Pelter v. 1-800-GET-THIN, LLC CA2/1

Filed 10/28/14 Pelter v. 1-800-GET-THIN, LLC CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

MICHELE PELTER, Individually and as B250124 Special Administrator, etc., (Los Angeles County Plaintiff and Respondent, Super. Ct. No. BC491048)

v.

1-800-GET-THIN, LLC, et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of Los Angeles County, Samantha P. Jessner, Judge. Affirmed. Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz, Jack R. Reinholtz and Douglas S. de Heras for Defendants and Appellants. Walker, Hamilton & Koenig, Timothy M. Hamilton and Beau R. Burbidge for Plaintiff and Respondent. ____________________________

Michele Pelter filed a complaint alleging medical malpractice and other causes of action related to the death of her sister after lap band surgery. The trial court denied the defendants’ motion to compel arbitration and they appeal. We affirm. Pelter filed the complaint on September 7, 2012, individually and as special administrator of the estate of her sister, Paula Rojeski, against 1-800-GET-THIN, LLC; Valley Surgical Center; Julian Omidi, Michael Omidi, M.D., and Cindy Omidi, doing business as Valley Surgical Center; and three physicians. The complaint alleges that Rojeski died on September 8, 2011 as a result of the defendants’ negligence in performing lap band surgery, and included claims of breach of medical professional obligation, wrongful death, and fraud and concealment. Defendants 1-800-GET-THIN, Valley Surgical Center, and Julian, Michael, and Cindy Omidi (defendants) filed a petition to compel arbitration on April 24, 2013, attaching three arbitration agreements dated May 18, 2011, June 4, 2011, and September 18, 2011 (the day of Rojeski’s death). Only the May 18, 2011 agreement is in issue on this appeal. The defendants alleged they were “contracting parties and/or third party beneficiaries and/or alleged agents.” A declaration by Roberto Macatangay states that he is the Chief Executive Officer of Valley Surgical Center and Beverly Hills Surgery Center (which is not a party to this lawsuit), and that the general custom and practice of Valley Surgical Center is to offer all patients the opportunity to sign an arbitration agreement, which if signed is retained by a custodian of records in the ordinary course of business, with a copy provided to the patient. Before Valley Surgical Center rendered medical services to Rojeski, she signed the three agreements, including the May 18, 2011 agreement, a true and correct copy of which was attached. The one-page generic agreement, entitled only “PHYSICIAN-PATIENT ARBITRATION AGREEMENT,” provides that both parties agree to arbitrate any medical malpractice dispute. “Paula Rojeski” in handwriting appears on the signature line for “Patient’s or Patient Representative’s Signature,” her name is hand-printed below, and the initials “P.R.” appear as “Patient’s or Patient Representative’s Initials.” The handwritten date next to the signature line is May 18, 2011. There is no signature on