Scott v. Windsor Sacramento Estates, LLC

• Decision Date: 29 November 2021
• Docket Number: C091077
• Court: California Court of Appeals Court of Appeals
• Parties: GABRIEL SCOTT, Individually and as Successor in Interest, etc., Plaintiff and Respondent, v. WINDSOR SACRAMENTO ESTATES, LLC, et al., Defendants and Appellants.

GABRIEL SCOTT, Individually and as Successor in Interest, etc., Plaintiff and Respondent,
v.
WINDSOR SACRAMENTO ESTATES, LLC, et al., Defendants and Appellants.

C091077

California Court of Appeals, Third District, Sacramento

November 29, 2021

NOT TO BE PUBLISHED

(Super. Ct. No. 34-2017-00218038-CU-PO-GDS)

RAYE, P. J.

Windsor Sacramento Estates, LLC, doing business as Windsor Care Center of Sacramento (WCCS) et al. appeal from an order of the superior court denying their motion to compel arbitration as to the wrongful death claim asserted by plaintiff Gabriel Scott, a nonsignatory to WCCS's arbitration agreement.^[1] The sole contention on appeal

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is whether the court or the arbitrator would determine that plaintiff was or was not bound by the arbitration agreement he did not sign.

The arbitration agreement contained a delegation clause providing that "any disputes about the validity, interpretation, construction, performance, and enforcement of this Agreement, will be determined by submission to individual arbitration and not by lawsuit or resort to court process." "A delegation clause requires issues of interpretation and enforceability of an arbitration agreement to be resolved by the arbitrator." (Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1559.) WCCS maintains that the delegation clause required the arbitrator, not the court, to decide whether plaintiff's wrongful death claim was arbitrable. The trial court, however, ruled that plaintiff was not a party to the arbitration and therefore his wrongful death cause of action was not subject to arbitration.

WCCS contends the court erred. We disagree. As cases interpreting the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) have held, "the threshold issue of whether the delegation clause is even applicable to a certain party must be decided by the Court." (Soto v. American Honda Motor Co., Inc. (N.D.Cal. 2012) 946 F.Supp.2d 949, 954 (Soto).) We will affirm the order denying the motion to compel arbitration of plaintiff's wrongful death cause of action.

FACTUAL AND PROCEDURAL BACKGROUND

On August 25, 2017, plaintiff filed a complaint alleging causes of action for (1) negligence/negligence per se; (2) abuse/neglect of a dependent adult; (3) wrongful death; (4) violation of patient's bill of rights (Health & Saf. Code, § 1430);

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(5) fraud/misrepresentation; (6) constructive fraud; and (7) unfair business practices (Bus. & Prof. Code, § 17200). Plaintiff brought the action as successor in interest to his deceased father, Timothy Scott, as well as in plaintiff's individual capacity.

Plaintiff alleged that his father with advanced dementia was a resident at WCCS's skilled nursing facility dependent on WCCS for basic care, but was neglected and left unsupervised, leading to injuries, weight loss, dehydration, pain, kidney failure, and ultimately his death.

On June 1, 2016, at the time plaintiff's father was admitted to WCCS, Sally Gordon, his ex-wife, signed a resident-facility arbitration agreement on his behalf under a durable power of attorney for health care.

Article No. 1 of the arbitration agreement provided: "It is understood that any dispute between the parties, including but not limited to intentional tort, breach of contract, fraud and/or misrepresentation, statutory causes of action (including all California Welfare and Institutions Code sections), claims for alleged violations of the Elder Abuse and Dependent Adult Civil Protection Act, the Unfair Competition Law, the False Advertising Law, or the Consumer Legal Remedies Act, regardless of the remedy sought pursuant to any of the above-listed acts, and/or any disputes about the validity, interpretation, construction, performance, and enforcement of this Agreement, will be determined by submission to individual arbitration and not by lawsuit or resort to court process. Resident and Facility, as parties to this Agreement, are giving up their Constitutional rights to have a dispute under this Agreement decided in a court of law before a jury and any right to bring an action on a class basis, and instead are accepting the use of individual arbitration. This Agreement shall be governed by, interpreted under, and enforced in accordance with the substantive and procedural provisions of the Federal Arbitration Act, 9 U.S.C. sections 1-16, in its entirety. Any reference to the law of any state in this Agreement or in any other agreement between the parties shall not constitute a choice of that law to govern, interpret, or enforce this Agreement. The parties

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specifically agree, without limitation, that California Code of Civil Procedure section 1281.2(c) shall not apply to any dispute between the parties."

Article No. 4 provided: "This Agreement shall be binding for any dispute within thirty (30) days of signature. This Agreement may be rescinded by written notice within thirty (30) days of signature. This Agreement is binding on all parties, including their personal representatives, successors, family members and heirs."

Article No. 5 provided: "In the event a court having jurisdiction finds any portion of this Agreement unenforceable, that portion shall not be effective and the remainder of the Agreement shall remain effective."

WCCS brought successive motions to compel arbitration, the first of which the court denied without prejudice, ruling that defendants failed to show that a valid, binding arbitration agreement existed.

On the second motion, the trial court ruled that "the arbitration agreement is 'clear and unmistakable' that any disputes about the validity, interpretation, construction, performance, and enforcement of the arbitration agreement are for the arbitrator to decide." The court rejected plaintiff's argument that the arbitration agreement was unconscionable, explaining that, where an arbitration contains a delegation clause, any claim of unconscionability must be specifically directed to the delegation clause. Pursuant to the delegation clause, the court granted "the motion to compel arbitration for the arbitrator to decide the issues of validity, interpretation, construction, performance, and enforcement of the arbitration agreement as to Decedent's causes of action."

However, the court ruled that, because plaintiff was not a party to the agreement, his wrongful death cause of action was not subject to arbitration. The court distinguished Ruiz v. Podolsky (2010) 50 Cal.4th 838 (Ruiz), which held that an arbitration agreement applied to the wrongful death claims of nonsignatories whose claims sounded in medical malpractice/professional negligence. The court...