Tagg v. Capistrano Beach Care Ctr.

• Decision Date: 24 February 2023
• Docket Number: B319670
• Parties: ANITA TAGG, by and through her successor in interest, BRIAN TAGG, Plaintiff and Respondent, v. CAPISTRANO BEACH CARE CENTER, LLC et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

ANITA TAGG, by and through her successor in interest, BRIAN TAGG, Plaintiff and Respondent, v. CAPISTRANO BEACH CARE CENTER, LLC et al., Defendants and Appellants.

B319670

California Court of Appeals, Second District, Seventh Division

February 24, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County (Los Angeles County Super. Ct. No. 21STCV35700), Lawrence P Riff, Judge. Affirmed.

Lewis Brisbois Bisgaard &Smith, Tracy D. Forbath, Daniel Velladao, Kathleen M. Walker, and Jeffrey S. Healey for Defendants and Appellants.

Arias Sanguinetti Wang &Torrijos, Mike Arias, and Robert M Partain for Plaintiff and Respondent.

FEUER J.

Capistrano Beach Care Center, LLC and Cambridge Healthcare Services Inc. (collectively, Capistrano defendants) appeal from an order denying their petition to compel arbitration of Anita Tagg's cause of action for elder abuse. The Capistrano defendants contend the trial court erred in finding Tagg only agreed to arbitrate her medical malpractice claims. They argue further that even if Tagg only agreed to arbitrate medical malpractice disputes, her elder abuse claim sounds in medical malpractice, and therefore, the court should have ordered arbitration of her claim. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Arbitration Agreement

On June 15, 2021 Tagg was admitted to a skilled nursing facility (Facility) operated by the Capistrano defendants after she fell and fractured her vertebrae. Tagg and the Capistrano defendants' representative, McKenna Hensley, signed portions of a two-page stand-alone arbitration agreement (agreement).^[1] The agreement made clear in article 3 that "execution of this Arbitration Agreement is not a precondition to receiving medical treatment, care, services and/or for admission to the Facility and is not a requirement to continue receiving medical treatment, care and services at the Facility."

Article 1 provides, "It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. 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, and instead are accepting the use of arbitration."

Article 2 provides, "It is further understood that any dispute between Resident and . . . [the Capistrano defendants], including any action for injury or death arising from negligence, intentional tort and/or statutory causes of action (including all California Welfare and Institutions Code sections and Health and Safety Code section 1430), will be determined by submission to binding arbitration and not by lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. The parties to this agreement are giving up their Constitutional right to have all disputes decided in a court of law before a jury, and instead are accepting the use of binding arbitration."

Article 4 provides that the agreement "shall be binding for any dispute, except for disputes pertaining to collections or evictions." Further, the agreement is binding on all parties and the resident's "representatives, executors, family members, and heirs who bring any claims individually or in a representative capacity." The agreement also contains a certification provision under which the resident or signatory on behalf of the resident certifies he or she has read the agreement, has a copy of the agreement, and is authorized to sign the agreement.

The agreement's articles and certification provision are in black ink. At the end of the agreement (following the certification provision) are two notice provisions, each in all capital letters in red ink. Each notice provision is followed by lines for the Facility representative and resident to sign and date.

The first notice provision states, "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." (Capitalization omitted.) Below this notice Hensley signed her name as the Facility representative, wrote "9/13/20," and stated her title as "Admissions Assistant." Tagg signed her name below the line for "Resident's Signature," but she did not provide a date.

The second notice provision states, "Notice: By signing this contract you are agreeing to have all claims, including claims other than a claim for medical malpractice, decided by arbitration and you are giving up your right to a jury or court trial and you agree that no party shall adjudicate any claim on a class action basis." (Capitalization omitted.) Below this notice Hensley again signed her name as the Facility's representative, wrote "9/13/20," and stated her title as "Admissions Assistant." Tagg did not sign this notice.

B. The Complaint

On September 28, 2021 Tagg filed a complaint against the Capistrano defendants^[2] alleging causes of action for elder abuse in violation of the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act or Act) (Welf. &Inst. Code, § 15600 et seq.) and negligent hiring and supervision. The complaint alleged then-82-year-old Tagg was admitted to the Facility on June 15, 2021. The elder abuse cause of action alleged that during Tagg's 10-day stay at the Facility, the Capistrano defendants "ignored her needs" and "wrongfully withheld necessary care and services" by failing "to properly and competently evaluate [Tagg's] clinical conditions and risk factors for falling"; to implement, monitor, and revise interventions to prevent Tagg from falling; "to ensure staff provided [Tagg] with care and interventions as called for by care plans, physician orders, and assessments"; and "to timely transfer [Tagg] to an acute care facility when her emergent medical needs and conditions required such elevated provision of care." (Capitalization omitted.) As a direct and proximate result of the neglect, Tagg "suffered an avoidable fall and resulting hip fracture which required surgery, which sequela accelerated the deterioration of her health beyond that caused by the normal aging process."

In addition, the Capistrano defendants did not provide sufficient staffing and many of the staff members were not properly trained or qualified to care for the elderly, including Tagg. They "wrongfully withheld necessary care and services from [Tagg] in violation of federal and state rules, laws, and regulations governing the operations and standards of practice in skilled nursing facilities," including regulations addressing pressure sores. (Capitalization omitted.) Tagg would not have suffered injuries had there been sufficient staffing.

The second cause of action for negligent hiring and supervision alleged the Capistrano defendants negligently hired, supervised and/or retained the Facility's administrator, director of nursing, certified nursing assistants, registered nurses, and licensed vocational nurses. The Capistrano defendants "knew, or should have known, that these individuals were unfit to perform their job duties . . . and that this unfitness created a high risk that serious injury would befall elderly and infirm residents" such as Tagg.

Tagg died on October 16, 2021. On December 8 the trial court granted the ex parte application filed by Tagg's attorney to appoint Tagg's son Brian Tagg to prosecute the lawsuit as Tagg's successor in interest.^[3]

C. The Capistrano Defendants' Motion To Compel Arbitration

On December 1, 2021 the Capistrano defendants filed a petition to compel arbitration.^[4] They argued that Tagg executed the agreement during her stay at the Facility and is presumed to have read and understood its terms, which required arbitration of her claims (as stated in article 2 of the agreement).

In her opposition, Tagg argued that by signing the notice provision for medical malpractice disputes under article 1, and not signing the notice provision applicable to "claims other than a claim for medical malpractice" (capitalization omitted), she only agreed to arbitrate her medical malpractice claims. Tagg asserted that "[i]f only one signature were required to assent to both portions of the agreement, the agreement would so indicate." Tagg also argued her elder abuse cause of action was not for medical malpractice, and therefore, it was not covered by article 1 of the arbitration agreement. Tagg asserted her negligent hiring and supervision cause of action likewise did not involve medical malpractice.^[5]

In their reply brief, the Capistrano defendants argued Tagg "did not cross out or strike out any portion of the two arbitration agreements and it is clear from the plain language of the Agreements that the intent was for all claims to be subject to arbitration." Further, articles 2 and 4 of the agreement made clear that all disputes were subject to arbitration. The Capistrano defendants added that at a minimum Tagg's negligent hiring and supervision claim was subject to arbitration.

D. The Trial Court's Ruling

On March 21, 2022 the trial court held a hearing on the Capistrano defendants' motion to compel arbitration. The court's written tentative ruling was to deny the motion as to the elder abuse cause of action but to grant it as to the negligent hiring and supervision cause of action, with the arbitrator to decide what portion of the negligent hiring...