Preview
1 William C. Wilson, SBN: 149683
John T. Tsumura, SBN: 313990
2 Nicholas A. Prukop, SBN: 332177
WILSON GETTY LLP
3 12555 High Bluff Drive, Suite 270
San Diego, California 92130
4 Telephone: 858.847.3237
Facsimile: 858.847.3365
5
Attorneys for Defendants THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT
6 SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING
AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC);
7 FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA
DAVIDSON
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF KERN
11 BILLY CATES, Individually and as Successor- Case No. BCV-22-102864
In-Interest to the Estate of LOIS CATES;
12 BARBARA NEWTON, Individually; and DEFENDANTS’ MEMORANDUM OF
PAUL CATES, Individually, POINTS AND AUTHORITIES IN SUPPORT
13 OF PETITION TO COMPEL ARBITRATION
Plaintiffs, AND STAY PROCEEDINGS
14
vs.
15 Action Filed: October 26, 2022
THE VILLAGE AT SEVEN OAKS AL MC,
16 LLC dba THE VILLAGE AT SEVEN OAKS Judge: Hon. Thomas S. Clark
Dept.: 17
ASSISTED LIVING AND MEMORY CARE;
Trial Date: Not Set
17 SEVEN OAKS AL & MC; OAKMONT
MANAGEMENT GROUP, LLC; OAKMONT
Hearing Date: September 21, 2023
18 SENIOR LIVING, LLC; SAMANTHA Hearing Time: 8:30 a.m.
DAVIDSON; KELLAND LANCASTER; Hearing Dept.: 17
19 DOES 1-50,
20 Defendants.
21
22 Defendants, THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT
23 SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING
24 AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC);
25 FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA
26 DAVIDSON (hereinafter “Defendants”), by and through their counsel, Wilson Getty LLP, hereby file
27 this Memorandum of Points and Authorities in Support of their Petition to Compel Arbitration and Stay
28 Proceedings.
DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 On May 8, 2019, Ms. Lois Cates entered into a contract with the defendant assisted living
3 community known as the Village at Seven Oaks (the “Village”) prior to her admission, which expressly
4 provided that any disputes between them be resolved by arbitration. As demonstrated herein, the
5 arbitration agreement exists and must be enforced.
6 I. FACTUAL BACKGROUND
7 On May 11, 2019, Plaintiff Ms. Lois Cates was admitted as a resident to the Village at Seven
8 Oaks, a Residential Care Facility for the Elderly (“RCFE”), located at 4301 Buena Vista Road,
9 Bakersfield, CA 93311. On May 8, 2019, prior to her admission, Ms. Lois Cates entered into an
10 admission agreement regarding her residency and care at the Village, titled “Memory Care Residence
11 and Care Agreement” (hereinafter the “Admission Agreement”). (See, Admission Agreement, attached
12 to Declaration of Nicholas A. Prukop, as Exhibit A). (All references to exhibits are to exhibits to that
13 Declaration, unless otherwise designated). Ms. Cates was admitted to the memory care area of the
14 Village. (See, First Amended Complaint, Exhibit B, at ¶¶ 20, 33). Her daughter, Ms. Barbara Newton,
15 signed the contract on Ms. Cates’ behalf as her agent and personal representative, after Ms. Cates
16 expressly informed the Village’s former Executive Director, Samantha Davidson, that Barbara Newton
17 had authority to sign on her behalf. (See, Declaration of Ms. Davidson in Support, Exhibit C, at ¶ 8).
18 Plaintiff, Barbara Newton, is a named Party to the Admission Agreement, as Ms. Cates’
19 “Personal Representative.” (Exhibit A, pg. 5). Pursuant to the terms of the Admission Agreement,
20 Barbara Newton made promises, including payment for Ms. Cates’ care and services. (Id., at pg. 29-31,
21 Appendix A). Additionally, Ms. Newton signed an Acknowledgment and Acceptance Form for Ms.
22 Cates’ Service Plan Report, which reads:
23 “This document reflects the agreement of the parties regarding the needs of Resident, regarding
who will be responsible for providing the services to fill those needs, and regarding payment
24 for services to be provided by Community…Resident agrees to pay for the services indicated
above to be provided by Community.” (Exhibit A, at pg. 47-48).
25
26 Ms. Barbara Newton signed this Acknowledgement and Acceptance Form as Ms. Cates’
27 “Responsible Party.” (Id.) In accordance with the terms, invoices were sent to Barbara Newton, and she
28 remitted payment therefore. (See, Declaration of Ms. Davidson in Support, Exhibit C, at ¶ 13).
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DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
1 Section XI.S of the Admission Agreement is a written provision to arbitrate claims or disputes
2 arising from or related to (1) the Admission Agreement, or to (2) Ms. Lois Cates’ residency. (See,
3 Exhibit A, at pg. 25-26 (hereinafter “Arbitration Agreement”)). The Arbitration Agreement provides as
4 follows:
5 “By signing below, you agree that any and all claims and disputes arising from or related to
this Agreement or to your residency, care or services at the Community, whether made against
6 us or any other individual or entity, including, without limitation, personal injury claims, shall
be resolved by submission to neutral, binding arbitration. …
7
8 If someone other than the resident signs this arbitration clause, he/she understands and agrees
that he/she is agreeing to arbitrate on behalf of the resident and on behalf of him/herself as an
9 individual…
10 This arbitration clause binds all parties to this Agreement and their spouse, heirs,
11 representatives, executors, Executive Directors, successors, assigns, managers, and agents as
applicable.” [emphasis added].
12
13 It is notable that this paragraph contains language that courts have interpreted broadly: “arising
14 from or related to.” (See, e.g., Ramos v. Superior Court (2018) 28 Cal.App.5th 1042, 1052 [noting that
15 arbitration agreements using the phrase “arising under or related to” have been construed broadly and
16 that “for a party’s claims to come within the scope of such a clause, the factual allegations of the
17 complaint ‘need only “touch matters” covered by the contract containing the arbitration clause.’”].)
18 Neither Ms. Lois Cates, nor Ms. Barbara Newton, ever raised any objection to the contractual
19 obligations, nor rescinded the Admission Agreement. Indeed, Plaintiffs mention and make certain legal
20 conclusions regarding the Admission Agreement in their First Amended Complaint (Exhibit B, at ¶
21 20). By making these conclusions, the first of Plaintiffs’ allegations --- Elder Abuse --- relies on this
22 very Admission Agreement (Id.).
