Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of mandateSuper. Ct. No. 06C0233, James LaPorte, Judge.
Wilkes & McHugh, Robert John Chavez, Terry Schneier and Julie M. Fritsch for Petitioners.
No appearance for Respondent.
Lewis Brisbois Bisgaard & Smith and Bryan R. Reid and Jeffry A. Miller for Real Parties in Interest.
Hooper, Lundy & Bookman and Mark E. Reagan and Felicia Y. Sze for California Association of Health Facilities as Amicus Curiae on behalf of Real Parties in Interest.
OPINION
HILL, J.
Plaintiff, Una Mae Hatley, individually and as successor in interest of decedent, James Hatley, petitioned this court for a writ of mandate directing the trial court to vacate its order compelling her to arbitrate her claims against defendants in the underlying action. Plaintiff contends there is no valid arbitration agreement requiring arbitration of her claims. We agree and grant the writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
Decedent, James Hatley, was admitted to Hanford Nursing and Rehabilitation Hospital (Hospital) on six occasions, beginning in September 2005. On December 12, 2005, and May 18, 2006, apparently in connection with re-admissions, decedent’s nephew, Frank Stiger, signed a Resident-Facility Arbitration Agreement, purportedly on behalf of decedent while acting as his agent. Sometime after December 12, 2005, plaintiff signed the same paperwork that had been signed by Stiger on that date, including the December 12, 2005, arbitration agreement.
On June 29, 2006, decedent, through a guardian ad litem, filed a complaint against Hanford Nursing and Rehabilitation Hospital (Hospital), Mission Medical Enterprises, Inc. (allegedly the parent company of Hospital), and Maceo Garcia (allegedly the manager of Hospital), alleging causes of action for negligence, negligence per se, and elder abuse. He alleged that, as a result of the negligent care he received from defendants while he was a resident at Hospital, he suffered from pressure sores, underwent amputation of both legs, and had to be transferred to a hospital numerous times due to dehydration. Subsequently, plaintiff, Una Mae Hatley, filed a first amended complaint alleging James died on July 5, 2006; she alleged the same three causes of action as successor in interest of decedent and added a cause of action for wrongful death on her own behalf.
In October 2006, defendants petitioned to compel arbitration of plaintiff’s action, based on the two arbitration agreements signed by Stiger. They asserted Stiger acted as decedent’s agent in admitting decedent to Hospital and signing the arbitration agreements. Plaintiff opposed, arguing that the arbitration agreement was invalid for various reasons, including because Stiger was not decedent’s agent and did not hold his power of attorney, and therefore was not authorized to sign the agreement on behalf of decedent. The court denied the petition “without prejudice to refile within four months.”
In February 2007, defendants filed a second petition to compel arbitration, based on both Stiger’s and plaintiff’s signatures on the arbitration agreements. They again argued that Stiger signed as decedent’s agent, and added an argument that plaintiff, as decedent’s wife, was authorized to sign contracts for him. The court granted the second petition, concluding plaintiff signed the arbitration agreement on behalf of herself and decedent, she had authority to sign on behalf of decedent as his wife, and she signed below language advising her she was waiving jury and court trial rights. The court ordered arbitration of the entire case.
Plaintiff petitioned for a writ of mandate or prohibition, directing respondent court to vacate the order granting the petition to compel arbitration. We initially denied the petition. Plaintiff petitioned the California Supreme Court for review. The Supreme Court granted the petition and transferred the matter back to this court, with directions to vacate the order denying mandate and issue an order to show cause why the relief sought in the petition should not be granted.
DISCUSSION
Orders compelling arbitration are not appealable. (Zembsch v. Superior Court (2006) 146 Cal.App.4th 153, 160-161.) Writ review is available “if the matters ordered arbitrated fall clearly outside the scope of the arbitration agreement or … if the arbitration would appear to be unduly time consuming or expensive. [Citations.]” (Id. at p. 160.) An “arbitration compelled in the absence of a valid, enforceable arbitration agreement is … unduly time consuming and expensive” and may be challenged by writ review. (Medeiros v. Superior Court (2007) 146 Cal.App.4th 1008, 1014, fn. 7.) It is also outside the scope of any arbitration agreement. “The right to arbitration depends on a contract, and a party can be compelled to submit a dispute to arbitration only if the party has agreed in writing to do so. Arbitration is a favored method of resolving disputes, but the policy favoring arbitration does not eliminate the need for an agreement to arbitrate and does not extend to persons who are not parties to an agreement to arbitrate.” (Matthau v. Superior Court (2007) 151 Cal.App.4th 593, 598.) Plaintiff contends there is no valid, enforceable arbitration agreement applicable to the claims raised in her complaint. Consequently, this matter is subject to writ review.
I. Standard of Review
“‘Whether an arbitration agreement applies to a controversy is a question of law to which the appellate court applies its independent judgment where no conflicting extrinsic evidence in aid of interpretation was introduced in the trial court.’ [Citation.] [¶ ] … Where the trial court's decision on arbitrability is based upon resolution of disputed facts, we review the decision for substantial evidence. [Citation.]” (NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 71.)
II. Authority to Execute the Arbitration Agreement
Plaintiff’s main contention in this writ proceeding is that she was not authorized to execute arbitration agreements on behalf of her husband, and therefore the trial court’s conclusion that the arbitration agreements were validly executed by her and binding on both plaintiff and decedent was in error. Defendants contend either Stiger or plaintiff was authorized to execute the arbitration agreements on behalf of decedent.
A. Stiger as Signatory
In their first petition to compel arbitration, defendants argued that Stiger signed the arbitration agreements on decedent’s behalf. They contended he was authorized as decedent’s agent to do so. In support of the petition, they presented the two arbitration agreements Stiger signed, and Stiger’s declaration, in which he asserted that, prior to decedent’s death and in the presence of Dr. Dean, decedent appointed Stiger his agent and authorized him to make “healthcare decisions and any other legal decisions for him as well as enter into any binding contract for his benefit.”
In opposition, plaintiff presented her own declaration, the declaration of decedent’s niece, Bettina Brown, and the declaration of Dr. James Dean. Plaintiff denied, on information and belief, that decedent had an agreement with Stiger to allow Stiger to make decisions for decedent. Brown stated she asked Stiger to sign admission papers for decedent on one occasion, but did not ask him to sign anything other than consent to treatment forms. Dr. Dean stated that it is his custom when a patient expresses end-of-life desires in case of incapacitation to document the patient’s wishes in the medical records, but his notes do not indicate decedent appointed someone to be his health care agent or to otherwise make decisions for him when he was no longer capable of doing so.
The court denied the first petition to compel, essentially rejecting defendants’ claims that Stiger signed the arbitration agreements as decedent’s authorized agent.
When defendants filed their second petition to compel arbitration, they again argued that Stiger signed the arbitration agreements as decedent’s agent. In support, they presented various Hospital admission documents signed by Stiger, including one in which he represented to Hospital that he had “acted as the Representative/agent” for decedent in matters related to health care, and agreed to continue in that role. They also contended plaintiff, as decedent’s spouse, was authorized to, and did, execute an arbitration agreement on decedent’s behalf.
The court granted the second petition. At the hearing, when plaintiff’s attorney asked whether the petition was being granted on the ground plaintiff had the authority to bind her husband, the court responded: “Yes, she had authority to bind herself and she bound herself and she also signed as a spouse in this particular case, and expressly she signed an arbitration agreement under language that told her she was waiving various jury trial and court trial rights by her signature.” The court did not mention Stiger. It is clear the court based its ruling on plaintiff’s signing of the arbitration agreement. The trial court did not make a factual finding that Stiger was decedent’s agent in signing the agreements; in fact, it effectively rejected that contention twice. Consequently, contrary to defendants’ argument, this court cannot review the decision of the trial court for substantial evidence supporting a finding that Stiger acted as decedent’s agent, since the trial court resolved the disputed facts against such a finding. The granting of defendants’ petition to compel arbitration cannot be sustained on the basis of any arbitration agreement entered into by Stiger.
