Tarin v. KND Development 55 CA4/2 (2023) · DecisionDepot
Tarin v. KND Development 55 CA4/2
California Court of Appeal Nov 29, 2023 No. E079065Unpublished
Filed 11/29/23 Tarin v. KND Development 55 CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
MARILYN TARIN et al.,
Plaintiffs and Respondents, E079065
v. (Super.Ct.No. CIVSB2119681)
KND DEVELOPMENT 55, LLC, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Wilfred J.
Schneider Jr., Judge. Affirmed.
Giovanniello Law Group, Alexander F. Giovanniello, and Jennica M. Janssen for
Defendant and Appellant.
Law Office of Nicholas Heiman and Nicholas Heiman for Plaintiffs and
Respondents.
Four siblings sued the hospital where their mother died, asserting claims as her
successors in interest and as individuals. The trial court denied the hospital’s petition to
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compel arbitration based on an agreement signed by one of the children, whom the
decedent had designated as her agent for healthcare decisions. We affirm that ruling.
I. FACTS
According to the complaint, in December 2020, after almost a month of treatment
at another hospital, 83-year-old Luesther Hubbard was transferred to Kindred Hospital
Rancho, which is the trade name of defendant and appellant KND Development 55, LLC
(Kindred). She had been “placed on a ventilator for respiratory assistance” at her
previous hospital. At Kindred’s facility, she was “provided a tracheostomy with the
expectation she would be weaned from the ventilator and discharged home under hospice
care.” On the afternoon of January 12, 2021, during a video conference with some of her
adult children, she had a medical emergency; after several minutes of “coughing,
choking, and struggling to breathe” she became “silent and unresponsive.” Efforts to
revive her were unsuccessful, and she was pronounced dead shortly before 1 a.m. the
next morning.
Luesther Hubbard’s adult children—plaintiffs and respondents Marilyn Tarin,
Dianne Yancy, Ernest Hubbard, and Vincent Hubbard—sued Kindred in July 2021.
Their complaint alleges five causes of action: (1) elder abuse and neglect; (2) medical
malpractice; (3) violation of patient rights; (4) negligent infliction of emotional distress;
and (5) wrongful death. The first three are survivor claims, asserted by plaintiffs as their
mother’s successors in interest. The fourth cause of action encompasses individual
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claims by Tarin and Yancy, who witnessed their mother’s fatal medical emergency
during the video call. The fifth cause of action is asserted by all plaintiffs as individuals.
In March 2022, Kindred moved to compel arbitration. By a “Power of Attorney
for Health Care” (power of attorney) executed in October 2020, Luesther Hubbard had
designated Tarin “to make all health-care decisions” for her, if needed. The power of
attorney does not expressly address arbitration agreements or resolution of legal claims.
Nevertheless, among the documents Tarin signed on her mother’s behalf in December
2020, a few days after her transfer to Kindred’s hospital, was a “Voluntary Alternative
Dispute Resolution (ADR) Agreement” (ADR agreement). The ADR agreement, in
addition to the word “Voluntary” in its title, also specifies immediately below its title that
“[s]igning this agreement is not a precondition to the furnishing of services . . . .”
The ADR agreement includes the provisions required by statute for “[a]ny contract
for medical services which contains a provision for arbitration of any dispute as to 1 professional negligence of a health care provider.” (Code Civ. Proc., § 1295, subd. (a).)
So, the first article specifies any dispute over unnecessary, unauthorized, or negligently
or incompetently rendered medical services will be submitted to arbitration, rather than
brought as a lawsuit in court proceedings. And the last article before the signature line
provides notice of the election of arbitration and waiver of the right to a jury or court
trial. (§ 1295, subds. (a) & (b).) The ADR Agreement specifies the election of
arbitration also “covers any claim or action brought by a party other than you (e.g. an
1 Undesignated statutory references are to the Code of Civil Procedure.
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action by your spouse, legal representative, agent, heir) arising out of or relating to your
hospitalization [. . .] against the hospital or its employees.”
The trial court denied Kindred’s petition. The court found Tarin’s authority to
make healthcare decisions did not include the power to enter into an arbitration
agreement for her mother. It further found that, assuming she had that power, signing the
ADR agreement as her mother’s agent did not bind her or her siblings as individuals.
II. DISCUSSION
A. Applicable Law
“The Federal Arbitration Act (FAA) provides arbitration agreements are ‘valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the
revocation of any contract.’” (Logan v. Country Oaks Partners, LLC (2022) 82
“‘“[E]ven when the [FAA] applies, [however], interpretation of the arbitration agreement
is governed by state law principles . . . . Under California law, ordinary rules of contract
interpretation apply to arbitration agreements . . . . “‘The fundamental goal of contractual
interpretation is to give effect to the mutual intention of the parties.”’”’” (Logan, at p.
370, quoting Valencia v. Smyth (2010) 185 Cal.App.4th 153, 177.)
“Public policy favors contractual arbitration as a means of resolving disputes.”
(Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th
1047, 1057.) Generally, “that policy ‘“‘does not extend to those who are not parties to an
arbitration agreement, and a party cannot be compelled to arbitrate a dispute that he has
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not agreed to resolve by arbitration.’”’” (Ibid.) “However, there are exceptions. For
example, a patient who signs an arbitration agreement at a health care facility can bind
relatives who present claims arising from the patient’s treatment.” (Flores v. Evergreen
at San Diego, LLC (2007) 148 Cal.App.4th 581, 587; see also, e.g. Buckner v. Tamarin
(2002) 98 Cal.App.4th 140, 142 [agents can bind principals; spouses can bind each other;
and parents can bind minor children]; Suh v. Superior Court (2010) 181 Cal.App.4th
1504, 1513 [listing additional exceptions].)
“[W]hen a petition to compel arbitration is filed and accompanied by prima facie
evidence of a written agreement to arbitrate the controversy, the court itself must
determine whether the agreement exists and, if any defense to its enforcement is raised,
whether it is enforceable.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14
Cal.4th 394, 413 (Rosenthal).) “Because the existence of the agreement is a statutory
prerequisite to granting the petition, the petitioner bears the burden of proving its
existence by a preponderance of the evidence.” (Ibid.) In deciding the petition, “the trial
court sits as a trier of fact, weighing all the affidavits, declarations, and other
documentary evidence, as well as oral testimony received at the court’s discretion, to
reach a final determination.” (Engalla v. Permanente Medical Group, Inc. (1997) 15
Cal.4th 951, 972.)
If the court’s order denying a motion to compel arbitration is based on a decision
of fact, then we review for whether substantial evidence supports the order. (Robertson
v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.) “[I]f the court’s
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denial rests solely on a decision of law, then a de novo standard of review is employed.”
(Ibid.) Here, it is undisputed that Tarin was appointed her mother’s agent for healthcare
decisions and that she signed the ADR agreement. The parties raise only legal questions
arising from those facts, so our review is de novo.
B. Analysis
In Kindred’s view, the trial court should have allowed the arbitrator to determine
whether the claims are subject to arbitration under the ADR agreement, rather than the
trial court itself making that determination. Kindred asserts that the arbitration agreement
“contains a delegation clause . . . mandating that the ADR Agreement governs any
disputes including ‘interpretation, applicability, enforceability, or formation of this
Agreement.’” For the quoted language, Kindred cites only a particular page of the ADR
agreement. Citing Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 242 (Tiri),
Kindred argues such language is “enforceable” because it is “clear and unmistakable” and
“not revocable under state contract defenses such as fraud, duress, or unconscionability.”
There is a fatal flaw in Kindred’s argument. The ADR Agreement does not include
the language that Kindred purports to quote from a delegation clause. The ADR
agreement lists “interpretation of this ADR Agreement” among other types of “claims”
subject to alternative dispute resolution, but it makes no mention of disputes over the
agreement’s applicability, enforceability, or formation. In contrast, the arbitration
agreement found enforceable in Tiri said “unambiguously that ‘[t]he Arbitrator, and not
any federal, state, or local court or agency, shall have the exclusive authority to resolve
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any dispute relating to the interpretation, applicability, enforceability, or formation of this
Agreement.’” (Tiri, supra, 226 Cal.App.4th at p. 242 (italics added).) Kindred’s opening
brief acknowledges the “present dispute” is about “the enforceability of the ADR
Agreement,” not its interpretation. We conclude Kindred has not demonstrated a clear
and unmistakable delegation clause applies because Kindred has relied on language not in
the agreement. The trial court was correct to rule on the merits of the petition to compel 2 arbitration. (See Rosenthal, supra, 14 Cal.4th at p. 413.)
The parties’ dispute about enforceability has several layers. Did Tarin’s authority
to make healthcare decisions for her mother include the authority to enter into an
arbitration agreement on her behalf, enforceable against her and (since her death) her
successors in interest? Is the arbitration agreement Tarin signed as her mother’s agent
binding on Tarin as an individual? And did Tarin have the power to enter an arbitration
agreement enforceable as to the other plaintiffs’ individual claims? We begin our
discussion with the first of these questions, and the answer we reach means that we need
not address the others.
California law is unsettled as to whether an agent’s authority to make healthcare
decisions on behalf of the principal includes the authority to execute an optional
arbitration agreement. In Garrison v. Superior Court (2005) 132 Cal.App.4th 253
2 Respondents’ brief points out that the ADR agreement contains no delegation clause. Kindred chose to ignore the matter in its reply brief. Having made a significant mistake in the opening brief, the better practice would have been to acknowledge that the language mistakenly quoted in the opening brief does not exist in the case.
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(Garrison), the court stated broadly that an agent’s power to make “health care decisions”
includes the power to enter into agreements requiring arbitration of medical malpractice
and other claims related to medical care. (Id. at pp. 264, 267; see also Hogan v. Country
Villa Health Services (2007) 148 Cal.App.4th 259, 262 (Hogan) [following Garrison].)
Garrison did not decide whether individual wrongful death claims by the patient’s
children and grandchildren were also subject to arbitration, instead remanding to the trial
court for further proceedings. (Garrison, at p. 267.)
In Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, the court
distinguished Garrison on its facts. (See also Fitzhugh v. Granada Healthcare &