RICHLI, J.
Defendants and Appellants Grancare, LLC (Grancare) appeal the denial of its petition to compel arbitration. Plaintiff and Respondent Sharon Negrete filed a complaint individually and as the representative of the estate of her deceased mother, Valena I. Kilpatrick (the Estate). The complaint alleged against Grancare on behalf of the Estate elder abuse/neglect and violating the Patient's Bill of Rights under Health and Safety Code section 1430, and individually by Negrete for the wrongful death of Kilpatrick. It was alleged that Kilpatrick's death was caused due to mistreatment while she spent several months in the Monterey Palms Health Care Center (Monterey), which is managed by Grancare. The trial court concluded, applying California arbitration law, that an arbitration clause in the care agreement signed by Kilpatrick was not enforceable against Negrete on her wrongful death claim and that the Patient's Bill of Rights claims could not be arbitrated, and it submitted the entire cause to be litigated in superior court in order to avoid conflicting rulings on a common issue of fact or law.
Grancare makes the following claims on appeal:
1. The trial court erred in applying California's procedural arbitration law to the arbitration agreements, which the parties agreed were governed by the Federal Arbitration Act (FAA), and
2. If this court concludes that the FAA procedural law does not apply, the trial court's denial of Grancare's motion to compel arbitration was error under California law.
We conclude that, based on the plain language of the agreement, the parties agreed that the FAA's procedural rules would apply and that arbitration of the elder abuse and neglect claims is required. The remaining claims should be stayed pending the outcome of arbitration.
The facts and allegations in this case are taken from the pleadings and the parties' submissions on the petition to compel arbitration.
On February 2, 2010, Negrete and the Estate filed the complaint against Grancare. Negrete was the adopted daughter and sole heir of Kilpatrick. Negrete alleged on behalf of the Estate causes of action for negligence and elder abuse/neglect as defined under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, §§ 15610.57, 15610.63)
According to the allegations in the complaint, Monterey was a 24-hour skilled nursing facility. Kilpatrick was admitted to Monterey on February 6, 2008. She was 89 years old and bedridden, and she needed extensive care, including repositioning in her bed due to poor mobility. Kilpatrick was transferred out of the facility on November 14, 2008. Kilpatrick died February 3, 2009. The cause of death on the death certificate was "end stage Alzheimer's dementia." (Capitalization omitted.)
As to all causes of action, Negrete and the Estate alleged that while at Monterey, Kilpatrick experienced several episodes of dangerously elevated blood glucose levels. Monterey staff failed to seek emergency assistance when she suffered from these elevated glucose levels. She also suffered from periods of severe weight loss, including a loss of 15 pounds over a two-week period. Negrete and the Estate alleged that Kilpatrick suffered from pressure sores, skin tears, and other skin problems due to Monterey's failure to provide necessary care. It was alleged that Monterey intentionally employed insufficient staff and failed to establish an adequate care plan for Kilpatrick.
In her prayer for relief, Negrete requested, among other amounts, general, punitive, statutory, and special damages.
Rather than file an answer to the complaint, on April 14, 2010, Grancare filed its notice of petition and petition for orders compelling arbitration and dismissing or staying the superior court action. According to the petition, Kilpatrick had knowingly and voluntarily executed two agreements for arbitration for claims involving medical malpractice and nonmedical malpractice (agreements) upon admission to Monterey. Grancare alleged that the causes of action for elder abuse/neglect brought by the Estate and wrongful death by Negrete individually were subject to arbitration. Grancare acknowledged that this did not include lawsuits brought under the Patient's Bill of Rights, which was specifically exempted by the parties and by statute. Negrete and the Estate refused to submit to arbitration.
Grancare also submitted a memorandum of points and authorities, with the agreements as accompanying exhibits. Grancare alleged that Negrete and the Estate should be compelled to submit the claims to arbitration pursuant to "California Code of Civil Procedure § 1281.2." The two arbitration agreements included the following language: "THE UNDERSIGNED ACKNOWLEDGE THAT EACH OF THEM HAS READ THIS ENTIRE AGREEMENT AND UNDERSTANDS THAT BY SIGNING THIS AGREEMENT EACH HAS WAIVED HIS/HER RIGHT TO A TRIAL, BEFORE A JUDGE OR JURY AND THAT EACH OF THEM VOLUNTARILY CONSENTS TO ALL THE TERMS OF THE AGREEMENT. [¶] NOTICE: BY SIGNING THIS AGREEMENT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBIRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE THE FIRST PARAGRAPH OF THIS AGREEMENT. HOWEVER, PURSUANT TO CALIFORNIA HEALTH AND SAFETY CODE SECTION 1430, THE RESIDENT DOES NOT WAIVE HIS/HER RIGHT TO BRING A LAWSUIT IN COURT AGAINST THIS FACILITY FOR VIOLATIONS OF THE PATIENT'S BILL OF RIGHTS CONTAINED IN TITLE 22 OF THE CALIFORNIA CODE OF REGULATIONS SECTION 72527." (Boldface omitted.) The agreements also contained language that the agreement was intended to bind and inure to the benefit of Kilpatrick's "successors, assigns, agents, attorneys, insurers, [and] heirs . . . including the personal representative or executor of his or her estate . . . ." Additional language regarding whether arbitration would be conducted under the FAA or California Arbitration Act (CAA) was included and will be discussed in more detail, post.
Grancare argued that the agreements were "broadly worded and required the arbitration of any dispute that might arise between" Kilpatrick and Monterey. Grancare anticipated that Negrete would argue that the arbitration agreement was not binding on her and her cause of action for wrongful death because she did not sign the agreements. Grancare argued that Negrete stepped into the shoes of the decedent and had to abide by the arbitration agreements' terms. Grancare asked that the superior court action be dismissed or stayed pending arbitration.
Negrete filed opposition to the petition to compel arbitration. As anticipated, she did argue that she was not a signatory to the arbitration agreement and was not bound by the agreement. Negrete was entitled to bring the wrongful death suit in superior court. Negrete also argued that the remaining claims brought on behalf of the Estate were all based on the Patient's Bill of Rights, which were exempted from arbitration. Further, even if the claims of negligence/willful misconduct/elder abuse were not part of the Patient's Bill of Rights, it could present inconsistent rulings on common issues of fact and law to try part of the case in superior court and have the other part submitted to arbitration. Finally, Negrete argued that the agreements were both procedurally and substantively unconscionable.
Grancare contended in its reply that the causes of action for elder abuse/neglect were not a derivative of the Patient's Bill of Rights. Without the claims of negligence and elder abuse, there would be no wrongful death claim or a violation of Kilpatrick's rights. As such, all of the claims were subject to binding arbitration.
At the hearing on the petition held on June 3, 2010, Grancare raised for the first time that the procedural rules of the FAA applied to the agreement, as agreed to by the parties; we will discuss this in more detail, post. Grancare also argued that California law supported arbitration. The trial court took the matter under submission.
The trial court issued its written ruling denying the petition to compel arbitration as follows: "Claims for violations of the Patient[`]s Bill of Rights, (Health & Safety Code 1430) were not waived. Both agreements expressly provide that such claims are not waived. Negrete did not agree to arbitrate the wrongful death claim (6 Witkin California Procedure 5th edition PWT 533; Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC (2007) 150 Cal.App.4th 469[,] 474). Arbitration of Kilpatrick's remaining causes of action and trial of the claims addressed above would create the possibility of conflicting rulings on a common issue of law or fact (Code Civ. Proc. 1281.2 (c))." The case was stayed pending a ruling by this court.
Code of Civil Procedure section 1294, subdivision (a) makes an order denying a petition to compel arbitration appealable.
Grancare contends that the trial court lacked the discretion to stay or deny arbitration of the Estate's negligence and elder abuse claims under California Code of Civil Procedure section 1281.2, subdivision (c), because the FAA's procedural provisions, not California arbitration law, govern the agreements. Accordingly, the issues necessarily had to be arbitrated, without any reference to California arbitration law. Grancare requests that we reverse the trial court's decision, that we order the Estate's claims for elder abuse and neglect be set for arbitration, and that the remaining wrongful death claim raised by Negrete and the Patient's Bill of Rights claims be stayed pending the outcome of arbitration. Negrete and the Estate respond that Grancare has waived their argument that the FAA applies by failing to present the issue in its written petition to compel arbitration as required under California Code of Civil Procedure section 1010. Further, since the agreements are ambiguous as to whether the FAA or California law controls, the contract is construed against the drafter, e.g. Grancare, and therefore, California procedural and substantive law apply to the determination of whether the causes of action are subject to arbitration.
In its written petition to compel arbitration, Grancare referred only to California law. At the time of the hearing on the petition, Grancare immediately notified the court that two days prior to the hearing, and after the petition was filed, the court of appeal issued its opinion in Valencia v. Smyth (2010) 185 Cal.App.4th 153 (Valencia). Grancare argued that Valencia supported an argument that based on the plain language of the agreements, the FAA procedural rules applied to the agreements as contracted by the parties. Grancare referred to the language of the agreements and that the parties "expressly designated their arbitration proceedings should move forward under the FAA's procedure rather than state procedural law." Under the FAA, any claims that are required to be arbitrated must be arbitrated. The trial court had no discretion under Code of Civil Procedure section 1281.2 to deny arbitration.
Negrete and the Estate responded that Grancare had failed to include the argument regarding the FAA controlling in the written petition to compel arbitration. She and the Estate requested a continuance and time to brief the issue should the trial court consider the argument. Negrete claimed that she was not bound by the agreements.
The trial court stated, "[Valencia's] the only recent case. All of the other cases you have brought up are new arguments that were not in the moving papers. Nothing that is [not] in the moving papers will be considered by the court. The new case may be considered by the court, but none of the other case law that you're citing is applicable under the court rules." Grancare inquired if the trial court said Valencia would be applicable. The trial court responded, "I said, considered by the court. But nothing that was not in your papers will be considered by the court. You know the court rules, counsel. I don't know why you went through all of that . . . ." Grancare argued that the agreements had been attached to the motion and the language of the agreements stated that the FAA controlled. The court asked for a complete citation to Valencia, then took the matter under submission.
The trial court then issued its ruling, as set forth in full, ante. It did not refer to the FAA in its ruling.
Negrete and the Estate argue that since Grancare did not argue in its moving papers that the FAA applied, it did not properly raise the issue in the trial court. Hence, any argument that the FAA controls the agreements has been waived.
Code of Civil Procedure section 1010 requires that "[n]otices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based." Notice is sufficient even if the grounds are not specified in the notice itself, where they appear in documents that are referred to by the notice and attached to it or included in the record. (Shields v. Shields (1942) 55 Cal.App.2d 579, 583.) "The purpose of these requirements is to cause the moving party to `sufficiently define the issues for the information and attention of the adverse party and the court.' [Citation.]" (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.)
Here, in its petition to compel arbitration, Grancare referred exclusively to California law, specifically, that California Code of Civil Procedure section 1281.2 compelled that the case be submitted for arbitration. However, it attached both agreements to the petition that contained the language that the parties intended for the FAA to apply. At argument, Grancare for the first time argued that the agreements were controlled by FAA procedural rules that mandated arbitration of the elder abuse/neglect claims and excused its failure to mention it in the moving papers to the fact Valencia had only recently been published.
The trial court had discretion to consider or to reject as untimely Grancare's claim specifically raised for the first time orally at the hearing on the petition. It stated that it would consider the new case submitted by Grancare. As will be discussed, post, Valencia involved a detailed discussion on whether the language in an arbitration agreement provides that the FAA or California law apply to an arbitration agreement and whether the claims are subject to arbitration. Based on the trial court's statement that it would consider Valencia, the record supports that the trial court considered Grancare's argument that the FAA applied. It impliedly rejected Grancare's argument that the FAA applied to the contract by concluding that Code of Civil Procedure section 1281.2, subdivision (c) applied.
Further, we note that the decision whether the FAA applies is reviewed de novo by this court based on the plain language of the agreements. (Valencia, supra, 185 Cal.App.4th at pp. 161-162.) Nothing in the trial court's ruling on the arbitration agreements has any impact on this court's interpretation of the agreements and whether the FAA procedural rules apply. Negrete and the Estate provide no argument as to how they would have responded differently in the lower court and we have considered their arguments raised in their briefs on appeal. As such, we find that Grancare did not waive its claim that the FAA procedural rules apply to the agreements.
"The question of whether [a contract incorporates] the FAA's procedural provisions, thereby eliminating the trial court's authority under [Code of Civil Procedure] section 1281.2(c), `is a question of law involving interpretation of statutes and the contract (with no extrinsic evidence). We therefore apply a de novo standard of review.' [Citation.]" (Valencia, supra, 185 Cal.App.4th at pp. 161-162.)
