Thomas v. Overland Terrace Healthcare & Wellness Ctr.
| Decision Date | 29 November 2022 |
| Docket Number | B310868,B312568 |
| Parties | CARLISE THOMAS, Plaintiff and Respondent, v. OVERLAND TERRACE HEALTHCARE & WELLNESS CENTRE LP, et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, (Los Angeles County Super. Ct. No. 20STCV37010) Terry A. Green, Judge.
Zarmi Law and David Zarmi for Defendants and Appellants.
Garcia &Artigliere, Stephen M. Garcia, William M. Artigliere and David M. Medby for Plaintiff and Respondent.
Overland Terrace Healthcare &Wellness Centre, LP (Overland Terrace), Rockport Administrative Services, LLC (Rockport) and Schlomo Rechnitz (collectively, appellants) appeal from orders denying their petitions to compel arbitration of the civil action filed by William Thomas, through his sister Carlise Thomas (Carlise[1]) as his "attorney in fact," against Overland Terrace, Rockport and Rechnitz. Thomas opposed the petitions on multiple grounds, including that he did not have the mental capacity to enter the arbitration agreements. The trial court properly ruled that the parties could not contractually delegate[2]the issue of Thomas's capacity defense to the arbitrator, and its finding that Thomas lacked capacity to enter the arbitration agreement is supported by substantial evidence. We therefore affirm.
Thomas was admitted to a 24-hour skilled nursing facility known as Country Villa South Convalescent Center (Country Villa) on August 1, 2020. Overland Terrace operates Country Villa Rechnitz is allegedly the sole owner of Overland Terrace. Rockport allegedly operates Overland Terrace and is also owned by Rechnitz.
At the time Thomas was admitted to Country Villa, he was 56 years old. Thomas's sister, Carlise, who was not present when Thomas was transferred to Country Villa, informed Country Villa staff that she had a medical power of attorney for Thomas and that he "was unable to sign documents for himself and suffered from mental retardation."
The record contains a document bearing the title "arbitration agreement," dated August 4, 2020, between "Country Villa South" (designated as the "Facility") and "Thomas, William" (designated as the "Resident"). "WT" is written on the signature block for the Resident, on pages 4 and 5 of the agreement. It is unclear whether this is purportedly Thomas's full signature, or only his initials. The agreement contains a form to be filled out by a witness when a Resident uses a mark instead of a signature, but that form is blank. A declaration signed by Aurea Hernandez, the Director of Admissions at Country Villa, states that she signed the arbitration agreement on behalf of the facility and that the agreement was in Thomas's file at Country Villa; the declaration does not state that Thomas signed the agreement, describe the circumstances under which Hernandez executed the agreement, or state that Hernandez recalled executing the agreement.[3]
Appellants do not contend that Carlise, who held a medical power of attorney, agreed to the arbitration agreement on behalf of Thomas, or that the arbitration agreement was ever presented to her. While they assert that Carlise "gave Country Villa consent to treat [Thomas] 'over the telephone'" there is no contention that she ever agreed on his behalf to the arbitration agreement, which by its terms provides that it is "Not Part of Admission Agreement" and "Residents shall not be required to sign this arbitration agreement as a condition of admission to this facility." Thus, Carlise's oral consent to treatment cannot be considered assent to the terms of the arbitration agreement.
The arbitration agreement is not part of any other agreement, such as the admission agreement. It includes two primary arbitration provisions. The first requires arbitration of "any and all disputes or claims as to medical malpractice (that is, whether any medical services rendered during the Resident's admission were unnecessary or unauthorized or were improperly, negligently or incompetently rendered or not rendered)." The second requires arbitration of "any and all disputes, controversies, demands or claims that relate or arise out of the provision of services or health care or any failure to provide services or health care by Facility, the admission agreement and/or this Agreement, the validity, interpretation, construction, performance and enforcement thereof, including, without limitation, claims that allege: medical malpractice; breach of contract; unpaid nursing home charges; fraud; deceptive trade practices; misrepresentation; negligence; gross negligence; Health and Safety Code section 1430 claims; violations of the Elder Abuse and Dependent Adult Civil Protection Act, the Unfair Competition Act, the Consumer Legal Remedies Act; and/or any right granted to Resident by law or by the admission agreement."
In addition, in the "Recitals" section, the agreement provides: "The arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any Dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable."
The arbitration agreement states in two places that agreeing to arbitration is not a condition of admission to the facility.
On August 14, 2020, Thomas suffered seizures at Country Villa and was taken to the hospital.[4]
On September 28, 2020, Thomas, acting through his sister Carlise as an "attorney in fact," sued Rechnitz, Overland Terrace and Rockport for dependent adult abuse (Welf. &Inst. Code, § 15600 et seq.) and negligent hiring and supervision.[5] The complaint alleges that Thomas "suffered from high functioning Intellectual Disability since birth" (fn. omitted) and had been diagnosed with a seizure disorder, diabetes, congestive heart failure, and stage III kidney failure. It further alleges that staff at Country Villa failed to administer Thomas's seizure medication, which resulted in Thomas suffering four seizures on August 14, 2020; Thomas was taken to the hospital where he was placed on a ventilator and was unresponsive.
On October 5, 2020, Thomas filed a motion for a preference in trial setting pursuant to Code of Civil Procedure section 36, subdivision (d).[6]
On November 2, 2020, Overland Terrace and Rockport[7]filed a motion to compel arbitration. Overland Terrace and Rockport argued that the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) applied because Country Villa participates in the Medicare program and therefore its services affect interstate commerce. In support of this argument, Overland Terrace and Rockport noted that the arbitration agreement states that" '[t]he Facility, among other things, participates in the Medicare and/or Medi-Cal programs and/or procures supplies from out-of-state vendors,'" and that it" 'shall be construed and enforced in accordance with and governed by the [FAA] and the procedures set forth in the [FAA] shall govern any petition to compel arbitration.' "
Overland Terrace and Rockport argued that Thomas's causes of action fell within the scope of the arbitration agreement.
Thomas filed an opposition to the motion. The opposition argued that Thomas lacked mental capacity to sign the arbitration agreement. The argument relied on medical records from Country Villa, including the following: (1) a "Cognitive Loss" care plan for Thomas, apparently created on August 1, 2020, which stated as a "Problem/Need" that Thomas had "[a]ltered through process related to: . . . Periods of confusion[;] Periods of disorientation[;] [and] Periods of forgetfulness," was "[u]nable to make decision[s]" and had "[p]oor judgment"; (2) a "Consent to Treatment" form dated August 1, 2020, which indicated that Thomas was "unable to sign" and that "verbal consent" had been obtained from Thomas's sister, Carlise; (3) an August 2, 2020, evaluation by a doctor at Country Villa in which the doctor checked a box indicating that "[t]his resident . . . does NOT have the capacity to understand and make decisions";[8] (4) a nursing note dated August 2, 2020, which stated ; and (5) other forms indicating that Carlise's consent to treat Thomas had been obtained in lieu of Thomas's signature.
In a declaration submitted in support of the opposition, Carlise stated that, on September 1, 2010, Thomas had executed a power of attorney designating her "as his health care agent should he be unable to make his own healthcare decisions," and Thomas had not revoked the document.[9] She further stated that she had informed staff at Country Villa that Thomas "was unable to sign documents for himself and suffered from mental retardation" and that, as a result, Country Villa staff contacted her by telephone to obtain her consent "for various issues that arose related to his admission at the facility." With respect to the arbitration agreement, Carlise stated in her declaration, ...
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