Sajjadi v. The Rehabilitation Centre of Beverly Hills CA2/3 ( 2023 )

Filed 6/20/23 Sajjadi v. The Rehabilitation Centre of Beverly Hills CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
NIMA SAJJADI et al., B317554
Plaintiffs and Respondents, Los Angeles County
Super. Ct. No.
v. 21STCV24399
THE REHABILITATION
CENTRE OF BEVERLY HILLS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Audra M. Mori, Judge. Affirmed.
Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre,
Daniel R. Velladao, and Kathleen M. Walker for Defendant and
Appellant.
Gaw | Poe, Randolph Gaw, Mark Poe, and Victor Meng for
Plaintiffs and Respondents.
_______________________________________
INTRODUCTION
Defendant and appellant The Rehabilitation Centre of
Beverly Hills (RCBH), appeals from an order denying its petition
to compel arbitration as to the wrongful death claim brought by
plaintiffs and respondents Nima Sajjadi, Sima Nobahar, and the
Estate of Mahmood Sajjadi (plaintiffs). The trial court ruled that
the wrongful death claim was not subject to arbitration because it
is primarily based on allegations of elder abuse and thus Code of
Civil Procedure1 section 1295 does not apply to bind plaintiffs to
the arbitration agreement signed by the decedent, Mahmood
Sajjadi.2 We agree and affirm.
FACTS AND PROCEDURAL BACKGROUND
Mahmood is the father of Nima and husband of Nobahar.
In March of 2020, Mahmood sustained an injury to his toe that
became infected. Although he was treated with antibiotics, his
foot became gangrenous and was ultimately amputated at the
Cedars-Sinai Medical Center (Cedars-Sinai). Shortly thereafter,
Mahmood signed an advanced healthcare directive appointing
Nima as his healthcare agent.
In August of 2020, Mahmood was admitted to RCBH, a
rehabilitation and skilled nursing center. The admissions
paperwork included an arbitration agreement, which Mahmood
and a representative of RCBH both signed. The agreement stated
that an arbitrator would resolve any medical malpractice
1All undesignated statutory references are to the Code of Civil
Procedure.
2Because Nima and Mahmood share the same last name, we refer to
them by their first names. No disrespect is intended.
2
disputes. It also stated that any dispute between Mahmood and
RCBH or any of its employees relating to the provision of care,
treatment or services to Mahmood at RCBH, including any action
for injury or death arising from negligence, intentional tort
and/or statutory causes of action would be determined by
arbitration. The agreement further provided that it is binding on
all parties, including representatives, executors, family members,
and heirs who bring any claims individually or in a
representative capacity. On the signature page, there was a
statement pursuant to section 1295, subdivision (b), that
provided: “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.” (All caps removed.)
In September 2020, Mahmood was transferred to Cedars-
Sinai, where doctors diagnosed him with “acute renal failure
likely due to dehydration.” Mahmood later developed a
Methicillin-resistant Staphylococcus aureus (MRSA) infection. He
was transferred again to Cedars-Sinai on September 23 and
October 18, and ultimately died of sepsis in December 2020.
In June 2021, the plaintiffs filed a lawsuit against RCBH,
asserting a wrongful death claim in Nima and Nobahar’s
personal capacity and a negligence survivor claim on behalf of the
Estate. RCBH moved to compel arbitration based on the
agreement signed by Mahmood.
Shortly thereafter, the plaintiffs filed an amended
complaint, which asserted a new survivor claim for elder abuse in
addition to the wrongful death and negligence survivor claims.
The amended complaint alleged that Mahmood either acquired
the MRSA infection at RCBH or the infection was exacerbated
3
there due to RCBH’s negligent care, that the MRSA infection or
remnants of the gangrene infection developed into sepsis, and
that, because of the deterioration of his condition due to RCBH’s
inadequate care, the sepsis proved fatal. It further alleged that
Mahmood’s hospitalization for dehydration shortly after he was
admitted “can only be explained by the negligence of RCBH
employees, as [keeping a patient properly hydrated] was a
shockingly basic task that they did not accomplish.” “Another
sign of RCBH’s negligence was that Mahmood’s family was
always told that Mahmood was sleeping, despite the fact that his
family deliberately called at various times of the day over many
days,” which suggested that RCBH’s staff “likely just did not
bother to check at all.” The amended complaint also alleged that
“RCBH employees failed to provide appropriate medical care on
Mahmood (given that they could not even keep him hydrated),
which caused him to contract MRSA or exacerbate an existing
infection during his stay at their facility.”
With respect to the wrongful death and survivor negligence
causes of action, the amended complaint alleged that “RCBH
breached its duty of care because it provided inadequate care to
Mahmood during his stay at its facility, which caused him to
develop acute renal failure and also to acquire a MRSA infection
(or exacerbate an existing infection).” With respect to the elder
abuse cause of action, it alleged that “RCBH’s staff neglected
Mahmood’s physical care with reckless indifference by failing to
prevent his dehydration” and that its negligence was reckless
because “[t]here is no justification why RCBH employees could
not prevent its patients from experiencing severe dehydration
after less than a month’s stay.” The plaintiffs further alleged that
Nima and Nobahar’s inability to get in contact with Mahmood at
4
RCBH, despite calling “at all hours of the day and night,”
indicated that “RCBH’s employees simply did not care and did
not bother to check on Mahmood” and that “there was systemic
indifference at RCBH towards Mahmood that was authorized or
ratified by its executives (or at least, took place with their
knowledge).”
The plaintiffs also opposed the motion to compel
arbitration. They contended that RCBH had failed to present
evidence that the arbitration agreement was subject to section
1295, which operates to bind a patient’s agreement to arbitrate
on his heirs with respect to a wrongful death claim, because it not
shown that it was a “health care provider” as defined by the
statute. They also argued that they had not signed the
arbitration agreement and that their elder abuse claim and
wrongful death claim sounding in elder abuse fall outside the
scope of section 1295, which only pertains to claims for
professional negligence.
The trial court held that the wrongful death claim was not
subject to arbitration because it sounded in elder abuse and thus
did not fall within the ambit of section 1295. The court granted
RCBH’s petition to compel arbitration as to the survivor claims
and ordered the wrongful death claim stayed.
CONTENTIONS
RCBH argues that the court erred in denying the motion to
compel with respect to the wrongful death claim because the
arbitration agreement complied with section 1295, RCBH is a
licensed health care provider, and the wrongful death claim arose
from its alleged professional negligence. The plaintiffs argue that
the court correctly concluded that section 1295 does not apply to
5
their wrongful death claim because it is primarily based on
allegations of elder abuse.3
DISCUSSION
1. The court did not err in holding that the plaintiffs’
wrongful death claim was not subject to arbitration.
