Opinion
G044701 Super. Ct. No. 30-2009-00329075
10-31-2011
JEANEEN BAUER, Plaintiff and Respondent, v. ALIREZA PANAHPOUR, Defendant and Appellant.
Fink & Steinberg, Keith A. Fink, and S. Keven Steinberg for Defendant and Appellant. Law Offices of David J. Wilzig and David J. Wilzig for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, John C. Gastelum, Judge. Reversed and remanded with directions.
Fink & Steinberg, Keith A. Fink, and S. Keven Steinberg for Defendant and
Appellant.
Law Offices of David J. Wilzig and David J. Wilzig for Plaintiff and
Respondent.
Defendant Alireza Panahpour appeals from the court's denial of his motion to compel arbitration of plaintiff Jeaneen Bauer's claims for dental malpractice, sexual battery, and other causes of action. The court held defendant failed to meet his burden to show the existence of an arbitration agreement between the parties. We reverse the court's order and direct the trial court to enter a new order granting defendant's motion to compel arbitration.
An order denying a petition to compel arbitration is appealable under Code
of Civil Procedure section 1294, subdivision (a).
FACTS
In a December 2009 complaint, plaintiff alleged defendant was a dentist practicing "biological dentistry as an employee and/or contractor of South Coast Medical Center for New Medicine, Inc. (South Coast). On information and belief, plaintiff alleged defendant "was the agent and/or employee" of South Coast, acting in the course and scope of his authority as an agent or employee. She further alleged she retained defendant's dental services around December 17, 2007. Her complaint chronicled 21 visits with defendant, including one on February 13, 2008. Defendant replaced her amalgam fillings (telling her they were "toxic to her system") and two crowns, repaired a fractured tooth with a crown, and performed "autonomic response testing" and "neural therapy" on, inter alia, the area around her breasts. Plaintiff alleged defendant's negligence resulted in the need for "reconstructive and restorative dental treatment." Plaintiff sued defendant and South Coast for dental malpractice, lack of informed consent, sexual battery, battery, intentional misrepresentation, and negligent misrepresentation.
Plaintiff also sued South Coast and its co-owner (Leigh Erin Connealy) for negligent hiring/retention.
Defendant filed a petition to compel arbitration. He declared: (1) plaintiff retained his dental services, and (2) "[a]s part of that retention," he and plaintiff entered into an arbitration agreement, a true and correct copy of which was attached as an exhibit. The attached exhibit, however, consisted of two agreements — one dated February 13, 2008 (the 2008 agreement) and the other March 20, 2006 (the 2006 agreement). Both agreements are on an identical preprinted form entitled "Physician-Patient Arbitration Agreement." The form contains no space for identifying the parties other than the signature lines for the physician and the patient (and the corresponding lines beneath the signature lines for printing or stamping their names). On both the 2006 and 2008 agreements, plaintiff's signature and printed name are legible. But the physician's identity is less clear, because of an illegible signature on each agreement that is tantamount to a squiggle or curlicue. The physician's "signature" on the 2006 agreement is dissimilar to the one on the 2008 agreement; in other words, it does not appear that the same person signed both agreements as the physician. (In her respondent's brief, plaintiff points out that both these squiggles are dissimilar to defendant's "equally illegible" signature on his declaration.) The 2008 agreement bears no stamped or printed name for the physician. The 2006 agreement, in contrast, does bear a stamped identity; on the line stating "Print or Stamp Name of Physician, Medical Group or Association Name," "S. COAST MED. CT. FOR NEW MEDICINE, INC. AND ITS AFFILIATED PHYSICIANS" is stamped.
