Miller v. AlerisLife CA4/3 ( 2024 )

Filed 9/13/24 Miller v. AlerisLife CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
MICAH MILLER,
Plaintiff and Respondent, G063886
v. (Super. Ct. No. CIVSB2200427)
ALERISLIFE, INC., OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of San Bernardino
County, Khymberli S. Y. Apaloo, Judge. Affirmed.
Cowdrey Jenkins, Spencer H. Jenkins and Melanie J. Ely for
Defendant and Appellant.
Lanzone Morgan, Ayman R. Mourad, Elizabeth M. Kim and
Christopher W. Petersen for Plaintiff and Respondent.
Following the death of his father, Charles Griffin Miller, III
(Charles), at a residential care facility, plaintiff Micah Miller (Micah) sued
1
the owners and operators of the facility. The complaint alleged claims of
elder abuse, negligence, and willful misconduct on Charles’s behalf, as well as
a wrongful death claim on Micah’s behalf. The three entities named as
defendants in the complaint moved to compel arbitration. Their motion was
granted as to all claims, including Micah’s wrongful death claim. AlerisLife,
Inc., formerly known as Five Star Senior Living, Inc. (AlerisLife), which had
been added as a Doe defendant, filed its own, separate motion to compel
arbitration of the claims asserted against it, also including Micah’s wrongful
death claim. That motion was heard by a different trial court judge, who
granted AlerisLife’s motion, but only as to the claims Micah brought
derivatively on behalf of Charles. Because Micah had not signed the
arbitration agreement, the court denied AlerisLife’s motion to compel Micah
to arbitrate his wrongful death claim.
The net result of the two rulings is that, even though both
motions were based on the same arbitration agreement (to which Micah
undisputedly was not a signatory), Micah’s wrongful death claim against the
three initial defendants has been sent to arbitration, and his wrongful death
claim against AlerisLife remains in superior court.
AlerisLife appeals from the denial of its motion as to Micah’s
wrongful death claim. We find no error in the ruling and affirm.
1 Because the parties share the same surname, we refer to them
by their first names for ease of reference; we intend no disrespect.
2
STATEMENT OF FACTS
In 2021, 80-year-old Charles entered Somerford Place–Redlands
(Somerford Place), a residential care facility for the elderly.2 Charles suffered
from Alzheimer’s disease and dementia, which can cause difficulty in
swallowing, thereby putting Charles at high risk for choking. On his third
day at the facility, Charles choked while eating lunch and became
unconscious. He was transported to the hospital but, because he had been
without oxygen for at least 15 to 20 minutes, his condition declined, and he
passed away on July 12, 2021. His death certificate lists anoxic
encephalopathy and obstruction of the airway by food as the causes of death.
Micah filed a complaint alleging a claim for wrongful death on his
own behalf and, as Charles’s successor in interest, alleging claims for elder
abuse, negligence, and willful misconduct on Charles’s behalf. The complaint
named SNH Cal Tenant LLC doing business as Somerford Place; FVE
Managers, Inc. (alleged to be the owner of Somerford Place); and Danica J.
Turner (alleged to be the manager of Somerford Place) as defendants
(collectively, Initial Defendants). It also named Charles’s widow, Vicky Sue
Robertson Miller (Vicky), and Charles G. Miller IV (another son) as nominal
defendants.
Initial Defendants moved to compel arbitration of the entire
action based on an arbitration agreement allegedly signed by Vicky both in
her individual capacity and on her husband’s behalf. They asserted Vicky was
Charles’s agent under both an advanced health care directive and a general
durable power of attorney. They argued the arbitration agreement bound not
only Vicky and Charles, but also all of Charles’s heirs, including Micah. They
2 The facts in this paragraph are taken from plaintiffs’ complaint.
3
therefore asserted that all the claims in the complaint, including Micah’s
wrongful death claim, were subject to arbitration.
While the Individual Defendants’ motion was pending, Micah
added AlerisLife as a Doe defendant.3 A week before the motion was heard,
AlerisLife filed a notice of joinder in Initial Defendants’ motion to compel
arbitration. At the hearing on the motion, Judge Thomas S. Garza denied
AlerisLife’s request for joinder, granted Initial Defendants’ motion as to all
claims, and stayed the civil action as to Initial Defendants pending conclusion
of the arbitration.
Unable to join in Initial Defendants’ motion, AlerisLife filed its
own motion to compel arbitration. Like Initial Defendants’ motion,
AlerisLife’s motion sought to compel arbitration of all the claims asserted in
the complaint, including Micah’s wrongful death claim. The motion was not
heard by Judge Garza but by Judge Khymberli S. Y. Apaloo, who granted the
motion only in part: Judge Apaloo granted the motion to compel arbitration of
the claims for elder abuse, negligence, and willful misconduct but denied it as
to Micah’s claim for wrongful death. She stayed the wrongful death claim
pending completion of arbitration.4 AlerisLife timely appealed the denial of
its motion as to Micah’s wrongful death claim.5
3 In its opening brief, AlerisLife identifies itself as the parent
company of defendant FVE Managers, Inc.
4 Although the written ruling states “the Elder Abuse cause of
action is STAYED pending completion of the arbitration,” it is clear Judge
Apaloo intended to refer to the wrongful death claim. Indeed, at the hearing
on the motion, Judge Apaloo twice stated the tentative ruling was to stay the
wrongful death claim.
5 An order denying a motion to compel arbitration is appealable.
(Code Civ. Proc., § 1294, subd. (a).)
4
DISCUSSION
I.
ALERISLIFE’S CONTENTIONS
AlerisLife argues Micah’s wrongful death claim against it must
be compelled to arbitration because: (1) the Federal Arbitration Act (FAA),
which governs the arbitration agreement, mandates arbitration of Micah’s
wrongful death claim; (2) Micah’s wrongful death claim against Initial
Defendants is in arbitration and a wrongful death claim must be tried as a
single action;6 and (3) arbitration of Micah’s wrongful death claim against it
will avoid inconsistent results. We are not persuaded by any of these
arguments.
II.
ANALYSIS
A. Standard of Review
The trial court’s denial of AlerisLife’s motion to compel
arbitration of Micah’s wrongful death claim presents a pure question of law,
6 In its opening brief, AlerisLife also argued the wrongful death
claim should be compelled to arbitration because it is based on an underlying
claim of medical malpractice, rather than a claim of elder abuse. Wrongful
death claims against health care providers arising out of medical malpractice
may be compelled to arbitration under certain circumstances, even when the
holder of the claim did not sign an arbitration agreement. (Code Civ. Proc.,
§ 1295, subds. (a), (b) & (c).) But residential care facilities such as Somerford
Place are not health care providers for purposes of the statute. (Hutcheson v.
Eskaton FountainWood Lodge (2017) 17 Cal.App.5th 937, 952–953.)
Apparently acknowledging this fact, AlerisLife abandoned the medical
malpractice argument in its reply brief, stating, “whether the underlying case
is elder abuse or medical malpractice is of no consequence.” Accordingly, we
do not address that argument in this opinion.
5
and we review it de novo. (Caballero v. Premier Care Simi Valley LLC (2021)
69 Cal.App.5th 512, 517–518.)
B. The Complaint
The complaint was filed on behalf of (1) Charles, by Micah as his
successor in interest, and (2) Micah, individually. It alleges the defendants
(Initial Defendants and AlerisLife) are: (1) alter egos of one another, (2) a
joint venture, and (3) acting in concert, such that they are “each directly and
vicariously liable for the injuries alleged” in the complaint.
The first three causes of action—for elder abuse, negligence, and
willful misconduct—seek to recover, on Charles’s behalf, for injuries suffered
by Charles. The fourth cause of action, for wrongful death, seeks to recover
for injuries suffered by Micah because of Charles’s death. “In California, a
wrongful death claim is an independent claim. ‘Unlike some jurisdictions
wherein wrongful death actions are derivative, Code of Civil Procedure
section 377.60[7] “creates a new cause of action in favor of the heirs as
beneficiaries, based upon their own independent pecuniary injury suffered by
loss of a relative, and distinct from any the deceased might have maintained
had he survived.”’” (Avila v. Southern California Specialty Care, Inc. (2018)
20 Cal.App.5th 835, 844.)
C. Application of the FAA
The arbitration agreement purported to bind not only Vicky (who
signed the agreement) and Charles (on whose behalf Vicky signed) but all of
Charles’s “children, heirs, guardians, next of kin, successors, agents, assigns,
third party beneficiaries, trustees, and representatives.” Despite that
language, Micah, Charles’s son and heir, was not a party to the arbitration
7 All further statutory references are to the Code of Civil
Procedure.
