Opinion
G062362
06-05-2023
BARBARA MUKASA, Plaintiff and Respondent, v. SENIOR RIDE AND HOME CARE, INC., Defendant and Appellant.
Horton, Oberrecht & Kirkpatrick, Cheryl A. Kirkpatrick and Fang Li for Defendant and Appellant. Moran Law, Michael F. Moran, Lisa Trinh Flint, Suzan N. Tran, and Paul R. Stubb for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 30-2022-01263553, Nathan T. Vu, Judge. Affirmed.
Horton, Oberrecht & Kirkpatrick, Cheryl A. Kirkpatrick and Fang Li for Defendant and Appellant.
Moran Law, Michael F. Moran, Lisa Trinh Flint, Suzan N. Tran, and Paul R. Stubb for Plaintiff and Respondent.
OPINION
GOETHALS, J.
Senior Ride and Home Care, Inc. dba OC Homecare Services, (OC Homecare) appeals from an order denying its motion to compel arbitration of Barbara Mukasa's lawsuit against it. The arbitration provision OC Homecare seeks to enforce is contained in a Residency Agreement entered into between Mukasa and Park View Estates (Park View), the residential care facility where she resided at the time of the incidents at issue in this lawsuit. Although OC Homecare is not a signatory to that agreement, it argues the court erred in concluding it could not enforce the arbitration provision on theories of equitable estoppel or agency, or because it was included within the broad language of the provision.
We find no error and affirm.
FACTS
This case arises out of allegations of mistreatment of Mukasa, an elderly woman with dementia, while she was living at Park View. Mukasa's complaint, filed in June 2022, names Park View and two other limited liability companies, both doing business as "Park View Estates," as defendants. The complaint collectively identifies Park View and the other two named defendants, plus Does 3-50, as "The Facility Defendants" (some capitalization omitted) and also states that the named defendants and Does 3-40 operated as a single unit and joint enterprise in operating the business of Park View Estates.
Does 3-40 are identified as consisting of four categories of potential defendants who are related to Park View in specific ways-Does 3-10 are owners and management of the first-named Park View entity, the next two categories consist of the owners and management of each of the other two named entities and the fourth category is the staff and employees of the facility. Does 41-50 appears to be reserved for potential defendants whose connection to Park View does not fit within any of those identified categories.
A page later, the complaint re-identifies the collective "Facility Defendants" as the named defendants plus "Does 2 through 50," (rather than "Does 3 through 50") and alleges they were all knowing agents and alter egos of one another. However, given that the complaint otherwise consistently distinguishes between Does 1 and 2 (the Temp Agency and the Caregiver) and Does 3-50, we conclude the inclusion of Doe 2 in this second "Facilities Defendants" reference is a typographical error.
The complaint describes "Doe 1" as "the temp agency that hired and/or referred Doe 2 (Caregiver) to Park View Estates" (some capitalization omitted) and describes Doe 2 as "the individual caregiver from Doe 1 (temp agency) who physically abused and neglected [Mukasa] on September 30, 2021."
On August 11, 2022, Mukasa amended her complaint to identify "OC Homecare Services" as Doe 1 (the temp agency), and to identify Adeoluwa Faleke as Doe 2 (the caregiver). Five days later, she amended her complaint again to identify "Senior Ride and Home Care, Inc." as Doe 3.
The complaint was later dismissed against Faleke, without prejudice, because she had not yet been served.
"Senior Ride and Home Care, Inc." is part of the full legal name of the temp agency identified as Doe 1. Mukasa later obtained a court order clarifying that the legal name of Doe 1 was "Senior Ride and Home Care, Inc., dba OC Homecare Services." That party, referred to herein as "OC Homecare Services," is the appellant. Doe 3 otherwise belongs in the category of defendants alleged to be "the owners, operators, licensees, officers, directors, managers, managing agents, members, shareholders, and management company" of Park View.
The facts giving rise to Mukasa's causes of action are alleged in paragraphs 15-60 of the complaint, which are in turn incorporated into each of the causes of action alleged. They allege that prior to her admission to Park View, Mukasa's son informed the Facility Defendants that she had fallen three times in the prior two years, and the Facility Defendants assessed her as a high risk for falls and concluded she would require monitoring and physical assistance. Faleke, the caregiver, was also allegedly aware Mukasa was a high risk for falls and "initiated a care plan" to address that issue.
