GREGORY BORCHARDT v. THE WINDCHIME GROUP LLC, ET AL

The Petition to Compel Arbitration by Defendants The Windchime Group, LLC, Integral Senior Living, LLC DBA Windchime of Marin, Windchime of Marin Management, LP, Integral SL Management, LLC, Steven Dirk Mellema, and Lauren Cottman (“Defendants”) is DENIED.

BACKGROUND

Linda Eurman was an elder adult with Alzheimer’s. (Compl., ¶¶ 1, 13.) On or around August 25, 2025, Ms. Eurman was admitted to Windchime of Marin (the “Facility”), a licensed residential care facility for the elderly in Kentfield, California. (Id., ¶¶ 2, 32-33.) The Facility is owned, operated, managed, administered, and controlled by Defendants. (Id., ¶ 4.)

Plaintiff alleges that despite knowledge of Ms. Eurman’s fall risk, Defendants never implemented any fall prevention precautions for her. (Id., ¶ 46.) Plaintiff alleges this was a result of Defendants deliberately understaffing the Facility to decrease costs and increase their revenues. (Id., ¶¶ 15, 22, 24, 43-44.) As a result, Ms. Eurman suffered numerous falls and after each fall Defendants failed to investigate, assess her, update her care plan, or implement any fall prevention interventions. (Id., ¶¶ 48, 52.) On the morning of September 11, 2025, Ms. Eurman suffered a serious fall at the Facility that caused a traumatic brain injury. (Id., ¶¶ 51, 53.) Thereafter, Ms. Eurman’s condition deteriorated rapidly, and she died on December 16, 2025. (Id., ¶¶ 2, 54.)

On December 30, 2025, plaintiffs Gregory Borchardt, as Successor-in-Interest of Linda Eurman, as Executor of the Linda Eurman Revocable Trust, as Personal Representative of the Linda Eurman Revocable Trust and as Trustee of the Linda Eurman Revocable Trust and the Estate of Linda Eurman (“Plaintiffs”), filed this lawsuit. (Compl., ¶ 3.) Plaintiffs assert claims for

elder abuse and neglect, negligence/willful misconduct, premises liability, and intentional infliction of emotional distress. On February 25, 2026, Defendants filed their Answer to the Complaint denying the allegations. Defendants now petition to compel arbitration based on an Arbitration Agreement signed by Mr. Borchardt under a power of attorney in connection with Ms. Eurman’s admission.

LEGAL STANDARD

Under the Federal Arbitration Act (9 U.S.C. § 1 et seq. (“FAA”) “ ‘[a] written provision in ... a contract evidencing a transaction involving [interstate] commerce to settle by arbitration the controversy thereafter arising out of such contract or transaction, ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.)” (Broughton v. Cigna Healthplans of California (1999) 21 Cal.4th 1066, 1073-1074, superseded on other grounds as stated in Pac. Fertility Cases (2022) 85 Cal.App.5th 887, 900.) The FAA was intended to reverse centuries of judicial hostility to arbitration agreements by putting arbitration agreements upon the same footing as other contracts. (Shearson/American Exp., Inc. v. McMahon (1987) 482 U.S. 220, 225-226.)

However, arbitration – whether under the California Arbitration Act (”CAA”) or FAA – “is a matter of consent, not coercion ... a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 [internal quotations and citations omitted].)

The party seeking to arbitrate must prove the existence of the agreement. (Ibid.) If it does so, the burden shifts to the party opposing arbitration to “demonstrate that an arbitration provision cannot be interpreted to require arbitration of the dispute” or that the agreement is otherwise unenforceable. (Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686-87.)

DISCUSSION

Defendant bring this Motion on the grounds that: (1) there exists a written agreement between the Defendants and Plaintiffs, which provides for arbitration of Plaintiffs’ claims as alleged in the Complaint, and (2) Defendants requested compliance with the Agreement to Arbitrate but Plaintiffs refused to do so.

The Arbitration Agreement

The Arbitration Agreement itself is attached to the Compendium of Evidence in Support of Motion as Exhibit 7. The second paragraph of the Arbitration Agreement reads:

By signing below, you agree that any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at WINDCHIME OF MARIN, whether made against us or any other individual or entity, including, without limitation, personal injury or wrongful death claims, shall be resolved by submission to neutral, binding arbitration in accordance with the Federal

Arbitration Act; except that any claim or dispute involving unlawful detainer proceedings (eviction) or any claims that can be brought in small claims court shall not be subject to arbitration unless both parties agree to arbitrate such proceedings. You agree that an arbitrator will decide any question about whether a claim or dispute must be arbitrated under this arbitration clause.

In the third paragraph, it reads that in signing the Arbitration Agreement:

“You give up your constitutional right to have any such dispute decided in a court of law before a jury, and instead accept the use of arbitration. You further waive your right to participate in a representative capacity, or to participate as a member of a class, in any litigation or arbitration proceeding with respect to any such dispute... You may withdraw your agreement to arbitrate within thirty (30) days after signing this Agreement by giving written notice of your withdrawal to us.”

Finally, just above the signature line, it reads:

“... you warrant that this paragraph has been explained to you, that you understand its significance, that you voluntarily agree to be bound by it, and that you understand that agreeing to arbitration is not a condition of admission to the Community.”

