Filed 11/29/22 Thomas v. Overland Terrace Healthcare etc. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CARLISE THOMAS, B310868, B312568
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 20STCV37010)
v.
OVERLAND TERRACE
HEALTHCARE & WELLNESS
CENTRE LP, et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Terry A. Green, Judge. Affirmed.
Zarmi Law and David Zarmi for Defendants and
Appellants.
Garcia & Artigliere, Stephen M. Garcia, William M.
Artigliere and David M. Medby for Plaintiff and Respondent.
_________________________
INTRODUCTION
Overland Terrace Healthcare & Wellness Centre, LP
(Overland Terrace), Rockport Administrative Services, LLC
(Rockport) and Schlomo Rechnitz (collectively, appellants) appeal
from orders denying their petitions to compel arbitration of the
civil action filed by William Thomas, through his sister Carlise
Thomas (Carlise1 ) as his “attorney in fact,” against Overland
Terrace, Rockport and Rechnitz. Thomas opposed the petitions
on multiple grounds, including that he did not have the mental
capacity to enter the arbitration agreements. The trial court
properly ruled that the parties could not contractually delegate2
the issue of Thomas’s capacity defense to the arbitrator, and its
finding that Thomas lacked capacity to enter the arbitration
agreement is supported by substantial evidence. We therefore
affirm.
1
To avoid confusion, we will refer to plaintiff William
Thomas as “Thomas” and to his sister Carlise Thomas by her first
name only. No disrespect to Ms. Thomas is intended.
2 The term “delegate” is derived from what is sometimes
referred to as a “delegation provision,” which has been described
as “an agreement to arbitrate threshold issues concerning the
arbitration agreement . . . such as whether the parties have
agreed to arbitrate or whether their agreement covers a
particular controversy.” (Rent-A-Center, West, Inc. v. Jackson
(2010) 561 U.S. 63, 68-69 [130 S.Ct. 2772, 177 L.Ed.2d 403].) In
this context, “delegate” means the parties have agreed to have
such threshold issues decided by the arbitrator instead of the
court.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Thomas Is Admitted to Country Villa
Thomas was admitted to a 24-hour skilled nursing facility
known as Country Villa South Convalescent Center (Country
Villa) on August 1, 2020. Overland Terrace operates Country
Villa; Rechnitz is allegedly the sole owner of Overland Terrace.
Rockport allegedly operates Overland Terrace and is also owned
by Rechnitz.
At the time Thomas was admitted to Country Villa, he was
56 years old. Thomas’s sister, Carlise, who was not present when
Thomas was transferred to Country Villa, informed Country Villa
staff that she had a medical power of attorney for Thomas and
that he “was unable to sign documents for himself and suffered
from mental retardation.”
B. The Arbitration Agreement
The record contains a document bearing the title
“arbitration agreement,” dated August 4, 2020, between “Country
Villa South” (designated as the “Facility”) and “Thomas, William”
(designated as the “Resident”). “WT” is written on the signature
block for the Resident, on pages 4 and 5 of the agreement. It is
unclear whether this is purportedly Thomas’s full signature, or
only his initials. The agreement contains a form to be filled out
by a witness when a Resident uses a mark instead of a signature,
but that form is blank. A declaration signed by Aurea
Hernandez, the Director of Admissions at Country Villa, states
that she signed the arbitration agreement on behalf of the facility
and that the agreement was in Thomas’s file at Country Villa;
the declaration does not state that Thomas signed the agreement,
describe the circumstances under which Hernandez executed the
3
agreement, or state that Hernandez recalled executing the
agreement.3
Appellants do not contend that Carlise, who held a medical
power of attorney, agreed to the arbitration agreement on behalf
of Thomas, or that the arbitration agreement was ever presented
to her. While they assert that Carlise “gave Country Villa
consent to treat [Thomas] ‘over the telephone’ ” there is no
contention that she ever agreed on his behalf to the arbitration
agreement, which by its terms provides that it is “Not Part of
Admission Agreement” and “Residents shall not be required to
sign this arbitration agreement as a condition of admission to
this facility.” Thus, Carlise’s oral consent to treatment cannot be
considered assent to the terms of the arbitration agreement.
The arbitration agreement is not part of any other
agreement, such as the admission agreement. It includes two
primary arbitration provisions. The first requires arbitration of
“any and all disputes or claims as to medical malpractice (that is,
whether any medical services rendered during the Resident’s
3 The petition filed by Overland Terrace and Rockport
indicated that Hernandez’s declaration was being submitted in
support, but the declaration itself is not included in the copy of
the petition contained in the appellate record. However, it
appears that the declaration was included with the petition filed
in the trial court, as it is referenced in Thomas’s opposition to the
petition. A copy of the declaration is included in the record as
part of a petition to compel arbitration filed by Rechnitz, who
filed a separate petition because he did not appear in the case
until after the court had ruled on the petition filed by Overland
Terrace and Rockport. The date of the declaration is consistent
with the petition filed by Overland Terrace and Rockport, so it is
apparently the same declaration.
4
admission were unnecessary or unauthorized or were improperly,
negligently or incompetently rendered or not rendered).” The
second requires arbitration of “any and all disputes,
controversies, demands or claims that relate or arise out of the
provision of services or health care or any failure to provide
services or health care by Facility, the admission agreement
and/or this Agreement, the validity, interpretation, construction,
performance and enforcement thereof, including, without
limitation, claims that allege: medical malpractice; breach of
contract; unpaid nursing home charges; fraud; deceptive trade
practices; misrepresentation; negligence; gross negligence; Health
and Safety Code section 1430 claims; violations of the Elder
Abuse and Dependent Adult Civil Protection Act, the Unfair
Competition Act, the Consumer Legal Remedies Act; and/or any
right granted to Resident by law or by the admission agreement.”
In addition, in the “Recitals” section, the agreement
provides: “The arbitrator, and not any federal, state, or local
court or agency, shall have the exclusive authority to resolve any
Dispute relating to the interpretation, applicability,
enforceability, or formation of this Agreement, including, but not
limited to, any claim that all or any part of this Agreement is void
or voidable.”
The arbitration agreement states in two places that
agreeing to arbitration is not a condition of admission to the
facility.
