George vs. Laguna Hills Health and Rehabilitation Center

“Under ‘both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate.’ [Citation].” (Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396, emphasis in original (“Cruise”).) The court is to determine whether a valid arbitration agreement exists, and if so, whether the agreement encompasses the dispute at issue. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960-961, citing Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 84; Lifescan, Inc. v. Premier Diabetic Servs., Inc. (9th Cir. 2004) 363 F.3d 1010, 1012.)

“ ‘[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement--either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see § 1281.2, subds. (a), (b))--that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.’ ” (Hotels Nevada v.

L.A. Pacific Center, Inc. (2006) 144 Cal. App. 4th 754, 761, quoting Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal. 4th 394, 413.) The Court may decide that some causes of action are subject to arbitration. (Lane v. Francis Capital Management, LLC (2014) 224 Cal.App.4th 676, 684.)

Parties moving to compel arbitration “may meet their initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purportedly bearing the opposing party's signature.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060.) “For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication.” (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218.) “A plain reading of the statute indicates that as a preliminary matter the court is only required to make a finding of the agreement’s existence, not an evidentiary determination of its validity.” (Id. at p. 219.) Once the petitioner alleges that the agreement exists, the burden shifts to respondent to prove the falsity of the purported agreement. (Ibid.)

Here, Moving Defendants attach a copy of the Arbitration Agreement to Declaration of Jeffrey S. Healey filed in support of the petition. The Arbitration Agreement contains the following relevant provisions:

Article 1. It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to arbitration as provided by California law, 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.

Article 2. It is further understood that any dispute between Resident and AG Lagina Hills, LLC dba Laguna Hills Health and Rehabilitation Center its owners, operators, officers, directors, administrators, staff, employees, agents, and any management company and/or consulting company that provides services to the Facility that relates to the provision of care, treatment and services the Facility provides to the Resident, including Cambridge Healthcare Services, and all related entities and individuals, their staff, personnel, employees, owners, officers, directors, members, and agents (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 and Health and Safety Code section 1430), will be determined by submission to binding arbitration and not by lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings.

The parties to this agreement are giving up their Constitutional right to have all disputes decided in a court of law before a jury, and instead are accepting the use of binding arbitration.

(Ex. A to Declaration of Jeffrey S. Healey (“Healey Decl.”), Arbitration Agreement, Articles 1 and 2, emphasis added.)

Based on the foregoing, Moving Defendants establish the existence of an Arbitration Agreement executed by the Decedent, Robert W. Scott (the “Decedent”). Plaintiffs’ claims for negligence, elder abuse, willful misconduct, and wrongful death fall within the scope of the claims covered by the Arbitration Agreement. Plaintiffs do not dispute that the Decedent executed the Arbitration Agreement.

In a conclusory manner, Plaintiffs assert that the Decedent lacked capacity to consent to arbitration due to his brain injury, and that Plaintiffs are entitled to rescission of the Arbitration Agreement, but Plaintiffs provide no evidentiary or legal support for these contentions. (See Opposition, 7:21-22.) The court may “‘disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which [a party] reached the conclusion [he or she] wants [the court] to adopt.’” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 citing City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287.)

Ability to Enforce Arbitration Agreement Plaintiffs contend that one of the Moving Defendants to the instant Petition, Cambridge Healthcare Services, is a non-party to the Arbitration Agreement, and thus, cannot invoke it.

Moving Defendants assert that contrary to Plaintiffs’ contention, the Arbitration Agreement expressly states that it applies to Cambridge Healthcare Services and that it is clearly a party to the Arbitration Agreement.

The general rule is “one must be a party to an arbitration agreement to be bound by it or invoke it.” (Westra v. Marcus & Millichap Real Estate Investment Brokerage Co., Inc. (2005) 129 Cal.App.4th 759, 763.)

As set forth above, Article 2 of the Arbitration Agreement expressly provides that it applies to Cambridge Healthcare Services. As it is bound by the Arbitration Agreement, Cambridge Healthcare Services is a party to the Arbitration Agreement and may enforce it.