The Arbitration Agreement was executed by Gregory Borchardt under “Power of Attorney.”

In support of their Motion, Defendants have outlined the following facts:

At the time of admission, Gregory Borchardt held Durable Power of Attorney (“DPOA”) for Ms. Eurman which granted him authority to, among other things, “demand, arbitrate, and pursue litigation on the principal’s behalf concerning all rights and benefits to which the principal may be entitled; and to compromise, settle and discharge all such matters as the agent considers appropriate under the circumstances.” (Compendium of Exhibits in Support of Motion, Ex. 1, Pg. 3, ¶ 5.)

This DPOA also granted Mr. Borchardt authority to:

“Do all things and enter into all transactions necessary to provide for the principal's personal care and to maintain the principal's customary standard of living; to provide suitable living quarters for the principal; and to hire and compensate household, nursing, and other employees as the agent considers advisable for the principal's well being. The above shall specifically include but not be limited to the authority to pay the ongoing costs of maintenance of the principal's present and future residence, such as interest, taxes, and repairs; to procure and pay for clothing, transportation, medicine, medical care, food, and other needs; and to make arrangements, enter into contracts, and commit the principal's resources on the principal's behalf with respect to provision of residential care for the principal in a convalescent hospital, skilled nursing home, or other alternative residential facility.” (Id., pg. 4, ¶ 14.)

Finally, the DPOA granted Mr. Borchardt authority to “perform any other act, deed, matter, or thing, that in the opinion of the agent ought to be done, executed, or performed in conjunction with this power of attorney, of every kind and nature, as fully and effectively as the principal could do if personally present...” (Id., pg. 5, ¶ 15.) Mr. Borchardt also held a Power of Attorney for Healthcare on behalf of Decedent. (Id., Ex. 2.)

In Opposition, Plaintiff argues that Mr. Borchardt lacked actual authority because the DPOA never took effect because it required two designated physicians to execute declarations under penalty of perjury, making the requisite findings. The DPOA states that it “shall become effective only upon the incapacity of the undersigned principal” “when any two of the designated persons [i.e. “[t]he principal’s treating physician” or “a second licensed physician”] execute written declarations under penalty of perjury that the principal does not have sufficient understanding or ability to make or communicate decisions about the principal’s property, finances, or personal business.” (Compendium, Ex. 1 at 1.) They further add that Mr. Borchardt lacked ostensible authority because Ms. Eurman made no representations to Defendants that would cause them to believe that Mr. Borchardt had such authority.

On Reply, Defendants state that Dr. Amy Wen Liu completed a “Physician’s Report for Residential Care Facilities for the Elderly.” (Compendium, Ex. 3.) Within this report, Dr. Liu explained that Decedent has early onset Dementia, which is “severe” with agitation. This diagnosis resulted in “[t]he loss of intellectual function (such as thinking, remembering, reasoning, exercising, judgment, and decision making) and other cognitive functions, sufficient to interfere with an individual’s ability to perform activities of daily living or to carry out social or occupational activities.” (Id.)

The Report further states that Decedent is confused and disoriented and lacks the ability to manage her own cash resources. (Id.) Importantly, Defendants contend that Dr. Liu’s August 13, 2025 Report was confirmed by a second physician, Dr. Mark Roger Taylor on March 19, 2025. (Id.) The Court notes that only Dr. Roger appears to have signed the Report. Dr. Liu’s signature is nowhere to be found, but it is implied, although unclear, that she drafted the Report and Dr. Roger “signed off” on it. The Court notes that there is no declaration under penalty of perjury by either doctor.

As for the Report itself, “such evidence does not substitute for satisfaction of the condition stated in the terms of [the] directive.” (Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1128 [Appellants' first theory regarding Bobbi's authority to bind plaintiff to arbitration is that she was plaintiff's agent, based on a power of attorney for health care (POA), which was part of plaintiff's advanced health care directive. The POA provided that when plaintiff's primary physician determined that she was unable to make her own health care decisions, her “agent” was authorized to make specified health care decisions for her.

Appellants concede that plaintiff's physician never made this determination, but they maintain that the evidence supplied in her deposition established her complete incapacity and need for Bobbi's intervention. As the trial court recognized, however, such evidence does not substitute for satisfaction of the condition stated in the terms of plaintiff's advanced health care directive.].)

Similarly here, the DPOA by its terms would only become effective upon written declarations under penalty of perjury by the treating physician and another licensed doctor. The parties appear to concede that these do not exist, but Defendants suggest that the Report, not executed under penalty of perjury and signed by only one doctor, along with the allegations in

the Complaint should be substituted for the condition stated in the DPOA. The Court declines to do so.

Defendants have failed to demonstrate that Mr. Borchardt had authority to sign the Arbitration Agreement on behalf of Ms. Eurman under a DPOA that, by its terms, had not taken effect at the time of signing.

For these reasons, the Motion is DENIED.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for September, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1615487764?pwd=Ob4B5J7LLKcpnkxzJjjEOSHNzEGafG.1

Meeting ID: 161 548 7764 Passcode: 502070

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov