Caballero v. Premier Care Simi Valley ( 2021 )

Filed 9/28/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
MIGUEL CABALLERO et al., 2d Civ. No. B308126
(Super. Ct. No. 56-2020-
Plaintiffs and Respondents, 00541844-CU-MM-VTA)
(Ventura County)
v.
PREMIER CARE SIMI VALLEY
LLC,
Defendant and Appellant.
Premier Care Simi Valley LLC dba Simi Valley Care
Center (Premier Care) appeals from an order denying a petition
to compel arbitration. Miguel Caballero, who declares he reads
and writes only in Spanish, signed a two-page “RESIDENT-
FACILITY ARBITRATION AGREEMENT” (Arbitration
Agreement) when his mother, Maria Paz-Anaya Caballero, was
admitted to Premier Care. The Arbitration Agreement is in
English. Three years after signing the agreement Caballero and
his siblings (plaintiffs) brought this wrongful death action
against Premier Care and other defendants.
In denying Premier Care’s petition to compel arbitration,
the trial court found it had failed to sufficiently inform Caballero
of the Arbitration Agreement’s contents. The record, however,
does not support this finding. A party who does not understand
English sufficiently to comprehend the contents of a contract in
that language is required to “have . . . it read or explained to
him.” (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th
674, 687 (Ramos).) The record confirms that Caballero signed the
Arbitration Agreement notwithstanding his limited English skills
and that neither Caballero nor any family member provided
evidence of the circumstances surrounding the signing. The
Premier Care representative, Stacy Elstein, also had no specific
recollection of the transaction. Hence, there is no evidence that
Caballero either requested assistance in understanding the
document or was prevented from obtaining such assistance.
As the parties acknowledge, the Arbitration Agreement
complies with the requirements of Code of Civil Procedure section
1295 for arbitration clauses in medical service contracts.
Consequently, as a matter of public policy, the Arbitration
Agreement “is not a contract of adhesion, nor unconscionable nor
otherwise improper.” (Id., subd. (e); Bolanos v. Khalatian (1991)
231 Cal.App.3d 1586, 1590 (Bolanos).) In the absence of any
evidence that Caballero communicated his inability to read the
Arbitration Agreement prior to signing it, the petition to compel
arbitration should have been granted. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Article 1 of the Arbitration Agreement provides: “It is
understood that any dispute as to medical malpractice, that is, as
to whether any medical services rendered under this contract
were unnecessarily or unauthorized or were improperly,
negligently or incompetently rendered will be determined by
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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.”
The Arbitration Agreement further states in red print:
“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.” The document
also states in red print: “NOTICE: BY SIGNING THIS
CONTRACT, YOU ARE AGREEING TO HAVE ALL
MONETARY DISPUTES EXCEPT COLLECTIONS AND
EVICTIONS DECIDED BY ARBITRATION, AND YOU ARE
GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL.
YOU DO NOT, HOWEVER, GIVE UP YOUR RIGHTS TO SUE
FOR VIOLATION OF THE PATIENT’S BILL OF RIGHTS.”
Each “NOTICE” has a separate signature block.
Article 4 of the Arbitration Agreement advises that the
“[a]greement to arbitrate is not a precondition for medical
treatment or for admission to the Facility.” By signing the
agreement, however, Caballero “certifie[d] that [he] has read this
Agreement, and has been given a copy, and is either the
Resident, or is the representative of the Resident, duly
authorized to execute the above and accepts its terms.”
On November 17, 2019, Caballero’s mother fell to the floor
while she was being transferred by Premier Care’s employees via
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an “Invacare” hydraulic patient lift and body sling. She was
seriously injured and died later that day.
Plaintiffs filed this action against Premier Care, Invacare
Corporation and Simi Investment Properties LTD, alleging
causes of action for medical negligence, violations of the Elder
Abuse and Dependent Adult Civil Protection Act and product
liability. Premier Care petitioned to compel binding arbitration
pursuant to the Arbitration Agreement. Plaintiffs opposed the
petition.
Caballero did not deny signing the Arbitration Agreement
but declared: “My primary speaking, reading and writing
language is Spanish; I cannot read English, nor can I understand
spoken English except in a very limited sense.” He further
declared: “To my best recollection, during the time that my
mother was admitted as a patient to [Premier Care], I was not
presented nor did I sign a Resident-Facility Arbitration
Agreement in Spanish nor was I presented with an Agreement in
English that was explained to me.”
In its reply, Premier Care submitted the declaration of
Stacy Elstein, who had signed the Arbitration Agreement on its
behalf. Elstein stated: “When the subject Arbitration Agreement
was signed on January 5, 2016, it was, and still is, my custom
and practice to allow residents or their legal representatives to
completely review the Admission Agreement, as well as the
Arbitration Agreement, prior to signing them. In addition, it
was, and still is my custom and practice to have a Spanish
speaking staff member assist me by explaining/translating the
Admission Agreement and Arbitration Agreement and to answer
any questions the resident or their legal representative may have
about said documents prior to said documents being executed
when the resident or their legal representative appears not to
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understand English.” Elstein did not “recall the resident or her
legal representative having any questions about the Admission
Agreement or the Arbitration Agreement prior to said documents
being signed by [her] and the resident’s representative.”
The trial court denied the petition to compel arbitration,
finding that Caballero, as a non-English speaking signatory to
the Arbitration Agreement, was not sufficiently informed of what
he was signing. The court noted that Elstein’s practice was to
have a Spanish speaking staff member read the agreement and
explain it to the non-English speaking resident representative
but found “there [was] no showing . . . as to who that person was,
or what he/she said to Mr. Caballero. A declaration from the
involved staff member could potentially have clarified this to the
extent of making the agreement enforceable. This absence is
pivotal.”
DISCUSSION
Premier Care asserts that Caballero’s signatures on the
Arbitration Agreement objectively demonstrated his assent to the
arbitration provisions and that the trial court erred by shifting
the burden to Premier Care to demonstrate that Caballero
understood what he was signing. Cabellero contends the order
denying the motion to compel arbitration must be affirmed
because “[t]there is no evidence that it was explained to [him]
that he was being given an arbitration agreement to sign.”
Standard of Review
“The party seeking to compel arbitration has the burden of
proving the existence of an enforceable arbitration agreement by
a preponderance of the evidence, and a party opposing the
petition bears the burden of proving by a preponderance any fact
necessary to its defense.” (Baker v. Italian Maple Holdings LLC
(2017) 13 Cal.App.5th 1152, 1157 (Baker).) “‘[T]he court sits as a
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trier of fact, weighing all the affidavits, declarations, and other
documentary evidence, as well as oral testimony received at the
court’s discretion to reach a final determination.’ [Citation.]
[T]he issue of whether an arbitration agreement exists is a
‘preliminary question to be determined by the court. . . .’
[Citations.] If that preliminary question requires the resolution
of factual issues, then the court must resolve such issues . . . .”
(Id. at p. 1158.)
“‘Ordinarily, we review a denial of a petition to compel
arbitration for abuse of discretion. [Citation.] However, where
the trial court’s denial of a petition to arbitrate presents a pure
question of law, we review the order de novo.’” (Mendez v. Mid-
Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.)
“If the [trial] court’s decision regarding arbitrability is based on
resolution of disputed facts, we review the decision for
substantial evidence.” (Baker, supra, 13 Cal.App.5th at p. 1158.)
The Trial Court Erred by Denying the Petition
To Compel Arbitration
Caballero does not dispute that his signatures appear on
the Arbitration Agreement. He contends there was no “mutual
assent” to the agreement because he cannot not read English and
therefore did not understand he was waiving his right to a jury or
court trial.
In California, “[g]eneral principles of contract law
determine whether the parties have entered a binding agreement
to arbitrate.” (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th
416, 420.) “An essential element of any contract is the consent of
the parties, or mutual assent.” (Donovan v. RRL Corp. (2001) 26
Cal.4th 261, 270.) Further, the consent of the parties to a
contract must be communicated by each party to the other. (Civ.
Code, § 1565, subd. 3.) “Mutual assent is determined under an
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objective standard applied to the outward manifestations or
expressions of the parties, i.e., the reasonable meaning of their
words and acts, and not their unexpressed intentions or
understandings.” (Alexander v. Codemasters Group Limited
(2002) 104 Cal.App.4th 129, 141.) “A party’s acceptance of an
agreement to arbitrate may be express, as where a party signs
the agreement.” (Pinnacle Museum Tower Assn. v. Pinnacle
Market Development (US), LLC (2012) 55 Cal.4th 223, 236
(Pinnacle).) “‘[O]ne who accepts or signs an instrument, which on
its face is a contract, is deemed to assent to all its terms, and
cannot escape liability on the ground that he has not read it. If
he cannot read, he should have it read or explained to him.’”
(Randas v. YMCA of Metropolitan Los Angeles (1993) 17
Cal.App.4th 158, 163 (Randas); 1 Witkin, Summary of Cal. Law
(11th ed. 2021) Contracts, § 118, pp. 159-160.)
Here, Caballero’s outward manifestations, i.e., the signing
of the Arbitration Agreement in two places and the initialing of
the provision on “Retroactive Effect,” demonstrated mutual
assent and an intent to enter into the agreement. Absent fraud
or overreaching, Caballero’s inability to read English and his
limited ability to speak or understand English do not alter the
conclusion that his signatures and initials on the contract
manifested his agreement to its terms. (See Pinnacle, supra, 55
Cal.4th at p. 236.)
Generally, a party may not avoid enforcement of an
arbitration provision because the party has limited proficiency in
the English language. If a party does not speak or understand
English sufficiently to comprehend a contract in English, it is
incumbent upon the party to have it read or explained to him or
her. (Ramos, supra, 242 Cal.App.4th at p. 687; Randas, supra, 17
Cal.App.4th at p. 163 [swimming class release form in English
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valid even though the signatory could only read Greek]; Fields v.
Blue Shield of California (1985) 163 Cal.App.3d 570, 578 [“It is a
general rule a party is bound by contract provisions and cannot
complain of unfamiliarity of the language of a contract”].)
An exception to the general rule applies when a party was
fraudulently induced to sign the contract. (Ramos, supra, 242
Cal.App.4th at p. 688 [contract void for fraud in the execution
when party deceived as to nature of document]; Metters v. Ralphs
Grocery Co. (2008) 161 Cal.App.4th 696, 702 [dispute resolution
form failed to warn employee he was agreeing to binding
arbitration].) This exception is inapplicable here, because
Caballero does not contend Premier Care defrauded him or
prevented him from learning the contract’s terms. He simply
states that, to the best of his recollection, he was not presented
with an Arbitration Agreement in Spanish or an Arbitration
Agreement in English that was explained to him. He cites no
authority suggesting it was Premier Care’s initial burden to
ascertain whether he could understand the English version. All
Caballero had to do was tell Elstein or one of Premier Care’s
Spanish-speaking employees that he cannot read English and the
burden would have shifted to Premier Care to explain the
contents of the Arbitration Agreement. His decision to sign a
document he could not read is not a basis for avoiding an
arbitration agreement. (See Brookwood v. Bank of America
(1996) 45 Cal.App.4th 1667, 1674 [“‘A party cannot use his own
lack of diligence to avoid an arbitration agreement’”].)
We conclude the law and substantial evidence do not
support the trial court’s denial of Premier Care’s petition to
compel arbitration. Caballero assented to the contract terms by
signing and initialing the Arbitration Agreement (Randas, supra,
17 Cal.App.4th at p. 163), and there is no evidence he asked
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Elstein or any other Premier Care employee for a Spanish version
of the agreement or assistance in understanding the English
version. (See Rosenthal v. Great Western Fin. Securities Corp.
(1996) 14 Cal.4th 394, 431 [Plaintiffs’ “failure to take measures to
learn the contents of the document they signed is attributable to
their own negligence”].) Moreover, the fact that the Arbitration
Agreement has two uppercase notices in red, directly above the
signature blocks, advising that signing the agreement would
result in a waiver of a jury or court trial should have alerted
Caballero to the significance of those provisions regardless of
whether he could read them. On this record, Caballero’s failure
to take steps to learn the contents of the agreement is
attributable to his own negligence and may not be imputed to
Premier Care. (Ibid.)
DISPOSITION
The trial court’s order denying Premier Care’s petition to
compel arbitration is reversed. On remand, the trial court is
directed to grant the petition to compel arbitration and to stay
the case as to Premier Care. Premier Care shall recover its costs
on appeal.
CERTIFIED FOR PUBLICATION.
PERREN, J.
We concur:
YEGAN, Acting P. J. TANGEMAN, J.
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Henry J. Walsh, Judge
Superior Court County of Ventura
______________________________
Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre, Tracy
D. Forbath, Kathleen M. Walker and Jeffrey S. Healey, for
Defendant and Appellant.
Law Offices of Greg W. Garrotto, Greg W. Garrotto, for
Plaintiffs and Respondents.
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