Nagel v.
Filed 10/17/13 Nagel v. Napa Nursing Center CA1/1
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opinion has not been certified for publication or ordered published for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
ONE
JAMES
NAGEL,
Plaintiff and Respondent,
v.
NAPA
NURSING CENTER, INC., et al.,
Defendants and Appellants.
No. A134947
(Napa
County
Super. Ct. No. 26-57005)
Plaintiff James Nagel
sued defendants Napa Nursing Center, Inc. (Napa
Nursing Center),
Horizon West HealthCare, Inc., and Horizon West HealthCare of California, Inc. seeking
recovery of damages for wrongful death,
negligence, elder abuse, and violation of patients’ rights in connection
with Napa
Nursing
Center’s
treatment of his deceased mother, Betty Nagel.
Defendants appeal from the court’s order denying their petition to stay
the action and compel arbitration of plaintiff’s claims against the
§ 1294.) Defendants contend that
Nagel signed an arbitration agreement
to forgo a civil trial on malpractice claims, and that the arbitration clauses
in question substantially complied with the requirements of section 1295,
subdivisions (a) and (b). We affirm the
order denying defendants’ petition to compel arbitration because, in our
agreement to arbitrate.
I. FACTUAL AND PROCEDURAL BACKGROUND
Eighty-six-year-old
Betty Nagel was admitted to Napa
Nursing
Center
on April 28, 2009. The next day, Napa
Nursing
Center
sent Nagel, Betty’s son, an arbitration agreement by fax. The faxed document was entirely in black and
white.
The
arbitration agreement recited in article 1, clause 1.6 that “By signing this
arbitration agreement below, the parties agree to be bound by the provisions of
this Arbitration Agreement. The Resident
(or his/her legal representative and/or Agent) acknowledges that he or she has the option of not signing this
arbitration agreement and not being bound by the arbitration provisions
contained herein. The execution of
this arbitration agreement is not a precondition to receiving medical treatment
or for admission to the Community.â€
(Italics added.)
Articles
II, III, and IV of the arbitration agreement set forth the parties, the terms
of the waiver of jury trial, and rescission.
Article V, consisting of clauses 5.1 and 5.2, is entitled “EXECUTION.†Clause 5.1 states:
“The
parties to the Arbitration Agreement hereby acknowledge
and agree that, upon execution, any and all disputes or claims as to medical
malpractice (that is, whether any medical services rendered during the
Resident’s admission were necessary or unauthorized or were improperly,
negligently or incompetently rendered) will
be determined by submission to neutral arbitration as provided by
California law, and not by a lawsuit or court process, except as California law
provides for judicial review of arbitration proceedings. Such arbitration will be governed by this
Arbitration Agreement.
“NOTICE: BY
SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE
DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR
COURT TRIAL. SEE ARTICLE 1 OF THIS
CONTRACT.
“Date:
___________________
__________________________________________
Resident
“By
virtue of Resident’s consent, instruction, and/or durable power of attorney, I
hereby certify that I am authorized to act as Resident’s agent in executing and
delivering of this arbitration agreement.
I acknowledge that the Community is relying on this representation.
“Date: ___________________ ______________________________â€
Legal Representative/Agent (if any)
(Italics
added.)
Clause
5.2 of article V, in similar language, requires arbitration of claims “other
than a claim for medical malpractice, arising out of the provision of servicesâ€
by Napa Nursing
Center. Like clause 5.1, clause 5.2 contains a
provision requiring the certification of an authorized representative. As in clause 5.1, both provisions contained a
signature line.
Of
the four signature lines in article V, only one was executed. Betty Nagel did not sign the arbitration
agreement at all. Nagel signed the line
in clause 5.1 following the recitation certifying he was the “Resident’s
[authorized] agent in executing and delivering of this arbitration
agreement.†Neither he nor Betty
executed the provisions of clause 5.2, nor did they sign on the line in clause
5.1 immediately following the provision stating that the parties agreed to
arbitration of malpractice claims and the bold face print advising them that by
signing the contract they were agreeing to arbitration of medical malpractice
claims and giving up the right to a jury
trial.
Betty
Nagel fell while a resident of the Napa
Nursing
Center
in August 2010, and subsequently died.
On September
1, 2011, Nagel filed the aforementioned
lawsuit. Counsel for defendants
subsequently informed Nagel’s counsel there was an executed arbitration
agreement in Betty’s business file and asked for a stipulation to a stay of the
action and submission to binding arbitration.
