Filed 11/19/21 Valenzuela v. THC Orange County CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CHRISTINA VALENZUELA, B314860
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 21STCV18821)
v.
THC ORANGE COUNTY, LLC,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Gregory Keosian Judge. Affirmed.
Giovanniello Law Group, Alexander F. Giovanniello and
Erik M. Bressler for Defendant and Appellant.
Garcia & Artigliere, Stephen M. Garcia, William M.
Artigliere and David M. Medby for Plaintiff and Respondent.
Appellant THC Orange County, LLC, dba Kindred Hospital
Los Angeles (Kindred) appeals from the denial of its petition to
compel alternative dispute resolution (ADR) in an elder abuse
lawsuit respondent Christina Valenzuela (Christina) brought
against Kindred.1 The petition was based on an ADR agreement
signed by Christina’s adult daughter, Sandra, as part of the
admission paperwork Sandra executed while her mother was
at Kindred. We agree with the trial court that Kindred failed
to meet its burden of establishing that Sandra had authority to
bind Christina to the terms of the ADR agreement. Because the
record does not compel an opposite conclusion, and because the
Federal Arbitration Act, assuming it applies, does not preempt
the state law ostensible agency principles we apply in reaching
this conclusion, we affirm.
FACTS AND PROCEEDINGS BELOW
On April 14, 2021, Christina was admitted at Kindred
with clinical diagnoses of respiratory failure, pneumonia, septic
shock and kidney failure. Sandra gave consent for Christina to
undergo hemodialysis and a blood transfusion the following day.
Three days later, on April 18, 2021, Sandra executed Christina’s
admission paperwork, which included an agreement to utilize
ADR procedures—namely, first mediation and then, if necessary,
binding arbitration—to resolve, inter alia, “any legal claim
or civil action arising out of or relating to [Christina’s]
hospitalization” at Kindred (the ADR agreement). Sandra later
1Because this appeal requires us to discuss both Christina
Valenzuela and her daughter Sandra Valenzuela, to avoid
confusion, we refer to them by their first names. No disrespect is
thereby intended.
2
gave consent for Christina to undergo various medical procedures
at Kindred, including placement of a midline catheter on April
25, 2021 and May 3, 2021, and placement of a peripheral venous
midline on May 20, 2021 and May 26, 2021. The record does not
contain any indication Christina expressly granted Sandra the
authority to make decisions or execute documents on her behalf.
Christina did not sign any of the admissions documents or
medical consent forms.
Christina ultimately sued Kindred for elder abuse,
alleging that a Kindred employee had sexually molested her
during her time at the facility. Kindred filed a petition to compel
the dispute to ADR, citing the ADR agreement. In support of its
petition, Kindred offered the declaration of Kindred admissions
representative Jennifer Tennyson. (See Valentine v. Plum
Healthcare Group, LLC (2019) 37 Cal.App.5th 1076, 1085
(Valentine) [“[p]etitions to compel arbitration are resolved
by a summary procedure that allows the parties to submit
declarations and other documentary testimony”].) Tennyson
declared that Christina’s admissions paperwork indicated
“Sandra . . . [had] held herself out as possessing the requisite
authority to execute [Christina’s] admission documents.”
Tennyson did not claim to have witnessed or been involved in
the execution of Christina’s admissions paperwork.
Christina opposed the ADR petition, arguing Sandra
lacked the requisite authority to execute the ADR agreement
on Christina’s behalf. Christina’s supporting documentation
included a declaration by Sandra indicating that Sandra had
signed the admissions documents outside of Christina’s presence.
Sandra’s declaration further indicated that before April 18, 2021,
Christina had never granted Sandra power of attorney, that
3
Christina never authorized Sandra to sign an arbitration
agreement on Christina’s behalf, and that although Christina
only spoke Spanish, Kindred had not provided Spanish language
translations of the Kindred admissions documents.
The trial court denied Kindred’s petition on the basis that
Kindred had failed to establish Sandra had actual or ostensible
authority to bind Christina to the ADR agreement. Kindred
timely appealed the court’s denial.2
DISCUSSION
“ ‘ “ ‘If the court’s order [denying a petition to compel
arbitration] is based on a decision of fact, then we adopt
a substantial evidence standard [of review]. [Citations.]
Alternatively, if the court’s denial rests solely on a decision
of law, then a de novo standard of review is employed.
[Citations.]’ ” ’ ” (Avila v. Southern California Specialty Care,
Inc. (2018) 20 Cal.App.5th 835, 839−840 (Avila).) Both the trial
court’s denial of Kindred’s petition and Kindred’s argument
on appeal hinge on whether Sandra had the necessary authority
to bind Christina to the ADR agreement. This presents a
question of fact. (See, e.g., Lopez v. Bartlett Care Center, LLC
(2019) 39 Cal.App.5th 311, 318 (Lopez).) Accordingly, we review
for substantial evidence.
When we are reviewing “ ‘[a] trier of fact[’s] . . . express[ ]
or implicit[ ] conclu[sion] that the party with the burden of proof
did not carry the burden’ ” as to a particular fact, however, the
substantial evidence standard of review looks somewhat different
2 Christina moved this court to dismiss Kindred’s appeal
and requested sanctions on the basis that Kindred’s appeal is
frivolous. We deny the motions.
