Ruling
DAVID ZEIL VS DOES 1 TO 100, INCLUSIVE
Jul 18, 2024 |
21STCV18145
Case Number:
21STCV18145
Hearing Date:
July 18, 2024
Dept:
8
Tentative Ruling
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HEARING DATE:
July 18, 2023
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CASE NUMBER:
21STCV18145
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CASE NAME:
David Zeil v. DOES 1-100
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MOVING PARTY:
Plaintiff, David Zeil
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RESPONDING PARTY:
Defendant, Southwest Airlines Co.
TRIAL DATE:
September 22, 2025
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MOTION:¿
(1) Motion for Order Compelling Defendant to Answer, Without Objection, Plaintiffs Form Interrogatories, Set Two
(2) Motion for Order Compelling Defendant to Answer, Without Objection, Plaintiffs Inspection Demand for Documents
(3) Motion for Order Deeming Requests for Admission, Set Two, as Admitted
(4) Request for Monetary Sanctions
Tentative Rulings:
(1) Mooted by service of verified responses without objection
(2) Ditto
(3) Ditto
(4) Request for Monetary Sanctions is GRANTED.
$1,000 per motion, payable by defense counsel to Plaintiffs counsel within 30 days
I. BACKGROUND
¿¿¿
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A. Factual
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¿¿¿
On May 14, 2021, Plaintiff, David Zeil (Plaintiff) filed a Complaint against Defendants DOES 1 through 100. Plaintiff eventually learned of the identity of more Defendants including Southwest Airlines Co, and Ms. Manu. The Complaint alleges causes of action for: (1) Products Liability; and (2) General Negligence.
On May 1, 2024, Plaintiff contends that he served Requests for Admission, Set Two, Corresponding Form Interrogatory No. 17.1, and Inspection Demands concerning the responses to Form Interrogatory No. 17.1. Plaintiff states that Defendant, Southwest Airlines Co.s (Defendant) responses were due on or before June 5, 1014. However, Plaintiff contends that no responses were provided by Defendant. Rather, on June 4, 2024, Plaintiff notes that defense counsel wrote to Plaintiffs counsel requesting for a two-week extension to respond to discovery. Plaintiffs counsel wrote back indicating that Plaintiff was willing to grant the extension with contingencies.
There is a dispute between counsel as to whether the contingencies were agreed upon and reneged or never agreed upon,
On June 24, 2024, the defense served verified responses to all the pending discovery without objections.
Plaintiffs counsel indicates that since June of 2023, Mr. Worthe refused to take or return his calls and instead, put the agreeing attorney, Gene Kaskiw in charge of communications with Plaintiffs counsel. Plaintiffs counsel suggests that only now, when it was convenient for Mr. Worthe, does he require Plaintiffs counsel to communicate with him. Plaintiffs counsel now argues that Mr. Worthe cannot now void the stipulation agreement by Mr. Kaskiw. As such, Plaintiff argues that the motion for summary judgment should be continued.
B. Procedural¿
¿¿
¿¿
On June 12, 2024, Plaintiff filed its Motions to Compel Initial Responses, without objection. On July 3, 2024, Defendant filed opposition briefs. On July 15, 2024, Plaintiff filed reply briefs.
II. ANALYSIS
¿¿
A.
Legal Standard
A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a).) If a party to whom interrogatories are directed does not provide timely responses, the requesting party may move for an order compelling responses to the discovery. (Code Civ. Proc., § 2030.290, subd. (b).) The party also waives the right to make any objections, including one based on privilege or work-product protection. (Code Civ. Proc., § 2030.290, subd. (a).) There is no time limit for a motion to compel responses to interrogatories other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., § 2024.020, subd. (a); Code Civ. Proc., 2030.290.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (Code Civ. Proc., § 2030.290;
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 411
B.
Motion to Compel Defendants Answer to Plaintiffs Form Interrogatories, Set Two
Form Interrogatories
Plaintiff notes that he seeks initial responses to Form Interrogatories, Set Two, without objection. Defendants opposition argues that this motion is moot as it responded to Plaintiffs Inspection Demands on June 24, 2024. Based on Exhibit C of the declaration of the Kaskiw declaration, the responses to the
Form Interrogatories were verified and responded to without objection. As such, substantive portion of this Motion to Compel Responses to Inspection Demands, Set Two, is mooted by the belated responses. However, the untimely responses do not moot the sanctions portion of Plaintiffs motion.