Applicability of Arbitration Agreement to Plaintiffs In opposition, Plaintiffs assert that they are not bound by the Arbitration Agreement signed by the Decedent, and that “[i]n an elder abuse action, language stating that by signing the agreement the resident plaintiff (Decedent) is binding not only the resident plaintiff but also the resident plaintiff’s heirs to arbitration is legally invalid,” such that “[a]s a matter of law, adult heirs are not bound to arbitration absent their own agreement to arbitrate their claims.” (Opposition, 7:4- 12.) They cite to no cases for this proposition, and instead, cite to only a secondary source.

In reply, Moving Defendants contend that the Arbitration Agreement expressly applies to heirs as set forth in Article 4, and that as the wrongful death claim is predicated upon professional negligence in failing to provide care, Plaintiffs, i.e., wrongful death claimants or heirs, are subject to arbitration. Moving Defendants additionally argue that even if the Court finds the heirs’ wrongful death claim is not subject to arbitration, the claims brought by the estate, i.e., the first cause of action for Negligence, second cause of action for Elder Abuse, and third cause of action for Willful Misconduct are subject to arbitration and should be ordered to arbitration.

“Code of Civil Procedure section 377.60 (section 377.60) provides that specified persons, including a decedent’s parents, may assert a cause of action for death ‘caused by the wrongful act or neglect of another.’ [Citation.] In California, wrongful death claims, unlike survivor claims, are not derivative of the decedent’s own claims; they are, rather, independent statutory actions accruing to the decedent’s heirs for pecuniary injuries suffered by the loss of a relative. [Citations.] Because wrongful death claimants are entitled to sue in their own right, not merely as successor in interest to their decedent, they are not ordinarily bound by any arbitration agreement the decedent may have signed. [Citations.]” (Holland v. Silverscreen Healthcare, Inc. (2025) 18 Cal.5th 365, 375 (“Holland”).)

“As a general rule, plaintiffs cannot be compelled to arbitrate their disputes if they have not previously agreed to arbitration.” (Holland, supra, 18 Cal.5th at p. 370.) However, there is an exception for certain wrongful death claims based on medical malpractice as set forth in Ruiz v. Podolsky (2010) 50 Cal.4th 838. (Ibid.) “Ruiz does not apply to every type of wrongful death claim that might be brought against a health care provider – particularly a provider that, like the skilled nursing facility in this case, provides both medical care and day-to-day custodial care of dependent adults.

Under Ruiz, plaintiffs’ claim must be submitted to arbitration only if they are raising a dispute about medical malpractice as that term is defined in MICRA’s arbitration provision – that is, a dispute ‘ “as to whether any medical services . . . were improperly, negligently or incompetently rendered.” ’ (Code Civ. Proc., § 1295, subd. (a) (§ 1295(a)).)” (Id. at pp. 370-371.) “Ruiz does not require plaintiffs to arbitrate their disputes about a facility’s neglect of a resident’s basic welfare and safety needs.” “In the context of a skilled nursing facility, the operative question is whether such duties are owed by virtue of being a medical services provider or by virtue of being the custodian of a dependent adult.

Claims premised on the manner in which the skilled nursing or other long-term care facilities protect the basic welfare and safety of resident fall outside the scope of section 1295(a), and thus outside the scope of Ruiz.” (Id. at p. 381.) “Not every claim of neglect against a long-term nursing facility – not even neglect that takes the form of failure to prevent falls or infection – will qualify as a claim of medical malpractice subject to Ruiz. The critical question remains whether the complaint alleges neglect acts or omissions by ‘health care providers in their capacity as providers’ rather than ‘against custodians and caregivers . . . that may or may not, incidentally, also be health care providers.’ [Citation.]” (Id. at p. 382.) “The dispositive inquiry for purposes of Ruiz is ultimately whether the plaintiff is raising a dispute about medical malpractice, not whether the plaintiff has adequately alleged a claim under any particular statutory or common law cause of action.” (Id. at p. 384.)

With regards to Plaintiffs, who have brought the instant action as individuals and as the surviving heirs, personal representatives, and/or successors in interest of Decedent, and/or Administrators or Executors of the Estate of Robert Scott, Article 4 of the Arbitration Agreement states, in part:

This Agreement is binding on all parties, including the Resident's representatives, executors, family members, and heirs who bring any claims individually or in a representative capacity. The Resident's representatives, agents, executors, family members, successors in interest and heirs who execute this Agreement below on the signature line are doing so not only in their representative capacity for the Resident, but also in their individual capacity and thus agree that any claims brought individually by any such representatives, agents, executors, family members, representatives, successors in interest and heirs are subject to binding arbitration. This Agreement may be rescinded by written notice within thirty (30) days of signature.

