Yiting Zhao et al v. Dr. Yueyue Guo, LAc et al

Ms. Zhao maintains she has sustained “ongoing physical pain, emotional distress, and limitations in her mobility and daily functioning.” (Ibid.)

Mr. Tian alleges he has suffered from a “loss of consortium as a result of his wife’s injuries.” (Ibid.)

Defendants now petition the Court to compel arbitration of Plaintiffs’ claims pursuant to an Arbitration Agreement (“the Agreement”) executed by Ms. Zhao as a condition of treatment.

Having reviewed the Agreement, the Court concludes the petition to compel arbitration should be continued.

PROCEDURAL MATTERS

Under the California Arbitration Act (Code Civ. Proc. §§ 1280-1294.2), “[a] copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based shall be served in the manner provided [herein].” (Id. At § 1290.4, subd. (a).)

“A response shall be served and filed within 10 days after service of the petition . . . The time provided in this section for serving and filing a response may be extended by an agreement in writing between the parties to the court proceeding or, for good cause, by order of the court.” (Id. At § 1290.6.)

If a response is not “duly served and filed,” the allegations of the petition are deemed to be admitted.” (Id. At § 1290.)

Defendants served their petition to compel arbitration on November 14, 2025.

On May 26, 2025, Plaintiffs filed “Proposals as to Content of Statement of Decision” nine days after Defendants filed their memorandum of points and authorities in support of the petition to compel arbitration.

Therein, Plaintiffs do not oppose the petition to compel arbitration, but instead request the Court make no findings as to the merits of Plaintiffs’ claims or Defendants’ defenses. (Plaintiffs’ Proposals Re Statement of Decision at p. 2:3-6.)

On June 1, 2026, Plaintiffs filed an opposition to Defendants’ petition to compel arbitration.

Defendants maintain the opposition is untimely because it does not adhere to the statutory timeline proscribed by Code of Civil Procedure section 1290.6.

Plaintiffs have instead filed their opposition pursuant to Code of Civil Procedure section 1005, subdivision (b) or nine court days before the hearing.

Defendants argue the legislature has specifically created a different procedure for petitions brought under the California Arbitration Act. (Reply at p. 3:12-13.)

Consistent with the above, “[c]ourts have long acknowledged that the trial court may consider untimely filed and served response papers, when no prejudice to the petition is shown, without an order extending the 10-day time period of section 1290.6.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847 (Ruiz).)

Good cause has been found where the petition has been treated as a motion rather than a petition. (Ibid.)

“[I]t is not clear that the arbitration petition statute—rather than the general motion statute—governs the timing requirements when a complaint has been filed in court.” (Correia v. NB Baker Electric, Inc. (2019) 32 Cal.App.5th 602, 613 (Correia).)

“The term ‘petition,’ however, has been construed in practice, to include the term ‘motion’ when, as here, an action is already pending.” (Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 349.)

A lack of prejudice has been shown where the moving party files and serves reply papers in accordance with section 1005, subdivision (b).

This is consistent with treating the petition as a motion because the California Arbitration Act does not contemplate the filing and service of reply papers. (Ruiz, supra, 232 Cal.App.4th at pp. 847-848; Correia, supra, 32 Cal.App.5th at pp. 613.)

A complaint was filed in this action prior to the petition to compel arbitration.

Thus, the petition can be construed as a motion since the action is already pending.

Defendants filed reply papers five court days before the hearing in accordance with section 1005, subdivision (b).

Defendants are, therefore, not prejudiced by the opposition as they have had ample opportunity to respond to the arguments therein.

Accordingly, the petition may be treated as a motion such that Plaintiffs’ opposition to it is timely.

Since good cause exists to consider the opposition, the court declines to deem the allegations of the petition admitted.

LEGAL STANDARD

Defendants maintain the Federal Arbitration Act (“FAA”) governs the Arbitration Agreement because their operations affect interstate commerce. (Memorandum of Points & Authorities [“MPA”] at p. 4:19-8:8.)

The basic coverage provision of the FAA “makes the law applicable to contracts evidencing a transaction ‘involving commerce’ (9 U.S.C. § 2), which language reflects that Congress intended the law’s coverage to extend to the full reach of its commerce clause power.” (Nieto v. Fresno Beverage Co. (2019) 33 Cal.App.5th 274, 279 [internal citations omitted].)

