NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KUMAR, J.*

I. INTRODUCTION

This is an appeal from a judgment confirming an arbitration award in an action for, among other things, the wrongful death of decedent, Norma Robbins, who is the mother of plaintiffs, David Parker and James Parker. Plaintiffs do not challenge the award but claim the trial court should not have compelled arbitration of their claims against defendant, Westlake Health Care Center, a skilled nursing facility and its owners, defendants, Il H. Lee and Jeoung Lee.

We conclude plaintiffs are correct that the trial court erred in applying Code of Civil Procedure1 section 1281.2, subdivision (c) to the circumstances of this case. This is because claims remained against a third party (the treating physician, who was not a party to the arbitration) and there is a possibility of conflicting rulings on common issues of law and fact. Accordingly, the judgment confirming the arbitration award must be reversed and, absent a considerable change in circumstances, any reconsideration of the motion to compel arbitration should be denied.

II. BACKGROUND

On November 2, 2006, plaintiffs, as individuals and co-trustees of the Robbins Trust, dated November 27, 1989, filed a complaint against the nursing facility and its owners. The complaint also named as a defendant decedent's treating physician, Sherif S. Henein, M.D. Dr. Henein is not a party to this appeal. The complaint contained nine causes of action: negligence (first), reckless and willful misconduct (second), fraud (third through sixth), intentional infliction of emotional distress (seventh), tort per se for violations of Penal Code section 368 and Welfare and Institutions Code section 15656 protecting elders from abuse and neglect (eighth) and wrongful death (ninth).

The complaint alleged that, in October 2005, decedent, who suffered from diabetes, was admitted to the nursing facility for post-surgical and rehabilitative care and therapy after she underwent elective vascular bypass procedures to improve vascularization of her legs. In December 2005, while a resident of the facility, decedent developed gangrene in her right foot and leg, which led to hospitalization and an above the knee amputation of her right leg. Decedent died on February 9, 2006.

In the negligence claim, plaintiffs alleged that the nursing facility breached a number of duties in caring for decedent. Defendants allegedly did not: develop and update a care plan for decedent's individual needs; provide basic custodial and nursing services such as personal hygiene; provide and clean surgical dressings to prevent infection and the restriction of blood to her right foot and leg; reposition her to elevate her extremities; or provide decedent with assistance in mobility including rehabilitation therapy. Dr. Henein allegedly failed to make appropriate health care orders for decedent even after notice and information that decedent had developed swelling of her right foot and left.

The reckless and willful conduct claim added that defendants had failed to promptly and fully inform decedent's physician and family of her condition. Defendants failed to transfer decedent to a hospital when her emergent needs could no longer be met at the facility. It was alleged that defendants intentionally, willfully and recklessly breached their duties to decedent in a manner which amounted to "neglect" as defined by the Elder Abuse Act (Welf. & Inst. Code, § 15657).

The fraud claims were all against the nursing facility regarding misrepresentations about the care decedent would receive and the operations of the facility. To support the constructive fraud claim, plaintiffs alleged that the nursing facility breached a fiduciary duty owed to decedent by its operation of the facility. The emotional distress, tort per se, and wrongful death claims were predicated upon the aforementioned allegations that defendants and Dr. Henein had breached a number of duties of care.

On July 23, 2007, the nursing facility (subsequently joined by its owners) filed a motion to compel arbitration of the matters raised in the complaint. In support of the motion, defendants cited two arbitration agreements decedent had signed on the date she was admitted to the nursing facility.

On September 17, 2007, plaintiffs filed a first amended complaint. The substance of the pleadings did not change from the original complaint. But, plaintiffs added allegations against Dr. Henein that he acted as decedent's primary care physician and provided other health care services such as custodial care to decedent.

Prior to compelling arbitration, the trial court conducted three hearings to consider various issues raised by the parties. At the initial hearing on the motion to compel arbitration, the trial court also ruled on Dr. Henein's demurrers to the complaint. The trial court sustained Dr. Henein's demurrers to the negligence (first), reckless and willful misconduct (second), and tort per se (eighth) causes of action with leave to amend. The trial court sustained Dr. Henein's demurrer without leave to amend on the emotional distress (seventh) cause of action. The trial court overruled Dr. Henein's demurrer to the wrongful death (ninth) cause of action "because the complaint states a valid claim." Thus, at least one cause of action remained against Dr. Henein.

