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By Steven G. Mehta

The court of appeal recently decided a case involving elder abuse and professional negligence.  Although it is an unpublished case, it has some interesting analysis.



HANEY v. ESKATON PROPERTIES, INC.

DENNIS HANEY, Plaintiff and Appellant,

v.

ESKATON PROPERTIES, INC., Defendant and Respondent.

 

No. C063376.

 

Court of Appeals of California, Third District, Sacramento.

 

 

Filed March 28, 2011.

NOT TO BE PUBLISHED

HULL, J.

Following the death of his mother, Doris Hilton, plaintiff brought this action against defendant Eskaton Properties, Inc., the operator of a long term care facility where Hilton lived the last three months of her life, asserting elder abuse, wrongful death, and survivor claims. The trial court sustained defendant’s demurrer to the elder abuse and survivor claims without leave to amend and granted defendant’s motion for summary judgment on the wrongful death claim. Plaintiff appeals the ensuing judgment for defendant. We conclude the trial court properly granted summary judgment on the wrongful death claim but erred in sustaining the demurrer to the elder abuse and survivor claims. We therefore reverse the judgment.

FACTS AND PROCEEDINGS

Because this matter involves both an order sustaining demurrers and an order granting summary judgment, we accept as true all material allegations of the complaint (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 8, fn. 3; Shoemaker v. Myers (1990) 52 Cal.3d 1, 7) and view the evidence presented on the summary judgment motion in the light most favorable to plaintiff (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107).

Defendant is in the business of providing long term care as a 24-hour health care facility. Plaintiff is the sole surviving heir and successor of Doris Hilton.

On or about August 11, 2006, Hilton was admitted to defendant’s facility in Fair Oaks, California. She was 78 years old. Hilton remained at the facility until November 26, 2006, when she was transferred to a Kaiser hospital, where she died on November 28.

Plaintiff brought this action against defendant on March 5, 2008. The first cause of action for elder abuse alleged defendant breached its duty to provide Hilton with care, comfort and safety by, among other things, failing to follow, implement and adhere to physician orders, failing to monitor Hilton’s condition, and failing to maintain accurate records on her condition. Defendant demurred to the first cause of action, and the trial court sustained the demurrer with leave to amend.

Plaintiff filed a first amended complaint, and defendant again demurred to the first cause of action for elder abuse. The trial court sustained the demurrer with leave to amend.

Plaintiff filed a second amended complaint containing three causes of action. In the first elder abuse claim, plaintiff again alleged breach of duty to provide care, comfort and safety, but this time with more specificity. In the second cause of action, plaintiff alleged wrongful death as a result of defendant’s actions. The third cause of action alleged a survivor claim on behalf of Hilton.

Defendant demurred to the first and third causes of action, and the trial court sustained the demurrers, this time without leave to amend. Defendant then moved for summary judgment on the sole remaining claim for wrongful death. The trial court granted the motion, both on the basis of the statute of limitations and on undisputed evidence that defendant acted within the applicable standard of care. The court thereafter entered judgment for defendant.

Further facts shall be provided in connection with plaintiff’s contentions on appeal.

DISCUSSION

I

Elder Abuse and Survivor Claims

The first cause of action of the second amended complaint is untitled. However, it purports to state a claim under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (Elder Abuse Act or Act). (Further undesignated section references are to the Welfare and Institutions Code.) The third cause of action, titled “SURVIVAL ACTION,” repeats all prior allegations and further alleges plaintiff is the successor in interest of Doris Hilton. Hence, this claim has no viability independent of the first two and stands or falls on the strength of those claims.

The Elder Abuse Act is intended “to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 (Delaney).) The original focus of the Act was on reporting abuse and neglect. (Ibid.) However, later amendments shifted the focus to private, civil enforcement. (Ibid.)

Under the Elder Abuse Act, “heightened remedies are available to plaintiffs who successfully sue for dependent adult abuse. Where it is proven by clear and convincing evidence that a defendant is liable for neglect or physical abuse, and the plaintiff proves that the defendant acted with recklessness, oppression, fraud, or malice, a court shall award attorney fees and costs. Additionally, a decedent’s survivors can recover damages for the decedent’s pain and suffering.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88 (Sababin).)

Abuse of an elder or a dependent adult is defined under the Act as “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” (§ 15610.07, subd. (a)) or “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering” (id., at subd. (b)). “Neglect includes the failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; the failure to provide medical care for physical and mental health needs; the failure to protect from health and safety hazards; and the failure to prevent malnutrition or dehydration. (§ 15610.57.) Physical abuse means, inter alia, assault, battery, prolonged deprivation of food or water, unreasonable physical restraint, or sexual assault. (§ 15610.63.)” (Sababin, supra, 144 Cal.App.4th at p. 88.)

To obtain the remedies available under the Elder Abuse Act, a plaintiff must prove culpability beyond mere negligence. He or she must demonstrate by clear and convincing evidence that the defendant is guilty of recklessness, oppression, fraud, or malice. (Delaney, supra, 20 Cal.4th at p. 31.) Recklessness refers “to a subjective state of culpability greater than simple negligence, which has been described as a `deliberate disregard’ of the `high degree of probability’ that an injury will occur.” (Ibid.) Oppression, fraud and malice “involve `intentional,’ `willful,’ or `conscious’ wrongdoing of a `despicable’ or `injurious’ nature.” (Ibid.) Conduct giving rise to the enhanced remedies available under the Elder Abuse Act is “essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789 (Covenant Care ).)

The Elder Abuse Act does not encompass liability for professional negligence. Section 15657.2 provides that “any cause of action for injury or damage against a health care provider, as defined in Section 340.5 of the Code of Civil Procedure, based on the health care provider’s alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action.” In particular, “MICRA, the Medical Injury Compensation Reform Act of 1975, refers to several statutes that restrict or place conditions upon causes of action and remedies directed at `health care providers’ for `professional negligence.’ (See Code Civ. Proc., § 364 [requiring 90-day notice prior to bringing lawsuit]; id., § 667.7 [permitting periodic payment of any judgment against the provider]; id., § 1295 [requiring a certain type of notice for providers' mandatory arbitration provisions]; Bus. & Prof. Code, § 6146 [providing caps on attorney contingency fees]; Civ. Code, § 3333.1 [making admissible evidence of workers' compensation or disability payments]; and id., § 3333.2 [providing a $250,000 cap on noneconomic damages].)” (Delaney, supra, 20 Cal.4th at pp. 28-29, fn. 2.)

