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Hutcheson v. Eskaton FountainWood Lodge

California Court of Appeals, Third District, Sacramento

June 14, 2017

ROBIN HUTCHESON et al., Plaintiffs and Respondents,
ESKATON FOUNTAINWOOD LODGE et al., Defendants and Respondents.

         APPEAL from a judgment of the Superior Court of Sacramento County No. 34-2012-00135467-CU-PO-GDS, David I. Brown, Judge. Affirmed.

          Beach Cowdrey Owen, Thomas E. Beach and Darryl C. Hottinger for Defendants and Appellants.

          Hanson Bridgett, James A. Napoli, Adam W. Hofmann, and Rachel P. Zuraw for California Assisted Living Association as Amicus Curiae on behalf of Defendants and Appellants.

          Joanne Handy for LeadingAge California as Amicus Curiae on behalf of Defendants and Appellants.

          The Law Office and Edward P. Dudensing for Plaintiffs and Respondents.

          NICHOLSON, Acting P. J.

         This case turns on whether an attorney-in-fact who admitted her principal to a residential care facility for the elderly made a “health care” decision. If she did, as the trial court found, she acted outside the scope of her authority under the power of attorney, and the admission agreement she signed, and its arbitration clause this appeal seeks to enforce, are void.

         To answer this question, we must reconcile two statutes, the Power of Attorney Law (Prob. Code, § 4000 et seq. (PAL)), and the Health Care Decisions Law (Prob. Code, § 4600 et seq. (HCDL)), in light of the care rendered by a residential care facility for the elderly (Health & Saf. Code, § 1569 et seq.), and parse the authority of two of the principal's relatives, one holding a power of attorney under the PAL and one holding a power of attorney under the HCDL.

         On these facts we conclude admission of decedent to the residential care center for the elderly was a health care decision and the attorney-in-fact who admitted her, acting under the PAL, was not authorized to make health care decisions on behalf of the principal.

         As a result of this conclusion, we affirm the trial court's denial of a motion by the residential care facility to compel arbitration. Because the attorney-in-fact acting under the PAL did not have authority to admit the principal to the residential care facility for the elderly, her execution of the admission agreement and its arbitration clause are void.


         For ease of reference, we refer to a power of attorney for health care, as authorized under the HCDL (Prob. Code, § 4671, subd. (a)), as a “health care POA, ” rather than an advance health care directive. (Prob. Code, § 4673.) For purposes of this decision only, we refer to the statutory form power of attorney set forth in the PAL (Prob. Code, § 4401) as a “personal care POA.”

         Decedent Barbara Lovenstein executed a health care POA in 2006. She appointed her niece, plaintiff Robin Hutcheson, as her attorney-in-fact to make health care decisions for her. The authority to make health care decisions included the power to authorize Lovenstein's admission to “any hospital, hospice, nursing home, adult home, or other medical care facility, ” and the authority to consent to the provision, withholding, or withdrawal of health care. The directive became effective immediately.

         Four years later, in 2010, Lovenstein executed a personal care POA, using the form set forth in the PAL. She designated her sister, plaintiff Jean Charles, and Hutcheson as her attorneys-in-fact. Lovenstein granted them the authority to act for her on a number of different subjects, including “[p]ersonal and family maintenance, ” and “[c]laims and litigation.” The form expressly precluded anyone from making “medical and other health-care decisions” for her. Each attorney-in-fact had the authority to act alone on all matters within their authority that are relevant here. The personal care POA became effective immediately.

         Prior to February 24, 2012, Lovenstein lived with Charles. At times, Charles served as Lovenstein's care provider; at other times, she oversaw care provided to Lovenstein by in-home care providers, including their administration of medicine. Charles declared she knew Lovenstein had assigned Hutcheson to make health care decisions. It was Lovenstein's desire throughout her lifetime that Hutcheson make health care decisions for her.

         On February 24, 2012, Charles voluntarily admitted Lovenstein to defendant Eskaton FountainWood Lodge (FountainWood). FountainWood is a licensed “residential care facility for the elderly” under the California Residential Care Facilities for the Elderly Act (Health & Saf. Code, § 1569 et seq.). It is owned and operated by defendants Eskaton Properties, Inc., and Eskaton. Charles signed the admission agreement on behalf of Lovenstein.

         The admission agreement contained an arbitration clause. The clause in general required all claims arising from Lovenstein's care at FountainWood to be submitted to binding arbitration. The clause bound the parties' heirs, representatives, and successors, and it remained in effect after the admission agreement terminated for the resolution of all claims.

