Motion-Secondary: DIGNES, LARRY B vs COVENANT CARE CALIFORNIA LLC

On September 18, 2020 a Motion-Secondary was filed involving a dispute between Dignes, Larry B, Kirchert, Lori M, Larry B Dignes, Lori M Kirchert, Lowe, Sheila M, Sheila M Lowe, and Covenant Care California Llc, Covenant Care Llc, for Elder Abuse or Dependent Adult Abuse: Unlimited in the District Court of Stanislaus County.

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1 JOHN L. SUPPLE (SBN 94582)
jsupple@jsupplelaw.com
2 ROBERT R. DEERING (SBN 258043) Electronically Filed
rdeering@jsupplelaw.com 6/30/2021 5:55 PM
3 MATTHEW SCHROEDER (SBN 273361) Superior Court of California
mschroeder@jsupplelaw.com County of Stanislaus
4 J SUPPLE LAW Clerk of the Court
A Professional Corporation By: Christine Zulim, Deputy
5 990 Fifth Avenue
San Rafael, CA 94901
6
Telephone: (415) 366-5533
7 Facsimile: (415) 480-6301

8 Attorneys for Defendants
COVENANT CARE CALIFORNIA, LLC dba TURLOCK NURSING
9 AND REHABILITATION CENTER; COVENANT CARE, LLC
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
IN AND FOR THE COUNTY OF STANISLAUS
12
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LARRY B. DIGNES (Decedent) by and through Case No. CV-20-004057
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13 his Successors-In-Interest SHEILA M. LOWE, an
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14 individual; LORI M. KIRCHERT, an individual DEFENDANTS’ REPLY TO
PLAINTIFFS’ OPPOSITION TO
15 Plaintiff, DEFENDANTS’ MOTION TO
COMPEL ARBITRATION
16 vs.
Accompanying Documents:
17 COVENANT CARE CALIFORNIA, LLC dba 1) Evidentiary Objections
18 TURLOCK NURSING AND 2) Declaration of Matthew Schroeder
REHABILITATION CENTER; COVENANT 3) Proof of Service
19 CARE, LLC, a Delaware Corporation; and
DOES 1 through 50, inclusive, Date: July 8, 2021
20 Time: 8:30 a.m.
Defendants. Dept: 24
21
Judge: Sonny S. Sandhu
22

23
Complaint Filed: September 18, 2020
24

DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’
MOTION TO COMPEL ARBITRATION
1 TABLE OF CONTENTS

2 PAGE

4 I. RELIANCE ON C.C.P. § 1281.2(c) IS MISPLACED WHEN THE
AGREEMENT IS GOVERNED BY THE FAA ................................................................ 1
5
II. THE AGREEMENT IS ENFORCEABLE ......................................................................... 3
6
A. The Arbitration Agreement Is Not Substantively Unconscionable ........................ 3
7
B. The Arbitration Agreement Is Not Procedurally Unconscionable .......................... 4
8
III. PLAINTIFFS’ WRONGFUL DEATH AND PATIENTS’ RIGHTS CLAIMS
9 ARE SUBJECT TO BINDING ARBITRATION .............................................................. 7

10 IV. COSTS OF ARBITRATION ............................................................................................ 10

11 V. MR. DIGNES’ SIGNATURE WAS AUTHENTICATED .............................................. 10

12 VI. CONCLUSION ................................................................................................................. 12
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13
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DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’
MOTION TO COMPEL ARBITRATION
1 TABLE OF AUTHORITIES

