Root v. Emeritus Corp.













Filed 5/17/13 Root v. Emeritus Corp. CA1/5











NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
FIVE




>

>JOYCE ROOT et al., > Plaintiffs and Respondents, >v. >EMERITUS CORPORATION AND EMERITUS AT >WESTWIND> GARDENS, > Defendants and Appellants.

A134748 (>Solano> County Super. >Ct.> No. FCS038463)

Emeritus
Corporation and Emeritus at Westwind Gardens
appeal from an order denying their petition
to compel the arbitration of claims brought against them by respondents
Joyce Root et al., as successors in interest to Geneva Benthin, a deceased
former resident at Westwind Gardens. Appellants had based their petition on an
arbitration agreement purportedly signed on Benthin’s behalf pursuant to a
uniform statutory form power of attorney and a health care power of attorney in
a California advance health care
directive. Appellants contend the court
erred in: (1) ruling that the powers of
attorney, which were neither notarized nor acknowledged by witnesses, were
invalid; (2) finding there was insufficient evidence that the arbitration
agreement was signed by an ostensible agent; and (3) denying appellants’
request for a continuance of the hearing to conduct discovery on the validity
of the powers of attorney.

We
will affirm the order.

I. FACTS AND
PROCEDURAL HISTORY

Appellant
Emeritus at Westwind Gardens
is a residential care facility for the elderly that is managed and operated by
appellant Emeritus Corporation. In California,
a residential care facility for the elderly is a housing arrangement in which
75 percent of the residents are at least 60 years old and staff provides
varying levels of care and supervision.
(Cal. Code Regs., tit. 22, § 87101, subd. (r)(5).)

Geneva
Benthin (Benthin) lived at Emeritus at Westwind
Gardens for about two years
before her death in September 2010 at the age of 94. For convenience and consistent with the
parties’ practice, we will refer to Emeritus at Westwind
Gardens and Emeritus Corporation
collectively as “Emeritus.”

A. Agreements
and Powers of Attorney

As
part of the paperwork for Benthin’s admission to Emeritus in August 2008,
Benthin’s daughter, Joyce Root, signed a Resident Agreement and checked two
boxes on the agreement indicating that Root was the responsible party and had
power of attorney to act on Benthin’s behalf.


On
that same day, Root also signed an “Agreement to Resolve Disputes by Binding
Arbitration” (Arbitration Agreement) as Benthin’s “authorized
representative.” In pertinent part, the
Arbitration Agreement stated: “[A]ny
action, dispute, claim, or controversy of any kind, whether in contract or in
tort, statutory or common law, personal injury, property damage, legal or
equitable or otherwise, arising out of the provision of assisted living
services, healthcare services, or any other goods or services provided under
the terms of any agreement between the Parties, including disputes involving
the scope of this Arbitration Agreement, or any other dispute involving acts or
omissions that cause damage or injury to either Party, except for matters
involving evictions, shall be resolved exclusively by binding arbitration and
not by lawsuit or resort to the judicial process, except to the extent that
applicable law provides for judicial review of arbitration proceedings. To the
fullest extent permitted by law, this Arbitration Agreement shall apply to third
parties not signatories to this Agreement, including any spouse, heirs, or
persons claiming through the Resident.”

The Arbitration Agreement specified
that it would be governed by the Federal Arbitration Act (9 U.S.C.,
§§ 1-16) and that arbitration would
be administered by the National Arbitration Forum. In addition, the Arbitration Agreement
advised, “[a]dmission to the Community is not contingent upon signing this
agreement.”

Root
also presented Emeritus with two powers of attorney: a “Uniform Statutory Form Power of Attorney”
and a “California Advance Health Care Directive Including Power of Attorney for
Health Care.” The documents were
purportedly signed by Benthin, but Benthin’s signature on them was neither
notarized nor acknowledged by witnesses.


The uniform statutory form power of
attorney was purportedly signed by Benthin on September 6, 2007. According
to this form, Benthin appointed Root as her attorney-in-fact with respect to a
broad variety of matters, including “personal and family maintenance.” The power of attorney indicated Benthin’s
agreement that a third party
receiving a copy of the power of attorney could “act under it.”

The
California advance health care
directive, including a health care power of attorney, was also purportedly
signed by Benthin on September 6, 2007. According to this document, Benthin appointed
Root as her agent to make medical and health care decisions for her when
Benthin lacked the mental capacity to make them. Attached to the power of attorney is a form
ostensibly disclosing Benthin’s health care preferences.