5
C. Thomas Is Hospitalized After Having Seizures and
Then Sues Overland Terrace, Rockport and Rechnitz
On August 14, 2020, Thomas suffered seizures at Country
Villa and was taken to the hospital.4
On September 28, 2020, Thomas, acting through his sister
Carlise as an “attorney in fact,” sued Rechnitz, Overland Terrace
and Rockport for dependent adult abuse (Welf. & Inst. Code,
§ 15600 et seq.) and negligent hiring and supervision.5 The
complaint alleges that Thomas “suffered from high functioning
Intellectual Disability since birth” (fn. omitted) and had been
diagnosed with a seizure disorder, diabetes, congestive heart
failure, and stage III kidney failure. It further alleges that staff
at Country Villa failed to administer Thomas’s seizure
medication, which resulted in Thomas suffering four seizures on
August 14, 2020; Thomas was taken to the hospital where he was
placed on a ventilator and was unresponsive.
On October 5, 2020, Thomas filed a motion for a preference
in trial setting pursuant to Code of Civil Procedure section 36,
subdivision (d).6
4 On September 22, 2021, Thomas’s attorneys filed a notice
in this court that Thomas had recently died. We granted
Carlise’s subsequent motion to be substituted as respondent in
place of her brother. Carlise’s declaration in support of this
motion, and the attached death certificate, indicated that Thomas
died on September 17, 2021.
5 Thomas also named Overland Terrace Wellness GP, LLC
as a defendant, but later dismissed that entity from the suit.
6Code of Civil Procedure section 36, subdivision (d)
provides that a trial court has discretion to grant a trial
6
D. Overland Terrace and Rockport File a Petition to
Compel Arbitration
On November 2, 2020, Overland Terrace and Rockport7
filed a motion to compel arbitration. Overland Terrace and
Rockport argued that the Federal Arbitration Act (FAA; 9 U.S.C.
§ 1 et seq.) applied because Country Villa participates in the
Medicare program and therefore its services affect interstate
commerce. In support of this argument, Overland Terrace and
Rockport noted that the arbitration agreement states that “ ‘[t]he
Facility, among other things, participates in the Medicare and/or
Medi-Cal programs and/or procures supplies from out-of-state
vendors,’ ” and that it “ ‘shall be construed and enforced in
accordance with and governed by the [FAA] and the procedures
set forth in the [FAA] shall govern any petition to compel
arbitration.’ ”
Overland Terrace and Rockport argued that Thomas’s
causes of action fell within the scope of the arbitration
agreement.
Thomas filed an opposition to the motion. The opposition
argued that Thomas lacked mental capacity to sign the
arbitration agreement. The argument relied on medical records
from Country Villa, including the following: (1) a “Cognitive
Loss” care plan for Thomas, apparently created on August 1,
preference if it “concludes that one of the parties suffers from an
illness or condition raising substantial medical doubt of survival
of that party beyond six months,” and a trial preference serves
the interests of justice.
7At that time, Rechnitz had not appeared in the case and
had not yet been served with the summons and complaint.
7
2020, which stated as a “Problem/Need” that Thomas had
“[a]ltered through process related to: . . . Periods of confusion[;]
Periods of disorientation[;] [and] Periods of forgetfulness,” was
“[u]nable to make decision[s]” and had “[p]oor judgment”; (2) a
“Consent to Treatment” form dated August 1, 2020, which
indicated that Thomas was “unable to sign” and that “verbal
consent” had been obtained from Thomas’s sister, Carlise; (3) an
August 2, 2020, evaluation by a doctor at Country Villa in which
the doctor checked a box indicating that “[t]his resident . . . does
NOT have the capacity to understand and make decisions”;8 (4) a
nursing note dated August 2, 2020, which stated “client is unable
to sign & make decisions for himself due to cognitive status[.]
[C]lient experiences mental retardation[.] Called power of
attorney Charlise Thomas and explained the pts plan of care and
current status”; and (5) other forms indicating that Carlise’s
consent to treat Thomas had been obtained in lieu of Thomas’s
signature.
In a declaration submitted in support of the opposition,
Carlise stated that, on September 1, 2010, Thomas had executed
a power of attorney designating her “as his health care agent
should he be unable to make his own healthcare decisions,” and
Thomas had not revoked the document.9 She further stated that
8 The form had two other options: “[t]his resident . . . has
the capacity to understand and make decisions,” and “[t]his
resident . . . can make needs known but can not make medical
decisions.”
9 The power of attorney document, which was attached to
Carlise’s declaration, states in relevant part that Thomas
appointed Carlise “[a]s my agent to make any and all health care
8
she had informed staff at Country Villa that Thomas “was unable
to sign documents for himself and suffered from mental
retardation” and that, as a result, Country Villa staff contacted
her by telephone to obtain her consent “for various issues that
arose related to his admission at the facility.” With respect to the
arbitration agreement, Carlise stated in her declaration, “Due to
my brother’s cognitive deficit and mental retardation, it would
have been impossible for my brother at that time to have
understood what an arbitration agreement was or what he was
signing. As his power of attorney for healthcare matters, I was at
that time, and had been for many years prior, the person who
was responsible for making decisions on his behalf regarding
health care matters, including whether my brother would have
wanted to enter into an arbitration agreement whereby he would
be waiving his constitutionally protected right to a jury trial.”
The opposition also argued that there was no evidence that
the apparent initials “WT” on the arbitration agreement were
placed there by Thomas and, as a result, Overland Terrace and
Rockport had failed to carry their burden of showing the
existence of an arbitration agreement.
Finally, the opposition argued that the arbitration
provision was unconscionable as a result of evidence, from other
arbitrations, that Rechnitz, Overland Terrace and Rockport
would seek to bar discovery in the arbitration proceeding.
Overland Terrace and Rockport filed a reply brief. They
first argued that the arbitration agreement contains a delegation
decisions for me, except to the extent I state otherwise in this
document. This Medical Power of Attorney takes effect if I
become unable to make my own health care decisions and my
physician certifies this fact in writing.”
9
provision which requires any disputes regarding the formation of
the arbitration agreement itself to be decided by the arbitrator.
They also argued that Thomas’s apparent capacity to enter the
power of attorney agreement showed he had capacity to contract,
and there was no admissible evidence Thomas lacked capacity to
contract on the day the arbitration agreement was executed.