2 PAGE
Cases
3
American Software, Inc. v. Ali (1996) 46 Cal.App.4th 1386 .......................................................... 5
4 Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 ........................ 5
AT&T Mobility, LLC v. Concepcion (2011) 131 S. Ct. 1740 ....................................................... 10
5 Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal. App. 5th 835 ........................ 1, 2
Bolanos v. Khalatian (1991) 231 Cal. App. 3d 1586...................................................................... 4
6 Cal. Grocers Assn v. Bank of America (1994) 22 Cal.App.4th 205 ............................................... 4
Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975 ....................................................................... 5
7 Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047 ......... 11
Gloster v. Sonic Automotive, Inc. (2014) 226 Cal. App. 4th 438 ................................................... 1
8 Goodridge v. KDF Automotive Group, Inc. (2012) 209 Cal. App. 4th 325 ................................... 5
Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77 ................................................................. 5
9 Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399 .................................................. 3, 9
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. (1985) 473 U.S. 614 ........................ 10
10 Mormile v. Sinclair (1994) 21 Cal.App.4th 1508 ........................................................................... 3
Perry v. Thomas (1987) 482 U.S. 483 .......................................................................................... 10
11 Randas v. YMCA (1993) 17 Cal. App. 4th 158 ............................................................................... 4
Robinson v. city of Manteca (2000) 78 Cal. App. 4th 452.............................................................. 5
12 Ruiz v. Podolsky (2010) 50 Cal. 4th 838................................................................................ passim
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Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165 .............................................. 5
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13 Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695 ................................. 5
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Southland Corp. v. Keating (1984) 465 U.S. 1 ............................................................................. 10
14

15 Statutes
16 C.C.P. §1281.2(c).................................................................................................................. 1, 2, 10
C.C.P. §1295 ............................................................................................................................... 2, 8
17 C.C.P. §1295(b) ............................................................................................................................... 4
Civ. Code §1633.9 ........................................................................................................................ 11
18 Civ. Code §1633.9(a) .................................................................................................................... 11
Health & Safety Code § 1430(b) ...................................................................................................... 8
19 Health & Safety Code §1430 .......................................................................................................... 8
20
Other Authorities
21
Consumer Legal Remedies Act ...................................................................................................... 8
22 Elder Abuse and Dependent Adult Civil Protection Act ................................................................ 8
Unfair Competition Act .................................................................................................................. 8
23

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DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’
MOTION TO COMPEL ARBITRATION
1 Defendants COVENANT CARE CALIFORNIA, LLC dba TURLOCK NURSING AND

2 REHABILITATION CENTER (hereinafter “TNR”) and COVENANT CARE, LLC (hereinafter,

3 collectively “Defendants”) hereby submit the following reply in support of their Petition to Compel

4 Arbitration.

5 MEMORANDUM OF POINTS AND AUTHORITIES

6 I. RELIANCE ON C.C.P. § 1281.2(c) IS MISPLACED WHEN THE AGREEMENT

7 IS GOVERNED BY THE FAA

8 As anticipated, Plaintiffs contend that California Code of Civil Procedure § 1281.2(c)
9 allows the court to refuse to compel arbitration where inconsistent rulings may result. Reliance on
10 this section, however, and the holding in Avila v. Southern California Specialty Care, Inc. (2018)
11 20 Cal. App. 5th 835, 845 is misplaced and should not be considered for each of the following
12 reasons, as well as the substantive reasons already set forth in Defendants’ Motion.
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13 First and foremost, the Arbitration Agreement expressly states that the “Agreement shall
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14 be construed and enforced in accordance with and governed by the FAA and not California law.”
15 (Brummell Decl., ¶ 4, Ex. A, § 9) (emphasis added). Thus, insofar as the FAA contains no
16 provision analogous to C.C.P. § 1281.2(c), that subdivision cannot be applied here to deny the
17 enforcement of the Arbitration Agreement which is plainly governed by the FAA. (See, e.g.,
18 Gloster v. Sonic Automotive, Inc. (2014) 226 Cal. App. 4th 438, 446 [“Because the [FAA] contains

19 no provision analogous to [C.C.P.] section 1281.2, subdivision (c), that subdivision cannot be

20 applied to deny the enforcement of arbitration clauses governed by the FAA.”]).