1.1. Standard of Review
“ ‘There is no uniform standard of review for evaluating an
order denying a motion to compel arbitration. [Citation.] If the
court’s order is based on a decision of fact, then we adopt a
substantial evidence standard. [Citations.] Alternatively, if the
court’s denial rests solely on a decision of law, then a de novo
standard of review is employed. [Citations.]’ [Citation.]” (Avery v.
Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50,
60.) The issue of whether a third party is bound by an arbitration
agreement is a question of law. (Daniels v. Sunrise Senior Living,
Inc. (2013) 212 Cal.App.4th 674, 680 (Daniels).)
1.2. Section 1295 and its Application to
Nonsignatories of an Arbitration Agreement
Section 1295 governs agreements to arbitrate professional
negligence claims in medical services contracts with health care
providers.4 In Ruiz v. Podolsky (2010) 50 Cal.4th 838, 841 (Ruiz),
3On appeal, the plaintiffs do not dispute that the arbitration
agreement satisfies the requirements of section 1295 or that RCBH is
a “health care provider” under section 1295.
4Section 1295 defines “professional negligence” as “a negligent act or
omission to act by a health care provider in the rendering of
professional services, which act or omission is the proximate cause of a
personal injury or wrongful death, provided that such services are
6
the Supreme Court held “that all wrongful death claimants are
bound by arbitration agreements entered into pursuant to section
1295, at least when . . . the language of the agreement manifests
an intent to bind these claimants.” “ ‘Section 1295 was enacted as
part of the Medical Injury Compensation Reform Act of 1975
(MICRA). . . . The purpose of section 1295 is to encourage and
facilitate arbitration of medical malpractice disputes,’ ” because
the arbitration of these disputes “furthers MICRA’s goal of
reducing costs in the resolution of malpractice claims and
therefore malpractice insurance premiums.” (Id. at pp. 843–844.)
The Supreme Court was “persuaded that section 1295, construed
in light of its purpose, is designed to permit patients who sign
arbitration agreements to bind their heirs in wrongful death
actions.” (Id. at pp. 849–850.)
In Daniels, the plaintiff alleged that the decedent, who was
elderly and suffered from “ ‘dementia with psychosis,’ ” died as a
result of receiving inadequate care at the defendant’s residential
care facility for the elderly. (Daniels, supra, 212 Cal.App.4th at
p. 677.) In her capacity as the decedent’s successor in interest,
the plaintiff alleged claims for elder abuse, negligence, breach of
contract, and willful misconduct. (Id. at pp. 677–678.) The
plaintiff also alleged a wrongful death cause of action in her
personal capacity as the decedent’s heir. (Id. at p. 678.)
Upon the decedent’s admission to the facility, the plaintiff,
who had power of attorney for the decedent, had signed a
residency agreement containing an arbitration provision covering
within the scope of services for which the provider is licensed and
which are not within any restriction imposed by the licensing agency or
licensed hospital.” (§ 1295, subd. (g)(2).)
7
“ ‘any and all claims and disputes arising from or related to this
Agreement or to your residency, care or services’ ” received at the
facility, and which bound “ ‘all parties to this Agreement and
their spouse, heirs, representatives, executors, administrators,
successors, and assigns, as applicable. . . .’ ” (Daniels, supra, 212
Cal.App.4th at p. 678.) The defendants therefore moved to compel
arbitration. (Ibid.) The trial court denied the motion, concluding
that the wrongful death claim was not arbitrable because the
plaintiff did not sign the residency agreement in her personal
capacity and was therefore a third party to the agreement. (Id. at
p. 679.)
The Court of Appeal agreed. It observed that a plaintiff’s
“wrongful death claim is personal to her and lies independent
of . . . survivor claims,” and that “[a]s a general rule, a party
cannot be compelled to arbitrate a dispute that he or she has not
agreed to resolve by arbitration.” (Daniels, supra, 212
Cal.App.4th at p. 680.) The court explained that “Ruiz is based
squarely on section 1295, which governs agreements to arbitrate
professional negligence or medical malpractice claims” and
“disagree[d] that Ruiz should be extended to arbitration
agreements not governed by section 1295, or that are entered into
with a person other than a health care provider for claims other
than medical malpractice.” (Id. at pp. 682–683.) The court
rejected the defendants’ contention that a residential care facility
was “ ‘an extension of a health care facility’ ” and thus subject to
section 1295. (Id. at pp. 683–684.)
In Avila v. Southern California Specialty Care, Inc. (2018)
20 Cal.App.5th 835 (Avila), the decedent, an 87-year-old man,
was admitted to an acute care hospital, where a feeding tube
allegedly became dislodged and caused the man to aspirate. (Id.
8
at p. 838.) The decedent’s son had previously signed an
arbitration agreement on the decedent’s behalf that included the
necessary language from section 1295. (Avila, at p. 838.) The
decedent’s son sued for “ ‘negligence/willful misconduct,’ ” elder
abuse, and wrongful death. (Id. at p. 839.) The Avila court
recognized that Ruiz created “an exception to the general rule
that arbitration agreements must be the subject of consent rather
than compulsion.” (Id. at p. 841.) Thus, the central question was
“whether Ruiz is controlling here,” which required that the court
“determine whether this case is about ‘professional negligence,’ as
defined by MICRA, or something else.” (Id. at p. 842.)
The court rejected the defendants’ contention that “Daniels
is irrelevant because the defendant in that case was not a
licensed health care provider” and concluded that “[w]hat matters
is not the license status of the defendant, but the basis of the
claims as pleaded in the complaint. If the primary basis for the
wrongful death claim sounds in professional negligence . . . then
section 1295 applies. If . . . the primary basis is under the Elder
Abuse and Dependent Adult Civil Protection Act [(the Elder
Abuse Act)] [citations] . . . , then section 1295 does not apply and
neither does Ruiz’s exception to the general rule that one who has
not consented cannot be compelled to arbitrate.” (Avila, supra, 20
Cal.App.5th at p. 842.) The court noted that “[t]he complaint
includes allegations that could be categorized as professional
negligence as well as elder abuse” and that “[t]here is at least
some overlap between the two.” (Id. at p. 843.) However, “the
complaint was pleaded as one for ‘negligence/willful misconduct,’
elder abuse and neglect under the [Elder Abuse] Act, and
wrongful death. The complaint allege[d] a ‘conscious and
continued pattern of withholding the most basic care and
9
services,’ which included a lack of monitoring, supervision,
assistance, and other adequate care and services.” (Ibid.) “Under
the [Elder Abuse] Act, neglect ‘ “refers not to the substandard
performance of medical services but, rather, to the ‘failure of
those responsible for attending to the basic needs and comforts of
elderly or dependent adults, regardless of their professional
standing, to carry out their custodial obligations.’ [Citation.]