The trial court subsequently conducted two additional hearings on the motion to compel arbitration. At the second hearing on February 26, 2008, the trial court granted the motion to compel arbitration. The trial court ordered the action stayed as to Dr. Henein. A third hearing was held on May 13, 2008 regarding whether decedent's adult children could be compelled to arbitrate their wrongful death claim. On May 30, 2008, we summarily denied plaintiffs' petition for writ of mandate regarding the order compelling arbitration. (David Parker v. Superior Court (May 30, 2008, B207260).)

The arbitrator subsequently entered an award in favor of Westlake and the Lees. The arbitrator found there was insufficient evidence of elder abuse. There was no showing of any reckless, oppressive conduct or neglect. There was no fundamental failure of Westlake of its staff to provide medical care. There was no failure to attend to her basic needs. The Westlake staff was properly staffed and the nurses had adequate training. Allegations to support negligence of intentional infliction of emotional distress and conduct below standard of care were not sustained by the evidence. There was no evidence to support personal liability against the Lees. Decedent had many serious medical conditions which could have caused her death. Plaintiffs' theory that the bandages were wrapped too tightly did not preponderate over the other possibilities.

The trial court entered judgment confirming the arbitration award on September 2, 2010. This timely appeal followed.

III. DISCUSSION

One of the issues here is whether the trial court properly compelled arbitration of the dispute pursuant to section 1281.2, subdivision (c) because Dr. Henein was not a party to the arbitration agreement.2 The order compelling arbitration was not appealable. (Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1229; State Farm Fire & Casualty v. Hardin (1989) 211 Cal.App.3d 501, 506.) However, the order is subject to review from the judgment confirming the award. (Villacreses v. Molinari, supra, 132 Cal.App.4th at p. 1229; United Firefighters of Los Angeles v. City of Los Angeles (1991) 231 Cal.App.3d 1576, 1582-1583.) "[T]he proper interpretation and application of section 1281.2, subdivision (c), is a legal question reviewed de novo." (Birl v. Heritage Care, LLC (2009) 172 Cal.App.4th 1313, 1318; Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 484.)

Section 1281.2, subdivision (c) provides in part: "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 proceeding 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.... This subdivision shall not be applicable to an agreement to arbitrate disputes as to the professional negligence of a health care provider made pursuant to Section 1295.... [¶] If the court determines that a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party as set forth under subdivision (c) herein, the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding."

By its express terms, the statute provides an exception to enforcement of an arbitration agreement on the basis of litigation against a third party, who is not bound by the arbitration agreement. The term "third party" for purposes of section 1281.2 means "a party that is not bound by the arbitration agreement." (RN Solution, Inc. v. Catholic Healthcare West (2008) 165 Cal.App.4th 1511, 1519.) Here, at least one defendant, Dr. Henein, is not a party to the arbitration agreement. Thus, plaintiffs met the third party exception of section 1281.2, subdivision (c).

In addition, the complaint alleged that Dr. Henein as well as Westlake participated in decedent's post-operative care and treatment in harmful ways, which led to amputation of her right leg and ultimately her death. Thus, the same transaction or series of transactions are alleged against Dr. Henein and Westlake. (§1281.2, subd. (c); Birl v. Heritage Care LLC, supra, 172 Cal.App.4th at pp. 1319-1320.)

The trial court was then required to consider whether there was a possibility of conflicting rulings on common issues of law or fact. At the third hearing on the motion to compel arbitration, the trial court specifically stated there was a possibility of inconsistent rulings between the arbitration forum and the superior court action on the negligence and wrongful death claims. However, the trial court indicated that it had no discretion to deny arbitration of the dispute between plaintiffs and Westlake due to the health care provision in section 1281.2, subdivision (c).

The health care provision of section 1281.2, subdivision (c) states: "This subdivision shall not be applicable to an agreement to arbitrate disputes as to the professional negligence of a health care provider made pursuant to Section 1295." A skilled nursing facility is "health care provider" within the meaning of the Medical Injury Compensation Reform Act of 1975 ("MICRA"). (Alcott Rehabilitation Hospital v. Superior Court (2001) 93 Cal.App.4th 94, 99-100 [citing definitions of "health care provider" in section 340.5 and "health facility" in Health and Safety 1250 subdivision (c)].) But, more than professional negligence was alleged in the complaint. The complaint also included causes of action for elder abuse, fraud, and wrongful death. MICRA does not apply to neglectful custodial care of elders as opposed to professional negligence in providing health services. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 784-789 [the Legislature did not intend to provide health care providers the same procedural protections they enjoy for negligence in their professional health care practices as opposed to neglectful elder care abuse].) Thus, the "health care provider" provision did not preclude the trial court from exercising discretion to avoid the possibility of conflicting rulings on the wrongful death cause of action.