21 Second, the statutory exception in C.C.P. § 1281.2(c) states that “[t]his subdivision shall

22 not be applicable to an agreement to arbitrate disputes as to the professional negligence of a health

23 care provider made pursuant to Section 1295.” (Emphasis added). This exception is controlling

24 here. Defendant TNR is clearly a health care provider and the dispute in this case is whether the

25 facility’s professional care constituted professional negligence, elder abuse, or met the community

26 standard. There can be no dispute to this, nor is there any dispute that the Arbitration Agreement

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DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’
MOTION TO COMPEL ARBITRATION
1 contained the language Section 1295 requires. 1 As such, section 1281.2(c) is entirely inapplicable

2 here.

3 In addition to the above infirmities, the case law upon which Plaintiffs rely is inapposite

4 and actually works against them. As a prime example, Plaintiffs rely almost exclusively on Avila,

5 supra, 20 Cal. App. 5th 835 for the erroneous proposition that conflicting rulings will result

6 because their wrongful death and Patient’s Bill of Rights claims are not covered by the Arbitration

7 Agreement. 2 Importantly, however, the Avila court explicitly found that, unlike here, the

8 arbitration agreement in dispute “did not even mention the FAA, much less adopt its procedural
9 rules.” Thus, in Avila, the main reason why the petition to compel arbitration was denied was that
10 the agreement did not even mention the FAA, which is simply not the case here. Further, as
11 discussed supra, the FAA preempts any state law barring arbitration and does not include a
12 provision comparable to California Code of Civil Procedure § 1281.2 (c). The Complaint in Avila
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13 was only for Elder Abuse and Wrongful Death, and, as such, the Court ruled that California Code
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14 of Civil Procedure § 1295 as well as Ruiz v. Podolsky (2010) 50 Cal.4th 838 did not apply. Here,

15 the Complaint alleges six causes of action including Negligence. As such, both section 1295 as

16 well as Ruiz are applicable, and Plaintiffs’ wrongful death cause of action is covered by the

17 Agreement. (See further discussion re: applicability of Section 1295 infra).

18 Lastly, and importantly, the Arbitration Agreement specifically excepts California law

19 from application, (Brummell Decl., ¶ 4, Ex. A, § 9), while expressly noting that Mr. Dignes and

20 Defendants have agreed that claims for medical malpractice, Negligence, Elder Abuse, Violation

21 of Patients’ Rights, and misrepresentation, are covered by the subject Agreement. Accordingly,

22 Plaintiffs’ wrongful death and Patients’ Bill of Rights claims are in fact arbitrable under the FAA

23 irrespective of Plaintiffs’ assertion that they were not actual signatories to the Agreement. (See,

25
1
It is also undisputed that Mr. Dignes’ residency at TNR involved interstate commerce, thereby implicating FAA
preemption over any state law barring arbitration of personal injury or wrongful death claims in this matter.
26 (Compare Brummell Decl., ¶ 5 to Plaintiffs’ Opposition, which fails to refute that the Facility provided skilled
nursing care to Plaintiff using goods purchased in interstate commerce).
27 2
This is untrue. By expressly referring to decedent’s “heirs [and] . . . successors,” the Arbitration Agreement clearly
28 manifested an intent to bind those heirs – such as Plaintiffs Sheila Lowe and Lori Kirchert – to arbitration to resolve
any claims for decedent’s death even the ones brought in their individual capacities, such as wrongful death claims.
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1 e.g., Mormile v. Sinclair (1994) 21 Cal.App.4th 1508, 1511 [“arbitration agreements are enforced

2 with regularity against nonsignatory parties”]). 3 For each of the foregoing reasons, Defendants’

3 Motion should be granted in its entirety.

4 II. THE AGREEMENT IS ENFORCEABLE

5 Plaintiffs’ Opposition also fails to demonstrate that the Arbitration Agreement is both

6 procedurally and substantively unconscionable.

7 A. The Arbitration Agreement Is Not Substantively Unconscionable

8 Plaintiffs’ argument regarding the substantive unconscionability of the Agreement signed
9 by Mr. Dignes might have a modicum of merit, but for one critical point: the Arbitration
10 Agreement was voluntary and there is no evidence whatsoever that Mr. Dignes lacked the capacity
11 to execute the Arbitration Agreement. (See Brummel Decl., ¶ 5). The following language appears

12 in a text box, at the top of page 1, in bold font, above and apart from the terms of the agreement:
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13 Resident shall not be required to sign this arbitration agreement as a condition
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of admission to this facility. (Emphasis in original)
14

15 (Brummell Decl., Ex. A, at p. 1). The caption of the agreement similarly states:
16 DISPUTE RESOLUTION AGREEMENT
(Read Carefully – Not Part of Admission Agreement).
17

18 (Ibid.). Article 16 further states:

19 This Agreement may be rescinded by written notice from either Party, including
Resident’s Legal Representative and/or Agent, if any, and as appropriate, to the
20 other Party within thirty (30) days of signature.
21 (Brummell Decl., Ex. A, § 16).

22 The optional nature of the Agreement was not buried in fine print on a lengthy document.

23 The Arbitration Agreement contains large margins and the statement that signing the Agreement

24 is not a condition of admission is at the very top of the document and then reiterated in the caption.

25 Furthermore, the Arbitration Agreement provides for rescission within thirty (30) days.

26 3
Should for some reason the Court find that Plaintiffs are not bound as individual wrongful death claimants by the
27 Arbitration Agreement, the presence of a nonarbitrable cause of action alone does not give the trial court discretion
to deny arbitration under Code of Civil Procedure section 1281.2(c). (Laswell v. AG Seal Beach, LLC (2010) 189
28 Cal.App.4th 1399, 1409).
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DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’
MOTION TO COMPEL ARBITRATION
1 The Declaration of Deanna Brummel, combined with her deposition testimony, confirmed

2 that Mr. Dignes did not ask any questions about the Agreement which were not answered, nor did

3 Mr. Dignes or his family attempt to rescind the Agreement. (See Deposition of Deanna Brummell,

4 attached as Exhibit 1a to Declaration of Matthew Schroeder (“Schroeder Decl.”), at pp. 42:7-25,

5 66:22—67:17). These indisputable facts are further confirmed by the absence of any evidence to

6 the contrary in either of the Plaintiffs’ Declarations in support of their Opposition. In addition, in

7 accordance with Code of Civil Procedure § 1295(b), on page 4 of the Agreement, Mr. Dignes signed

8 directly underneath a paragraph that stated he was agreeing to arbitration and giving up the right to a
9 jury trial, in capitalized bold letters. (Brummell Decl., Ex. A, at p. 4).
10 Moreover, despite Plaintiffs’ counsel’s mere speculation and assumptions regarding the
11 time it takes for an average individual to read the four substantive pages that comprised the
12 Arbitration Agreement, nowhere in Plaintiffs’ Declarations or in the Declaration of Deanna
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13 Brummell is it established that Mr. Dignes was not given adequate time to read the document
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14 before signing it. Again, it is axiomatic that in California a party to a written contract is charged
15 with having read and understood its contents. (Randas v. YMCA (1993) 17 Cal. App. 4th 158, 163.
16 In fact, when a person with the capacity of reading and understanding an instrument signs it, he
17 may not, in the absence of fraud, coercion or excusable neglect, avoid its terms on the ground that
18 he failed to read it before signing it. (Bolanos v. Khalatian (1991) 231 Cal. App. 3d 1586, 1590).

19 As such, nothing indicates that the arbitration agreement is procedurally unconscionable.

20 B. The Arbitration Agreement Is Not Procedurally Unconscionable

21 Once again, because the agreement is not procedurally unconscionable, the inquiry stops

22 there, because it must be both procedurally and substantively unconscionable in order to be

23 unenforceable. Further, the agreement in this situation is not so one-sided that is shocks the

24 conscience, rather, it is a standard arbitration agreement of a healthcare provider, which are

25 routinely upheld and enforced in the state of California. An arbitration agreement is substantively

26 unconscionable only when its terms are so one-sided as to “shock the conscience and confound the

27 judgment of any man of common sense.” (Cal. Grocers Assn v. Bank of America (1994) 22

28 Cal.App.4th 205, 214-215) (italics in original). The high standard applies because, “[w]ith a
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MOTION TO COMPEL ARBITRATION
1 concept as nebulous as ‘unconscionability’ it is important that courts not be thrust in the

2 paternalistic role of intervening to change contractual terms that the parties have agreed to merely

3 because the court believes the terms are unreasonable.” (American Software, Inc. v. Ali (1996) 46

4 Cal.App.4th 1386, 1391). Under the sliding scale approach, where “the degree of procedural

5 unconscionability is minimal, the agreement is unenforceable only if the degree of substantive

6 unconscionability is high. [Citation.]” Serafin v. Balco Properties Ltd., LLC (2015) 235

7 Cal.App.4th 165, 185, citing Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 982; Armendariz

8 v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114. Further, to the extent
9 that any term is considered unconscionable, California has a history of severing those provisions
10 and enforcing the rest of the arbitration agreement. Serpa v. California Surety Investigations, Inc.
11 (2013) 215 Cal.App.4th 695, 710; Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 92).
12 California courts have also long stated that procedural unconscionability “requires
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13 inequality of bargaining power accompanied by a lack of disclosure of material provisions.”
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14 (Robinson v. city of Manteca (2000) 78 Cal. App. 4th 452, 459). There is no requirement under
15 contract law that parties prove each provision of a contract was negotiated for those provisions to
16 be enforced. In Robinson, the plaintiff could not prove his signing of an agreement was
17 procedurally unconscionable, even when the plaintiff was presented with the document on a take-
18 it-or-leave-it basis, the provisions were not reviewed with him, and the document was given to him

19 with the signature page open. (Id. at 455). In finding that the plaintiff’s procedural

20 unconscionability argument failed due to lack of surprise, the Court of Appeal stated that “there is

21 no allegation he was prevented from reading the agreement on the day of execution, only that it

22 was open to the signature page.” (Id. at 459).

23 Here, the Arbitration Agreement at issue is clearly not an adhesion contract on its face.

24 “Unconscionability generally includes an absence of meaningful choice by one party together with

25 contract terms that are unreasonably favorable to the other party.” (Goodridge v. KDF Automotive

26 Group, Inc. (2012) 209 Cal. App. 4th 325, 337. That is simply not the case here. “To refuse to

27 enforce a contract for unconscionability, a court generally must find the contract is both

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DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’
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1 procedurally and substantively unconscionable,” none of which are present here. (Id.) (emphasis

2 added).

3 As for Plaintiffs’ contention that Mr. Dignes was admitted to TNR on August 7, 2019 but

4 did not sign the Arbitration Agreement until August 15, 2019, such is wholly irrelevant to whether

5 Mr. Dignes voluntarily signed the Arbitration Agreement, which he did, or whether he was

6 provided sufficient opportunity to review and consider the terms of such on the 15th of August

7 2019, which he was. (Brummell Decl., ¶ 5). Indeed, there is no legal requirement that resident

8 Admission Agreements and/or Arbitration Agreements must be presented to the resident of a
9 skilled nursing facility on the day of admission and Plaintiffs proffer no evidence, apart from mere
10 speculation, that this eight-day “delay” in any way prevented Mr. Dignes from reading and
11 understanding the contents of the Arbitration Agreement when he signed it. In fact, said “delay”
12 actually afforded the Plaintiff-heirs more time to provide the facility with proof beforehand of their
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13 so-called “power of attorney,” but inexplicably Plaintiffs did not and have not produced any
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14 documentary evidence that they were Mr. Dignes’ designated Power of Attorney for any purpose.
15 In her Declaration, Ms. Brummel states that she “went through the Admission packet and
16 Arbitration Agreement with Larry Dignes at the time he was admitted to the facility” and that “Mr.
17 Dignes never gave any indication that he did not understand the terms of the Admission Agreement
18 or Arbitration Agreement or that he was not voluntarily signing the Arbitration Agreement.”