On July 31, 2021, the Facility Defendants allegedly entered into a Residency Agreement with Mukasa and charged her an additional fee to provide her with specific additional services. All defendants (including Does 1 and 2) were allegedly acting as "care custodians" or had "care custody" of Mukasa at the time of the acts alleged.
On August 1, 2021, Mukasa allegedly fell in her room. The motion detector alerted staff that Mukasa was attempting to get out of bed, but both the Facility Defendants and Faleke allegedly ignored the alert and did not respond until an hour later, when Mukasa was found lying on the floor. The Facility Defendants assured Mukasa's son they were able to care for his mother and keep her safe.
Mukasa allegedly sustained another unwitnessed fall on September 24, and she was transported to the hospital. She had a black eye and forehead hematoma, but she did not sustain any fractures. Following that incident, Mukasa's family placed a hidden camera in her room.
On September 30, the camera allegedly showed Faleke enter Mukasa's room to assist with incontinence care. She handled Mukasa roughly and Mukasa could be heard yelling in pain. Faleke repeatedly told Mukasa to stop yelling and forcibly pulled on her hands in an effort to force Mukasa to stand up. After Mukasa slid onto the floor, Faleke picked her up by the waist and "flung her on the bed." While this incident was unfolding, Mukasa's son was able to view it "in real time" through the hidden camera; he raced to Park View where he told Faleke to stop. Another caregiver finished Mukasa's incontinence care.
The complaint alleges that neither the Facility Defendants nor Faleke reported Mukasa's injuries to Mukasa's physician, nor did they call 911 even though Mukasa exhibited pain and had difficulty walking. Instead, Mukasa's son took her to a medical facility on October 2, due to his concern she had exhibited "drastic change in physical and cognitive function" since the September 30 incident. She was diagnosed with dehydration and fractures. Given Mukasa's condition, the medical facility reported the Facility Defendants to the California Department of Social Services (DSS) for suspected elder abuse.
As a result of its investigation, DSS allegedly concluded the Facility Defendants violated Mukasa's rights and physically abused her. DSS also found that Faleke had been hired by the Facility Defendants through the temp agency to assist with staff shortages and despite being on site more than three days and/or 16 hours pers week, she was not directly associated with Park View. The Facility Defendants were allegedly found to have committed statutory violations because they failed to ensure Faleke's criminal record clearance was transferred to their facility, failed to ensure her records were retained on site, and failed to meet Mukasa's medical needs when she was observed yelling in pain while being assisted by Faleke.
The complaint alleges that OC Homecare (i.e., Doe 1, Temp Agency) breached its duty to Mukasa "by negligently hiring Doe 2 (Caregiver) who had a criminal background and/or was unfit and untrained to care for elders." Further, it breached its duty to Mukasa "in failing to disclose or transfer the required paperwork and criminal clearance form to the Facility Defendants to ensure the safety of the residents of Park View Estates, which resulted in Ms. Mukasa's injuries." (Some capitalization omitted.)
The Facilities Defendants and Does 3-50 allegedly "were required to ensure that there were an adequate number of direct care staff at all times that were competent to provide the services necessary to meet the needs of the residents. But, there was insufficient staff at [Park View] to meet the needs of the residents] and provide continuous care and supervision to . . . Mukasa."
Additionally, the Facility Defendants and Does 3-50 were allegedly responsible for day-to-day operations of Park View, and for compliance with numerous statutes, and had a duty to ensure Park View "adhered to statutes and regulations pertaining to residential care facilities for the elderly" but they allegedly violated those duties in an effort to generate additional profits.
Finally, the complaint alleges that "deliberate understaffing and lack of training" by the Temp Agency (i.e., OC Homecare) and the Facility Defendants was "designed to reduce labor costs and to increase profits."
Based on those facts, the complaint sets forth four causes of action. The first and second causes of action, alleged against all defendants, claim liability based on violation of the Elder and Dependent Adult Civil Protection Act (Welf & Inst. Code, § 15600 et. seq.), and negligence, respectively. The third cause of action alleges breach of contract against the Facility Defendants only. The fourth cause of action alleges willful misconduct against all defendants.
In August 2022, the three named Park View defendants moved to compel arbitration, relying on this provision in the Residency Agreement: "By signing below, you agree that any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at the Community whether made against us or any other individual or entity, including, without limitation, personal injury or wrongful death claims, shall be resolved by submission to neutral, binding arbitration in accordance with the Federal Arbitration Act."