Thus, while “[i]t is true that statutory elder abuse includes `neglect as defined in Section 15610.57′ [citation], which in turn includes negligent failure of an elder custodian `to provide medical care for [the elder's] physical and mental health needs’ [citation],” such neglect “covers an area of misconduct distinct from `professional negligence.’ As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the `failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.’ [Citation.] Thus, the statutory definition of `neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Covenant Care, supra, 32 Cal.4th at p. 783.) In other words, while negligently providing health care is not covered by the Elder Abuse Act, doing so recklessly, oppressively, fraudulently or maliciously is.

In his opposition to defendant’s demurrers, plaintiff argued the complaint seeks relief from defendant in defendant’s role as a health care facility, not as a health care provider. Plaintiff argued there is no allegation in the complaint that defendant’s conduct “fell below the standard of care for a medical or healthcare practitioner.” According to plaintiff, “the function of the healthcare provider is distinct from that of an elder custodian, and the fact that some healthcare institutions, such as nursing homes, perform custodial functions and provide professional medical care does not mean that the functions of the two are the same.”

In its order sustaining defendant’s demurrers, the trial court agreed the first cause of action is not couched in terms of professional negligence but nevertheless concluded it does not state a claim for elder abuse. The court explained: “Plaintiff is correct that he pleads neglect, not professional negligence. In other words, `it speaks not of the undertaking of medical services, but of the failure to provide medical care.’ [Citation.] Once again, however, the court agrees with defendant that the allegations regarding defendant’s alleged neglect sounds in negligence, not the higher standard of elder abuse.”

In other words, according to the trial court, the first cause of action alleges no greater culpability than negligence. Furthermore, the negligence alleged is not that of a medical professional providing substandard care but of a care custodian failing to provide any care. As we shall explain, we disagree with both conclusions.

Plaintiff contends the trial court erred in concluding the first cause of action fails to allege the higher level of culpability required for elder abuse. He argues the complaint alleges specific instances of neglect that violate a number of nursing home regulations. It further alleges those acts of neglect were “intentional and/or in reckless disregard for the probability that severe injury and/or suffering would result from their failure to carefully adhere to their duties” and that defendant “knew, or should have known, that there was a probability that disease, injury, or death would result from their failure to adhere to their duties.”

Defendant counters that the individual acts of neglect alleged by plaintiff, such as failure to follow, implement and adhere to physician’s orders, failure to monitor Hilton’s condition and report meaningful changes, and failure to react to emergent conditions, are alleged in conclusory fashion, relate to the undertaking of medical care rather than custodial care, and “simply do not rise to the level of egregious elder abuse.”

As we shall explain in the next section, the parties’ arguments as to whether the complaint’s allegations relate to medical or custodial care are beside the point. Whether the conduct alleged amounts to medical care or custodial care, the question remains whether that conduct rises to the level of culpability required by the Elder Abuse Act.

As for defendant’s argument that the individual acts of neglect are alleged in a conclusory fashion, we disagree. A complaint must state “the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10, subd. (a).) Although the general rule requires statutory causes of action to be pleaded with particularity (Covenant Care, supra, 32 Cal.4th at p. 790), the plaintiff need only set forth the essential facts of the case with reasonable precision and particularity sufficient to acquaint the defendant with the nature of the claim (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). “The particularity required in pleading facts depends on the extent to which the defendant in fairness needs detailed information that can be conveniently provided by the plaintiff; less particularity is required where the defendant may be assumed to have knowledge of the facts equal to that possessed by the plaintiff.” (Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, 879.)

In paragraph 8 of the complaint, plaintiff sets forth various regulatory requirements for health care facilities. In paragraph 9, plaintiff alleges defendant violated those regulations. In particular, plaintiff alleges defendant intentionally failed to:

“a.) Follow, implement and adhere to physician’s orders by failing to give Doris Hilton antibiotics that had been prescribed for the treatment of a kidney infection that Defendants knew she was suffering from, in deliberate indifference to her worsening physical condition and her obvious signs of physical and mental distress and decline.

“b.) Monitor Doris Hilton’s condition and report meaningful changes therein and in particular, or deliberately failed to document her physical condition as required to monitor emergent and/or worsening conditions and in particular a diagnosed kidney infection for which Defendants had stopped providing Doris Hilton prescribed medication and for which the proper record keeping would have provided the information necessary for her evaluation by licensed practitioners and which records were required for her care.

“c.) Note and properly react to emergent conditions and to timely transfer Doris Hilton to an acute care facility or otherwise appropriately act when conditions so warrant it. Defendants, or through deliberate indifference [sic], failed to summon or arrange for proper medical treatment of Doris Hilton’s kidney infection, failed to follow through with and implement her treating doctor’s orders and waited until it was too late to transfer her to a hospital for medical treatment.

“d.) Maintain accurate records of Doris Hilton’s condition and activity as described above.

“e.) Treat Doris Hilton as an individual with respect, without abuse by failing to properly care for her urgent physical and mental conditions by administering prescribed medications despite her obvious suffering and physical and mental decline, by failing to properly safeguard her personal possessions such that Defendants lost Doris Hilton’s dentures that she required for eating and then compounded the problem by failing, with deliberate indifference to their duty to do so, to assist her in eating or provide her with proper nutrition.

“g.) [sic] Properly and accurately administer medication by failing to give her prescribed medication to Doris Hilton as described above.”

It is readily clear from the foregoing that plaintiff does not merely allege “in a conclusory fashion” that defendant breached its various duties, as defendant asserts. Plaintiff does not allege simply that defendant failed to follow, implement and adhere to physician orders. Plaintiff alleges defendant did so “by failing to give Doris Hilton antibiotics that had been prescribed for the treatment of a kidney infection that Defendants knew she was suffering from, in deliberate indifference to her worsening physical condition and her obvious signs of physical and mental distress and decline.” Likewise, plaintiff does not allege simply that defendant failed to note and properly react to emergent conditions and timely transfer Hilton to an acute care facility. He alleges defendant “failed to summon or arrange for proper medical treatment of Doris Hilton’s kidney infection, failed to follow through with and implement her treating doctor’s orders and waited until it was too late to transfer her to a hospital for medical treatment.”