Plaintiff opposed defendant's motion to compel arbitration. She declared: (1) the 2006 agreement related to her medical treatment with Dr. Connealy at South Coast; (2) she did not commence dental treatment with defendant until December 2007, one and a half years after she started medical treatment with Dr. Connealy at South Coast; and (3) she did "not recall signing an arbitration agreement relating to [her] dental treatment with [defendant] in December 2007" and did not believe she did so. Her attorney declared: (1) he represented various other plaintiffs in several cases against defendant; (2) defendant's records in some of these cases "contain the pre-printed arbitration form which [defendant] used in his practice at a number of locations, including" South Coast; (3) attached to the attorney's declaration was a copy of the arbitration agreement which defendant has his patients sign; and (4) the arbitration agreement attached to defendant's motion to compel arbitration was not the document defendant has his patients sign. The arbitration agreement attached to the attorney's declaration is very dissimilar to the 2006 and 2008 agreements. Although the attorney redacted the patient's name and signature from the agreement claimed to be defendant's standard form, the "doctor's" signature line appears to be blank and undated; in other words, it was not signed by defendant. The attorney further declared defendant "was an independent contractor of South Coast who maintained and ran the dental division as an independent and distinct practice," and was "terminated from his position as head of [South Coast's] dental division" for embezzlement. In support of these last two points, plaintiff's attorney attached, as an exhibit to his declaration, a copy of a declaration of Connealy filed with the Orange County Superior Court in defendant's lawsuit against South Coast.
There is no evidence plaintiff's attorney had any connection with that lawsuit so as to have any direct knowledge of Connealy's declaration. Nonetheless, as plaintiff points out in her brief, defendant has never objected to the admission into evidence of Connealy's declaration.
In a December 14, 2010 minute order, the court ruled defendant's petition to compel arbitration was "continued for evidence and supplemental briefing" on whether the 2006 agreement between plaintiff and "'South Coast Med. Center for New Medicine Inc. and its [Affiliated] Physicians'" applied to defendant. The court also directed the parties to address the 2008 agreement.
In response, defendant submitted a supplemental brief. He declared he and plaintiff entered into an arbitration agreement (and attached a copy of the 2008 agreement), stating it "appear[ed]" to have been signed by his staff on his behalf and under his authority. Defendant also submitted the declaration of Patrick McCall, South Coast's chief executive officer. McCall declared: (1) defendant provided "independent contract services" for South Coast; (2) South Coast's arbitration agreement pertains not only to South Coast physicians, "but also to independent contractor dentists, including [defendant]"; (3) McCall understood that defendant "had his own arbitration agreement with patients"; and (4) South Coast approved the use of such agreements and considered them binding upon defendant's patients. McCall purported to attach a copy of defendant's arbitration agreement, but actually attached, perhaps inadvertently, a copy of the 2008 agreement.
Plaintiff declared: (1) she did not sign an arbitration agreement relating to dental treatment with defendant on February 13, 2008; (2) the 2008 agreement related to her medical treatment with Dr. Connealy; and (3) defendant "maintained the dental division at South Coast in a separate area and his staff had a separate space for signing their documents," and she "did not sign any arbitration agreement in that area." She argued defendant had failed to meet his burden of proof to show the existence of an arbitration agreement between the parties covering dental treatment. She noted defendant could only state that the 2008 agreement "'appears'" to have been signed by an unidentified member of his staff, compared to her "unequivocal[]" statements she signed the 2006 and 2008 agreements "in conjunction with her medical treatment with Dr. Leigh Erin Connealy at South Coast, not her dental treatment with [defendant]." Attached to her attorney's declaration was a "true and correct copy of the form arbitration agreement regularly utilized by [defendant] in the dental division of [South Coast] at the time that [plaintiff] was [defendant's] patient," the same agreement submitted with plaintiff's initial opposition.
On January 4, 2011, the court heard oral argument, then confirmed its tentative ruling denying defendant's motion to compel arbitration. The court found defendant failed to show the existence of an arbitration agreement between the parties. The court stated: "Here, although [defendant] declares he entered an arbitration agreement with [p]laintiff, the agreement he attaches is between [p]laintiff . . . and 'South Coast Med. Center for New Medicine Inc. and its [Affiliated] Physicians.' For the initial hearing, [defendant] offered no evidence to show he is part of or was encompassed within 'South Coast Med. Center for New Medicine Inc. and its [Affiliated] Physicians.' The Court granted a temporary stay of proceedings and continued the hearing to January 4, 2010 for evidence and supplemental briefing whether the [2006 agreement] applies to [defendant]. The parties were also ordered to address the [2008 agreement]. [¶] The supplemental papers show the agreement between [South Coast] and [p]laintiff provided it applies to physicians, partners, associates, employees, and agents. McCall declares the Arbitration Agreement encompasses independent contractor dentists, including [d]efendant. In addition, [defendant] declares the [2008 agreement] is between [p]laintiff and [defendant] — that it was signed on his behalf by his staff. The writing is illegible. [¶] Plaintiff declares she did not sign an arbitration agreement relating to dental treatment with [defendant] on March 20, 2006. This is credible because she did not commence treatment with him until 1 1/2 years later. The [2006 agreement] does not appear to be an agreement between [p]laintiff and [defendant]. McCall states it applies to [defendant] because he is an independent contractor dentist, but that is not one of the category of persons identified in the arbitration agreement as being bound by it. [¶] [Defendant] also claims it 'appeared' that the [2008 agreement] was entered [into] on his behalf by someone on his staff. Plaintiff disputes this, asserting the [2008] agreement related to her medical treatment performed and prescribed by Leigh Erin Connealy, M.D. This is a credibility issue. Plaintiff is more credible; she has offered evidence that [defendant] had his own arbitration agreements, that his staff area was in a separate area, that she was having Connealy perform medical treatment. [Defendant] does not offer evidence of WHO signed the arbitration agreement on his behalf. Evidence Code section 412 provides, 'If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.'"