In October 2022, OC Homecare filed a joinder in the Park View defendants' motion to compel arbitration which the court granted in November 2022. The court stayed the matter as to those defendants; it denied OC Homecare's joinder to the motion on the basis it was untimely and because OC Homecare had made substantial additional arguments that were not included in the Park View defendants' motion.
OC Homecare then filed its own motion to compel arbitration. It argued that, although it was not a signatory to the Residency Agreement, it was nonetheless entitled to enforce the arbitration provision because (1) the broad language of the provision encompassed it; (2) the doctrine of equitable estoppel compelled Mukasa to arbitrate; and (3) it qualified as a third party beneficiary of the provision. In making its arguments, OC Homecare relied in part on the idea it had been named as Doe 3, which was alleged to be an "agent" of Park View.
In December 2022, shortly after OC Homecare filed its motion to compel arbitration, Mukasa informed the court she had incorrectly named the defendant identified as Doe 1, but had since discovered its true name was "Senior Ride and Home Care, Inc. dba OC Homecare Services." The court then ordered the complaint amended to reflect that was the true name of Doe 1, described as the temp agency.
In her opposition to OC Homecare's petition to compel arbitration, Mukasa maintained she had inadvertently substituted "Senior Ride and Home Care, Inc." as Doe 3 when she had intended only to clarify its legal name after initially identifying it as Doe 1 using its fictitious business name of "OC Homecare Services." Mukasa explained she never had any intention of designating the same temp agency as Doe 3 "because the Complaint specifically alleges 'Doe 3' is one of the 'owners, operators, licensees, officers, directors, managers . . .'etc. of Park View under Paragraph 8 of the Complaint."
The court denied OC Homecare's motion to compel arbitration. It noted that, although OC Homecare asserted it was identified as Doe 3 and thus alleged to be an agent of Park View, Mukasa had since clarified that it was the party initially sued as Doe 1, the temp agency which hired the abusive caregiver. The court also rejected the other theories relied upon to establish an alleged agency relationship between Park View and OC Homecare.
The court was unpersuaded by OC Homecare's assertion that it could enforce the arbitration agreement because it was covered by the broad language of the arbitration provision that purports to apply to "all claims and disputes arising from or related to [the Residency] Agreement or to [Mukasa's] residency, care or services . . . whether made against us or any other individual or entity.'''' As the court pointed out, such an interpretation would create a one-sided arbitration provision binding only Mukasa, but not OC Homecare (which never agreed to it), and would be unenforceable on that basis.
The court also rejected OC Homecare's reliance on equitable estoppel, explaining that an estoppel would apply only when the cause of action against the nonsignatory is rooted in the contract containing the arbitration provision and is inextricably intertwined with that agreement. In this case, while there may be common issues of fact or law in the claims asserted against Park View and OC Homecare, the claims against the latter did not arise from the Residency Agreement and were not inextricably intertwined with the obligations created by that agreement.
And finally, the court determined OC Homecare did not qualify as a third party beneficiary of the arbitration provision because it failed to prove the provision was made for its benefit. The court noted that the contractual provision OC Homecare relied upon in making its argument, which references the situation where "extra services" are provided by an employee or contractor of Park View, undermines, rather than supports, its argument.
DISCUSSION
1. Standard of Review and Applicable Law
Because the arbitration provision at issue specifies that arbitration will be pursuant to the Federal Arbitration Act (9 U.S.C. § 1 et seq.), we look to Federal law in assessing its enforceability against a nonsignatory. (Boucher v. Alliance Title Co., Inc. (2005) 127 Cal.App.4th 262, 268 (Boucher).) Federal law allows an arbitration provision to be enforced by a nonsignatory based on several theories, including equitable estoppel, agency, and alter ego. (Ibid.; see Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1513 [identifying six theories under federal and California law].)
Under both state and federal law, there is a strong policy favoring arbitration. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97 (Armendariz).) Any doubts concerning the scope of arbitrable issues will be resolved in favor of arbitration. (Khalatian v. Prime Time Shuttle, Inc. (2015) 237 Cal.App.4th 651, 658.)