They further argued that Thomas’s claim he lacked capacity to
contract was contradicted by the contention, made by Thomas’s
counsel in their reply brief in support of the motion for trial
preference, that Thomas “has capacity and is able to
communicate just not verbally. In fact [Thomas] executed the
declaration in support of Plaintiff’s Opposition to the Petition to
Compel Arbitration himself.”10 Overland Terrace and Rockport
submitted several medical records which they claimed showed
Thomas was alert and oriented on days before, on and after the
date the arbitration agreement was signed, and one medical
record he signed in January of 2019.
Relying on Probate Code section 811, subdivision (d),
Overland Terrace and Rockport argued that “the mere diagnosis
of a mental or physical disorder is not sufficient to determine a
person is of unsound mind. [Thomas] has not attached an expert
declaration to decipher and opine on the medical records, or the
impact of or diagnosis provided to [Thomas].”
Finally, Overland Terrace and Rockport argued that the
arbitration agreement was not procedurally unconscionable
because it was clear from the agreement’s language that
10 There is no declaration by Thomas in the record, and the
opposition to the petition to compel arbitration does not indicate
that any declaration from Thomas was submitted in support.
10
residents were not required to sign it, and it was not
substantively unconscionable because it did not state that
discovery was not allowed in the arbitration proceeding.
E. Proceedings in the Superior Court
The court held a hearing on the petition to compel
arbitration and the motion for trial preference on December 7,
2020, at which it ordered Thomas to obtain a supplemental
declaration from his medical expert, Shahab Attarchi, M.D., to
include the foundation for Dr. Attarchi’s summary of Thomas’s
medical history. Dr. Attarchi prepared a supplemental
declaration which was submitted on January 4, 2021.
On January 6, 2021, the court continued the hearing on the
motions to January 28, 2021, and invited the parties to file
supplemental briefs on the issue whether a party’s capacity to
contract can be contractually delegated to an arbitrator.
Overland Terrace and Rockport filed a supplemental brief,
in which they argued that the arbitration agreement “clearly and
unmistakably” delegates to the arbitrator issues regarding the
formation of the agreement itself, and that such formation issues,
including a claim of lack of capacity, can legally be delegated to
an arbitrator. Thomas filed a supplemental brief which argued
that a claim that an arbitration agreement was never formed
must be decided by the court, and cannot be delegated to an
arbitrator.
On January 28, 2021, the court held a hearing on Overland
Terrace’s and Rockport’s petition to compel arbitration and
Thomas’s motion for a trial preference. The next day, the court
issued a written ruling denying both the petition and the motion
for a preference in trial setting.
11
With respect to the petition to compel arbitration, the court
first addressed whether the parties could delegate to the
arbitrator the two defenses Thomas was raising, namely, that he
lacked capacity to enter the arbitration agreement and that the
agreement was unconscionable. Relying on Tiri v. Lucky
Chances, Inc. (2014) 226 Cal.App.4th 231, 242, the court
concluded that the question whether the arbitration agreement
was unconscionable could be delegated to an arbitrator.
However, the court concluded that the issue whether a party had
capacity to enter the arbitration agreement could not be
delegated to an arbitrator because “the issue of capacity goes to
the existence of mutual assent.”
The court then concluded that Thomas lacked capacity to
enter the arbitration agreement, so the agreement was “VOID”
(or there was no agreement formed). It first noted the lack of
evidence regarding the circumstances under which Thomas
supposedly signed the agreement, and the lack of an “official
assessment of capacity from that date.” It then summarized the
medical records submitted by Overland Terrace and Rockport as
suggesting that Thomas was “alert and responsive” on days
before and after August 4, and the records submitted by Thomas
as showing he was “confused and unable to make decisions”
during that time. The court found “salient” the declaration of
Thomas’s sister, Carlise, wherein she stated that Thomas had
made her his agent for health care purposes, she informed the
staff at Country Villa of this and they referred decisions to her,
including consent for admission and treatment, approval of the
care plan and authorization for life-support, if necessary. Based
on this evidence, the court stated, “it appears that [d]efendants
[Overland Terrace and Rockport] themselves acknowledged
12
[Thomas’s] lack of capacity in August of 2020. If he had capacity,
the facility would not have referred his decisions to his power of
attorney.” The court also stated, “[t]he record before the court
contains one formal evaluation of capacity performed by a
physician on August 2, 2020. That evaluation indicates that
[Thomas] lacked capacity. . . . The conclusion of [d]efendants’
own physician, on the spot, is persuasive here.”11
The court rejected the arguments made by Overland
Terrace and Rockport that Thomas took inconsistent positions
regarding his competence by claiming he had capacity to execute
the power of attorney form and claiming he had capacity to
proceed in his lawsuit.
As to Thomas’s motion for a trial preference, the court
concluded that there was not clear and convincing evidence that
Thomas was likely to die within six months. The court found
that both sides’ experts were credible and both made good points,
so the issue was a close one. Thomas’s expert opined that
Thomas was likely to die within six months based on Thomas’s
numerous health problems, while the defense expert opined that
Thomas could survive based on the fact he had survived for years
with many of the same health problems. The court further
concluded that, even if Thomas was not likely to survive six
months, a preference in trial setting would not serve the interests
of justice because Thomas would not be able to play a meaningful
role in the litigation because of his medical and mental condition.
11 Earlier in its decision, the court had stated that the
“competing evaluations” of Thomas submitted by the parties “are
not terribly helpful in the analysis here.” However, the court was
apparently not referring to the August 2, 2020, evaluation by the
Country Villa physician, which it did find persuasive.
13
As the court explained, “[Thomas] himself will not be assisting
his counsel in preparing the case. Given his mental disability, it
is not clear that he could have done so on an ordinary day. But
according to his own complaint, he currently lies unresponsive in
the hospital.” The court also addressed the argument made by
Thomas’s counsel that, if Thomas died, the burden of proof on his
causes of action would be different and his potential recovery
would be less. The court acknowledged that Thomas’s potential
damages would be less, although it disagreed that the burden of
proof would be different, but in any event concluded that the
interests of justice did not compel a preference in trial setting due
to the difficulty Overland Terrace and Rockport would face in
having to prepare for a trial in such a short time period.
On February 17, 2021, Overland Terrace and Rockport filed
a notice of appeal of the court’s denial of their petition.