Sanctions
Sanctions must be imposed against a party who unsuccessfully makes or opposes a motion to compel unless the party acted with a substantial justification or that other circumstances would make the imposition of sanctions unjust. (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c); see also Code Civ. Proc., § 708.020, Law Revision Commission Comments [if the judgment debtor fails to answer interrogatories without substantial justification, sanctions may include an award of attorneys fees].)
California Rules of Court, rule 3.1348, subdivision (a) states: [t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.
As noted above, this Court orders Defendant and/or its counsel to pay monetary sanctions to Plaintiffs counsel in the lowered amount of $1,000 within 30 days.
The same is true for the other two motions, so the monetary sanctions awarded totals $3,000.
C.
Motion to Deem Requests for Admission as Admitted
Denied as moot, and sanctions awarded as noted above.
D.
Continuance
Plaintiff argues, in each of his motions, that this Court should honor the continuance of the motion for summary judgment previously agreed to by defense counsel,
Kaskiw. However, Plaintiff has not noticed this motion to continue properly, and instead, merely makes argument in the motions to compel responses and or deem requests for admission as admitted. As such, the request to continue the hearing on the MSJ motion is DENIED without prejudice.
But the Court will inquire of defense counsel if the parties can now agree to the continuance before a new motion and opposition and reply and hearing occur.
.
Ruling
ANGELA XIFARAS VS CAL PACIFIC MEDICAL AESTHETICS, ET AL.
Jul 17, 2024 |
23VECV05269
Case Number:
23VECV05269
Hearing Date:
July 17, 2024
Dept:
107
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
NORTHWEST DISTRICT
Angela Xifaras,
Plaintiff,
v.
Cal Pacific Medical Aesthetics, et al.,
Defendants.
Case Number Department
23VECV05269
107
COURTS
[TENTATIVE]
RULING RE:
Motion to Compel Arbitration
[THE FOLLOWING IS A TENTATIVE RULING IN THE ABOVE CASE]:
Defendant Cal Pacific Medical Aesthetics moves to compel arbitration of the claims brought by plaintiff Angela Xifaras. This court denies the motion.
I. BACKGROUND
On May 24, 2022, plaintiff Angela Xifaras (Plaintiff) underwent a cosmetic surgery performed by defendant James Hartleroad, M.D. (Dr. Hartleroad) at defendant Cal Pacific Medical Aesthetics (Defendant and, together with Plaintiff, Parties) to inject a substance called Bellafill into her buttocks. (Complaint ¶ 2.) Plaintiff alleges that because Dr. Hartleroad instead injected silicone, she suffered issues with discoloration, deformity, and pain and had to undergo subsequent procedures to remove the silicone. (Ibid.)
The same day, Plaintiff executed an arbitration agreement (the Agreement). (Hartleroad Decl. ¶ 3, Exh. 1.)
On November 27, 2023, Plaintiff initiated this action by filing a complaint (the Complaint) alleging causes of action for (1) battery, (2) negligent hiring, training, supervision, and retention, (3) medical battery, (4) intentional misrepresentation, (5) negligent misrepresentation, (6) fraudulent concealment, (7) medical malpractice, (8) lack of informed consent, (9) violation of Business and Professions Code § 17200, et seq., and (10) intentional infliction of emotional distress.
On April 16, 2024, Defendant filed a motion (the Motion) to compel arbitration. On April 29, 2024, Plaintiff filed an opposition (the Opposition) to the Motion, to which Defendant replied on July 10, 2024.
II. EVIDENTIARY OBJECTIONS
Defendant objects to the Xifaras Declaration (as defined below) and the declaration by Plaintiffs counsel (the Hemesath Declaration), both of which Plaintiff submits with the Opposition. (Objections p. 2.)
Defendants Objections to the Xifaras Declaration
1.
Objection No. 1 is overruled.
2.
Objection No. 2 is overruled
3.
Objection No. 3 is overruled.
4.
Objection No. 4 sustained as to the first sentence only on the grounds that the declarant lacks personal knowledge and that the statement is speculative. It is overruled as to the second sentence.
5.
Objection No. 5 is overruled.
6.
Objection No. 6 is overruled.
7.
Objection No. 7 is overruled.
Defendants Objections to the Hemesath Declaration
1.
Objection No. 1 is overruled.
2.
Objection No. 2 is overruled.
3.
Objection No. 3 is overruled.
4.
Objection No. 4 is sustained on the grounds that the declarant lacks personal knowledge.
III. THE ARBIRATION AGREEMENT
Defendant submits with the Motion a declaration by Dr. Hartleroad (the Hartleroad Declaration), which certifies and attaches a copy of the Agreement. The Agreement is one of 11 total pages of documents and agreements attached to the Hartleroad Declaration. (Hartleroad Decl. Exh. 1.)
Article 1 of the Agreement provides, in relevant part, that any dispute as to medical malpractice, that is as to whether any medical or dental services rendered under this contract were unauthorized or improperly, negligently or incompetently rendered, will be determined by submission to arbitration. (Hartleroad Decl. Exh. 1.)
Article 2 of the Agreement provides, It is the intention of the parties that this agreement shall cover all existing or subsequent claims or controversies whether in tort, contract or otherwise, and shall bind all parties whose claims may rise out of or in any way relate to treatment or services provided by [Your Spa Name Here] to a patient. (Hartleroad Decl. Exh. 1.)
A few lines above the signature line, the Agreement additionally provides, NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE Of MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO JURY OR COURT TRIAL. (Refer to Article 1 of California Code of Civil Procedure sect 1295). (Hartleroad Decl. Exh. 1.)
The Agreement is signed and dated by only Plaintiff. (Hartleroad Decl. Exh. 1.)
The Agreement does not provide for a division of payment for arbitration. (Hartleroad Decl. Exh. 1.)
IV. DISCUSSION
Under both the Federal Arbitration Act and California law, arbitration agreements are valid, irrevocable, and enforceable, except on such grounds that exist at law or equity for voiding a contract. (
Winter v. Window Fashions Professions, Inc.
(2008) 166 Cal.App.4th 943, 947.) The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract. (
Marcus & Millichap Real Estate Inv. Brokerage Co. v. Hock Inv. Co.
(1998) 68 Cal. App.4th 83, 88.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, the party opposing the petition then bears the burden of proving by a preponderance of the evidence any fact necessary to demonstrate that there should be no enforcement of the agreement, and the trial court sits as a trier of fact to reach a final determination on the issue. (
Rosenthal v. Great Western Financial Securities Corp.
(1996) 14 Cal.4th 394, 413;
Provencio v. WMA Securities, Inc.
, 125 Cal.App.4th 1028, 1031.) In determining whether an¿arbitration¿agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing¿arbitration. (
Weeks v. Crow
¿(1980) 113 Cal.App.3d 350, 353.)¿¿
¿
This court is empowered by California Code of Civil Procedure section 1281.2 to compel parties to arbitrate disputes pursuant to an agreement to do so.
The court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists&.
(Cal. Code Civ. Proc. §¿1281.2.) Thus, Section 1281.2 requires a court to order arbitration if it determines that an agreement to arbitrate exists. (
Ruiz v. Moss Bros. Auto Group, Inc
. (2014) 232 Cal.App.4th 836, 841.)¿¿
¿¿
California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability. (
Engalla v. Permanente Medical Group, Inc.
(1997) 15 Cal.4th 951, 97172.) This strong policy has resulted in the general rule that arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute. (
Coast Plaza Doctors Hospital v. Blue Cross of California
(2000) 83 Cal.App.4th 677, 686.) Notwithstanding that strong policy, the United States Supreme Court has held, [A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. (
AT & T Technologies, Inc. v. Communications Workers of America
(1986) 475 U.S. 643, 648.)
