Filed 11/20/20 Gibbons v. Silverado Senior Living Management CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JAMES E. GIBBONS et al., D076703
Plaintiffs and Respondents,
v.
SILVERADO SENIOR LIVING
MANAGEMENT, INC., (Super. Ct. No.
37-2019-00047592-CU-PO-CTL)
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernardino,
County, Donna G. Garza, Judge and San Diego County, Kenneth J. Medel,
Judge.1 Reversed and remanded with directions.
Giovanniello Law Group and Alexander F. Giovanniello, Thomas C.
Swann, Cat N. Bulaon for Defendant and Appellant.
Peck Law Group and Steven Charles Peck, Adam J. Peck, Spencer E.
Peck for Plaintiffs and Respondents.
1 The petition to compel arbitration was heard in San Bernardino
Superior Court, and Judge Garza’s tentative ruling denying the petition
became her final order. The case was later transferred to the San Diego
Superior Court.
Appellant Silverado Senior Living Management, Inc. dba Silverado
Senior Living—Encinitas (Silverado)2 appeals from the trial court’s order
denying its petition to compel arbitration and motion to stay Gayle Gibbons’s
elder abuse and wrongful death lawsuit brought in her capacity as successor
in interest to James Gibbons, her deceased spouse,3 and in her own capacity.
The court concluded Gayle signed an arbitration agreement as James’s
representative; therefore, she retained a wrongful death claim in her
individual capacity. It exercised its discretion under Code of Civil Procedure4
section 1281.2, subdivision (c), to refuse to enforce the arbitration agreement,
reasoning the existence of Gayle’s separate claim posed a risk of inconsistent
judgments.
Silverado contends: (1) the arbitration agreement that Gayle signed as
James’s representative was also binding on Gayle individually, thus barring
her separate wrongful death claim; and (2) because the Federal Arbitration
Act (FAA) governs the arbitration agreement, the trial court lacked discretion
to stay arbitration of James’s and Gayle’s claims under section 1281.2,
subdivision (c). We conclude the court erred by denying the petition as to
James’s claims, which were governed by the arbitration agreement and the
FAA; however, it did not err by denying the petition as to Gayle’s individual
2 The complaint names as codefendants Blossom Grove Management Ca,
LLC dba Blossom Grove Alzheimer’s Special Care Center (Blossom) and
Scripps Health dba Scripps Memorial Hospital—Encinitas (Scripps);
however, they are not parties to this appeal.
3 We refer to respondents by their first names to avoid confusion, and
intend no disrespect.
4 Undesignated statutory references are to the Code of Civil Procedure.
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claim. Accordingly, we reverse the order and remand with directions set
forth below.
FACTUAL AND PROCEDURAL BACKGROUND
The Complaint
In her capacity as James’s successor in interest (§ 377.32) and on her
own behalf, Gayle sued all defendants for elder abuse (Welf. & Inst. Code,
§ 15600 et seq.). She also alleged causes of action against Silverado and
Blossom for wrongful death, and against Scripps and Doe defendants for
wrongful death by neglect (§ 377.60). She alleged that James, who was over
65 years of age, “developed scabies, MRSA [Methicillin-resistant
Staphylococcus Aureus], sepsis, pressure ulcers, and suffered extreme weight
loss” while in the care and custody of defendants, including Silverado, which
is an assisted-living or residential care facility.
Gayle further alleged that defendants “recklessly neglected [James] by
breaching their duties of care owed to [him] in failing to provide [him] with
the care and treatment to which he was entitled . . . failing to prevent the
development of infections, failing to report his change of condition and
providing timely care, failing to developing and implementing [sic] care
plans, failing to treat the infections, failing to assist with personal hygiene
resulting in skin breakdown to [James’s] body, failing to provide staff with
the knowledge, skills and competencies to care for residents with infection
and skin breakdown, and failing to prevent [James] from experiencing pain
and suffering.” Gayle also alleged: “Defendants ‘neglected’ [James] as that
term is defined in Welfare and Institutions Code, [section] 15610.57 in that
Defendants themselves, as well as their employees, failed to exercise the
degree of care that reasonable persons in a like position would exercise by
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denying or withholding goods or services necessary to meet [his] basic needs.”
James died in August 2016.
The Petition to Compel Arbitration and Motion to Stay Proceedings
Silverado in its petition to compel arbitration pointed out that James
had designated Gayle as his attorney-in-fact. It claimed Gayle signed the
arbitration agreement as James’s representative or agent, and the agreement
applied to both James’s and Gayle’s causes of action.
The arbitration agreement provides that “any claim or dispute . . .
arising out of the provision of services . . . including but not limited to . . . any
action for injury or death arising from negligence, intentional tort and/or
statutory causes of action (including but not limited to alleged violations of
Elder Abuse . . .) will be determined by submission to arbitration as provided
by [the FAA].” It states that “arbitration shall be conducted by one or more
neutral arbitrators in accordance with the procedures set forth in the [FAA],
Code of Civil Procedure [sic].” A separate provision of the agreement states
it “shall be governed by and interpreted under the [FAA], 9 U.S.C. sections
1-16.” The agreement provides it “shall be binding on all parties, including
their personal representatives, executors, administrators, successors,
guardians, heirs, and assigns.” The agreement also states: “Based on the
resident’s mental capacity, the term resident may include responsible party,
[power of attorney], guardian and/or conservator.” (Hereafter the mental
capacity provision; some capitalization omitted.)