F. Rechnitz Appears in the Action and Files a Petition
to Compel Arbitration
Rechnitz was served with the summons and complaint after
the trial court denied the petition to compel arbitration filed by
Overland Terrace and Rockport. Rechnitz then filed his own
petition to compel arbitration, which relied on the same
arguments and evidence as the prior petition. Thomas opposed
Rechnitz’s petition on the same grounds he had opposed the
earlier petition. On April 21, 2021, the trial court denied
Rechnitz’s petition, incorporating its written ruling on Overland
Terrace’s and Rockport’s petition. On April 30, 2021, Rechnitz
filed a notice of appeal from the trial court’s denial of his petition.
Overland Terrace, Rockport and Rechnitz filed a motion in
this court to consolidate Rechnitz’s appeal (No. B312568) with the
appeal filed by Overland Terrace and Rockport (No. B310868).
14
We granted the motion, consolidating the two appeals for the
purposes of the record on appeal, briefing, oral argument, and
decision.
We affirm the trial court’s rulings denying both petitions to
compel arbitration. The trial court properly considered the issue
of whether Thomas had capacity to enter the arbitration
agreement, and its finding that Thomas in fact did not have
capacity to enter the agreement is supported by substantial
evidence and was not an abuse of discretion.
DISCUSSION
Appellants challenge the court’s ruling that the court, and
not the arbitrator, should decide Thomas’s claim he lacked
capacity to enter the arbitration agreement, and they also
challenge the court’s conclusion Thomas lacked capacity.12
A. Standard of Review
In deciding a petition to compel arbitration, “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 superior court’s decision regarding arbitrability is
based on resolution of disputed facts, we review the decision for
12 Appellants do not contend that Carlise agreed on
Thomas’s behalf to the arbitration agreement. Thus, we do not
need to decide if Carlise’s status as a holder of a power of
attorney for medical decisions would have given her the authority
to bind Thomas to an arbitration provision or whether, if she had
such authority, it could have been exercised orally and be binding
on Thomas without her signature on the arbitration agreement.
15
substantial evidence.” (Baker v. Italian Maple Holdings, LLC
(2017) 13 Cal.App.5th 1152, 1158, citing Engineers & Architects
Assn. v. Community Development Dept. (1994) 30 Cal.App.4th
644, 653.) In such a case the appellate court “ ‘must accept the
trial court’s resolution of disputed facts when supported by
substantial evidence; [the appellate court] must presume the
court found every fact and drew every permissible inference
necessary to support its judgment, and defer to its determination
of credibility of the witnesses and the weight of the evidence.
[Citation.]’ [Citation.]” (Engineers & Architects Assn., supra, at
p. 653.) 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.)
Here, the trial court’s decision rested on a legal conclusion
and a factual determination. The legal conclusion was that the
parties could not delegate to the arbitrator the issue of whether
Thomas had capacity to enter into the arbitration agreement in
the first place. The factual determination was that Thomas did
not have capacity to enter into the arbitration agreement.
Therefore, we review the legal issue de novo and the factual issue
under the substantial evidence standard.
B. The Trial Court Properly Decided That It Should
Rule on Thomas’s Claim He Lacked Capacity to
Enter the Arbitration Agreement
It is unclear whether appellants claim the FAA or the
California Arbitration Act (CAA) applies. Neither party provides
any specific arguments or authority on this point, and they cite to
cases applying both the CAA and FAA.
16
The FAA applies to contracts “evidencing a transaction
involving commerce.” (9 U.S.C. § 2.) “Commerce” refers to
interstate commerce. (Tiri v. Lucky Chances, Inc., supra, 226
Cal.App.4th at p. 239 [FAA “governs only arbitration agreements
that are part of written contracts affecting interstate
commerce”].) At the trial court level, appellants argued that the
arbitration agreement at issue here involves interstate commerce
because Country Villa participates in the Medicare program, the
agreement acknowledges this fact, and the agreement provides
“[t]his agreement shall be construed and enforced in accordance
with and governed by the Federal Arbitration Act and the
procedures set forth in the (FAA) shall govern any petition to
compel arbitration.”
We need not decide whether the FAA or the CAA applies
because the analysis and result are the same under both statutes.
Under both statutes, the court is to decide whether there are
grounds for rescission of the arbitration agreement. Specifically,
under the CAA, “the court shall order the petitioner and the
respondent to arbitrate the controversy if it determines that an
agreement to arbitrate the controversy exists, unless it
determines that: [¶] . . . [¶] . . . Grounds exist for rescission of the
agreement.” (Code Civ. Proc., § 1281.2, subd. (b); see Engalla v.
Permanente Medical Group, Inc., supra, 15 Cal.4th at p. 973 [“We
construe [§] 1281.2, [subd.] (b), to mean that the petition to
compel arbitration is not to be granted when there are grounds
for rescinding the agreement”].) The FAA provides, in relevant
part, “[a] written provision in . . . a contract evidencing a
transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or transaction,
or the refusal to perform the whole or any part thereof . . . shall
17
be valid, irrevocable, and enforceable, save upon such grounds as
exist at law or in equity for the revocation of any contract . . . .”
(9 U.S.C. § 2; see Rent-A-Center, West, Inc. v. Jackson, supra, 561
U.S. at p. 70 [an arbitration agreement “is valid under § 2 [of the
FAA] ‘save upon such grounds as exist at law or in equity for the
revocation of any contract’ ”].) The California Supreme Court has
noted that the difference between these state and federal
provisions is “inconsequential.” (Ericksen, Arbuthnot, McCarthy,
Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312,
322.)
Under both statutes, the focus is on the arbitration
agreement itself, and not on any broader agreement between the
parties that contains the arbitration agreement. (Ericksen,
Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street,
supra, 35 Cal.3d at p. 322 [consistent with the FAA, under the
CAA “the term ‘agreement’ may properly be construed to refer to
the agreement to arbitrate, as distinguished from the overall
contract in which that agreement is contained”]; see Buckeye
Check Cashing, Inc. v. Cardegna (2006) 546 U.S. 440, 445 [126
S.Ct. 1204, 163 L.Ed.2d 1038] [“as a matter of substantive federal
arbitration law, an arbitration provision is severable from the
remainder of the contract”].) In this case, the specific agreement
at issue is a so-called “delegation provision,” which is a clause in
the arbitration agreement that provides for the arbitrator to
decide whether the arbitration agreement as a whole is valid and
enforceable.13 “The delegation provision is an agreement to
13 This delegation provision, which is included in the
“Recitals” section, states that the arbitrator has “exclusive
authority” to resolve disputes relating to “enforceability” and
18
arbitrate threshold issues concerning the arbitration agreement.