DISCUSSION
"[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." (United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960) 363 U.S. 574, 582.) "'[T]he policy favoring arbitration cannot displace the necessity for a voluntary agreement to arbitrate.'" (Victoria v. Superior Court (1985) 40 Cal.3d 734, 739.) "Generally speaking, one must be a party to an arbitration agreement to be bound by it or invoke it." (Westra v. Marcus & Millichap Real Estate Investment Brokerage Co., Inc. (2005) 129 Cal.App.4th 759, 763.) "General principles of contract law determine whether the parties have entered a binding agreement to arbitrate." (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 420.)
"Because the existence of the agreement is a statutory prerequisite to granting the petition [to compel arbitration], the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement — either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation [citation] — that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense." (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.)
"There is no uniform standard of review for evaluating an order denying a motion to compel arbitration." (Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.) "[I]f the court's denial rests solely on a decision of law, then a de novo standard of review is employed." (Ibid.) Thus, in cases where resolution of the issue hinges on the interpretation of the arbitration contract and "'no conflicting extrinsic evidence is introduced to aid [such] interpretation . . . , the Court of Appeal reviews de novo a trial court's ruling on a petition to compel arbitration.'" (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 707.) But "[w]here the trial court's decision on arbitrability is based upon resolution of disputed facts, we review the decision for substantial evidence. [Citation.] In such a case we must '"accept the trial court's resolution of disputed facts when supported by substantial evidence; we must presume the court found every fact and drew every permissible inference necessary to support its judgment, and defer to its determination of the credibility of witnesses and the weight of the evidence."'" (NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 71.)
We begin by reviewing de novo the 2006 and 2008 agreements to determine whether either of them applies to this dispute as a matter of law. In doing so, we bear in mind that arbitration agreements concerning medical malpractice claims are governed by Code of Civil Procedure section 1295 (section 1295). "'Section 1295 was enacted as part of the Medical Injury Compensation Reform Act of 1975 (MICRA). [Citation.] MICRA was a response to a perceived crisis regarding the availability of medical malpractice insurance.'" (Ruiz v. Podolsky (2010) 50 Cal.4th 838, 843.) "'The purpose of section 1295 is to encourage and facilitate arbitration of medical malpractice disputes. [Citations.] Accordingly, the provisions of section 1295 are to be construed liberally.' In other words, the encouragement of arbitration '"as a speedy and relatively inexpensive means of dispute resolution"' [citation] furthers MICRA's goal of reducing costs in the resolution of malpractice claims and therefore malpractice insurance premiums." (Id. at p. 844.)
Section 1295 expressly applies to "[a]ny contract for medical services which contains a provision for arbitration of any dispute as to professional negligence of a health care provider" (id., subd. (a), italics added) and specifies language which must be included in any such contract and the location in the contract where such language must be placed (id., subds. (a), (b)). Section 1295 defines "'[h]ealth care provider'" to include dentists. (Id., subd. (g)(1); Bus. & Prof. Code, § 1600 et seq.) The contractual language mandated by section 1295 notifies the parties "'that any dispute as to medical malpractice'" concerning "'medical services rendered under this contract'" will be arbitrated and that the parties, by signing the contract, are "giving up their constitutional right to have any such dispute decided in a court of law before a jury . . . ." (Id., subd. (a).) Section 1295 further provides that "such a contract governs all subsequent open-book account transactions for medical services for which the contract was signed until or unless rescinded by written notice within 30 days of signature." (Id., subd. (c).) If a contract conforms with the foregoing, it "is not a contract of adhesion, nor unconscionable nor otherwise improper . . . ." (Id., subd. (e).) The 2006 and 2008 agreements comply with section 1295's requirements.
