Baker v. Italian Maple Holdings

Filed 7/31/17
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TALMADGE BAKER, Individually and as D069797
Personal Representative, etc., et al.,

Plaintiffs and Respondents,
(Super. Ct. No. 37-2015-00029207-
v. CU-PO-NC)

ITALIAN MAPLE HOLDINGS, LLC, et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of San Diego County,

Earl H. Maas III, Judge. Reversed.

Williams Iagmin and Jon R. Williams for Defendants and Appellants.

Pick Law and Lukas I. Pick for Plaintiffs and Respondents.

I.

INTRODUCTION

Marlene Baker LaBerge, a 73-year-old woman, was a resident and patient of a 24-

hour skilled nursing facility owned by Italian Maple Holdings, LLC dba La Paloma

Healthcare Center (La Paloma). Approximately a week after LaBerge arrived at the

facility, La Paloma's staff presented LaBerge with two arbitration agreements that
included language required by Code of Civil Procedure1 section 1295, subdivision (c).

Section 1295, subdivision (c) requires such agreements to include a 30-day "cooling off"

period, during which the parties to the agreement may rescind it. Ten days after LaBerge

signed the agreements (and therefore, prior to the expiration of the statutorily-required 30-

day rescission period), LaBerge passed away.

LaBerge's heirs, Paul LaBerge, Suzanne Marx, and Talmadge Baker (collectively

Plaintiffs) sued La Paloma and Plum Healthcare, LLC (together Defendants) for elder

abuse, violations of the Patient's Bill of Rights as codified at Health and Safety Code

section 1430, negligence, and wrongful death. In response, Defendants filed a petition to

compel arbitration based on the two arbitration agreements that LaBerge had executed.

The superior court denied the petition to compel arbitration, relying on Rodriguez v.

Superior Court (2009) 176 Cal.App.4th 1461 (Rodriguez) to conclude that the agreements

were not effective until the 30-day rescission period passed without either party

rescinding the agreements; because LaBerge died before the expiration of the 30-day

rescission period, the agreements could not be given effect.

On appeal, Defendants contend that the trial court erred in concluding that the

agreements were not effective until after the 30-day rescission period. They argue that

this court should decline to follow Rodriguez, supra, 176 Cal.App.4th 1461 because that

case is factually distinguishable from the instant matter, and further contend that the

Rodriguez court erroneously interpreted section 1295, subdivision (c). Alternatively,

1 Statutory references are to the Code of Civil Procedure unless otherwise specified.
2
Appellants maintain that this court should follow the recent case of Scott v. Yoho (2016)

248 Cal.App.4th 392 and conclude that the 30-day rescission period contained in section

1295, subdivision (c) violates the Federal Arbitration Act (FAA) and is thus preempted.

We conclude that the trial court erred in interpreting section 1295, subdivision (c),

and that the arbitration agreements are valid and enforceable. In reaching this conclusion,

we disagree with the court's analysis in Rodriguez, supra, 176 Cal.App.4th 1461. Section

1295, subdivision (c) establishes that an arbitration agreement executed by the parties

"governs . . . until or unless" either party rescinds within the 30-day rescission period. In

this case, the parties entered into two agreements that conform with the requirements of

section 1295, and that specifically provide that they become effective upon their

execution. Pursuant to the plain language of section 1295, subdivision (c), the terms of

those agreements governed the parties' relationship upon their execution; the fact that one

signatory died before the expiration of the statutory 30-day rescission period does not

render the terms of the parties' agreements unenforceable in the absence of other grounds

for not enforcing them.2

We therefore reverse the trial court's order denying Defendants' motion to compel

arbitration.

2 Because our interpretation of the effect of section 1295, subdivision (c) requires
reversal of the order denying Defendants' motion to compel arbitration, we decline to
address Defendants' alternative arguments for reversal.
3
 II.

FACTUAL AND PROCEDURAL BACKGROUND

LaBerge was admitted to La Paloma's 24-hour care nursing facility on September

18, 2014. At that time, she was diagnosed with high blood pressure and osteomyelitis (a

bone infection).

A week after LaBerge's admission to the nursing facility, staff from the facility

presented LaBerge with two arbitration agreements. The first one was entitled

"Attachment F [¶] Arbitration of Medical Malpractice Disputes [¶] (Optional for

Residents and Facility)" (Attachment F, some capitalization omitted). The second one

was entitled "Attachment G [¶] Arbitration of Dispute Other Than Medical Malpractice

[¶] (Optional for Residents and Facility)" (Attachment G, some capitalization omitted).

Attachments F and G both contained the following language:

"By signing this arbitration agreement below, the Resident agrees to be bound
by the foregoing arbitration provision. The Resident acknowledges that he or
she has the option of not signing this arbitration agreement and not being bound
by the arbitration provisions contained herein. The execution of this arbitration
agreement is not a precondition to receiving medical treatment or for admission
to the Facility. This arbitration agreement may be rescinded by written notice
from either party, including the Resident's Legal Representative and/or Agent,
if any, and as appropriate, to the other party within thirty (30) days of
signature."

Both arbitration agreements bear a date stamp of September 25, 2014, which was

seven days after LaBerge was admitted to the nursing facility. There is no other evidence

in the record regarding when LaBerge signed these agreements or the circumstances

surrounding her signing.

4
 On October 5, 2014, LaBerge began sweating profusely and became very

nauseated. The nursing facility staff found her vomiting in the restroom. The record

discloses that LaBerge asked the staff for assistance, but the staff left LaBerge alone. At

approximately 8:30 p.m., staff found LaBerge on the floor of the bathroom. Her face had

turned blue. LaBerge had fallen and had sustained serious injuries to her head and body.

When the paramedics arrived, the nursing facility staff informed them that they had

seen LaBerge suffer a heart attack.