We have recognized that parties can agree to arbitrate ‘gateway’
questions of ‘arbitrability,’ such as whether the parties have
agreed to arbitrate or whether their agreement covers a
particular controversy.” (Rent-A-Center, West, Inc. v. Jackson,
supra, 561 U.S. at pp. 68-69.) The delegation provision “is valid
under § 2 [of the FAA] ‘save upon such grounds as exist at law or
in equity for the revocation of any contract.’ ” (Id. at p. 70.) This
same analysis applies under the CAA. (Tiri v. Lucky Chances,
Inc., supra, 226 Cal.App.4th at pp. 240-241.) As a result, in
considering this “gateway” question, the applicability of the FAA
is not at issue as the outcome remains the same. (Id. at p. 239.)
In addition, under both the CAA and the FAA, a claim that
challenges the formation of the contract that contains the
arbitration agreement at issue must be decided by the court, and
cannot be delegated to the arbitrator. (Rosenthal v. Great
Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 402, 406, fn.
omitted [under both the FAA and CAA “the court may deny the
application [to compel arbitration] if it finds the party resisting
arbitration did not in fact agree to arbitrate”] (Rosenthal).) In
Rosenthal, several plaintiffs opposed the defendants’ petition to
“formation” of the arbitration agreement, among other issues.
One of the primary arbitration provisions also arguably contains
a delegation provision, in that it requires arbitration of “any and
all disputes, controversies, demands or claims that relate or arise
out of . . . this [a]greement, the validity, interpretation,
construction, performance and enforcement thereof.” This clause
commingles the issue of arbitration of “the validity,
interpretation, construction, performance and enforcement” of the
arbitration agreement with other issues that must be arbitrated.
19
compel arbitration on the ground that the arbitration provisions
they had agreed to were void for fraud in their execution. The
defendants argued that the fraud claims were arbitrable under
Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967) 388 U.S.
395 [87 S.Ct. 1801, 18 L.Ed.2d 1270] (Prima Paint). In Prima
Paint, the court held “if the claim is fraud in the inducement of
the arbitration clause itself—an issue which goes to the ‘making’
of the agreement to arbitrate—the federal court may proceed to
adjudicate it. But the statutory language does not permit the
federal court to consider claims of fraud in the inducement of the
contract generally.” (Id. at pp. 403-404, fn. omitted.) Based on
Prima Paint, the defendants in Rosenthal argued that a
challenge to the formation of the parties’ agreement was
arbitrable unless it constituted “an ‘independent’ or ‘separate and
distinct’ challenge to the arbitration clause itself.” (Rosenthal,
supra, at p. 415.) The court rejected this argument, concluding
that “claims of fraud in the execution of the entire agreement are
not arbitrable under either state or federal law. If the entire
contract is void ab initio because of fraud, the parties have not
agreed to arbitrate any controversy; under that circumstance,
Prima Paint does not require a court to order arbitration.” (Id. at
p. 416.)
As the court explained, “The central rationale of the high
court’s decision in Prima Paint was that arbitration clauses must,
under federal law established in the [FAA], be viewed as
‘ “separable” ’ from other portions of a contract (Prima Paint,
supra, 388 U.S. at p. 402 . . .); hence, fraud in the inducement
relating to other contractual terms does not render the
arbitration agreement unenforceable, even when it might justify
rescission of the contract as a whole. By entering into the
20
arbitration agreement, the parties established their intent that
disputes coming within the agreement’s scope be determined by
an arbitrator rather than a court; this contractual intent must be
respected even with regard to claims of fraud in the inducement
of the contract generally. [¶] Where, however, a party’s apparent
assent to a written contract is negated by fraud in the inception,
there is simply no arbitration agreement to be enforced.”
(Rosenthal, supra, 14 Cal.4th at p. 416.)
Rosenthal applies to Thomas’s claim he lacked capacity to
enter the arbitration agreement because Thomas challenges the
very formation of the arbitration agreement; although he does not
specifically challenge the delegation provision, if he lacked
capacity to enter the arbitration agreement then he could not
have agreed to the delegation provision.14 Notably, in Rosenthal
one of the plaintiffs asserted a lack-of-capacity defense. The
daughter and guardian ad litem of that plaintiff submitted a
declaration stating that the plaintiff suffered from “ ‘severe
memory loss, diminished understanding and [was] incapable of
understanding complicated monetary transactions.’ ” (Rosenthal,
supra, 14 Cal.4th at p. 430.) The court concluded that the
“declaration, if believed, raise[d] a factual issue as to [the
plaintiff’s] capacity to contract; if extreme enough, her mental
deficiency could render void any contract to which she apparently
assented, including client agreements containing the arbitration
clause. [Citation.]” (Id. at pp. 430-431.) Thus, it remanded the
14The only agreement appellants contend Thomas
assented to is the arbitration agreement. The arbitration
agreement was a stand-alone agreement, and was not part of the
admission agreement or any other, broader agreement.
21
matter to the trial court to find the facts and decide whether the
plaintiff’s alleged incapacity rendered the contract void. (Id. at
p. 431.)
Appellants rely on Primerica Life Ins. Co. v. Brown (5th
Cir. 2002) 304 F.3d 469, 472 (Primerica) where the court held
that under the FAA the arbitrator, and not the trial court, was
required to decide the merits of the plaintiff’s claim he lacked
capacity to enter into the agreement at issue. The court
concluded that Prima Paint applied to the lack-of-capacity claim
because it was a defense to the entire contract and “not a specific
challenge to the arbitration clause.” (Primerica, supra, at p. 472.)
Appellants’ reliance on Primerica is unavailing. First, the
holding in Primerica that a lack-of-capacity defense must be
decided by the arbitrator because it is a defense to the entire
agreement is contrary to the holding in Rosenthal, where the
court concluded that a defense which calls into question whether
there was mutual assent to the contract that includes the
arbitration agreement must be decided by the court. (Rosenthal,
supra, 14 Cal.4th at pp. 416-417.)
