Filed 10/30/23 Blackmon v. Vernon Healthcare Center CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
DEBRA ANN BLACKMON, B321557
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. 21STCV18794
VERNON HEALTHCARE
CENTER, LLC, et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Maurice A. Leiter, Judge. Affirmed.
Cowdrey Jenkins and Sean D. Cowdrey for Defendants and
Appellants.
Moran Law, Michael F. Moran, Lisa Trinh Flint, and Suzan
N. Tran for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
Defendants Vernon Healthcare Center, LLC, dba Vernon
Healthcare Center, Rockport Administrative Services, LLC, Brius
Management Co., and Shlomo Rechnitz (collectively, Vernon)
appeal from the trial court’s order denying their motion to compel
arbitration of elder abuse and related claims brought by plaintiff
Debra Ann Blackmon, through a guardian ad litem, based on the
care Blackmon received at one of Vernon’s skilled nursing
facilities. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Blackmon was admitted to Vernon’s skilled nursing facility
(Facility) on October 15, 2020, when she was 65 years old. At the
time of her admission, Blackmon suffered from dementia and
diabetes and had recently suffered a “cognitive decline.”
Blackmon needed assistance with daily activities, and she “was
not always able to make her needs known, could not always
recount her medical history, did not have the ability to
understand and be understood at all times, and required frequent
supervision.”
Blackmon’s son, Eric Vallin,1 accompanied Blackmon when
she was admitted to the Facility, and he signed all of her
admission paperwork as her “Representative” or “Legal
Representative.” A staff member reviewed the paperwork with
Vallin, briefly describing each document and showing Vallin
where to sign. Although Blackmon was present, she didn’t say
anything before or after Vallin signed the paperwork, nor did the
1 Vallin’s name also appears as “Eric Blackmon” in parts of the record.
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staff member ask Blackmon whether “it was okay” for Vallin to
sign the paperwork. Blackmon did not sign any paperwork before
she was admitted to the Facility.
On October 23, 2020, Vallin returned to the Facility to sign
additional paperwork. Vallin met the same staff member who
reviewed Blackmon’s initial admission paperwork. The staff
member presented a stack of documents, which she told Vallin he
needed to sign so that Blackmon could remain at the Facility.
The staff member did not discuss the contents of any of the
documents with Vallin. She flipped through each document and
“pointed her finger” to show Vallin where he needed to sign.
Vallin signed all the documents. Blackmon wasn’t present when
Vallin signed the documents, nor did she ever sign any of them.
Among the documents Vallin signed on October 23, 2020
was an arbitration agreement (Agreement). The first page of the
Agreement states that it is not part of the Facility’s admission
agreement and that residents are not required to sign the
Agreement as a condition to admission to the Facility. The
Agreement includes an acknowledgment provision, which states
that the Agreement and the resident’s admission agreement
“evidence a transaction in interstate commerce governed by the
Federal Arbitration Act, 9 U.S.C. Sections 1–16.” The Agreement
also includes a choice of law provision, stating the Agreement
“shall be construed and enforced in accordance with and governed
by the Federal Arbitration Act and the procedures set forth in the
Federal Arbitration Act shall govern any petition to compel
arbitration.”
Articles 1.1 and 1.2 of the Agreement provide that the
parties agree to arbitrate any “medical malpractice” disputes as
well as “all other disputes, controversies, demands or claims that
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relate [to] 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,” among
other things, “negligence,” violations of “Health and Safety Code
section 1430,” and “violations of the Elder Abuse and Dependent
Adult Civil Protection Act.” Article 1.6 includes a delegation
clause, which states: “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 Agreement’s signature page includes a paragraph that
appears immediately above Vallin’s signature, which states: “By
virtue of Resident’s consent, instruction and/or durable power of
attorney, I hereby certify that I am authorized to act as
Resident’s agent in executing and delivering of this Arbitration
Agreement. I acknowledge that the Facility is relying on this
representation. I also acknowledge that pursuant to the terms of
this Agreement, any claims that I may assert in my personal
capacity that arise out of or relate to any provision of or failure to
provide services (medical or otherwise) or goods by the Facility to
the Resident or the admission agreement are governed by this
Arbitration Agreement.”
In May 2021, Blackmon, through a guardian ad litem, filed
a complaint against Vernon for elder abuse, negligence, violation
of Health and Safety Code section 1430, and willful misconduct.
