Ferrari v. Capistrano Beach Care Center CA4/3

Filed 2/2/23 Ferrari v. Capistrano Beach Care Center 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DEBORAH FERRARI et al.,

Plaintiffs and Respondents, G060873

v. (Super. Ct. No. 30-2021-01209277)

CAPISTRANO BEACH CARE OPINION CENTER, LLC, et al.,

Defendants and Appellants.

Appeal from an order of the Superior Court of Orange County, Richard J. Oberholzer, Judge. (Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and remanded in part with instructions. Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre, Suzanne L. Schmidt, Kathleen M. Walker, Jeffrey S. Healey and Tracy Forbath, for Defendants and Appellants. Gharibian Law, Art Gharibian, Alexander H. Feldman and Justin L. Vitug, for Plaintiffs and Respondents.

INTRODUCTION Capistrano Beach Care Center, LLC, and Cambridge Healthcare Services, LLC (collectively Capistrano), appeal from an order of the trial court denying their petition to compel arbitration in an action brought by Deborah Ferrari on behalf of herself and her deceased husband, Charles Koelzer. Ferrari sued Capistrano, a rehabilitation facility, after her husband died as a result of the last of three falls occurring during the week after his admission. Capistrano moved to compel arbitration on the grounds that Ferrari, as Koelzer’s agent, had agreed to arbitration any claim he had against the facility and that she had also agreed to arbitrate any claim she herself had. The court denied the petition to compel arbitration on the ground that Capistrano had failed to carry its burden to show that Ferrari was Koelzer’s agent, either actual or ostensible, and was authorized to waive his right to a jury trial. We partially affirm the order. The trial court’s decision that Capistrano failed to carry its burden is reversible only if its evidence was “uncontradicted and unimpeached.” Ferrari’s evidence contradicted Capistrano’s in nearly every aspect, and the trial court’s ruling was based on this evidence. We therefore affirm the order denying Capistrano’s petition to compel the arbitration of Koelzer’s claims against it. The trial court did not, however, rule on the issue of whether Ferrari’s own claim, for wrongful death, was arbitrable. We return the matter to the trial court to rule on this issue. FACTS Koelzer was admitted to Capistrano at age 79 in July 2020, after being hospitalized for pneumonia. At his admission, the Capistrano nursing staff allegedly failed to assess him for risk of falls, despite his having a history of falls, muscle weakness, and difficulty walking.