B. Plaintiff as Signatory
In the second petition, defendants contended plaintiff signed the December 12, 2005, arbitration agreement on decedent’s behalf; they argued arbitration should be compelled because plaintiff was authorized, as decedent’s wife, to execute the agreement on his behalf. They argued the marriage relationship alone was sufficient to confer authority on plaintiff to bind decedent to arbitration of his claims. The trial court agreed. This issue presents a question of law, as to which this court must exercise its independent judgment.
The question in this case is whether a valid, enforceable agreement to arbitrate decedent’s claims against any of the defendants was formed when plaintiff signed the arbitration agreement dated December 12, 2005. Defendants have cited no authority for the proposition that, simply by virtue of her status as his spouse, a wife can enter into an arbitration contract on her husband’s behalf.
Defendants cite various cases for the proposition that a contracting party can bind his or her noncontracting spouse or family member to an arbitration agreement. (Herbert v. Superior Court (1985) 169 Cal.App.3d 718; Hawkins v. Superior Court (1979) 89 Cal.App.3d 413; Mormile v. Sinclair (1994) 21 Cal.App.4th 1508; Gross v. Recabaren (1988) 206 Cal.App.3d 771.) In each of those cases, however, the decedent or injured party had signed the arbitration agreement as part of a contract for medical services or enrollment in a health plan. The issue was whether that validly executed arbitration agreement applied to the claims of family members of the contracting party, which arose out of medical treatment rendered to the contracting party pursuant to the contract of which the arbitration agreement was a part. Each case essentially held that the contracting party could bind the noncontracting family members to the arbitration agreement. That is not the issue in this case, however.
Here, decedent – the patient – did not sign the arbitration agreement. The issue is not whether, by signing an arbitration agreement, the decedent bound plaintiff to arbitrate both decedent’s claims and plaintiff’s claims arising out of the care and treatment rendered to decedent by Hospital. Instead, the issue here is whether plaintiff validly executed the arbitration agreement on decedent’s behalf. In other words, the issue is not the scope of the arbitration agreement or which individuals or claims it covers, but whether any enforceable arbitration agreement exists at all. This issue is addressed in Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, Garrison v. Superior Court (2005) 132 Cal.App.4th 253, Hogan v. Country Villa Health Services (2007) 148 Cal.App.4th 259, and Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581.
In Pagarigan, decedent was admitted to a convalescent hospital in a comatose state. Her two daughters signed arbitration agreements providing for arbitration of disputes between the resident and the facility, including negligence and medical malpractice claims. After decedent’s death, her children sued the operators of the hospital for decedent’s personal injuries as her successors in interest and for wrongful death in their own right. The court held defendants’ petition to compel arbitration was properly denied because they did not establish a valid agreement to arbitrate. (Pagarigan v. Libby Care Center, Inc., supra, 99 Cal.App.4th at p. 301.) Decedent had not signed an arbitration agreement; there was no evidence decedent had signed a durable power of attorney. Decedent lacked the capacity to authorize her daughters to enter into arbitration agreements on her behalf at the time they signed. (Ibid.) The court rejected defendants’ contention that the daughters’ representation that they had the power to bind decedent conferred that authority. A person cannot become an agent of another merely by representing herself as such, and there was no evidence decedent ever employed her daughters as her agents or did anything to cause defendants to believe her daughters were authorized to act as her agents. (Id. at pp. 301-302.)