“Congress Commerce Clause power ‘may be exercised in individual cases without showing any specific effect upon interstate commerce’ if in the 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].)

In Scott v. Yoho (2016) 248 Cal.App.4th 392, 401-402, the court there found that the defendants’ medical practice bore on interstate commerce because the medical supplies used originated from outside California, defendants advertised on the Internet and communicated with out-of-state patients, and the medical practice had contacts with out-of-state companies.

The court concluded, “[n]o doubt, the liposuction procedure was conducted in California by a state licensed doctor on an in-state patient. But there is sufficient nexus with interstate commerce to require enforcement of the three arbitration agreements under the Federal Arbitration Act.” (Ibid.)

Likewise, here, CAC purchases supplies and equipment from vendors located both inside and outside California. (Declaration of Wing Yang-Vivian IP at ¶ 19.)

It receives shipments through interstate commercial carriers and processes payments through interstate banking and credit card networks. (Ibid.)

CAC “procures professional liability insurance through out-of-state entities and conducts business communications and transactions through internet-based and interstate telecommunications systems.” (Ibid.)

The Court finds that this activity creates a sufficient nexus with interstate commerce to require enforcement of the Agreement under the FAA.

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]; see also Ingle v. Circuit City Stores, Inc. (9th Cir. 2003) 328 F.3d 1165, 1170.)

Alternatively, the CAA governs the Arbitration Provision.

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.

In determining the threshold question of 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); see also 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 A valid agreement to arbitrate exists between the parties.

“The moving party bears the burden of producing prima facie evidence of a written agreement to arbitrate the controversy. The moving party can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party’s] signature.” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158 [internal citations and quotations omitted].)

Defendants have attached a copy of the Arbitration Agreement to their petition. (Petition to Compel Arbitration, Ex. A.)

The Agreement was signed by Ms. Zhao on November 16, 2022. (Ibid.)

“A party’s acceptance of an agreement to arbitrate may be express, as whether a party signs the agreement.” (Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 777 [internal citations and quotations omitted].)

Ms. Zhao never revoked the Agreement in accordance with its provisions. (See Petition to Compel Arbitration, Ex. A. at Article 5.)

Defendants have, therefore, met their initial burden of proving the existence of a valid agreement to arbitrate.

The Scope of Plaintiffs’ Claims are Covered by the Agreement The scope of the agreement is covered by Plaintiffs’ claims.

Here the Arbitration Agreement provides that it applies to: . . . 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 and federal law, and not by a lawsuit or resort to court process except as California and federal law provide for judicial review of arbitration proceedings. (Petition to Compel Arbitration, Ex. A at Article 1.)

In this action, Plaintiffs bring the sole cause of action for professional negligence and assert that Dr. Guo’s use of a smoke-free moxibustion appliance caused Ms. Zhao third-degree burns on both her of her knees. (Complaint at p. 4.)

Plaintiffs allege “as a result of Defendants’ negligent use of this machine—without appropriate assessment, informed consent, or precaution—Plaintiff Zhao sustained significant injuries requiring multiple debridement procedures both domestically and abroad.” (Ibid.)

Thus, Plaintiffs claim for medical malpractice rests on the allegation that medical services were negligently rendered and is encompassed by the Arbitration Agreement.

To the extent Mr. Tian alleges a claim for loss of consortium, that is also encompassed by the Arbitration Agreement.

The Agreement specifically provides, “[i]t is the intention of the parties that this agreement bind all parties as to all claims, including claims arising out of or relating to treatment or services provided by the healthcare provider including any heirs or past, present, or future spouse(s) of the patient in relation to all claims including loss of consortium.” (Petition to Compel Arbitration, Ex. A at Article 2.)

The Agreement further states, “[a]ll claims for monetary damage . . . must be arbitrated including, without limitation, claims for loss of consortium . . . .” (Ibid.)

Therefore, all of Plaintiffs’ claims are covered by the scope of the Agreement.