Gayle opposed the petition, arguing: (1) she did not have legal
authority to enter into a contract on James’s behalf; (2) Silverado presented
no evidence that James authorized her to make decisions for his healthcare;
(3) the arbitration agreement fails to comply with statutory requirements;
and (4) the codefendants were not parties to the arbitration agreement.
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The trial court denied Silverado’s petition, finding that Gayle had
signed the arbitration agreement as James’s representative. The court
concluded Gayle had a separate right to maintain her wrongful death cause
of action in her individual capacity. Pointing out that Gayle did not allege
medical malpractice under section 1295, it stayed arbitration, reasoning
“there could be a possibility of inconsistent rulings” under section 1281.2.
DISCUSSION
I. Gayle’s Wrongful Death Claim Is Not Arbitrable
Silverado contends that as Gayle signed the arbitration agreement,
“not only did [she] agree to be bound by [it] in her individual capacity, she
expressly agreed that [it] would be governed by the FAA and require that all
claims for [James’s] death, including those based on neglect as alleged in the
complaint, will be arbitrated.” Silverado relies on the arbitration
agreement’s mental capacity provision. Gayle argues that as she was not a
party to the arbitration agreement, she was not required to arbitrate her
wrongful death claim.
A party generally cannot be compelled to arbitrate a dispute that he or
she has not agreed to resolve by arbitration. (Buckner v. Tamarin (2002) 98
Cal.App.4th 140, 142; Benasra v. Marciano (2001) 92 Cal.App.4th 987, 990
[“The strong public policy in favor of arbitration 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 not agreed to resolve by arbitration”].)
Whether an arbitration agreement is binding on a third party (e.g., a
nonsignatory) is a question of law subject to de novo review. (Suh v. Superior
Court (2010) 181 Cal.App.4th 1504, 1512.)
“Unlike some jurisdictions wherein wrongful death actions are
derivative, . . . section 377.60 ‘creates a new cause of action in favor of the
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heirs as beneficiaries, based upon their own independent pecuniary injury
suffered by loss of a relative, and distinct from any the deceased might have
maintained had he survived.’ ” (Horwich v. Superior Court (1999) 21 Cal.4th
272, 283; see San Diego Gas & Electric Co. v. Superior Court (2007) 146
Cal.App.4th 1545, 1550-1551 [“Because a wrongful death action compensates
an heir for his or her own independent pecuniary losses, it is one for ‘personal
injury to the heir’ ”].)
We conclude that because Gayle signed the arbitration agreement as
James’s representative, she was a third party to the arbitration agreement
and therefore was not bound to arbitrate her separate wrongful death claim.
We rely on Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC
(2007) 150 Cal.App.4th 469, in which the surviving spouse and three adult
children of Ruth Fitzhugh sued a convalescent care facility for her wrongful
death. (Id. at pp. 471-472.) The surviving spouse had signed two arbitration
agreements with the facility as the decedent’s “legal representative” and
“agent.” (Id. at p. 472.) Although the arbitration agreements were binding
on the decedent’s heirs, the court concluded that the decedent’s surviving
spouse and adult children were not required to arbitrate their wrongful death
claims because no evidence showed that the spouse signed the agreements in
his personal capacity, and the adult children did not sign either agreement.
(Id. at p. 474.) Accordingly, there was “no basis to infer” that the spouse or
adult children “waived their personal right to jury trial on the wrongful death
claim.” (Ibid.)
The same is true here. Because Gayle signed the arbitration
agreement solely as James’s agent and not in her personal capacity, we have
no basis to infer that she agreed to arbitrate her wrongful death claim. In
context, the mental capacity provision making the arbitration clause binding
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on a “resident,” the definition of which in certain circumstances included the
person granted a power of attorney, means only that the duty to arbitrate the
survivor claims is binding on James and other persons who would assert the
survivor claims on his behalf. The arbitration agreement does not indicate
an intent to bind third parties with claims independent of the survivor
claims, such as wrongful death claimants. We therefore conclude the court
did not err by denying the petition as to Gayle’s separate cause of action.
II. Silverado’s Causes of Action Are Arbitrable
Silverado contends the court erred in failing to grant its petition to
compel arbitration of all claims, given that the arbitration agreement
specifies the FAA procedures will apply to the arbitration. Gayle concedes
“the arbitration agreement states it is governed by the FAA,” but
nevertheless contends the court had discretion to deny Silverado’s petition
under section 1281.2, subdivision (c).