The court also rejected defendants’ contention plaintiffs were authorized to sign the arbitration agreement as decedent’s next of kin. Under Health and Safety Code section 1418.8, a “person with the legal authority” to consent to treatment of a nursing home patient who lacks capacity to consent for himself includes the patient’s next of kin. (Pagarigan v. Libby Care Center, Inc., supra, 99 Cal.App.4th at p. 302.) “Defendants do not explain how the next of kin’s authority to make medical treatment decisions for the patient at the request of the treating physician translates into authority to sign an arbitration agreement on the patient’s behalf at the request of the nursing home.” (Ibid.) Under Health and Safety Code section 1599.65, a nursing home is required to obtain the prospective resident’s signature on the admission contract, unless the prospective resident is unable to understand and sign the contract. The nursing home is not precluded “from obtaining the signature of an agent, responsible party, or a legal representative.” (Pagarigan v. Libby Care Center, Inc., supra, 99 Cal.App.4th at p. 302.) California Code of Regulations, title 22, section 72527 permits the patient’s next of kin to act as the patient’s representative. (Pagarigan v. Libby Care Center, Inc., supra, 99 Cal.App.4th at p. 302.) The court concluded:
“The statutes and regulations cited by defendants demonstrate that when the Legislature and the Department of Health Services wanted to confer authority on next of kin to take some action on behalf of a nursing home resident they knew how to say so. It would indeed be ‘counterintuitive and inconsistent with legislative intent’ to hold that by failing to confer authority on the next of kin to bind a nursing home resident to an arbitration agreement the Legislature and administrative agency intended to confer the very authority they withheld.” (Pagarigan v. Libby Care Center, Inc., supra, 99 Cal.App.4th at 303.)
In Garrison v. Superior Court (2005) 132 Cal.App.4th 253, the court required arbitration. Decedent’s daughter, Penny Garrison, was designated as decedent’s attorney in fact under a durable power of attorney. When decedent was admitted to a residential care facility, Garrison executed two arbitration agreements. The court held that Garrison’s claims as decedent’s successor in interest and the wrongful death claims of decedent’s heirs were required to be arbitrated pursuant to those agreements. (Garrison v. Superior Court, supra, 132 Cal.App.4th at p. 256.) The court concluded that, under the terms of the durable power of attorney and the applicable provisions of the Health Care Decisions Law (Prob. Code, § 4600, et seq.), Garrison had the authority to enter into the arbitration agreements on behalf of decedent. (Garrison v. Superior Court, supra, 132 Cal.App.4th at pp. 266, 267.)
Similarly, in Hogan v. Country Villa Health Services (2007) 148 Cal.App.4th 259, the court found a valid arbitration agreement. Decedent’s daughter, Barbara Hogan, was named as her mother’s agent in a health care power of attorney. When Hogan had decedent admitted to a nursing facility, Hogan signed two arbitration agreements, providing for arbitration of medical malpractice and other claims, including elder abuse claims, against the facility. Hogan and her brothers subsequently sued the operators of the nursing facility for elder abuse and wrongful death. Defendants petitioned to compel arbitration of the elder abuse claims.
The power of attorney authorized Hogan to make “‘all health care decisions’” for decedent, unless decedent limited that authority. (Hogan v. Country Villa Health Services, supra, 148 Cal.App.4th at p. 263.) Decedent had not imposed any relevant limitations. The court concluded that provisions of the Health Care Decisions Law, together with general agency law, authorized an agent under a health care power of attorney, in selecting a long-term health care facility, to execute admissions forms, including arbitration agreements, unless that power was restricted by the principal. (Id. at p. 264.) Additionally, the statutes governing long-term health care facilities (Health & Saf. Code, § 1599.60, et seq.) imposed requirements for arbitration agreements in admission contracts and thereby sanctioned the use, in contracts of admission, of arbitration clauses meeting those requirements. (Hogan v. Country Villa Health Services, supra, 148 Cal.App.4th at p. 267.) “It necessarily follows that when a representative of a prospective long-term health care facility resident reviews and evaluates contracts of admission with an eye towards deciding whether to place the individual at the facility, that decisionmaking process may include the review and evaluation of arbitration agreements meeting the requirements of Health and Safety Code section 1599.81, if such agreements are presented by the facility.” (Ibid.) Thus, executing arbitration agreements was part of the health care decisionmaking process authorized by the power of attorney. (Id. at p. 268.)
In Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th 581, the court found there was no valid arbitration agreement. Luis Flores had his wife, Josephina, who suffered from dementia, admitted to a nursing facility. As part of the admission procedure, Luis signed two arbitration agreements, providing for arbitration of medical malpractice claims and other claims arising from the facility’s provision of services. He signed on a line labeled “‘Legal Rep/Responsible Party/Agent.’” (Id. at p. 585.) At the time he signed, Luis did not have a power of attorney to act for his wife, and had not been appointed her conservator or guardian. After Josephina was injured, she sued the facility to recover for her injuries and Luis sued for loss of consortium. Defendant petitioned to compel arbitration based on the arbitration agreements signed by Luis. Plaintiffs opposed, asserting Luis lacked authority to sign arbitration agreements on Josephina’s behalf. Defendant contended Luis had such authority, because he represented himself to be Josephina’s agent and because he was Josephina’s husband. (Id. at p. 586.)
The court concluded that, “absent a legislative directive, the spousal relationship alone is insufficient to confer authority to agree to an arbitration provision in a nursing home admission contract.” (Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th at pp. 586-587.) The court noted this was not a case where a signatory patient agreed to arbitration of the spouse’s claims arising out of the patient’s care, nor was it a case where the signing party acted as the patient’s agent pursuant to a durable power of attorney for health care. (Id. at p. 587.) There was also no oral or implied agency; an agency cannot be created by the conduct of the agent alone, and there was no evidence of any conduct by Josephina that created an agency or led defendant to believe an agency existed. (Id. at pp. 587-588.)
The court rejected defendant’s argument that a spouse’s fiduciary and support duties gave rise to an agency relationship. “Although we agree that spouses are fiduciaries and owe a duty of support in the family law context, these duties do not create a power to contractually bind each other in the agency context. ‘[I]t is well established that an agency cannot be implied from the marriage relation alone.’ [Citations.]” (Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th at p. 589, italicized brackets added.) Although “‘much less evidence is required to establish a principal and agent relationship between husband and wife than between nonspouses,’” defendant had presented no evidence of any agency, other than the marital relationship. (Ibid.)
The court also rejected defendant’s contention there was a statutory basis for finding one spouse is authorized to sign arbitration agreements on behalf of the other spouse. The statutory scheme governing nursing facilities gives family members the authority to make medical decisions and enforce a patient's bill of rights on behalf of a mentally incompetent patient. (Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th at p. 590.) It permits a third party to sign the admission contract when the prospective patient is mentally incompetent. (Ibid.) It allows arbitration provisions to be included with nursing facility contracts, but imposes specific requirements and excludes certain claims from arbitration. (Ibid.) The statutes do not, however, convey to family members authority to make an arbitration agreement on the patient’s behalf. On this basis, the court concluded there was “no statutory authorization for a person to agree to arbitration based solely on a familial relationship with the patient.” (Ibid.)
The court also concluded Luis was not authorized to sign an arbitration agreement on behalf of Josephina as her “next of kin.” Health and Safety Code section 1418.8 provides the means for a physician to obtain consent to medical care when the patient is incapable of giving informed consent and there is no person with legal authority to make decisions for the patient. (Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th at p. 590.) It defines “person with legal authority” to include the patient’s next of kin. (Ibid.) The patient’s bill of rights for nursing facility patients (Health & Saf. Code, § 1599.1, et seq.) provides for enforcement by the next of kin when the patient is incompetent. (Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th at pp. 590-591.) Title 22, section 72527 of the California Code of Regulations incorporates the patient’s bill of rights, delineates additional rights, and provides for enforcement by the patient’s next of kin, when the patient is incapable of understanding these rights. (Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th at p. 591.)
