Pelter v. 1-800-GET-THIN, LLC CA2/1 ( 2014 )

Filed 10/28/14 Pelter v. 1-800-GET-THIN, LLC CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
MICHELE PELTER, Individually and as B250124
Special Administrator, etc.,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BC491048)
v.
1-800-GET-THIN, LLC, et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County,
Samantha P. Jessner, Judge. Affirmed.
Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz, Jack R. Reinholtz and
Douglas S. de Heras for Defendants and Appellants.
Walker, Hamilton & Koenig, Timothy M. Hamilton and Beau R. Burbidge for
Plaintiff and Respondent.
____________________________
Michele Pelter filed a complaint alleging medical malpractice and other causes of
action related to the death of her sister after lap band surgery. The trial court denied the
defendants’ motion to compel arbitration and they appeal. We affirm.
Pelter filed the complaint on September 7, 2012, individually and as special
administrator of the estate of her sister, Paula Rojeski, against 1-800-GET-THIN, LLC;
Valley Surgical Center; Julian Omidi, Michael Omidi, M.D., and Cindy Omidi, doing
business as Valley Surgical Center; and three physicians. The complaint alleges that
Rojeski died on September 8, 2011 as a result of the defendants’ negligence in
performing lap band surgery, and included claims of breach of medical professional
obligation, wrongful death, and fraud and concealment. Defendants 1-800-GET-THIN,
Valley Surgical Center, and Julian, Michael, and Cindy Omidi (defendants) filed a
petition to compel arbitration on April 24, 2013, attaching three arbitration agreements
dated May 18, 2011, June 4, 2011, and September 18, 2011 (the day of Rojeski’s death).
Only the May 18, 2011 agreement is in issue on this appeal. The defendants alleged they
were “contracting parties and/or third party beneficiaries and/or alleged agents.”
A declaration by Roberto Macatangay states that he is the Chief Executive Officer
of Valley Surgical Center and Beverly Hills Surgery Center (which is not a party to this
lawsuit), and that the general custom and practice of Valley Surgical Center is to offer all
patients the opportunity to sign an arbitration agreement, which if signed is retained by a
custodian of records in the ordinary course of business, with a copy provided to the
patient. Before Valley Surgical Center rendered medical services to Rojeski, she signed
the three agreements, including the May 18, 2011 agreement, a true and correct copy of
which was attached.
The one-page generic agreement, entitled only “PHYSICIAN-PATIENT
ARBITRATION AGREEMENT,” provides that both parties agree to arbitrate any
medical malpractice dispute. “Paula Rojeski” in handwriting appears on the signature
line for “Patient’s or Patient Representative’s Signature,” her name is hand-printed
below, and the initials “P.R.” appear as “Patient’s or Patient Representative’s Initials.”
The handwritten date next to the signature line is May 18, 2011. There is no signature on
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the line for “Physician’s or Authorized Representative’s Signature.” Nothing in the
agreement refers to any of the defendants or to lap-band surgery, or identifies the
agreement as pertaining to any specific individual or entity.
Pelter opposed the petition, arguing that the agreement was unenforceable as only
Rojeski allegedly signed it, Macatangay’s declaration lacked foundation and personal
knowledge, and the agreement was unauthenticated and inadmissible. Defendants replied
that they could enforce the agreement as “NON-SIGNATORY BENEFICIARIES,” and
arbitration was required against all defendants as all the causes of action were
“intertwined.”
After hearing, the trial court found that Macatangay’s declaration failed to
establish the required foundation and authentication of the May 18, 2011 agreement, and
“defendants have failed to carry their burden of showing that an arbitration agreement
exists.” Further, the agreement was signed only by Rojeski, leaving the court with no
evidence “that identifies who or which entity intended to enter into the agreement with
the decedent [or] with whom she thought she was contracting.” The blank signature line
was for a physician or authorized representative, and there was no evidence that any of
the moving parties was Rojeski’s physician, an authorized representative, or an intended
beneficiary of the agreement. (Defendant Michael Omidi, M.D. signed a declaration
stating that Rojeski was never his patient.) The court denied the petition to compel
arbitration on July 9, 2013, and this timely appeal followed.
The defendants have not established that they were parties to an arbitration
agreement or otherwise entitled to enforce one. We review de novo whether an
arbitration agreement applies to a controversy, if (as here) there was no conflicting
extrinsic evidence in the trial court. (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 12.)
The petitioner seeking to compel arbitration bears the burden of proving by a
preponderance of the evidence that a valid arbitration agreement exists, and a
nonsignatory must also establish that he or she is a party to the agreement. (Id. at p. 15.)
An arbitration agreement may be enforced by nonsignatories in limited circumstances,
such as when the nonsignatory is a third party beneficiary of the agreement, and when a
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preexisting agency relationship makes it fair to allow the nonsignatory to impose the duty
to arbitrate. (Id. at pp. 17–18.)
The defendants maintaining this appeal did not establish that they were parties to
the May 18, 2011 agreement. First, none is a signatory. No one signed the agreement
except Rojeski. The blank signature line is for a “Physician’s or Authorized
Representative’s Signature.” Second, the defendants did not establish that any of them
may enforce the agreement as a third party beneficiary or under an agency relationship,
nor could they on this record, as there is no evidence identifying the person or entity with
whom Rojeski allegedly contracted. This is unlike Michaelis v. Schori (1993) 20
Cal.App.4th 133, 139, which found that an arbitration agreement that had been signed by
the patient and her physician covered another physician as an employee or associate.
As the defendants did not establish the existence of a valid agreement to arbitrate
to which they were parties, or that as nonsignatories they were entitled to enforce any
agreement, the trial court properly denied the petition to compel arbitration.
DISPOSITION
The order denying defendants’ motion to compel arbitration is affirmed.
Respondent is awarded her costs on appeal.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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