(Ex. A to Healey Decl., Arbitration Agreement, Article 4.)

Plaintiffs’ survivor claims, i.e., the first cause of action for Negligence, second cause of action for Elder Abuse, and third cause of action for Willful Misconduct allege that the Defendants failed to carry out their custodial obligations, and that Defendants’ conduct amount to their failure to provide medical care for the Decedent’s physical and mental health needs. (Ex. 1 to Declaration of Robert E. Makley, ROA 16, First Amended Complaint [erroneously named “Complaint”] (“FAC”), ¶ 25.) As to AG Laguna, it is alleged that the Decedent was admitted to AG Laguna numerous times during 2023, including, but not limited to, admissions on March 3, 2023 through April 3, 2023, April 10, 2023 through May 8, 2023, and May 10, 2023 through June 11, 2023,” and that “[a]s a result of the neglect of [AG Laguna], Decedent developed pressure wounds to both heels, coccyx, and left buttock,” which “continued to worsen during his admissions.” (FAC, ¶ 21.)

It is also alleged that Defendants failed to provide Decedent with proper nourishment and hydration, and failed to assist the Decedent with personal hygiene, which was negligent and also constitutes “neglect” as defined in Welfare & Institutions Code § 15610.57. (FAC, ¶ 26.) It is additionally alleged that Defendants failed to properly reposition the Decedent during his stays at the facilities, failed to keep him clean and dry, failed to perform wound care and change his dressings daily or as needed, and failed to turn or reposition the Decedent properly or adequately, resulting in the development and/or worsening of pressure ulcers. (FAC, ¶ 27.)

It is further alleged that Defendants failed to provide the Decedent with the assistance he required with his activities for daily living including “dressing, bathing/showering, personal hygiene and oral care, and repositioning and turning in bed,” and that Defendants failed to perform proper skin care and failed to properly treat his condition. (FAC, ¶¶ 28, 30.) Plaintiffs allege that “Defendants failed to hire properly qualified personnel, failed to hire sufficient staff to meet the needs of the patients at the facilities, failed to properly train personnel at the facilities, failed to properly supervise personnel at the facilities, failed to provide sufficient resources to the facilities so that the needs of the patients could be met in accordance with the federal and state laws/regulations, failed to properly assess and monitor the DECEDENT’S physical and mental care needs, failed to provide the DECEDENT with proper nourishment and hydration, failed to assist the DECEDENT with personal hygiene and failed to evaluate and report the DECEDENT’S condition to appropriate medical personnel and/or his family.” (FAC, ¶ 37.)

These allegations are alleged under the first cause of action and are incorporated into the second and third causes of action. (FAC, ¶¶ 40, 100.) As Plaintiffs’ survivor claims fall within the scope of the Arbitration Agreement set forth in Articles 1 and 2, they are subject to arbitration.

What remains is Plaintiffs’ individual claims for wrongful death (fourth cause of action). The fourth cause of action expressly alleges that it incorporates every allegation contained in the Preliminary Statement and in the second cause of action (for elder abuse), but not the first cause of action for negligence. (FAC, ¶¶ 114-115.) The second cause of action alleges that Defendants engaged in conduct which resulted in Decedent being subject to “physical abuse”, “neglect”, “abandonment” and “isolation” as defined in the applicable Welfare & Institution Code sections. (FAC, ¶ 48.)

The second cause of action also alleges that “Defendants neglected the DECEDENT by, in part, failing to assist in personal hygiene and/or in the provision of food, clothing or shelter, failing to provide medical care for the DECEDENT’s physical and mental health needs, failing to protect from health and safety hazards, failing to prevent malnutrition and/or dehydration, and/or failing to ensure adequate supervision of the DECEDENT who was left unsupervised, unmonitored and unassisted on many occasions and who suffered the development and/or worsening of pressure injuries . . . .” (FAC, ¶ 49.)