At least two courts (including this one) have expressed this as "[t]he burden is on 'the party opposing arbitration to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute.'" (Buckhorn v. St. Jude Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406 quoting Coast Plaza Doctors Hosp. v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686-687.) But the initial burden is always on the party seeking relief to demonstrate that relief is warranted by the facts and law. These decisions base that statement on the principle that any doubt as to whether the arbitration provision governs a particular dispute must be resolved in favor of arbitration. (Buckhorn, supra, at p. 1406; Coast Plaza, supra, at p. 687.) That statement reflects an analytical standard to be applied by the court, rather than a burden of proof.
However, '"arbitration 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.'" (AT & TTeck, Inc. v. Communications Workers (1986) 475 U.S. 643, 648.) Thus, the issue before us is whether the parties objectively intended to submit the issue to arbitration. We apply state rules of contract interpretation to evaluate that issue. (First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944.)
"When conflicting extrinsic evidence was not offered below, we apply a de novo, or independent, standard of review on appeal from atrial court's determination of whether an arbitration agreement applies to a particular controversy." (Aanderudv. Superior Court (2017) 13 Cal.App.5th 880, 890.) When the trial court exercises its equitable judgment in making a decision, we review that decision for abuse of discretion. (City of Barstow v. Mojave Water Agency (2000) 23 Cal.4th 1224, 1256; see, Schaefer v. City of Los Angeles (2015) 237 Cal.App.4th 1250 1263 ["the existence of equitable estoppel generally is a factual question for the trier of fact to decide, unless the facts are undisputed and can support only one reasonable conclusion as a matter of law"].)
2. Equitable Estoppel
OC Homecare first argues the court erred by rejecting its reliance on equitable estoppel as a means of compelling arbitration of Mukasa's claims against it.
"The rationale for permitting a nonsignatory to enforce an arbitration agreement-that is, compelling arbitration between parties who have not agreed to arbitrate-on equitable estoppel grounds has been enunciated in many cases. Equitable estoppel genetically '"precludes a party from asserting rights 'he otherwise would have had against another' when his own conduct renders assertion of those rights contrary to equlty.,,,,, (Goldman v. KPMG, LLP (2009) 173 Cal.App.4th 209, 220 (Goldman).) In other words, "[t]he linchpin for equitable estoppel is equity-fairness." (Grigson v. Creative Artists Agency (5th Cir. 2000) 210 F.3d 524, 528.)
"So, if a plaintiff relies on the terms of an agreement to assert his or her claims against a nonsignatory defendant, the plaintiff may be equitably estopped from repudiating the arbitration clause of that very agreement." (Goldman, supra, 173 Cal.App.4th at p. 220; Boucher, supra, 127 Cal.App.4th at p. 269 ["a signatory to [an] agreement containing an arbitration clause may be compelled to arbitrate its claims against a nonsignatory when the relevant causes of action rely on and presume the existence of the contract"].)
Thus, "a signatory to an agreement with an arbitration clause cannot '"have it both ways'"; the signatory 'cannot, on the one hand, seek to hold the non-signatory liable pursuant to duties imposed by the agreement, which contains an arbitration provision, but, on the other hand, deny arbitration's applicability because the defendant is anon-signatory.'" (Goldman, supra, 173 Cal.App.4th at 220.)
In Boucher, the plaintiff sued the nonsignatory defendant for various causes of action arising out of his employment contract, alleging it was the entity that had purchased the assets of his employer. The court reasoned that because all the plaintiff's claims "make reference to and presume the existence of the validity of the . . . employment contract" and the employer "and defendant were both owned, at least in majority part, by the same entity," then "plaintiff's claims against defendant are intimately founded in and intertwined with the . . . employment agreement." (Boucher supra, 127 Cal.App.4th at pp. 272-273.)
In Rowe v. Exline (2007) 153 Cal.App.4th 1276, the court agreed nonsignatories who were alleged to be the alter egos of the corporation that was signatory to an agreement containing an arbitration provision could rely on equitable estoppel as a means of enforcing that provision. Although the complaint alleged both contractual and statutory causes of action, all of them sought recovery of the money "owed under the Agreement." (Id. at p. 1287.) The court pointed out "[i]t is [plaintiff] who, by the manner in which he crafted his claims in the litigation, subjected himself to the arbitration of those claims" (id. at p. 1288), and that the enforcement "turns upon the nexus between the contract and the causes of action asserted" (id. at p. 1289).
