Swayne v. Torrance Care Center West, Inc.

68 Cal.Rptr.3d 588 (2007) 157 Cal.App.4th 172 Earl SWAYNE, et al., Plaintiffs and Respondents,

v.

TORRANCE CARE CENTER WEST, INC., et al., Defendants and Appellants.

No. B195353. Court of Appeal of California, Second District, Division Four.

November 26, 2007. [589] Lewis, Brisbois, Bisgaard & Smith, Bryan R. Reid and Jennifer C. Hsu, San Bernardino, for Defendants and Appellants.

Berglund, Johnson & Sommer, Rana Kawar and Jerrie S. Weiss, Woodland Hills, for Plaintiffs and Respondents.

WILLHITE, J.

Defendants Torrance Care Center West, Inc., dba Torrance Care Center West (hereafter "TCC") and William Nelson appeal from the trial court's denial of their petition to compel arbitration of the claims made by plaintiffs Earl Swayne, et al. We conclude that the arbitration agreements at issue are unenforceable, because they fail to contain a properly displayed disclosure stating that consent to arbitration is not a precondition for admission or medical treatment. (See Health & Saf.Code, § 1599.81, subd. (a); Title 22, Cal.Code Regs., § 72516, subd. (d).) Therefore, we affirm.

BACKGROUND

TCC is a skilled nursing facility.[1] Plaintiffs are the surviving heirs of Lillie Rogers, and the executor of her estate. Plaintiffs filed a complaint against TCC and Nelson (TCC's owner/operator), alleging that TCC failed to provide adequate care to Lillie Rogers during her residency from March 1, 2004 to April 5, 2005, resulting in her death. Plaintiffs alleged causes of action for, among other things, elder abuse, wrongful death, intentional infliction of emotional distress, and professional negligence.[2]

TCC and Nelson petitioned to compel arbitration. They produced copies of a power of attorney executed by Lillie Rogers on April 24, 2003, in favor of her granddaughter Gwendolyn McCall (one of the plaintiffs), and of two arbitration agreements executed by McCall upon Rogers' admission to TCC on March 1, 2004. The arbitration agreements (one of which related specifically to medical malpractice claims, and the other to services provided by TCC) were comprehensive, and in substance required arbitration of all claims arising from Rogers' treatment or care, except for claims under the Patients' Bill of Rights covered by Health and Safety Code section 1430 and Title 22, California Code of Regulations, section 72527.