LaBerge passed away after she was taken to the hospital. An autopsy revealed that

she died as a result of blunt force injuries to her head and torso.

Plaintiffs, the heirs to LaBerge's estate, brought suit against Defendants, alleging

four causes of action, including elder abuse, a violation of Health and Safety Code section

1430, negligence, and wrongful death. Defendants filed a petition to compel arbitration,

asserting that LaBerge had agreed, pursuant to Attachments F and G, to arbitrate the

claims asserted in the lawsuit brought by Plaintiffs. In setting forth their position,

Defendants averred in their motion to compel arbitration that LaBerge was competent at

the time she signed the agreements. In anticipation of an argument by Plaintiffs that the

agreements at issue did not comply with certain requirements of section 1295, subdivision

(c), Defendants also asserted that La Paloma was engaged in interstate commerce, that the

arbitration agreements were therefore governed by the FAA, and that the FAA preempts

5
any state law requirements that apply only to certain arbitration agreements, and not to all

contracts.3

Plaintiffs opposed the petition to compel arbitration, arguing that under the holding

in Rodriguez, supra, 176 Cal.App.4th 1461, Defendants' motion to compel must be

denied.

The trial court relied on Rodriguez to conclude that because LaBerge died before

the expiration of the 30-day rescission period under section 1295, subdivision (c),

Defendants could not establish that an enforceable arbitration agreement exists. The trial

court did not address Defendants' contention that the FAA preempts the requirements

imposed by section 1295, subdivision (c).

Defendants filed a timely appeal.

III.

DISCUSSION

A. Standards relating to motions to compel arbitration

The party seeking to compel arbitration has the burden of proving the existence of

an enforceable arbitration agreement by a preponderance of the evidence, and a party

opposing the petition bears the burden of proving by a preponderance any fact necessary

3 In making this argument, Appellants chose not to provide evidence to support their
contention that La Paloma is engaged in interstate commerce, and instead relied on the
United States Supreme Court's opinion in Summit Health, Ltd. v. Pinhas (1991) 500 U.S.
322 (Summit Health, Ltd.) to argue that "commerce" for purposes of FAA coverage,
includes a health provider's treatment of Medicare patients, receipt of reimbursement from
Medicare, and purchase of out-of-state medicines and supplies. (See Summit Health, Ltd.,
supra, at pp. 327–329.)
6
to its defense. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972

(Engalla); 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 [to compel arbitration], the petitioner bears the burden of proving its

existence by a preponderance of the evidence. If the party opposing the petition raises a

defense to enforcement—either fraud in the execution voiding the agreement, or a

statutory defense of waiver or revocation [citation]—that party bears the burden of

producing evidence of, and proving by a preponderance of the evidence, any fact

necessary to the defense."].)

In considering a petition to compel arbitration, "the 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,

supra, 15 Cal.4th at p. 972.) At a hearing on a petition to compel arbitration, the issue of

whether an arbitration agreement exists is a "preliminary question to be determined by the

court . . . ." (Pagett v. Hawaiian Ins. Co. (1975) 45 Cal.App.3d 620, 622; see § 1281.2.)

If that preliminary question requires the resolution of factual issues, then the court must

resolve such issues in the course of the hearing on the petition.

" 'Ordinarily, we review a denial of a petition to compel arbitration for abuse of

discretion. [Citation.] However, where the trial court's denial of a petition to arbitrate

presents a pure question of law, we review the order de novo.' " (Mendez v. Mid-Wilshire

Health Care Center (2013) 220 Cal.App.4th 534, 541.) If the superior court's decision

regarding arbitrability is based on resolution of disputed facts, we review the decision for

7
substantial evidence. (Engineers & Architects Assn. v. Community Development Dept.

(1994) 30 Cal.App.4th 644, 653.) To the extent the denial of the petition to compel

arbitration involves the interpretation of a statute, we review the trial court's interpretation

of the relevant statutory language de novo. (Mesa Shopping Center-East, LLC v. Hill

(2014) 232 Cal.App.4th 890, 899.)

B. Analysis

1. The statutory framework

Section 1295 addresses arbitration agreements in medical services contracts. The

Supreme Court has stated that "[t]he purpose of section 1295 is to encourage and facilitate

arbitration of medical malpractice disputes. [Citations.] Accordingly, the provisions of

section 1295 are to be construed liberally [to support that legislative purpose]."

(Reigelsperger v. Siller (2007) 40 Cal.4th 574, 578 (Reigelsperger).)

The provisions of section 1295 dictate the form, and to some degree the substance,

of such agreements. For example, subdivisions (a) and (b) of section 1295 require the

presence of certain language in medical services arbitration agreements, and also specify

certain font and color requirements.4 (Reigelsperger, supra, 40 Cal.4th at p. 578; Titolo

v. Cano (2007) 157 Cal.App.4th 310, 319.)

4 Section 1295, subdivision (a) provides: "Any contract for medical services which
contains a provision for arbitration of any dispute as to professional negligence of a health
care provider shall have such provision as the first article of the contract and shall be
expressed in the following language: 'It is understood that any dispute as to medical
malpractice, that is as to whether any medical services rendered under this contract were
unnecessary or unauthorized or were improperly, negligently or incompetently rendered,
will be determined by submission to arbitration as provided by California law, and not by
8
 The principal dispute in this case involves section 1295, subdivision (c), which

provides: "Once signed, such a contract governs all subsequent open-book account

transactions for medical services for which the contract was signed until or unless

rescinded by written notice within 30 days of signature. Written notice of such rescission

may be given by a guardian or conservator of the patient if the patient is incapacitated or a

minor."

Section1295, subdivision (e) provides that a medical services arbitration agreement

"is not a contract of adhesion, nor unconscionable nor otherwise improper, where it

complies with subdivisions (a), (b) and (c) of this section."

2. Section 1295, subdivision (c) does not create a condition precedent to the
enforceability of a medical services arbitration agreement; as a result, a
party's death during the 30-day rescission window does not invalidate an
otherwise enforceable agreement

Defendants claim that the trial court erred in concluding that they failed to meet

their burden of proving the existence of an enforceable arbitration agreement by a

preponderance of the evidence. Relying on Rodriguez, supra, 176 Cal.App.4th 1461, the

trial court concluded that Defendants could not establish the validity of the subject

arbitration agreements because LaBerge died prior to the expiration of the 30-day

a lawsuit or resort to court process except as California law provides for judicial review of
arbitration proceedings. Both parties to this contract, by entering into it, are giving up
their constitutional right to have any such dispute decided in a court of law before a jury,
and instead are accepting the use of arbitration.' "
Section 1295, subdivision (b) provides: "Immediately before the signature line
provided for the individual contracting for the medical services must appear the following
in at least 10-point bold red type: [¶] 'NOTICE: BY SIGNING THIS CONTRACT YOU
ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED
BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A
JURY OR COURT TRIAL. SEE ARTICLE 1 OF THIS CONTRACT.' "
9
rescission period set forth in section 1295, subdivision (c). Defendants contend that the

trial court erred in denying their motion to compel arbitration based on Rodriguez, in part

because, Defendants maintain, the Rodriguez court incorrectly interpreted section 1295,

subdivision (c).

In support of their motion to compel arbitration, Defendants offered copies of

Attachments F and G. Plaintiffs do not dispute that these arbitration agreements were

executed by LaBerge and Defendants. Rather, in the trial court and on appeal, Plaintiffs

maintained that because section 1295, subdivision (c) provides that parties may rescind a

medical services arbitration agreement within 30 days of signing the agreement, such an

agreement is not enforceable until after that 30-day period has elapsed. Plaintiffs rely on

Rodriguez to argue that where, as here, one of the parties to an arbitration agreement dies

before the end of the 30-day rescission period, "it is impossible to establish an enforceable

arbitration agreement exists."

In Rosenthal, supra, 14 Cal.4th at p. 413, the Supreme Court explained the burden

shifting that occurs with respect to a motion to compel arbitration: "[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.

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. If the party opposing the petition raises a defense to enforcement . . . that party

10
bears the burden of producing evidence of, and proving by a preponderance of the

evidence, any fact necessary to the defense."

With respect to the moving party's burden to provide evidence of the existence of

an agreement to arbitrate, it is generally sufficient for that party to present a copy of the

contract to the court. (See Condee v. Longwood Management Corp. (2001) 88

Cal.App.4th 215, 218 (Condee); see also Cal. Rules of Court, rule 3.1330 ["A petition to

compel arbitration or to stay proceedings pursuant to Code of Civil Procedure sections

1281.2 and 1281.4 must state, in addition to other required allegations, the provisions of

the written agreement and the paragraph that provides for arbitration. The provisions

must be stated verbatim or a copy must be physically or electronically attached to the

petition and incorporated by reference"].) Once such a document is presented to the

court, the burden shifts to the party opposing the motion to compel, who may present any

challenges to the enforcement of the agreement and evidence in support of those

challenges. (See Rosenthal, supra, 14 Cal.4th at p. 413.)

There is no real dispute that the parties entered into and executed arbitration

agreements regarding the services that provide the basis for Plaintiffs' lawsuit.

Defendants presented to the court Attachments F and G, both executed by LaBerge and

La Paloma. Attachment F includes the following relevant language:

"The parties understand that any dispute as to medical malpractice (that is,
whether any medical services rendered under this admission agreement were
necessary or unauthorized or were improperly, negligently or incompetently
rendered), will be determined by submission to neutral arbitration as provided
by California law, and not by a lawsuit or court process, except as California
law provides for judicial review of arbitration proceedings. By entering into
this arbitration agreement, both parties give up their constitutional right to have

11
 any such dispute decided in a court of law before a jury, and instead accept the
use of arbitration. [¶] By signing this arbitration agreement below, the Resident
agrees to be bound by the foregoing arbitration provision. . . .

"[¶] . . . [¶]

"NOTICE: BY SIGNING THIS AGREEMENT THE RESIDENT AGREES
TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY
NEUTRAL ARBITRATION, AND GIVES UP THE RIGHT TO A JURY OR
COURT TRIAL." (Italics added.)

Attachment G includes the following relevant language:

"The parties understand that, except as provided below, any claim other than a
claim for medical malpractice, arising out of the provision of services by the
Facility, the admission agreement, the validity, interpretation, construction,
performance and enforcement thereof, or which allege violations of the Elder
Abuse and Dependent Adult Civil Protection Act, or the Unfair Competition
Act, or which seek an award of punitive damages or attorneys' fees, will be
determined by submission to neutral arbitration as provided by California law,
and not by a lawsuit or court process, except as California law provides for
judicial review of arbitration proceedings. By entering into this arbitration
agreement, both parties give up their constitutional right to have any such
dispute decided in a court of law before a jury, and instead accept the use of
arbitration. [¶] By signing this arbitration agreement below, the Resident agrees
to be bound by the foregoing arbitration provision. . . .

"[¶] . . . [¶]

"NOTICE: BY SIGNING THIS AGREEMENT THE RESIDENT AGREES
TO HAVE ANY CLAIM MADE ON BEHALF OF THE RESIDENT
ARISING OUT OF THE PROVISION OF SERVICES BY THE FACILITY,
THE ADMISSION AGREEMENT OR THE VALIDITY,
INTERPRETATION, CONSTRUCTION, PERFORMANCE AND
ENFORCEMENT THEREOF, OR WHICH ALLEGE VIOLATIONS OF THE
ELDER ABUSE AND DEPENDENT ADULT CIVIL PROTECTION ACT,
OR THE UNFAIR COMPETITION ACT, OR WHICH SEEK AN [A]WARD
OF PUNITIVE DAMAGES OR ATTORNEYS' FEES, DECIDED BY
NEUTRAL ARBITRATION, AND GIVES UP THE RIGHT TO A JURY OR
COURT TRIAL." (Italics added.)