The hearing and determination of a petition to compel arbitration in the manner and upon the notice provided by law for the hearing of motions generally means that the facts are to be proven by affidavit or declaration and documentary evidence with oral testimony taken only in the court's discretion. (
Sonic-Calabasas A, Inc. v. Moreno
(2013) 57 Cal.4th 1109, 1157.)
This Courts Authority to Decide Threshold Issues
Defendant argues that a question of validity of contract and/or arbitration agreement is one for the arbitrator and not the local court. (Motion p. 7.)
The trial court typically decides the threshold issues of enforceability of the arbitration agreement and the scope of issues to be arbitrated. (
Aanderud v. Superior Court
(2017) 13 Cal.App.5th 880, 891.) However, parties can agree to arbitrate gateway questions of arbitrability, such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy. (
Ibid
.) There are two prerequisites for a delegation clause to be effective. First, the language of the clause must be clear and unmistakable. Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability. The clear and unmistakable test reflects a
heightened
standard of proof that reverses the typical presumption in favor of the arbitration of disputes. (
Id
. at 892, internal citations omitted, emphasis original.) When the question is simply whether plaintiff entered at all into the arbitration agreement of which the delegation clause is a part, the initial determination of whether an arbitration agreement exists is one for the court, not the arbitrator. (
Theresa D. v. MBK Senior Living LLC
(2021) 73 Cal.App.5th 18, 27.)
Plaintiff challenges the enforceability of the Agreement in this action, and disputes that any arbitration agreement exists that may be enforced against her in this action. (Opposition pp. 34.) Thus, following
Theresa D. v. MBK Senior Living LLC
,
supra
, 73 Cal.App.5th 18 at 27, the initial determination of whether the Agreement may be enforced in this action is one that may be determined by this court, rather than by the arbitrator.
Moreover, the Agreement does not contain any provisions delegating the role of determining the abritrability of Plaintiffs claims to an arbitrator. In the absence of such a delegation provision, following
Aanderud v. Superior Court
, supra, 13 Cal.App.5th 880 at 891, the court should typically decide whether the Agreement may be enforced in a particular action, and so this court may do so.
Existence of an Agreement to Arbitrate
In California, general principles of contract law determine whether the parties have entered a binding agreement to arbitrate. (
Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC
(2012) 55 Cal.4th 223, 236.)
1.
Plaintiffs Signature on the Agreement
Defendant contends that because the authenticity of Plaintiffs signature on the Agreement is not disputed, Plaintiff must be compelled to arbitrate her claims. (Reply pp. 34.) Defendant cites
Iyere v. Wise Auto Group
(2023) 87 Cal.App.5th 747, 75659 as a very similar case. (Id. at p. 3.)
Plaintiff declares, [a]mong the many documents I signed was the agreement that Defendants are claiming requires this case to be arbitrated. I do not recall signing the agreement nor any discussion about this agreement. (Xifaras Decl. ¶ 3.)
We agree with Defendant that the facts of this case are similar to those of
Iyere v. Wise Auto Group
,
supra
, 87 Cal.App.5th 747 at 75659 in regard to the authenticity of the signature on the arbitration agreement at issue. Like in
Iyere v. Wise Auto Group
,
supra
, at 75659, Plaintiff here does not deny having signed the Agreement. In fact, she admits to having signed it among the other documents she signed. (Xifaras Decl. ¶ 3.) In light of such admission, that she does not
recall
signing the Agreement does not contradict the evidence that Defendant has brought that she did sign it. Thus, Defendant has brought evidence that the Agreement was signed by Plaintiff, which she does not dispute. This court consequently, in making its findings and its ruling on the Motion, does not rely on the assumption that the authenticity of Plaintiffs signature is disputed or on Plaintiffs declaration that she does not recall signing the Agreement.
2.
Fraud in the Inducement
Claims that, due to fraud in the execution of the agreement as a whole, the parties reached no contract containing an arbitration clause, are [] to be decided by the court. (
Rosenthal v. Great Western Fin. Securities Corp.
,
supra
, 14 Cal.4th 394, at 419.)
Fraud in the inducement [] occurs when the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable. (
Rosenthal v. Great Western Fin. Securities Corp.
,
supra
, 14 Cal.4th 394, at 415, emphasis removed.) Fraud in the inducement is a subset of the tort of fraud. (
Hinesley v. Oakshade Town Center
(2005) 135 Cal.App.4th 289, 294.) The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage. (
Ibid
.)
Plaintiff contends that Defendant has failed to meet its burden of showing the existence of a contract and compliance with all laws applicable to any such contract. (Opposition p. 3.) Plaintiff argues that she consented to contract only to the injection of Bellafill into her buttocks and since this action arises out of the injection of silicone into her buttocks, she never consented to any contract applicable to this action. (Id. at p. 4.) Plaintiff additionally argues that the Agreement is invalid because Plaintiff was fraudulently induced to enter it by Dr. Hartleroads misrepresentations that he would inject Bellafill and not silicone into Plaintiffs buttocks. (
Ibid
.)
We find that this action arises, however, from the same medical procedure that the Agreement and accompanying documents and agreements were intended to govern. And, although Plaintiff contends that it is Defendants burden to show that the arbitration agreement is valid because Plaintiffs consent thereto was not induced through fraud, following
Rosenthal v. Great Western Fin. Securities Corp.
,
supra
, 14 Cal.4th 394, at 419, this burden belongs to Plaintiff. Plaintiff has made no showing that Defendants knew that their misrepresentations about the substance to be injected into her buttocks were false, and therefore, Plaintiff has failed to allege all the elements for fraud in the inducement. We therefore find that Plaintiff has failed to meet her burden of showing that Plaintiffs consent was induced through fraud.
3.
The Agreements Identification of Defendants
Plaintiff additionally argues that the Agreement is invalid because its text does not identify Defendants as party to the Agreement. (Opposition p. 5.) She emphasizes that Article 2 of the Agreement, which defines the scope of the Agreement, fails to name either Defendant or Dr. Hartlroad. (Ibid.) This court additionally observes that both Article 1 and the warning a few lines above the signature line refer only to claims of medical malpractice being subject to arbitration, and that the Agreement is not signed by Defendants. (Hartleroad Decl. Exh. 1.)
Neither Party disputes that the Agreement and the accompanying ten pages of documents and agreements together constitute a single contract. We agree with Plaintiff that because Article 2 of the Agreement fails to name Defendants, it does
not
broaden the scope of the Agreements arbitration mandate to cover all existing or subsequent claims or controversies& that rise out of or in any way relate to treatment or services provided by Defendants. Article 2 therefore does not broaden the scope of the Agreements arbitration mandate to cover any of the claims brought in this action. However, Article 1 mandates that any dispute as to medical malpractice, that is as to whether any medical or dental services rendered under this contract were unauthorized or improperly, negligently or incompetently rendered be determined by submission to arbitration and not by a lawsuit or resort to court process. Because we found above that Plaintiffs claims in this action arise from the same medical procedure that the Agreement and its accompanying documents and agreements govern, we find that Article 1 applies to Plaintiffs claims to the extent they fall within Article 1s scope.
This court finds that the Agreement therefore governs only Plaintiffs claims of medical malpractice, as it is defined in Article 1 of the Agreement, and no other claims brought in this action. We consequently find that the Agreement, to the extent that it is enforceable, governs Plaintiffs seventh cause of action for medical malpractice and her eighth cause of action for lack of informed consent. However, we fail to find that an agreement to arbitrate that governs Plaintiffs remaining eighth causes of action in this action exists.
Code of Civil Procedure section 1295, subdivision (a)
Code of Civil Procedure section 1295, subdivision (a) provides,
Any contract for medical services which contains a provision for arbitration of any dispute as to professional negligence of a health care provider shall have such provision as the first article of the contract and shall be expressed in the following language: 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.
Code of Civil Procedure section 1295, subdivision (b) provides,
Immediately before the signature line provided for the individual contracting for the medical services must appear the following in at least 10-point 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.
Under section 1295, arbitration of& professional negligence claims may not be compelled if the requirements of that section are not met. (
Herbert v. Superior Court
(1985) 169 Cal.App.3d 718, 727.)