Blackmon alleged that while she was a resident at the Facility,
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Vernon neglected her physical health and failed to administer
reasonable care, causing her to become “dehydrated,
malnourished, and to develop severe hyperglycemia and severe
diabetic ketoacidosis, resulting in significant pain and suffering,
generalized weakness, dysphagia, and an overall deterioration in
her physical and mental condition.”
Vernon filed a motion to compel arbitration, arguing all of
Blackmon’s claims are subject to arbitration under the
Agreement. According to Vernon, Vallin was acting as
Blackmon’s agent when he signed the Agreement, thereby
binding Blackmon to its terms. In any event, Vernon argued, the
Agreement’s delegation clause required the court to submit to an
arbitrator the question of whether Vallin was authorized to bind
Blackmon to arbitration.
In support of their motion, Vernon submitted a declaration
executed by Jasmine Urdaneta, the Facility’s former Admissions
Director. Urdaneta went through Blackmon’s admission
paperwork with Blackmon and Vallin when Blackmon was
admitted to the Facility. Although Vallin signed Blackmon’s
paperwork, including the Agreement, Urdaneta did not recall
Blackmon “communicating that she did not authorize her son to
sign agreements on her behalf, nor did [Blackmon] object to being
admitted to the [F]acility.”
Blackmon opposed Vernon’s motion. She argued she was
not a party to the Agreement because she never signed it and
Vallin was not her agent when he signed it, nor was he otherwise
authorized to bind her to the Agreement’s terms. In support of
her motion, Blackmon submitted Vallin’s declaration, in which he
testified that he never spoke with Blackmon before signing the
Agreement or otherwise obtained her consent to sign it on her
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behalf. Vallin also testified that he did not hold a “Durable Power
of Attorney” for Blackmon, nor was he Blackmon’s legal guardian
or conservator, when he signed the Agreement.
The court denied Vernon’s motion. It found Vernon failed to
prove Blackmon agreed to arbitrate any disputes arising out of
her residency at the Facility. Specifically, the court reasoned,
Vernon presented no evidence that Blackmon engaged in any
“conduct [that] created an agency relationship” between herself
and Vallin.
Vernon appeals.
DISCUSSION
Vernon contends the court erred in denying the motion to
compel arbitration because (1) the Agreement requires an
arbitrator, and not the court, to determine issues of arbitrability,
such as whether Blackmon agreed to arbitrate any disputes with
Vernon; and (2) Vallin was acting as Blackmon’s agent when he
signed the Agreement, thereby requiring Blackmon to arbitrate
her claims. As we explain, each of these arguments lacks merit.
1. Standard of Review and Applicable Law
The party seeking to compel arbitration bears the burden of
proving a valid arbitration agreement exists. (Rosenthal v. Great
Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) The
court resolves a motion to compel arbitration in a summary
setting, sitting “ ‘as a trier of fact, weighing all the affidavits,
declarations, and other documentary evidence.’ ” (Gamboa v.
Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164; see
also Code Civ. Proc., § 1290.2.) In determining whether a valid
arbitration agreement exists, the court applies California law
concerning the formation, revocation, and enforcement of
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contracts (Avery v. Integrated Healthcare Holdings, Inc. (2013)
218 Cal.App.4th 50, 60), even if the challenged agreement would
fall within the scope of the Federal Arbitration Act (FAA;
9 U.S.C. § 1 et seq.). (Banner Entertainment, Inc. v. Superior
Court (1998) 62 Cal.App.4th 348, 357 [“the FAA does not apply
until the existence of an enforceable arbitration agreement is
established under state law principles involving formation,
revocation and enforcement of contracts generally”].)
We typically review a court’s order denying a motion to
compel arbitration for abuse of discretion, unless the appeal
raises only a pure question of law, in which case we apply a de
novo standard of review. (Laswell v. AG Seal Beach, LLC (2010)
189 Cal.App.4th 1399, 1406.) We review the court’s factual
conclusions under the substantial evidence standard. (Lopez v.
Bartlett Care Center, LLC (2019) 39 Cal.App.5th 311, 317.) But if
the trier of fact finds the moving party did not prove the existence
of a valid arbitration agreement, and that party appeals, the
question on appeal becomes whether the evidence compels a
finding in favor of the appellant as a matter of law. (Garcia v.
KND Development 52, LLC (2020) 58 Cal.App.5th 736, 744.)
Specifically, we must determine whether the evidence was (1)
uncontradicted and unimpeached and (2) of such a character and
weight as to leave no room for a judicial determination that it
was insufficient to support a finding. (Ibid.)
2. The court properly decided whether Blackmon was a
party to the Agreement.
Vernon does not dispute that Vallin, and not Blackmon,
signed the Agreement. Thus, for Blackmon to be a party to the
Agreement, Vallin must have had the authority to agree to
arbitration on her behalf. According to Vernon, this question is
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one for the arbitrator because the Agreement includes a
delegation clause requiring an arbitrator to resolve issues of
arbitrability, such as those “relating to the interpretation,
applicability, enforceability, or formation of [the] Agreement.” We
disagree.
Although California and federal law favor arbitration, that
policy does not apply to claims brought by someone who is not a
party to an arbitration agreement. (Howsam v. Dean Witter
Reynolds, Inc. (2002) 537 U.S. 79, 83; Wagner Construction Co. v.
Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 31.) That is
because the right to compel arbitration depends upon the
existence of a valid arbitration agreement between the parties.
(Bouton v. USAA Casualty Ins. Co. (2008) 43 Cal.4th 1190, 1202.)
Thus, a party “cannot be compelled to arbitrate a dispute if they
have not agreed to do so, and no statute compels them to
arbitrate.” (Ibid.)
Just like any other term in an arbitration agreement, a
delegation clause requiring the parties to arbitrate issues of
arbitrability may only be enforced against someone who has
agreed to be bound by it. (Theresa D. v. MBK Senior Living LLC
(2021) 73 Cal.App.5th 18, 25–27 (Theresa D.).) Consequently,
before enforcing a delegation clause, the court must first
determine whether the plaintiff is a party to the underlying
arbitration agreement. (Ibid.)
Because Blackmon didn’t sign the Agreement, and she
contends she never authorized Vallin or any other third party to
bind her to arbitration with Vernon, the court, and not an
arbitrator, was required to determine in the first instance
whether Vernon could enforce any of the Agreement’s terms,
including its delegation clause, against Blackmon. (Theresa D.,
8
supra, 73 Cal.App.5th at p. 27; see also Benaroya v. Willis (2018)
23 Cal.App.5th 462, 469 [“ ‘The question of whether a
nonsignatory is a party to an arbitration agreement is one for the
trial court in the first instance’ ”].)
Relying on Rent-A-Center West, Inc. v. Jackson (2010) 56
U.S. 63, 65 (Rent-A-Center), Vernon argues the court was
required to enforce the Agreement’s delegation clause once
Vernon submitted evidence of the Agreement and “met its burden
authenticating it,” regardless of who signed it. In Rent-A-Center,
the United States Supreme Court addressed whether, under the
FAA, a court could decide if an arbitration agreement was
unconscionable where the agreement included a clause
delegating that specific question to the arbitrator. (Rent-A-
Center, at p. 65.) The arbitration agreement between the plaintiff
and his employer in that case included a delegation clause
identical to the one in this case. (Id. at p. 66.) In opposing
arbitration, the plaintiff argued the agreement as a whole was
unconscionable without specifically challenging the validity of the
delegation clause. (Id. at pp. 71–73.) The Court concluded the
delegation clause was severable from the rest of the arbitration
agreement and, without specifically challenging that clause, the
plaintiff was required to submit to the arbitrator the question of
whether the arbitration agreement was unconscionable. (Id. at
pp. 72–76.)
Vallin’s reliance on Rent-A-Center is misplaced. Unlike
Blackmon, the plaintiff in Rent-A-Center didn’t dispute that he
signed the underlying arbitration agreement or that he was
otherwise a party to it. (See Rent-A-Center, supra, 56 U.S. at pp.
65–76.) Thus, the Court in Rent-A-Center never considered the
issue before us—whether an arbitration agreement’s delegation
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clause may be enforced against a plaintiff who didn’t sign the
arbitration agreement and argues she never otherwise agreed to
be bound by that agreement. (Santa Clara County Local
Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 243
[“an opinion is not authority for an issue not considered
therein”].)
Nor do any of the other cases that Vernon cites support its
position, as none of them addressed whether a party may be
bound by a delegation clause before it has been established the
plaintiff signed, or otherwise agreed to be bound by, an
arbitration agreement containing such a clause. (See Tiri v.
Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 237, 241–250
[requiring plaintiff who signed arbitration agreement that
included delegation clause to submit to arbitrator issues
concerning the agreement’s conscionability]; Ajamian v.
CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 781–794 [declining
to enforce delegation clause for lack of clear and unmistakable
evidence of parties’ intent to submit issue of unconscionability to
arbitrator]; Momot v. Mastro (9th Cir. 2011) 652 F.3d 982, 984,
986–988 [requiring plaintiff who entered into an arbitration
agreement to arbitrate issues of arbitrability under the
agreement’s delegation clause].)
3. Vernon failed to prove Vallin was authorized to agree
to arbitration on Blackmon’s behalf.
Vernon next contends the court erred in denying the motion
to compel arbitration because Vallin was acting as Blackmon’s
agent when he signed the Agreement, thereby requiring her to
arbitrate her claims arising out of her residency at the Facility.
Once again, we disagree.
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Generally, a person who is not a party to an arbitration
agreement is not bound by it. (Rogers v. Roseville SH, LLC (2022)
75 Cal.App.5th 1065, 1074 (Rogers).) One exception exists where
a person who is authorized to act as the plaintiff’s agent binds the
plaintiff to an arbitration agreement. (Ibid.)
An agent is someone who represents another—the
principal—in dealings with third parties. (Civ. Code, § 2295.) An
agency can be “actual” or “ostensible.” (Id., § 2298.) An actual
agency exists when the agent is “really employed by the
principal.” (Id., § 2299.) An actual agency is formed when the
principal’s conduct causes the agent to reasonably believe he is
authorized to act on the principal’s behalf. (Rogers, supra, 75
Cal.App.5th at p. 1074.) An ostensible agency arises when the
principal intentionally, or through want of ordinary care, causes
the third party to reasonably believe the agent is authorized to
act on the principal’s behalf. (Ibid.)
Whether actual or ostensible, an agency cannot be created
by the agent alone. (Rogers, supra, 75 Cal.App.5th at p. 1074.)
Rather, conduct by the principal is essential to create an agency
relationship. (Ibid.) “ ‘ “ ‘The principal must in some manner
indicate that the agent is to act for [her], and the agent must act
or agree to act on [her] behalf and subject to [her] control.’ ” ’ ”
(Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th
581, 588 (Flores).)
Vernon didn’t present any evidence that Blackmon
expressly authorized Vallin to act as her agent before he signed
the Agreement. In fact, Vallin testified that he wasn’t Blackmon’s
conservator or legal guardian, or acting under any power of
attorney, when he signed the Agreement on Blackmon’s behalf,
and Vernon presented no evidence to the contrary. (See, e.g.,
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Gordon v. Atria Management Co., LLC (2021) 70 Cal.App.5th
1020, 1026–1030 [adult child with power of attorney was
authorized to enter into arbitration agreement on parent’s
behalf]; Garrison v. Superior Court (2005) 132 Cal.App.4th 253
[same].)
Vernon argues the court should have inferred Vallin was
Blackmon’s agent because Vallin attested that he was
“authorized to act as [Blackmon’s] agent” when he signed the
Agreement. But Vallin’s conduct, by itself, is insufficient to create
an agency relationship between Vallin and Blackmon. (Rogers,
supra, 75 Cal.App.5th at p. 1074.) In any event, Vallin later
testified that he never spoke to Blackmon about signing the
Agreement or otherwise obtained her authorization to agree to
arbitration on her behalf. (See ibid. [to form an actual agency, the
principal’s conduct must cause the agent to believe he is
authorized to act on the principal’s behalf].)
Vernon also contends Blackmon’s conduct led Vernon to
believe Vallin was her agent when he signed the Agreement
because she “accepted [the Facility’s] services provided to her for
over one week before Vallin signed the [Agreement] on her
behalf.” We are not persuaded.
At the time Blackmon was admitted to the Facility, she
suffered from dementia, had recently experienced “cognitive
decline,” and could no longer perform daily living activities on her
own. Although Blackmon was present when Vallin signed her
initial admission paperwork, she said nothing to Vallin or the
Facility’s representative or otherwise engaged in any affirmative
conduct that would suggest she authorized Vallin to act as her
agent. Several courts have held on similar facts that a resident’s
tacit acceptance of a skilled nursing facility’s services is
12
insufficient to establish an agency relationship between the
resident and a relative who signs an arbitration agreement when
the resident is admitted to the facility.
For instance, in Rogers, surviving family members sued a
skilled nursing facility for elder abuse and other claims arising
out of the care it provided the decedent while he was a resident at
the facility. (Rogers, supra, 75 Cal.App.5th at p. 1068.) The
facility petitioned to compel arbitration, citing an arbitration
agreement the decedent’s son signed when the decedent was
admitted to the facility. (Id. at pp. 1068–1070.) The trial court
denied the facility’s petition, finding the facility failed to prove
the son was authorized to sign the arbitration agreement on the
decedent’s behalf. (Id. at p. 1072.)
The appellate court affirmed. (Rogers, supra, 75 Cal.
App.5th at pp. 1073–1077.) It rejected the facility’s argument
that the son’s apparent belief that he was authorized to sign the
decedent’s admission paperwork, including the arbitration
agreement, established an agency relationship between the
decedent and his son, since the purported agent’s conduct “cannot
create an agency relationship” by itself. (Id. at p. 1075.) The court
also found there was no evidence that the decedent engaged in
any conduct that could have led the facility to reasonably believe
his son was authorized to sign an arbitration agreement on his
behalf. (Id. at p. 1076.) The court explained that the decedent’s
failure to object to his son signing the arbitration agreement did
not establish an agency relationship because there was no
evidence that one of the facility’s representatives spoke to the
decedent about the agreement or that the decedent had
previously authorized his son to sign similar agreements on his
behalf. (Ibid.)
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In Flores, the trial court denied a skilled nursing facility’s
motion to compel arbitration of claims brought by a resident and
her husband. At the time the resident was admitted to the
facility, she suffered from dementia and other ailments. (Flores,
supra, 148 Cal.App.5th at p. 585.) The resident’s husband signed
her admission documents and a separate arbitration agreement.
(Ibid.) On the arbitration agreement, the husband signed his
name above a line designating him the resident’s “ ‘Legal
Rep/Responsible Party/Agent.’ ” (Ibid.) At the time the husband
signed the admission documents and the arbitration agreement,
he was not the resident’s conservator or guardian, and he did not
have power of attorney to act for her. (Ibid.)
The reviewing court affirmed the trial court’s order denying
the facility’s motion to compel arbitration. (Flores, supra, 148
Cal.App.4th at pp. 587–589, 594.) The court reasoned that
although the husband held himself out as the resident’s agent,
and the resident didn’t disavow the facility’s belief that her
husband was her agent, the record was devoid of any evidence
that the resident engaged in any affirmative conduct to reinforce
such belief. (Id. at pp. 588–589.) Citing the fact that the resident
suffered from “dementia and other ailments” at the time she was
admitted to the facility, the court concluded the resident’s mere
acquiescence to receiving care from the facility, without more,
was not sufficient to constitute intentional or negligent conduct
that would cause the facility to reasonably believe she had
authorized her husband to act as her agent. (Ibid.)
And in Warfield v. Summerville Senior Living, Inc. (2007)
158 Cal.App.4th 443 (Warfield), the plaintiff suffered from
dementia and was no longer able to care for herself when she was
admitted to a skilled nursing facility. (Id. at pp. 445–446.) The
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plaintiff’s husband, who was also a resident at the facility, signed
the plaintiff’s admission paperwork, including an arbitration
agreement. (Id. at p. 446.) When the plaintiff later sued the
facility for elder abuse claims, the facility petitioned to compel
arbitration, arguing the husband executed the arbitration
agreement on the plaintiff’s behalf. (Ibid.) The trial court denied
the facility’s petition. (Ibid.)
The appellate court affirmed, rejecting the facility’s
argument that the plaintiff “acquiesced to her husband’s
representation as her agent” because she accepted her living
arrangement with the facility and never objected to her husband
signing her admission paperwork. (Warfield, supra, 158
Cal.App.4th at p. 448.) The court explained that “the failure of a
resident suffering from dementia to object to the living
arrangements her husband had made would hardly constitute
evidence that she had authorized him to act as her agent in
waiving her right to a jury trial.” (Ibid.)
Here, Vernon proved nothing more than Blackmon’s silent
acceptance of nursing services at the Facility before Vallin signed
the Agreement. But as the courts in Rogers, Flores, and Warfield
explained, an ostensible agency cannot be created by mere silence
or acquiescence by a resident, especially one suffering from
dementia. Instead, it requires intentional or negligent conduct by
the principal. (Flores, supra, 148 Cal.App.4th at p. 588.) Because
nothing in the record compels, let alone supports, a finding that
Blackmon intentionally or negligently engaged in any conduct
that could cause Vernon to reasonably believe she authorized
Vallin to agree to arbitrate her claims, the court properly denied
Vernon’s motion to compel arbitration.
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DISPOSITION
The order denying Vernon’s motion to compel arbitration is
affirmed. Blackmon shall recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
ADAMS, J.
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