19 (Brummell Decl., ¶ 5). Nowhere therein does she state that she went through these documents with

20 Mr. Dignes “on the day of admission,” as Plaintiffs erroneously claim in their Opposition.

21 (Opposition at pp. 1:21). Moreover, at her deposition, Ms. Brummel further clarified that while it

22 was her goal to “try to see the resident” and go over the admissions packet with them on the day

23 of admission, there were times when a resident would not be able to sign on the day of admission

24 and the paperwork would not be completed until “a couple of weeks” after admission, which is

25 precisely what occurred here. (Deposition of Deanna Brummell, attached as Exhibit 1a to

26 Declaration of Matthew Schroeder, at pp. 58:15—59:7). As such, the above facts do nothing

27 whatsoever to establish substantive unconscionability here.

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MOTION TO COMPEL ARBITRATION
1 Likewise, Plaintiff Lowe’s vague and misleading assertion that she was Mr. Dignes’

2 designated Power of Attorney is baseless and there is no evidence whatsoever that the Facility was

3 ever presented with proof of such at or around the time Mr. Dignes signed the Arbitration

4 Agreement. (See Exhibit 1a to Schroeder Decl., at pp. 53:25—54:3). Plaintiffs’ highlighting of

5 Ms. Brummell’s testimony that she would not have the person with “Power of Attorney re-sign

6 the documents” if it was later discovered that the resident had a Power of Attorney is therefore

7 irrelevant and flies in the face of the actual evidence. (Plaintiffs’ Opposition at pp. 3:8-10). Indeed,

8 if Plaintiff Lowe did in fact possess a legally binding Medical or Financial Power of Attorney for
9 Mr. Dignes, she would have produced such in Opposition to Defendants’ Motion, but she failed to
10 do so.
11 Lastly, Plaintiffs’ assertion that Ms. Brummel (a non-lawyer) did not adequately explain
12 the Arbitration Agreement to Mr. Dignes is belied entirely by the following indisputable facts: (1)
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13 Mr. Dignes was under no duress or coercion he signed the Agreement (Brummell Decl., ¶ 5); (2)
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14 he asked no questions regarding the Agreement, and if he had, Ms. Brummell would have done
15 whatever she needed to do to provide him with the answers before he signed (Exhibit 1a to
16 Schroeder Decl., at pp. 67:12-14, 79:11-25); (3) both the Agreement and Ms. Brummel plainly
17 explained to Mr. Dignes that his signature was not a pre-condition for admission to TNR (Exhibit
18 1a to Schroeder Decl., at pp. 37:2-6, 38:14—40:20); (4) there were multiple warnings throughout

19 the agreement, even at the very top of it that indicated that signing this contract was not a pre-

20 condition to admission (Brummell Decl., Ex. A); and (5) the document was a freestanding

21 document that was explained to him independently of the Admission Agreement, including the

22 important fact that he was waiving the right to a trial by “judge and jury” by signing. (Exhibit 1a

23 to Schroeder Decl., at pp. 76:21-25).

24 III. PLAINTIFFS’ WRONGFUL DEATH AND PATIENTS’ RIGHTS CLAIMS ARE

25 SUBJECT TO BINDING ARBITRATION

26 Decisional authority makes clear that the claim here for Wrongful Death is subject to

27 arbitration. And, because the express language of the Arbitration Agreement includes the Violation

28 of Patients’ Rights claim as part of itsapplication, both the Wrongful Death cause of action and
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DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’
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1 survivorship claim under Health & Safety Code § 1430(b) are covered by the subject Agreement.

