Rodriguez v. Superior Court

• Decision Date: 25 August 2009
• Docket Number: No. B212603.,B212603.
• Citation: 98 Cal. Rptr. 3d 728,176 Cal.App.4th 1461
• Court: California Court of Appeals Court of Appeals
• Parties: RION ALICIA NEWTON RODRIGUEZ, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, SANDY WITZLING et al., Real Parties in Interest.

176 Cal.App.4th 1461

98 Cal. Rptr. 3d 728

RION ALICIA NEWTON RODRIGUEZ, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, SANDY WITZLING et al., Real Parties in Interest.

No. B212603.

Court of Appeals of California, Second District, Division Seven.

August 25, 2009.

Rich Pfeiffer, Anton C. Gerschler and Dena M. Acosta for Petitioner.

No appearance for Respondent.

Prindle, Decker & Amaro, Jack R. Reinholtz, Douglas S. de Heras and Michael D. Valentine for Real Parties in Interest.

OPINION

JACKSON, J.

INTRODUCTION

Petitioner Rion Alicia Newton Rodriguez (Rodriguez) seeks writ relief from an order of the Superior Court of Los Angeles County granting the petition to arbitrate brought by real parties in interest Sandy Witzling, M.D., individually, and Sandy Witzling, M.D., Inc. (collectively Witzling), and staying the action as to them. We grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Rodriguez is a minor born in August 1998 to her mother, Lee M. Newton (Newton). On October 17, 2006, four days prior to Newton's routine gallbladder surgery, she executed a physician-patient arbitration agreement (Arbitration Agreement) offered to her by real party in interest Sandy Witzling, M.D., in accordance with his custom and practice for all new patients.

The Arbitration Agreement included text as described in Code of Civil Procedure section 1295,¹ subdivisions (a), (b) and (c), applicable to agreements to arbitrate medical malpractice claims. The following provision appeared just above the signature line, in bold red type: "NOTICE: BY SIGNING THIS CONTRACT YOU ARE 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. SEE ARTICLE 1 OF THIS CONTRACT." Article 1 stated that "any dispute as to medical malpractice . . . will be determined by submission to arbitration as provided by California law . . . . Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury . . . ." Article 2 of the Arbitration Agreement specified that it was the parties' intention that the agreement was binding on "all parties," including the patient's children, whose claims may arise out of or relate to the medical services to be provided. In article 5, the Arbitration Agreement provided that it could be "revoked by written notice delivered to the physician within 30 days of signature and if not revoked [the agreement would] govern all medical services received by the patient."²

On October 21, 2006, Newton died during the recovery period, allegedly from a nick in her liver that Dr. Witzling made during the surgery. Rodriguez is the sole heir to Newton's estate. Guardians ad litem were appointed for her in January 2007. By and through her guardians ad litem, in January 2008, she filed a complaint alleging, inter alia, "Medical Malpractice—Wrongful Death" against Witzling and others.³ In July, Witzling filed a petition requesting an order that the controversy be decided by arbitration. Rodriguez opposed the petition based, in part, on her assertion that to permit a physician whose malpractice was the alleged cause of the patient's death to enforce an arbitration agreement for which the statutory "cooling off" period had not expired as of the time of the death would be inconsistent with the policy underlying section 1295 and against public policy requiring that waivers of the constitutional right to a jury trial be voluntary, knowing and intelligent. In reply, Witzling claimed that Rodriguez's guardian had legal standing to revoke the Arbitration Agreement and by failing to do so, the guardian waived the issue.

At the hearing on the motion on October 23, 2008, the trial court granted Witzling's petition and ordered a stay in proceedings as to Witzling only until arbitration was completed.⁴ The court issued its written order on October 28, pursuant to which the court also retained jurisdiction to enforce the Arbitration Agreement and confirm the arbitration award.

PETITION

Rodriguez asserts that, unless her petition is granted, she will be deprived of her constitutional right to a jury trial for the wrongful death of her mother. Rodriguez contends that the trial court's finding that she was bound by the Arbitration Agreement was erroneous because:

(1) The Arbitration Agreement was insufficient to deny her a jury trial, in that it failed to include a procedure for rescission if the patient died within the rescission period;

(2) Rodriguez has a constitutional right to a jury trial that was not knowingly, intelligently or voluntarily waived;

(3) Public policy cannot permit Witzling to benefit by limiting public access to his professional record as arbitration would permit, but a jury trial would allow such access;

(4) It was impossible for Rodriguez to act during the 30-day rescission period in order to preserve her right to a jury trial, in that she was a minor who was the subject of a custody dispute and no guardian had been appointed by the court within the 30-day rescission period.