It is additionally alleged:

“Defendants also failed to document accurately; failed to have a comprehensive care plan; failed to update the care plan; failed to assess and address metabolic laboratory levels; failed to provide immediate adequate and appropriate nutrition with increased protein, Vitamin C and Zinc, to help the healing process of the DECEDENT’s beginning and/or continuing skin breakdown; failed to provide adequate nutritional care to facilitate the prevention and healing of skin breakdown; failed to provide an effective and complete nutritional care plan with timely appropriate nutritional interventions; failed to recognize/assess and appreciate that the DECEDENT was at risk for the development of skin breakdown and pressure ulcers secondary to his multiple medical conditions and/or if he was not turned or repositioned regularly; failed to protect the DECEDENT from harm; failed to assess the DECEDENT; failed to follow doctor’s orders; and, failed to notify the DECEDENT’s doctors, . . . .” (FAC, ¶ 50.)

It is further alleged that Defendants failed to provide adequate staffing levels and supervision, failed to provide corrective/preventative measures, and failed to properly monitor and adequately assist the Decedent. (FAC, ¶ 55.) By these allegations, Plaintiffs are not raising a dispute about medical malpractice, but alleges wrongful death through “physical abuse”, “neglect”, “abandonment” and “isolation” under the Elder Abuse and Dependent Adult Civil Protection Act. Consequently, Plaintiffs’ individual cause of action for wrongful death (fourth cause of action) is not subject to arbitration.

Applicability of Code of Civil Procedure section 1281.2(c) In opposition, Plaintiffs contend that Code of Civil Procedure section 1281.2(c) applies and that compelling arbitration of Plaintiffs’ claims would create the possibility of inconsistent rulings on issues of fact or law because the claims against co-Defendants, Trabuco Hills Post Acute, Lake Forest Post Acute, LLC, Providence Mission Hospital Mission Viejo and Mission Hospital Regional Medical Center, who contributed to Decedent’s injuries, do not enjoy the right to compel arbitration, such that if the case is split up, there is a potential issue as to who is liable for what, which ought to be decided by a single fact-finder to avoid the possibility of different factfinders coming to different conclusions.

Moving Defendants assert in reply that the request to deny the petition based on Code of Civil Procedure section 1281.2(c) is without merit as the Arbitration Agreement expressly elects the Federal Arbitration Act (“FAA”) as the choice of law clause and in doing so, precludes the application of State procedural rules, such as Section 1281.2(c) which would otherwise result in a denial of the Petition. Moving Defendants also argue that Article 6 of the Arbitration Agreement expressly exclude Code of Civil Procedure section 1281.2(c) from the Arbitration Agreement, which is permitted by case law.

The applicability of the FAA and the terms of the Arbitration Agreement determine whether Code of Civil Procedure section 1281.2(c) is applicable.

The party asserting the FAA bears the burden to show it applies by presenting evidence establishing the contract with the arbitration provision has a substantial relationship to interstate commerce, and the failure to do so renders the FAA inapplicable. (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 234.) “[T]he United States Supreme Court has identified ‘three categories of activity that Congress may regulate under the commerce power: (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce and persons or things in interstate commerce, and (3) those activities having a substantial relation to interstate commerce.’ [Citations.]” (Ibid.) “Payments of Medicare or Medicaid funds are transactions involving commerce.” (Willis v. Prime Healthcare Services, Inc. (2014) 231 Cal.App.4th 615, 626.)

Parties to an arbitration agreement may expressly designate that any arbitration proceeding should move forward under the FAA’s procedural provisions rather than under state procedural law. (Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 394.) By stating that “enforcement of this agreement to arbitrate shall be governed by the Federal Arbitration Act” in the arbitration provision, “the parties intended to incorporate the FAA with respect to compelling arbitration.” (Victrola 89, LLC v.

Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 346.) Thus, even if a transaction does not involve interstate commerce, “the parties may [] voluntarily elect to have the FAA govern enforcement of the [a]greement.” (Id. at 355 [“the presence of interstate commerce is not the only manner under which the FAA may apply.”]; see also Barrera v. Apple American Group LLC (2023) 95 Cal.App.5th 63, 76 [“since arbitration is a matter of contract, the FAA also applies if it is so stated in the agreement.”].) “Absent such an express designation, however, the FAA’s procedural provisions do not apply in state court.” (Valencia v.

Smyth (2010) 185 Cal.App.4th 153, 174.)

Here, the Arbitration Agreement states, in relevant part:

Article 7. This Agreement relates to the Resident's admission to the Facility, and 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, agree that the underlying admission to the Facility involves interstate commerce. Accordingly, this Agreement is to be governed by the Federal Arbitration Act and the procedural rules set forth in the Federal Arbitration Act (9 U.S.C. Sections 1-16) shall govern any petition to compel arbitration and the selection of an arbitrator, should the parties be unable to mutually agree upon a single neutral arbitrator. The arbitration shall be venued in a location convenient for all parties.