Other statutes require that a nursing facility’s arbitration agreement be set out in a separate document from the admission contract (Health & Saf. Code, § 1599.81, subd. (b)); require that the admission contract state that an arbitration agreement is not a condition to admission or treatment (Health & Saf. Code, § 1599.81, subd. (a)); preclude the patient from waiving the right to sue for violations of the patient’s bill of rights (Health & Saf. Code, § 1430, subd. (b)); and require that the arbitration agreement contain a notice that the party is giving up the right to a jury or court trial (Code Civ. Proc., § 1295). (Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th at pp. 591-592.)
Health and Safety Code section 1599.65 permits a nursing facility to obtain the signature of the patient’s “‘agent, responsible party, or a legal representative’” on the admission contract if the patient is incapable of signing, but it does not define the scope of that person’s authority. (Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th at p. 591.) “Facially, the status of agent, legal representative, or responsible party would not arise merely because of kinship. Using the ordinary meaning of these terms [citation], an agent is a person to whom the principal has delegated authority; a legal representative is a person who has acquired authority through the legal process (i.e., a guardian or conservator); and a responsible party in the health care context is a person who assumes personal liability for the patient's bills [citation].” (Id. at pp. 592-593.) While a patient’s next of kin is authorized to make certain decisions on behalf of the patient as a matter of practical necessity, it is unlikely the Legislature intended to include the arbitration decision among the matters the next of kin may decide when signing a nursing facility admission contract. (Id. at p. 593.)
“Even though the Legislature has extensively regulated the issue of arbitration in nursing home contracts, and in other contexts has specified that next of kin may make significant decisions for mentally incompetent patients, it has failed to specify that next of kin have authority to agree to arbitration. Unlike admission decisions and medical care decisions, the decision whether to agree to an arbitration provision in a nursing home contract is not a necessary decision that must be made to preserve a person's well-being. Rather, an arbitration agreement pertains to the patient's legal rights, and results in a waiver of the right to a jury trial. [Citations.]” (Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th at p. 594.)
Accordingly, because there was no agency relationship created by Josephina, and no statutory authority for Luis to sign an arbitration agreement on her behalf, the court affirmed the trial court’s denial of defendant’s petition to compel arbitration. (Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th at p. 594.)
We find the reasoning of Pagarigan and Flores to be persuasive. Plaintiff was not authorized by her status as decedent’s wife to sign an arbitration agreement on his behalf. A spouse is not deemed to be the agent of the other spouse for purposes of entering into transactions simply by virtue of the marital relationship. (Avedissian v. Manukian (1983) 141 Cal.App.3d 379, 384-385.) Plaintiff was permitted by statute to consent to medical treatment on decedent’s behalf, but defendants have cited no statute that authorized plaintiff, as decedent’s spouse, to sign an arbitration agreement on decedent’s behalf. Plaintiff was not designated as decedent’s agent under a durable power of attorney for health care, and did not derive authority to sign an arbitration agreement from such a relationship. No evidence was presented to show that plaintiff was otherwise the actual or ostensible agent of her husband. Defendants did not raise that issue in their second petition to compel arbitration, and no evidence in support of such an agency was presented.
Defendants now contend plaintiff acted as decedent’s agent because she declared she was responsible for signing papers on behalf of her husband, decedent never challenged plaintiff’s authority to sign papers on his behalf, and inaction by decedent may constitute ratification of plaintiff’s acts. Inaction by the principal may constitute ratification of the agent’s acts when the principal knows of the agent’s acts and does not disaffirm them. (Gates v. Bank of America (1953) 120 Cal.App.2d 571, 575-576. Defendants presented no evidence that decedent knew plaintiff signed an arbitration agreement on his behalf, or that he failed to promptly disaffirm that agreement.