B.
Respondents’ Lawsuit

Around
5:50 a.m. on September 7, 2010, Benthin fell on Emeritus’
premises and suffered terminal injuries.
She died four days later.

Benthin’s successors-in-interest –
respondents Root, Donna Morgan, and Elnora Good – sued Emeritus for damages,
asserting causes of action for elder abuse, fraud, wrongful death, and
violation of Health & Safety Code section 123110 (requiring provision of
copies of medical records). Respondents
alleged that Emeritus left Benthin outside and unattended in the dark and on
wet pavement in the facility’s courtyard, despite knowing that she was confused
and disoriented, had a history of falls and an unsteady gait, was visually
impaired, needed assistance of a walker, and suffered from advanced dementia
and osteoporosis. Benthin fell,
suffering a laceration,
multiple brain contusions and intracranial bleeding, and fractures to her frontal
bone, right hip, right ribs and right femur. Found lying in a pool of blood, she was
transported by ambulance to a hospital, where she later died.

C. Emeritus’ Petition to
Compel Arbitration

In October 2011, Emeritus filed a
petition to compel arbitration of the claims in respondents’ complaint, setting
a hearing date for four months later in February 2012. Emeritus based its petition on the Resident
Agreement, the Arbitration Agreement, and the powers of attorney; Emeritus
attached these documents to a declaration of its counsel, who had no personal
knowledge of their execution.

Respondents opposed the
petition, arguing that Emeritus failed to establish a valid agreement to
arbitrate because the powers of attorney were invalid. Respondents also argued that the Arbitration
Agreement was not properly authenticated, it could not be enforced because the
named arbitration forum was shut down, the agreement was unconscionable, and
arbitration would result in inconsistent rulings.

In reply, Emeritus argued, among other things,
that the Arbitration Agreement was valid and that Root in any event had
ostensible authority to sign the agreement based on her own statements and the
invalid powers of attorney Benthin purportedly signed.

D. Denial of Petition to Compel Arbitration

At the hearing on Emeritus’ motion,
Emeritus argued that it believed there was a valid power of attorney somewhere
in existence – that is, one that was witnessed or notarized – but not all of
the pages had been provided to Emeritus when Benthin was admitted. The trial court asked Emeritus’ attorney if
she needed time to conduct discovery on the issue, and counsel requested that
the hearing be continued, “if necessary,” so Emeritus could depose Root and
have her “produce the durable power of attorney.” The court acknowledged that it “would be
extremely important to the court to know” whether the power of attorney was
valid. When asked about Emeritus’
request for additional time to conduct discovery, respondents’ attorney stated,
“[t]hat would be fine,” but claimed there were other issues that compelled
denial of Emeritus’ petition. The court
took the matter under submission.

By written order filed on February 23,
2012, the court denied
Emeritus’ petition to compel arbitration.
The court found that Emeritus
failed to establish the existence of an arbitration agreement, because the
September 2007 power of attorney was invalid under the Probate Code, in that it
was neither notarized nor acknowledged by witnesses. (Citing Prob. Code, §§ 4401, 4402,
4121.) The court also rejected Emeritus’
argument that Root signed the Arbitration Agreement as Benthin’s ostensible
agent, because “the only evidence of any act by Geneva Benthin that would
suggest she authorized Root to act on her behalf is her signing of the power of
attorney,” but “because the power of attorney is invalid, the court cannot find
an ostensible agency was created based on this document[, and to] do so would
render meaningless all of the requirements set out in Probate Code Sections
4401, 4402, and 4121.” The court did not
rule on respondents’ alternative grounds for the denial of the petition.

Emeritus now appeals from the order
denying its petition to compel arbitration.
(See Code Civ. Proc., § 1294, subd.
(a).)

II. DISCUSSION

Emeritus
sets forth the following issues on appeal:
(1) whether the court erred in determining that the powers of attorney were invalid; (2)
whether the court erred in ruling that no ostensible agency was created; and
(3) whether the court erred in declining to grant Emeritus’ request for a
continuance.