2 In Ruiz v. Podolsky (2010) 50 Cal. 4th 838, the adult children in a wrongful death action

3 were bound by an arbitration agreement entered into pursuant to Code of Civil Procedure § 1295

4 which contained language binding all parties whose claims might arise out of or relate to the

5 medical treatment provided to the patient, including the spouse and the heirs of the patient. The

6 Arbitration Agreement at issue herein also contains language binding all parties whose claims

7 might arise out of or relate to the medical treatment provided to Mr. Dignes including his family

8 members and heirs.
9 Section 5 of the Agreement states:
10 By executing this Agreement, the Parties understand and agree that Facility’s
owners, affiliates, subsidiaries, officers, directors, managers, agents, employees,
11 and independent contractors shall receive the benefit of this Agreement and be
bound by this Agreement. This Agreement applies to any disputes with persons or
12 entities that provide services to Facility that relate to or affect the provision of care,
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treatment and services that Facility proves or has a duty to provide to Resident. By
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13 executing this Agreement, the Parties understand and agree that Resident’s heirs,
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representative, executors, administrators, successors, assigns, and any person
14 whose claim is derived through or on behalf of Resident or is predicated on conduct
involving Resident, including without limitation any parent, spouse, child,
15 guardian, executor, administrator, surrogates, or legal representative, shall receive
the benefit of this Agreement and be bound by this Agreement.
16
Section 6 of the Agreement further states, in pertinent part:
17
This Agreement covers any “Dispute,” which means any dispute, controversy,
18 demand or claim that relates or arises out of the provision of services or health care
or any failure to provide services or health care by Facility, the admission
19 agreement and/or this Agreement, the validity, interpretation, construction,
performance and enforcement thereof, including, without limitation, claims that
20 allege: medical malpractice; breach of contract; unpaid nursing home charges;
fraud; deceptive trade practices; misrepresentation; negligence; gross negligence;
21 Health and Safety Code section 1430 claims; violations of the Elder Abuse and
Dependent Adult Civil Protection Act, the Unfair Competition Act, the Consumer
22 Legal Remedies Act; and/or any right granted to Resident by law or by the
admission agreement.
23

24 The Ruiz court also specifically addressed whether an arbitration agreement is enforceable

25 against non-signatory heirs in an action brought for wrongful death against a healthcare provider.

26 The Ruiz court was clear that the intention of the Legislature in Code of Civil Procedure § 1295

27 was “to permit patients to bind any heirs pursuing wrongful death actions to these agreements.”

28
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1 (Id. at 851). As such, the fact that Plaintiffs and/or Covenant Care, LLC are not signatories to the

2 Agreement is of no moment.

3 The Ruiz court further addressed potential privacy concerns related to heirs signing

4 arbitration agreements which is instructive. There, the court stated, “requiring patients to obtain

5 signatures of heirs would require to some degree the disclosure of confidential medical information

6 regarding the condition a patient seeks to treat. The disclosure of such sensitive medical

7 information is at the core of the protective information privacy interest.” (Id. at 850-851). The

8 same rationale applies here. Requiring the patient to obtain signatures from heirs would absolutely
9 disclose the nature of treatments being provided to the patient at a skilled nursing facility. Indeed,
10 some patients are provided treatments of a very sensitive nature and as such should be afforded
11 the protection of privacy from disclosure of such highly confidential information. Therefore, as in
12 Ruiz, obtaining the signatures of Mr. Dignes’ heirs in their individual capacity would have
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13 disclosed confidential medical information regarding his condition and therefore cannot be a
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14 requirement to bind the heirs to the arbitration agreement, particularly when Plaintiffs have failed
15 to produce any evidence that they were in fact Mr. Dignes’ designated Medical Power of Attorney
16 during his admission to TNR.
17 Moreover, even if the wrongful death claim here was not arbitrable, the inclusion of a non-
18 arbitrable claim should not be the basis for denying a motion to compel arbitration as such

19 precedent would effectively make all arbitration agreements unenforceable. In cases such as this,

20 when plaintiffs are faced with a valid, enforceable arbitration agreement that they do not wish to

21 comply with, plaintiffs will simply include a non-arbitrable cause of action so the Court will deny

22 any motion to compel arbitration due to the mere presence of a non-arbitrable cause of action.