The Delegation Clause is Clear and Unmistakable

Defendants maintain any defenses to arbitration must resolved by the arbitrator. (MPA at p. 8:22-10:8.)

The question of whether the parties agreed to arbitrate a particular dispute is generally to be decided by the court. (AT&T Technologies, Inc. v. Communications Workers of America (1986) 475 U.S. 643, 649.)

The parties may, however, agree to submit the arbitrability question itself to arbitration. (First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 943.)

Courts should find that the parties agreed to arbitrate arbitrability only where there is clear and unmistakable evidence that they did so, resolving any ambiguity in favor of a finding that the issue is for the court to determine. (Id. At pp. 944-45.)

In this regard, the Agreement states, “[i]t is also understood that any dispute that does not relate to medical malpractice, including as to whether or not a dispute is subject to arbitration, as to whether this agreement is unconscionable, and any procedural disputes, will also be determined by submission to binding arbitration.” (Petition to Compel Arbitration, Ex. A at Article 2.)

The language of the delegation clause here is clear and unmistakable that the parties agreed to delegate both threshold issues of arbitrability as well as issues of enforceability to the arbitrator.

The Court makes no determination on the merits of Plaintiffs’ claims or Defendants’ defenses whether related to liability or damages.

Plaintiffs may pursue all claims, damages, arguments, and responses to Defendants’ defenses in arbitration, as these matters are more properly heard by the arbitrator.

Plaintiffs’ Unconscionability Arguments Implicate the Delegation Clause Plaintiffs argue the fee sharing provision is unconscionable to the extent it requires them to pay costs unique to arbitration.

While issues pertaining to unconscionability are otherwise delegated to the arbitrator, in this instance, “any claim of unconscionability must be specific to the delegation clause.” (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 895.)

The Court finds that these arguments implicate the delegation clause because prohibitive costs can create a barrier to accessing arbitration as a forum in the first place.

The Agreement provides, “[e]ach party to the arbitration shall pay such party’s equal share of the expenses and fees of the neutral arbitrator, together with other expenses of the arbitration incurred or approved by the neutral arbitrator, not including counsel fees, witness fees, or other expenses for such party’s own benefit.”

Plaintiffs acknowledge that the parties are responsible for their own attorney fees and litigation expenses.

The fee-shifting provision here mirrors Code of Civil Procedure section 1284.2, which provides: Unless the arbitration agreement otherwise provides or the parties to the arbitration otherwise agree, each party to the arbitration shall pay his pro rata share of the expenses and fees of the neutral arbitrator, together with other expenses of the arbitration incurred or approved by the neutral arbitrator, not including counsel fees or witness fees or other expenses incurred by a party for his own benefit.

“In determining the affordability of arbitration costs, a court should conduct a case-bycase analysis, with the party resisting arbitration bearing the burden of showing the likelihood of prohibitive costs.” (Penilla v. Westmont Corp. (2016) 3 Cal.App.5th 205, 218.)

Plaintiffs have not produced any evidence of financial hardship.

In Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 90-91, the court found the fee-shifting provisions unconscionable only after the plaintiffs “presented substantial evidence in the trial court that the administrative fees exceeded their ability to pay.

Gutierrez submitted a declaration setting forth plaintiffs’ income, expenses, and savings, and provided the court with a copy of the AAA rules in effect at the time AutoNation moved to compel arbitration.”

Here, Plaintiffs have not provided any declarations setting forth their income, expenses, and savings otherwise indicating their inability to pay for arbitration.

Plaintiffs request a brief continuance to do so but have not explained why any such evidence could not be submitted with their opposition papers.

Nevertheless, the court will grant Plaintiffs a brief continuance to submit evidence of financial hardship as it cannot determine unconscionability without more information. (Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 96 [remanding the case to the trial court with directions to make express findings “concerning the plaintiffs’ claimed inability to share the cost of arbitration”].)

Accordingly, the petition to compel arbitration is CONTINUED.

CONCLUSION

The petition to compel arbitration is CONTINUED to September 4, 2026 at 9:00 a.m. in Department 12.

Plaintiffs must provide supplemental evidence of financial hardship by submitting income and expense declaration.

Defendants’ reply, if any, should be filed 5 court days before the hearing.

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