On appeal from the denial of a
petition to compel arbitration, where the facts are undisputed, we review the
arbitration agreement de novo to determine whether it is legally enforceable,
applying general principles of California contract law. (Baker v. Osborne Development Corp. (2008)
159 Cal.App.4th 884, 892; Mitri v. Arnel
Management Co. (2007) 157 Cal.App.4th 1164, 1170.) Here, the threshold question is whether the
Arbitration Agreement is legally enforceable against Benthin (and therefore her
successors); more particularly, whether Emeritus established the existence of
an arbitration agreement with Benthin, in that Root had the authority to bind
Benthin by signing the Arbitration Agreement on her behalf. (See Flores
v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 586 [party
seeking to compel arbitration has the burden of proving the existence of a
valid arbitration agreement] (Flores).) Emeritus’ two theories in this regard are
that: (1) Root had such authority under
the powers of attorney, because they were valid; and (2) Root had such
authority as Benthin’s ostensible agent.
We address these theories in turn.

A. Validity
of Powers of Attorney

Uniform
statutory form powers of attorney are governed by Probate Code
section 4402. Probate Code section
4402 provides that “a statutory form power of attorney under this part is
legally sufficient if all of the following requirements are satisfied . .
. The
signature of the principal is acknowledged.” (Prob. Code, § 4402, subd. (c), italics
added.) In the matter before us,
however, there is no dispute that Benthin’s signature on the statutory form
power of attorney was not acknowledged.

The
parties assumed in the trial court and their appellate briefs that the health
care power of attorney in California’s advance health care directive is
governed by Probate Code section 4121, which applies to special or limited
powers of attorney. Under Probate Code
section 4121, a power of attorney is legally sufficient if “[t]he power of
attorney is either (1) acknowledged before a notary public or (2) signed by at
least two witnesses who satisfy the requirements of Section 4122.” (Prob. Code, § 4121, subd. (c).) In our view, however, a power of attorney for
health care in an advance health care directive is governed by Probate Code
sections 4680 et seq. (See Prob. Code,
§ 4050, subd., (a)(1) [Division 4.5 is inapplicable to powers of
attorney for health care governed by Division 4.7, commencing with
§ 4600], § 4671.) Those
sections have the same requirement as Probate Code section 4121: to be legally sufficient, a written power of
attorney for health care must be acknowledged before a notary public or signed
by at least two qualifying witnesses.
(Prob. Code, §§ 4680, 4673, subd. (a)(3).) Here, it is undisputed that Benthin’s heath
care power of attorney was neither acknowledged by a notary or signed by the
requisite witnesses.

Under the Probate Code, therefore,
the powers of attorney submitted to Emeritus were invalid. (Kaneko
v. Yager (2004) 120 Cal.App.4th 970, 979 [special power of attorney was
invalid under Probate Code, § 4121, subd. (c), where it was neither
witnessed nor notarized] (Kaneko); >Title Trust Deed Service Co. v. Pearson
(2005) 132 Cal.App.4th 168, 179, fn. 4 [settlement agreement signed by wife was
not enforceable where husband’s power of attorney in wife’s favor was neither
witnessed nor notarized and was therefore invalid].)

Emeritus
argues that the powers of attorney were nonetheless valid simply because
Benthin signed them, as the fact of her signature evinced her intent for Root
to possess the enumerated powers.
Drawing on language from Torres v.
Torres (2006) 135 Cal.App.4th 870 at pages 876-877 (Torres), Emeritus adds: “Although a notary page is missing from the
documents given to Emeritus, ‘[i]t seems highly unlikely [Benthin] intended to
sign a document which lacked purpose and legal effect.’ [Citation.].”

To
the extent Emeritus is arguing that Benthin’s signature was sufficient to make
the powers of attorney themselves
valid, its argument is untenable.
Probate Code sections 4402, 4121, and 4673 expressly provide to the
contrary. And nothing in >Torres compels a different
conclusion: Torres involved a power of attorney that was found valid because,
although it did not substantially comply with the statutory form for powers of
attorney, it did substantially comply with California law governing the
creation of powers of attorney as set forth in the Probate Code, >including the requirement that the power
of attorney be “acknowledged before a notary public.” (Torres,
supra, 135 Cal.App.4th at p. 876.)
It is undisputed that the powers of attorney presented to Emeritus,
unlike the power of attorney in Torres,
did not meet this statutory requirement.

A
slightly different argument is that Benthin’s execution of the powers of
attorney, while insufficient to make the powers of attorney valid, could still
serve as extrinsic evidence that Benthin intended for Root to sign agreements
like the Arbitration Agreement, and on that basis it could be said that Root’s
signature bound Benthin under the Arbitration Agreement. But this argument we also find unpersuasive. To accept Emeritus’ position would improperly
circumvent the requirements and purposes of Probate Code sections 4402, 4121,
4680 and 4673, since it would permit health care and other decisions to be made
based on the principal’s alleged signature alone, without the safeguards of a
witness acknowledgement or notarization (or other indicia of authorization,
discussed post). This is plainly contrary to the legislature’s
intent: “The requirement the power of
attorney be in writing and acknowledged before a notary or two witnesses ‘is
intended to provide a protective level of formality’ to the execution of the
document.” (Torres, supra, 135 Cal.App.4th at p. 877.)

