Opinion
B189232
12-11-2006
FELIX DEL PRADO et al., Plaintiffs and Respondents, v. THC ORANGE COUNTY, INC., et al., Defendants and Appellants.
Giovanniello & Michels, Alexander F. Giovanniello, B. Eric Nelson and Phuong K. Nguyen for Defendants and Appellants. Heimberg Law Group, Steven A. Heimberg and Marsha E. Barr-Fernandez for Plaintiffs and Respondents.
Defendants Kindred Hospital Los Angeles and Kindred Healthcare, Inc. (Kindred) appeal from an order denying their motions to compel arbitration of plaintiffs claims of negligence, elder abuse and loss of consortium. We affirm.
FACTS AND PROCEEDINGS BELOW
We recite the evidence in the light most favorable to the trial courts order and indulge in all reasonable inferences which support it.
Provencio v. WMA Securities, Inc. (2005) 125 Cal.App.4th 1028, 1031 [appeal from order denying motion to compel arbitration].
Felix Del Prado suffered a head injury as the result of a fall. He received his initial treatment at the UCLA Medical Center where he was placed on a ventilator. Later UCLA transferred Felix to Kindred, a general acute care hospital.
In her declaration opposing arbitration Eloisa Del Prado, Felixs wife, testified as follows.
Eloisa stated she speaks English well enough to make herself understood but has a limited ability to read and comprehend documents in English. Her niece, who is fluent in English and Spanish, translated Eloisas declaration for her before she signed it.
Felix arrived at Kindred awake, alert and aware of his surroundings. Felix could not speak because of the ventilator but could communicate effectively by hand and eye signals in response to questions and appeared to be able to hear and understand what Eloisa said to him.
A few days after Felix arrived at Kindred its Admissions Coordinator, Wendy Alvarez, came to his room with some documents she wanted signed. Alvarez did not show or explain these documents to Felix. Instead she presented the documents to Eloisa, speaking to her in English the entire time. Alvarez flipped through the papers telling Eloisa in general terms what they were and instructing Eloisa to sign by the Xs marked on some of the pages. Alvarez stood in the room watching and waiting for Eloisa to sign the papers. Eloisa stated she would not have understood the documents even if given a full opportunity to read them. She knows this because later her niece showed her copies of the documents, which were all written in English, and asked her to read them to see if she understood them. She did not understand the documents.
One of the documents Eloisa signed was entitled "Alternative Dispute Resolution (ADR) Agreement." The document stated that by signing it the patient agreed to arbitrate, among other things, any claim of medical malpractice, elder abuse and loss of consortium. Neither Alvarez nor anyone else at Kindred explained to Eloisa or Felix what an "alternative dispute resolution" was or that by signing the document Eloisa would be waiving Felixs right to a jury trial in a court of law.
Eloisa further testified she signed the documents given her by Alvarez, including the arbitration agreement, because she thought they were "merely a formality." She stated: "If I had understood or been told that one of the documents presented to me was a document waiving my husbands constitutional rights I would not have signed it. Rather I would have discussed this with my husband, my attorney-niece, and my sons before agreeing to sign it. Moreover, I would have signed it only if my husband had indicated a desire for me to sign it on his behalf, which he did not."
While under Kindreds care and treatment Felix allegedly suffered a prolonged lack of oxygen resulting in severe and permanent brain damage which will require him to have 24-hour care for the rest of his life.
Felix filed a civil action against Kindred alleging medical negligence and elder abuse. Eloisa joined the action alleging loss of consortium. In response, Kindred filed a motion to compel arbitration of all causes of action based on the arbitration agreement Eloisa signed.
The trial court denied the motion to compel. It found the arbitration agreement did not comply with Code of Civil Procedure section 1295, subdivisions (a) and (b) which require any provision for arbitration in a contract for medical services must contain a notice "immediately before the signature line . . . in at least 10-point bold red type" advising the patient "by signing this contract . . . you are giving up your right to a jury or court trial." The court further found a wife cannot bind her husband to arbitration "merely with her signature absent other facts that the husband authorized her to do so, e.g. power of attorney."
Kindred filed a timely notice of appeal.
Code of Civil Procedure section 1294, subdivision (a) authorizes an appeal from an order denying a petition to compel arbitration.
DISCUSSION
I.
THE ARBITRATION AGREEMENT COMPLIED WITH THE APPLICABLE STATUTORY REQUIREMENTS.
A. Code of Civil Procedure Section 1295.
The trial courts order cannot be sustained on the ground the warning language in the arbitration agreement did not appear "immediately" before the signature line and was not in "at least 10-point bold red type."
Code of Civil Procedure section 1295, subdivision (b).
The Del Prados concede the warning language in the original of the arbitration agreement was in 12-point red type. The statute does not require the warning language in the copy of the agreement given to the patient must also be in red type.