Second, the reasoning used by the Primerica court is faulty
and the decision has been rejected by numerous courts, beginning
with Spahr v. Secco (10th Cir. 2003) 330 F.3d 1266 (Spahr).15 In
15 Although the United States Supreme Court has not
addressed whether a lack-of-capacity defense can be delegated to
an arbitrator, in Buckeye Check Cashing, Inc. v. Cardegna, supra,
546 U.S. at page 444, footnote 1, it noted “[t]he issue of the
contract’s validity is different from the issue whether any
agreement between the alleged obligor and obligee was ever
concluded.” The court clarified that its opinion did not address
challenges of the latter type, including “whether the signor
22
Spahr, the court distinguished the holding in Prima Paint, which
involved a defense that the contract was fraudulently induced,
from the lack-of-capacity defense in the case before it, on the
ground that “[u]nlike a claim of fraud in the inducement, which
can be directed at individual provisions in a contract, a mental
capacity challenge can logically be directed only at the entire
contract.” (Id. at p. 1273, fn. omitted; see Mayorga v. Ronaldo
(D.Nev. 2020) 491 F.Supp.3d 840, 853-854 [following Spahr and
disagreeing with Primerica]; Amirmotazedi v. Viacom, Inc.
(D.D.C. 2011) 768 F.Supp.2d 256, 262-263 [following Spahr and
collecting cases holding that mental capacity defense and other
defenses challenging signatory authority must be resolved by
courts]; In re Morgan Stanley & Co., Inc. (Tex. 2009) 293 S.W.3d
182, 189, fn. omitted [summarizing cases disagreeing with
Primerica, stating “Primerica has been roundly criticized, and we
[are] aware of no other court that has followed its reasoning,
including the Fifth Circuit”]; see also Burgoon v. Narconon of
Northern California (N.D.Cal. 2015) 125 F.Supp.3d 974, 982-983
[concluding the issue of whether the plaintiffs lacked capacity to
enter contracts containing an arbitration clause was for the court
to decide].)16 Appellants do not address these cases contrary to
lacked the mental capacity to assent.” (Ibid., citing Spahr, supra,
330 F.3d 1266.)
16 Legal commentators have also criticized the Primerica
decision. (See, e.g., Huber, The Arbitration Jurisprudence of the
Fifth Circuit: Round IV (2007) 39 Tex. Tech L.Rev. 463, 476
[Primerica “drew no distinction between contract defenses and
contract formation” but “[t]he sensible response, as noted by the
Supreme Court, is that in the absence of contract formation there
23
Primerica, only briefly mentioning Spahr without any
discussion.17
Third, Primerica is distinguishable from this case in that
the arbitration clause was embedded within the parties’ broader
agreement. (Primerica, supra, 304 F.3d at p. 471.) Here, in
contrast, the arbitration agreement was a stand-alone contract,
can be no basis for arbitration”]; Rau, Everything You Really
Need to Know About “Separability” in Seventeen Simple
Propositions (2004) 14 Am. Rev. Int’l Arb. 1, 15-16 [result in
Primerica not compelled by Prima Paint, which “preserves for the
courts any claim at all that necessarily calls an agreement to
arbitrate into question” (italics omitted); “[s]omeone lacking the
requisite mental capacity to contract cannot, I dare say, assent to
arbitrate anything at all”].)
17 Appellants suggest that Sandoval-Ryan v. Oleander
Holdings LLC (2020) 58 Cal.App.5th 217 supports Primerica.
This is not accurate. The court in Sandoval-Ryan did not reach
the issue of whether the plaintiff’s challenge to the arbitration
provision could be delegated to the arbitrator because it
concluded the parties’ arbitration agreement did not clearly and
unmistakably provide for the arbitrator to decide the issue. (Id.
at p. 225.) Appellants cite Lefoldt v. Horne, L.L.P. (5th Cir. 2017)
853 F.3d 804, but that case did not involve a claim of lack of
capacity. Appellants also cite Goldberg v. C.B. Richard Ellis, Inc.
(D.S.C. Dec. 14, 2012) 2012 WL 6522741, but that case also did
not involve a lack-of-capacity defense and the plaintiff’s challenge
regarding the signing of the parties’ agreement did not involve
the separate arbitration agreement, which the plaintiff did not
challenge. (Id. at p. *4.) Finally, appellants cite DiGiacomo v.
Ex’pression Center for New Media, Inc. (N.D.Cal. Sep. 15, 2008)
2008 WL 4239830, which also did not involve a capacity defense.
(See id. at p. *5, fn. omitted [“Plaintiff does not go so far as to
assert that he lacks the mental capacity to contract”].)
24
and was expressly not a part of the contract relating to Thomas’s
admission to Country Villa.
We decline to follow Primerica. As a threshold matter, we
are not bound by holdings of the lower federal courts. (Metalclad
Corp. v. Ventana Environmental Organizational Partnership
(2003) 109 Cal.App.4th 1705, 1715-1716.) Moreover, the holding
is contrary to our Supreme Court’s holding in Rosenthal and in
Primerica the court applied Prima Paint, which involved claims
of fraudulent inducement, to the fundamentally different defense
of lack of capacity, without taking into account the important
distinctions between the claims. While it is possible for a
fraudulent inducement claim to focus on specific portions of an
agreement (see, e.g., Ericksen, Arbuthnot, McCarthy, Kearney &
Walsh, Inc. v. 100 Oak Street, supra, 35 Cal.3d at pp. 324
[plaintiff sought to avoid arbitration as required by lease based
on allegations it was fraudulently induced to enter the lease by
false representations that the building’s air-conditioning
worked]), a lack-of-capacity defense necessarily implicates the
entire agreement. In other words, a party who has been
fraudulently induced to enter an agreement can still knowingly
agree to arbitration, while a party who lacks capacity to enter an
agreement cannot knowingly agree to arbitration. The situation
in this case, where the overall contract at issue addresses only
arbitration, illustrates this point starkly—it is hard to imagine a
scenario in which Thomas lacked capacity to enter the overall
arbitration agreement but had capacity to agree to have an
arbitrator decide whether or not he had such capacity.