Emeritus reminds us of the
public policy favoring arbitration of disputes and, citing Cione v.
Foresters Equity Services, Inc.
(1997) 58 Cal.App.4th 625 (Cione)
at page 642, urges that Benthin’s
intentions should be “generously construed as to issues of arbitrability.” Emeritus’ argument is unconvincing. In the first place, Cione is distinguishable, because in that case the plaintiff had
personally signed the contract containing the arbitration clause, so the only
question was the scope of the arbitration provision. Here, by contrast, the question is not the
scope of the Arbitration Agreement, but the threshold question of whether
Benthin (and her successors) are bound by it.
Moreover, while it is true that public policy generally favors
arbitration, claims may be arbitrated only to the extent the parties have >agreed they should be arbitrated. (Ajamian
v. CantorCO2e (2012) 203 Cal.App.4th 771, 780-781; Victoria v. Superior Court (1985) 40 Cal.3d 734, 744.)

Lastly, Emeritus argues that
the trial court erred in analyzing only one power of attorney purportedly signed by Benthin, since Emeritus presented two powers of attorney. In our view of the court’s order, however,
the court did not necessarily consider only one of the two powers of attorney,
since the court cited both Probate Code sections 4401 and 4402 (pertaining to
statutory form powers of attorney) and
Probate Code section 4121 (which the parties cited as pertaining to the health
care power of attorney in the advance health care directive). In any event, as a matter of law neither
power of attorney was valid in light of the statutory requirements, so neither
could justify enforcement of the Arbitration Agreement whether the court
considered them both or not.

The
court did not err in concluding that the power(s) of attorney were invalid and
provided no basis for enforcement of the Arbitration Agreement.

B. Ostensible
Agency

Where the statutory requirements for a power of attorney are not met – and
therefore no actual agency has been established on that basis – a principal may
still be bound to an arbitration agreement under general agency principles,
including the theory of ostensible agency.
(Flores, supra, 148 Cal.App.4th at p. 587 [when agent
lacks written agency authorization to enter into an arbitration agreement, an
agency relationship may still arise by oral consent or by implication from the
parties’ conduct]; see generally Civ. Code, § 2298 [agency can be actual
or ostensible].)

Agency
“is ostensible when the principal intentionally, or by want of ordinary care,
causes a third person to believe another to be his agent who is not really
employed by him.” (Civ. Code, § 2300.) The agency is created based upon the >principal’s conduct that causes a third party to >reasonably believe the agent has
authority to act. (Tomerlin v.
Canadian Indemnity Co. (1964) 61
Cal.2d 638, 643; see Civ. Code, § 2334 [“A principal is bound by acts of
his agent, under a merely ostensible authority, to those persons only who have
in good faith, and without want of ordinary care, incurred a liability or
parted with value, upon the faith thereof”].)
There are, therefore, two essential requirements for an ostensible
agency: (1) conduct by the principal that would cause a reasonable person to
believe there was an agency; and (2) reasonable reliance on that apparent
agency by the third party. (Mejia v.
Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1457.)

Here, the trial court did not err in
ruling that Root was not Benthin’s ostensible agent when she signed the
Arbitration Agreement. As the court
noted, whether an ostensible agency exists depends on the acts of the principal,
and the only act by Benthin indicating she authorized Root to be her agent was
Benthin’s purported signature on the powers of attorney. The trial court observed that, because the
powers of attorney are invalid as a matter of law, they could not constitute
sufficient evidence of an ostensible agency, because such a conclusion would
negate the requirements of the applicable Probate Code sections. Moreover, we would add, Emeritus did not
establish that it held a reasonable
belief that Benthin had made Root her agent for the purpose of signing the
Arbitration Agreement, since Emeritus’ only cognizable basis for that belief
were powers of attorney that were invalid
on their face.

Emeritus insists it had a reasonable
belief in Root’s authority because Root said
she had a power of attorney and presented the two powers of attorney during the
admission process. Again, however, what >Root did or said does not suffice. (Flores,
supra, 148 Cal.App.4th at pp. 587-588 [agent’s acts alone are insufficient
for creation of ostensible agency].) What counts is what Benthin said or did, which
amounts to her purported execution of the powers of attorney. (See id.
at p. 588.) And since the powers of
attorney that Root presented were facially invalid – indeed, the absence of
witness signatures or notarization brought into question whether the powers of
attorney bore Benthin’s signature at all – Emeritus fails to show that its
belief was reasonable.

