California Court of Appeals, Fourth District, Third Division
from an order of the Superior Court of Orange County No.
30-2016-00843634 Nathan R. Scott, Judge. Affirmed.
Giovanniello Law Group, Alexander F. Giovanniello, Karen A.
Bocker, Danielle M. VandenBos and Thomas C. Swann for
Defendants and Appellants.
Valentine Law Group, Kimberly A. Valentine, Jennifer L.
Turner and Joseph F. Fighera for Plaintiffs and Respondents.
ACTING P. J.
California Specialty Care, dba Kindred Hospital - Santa Ana
and Kindred Healthcare Operating, Inc. (Kindred or
defendants) appeal from the trial court's order denying
its petition to compel arbitration as to the negligence and
elder abuse claims of now-deceased Antonio Avila (Antonio),
and the wrongful death claim brought by his son and survivor,
Alexis Anthony Avila (Alex) (collectively
plaintiffs). The trial court ruled that Alex's wrongful
death claim was not subject to arbitration. The court further
exercised its discretion under Code of Civil Procedure
section 1281.2, subdivision (c),  to refuse to enforce the
arbitration agreement as to the remaining claims due to the
risk of inconsistent judgments. We find no error and affirm
2007, Antonio executed California's statutory power of
attorney form, naming his son, Alex, as his agent. In March
2015, Antonio, age 87 at the time, was transferred from
another facility to Kindred, a long-term acute care hospital,
suffering from various conditions, including sepsis and
chronic renal failure.
next day, after Antonio had begun receiving care, Alex was
presented with a stack of documents, including a document
entitled “Voluntary Alternative Dispute Resolution
(ADR) Agreement” (the agreement). Alex signed the
agreement on Antonio's behalf.
agreement provided for arbitration after mediation, with
“submission to arbitration as provided by California
law.” It also refers to section 1281.6 (court
appointment of an arbitrator if the parties cannot agree) and
Evidence Code section 1157 with regard to confidentiality of
peer review proceedings.
agreement stated “any dispute as to medical
malpractice, ” in addition to “any legal claim or
civil action arising out of or relating to your
hospitalization” was subject to arbitration.
“This ADR agreement also covers any claim or action
brought by a party other than you (e.g., an action by your
spouse, legal representative, agent, heir) arising out of or
relating to your hospitalization....” The agreement
also included a 30-day period in which to rescind.
signature page, immediately prior to the signature area,
there is a statement pursuant to section 1295, subdivision
(b) stating that by signing, the signator is “agreeing
to have any issue of medical malpractice decided by neutral
arbitration and you are giving up your right to a jury or
court trial.” The signature line under “name of
patient” was stamped “unable to sign, ” and
the signature was Alex's, followed by the word
“son.” (Original capitalization omitted.) It was
also signed by Alex under a statement regarding his
certification that he was authorized to act as Antonio's
to the complaint, Antonio died within five days of admission
as a result of Kindred's neglect. A dislodged feeding
tube began infusing into the throat and/or esophagus instead
of the stomach, and Antonio's impaired gag reflex was
unable to clear his lungs. He aspirated, resulting in
cardiopulmonary arrest and rapid decline until his death.
March 2016, the initial complaint was filed on behalf of
Antonio, “by and through his
successor-in-interest” Alex, and individually on
Alex's behalf. The first cause of action for
“negligence/willful misconduct” and the second
cause of action for elder abuse and neglect was on behalf of
both plaintiffs. A third and final cause of action for
wrongful death was filed on Alex's behalf only. In May,
defendants filed an answer, demand for jury trial, and notice
of posting of juror fees. They also sent a letter to
plaintiffs' counsel demanding dismissal of the lawsuit
and proceeding to arbitration. Plaintiffs declined.
July, Kindred filed the instant petition to compel
arbitration and motion to stay. They argued there was a
written agreement between plaintiffs and defendants providing
for arbitration of all disputes, and plaintiffs had refused
their demand. Kindred argued, among other things, that the
Federal Arbitration Act (9 U.S.C. § 1, et seq. (FAA))
applied to the agreement, that no traditional defenses to
contract law applied, and the agreement was enforceable as to
Alex as well as to Antonio. Defendants also contended the
agreement was enforceable under California law as well as the
response, plaintiffs argued the agreement was unconscionable,
and the defendants had waived their right to arbitrate by
their unreasonable delay. They further argued that Alex was
not a signatory to the agreement, which was unenforceable
against him, and the presence of his nonarbitrable wrongful
death claim created the risk of inconsistent rulings.
Accordingly, they requested the trial court, in an exercise
of discretion, to retain jurisdiction. Defendants filed a
reply in due course.
trial court initially issued a tentative decision granting
defendants' motion, but after hearing argument, took the
matter under submission. The court's final order denied
the motion, concluding defendants had failed to show a valid
arbitration agreement with respect to Alex. The court
exercised its discretion under section 1281.2, subdivision