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Rebecca Bush, Etc., et al v. Horizon West et al

April 9, 2012


(Super. Ct. No. 3420100085024CUPPOGDS)

The opinion of the court was delivered by: Robie , J.

Bush v. Horizon West



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this action, plaintiff Rebecca Bush sued the operators of a skilled nursing facility for elder abuse (among other causes of action) based on their alleged neglect in providing her care and treatment at the facility. In the same complaint, Bush's daughter, plaintiff Charmaine Jennings, sued the same defendants for negligent infliction of emotional distress based on her alleged observation of the harm they caused Bush through their neglect. When defendants moved to compel arbitration pursuant to a written agreement with Bush, the trial court exercised its discretion under Code of Civil Procedure section 1281.2, subdivision (c) (section 1281.2(c)) to deny their motions because of the possibility of conflicting rulings between Bush's claim for elder abuse, which was subject to arbitration, and Jennings's claim for negligent infliction of emotional distress, which was not.*fn1

On defendants' appeals, we find no error in the trial court's decision. As explained more fully below, we conclude the application of section 1281.2(c) was not preempted here by the Federal Arbitration Act (the federal Act) (9 U.S.C. § 1 et. seq.), and we reject the argument that the parties agreed section 1281.2(c) would not apply. We also conclude that Jennings was not bound by the arbitration agreement either based on our Supreme Court's recent decision in Ruiz v. Podolsky (2010) 50 Cal.4th 838 or on the doctrine of equitable estoppel. Finally, we find no abuse of discretion in the trial court's determination that there was a possibility of conflicting rulings, and we decline to overturn the trial court's ruling -- in which defendants have otherwise failed to show any error -- based on "public policy."


On August 12, 2010, Bush, by and through her daughter and guardian ad litem, Jennings, commenced this action by filing a complaint containing causes of action for elder abuse, fraud, and violations of the Patients Bill of Rights (Health & Saf. Code, § 1430, subd. (b)). The complaint alleged that in April 2007, when she was 79 years old, Bush was admitted to a 24-hour skilled nursing facility -- defendant Sierra Health Care Center, Inc. (Sierra).*fn2 The complaint further alleged that beginning in 2008 and continuing until she left Sierra in May 2009, Bush "suffered severe, pervasive neglect and her physical and mental condition declined precipitously" because of "extreme cost-cutting measures" at the facility. The fraud cause of action was based on the allegation that the corporate defendants concealed their inability and lack of intention to provide legally adequate care to Bush.

In addition to appearing in the action as Bush's guardian ad litem, Jennings also appeared as a plaintiff in her own right, asserting a cause of action for negligent infliction of emotional distress based on allegations that she visited Bush daily and "observ[ed] the horrendous consequences of Defendants' utter neglect, indifference, and inhumane treatment toward her mother."

Defendants filed their answers to the complaint in September 2010. The following month, Bush moved for trial preference, which the court granted, ordering that trial be set on or before March 23, 2011.

In December 2010, Horizon and Golden Legacy each moved to compel arbitration based on an arbitration agreement between Bush and Sierra that Jennings had signed in May 2007 as Bush's legal representative.*fn3 Plaintiffs opposed the motions on numerous grounds. Among other things, they argued that the court should refuse to compel arbitration under section 1281.2(c) because of the possibility of conflicting rulings on common issues of law and fact.

In January 2011, the trial court exercised its discretion under section 1281.2(c) to deny the motions to compel arbitration because of the possibility of conflicting rulings between the arbitration of Bush's claims and a trial of Jennings's claim. In the court's view, "[a]ll causes of action by both Plaintiffs are related to the Defendants' care provided to Plaintiff Bush and are premised upon similar if not identical facts. Indeed, if Bush's claims proceed to arbitration, an arbitrator could conclude that Defendants did not fail to provide adequate care and thus could deny relief. However, a trial court could find that Defendants are liable for inflicting emotional distress upon Plaintiff Jennings based on her allegations that she suffered emotional distress as a direct result of 'Defendants' neglect and maltreatment of [Bush] . . . [.]'"

Defendants timely appealed. (Code Civ. Proc.,*fn4 § 1294, subd. (a).)


Defendants offer numerous arguments as to why the trial court erred or abused its discretion in refusing to compel arbitration. We address each argument in turn.



Golden Legacy contends the application of section 1281.2(c) was preempted here by the federal Act. We disagree.

"A court's order denying arbitration under section 1281.2(c) is 'ordinarily reviewed for abuse of discretion.' [Citation.] But the issue presented here--whether federal law governs the arbitration agreement--is a question of law involving interpretation of statutes and the contract (with no extrinsic evidence). We therefore apply a de novo standard of review." (Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1116-1117.)

The pertinent portions of the arbitration agreement are as follows:

Article I of the agreement, entitled "RECITALS," contains several relevant provisions. Consistent with section 1295, subdivision (a), which sets forth certain requirements for agreements to arbitrate medical malpractice claims, the first paragraph of Article I (paragraph 1.1) consists of the following recital: "It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized [or] were improperly, negligently or incompetently rendered, will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration."

The second paragraph of Article I (paragraph 1.2) in turn provides as follows: "It is also understood that this agreement similarly governs the submission of [sic] arbitration of any and all other claims arising out of the provision of services by the Community,[*fn5 ] the admission agreement, the validity, interpretation, construction, performance and enforcement thereof, or which allege violations of the Elder Abuse and Dependent Adult Civil Protection Act, the Unfair Competition Act, the Consumer Legal Remedies Act, or which seek an award of treble damages, punitive damages or attorneys' fees."

The fifth paragraph of Article I (paragraph 1.5) recites as follows: "As this agreement relates to the Resident's admission in the Community, and the Community, among other things, participates in the Medicare and/or Medi-Cal programs and/or procures supplies from out-of-state vendors, the parties acknowledge and agree that Resident's admission and these other events evidence transactions affecting or involving interstate commerce governed by the Federal Arbitration Act."

The first paragraph of Article III of the agreement (paragraph 3.1), entitled "ARBITRATION OF DISPUTES," provides as follows: "The Parties hereby acknowledge that arbitration is preferable to a judicial forum and the California law favors the enforcement of valid arbitration provisions. The arbitration shall be conducted by one neutral arbitrator selected from the J.A.M. (Arbitration Service) in Davis (City), California and in accordance with discovery procedures set forth in the California Arbitration Act, California Code of Civil Procedure Section 1280 et seq. The arbitrator shall be selected from a panel of J.A.M. (Arbitration Service) arbitrators, using the process for selection employed by the J.A.M. (Arbitration Service). If the Parties are unable to select one arbitrator using such process, the arbitrator shall be selected using the provisions of the California Code ...

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