Thus, the statutory definition of ‘neglect’ speaks not of the
undertaking of medical services, but of the failure to provide
medical care.” ’ [Citation.]” (Ibid.; see also Welf. & Inst. Code,
§ 15610.57.) Because the plaintiffs “chose to plead a cause of
action under the [Elder Abuse] Act, and they did so successfully[,]
[t]he fact that they could have also pleaded a claim for medical
malpractice, had they wished to do so, is irrelevant.” (Avila, at
p. 843.)
1.3. Analysis
Although the arbitration agreement at issue here provides
that any dispute between Mahmood and RCBH will be
determined by submission to arbitration and is binding on “all
parties,” including “representatives . . . and heirs who bring any
claims individually or in a representative capacity”, the
agreement was signed only by Mahmood, not by Nima or
Nobahar. “Generally speaking, one must be a party to an
arbitration agreement to be bound by it. ‘The strong public policy
in favor of arbitration does not extend to those who are not
parties to an arbitration agreement, and a party cannot be
compelled to arbitrate a dispute that he has not agreed to resolve
by arbitration. [Citation.]’ [Citation.]” (Buckner v. Tamarin (2002)
98 Cal.App.4th 140, 142.)
10
As discussed, section 1295 supplies an exception to this
general rule and permits patients who consented to arbitration to
bind their heirs in actions for wrongful death where the action is
based on professional negligence. As in Avila, the question before
us is “whether Ruiz is controlling here.” (Avila, supra, 20
Cal.App.5th at p. 842.) Thus, we must “determine whether this
case is about ‘professional negligence,’ as defined by MICRA, or
something else.” (Ibid.)
RCBH argues that the wrongful death claim sounds in
professional negligence because “the basis for the wrongful death
cause of action was RCBH’s alleged failure to provide appropriate
medical care for Mahmood’s infection.” While there is “at least
some overlap between” professional negligence and elder abuse
(Avila, supra, 20 Cal.App.5th at p. 843), the plaintiffs here
pleaded their action as one for wrongful death, negligence, and
elder abuse. They alleged that there was a failure by RCBH’s
employees to attend to Mahmood’s basic needs, including
hydration, which resulted in his hospitalizations, and a failure to
check on him, as reflected by their failure to put Nima and
Nobahar in touch with Mahmood when they frequently called. As
in Avila, these allegations are consistent with a claim for neglect
under the Elder Abuse Act, which “ ‘ “speaks not of the
undertaking of medical services, but of the failure to provide
medical care.” ’ [Citation.]” (Ibid.)
RCBH does not address or distinguish Avila or Daniels but
relies on several cases that did not concern arbitrability or
section 1295 to support the proposition that the allegations of the
amended complaint are consistent with professional negligence
11
and do not plead a claim for elder abuse.5 We are not persuaded.
First, as the plaintiffs point out, the issue here is not whether
they have successfully pleaded a claim for elder abuse, but
whether their wrongful death cause of action is based on
something other than professional negligence. Thus, to the extent
that RCBH relies on the cases to support that the plaintiffs have
not adequately pleaded recklessness for purposes of stating a
claim for elder abuse, we do not find them instructive, as that is
not the question before us.6
Moreover, the cases RCBH cites addressing neglect under
the Elder Abuse Act are distinguishable. In Carter v. Prime
Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396,
406–407 (Carter), the court observed that, to state a claim for
elder abuse, a “plaintiff must allege . . . facts establishing that
5 RCBH also did not address Quiroz v. Seventh Ave. Center (2006) 140
Cal.App.4th 1256 in its briefing below or on appeal, nor was that case
raised by plaintiffs or the court. The dissent nevertheless contends that
Quiroz does not allow Mahmood’s heirs to sue on their own behalf for
wrongful death based on allegations of elder abuse. The pivotal issue
in that case, however, was whether the filing of the survivor action
related back to the filing of the wrongful death claim in the original
complaint, thereby avoiding the bar of the statute of limitations. (Id. at
pp. 1262, 1278.) The Quiroz court observed that the relation-back
doctrine required that the amended complaint must involve the same
injury, and a new plaintiff could not be joined after the limitations
period has run if he or she seeks to enforce an independent right or
greater liability. (Id. at p. 1278.)
6Cochrum v. Costa Victoria Healthcare, LLC (2018) 25 Cal.App.5th
1034 does not assist RCBH for this reason. The court in Cochrum
affirmed a judgment notwithstanding the verdict on the basis that the
plaintiff had not identified substantial evidence of recklessness by the
defendants. (Id. at pp. 1044–1050.)
12
the defendant: (1) had responsibility for meeting the basic needs
of the elder or dependent adult, such as nutrition, hydration,
hygiene or medical care [citations]; (2) knew of conditions that
made the elder or dependent adult unable to provide for his or
her own basic needs [citations]; and (3) denied or withheld goods
or services necessary to meet the elder or dependent adult’s basic
needs . . . .” The court concluded that the demurrer of the elder
abuse cause of action had been properly sustained where the
plaintiff had failed to allege that the defendant had denied or
withheld care or treatment from the decedent in connection with
the decedent’s first two hospitalizations and had alleged that the
defendant’s “staff actively undertook to provide treatment
intended to save [the decedent’s] life” with respect to the third
hospitalization. (Id. at pp. 407–408.)
In Alexander v. Scripps Memorial Hospital La Jolla (2018)
23 Cal.App.5th 206, 212 (Alexander), the decedent, a 70-year-old
woman suffering from end-stage terminal pancreatic cancer, died
days after she was transferred from a skilled nursing facility to
the defendant hospital. The complaint alleged that the
“[d]efendants administered drugs to [the decedent] to hasten her
death and withheld nutrition, hydration, and pain medication,”
but was also “replete with allegations that [the decedent]
regularly received pain medication, nutrition, and fluids” and
that defendants “provided [the decedent] with medical care
throughout her hospitalization.” (Id. at p. 224.) The Court of
Appeal thus concluded that the plaintiffs’ complaint was
insufficient to state a cause of action for elder abuse within the
meaning of the Elder Abuse Act because “[u]nlike cases in which
elder abuse is properly pleaded because the patient was
abandoned or ignored for extended periods of time, here family
13
members disagreed with the nature of care their mother was
receiving. Disagreements between physicians and the patient or
surrogate about the type of care being provided does not give rise
to an elder abuse cause of action.” (Id. at p. 223.)
Here, the amended complaint alleges that RCBH failed to
take appropriate action with respect to Mahmood, not that the
plaintiffs disagreed with RCBH’s rendering of professional
services. The amended complaint is not “replete” with references
to the medical care that RCBH provided to Mahmood (Alexander,
supra, 23 Cal.App.5th at p. 223), nor are there allegations that
RHBC “actively undertook to provide treatment.” (Carter, supra,
198 Cal.App.4th at p. 408.) RCBH fails to identify any allegations
describing the medical care it provided; it merely asserts that the
allegation that RCBH “failed to provide appropriate medical care”
suggests that it was providing medical care. Consistent with the
definition of “neglect” under the Elder Abuse Act, and in contrast
to the definition of “professional negligence” under section 1295,
the gravamen of the amended complaint is that Mahmood “was
abandoned or ignored for extended periods of time.” (Alexander,
at p. 223.)7
7 We are not persuaded by RCBH’s contention that the plaintiffs
admitted in the amended complaint that Mahmood’s wrongful death
from sepsis did not result from the alleged negligence of RCBH, but the
professional negligence of the doctors who treated his toe injury. As a
preliminary matter, this contention was raised for the first time in its
reply brief and was therefore forfeited. (Chicago Title Ins. Co. v. AMZ
Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 427–428.) Even if it
were not, the complaint alleges that Mahmood either acquired the
MRSA infection at RCBH or it was exacerbated there; that “[e]ither
that MRSA infection, or the remnants of his gangrene infection,
developed into sepsis”; and “[t]hat sepsis, along with the deterioration
of his physical condition from RCBH’s inadequate care, proved fatal to
14
Thus, we hold that the arbitration agreement is not
controlled by section 1295 and does not bind the plaintiffs as to
their wrongful death claim.
poor Mahmood.” The amended complaint plainly alleges that RCBH’s
negligence was a “substantial factor” in contributing to Mahmood’s
death and thus was sufficient to support a wrongful death cause of
action against RCBH. (See Bromme v. Pavitt (1992) 5 Cal.App.4th
1487, 1497.)
15
DISPOSITION
The order denying the motion to compel arbitration in part
is affirmed. The plaintiffs shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P.J.
I CONCUR:
BENKE, J.*
* Retired Associate Justice of the Court of Appeal, Fourth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
16
EGERTON, J., Dissenting.
I respectfully disagree with the majority’s analysis in
this case. In my view, the case is governed by our Supreme
Court’s decision in Ruiz v. Podolsky (2010) 50 Cal.4th 838 (Ruiz)
and Code of Civil Procedure section 1295.1 The law does not
permit Mahmood Sajjadi’s heirs to sue on their own behalf for
the elder abuse of Mahmood; only the estate can bring that claim.
Accordingly, the heirs cannot pursue a wrongful death cause
of action that is “based on” or “sounds in” elder abuse. Once
the heirs’ elder abuse theory is eliminated from their wrongful
death cause of action, the only remaining conduct alleged is
negligence. The heirs do not allege defendant and appellant
the Rehabilitation Centre of Beverly Hills (RCBH) battered
Mahmood or committed any other intentional tort against him.
Accordingly, under Ruiz and section 1295, their wrongful death
claim must go to arbitration along with the estate’s survivor
claims for negligence and elder abuse.
FACTS AND PROCEDURAL BACKGROUND
1. The complaints
The heirs of Mahmood Sajjadi, on behalf of themselves and
of his estate,2 have tried everything they can think of to defeat
the arbitration of this case. Their original complaint, filed
1 References to statutes are to the Code of Civil Procedure
unless otherwise noted.
2 Because the estate and the heirs—Mahmood Sajjadi’s
widow and his adult son—are differently situated in terms of
their authority to assert various causes of action, I refer to them
as the estate and the heirs rather than as “plaintiffs” collectively.
June 30, 2021, alleged Mahmood’s death was “caused by the
negligent conduct of [RCBH] in mishandling his postoperative
care” as well as by the “negligent misconduct” of two physicians
not affiliated with RCBH. The complaint then referred to
“Defendants’ gross negligence.”
Under “Factual Background,” the heirs alleged RCBH
“[f]ail[ed] to keep [Mahmood] properly hydrated” and its
“employees” were negligent in “apparently . . . not
accomplish[ing]” this “shockingly basic task.” They also alleged
that “[a]nother potential sign of RCBH’s negligence” was that his
family called repeatedly, “only to be told by RCBH that Mahmood
was sleeping.” The heirs alleged, “It is simply implausible that
. . . Mahmood would always be asleep. Rather, RCBH employees
likely just did not bother to check at all, and this lackadaisical
attitude was indicative of their overall efforts to monitor him.”
In addition, the heirs alleged “[o]n information and belief, RCBH
employees failed to perform adequate wound care on Mahmood.”
Based on these allegations, the heirs alleged causes of
action for wrongful death (first claim for relief) and negligence
(second claim for relief). In the wrongful death claim, the heirs
alleged each defendant owed Mahmood a duty of care, which
they breached. “RCBH breached its duty of care,” the complaint
alleged, “because it provided inadequate care to Mahmood during
his stay at its facility,” causing him to acquire a staphylococcus
infection. The negligence claim, alleged as a “survival action,”
repeated the identical allegation as to RCBH.
After RCBH filed a petition to compel arbitration, the heirs
filed an amended complaint on August 20, 2021. The heirs again
alleged RCBH was “negligent” “in mishandling [Mahmood’s]
postoperative care.” The amended complaint added allegations
2
that RCBH’s “negligent care” resulted in repeated hospital
readmissions “for acute renal failure (due to dehydration),”
and that Mahmood’s infection “either [was] acquired” at RCBH
“or exacerbated” there. The sepsis that resulted in Mahmood’s
death, the heirs alleged, resulted “[e]ither” from the staph
infection “or the remnants of his gangrene infection.” The
amended complaint alleged “[t]hat sepsis, along with the
deterioration of his physical condition from RCBH’s inadequate
care, proved fatal.” The heirs alleged Mahmood lost his life
“due to Defendants’ negligence.”
The heirs deleted their reference to “wound care” and
instead alleged RCBH’s employees “failed to provide appropriate
medical care” to Mahmood, “given that they could not even keep
him hydrated.” The amended complaint alleged three causes
of action: wrongful death (first claim for relief) “(By All Plaintiffs
against All Defendants)”3; a “survival action” for “negligence”
(second claim for relief); and a “survival action” for “elder abuse”
(third claim for relief).