(Ex. A to Healey Decl., Arbitration Agreement, Article 7, emphasis added.)

As the Arbitration Agreement expressly provides that FAA and the procedural rules set forth in the FAA governs any petition to compel arbitration, the FAA applies to the instant petition to compel arbitration.

“The procedural provisions of the FAA ‘do[] not include a provision comparable to ... section 1281.2[, subdivision](c) and therefore requires courts to enforce written arbitration agreements even if there is pending litigation involving a third party that may result in conflicting rulings.’ (Acquire II, Ltd. v. Colton Real Estate Group, supra, 213 Cal.App.4th at p. 968, 153 Cal.Rptr.3d 135.) Under the FAA, ‘the court's only option in these circumstances is to stay the court proceeding and compel the arbitration.’ (Rodriguez v.

American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1115, 39 Cal.Rptr.3d 437 (Rodriguez).)” (Wright v. Wellquest Elk Grove, LLC (2026) 119 Cal.App.5th 267, 279.) If the FAA applies, then Code of Civil Procedure section 1281.2(c) cannot be applied to deny enforcement of the arbitration clause. (Gloster v. Sonic Automotive, Inc. (2014) 226 Cal.App.4th 438, 446 [“Because the Federal Arbitration Act (9 U.S.C. § 1 et seq; FAA) contains no provision analogous to section 1281.2, subdivision (c), that subdivision cannot be applied to deny the enforcement of the arbitration clauses governed by the FAA. [Citation.]”.)

Under the FAA, “if a dispute presents multiple claims, some arbitrable and some not, the former must be sent to arbitration even if this will lead to piecemeal litigation.” (KPMG LLP v. Cocchi (2011) 565 U.S. 18, 19.) “A court may not issue a blanket refusal to compel arbitration merely on the grounds that some of the claims could be resolved by the court without arbitration. [Citation.]” (Ibid.)

Further, the Moving Defendants and the Decedent expressly excluded the application of Code of Civil Procedure section 1281.2(c). Article 6 states, in relevant part: “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 disputes 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 to Healey Decl., Arbitration Agreement, Article 6.)

Based on the foregoing, since the FAA applies, Code of Civil Procedure section 1281.2(c) cannot be enforced to deny enforcement of the Arbitration Agreement here.

Plaintiffs cite to Birl v. Heritage Care, LLC (2009) 172 Cal.App.4th 1313, to support the application of Code of Civil Procedure section 1281.2(c), but the case did not involve the issue of the application of the FAA.

Unconscionability Lastly, Plaintiffs argue that the Arbitration Agreement is unconscionable and should not be enforced.

Plaintiffs argue that the Arbitration Agreement is procedurally unconscionable because the Decedent did not have an authentic informed choice to reject the Arbitration Agreement as it is a complicated agreement containing extensive legal phrasing that is difficult to understand and is a pre-printed agreement not negotiated by the Decedent. Plaintiffs also contend that the preprinted boilerplate declaration form filed in support of the Petition does not state whether the Decedent had an opportunity to review the arbitration agreement (or read it) prior to signing, or whether the Decedent (who was suffering from a brain injury) had any questions in response to Ms. Gutierrez’s purported explanation of the agreement to him.

A party that opposes the petition to compel arbitration and raises a defense to enforcement bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) “Because unconscionability is a contract defense, the party asserting the defense bears the burden of proof.” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 911.)

Unconscionability has a procedural and a substantive element: the procedural element focuses on the existence of oppression or surprise and the substantive element focuses on overly harsh or one-sided results. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114; Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1281.) An agreement must be both procedurally and substantively unconscionable to permit the court to refuse to enforce the agreement or a given clause as unconscionable. (Stirlen v.

Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1533.) “[T]hese elements, however, need not be present in the same degree. ‘[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.’” (Mercuro v. Super. Ct. (2002) 96 Cal.App.4th 167, 174.)

