Scott v. Yoho

          Order Filed Date: Date June 28, 2016

         APPEAL from an order of the Superior court of Los Angeles County, No. BC556129 Howard L. Halm, Judge.

          Carroll, Kelly, Trotter, Franzen, McKenna & Peabody, Mark V. Franzen and Steven J. Wysocky for Defendants and Appellants.

          Cynthia Chihiak & Associates, Cynthia Chihiak and Amy R. Martel for Plaintiffs and Respondents.

         ORDER MODIFYING OPINION

         It is ordered that the opinion filed herein on June 22, 2016, and, be modified in the following particulars:

         On page 2, the second sentence of the second paragraph of section II A reads, "affirmative offenses." That phrase should be replaced with, "affirmative defenses."

         On page 7, in the first sentence of section II C, the word "say" should be changed to read "stay."

         There is no change in the judgment.

          TURNER, P. J.

         I. INTRODUCTION

         Defendants, Robert A. Yoho, M.D. and New Body Cosmetic Surgery Center, appeal from a June 18, 2015 order denying their motions to compel arbitration. Defendants seek to enforce three arbitration agreements signed by the decedent, Kenisha Parker, against plaintiffs, who are her relatives. Plaintiffs are: Vivian Scott, individually and as guardian ad litem for a minor, D.G.; S.T., a minor; and La'Joyce King. Robert Lee Turner, Jr. is the guardian ad litem of S.T. Defendants argue the three arbitration agreements are enforceable under the Federal Arbitration Act. We conclude: the three arbitration agreements are subject to limited preemptive effect of the Federal Arbitration Act; the 30-day rescission right in Code of Civil Procedure^[1] section 1295, subdivision (c) is preempted by the Federal Arbitration Act; and thus the motions to compel arbitration should have been granted. We reverse the order denying the motions to compel arbitration.

         II. BACKGROUND

         A. Allegations of the First Amended Complaint and Defendants' Answer

         Plaintiffs' first amended complaint alleges causes of action for wrongful death, medical malpractice and survivorship. Ms. Parker consulted with defendants for various plastic surgery procedures, and on September 3, 2014, Ms. Parker underwent lipoplasty and suction lipectomy. Following the surgery, she suffered respiratory arrest and died on September 3, 2014 as a direct and proximate result of defendants' negligence and carelessness.

         Defendants filed a general denial of the first amended complaint's allegations. Among the 23 affirmative offenses asserted, defendants alleged, "That the instant dispute arises from a matter covered by a binding arbitration agreement between the parties, and that these answering defendants desire that this matter be therefore submitted to binding arbitration in accordance with the terms of the Arbitration Agreement."

         B. Defendants' Motion and Amended Motion to Compel Arbitration and Plaintiffs' Opposition

         1. The parties' legal arguments

         On July 9, 2015, defendants filed an amended motion to compel arbitration. Defendants argued: plaintiffs' wrongful death claims were subject to physician-patient arbitration agreements signed by Ms. Parker on March 8, March 11 and September 4, 2013; the three arbitration agreements applied to plaintiffs as Ms. Parker's heirs and the agreements were subject to the Federal Arbitration Act; the 30-day cancellation period in section 1295, subdivision (c) is preempted by the Federal Arbitration Act; and an open book account was created as a result of Ms. Parker's first procedure which governed future transactions between the parties. In connection with the preemption argument, defendants argued that the 30-day rescission period in section 1295, subdivision (c) is not a legal provision applicable generally to this state's contracts. Rather, section 1295, subdivision (c) applies only to health care agreements to arbitrate and thus is preempted by the Federal Arbitration Act. (Doctor's Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 686-687 (Doctor's Associates); Morrison v. Colorado Permanente Medical Group (D.Col. 1997) 983 F.Supp. 937, 942-943 (Morrison); Basura v. U.S. Home Corp. (2002) 98 Cal.App.4th 1205, 1212-1215 (Basura.)

         In opposition, plaintiffs argued the three arbitration agreements were unenforceable because they did not comply with section 1295. Plaintiffs contended the three arbitration agreements did not contain a provision notifying Ms. Parker of her right to rescind them within 30 days of signing. In addition, plaintiffs asserted Ms. Parker was denied her statutory ...