In the elder abuse claim, the heirs added a paragraph
about Mahmood’s alleged signing of the arbitration agreement
(“If Mahmood did, in fact, sign this agreement . . .”), stating
“RCBH’s reckless and/or fraudulent behavior manifested itself
immediately” when it asked Mahmood to sign an arbitration
agreement. The heirs alleged “RCBH’s staff neglected
Mahmood’s physical care with reckless indifference by failing
to prevent his dehydration.” The heirs continued, “But it is
equally possible that RCBH’s employees were simply indifferent
3 At oral argument, plaintiffs’ counsel conceded he was
alleging this claim on behalf of the heirs only, and not the estate.
3
to the charge of their patients.” The amended complaint alleged
RCBH’s “staggering level of incompetence” “contributed toward[ ]
their reckless neglect towards Mahmood” and “may also have
been a contributing factor toward[ ] his eventual death.” The
heirs prayed for general, special, and punitive damages as well
as attorney fees.
2. Proceedings in the trial court on RCBH’s petition
to compel arbitration
The heirs—again on behalf of themselves and the estate—
filed an opposition to RCBH’s petition to compel arbitration.
The heirs raised a number of contentions. They argued the
agreement was “rescindable and unenforceable” because
Mahmood was “disoriented and delusional” and therefore lacked
capacity to enter into the agreement. They noted they—the heirs
—had not signed the agreement. They asserted RCBH was not
a “ ‘health care provider’ ” within the meaning of section 1295
and so Ruiz, supra, 50 Cal.4th 838, did not apply to this case.
Citing Avila v. Southern California Specialty Care, Inc.
(2018) 20 Cal.App.5th 835 (Avila) and Daniels v. Sunrise Senior
Living, Inc. (2013) 212 Cal.App.4th 674 (Daniels), the heirs
argued “claims for elder abuse are outside the scope of section
1295, and thus Mahmood’s agreement to arbitrate does not
bind Plaintiffs [sic] with respect to that claim.” The heirs said
“because an elder abuse claim is not subject to section 1295,
section 1281.2(c)’s carve out for medical malpractice claims is not
applicable to elder abuse claims.” Treating the estate’s survivor
claim for elder abuse and the heirs’ wrongful death claim as
interchangeable, they continued, “Accordingly, even if Mahmood’s
agreement to arbitrate were somehow binding on Plaintiffs [sic]
4
with respect to their elder abuse claim [sic]4 (or the aspects of the
wrongful death claim that are related to that elder abuse claim),
the Court could and should nevertheless decline to order them
to arbitrate those claims against RCBH because of the risk of
inconsistent factual rulings on the same issues between an
arbitration and this action.”
In its reply, RCBH argued the heirs hadn’t shown
Mahmood lacked the mental capacity to enter into the arbitration
agreement, the agreement was not unconscionable, and RCBH
was a healthcare provider. RCBH stated the court had no
discretion to invoke section 1281.2, subdivision (c) (section
1281.2(c)) because the Federal Arbitration Act (FAA) governed
the agreement. Citing Ruiz and section 1295, RCBH asserted
the heirs’ wrongful death claim indeed was subject to arbitration.
RCBH argued Avila was distinguishable because there was
no claim for negligence in that case,5 while here the estate had
alleged a survivor claim for negligence.
The court heard argument on the petition on September 28,
2021.6 On October 8, 2021, the court issued a written opinion.
4 As discussed below, only Mahmood (or his estate) can
assert an elder abuse claim. The heirs have no claim, in their
own right, under the Elder Abuse Act. (Quiroz v. Seventh Ave.
Center (2006) 140 Cal.App.4th 1256, 1282 (Quiroz).)
5 RCBH was mistaken. In Avila, the plaintiffs alleged
a cause of action for “ ‘negligence/willful misconduct.’ ” (Avila,
supra, 20 Cal.App.5th at pp. 837, 839.)
6 At the hearing, the heirs’ counsel argued (among other
things) that “elder abuse claims are not subject to MICRA.” It is
unclear what counsel meant by this. Recoverable damages under
5
The court found there was a “valid enforceable arbitration
agreement between RCBH and [Mahmood].” The agreement
was not unconscionable. RCBH and Mahmood agreed the FAA
would govern their agreement and therefore the court could not
“look to [Code of Civil Procedure] § 128[1].2(c) to deny the motion
to arbitrate.”
The court therefore granted the petition as to the survivor
claims for negligence and elder abuse. As for the heirs’ wrongful
death claim, however, relying on Avila, the court denied the
petition. The court stated, “Because the wrongful death claim
sounds in elder abuse, section 1295 does not apply.”
DISCUSSION
1. The wrongful death tort and the Elder Abuse Act
At common law, personal tort claims expired when the
victim died. Today, a cause of action for wrongful death exists
only by virtue of legislative grace. The statutorily created
wrongful death cause of action (§§ 377.60-377.62) does not effect
a survival of the decedent’s cause of action. Instead, it gives
the decedent’s heirs a totally new right of action, on different
principles. (Quiroz, supra, 140 Cal.App.4th at p. 1263; Adams v.
Superior Court (2011) 196 Cal.App.4th 71, 76 (Adams); Armijo v.
Miles (2005) 127 Cal.App.4th 1405, 1424; 6 Witkin, Summary of
Cal. Law (11th ed. 2023) Torts, §§ 1537-1538.) The elements of a
wrongful death cause of action are “ ‘the tort (negligence or other
wrongful act), the resulting death, and the damages, consisting
of the pecuniary loss suffered by the heirs.’ ” (Quiroz, at p. 1263,
the Elder Abuse Act cannot exceed those allowed under Civil
Code section 3333.2, subdivision (b). (See Welf. & Inst. Code,
§ 15657, subd. (b).)
6
quoting 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 891,
p. 350. See § 377.60 [wrongful death action may be maintained
“for the death of a person caused by the wrongful act or neglect
of another”]; 6 Witkin, supra, Torts, § 1541 [“Hence, recovery
is authorized when death results from either a negligent or
an intentional wrongful act.”].)
“Unlike a cause of action for wrongful death, a survivor
cause of action is not a new cause of action that vests in the heirs
on the death of the decedent. It is instead a separate and distinct
cause of action which belonged to the decedent before death but,
by statute, survives that event.” (Quiroz, supra, 140 Cal.App.4th
at p. 1264; Adams, supra, 196 Cal.App.4th at pp. 78-79; Grant
v. McAuliffe (1953) 41 Cal.2d 859, 864.) The heirs can recover
damages for “the loss or damage that the decedent sustained
or incurred before death, including any penalties or punitive or
exemplary damages that the decedent would have been entitled
to recover had the decedent lived, and do not include damages
for pain, suffering, or disfigurement.” (§ 377.34, subd. (a).)