12
 In submitting these arbitration agreements to the trial court, Defendants made a

sufficient prima facie showing of the existence of agreements to arbitrate between

LaBerge5 and Defendants. (See Molecular Analytical Systems v. Ciphergen Biosystems,

Inc. (2010) 186 Cal.App.4th 696, 701–702 [concluding that defendants had "made a

sufficient prima facie showing of an agreement to arbitrate, based not only on the

allegations of the complaint but also on their moving papers and on their proffer of the

[agreement]"]; see also Condee, supra, 88 Cal.App.4th at p. 218 [concluding that a

petitioner is not required to authenticate an opposing party's signature on an arbitration

agreement in the event the authenticity of the signature is not challenged].)

Because Plaintiffs did not dispute that LaBerge signed the agreements, the burden

shifted to the Plaintiffs to raise any defenses that they might have to enforcement of the

agreements. (See Rosenthal, supra, 14 Cal.4th at p. 413.) Plaintiffs have not asserted,

either in the trial court or on appeal, that LaBerge did not have the capacity to execute the

agreements, nor have they raised a contention that the agreements were executed as a

result of fraud, duress, or undue influence, such that the agreements may not be

enforced.6 Rather, Plaintiffs' main contention is that pursuant to section 1295,

5 A medical services arbitration agreement entered into in compliance with section
1295 may bind a signatory's heir in seeking a claim based on wrongful death or other
cause of action arising from the signatory's medical treatment. (Ruiz v. Podolsky (2010)
50 Cal.4th 838, 854.) Plaintiffs do not challenge that the subject arbitration agreements, if
valid, apply to them.
6 Plaintiffs do assert in briefing on appeal that "[t]here is no evidence the agreements
were explained to her, or understood by her." In making this assertion, Plaintiffs appear
to suggest that Defendants were required to present evidence with respect to their motion
to compel to the effect that LaBerge understood the document. However, it is well
13
subdivision (c), as interpreted by the court in Rodriguez, the arbitration agreements at

issue were not immediately enforceable upon their execution. Rather, according to

Plaintiffs, the 30-day rescission period granted to parties to medical services arbitration

agreements by section 1295, subdivision (c) must fully elapse before a medical services

arbitration agreement may be enforced.

In Rodriguez, supra, 176 Cal.App.4th 1461, the decedent executed a physician-

patient arbitration agreement four days before undergoing gallbladder surgery. (Id. at pp.

1464–1465.) The decedent died shortly after the surgery, allegedly from a nick to her

liver that the surgeon caused during the procedure. (Id. at p. 1465.) The decedent's minor

child sued the surgeon and others for wrongful death, and the surgeon moved to compel

arbitration of the decedent's heir's claim. The superior court granted the petition to

established that a party who signs a document is presumed to have read it and to
understand its contents. (E.g., Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th
1565, 1588–1589; Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th
158, 163; Estate of Johanson (1943) 62 Cal.App.2d 41, 54.) It would be Plaintiffs' burden
to overcome this presumption; Defendants bore no burden to present affirmative evidence
that the agreements were explained to LaBerge or that she understood them, or to
otherwise preemptively negate any affirmative defense that Plaintiffs might have to the
enforcement of the agreements.
Despite the existence of the presumptions that accompany an executed document,
and despite the fact that Plaintiffs have never challenged the circumstances surrounding
LaBerge's execution of the relevant documents or her capacity to execute them, the
dissent raises the concern that we simply do not know enough about the circumstances
surrounding LaBerge's execution of the agreements to give them valid legal effect. The
dissent would apparently impose an unprecedented requirement that would seem to apply
in any case involving an arbitration agreement—i.e., that, even in the absence of a
challenge, the defendant must present evidence of the circumstances of the signing of the
arbitration agreement and prove that the plaintiff knowingly and voluntarily waived her
right to jury trial, notwithstanding the presence of clear language to that effect in the
executed arbitration agreement.
14
compel arbitration. (Id. at p. 1466.) The plaintiff then filed a petition for a writ of

mandate. (Id. at p. 1464.)

In concluding that the trial court erred in granting the motion to compel arbitration

of the decedent's heir's claim, the Rodriguez court determined that the medical services

arbitration agreement was unenforceable because the decedent's death "shortly after the

[initial] surgery rendered it impossible to make any evidentiary finding regarding whether

[the decedent's] alleged waiver of her rights, not to mention the child's rights, to a jury

trial was knowing and voluntary." (Rodriguez, supra, 176 Cal.App.4th at p. 1469.) The

court explained:

"[Decedent] was presented with the Arbitration Agreement only four days
before her scheduled surgery under circumstances in which she could have
believed she must sign the agreement in order to have [defendant surgeon]
perform the surgery. There is no evidence that she would or would not have
reread and reconsidered the Arbitration Agreement after her surgery or that she
would or would not have exercised her right to 'revoke' the agreement within
the statutory 30-day revocation period. [Citation.] [Decedent] signed the
Arbitration Agreement herself, not through someone authorized to do so on her
behalf, and, hence, the determinative factor is [decedent's] intent, not the intent
of some representative appointed after her death. [Citation.] [Decedent's]
death shortly after the [initial] surgery rendered it impossible to make any
evidentiary finding regarding whether [decedent's] alleged waiver of her rights,
not to mention the child's rights, to a jury trial was knowing and voluntary.
[Decedent's] death prior to the expiration of the 30-day 'cooling off' period also
made it impossible for full compliance with section 1295 requirements. A
statutory prerequisite to an enforceable arbitration agreement under section
1295 is that the person signing the agreement must have 30 days to review the
agreement and reconsider whether he or she knowingly and voluntarily intends
to waive the right to a jury trial or, alternatively, desires to rescind the
agreement. (§ 1295, subd. (c).) Thus, [decedent's] death prior to the
expiration of the 30-day period rendered it impossible to establish that an
arbitration agreement exists that is enforceable under section 1295. Given the
foregoing facts, we conclude that [defendant surgeon] would be unable to carry
his burden of proving that an agreement exists." (Id. at pp. 1469–1470, italics
added.)

