Gullett v. Kindred Nursing Ctrs. W., L.L.C.

• Decision Date: 15 February 2017
• Docket Number: No. 2 CA–CV 2016–0049,2 CA–CV 2016–0049
• Citation: Gullett v. Kindred Nursing Ctrs. W., L.L.C., 390 P.3d 378 (Ariz. App. 2017)
• Parties: Jeffrey GULLETT, Special Administrator of the Estate of Winford Gullett, ON BEHALF OF the ESTATE OF Winford GULLETT, and Jeffrey Gullett, Special Administrator, for and on behalf of Winford Gullett's statutory beneficiaries pursuant to A.R.S. § 12–612(a), Plaintiff/Appellant, v. KINDRED NURSING CENTERS WEST, L.L.C., a Delaware limited liability company, dba Hacienda Rehabilitation and Care Center nka Kindred Nursing and Rehabilitation–Hacienda; Kindred Healthcare Operating, Inc., a Delaware corporation; Kindred Healthcare, Inc., a Delaware corporation; and Theresa Linnane, Administrator, Defendants/Appellees.
• Court: Arizona Court of Appeals

390 P.3d 378

Jeffrey GULLETT, Special Administrator of the Estate of Winford Gullett, ON BEHALF OF the ESTATE OF Winford GULLETT, and Jeffrey Gullett, Special Administrator, for and on behalf of Winford Gullett's statutory beneficiaries pursuant to A.R.S. § 12–612(a), Plaintiff/Appellant,

v.KINDRED NURSING CENTERS WEST, L.L.C., a Delaware limited liability company, dba Hacienda Rehabilitation and Care Center nka Kindred Nursing and Rehabilitation–Hacienda; Kindred Healthcare Operating, Inc., a Delaware corporation; Kindred Healthcare, Inc., a Delaware corporation; and Theresa Linnane, Administrator, Defendants/Appellees.

No. 2 CA–CV 2016–0049

Court of Appeals of Arizona, Division 2.

Filed February 15, 2017

Law Office of Scott E. Boehm, P.C., Phoenix, By Scott E. Boehm and Wilkes & McHugh, P.A., Scottsdale, By Melanie L. Bossie, Mary Ellen Spiece, and Ernest J. Calderon II, Counsel for Plaintiff/Appellant

Quintairos, Prieto, Wood & Boyer, P.A., Phoenix, By Anthony J. Fernandez, Vincent J. Montell, and Rita J. Bustos, Counsel for Defendants/Appellees

Judge Staringauthored the opinion of the Court, in which Presiding Judge Howard and Judge Espinosa concurred.

OPINION

STARING, Judge:

¶ 1Jeffrey Gullett appeals the judgment compelling arbitration of his statutory claim for abuse and neglect of his late fatherWinford Gullett pursuant to Arizona's Adult Protective Services Act (APSA), A.R.S. §§ 46–451 to 46–459.He argues the arbitration agreement is substantively unconscionable and, alternatively, the trial court erred in failing to allow discovery and grant an evidentiary hearing on his claims of procedural unconscionability.For the reasons that follow, we affirm in part, vacate in part and remand for further proceedings.¹

Factual and Procedural Background

¶ 2 In January 2013, Winford Gullett was admitted to Hacienda Care and Rehabilitation Center ("Hacienda").On January 16, he signed an Alternative Dispute Resolution Agreement ("Agreement") that provides all claims arising out of any stay at Hacienda shall be submitted to arbitration.Winford remained at Hacienda until his death on February 21, 2013.

¶ 3 In February 2015, Jeffrey Gullett brought suit against appelleeKindred Nursing Centers West, L.L.C., doing business as Hacienda ("Kindred"), alleging it had abused and neglected Winford in violation of APSA, resulting in his death.²Kindred subsequently moved to compel arbitration pursuant to the Agreement.Gullett opposed the motion, claiming the Agreement was substantively unconscionable and discovery was required on the issue of procedural unconscionability.

¶ 4 Following a hearing in October 2015, the trial court granted Kindred's motion to compel arbitration and denied Gullett's request for an evidentiary hearing on the issue of procedural unconscionability.This appeal followed.We have jurisdiction pursuant to A.R.S. § 12–2101(A)(1).SeeS. Cal. Edison Co. v. Peabody W. Coal Co. , 194 Ariz. 47, ¶¶ 16–20, 977 P.2d 769, 774–75(1999)(order compelling arbitration appealable if certified pursuant to Rule 54(b), Ariz. R. Civ. P.).

Discussion

¶ 5 Gullett argues the Agreement is substantively unconscionable because it "severely limits discovery," requires that arbitration be administered by an administrator who "lacks neutrality," requires the forfeiture of non-waivable remedies, and does not impose mutual obligations on the parties.³He further argues the court erred by denying his request for an evidentiary hearing because he is entitled to conduct discovery to develop his claim of procedural unconscionability.

¶ 6"The validity and enforceability of a contract and arbitration clause are mixed questions of fact and law, subject to de novo review."Estate of DeCamacho ex rel. Guthrie v. La Solana Care & Rehab, Inc. , 234 Ariz. 18, ¶ 9, 316 P.3d 607, 609(App.2014).Pursuant to A.R.S. § 12–3006(A), "[a]n agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable and irrevocable except on a ground that exists at law or in equity for the revocation of the contract."Accordingly, "[a]n arbitration agreement ... is subject to the same defenses to enforceability as any other contract."Dueñas v. Life Care Ctrs. of Am., Inc. , 236 Ariz. 130, ¶ 6, 336 P.3d 763, 768(App.2014).Claims of substantive or procedural unconscionability are independent defenses to enforceability.Id.¶ 7.