Code of Civil Procedure section 1281.2, provides, "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] . . . [¶] (c) A party to the arbitration agreement is also a party to a pending court action or special proceedings with a third party, 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."
On the other hand, the FAA does not allow a trial court to stay or deny arbitration if some of the claims are nonarbitrable claims. "Rather, the FAA requires the arbitration of all claims within the scope of an arbitration provision even if the action includes nonarbitrable claims by or against third parties. [Citation.]" (Valencia, supra, 185 Cal.App.4th at p. 157.) "[I]f a contract involves interstate commerce, the FAA's substantive provision (9 U.S.C. § 2) applies to the arbitration." (Id. at pp. 173-174.) The question remains for most contracts whether the FAA or California procedural rules apply based on the express designation of the parties in the plain language of the contracts. (Id. at p. 177.)
We interpret the meaning of the agreement for arbitration in light of the contract terms plain meaning. (See Zakarian v. Bekov (2002) 98 Cal.App.4th 316, 325.) "Plain meaning" refers to the ordinary or usual meaning of the words. (Lehman v. Superior Court (2006) 145 Cal.App.4th 109, 115.)
In Valencia, the court conducted an exhaustive review of cases from the United States Supreme Court, the California Supreme Court, and California Courts of Appeal on whether the FAA's procedural provisions apply in state court by looking at the plain meaning of the arbitration agreements. (Valencia, supra, 185 Cal.App.4th at p. 162.)
We briefly address some of the cases discussed in Valencia. In Volt Info. Sciences v. Leland Stanford Jr. U. (1989) 489 U.S. 468, 478-479 [103 L.Ed.2d 488, 109 S.Ct. 1248), the high court concluded that even in a contract that involved interstate commerce, which would automatically make it subject to the FAA, the parties could agree to apply California procedural law.
In Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 409-410, the California Supreme Court concluded that in a case that involves interstate commerce, but is silent on the choice of law, it can still be subject to California procedural rules.
In Cronus Investments Inc. v. Concierge Services (2005) 35 Cal.4th 376, the court concluded that Code of Civil Procedure section 1281.2, subdivision (c) did not conflict with the FAA, and therefore a clause in the arbitration agreement, which the parties agreed would be construed and enforced under California law, that "`[t]he designation of a situs or specifically a governing law for this agreement or the arbitration shall not be deemed an election to preclude application of the [FAA], if it would be applicable'" (Cronus, at p. 381, fn. omitted) did not require the application of the FAA (id. at pp. 392-394).
In Rodriguez v. American Technologies Inc. (2006) 136 Cal.App.4th 1110, the arbitration agreement included language that any "`controversy or claim'" arising out of the contract was to be settled in arbitration "`[p]ursuant to the FAA.'" (Id. at p. 1116.) The court concluded that the FAA procedural rules applied because the parties expressly designated that the FAA would apply. (Id. at p. 1122.) There was no mention of California law in the contract. The court recognized that although arbitrating some of the claims under the FAA and staying other claims was inefficient, the parties were free to choose their arbitration rules, and the court would not rewrite the rules. (Ibid.)
In Warren-Guthrie v. Health Net (2000) 84 Cal.App.4th 804, the contract involved interstate commerce. It also had a clause that stated that "`[a]ll Arbitration shall be conducted in accordance with the California Code of Civil Procedure, commencing with Section 1280.'" (Id. at p. 815.) The Court of Appeal determined that the FAA procedural rules applied because the parties had only agreed that arbitration would be conducted pursuant to California law; i.e., only California substantive law applied. (Id. at pp. 815-816.)
The court in Valencia discerned from this line of cases that "if a contract involves interstate commerce, the FAA's substantive provision (9 U.S.C. § 2) applies to the arbitration. But the FAA's procedural provisions (9 U.S.C. §§ 3, 4, 10, 11) do not apply unless the contract contains a choice-of-law clause expressly incorporating them." (Valencia, supra, 185 Cal.App.4th at pp. 173-174.)
In Valencia, the only reference to the FAA was the phrase "`[i]nterpretation of this agreement shall by governed by the [FAA].'" (Valencia, supra, 185 Cal.App.4th at p. 157.) The other language included that "`the arbitrator . . . shall render an award in accordance with substantive California Law. . . . In all other respects, the arbitration shall be conducted in accordance with Title 9 of Part III of the California Code of Civil Procedure.'" (Valencia, supra, 185 Cal.App.4th at p. 159, italics and boldface omitted.) It further provided that disputes would be decided "by neutral arbitration as provided by California law . . . ." (Ibid., capitalization, italics, and boldface omitted.) It also included language that if a party refuses to submit to arbitration it may be compelled to arbitrate under the California Code of Civil Procedure. (Id. at p. 178.) In evaluating the plain language of the agreement, the Valencia court established that the key determination was whether the "parties expressly incorporated the FAA's procedural provisions into their agreements." (Id. at p. 177, italics omitted.)
The Valencia court concluded that the parties had not agreed to apply the FAA procedural rules. "Rather, the Agreement expressly incorporates the CAA's procedural provisions." (Valencia, supra, 185 Cal.App.4th at p. 178.)
In the instant case, there are several provisions in the agreements signed by Kilpatrick and Monterey pertaining to both the FAA and California law. Both agreements included in the forward that, "[u]nder federal law two or more parties may agree in writing for the settlement by arbitration of any dispute arising between them."
In the nonmedical malpractice contract, there was language that "[i]t is understood that any dispute, other than those as to medical malpractice will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings." The medical malpractice contract's language differed only by substituting "any dispute as to medical malpractice" for "any dispute[] other than those as to medical malpractice." Both contracts stated that they involved interstate commerce. Additionally, both contracts contained language that "[i]ntending to be legally bound, the parties expressly agree that this Agreement will be governed by the Federal Arbitration Act, 9 U.S.C. -1-16 (`FAA')."
Further, both contracts included the following language: "An arbitration hearing regarding any disputes shall be held before a board of three arbitrators . . . . Such hearing and all other proceedings relative to the arbitration of the claim(s) shall [b]e conducted in accordance with the applicable rules of procedure governing the selected arbitrators that do not conflict with the FAA. In rendering a decision on the merits of the claim (s), the arbitrators shall apply the substantive law of the State of California."
In addition, both agreements included the language that "[i]n the event that any party to the Agreement refuses to go forward with arbitration, the party compelling arbitration reserves the right to proceed with arbitration, and the Resident [Kilpatrick] and the Facility [Monterey] specifically acknowledge the applicability of the FAA allowing the aggrieved party to petition an appropriate court for enforcement of the arbitration agreement and to obtain a stay of any other proceeding. Submission of any dispute under this Agreement to arbitration may only be avoided as specifically allowed by the FAA." (Italics added.)
The plain language of the agreements provide that California substantive law applies to the arbitration proceedings. However, the parties "expressly" agreed that the FAA procedural rules would apply when determining whether the claims would be subject to arbitration. (See Valencia, supra, 185 Cal.App.4th at p. 177.) The language in the agreements mirrors language in Code of Civil Procedure section 1281.2, as set forth, ante, with the parties expressly stating that the FAA, not California law, will be applied in determining a petition to compel arbitration. The parties specifically agreed that the FAA procedural rules apply and the trial court erred by applying Code of Civil Procedure section 1281.2, subdivision (c).
We disagree with Negrete's and the Estate's interpretation of the agreements that California procedural law applied. They refer to language in the agreements that any dispute "will be determined by submission to arbitration as provided by California law . . . ." They also refer to the fact that this case differs from Rodriguez v. American Technologies, Inc., supra, 136 Cal.App.4th 1110 in that the agreement in Rodriguez did not refer to California law, but there are references to California law in the instant agreements. Furthermore, relying on general contract principles, they argue any ambiguities should be resolved in their favor.
The agreements do not present any ambiguities. The language of the agreements clearly provide that California substantive law will be applied during an arbitration proceeding. However, in determining whether any case or controversy will be subject to arbitration, the plain language of the agreements provides that FAA procedural rules will apply.
We agree with Grancare that, according to the agreements, the parties agreed that any claims for medical malpractice and nonmedical malpractice as a result of Kilpatrick's stay and care at Monterey were subject to arbitration. Grancare in fact only requests that these claims be subject to arbitration and that Negrete's wrongful death cause of action and the causes of action under the Patient's Bill of Rights be stayed pending the outcome of the arbitration.
We note that such a remedy has been adopted by another court. "As a result, Laswell's nonarbitrable cause of action under Health and Safety Code section 1430, subdivision (b), which seeks statutory remedies and attorney fees based on the same alleged improper care addressed in her arbitrable causes of action, can be litigated in court after completion of the arbitration." (Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1409, fn. omitted.) As such, we reverse the trial court's order denying the petition to compel arbitration.
Since we conclude that the agreements were subject to the FAA, we need not address Grancare's argument that the trial court abused its discretion by applying Code of Civil Procedure section 1281.2, subdivision (c). We only briefly address the Estate's argument that the agreements were unconscionable.
"The doctrine of unconscionability contains two components: procedural unconscionability and substantive unconscionability." (Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 713.) Both must "`be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.' [Citation.]" (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.) "[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa." (Ibid.)
"`The procedural element of unconscionability focuses on two factors: oppression and surprise. [Citation.] "`Oppression' arises from an inequality of bargaining power which results in no real negotiation and `an absence of meaningful choice.'" [Citation.] "`Surprise' involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms." [Citation.] [¶] `The substantive element of unconscionability focuses on the actual terms of the agreement and evaluates whether they create "`overly harsh'" or "`one-sided'" results as to "`shock the conscience.'" [Citations.]' [Citation.]" (Bruni v. Didion (2008) 160 Cal.App.4th 1272, 1288-1289 [Fourth District, Div. Two].) "`Whether an arbitration provision is unconscionable is ultimately a question of law. [Citations.]' [Citation.]" (Id. at p. 1283.)
Initially, the Estate argues that the agreements are procedurally unconscionable because they were presented to Kilpatrick on the day she was admitted to Monterey, she was the weaker party, and it was presented to her on a take-it-or-leave-it basis. In the trial court, the Estate presented no evidence to support its claim of procedural unconscionability. In fact, the trial court did not even address unconscionability despite the issue being raised in the opposition to the petition to compel arbitration. A party challenging an arbitration agreement has the burden to prove both procedural and substantive unconscionability. (Crippen v. Central Valley RV Outlet (2004) 124 Cal.App.4th 1159, 1165.) The Estate failed to present any evidence (by way of declaration or documentary evidence) in the trial court to support its claim of procedural unconscionability. There is no evidence of the circumstances upon which the agreement was signed or Kilpatrick's mental state when she signed the arbitration agreements.
Moreover, on the face of the documents, there is nothing that shows that there was oppression or surprise. Both agreements have in their title that they are optional agreements and instruct the patient to read the document carefully. Both included language that execution of the agreements was not a prerequisite to receiving treatment or admission into the facility. Further, the patient could cancel the agreement within 30 days of signing the agreement. Bold language explained that the patient was agreeing to arbitration and waiving her right to trial. The Estate has failed to show that the agreements were procedurally unconscionable.
The Estate argues that lack of mutuality of obligation renders the arbitration agreements substantively unconscionable. However, this claim was never made in the trial court. The failure to raise an issue or argument in the trial court waives the point on appeal. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.) Since the Estate never raised this issue in the trial court and has failed to show procedural unconscionability, we need not address this claim; it has either been waived or would not support refusing to enforce the arbitration agreements.
Finally, the Estate argues that claims of elder abuse and neglect brought under the Elder Abuse and Dependent Adult Civil Protection Act should not be subject to arbitration. Such claim was rejected in Laswell v. AG Seal Beach, LLC, supra, 189 Cal.App.4th 1399. That court held, "Because we direct the trial court to grant the petition to compel arbitration, we note that the elder abuse cause of action may appropriately be resolved in arbitration. [Citations.] Indeed, judicial authority on the Elder Abuse and Dependent Adult Civil Protection Act does not `give any indication that the policies favoring enforcement of arbitration agreements [citation] conflict with the policies aimed at "protect[ing] a particularly vulnerable portion of the population from gross mistreatment in the form of [elder] abuse and custodial neglect."' [Citation.]" (Id. at p. 1409, fn. 3.) We find the reasoning in Laswell persuasive and adopt it here.
Based on the foregoing, the arbitration agreements were enforceable against the Estate and its claims for negligence and elder abuse.
The order denying the petition to compel arbitration is reversed. The trial court is directed to enter a new order granting the petition to compel arbitration of all causes of action except that against Grancare for violation of Health and Safety Code section 1430, subdivision (b), and for Negrete's wrongful death claim. Grancare shall recover its costs on appeal.
RAMIREZ, P.J. and MILLER, J., concurs.