         A medical appraisal performed the day of her admission disclosed Lovenstein was suffering from dementia and seizures. She was confused and disoriented. She engaged in inappropriate, aggressive, and wandering behaviors. She was not able to follow instructions consistently, and she was depressed. She required “complete” supervision.

         When Lovenstein was admitted to FountainWood, she allegedly suffered from epilepsy and had a prescription for Ativan. She was to take the medicine (one mg. dose) only as needed for seizure-like activity. FountainWood staff allegedly began giving Lovenstein more doses of Ativan than were prescribed to help alleviate her anxiety and agitation. Concerned about the staff's alleged increased administration of Ativan for purposes other than seizures, Charles made an appointment for Lovenstein to see her doctor. The doctor found Lovenstein was disoriented as to time, place, and person, which was a “drastic change from earlier visits.” He concurred in Charles's decision to move Lovenstein back to Charles's home.

         On March 22, 2012, Charles went to FountainWood to pack Lovenstein's belongings and move Lovenstein into her home. However, Lovenstein choked on her lunch at FountainWood that day and was transferred to a hospital. Doctors allegedly diagnosed her with aspiration pneumonia and severe dysphagia (difficulty in swallowing). She remained hospitalized until March 28, 2012, and died on April 11, 2012.

         There is no evidence in the record that Hutcheson, Lovenstein's attorney-in-fact for health care under the health care POA, was involved in any of the decisions and actions regarding Lovenstein's admission to, stay at, or discharge from FountainWood.

         Hutcheson, as successor in interest on behalf of Lovenstein, and Charles sued defendants. In the first amended complaint, Hutcheson sought damages for elder abuse and fraud, and Charles sought damages for negligent infliction of emotional distress.

         FountainWood petitioned the trial court to compel arbitration pursuant to the mandatory arbitration clause contained in the admission agreement. The trial court denied the petition, ruling the arbitration agreement was invalid. The court reasoned the admission of Lovenstein to FountainWood and the agreement to arbitrate as part of that admission were health care decisions, and Charles did not have the authority under her personal care POA to make health care decisions for Lovenstein.

         FountainWood appeals from the trial court's order. It contends the arbitration agreement is valid because Charles's decision to admit Lovenstein to FountainWood was not a health care decision, and Charles was authorized under the personal care POA to sign the admission agreement and bind Lovenstein and her successors to binding arbitration. FountainWood alternatively contends Lovenstein and Charles created an ostensible agency by failing to inform it that Charles was not authorized to execute the admissions agreement.[1]



         Standard of Review

         “ ‘Although “[t]he law favors contracts for arbitration of disputes between parties” (Player v. Geo. M. Brewster & Son, Inc. [(1971)] 18 Cal.App.3d [526, ] 534), “ ‘there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate....' ” (Weeks v. Crow (1980) 113 Cal.App.3d 350, 353, quoting Freeman v. State Farm Mut. Auto. Ins. Co. [(1975)] 14 Cal.3d [473, ] 481....)' (Victoria v. Superior Court (1985) 40 Cal.3d 734, 744.) ‘The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement. (Garrison v. Superior Court (2005) 132 Cal.App.4th 253, 263 (Garrison); Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 [(Engalla)]; Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, 301 (Pagarigan).) Petitions to compel arbitration are resolved by a summary procedure that allows the parties to submit declarations and other documentary testimony and, at the trial court's discretion, to provide oral testimony. (Engalla, supra, 15 Cal.4th at p. 972; Code Civ. Proc., §§ 1281.2, 1290.2.) If the facts are undisputed, on appeal we independently review the case to determine whether a valid arbitration agreement exists. (Garrison, supra, 132 Cal.App.4th at p. 263; Buckner v. Tamarin (2002) 98 Cal.App.4th 140, 142.)' (Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 586 (Flores).)

         “As the Flores court explained, ‘Generally, a person who is not a party to an arbitration agreement is not bound by it. (Buckner v. Tamarin, supra, 98 Cal.App.4th at p. 142.) However, there are exceptions. For example, a patient who signs an arbitration agreement at a health care facility can bind relatives who present claims arising from the patient's treatment. (Mormile v. Sinclair (1994) 21 Cal.App.4th 1508, 1511-1516; Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586, 1591.) Further, a person who is authorized to act as the patient's agent can bind the patient to an arbitration agreement. (Garrison, supra, 132 Cal.App.4th at pp. 264-266; see Buckner, supra, ...

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