Defendant contends the alleged conduct nevertheless does not rise to the level of elder abuse. In support of this contention, defendant cites a number of cases where the court found the conduct of the health care provider sufficiently grievous to amount to elder abuse. For example, in Delaney, supra, 20 Cal.4th 23, 88-year-old Rose Wallien was admitted to the defendant’s facility after fracturing her ankle and died less than four months later. At the time of her death, Wallien had stage III and stage IV bedsores on her ankles, feet and buttocks, and there was evidence that she was frequently left lying in her own urine and feces for extended periods. The evidence also showed numerous violations of monitoring and recordkeeping regulations. (Id. at p. 27.) The state high court indicated there was substantial evidence to support the jury’s determination that the defendant neglected Wallien and that its conduct was reckless. (Id. at p. 41.)

In Mack v. Soung (2000) 80 Cal.App.4th 966, Girtha Mack resided at Covenant Care Nursing and Rehabilitation Center where she was attended by Dr. Lian Soung. While at Covenant, Mack was left in a bedpan for 13 consecutive hours and developed an untreatable stage III bedsore. Covenant and Dr. Soung concealed the condition until forced by an ombudsman to reveal it. Dr. Soung also opposed hospitalization for Mack until her condition worsened, at which time he abruptly abandoned Mack as a patient. (Id. at p. 969.) Mack’s survivors filed suit against Dr. Soung for elder abuse and intentional infliction of emotional distress. Dr. Soung demurred to the elder abuse claim, and the trial court sustained the demurrer without leave to amend. (Id. at p. 970.)

On appeal to this court, we reversed. Regarding Dr. Soung’s argument that the complaint alleged professional negligence rather than elder abuse, we explained: “We have no trouble concluding that a doctor who conceals the existence of a serious bedsore on a nursing home patient under his care, opposes her hospitalization where circumstances indicate it is medically necessary, and abandons the patient in her dying hour of need commits neglect within the meaning of the [Elder Abuse] Act. Further, if it can be proved by clear and convincing evidence that such acts were committed with recklessness, oppression, fraud, or malice, the heightened remedies of section 15657 will apply.” (Mack v. Soung, supra, 80 Cal.App.4th at p. 973.)

In each of the foregoing cases, the court indicated the issue of whether the conduct rose to the level of elder abuse, i.e., whether the conduct was reckless, oppressive, fraudulent or malicious, was for the trier of fact.

Defendant also relies on Covenant Care, supra, 32 Cal.4th 771. There, the plaintiffs alleged the defendant left their father, Juan Inclan, in his bed, unattended and unassisted, for long periods of time and failed to provide him with assistance in feeding and hydration, thereby causing Inclan to become malnourished and to lose much of his body weight. (Id. at p. 778.) As Inclan deteriorated, he showed signs of starvation, dehydration, neglect and abuse, but the defendant deliberately failed to report his condition to the proper authorities and misrepresented his condition to the plaintiffs. (Ibid.) When Inclan reached a point of needing immediate medical intervention, he was not transferred to an acute care facility but instead was sent to a 24-hour care setting, where he languished and deteriorated further. (Ibid. )

The issue in Covenant Care was not whether the foregoing conduct rose to the level of elder abuse but whether the plaintiffs were restricted by the procedures outlined in Code of Civil Procedure section 425.13 in seeking punitive damages. The court concluded that section does not apply to an elder abuse claim. (Covenant Care, supra, 32 Cal.4th at p. 790.) The case provides no assistance here.

Another case addressing the level of conduct sufficient for a claim of elder abuse is Sababin. Arlene Renteria was diagnosed with Huntington’s chorea, a disease that subjected her to the risk of skin deterioration. (Sababin, supra, 144 Cal.App.4th at pp. 83-84.) She had aphasia and dysphagia and was dependent on others for nutrition and hydration. (Id. at p. 85.) On June 16, 2000, Renteria was transferred to Covina Rehabilitation Center (Covina). Her care plan required Covina employees to monitor her skin daily for redness and breakdown and report any skin problems to a physician for a treatment order. (Id. at p. 85.) In February 2003, Renteria developed diarrhea and, when her condition did not improve, she was transferred to a hospital. When admitted to the hospital, Renteria had lacerations on her toes and feet, had poor skin condition on her buttocks, a pustule on her left hand and reddened skin on her sacral area. Covina had no documentation of these conditions, nor had a physician been notified for a treatment order. (Id. at p. 85.) Renteria died two months later. (Id. at p. 84.)

Renteria’s survivors brought this action against Covina for, among other things, elder abuse. (Sababin, supra, 144 Cal.App.4th at p. 84.) Covina moved for summary adjudication of the elder abuse claim, and the trial court granted the motion. The court concluded the evidence showed nothing more than ordinary negligence. (Id. at p. 87.)

The Court of Appeal reversed. The appellate court indicated the evidence showed Covina’s employees failed to follow Renteria’s care plan by failing to check her skin condition on a daily basis and failing to notify a physician of any problems that arise. (Sababin, supra, 144 Cal.App.4th at p. 90.) This created an issue of fact as to whether the employees’ conduct was neglect within the meaning of section 15610.57. Moreover, the court concluded, “when the evidence and inferences are liberally construed,” “there is a triable issue as to whether Covina’s employees acted with recklessness, oppression or malice.” (Sababin, at p. 90.) According to the court: “A trier of fact could find that when a care facility’s employees ignore a care plan and fail to check the skin condition of a resident with Huntington’s chorea, such conduct shows deliberate disregard of the high degree of probability that she will suffer injury.” (Ibid.)

In the present matter, the complaint alleges defendants failed to follow a physician’s orders by not giving Hilton prescribed antibiotics for a known urinary tract infection (UTI), failed to monitor Hilton’s condition and report meaningful changes to her physician, failed to document Hilton’s condition as necessary for proper evaluation by licensed practitioners, failed to note and properly react to emergent conditions, failed to arrange for proper medical treatment of Hilton’s UTI, and failed to assist Hilton with eating after she lost her dentures. Plaintiff further alleges the foregoing acts were “intentional and/or in reckless disregard for the probability that severe injury and/or suffering would result from their failure to carefully adhere to their duties” and that defendant “knew, or should have known, that there was a probability that disease, injury, or death would result from their failure to adhere to their duties.” Finally, the complaint alleges: “The conduct of defendants was outrageous. Doris Hilton was forced to endure great pain, mental anguish, humiliation, feelings of helplessness and desperation due to their acts and omissions of deliberate indifference. She was neglected and without care or attention, without assistance in feeding or toileting, and was left without medication for a diagnosed urinary infection until she became confused and incoherent. During this time, her cries of pain and for assistance prompted no response from defendants, who had allocated knowingly inadequate resources to provide proper staffing to care for Doris Hilton. Accordingly, defendants were unwilling and/or unable to react to Doris Hilton’s complaints or follow orders for therapeutic action from her attending physician so that her condition worsened until her death . . . .”