Certain "health care service plan contract[s]" are exempted from the requirements of section 1295, subdivisions (a), (b), and (c). (§ 1295, subd. (f).)
Defendant contends that plaintiff, by signing the 2006 and 2008 agreements and never revoking them, "agreed to arbitrate any claim arising out of medical services rendered to her as a [South Coast] patient." But the preprinted one-page form contract (that was used for both agreements) does not state that all services rendered to the patient on South Coast premises at any time and by any provider are subject to arbitration. Rather, the following provisions (denominated "articles") of the agreement are relevant in determining what services it covers. The agreement's article 1 (entitled "Agreement to Arbitrate") contains the following language mandated by section 1295: "[A]ny dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered," will be resolved by arbitration. (Italics added.) The first paragraph of article 2 (entitled "All Claims Must be Arbitrated") states it binds "all parties whose claims may arise out of or relate to treatment or service provided by the physician . . . ." (Italics added.) Nowhere in the contract is the "physician" identified or defined, other than at the bottom of the document on the physician's signature line and the line instructing "Print or Stamp Name of Physician, Medical Group or Association Name." The second paragraph of Article 2 states that "[a]ll claims for monetary damages exceeding the jurisdictional limit of the small claims court against the physician, and the physician's partners, associates, association, corporation or partnership, and the employees, agents and estates of any of them, must be arbitrated . . . ." Article 5 (entitled "Revocation") provides the agreement applies "to all medical services rendered any time for any condition" unless it is revoked "by written notice delivered to the physician within 30 days of signature." Article 6 (entitled "Retroactive Effect") states it applies retroactively to cover services rendered before the date it is signed if the patient initials the article. (Plaintiff initialed or signed Article 6 on both the 2006 and 2008 agreements.)
Under Civil Code section 1638, a contract's clear language controls unless it involves an absurdity. Under the clear language of article 1 and the first paragraph of article 2, the form agreement covers medical malpractice claims arising out of or related to "treatment or service provided by the physician." The physician is to be identified on the signature and print/stamp lines of the agreement.
In the case before us, the print/stamp line for the physician on the 2008 agreement is blank and the physician's "signature" is a curlicue, from which nothing can be discerned except for a loop beneath the signature line. The parties presented conflicting evidence on the circumstances under which the 2008 agreement was signed and on the identity of the signatory physician. Substantial evidence supports the court's factual finding that defendant failed to show the 2008 agreement covered his dental treatment of plaintiff.
In contrast, the 2006 agreement does identify the contracting physician. Clearly stamped on the print/stamp line are the words, "S. COAST MED. CT. FOR NEW MEDICINE, INC. AND ITS AFFILIATED PHYSICIANS." Thus, the issue as to the 2006 agreement is whether defendant was a member of South Coast and its Affiliated Physicians.
The trial court addressed this issue, noting that defendant offered no evidence at "the initial hearing" that he was part of "'South Coast Med. Center for New Medicine Inc. and its [Affiliated] Physicians.'" (Italics added.) The court acknowledged that defendant subsequently submitted the declaration of McCall (South Coast's chief executive officer), in which McCall declared the agreement pertains to independent contractor dentists, including defendant. Nonetheless, the court held that an independent contractor dentist "is not one of the categor[ies] of persons identified in the arbitration agreement as being bound by it." Rather — the court stated — the agreement provides "it applies to physicians, partners, associates, employees, and agents."
The court's conclusion is obviously based on its interpretation of the second paragraph of article 2 of the agreement. Our independent review of the contract does not support the trial court's construction of that paragraph. To review the pertinent contractual language again, the first paragraph of article 2 states it binds "all parties whose claims may arise out of or relate to treatment or service provided by the physician." The second paragraph of article 2 provides: "All claims for monetary damages exceeding the jurisdictional limit of the small claims court against the physician, and the physician's partners, associates, association, corporation or partnership, and the employees, agents and estates of any of them, must be arbitrated including, without limitation, claims for loss of consortium, wrongful death, emotional distress or punitive damages."
