Santa Clara County Superior Court No. 112CV218720, Hon. Kevin E. McKenney, Trial Judge
Attorneys for Defendants And Appellants: Beach Whitman Cowdrey, Thomas E. Beach and Darryl C. Hottinger
Attorneys for Plaintiff And Respondent: Needham Kepner & Fish, Craig Needham and Kirsten Fish Smith & McGinty, Daniel U.Smith and Valerie T. McGinty Stebner & Associates, Kathryn Stebner and Karman Ratliff.
In this appeal, the owners and operators of a skilled nursing facility appeal from an order denying their motion to compel arbitration with their former patient, plaintiff and respondent Marylin Young. Appellants assert error in the trial court's determination that plaintiff's daughter, Bobbi Young,  lacked authority to sign an arbitration agreement on plaintiff's behalf. Appellants further contend that the agreement was not unconscionable and therefore should have been enforced. We agree with the trial court that Bobbi's execution of the arbitration agreement was unauthorized; accordingly, we must affirm the order on that ground alone.
On September 16, 2010 plaintiff, who was then 88 years old, suffered a stroke. After a week's hospitalization, she was transferred to Monterey Pines Skilled Nursing Facility (Monterey Pines), where she remained for 10 days until her discharge on October 4, 2010. Plaintiff's complaint describes the following events: On September 29, 2010, about halfway through her stay at the facility, plaintiff told her daughter, Bobbi, that she needed to leave immediately. Though the stroke had impaired her ability to communicate, plaintiff managed to explain that "she had woken up in bed the previous night with her catheter removed and laying [sic] out next to her on her bed, causing the entire bed and her body to be wet. She heard male voices next to her bed and seeing [sic] the curtains around her bed moving. She also heard someone 'fiddling' with the nurse call button next to her bed." Plaintiff later told the police that when she woke up her gown was off, and an unknown male assistant was looking at her naked in bed. The assistant said to her, " 'This is why I love my job.' "
Bobbi discovered that the call button had been unplugged, making plaintiff's attempts to call a nurse fruitless. At about the same time, plaintiff developed "unexplained deep bruising on her inner thigh and pelvis region and began complaining of severe pain to her pelvis and upper thighs for the first time."
Bobbi arranged for plaintiff's removal from the facility, and the family brought her home. Plaintiff continued to have difficulty speaking and was not independently mobile, but "[o]nce [she] was able to be moved more frequently and more easily and to speak clearer [sic], she started complaining of extreme pain in her lower region, particularly her vaginal area, buttocks area, and her inner thighs." It turned out that plaintiff had contracted genital herpes. Robert, her husband of nearly 70 years, had been her only sexual partner, and he tested negative for the virus.
Plaintiff brought this action on February 15, 2012, naming Monterey Pines; its owners, Horizon West, Inc. and Horizon West Headquarters, Inc. (collectively, "Horizon West"); and a group of entities (the "Plum defendants") that had bought Monterey Pines in June 2011 and renamed the facility "Cypress Ridge Care Center." Plaintiff asserted four causes of action: elder abuse and neglect, negligence in the care of plaintiff, violation of plaintiff's rights under the Patients' Bill of Rights (Cal. Code of Regs., tit. 22, § 72527), and successor liability against the Plum defendants.
All of the first three causes of action were founded on the allegation that the staff at Monterey Pines had failed to provide a safe environment and protect her from sexual assault. She asserted that male residents were allowed to enter female residents' rooms, and call lights were either nonfunctioning or purposely disconnected by the staff. Plaintiff further described a longstanding pattern of "reckless neglect" of the facility's residents that had resulted in "numerous citations and deficiencies relating to the physical abuse of residents and other incidents of substandard care." Plaintiff also pointed to the failure of either Horizon West or the Plum defendants to investigate plaintiff's allegation of rape, which meant that other residents were at risk of being sexually assaulted and infected with an incurable sexually transmitted disease.
On April 9, 2012, plaintiff, by then 90 years old, moved for trial-setting preference under Code of Civil Procedure section 36, subdivision (a). Both the Horizon and Plum defendants opposed the motion, arguing that (1) there was no evidence or even allegation of a medical condition requiring trial preference; (2) the case was not yet "at issue"; (3) plaintiff had not submitted a declaration attesting to proper service on all parties; and (4) there was "no competent evidence" that plaintiff was over 70 years of age.
Horizon and Monterey Pines, joined by the Plum defendants, then moved to stay the action and compel arbitration, citing Code of Civil Procedure sections 1281.2, 1281.4, and 1295. The motion was based on an agreement Bobbi had signed when plaintiff was admitted to Monterey Pines. Plaintiff opposed the motion, primarily on the grounds that (1) Bobbi had no authority to bind her mother to arbitration in signing the admission papers and (2) even if she did have such authority, the arbitration agreement was procedurally and substantively unconscionable.
After extensive briefing and oral argument, the trial court denied defendants' motion to compel arbitration and granted plaintiff's motion for preferential trial setting. Only Horizon and Monterey Pines (hereinafter appellants) filed a ...