When reviewing a judgment dismissing a complaint after a successful demurrer, we assume the complaint’s properly pleaded or implied factual allegations are true, and we give the complaint a reasonable interpretation, reading it in context. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141.) We treat as true not only the complaint’s material factual allegations, but also facts which may be implied or inferred from those expressly alleged. (Id. at p. 141.)

None of the cases cited by the parties involve a situation where the court concluded the alleged conduct was insufficient to amount to elder abuse. Hence, they provide no guidance on the outer reach of the Act. Nevertheless, like the Court of Appeal in Sababin, we find the allegations of the complaint here sufficient to withstand demurrer. Construed liberally, the complaint alleges, among other things, that defendant failed to adhere to a physician’s orders to administer antibiotics for a known UTI and failed to monitor, document and react appropriately to Hilton’s worsening condition. In addition, “her cries of pain and for assistance prompted no response from defendant[], who had allocated knowingly inadequate resources to provide proper staffing.” Although not expressly alleged, it may be inferred from this that Hilton did in fact cry out in pain and for assistance but received no response. We conclude plaintiff should be given an opportunity to try and prove, by clear and convincing evidence, that such conduct amounted to recklessness, oppression, fraud or malice.

Having so concluded, we likewise conclude the trial court erred in sustaining defendant’s demurrer to the third cause of action, the survivor claim. To the extent plaintiff is able to establish a claim for elder abuse, he would be entitled to recover for the pain and suffering endured by Hilton. (See Sababin, supra, 144 Cal.App.4th at p. 88.)

II

The Wrongful Death Claim

The trial court granted defendant’s motion for summary judgment on plaintiff’s wrongful death claim. The court gave two alternate bases for its ruling: (1) the claim is one against a health care provider and plaintiff failed to file his complaint within one year of discovering the injury, as required by Code of Civil Procedure section 340.5; and (2) defendant presented uncontradicted expert testimony that it met the applicable standard of care.

Plaintiff contends the trial court applied an incorrect standard in ruling on defendant’s motion for summary judgment. Plaintiff argues the trial court applied a standard of care applicable to professional negligence claims, whereas his claim is based on “the failure of the defendant to meet the applicable standard of care of a skilled nursing facility.” Plaintiff argues the proper standard of care is that specified in the California regulations for skilled nursing facilities. (Cal. Code of Regs., tit. 22; see Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1244.) Plaintiff “disagrees with the trial court that the failure to order a test that had already been determined should be performed would fall under the guise of a failure of professional judgment rather than custodial neglect.” According to plaintiff, “[t]here is a distinction between deciding on what medical test should be performed and failing to obtain a test when it has already been decided that the test should be performed.”

Although left unsaid, we may surmise the point of plaintiff’s arguments is that the trial court erred in applying the one-year statute of limitations applicable to actions against health care providers for professional negligence. Also left unsaid, plaintiff apparently contends as well that, because this is not a professional negligence claim, the trial court erred in concluding expert testimony is necessary to prove a breach of the applicable duty of care. However, as we shall explain, these contentions are based on an overly restrictive view of what constitutes professional negligence by a health care provider.

Code of Civil Procedure section 340.5 reads: “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. . . .” It is undisputed defendant is a “health care provider” within the meaning of the foregoing. “Professional negligence” is defined as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death . . . .” (Code Civ. Proc., § 340.5, subd. (2).)

“Generally `negligence’ is the failure `”to exercise the care a person of ordinary prudence would exercise under the circumstances.”‘ [Citation.] `Professional negligence’ is one type of negligence, to which general negligence principles apply. `With respect to professionals, their specialized education and training do not serve to impose an increased duty of care but rather are considered additional “circumstances” relevant to an overall assessment of what constitutes “ordinary prudence” in a particular situation. Thus, the standard for professionals is articulated in terms of exercising “the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing . . . .”‘ [Citation.]” (Delaney, supra, 20 Cal.4th at p. 31.)

In Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, the Court of Appeal considered whether injuries sustained by the plaintiff when she fell off a rolling X-ray table that had been left unsecured and unattended amounted to ordinary or professional negligence for purposes of the applicable statute of limitations. The court concluded it was the latter, explaining: “That the alleged negligent omission was simply the failure to set a brake on the rolling X-ray table or the failure to hold the table in place, neither of which requires any particular skill, training, experience or exercise of professional judgment, does not affect our decision. We presume that during the course of administering an examination or therapy like that which Bellamy underwent, an X-ray technician may perform a variety of tasks, such as assisting the patient onto the table, manipulating the table into one or more desired positions, instructing the patient to move from one position to another, activating the X-ray machine, removing the photographic plates, assisting the patient from the table, etc. Some of those tasks may require a high degree of skill and judgment, but others do not. Each, however, is an integral part of the professional service being rendered. Trying to categorize each individual act or omission, all of which may occur within a space of a few minutes, into `ordinary’ or `professional’ would add confusion in determining what legal procedures apply if the patient seeks damages for injuries suffered at some point during the course of the examination or therapy.” (Id. at p. 808.)

In Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388, the defendant was a licensed ambulance service and the plaintiff was a police officer who was injured when the ambulance in which he was accompanying an arrestee hit a curb. The question presented was whether any of the MICRA statutes applied to this situation, which turned on whether the case was one for professional or ordinary negligence. The court found the matter involved professional negligence, explaining: “The MICRA statutes define `”professional negligence”‘ as that negligence that occurs while the health care provider is providing services that are `within the scope of services for which the provider is licensed.’ [Citations.] The relevant test is not the degree of skill required, but whether the negligence occurred in the rendering of services for which a provider is licensed. [Citations.] Although the act of operating an ambulance may be performed by someone having no special knowledge, skill or care as a member of the medical profession, this does not mean the employees here in question were not acting as health care providers in transporting the patient to a medical facility.” (Id. at p. 404.)