15
 By this reasoning, the Rodriguez court suggests that section 1295, subdivision (c)

creates a condition precedent to the enforcement of the terms of a medical services

arbitration agreement contract—the condition precedent being the lapsing of the 30-day

rescission period without either party rescinding. In our view, this interpretation of

section 1295, subdivision (c) fails to adequately take into account the statutory language.

Section 1295, subdivision (c) provides in relevant part: "Once signed, such a contract

governs all subsequent open-book account transactions for medical services for which the

contract was signed until or unless rescinded by written notice within 30 days of

signature." (§ 1295, subd. (c), italics added.) The plain meaning of this provision is that

a medical services agreement is effective upon execution by the parties and remains in

effect until or unless a party rescinds within the 30-day period. Both of the agreements in

this case clearly indicate the parties' intent that the agreements were to become valid and

enforceable upon their execution, since, in addition to setting forth the language of section

1295, subdivision (c), both agreements state, "By signing this arbitration agreement

below, the Resident agrees to be bound by the foregoing arbitration provision," and "BY

SIGNING THIS AGREEMENT THE RESIDENT AGREES TO" the arbitration of the

identified claims and/or issues. This language indicates a clear intention to obligate the

parties, pursuant to the agreements, immediately upon the execution of the documents.7

7 Presumably, however, a contract itself could demonstrate the parties' intent to
create a condition precedent to the contract's enforcement.
16
 If the Legislature had intended to delay the enforceability of a medical services

arbitration agreement for 30 days after the signing of such an agreement, even where the

parties indicated an intention to make their obligations under the agreement enforceable

upon signing, it could easily have done so by stating that such an agreement does not

become enforceable until a 30-day "grace period" elapses after execution of the document.

(See Civ. Code, § 1695.6 [in context of home equity sales contracts, providing that

"[u]ntil the time within which the equity seller may cancel the transaction has fully

elapsed, the equity purchaser shall not" perform under the contract].) Instead, the

Legislature chose to provide parties to a medical services arbitration agreement a statutory

right to rescind an otherwise enforceable agreement within 30 days of signing it. Where

the terms of such an agreement indicate that the parties have agreed to arbitrate claims

immediately upon the signing of the agreement, those terms govern the parties'

relationship "until and unless" a party rescinds within the 30-day statutory rescission

period.

The medical services arbitration agreements in this case exhibit the parties'

intention that the agreements become enforceable immediately upon execution; that one

of the parties died during the 30-day rescission period does not negate this express

intention. Until the time of LaBerge's death, neither party had rescinded the agreements;

the agreements therefore remained in effect and enforceable at the time of her death.

We reach this conclusion with the understanding that our result is in conflict with

the interpretation of section 1295, subdivision (c) provided by the court in Rodriguez.

However, we do not believe that language of section 1295, subdivision (c) can reasonably

17
be interpreted as creating a statutory condition precedent to the enforceabilty of the

parties' obligations under a contract. In reaching a different conclusion, the Rodriguez

court appears to have conflated the question whether a contract for which the statute

grants a 30-day rescission right is immediately enforceable with the question whether

such an agreement was entered into knowingly and voluntarily. (See Rodriguez, supra,

176 Cal.App.4th at p. 1469 ["A statutory prerequisite to an enforceable arbitration

agreement under section 1295 is that the person signing the agreement must have 30 days

to review the agreement and reconsider whether he or she knowingly and voluntarily

intends to waive the right to a jury trial or, alternatively, desires to rescind the

agreement"].) In other words, the Rodriguez court suggests that in the absence of the

lapsing of the 30-day rescission period granted by section 1295, subdivision (c), one

cannot conclude that a medical services contract was entered into knowingly and

voluntarily. However, section 1295, subdivision (c) does not purport to create a

presumption against a finding that a medical services contract was entered into knowingly

and voluntarily where a party dies before the full 30 days for rescission has elapsed.

Rather, section 1295, subdivision (c) presumes that the parties are capable of entering into

a fully enforceable and governing contract upon the signing of the contract, and merely

grants them the opportunity to change their minds within 30 days of executing a fully

enforceable contract. Indeed, the Rodriguez court's choice of language ultimately reveals

the error in its reasoning; the Rodriguez court refers to the 30-day period as providing a

party the chance to "reconsider" his or her decision (see Rodriguez, supra, at p. 1469).

The statute's granting of an opportunity to reconsider a decision does not suggest that a

18
party cannot be determined to have knowingly and voluntarily considered the decision in

the first place.

Plaintiffs have not alleged, let alone demonstrated, that LaBerge lacked capacity to

assent to the agreements, that she did so only under duress or coercion, or that for some

other reason she should not be bound by the provisions of the agreements. (See Ramirez

v. Superior Court (1980) 103 Cal.App.3d 746, 756 [despite the presumption that

compliance with the terms of section 1295 demonstrates that an agreement is not a

contract of adhesion, section 1295 continues to permit a party to seek to show that he or

she did not actually consent to arbitration, but was coerced into signing or did not read the

many waiver notices provided and failed to realize that the agreement was an agreement

to arbitrate].) Under these circumstances, we conclude that LaBerge consented to

arbitrate any potential claims consistent with the terms outlined in Attachments F and G,

and that her consent remained in effect up until the time of her passing. We respectfully

disagree with the Rodriguez opinion to the extent that it suggests otherwise.