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than usual. (Dreyer’s Grand Ice Cream, Inc. v. County of Kern
(2013) 218 Cal.App.4th 828, 838 (Dreyer’s).) Namely, when such
a party appeals, “ ‘the question for a reviewing court becomes
whether the evidence compels a finding in favor of the appellant
as a matter of law.’ ” (Ibid.) “The party seeking to compel
arbitration”—here, Kindred—“bears the burden of proving the
existence of a valid arbitration agreement” binding the party
to be so compelled. (Avila, supra, 20 Cal.App.5th at p. 844.)
A. The Record Does Not Compel the Conclusion
That Sandra Acted As Christina’s Ostensible
Agent In Executing the ADR Agreement
We thus consider whether the evidence allows only one
conclusion: that Sandra had authority to execute the ADR
agreement on Christina’s behalf. We conclude it does not.
“[A] person who is authorized to act as [a] patient’s agent
can bind the patient to an arbitration agreement.” (Flores v.
Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 587
(Flores), italics omitted.) “Even when there is no written agency
authorization, an agency relationship may arise by oral consent
or by implication from the conduct of the parties. [Citation.]
However, an agency cannot be created by the conduct of the agent
alone; rather, conduct by the principal is essential to create the
agency.” (Id. at pp. 587−588, italics omitted.) “ ‘ “ ‘The principal
must in some manner indicate that the agent is to act for
him.’ ” ’ ” (Id. at p. 588; accord, Lopez, supra, 39 Cal.App.5th at
p. 319.)
Here, Kindred has not identified any action by Christina
that might indicate Christina and Sandra had an agency
relationship. Rather, Kindred argues Christina’s inaction
provided such an indication—namely, Christina’s failure to object
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when Sandra consented to medical treatment on Christina’s
behalf, executed Christina’s admissions paperwork, and received
medical treatment to which Sandra had consented. We agree
that “occasionally, where ‘ “ ‘the principal knows that the agent
holds himself out as clothed with certain authority, and remains
silent, such conduct on the part of the principal may give rise
to liability. [Citation.]’ [Citation.]” [Citation.]’ [Citation.] [¶]
However, in those instances, it was reasonable for the third
party to rely on the purported agent despite [the principal’s]
silence due to a historical relationship or course of conduct.”
(Valentine, supra, 37 Cal.App.5th at p. 1089; see Flores, supra,
148 Cal.App.4th at p. 588 [“[t]he mere fact [plaintiff ’s husband]
signed the admission documents . . . [was] insufficient” to
establish her husband was acting as an authorized agent of
patient with dementia because “[t]he record [was] completely
silent regarding [their] dealings prior to her admission and/or
their interactions at the time of her admission”]; see also Young
v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1132 (Young)
[“ ‘[a]n agency is ostensible when the principal intentionally, or
by want of ordinary care, causes a third person to believe another
to be his agent who is not really employed by him’ ”], quoting
Civ. Code, § 2300, italics omitted.) For example, in Valentine,
the plaintiff suffered a shoulder injury that prevented her from
executing hospital paperwork, but “maintained the mental
capacity to consent[,] . . . was present when [her husband]
signed the [arbitration] agreements, had a sufficient opportunity
to object, [and] instead remained silent.” (Valentine, supra,
37 Cal.App.5th at p. 1088.) The Court of Appeal concluded
plaintiff ’s “silence in this instance was insufficient to convey
ostensible authority to [her husband] to execute arbitration
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agreements on her behalf ” (id. at pp. 1088−1089), because the
record contained no evidence regarding “a prior relationship or
course of conduct with [plaintiff] on which defendants could rely
to establish [plaintiff ’s husband] was her agent with authority to
bind her to arbitration.” (Id. at p. 1089.) Absent such a baseline
against which to compare the plaintiff ’s silence, her “silence . . .
communicated nothing.” (Ibid.) The record here contains no
evidence establishing a historical relationship or course of
conduct prior to Sandra executing the ADR agreement—let
alone a prior course of conduct “compel[ling] the finding”
(Dreyer’s, supra, 218 Cal.App.4th at p. 838) that Christina’s
silence indicated Sandra had authority to execute the ADR
agreement on her behalf.
In arguing to the contrary, Kindred appears to rely on
Sandra’s having consented to Christina receiving medical care
at Kindred before and after Sandra signed the ADR agreement,
and Christina’s acceptance of that medical care without objection.
That Christina acquiesced to receiving medical care suggests
neither (1) that Christina knew Sandra had authorized this
care (nothing in the record speaks to the issue) nor (2) that
Christina intended to deputize Sandra to speak on her behalf
in any other matters related to her stay at Kindred, including
and in particular an ADR agreement with Kindred. Thus,
on this record, Christina’s acquiescing to medical care Sandra
approved—even more than once—is insufficient to establish
Sandra had ostensible authority to bind Christina to an ADR
agreement with Kindred.
Thus, the record does not contain substantial evidence—
let alone compel the conclusion—that Sandra had ostensible
authority to execute the ADR agreement on Christina’s behalf.