In the present matter, while the failure to conduct a test that had previously been ordered by a physician or the failure to administer medication previously prescribed by a physician may or may not require any particular medical skills, these acts are nevertheless integral parts of the health care provided to Hilton by defendant. Those acts cannot be artificially segregated from other discrete acts performed by defendant that required more extensive medical training. We conclude the trial court correctly ruled plaintiff’s wrongful death claim is one for professional negligence and is subject to the one-year statute of limitations in Code of Civil Procedure section 340.5. And because it is undisputed plaintiff failed to bring this action within one year of discovering the injury, the trial court properly concluded defendant is entitled to summary judgment on the wrongful death claim.

Given our resolution of the statute of limitations issue, we are not called upon to decide whether the trial court was correct in deciding the applicable standard of care that applies to this matter.

DISPOSITION

The judgment is reversed. The matter is remanded to the trial court with directions to vacate its orders sustaining defendant’s demurrers to the first and third causes of action of the second amended complaint and granting summary judgment and to enter a new order overruling the demurrers and granting summary adjudication on plaintiff’s wrongful death claim. The parties shall bear their own costs on appeal.

We concur:

NICHOLSON, Acting P. J.

MAURO, J.

By Steven G. Mehta

Two bills have recently been introduced in California that could sharply affect issues relating to elder abuse and the litigation of those claims.  According to a news report from the website California Watch, California lawmakers have introduced two bills affecting issues relating to elder abuse:  one to change the reporting requirements of mandated reporters and the other to change the burden of proof in elder abuse cases.

Assemblywoman Mariko Yamada, D-Davis, recently introduced AB 40, which would require mandated reporters to inform both an ombudsman and local law enforcement when they suspect abuse. Currently, mandated reporters – which include employees at nursing homes and social, health, and law enforcement workers – are only required to report cases to one of the two agencies.

Another bill, SB 558, introduced in February by Sen. Joe Simitian, D-Palo Alto, would change the burden of proof in elder abuse cases, which are often prosecuted as civil cases, not criminal ones. The bill lowers the burden of proof from “clear and convincing evidence” to a “preponderance of evidence.”

Both the state and federal legislature have recently had hearings on the topic of elder abuse.  Most recently, actor Mickey Rooney, testified in Congress of how he was a victim of financial abuse.  These bills and the hearings certainly reflect a growing concern regarding these issues.  To read more about the bills and their proponents, click here

By Steven G. Mehta

 

For those of you interested in nursing home litigation and issues relating to arbitration, the court of appeal just issued a new ruling that supports arbitration clauses and addresses the issue of not allowing arbitration where third parties who may not be subject to arbitration exists.

The court in

LASWELL v. AG SEAL BEACH, LLC, found that although an arbitration agreement was signed by one entity, that its related entities that were being represented by the same counsel could also be deemed to be subject to arbitration; and thus were not third parties for the purposes of exercising the court’s discretion to deny arbitration.

The complete decision is set forth below.

Filed 11/9/10

Defendants AG Seal Beach, LLC, AG Facilities Operations, LLC and Country Villa Service Corporation appeal from the trial court’s order denying their petition to compel arbitration of plaintiff Louise Laswell’s action against them for elder abuse and related claims.  Because we conclude that the trial court erred in denying the petition to compel arbitration, we reverse the order and remand the matter for entry of a new order granting the petition.

FACTUAL AND PROCEDURAL BACKGROUND

1.  The Complaint, Answer and the Trial Court’s Grant of Trial Preference

On June 26, 2009, Laswell, by and through her daughter Susan Lyons, under a power of attorney, filed a complaint alleging that Laswell had received improper care and treatment at the 24-hour health facility in Seal Beach where she resided from October 21, 2008 to December 10, 2008.  Laswell was admitted into the facility at age 92 for post-operative rehabilitative care following hip surgery.  In her complaint, she named as defendants AG Seal Beach, LLC, the licensee and operator of the health facility doing business as Country Villa Seal Beach Healthcare Center; AG Facilities Operations, LLC, the owner of AG Seal Beach, LLC and Country Villa Seal Beach Healthcare Center; and Country Villa Service Corporation, doing business as Country Villa Health Services, the management company of Country Villa Seal Beach Healthcare Center in charge of the day-to-day operation, patient care and maintenance of the health facility (collectively, defendants).

According to the complaint, while Laswell resided at Country Villa Seal Beach Healthcare Center, she was neglected, abandoned and abused, resulting in injuries to her body, severe anemia, an infection in the coccyx area, right lower lobe pneumonia and malnutrition.  Laswell alleged causes of action against all defendants for elder abuse under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.); negligence; willful misconduct; and violation of Penal Code section 368, and an additional cause of action against AG Seal Beach, LLC, as the licensee of the health facility, for violation of Health and Safety Code section 1430, subdivision (b).[1] Laswell sought compensatory and punitive damages, statutory remedies, attorney fees and costs.

On August 13, 2009, defendants filed the operative amended answer to Laswell’s complaint, asserting numerous affirmative defenses, including that the matter is subject to binding arbitration.

Soon thereafter, on September 10, 2009, Laswell filed a motion for trial preference under Code of Civil Procedure section 36, subdivisions (a) and (d), on grounds that she was 93 years old and had been certified twice by a physician for hospice care as terminally ill with a life expectancy of less than six months and, as a result, that trial preference was necessary to preserve her interests and prevent prejudice in the matter.  After a case management conference, the trial court granted the motion, noting that Laswell was 93 years old and terminally ill, and set a trial date of February 1, 2010.

2.  The Petition to Compel Arbitration and the Trial Court’s Denial of the Petition

On or about November 19, 2009, defendants moved to compel arbitration, asserting that a valid arbitration agreement provided for arbitration of “any and all disputes or claims . . . arising out of the provision of services by the [f]acility,” defined as Country Villa Seal Beach Healthcare Center, or that “allege violations of the Elder Abuse and Dependent Adult Civil Protection Act.”  According to defendants, the arbitration agreement complied with all of the requirements specified in Health and Safety Code section 1599.81 for arbitration clauses in contracts of admission to health facilities,[2] Laswell had signed the agreement consenting to arbitration, and the agreement had never been revoked.  Defendants thus asserted the matter was required to proceed in arbitration, but Laswell refused to arbitrate the dispute.

Laswell opposed the petition, arguing, as relevant to this appeal, that (1) the arbitration agreement was invalid and unenforceable because Laswell lacked the capacity to execute it; (2) the presence of third-party defendants not subject to arbitration and the possibility of conflicting rulings on common issues of law and fact rendered arbitration inappropriate; and (3) the causes of action for elder abuse and violation of Health and Safety Code section 1430, subdivision (b), are not arbitrable.