In conclusion, Thomas’s defense to the petition, that he
lacked mental capacity to enter into the arbitration agreement,
was an issue that could not be delegated to the arbitrator because
25
it was a challenge to the very existence of the arbitration
agreement, including the delegation provision. Therefore, the
trial court properly addressed Thomas’s defense.
C. The Trial Court Properly Ruled that Thomas Did Not
Have Mental Capacity to Enter the Arbitration
Agreement
1. Legal standards governing claims of lack of capacity
to enter a contract.
Under Civil Code section 1556, “persons of unsound mind”
are deemed not capable of contracting.18 “The basic starting
point for any mental capacity determination is the Due Process in
Competence Determinations Act found in Probate Code sections
810 to 813, 1801, 1881, 3201, and 3204 (the Act). In 1995, the
Legislature created the Act to clarify the legal capacity of a
person who has a mental or physical disorder.” (In re Marriage of
Greenway (2013) 217 Cal.App.4th 628, 640; see Andersen v. Hunt
(2011) 196 Cal.App.4th 722, 728 [“[Prob. Code, §§] 810 to 813 set
18 Civil Code section 38 provides that “[a] person entirely
without understanding has no power to make a contract of any
kind, but the person is liable for the reasonable value of things
furnished to the person necessary for the support of the person or
the person's family.” Under Civil Code section 39, subdivision
(a), a contact entered by a person who is “of unsound mind, but
not entirely without understanding,” and who has not been
judicially declared of unsound mind, is subject to rescission. (See
Smalley v. Baker (1968) 262 Cal.App.2d 824, 832 [under
California law “a party is entitled to rescission of a contract if,
when he entered into the contract, he was not mentally
competent to deal with the subject before him with a full
understanding of his rights”].)
26
out the standard for capacity to make various kinds of decisions,
transact business, and enter contracts”].)
Probate Code section 810 sets forth the legislative findings
supporting the Act, including that “[f]or purposes of [the Act],
there shall exist a rebuttable presumption affecting the burden of
proof that all persons have the capacity to make decisions and to
be responsible for their acts or decisions.” (Prob. Code, § 810,
subd. (a); see Sterling v. Sterling (2015) 242 Cal.App.4th 185, 195
[Prob. Code, “[§] 810 sets forth a rebuttable presumption of
competency”].)
Probate Code section 811 in turn sets forth the type of
evidence a court should consider in making a determination
whether a person has capacity. Specifically, it provides that “[a]
determination that a person is of unsound mind or lacks the
capacity to make a decision or do a certain act, including, but not
limited to, the incapacity to contract, to make a conveyance, to
marry, to make medical decisions, to execute wills, or to execute
trusts, shall be supported by evidence of a deficit in at least one
of the following mental functions. . . : [¶] (1) Alertness and
attention[;] [¶] . . . [¶] (2) Information processing[;] [¶] . . . [¶]
(3) Thought processes[;] [¶] . . . [¶] (4) Ability to modulate mood
and affect.” (Id., subd. (a); see Sterling v. Sterling, supra, 242
Cal.App.4th at p. 195 [“[Prob. Code, §] 811 identifies grounds for
finding incompetency including ability to remember, ability to
modulate mood, and ability to process information”].) Probate
Code section 811 provides examples of each type of deficit. (Id.,
subd. (a).)
Under the Act, a deficit in one of the mental functions
listed “may be considered only if the deficit, by itself or in
combination with one or more other mental function deficits,
27
significantly impairs the person’s ability to understand and
appreciate the consequences of his or her actions with regard to
the type of act or decision in question.” (Prob. Code, § 811, subd.
(b).) Thus, “[t]here must be a causal link between the impaired
mental function and the issue or action in question.” (In re
Marriage of Greenway, supra, 217 Cal.App.4th at p. 640.) In
considering the causal link, courts may take into account “the
frequency, severity, and duration of periods of impairment.”
(Prob. Code, § 811, subd. (c).) “The mere diagnosis of a mental or
physical disorder shall not be sufficient in and of itself to support
a determination that a person is of unsound mind or lacks the
capacity to do a certain act.” (Prob. Code, § 811, subd. (d).)
Probate Code section 812 provides that “[e]xcept where
otherwise provided by law, including, but not limited to, Section
813 [regarding capacity to give informed consent to proposed
medical treatment] and the statutory and decisional law of
testamentary capacity, a person lacks the capacity to make a
decision unless the person has the ability to communicate
verbally, or by any other means, the decision, and to understand
and appreciate, to the extent relevant, all of the following:
“(a) The rights, duties, and responsibilities created by, or
affected by the decision.
“(b) The probable consequences for the decisionmaker and,
where appropriate, the persons affected by the decision.
“(c) The significant risks, benefits, and reasonable
alternatives involved in the decision.”
Finally, Civil Code section 39, subdivision (b) provides that
“[a] rebuttable presumption affecting the burden of proof that a
person is of unsound mind shall exist for purposes of this section
if the person is substantially unable to manage his or her own
28
financial resources or resist fraud or undue influence.
Substantial inability may not be proved solely by isolated
incidents of negligence or improvidence.”
2. Substantial evidence supports the trial court’s finding
that Thomas lacked mental capacity to enter the
arbitration agreement.
The trial court’s finding that Thomas did not have capacity
to enter the arbitration agreement is supported by substantial
evidence and is consistent with the criteria set forth in the Act.
The evidence before the trial court shows that medical staff
at Country Villa, including a doctor, concluded that Thomas had
a cognitive deficit that affected his ability to make decisions in
his own best interest, and that Country Villa staff looked to
Thomas’s sister, Carlise, to make medical decisions on his behalf.
This evidence reasonably supports the inference that Thomas had
at least one of the deficits listed in Probate Code section 811,
subdivision (a), namely, difficulty with “[i]nformation processing.”
(Id., subd. (a)(2).) As examples of deficits of this type, Probate
Code section 811, subdivision (a)(2) lists “[a]bility to reason using
abstract concepts,” “[a]bility to plan, organize, and carry out
actions in one’s own rational self-interest,” and “[a]bility to
reason logically.” The evidence also reasonably supports the
inference that this deficit “significantly impair[ed]” Thomas’s
ability to understand that he was being asked to voluntarily
agree to resolve any disputes that might arise regarding his
treatment through arbitration instead of court, and to appreciate
the consequences of such an agreement. (Id., subd. (b).)
