Opinion
G044705
10-31-2011
CHELSEA BIBB, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2010-00355539)
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 Chelsea Bibb'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 March 2010 complaint, plaintiff alleged defendant was a dentist practicing "biological dentistry as an independent contractor retained by" South Coast Medical Center for New Medicine (South Coast) and Leigh Erin Connealy, South Coast's medical director and co-owner. On information and belief, plaintiff alleged defendant "was the agent and/or employee" of South Coast and Connealy, 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 27, 2007. Her complaint chronicled seven visits with defendant, including one on June 16, 2008. Defendant replaced four of plaintiff's amalgam fillings (telling her they were "toxic and detrimental to her health"), and performed "neural therapy" on, inter alia, her genital area. 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 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 agreement was dated June 16, 2008 (the 2008 agreement) and was on a 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 the 2008 agreement, plaintiff's signature and printed name are legible. But the physician's signature is illegible, although the identity is clear: 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. In her respondent's brief, plaintiff points out the physician's signature on the 2008 agreement is dissimilar to defendant's "equally illegible" signature on his declaration.
Plaintiff opposed defendant's motion to compel arbitration. She declared: (1) she signed an arbitration agreement relating to her medical treatment with South Coast on the day of her first medical appointment which was June 16, 2008; (2) she had her initial new patient consultation with defendant six months earlier, on December 27, 2007; and (3) she did "not recall being asked by [defendant] or any member of his staff to sign an arbitration agreement on December 27th or at anytime thereafter nor [did she] recall ever signing such an agreement relating to [her] dental treatment." Her attorney declared: (1) he handled other cases in which defendant's dental charts had been produced; (2) he reviewed those charts and found that if an arbitration agreement had been signed by a patient of defendant, it was on a form entirely different from the document which defendant alleged plaintiff signed in relation to her dental treatment with him; and (3) attached to the attorney's declaration was a copy of the form arbitration agreement defendant used during the time he treated dental patients such as plaintiff at the South Coast facility. The arbitration agreement attached to the attorney's declaration is very dissimilar to the 2008 agreement. 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.
Plaintiff's attorney subsequently filed an additional declaration, in which he declared defendant was an independent contractor of South Coast who "managed South Coast's dental division as an independent and distinct operation," and defendant's relationship with South Coast "evidenced all the indicia of an independent contractor relationship." 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 November 23, 2010 minute order, the court requested supplemental briefing as to whether the 2008 agreement between plaintiff and "'South Coast Medical Center for New Medicine Inc and its [affiliated] physicians'" applied to defendant. The court's tentative ruling stated: Defendant "declares he entered into an arbitration agreement with Plaintiff, but the agreement he attaches is between Plaintiff and 'South Coast Med. Center for New Medicine Inc. and its [Affiliated] Physicians.' [Defendant] offers no evidence to show he is part of or encompassed within that group. So far, he has not met his burden to show he had an arbitration agreement with Plaintiff. The court will continue the hearing for additional evidence and briefing on this issue."
In response, defendant submitted a supplemental brief. He 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, South Coast's form arbitration agreement.
Plaintiff submitted a supplemental brief. She argued defendant had failed to meet his burden of proof to show the existence of an arbitration agreement between the parties. 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] dental 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.
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 2008 agreement to determine whether it 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., subd. (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 2008 agreement complies 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). (Id., subd. (f).)
Defendant contends that plaintiff, by signing the 2008 agreement and never revoking it, "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 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 signed article 6 of the 2008 agreement.
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 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, 159 [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 2008 agreement, the contracting physician was a group called South Coast and its Affiliated Physicians.
Thus, the issue is a factual one — whether defendant was a member of South Coast and its Affiliated Physicians. The trial court addressed this issue, noting in its tentative ruling that, prior to supplemental briefing, defendant had offered "no evidence to show he is part of or encompassed within that group." But the court's final ruling failed to recognize that defendant met his burden of proof on this issue by submitting (with his supplemental briefing) 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) pursuant to her retention of defendant and South Coast "to diagnose and treat her dental complaints, said defendants "rendered professional dental services in the diagnosis, treatment and care of Plaintiff; (2) defendant and South Coast "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 "[p]rofessional 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.
Plaintiff further argues that she began receiving dental treatment from defendant six months before entering into the 2008 agreement. But plaintiff specifically signed article 6, thereby agreeing that the arbitration contract would apply retroactively to cover services rendered before the execution date.
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 2008 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.