7
Kindred argues that ostensible authority is created
“when the principal neglects to take action to disavow the
agent’s purported authority and thereafter receives the benefits
of this authority.” The few cases Kindred cites for this neither
support such a broad statement, nor require a different result
in this case. Two of the cases, Whitlow v. Rideout Memorial
Hospital (2015) 237 Cal.App.4th 631 and Mejia v. Community
Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, address
the application of the ostensible agency doctrine to physicians
working within hospitals, explaining the elements of ostensible
agency in that context are: “(1) conduct by the hospital that
would cause a reasonable person to believe that the physician
was an agent of the hospital, and (2) reliance on that apparent
agency relationship by the plaintiff. [Citations.]” (See id.
at p. 1453; see J.L. v. Children’s Institute, Inc. (2009) 177
Cal.App.4th 388, 405.) These cases hold that the first element
“is satisfied when the hospital ‘holds itself out’ to the public as a
provider of care. [Citations.] . . . [Citations.] . . . [A] hospital is
generally deemed to have held itself out as the provider of care,
unless it gave the patient contrary notice. [Citations.] . . .
[Citations.] [¶] The second element, reliance, is established
when the plaintiff ‘looks to’ the hospital for services, rather than
to an individual physician.” (Mejia, supra, 99 Cal.App.4th at
pp. 1453−1454.) But these presumptions “have no application
here,” as they are driven by the difficulty of applying traditional
ostensible agency principles to the unique hospital-physician
relationship. (J.L., supra, at p. 405; see Mejia, supra, at
pp. 1451−1454 [discussing how case law has evolved to address
this difficulty].) Thus, neither the facts nor the reasoning
of these cases supports Kindred’s argument. The third case
8
Kindred cites, Young, supra, 220 Cal.App.4th 1122, simply
recites a rephrased version of the general rule noted above: that
ostensible authority can be founded on “ ‘ “neglect on the part of
the alleged principal,” ’ ” but only if such neglect “ ‘ “creat[es] a
belief in the minds of third persons that an agency exists, and
a reasonable reliance thereon by such third persons.” ’ ” (Id. at
p. 1133.) Christina’s acceptance of medical treatment Sandra
authorized—particularly when the record does not establish
Christina knew she authorized it—is not neglect of this type.
B. The Federal Arbitration Act Does Not Preclude
Application of State Law Ostensible Agency
Principles Here
Finally, Kindred argues that “the [Federal Arbitration Act
(FAA)] precludes [Valenzuela] or the court from singling out the
arbitration agreement for disparate treatment.” (Capitalization
and boldface omitted.) It suggests that allowing Sandra’s
authority to consent to medical treatment to go unchallenged,
while at the same time concluding Sandra lacked ostensible
authority to execute the ADR agreement, would be an application
of state law that runs afoul of the FAA. We disagree.
Kindred is correct that, if the FAA applies, it precludes
state law (and, accordingly, courts applying state law) from
disfavoring arbitration agreements or treating arbitration
agreements differently than other types of agreements. (See
AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339;
Kindred Nursing Centers Ltd. v. Clark (2017) 581 U.S. ___
[137 S.Ct. 1421, 1426, 197 L.Ed.2d 806, 811−812] (Clark).)
But the ostensible agency principles we apply here do no such
thing. These principles require—across the board for all types
of agreements executed by a would-be agent—either express
9
authorization by the principal that the agent may execute the
agreement on her behalf or action by the principal establishing
such authorization. Nothing in that rule singles out—either in
theory or in practice—arbitration agreements.
This is in direct contrast with the law determined to violate
the FAA in Clark, supra, 137 S.Ct. 1421, on which Kindred
heavily relies. Under the Kentucky “clear-statement rule” at
issue in that case, even where an agent held a written power
of attorney, that “agent could deprive her principal of an
‘adjudication by judge or jury’ only if the power of attorney
‘expressly so provide[d].’ ” (Clark, supra, 137 S.Ct. at p. 1426.)
The United States Supreme Court concluded that although this
limitation on a power of attorney did not expressly apply only
to arbitration agreements, it “covertly accomplishe[d] the same
objective by disfavoring contracts that (oh so coincidentally) have
the defining features of arbitration agreements.” (Ibid.)
Nor does the fact that Christina is challenging only her
daughter’s authority to execute the arbitration agreement, not
her daughter’s authority to consent to her medical treatment,
run afoul of the FAA. The FAA does not require individual
litigants to be even-handed in the arguments they choose to raise;
it only requires the law be even-handed in how it interprets and
enforces agreements. In deciding the only issue that is before
us—whether the record compels the conclusion that Sandra had
authority to execute the ADR agreement on Christina’s behalf—
we apply general principles of ostensible agency that do not
differentiate between different types of agreements executed
by a would-be ostensible agent. And Kindred has not identified
anything inherent in the nature of an ostensible agency analysis
10
that renders it more likely to invalidate an arbitration agreement
than other types of agreements.
DISPOSITION
The order of the trial court denying the petition to
compel alternative dispute resolution is affirmed. Respondent
is awarded her costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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