3. The arbitration agreements sufficiently comply with the requirements of
section 1295

Plaintiffs contend that the arbitration agreements do not comply with section

1295's requirements because with respect to certain language the agreements "have

paraphrased several provisions" and "fail[ ] to include important several [sic] sections of

the mandatory language." Specifically, Plaintiffs point out that instead of referring to the

document as a "contract" it is referred to as an "agreement," and fails to include the phrase

"See Article 1 of this Contract." In addition, Plaintiffs assert that "Defendants also

19
changed some of the mandatory language required [by section 1295] in the first paragraph

of the agreement," but they do not specify what language was changed.8 Plaintiffs

suggest that the arbitration agreements are unenforceable because of these discrepancies,

8 Again, the first paragraph of Attachment F states:
"The parties understand that any dispute as to medical malpractice (that is,
whether any medical services rendered under this admission agreement were
necessary or unauthorized or were improperly, negligently or incompetently
rendered), will be determined by submission to neutral arbitration as provided
by California law, and not by a lawsuit or court process, except as California
law provides for judicial review of arbitration proceedings. By entering into
this arbitration agreement, both parties give up their constitutional right to have
any such dispute decided in a court of law before a jury, and instead accept the
use of arbitration."
The first paragraph of Attachment G states:
"The parties understand that, except as provided below, any claim other than a
claim for medical malpractice, arising out of the provision of services by the
Facility, the admission agreement, the validity, interpretation, construction,
performance and enforcement thereof, or which allege violations of the Elder
Abuse and Dependent Adult Civil Protection Act, or the Unfair Competition
Act, or which seek an award of punitive damages or attorneys' fees, will be
determined by submission to neutral arbitration as provided by California law,
and not by a lawsuit or court process, except as California law provides for
judicial review of arbitration proceedings. By entering into this arbitration
agreement, both parties give up their constitutional right to have any such
dispute decided in a court of law before a jury, and instead accept the use of
arbitration."
For comparison, section 1295, subdivision (a) sets forth the following language
that is to be included in medical services arbitration agreements:
" 'It is understood that any dispute as to medical malpractice, that is as to
whether any medical services rendered under this contract were unnecessary or
unauthorized or were improperly, negligently or incompetently rendered, will
be determined by submission to arbitration as provided by California law, and
not by a lawsuit or resort to court process except as California law provides for
judicial review of arbitration proceedings. Both parties to this contract, by
entering into it, are giving up their constitutional right to have any such dispute
decided in a court of law before a jury, and instead are accepting the use of
arbitration.' "
20
and that the existence of these discrepancies provides an alternative ground to affirm the

trial court's order.

We conclude that the minor discrepancies that Plaintiffs identify are immaterial for

purposes of evaluating the validity of the arbitration agreements, because the agreements

substantially comply with all of the material requirements set forth in section 1295.

"[T]he doctrine [of substantial compliance] excuses literal noncompliance only when

there has been 'actual compliance in respect to the substance essential to every reasonable

objective of the statute.' " (Robertson v. Health Net of California, Inc. (2005) 132

Cal.App.4th 1419, 1430.) " ' "Where there is compliance as to all matters of substance[,]

technical deviations are not to be given the stature of noncompliance. [Citation.]

Substance prevails over form." ' " (Malek v. Blue Cross of California (2004) 121

Cal.App.4th 44, 72 (Malek).)

While "there is some doubt whether" statutes regulating arbitration clauses, whose

provisions tend to demand certain technical compliance, "permit[ ] mere substantial

compliance" (Zembsch v. Superior Court (2006) 146 Cal.App.4th 153, 166 (Zembsch)

[addressing and rejecting argument that arbitration clause substantially complied with

requirements of Health and Safety Code section 1363.1, which requires health care

service plans to disclose the requirement of binding arbitration in a manner that is

" 'prominently displayed on the enrollment form signed by each subscriber or enrollee' "]),

courts have been unwilling to entirely rule out the doctrine's application with respect to

otherwise mandatory provisions regulating arbitration clauses in an appropriate case.

(Zembsch, supra, at p. 166; Malek, supra, 121 Cal.App.4th at p. 72.) Indeed, it could be

21
inequitable to deny effect to an arbitration provision because of an omission of an

immaterial word or punctuation mark, or a slight variance in wording, if made

inadvertently and without an intention to distract from the objectives of the statutory

requirements. (See Costa v. Superior Court (2006) 37 Cal.4th 986, 1027–1030.)

This case presents an appropriate case for application of the substantial compliance

doctrine. Our primary concern is the objective of the statute. The purpose of section

1295 is to " 'encourage[ ] and facilitate[ ] the arbitration of medical malpractice disputes

by specifying uniform language to be used in binding arbitration contracts to assure that

the patient knows what he is signing and what its ramifications are.' " (Gross v.

Recabaren (1988) 206 Cal.App.3d 771, 776; County of Contra Costa v. Kaiser

Foundation Health Plan, Inc. (1996) 47 Cal.App.4th 237, 246 [same].) There is no

reasonable basis for concluding that the arbitration agreements executed by LaBerge do

not adequately meet the material requirements of section 1295, and thus fulfill the purpose

of ensuring that an individual in LaBerge's position is on notice of what he or she is

agreeing to, including the fact that by giving assent, he or she is waiving the right to have

a jury decide matters covered by the agreement. We see no material difference between

the relevant language in the documents that were presented to LaBerge for her signature,

and the language required by section 1295 to ensure adequate protections for individuals

seeking to obtain medical services. The discrepancies identified by Plaintiffs are trivial

(such as use of the word "agreement" instead of the word "contract" in a required

paragraph), and in no way undermine the fact that the agreements adequately

22
emphasize—and reiterate, as required, in red, bold, capitalized print just above the

signature lines—that the patient is waiving the right to a jury trial.