After receiving from defendants’ counsel a black-and-white copy of the
partially signed arbitration agreement, and a color copy of the agreement,
which was not signed at all, Nagel’s counsel declined to stipulate to
arbitration.
Defendants
filed a motion to compel arbitration.
Patti Turner, the Napa
Nursing
Center’s
business officer manager since 2005, signed a declaration in support of the
motion averring it is the custom and practice of the facility to provide the
resident or his or her authorized legal representative or agent a color copy of
the arbitration agreement. A color copy
of the agreement was “given to James Nagel to sign, and [was] maintained in the
facility’s business file for Betty Nagel.â€
However, a separate signed copy of the agreement was faxed to the
facility on April
30, 2009 by Nagel and was also maintained in the
facility’s business file for Betty Nagel.
In
a declaration filed along with an opposition to the motion, Nagel averred the
only copy of the arbitration agreement he received was the one in black and
white that was faxed to him, and he “signed the portion that I was authorized
to act as the resident’s agent, but I did not sign either 5.1 or 5.2 of the
Arbitration Agreements.â€
Following
argument, the court denied the motion to compel arbitration.
As
relevant here, the court ruled: “The
only portion of the arbitration agreement that was signed by plaintiff is to
certify that he was authorized to act as the decedent’s agent in executing and
delivering the agreement. He did not
sign the provisions, on behalf of the resident, agreeing to arbitrate either
the medical malpractice claims or others.
While Napa Nursing may well have intended for the agent signature to
suffice for an agreement to arbitrate, it nevertheless remains unclear as to whether
plaintiff shared in that intention. In
fact, plaintiff’s declaration under penalty of perjury indicates
otherwise. [¶] While it is true . .
. that doubts regarding the scope of an arbitration clause should be resolved
in favor of arbitration, ‘[t]here is no public policy favoring arbitration of
disputes which the parties have not agreed to arbitrate.’ (Engineers
& Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th
644, 653.) ‘A party can be compelled to
arbitration only when he or she has agreed in writing to do so.’ (County
of Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47
Cal.App.4th 237, 244–245.) Here, the
court is unable to conclude that plaintiff agreed to arbitrate his claims.â€
This
appeal followed.
II. DISCUSSION
We
review the trial court’s denial of defendants’ motion to compel de novo.
“ ‘ “[W]hen
a petition to compel arbitration is filed and accompanied by prima facie
evidence of a written agreement to arbitrate the controversy, the court itself
must determine whether the agreement exists and, if any defense to its
enforcement is raised, whether it is enforceable.†’ [Citations.]
As the party seeking to compel arbitration, [defendants] had the burden
of proving the existence of an enforceable arbitration agreement. [Citations.]
Where, as here, the relevant facts are undisputed, on appeal, we
independently determine whether such an agreement exists.†(Rodriguez
v. Superior Court (2009) 176 Cal.App.4th 1461, 1469.)
Here,
the parties’ arguments center on whether the arbitration agreement faxed
between Nagel and the Napa
Nursing
Center
substantially complied with the requirements of section 1295
and, if so, whether such compliance saves the contract. However, we need not resolve questions about
the scope and effect of compliance or noncompliance with section 1295 because,
in our view, the threshold question—whether Nagel signed the agreement
presented to him by Napa
Nursing
Center—must
be resolved against defendants, notwithstanding their compliance or
noncompliance with the statute.
“We
view the cited clauses in light of the standard rules of contract
interpretation. ‘An interpretation which
gives effect is preferred to one which makes void.’ (Civ. Code, § 3541.) If it may be done without violating the
parties’ intent, we must interpret the contract in such a way as to make it
‘lawful, operative, definite, reasonable, and capable of being carried into
effect.’ (Civ. Code, § 1643.)†(24
Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199,
1214.) Nevertheless, “[e]very
contract requires consenting parties . . . . [M]utual consent is gathered from the
reasonable meaning of the words and acts of the parties, and not from their
unexpressed intentions or understanding.â€
(1 Witkin, Summary of Cal.
Law (10th ed. 2005) Contracts, § 116, p. 155.) Moreover, “any
ambiguities caused by the draftsman of the contract must be resolved against
that party.†(Neal v. State Farm Ins. Cos. (1961) 188 Cal.App.2d 690, 695.)
