I dissent.
The issue is relatively uncomplicated: may a party litigant who has neither agreed to arbitrate her claim, nor authorized anyone to agree for her, be compelled to arbitrate because of defendant’s unilateral demand for arbitration? The trial court properly responded in the negative.
The trial judge, with commendable candor, recited factual findings in connection with his order: (1) “the contract is of adhesion”; (2) “there is no showing that there was notice to the parties specifically involved in this claim . . . [There was a] lack of specific notice to the participant in the hospital plan.”
The policy declarations of the majority opinion in favor of arbitration, its criticism of “hostility to arbitration,” concern over “artificial requirements” fettering a valuable institution, and opposition to imposing “debilitating obstructions”—and other inordinately lyrical pronouncements of undeniable principles—obscure the majority’s tendency to *716overlook the factual circumstances involving this plaintiff and the context of this case. I shall attempt to cure that oversight.
A point at which to begin, in view of the trial court’s factual finding, is the plaintiff’s declaration under penalty of perjury in connection with defendant’s motion to compel arbitration. Her declaration reads in haec verba:
“That I am the Plaintiff in the lawsuit entitled Madden vj. Kaiser Foundation Hospitals, et al., and presently reside in Los Angeles County. That I became a member of the California State Employees Association in, on or about July, 1956, and thereafter, by and through said organization, became covered by the Kaiser Foundation Health Plan, said coverage becoming effective on or about May 1, 1965. That at the time coverage with Kaiser commenced, I had no notice or knowledge whatsoever of any then-existing arbitration plan, nor was I given any notice nor did I have any knowledge that the plan would later be amended so as to compel arbitration of any claims against the hospital or the doctors who worked in the Kaiser Hospital, including the Southern California Permanente Medical Group. Furthermore, I have never received any notice nor did I gain any knowledge whatsoever that the plan which provided medical care by Kaiser, had been amended so as to compel arbitration of any claims against the hospital or the doctors who worked in the Kaiser Hospital, including the Southern California Permanente Medical Group. At no time prior to and including, May 28, 1971, did I receive any written or oral notification of any arbitration clause, nor did I receive any notification, oral or written, that I would participate in a deposit of $150.00 to initiate arbitration proceedings. At no. time, have I ever entered into any bargaining agreement, or entered into any negotiations with anyone to contract away my basic civil right to a jury trial for claims arising out of malpractice committed against myself. Had I been aware of any arbitration clause, or had I been given notice about any arbitration clause, either at the time I became covered by Kaiser or any time thereafter, I would never have committed myself to the care of these Defendants, nor would I have waived my right to a jury trial and simply agreed to arbitrate claims arising out of malpractice committed against myself.”
The trial court, as the ultimate authority on contested facts, believed the plaintiff and ruled in her favor on defendant’s motion. As a reviewing court, we must accept the foregoing declaration and all the assertions therein as true. Thus our task is simply to determine whether *717there is any law compelling arbitration by a litigant who has not agreed to arbitrate. The majority have cited no statute that requires such a draconian result; indeed, if there were a law that could be so interpreted its constitutionality would be suspect.
It must be emphasized that the plaintiff enrolled in the Kaiser plan in 1965, at a time when the master contract between Kaiser and the Board of Administrators of the State Employees Retirement System contained no arbitration clause and apparently none was contemplated. Thus plaintiff’s enrollment in the plan was in no way conditioned upon a waiver of her right to sue for medical malpractice if it were to occur in the future, or upon an agreement to submit all future claims to arbitration.
Six years after plaintiff’s original enrollment in the plan, without her knowledge or consent, the board purporting to act on her behalf agreed with Kaiser to amend the master contract to provide that plaintiff’s claims must be submitted to arbitration. The board was given no specific authority to compel arbitration under the Meyers-Geddes Act, so the majority concede, but asserts it could do so under Civil Code section 2319 which grants an agent the right to do whatever is “proper and usual.” Note the use of the conjunctive. In addition the code section requires that the agent act “in the ordinaiy course of business.”
Contrary to the unsupportable assumption of the majority, arbitration may be a “proper” scheme for settling malpractice disputes but it is not the “usual” or “ordinary” method. The normal, usual, ordinary, most frequently employed, commonly accepted means of resolving malpractice controversies is litigation in a court of law, with its due process protections and constitutional guarantee of a trial by jury. Despite all the laudatory and affectionate expressions of the majority directed to the institution of arbitration—which I share in many respects—it still has not replaced the judicial system as the primaiy source of dispute resolution. (See, e.g., Mosk, Arbitration Versus Litigation (1953) 58 Com.L.J. 63; Mosk, The Lawyer and Commercial Arbitration (1953) 39 A.B.A.J. 193, 258.)
It is clear that a party can be compelled to submit a dispute to arbitration only if he has contracted in writing to do so (Code Civ. Proc., §§ 1281, 1281.2; Berman v. Renart Sportswear Corp. (1963) 222 Cal.App.2d 385, 388 [35 Cal.Rptr. 218].) Had the original master contract *718executed by the board and Kaiser provided for arbitration, plaintiff might have been bound thereby when she signed a written enrollment in the program. (Cf. Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693].) But six years after enrollment by plaintiff an amendment providing for abdication of fundamental rights can be effective only if plaintiff consents thereto in writing. This is manifest when the two rights purportedly abandoned by the board on behalf of plaintiff are as fundamental as recourse to the courts of the state and trial by jury.
The right to a jury trial is guaranteed by article I, section 7, of the California Constitution. It may not be denied a party by act of the Legislature, or by agreement of an agent acting without specific authority (Linsk v. Linsk (1969) 70 Cal.2d 272 [74 Cal.Rptr. 544, 449 P.2d 760]). A jury trial may be waived only in accordance with provisions of Code of Civil Procedure section 631.
In view of the foregoing controlling rules, I need not reach the plaintiff’s contention that the amendment was a contract of adhesion, other than to note that there is support for that position in Tunkl v. Regents of University of California, supra, 60 Cal.2d 92.
Cases cited by the majority are not contrary to the foregoing principles. In Doyle v. Guiliucci (1965) 62 Cal.2d 606 [43 Cal.Rptr. 697, 401 P.2d 1], the “crucial question” was whether a father’s right to enter into an arbitration agreement on behalf of a minor “is implicit in a parent’s right and duty to provide for the care of his child.” (Id., at p. 610.) In Doyle the plaintiff father, later designated as guardian ad litem, initiated the arbitration proceedings. That factual context is inapposite to this situation in which the defendant unilaterally seeks to compel arbitration by a reluctant adult plaintiff.
I would affirm the order of the trial court.