In reply, defendants conceded that, as specified in Health and Safety Code section 1599.81, subdivision (d), the cause of action for violation of Health and Safety Code section 1430, subdivision (b), was not subject to arbitration, but argued it was a small component of Laswell’s case, could be litigated in court to determine any statutory remedies and attorney fees after arbitration and should not operate as a pleading tactic to defeat a valid arbitration agreement and undermine the public policy in favor of arbitration.  Defendants also asserted that Laswell had not demonstrated mental incapacity and that all defendants were related Country Villa entities, represented by the same counsel, and would consent to arbitration.

Although the trial court concluded that defendants had made a “prima facie case for arbitration,” it denied the petition to compel arbitration.  Viewing whether to compel arbitration as a discretionary question, the court decided that it would not “make[] sense to send the matter to arbitration” because (1) there were parties who would not participate in the arbitration given that they were not part of the agreement; (2) there were some causes of action not subject to arbitration; (3) the trial date was set for less than two months away and the case would proceed just as expeditiously in court as in arbitration; (4) Laswell was 93 years old and there need not be two proceedings under the circumstances; and (5) the question of arbitration should have been raised more promptly, such as when Laswell had moved for trial preference, although that failure was not necessarily a waiver of the right to arbitrate.

Defendants timely appealed.  (Code Civ. Proc., § 1294, subd. (a) [order denying petition to compel arbitration is appealable].)

DISCUSSION

1.  California Has a Strong Public Policy Favoring Contractual Arbitration and Thus Requiring Enforcement of Valid Arbitration Agreements

A trial court is required to order a dispute to arbitration when the party seeking to compel arbitration proves the existence of a valid arbitration agreement covering the dispute.  (Garrison v. Superior Court (2005) 132 Cal.App.4th 253, 263.)  Under Code of Civil Procedure section 1281.2, “[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that” the case falls into one of three limited exceptions.  (Italics added.)  Similarly, Code of Civil Procedure section 1281 provides, “[a] written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.”  These “‘statutes evidence a strong public policy in favor of arbitration[], which policy has frequently been approved and enforced by the courts.’”  (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706; Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1282 [“A strong public policy favors the arbitration of disputes, and doubts should be resolved in favor of deferring to arbitration proceedings”].)

One of the limited exceptions to the enforcement of contractual arbitration provisions is where “[a] party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.”  (Code Civ. Proc., § 1281.2, subd. (c).)  This exception “‘addresses the peculiar situation that arises when a controversy also affects claims by or against other parties not bound by the arbitration agreement.’”  (Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 393.)  The exception thus does not apply when all defendants, including a nonsignatory to the arbitration agreement, have the right to enforce the arbitration provision against a signatory plaintiff.  (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 709; RN Solution, Inc. v. Catholic Healthcare West (2008) 165 Cal.App.4th 1511, 1519; Rowe v. Exline, supra, 153 Cal.App.4th at p. 1290.)  The exception “‘is not a provision designed to limit the rights of parties who choose to arbitrate or otherwise to discourage the use of arbitration.  Rather, it is part of California’s statutory scheme designed to enforce the parties’ arbitration agreements . . . .’”  (Cronus Investments, Inc. v. Concierge Services, supra, 35 Cal.4th at p. 393.)

If the prerequisites of the exception exist in a particular case, i.e., there are third parties not subject to arbitration on claims arising out of the same transaction or related transactions, and a possibility of conflicting rulings on common issues of law or fact, then the trial court has discretion to deny or stay arbitration.  (Code Civ. Proc., § 1281.2, subd. (c).)  “‘The court’s discretion under [the exception, however,] does not come in to play until it is ascertained that the subdivision applies, which requires the threshold determination of whether there are nonarbitrable claims against at least one of the parties to the litigation (e.g. a nonsignatory).’”  (Molecular Analytical Systems v. Ciphergen Biosystems, Inc., supra, 186 Cal.App.4th at p. 709.)

In general, “[t]here is no uniform standard of review for evaluating an order denying a motion to compel arbitration.  [Citation.]  If the court’s order is based on a decision of fact, then we adopt a substantial evidence standard.  [Citations.]  Alternatively, if the court’s denial rests solely on a decision of law, then a de novo standard of review is employed.  [Citations.]”  (Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.)  Specifically, whether a defendant is in fact a third party for purposes of Code of Civil Procedure section 1281.2, subdivision (c), is a matter of law subject to de novo review.  (Rowe v. Exline, supra, 153 Cal.App.4th at p. 1283; RN Solution, Inc. v. Catholic Healthcare West, supra, 165 Cal.App.4th at p. 1519.)  If the third-party exception applies, the trial court’s discretionary decision as to whether to stay or deny arbitration is subject to review for abuse.  (Molecular Analytical Systems v. Ciphergen Biosystems, Inc., supra, 186 Cal.App.4th at p. 708; see also Valencia v. Smyth (2010) 185 Cal.App.4th 153, 180.)

2.  Code of Civil Procedure Section 1281.2, Subdivision (c)’s Exception to Enforcement of Arbitration Agreements Does Not Apply Here and Thus the Trial Court Did Not Have Discretion to Deny the Petition to Compel Arbitration

Although concluding that defendants had set forth a “prima facie case for arbitration,” the trial court exercised discretion to deny arbitration, initially concluding that there were defendants who would not participate in the arbitration because they were not parties to the agreement.  The trial court thus at least implicitly concluded that the threshold requirement for application of Code of Civil Procedure section 1281.2, subdivision (c), that there were third parties not subject to the arbitration agreement was met and, as a result, it had discretion to deny arbitration.  But the trial court’s conclusion that Code of Civil Procedure section 1281.2, subdivision (c), applies was erroneous and, therefore, it had no discretion to deny arbitration.

As noted, the arbitration agreement provided for arbitration of “any and all disputes or claims . . . arising out of the provision of services by the [f]acility,” defined as Country Villa Seal Beach Healthcare Center, or that “allege violations of the Elder Abuse and Dependent Adult Civil Protection Act” and was signed by a representative of the facility.  The trial court seemingly adopted Laswell’s argument that the agreement covered only AG Seal Beach, LLC, doing business as Country Villa Seal Beach Healthcare Center—the facility where Laswell had resided—and the presence of AG Facilities Operations, LLC and Country Villa Service Corporation as defendants in the action demonstrated that there were third parties not subject to the arbitration agreement and thus invoked Code of Civil Procedure section 1281.2, subdivision (c).  This argument, however, is faulty because AG Facilities Operations, LLC and Country Villa Service Corporation are not third parties for purposes of Code of Civil Procedure section 1281.2, subdivision (c), and thus the third-party exception does not apply.

“The term ‘third party’ for purposes of [Code of Civil Procedure] section 1281.2[] must be construed to mean a party that is not bound by the arbitration agreement.”  (RN Solution, Inc. v. Catholic Healthcare West, supra, 165 Cal.App.4th at p. 1519.)  “[I]n many cases, nonparties to arbitration agreements are allowed to enforce those agreements where there is sufficient identity of parties.”  (Valley Casework, Inc. v. Comfort Construction, Inc. (1999) 76 Cal.App.4th 1013, 1021.)  In addition, “‘“[t]he equitable estoppel doctrine applies when a party has signed an agreement to arbitrate but attempts to avoid arbitration by suing nonsignatory defendants for claims that are ‘“based on the same facts and are inherently inseparable”’ from arbitrable claims against signatory defendants.”’”  (Rowe v. Exline, supra, 153 Cal.App.4th at p. 1287.)

Although the arbitration agreement defined “facility” as Country Villa Seal Beach Healthcare Center and the agreement was signed by a representative of the “facility,” AG Facilities Operations, LLC and Country Villa Service Corporation equally are bound by the agreement and thus entitled to enforce it against Laswell.  According to Laswell’s own allegations, all of the defendants are related Country Villa entities.  AG Seal Beach, LLC, the licensee and operator of the facility doing business as Country Villa Seal Beach Healthcare Center, entered into a management agreement with Country Villa Service Corporation, doing business as Country Villa Health Services, to operate the facility.  The arbitration agreement in fact was written on letterhead of Country Villa Health Services.  AG Facilities Operations, LLC is the owner of AG Seal Beach, LLC and the facility Country Villa Seal Beach Healthcare Center.  And defense counsel stated in connection with the petition to compel arbitration that all defendants were represented by the same counsel and would participate in the arbitration proceedings.  Further, the substance of Laswell’s allegations is that all of the defendants are responsible for the improper care that she received while she resided at Country Villa Seal Beach Healthcare Center, demonstrating her claims against all defendants are based on the same facts and theory and are inherently inseparable.  Under these circumstances, AG Facilities Operations, LLC and Country Villa Service Corporation can enforce the arbitration agreement against Laswell and thus are not third parties within the meaning of Code of Civil Procedure section 1281.2, subdivision (c).  (RN Solution, Inc. v. Catholic Healthcare West, supra, 165 Cal.App.4th at p. 1520 [individual defendant who signed agreement as agent-employee of corporate defendant and was a third-party beneficiary of agreement was bound by arbitration provision and thus was not a third party for purposes of Code Civ. Proc., § 1281.2, subd. (c)]; Rowe v. Exline, supra, 153 Cal.App.4th at pp. 1284–1290 [individual defendants, although nonsignatories to the arbitration agreement, could enforce its provisions against the plaintiff because he alleged in the breach of contract cause of action that the corporation signatory was an alter ego of the individuals and equitable estoppel principles applied to the other statutory causes of action].)

Because no defendant in this case is a third party to the arbitration agreement, the discretion afforded by Code of Civil Procedure section 1281.2, subdivision (c), does not come into play and thus the trial court erred as a matter of law in denying defendants’ petition to compel arbitration.  (Rowe v. Exline, supra, 153 Cal.App.4th at p. 1290 [when nonsignatories may enforce arbitration agreement, they are not third parties within the meaning of Code Civ. Proc., § 1281.2, subd. (c), and thus the provision does not apply]; RN Solution, Inc. v. Catholic Healthcare West, supra, 65 Cal.App.4th at p. 1521[“Since all of the parties involved in the lawsuit are bound by the arbitration agreement, the fundamental precondition for the application of [Code of Civil Procedure] section 1281.2[, subdivision] (c)—a pending court action or special proceeding between a party to the arbitration agreement and a third party—is absent”]; see also Molecular Analytical Systems v. Ciphergen Biosystems, Inc., supra, 186 Cal.App.4th at pp. 706, 709, 717.)

Laswell’s reliance on Birl v. Heritage Care LLC (2009) 172 Cal.App.4th 1313 for support that Code of Civil Procedure section 1281.2, subdivision (c), applies here is unpersuasive.  In that case, the family of a deceased patient brought an action for elder abuse and related claims against several nursing facilities, a hospital and its affiliated physicians.  (Id. at pp. 1315–1317.)  One of the nursing facilities sought to enforce an arbitration agreement as to certain causes of action, while recognizing the hospital, its affiliated physicians and the two other nursing facilities were unrelated third parties not subject to the arbitration agreement.  (Id. at pp. 1317–1318.)  The appellate court affirmed the trial court’s discretionary denial of arbitration under Code of Civil Procedure section 1281.2, subdivision (c), concluding that the presence of the third-party hospital and nursing facilities invoked the provision and its other requirements were met because conflicting rulings could result against the different groups of defendants on issues such as apportionment of damages among the parties and other nondefendant health care providers based on their own separate care of the deceased patient.  (Id. at pp. 1319–1321.)  Birl v. Heritage Care LLC, therefore, involved actual third-party defendants not subject to the arbitration agreement, all of which admittedly were unrelated to the nursing facility seeking to compel arbitration.  Here, in contrast, all of the defendants are related entities, and Laswell alleges that each is responsible for her improper care at Country Villa Seal Beach Healthcare Center.

