Opinion
G061709
09-05-2023
CECIL KEPNER, Plaintiff and Respondent, v. OAKMONT SENIOR LIVING, LLC, et al., Defendants and Appellants.
Giovanniello Law Group, Alexander F. Giovanniello, Cat N. Bulaon and Joseph M. Lorant for Defendants and Appellants. Valentine Law Group, Kimberly A. Valentine, Philip J. Spinazze, Joseph F. Fighera and Travis K. Siegel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 30-2022-01243539, John C. Gastelum, Judge. Affirmed.
Giovanniello Law Group, Alexander F. Giovanniello, Cat N. Bulaon and Joseph M. Lorant for Defendants and Appellants.
Valentine Law Group, Kimberly A. Valentine, Philip J. Spinazze, Joseph F. Fighera and Travis K. Siegel for Plaintiff and Respondent.
OPINION
SANCHEZ, ACTING P. J.
Defendants, the owners and operators of the Oakmont Senior Living Facility (the facility), challenge the trial court's denial of their motion to compel arbitration of plaintiff Cecil Kepner's negligence and wrongful death lawsuit, brought in his individual capacity and as successor in interest to his mother Darlene Kepner (Darlene). Defendants argue the trial court erred in concluding they failed to present sufficient evidence of plaintiff's authority to act on behalf of Darlene and in refusing to compel arbitration of plaintiff's own claim. We affirm. Defendants failed to meet their burden of demonstrating plaintiff's authority to sign on behalf of Darlene and all of plaintiff's signatures on the agreement are expressly noted as being in the capacity of a representative of Darlene and are therefore ineffective to bind him personally.
FACTS AND PROCEDURAL HISTORY
Defendants are the owners and operators of the facility in Huntington Beach. Darlene, who had dementia and various other ailments, was a resident of the facility. Darlene fell in her room at the facility on February 3, 2021, suffering significant injuries. She died six months later.
Plaintiff is Darlene's son and successor in interest. When Darlene entered the facility, plaintiff signed a residence and services agreement on her behalf. Plaintiff initialed lines in the agreement identifying himself as Darlene's agent under a durable power of attorney for healthcare, a "Healthcare Surrogate Decision Maker," her agent under a financial power of attorney, the "Financial Responsible Party," and her "Agent." The agreement contained an arbitration provision that required "neutral, binding arbitration in accordance with the Federal Arbitration Act." The arbitration section of the agreement included a provision stating, "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 individual." The arbitration section also included two separate signature lines, each of which is marked "Resident or Resident's Representative's Signature." There is no signature line in the agreement for plaintiff as an individual. The agreement also contains a choice of law provision specifying California law.
After Darlene died, plaintiff sued defendants on his own behalf and as successor in interest to Darlene, alleging causes of action for negligence, elder abuse, and wrongful death. In response, defendants moved to compel arbitration.
Defendants' motion to compel arbitration included, as evidence, a declaration of a facility employee who described the admissions process at the facility and authenticated the residence and services agreement signed by plaintiff. The declaration also contained a conclusory statement that plaintiff was Darlene's attorney-in-fact when he signed the agreement. Defendants' motion did not include a copy of the power of attorney or any other document authorizing plaintiff to act on Darlene's behalf. The motion also did not include any testimony regarding acts or statements by Darlene to authorize or ratify plaintiff's actions taken on her behalf. Plaintiff opposed the motion, arguing defendants failed to meet their burden of establishing plaintiff's authority to sign on Darlene's behalf, and plaintiff signed the agreement only (purportedly) on Darlene's behalf, not in his individual capacity, meaning he, too, was not bound.
Along with their reply, defendants submitted a request for judicial notice and two supplemental declarations. The declarations authenticated various new documents: a decision of the Los Angeles County Superior Court; a decision of the Sonoma County Superior Court; an administrative file checklist; a new resident final payment worksheet; and checks for Darlene's rent. Defendants requested judicial notice be taken of the two superior court decisions. Plaintiff objected to this new evidence and to the request for judicial notice.
The trial court "decline[d] to consider all new points, arguments, and evidence presented for the first time on reply." It determined there was no evidence plaintiff had been appointed as Darlene's agent or that Darlene had advised defendants that plaintiff was her agent. In the absence of a proven agency relationship, the trial court concluded plaintiff's signature was "ineffective," and therefore also did not bind plaintiff in his individual capacity. The trial court also noted that even if the signature were effective, the trial court would "exercise its discretion under Code of Civil Procedure section 1281.2[, subdivision] (d) and refuse to enforce the Arbitration Agreement as to [plaintiff]." Accordingly, the trial court denied defendants' motion to compel arbitration.
Defendants timely appealed.
DISCUSSION
Defendants argue the trial court erred in denying their motion to compel arbitration, both as to Darlene's estate and as to plaintiff individually. As to Darlene's estate, defendants contend plaintiff's initials identifying himself as Darlene's agent under a durable power of attorney are evidence of the existence of a power of attorney. Defendants argue this evidence is undisputed because plaintiff did not produce contradictory evidence, and that the trial court's decision is therefore not supported by substantial evidence. We disagree.
As the party seeking to compel arbitration, defendants had the burden of establishing the existence of a valid arbitration agreement between themselves and Darlene. (Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 586.) To meet that burden, defendants had to prove plaintiff had the authority to sign for Darlene, because defendants evidently lacked an arbitration agreement signed by Darlene herself. Defendants had three potential paths to proving plaintiff's signature bound Darlene: proof of actual agency, proof of ostensible agency, or proof of subsequent ratification. Defendants did not attempt to show subsequent ratification and instead argue plaintiff's representation (through his initials) of his authority, under a durable power of attorney or otherwise, was sufficient evidence of actual agency.
However, "[a] person cannot become the agent of another merely by representing herself as such. To be an agent she must actually be so employed by the principal or 'the principal intentionally, or by want of ordinary care, [has caused] a third person to believe another to be his agent who is not really employed by him.'" (Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, 301-302, fn. omitted.) Here, the only evidence of plaintiff's agency is plaintiff's own representations in the agreement. That is not enough. It makes no difference that plaintiff's representation of his authority included the magic words "durable power of attorney"; there remains no evidence of any act by Darlene to give plaintiff this authority.
Defendants further contend they were wrongfully denied the ability to present "rebuttal evidence" that plaintiff shared a joint checking account with Darlene and that defendants' internal administrative file checklist "confirms" the existence of a durable power of attorney and financial power of attorney. This argument is inconsistent with defendants' primary argument: that their evidence of plaintiff's authority to sign for Darlene was undisputed. If plaintiff produced no relevant evidence on the only factual issue in dispute, what was there for defendants to rebut? To the contrary, this "rebuttal evidence" was belatedly aimed at satisfying defendants' initial burden, and the trial court acted within its discretion in refusing to consider it. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) And in any event, even if we were to consider the rebuttal evidence, we would nevertheless conclude defendants failed to meet their burden of demonstrating plaintiff's authority. Plaintiff's name on a joint checking account with Darlene does not create an agency relationship sufficient to allow plaintiff to bind Darlene to contracts. Nor does defendants' internal administrative file checklist demonstrate anything other than plaintiff's representations, which we have already determined are insufficient to establish agency.
Having concluded defendants failed to establish plaintiff's authority to sign on Darlene's behalf, we turn to defendants' argument that plaintiff is individually bound by the arbitration provision of the agreement. Here, Goldman v. Sunbridge Healthcare, LLC (2013) 220 Cal.App.4th 1160 (Goldman) is directly on point. In Goldman, just as in this case, the plaintiff signed an agreement for another (her husband) to be admitted to a residential care facility. (Id. at p. 1174.) Just as in this case, the agreement purported to bind both the patient and anyone signing on his or her behalf to arbitrate subsequent disputes. (Ibid.) And, just as in this case, the court determined the defendants failed to meet their burden of proving the plaintiff had authority to sign on behalf of her husband. (Id. at p. 1173.)
In Goldman, the plaintiff's signature was affixed on a line marked "Signature of Resident's Legal Representative in his/her Individual and Representative Capacity." (Goldman, supra, 220 Cal.App.4th at p. 1175.) Nevertheless, the trial court concluded the plaintiff was not bound as an individual to arbitrate. (Id. at pp. 11761177.) Her signature on the "legal representative" line was deemed a mistake in view of her lack of authority to sign, which made her signature entirely ineffective, even though the line also indicated she was signing in her individual capacity as well. (Id. at p. 1176.)
The facts are even less favorable to defendants here. Plaintiff did not sign on a single signature line anywhere in the agreement that was marked for him in his individual capacity. Everywhere he signed, including the specific signature lines associated with the arbitration provision, the line describes him only as Darlene's legal representative. As the trial court concluded, plaintiff is not bound by this agreement and cannot be compelled to arbitrate his individual claims against defendants.
In view of our conclusions on these issues, we need not reach any of the remaining issues raised by the briefing here or in the trial court, including defendants' argument that the Federal Arbitration Act (9 U.S.C. § 1 et seq.) applied and should have barred the trial court from exercising its discretion under Code of Civil Procedure section 1281.2, subdivision (d) to decline to compel plaintiff to arbitrate and plaintiff's contention the agreement is unconscionable.
DISPOSITION
The order is affirmed. Plaintiff shall recover his costs on appeal.
WE CONCUR: MOTOIKE, J., DELANEY, J.