California Court of Appeals, Third District, Sacramento
from a judgment of the Superior Court of Sacramento County
No. 34-2012-00135467-CU-PO-GDS, David I. Brown, Judge.
Cowdrey Owen, Thomas E. Beach and Darryl C. Hottinger for
Defendants and Appellants.
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.
Handy for LeadingAge California as Amicus Curiae on behalf of
Defendants and Appellants.
Law Office and Edward P. Dudensing for Plaintiffs and
NICHOLSON, Acting P. J.
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.
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.
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.
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.
AND PROCEDURAL HISTORY
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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
‘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).)
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,