The Del Prados continue to maintain, however, the agreement violates Code of Civil Procedure section 1295, subdivision (b) because after the warning language a line for printing the name of the patient and the name and number of the hospital precedes the line for the patients signature. Therefore, they contend, the warning does not appear "immediately before the signature line." It is alright to exalt form over substance with respect to arbitration agreements, the Del Prados argue, because in Rosenfield v. Superior Court the Court of Appeal held compliance with the provisions of the statute is mandatory if the agreement is to be enforceable. We find no merit to the Del Prados argument.
Rosenfield v. Superior Court (1983) 143 Cal.App.3d 198, 202-203.
In Rosenfield, none of the specific advisements required by section 1295, subdivisions (a) and (b) were included in the defendants arbitration agreements. The court held the agreements were unenforceable because "[t]he very requirement that jury-waiver advisements be included in `all medical service arbitration contracts in specified language, and be in prominent locations in 10-point bold red type, evidences an implicit legislative determination that they are critical to safeguard against patients unknowingly waiving their constitutional right to jury trial."
Rosenfield v. Superior Court, supra, 143 Cal.App.3d at page 202, italics in original.
In the present case the arbitration agreement contained all of the specific advisements called for in Code of Civil Procedure section 1295, subdivisions (a) and (b). We hold the agreement is not unenforceable merely because the name line and the signature line are reversed from the order called for in the statute. As the Rosenfield court observed, the Legislatures purpose in enacting section 1295, subdivision (b) was to make sure the jury-waiver warning was prominently displayed so as to catch the attention of the patient being asked to execute the waiver. We find there is a zero percent chance putting the name line after the warning and before the signature line had any effect on Eloisas signing the agreement. Eloisa testified she didnt understand the warning, not that she didnt notice it.
The present case is more like Torres v. Torres than Rosenfield. In Torres we held a power of attorney was valid even though the person who executed it placed an X on a line where the form instructed her to place her initials. We concluded the form as completed satisfied the Legislatures concerns about fraud and undue influence.
Torres v. Torres (2006) 135 Cal.App.4th 870.
Torres v. Torres, supra, 135 Cal.App.4th at pages 876-877.
B. Health and Safety Code section 1599.81
The Del Prados argue for the first time on appeal the arbitration agreement violates Health and Safety Code section 1599.81, subdivision (c) which provides clauses referring to arbitration of medical malpractice claims "shall be clearly separated from other arbitration clauses, and separate signatures shall be required for each clause." The agreement in the present case has two arbitration clauses: one covering medical malpractice claims and one covering other claims such as breach of contract, elder abuse and loss of consortium. Therefore, the Del Prados contend, the agreement had to have a signature line after each arbitration clause instead of just one signature line at the end of the agreement.
We reject this argument because the requirement of Health and Safety Code section 1599.81, subdivision (c) only applies to skilled nursing facilities as defined in Code of Civil Procedure section 1250, subdivision (c), intermediate care facilities as defined in Code of Civil Procedure section 1250, subdivision (d) and nursing facilities as defined in Code of Civil Procedure section 1250, subdivision (k). The Kindred facility to which Felix was admitted is licensed as a general acute care hospital as defined in Code of Civil Procedure section 1250, subdivision (a). Therefore the requirements of Health and Safety Code section 1599.81 are inapplicable.
Health and Safety Code section 1599.61, subdivision (a).
II.
KINDRED FAILED TO ESTABLISH ELOISA HAD AUTHORITY TO ENTER INTO THE ARBITRATION AGREEMENT AS AGENT OF HER HUSBAND.
In order to compel arbitration Kindred bore the burden of establishing a valid agreement to arbitrate. Kindred maintained the arbitration agreement was valid and enforceable because Eloisa signed it as the actual or ostensible agent of Felix. The trial court rejected Kindreds contention based on its factual finding Felix had not authorized Eloisa to sign the agreement on his behalf and, under the circumstances, Kindred could not have reasonably believed he had.
Pagarigan v. Libby Care Centers, Inc. (2002) 99 Cal.App.4th 298, 301.
Cases holding one spouse can bind the other spouse to arbitration based solely on their spousal relationship are not applicable here because in those cases the spouse doing the binding was the patient; here the situation is reversed. (See Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586, 1591; Gross v. Recabaren (1988) 206 Cal.App.3d 771, 781.)
An actual agency is created when the principal intentionally confers an authority on the agent or intentionally or negligently allows the agent to believe she has an authority. An ostensible agency is created when the principal intentionally or negligently causes a third person to believe another person is his agent who in fact is not his agent. In either case, when determining the actual or apparent power of an agent, courts scrutinize the conduct of the principal not the agent.
Pagarigan v. Libby Care Center, Inc., supra, 99 Cal.App.4th at page 301.
Here, the parties produced conflicting evidence about the circumstances surrounding Eloisas signing the arbitration agreement.