“In accordance with choice-of-law principles, the parties may limit the
trial court’s authority to stay or deny arbitration under the [California
Arbitration Act] by adopting the more restrictive procedural provisions of the
FAA.” (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 157.) “[T]he FAA’s
procedural provisions (9 U.S.C. §§ 3, 4, 10, 11) do not apply unless the
contract contains a choice-of-law clause expressly incorporating them.” (Id.
at p. 174.) “The question, therefore, is whether the parties expressly
incorporated the FAA’s procedural provisions into their agreements.” (Id. at
p. 177; see also Cronus Investments, Inc. v. Concierge Services (2005) 35
Cal.4th 376, 387, 394 (Cronus) [“Our opinion does not preclude parties to an
arbitration agreement to expressly designate that any arbitration proceeding
should move forward under the FAA’s procedural provisions rather than
under state procedural law”], italics omitted.)
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Under section 1281.2, subdivision (c), a court may stay or refuse to
compel arbitration of all or part of an arbitrable controversy when (1) “[a]
party to the arbitration agreement is also a party to a pending court action
. . . with a third party, arising out of the same transaction or series of related
transactions,” and (2) “there is a possibility of conflicting rulings on a
common issue of law or fact.” (§ 1281.2, subd. (c).) For purposes of the
statute, a third party is one who is neither bound by nor entitled to enforce
the arbitration agreement. (Thomas v. Westlake (2012) 204 Cal.App.4th 605,
612.) Section 1281.2, subdivision (c) “ ‘addresses the peculiar situation that
arises when a controversy also affects claims by or against other parties not
bound by the arbitration agreement.’ ” (Cronus, supra, 35 Cal.4th at p. 393.)
“When the trial court makes a discretionary decision under section 1281.2 [,
subdivision] (c), the reviewing court will affirm unless an abuse of discretion
is shown. . . . ‘The court’s discretion under section 1281.2, subdivision (c)
does not come into play until it is ascertained that the subdivision
applies.’ ” (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010)
186 Cal.App.4th 696, 709.)
“The question of whether the [Arbitration] Agreement incorporated the
FAA’s procedural provisions, thereby eliminating the trial court’s authority
under section 1281.2[, subdivision](c), ‘is a question of law involving
interpretation of statutes and the contract (with no extrinsic evidence). We
therefore apply a de novo standard of review.’ ” (Valencia v. Smyth, supra,
185 Cal.App.4th at pp. 161-162.)
Here, the arbitration agreement specifies that the FAA’s procedures
apply, and that the agreement shall be governed and interpreted under the
FAA. Accordingly, the court erred by not granting Silverado’s petition to
arbitrate James’s claims for elder abuse and wrongful death. Silverado is
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entitled to the benefit of the arbitration agreement that governs James’s
claims. Moreover, in California, “the Legislature has expressed a ‘strong
public policy in favor of arbitration as a speedy and relatively inexpensive
means of dispute resolution.’ [Citations.] Consequently, courts will ‘ “indulge
every intendment to give effect to such proceedings.” ’ ” (Moncharsh v. Heily
& Blase (1992) 3 Cal.4th 1, 9.) As the California Supreme Court has
concluded: “Any doubts or ambiguities as to the scope of the arbitration
clause itself should be resolved in favor of arbitration.” (Cronus, supra, 35
Cal.4th at p. 386.)
We recognize that having concluded James’s claims are arbitrable but
Gayle’s claim is not, the parties may be required to participate in duplicative
proceedings. However, we are constrained by the parties’ arbitration
agreement. As the California Supreme Court has recognized, “the FAA itself
contains no provision designed to deal with the special practical problems
that arise in multiparty contractual disputes when some or all of the
contracts at issue include agreements to arbitrate. California has taken the
lead in fashioning a legislative response to this problem, by giving courts
authority to consolidate or stay arbitration proceedings in these situations in
order to minimize the potential for contradictory judgments.” (Cronus, supra,
35 Cal.4th at p. 392.) But that provision—section 1281.2, subdivision (c)—is
inapplicable here because the parties expressly agreed that the FAA applies
to their arbitration agreement. Another court in similar circumstances
stated, “While we may question the wisdom of the parties’ choice, and decry
the potential for inefficiency, delay, and conflicting rulings, the parties were
free to choose their arbitration rules. The court will not rewrite their
contract.” (Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th
1110, 1122.)
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Unlike the present arbitration agreement which contains provisions
stating the FAA’s procedural rules apply, the trial court relied on cases
containing no such provisions. (See Daniels v. Sunrise Senior Living, Inc.
(2013) 212 Cal.App.4th 674; Avila v. Southern California Specialty Care
(2018) 20 Cal.App.5th 835, 841 [“the agreement here does not even mention
the FAA, much less expressly adopt its procedural rules. Accordingly, the
FAA’s procedural rules do not apply here”]; and Bush v. Horizon West (2012)
205 Cal.App.4th 924, 926 [“we conclude the application of section 1281.2[,
subdivision] (c) was not preempted here by the [FAA]”).
DISPOSITION
The order denying the petition to compel arbitration is reversed. The
court is directed to enter a new order granting the petition to arbitrate only
as to James Gibbons’s separate claims. Each party is to bear its own costs on
appeal.
O’ROURKE, J.
WE CONCUR:
HALLER, Acting P. J.
GUERRERO, J.
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