The certain warnings mandated by Code of Civil Procedure section 1295, subdivisions (a) and (b) differ from the language in the Agreement. The Agreement omits Section 1295s references to California law and misstates the warning above the signature lines reference to Article 1. (Hartleroad Decl. Exh. 1.) We therefore find that the Agreement does not comply with Section 1295s requirements. Consequently, following
Herbert v. Superior Court
,
supra
, 169 Cal.App.3d 718 at 727, arbitration of professional negligence claims may not be compelled pursuant to the Agreement.
Unconscionability
The doctrine of unconscionability applies to arbitration agreements. (
Peng v. First Republic Bank
(2013) 219 Cal.App.4th 1462, 1469.) Civil Code section 1670.5, subdivision (a) provides, If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract.
Unconscionability has both a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results. The prevailing view is that procedural and substantive unconscionability must
both
be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. But they need not be present in the same degree. The more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa. (
Peng v. First Republic Bank
,
supra
, at 1469, internal citations omitted, emphasis original.) Ordinary contracts of adhesion, although they are indispensable facts of modern life that are generally enforced, contain a degree of procedural unconscionability. (
Baltazar v. Forever 21, Inc
. (2016) 62 Cal.4th 1237, 1244.) [W]here a consumer enters into an adhesive contract that mandates arbitration, it is unconscionable to condition that process on the consumer posting fees he or she cannot pay. (
Gutierrez v. Autowest, Inc
. (2003) 114 Cal.App.4th 77, 89.) Additionally, arbitral costs may be unconscionable for other reasons. (Id. at 89, fn. 9.)
Per Code of Civil Procedure section 1295, subdivision (e), [a]ny contract for medical services which contains a provision for arbitration of any dispute as to professional negligence of a health care provider is not a contract of adhesion, nor unconscionable nor otherwise improper where,
inter alia
, it contains the certain language, which warns the signer that they are signing an arbitration agreement, contained in subdivisions (a) and (b) of the same code section.
Code of Civil Procedure section 1284.2 provides, in relevant part, Unless the arbitration agreement otherwise provides or the parties to the arbitration otherwise agree, each party to the arbitration shall pay his pro rata share of the expenses and fees of the neutral arbitrator.
Plaintiff contends that the Agreement is unenforceable because it is unconscionable. (Opposition p. 5.) She argues that the Agreement is procedurally unconscionable because it is an adhesion contract presented on a take-it-or-leave-it basis and because Plaintiff was induced to enter the Agreement by Defendants fraudulent misrepresentations. (Ibid.) And, she argues that the Agreement is substantively unconscionable because it likely imposes such a financial burden on Plaintiff that it leads to the very real possibility that Plaintiff may be deprived of any forum to resolve her claims. (Ibid.)
Plaintiff submits with the Opposition a declaration (the Xifaras Declaration), which she signs under penalty of perjury, that states, On or about May 24, 2022, before I received injections to my buttocks by staff at [Defendant], I was presented with forms to sign. Among the many documents I signed was the agreement that Defendants are claiming requires this case to be arbitrated. I do not recall signing the agreement nor any discussion about this agreement. I was not told that the agreement was optional, and I was not told I could have the agreement reviewed by an attorney or that I could propose any changes whatsoever to the agreement. (Xifaras Decl. ¶ 3.) The Xifaras Declaration also states, I do not have the available funds to pay for such an arbitration; On average, I earn approximately $3000 monthly and my monthly living expenses consume this income; and I have no other assets or property such as retirement accounts, investment accounts, or stocks or bonds. (Xifaras Decl. ¶¶ 46.)
Defendants argue that [b]ased on Plaintiffs financial stance and her ability to pay expensive aesthetic treatments, the cost of arbitration should be shared equally between the Plaintiff and the Defendants, ensuring that neither party is unduly burdened by the financial implications of accessing dispute resolution mechanisms, which is particularly important in the context of medical service agreements where the disparity in resources between the service provider and the client could be significant. (Motion p. 8.) Although Defendants submit declarations with the Motion, they do not describe any financial inability by Defendants to pay for arbitration.
