Monschke v. Timber Ridge Assisted Living, LLC

Filed 1/29/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

VALERIE MONSCHKE, as Personal Representative, etc., Plaintiff and Respondent, A144289

v. (Humboldt County TIMBER RIDGE ASSISTED LIVING, Super. Ct. No. DR140247) LLC, Defendant and Appellant.

Plaintiff Valerie Monschke, acting as personal representative for the estate of her mother, Marjorie Fitzpatrick (decedent), filed this suit for wrongful death and elder abuse against defendant Timber Ridge Assisted Living, LLC. Defendant petitioned to compel arbitration on the ground plaintiff, on behalf of decedent, had signed an agreement with an arbitration clause before enrolling decedent in defendant’s facility. The trial court denied the petition, finding the wrongful death claim had been brought on behalf of decedent’s surviving children, and the children were not parties to the arbitration agreement. The trial court also declined to submit the elder abuse claim to arbitration because of the possibility of conflicting rulings. Defendant now appeals, arguing the trial court erred in finding plaintiff was not bound by the arbitration agreement. Among other things, defendant contends plaintiff stepped into the shoes of decedent by filing this action as personal representative of decedent’s estate. We disagree and affirm.

I. BACKGROUND Decedent had three daughters, one of whom is plaintiff. In or around 2005, decedent began suffering from dementia. In 2012, plaintiff enrolled decedent into one of defendant’s facilities because it had a memory care unit. On June 30, 2012, plaintiff, acting as power of attorney for decedent, executed a residency agreement allowing defendant to provide core living services for decedent. The residency agreement contained an arbitration clause, which states in relevant part: “[Y]ou agree that any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at Timber Ridge shall be resolved by submission to neutral, binding arbitration . . . . This arbitration clause binds all parties to this Agreement and their spouse, heirs, representatives, executors, administrators, successors, and assigns, as applicable.” In April 2014, plaintiff, as personal representative of decedent’s estate, filed a complaint for elder abuse and wrongful death against defendant. The complaint alleges the following: On the evening of September 28, 2013, decedent was allowed to exit an exterior door of defendant’s facility without supervision. Decedent lingered outside the facility unattended and suffered a fall. She was left outside for 30 to 45 minutes, and suffered displacement of her right wrist, a subarachnoid hemorrhage, a downward displaced fracture of the tip of her nasal bone, an intravicular hematoma, and multiple facial bruises. Decedent died of her injuries two weeks later. Defendant petitioned the trial court to compel binding arbitration as to all of plaintiff’s claims. The court denied the petition, stating there was “the possibility of conflicting rulings if this action is split between claims that can be forced into arbitration and those that cannot.” As to defendant’s argument that the action did not involve any plaintiff other than the signatory to an agreement to arbitrate, the court stated: “[Plaintiff]’s action was effectively brought on behalf of the decedent’s surviving children by virtue of section 377.60 of the Code of Civil Procedure, which authorizes [plaintiff] to bring the surviving children’s claims ‘on their behalf’ in [plaintiff]’s capacity as the decedent’s personal representative.”