute of limitations established in the applicable state or federal law pertaining to the underlying claim.

3. The Resident’s agreement to arbitration is not a precondition for medical treatment or admission to the Facility.

4. The parties to this Agreement acknowledge and agree that this Agreement relates to the Resident’s admission to the Facility, and that the Facility, among other things, participates in the Medicare and/or Medi-Cal programs and/or procures supplies from out of state vendors. The parties therefore acknowledge and agree that the Resident’s admission to the Facility (including any readmissions) evidences a transaction in interstate commerce governed by the F.A.A. The parties to this Agreement further acknowledge and agree that this Agreement shall be construed and enforced in accordance with and governed by the F.A.A. and that the procedures set forth in the F.A.A. shall govern any petition to compel arbitration.

5. The parties agree that the California Code of Civil Procedure shall not govern this Agreement. Accordingly, the parties agree that California Code of Civil Procedure §1281.2(c) is excluded from this Agreement. The parties do not want any claims not subject to arbitration to impede any and all other claims from being ordered to binding contractual arbitration. ...

(Barber Decl., Exh. A (bold added).)

Defendant fails to show a valid, irrevocable and enforceable arbitration agreement exists.

The court must first determine whether this issue to compel arbitration is governed by the California Arbitration Act (“CAA”) or the Federal Arbitration Act (“FAA”). (Knight, Chernick, et al., Cal. Prac. Guide-Alternative Dispute Resolution (The Rutter Group), ¶ 5:77.1.) “The CAA and FAA allocate authority for deciding defenses to enforcement in varying ways and are not

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ always consistent with each other. For example, waiver issues generally are for the court to decide under the CAA but for the arbitrator under the FAA.” (Ibid.)

In Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 346, the court found no cases interpreting the sentence that “Enforcement of this agreement to arbitrate shall be governed by the Federal Arbitration Act” and concluded that the parties intended to incorporate the FAA with respect to compelling arbitration. Previous cases held that when an arbitration agreement provides for enforcement under California law, the CAA governs a party’s motion to compel arbitration. (Ibid.) The court concluded that it follows that when an agreement provides that its “enforcement” shall be governed by the FAA, the FAA governs a party's motion to compel arbitration. (Ibid.)

In this case, the arbitration agreement provides that the procedures under the FAA apply to a petition to compel arbitration, and then states that the Code of Civil Procedure does not apply. Defendant therefore cannot invoke the Code of Civil Procedure and California cases relying on the Code of Civil Procedure in seeking to compel arbitration. Plaintiffs correctly point out that Defendant cannot have it both ways by invoking Code of Civil Procedure sections 1281.2, 1281.4 and 1295 in its Petition, but then relying on paragraph 5 that excludes the California Code of Civil Procedure when it protects Plaintiffs from inconsistent rulings. (Plaintiffs’ Opposition, p. 13:27-14:1.)

Defendant’s Petition is therefore problematic because it relies on the Code of Civil Procedure. Defendant brings this Petition pursuant to the FAA and “California Code of Civil Procedure sections 1281.2, 1281.4 and 1295, on the grounds that the Arbitration Agreement executed by coplaintiff Plaintiff, JOANNE SMITH, for arbitration of the dispute which is the subject of this action.” (Defendant’s Notice, p. 2:1-4.) Defendant’s Memorandum also relies on the Code of Civil Procedure as well as California cases addressing the Code of Civil Procedure, but it also argues that Code of Civil Procedure section 1281.2(c) does not apply based on the arbitration agreement.

More importantly, Defendant relies on the three-step process applied by California courts under Code of Civil Procedure section 1281.2 to determine whether an arbitration agreement exists instead of addressing the procedures under the FAA that govern a petition to compel arbitration. Defendant claims only that arbitration agreements are valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract, citing 9 U.S.C. section 2. Compounding the issue, is that Plaintiff’s Opposition then also argues the substantive procedure to compel arbitration under the Code of Civil Procedure, and neither side address the right to compel arbitration under the FAA.

Notwithstanding this failure to address the procedures under the FAA to petition to compel arbitration, Defendant provides a copy of the arbitration agreement as an exhibit to Defendant’s counsel’s declaration. (Barber Decl., Exh. A.) Defendant’s counsel states that upon admission to Defendant’s facility, Mrs. Smith signed the arbitration agreement that provides for arbitration of disputes that are the subject of this action. (Id., at ¶ 2.)

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ Plaintiffs object to this portion of Defendant’s counsel’s declaration and the attached arbitration agreement, as lacking foundation and personal knowledge and improper authentication. (Plaintiffs’ Evidentiary Objections nos. 2-3.). The Court sustained these objections.

California applies a three-step process under Code of Civil Procedure section 1281.2 to determine whether an arbitration agreement exists. (See Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164-165 (Gamboa).) At the first step, the moving party bears the burden of producing prima facie evidence of a written agreement to arbitrate the controversy and can meet its burden by attaching to the petition or motion a copy of the arbitration agreement purporting to bear the opposing party’s signature. (Id., at p. 165.)

If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then the opposing party bears the burden of producing evidence to challenge the agreement at the second step. (Ibid., citing Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219.) If the opposing party meets its burden of producing evidence, then the moving party must establish with admissible evidence a valid arbitration agreement between the parties in the third step. (Ibid.) Thus, if Defendant could seek to enforce the arbitration agreement under section 1281.2, the court could agree that Defendant’s counsel’s declaration and the attached arbitration agreement are sufficient to meet this first step, except for Plaintiffs’ valid evidentiary objections.

Since the arbitration agreement provides that the California Code of Civil Procedure does not apply, Defendant has not shown that the three-step process applied by California courts under section 1281.2 is even applicable. Defendant also fails to show that this same process applies under the FAA. The court sustained Plaintiffs’ evidentiary objections and finds that Defendant fails to present admissible evidence of a valid, irrevocable and enforceable arbitration agreement.

Under the FAA, the analysis is equally straightforward. On a petition to compel arbitration, the “court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.” 9 U.S. Code § 4. “The court’s role under the Act is therefore 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. (2000 9th Cir.) 207 F.3d 1126, 1130. For the same reasons cited above, Defendant fails to establish a valid agreement to arbitrate exists.

The court does not reach the remaining arguments.

Considering the above, the court does not reach or rule on the remaining arguments raised by the parties as the motion to compel arbitration fails at the first step.

The Court does, however, take note that there was apparently a tentative or proposed stipulation to arbitration. Reply Brief, pg. 2, line 20, referring to the attached Barber Decl., ¶ 3. The proposed stipulation is not before the Court. It is therefore unclear, if even this proposed

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ stipulation was only by and between Plaintiffs, and this lone defendant Vasona Creek Healthcare Center who is the only defendant that has moved to compel arbitration, or whether it was inclusive of the other named defendants of Dr. Andre N. Gay, Silicon Valley Orthopedic Sports Specialists, and ASHMC Seton Medical Center, LLC. The Court is merely flagging an open question, of whether the intention was to arbitrate part of the case, or the entirety of the case. If the former, then there is a possibility of conflicting rulings on common issues of law or fact, which would be a separate basis to deny the motion. CCP § 1281.2(c).

In any event, the Petition to Compel Arbitration is DENIED.

Any party who contests a tentative ruling must email Dept20@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to CRC Rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the CRC. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be filed or e-filed only, do not email or mail a hard copy to the Court.