Laswell’s reliance on the presence of her nonarbitrable cause of action against AG Seal Beach, LLC, as the licensee of Country Villa Seal Beach Healthcare Center, under Health and Safety Code section 1430, subdivision (b), to avoid arbitration is equally unpersuasive.  A trial court does not have discretion to deny arbitration under Code of Civil Procedure section 1281.2, subdivision (c), absent the presence of a third party, and a plaintiff’s inclusion of a nonarbitrable cause of action in the complaint is not grounds to deny arbitration under the third-party exception.  In other words, the presence of a nonarbitrable cause of action is not sufficient by itself to invoke the trial court’s discretion to deny arbitration under Code of Civil Procedure section 1281.2, subdivision (c):  “The mere fact that some claims are arbitrable and some are not is surely not the ‘peculiar situation’ meant to be addressed by [Code of Civil Procedure section 1281.2[, subdivision] (c)[,] according to our Supreme Court.”  (RN Solution, Inc. v. Catholic Healthcare West, supra, 165 Cal.App.4th at p. 1521.)  As a result, Laswell’s nonarbitrable cause of action under Health and Safety Code section 1430, subdivision (b), which seeks statutory remedies and attorney fees based on the same alleged improper care addressed in her arbitrable causes of action, can be litigated in court after completion of the arbitration.[3]

Finally, Laswell’s advanced age and the trial court’s decision to grant her trial preference have no relevance to whether Code of Civil Procedure section 1281.2, subdivision (c), applies and, given it does not, whether to grant the petition to compel arbitration.  Nonetheless, Laswell’s advanced age should be considered by the trial court, the parties and the arbitrator in scheduling proceedings on remand.[4]

DISPOSITION

The order denying the petition to compel arbitration is reversed and the matter is remanded with directions for the trial court to enter a new order granting the petition to compel arbitration of all causes of action except that against AG Seal Beach, LLC for violation of Health and Safety Code section 1430, subdivision (b).  Defendants shall recover their costs on appeal.

CERTIFIED FOR PUBLICATION.

ROTHSCHILD, J.

We concur:

MALLANO, P. J.

JOHNSON, J.

 


[1] Health and Safety Code section 1430, subdivision (b), allows “[a] current or former resident or patient of a skilled nursing facility . . . or an intermediate care facility . . . [to] bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patient’s Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.”  Under the statute, “[t]he licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, and may be enjoined from permitting the violation to continue.”  The statute provides that a cause of action thereunder is nonarbitrable.

 

[2] Health and Safety Code section 1599.81 requires that “(a) All contracts of admission that contain an arbitration clause shall clearly indicate that agreement to arbitration is not a precondition for medical treatment or for admission to the facility.  [¶]  (b) All arbitration clauses shall be included on a form separate from the rest of the admission contract.  This attachment shall contain space for the signature of any applicant who agrees to arbitration of disputes.  [¶]  (c) On the attachments, clauses referring to arbitration of medical malpractice claims, as provided for under Section 1295 of the Code of Civil Procedure, shall be clearly separated from other arbitration clauses, and separate signatures shall be required for each clause.  [¶]  (d) In the event the contract contains an arbitration clause, the contract attachment pertaining to arbitration shall contain notice that under Section 1430, the patient may not waive his or her ability to sue for violation of the Patient’s Bill of Rights.”  The parties do not dispute that the arbitration agreement signed by Laswell complied with these statutory requirements.

[3] Because, as noted, the presence of a nonarbitrable cause of action does not trigger Code of Civil Procedure section 1281.2, subdivision (c), Laswell’s additional contention that her elder abuse cause of action is nonarbitrable does not change our conclusion that the trial court lacked discretion to deny arbitration.  Because we direct the trial court to grant the petition to compel arbitration, we note that the elder abuse cause of action may appropriately be resolved in arbitration.  (Hogan v. Country Villa Health Services (2007) 148 Cal.App.4th 259, 263–269 [reversing order denying petition to compel arbitration because daughter had authority to bind mother to arbitration agreement for purposes of an elder abuse cause of action]; Garrison v. Superior Court, supra, 132 Cal.App.4th at pp. 257, 263–267 [daughter’s execution of arbitration agreement required arbitration of damages causes of action, including one for elder abuse].  Indeed, judicial authority on the Elder Abuse and Dependent Adult Civil Protection Act does not “give any indication that the policies favoring enforcement of arbitration agreements [citation] conflict with the policies aimed at ‘protect[ing] a particularly vulnerable portion of the population from gross mistreatment in the form of [elder] abuse and custodial neglect.’”  (Hogan, at p. 269.)  We do not agree with Laswell that Fitzhugh v. Granada Healthcare & Rehabilitation Center LLC (2007) 150 Cal.App.4th 469 stands for the proposition that an elder abuse cause of action is nonarbitrable per se, as the appellate court’s analysis in that case focused on the presence of third-party plaintiffs, who were not subject to the arbitration agreement, and their individual cause of action for wrongful death, as well as noting that the successor claim for violation of Health and Safety Code section 1430, subdivision (b), was nonarbitrable.  (Id. at pp. 473–475.)

 

[4] As noted, Code of Civil Procedure section 1281.2 contains three limited exceptions to the mandatory enforcement of valid arbitration agreements.  On appeal, Laswell primarily defends the trial court’s ruling under subdivision (c) of the statute, which we conclude does not apply here.  She also asserts in one paragraph of her respondent’s brief that the arbitration agreement is not valid because she lacked the capacity to enter into any agreement, presumably suggesting the exception in subdivision (b)—that “[g]rounds exist for revocation of the agreement”—applies.  That assertion lacks merit.  By concluding that defendants made a “prima facie case for arbitration,” the trial court necessarily found that Laswell had the capacity to enter the arbitration agreement.  Substantial evidence—based on medical reports, after she fell and broke her hip, indicating that Laswell was alert and oriented as to person, place and time, lives alone and recounted her daily routine and family illness history—supports the trial court’s finding, and we, therefore, cannot disturb it on appeal.  (Robertson v. Health Net of California, Inc., supra, 132 Cal.App.4th at p. 1425.)  Although in the trial court Laswell also argued the exception in subdivision (a) applies because defendants waived their right to compel arbitration, the trial court did not find a waiver, and on appeal Laswell does not rely on the waiver exception to defend the trial court’s denial of the petition to compel arbitration.

 

By Steven G. Mehta

The long awaited results of a trial San Luis Obispo recently came down.  The trial that took approximately three months to conduct finally resolved.  The verdict was reported by Nick Wilson of the San Luis Obispo Tribune.

Mr. Wilson wrote:

The family of a 96-year-old woman who developed a bedsore on her lower back was awarded $161,264 on Tuesday in a lawsuit filed against her caregivers, but two local doctors also named in the suit were found not responsible for any wrongdoing.

There were also allegations of elder abuse against the nursing home which the jury found to be unfounded.  According to Mr. Wilson’s interview with one of the jurors, the jury foreperson Cynthia Jenkins of San Luis Obispo said it was difficult for the jury to come to its decision after two days of deliberations. She said she felt concern for each of the parties involved in the suit.

“We didn’t think anyone was intentionally malicious,” Jenkins said. “We did think there was some carelessness [regarding the Nursing home]. But it was a tough spot for everyone.”

To read the rest of Mr. Wilson’s article, click on my elder abuse verdicts page here.

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