6
agreement and did not agree to its terms. Generally speaking, one who has
not agreed to a contract cannot be compelled to abide by its terms. “[A] party
cannot bind another to a contract simply by so reciting in a piece of paper. It
is rudimentary contract law that the party to be bound must first accept the
obligation.” (Mitsui O.S.K. Lines, Ltd. v. Dynasea Corp. (1999) 72 Cal.App.4th
208, 212; see Carter v. City of Los Angeles (2014) 224 Cal.App.4th 808, 822–
823 [a “provision stating the parties agree [a] nonparty cannot deny the
agreement” is “of no effect absent some mechanism by which nonparties are
made party to the agreement”].)
“‘[T]he existence of a valid agreement to arbitrate is determined
by reference to state law principles regarding the formation, revocation and
enforceability of contracts generally.’” (Bolter v. Superior Court (2001) 87
Cal.App.4th 900, 906.) Because arbitration agreements are a matter of
contract, they are subject, with certain exceptions not relevant here, to the
rule that a nonsignatory cannot be bound. (DMS Services, LLC v. Superior
Court (2012) 205 Cal.App.4th 1346, 1352 (DMS Services) [‘““one must be a
party to an arbitration agreement to be bound by it or invoke it”’”].)8
It is undisputed Micah did not sign the arbitration agreement.
Because he was not a party to the arbitration agreement and did not agree to
its terms, he cannot be compelled to arbitrate his individual claim for
wrongful death.
AlerisLife tries to brush past the nonsignatory problem,
contending that because the FAA governs the arbitration agreement and it
8 The exceptions to the general rule are “‘based on the existence
of a relationship between the nonsignatory and the signatory, such as
principal and agent or employer and employee, where a sufficient “identity of
interest” exists between them.’” (DMS Services, supra, 205 Cal.App.4th at p.
1353.) AlerisLife does not argue any of the exceptions apply here.
7
embodies a liberal policy of enforcing arbitration agreements, the FAA
preempts the general contractual principle that nonsignatories to a contract
are not bound by it.9 In support of this argument, AlerisLife cites three
United States Supreme Court cases: Kindred Nursing Centers Ltd.
Partnership v. Clark (2017) 581 U.S. 246 (Kindred), Marmet Health Care
Center, Inc. v. Brown (2012) 565 U.S. 530 (Marmet), and AT&T Mobility LLC
v. Concepcion (2011) 563 U.S. 333 (Concepcion). None of these cases stand for
the proposition that someone who is not a party to an arbitration agreement
can nevertheless be bound by it because the FAA embodies a liberal policy
favoring arbitration agreements.
The cases cited by AlerisLife stand for the proposition that the
FAA preempts any state law or rule that “‘prohibits outright the arbitration
of a particular type of claim.’” (Marmet, supra, 565 U.S. at p. 533, citing
Concepcion, supra, 563 U.S. at p. 341; see Kindred, supra, 581 U.S. at p. 251.)
In Marmet, the West Virginia Supreme Court had ruled that predispute
agreements mandating arbitration of personal injury or wrongful death
claims against nursing homes were unenforceable as a matter of public
policy. The United States Supreme Court reversed, holding a “categorical rule
prohibiting arbitration of a particular type of claim” was “contrary to the
terms and coverage of the FAA” and, therefore, preempted by the FAA.
(Marmet, supra, 565 U.S. at p. 533.) That holding has no application to the
facts here.
Kindred struck down a Kentucky Supreme Court ruling that a
power of attorney did not allow a legal representative to enter into an
arbitration agreement on a principal’s behalf unless the power of attorney
9 The agreement expressly provides that it is governed by the
FAA, and Micah does not offer any argument to the contrary.
8
specifically allowed the representative to “‘waive his principal’s fundamental
constitutional rights to access the courts [and] to trial by jury.’” (Kindred,
supra, 581 U.S. at p. 248.) Kindred held the state court’s ruling “single[d] out
arbitration agreements for disfavored treatment” and therefore violated the
FAA. (Ibid.) Nothing in Kindred supports AlerisLife’s argument that a
nonsignatory to an arbitration agreement is bound by it.
Concepcion also provides no support for AlerisLife’s argument. It
held the FAA preempted California’s rule that class action waivers in
consumer contracts of adhesion are unconscionable. (Concepcion, supra, 563
U.S. at pp. 340–352.)