In Turtle Ridge Media Group, Inc. v. Pacific Bell Directory (2006) 140 Cal.App.4th 828, the court concluded that equitable estoppel applied in a situation where the plaintiff-a subcontractor with no direct relationship to the nonsignatory defendant, SBC Smart Yellow Pages (SBC)-had sued based on rights created in its own agreement with the main contractor, which contained an arbitration provision. The court reasoned that the plaintiff's causes of action against SBC were "intertwined with its subcontract" because "[i]ts claims against SBC arose from its business dealings with SBC and [the main contractor], which the contract and subcontract governed; outside of those contracts, Turtle Ridge had no business relationship with SBC." (Id. at p. 833.)
As these cases make clear, the relevant question for purposes of equitable estoppel is not whether the claims plaintiff alleges against the nonsignatory arise out of the same incident or fact pattern as those alleged against a party who did agree to arbitrate; it is whether the claims somehow rely on the provisions of the contract that contains an arbitration provision. While the existence of common facts may be significant in assessing how proceeding in two different forums might impact judicial efficiency or create the possibility of inconsistent results, that factor has nothing to do with balancing the equities between the plaintiff and the nonsignatory defendant. It is the plaintiff's effort to enforce the contractual benefits against the nonsignatory defendant, while simultaneously denying that same right to the defendant, that creates the relevant unfairness.
In this case, Mukasa carefully distinguishes between Park View and OC Homecare in her pleadings. She does not allege OC Homecare is a party to the Residency Agreement she entered into with Park View, and she seeks no recovery based on breach of contract against it. Nor does Mukasa seek other remedies against OC Homecare that are grounded in provisions of the Residency Agreement, or try to hold OC Homecare vicariously liable for wrongs allegedly committed by Park View. At most, Mukasa seeks to hold both parties liable for the same injuries, arising out of the same series of facts, but based on alleged breaches of different duties. None of that makes it unfair for Mukasa to oppose arbitration with OC Homecare.
OC Homecare asserts Mukasa's claims against it must be viewed as products of the Residency Agreement because she alleges that along with Park View, OC Homecare had "care or custody" of her pursuant to Welfare & Institutions Code section 15610.57-i.e., that it "assumed a significant measure of responsibility for attending to one or more of an elder's basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance." (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 158.) In the view of OC Homecare, that could be so only if it had undertaken the responsibility to comply with the panoply of obligations set forth in the Residency Agreement. It asserts that "[w]ithout the Residency Agreement, [Mukasa] cannot prove that OC Homecare or its caregivers assigned to Park View had a caretaking or custodial relationship with [her]."
We disagree. Mukasa does not need the Residency Agreement to establish that Faleke, the caregiver OC Homecare supplied to Park View, "assumed a significant measure of the responsibility for attending to one or more of [her] basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance." The complaint alleges Faleke was providing Mukasa with incontinence care at the time she physically abused her. Those are sufficient allegations to meet the standard.
OC Homecare also argues that Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782 (Garcia), supports the application of equitable estoppel in this case. Again, we disagree.
In Garcia, a different panel of this court considered whether the customer of a staffing company could enforce the arbitration provision contained in an employment agreement between the staffing company and its employee, after it was sued by the employee. The panel rejected the employee's assertion that because his claims against the customer were based solely on the Labor Code, they were not sufficiently intertwined with the terms of the employment agreement to support equitable estoppel. The panel reasoned that because the arbitration provision was broadly worded to cover claims '""arising out of"" the employment agreement and such provisions can extend to noncontractual claims, its terms covered the noncontractual claims asserted against the customer defendant. (Garcia, supra, 11 Cal.App.5th at p. 786.)
We believe Garcia's analysis conflates the issue of the breadth of the arbitration provision with the issue of whether a nonsignatory can enforce it. Garcia does not alter our conclusion there was no error in the trial court's refusal to apply equitable estoppel in this case.
3. Agency
OC Homecare next argues the court erred by rejecting its assertion that it should be viewed as an agent of Park View for purposes of enforcing the arbitration agreement. This exception applies "when a plaintiff alleges a defendant acted as an agent of a party to an arbitration agreement . . . ." (Thomas v. Westlake (2012) 204 Cal.App.4th 605, 614.) We are not persuaded.