Not only was the trial court not limited from exercising its discretion, "`[t]he existence of this possibility of conflicting rulings on a common issue of fact is sufficient grounds' to deny a motion to compel pursuant to section 1281.2, subdivision (c). [Citation.]" (Abaya v. Spanish Ranch I, L.P. (2010) 189 Cal.App.4th 1490, 1499 quoting Henry v. Alcove Investment, Inc. (1991) 233 Cal.App.3d 94, 101) The purpose of section 1281.2, subdivision (c) is to avoid potential inconsistency in outcome as well as duplication of effort. (Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 393.) "Section 1281.2, [subdivision] (c) addresses the peculiar situation that arises when a controversy also affects claims by or against other parties not bound by the arbitration agreement." (Cronus Investments, Inc. v. Concierge Services supra, 35 Cal.4th at p. 393.) Furthermore, the trial court's discretion to avoid conflicting rulings on common legal and factual issues does not thwart the policy favoring arbitration. (Ibid.) "`While there is a strong public policy in favor of arbitration, there is an "equally compelling argument that the Legislature has also authorized trial courts to refuse enforcement of an arbitration agreement [or to stay the arbitration] when, as here, there is a possibility of conflicting rulings."' [Citation.] (Abaya v. Spanish Ranch I, L.P., supra, 189 Cal.App.4th at p. 1497.)

This case is very similar to Birl v. Heritage Care LLC, supra, 172 Cal.App.4th 1313. In Birl, like this case, the family of a deceased patient brought claims against a hospital, physicians and a nursing facility for elder abuse, negligence, willful misconduct, fraud, wrongful death and other claims not alleged in the current action. (Id. at pp. 1315-1317.) The trial court denied a nursing facility's petition to compel arbitration of some of the claims. The trial court exercised its discretion under section 1281.2, subdivision (c) to avoid the possibility of conflicting rulings on common issues of law and fact. (Id. at p. 1318.) The appellate court concluded the trial court had properly exercised its discretion because the hospital and its physicians and two other residential care facilities were third parties within the meaning of section 1281.2, subdivision (c). (Id. at p. 1319.) The conduct arose out of the same transaction or series of transactions which directly contributed to decedent's death. (Ibid.) Birl concluded "if the trial court did not join all the defendants in the court action, there was a `possibility' of conflicting rulings on common issues of law and fact." (Id. at p. 1321.) Therefore, the trial court did not abuse its discretion in refusing to order plaintiffs and the nursing facility to arbitration. (Id. at p. 1322.)

The possibility of such rulings is equally apparent in this case. Here, plaintiffs alleged that decedent died as a result of improper care and treatment by Dr. Henein and/or Westlake. Dr. Henein was alleged to be decedent's treating physician while she was in Westlake's facility. According to the complaint, Dr. Henein breached duties owed to decedent while she was in Westlake's care. Westlake also allegedly breached its duties of care to decedent in a manner which amounted to elder abuse. Despite evidence of deterioration in her condition, decedent was not moved from the facility until it was too late. Westlake allegedly failed to supervise decedent's care through neglect and inadequate staffing. These allegations clearly show that the action against Dr. Henein arose out of the same set of facts and circumstances that were alleged against Westlake. The complaint alleged the conduct of all defendants contributed to decedent's death.

It is conceivable that Dr. Henein will assert Westlake's conduct as an affirmative defense. A trier of fact could decide that Westlake was liable and apportion damages for its conduct. No doubt, the arbitrator found none of the allegations were true. But now, a jury, which is not bound by these findings, could conclude the contrary. A jury could conclude that Westlake contributed to decedent's death and apportion liability, accordingly. The result would be conflicting and inconsistent with the arbitrator's award where Westlake was found 100 percent not at fault. Plaintiffs are correct that it was an abuse of discretion to order arbitration when there is a very real possibility of conflicting rulings on common issues of law or fact.

For the reasons expressed herein, absent a considerable change in circumstances, any reconsideration of the motion to compel arbitration should be denied.

IV. DISPOSITION

The judgment is reversed. Each side is to bear their own costs.

We concur:

MOSK, Acting P. J.

KRIEGLER, J.