The FAA provides that written arbitration agreements are
subject to general contract principles. (9 U.S.C. § 2 [written arbitration
agreements “shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any contract”].) As
the United States Supreme Court explained in Concepcion, “We have
described [the primary substantive provision of the FAA] as reflecting both a
‘liberal federal policy favoring arbitration,’ [citation] and the ‘fundamental
principle that arbitration is a matter of contract,’ [citation]. In line with these
principles, courts must place arbitration agreements on an equal footing with
other contracts, [citation], and enforce them according to their terms.”
(Concepcion, supra, 563 U.S. at p. 339; see Quach v. California Commerce
Club, Inc. (2024) 16 Cal.5th 562, 572 [the policy favoring arbitration “‘is
about treating arbitration contracts like all others, not about fostering
arbitration’”].)
One of the bedrock tenets of contract law is that, absent limited
exceptions AlerisLife does not assert here, one who is not a party to a
contract cannot be bound by it. (DMS Services, supra, 205 Cal.App.4th at pp.
9
1352–1353.) The FAA policy favoring enforcement of arbitration agreements
does not trump that principle. “‘“Under ‘both federal and state law, the
threshold question presented by a petition to compel arbitration is whether
there is an agreement to arbitrate.’”’ [Citations.] The threshold question
requires a response because if such an agreement exists, then the court is
statutorily required to order the matter to arbitration. . . . This initial issue
also reflects the very plain principle that you cannot compel individuals or
entities to arbitrate a dispute when they did not agree to do so. ‘“There is no
policy compelling persons to accept arbitration of controversies that they
have not agreed to arbitrate.”’” (Fleming v. Oliphant Financial (2023) 88
Cal.App.5th 13, 19.) “The [FAA] ‘reflects the fundamental principle that
arbitration is a matter of contract.’ [Citation.]. . . . [¶] Given that arbitration
agreements are simply contracts ‘“[t]he first principle that underscores all of
our arbitration decisions” is that “[a]rbitration is strictly a matter of
consent.”’ [Citation.] Arbitration is ‘a way to resolve those disputes—but only
those disputes—that the parties have agreed to submit to arbitration.’”
(Coinbase, Inc. v. Suski (2024) ___ U.S. ___, ___ [144 S.Ct. 1186, 1192].)
Because Micah was not a party to the arbitration agreement, he
cannot be compelled to arbitrate his wrongful death claim against
AlerisLife.10
10 Although Judge Garza ordered Micah’s wrongful death claim
against Initial Defendants to arbitration, even he appeared to express doubt
as to whether Micah’s wrongful death claim could be resolved in arbitration.
During the hearing on the motion, he stated: “If it cannot be resolved with
respect to the wrongful death aspect, then that’s something that can be re-
addressed back here in this department and perhaps for trial purposes” and
“if they’re not resolved as to the wrongful death, . . . then that’s something we
can readdress if need be.”
10
D. Single Forum v. Single Action
“A cause of action for wrongful death is . . . a statutory claim.
(§§ 377.60–377.62.) Its purpose is to compensate specified persons—heirs—
for the loss of companionship and for other losses suffered as a result of a
decedent’s death.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th
1256, 1263.) Although section 377.60 does not expressly prevent more than
one action by a decedent’s heirs, “[a] wrongful death action is considered
joint, single and indivisible, meaning that all heirs should join in a single
action and there cannot be a series of suits by heirs against the tortfeasor for
their individual damages. [Citation.] ‘The action is joint only insofar as it is
subject to the requirement that all heirs should join in the action and that the
damages awarded should be in a lump sum.’” (San Diego Gas & Electric Co.
v. Superior Court (2007) 146 Cal.App.4th 1545, 1551.) This doctrine is
sometimes referred to as the one-action rule.
AlerisLife argues that, because of the one-action rule, Micah’s
wrongful death claim against it must be sent to arbitration so it can be tried
with Micah’s wrongful death claim against Initial Defendants as a single
action. The argument is based on a presumption that one action becomes two
actions when portions of the action are compelled to arbitration. That is not
the law.
Although the arbitration agreement is governed by the FAA, it
does not expressly state the FAA’s procedural provisions apply. Accordingly,
the arbitration agreement is subject to the procedural provisions of the
California Arbitration Act (CAA), section 1280 et seq. (Nixon v. AmeriHome
Mortgage Company, LLC (2021) 67 Cal.App.5th 934, 945 [unless an
arbitration agreement specifically provides that the FAA’s procedural
provisions apply, the CAA’s procedural provisions apply to matters in
11
California courts].) Under section 1281.4, an action must be stayed by the
court when any issue in the action is ordered to arbitration. The portion that
is stayed and the portion that is sent to arbitration remain one action despite
the different forums. As the California Supreme Court explained in Adolph v.
