California Court of Appeals, Second District, Fifth Division
Filed Date: Date June 28, 2016
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.
ordered that the opinion filed herein on June 22, 2016, and,
be modified in the following particulars:
2, the second sentence of the second paragraph of section II
A reads, "affirmative offenses." That phrase should
be replaced with, "affirmative defenses."
7, in the first sentence of section II C, the word
"say" should be changed to read "stay."
is no change in the judgment.
TURNER, P. J.
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 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.
Allegations of the First Amended Complaint and
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
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
Defendants' Motion and Amended Motion to Compel
Arbitration and Plaintiffs' Opposition
The parties' legal arguments
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.)
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