23 Precedent of this kind will destroy arbitration agreements in the future which flies in the face of

24 strong public policy favoring arbitration and goes against State and Federal law regarding the

25 enforcement of arbitration provisions.

26 Indeed, in Laswell v. AG Seal Beach, LLC (2010) 189 Cal. App. 4th 1399, 1409, the Court

27 was not persuaded by a plaintiff’s reliance on the presence of her non-arbitrable cause of action

28 against the defendant in order to avoid arbitration. The Court held that “the presence of a non-
-9-
DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’
MOTION TO COMPEL ARBITRATION
1 arbitrable cause of action is not sufficient by itself to invoke the trial court’s discretion to deny

2 arbitration under Code of Civil Procedure § 1281.2(c) . . . .” (Id.). The Court further held that the

3 non-arbitrable cause of action “based on the same alleged improper care addressed in her arbitrable

4 cause of action, can be litigated in court after completion of the arbitration.” (Id.).

5 Finally, the United States Supreme Court has repeatedly rejected attempts by state

6 legislatures and state courts to carve out categories of claims that cannot be arbitrated. (Southland

7 Corp. v. Keating (1984) 465 U.S. 1, 10; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.

8 (1985) 473 U.S. 614, 629; and Perry v. Thomas (1987) 482 U.S. 483, 491-93). Most recently, in
9 AT&T Mobility, LLC v. Concepcion (2011) 131 S. Ct. 1740, 1747, the Supreme Court reaffirmed
10 that the enforcement of Arbitration Agreements is favored and state laws purporting to establish
11 outright prohibitions on mandatory arbitration in particular contexts are preempted by the Federal
12 Arbitration Act. For all of the foregoing reasons, and the reasons set forth in Defendants’ Motion,
94901
J SUPPLE LAW, PC
990 Fifth Avenue

13 the Arbitration Agreement herein is binding and enforceable on Plaintiffs.
San Rafael, CA

14 IV. COSTS OF ARBITRATION

15 Plaintiffs devote a la

Case Info

Judge

Sandhu, Sonny S. Track Judge’s New Case

Case No.

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Document Filed Date

June 30, 2021

Case Filing Date

September 18, 2020

County

Parties

COVENANT CARE CALIFORNIA LLC Defendant
COVENANT CARE CALIFORNIA LLC Defendant
COVENANT CARE LLC Defendant
COVENANT CARE LLC Defendant
DIGNES, LARRY B Plaintiff
DIGNES, LARRY B Plaintiff
DEERING, ROBERT R, Esq. Attorney for the Defendant
YORK, WENDY C, Esq. Attorney for the Plaintiff
KIRCHERT, LORI M Plaintiff
KIRCHERT, LORI M Plaintiff
LARRY B DIGNES Plaintiff
LORI M KIRCHERT Plaintiff
LOWE, SHEILA M Plaintiff
LOWE, SHEILA M Plaintiff
SHEILA M LOWE Plaintiff
John Supple Attorney
Brian Cohen Attorneys for Defendants
Daniel Jaffe Attorneys for Plaintiffs
Daniel Jay Attorneys for Plaintiffs
Matthew Schroeder Attorneys for Defendants
Virginia Martucci Attorneys for Plaintiffs
Irene Takahashi Attorney
Cole Elliott Attorney
Bradley Thomas Attorney

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Motion-Secondary: DIGNES, LARRY B vs COVENANT CARE CALIFORNIA LLC

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