Uber Technologies, Inc. (2023) 14 Cal.5th 1104: “Section 1281.4 does not
contemplate that the compelled arbitration of an issue in controversy in the
action is a separate action. The statute makes clear that the cause remains
one action, parts of which may be stayed pending completion of the
arbitration.” (Id. at p. 1125.) Micah’s wrongful death claim against AlerisLife
and the wrongful death claim against Initial Defendants are still one action.
Even if the arbitration and superior court cases were entirely
separate, the one-action rule would not compel arbitration of Micah’s
wrongful death claim against AlerisLife. The one-action rule was designed to
protect defendants from successive suits by unknown heirs. (Valdez v. Smith
(1985) 166 Cal.App.3d 723, 727–728.) Here, no party claims any threat of
unknown heirs waiting to bring successive claims.
In arguing Micah’s claim against it must be arbitrated, AlerisLife
cites Herbert v. Superior Court (1985) 169 Cal.App.3d 718 (Herbert). Herbert
is inapposite, however, because it relied on section 1295, which allows
patients to bind nonsignatory heirs to arbitration of wrongful death actions
arising out of medical malpractice. (Herbert, supra, at p. 727; see Ruiz v.
Podolsky (2010) 50 Cal.4th 838, 846 [“[a]lso critical to the Herbert court’s
determination was the enactment of section 1295, providing for arbitration of
‘professional negligence’ claims, including wrongful death”].) As explained in
footnote 6, above, section 1295 does not apply to residential care facilities
such as Somerford Place. (Hutcheson v. Eskaton FountainWood Lodge, supra,17 Cal.App.5th at pp. 952–953.)
12
“While the courts have made statements ‘to the effect that a
wrongful death action is “a joint one” or “a joint one, a single one, and an
indivisible one”’ [citation], ‘[a] general statement of legal principle can seldom
contain all the qualifications and exceptions that arise in the factual
combinations and permutations of litigation.’” (King v. Pacific Gas & Electric
Co. (2022) 82 Cal.App.5th 440, 450.) The permutation of this litigation is that
two different judges heard two separate motions to compel arbitration
brought by different defendants in the same action, and they arrived at
different conclusions. Nevertheless, the action remains one action and neither
law nor reason compels the arbitration of Micah’s wrongful death claim
against AlerisLife.
E. Potential Conflicting Results
AlerisLife argues Micah’s wrongful death claim against it should
be compelled to arbitration to preclude the possibility that Micah might seek
to try his claim twice and then cherry-pick the better result. This
hypothetical scenario seems unlikely, however, because the doctrines of claim
and issue preclusion apply to arbitration awards. (Sanchez v. Carmax Auto
Superstores California, LLC (2014) 224 Cal.App.4th 398, 407.) Assuming (1)
the arbitrator concluded he or she had jurisdiction to decide Micah’s wrongful
death claim against the Initial Defendants and (2) the jurisdictional decision
survived a post-arbitration petition or appeal, then the arbitrator’s ruling
might well have preclusive effect on Micah’s claim against AlerisLife, thus
avoiding the potential for inconsistent rulings.
III.
RESPONDENT’S REQUESTS FOR RELIEF
In his respondent’s brief, Micah asked us to decide, under section
906, “whether a valid arbitration agreement exists as to Plaintiff Micah
13
Miller’s claim for Wrongful Death against all Defendants.” (Italics added.)
Section 906 allows an appellate court to review intermediate nonappealable
orders in connection with appeals brought pursuant to section 904.1 or
904.2.11 As AlerisLife noted in its January 22, 2024 reply brief, however,
section 906 does not apply to this appeal, which was brought pursuant to
section 1294, subdivision (a). Accordingly, we do not have jurisdiction to
consider Micah’s request as made.