IV.

DISPOSITION

The order is reversed. Costs are awarded to Defendants.

AARON, J.

I CONCUR:

O'ROURKE, J.

23
J. HUFFMAN, dissenting.

Marlene Baker LaBerge, a 73-year-old woman, who needed 24-hour care, signed

two arbitration agreements seven days after she was admitted to a nursing facility owned

by Italian Maple Holdings, LLC dba La Paloma Healthcare Center (La Paloma). She

died 10 days later allegedly because of the misconduct of La Paloma agents. Her heirs,

Paul LaBerge, Suzanne Markz, and Talmadge Baker (collectively Plaintiffs), filed suit

against La Paloma and Plum Healthcare, LLC (together Defendants). In response,

Defendants submitted a petition to compel arbitration. Following Rodriguez v. Superior

Court (2009) 176 Cal.App.4th 1461 (Rodriguez), the superior court denied the motion.

The majority reverses the court's order, determining that Rodriquez was wrongly

decided. In doing so, the majority focuses solely on the text of Code of Civil Procedure9

section 1295, subdivision (c). Although I do not quibble with the majority's

interpretation of that subdivision, I conclude that the statute must be considered in the

context of determining whether LaBerge waived her constitutional right to a jury trial.

This is especially important when addressing a consumer protection statute like section

1295. Under the facts of this case, I would follow Rodriguez, supra, 176 Cal.App.4th

1461, and find that Defendants did not show LaBerge knowingly and voluntarily waived

her constitutional right to a jury trial. (See id. at pp. 1469-1470.) Accordingly, I dissent.

The majority correctly notes that a party petitioning to compel arbitration must

first offer evidence of a written agreement to arbitrate the subject dispute. (See Rosenthal

9 Statutory references are to the Code of Civil Procedure unless otherwise specified.
v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) Here, Defendants

offered copies of two arbitration agreements LaBerge purportedly signed. The majority

points out that Plaintiffs did not dispute that Defendants and LaBerge signed the two

arbitration agreements. However, one wonders how Plaintiffs could do so. They were

not present when LaBerge signed the agreements, and LaBerge passed away shortly after

executing the agreements. Indeed, there is no indication in the record that Plaintiffs were

aware of the arbitration agreements until after they filed the instant action.

Defendants offered no details regarding LaBerge's execution of the two arbitration

agreements. Defendants did not explain why LaBerge was not asked to sign the

arbitration agreements with the other admission paperwork she executed and/or received

before her admission to the nursing facility. The record does not indicate under what

circumstances LaBerge signed the agreements or how the agreements were presented to

her seven days after she was admitted to La Paloma's nursing facility. Indeed,

Defendants' trial attorney authenticated the two arbitration agreements. Because

Plaintiffs did not object to this method of authentication, we do not know what personal

knowledge Defendants' trial attorney possessed that allowed him to authenticate the

agreements. In his declaration, the attorney does not state that he was present when

LaBerge executed the agreements or he is otherwise familiar with her signature. Thus,

we are left with a 73-year-old woman in need of 24-hour care, signing two agreements,

2
under unknown circumstances, purportedly waiving her constitutional right to a jury trial,

seven days after she was admitted to La Paloma's nursing facility.10

The majority glosses over this background, emphasizing that Plaintiffs did not

argue LaBerge lacked the capacity to execute the agreements or contend the agreements

are the result of fraud, duress, or undue influence.11 Observing these omissions, the

majority then correctly states that Plaintiffs' main argument is that the instant petition to

compel arbitration must fail under Rodriguez, supra, 176 Cal.App.4th 1461. Because the

majority holds that the appellate court misinterpreted section 1295, subdivision (c) in

Rodriguez, it concludes the superior court erred in following Rodriguez below. Put

differently, the majority determines that section 1295, subdivision (c) makes the subject

arbitration agreements immediately enforceable, unless or until, LaBerge rescinded them.

Because LaBerge did not rescind them before her death, it does not matter that she still

had 20 days in which to rescind them at the time she died. Nor does it matter that we

know not the circumstances under which she signed the agreements. Under the

majority's interpretation, per section 1295, subdivision (c), it is enough that Defendants

10 Defendants also submitted four exhibits consisting of various medical evaluations
of LaBerge. Defendants maintained that these documents proved LaBerge was
competent to execute the arbitration agreements. We observe that none of these
documents describe the circumstances of LaBerge's execution of the arbitration
agreements. Further, Defendants' trial counsel authenticated these documents with no
indication that he had sufficient personal knowledge to do so or otherwise explain their
contents.
11 Although we agree these issues were not raised, we question how Plaintiffs could
have properly raised these issues when they were not present during the execution of the
arbitration agreements and have no knowledge regarding the circumstances of their
execution.
3
produce the signed arbitration agreements. I believe such a strict rule does not properly

consider the importance of a party waiving his or her constitutional right to a jury trial

and that such a waiver must be knowingly and voluntarily made. Nor does the rule

articulated by the majority sufficiently consider, in my opinion, the context in which

LaBerge signed the arbitration agreements. Instead, I think the appellate court in

Rodriguez correctly balanced the competing interests of an individual's constitutional

right to a jury trial against the preference for arbitration of medical malpractice claims

codified in section 1295. I would follow Rodriguez, supra, 176 Cal.App.4th 1461 here.

As part of the Medical Injury Compensation Reform Act, the Legislature enacted

section 1295 "to encourage and facilitate arbitration of medical malpractice claims."

