Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 30-2008-00107187 Jamoa A. Moberly, Judge. Reversed.
Lewis Brisbois Bisgaard & Smith, Bryan R. Reid, Russell M. Perry, Jeffry A. Miller and Lisa W. Cooney for Defendants and Appellants.
Callahan, McCune & Willis, Callahan, Thompson, Sherman & Caudill, Robert W. Thompson and Charles S. Russell for Plaintiffs and Appellants.
OPINION
RYLAARSDAM, ACTING P. J.
Defendants Gate Three Healthcare LLC, The Flagstone Group, Inc., The Ensign Group, Inc., and Ensign Facility Services, Inc. appeal from an order denying their petition to compel arbitration of causes of action for elder abuse and battery in the complaint filed by plaintiffs Mark S. Iannucci and Michael C. Iannucci (Michael) after the death of their mother. Defendants claim a power of attorney making Michael the agent in fact for mother authorized him to sign an arbitration agreement covering these claims. We agree and reverse.
FACTS AND PROCEDURAL HISTORY
Mother executed a Durable Power of Attorney (DPOA) appointing Michael as her attorney in fact. The preliminary section gave him power to act regarding mother’s “financial affairs” but did “not authorize anyone to make medical and other health care decisions....” (Capitalization omitted.) A paragraph entitled “Revocable Living Trust” provided Michael power to transfer assets from the trust, to amend the trust “or to plan for... medical care... so long as such acts [did] not substantially alter the distribution of... [mother’s] estate provided therein.”
An untitled paragraph gave Michael authority “[t]o do all things and enter into all transactions necessary to provide for [mother’s] personal care and to maintain [her] customary standard of living; to provide suitable living quarters... and to hire and compensate household, nursing and other employees... for [her] well[-]being,” including, but not limited to, the power “to pay the ongoing costs of maintenance of [her] present and future residence,... to procure and pay for clothing, transportation, medicine, medical care, food, and other needs[,] and to make arrangements, enter into contracts and commit [mother’s] resources... with respect to provision of residential care for [her] in a convalescent hospital, skilled nursing home, or other alternative residential facility.”
A paragraph entitled “Personal and Family Maintenance” gave Michael “the power to take any actions [he] believes necessary or desirable... to... conduct [mother’s] personal affairs and to discharge any and all obligations [she] may owe to [her]self..., including the power to... arrange for medical and dental care....”
Michael was authorized by the DPOA to “arbitrate[] and pursue litigation on [mother’s] behalf concerning all rights....” The DPOA states a third party may accept Michael’s signature “with the same force and effect as if [mother] were personally present and acting on [her] own behalf.”
In having mother admitted to a skilled nursing facility owned by defendants Michael, as a “Legal Representative,” signed an optional agreement to arbitrate “any claim other than... for medical malpractice... arising out of provision of services by the facility... or which allege violations of the Elder Abuse and Dependent Adult Civil Protection Act... or which seek an award of punitive damages or attorney’s fees....” (Capitalization omitted.) In the agreement he represented he had the authority to sign it and intended it to bind mother.
After mother died plaintiffs filed a complaint against defendants for, among other things, wrongful death, battery, and elder abuse. They allege that while at the facility, mother had a reaction to morphine, which she was given without consent or a prescription. When this was noticed mother then was “unattended for hours.” Later she choked on food and for almost an hour was “gasping, wheezing and evidencing serious respiratory distress.” Staff at the facility failed to notify medical personnel or take her to a hospital. When paramedics were finally called, they removed food that had been lodged in her throat and took her to the hospital. Upon learning she had been given morphine, hospital personnel gave her a medication to reverse its effects. But injury to her brain was irreversible and she died.
Defendants filed a petition to compel arbitration of the battery and elder abuse causes of action, which, after hearing, the court denied.
DISCUSSION
The issue before us is whether the DPOA authorized Michael to execute the arbitration agreement. Both parties premise their arguments on whether the DPOA gave Michael the power to make health care decisions.
Plaintiffs contend the DPOA covers merely financial decisions, that it is essentially a uniform statutory form power of attorney (Prob. Code, § 4400 et seq.; all further statutory references are to this code unless otherwise stated), and does not cover health care decisions. Under this statutory scheme the Probate Code provides for a standard form power of attorney that can be preprinted, not requiring the services of a lawyer. (§§ 4401, 4402.) That form contains advisory language at the beginning of the document that states it does not authorize health care decisions. (§ 4401.) This is the language plaintiffs point to in the DPOA that precludes anyone from making health care decisions.
Plaintiffs also rely on Garrison v. Superior Court (2005) 132 Cal.App.4th 253, which states, “Whether to admit an aging parent to a particular care facility is a health care decision.” (Id. at p. 266.) “The Garrison court reasoned that the decision whether to accept an arbitration provision in the admission documents was ‘part of the health care decisionmaking process’ authorized in the durable power of attorney for health care. [Citation.]” (Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 587.) Therefore, plaintiffs conclude that because the DPOA was not a health care power of attorney Michael had no power to sign the arbitration agreement.