One exception, however, to the rule that damages for the
decedent’s predeath pain and suffering are not recoverable in
a survivor action is contained in the Elder Abuse and Dependent
Adult Civil Protection Act, Welf. & Inst. Code, § 15600 et seq.
(the Elder Abuse Act or the Act). “The ability of the decedent’s
successor in interest to recover damages for the decedent’s
predeath pain, suffering, or disfigurement under [section 15657
of the Act] specifically trumps the general prohibition on such
recovery provided at Code of Civil Procedure section 377.34.
[Citation.] But it is also expressly subject to the dollar amount
limitation of Civil Code section 3333.2—a maximum of $250,000
for noneconomic losses in an action for injury against a health
7
care provider based on professional negligence.” (Quiroz, supra,
140 Cal.App.4th at p. 1265.)
The Elder Abuse Act provides for heightened remedies
when the decedent’s successor in interest proves, by clear and
convincing evidence, that—as relevant here—the defendant
is liable for “neglect” and “has been guilty of recklessness,
oppression, fraud, or malice.” (Welf. & Inst. Code, § 15657,
subds. (a) & (b); Quiroz, supra, 140 Cal.App.4th at p. 1265.)
The Act defines “neglect” as “[t]he negligent failure of any person
having the care or custody of an elder . . . to exercise that degree
of care that a reasonable person in a like position would exercise.”
(Welf. & Inst. Code, § 15610.57, subd. (a)(1).) “Neglect includes,
but is not limited to, all of the following: [¶] (1) Failure to assist
in personal hygiene, or in the provision of food, clothing, or
shelter. [¶] (2) Failure to provide medical care for physical . . .
needs. . . . [¶] (3) Failure to protect from health and safety
hazards. [¶] (4) Failure to prevent malnutrition or dehydration.”
(Id., subd. (b)(1)-(4).) “[T]he Legislature intended the Elder
Abuse Act to sanction only egregious acts of misconduct distinct
from professional negligence.” (Covenant Care, Inc. v. Superior
Court (2004) 32 Cal.4th 771, 784.)
The statutory rule permitting recovery under the Elder
Abuse Act by the victim’s successor in interest or heirs “does not
affect or expand the type of damages recoverable by a decedent’s
heir in a wrongful death action in which the plaintiff seeks
compensation for his or her own injuries, which are separate
and distinct from the decedent’s predeath injuries for which
compensation is sought in a survivor action.” (Quiroz, supra,
140 Cal.App.4th at p. 1265. See 6 Witkin, supra, Torts, § 1865.)
In other words, distinct from a survivor claim under the Act,
8
a cause of action for wrongful death does not permit a decedent’s
heir to seek recovery for his or her own injuries based on a
violation of the Act that damaged the decedent. (Quiroz, at
p. 1269.) Accordingly, here, the heirs cannot seek recovery
in their own wrongful death claim for RCBH’s violation of
the Act in its treatment of—or failure to treat—Mahmood.7
2. Ruiz and section 1295
In Ruiz, supra, 50 Cal.4th 838, our Supreme Court
addressed this issue: “[W]hen a person seeking medical care
7 The majority notes Quiroz had to do with the statute
of limitations. (Maj. Opn. ante, at p. 12, fn. 5.) True. It did.
However, the majority does not contend the Quiroz court’s
explanation of the governing law on wrongful death claims
and elder abuse claims was dicta, or inaccurate in any way.
Nor could it. To determine whether the untimely survivor
cause of action for elder abuse asserted by the decedent’s mother
related back to the date of her timely filed wrongful death claim
on her own behalf—“ ‘based on the same underlying facts’ ”
(Quiroz, supra, 140 Cal.App.4th at pp. 1262, 1270)—the Quiroz
court had to determine who exactly was entitled to bring each
of those claims. The court stated, “Consistently with established
law, we hold that the survivor cause of action pleaded a different
injury than the wrongful death cause of action. Consequently,
the survivor claim does not relate back to the date of the timely
filed wrongful death claim and it is therefore barred by the
statute of limitations.” (Id. at p. 1262.) The court further held
the mother was “not entitled to heightened remedies available
under the Elder Abuse Act in conjunction with her own wrongful
death claim.” (Ibid.)
This is precisely what Mahmood’s heirs are attempting
to do here: recover for the elder abuse of Mahmood in their own
wrongful death claim. And the same “established law” the Quiroz
court cited prohibits them from doing so.
9
contracts with a health care provider to resolve all medical
malpractice claims through arbitration, does that agreement
apply to the resolution of wrongful death claims, when the
claimants are not themselves signatory to the arbitration
agreement?” (Id. at p. 841.) The court concluded the answer
was “yes,” at least where “the language of the agreement
manifests an intent to bind [those] claimants.” (Ibid.)
In Ruiz, the decedent’s heirs sued his doctor and others,
alleging the defendants “failed to adequately identify and treat
[decedent’s] hip fracture[,] resulting in complications, and
eventually his death.” (Ruiz, supra, 50 Cal.4th at pp. 841-842.)
They alleged claims for medical malpractice and wrongful death.
The decedent had signed an arbitration agreement that expressly
stated it bound “ ‘all parties whose claims may arise out of
or relate to treatment or service provided by the physician[,]
including any spouse or heirs of the patient.’ ” (Ibid.)
The high court quoted section 1295, noting its purpose was
“ ‘to encourage and facilitate arbitration of medical malpractice
disputes. . . . Accordingly, the provisions of section 1295 are to
be construed liberally.’ ” (Ruiz, supra, 50 Cal.4th at pp. 843-844.)
The court stated, “[I]t is clear that section 1295 was intended to
include the arbitration of wrongful death claims.” (Id. at p. 849.)
The court noted, “In light of the purpose and scope of the statute,
it is not surprising that section 1295 does not distinguish
between malpractice claims asserted by the patient or the
patient’s estate, and wrongful death claims arising out of alleged
malpractice committed against the patient.” (Id. at p. 850.)
Justice Moreno, on behalf of the court, noted it was
the “ ‘perceived crisis regarding the availability of medical
malpractice insurance’ ” that led to the Legislature’s enactment
10
of the Medical Injury Compensation Reform Act of 1975 (MICRA)
(Stats. 1975, 2nd Ex. Sess. 1975-1976, ch. 1, § 26.6, pp. 3975-
3976). (Ruiz, supra, 50 Cal.4th at p. 843.) Justice Moreno stated
it was “clear” that MICRA applies to wrongful death actions
arising from medical malpractice. (Id. at p. 850.) The court
observed, “[I]f a spouse or adult children were permitted to
litigate wrongful death . . . claims, ‘the purpose of section 1295
would be defeated.’ ” (Id. at p. 851.)
3. Daniels and Avila
The heirs rely on Daniels and Avila. Daniels was a lawsuit
by an elderly woman’s surviving heir against “a residential care
facility for the elderly.” (Daniels, supra, 212 Cal.App.4th at
p. 676.) The heir asserted survivor claims for negligence,
breach of contract, “willful misconduct,” and elder abuse under
the Elder Abuse Act. (Id. at pp. 677-678.) The heir also asserted
a wrongful death cause of action on her own behalf. The
heir alleged the decedent developed sores and suffered from
dehydration and a staph infection. The heir alleged the decedent
“died as a result of receiving inadequate care” at the facility.
(Id. at pp. 676-678.)
The decedent’s heir had signed an arbitration agreement
on the decedent’s behalf as her “attorney in fact,” but the heir
had not signed “in her personal capacity.” (Daniels, supra, 212
Cal.App.4th at p. 676.) The agreement did not comply with the
requirements of section 1295. (Daniels, at pp. 683-684.) Nor did
the agreement “manifestly intend[ ] to bind third party wrongful
death claimants,” referring only to “ ‘your’ claims.” (Id. at p. 683.)
The Daniels court acknowledged our Supreme Court’s
decision in Ruiz, but said it was “distinguishable because [it]
involved [an] arbitration agreement[ ] governed by section 1295.”
11
(Daniels, supra, 212 Cal.App.4th at p. 681.) The court stated it
“disagree[d] that Ruiz should be extended to arbitration
agreements . . . that are entered into with a person other than
a health care provider for claims other than medical malpractice.”
(Id. at p. 683.) The Daniels court discussed at length, and
relied on, Fitzhugh v. Granada Healthcare & Rehabilitation
Center, LLC (2007) 150 Cal.App.4th 469, a case that predated
Ruiz. (Daniels, at p. 681.)
In Avila, a decedent’s son, who also held a power of
attorney for his father, sued a long-term acute care hospital
for negligence, elder abuse, and wrongful death. The decedent
had died within five days of his admission to the facility. The
complaint alleged “neglect” based on a feeding tube becoming
dislodged and resulting in a heart attack. (Avila, supra, 20
Cal.App.5th at pp. 838-839.) The decedent’s son had signed an
arbitration agreement on his father’s behalf; it covered “ ‘any
dispute as to medical malpractice’ ” as well as “ ‘any legal claim
or civil action arising out of or relating to your hospitalization.’ ”
(Id. at p. 838.)
The complaint alleged causes of action for (1) “ ‘negligence/
willful misconduct’ ” and (2) “elder abuse and neglect” on
behalf of the decedent’s estate as well as on behalf of the heir
“individually.” A third cause of action alleged wrongful death
on behalf of the heir only. (Avila, supra, 20 Cal.App.5th at
pp. 838-839.) The trial court denied the defendants’ petition
to compel arbitration and the appellate court affirmed. (Id. at
p. 837.) Citing Daniels, the court said Ruiz was not “controlling”
because the “primary basis” for the heir’s wrongful death
claim was elder abuse under the Act rather than professional
negligence. (Avila, at p. 842.) The court observed that the
12
complaint’s allegations “could be categorized as professional
negligence as well as elder abuse,” and there was “at least some
overlap between the two.” (Id. at p. 843.)
However, the court continued, the complaint alleged
a “ ‘conscious and continued pattern of withholding the most
basic care and services,’ which included a lack of monitoring,
supervision, assistance, and other adequate care and services.”
(Avila, supra, 20 Cal.App.5th at p. 843.) “[N]eglect” under the
Act “ ‘ “refers not to the substandard performance of medical
services but, rather, to the ‘failure of those responsible for
attending to the basic needs and comforts of elderly or dependent
adults . . . to carry out their custodial obligations.’ [Citation.]
Thus, the statutory definition of ‘neglect’ speaks not of the
undertaking of medical services, but of the failure to provide
medical care.” ’ ” (Ibid.)
The Avila court did not cite or address Quiroz nor did
it discuss the governing law that precludes an heir from filing
survivor claims for “negligence/willful misconduct” and “elder
abuse and neglect” on his own behalf as well as on behalf of
the estate. Instead, the court stated, “Both parties [the estate
through decedent’s successor in interest and the heir in his
individual capacity] are litigants in both the survivorship and
wrongful death claims. Those claims involve the same set
of operative facts. If the survivorship claims were arbitrated
while the wrongful death claim was litigated, there is a strong
possibility of inconsistent rulings.” (Avila, supra, 20 Cal.App.5th
at p. 845.)
4. Ruiz and section 1295 control this case
In my view, Avila and Daniels do not control this case.
First, in both of those cases, the appellate courts emphasized
13
the trial courts had discretion under section 1281.2(c) to refuse
to order even the arbitrable claims to arbitration. (Avila,
supra, 20 Cal.App.5th at pp. 837, 839, 845; Daniels, supra,
212 Cal.App.4th at pp. 676, 679-680, 686-687.) The FAA did
not apply to the arbitration agreements in either of those cases.
In Avila, the agreement did “not even mention the FAA, much
less adopt its procedural rules.” (Avila, at p. 841.) The Daniels
court said nothing about the FAA but, as noted, the agreement
there did not meet section 1295’s requirements. (Daniels, at
pp. 683-684.) The courts in both cases had substantial concerns
about the risks of “conflicting rulings on common questions of
law and fact if the survivor claims but not the wrongful death
claim were ordered to arbitration.” (Id. at p. 677; see also id.
at pp. 686-687 [“danger of inconsistent rulings” “given that
[both survivor claims and wrongful death claims] are based
on the allegation that [decedent] received inadequate care
at [the facility]”]; Avila, at p. 845 [“If the survivorship claims
were arbitrated while the wrongful death claim was litigated,
there is a strong possibility of inconsistent rulings.”].)