Thus, the first paragraph of article 2 specifies what claims must be arbitrated, i.e., medical claims related to treatment provided by a physician who is a party to the agreement. It also "makes clear that the agreement was intended to bind all parties whose claims arise out of or related to the treatment provided to [the contracting patient]." (Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586, 1591 (Bolanos)[interpreting the same contractual language].) The second paragraph of article 2 clarifies that any such claim (of a sufficient monetary amount) must be arbitrated, whether the named defendant is the physician or the physician's corporation, partner, or other specified entity or individual related to the physician. Certainly, the second paragraph does not limit the arbitrability of claims against the contracting physician. It does not say that a contracting physician can never be an independent contractor. As indicated by the form agreement's print/stamp line, the contracting physician can be a "Physician, Medical Group, or Association." In the case of the 2006 agreement, the contracting physician was a group called South Coast and its Affiliated Physicians.
Thus, the court erred by interpreting article 2's second paragraph to exclude from mandatory arbitration any claims related to treatment provided by an independent contractor of South Coast. Instead, the court should have focused on the factual question of whether defendant was a member of South Coast and its Affiliated Physicians. Defendant met his burden of proof on this issue by submitting McCall's declaration, in which South Coast's chief executive officer declared the arbitration agreement pertained to independent contractor dentists of South Coast. Plaintiff submitted no contrary evidence on the precise issue of whether defendant was a member of South Coast and its Affiliated Physicians. Indeed, in her respondent's brief, plaintiff states that the declarations of McCall and Connealy "are the only evidence of [defendant's] relationship with South Coast." Plaintiff herself introduced Connealy's declaration into evidence. In that declaration, South Coast's co-owner provided strong evidence of defendant's affiliation with South Coast, declaring: (1) South Coast has "several specialty divisions such as dentistry"; (2) under the contract between South Coast and defendant, South Coast furnished defendant with "'all necessary support staff as agreed, office space, apparatus, instruments, equipment and supplies [he requested] for the successful conduct of the practice of dentistry,'" and all "'furniture, equipment and instruments provided [remained] the" property of South Coast'"; and (3) defendant treated South Coast patients, as well as illicitly seeing some non-South Coast patients at the facility.
According to plaintiff, defendant did not object to the admission into evidence of Connealy's declaration. In fact, on appeal, defendant relies on Connealy's declaration; he argues it demonstrates South Coast's control over him. Defendant asserts it can be inferred from Connealy's declaration that: (1) South Coast dental patients paid South Coast (not defendant) directly, and (2) South Coast expected defendant to provide treatment at the facility exclusively to South Coast patients.
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In addition, plaintiff's complaint contains judicial admissions of the affiliation between South Coast and defendant in providing dental care to South Coast patients. For example, plaintiff's complaint alleged: (1) plaintiff retained defendant and South Coast "for the performance of a general dentistry examination and consultation for a broken tooth"; (2) defendant and South Coast "rendered professional dental services in the diagnosis, treatment and care of Plaintiff and "maintained their dental office and held themselves out to the general public as competent and skilled dentists and dental surgeons"; and (3) defendant and South Coast, "jointly and individually, negligently failed to exercise the proper degree of knowledge, skill and competence in examining, diagnosing, treating and caring for Plaintiff by incompetently and negligently performing dental services" and negligently failed to disclose to plaintiff inherent risks. (Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271["admission of fact in a pleading is a 'judicial admission'"].)
Plaintiff argues that the word "physician" as used in the agreement does not include a dentist. She bases her argument on dictionary definitions and a lay person's understanding of the word. Defendant counters that section 1295 includes dentists in its definition of "[h]ealth care provider[s]," which is incorporated into the statute's definition of "professional negligence." (Id., subd. (g)(1) (2).) The statute governs contracts providing for "arbitration of any dispute as to professional negligence of a health care provider." (Id., subd. (a), italics added.) Yet the statute requires all such contracts to include language referring to "medical malpractice" and "medical services," revealing that the term "medical" is used broadly in the statute to include services by health care providers within the statutory definition. As a result of the mandated language, contracts complying with section 1295 must contain references to "medical" malpractice and services, no matter what type of health care provider is contracting for arbitration of professional negligence claims. Given the statute's purpose to facilitate arbitration and our Supreme Court's directive that it be construed liberally, we interpret the agreements here to cover the medical and dental services provided by South Coast and its Affiliated Physicians. We note plaintiff does not assert that South Coast had no dentistry department at the time she signed the 2006 agreement. In any case, she should reasonably have been aware, at the time she began her dental treatment with defendant, that she had earlier signed the 2006 agreement.