In Garcia, this court concluded the nonsignatory defendant should be treated as the agent of the plaintiff's employer-and thus was entitled to enforce the arbitration provision in the employment agreement-based upon the fact the plaintiff specifically alleged the two were his "joint employers," repeatedly referred to them collectively as "defendants," and alleged their liability arose out of "identical claims and conduct regarding unlawful and improper acts." (Garcia, supra, 11 Cal.App.5th at p. 788.) Based on those allegations, which the court viewed as "not merely boilerplate," the court concluded the plaintiff's theory was that the two defendants were agents of each other in their dealings with him. (Ibid.)
Here, by contrast, Mukasa took pains to distinguish Park View from OC Homecare in her pleadings, describing distinct acts of wrongdoing by each; she never alleged any agency relationship between them. OC Homecare acknowledges that but relies on Borders Online v. State Bd. of Equalization (2005) 129 Cal.App.4th 1179, 1189, for the proposition that an agency relationship may be implied based on circumstances.
We agree, but OC Homecare fails to explain why such an inference should be drawn here. Absent from its argument is any authority to support its implied assertion that all "temp agencies" operate as legal agents for their customers for purposes of services performed for third parties such as Mukasa. (See Civ. Code, § 2295 ["An agent is one who represents another, called the principal, in dealings with third persons"].) Absent such authority, we will not presume it. (Denham v. Superior Court (1970) 2 Cal.3d. 557, 564 ["'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error'"].)
OC Homecare points to a declaration it filed stating OC Homecare paid the salaries of the caregivers it supplied to Park View, while Park View paid OC Homecare an hourly fee for the services, and that Park View provided the caregivers with instructions, training and safety equipment. But again, OC Homecare cites no authority to support its conclusion that those facts demonstrate it "may be considered [a] joint employer[]" with Park View.
In any event, even if we were to agree these facts would support the theory that OC Homecare was an agent of Park View, such agreement would not necessarily establish the court erred when it refused to enforce this arbitration provision. "Not every agency relationship . . . will bind a nonsignatory to an arbitration agreement. [Citation] 'Every California case finding nonsignatories to be bound to arbitrate [on an agency theory] is based on facts that demonstrate, in one way or another, the signatory's implicit authority to act on behalf of the nonsignatory.' [Citations.] Courts also have stated that the agency relationship between the nonsignatory and the signatory must make it '"equitable to compel the nonsignatory'" to arbitrate. [Citations.] [¶]... Courts look to traditional principles of contract and agency law to determine whether a nonsignatory is bound by an arbitration agreement signed by its principal or agent." (Cohen v. TNP 2008 Participating Notes Program, LLC (2019) 31 Cal.App.5th 840, 859-860.)
Finally, OC Homecare argues that because Mukasa expressly alleged Faleke (initially identified as Doe 2) was an agent of Park View, and Mukasa seeks to hold it vicariously liable for Faleke's actions, that means it is being sued as Park View's agent. Not so. Mukasa's complaint included Doe 2 within the group of alleged agents of Park View (identified as the Facility Defendants) only once, and otherwise assiduously maintained a separation of Does 1 and 2 (the temp agency and the caregiver) from the group of Does 3-50, who were all alleged to fall within one of five categories of relationships to Park View. We believe the single inclusion of Doe 2 within the group of Facility Defendants that is otherwise consistently identified as Does 3-50 is a clerical error, and we therefore accord it no significance.
4. The Broad Wording of the Agreement
OC Homecare also contends the court was obligated to compel arbitration based on the broad language of the arbitration provision, which states it applies to "any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at the Community whether made against us or any other individual or entity.'" (Italics added.)
According to OC Homecare, the trial court erroneously rejected this theory, pointing out it was not one of the six recognized theories for allowing a nonsignatory to enforce an arbitration agreement (see Suh v. Superior Court, supra, 181 Cal.App.4th at 1513 [adding "third party beneficiary" to the list of five theories identified by Boucher, supra, 127 Cal.App.4th at p. 268, as existing under Federal law]). OC Homecare contends the court's analysis was erroneous because it "ignored authority" establishing that a nonsignatory could enforce an arbitration provision based on its broad language, citing Michaelis v. Schori (1993) 20 Cal.App.4th 133 (Michaelis).