Here, the opposite is true. The trial court correctly held
the FAA governs the arbitration agreement here. Accordingly,
the court rejected the heirs’ request that it exercise discretion
under section 1281.2(c) to refuse to send any of the claims
to arbitration. Unlike Avila and Daniels, the agreement
here complied to the letter with section 12958 and the parties
8 The agreement contained the following language in 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
14
expressly agreed it would bind “all parties, including the
Resident’s representatives, executors, family members, and
heirs who bring any claims individually or in a representative
capacity.” Here—in contrast to Avila and Daniels—the risk of
inconsistent rulings arises from the fact that an arbitrator will
decide the survivor claims for negligence and elder abuse while
a jury will decide the wrongful death claim, which the heirs
now say they base on the very same elder abuse of Mahmood
alleged in the survivor claim.
And that is the biggest problem of all: the heirs’ effort to
avoid arbitration by dressing up an elder abuse claim—brought
on their own behalf rather than the estate’s—as a claim for
wrongful death. In their brief, the heirs state the “primary basis
for [their] wrongful death claim arises under the elder abuse law,
not under professional negligence.” If this tactic were to succeed,
it would turn the governing law set forth in Quiroz on its head
and defeat the goals the Legislature had in mind when it passed
section 1295.
To say the heirs’ amended complaint is not a model of
clarity is an understatement. The heirs allege Mahmood’s death
was caused by RCBH’s “negligent conduct” and its employees
A COURT TRIAL. SEE ARTICLE 1 OF THIS CONTRACT.”
(See § 1295, subd. (b).) The agreement also contained this
language in the same typeface: “NOTICE: BY SIGNING THIS
CONTRACT YOU ARE AGREEING TO HAVE ALL CLAIMS,
INCLUDING CLAIMS OTHER THAN A CLAIM FOR MEDICAL
MALPRACTICE, DECIDED BY ARBITRATION AND YOU ARE
GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL AND
YOU AGREE THAT NO PARTY SHALL ADJUDICATE ANY
CLAIM ON A CLASS ACTION BASIS.”
15
“provided negligent care” and “inadequate care.” In their
wrongful death cause of action, the heirs allege RCBH “owed
Mahmood a duty of care” which it “breached” “because it provided
inadequate care.” That certainly sounds like professional
negligence. The survivor claim for “negligence” contains similar
allegations.
In the survivor action for elder abuse, the heirs allege
“reckless and/or fraudulent behavior” by RCBH. The “fraudulent
behavior” seems to consist of asking Mahmood to sign the
arbitration agreement. As for “recklessness,” the heirs allege
an RCBH employee’s inability to open a door when Mahmood’s
son came by to drop off a sweater “illustrate[s] RCBH’s
recklessness.” The heirs also allege RCBH’s “failure to prevent
Mahmood’s dehydration was reckless.” But, they continue,
“it is equally possible that RCBH’s employees were simply
indifferent to the charge of their patients.”
Is “indifference” the same as negligence? Is it recklessness?
“[I]ncompetence” is not recklessness. “Recklessness, unlike
negligence, involves more than ‘inadvertence, incompetence,
unskillfulness, or a failure to take precautions’ but rather rises
to the level of a ‘conscious choice of a course of action . . . with
knowledge of the serious danger to others involved in it.’ ”
(Delaney v. Baker (1999) 20 Cal.4th 23, 31-32. See CACI
No. 3113 [“Recklessness” under the Elder Abuse Act requires
the defendant “knew it was highly probable that [its] conduct
would cause harm and [it] knowingly disregarded this risk.
‘Recklessness’ is more than just the failure to use reasonable
care.”].) Do the heirs allege RCBH staff intentionally refused
to give Mahmood fluids?
16
The word “neglect” did not appear in the heirs’ original
complaint. In the amended complaint, the word “neglect”
appears seven times and the word “neglected” once. The heirs
first use the word in their allegation that RCBH ignored
Mahmood’s advance healthcare directive. The heirs then allege,
“RCBH’s staff neglected Mahmood’s physical care with reckless
indifference by failing to prevent his dehydration.” In the
remaining paragraphs, the heirs allege RCBH’s neglect “may
also have been a contributing factor toward[ ] his eventual
death,” caused him to suffer emotional distress as well as
pain and suffering and to incur medical expenses, and entitled
him to punitive damages and attorney fees and costs.
To be sure, neglect can constitute elder abuse under
the Act. As noted, the Act sets forth a number of definitions,
including the failure to provide medical care and the failure
to prevent dehydration. (Welf. & Inst. Code, § 15610.57,
subd. (b)(2), (4).) Mahmood’s estate is absolutely entitled
to assert a cause of action under the Elder Abuse Act. As
the trial court correctly found, that cause of action is subject
to the arbitration agreement Mahmood signed. What the law
does not permit, however, is for the heirs to assert their own
claim for RCBH’s neglect of Mahmood under the Act—whether
or not entitled “wrongful death”—and thereby defeat the
arbitration of their wrongful death claim, a cause of action
Justice Moreno described as “clear[ly]” subject to section 1295.
(Ruiz, supra, 50 Cal.4th at p. 849.)
RCBH has not cited Quiroz or the legal rule it explains.
Nor does it even mention Avila or Daniels in its briefs, much
less address whether they apply to this case. RCBH argues
only that the heirs’ wrongful death claim “sounds in professional
17
negligence.” RCBH overlooks the allegations of “neglect” the
heirs have added to their amended complaint.
In my view, however, notwithstanding these failings on
RCBH’s part, we should follow the well-established, governing
law. As the Quiroz court noted, our Legislature intended the
enhanced remedies under the Elder Abuse Act “to apply to
actions by or on behalf of victims of elder or dependent care
abuse. The legislative history does not reveal any intent to
apply the Act to a wrongful death action brought by a decedent’s
heir on his or her own behalf.” (Quiroz, supra, 140 Cal.App.4th
at p. 1283.) Nothing in the Act’s scope or character
“means that a relative or an heir of an elder
or dependent adult has an independent claim
under the Act or that such a person may
recover statutory heightened remedies in his or
her own wrongful death claim. Under the Act,
these claims and remedies are afforded only
to victims of elder or dependent adult abuse.
In the event of the victim’s death, the cause of
action survives, in which case it is or becomes
a survivor action pursued by the personal
representative of the estate or the decedent’s
successor in interest on the decedent’s behalf.”
(Id. at p. 1284.)
In short, the law does not permit Mahmood’s heirs to sue
for the “neglect” of their family member on an elder abuse theory,
whether they term that claim elder abuse or wrongful death.
Once the elder abuse theory is stripped away from the heirs’
wrongful death claim, all that remains are allegations of
18
negligence. Accordingly, the heirs’ cause of action for wrongful
death falls under Ruiz and section 1295, and the trial court erred
in not granting the petition to compel arbitration on that claim.
EGERTON, J.
19