Substantive Unconscionability

¶ 7"Substantive unconscionability concerns the actual terms of the contract and examines the relative fairness of the obligations assumed."Maxwell v. Fid. Fin. Servs., Inc. , 184 Ariz. 82, 89, 907 P.2d 51, 58(1995).In determining whether a contract is substantively unconscionable, we look to see whether the "contract terms [are] so one-sided as to oppress or unfairly surprise an innocent party," whether there is "an overall imbalance in the obligations and rights imposed" by the contract, or whether there is a "significant cost-price disparity."Id."The rules of contract interpretation apply equally in the context of arbitration clauses."Estate of DeCamacho , 234 Ariz. 18, ¶ 15, 316 P.3d at 611;see alsoCity of Cottonwood v. James L. Fann Contracting, Inc. , 179 Ariz. 185, 189, 877 P.2d 284, 288(App.1994)("Because of the public policy favoring arbitration, arbitration clauses are construed liberally and any doubts about whether a matter is subject to arbitration are resolved in favor of arbitration.").

Discovery

¶ 8 Gullett first argues the Agreement is substantively unconscionable "because it so limits discovery (and therefore witnesses) that [he would] be unable to prepare and present his APSA claims.""[A]rbitration is appropriate only ‘[s]o long as the prospective litigant effectively may vindicate’ his or her rights in the arbitral forum."Harrington v. Pulte Home Corp. , 211 Ariz. 241, ¶ 42, 119 P.3d 1044, 1055(App.2005), quotingGilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20, 28, 111 S.Ct. 1647, 114 L.Ed.2d 26(1991)(alteration inHarrington ).But, "by agreeing to arbitrate, a party‘trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.’ "Gilmer , 500 U.S. at 31, 111 S.Ct. 1647, quotingMitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc. , 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444(1985).And, as our courts have consistently explained, "the primary purpose of arbitration is to provide an inexpensive and speedy final disposition of disputes, as an alternative to litigation."Harrington , 211 Ariz. 241, ¶ 42, 119 P.3d at 1055.

¶ 9 Prospective litigants "are at least entitled to discovery sufficient to adequately arbitrate their statutory claim,"Armendariz v. Found. Health Psychcare Servs., Inc. , 24 Cal.4th 83, 99 Cal.Rptr.2d 745, 6 P.3d 669, 684(2000), criticized on other grounds byAT & T Mobility LLC v. Concepcion , 563 U.S. 333, 340, 352, 131 S.Ct. 1740, 179 L.Ed.2d 742(2011), as part of being able to effectively vindicate their rights, seeGilmer , 500 U.S. at 28, 111 S.Ct. 1647." ‘[A]dequate’ discovery does not mean unfettered discovery," however.Fitz v. NCR Corp. , 118 Cal.App.4th 702, 13 Cal.Rptr.3d 88, 97(2004), quotingMercuro v. Superior Court , 96 Cal.App.4th 167, 116 Cal.Rptr.2d 671, 683(2002).Further, parties may agree to something less than the amount of discovery provided by the rules of civil procedure.Seeid.

¶ 10 The Agreement provides:

Discovery may be initiated immediately after the Request is filed.The parties shall have the right to engage in discovery consistent with the Arizona Rules of Civil Procedure, subject to any restrictions contained in the applicable statutes, rules, and regulations ..., and also subject to Rule 3.02 of the [Kindred Healthcare Alternative Dispute Resolution Rules of Procedure ("Kindred's Procedure") ].

Kindred's Procedure limits discovery to the following:

Permissible discovery shall include: a) 30 interrogatories inclusive of subparts; b) 30 requests for production of documents inclusive of subparts; c) 10 requests for admissions inclusive of subparts; d) depositions of not more than six (6) fact witnesses, and e) depositions of not more than two (2) expert witnesses.

Where warranted, by agreement or by request to the presiding neutral, the parties may conduct such additional reasonable discovery as may be necessary or proper.

Gullett argues APSA claims typically require the testimony of "dozens of nursing home employees and experts from many professional fields" and usually involve "hundreds" of documents.Accordingly, he claims the limitations placed on him by Kindred's Procedure force him to " ‘proceed blindly’ or forego the claims altogether, which (of course) is the nursing home's desired result."

¶ 11 In determining whether discovery limitations interfere with a litigant's ability to vindicate their claims, courts have considered the initial amount of discovery permitted as of right in conjunction with the burden imposed on the litigant in obtaining additional discovery.SeeOntiveros v. DHL Express (USA), Inc. , 164 Cal.App.4th 494, 79 Cal.Rptr.3d 471, 487(2008), abrogated on other grounds as recognized byTiri v. Lucky Chances, Inc. , 226 Cal.App.4th 231, 171 Cal.Rptr.3d 621, 635–36(2014).Discovery provisions may be substantively unconscionable when the amount of permitted discovery is so low and the burden to obtain additional discovery so high that the litigant is effectively unable to vindicate their claim.Seeid.("We conclude that ... the permitted amount of discovery is so low while the burden for showing a need for more discovery is so high that plaintiff's ability to prove her claims would be unlawfully thwarted by the discovery provision in the agreement.");Fitz , 13 Cal.Rptr.3d at 97–100.

¶ 12 Kindred's Procedure permits relatively expansive discovery.Litigants are allowed thirty interrogatories, only ten less than the...