White v. Dupont Residential Care CA4/3

Filed 3/11/14 White v. Dupont Residential Care CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

LESLIE ROSEMAN WHITE et al.,

Plaintiffs and Respondents, G048204

v. (Super. Ct. No. 30-2011-00516150)

DUPONT RESIDENTIAL CARE, INC. et OPINION al.,

Defendants and Appellants.

Appeal from an order of the Superior Court of Orange County, Craig L. Griffin, Judge. Affirmed. Beach Whitman Cowdrey, Thomas E. Beach, David W. Loy and Darryl C. Hottinger for Defendants and Appellants. Valentine Law Group, Kimberly A. Valentine and Jennifer L. Turner for Plaintiffs and Respondents.

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Defendants Dupont Residential Care, Inc., doing business as Irvine Cottages (Irvine Cottages), its owner Jacqueline Dupont, and one of its employees Ellen Adaci, appeal from an order denying their petition to compel arbitration of this action for wrongful death and elder abuse. (Code Civ. Proc., § 1294, subd. (a); all further statutory references are to this code.) They argue the trial court erred in finding (1) their litigation conduct and the delay in petitioning for arbitration resulted in a waiver of the right to arbitrate the underlying action, and (2) plaintiffs Leslie Roseman White and Gail Israel are not bound by the agreement containing the arbitration clause because they did not sign it in their individual capacities. Finding no error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On October 18, 2011, plaintiffs filed the original complaint in this action. It contained two causes of action. The first, “brought for the benefit of [Sylvia Jacoby’s] heirs” was entitled “professional negligence – medical malpractice and wrongful death.” (Capitalization omitted.) The second, by plaintiffs as Jacoby’s “personal representatives,” was entitled “reckless neglect & willful misconduct, abuse of an elder . . . .” (Capitalization omitted.) The complaint alleged plaintiffs were Jacoby’s daughters. In mid-October 2010, Irvine Cottages, a residential care facility, undertook the care of Jacoby, who was then 87 years old and suffering from dementia. Several days later, an employee administered medications to Jacoby in a negligent or reckless manner, resulting in her being taken to a hospital where she subsequently died from aspirational pneumonia. Plaintiffs filed a first amended complaint in December stating causes of action for wrongful death and elder abuse. Its prayer sought damages for Jacoby’s pain and suffering, plus an award of attorney fees.