Emeritus’ reliance on Tutti
Mangia Italian Grill, Inc. v. American Textile Maintenance Co. (2011) 197
Cal.App.4th 733 (Tutti Mangia) is
misplaced. There, the trial court found
that an employee with the title of General Manager had ostensible authority to
enter into a contract containing an arbitration agreement on behalf of his
employer. (Id. at p. 743.) The court of appeal affirmed, concluding
there was substantial evidence to support the finding because the employee had signed
the agreement as the employer’s “General Manager” and there was testimony that
the employee was holding himself out as the General Manager with authority to
sign. (Ibid.) In Tutti
Mangia, however, there was no dispute that the employer had made the employee General Manager, and general
managers have authority to enter into contracts on their employer’s behalf. (Id.
at pp. 736, 743.) By no means did >Tutti Mangia hold that an ostensible
agency can arise where the principal had not
done something that reasonably suggested an agency.

Emeritus’ reliance on Jacoves v.
United Merchandising Corp. (1992) 9 Cal.App.4th 88 is also misplaced. There, a hospital’s designation of a doctor
as a director of its adolescent psychiatric unit and its provision of releases
for the doctor on its admissions forms created a reasonable inference that the
hospital caused patients to believe the doctor was the hospital’s ostensible
agent, sufficient to create a triable factual issue and preclude summary
judgment. (Id. at pp. 103-104.) But
that has nothing to do with whether ostensible agency may arise from powers of
attorney that are invalid under the Probate Code.

Nor is Emeritus helped by White
v. Moriarty (1993) 15
Cal.App.4th 1290 (White), another
case it cites. In White, the court held that the principal’s execution of a power of
attorney, his admitted knowledge that the agent would use that power, and his
ratification of the agent’s prior acts, constituted sufficient evidence of
ostensible authority to bind the principal to certain transactions. (Id.
at pp. 1293-1296.) Unlike the matter
before us, however, in White there
was no question that the power of attorney was valid; the issue in >White pertained merely to the scope of
the agency, not its creation. (>Id. at p. 1295.)

Emeritus
also argues it was not negligent in believing that Root was Benthin’s agent,
because requiring Emeritus to “demand a notary page during the admission
process . . . would require Emeritus’s admitting clerk to be an expert on all
legal facets of arbitration agreements and powers of attorney.” Emeritus’ argument is untenable. Emeritus’ admitting clerk would not need to
be trained to do anything more than to look to see if a power of attorney bears
the signatures of witnesses or a notarization.
That does not seem too much to ask of a residential care facility for
the elderly or the staff member it assigns to enter into residency agreements
on its behalf. And the idea that
Emeritus should require notarization or witness signatures before relying on
the power of attorney to accept a new resident seems to be a very good one
indeed, since it would help Emeritus to know if the person acting on behalf of
the prospective resident actually has the authority to do so.

Finally,
Emeritus argues that it reasonably believed that a notary page existed because
Benthin signed the health care power of attorney under the instruction, “Sign
the document in the presence of the witnesses or the Notary.” In our view, however, this verbiage in the
power of attorney just makes it all the more unreasonable for Emeritus to have
relied on Root’s representation of agency.
If Emeritus did indeed look at that language, it would have been
naturally led to inquire, “so where are the witnesses’ signatures or
notarization”?

Emeritus
fails to establish error on this ground.href="#_ftn1" name="_ftnref1" title="">[1]

C.
Request for Continuance

At the hearing on its motion to
compel arbitration, Emeritus’ attorney announced her belief that, although
Emeritus’ copy of the power of attorney lacked an acknowledgement or
notarization page, respondents might have a power of attorney with the page
attached. On that basis, Emeritus
requested for the first time a continuance of the hearing it had set on its own
motion, in order to conduct discovery.
Emeritus argues it was error for the court not to grant this
eleventh-hour request, particularly since respondents’ attorney did not object,
the court acknowledged it was important to know whether the power of attorney
was valid, and doubts must be resolved in favor of arbitration. We review for an abuse of discretion. (E.g., Pham
v. Nguyen (1997) 54 Cal.App.4th 11, 17 (Pham).)