23 On or about November 3, 2022, Plaintiffs filed suit against Defendants. On or about January 18,
24 2023, Plaintiffs filed their First Amended Complaint against Defendants. (See, Amended Complaint,
25 Exhibit B). Plaintiffs allege claims for Elder Abuse, Negligence, Assault, Battery, Wrongful Death, and
26 Survivorship, arising out of and relating to Ms. Cates’ residency, care, or services at the Village, and
27 from the Admission Agreement (Id.).
28 ///
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DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
1 II. LEGAL ARGUMENT
2 A. The Federal Arbitration Act Governs the Admission Agreement Pursuant to Its
3 Express Language
4 The Federal Arbitration Act, 9 U.S.C. §§ 1-16 (hereinafter “FAA”) governs the parties’
5 Arbitration Agreement:
6 “By signing below, you agree that any and all claims and disputes arising from or related to
this Agreement or to your residency, care or services at the Community, whether made against
7 us or any other individual or entity, including, without limitation, personal injury claims, shall
be resolved by submission to neutral, binding arbitration in accordance with the Federal
8
Arbitration Act.” [emphasis added].
9
10 As is made abundantly clear through the express language of the contract, the Arbitration
11 Agreement is governed by the FAA. (Exhibit A, pg. 25).
12 B. The Federal Arbitration Act Governs the Admission Agreement As A Contract that
13 Involves Commerce
14 Furthermore, the FAA applies to any “contract evidencing a transaction involving commerce.”
15 (9 U.S.C. § 2). “We have interpreted the term ‘involving commerce’ in the FAA as the functional
16 equivalent of the more familiar term ‘affecting commerce’ – words of art that ordinarily signal the
17 broadest permissible exercise of Congress’ Commerce Clause power.” (Citizens Bank v. Alafabco, Inc.,
18 539 U.S. 52, 56 (2003) (per curiam), citing Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 273-
19 74 (1995)). Indeed, the FAA provides for “the enforcement of arbitration agreements within the full
20 reach of the Commerce Clause.” (Perry v. Thomas, 482 U.S. 483, 490 (1987)). Therefore, consistent
21 with the broad application of the Commerce Clause powers, the FAA applies to make enforceable an
22 arbitration provision included in a contract “‘without showing any specific effect upon interstate
23 commerce’ if in the aggregate the economic activity in question would represent ‘a general
24 practice…subject to federal control.’” (Citizens Bank, 539 U.S. at 56-57, quoting Mandeville Island
25 Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236 (1948)).
26 The United States Supreme Court found the provision of healthcare services in a local market to
27 be “unquestionably engaged in interstate commerce” in an antitrust matter. (Summit Health, Ltd. v.
28 Pinhas, 500 U.S. 322, 329 (1991)). Although noting any actual impact on interstate commerce would
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DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
1 be “indirect” and “fortuitous,” “as a ‘matter of practical economics,’” the hospital’s purchases of out-
2 of-state medicines and supplies, as well as its revenues from out-of-state insurance companies
3 established the necessary interstate nexus. (Id. [citations omitted]).
4 Much like a nursing home, an assisted living community must transact business with numerous
5 out-of-state vendors in the operation of the facility and provision of care. Here, from food service,
6 medical supplies, furniture, insurance, telecommunications, medical waste disposal, and other
7 contracted services and supplies, a significant portion of the Village’s business is transacted with
8 vendors located outside the State of California. Without its relationships with these out-of-state
9 vendors, the Village could not have provided assisted living services to Ms. Cates. Furthermore, the
10 Village receives new residents from out-of-state, receives payment for care from out-of-state,
11 advertises its services via the internet, and communicates with residents’ family and representatives
12 from out-of-state. (See, Declaration of Ms. Davidson in Support, Exhibit C, at ¶ 14).
13 In addition, Plaintiffs’ First Amended Complaint alleges that the Village is obligated under
14 federal law to adequately staff and train employees at the Community (See, Exhibit B, at ¶ 44). In
15 doing so, Plaintiffs’ own allegations support the obvious conclusion that the transaction underlying the
16 parties’ Arbitration Agreement involves commerce and is governed by the FAA.
17 In Estate of Anna Ruszala, ex rel. Mizerak v. Brookdale Living Communities, Inc., 415 N.J.
18 Super. 272, 288-292 (N.J. App. Div. 2012), the New Jersey appellate court found that the procurement
19 of out-of-state food, medicine, and medical equipment left “little doubt” that two assisted living
20 facilities engaged in interstate commerce within the meaning of FAA Section 2. (See also, Lovelady v.
21 Five Star Quality Care-VA, LLC, 2018 U.S. Dist. LEXIS 125414 (E.D. Va.), at 23-24 [finding an
22 assisted living facility engaged in interstate commerce, relying in part on the provision of care to out-
23 of-state customers and purchases of goods from out-of-state vendors]; STV One Nineteen Senior Living,
24 LLC v. Boyd, 258 So. 3d 322, 324 (Ala. 2018)).
25 In Scott v. Yoho (2016) 248 Cal. App. 4th 392, 401-402, the Second Appellate District clearly
26 expresses the view that a medical practice established a “sufficient nexus with interstate commerce to
27 require enforcement of the … arbitration agreement[] under the Federal Arbitration Act,” where that
28 practice (1) receives supplies from outside the state, (2) advertises on the internet, (3) communicates
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DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
1 with out-of-state patients, (4) receives patients from outside the state, and (5) has contacts with out-of-
2 state companies. The operation of the Village meets every element set forth in Scott v. Yoho. (Exhibit
3 C, ¶ 14).
4 The FAA requires the enforcement of written provisions in any “contract evidencing a
5 transaction involving commerce to settle by arbitration a controversy thereafter arising out of such
6 contract.” (9 U.S.C. § 2). Such a provision “shall be valid, irrevocable, and enforceable, save upon such
7 grounds as exist at law or in equity for the revocation of any contract.” (Id. [emphasis added]). “The
8 statute’s text includes no exception for personal-injury or wrongful death claims. It ‘requires courts to
9 enforce the bargain of the parties to arbitrate.’” (Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530,
10 532-533 (2012)). And state courts must enforce the Federal Arbitration Act. (Id., at 530-531).
11 “Section 2 is a congressional declaration of a liberal policy favoring arbitration agreements,
12 notwithstanding any state substantive or procedural policies to the contrary.” (Moses H. Cone Mem.
13 Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). In passing the FAA, Congress intended to
14 move parties to arbitration “as quickly and easily as possible” through the “rapid and unobstructed
15 enforcement of arbitration agreements.” (Id., at 22-23).
16 The United States Supreme Court has concluded that the FAA pre-empts state laws and held
17 that state courts cannot apply state statutes that invalidate arbitration agreements. (Southland Corp. v.
18 Keating, 465 U.S. 1, 15-16 (1984)). The Supreme Court reinforced this holding in determining that,
19 “state law, whether of legislative or judicial origin, is applicable if that law arose to govern issues
20 concerning the validity, revocability, and enforceability of contracts generally. A state-law principle
21 that takes its meaning precisely from the fact that a contract to arbitrate is at issue does not comport
22 with this requirement of § 2.” (Perry v. Thomas, 482 U.S. 483, 492, fn. 9 (1987) [italics in original,
23 underline added]).
24 Ten years later, the Supreme Court declined to reconsider the Southland holding, noting that
25 Congress had subsequently enacted legislation extending, not retracting, the scope of arbitration.
26 (Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 272-273 (1995)). The following year, the
27 Court reiterated this position, noting, “a court may not ‘rely on the uniqueness of an agreement to
28 arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would
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DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
1 enable the court to effect what the state legislature cannot.’” (Doctor’s Assocs. v. Casarotto, 517 U.S.
2 681, 687, n. 3 (1996), quoting Perry, 482 U.S. at 492, n. 9).
3 “The basic purpose of the FAA is to overcome courts’ refusals to enforce agreements to
4 arbitrate.” (Dobson, 513 U.S. at 270 [citation omitted]). Congress, by enacting the FAA, “intended
5 courts to ‘enforce [arbitration] agreements into which parties had entered,’ and to place such
6 agreements ‘upon the same footing as other contracts.’” (Dobson, 513 U.S. at 271, quoting Volt Info.
7 Scis, Inc. v. Bd. of Trs., 489 U.S. 468, 474 (1989)). Thus:
8 States may regulate contracts, including arbitration clauses, under general contract law
principles and they may invalidate an arbitration clause “upon such grounds as exist at law or
9 in equity for the revocation of any contract.” What States may not do is decide that a contract
is fair enough to enforce all its basic terms (price, service, credit), but not fair enough to
10
enforce its arbitration clause. The Act makes any such state policy unlawful, for that kind of
11 policy would place arbitration clauses on an unequal “footing,” directly contrary to the Act’s
language and Congress’ intent. (Dobson, 513 U.S. at 281 (internal citations omitted)
12 [emphasis in original]).
13 California courts have likewise recognized the preemptive effect of the FAA. In Scott v. Yoho
14 (2016) 248 Cal. App. 4th 392, the Second District agreed with the premise that “state laws which
15 interfere with the federally mandated policy favoring arbitration are unenforceable.” (Id., at 405).
16 Because the California statute requiring a 30-day right of rescission in medical malpractice arbitration
17 agreements, Cal Code Civ Proc § 1295(c), is not one that “exists generally under California contract
18 law and applies only in connection with arbitration,” that statute is preempted by the Federal
19 Arbitration Act.
20 C. Ms. Barbara Newton Acted with Actual Agency When Signing Arbitration Agreement
21 On May 8, 2019, prior to her admission, Ms. Lois Cates entered into the Admission Agreement
22 regarding her admission and care at the Village, by having her daughter, Ms. Barbara Newton, sign the
23 documents as her “Personal Representative.” (Admission Agreement, Exhibit A, at pg. 5). At the time
24 of signing, the entire Admission Agreement, including the arbitration clause, was explained in great
25 detail to both Ms. Cates and Ms. Newton by the Village Executive Director, Ms. Samantha Davidson.
26 (Declaration of Ms. Davidson, Exhibit C, ¶¶ 4-9).
27 It is clear that Ms. Newton had actual authority to sign the Admission Agreement on behalf of
28 her mother, Ms. Lois Cates, for a variety of reasons. First and foremost, Ms. Cates expressly agreed to
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DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
1 allow Ms. Newton to sign on her behalf by representing as such to Ms. Davidson. (Declaration of Ms.
2 Davidson, ¶ 8). In doing so, Ms. Cates explicitly consented to Ms. Newton signing all her admission
3 paperwork, and agreed to be bound by her signature. By presenting Ms. Davidson’s contemporaneous
4 declaration stating that Ms. Cates agreed that Ms. Newton could sign the admission paperwork on her
5 behalf, Defendants have presented evidence that Plaintiffs made statements that caused Defendants to
6 believe that an agency relationship existed. (Declaration of Ms. Davidson, Exhibit C).
7 Secondly, Ms. Newton signed the Admission Agreement in several places that indicated she
8 had full authority as Ms. Cates’ agent to enter into the Agreement. Including the two previously-quoted
9 Admission Agreement clauses, Ms. Newton signed for Ms. Cates as her Personal Representative on
10 twelve (12) separate signature lines, explicitly communicating to Ms. Davidson and the community that
11 she had authority to act on behalf of her mother. (Exhibit A, pgs. 5, 22, 26, 28, 31, 34, 35, 43-46, 48).
12 Finally, not only did Ms. Newton agree to arbitrate all claims brought by her mother as her
13 personal representative or successor in interest, but she also agreed to arbitrate all claims that she may
14 have individually:
15 “If someone other than the resident signs this arbitration clause, he/she understands and agrees
that he/she is agreeing to arbitrate on behalf of the resident and on behalf of him/herself as an
16 individual…” (Exhibit A, pg. 25 [emphasis added]).
17
18 As is evidenced throughout this Petition, the Arbitration Agreement signed and consented to by
19 Ms. Barbara Newton is extremely clear in its language, and plainly anticipates a Personal
20 Representative as a potential signatory. By reading and then signing the Admission Agreement, as well
21 as the Arbitration Agreement contained therein, Ms. Newton agreed to act on both her mother’s behalf
22 and her own, while accepting arbitration as the appropriate venue for any future claims.
23 D. Ms. Barbara Newton Acted with Ostensible Agency When Signing Arbitration
24 Agreement
25 If the court were to find that Ms. Newton lacked actual agency to bind her mother to the
26 admission paperwork with the Village, she certainly had ostensible agency to do so.
27 “Ostensible authority is created when the acts of the principal, either intentionally or by want
of ordinary care, cause a third person to believe another to be the agent of the principal (Civ.
28 Code, § 2300; 2 Witkin, Summary of Cal. Law (9th ed. 1987) Agency and Employment, § 40,
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DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
1 p. 52)… “Ostensible agency cannot be established by the representations or conduct of the
purported agent; the statements or acts of the principal must be such as to cause the third party
2 to believe that the agency exists.” (2 Witkin, Summary of Cal. Law, supra, Agency and
Employment, § 40, p. 53. Italics in original). (Milrot v. Stamper Medical Corp. (1996) 44
3
Cal.App.4th 182, 187).
4
5 As was just discussed, Ms. Cates’ intentional acts caused Ms. Davidson to believe that Ms.
6 Newton was her agent. (Exhibit C, ¶ 8). Furthermore, Ms. Newton, in signing all the admissions
7 paperwork and otherwise assisting with beginning her mother’s residency at the Village, represented to
8 Ms. Davidson that she was acting as Ms. Cates’ personal representative and had the authority to sign on
9 her mother’s behalf. (Decl. of Ms. Davidson, ¶¶ 8-9). Ms. Davidson relied on the representations of
10 Ms. Cates and Ms. Newton throughout the admissions process, a reasonable reliance given the familial
11 relationship between the two individuals and the actions of both. (Decl. of Ms. Davidson, ¶ 10). Again,
12 the contemporaneous Declaration of Ms. Davidson filed with this Petition serves as prima facie
13 evidence that Plaintiffs made statements and acted in ways that caused Ms. Davidson, and thus
14 Defendants, to believe an agency relationship existed.
15 E. Defendants Have Produced Prima Facie Evidence of An Agreement to Arbitrate.
16 Defendants have produced prima facie evidence of the existence of a written agreement to
17 arbitrate Plaintiffs’ claims. Thus, if Plaintiffs raise any defenses to enforcement of that agreement,
18 Plaintiffs bear “the burden of producing evidence of, and proving by a preponderance of the evidence,
19 any fact necessary to the defense.” (Rosenthal v. Great Western Fin. Sec. Corp. (1996) 14 Cal. 4th 394,
20 413).
21 Plaintiffs have conceded the existence of the Admission Agreement containing the Arbitration
22 Agreement, and rely upon the Admission Agreement for at least one cause of action. (Exhibit B, at ¶
23 20). Furthermore, Plaintiffs’ remaining causes of action stem entirely from the relationship created by
24 the Admission Agreement. Plaintiffs are therefore estopped to deny its existence. (Metalclad Corp. v.
25 Ventana Env’l Org. P’ship (2003) 109 Cal.App.4th 1705, 1719 (“[h]e who takes the benefit must bear
26 the burden,” citing Cal. Civ. Code § 3521); Boucher v. Alliance Title Co., Inc. (2005) 127 Cal. App. 4th
27 262, 272 (“a party may not make use of a contract containing an arbitration clause and then attempt to
28 avoid the duty to arbitrate by defining the forum in which the dispute will be resolved.”)).
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DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
1 F. Plaintiffs’ Claims are within the Scope of the Arbitration Agreement.
2 The scope of the Arbitration Agreement expressly requires that “any and all claims and disputes
3 arising from or related to this Agreement, or to [Ms. Cates’] residency, care or services” be arbitrated.
4 (See, Exhibit A, at pg. 25). Plaintiffs’ First Amended Complaint contains allegations of Elder Abuse,
5 Negligence, Assault, Battery, Wrongful Death, and Survivorship against the Defendants. (See, First
6 Amended Complaint, Exhibit B). Clearly, this lawsuit involves disputes arising out of and relating only
7 to the admission of Ms. Lois Cates to the Village, and therefore, is subject to the Admission Agreement
8 and included Arbitration Agreement. (See, e.g., Ramos, supra, at 1052 [noting that arbitration
9 agreements using the phrase “arising under or related to” have been construed broadly and that “for a
10 party’s claims to come within the scope of such a clause, the factual allegations of the complaint ‘need
11 only “touch matters” covered by the contract containing the arbitration clause.’”].)
12 Although there should be no doubt regarding the arbitrability of Plaintiffs’ claims, “any doubts
13 concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the
14 problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a
15 like defense to arbitrability.” (Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. 460 U.S. 1, 24-25
16 (1983)).
17 Under California law, “doubts as to the scope of an agreement to arbitrate are to be resolved in
18 favor of arbitration.” (Molecular Analytical Syst. v. Ciphergen Biosystems, Inc. (2010) 186 Cal. App.
19 4th 696, 705). And, “[t]he party opposing arbitration has the burden of showing that the agreement, as
20 properly interpreted, does not apply to the dispute.” (Id.).
21 III. CONCLUSION
22 The Admission Agreement, and the Arbitration Agreement included therein, executed by Ms.
23 Lois Cates and Ms. Barbara Newton binds Plaintiffs to submit any dispute arising out of or relating to
24 Ms. Lois Cates’ stay at the Village to binding arbitration. Federal law preempts state law in this area
25 and requires the enforcement of written arbitration provisions that relate to transactions involving
26 interstate commerce, which this contract clearly does. The arbitration provision represents a valid
27 contract to submit the parties’ disputes to arbitration, and there is no basis under California law to void
28 such a contract. Therefore, Plaintiffs are bound to that agreement to arbitrate, and the applicable law
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DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
1 requires its enforcement. Defendants pray this Court enforce arbitration of Plaintiffs’ claims and stay
2 proceedings.
3
4 August 16, 2023
Dated: ________________ WILSON GETTY LLP
5
6 By: ___________________________________
William C. Wilson
7 John T. Tsumura
Nicholas A. Prukop
8
Attorneys for Defendants THE VILLAGE AT SEVEN
9 OAKS AL MC, LLC dba THE VILLAGE AT SEVEN
OAKS ASSISTED LIVING AND MEMORY CARE;
10 SEVEN OAK ASSISTED LIVING AND MEMORY
CARE LLC (erroneously sued and served as SEVEN
11 OAKS AL & MC); FRONTIER MANAGEMENT LLC,
FRONTIER SENIOR LIVING, LLC and SAMANTHA
12 DAVIDSON
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DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
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1 William C. Wilson, SBN: 149683 John T. Tsumura, SBN: 313990 2 Nicholas A. Prukop, SBN: 332177 WILSON GETTY LLP 3 12555 High Bluff Drive, Suite 270 San Diego, California 92130 4 Telephone: 858.847.3237 Facsimile: 858.847.3365 5 Attorneys for Defendants THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT 6 SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); 7 FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA DAVIDSON 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF KERN 11 BILLY CATES, Individually and as Successor- Case No. BCV-22-102864 In-Interest to the Estate of LOIS CATES; 12 BARBARA NEWTON, Individually; and DEFENDANTS’ MEMORANDUM OF PAUL CATES, Individually, POINTS AND AUTHORITIES IN SUPPORT 13 OF PETITION TO COMPEL ARBITRATION Plaintiffs, AND STAY PROCEEDINGS 14 vs. 15 Action Filed: October 26, 2022 THE VILLAGE AT SEVEN OAKS AL MC, 16 LLC dba THE VILLAGE AT SEVEN OAKS Judge: Hon. Thomas S. Clark Dept.: 17 ASSISTED LIVING AND MEMORY CARE; Trial Date: Not Set 17 SEVEN OAKS AL & MC; OAKMONT MANAGEMENT GROUP, LLC; OAKMONT Hearing Date: September 21, 2023 18 SENIOR LIVING, LLC; SAMANTHA Hearing Time: 8:30 a.m. DAVIDSON; KELLAND LANCASTER; Hearing Dept.: 17 19 DOES 1-50, 20 Defendants. 21 22 Defendants, THE VILLAGE AT SEVEN OAKS AL MC, LLC dba THE VILLAGE AT 23 SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; SEVEN OAK ASSISTED LIVING 24 AND MEMORY CARE LLC (erroneously sued and served as SEVEN OAKS AL & MC); 25 FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA 26 DAVIDSON (hereinafter “Defendants”), by and through their counsel, Wilson Getty LLP, hereby file 27 this Memorandum of Points and Authorities in Support of their Petition to Compel Arbitration and Stay 28 Proceedings. DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 On May 8, 2019, Ms. Lois Cates entered into a contract with the defendant assisted living 3 community known as the Village at Seven Oaks (the “Village”) prior to her admission, which expressly 4 provided that any disputes between them be resolved by arbitration. As demonstrated herein, the 5 arbitration agreement exists and must be enforced. 6 I. FACTUAL BACKGROUND 7 On May 11, 2019, Plaintiff Ms. Lois Cates was admitted as a resident to the Village at Seven 8 Oaks, a Residential Care Facility for the Elderly (“RCFE”), located at 4301 Buena Vista Road, 9 Bakersfield, CA 93311. On May 8, 2019, prior to her admission, Ms. Lois Cates entered into an 10 admission agreement regarding her residency and care at the Village, titled “Memory Care Residence 11 and Care Agreement” (hereinafter the “Admission Agreement”). (See, Admission Agreement, attached 12 to Declaration of Nicholas A. Prukop, as Exhibit A). (All references to exhibits are to exhibits to that 13 Declaration, unless otherwise designated). Ms. Cates was admitted to the memory care area of the 14 Village. (See, First Amended Complaint, Exhibit B, at ¶¶ 20, 33). Her daughter, Ms. Barbara Newton, 15 signed the contract on Ms. Cates’ behalf as her agent and personal representative, after Ms. Cates 16 expressly informed the Village’s former Executive Director, Samantha Davidson, that Barbara Newton 17 had authority to sign on her behalf. (See, Declaration of Ms. Davidson in Support, Exhibit C, at ¶ 8). 18 Plaintiff, Barbara Newton, is a named Party to the Admission Agreement, as Ms. Cates’ 19 “Personal Representative.” (Exhibit A, pg. 5). Pursuant to the terms of the Admission Agreement, 20 Barbara Newton made promises, including payment for Ms. Cates’ care and services. (Id., at pg. 29-31, 21 Appendix A). Additionally, Ms. Newton signed an Acknowledgment and Acceptance Form for Ms. 22 Cates’ Service Plan Report, which reads: 23 “This document reflects the agreement of the parties regarding the needs of Resident, regarding who will be responsible for providing the services to fill those needs, and regarding payment 24 for services to be provided by Community…Resident agrees to pay for the services indicated above to be provided by Community.” (Exhibit A, at pg. 47-48). 25 26 Ms. Barbara Newton signed this Acknowledgement and Acceptance Form as Ms. Cates’ 27 “Responsible Party.” (Id.) In accordance with the terms, invoices were sent to Barbara Newton, and she 28 remitted payment therefore. (See, Declaration of Ms. Davidson in Support, Exhibit C, at ¶ 13). 1 DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS 1 Section XI.S of the Admission Agreement is a written provision to arbitrate claims or disputes 2 arising from or related to (1) the Admission Agreement, or to (2) Ms. Lois Cates’ residency. (See, 3 Exhibit A, at pg. 25-26 (hereinafter “Arbitration Agreement”)). The Arbitration Agreement provides as 4 follows: 5 “By signing below, you agree that any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at the Community, whether made against 6 us or any other individual or entity, including, without limitation, personal injury claims, shall be resolved by submission to neutral, binding arbitration. … 7 8 If someone other than the resident signs this arbitration clause, he/she understands and agrees that he/she is agreeing to arbitrate on behalf of the resident and on behalf of him/herself as an 9 individual… 10 This arbitration clause binds all parties to this Agreement and their spouse, heirs, 11 representatives, executors, Executive Directors, successors, assigns, managers, and agents as applicable.” [emphasis added]. 12 13 It is notable that this paragraph contains language that courts have interpreted broadly: “arising 14 from or related to.” (See, e.g., Ramos v. Superior Court (2018) 28 Cal.App.5th 1042, 1052 [noting that 15 arbitration agreements using the phrase “arising under or related to” have been construed broadly and 16 that “for a party’s claims to come within the scope of such a clause, the factual allegations of the 17 complaint ‘need only “touch matters” covered by the contract containing the arbitration clause.’”].) 18 Neither Ms. Lois Cates, nor Ms. Barbara Newton, ever raised any objection to the contractual 19 obligations, nor rescinded the Admission Agreement. Indeed, Plaintiffs mention and make certain legal 20 conclusions regarding the Admission Agreement in their First Amended Complaint (Exhibit B, at ¶ 21 20). By making these conclusions, the first of Plaintiffs’ allegations --- Elder Abuse --- relies on this 22 very Admission Agreement (Id.). 23 On or about November 3, 2022, Plaintiffs filed suit against Defendants. On or about January 18, 24 2023, Plaintiffs filed their First Amended Complaint against Defendants. (See, Amended Complaint, 25 Exhibit B). Plaintiffs allege claims for Elder Abuse, Negligence, Assault, Battery, Wrongful Death, and 26 Survivorship, arising out of and relating to Ms. Cates’ residency, care, or services at the Village, and 27 from the Admission Agreement (Id.). 28 /// -2- DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS 1 II. LEGAL ARGUMENT 2 A. The Federal Arbitration Act Governs the Admission Agreement Pursuant to Its 3 Express Language 4 The Federal Arbitration Act, 9 U.S.C. §§ 1-16 (hereinafter “FAA”) governs the parties’ 5 Arbitration Agreement: 6 “By signing below, you agree that any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at the Community, whether made against 7 us or any other individual or entity, including, without limitation, personal injury claims, shall be resolved by submission to neutral, binding arbitration in accordance with the Federal 8 Arbitration Act.” [emphasis added]. 9 10 As is made abundantly clear through the express language of the contract, the Arbitration 11 Agreement is governed by the FAA. (Exhibit A, pg. 25). 12 B. The Federal Arbitration Act Governs the Admission Agreement As A Contract that 13 Involves Commerce 14 Furthermore, the FAA applies to any “contract evidencing a transaction involving commerce.” 15 (9 U.S.C. § 2). “We have interpreted the term ‘involving commerce’ in the FAA as the functional 16 equivalent of the more familiar term ‘affecting commerce’ – words of art that ordinarily signal the 17 broadest permissible exercise of Congress’ Commerce Clause power.” (Citizens Bank v. Alafabco, Inc., 18 539 U.S. 52, 56 (2003) (per curiam), citing Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 273- 19 74 (1995)). Indeed, the FAA provides for “the enforcement of arbitration agreements within the full 20 reach of the Commerce Clause.” (Perry v. Thomas, 482 U.S. 483, 490 (1987)). Therefore, consistent 21 with the broad application of the Commerce Clause powers, the FAA applies to make enforceable an 22 arbitration provision included in a contract “‘without showing any specific effect upon interstate 23 commerce’ if in the aggregate the economic activity in question would represent ‘a general 24 practice…subject to federal control.’” (Citizens Bank, 539 U.S. at 56-57, quoting Mandeville Island 25 Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236 (1948)). 26 The United States Supreme Court found the provision of healthcare services in a local market to 27 be “unquestionably engaged in interstate commerce” in an antitrust matter. (Summit Health, Ltd. v. 28 Pinhas, 500 U.S. 322, 329 (1991)). Although noting any actual impact on interstate commerce would -3- DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS 1 be “indirect” and “fortuitous,” “as a ‘matter of practical economics,’” the hospital’s purchases of out- 2 of-state medicines and supplies, as well as its revenues from out-of-state insurance companies 3 established the necessary interstate nexus. (Id. [citations omitted]). 4 Much like a nursing home, an assisted living community must transact business with numerous 5 out-of-state vendors in the operation of the facility and provision of care. Here, from food service, 6 medical supplies, furniture, insurance, telecommunications, medical waste disposal, and other 7 contracted services and supplies, a significant portion of the Village’s business is transacted with 8 vendors located outside the State of California. Without its relationships with these out-of-state 9 vendors, the Village could not have provided assisted living services to Ms. Cates. Furthermore, the 10 Village receives new residents from out-of-state, receives payment for care from out-of-state, 11 advertises its services via the internet, and communicates with residents’ family and representatives 12 from out-of-state. (See, Declaration of Ms. Davidson in Support, Exhibit C, at ¶ 14). 13 In addition, Plaintiffs’ First Amended Complaint alleges that the Village is obligated under 14 federal law to adequately staff and train employees at the Community (See, Exhibit B, at ¶ 44). In 15 doing so, Plaintiffs’ own allegations support the obvious conclusion that the transaction underlying the 16 parties’ Arbitration Agreement involves commerce and is governed by the FAA. 17 In Estate of Anna Ruszala, ex rel. Mizerak v. Brookdale Living Communities, Inc., 415 N.J. 18 Super. 272, 288-292 (N.J. App. Div. 2012), the New Jersey appellate court found that the procurement 19 of out-of-state food, medicine, and medical equipment left “little doubt” that two assisted living 20 facilities engaged in interstate commerce within the meaning of FAA Section 2. (See also, Lovelady v. 21 Five Star Quality Care-VA, LLC, 2018 U.S. Dist. LEXIS 125414 (E.D. Va.), at 23-24 [finding an 22 assisted living facility engaged in interstate commerce, relying in part on the provision of care to out- 23 of-state customers and purchases of goods from out-of-state vendors]; STV One Nineteen Senior Living, 24 LLC v. Boyd, 258 So. 3d 322, 324 (Ala. 2018)). 25 In Scott v. Yoho (2016) 248 Cal. App. 4th 392, 401-402, the Second Appellate District clearly 26 expresses the view that a medical practice established a “sufficient nexus with interstate commerce to 27 require enforcement of the … arbitration agreement[] under the Federal Arbitration Act,” where that 28 practice (1) receives supplies from outside the state, (2) advertises on the internet, (3) communicates -4- DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS 1 with out-of-state patients, (4) receives patients from outside the state, and (5) has contacts with out-of- 2 state companies. The operation of the Village meets every element set forth in Scott v. Yoho. (Exhibit 3 C, ¶ 14). 4 The FAA requires the enforcement of written provisions in any “contract evidencing a 5 transaction involving commerce to settle by arbitration a controversy thereafter arising out of such 6 contract.” (9 U.S.C. § 2). Such a provision “shall be valid, irrevocable, and enforceable, save upon such 7 grounds as exist at law or in equity for the revocation of any contract.” (Id. [emphasis added]). “The 8 statute’s text includes no exception for personal-injury or wrongful death claims. It ‘requires courts to 9 enforce the bargain of the parties to arbitrate.’” (Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530, 10 532-533 (2012)). And state courts must enforce the Federal Arbitration Act. (Id., at 530-531). 11 “Section 2 is a congressional declaration of a liberal policy favoring arbitration agreements, 12 notwithstanding any state substantive or procedural policies to the contrary.” (Moses H. Cone Mem. 13 Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). In passing the FAA, Congress intended to 14 move parties to arbitration “as quickly and easily as possible” through the “rapid and unobstructed 15 enforcement of arbitration agreements.” (Id., at 22-23). 16 The United States Supreme Court has concluded that the FAA pre-empts state laws and held 17 that state courts cannot apply state statutes that invalidate arbitration agreements. (Southland Corp. v. 18 Keating, 465 U.S. 1, 15-16 (1984)). The Supreme Court reinforced this holding in determining that, 19 “state law, whether of legislative or judicial origin, is applicable if that law arose to govern issues 20 concerning the validity, revocability, and enforceability of contracts generally. A state-law principle 21 that takes its meaning precisely from the fact that a contract to arbitrate is at issue does not comport 22 with this requirement of § 2.” (Perry v. Thomas, 482 U.S. 483, 492, fn. 9 (1987) [italics in original, 23 underline added]). 24 Ten years later, the Supreme Court declined to reconsider the Southland holding, noting that 25 Congress had subsequently enacted legislation extending, not retracting, the scope of arbitration. 26 (Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 272-273 (1995)). The following year, the 27 Court reiterated this position, noting, “a court may not ‘rely on the uniqueness of an agreement to 28 arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would -5- DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS 1 enable the court to effect what the state legislature cannot.’” (Doctor’s Assocs. v. Casarotto, 517 U.S. 2 681, 687, n. 3 (1996), quoting Perry, 482 U.S. at 492, n. 9). 3 “The basic purpose of the FAA is to overcome courts’ refusals to enforce agreements to 4 arbitrate.” (Dobson, 513 U.S. at 270 [citation omitted]). Congress, by enacting the FAA, “intended 5 courts to ‘enforce [arbitration] agreements into which parties had entered,’ and to place such 6 agreements ‘upon the same footing as other contracts.’” (Dobson, 513 U.S. at 271, quoting Volt Info. 7 Scis, Inc. v. Bd. of Trs., 489 U.S. 468, 474 (1989)). Thus: 8 States may regulate contracts, including arbitration clauses, under general contract law principles and they may invalidate an arbitration clause “upon such grounds as exist at law or 9 in equity for the revocation of any contract.” What States may not do is decide that a contract is fair enough to enforce all its basic terms (price, service, credit), but not fair enough to 10 enforce its arbitration clause. The Act makes any such state policy unlawful, for that kind of 11 policy would place arbitration clauses on an unequal “footing,” directly contrary to the Act’s language and Congress’ intent. (Dobson, 513 U.S. at 281 (internal citations omitted) 12 [emphasis in original]). 13 California courts have likewise recognized the preemptive effect of the FAA. In Scott v. Yoho 14 (2016) 248 Cal. App. 4th 392, the Second District agreed with the premise that “state laws which 15 interfere with the federally mandated policy favoring arbitration are unenforceable.” (Id., at 405). 16 Because the California statute requiring a 30-day right of rescission in medical malpractice arbitration 17 agreements, Cal Code Civ Proc § 1295(c), is not one that “exists generally under California contract 18 law and applies only in connection with arbitration,” that statute is preempted by the Federal 19 Arbitration Act. 20 C. Ms. Barbara Newton Acted with Actual Agency When Signing Arbitration Agreement 21 On May 8, 2019, prior to her admission, Ms. Lois Cates entered into the Admission Agreement 22 regarding her admission and care at the Village, by having her daughter, Ms. Barbara Newton, sign the 23 documents as her “Personal Representative.” (Admission Agreement, Exhibit A, at pg. 5). At the time 24 of signing, the entire Admission Agreement, including the arbitration clause, was explained in great 25 detail to both Ms. Cates and Ms. Newton by the Village Executive Director, Ms. Samantha Davidson. 26 (Declaration of Ms. Davidson, Exhibit C, ¶¶ 4-9). 27 It is clear that Ms. Newton had actual authority to sign the Admission Agreement on behalf of 28 her mother, Ms. Lois Cates, for a variety of reasons. First and foremost, Ms. Cates expressly agreed to -6- DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS 1 allow Ms. Newton to sign on her behalf by representing as such to Ms. Davidson. (Declaration of Ms. 2 Davidson, ¶ 8). In doing so, Ms. Cates explicitly consented to Ms. Newton signing all her admission 3 paperwork, and agreed to be bound by her signature. By presenting Ms. Davidson’s contemporaneous 4 declaration stating that Ms. Cates agreed that Ms. Newton could sign the admission paperwork on her 5 behalf, Defendants have presented evidence that Plaintiffs made statements that caused Defendants to 6 believe that an agency relationship existed. (Declaration of Ms. Davidson, Exhibit C). 7 Secondly, Ms. Newton signed the Admission Agreement in several places that indicated she 8 had full authority as Ms. Cates’ agent to enter into the Agreement. Including the two previously-quoted 9 Admission Agreement clauses, Ms. Newton signed for Ms. Cates as her Personal Representative on 10 twelve (12) separate signature lines, explicitly communicating to Ms. Davidson and the community that 11 she had authority to act on behalf of her mother. (Exhibit A, pgs. 5, 22, 26, 28, 31, 34, 35, 43-46, 48). 12 Finally, not only did Ms. Newton agree to arbitrate all claims brought by her mother as her 13 personal representative or successor in interest, but she also agreed to arbitrate all claims that she may 14 have individually: 15 “If someone other than the resident signs this arbitration clause, he/she understands and agrees that he/she is agreeing to arbitrate on behalf of the resident and on behalf of him/herself as an 16 individual…” (Exhibit A, pg. 25 [emphasis added]). 17 18 As is evidenced throughout this Petition, the Arbitration Agreement signed and consented to by 19 Ms. Barbara Newton is extremely clear in its language, and plainly anticipates a Personal 20 Representative as a potential signatory. By reading and then signing the Admission Agreement, as well 21 as the Arbitration Agreement contained therein, Ms. Newton agreed to act on both her mother’s behalf 22 and her own, while accepting arbitration as the appropriate venue for any future claims. 23 D. Ms. Barbara Newton Acted with Ostensible Agency When Signing Arbitration 24 Agreement 25 If the court were to find that Ms. Newton lacked actual agency to bind her mother to the 26 admission paperwork with the Village, she certainly had ostensible agency to do so. 27 “Ostensible authority is created when the acts of the principal, either intentionally or by want of ordinary care, cause a third person to believe another to be the agent of the principal (Civ. 28 Code, § 2300; 2 Witkin, Summary of Cal. Law (9th ed. 1987) Agency and Employment, § 40, -7- DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS 1 p. 52)… “Ostensible agency cannot be established by the representations or conduct of the purported agent; the statements or acts of the principal must be such as to cause the third party 2 to believe that the agency exists.” (2 Witkin, Summary of Cal. Law, supra, Agency and Employment, § 40, p. 53. Italics in original). (Milrot v. Stamper Medical Corp. (1996) 44 3 Cal.App.4th 182, 187). 4 5 As was just discussed, Ms. Cates’ intentional acts caused Ms. Davidson to believe that Ms. 6 Newton was her agent. (Exhibit C, ¶ 8). Furthermore, Ms. Newton, in signing all the admissions 7 paperwork and otherwise assisting with beginning her mother’s residency at the Village, represented to 8 Ms. Davidson that she was acting as Ms. Cates’ personal representative and had the authority to sign on 9 her mother’s behalf. (Decl. of Ms. Davidson, ¶¶ 8-9). Ms. Davidson relied on the representations of 10 Ms. Cates and Ms. Newton throughout the admissions process, a reasonable reliance given the familial 11 relationship between the two individuals and the actions of both. (Decl. of Ms. Davidson, ¶ 10). Again, 12 the contemporaneous Declaration of Ms. Davidson filed with this Petition serves as prima facie 13 evidence that Plaintiffs made statements and acted in ways that caused Ms. Davidson, and thus 14 Defendants, to believe an agency relationship existed. 15 E. Defendants Have Produced Prima Facie Evidence of An Agreement to Arbitrate. 16 Defendants have produced prima facie evidence of the existence of a written agreement to 17 arbitrate Plaintiffs’ claims. Thus, if Plaintiffs raise any defenses to enforcement of that agreement, 18 Plaintiffs bear “the burden of producing evidence of, and proving by a preponderance of the evidence, 19 any fact necessary to the defense.” (Rosenthal v. Great Western Fin. Sec. Corp. (1996) 14 Cal. 4th 394, 20 413). 21 Plaintiffs have conceded the existence of the Admission Agreement containing the Arbitration 22 Agreement, and rely upon the Admission Agreement for at least one cause of action. (Exhibit B, at ¶ 23 20). Furthermore, Plaintiffs’ remaining causes of action stem entirely from the relationship created by 24 the Admission Agreement. Plaintiffs are therefore estopped to deny its existence. (Metalclad Corp. v. 25 Ventana Env’l Org. P’ship (2003) 109 Cal.App.4th 1705, 1719 (“[h]e who takes the benefit must bear 26 the burden,” citing Cal. Civ. Code § 3521); Boucher v. Alliance Title Co., Inc. (2005) 127 Cal. App. 4th 27 262, 272 (“a party may not make use of a contract containing an arbitration clause and then attempt to 28 avoid the duty to arbitrate by defining the forum in which the dispute will be resolved.”)). -8- DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS 1 F. Plaintiffs’ Claims are within the Scope of the Arbitration Agreement. 2 The scope of the Arbitration Agreement expressly requires that “any and all claims and disputes 3 arising from or related to this Agreement, or to [Ms. Cates’] residency, care or services” be arbitrated. 4 (See, Exhibit A, at pg. 25). Plaintiffs’ First Amended Complaint contains allegations of Elder Abuse, 5 Negligence, Assault, Battery, Wrongful Death, and Survivorship against the Defendants. (See, First 6 Amended Complaint, Exhibit B). Clearly, this lawsuit involves disputes arising out of and relating only 7 to the admission of Ms. Lois Cates to the Village, and therefore, is subject to the Admission Agreement 8 and included Arbitration Agreement. (See, e.g., Ramos, supra, at 1052 [noting that arbitration 9 agreements using the phrase “arising under or related to” have been construed broadly and that “for a 10 party’s claims to come within the scope of such a clause, the factual allegations of the complaint ‘need 11 only “touch matters” covered by the contract containing the arbitration clause.’”].) 12 Although there should be no doubt regarding the arbitrability of Plaintiffs’ claims, “any doubts 13 concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the 14 problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a 15 like defense to arbitrability.” (Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. 460 U.S. 1, 24-25 16 (1983)). 17 Under California law, “doubts as to the scope of an agreement to arbitrate are to be resolved in 18 favor of arbitration.” (Molecular Analytical Syst. v. Ciphergen Biosystems, Inc. (2010) 186 Cal. App. 19 4th 696, 705). And, “[t]he party opposing arbitration has the burden of showing that the agreement, as 20 properly interpreted, does not apply to the dispute.” (Id.). 21 III. CONCLUSION 22 The Admission Agreement, and the Arbitration Agreement included therein, executed by Ms. 23 Lois Cates and Ms. Barbara Newton binds Plaintiffs to submit any dispute arising out of or relating to 24 Ms. Lois Cates’ stay at the Village to binding arbitration. Federal law preempts state law in this area 25 and requires the enforcement of written arbitration provisions that relate to transactions involving 26 interstate commerce, which this contract clearly does. The arbitration provision represents a valid 27 contract to submit the parties’ disputes to arbitration, and there is no basis under California law to void 28 such a contract. Therefore, Plaintiffs are bound to that agreement to arbitrate, and the applicable law -9- DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS 1 requires its enforcement. Defendants pray this Court enforce arbitration of Plaintiffs’ claims and stay 2 proceedings. 3 4 August 16, 2023 Dated: ________________ WILSON GETTY LLP 5 6 By: ___________________________________ William C. Wilson 7 John T. Tsumura Nicholas A. Prukop 8 Attorneys for Defendants THE VILLAGE AT SEVEN 9 OAKS AL MC, LLC dba THE VILLAGE AT SEVEN OAKS ASSISTED LIVING AND MEMORY CARE; 10 SEVEN OAK ASSISTED LIVING AND MEMORY CARE LLC (erroneously sued and served as SEVEN 11 OAKS AL & MC); FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING, LLC and SAMANTHA 12 DAVIDSON 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- DEFENDANTS’ PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS