(Super.Ct.No. RIC10024652) APPEAL from the Superior Court of Riverside County. John W. Vineyard, Temporary Judge.
The opinion of the court was delivered by: King J.
CERTIFIED FOR PUBLICATION
(Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Plaintiff Norma Daniels sued Sunrise Senior Living, Inc. and other defendants,*fn1 the owners and operators of a residential care facility for the elderly (RCFE)*fn2 known as Sunrise of Hemet (Sunrise), for elder abuse and related claims (the survivor claims) as the successor in interest of her late mother, Margaret Barcenas. (Code Civ. Proc., §§ 377.20, 377.31.)*fn3 Daniels alleged that Barcenas, who was elderly and suffered from "dementia with psychosis," died as a result of receiving inadequate care at Sunrise. In her personal capacity, Daniels alleged an additional cause of action against defendants for the wrongful death of Barcenas. (§ 377.60.)
Defendants petitioned the trial court to compel arbitration of all of the claims pursuant to the arbitration clause in a "residency agreement" Daniels entered into with Sunrise Senior Living, Inc. as Barcenas's attorney in fact, but not in her personal capacity. Under the arbitration clause, all claims related to the care Barcenas received at Sunrise are subject to binding arbitration, and the clause is binding on Barcenas's heirs and representatives. The court denied the petition and refused to order any of the claims to arbitration on the grounds Daniels was a third party to the agreement and could not be compelled to arbitrate her wrongful death claim, and there was a possibility of conflicting rulings on common issues of fact and law if the survivor claims were arbitrated but the wrongful death claim was not. (§ 1281.2, subd. (c) (herein § 1281.2(c).) Defendants appeal. (§ 1294, subd. (a).)
We find no error of law or abuse of discretion in the order refusing to compel arbitration of any of the claims. We disagree that Daniels should have been compelled to arbitrate her personal wrongful death claim along with the survivor claims pursuant to the rationale articulated in Herbert v. Superior Court (1985) 169 Cal.App.3d 718 (Herbert) and Ruiz v. Podolsky (2010) 50 Cal.4th 838 (Ruiz) [nonsignatories to arbitration agreement must arbitrate their wrongful death claims against health care provider when decedent agreed to arbitrate medical malpractice claims pursuant to § 1295, the wrongful death claims are based on medical malpractice, and the agreement was intended to bind wrongful death claimants].) As we explain, Herbert and Ruiz have no bearing on third party wrongful death claims outside the context of section 1295. We also conclude that the court did not abuse its discretion in determining there was a possibility of conflicting rulings on common questions of law and fact if the survivor claims but not the wrongful death claim were ordered to arbitration. (§ 1281.2(c).)
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Allegations of the Complaint
At the age of 92 in December 2009, Barcenas became a resident of Sunrise with a diagnosis of "dementia with psychosis." She was assigned to a "non-ambulatory" suite and enrolled in a program designed for residents with dementia. Her individualized service plan required Sunrise to assess her for skin breakdown and notify a health care consultant if skin tears or redness were noted. Sunrise staff was also responsible for washing Barcenas's lower legs, feet, and bottom.
While living at Sunrise during early 2010, Barcenas developed pressure sores on both of her heels and ankles, and her health deteriorated. The pressure sores went unnoticed and untreated until April 2010, when Daniels brought them to the attention of Sunrise staff. In May 2010, Barcenas was taken to a hospital emergency room where tests revealed she had septic shock, pneumonia, dehydration, and a staph infection. She was hospitalized for two months, and was transferred to a skilled nursing facility in July 2010. She never fully recovered from her injuries and died at the skilled nursing facility in February 2011 at the age of 93.
Daniels filed suit against defendants in her representative capacity as Barcenas's successor in interest (Code Civ. Proc., §§ 377.11, 377.20), alleging claims for elder abuse in violation of the Elder and Dependent Care Adult Act (Welf. & Inst. Code, § 15600 et seq.), negligence, breach of contract, and willful misconduct (the survivor claims). In her personal capacity as Barcenas's heir, Daniels alleged an additional cause of action for the wrongful death of Barcenas. (Code Civ. Proc., § 377.60, subd. (a).)
B. The Arbitration Clause in the Residency Agreement
Upon Barcenas's admission to Sunrise, Daniels signed a residency agreement with defendant Sunrise Senior Living Services, Inc. as Barcenas's attorney in fact, pursuant to a durable general power of attorney and a durable power of attorney for health care. The residency agreement includes an arbitration clause (the arbitration clause), which states that: "By entering into this Agreement, you agree that any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at [Sunrise] shall be resolved by . . . binding arbitration . . . . The arbitration clause ...