Viewing
the contract clauses here objectively, and construing their plain language
liberally (1 Witkin, supra,
§ 140, at p. 180), we note, first, that article 1, clause 1.6 of
the arbitration agreement appears to anticipate some type of signature by the
resident or his or her legal representative on the arbitration agreement,
whether or not they actually agreed to arbitration. While clause 1.6 states “[b]y signing this
arbitration agreement below,†the parties agree to be bound by it, the same
clause also states the resident, or his or her legal representative or agent,
“acknowledges that he or she has the option of not signing this arbitration
agreement.†Although clause 1.6 did not
state the acknowledgement needed to be in writing, in the context of a formal,
written arbitration agreement, it was not unreasonable for the parties to
expect the acknowledgement was to be given in writing. Despite this, no signature line was provided
for a resident who declined to accept arbitration. A resident had no way to acknowledge the
option not to sign without signing the agreement.
Second,
under article 2, clause 2.1, the parties to the agreement included the
resident, Betty Nagel, or her legal representative or agent, leading one to
reasonably expect that either the resident, or the legal representative or
agent, could sign the actual agreement to arbitrate that was recited under
article V, in clause 5.1, even though only the word “Resident†was printed
under the first signature line.
Finally,
the clause immediately preceding Nagel’s signature did not require him to “acknowledge and agree that, upon execution, any
and all disputes or claims as to medical malpractice . . . will be
determined by submission to neutral arbitration.†Instead, the provision Nagel executed merely
asked him to “certify that I am
authorized to act as Resident’s agent in executing and delivering of this
arbitration agreement.†(Italics
added.) Especially in light of article
1, clause 1.6 of the arbitration agreement, which appears to anticipate some
type of signature on the document acknowledging the option not to agree, we
cannot construe Nagel’s signature on this line to constitute an agreement to
arbitrate, rather than a simple certification of his status as legal
representative. Certainly, the language
of the clause Nagel signed did not reasonably apprise him that, in addition to
certifying his representative status and acknowledging that he could, on
Betty’s behalf, agree or not agree to arbitration, he was also agreeing on her
behalf to submit any future malpractice claims to arbitration.
effect was found in the clause he elected not
to sign, he could reasonably have assumed he had made no such agreement.
Defendants
argue the first signature line, under which was written “RESIDENT,†was to be
used if the agreement was signed by the resident himself or herself, while the
second signature line, under which was written “Legal Representative/Agent (if
any),†was to be used if the agreement was signed on the resident’s behalf. Regardless, it is argued, both signature
lines were intended as an endorsement of the entire section, rather than only
the immediately preceding text. In this
reading, the second signature line merely included an affirmation of the
representative’s authority, in addition to the agreement to arbitrate.
While
this may have been the legal effect intended by defendants, it is not the legal
effect objectively communicated by the agreement. Because the agreement contained separate
signature lines under the two separate paragraphs of text, there was no reason
for Nagel to conclude he was agreeing to more than the immediately preceding
paragraph, which related directly to his status as
the agreement expressly included the resident or her legal representative, a
signatory could reasonably expect that either could execute the first signature
line, even though only the word “Resident†was printed under it. At a minimum, the agreement was ambiguous in
this regard, and we are required to construe an ambiguity against the
draftsperson, in this case defendants. (
Cal.App.2d at p. 695.)
Given
the contract language drafted by defendants, we are compelled to agree with the
trial court that Nagel did not sign on the only line in the entire contract
which would have signaled his unambiguous intent to submit any malpractice
claims to arbitration. “While Napa
Nursing may well have intended for the agent signature to suffice for an
agreement to arbitrate, it nevertheless remains unclear as to whether plaintiff
shared in that intention.†The motion to
compel arbitration was properly denied.
III. DISPOSITION
The order denying defendant’s motion to compel
arbitration is affirmed.
_________________________
Margulies,
Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
name="_ftn1" title="">[1]
Unless otherwise indicated all further statutory references are to the Code of
Civil Procedure.
name="_ftn2" title="">[2] Section 1295
provides in relevant part: “(a)
Any contract for medical services which contains a provision for arbitration of
any dispute as to professional negligence of a health care provider shall have
such provision as the first article of the contract and shall be expressed in
the following language: ‘It is
understood that any dispute as to medical malpractice, that is as to whether
any medical services rendered under this contract were unnecessary or
unauthorized or were improperly, negligently or incompetently rendered, will be
determined by submission to arbitration as provided by California law, and not
by a lawsuit or resort to court process except as California law provides for
judicial review of arbitration proceedings.
Both parties to this contract, by entering into it, are giving up their
constitutional right to have any such dispute decided in a court of law before
a jury, and instead are accepting the use of arbitration.
signature line provided for the individual contracting for the medical services
must appear the following in at least
10-point bold red type: [¶] ‘NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO
HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU
ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE ARTICLE 1 OF THIS CONTRACT.’ †(Italics added.)