Alvarez, the Admissions Coordinator, testified she "presented the documents to both Felix Del Prado and Eloisa Del Prado and Mrs. Del Prado insisted on signing the documents herself." Alvarez further testified she discussed each document, including the arbitration agreement, in Spanish with Felix and Eloisa. Eloisa never stated she did not understand the document she was signing or that she had any questions about the documents. Felix never communicated to Alvarez or Eloisa he did not want Eloisa to sign the documents.
Eloisa testified Alvarez presented the documents, including the arbitration agreement, only to her. "At no time did anybody ever attempt to show or explain the alternative dispute resolution agreement in question to my husband." Eloisa further testified: "[Alvarez] spoke to me in English at all times. The entire transaction consisted of her flipping the pages of the documents to the signature page, telling me in the most general terms what each document was for, and telling me to sign next to the big X which she had marked on the page. There was no detailed explanation given, and [Alvarez] stood there watching and waiting for me to sign." Specifically, Eloisa testified, no one "ever explain[ed] to me what was an alternative dispute resolution agreement [or] that they were asking me to waive my husbands rights for him." As to why she signed the documents when she did not understand them, Eloisa explained: "I believed the signing of the documents was merely a formality. My husband already had been admitted to the hospital and was in his hospital bed. As far as we understood, he had no choice other than to continue to stay at Kindred Hospital and be weaned from the ventilator, and we had no means or understanding of places or methods by which to safely and timely transfer him at that point."
The trial court accepted Eloisas version of events over Alvarezs version.
We apply the same standard of review to an order or judgment based on declarations as we apply to a judgment following oral testimony. "We must accept the trial courts resolution of disputed facts when supported by substantial evidence; we must presume the court found every fact and drew every permissible inference necessary to support its judgment, and defer to its determination of credibility of witnesses and the weight of the evidence."
Betz v. Pankow (1993) 16 Cal.App.4th 919, 923.
Having accepted Eloisas version of the facts the trial court properly found Felix did not authorize Eloisa to act as his agent in agreeing to give up his constitutional right to a jury trial in a court of law over any legal claim or dispute arising out of, or relating to, his hospitalization.
Noting the undisputed evidence Felix was alert, responsive and able to communicate effectively by hand and eye signals, Kindred theorized that despite his inability to speak, Felix could have signaled by a nod of his head, a wave of his hand, a snap of his fingers or by some other gesture he wanted to be the one to review the documents and decide which ones to sign. By doing nothing when he saw Eloisa assuming to act in his place Felix intentionally or negligently allowed Eloisa to believe she had the authority to sign the documents or intentionally or negligently caused Alvarez to believe Eloise had such authority.
The problem with Kindreds theory is it assumes Felix knew Eloisa intended to sign a document agreeing to arbitration. The facts recited in Eloisas declaration, which the trial court accepted as true, preclude that assumption. Eloisa testified Alvarez merely flipped through the pages of the documents showing her where to sign. Alvarez did not show the document to Felix nor did she explain to Eloisa or Felix what an alternative dispute resolution was or that by agreeing to arbitration Felix would be giving up his constitutional right to a civil trial in front of a jury. For all Felix knew the documents Eloisa was signing could have been verifying his personal information or his Medicare eligibility or ordering his dinner.
Because there is substantial evidence to support the trial courts conclusion Eloisa lacked the authority to enter into an arbitration agreement on behalf of her husband we will affirm the order denying Kindreds motion to compel arbitration.
Kindred maintains for the first time on appeal that by accepting, or at least not repudiating, Eloisas signature on other documents pertaining to his care and treatment at Kindred—including authorizing Medicare to pay for his treatment, authorizing blood transfusions and the release of information and consenting to photographs—Felix in effect ratified Eloisas agreement to arbitration. It is an "`elementary rule of agency law," Kindred argues, a principal cannot accept only those unauthorized acts of an agent which are to his benefit and disavow those arising from the same transaction which are to his detriment.
Navrides v. Zurich Ins. Co. (1971) 5 Cal.3d 698, 704.
We reject Kindreds argument for several independently sufficient reasons.
A reviewing court need not consider an argument not made in the trial court especially when the argument is not adequately briefed. Here, Kindred does not address the question whether regardless of agency Eloisas status as next of kin sufficed to permit her to execute the other admissions documents on Felixs behalf.
Woodruff v. McDonalds Restaurants (1977) 75 Cal.App.3d 655, 658, footnote 2.
See Pagarigan v. Libby Care Center, Inc., supra, 99 Cal.App.4th at page 302.
Moreover, Kindreds ratification argument suffers from the same flaw as its agency argument. It assumes Felix knew the nature of the arbitration document Eloisa was signing and did not object then or within the 30 day period for rescission provided under the agreement. As discussed above, however, the trial court found substantial evidence Felix did not know Eloisa was signing an agreement waiving his right to a civil trial and a jury verdict on any claim arising from his care and treatment at Kindred. Felix could not ratify an agreement he did not know existed.
DISPOSITION
The order is affirmed. Respondents are awarded costs on appeal.
We concur:
PERLUSS, P. J.
WOODS, J.