Defendants contend the language in the DPOA that gave Michael authority to arrange and contract for medical care, including placing mother in a residential nursing facility, was a health care power authorizing him to execute the arbitration agreement. This, in conjunction with the arbitration provision, gave him the power to sign the arbitration agreement. They argue the DPOA was a limited or hybrid health care power of attorney, which, under Garrison and Flores, authorized Michael to sign the arbitration agreement.
We need not decide whether the DPOA was a health care power of attorney. The DPOA gave Michael the power to enter into a contract to place mother in a skilled nursing facility. Whether or not that was a “health care” decision is irrelevant, the language in Garrison and Flores notwithstanding. There was no dispute over the form of power of attorney in Garrison; it was a health care power of attorney. (Garrison v. Superior Court, supra, 132 Cal.App.4th at p. 258.) And there was no power of attorney in Flores (Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th at p. 585), so neither of these cases control ours.
The DPOA authorized Michael to “arbitrate[] and pursue litigation on the principal’s behalf concerning all rights....” Contrary to plaintiffs’ assertion, nothing in the language restricts this to claims dealing with financial matters. Thus, pursuant to the plain language of the DPOA, Michael was empowered to sign the arbitration agreement.
In construing a power of attorney we must consider the “language of the document itself” (In re Marriage of Pashley (1974) 40 Cal.App.3d 1079, 1083 [looking at words themselves, court’s construction of power of attorney not supported by record]) and attempt to give meaning to all terms (see Lyons v. Fire Ins. Exchange (2008) 161 Cal.App.4th 880, 886-887). In order to follow this precept we are required to interpret the provisions at issue as granting the authority to sign the arbitration agreement.
Further, parallel statutes in the statutory schemes for both health care powers of attorney and uniform statutory form powers of attorney provide that if there is no specific rule set out, general agency laws apply to powers of attorney. (§§ 4050, subd. (a)(2), 4051 [statutory form powers of attorney]; 4688 [health care powers of attorney].) Civil Code section 2319, the general agency law, gives an agent power “[t]o do everything necessary or proper and usual, in the ordinary course of business, for effecting the purpose of his [or her] agency....” Signing the arbitration agreement, authorized by the DPOA, was proper in the ordinary course of admitting mother to the nursing facility.
Plaintiffs challenge this, claiming it was not necessary for Michael to waive their rights to a jury trial. They rely on Flores, which states “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.” (Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th at p. 594.) But in Flores there was no power of attorney of any kind (id. at p. 585); the husband admitted his wife to a nursing home pursuant to a statute giving “next of kin” authority to do so even without a power of attorney when the relative is not competent to understand or sign the admission contract. (Health & Saf. Code, § 1418.8, subd. (c); Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th at p. 590.) The court held the husband could not sign the arbitration agreement because there was no statutory authority nor any “express or implied agency.” (Flores v. Evergreen at San Diego, LLC, supra, 148 Cal.App.4th at p. 594.) Here, to the contrary, there is both statutory authority and specific language in the DPOA authorizing both admission to a facility and execution of an arbitration agreement.
Both parties cite Civil Code section 2321, which provides that “[w]hen an authority is given partly in general and partly in specific terms, the general authority gives no higher powers that those specifically mentioned.” The authority to contract for placement in a residential facility in the DPOA is specific as is the authority to arbitrate. Under Civil Code section 2321 and the doctrine of strict construction of powers of attorney (Cutler v. State Bar of California (1969) 71 Cal.2d 241, 252) it is limited to those powers. The provisions would not give any general or broader authority, including, for example, the right to make end of life decisions, which is a health care power. (§ 4701.)
The parties exchange volleys about whether the court denied arbitration under Code of Civil Procedure section 1281.2, subdivision (c) [court may deny or stay arbitration if possibility of conflicting legal rulings or factual findings] based on the possibility of a conflict between claims to be arbitrated and the medical malpractice claims that would have to be tried. Defendants rely on a comment by the court after it reversed its tentative ruling to grant the motion, stating, “It is going to stay here.” Defendants argue there is “no possibility of conflicting rulings” while plaintiffs, in characterizing this argument as “baseless,” agree different factual findings are “unlikely.” But defendants also specifically concede the court did not rely on this ground as the basis for its decision and address it “out of an abundance of caution.” Because there are no findings about potential conflict and this was not the basis of the ruling we make no determination on this issue.
In addition to their substantive arguments plaintiffs contend the DPOA was inadmissible because it was not authenticated and was hearsay. Although in their points and authorities in the trial court plaintiffs argued the hearsay objection, they did not object on an authentication ground. This forfeited an objection on that basis. (Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1127, fn. 13.) And if the points and authorities sufficed as a proper hearsay objection plaintiffs point to nothing in the record showing they obtained a ruling on it. That was a waiver of that objection as well. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1421.)
DISPOSITION
The order is reversed. Appellants are entitled to costs on appeal.
WE CONCUR: FYBEL, J. IKOLA, J.