(Reigelsperger v. Siller (2007) 40 Cal.4th 574, 578.) Thus, as the appellate court noted in

Rodriguez, "[s]ection 1295 provides a procedure for a patient and a health care provider

to enter into an agreement to waive their rights to a jury trial and resolve medical

malpractice claims by arbitration." (Rodriguez, supra, 176 Cal.App.4th at p. 1467.)

The court in Rodriguez considered waiver in the context of section 1295,

subdivision (c).12 Specifically, the court discussed the importance of determining

whether a party has in fact consented to arbitrate disputes and waived its right to a jury

trial:

12 Section 1295, subdivision (c) provides: "Once signed, such a contract governs all
subsequent open-book account transactions for medical services for which the contract
was signed until or unless rescinded by written notice within 30 days of signature.
Written notice of such rescission may be given by a guardian or conservator of the patient
if the patient is incapacitated or a minor."
4
 "There is, however, no conclusive presumption that a person who signs a
document containing text complying with section 1295 requirements has in
fact consented to arbitration as required to form an enforceable agreement.
[Citation.] . . . As for any contract to be valid, an arbitration agreement requires
mutual consent of the parties. [Citation.] No enforceable agreement 'exists
unless the parties signing the document act voluntarily and are aware of the
nature of the document and have turned their attention to its provisions.'
[Citation.] In order to allow a patient sufficient time to rescind the agreement
or, by his or her silence, confirm that his or her waiver is knowing and
voluntary, section 1295, subdivision (c) requires that the patient be given a 30-
day 'cooling off' period after signing the agreement. During that time, the
patient may rescind the agreement by giving written notice of rescission."
(Rodriguez, supra, 176 Cal.App.4th at p. 1468.)

As relevant here, the appellate court interpreted subdivision (c) as including a

specific, statutory protection for a patient signing an arbitration agreement: "A statutory

prerequisite to an enforceable arbitration agreement under section 1295 is that the person

signing the agreement must have 30 days to review the agreement and reconsider whether

he or she knowingly and voluntarily intends to waive the right to a jury trial or,

alternatively, desires to rescind the agreement." (Rodriguez, supra, 176 Cal.App.4th at

p. 1469.) In interpreting section 1295, subdivision (c), the appellate court determined

that it could not find the decedent waived her right to a jury trial (or her child's right to

same) because the decedent died before the expiration of the 30-day cooling off period.

In this sense, the appellate court suggested the arbitration agreement could not be

enforceable until the expiration of the 30-day period in which a signatory could rescind

the agreement, unless it could be shown that the signatory would not have rescinded it.

In interpreting section 1295, subdivision (c) in this manner, the court explicitly rejected

the defendant doctor's proposed interpretation that subdivision (c) created an enforceable

5
waiver simply by the passage of 30 days, regardless of whether the party was alive and

able throughout the 30-day cooling off period to exercise the party's right of rescission.

The court commented that such an interpretation would violate "the principle that the

statute's requirements for waiver be interpreted as strict and exclusive." (Rodriguez,

supra, 176 Cal.App.4th at p. 1470.)

However, the majority does not read section 1295, subdivision (c) the same way as

the appellate court in Rodriguez, supra, 176 Cal.App.4th 1461. Here, the majority

emphasizes that the subject arbitration agreements exhibit the parties' intention that the

agreements become enforceable immediately upon execution and the fact LaBerge died

before the expiration of the 30-day rescission period does not negate this intention.

Again, I am concerned that the majority's approach does not sufficiently consider the

circumstances of the execution of the subject agreements, the details of which are largely

unknown in the instant matter.

The majority takes issue with the appellate court's interpretation of section 1295,

subdivision (c) in Rodriguez, supra, 176 Cal.App.4th 1461, specifically that court's

contention that the subdivision creates a statutory condition precedent to the

enforceability of an arbitration agreement in the context of a medical malpractice claim.

The majority faults the appellate court with conflating the question whether a contract for

the statute that grants a 30-day rescission right is immediately enforceable with the

question whether such an agreement was entered into knowingly and voluntarily. (See

id. at p. 1469.) The majority therefore holds that the statute's allowance of a party to

6
reconsider his or her decision does not suggest that a party cannot be determined to have

knowingly and voluntarily considered the decision in the first place. The majority's

analysis, however, begs the question, did Defendants prove LaBerge knowingly and

voluntarily waive her constitutional right to a jury trial under the facts of this case.

Because Defendants had the burden below and there is no evidence whatsoever in the

record regarding the circumstances of LaBerge's execution of the agreements, I would

answer this question in the negative, under the specific facts of this case.

Here, a 73-year-old woman in need of 24-hour care was asked to sign two

arbitration agreements seven days after she was admitted to La Paloma's nursing facility.

She died 10 days later, allegedly because La Paloma's staff abandoned her and

purposefully withheld care. In petitioning to compel arbitration, Defendants did not offer

any evidence regarding the circumstances of LaBerge's execution of the subject

arbitration agreements. Alternatively stated, but for the signed arbitration agreements

that LaBerge could have rescinded at the time of her death, Defendants did not provide

any evidence that LaBerge knowingly and voluntarily waived her constitutional right to a

jury trial. Accordingly, I cannot say that Defendants carried their burden in their petition

to compel arbitration. Such a determination is made even more difficult because LaBerge

still had 20 days in which to rescind her consent to the arbitration agreements at the time

of her death. And, according to Plaintiffs, it is Defendants' conduct that deprived

LaBerge of those additional 20 days. As such, under these circumstances, I would follow

7
Rodriguez and determine that the subject arbitration agreements are not enforceable.

(See Rodriguez, supra, 176 Cal.App.4th at p. 1472.) I therefore dissent.

HUFFMAN, Acting P. J.

8