Defendants argue that a spouse’s fiduciary duty or duty of support under Family Code section 4300 authorizes one spouse to enter into an arbitration agreement on the other spouse’s behalf. The more pertinent provisions of the Family Code might be those found in Part 3 of Division 4 (commencing with section 900) and Part 6 of Division 7 (commencing with section 2620) governing liability of spouses to their creditors. In those sections, the Legislature had the opportunity to create an agency relationship between spouses, that is, to give each spouse the ability to incur obligations on behalf of, and personally bind, the other spouse, but it did not do so.
A spouse’s duty of support does not include the authority to personally bind the supported spouse to an arbitration agreement. Health and Safety Code section 1599.81 requires that any arbitration agreement be in a separate document from the nursing facility’s admission contract. A prospective nursing facility patient with a durable power of attorney for health care may expressly consent to his agent making “‘all health care decisions’” on his behalf. (Hogan v. Country Villa Health Services, supra, 148 Cal.App.4th at p. 263.) If no limits are placed on that authority, the decisionmaking process authorized by the health care power of attorney may include reviewing and executing arbitration agreements presented with the admission contract. (Id. at pp. 263, 268.)
Where a durable power of attorney or other authorization as agent is absent, the spouse’s duty of support does not provide the authority to enter into an arbitration agreement with the nursing facility on behalf of the patient spouse. The support required by Family Code section 4300 includes “‘all such means of living as would enable one to live in the degree of comfort suitable and becoming to his station of life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expense, or other proper cognate purposes; also, proper care, nursing, and medical attendance in sickness, and suitable burial at death.’ [Citation.]” (In re Marriage of Stimel (1996) 49 Cal.App.4th 991, 994-995.) Nothing in this definition of “support” explicitly or implicitly includes the authority to agree to arbitration of the other spouse’s claims against a nursing facility or to waive the supported spouse’s right to a jury or court trial of such claims. By statute, the arbitration agreement must be separate from the admission contract and it cannot be required as a condition of admission or treatment. (Health & Saf. Code, § 1599.81.) Thus, the Legislature has recognized that an arbitration agreement is not an essential part of the nursing care to be provided to the patient. Because an arbitration agreement cannot be required for admission, it is not necessary that the spouse of an incompetent patient have the authority to enter into an arbitration agreement on the patient’s behalf in order to effectively provide for the patient’s care. Accordingly, the supporting spouse’s duty to provide proper nursing care does not implicitly include the duty or the power to enter into a separate agreement, on the patient spouse’s behalf, to arbitrate the patient’s claims against the nursing facility.
Defendants did not establish that plaintiff, as decedent’s agent or spouse, had authority to enter into an arbitration agreement on decedent’s behalf.
Plaintiff also did not agree, on her own behalf, to arbitrate her claims against defendants. She signed the December 12, 2005, arbitration agreement that had already been signed by Stiger, in the same places his signature was located. His signatures appeared above the words “Resident Representative’s Signature.” Consequently, plaintiff did not sign the arbitration agreement on her own behalf. She did not bind herself individually to arbitration of any claims against the facility. (See Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC (2007) 150 Cal.App.4th 469, 474.)
CONCLUSION
The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement. (Garrison v. Superior Court (2005) 132 Cal.App.4th 253, 263.) Defendants did not establish the existence of a valid agreement to arbitrate either decedent’s or plaintiff’s claims against them, which is a prerequisite to an order compelling arbitration. (Code Civ. Proc., § 1281.2.) Defendants’ petition to compel arbitration was improperly granted.
DISPOSITION
The petition for writ of mandate is granted. Let a peremptory writ of mandate issue directing the respondent superior court to vacate its March 15, 2007, order compelling arbitration, and to enter an order denying the petition of real parties in interest to compel arbitration. Petitioner, Una Mae Hatley, is entitled to recover her costs in this writ proceeding.
WE CONCUR: LEVY, Acting P.J., CORNELL, J.