Carter v. Chancellor Health Care of Cal. VIII, Inc. CA3 ( 2021 )

Filed 4/28/21 Carter v. Chancellor Health Care of Cal. VIII, Inc. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
ANITA CARTER, AS SUCCESSOR IN INTEREST, C089986
ETC., et al.,
(Super. Ct. No.
Plaintiffs and Respondents, 34201800230309CUNPGDS)
v.
CHANCELLOR HEALTH CARE OF CALIFORNIA
VIII, INC., et al.,
Defendants and Appellants.
Defendants Chancellor Health Care of California VIII, Inc., et al., doing business
as Revere Court (Revere), appeal from the trial court’s denial of its petition to compel
arbitration against plaintiffs Anita Carter et al. (individually Carter or collectively
plaintiffs). On appeal, Revere contends (1) the trial court relied on improper legal criteria
in determining that Carter’s son, who signed the agreement, needed a medical power of
attorney in order to bind plaintiffs to arbitrate; (2) the trial court erred in concluding the
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arbitration provision was unconscionable; and (3) the trial court abused its discretion in
refusing to stay a wrongful death claim while the elder abuse claim proceeded to
arbitration. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Carter, though her successor-in-interest, sued Revere, an assisted living facility,
for elder abuse. A wrongful death claim was also brought by Carter’s children, suing as
individuals. After answering the complaint, Revere petitioned to compel arbitration,
arguing “Plaintiff” had signed an unambiguous arbitration agreement. A copy of a
“Residence and Care Agreement,” an “application for residency in assisted living
facility,” and an “authorization form” for “Long-Term Care Program,” were attached to
the petition.
The Residence and Care Agreement began: “This Agreement is made between
Chancellor Heath Care of California VIII, Inc., a Delaware Corporation (‘CHCC’) and
______ (‘You’ or ‘Resident’).” On that blank line, Carter’s son’s name was handwritten.
Several pages later, under a heading “signature by your agent,” the agreement
provided: “This Agreement must be signed by your Agent. Your Agent is any person
including a relative, health care decision maker, or placement agency, who assists you in
placement, or assumes varying degrees of responsibility for your well being.”
Several pages after that, a clause titled “arbitration,” provided in part: “This
arbitration clause binds all parties to this Agreement and their spouses, heirs,
representatives, executors, administrators, successors, assigns, managers, and agents as
applicable.”
Finally, at the end of the agreement was a signature page, with a signature line for
“Resident’s Agent.” It was signed by Carter’s son.
The first page of the “application for residency in assisted living facility” stated
that, “[t]his application will become a part of the ‘Residence and Care Agreement.’ ”
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Further down, the form asked: “Has a legal-surrogate been appointed or designated in
accordance with State law to act on behalf of Applicant?” The “yes” box was checked.
Next to it, the form asked, “If yes, who?” Carter’s son’s name was handwritten in the
blank. At the bottom of the page it stated: “If the applicant is incompetent or otherwise
incapable of signing the application, the Applicant’s legal-surrogate must sign the
Application and the Residence and Care Agreement on the Applicant’s behalf. Please
provide Power of Attorney or Conservatorship Order.”
The “authorization form” for “Long-Term Care Program,” authorized the release
of certain medical information. Above the form’s signature line, Carter’s son’s name is
printed and “Medical P.O.A.” is handwritten. Below the signature line it stated: “All
signatures, other than that of the Claimant, must be identified and accompanied by
appropriate documentation of authority to represent the Claimant (for example: Durable
Power of Attorney, Conservator, or Guardian).” The form was signed a year before the
signature on the Agreement and Application. No documents were attached to the
authorization form, as part of the record.
Plaintiffs opposed the petition, arguing, inter alia, that Revere had failed to
establish Carter’s son’s authority to sign on Carter’s behalf and argued the son’s
signature, representing he had such authority, was insufficient. Further, Revere had
failed to demonstrate that Carter was incapacitated such that her son would have
authority “to act under some unknown advanced health care directive.”
Plaintiffs also objected, on foundation grounds, to the Application for Residency
and Authorization Form.
Attached to the opposition was a declaration of Carter’s son stating that on the day
his mother was admitted, a facility employee took him aside and told him he was required
to sign some paperwork to have his mother admitted. The son was not asked if he had
power of attorney or if he had the power to sign.
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In its reply, Revere offered what it purported to be “evidence of ostensible, and
arguably, actual agency.” It attached a Revere Court Memory Care document titled
“Residential Chart,” with plaintiff’s name on it. Within the report were references to
dementia, a “mental condition,” and Alzheimer’s.
Also provided was a document, on Chase letterhead, titled “durable power of
attorney for deposit accounts.” It stated that “[t]his document gives your agent the
powers to manage, dispose of, sell, and convey your real and personal property, and to
use your property as security if your agent borrows money on your behalf.” On the
signature page it stated in pertinent part, “I, the principal … execute this instrument as
my Power of Attorney for the expressed purposes. I authorize the Agent named above to
do all of the following things on my behalf as my act and deed, with respect to all of the
accounts identified below. . . .” Five enumerated clauses followed, pertaining to writing
and endorsing checks, agreeing to account modifications, receiving bank statements, and
requesting additional services relating to the account. An account number was
handwritten and initialed on the form. The form was also notarized and signed by Carter,
with her son listed as agent.1
In the reply, Revere also sought to stay the wrongful death claim until arbitration
of the elder abuse claim concluded.