We cannot agree. The issue is somewhat confused because in its arguments to the trial court, OC Homecare seemed not to realize that its assertion "it was encompassed within the arbitration provision" was not a separate theory from its claim to be a "third party beneficiary" of the Residency Agreement. OC Homecare consequently argued both contentions as though they were distinct bases for enforcement of the arbitration provision. In that context, it made sense for the court to point out that "'encompassed within the Residency Agreement'" was not a separate basis for enforcing the arbitration provision. Either OC Homecare was entitled to enforce the provision as a third party beneficiary of the agreement, or it was not.
Michaelis, supra, 20 Cal.App.4th 133, the case OC Homecare contends the court ignored, is a third party beneficiary case, although the opinion does not use that phrase. The case holds that when the plaintiff signed an arbitration provision that governed claims against the signatory doctor as well as the doctor's "partners, associates, association, corporation or partnership, and the employees, agents and estates of any of them," it could be enforced by a nonsignatory doctor who was the partner or associate of the signatory. (Id. at p. 139.)
In support of its conclusion that the nonsignatory doctor may enforce the arbitration provision, Michaelis relies on Harris v. Superior Court (1986)188 Cal.App.3d 475 (Harris), which involves a more explicit third party beneficiary analysis. The Harris court explained that a nonsignatory physician whose practice contracted with a medical plan was bound by the arbitration provision in the plan because he was "a third party beneficiary of the contractual provision requiring arbitration of members' claims against 'employees or other contracting health professionals' of [the practice]" and his "voluntary acceptance of the benefit of a transaction" by accepting patients through their enrollment in the plan "necessarily entailed acceptance of the agreement that members' claims would be subject to binding arbitration." (Id. at p. 479.)
In this case, the burden was on OC Homecare, as the moving party, to demonstrate it was an intended third party beneficiary of the Residency Agreement, which contained the arbitration provision. Although it made that argument below, it does not repeat it here.
The applicable law makes clear the argument would have been a difficult one to make. "'A third party beneficiary is someone who may enforce a contract because the contract is made expressly for his benefit.' [Citation.] ""The test for determining whether a contract was made for the benefit of a third person is whether an intent to benefit a third person appears from the terms of the contract."" [Citation.] "'[W]here . . . the issue [of whether a third party is an intended beneficiary] can be answered by interpreting the contract as a whole and doing so in light of the uncontradicted evidence of the circumstances and negotiations of the parties in making the contract, the issue becomes one of law that we resolve independently.'"" (Jensen v. U-Haul Co. of California (2017) 18 Cal.App.5th 295, 301.) "[T]he 'mere fact that a contract results in benefits to a third party does not render that party a "third party beneficiary.'"" (Id. at p. 302.)
Because OC Homecare has not renewed its third party beneficiary argument on appeal, we need not address it further.
After pointing out that being "encompassed within the arbitration provision" is not a distinct basis for nonsignatory enforcement of that provision, the trial court explained that, even if Mukasa had promised to arbitrate her claims against OC Homecare as one of the unnamed "other individual[s] or entities]" referenced in the agreement, such a one-sided promise would not be enforceable because OC Homecare is not equally bound. The court cited Armendariz for the proposition that an arbitration provision "lacks basic fairness and mutuality if it requires one contracting party, but not the other, to arbitrate . . . ." (Armendariz, supra, 24 Cal.4th at p. 120.)
OC Homecare's effort to respond to that point falls short. It claims that Mukasa "could have compelled OC Homecare to arbitration because her claims are related to her residency, care or services at Park View and OC Homecare is 'any other person or entity.'" That assertion confuses the issue. The trial court's point was that because OC Homecare did not sign this agreement, Mukasa could not have compelled it to arbitrate if their roles were reversed, no matter what the arbitration provision in the agreement says. We agree.
OC Homecare suggests even though it did not sign the agreement, Mukasa could have "utilized several of the recognizable theories that [allow] a non-signatory [to] compel or be bound to arbitration.'''' (Bold omitted.) Specifically, Mukasa "could have argued that OC Homecare was Park View's agent as joint employers and compelled OC Homecare to arbitration. Similarly, Plaintiff could have argued equitable estoppel that OC Homecare cannot utilize the Residency Agreement to defend against Plaintiff's claims (i.e., OC Homecare does not have a custodial relationship with Plaintiff based on the Residency Agreement because it was not a signatory) while repudiating the arbitration provision within the Residency Agreement." The theories referenced are the same ones we have already concluded the trial court properly rejected here.
DISPOSITION
The order is affirmed. Mukasa is entitled to recover her costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J. MOTOIKE, J.