The court did not err in proceeding
to rule on Emeritus’ petition without granting its request for a
continuance. Emeritus was the party that
had filed the petition to compel arbitration based on an arbitration agreement
that, on its face, could not be enforced unless the signatory had authority to
sign it on Benthin’s behalf. Before even
filing the motion, therefore, Emeritus should have considered whether the
powers of attorney it was relying upon were valid – namely, whether they were
acknowledged by witnesses or notarized.
Upon finding that the powers of attorney in Emeritus’ own files had no
witness signatures or notarization, Emeritus could have sought leave to conduct
its requested discovery before filing its motion to compel arbitration – or at
least within the four months between the time it filed its petition and the
hearing.

Emeritus points out that
unilaterally conducting discovery on the merits
before the hearing might have waived Emeritus’ right to arbitrate. But surely no waiver could have been implied
if Emeritus had obtained court permission to conduct discovery limited to the
issue of the validity of the powers of attorney in connection with the
existence and enforceability of the Arbitration Agreement: obviously if a court can continue the hearing
to allow a party to engage in such limited discovery (as Emeritus requests), it
can also permit such discovery before
the hearing without a waiver of arbitration resulting. It was not an abuse of discretion for the
court to deny Emeritus’ request for a continuance on the ground that its delay
in seeking discovery was unjustified and unreasonable.

Emeritus’ contentions in this regard
are unavailing. Although respondents’
attorney did not object to the proposed continuance, that did not strip the
court of discretion to conclude there was no good cause for the continuance,
given the totality of the circumstances.
(See Pham, supra, 54
Cal.App.4th at pp. 14, 17-18 [order denying stipulated
continuance request is reviewed for abuse of discretion].) Similarly, while the court indicated it was
important to know if the power of attorney was valid, the court’s statement
certainly did not absolve Emeritus of having to establish this fact within the
time frame Emeritus had set for its motion.


Emeritus repeats its argument that doubts as to
whether parties have agreed to arbitrate a dispute must be resolved in favor of
compelling the matter to arbitration. (Cione,
supra, 58 Cal.App.4th at p. 642).
In light of the heavy presumption favoring arbitration,
it argues, a court should deny a petition to compel arbitration only where it
“ ‘ “ ‘ “may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation that covers the
asserted dispute.” ’ ” ’ ”
(Ibid.) The
question here, however, is not whether arbitration should be compelled because
a dispute arguably falls within the scope of an arbitration clause, but whether
Emeritus could delay the proceedings by engaging in discovery on matters that
should have been addressed before it even brought its motion.

Emeritus also contends there was
adequate reason to continue the hearing because it sees a good chance that
discovery will indeed reveal a valid power of attorney. In particular, Emeritus argues, a notary page
might well exist because Benthin signed the healthcare directive (which
included a power of attorney for healthcare) under the written instruction to
“[s]ign the document in the presence of the witnesses or the Notary.” Emeritus also notes that respondents did not
submit a declaration averring that the powers of attorney were >not notarized or acknowledged by
witnesses. The fact remains, however,
that no matter how fruitful Emeritus might think the discovery will be,
Emeritus had plenty of time to seek it before the hearing on the petition. Emeritus has not shown that the trial court
was irrational or arbitrary in declining to continue the hearing.href="#_ftn2" name="_ftnref2" title="">[2]

In the final analysis, the trial
court did not abuse its discretion in failing to order a continuance of the hearing
to allow Emeritus discovery on the validity of the powers of attorney. As respondents’ attorney indicated at the
hearing on Emeritus’ petition, the issue before the court was whether the
documents Emeritus had presented in support of its petition were sufficient to
establish a valid power of attorney, not whether the powers of attorney were,
in fact, notarized or signed by the requisite witnesses and thus valid.

Emeritus has failed to establish
error in the trial court’s order.

D. Respondents’
Other Arguments

Respondents
argue that the court’s ruling can be affirmed on alternate grounds: the arbitration forum referenced in the
Arbitration Agreement has been shut down; the Arbitration Agreement is
unconscionable and thwarts respondents’ ability to vindicate their statutory
rights; and since most of the parties to this action are not parties to the
Arbitration Agreement, there is a risk of inconsistent rulings in different
forums. Because we conclude that the
trial court did not err in denying the petition to compel arbitration on the
grounds cited by the court, we need not and do not decide any issue concerning
these alternative grounds for the denial.


III. DISPOSITION

The order
is affirmed.









NEEDHAM,
J.





We concur.







JONES, P. J.







BRUINIERS, J.