Three and one-half weeks before oral argument, Micah tried to
cure that problem by filing a “Notice of Errata” seeking to replace the
reference to section 906 in his respondent’s brief with a reference to section
1294.2. Section 1294.2 does apply to this appeal and it reads, in pertinent
part: “Upon an appeal from any order or judgment under this title, the court
may review the decision and any intermediate ruling, proceeding, order or
decision which involves the merits . . . .” We understand from this purported
“correction,” that Micah is now asking us to examine Judge Garza’s ruling as
to Initial Defendants as part of this appeal from Judge Apaloo’s ruling as to
AlerisLife—specifically, to determine whether Judge Garza erred in ordering
Micah’s wrongful death claim against Initial Defendants to arbitration.
We recognize the current state of affairs—with Micah’s wrongful
death claim against Initial Defendants in arbitration and his wrongful death
claim against AlerisLife in superior court (and stayed)—is less than ideal. We
11 Section 904.1 specifies the 14 orders and interlocutory
judgments issued in unlimited civil cases that may be appealed from,
including, by way of example, orders granting new trial, orders appointing
receivers, and interlocutory judgments directing payment of monetary
sanctions in an amount more than $5,000. Section 904.2 specifies the eight
orders issued in a limited civil case that may be appealed to the appellate
division of the superior court. Denial of a motion to compel arbitration is not
among the orders listed in either section.
14
nevertheless decline to review Judge Garza’s ruling as part of this appeal for
several reasons.
First, Micah’s proposed “correction” was not filed until five
months after AlerisLife filed its reply brief, in which it flagged the section 906
issue. Micah offers no explanation for why he did not promptly seek to make
the correction upon receiving the reply brief. By waiting to file the correction
until shortly before oral argument, Micah effectively deprived AlerisLife of a
meaningful opportunity to respond to the proposed correction and address its
implication for the scope of this appeal. (Gov. Code, § 68081.)
Second, Initial Defendants—the parties who were directly
affected by Judge Garza’s ruling and would be most affected by Micah’s
eleventh-hour effort to sweep that ruling into this appeal—are not parties to
this appeal. Thus, they are not before us and have not had an opportunity to
be heard on Micah’s proposed correction and his request to broaden the scope
of this appeal. (Gov. Code, § 68081.) It would be manifestly unfair for this
court to review the propriety of Judge Garza’s ruling on Initial Defendants’
motion to compel arbitration without hearing from them.
Third, our decision to deny Micah’s untimely request does not
foreclose Micah from seeking review of the correctness of Judge Garza’s
initial ruling. Although an order granting a motion to compel arbitration is
not an immediately appealable order (Ashburn v. AIG Financial Advisors,
Inc. (2015) 234 Cal.App.4th 79, 94), it can be the subject of a common-law
writ, as to which there is no time limit. (McDermott Will & Emery LLP v.
Superior Court (2017) 10 Cal.App.5th 1083, 1100 [“unlike appeals, appellate
courts have discretion to decide a writ petition filed after the 60-day period”].)
And, of course, an order granting a motion to compel arbitration also can be
15
reviewed on appeal from a subsequent judgment on the arbitration award.
(Ashburn, supra, at p. 94.)
Given the foregoing, we deem Micah’s notice of errata to be a
motion to amend respondents’ brief, and we deny the motion. (Cal. Rules of
Court, rules 8.54(b)(1) & 8.200(a)(4).)
Finally, citing the need to avoid inconsistent results, Micah asks
us to (1) find the arbitration agreement unconscionable and, therefore,
unenforceable as to any defendant and (2) direct the trial court to retain
jurisdiction of his wrongful death claim against Initial Defendants pursuant
to section 1281.2, subdivision (c), which allows a court to refuse to enforce an
arbitration agreement where “[a] party to the arbitration agreement is also a
party to a pending court action, . . . arising out of the same transaction or
series of related transactions and there is a possibility of conflicting rulings
on a common issue of law or fact.”
“As a general matter, ‘“a respondent who has not appealed from
the judgment may not urge error on appeal.”’ [Citation.] ‘To obtain
affirmative relief by way of appeal, respondents must themselves file a notice
of appeal and become cross-appellants.’” (Preserve Poway v. City of Poway
(2016) 245 Cal.App.4th 560, 585.) Micah did not file a notice of appeal or a
notice of cross-appeal. Therefore, the enforceability of the arbitration
agreement and the potential application of section 1281.2 are not properly
before us. Accordingly, we do not consider Micah’s requests for affirmative
relief.
16
DISPOSITION
The trial court’s order denying AlerisLife’s motion to compel
arbitration as to Micah’s claim for wrongful death is affirmed. Respondents
shall recover costs on appeal.
GOODING, J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
17