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Randy Heard v. the Superior Court of

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO


December 6, 2010

RANDY HEARD, PETITIONER,
v.
THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, RESPONDENT; MARK THOMAS DIGERNESS ET AL. REAL PARTIES IN INTEREST.

The opinion of the court was delivered by: McKINSTER Acting P.J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. CIVDS1001801)

OPINION

ORIGINAL PROCEEDINGS; petition for writ of mandate. Frank Gafkowski, Jr., Judge. (Retired judge of the former L.A. Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition granted.

The Law Offices of Larry H. Parker, Inc., Jeffrey R. Billings; Perona, Langer, Beck, Serbin & Mendoza, Ronald Beck and Alvin Chang for Petitioner.

No appearance for Respondent.

La Follette, Johnson, De Haas, Fesler & Ames, Jeffrey R. Erickson; Arnold & Porter, Lawrence A. Cox and Brian K. Condon for Real Parties in Interest.

INTRODUCTION

The court has read and considered the record in this proceeding and has concluded that an alternative writ would add nothing to the presentation already made and would cause undue delay in resolving the matter. We therefore issue a peremptory writ in the first instance. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4.)

DISCUSSION

An order compelling arbitration is not appealable, but a party compelled to arbitrate is entitled to have the validity of the order reviewed on appeal from a judgment confirming an award. In La Pietra v. Freed (1978) 87 Cal.App.3d 1025, 1031, the court observed that an order compelling arbitration is interlocutory in nature and works no hardship on the litigant because the party who objects to arbitration may win at the arbitration hearing and, if he does not, the issue is reviewable on appeal from the judgment of confirmation.

In exceptional situations, a party aggrieved by an order compelling arbitration may seek writ review of the order. (See Wheeler v. St. Joseph Hospital (1976) 63 Cal.App.3d 345, 353.) Petitioner has not shown that arbitration of this claim would be unduly time consuming or expensive. However, writ review is also available if the matters clearly fall outside the scope of the arbitration agreement. (Zembsch v. Superior Court (2006) 146 Cal.App.4th 153, 160.) Here, it appears that petitioner's claim is outside the scope of the agreement. In reaching this conclusion, we uphold the trial court's resolution of disputed facts that are supported by substantial evidence, but if there is no disputed extrinsic evidence, the trial court's decision on the arbitrability determination is reviewed de novo. (Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1511.)

As a preliminary matter, the trial court's interpretation is reasonable that a premises liability claim is arbitrable even if it does not arise out of the provision of medical services. For example, we would agree that a patient's claim is arbitrable if it arises from a trip and fall on a stairway while leaving the facility. Moreover, premises liability is not based solely on a claim that the physical condition of property caused the injury; the condition of the property may be unsafe because of the activity taking place on it. (See Musgrove v. Ambrose Properties (1978) 87 Cal.App.3d 44, 51 [plaintiff injured by bicycle ridden by boy on passageway in shopping center; defendant knew that bicycles were ridden on premises and took no precautions to minimize risk of striking pedestrians].)

Real parties in interest contend that the trial court could look at extrinsic evidence to determine that premises liability is involved.*fn1 According to its version, the incident occurred on the sidewalk when its employee drove the cart out of the doctor's office at the hospital and turned to head up the sidewalk to take the trash to the dumpsters, which was a regular pathway for doing this job. Petitioner, a Kaiser member, had picked up a prescription at the pharmacy and was sitting on the bench at the bus stop. The employee drove past a shopping cart on the sidewalk and it got caught on his car and was dragged into the bus bench, injuring petitioner. However, petitioner has not pleaded that the accident was due to any condition of the property, and the facts on which real parties in interest rely do not suggest any causal link between the condition of the property, even assuming real parties in interest's control over the sidewalk, and the accident. Petitioner's claim is solely one of vicarious liability based on the employee's conduct and such a claim cannot be categorized as a premises liability claim. Thus, we must conclude that the trial court erred in compelling arbitration where the claim falls clearly outside the scope of the arbitration agreement.

DISPOSITION

Accordingly, we conclude that the trial court erred in vacating the dismissal, and we grant the petition.

Let a peremptory writ of mandate issue directing the Superior Court of San Bernardino County to set aside its order compelling arbitration and to issue a new and different order denying real parties in interest's petition to compel arbitration.

Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.

Petitioner to recover his costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

We concur:

KING J.

MILLER J.


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