“A procedural unconscionability analysis ‘begins with an inquiry into whether the contract is one of adhesion.’ [Citation.]” (OTO, L.L.C. v. Kho (2019) 8 Cal. 5th 111, 126.) An adhesive contract is standardized, generally on a preprinted form, and offered by the party with superior bargaining power ‘on a take-it-or-leave-it basis.’ [Citations].” (Ibid.) A contract of adhesion is “a ‘standardized contract which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.’ [Citation.]” (Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, 492.)

The conclusion that an arbitration agreement is an adhesion contract “ ‘heralds the beginning, not the end, of [the court’s] inquiry into its enforceability.’ [Citation.] A procedural unconscionability analysis also includes consideration of the factors of surprise and oppression. [Citation.] ‘Procedural surprise focuses on whether the challenged term is hidden in a prolix printed form or is otherwise beyond the reasonable expectation of the weaker party.’ [Citation.]” (Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1571.) “The component of surprise arises when the challenged terms are ‘hidden in a prolix printed form drafted by the party seeking to enforce them.” (Abramson v.

Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 656.) Oppression may be found where a vulnerable party is under pressure to sign the agreement. (See Haydon v. Elegance at Dublin (2023) 97 Cal.App.5th 1280, 1288 [finding oppression where the party was under pressure to sign the agreement and arbitration provision because the party’s condition was declining, the party had limited financial resources, and the facility was offering a discount contingent on the party signing up quickly].) Surprise may be found where a party is presented with a long, dense agreement interspersed with several confusing signature blocks. (Ibid.) “Even where an arbitration provision allows a party to opt out, there may be procedural unconscionability if there is not ‘an authentic informed choice’ to make that decision.” (Ibid.)

As to procedural unconscionability, initially, the Arbitration Agreement is not a contract of adhesion. It clearly states in bold font at the top of the agreement: “Residents shall not be required to sign this arbitration agreement as a condition of admission to this facility.” (Ex. A to Healey Decl.) It also states, “The execution of this Arbitration Agreement is not a precondition to receiving medical treatment, care, services and/or for admission to the Facility and is not a requirement to continue to receive medical treatment, care and services at the Facility.” (Ex. A to Healy Decl., Arbitration Agreement, Article 3.)

Significantly, Plaintiffs fail to present any evidence showing that the Decedent suffered from a brain injury, let alone showing the extent of that injury, or that the Decedent did not have an informed choice to reject the Arbitration Agreement. Plaintiffs do not demonstrate that the Arbitration Agreement is complicated or is difficult to understand. There is no evidence supporting oppression. Nor is there any evidence supporting surprise. The Arbitration Agreement was presented as a separate document.

Moving Defendants submit the Declaration of Jessica Gutierrez who provides that she is an employee of AG Laguna and that on or about April 13, 2023, she went over the admissions process with the Decedent, and explained the Arbitration Agreement to the Decedent in English, including that the agreement was not a precondition for admission to the facility, that it was optional, and that if the Decedent signed the Arbitration Agreement, the Decedent had 30 days within signature to rescind the agreement in writing. (Ex. B to Healey Decl., Declaration of Jessica Gutierrez, ¶¶ 2-3.) Gutierrez also provides that following the explanation, the Decedent agreed to sign the Arbitration Agreement. (Id., ¶ 4.)

There is no evidence disputing the circumstances set forth in the Declaration of Jessica Gutierrez, or otherwise demonstrating that the Decedent was vulnerable or subject to undue pressure. The opposition is supported only by the declaration of counsel for the purpose of attaching a copy of the FAC. (See Declaration of Robert E. Makley.)

Further, Plaintiffs cite to no authority supporting that a drafting party must present evidence showing that the Decedent had an opportunity to review and/or read the Arbitration Agreement prior to signing, and stating whether the Decedent had any questions in response to the explanation of the Arbitration Agreement. Even if the Decedent had questions about the Arbitration Agreement, that is not a basis to deny arbitration. The “mere fact that a contract term is not read or understood by the non-drafting party or that the drafting party occupies a superior bargaining position will not authorize a court to refuse to enforce the contract.” (A&M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486.)

Plaintiffs make a sweeping assertion that “[i]n elder abuse litigation, the trial court may find a high degree of procedural unconscionability because of the relatively uniform context in which arbitration agreements are signed when an elder is admitted to a long-term care facility,” but cite to no cases in support of this assertion. (Opposition, 12:15-17.) Plaintiffs merely cite to “collected cases” in a secondary source.

