Tolbert v. Danmar Retirement Villa

Filed 12/19/08 Tolbert v. Danmar Retirement Villa CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. James R. Dunn, Judge. Affirmed.

Law Offices of Henry N. Jannol, Henry N. Jannol and Paul H. Levine for Defendant and Appellant.

Girardi Keese, John K. Courtney; The Eroen Law Firm and Robert C. Eroen for Plaintiff and Respondent.

* * * * * *

Danmar Retirement Villa, Inc. (Danmar) appeals from the trial courts denial of its motion to compel arbitration of a personal injury lawsuit brought against it by James L. Tolbert (James), by and through his guardian ad litem, Marie R. Tolbert (Marie).  The trial court found that Danmar failed to produce any evidence that Marie had authority to enter into an agreement binding her husband to arbitration.  We agree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

James, who was suffering from Alzheimers disease, entered a residential care facility for the elderly known as Danmar Retirement Villa West. Upon his admission, Marie signed a written agreement between James, who is identified as You or Resident, and Danmar Retirement Care Home. Maries signature appears on the agreement under the headings Legal Representative and Responsible Party. The agreement defines Legal Representative as a person who may legally give consent for residency at Danmar and otherwise make decisions about the Residents health care, and defines Responsible Party as a person who agrees to be personally financially responsible for all or any part of the charges that are the Resident(s) responsibility . . . .  Marie signed Appendix B to the agreement, entitled Authorization for Release of Medical Information, as Jamess Legal Representative. Appendix B defined Legal Representative as the Residents conservator, or an attorney-in-fact Under a Durable Power of Attorney for Health Care for which all conditions precedent have been met, . . . . Above the line on Appendix B stating Legal Representatives Legal Capacity, Marie wrote wife. James did not sign the agreement.

The agreement contains an arbitration clause at paragraph I, which states in part:  By entering into this Agreement, you agree that any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at Danmar shall be resolved by submission to neutral, binding arbitration; . . . . This arbitration clause binds all parties to this Agreement and their spouse, heirs, representatives, executors, administrators, successors, and assigns, as applicable.

Subsequently, James, through Marie as his guardian ad litem, sued Danmar for negligence, negligence per se and elder abuse. The complaint alleged that in July 2006 James was physically attacked by another resident and suffered a broken hip. Following surgery, James suffered additional injuries and complications. Upon his release from the hospital, James was transported to a skilled nursing facility, where he has since resided. Danmar answered the complaint in November 2007.

Danmar filed a motion to compel arbitration and to stay proceedings in state court, based on the arbitration agreement signed by Marie. The agreement was attached to Danmars attorneys declaration, which says nothing about the circumstances surrounding execution of the agreement.

James opposed the motion to compel arbitration on numerous grounds, including that Danmar produced no evidence that Marie had legal authority to bind him to any arbitration agreement. The trial court agreed, and this appeal followed.

DISCUSSION

The party seeking to compel arbitration bears the burden of establishing the existence of a valid agreement to arbitrate and the party opposing the petition has the burden of proving any fact necessary to its defense.  (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356.)  If the facts are undisputed, on appeal we independently review the case to determine whether a valid arbitration agreement exists. (Flores v. Evergreen at San Diego, LLC 148 Cal.App.4th 581, 586 (Flores).)

Danmar produced no evidence that Marie had any authority to contractually bind her husband to arbitration.  Rather, Danmar relies entirely on the fact that Marie signed the agreement containing the arbitration clause as Jamess Legal Representative, defined by the agreement as one who may legally make decisions about the residents health care. Without citation to authority, Danmar claims that it is entitled to rely upon these representations. But Maries representation of herself as having legal authority to make health care decisions on Jamess behalf did not establish that she actually had such authority. There was no evidence that James had granted Marie a durable power of attorney or that Marie had been appointed as Jamess guardian or conservator prior to signing the agreement. Indeed, in signing Appendix B to the agreement authorizing the release of medical information, Marie identified her legal capacity to sign on Jamess behalf as wife, not conservator or attorney in fact.

A person cannot become the agent of another merely by representing herself as such.  (Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, 301 (Pagarigan).)  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.  (Id. at pp. 301302, fn. omitted; see Civ. Code  2299 [actual agency] & 2300 [ostensible agency]; see also Flores, supra, 148 Cal.App.4th at pp. 587588 [an agency cannot be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the agency].) Nor can the marital relationship alone create an agency. (Flores, supra, at p. 589.)

Danmar did not produce any evidence that James actually appointed his wife as his agent or that James, who was suffering from Alzheimers disease, did anything to suggest that Marie was authorized to act as his agent at the time the arbitration agreement was signed. (See Warfield v. Summerville Senior Living, Inc. (2007) 158 Cal.App.4th 443, 448 [noting the failure of a resident suffering from dementia to object to the living arrangements her husband had made would hardly constitute evidence that she had authorized him to act as her agent in waiving her right to a jury trial].)

Flores and Pagarigan are instructive.  In Flores, a husband signed an arbitration agreement when admitting his wife, who suffered from dementia and other ailments, to the defendants skilled nursing facility. (Flores, supra, 148 Cal.App.4th at p. 585.) The trial court denied the defendants petition to compel arbitration on the ground that the defendant had failed to establish a valid agreement to arbitrate. (Id. at p. 586.) The appellate court affirmed, finding that while there was evidence that the husband acted as if he were his wifes agent, there was no evidence that the wife, who was the principal, had conferred such status on her husband. (Id. at p. 589.) The appellate court also rejected the husbands argument that his status as spouse was sufficient to confer agency status on him. (Ibid.) While the appellate court acknowledged that the establishment of an agency relationship between spouses does not require a high level of proof, the court concluded that a marital relationship alone cannot create an agency. (Ibid.)

In Pagarigan, supra, 99 Cal.App.4th 298, the appellate court also affirmed the denial of a skilled nursing homes motion to compel arbitration, finding there was no evidence that a comatose mother had authorized her daughters to act as her agents to bind her to a nursing home arbitration agreement. (Id. at pp. 301302.) Like Flores, the Pagarigan court rejected the nursing homes contention that the daughters mere act of signing the agreements created agency status, explaining that conduct by the principal was necessary to establish the agency. (Pagarigan, supra, at pp. 301302.)

Here also, in the absence of any evidence that Marie had authority to bind James to an arbitration agreement, there was no error in the trial courts denial of the motion to compel arbitration.  We therefore need not address Jamess additional arguments as to why the arbitration agreement was not enforceable.

DISPOSITION

The order denying the motion to compel arbitration is affirmed.  James is entitled to recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, Acting P. J.

DOI TODD

We concur:

_______________________, J.

ASHMANN-GERST

_______________________, J.

CHAVEZ

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