The court found especially “persuasive” the record of an
evaluation by a Country Villa doctor on August 2, 2020, two days
before Thomas purportedly executed the arbitration agreement.
29
According to the record, the doctor concluded that Thomas “does
NOT have the capacity to understand and make decisions.” That
same day, in a licensed personnel weekly progress note, Country
Villa staff wrote “client is unable to sign & make decisions for
himself due to cognitive status,” and indicated that Carlise was
contacted to discuss Thomas’s treatment plan. As is shown by
Carlise’s declaration and medical records from Country Villa,
staff at Country Villa contacted Carlise to obtain approval to
admit Thomas to the facility and to approve various aspects of
treatment. The court could reasonably infer from this evidence
that Thomas was not able to understand and process information
well enough to be relied upon to make decisions about his own
well-being.
The trial court also could rely on the declaration of Carlise,
Thomas’s sister, wherein she stated, “[d]ue to my brother’s
cognitive deficit and mental retardation, it would have been
impossible for my brother at that time to have understood what
an arbitration agreement was or what he was signing.”
The medical records relied upon by appellants do not
contradict the foregoing evidence. Appellants relied on records
showing that before, on and after the day he purportedly signed
the arbitration agreement Thomas was evaluated to be “alert and
oriented” by various staff at Country Villa. However, even if
Thomas was “alert and oriented,” he still could have had
difficulties understanding concepts or making decisions in his
own best interest. Notably, “[a]lertness and attention” is a
separate type of deficit under Probate Code section 811,
subdivision (a)(1).
Appellants also relied on two documents signed by Thomas
which they claim show he did not lack capacity. One was a
30
medical form signed by Thomas in January 2019, in which he set
out his wishes for life-sustaining treatment. The other was the
medical power of attorney form Thomas signed in September
2010. Given that Thomas signed both of these documents more
than a year before he was admitted to Country Villa (10 years
earlier in the case of the medical power of attorney form) the trial
court did not err in giving them little weight in deciding the
question before him, i.e., did Thomas have mental capacity when
he purportedly signed the arbitration agreement in 2020, when
he was at Country Villa.19
Appellants argue that the trial court’s finding Thomas
lacked capacity to enter the arbitration agreement is undermined
by the claim in Thomas’s reply brief in support of his motion for a
preference in trial setting that he had capacity to proceed in his
lawsuit. This argument is unavailing for two reasons. First, the
claim was argument and not evidence.20 Second, a suggestion
that Thomas had “capacity” to assist his attorneys in a lawsuit
does not necessarily show he had capacity to enter a contract on
his own, in light of the evidence that the court relied upon to
19 Thomas signed the medical power of attorney form and
the 2019 medical form with his full name, which suggests that
the mark he made on the arbitration agreement—“WT”—was not
his standard signature.
20 As is noted above, while the reply brief states that
Thomas executed a declaration in support of his opposition to the
petition to compel arbitration, it does not appear that any
declaration by Thomas was actually submitted.
31
reach his finding that Thomas lacked capacity in early August
when he was admitted to Country Villa.21 22
Appellants contend that the trial court based its decision on
Carlise’s report of Thomas’s diagnosis and the existence of the
medical power of attorney form instead of a finding that Thomas
21 According to the complaint, Thomas was represented in
the lawsuit by Carlise as his attorney-in-fact. A person’s status
as an attorney-in-fact does not give them the authority of a
guardian ad litem. (In re Marriage of Caballero (1994) 27
Cal.App.4th 1139, 1143.) In In re Marriage of Caballero, the
court concluded that “in the case of an insane or incompetent
person, it appears incumbent upon the court to appoint a
guardian ad litem whenever the need for one is brought to the
court’s attention.” (Id. at p. 1149.) In its written decision dated
January 29, 2021, the trial court indicated that Thomas was
represented in the case by a guardian ad litem, but the record
does not contain an order appointing a guardian ad litem.
22 Appellants contend, without any analysis or authority,
that based on the claim in the reply brief Thomas should be
estopped to claim he lacks capacity. To the extent appellants
argue that Thomas should be judicially estopped to argue he
lacked capacity to enter the arbitration agreement, their
argument fails. For the doctrine of judicial estoppel to apply
Thomas must have been “ ‘ “successful in asserting the first
position.” ’ ” (Jogani v. Jogani (2006) 141 Cal.App.4th 158, 169.)
Here, Thomas was not successful in asserting the first position,
as the trial court denied his motion for a preference in trial
setting in large part based on its finding that Thomas would not
be able to assist his counsel. In addition, “ ‘judicial estoppel is an
equitable doctrine, . . . its application, even where all necessary
elements are present, is discretionary.’ ” (Id. at p. 170.) The trial
court did not abuse its discretion in failing to estop Thomas from
claiming he lacked capacity to enter the arbitration agreement.
32
actually lacked capacity. This misrepresents the trial court’s
decision. The trial court did not rely on Thomas’ diagnosis or the
medical power of attorney form, but instead relied on evaluations
by Country Villa’s own staff that Thomas lacked the capacity to
understand and make decisions, and on evidence, in the form of
Carlise’s declaration and Country Villa records, that staff at
Country Villa contacted Carlise to obtain consent to medical
treatment because they considered Thomas to be incapable of
making decisions on his own. As is discussed above, this
evidence more than amply supports the conclusion that Thomas
had a deficit in “[i]nformation processing” under Probate Code
section 811, subdivision (a)(2), which interfered with his ability to
comprehend a legally technical document like the arbitration
agreement and to appreciate the consequences of signing such a
document. (See In re Caden C. (2021) 11 Cal.5th 614, 640 [under
the substantial evidence standard, a trial court’s “[factual]
determinations should ‘be upheld if . . . supported by substantial
evidence, even though substantial evidence to the contrary also
exists and the trial court might have reached a different result
had it believed other evidence’ ”].)
We conclude that the trial court properly addressed
Thomas’s defense to the petition that he lacked capacity to enter
the arbitration agreement, and that there was substantial
evidence supporting the trial court’s conclusion Thomas lacked
such capacity. Therefore, the trial court properly denied
appellants’ petitions to compel arbitration.
33
DISPOSITION
We affirm the trial court’s orders denying appellants’
petitions to compel arbitration. Thomas is awarded costs on
appeal.
NOT TO BE PUBLISHED
KELLEY, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
34