As an initial matter, we observe that because we find above that the Agreement does not comply with Code of Civil Procedure section 1295, subdivisions (a) and (b), Section 1295, subdivision (e) does not apply and does not prevent this court from finding that the Agreement is a contract of adhesion or unconscionable.
Defendant argues that Plaintiff submitted no evidence relating to the specific circumstances surrounding the signing of the [Agreement]. (Reply p. 5.) We disagree because Plaintiff submits the Xifaras Declaration with the Opposition. And, although Defendant observes that [t]here is no evidence that Plaintiff informed any of the Defendants that she was not willing to sign the [Agreement] and that Defendant refused to provide services, Defendant submits no evidence that the Agreement was not an adhesion contract or that Plaintiff was free to decline to sign the Agreement and would have still received services. Following
Sonic-Calabasas A, Inc. v. Moreno
,
supra
, 57 Cal.4th 1109 at 1157, the facts in a motion to compel arbitration such as this Motion are to be proven by affidavit or declaration and documentary evidence.
We find that the Agreement is an adhesion contract. Through the Xifaras Declaration, Plaintiff makes a showing that Plaintiff was not afforded a real opportunity to negotiate, or refuse to sign the Agreement. Further, the Xifaras Declaration states that the Agreement was not explained to Plaintiff so that she could fully understand it, nor was she afforded any opportunity to or advised to consult an attorney before signing it, especially given that the Agreement was first presented to her on the same day as the procedure. This court therefore finds that some amount of procedural unconscionability exists.
We observe that because the Agreement does not reference payment for arbitration, Code of Civil Procedure section 1284.2 would require Parties to equally split the cost of arbitration. Based on the financial status of Plaintiff described in the Xifaras Declaration and in the absence of any showing by Defendants about their ability to afford arbitration, we believe that Plaintiff is unable to afford arbitration. Following
Gutierrez v. Autowest, Inc
., supra, 114 Cal.App.4th 77 at 89, this court finds that because the Agreement is an adhesion contract, forcing Plaintiff to pay for more costly arbitration in order to bring her claims in the face of arbitration costs that she cannot afford is substantively unconscionable.
Defendant argues that Plaintiff bears the burden of showing that arbitration would be prohibitively expensive and that arbitration agreements that require parties to pay their own costs are not necessarily invalid. (Reply pp. 56, citing
Green Tree Financial Corp.-Alabama v. Randolph
(2000) 531 U.S. 79, 9192 and
Vasquez v. Greene Motors, Inc
. (2013) 154 Cal.Rptr.3d 778, 794, rev. granted.) We agree with these propositions but find the cases that Defendant cites distinguishable.
Vasquez v. Greene Motors, Inc
., supra, at 79495 explains that a party arguing the existence of substantive unconscionability on the grounds of excessive arbitration costs must submit evidence of his own financial resources, the reasonably anticipated cost of this particular arbitration, and the amount of the potential award. In
Vasquez v. Greene Motors, Inc
., supra, at 795, the plaintiff provided evidence of none of these items. And in
Green Tree Financial Corp.-Alabama v. Randolph
, supra, at 90, the record contain[ed] hardly any information on the matter [of the plaintiffs costs of going to arbitration]. Here, through the Xifaras and the Hemesath Declarations, Plaintiff has raised evidence of the costs of arbitration and Plaintiffs inability to pay them. Thus, we are satisfied that the evidence in this case exceeds those in
Vasquez v. Greene Motors, Inc
., supra, at 795 and
Green Tree Financial Corp.-Alabama v. Randolph
, supra, at 90 and that Plaintiff has met her evidentiary burden.
Thus, this court finds both that both procedural and substantive unconscionability exist in the Agreement. Additionally, we find sufficient procedural and substantive unconscionability to find that the Agreement should not be enforced.
Conclusion
This court finds that (1) no agreement to arbitrate exists that governs Plaintiffs causes of action, other than the seventh and eighth causes of action, (2) the Agreement does not comply with Section 1295s requirements, and (3) the Agreement is unenforceable because it is unconscionable.
Accordingly, this court DENIES the Motion.
Dated: July 17, 2024 __________________________________ Hon. Eric Harmon
Judge of the Superior Court