Based on the foregoing, Plaintiffs fail to meet their burden of demonstrating that the Arbitration Agreement is procedurally unconscionable, and thus, fails to show establish that it is unconscionable. The Court need not address substantive unconscionability under these circumstances. (Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, 494 [“A court should consider substantive unconscionability only after procedural unconscionability has been established”].)

In sum, Moving Defendants have demonstrated the existence of a valid agreement to arbitrate the first through third causes of action of Plaintiffs’ FAC. Plaintiffs fail to establish that Code of Civil Procedure section 1281.2(c) applies to defeat its application, or that the Arbitration Agreement is unconscionable. Thus, the Petition to Compel Arbitration is GRANTED as the first three causes of action of Plaintiffs’ FAC.

The Petition to Compel Arbitration is DENIED as to the fourth cause of action for wrongful death.

Stay The moving papers request that the entire civil action be stayed pending a ruling from the Court on the instant petition to compel arbitration. That request is moot. Additionally, Code of Civil Procedure “section 1281.4 does not provide for an automatic stay” of the action pending a motion or petition to compel arbitration. (Doe v. Second Street Corp. (2024) 105 Cal.App.5th 552, 578 [finding there was no interim stay upon the filing of the motion to compel arbitration as the defendant did not demonstrate either that it had filed a motion to stay separate from its motion to compel arbitration, or that the trial court was required to rule on its stay request prior to the date of the notice hearing on the motion to compel arbitration].)

Based on the language in the Arbitration Agreement expressly incorporating the procedural provisions of the FAA, the FAA’s procedural provisions (9 U.S.C. §§ 3, 4, 10, 11) apply. (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 173-174.)

With regards to a stay of the action upon grant of the petition, “[i]f any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the application for the stay is not in default in proceeding with such arbitration.” (9 U.S.C. § 3.)

The action is STAYED pending completion of arbitration.

The Court sets an ADR Review hearing for September 24, 20265 at 10:30 in C34.

Moving Defendants to give notice.

3. 30-2023-01318153 1. Motion to Enforce Settlement

Feng vs. Feng Defendant/Cross-Complainant Paul Ye-Chou Feng (“Paul”) moves for an order enforcing his settlement agreement with plaintiff/Cross-Defendant Rong Feng (“Ron”).

Code of Civil Procedure section 664.6 states:

If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.

“A court ruling on a motion under Code of Civil Procedure section 664.6 must determine whether the parties entered into a valid and binding settlement. [Citations.] A settlement is enforceable under section 664.6 only if the parties agreed to all material settlement terms. [Citations.] The court ruling on a motion may consider the parties’ declarations and other evidence in deciding what terms the parties agreed to, and the court’s factual findings in this regard are reviewed under the substantial evidence standard. [Citations.] If the court determines that the parties entered into an enforceable settlement, it should grant the motion and enter a formal judgment pursuant to the terms of the settlement. [Citation.]” (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182.)

The parties stipulated that this Court shall retain jurisdiction of this matter regarding any disputes that may arise regarding the interpretation, performance, or enforcement of their settlement agreement pursuant to Code of Civil Procedure section 664.6. (ROA 260.)

The parties entered the settlement agreement on October 17, 2025. (Declaration of William C. Kersten, ¶ 1, Exhibit 1.) It provides that Ron shall receive 100% of Mrs. Feng’s financial assets held at Cathey United Bank in Taiwan and Paul shall receive none. Ron shall pay $278,750 in cash to the William C. Kersten Trust Account and 50% shall be immediately released to Paul and the remaining $139,375 shall remain in the William C. Kersten Trust Account until Ron receives Mrs. Feng’s Taiwan bank assets. The agreement expressly states that “Ron shall use his best efforts to obtain Mrs. Feng’s funds held in Taiwan in a timely manner.”

The agreement notes that Paul has been represented by Ms. Eve Chen of the Eiger Law Office in Taiwan and Ron has been represented by Hung Ou Yang, Esq. in Taiwan and both parties agree to instruct both attorneys to cooperate in order to provide Ron with Mrs. Feng’s assets. Ron shall pay all attorney fees regarding services of Mr. Yang and attorney fees incurred by Ron with regard to any legal services provided by Ms. Chen shall be paid as follows: 75% by Ron and 25% by Paul. Ms. Chen provided Paul with a quote for a $2,500 retainer fee along with an invoice in the same