Prominent in plaintiff's opposition to defendant's arbitration motion were her own declarations that the 2006 and 2008 agreements related to her medical treatment from Connealy. But she submitted no extrinsic evidence suggesting a limitation on the scope of the services covered by the agreement, nor did she raise any defense such as mistake or fraud in the execution. In Bolanos, supra, 231 Cal.App.3d 1586, the plaintiff patient opposed the defendant physician's petition to arbitrate a medical malpractice claim. (Id. at pp. 1588-1589.) The patient, who had signed the arbitration agreement, declared she had "'the equivalent of a fifth grade education'" and that neither the physician nor his staff had explained the contract to her. (Id. at p. 1589.) (The first paragraph of article 2 of the arbitration agreement in Bolanos was identical to the agreement in the instant case.) (Id. at p. 1591.) Bolanos held the patient was bound by the agreement: "The arbitration agreement here complies with the requirements of . . . section 1295 and, thereby, as a matter of public policy, 'is not a contract of adhesion, nor unconscionable nor otherwise improper . . . .' [Citation.] 'A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.' [Citation.] [¶] Since the agreement here is not one of adhesion, the general rule, that one who signs an agreement cannot avoid its terms on the ground that he failed to read it, is applicable. [Citations.] When a person with the capacity of reading and understanding an instrument signs it, he may not, in the absence of fraud, coercion or excusable neglect, avoid its terms on the ground he failed to read it before signing it." (Id. at p. 1590; see also Jefferson v. Department of Youth Authority (2002) 28 Cal.4th 299, 303 ["'"The general rule is that when a person with the capacity of reading and understanding an instrument signs it, he is, in the absence of fraud and imposition, bound by its contents, and is estopped from saying that its provisions are contrary to his intentions or understanding"'"].)
Plaintiff further argued that she began receiving dental treatment from defendant over a year after entering into the 2006 agreement. But plaintiff never revoked the 2006 agreement; thus, the contract, pursuant to article 5 thereof, continued to apply prospectively "to all medical services rendered any time for any condition." (See Gross v. Recabaren (1988) 206 Cal.App.3d 771, 777 ["'To impose upon a physician, during a continuous doctor-patient relationship, the extra burden of having to renew the arbitration agreement each time there is a variation in treatment or ailment would be impractical, and would frustrate the purpose of the statute, which is to facilitate, not emasculate, the arbitration process'"].) That defendant himself did not sign the 2006 agreement is not dispositive. For example, in Harris v. Superior Court (1986) 188 Cal.App.3d 475, the contract provided that claims asserted against, inter alia, Hawthorne Community Medical Group, Inc., and its employees were subject to arbitration. (Id. at p. 477.) Harris stated: "We have no doubt that the enrollment form arbitration clause, which specifically named Hawthorne and its contracting health professionals, gave [the nonsignatory employee physician] the contractual right to compel arbitration of a malpractice claim against him." (Id. at p. 478.) The reverse was also true; the contracting patient had the right to compel arbitration of the claim. (Ibid.)"[P]laintiffs were patients of Hawthorne, which, as a professional corporation, could render professional medical services to them only through its employees. [Citation.] Acting as Hawthorne's employee and on its behalf, [the physician] rendered medical care to plaintiffs. In so doing he was subject to Hawthorne's obligations under the arbitration agreement . . . ." (Id. at p. 479.)
Finally, plaintiff submitted evidence defendant had used a different form arbitration contract with some of his other patients. Assuming defendant did require some of his patients (at various locations, including South Coast) to sign a different form arbitration agreement, this is not inconsistent with his affiliated status with South Coast.
In sum, the evidence showed defendant was a member of South Coast and its Affiliated Physicians. He was therefore a party to the 2006 agreement and had a contractual right to compel arbitration of plaintiff's claims against him.
DISPOSITION
The order denying defendant's motion to compel arbitration is reversed and the matter remanded to the trial court with directions to enter a new order granting defendant's motion to compel arbitration. Defendant shall recover his costs on appeal.
IKOLA, J. WE CONCUR: RYLAARSDAM, ACTING P. J. O'LEARY, J.