The trial court denied the petition, concluding the arbitration agreement did not
bind plaintiffs because Carter did not sign it. It explained: “Defendants have presented
no evidence that [plaintiff] gave her son the ability to bind her to the Residency
Agreement. Defendants rely only on statements or representations of the alleged agent.
1 Plaintiff thereafter filed an objection, arguing inter alia, “[a] durable power of attorney
for financial deposits is not sufficient proof of the authority to make health care
decisions, or sign an arbitration agreement on behalf of a resident.”
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Defendants have not, for example, provided a Power of Attorney executed by Anita
Carter to give her son the ability to make medical decisions.” 2 (Italics added.)
The court noted that while the son identified himself in the application as a “legal
surrogate,” the application also required a Power of Attorney or Conservatorship Order
“if the applicant is incompetent or otherwise incapable of signing the application . . . .”
The court further noted that on the contract’s first page, the son was listed as “You, or
Resident” and “[t]hus on its face, the contract is not between Anita Carter and [the
assisted living facility].”
The trial court also found the arbitration agreement procedurally and substantively
unconscionable. And it found that the wrongful death claim brought in Carter’s
children’s individual capacities were not subject to arbitration, and even if Carter was
bound to arbitrate the elder abuse claim, the danger of conflicting rulings on common
issues of law or fact warranted keeping all claims in the pending action.
DISCUSSION
I
Agreement to Arbitrate
On appeal, Revere challenges the denial of its petition to compel arbitration,
arguing the trial court employed “improper legal criteria” in concluding the son was
required to have a power of attorney for health care decision. Revere writes: “in
concluding that Revere Court ‘presented no evidence that [] Carter gave her son the
ability to bind her to the Residency Agreement,’ the lower court pointed specifically to
the lack of a ‘Power of Attorney executed by Anita Carter to give her son the ability to
make medical decisions.’ ” Revere maintains it is not a health care provider and thus a
2 The trial court sustained plaintiff’s objections to the declarations of counsel attached to
the petition on reply, purporting to authenticate attached writings.
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medical power of attorney was not required. And because only nonmedical “residential”
and “custodial” care was provided, only a more generalized Power of Attorney was
required to bind plaintiffs to arbitration. To that, Revere argues the power of attorney
demonstrating the son had authority over Carter’s bank accounts established authority to
conduct financial transactions on her behalf and therefore sufficed to bind her to
arbitration. There is some uncertainty in the record whether the trial court excluded the
power of attorney over bank accounts documents from the evidence on the motion, but
excluded, or not, we disagree with Revere’s argument.
“The party seeking arbitration bears the burden of proving the existence of an
arbitration agreement . . . .” (Pinnacle Museum Tower Assn. v. Pinnacle Market
Development (US), LLC (2012) 55 Cal.4th 223, 236.) On appeal, we review the denial of
a motion to compel arbitration for substantial evidence. (Brown v. Wells Fargo Bank,
N.A. (2008) 168 Cal.App.4th 938, 953.) But if no facts are disputed, review is de novo.
(Ibid.) Where material facts are disputed, we accept the trial court’s resolution of
disputed facts if supported by substantial evidence, and we presume the court found every
fact and drew every permissible inference necessary to support the judgment. (Ibid.)
Here, Revere has failed to prove the existence of an agreement to arbitrate. Fatal
to its claim is the lack of evidence of the son’s authority to sign for Carter.
Revere claims the trial court applied “improper legal criteria” in requiring a
medical power of attorney, but in so arguing, Revere quotes selectively. The full quote
makes clear the trial court was citing a medical power of attorney as an example:
“Defendants have not, for example, provided a Power of Attorney executed by Anita
Carter to give her son the ability to make medical decisions.” Thus, the contention that
the trial court employed improper criteria is not well taken.
Similarly unavailing is Revere’s argument that the power of attorney attached to
its reply gave rise to ostensible authority. Putting aside foundational issues, the attached
financial power of attorney expressly applied to a circumscribed set of activities
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pertaining to a specific bank account. In no way did it purport to grant authority to sign
an assisted living agreement (and accompanying arbitration agreement) on plaintiff’s
behalf. (See Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 589,
594 [denial of petition was proper where proponent failed to show the signee’s authority
to bind the party opposing arbitration].) And the son’s signature itself was insufficient.
(Goldman v. Sunbridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1173 [“ ‘agency
cannot be created by the conduct of the agent alone; rather, conduct by the principal is
essential to create the agency’ ”].)
Having failed to show the son was authorized to sign for Carter, Revere has
therefore failed to show an agreement to arbitrate. Accordingly, the trial court properly
denied the petition to compel arbitration.
II
Remaining Contentions
Revere raises two additional contentions. It contends the trial court erred in
finding the arbitration agreement procedurally and substantively unconscionable. And it
contends the trial court abused its discretion in refusing to stay the wrongful death claim
while the elder abuse claim proceeded to arbitration.
Having found the trial court properly denied the petition to arbitrate based on the
failure to establish an agreement to arbitrate, we need not address Revere’s challenge to
the unconscionability finding, and we may similarly reject the final contention on the
ground that it rests on the assumption that the petition to compel arbitration should have
been granted.
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DISPOSITION
The judgment is affirmed. Revere shall pay plaintiffs’ costs on appeal. (Cal. Rules
of Court, rule 8.278.)
HULL, Acting P. J.
We concur:
ROBIE, J.
MURRAY, J.
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