Rodriguez requests that we either (a) issue a peremptory writ of mandate directing respondent superior court to vacate its orders of October 23, 2008, and to issue orders finding Rodriguez is entitled to a jury trial, or (b) issue an alternative writ directing the respondent superior court to show cause why it should not vacate its orders of October 23, 2008, and issue orders finding that Rodriguez is entitled to a jury trial.

DISCUSSION

Rodriguez's contentions turn on the interpretation of the Arbitration Agreement and section 1295, and the relevant facts are undisputed. Therefore, we review the Arbitration Agreement de novo to determine whether it is legally enforceable against Rodriguez. (County of Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Cal.App.4th 237, 241 ; see also Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 174 .)

(1) An individual is granted a right to a jury trial by the California Constitution, article I, section 16 as follows: "Trial by jury is an inviolate right and shall be secured to all . . . . In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute." A waiver of the right to a jury trial must be knowing and voluntary. (Cal. Const., art. I, § 16; cf. People v. Smith (2003) 110 Cal.App.4th 492, 500 .) "[T]he right to trial by jury is considered so fundamental that ambiguity in [a] statute permitting such waivers must be `resolved in favor of according to a litigant a jury trial.'" (Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 956 [32 Cal.Rptr.3d 5, 116 P.3d 479], quoting Loranger v. Nadeau (1932) 215 Cal. 362, 368 , overruled on other grounds in Reich v. Purcell (1967) 67 Cal.2d 551, 555 [63 Cal.Rptr. 31, 432 P.2d 727].)

(2) California has a strong public policy, however, favoring arbitration over a jury trial or other litigation, in that arbitration is a speedy and relatively inexpensive means of resolving disputes and eases court congestion. (Pietrelli v. Peacock (1993) 13 Cal.App.4th 943, 946 .) As part of the Medical Injury Compensation Reform Act, the Legislature enacted section 1295, the purpose of which is "to encourage and facilitate arbitration of medical malpractice disputes." (Reigelsperger v. Siller (2007) 40 Cal.4th 574, 578 [53 Cal.Rptr.3d 887, 150 P.3d 764].)

Section 1295 provides a procedure for a patient and a health care provider to enter into an agreement to waive their rights to a jury trial and resolve medical malpractice claims by arbitration.⁵ Subdivision (e) of section 1295 states that such an agreement is not a contract of adhesion if the agreement complies with subdivisions (a), (b) and (c).⁶ (See Horwich v. Superior Court (1999) 21 Cal.4th 272, 284 [87 Cal.Rptr.2d 222, 980 P.2d 927]; Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586, 1590 .) The parties agree that the text of the Arbitration Agreement complied with the three subdivisions.

(3) There is, however, no conclusive presumption that a person who signs a document containing text complying with the section 1295 requirements has in fact consented to arbitration as required to form an enforceable agreement. (Ramirez v. Superior Court (1980) 103 Cal.App.3d 746, 756 .) "`The right to arbitration depends on a contract.'" (County of Contra Costa v. Kaiser Foundation Health Plan, Inc., supra, 47 Cal.App.4th at p. 245; see Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [58 Cal.Rptr.2d 875, 926 P.2d 1061].) As for any contract to be valid, an arbitration agreement requires the mutual consent of the parties. (Cf. Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1247-1249 .) No enforceable agreement "exists unless the parties signing the document act voluntarily and are aware of the nature of the document and have turned their attention to its provisions or reasonably should have turned their attention to its provisions." (Ramirez, supra, at p. 756, fn. 3.) In order to allow a patient sufficient time to rescind the agreement or, by his or her silence, confirm that his or her waiver is knowing and voluntary, section 1295, subdivision (c), requires that the patient be given a 30-day "cooling off" period after signing the agreement. During that time, the patient may rescind the agreement by giving written notice of rescission.

In this appeal, the parties focus primarily on the question of whether the document signed by Newton is binding on her minor daughter, Rodriguez. In our view, however, the threshold issue is raised by Rodriguez's contention that no valid waiver of the right to a jury trial was made. Without a valid waiver, no enforceable arbitration agreement would exist. (Ramirez v. Superior Court, supra, 103 Cal.App.3d at pp. 756-757 & fn. 3.)

(4) "`[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a...