Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. BC373079 James R. Dunn, Judge.
Law Offices of Henry N. Jannol, Henry N. Jannol and Paul H. Levine for Defendant and Appellant.
Girardi Keese, John K. Courtney; The Eroen Law Firm and Robert C. Eroen for Plaintiff and Respondent.
DOI TODD, Acting P. J.
Danmar Retirement Villa, Inc. (Danmar) appeals from the trial court’s denial of its motion to compel arbitration of a personal injury lawsuit brought against it by James L. Tolbert (James), by and through his guardian ad litem, Marie R. Tolbert (Marie). The trial court found that Danmar failed to produce any evidence that Marie had authority to enter into an agreement binding her husband to arbitration. We agree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
James, who was suffering from Alzheimer’s disease, entered a residential care facility for the elderly known as Danmar Retirement Villa West. Upon his admission, Marie signed a written agreement between James, who is identified as “You” or “Resident,” and Danmar Retirement Care Home. Marie’s signature appears on the agreement under the headings “Legal Representative” and “Responsible Party.” The agreement defines “Legal Representative” as “a person who may legally give consent for residency at Danmar and otherwise make decisions about the Resident’s health care,” and defines “Responsible Party” as “a person who agrees to be personally financially responsible for all or any part of the charges that are the Resident(s)’ responsibility . . . .” Marie signed Appendix B to the agreement, entitled “Authorization for Release of Medical Information,” as James’s “Legal Representative.” Appendix B defined “Legal Representative” as “the Resident’s conservator, or an ‘attorney-in-fact’ Under a Durable Power of Attorney for Health Care for which all conditions precedent have been met, . . . .” Above the line on Appendix B stating “Legal Representative’s Legal Capacity,” Marie wrote “wife.” James did not sign the agreement.
The agreement contains an arbitration clause at paragraph I, which states in part: “By entering into this Agreement, you agree that any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at Danmar shall be resolved by submission to neutral, binding arbitration; . . . . This arbitration clause binds all parties to this Agreement and their spouse, heirs, representatives, executors, administrators, successors, and assigns, as applicable.”
Subsequently, James, through Marie as his guardian ad litem, sued Danmar for negligence, negligence per se and elder abuse. The complaint alleged that in July 2006 James was physically attacked by another resident and suffered a broken hip. Following surgery, James suffered additional injuries and complications. Upon his release from the hospital, James was transported to a skilled nursing facility, where he has since resided. Danmar answered the complaint in November 2007.
Danmar filed a motion to compel arbitration and to stay proceedings in state court, based on the arbitration agreement signed by Marie. The agreement was attached to Danmar’s attorney’s declaration, which says nothing about the circumstances surrounding execution of the agreement.
James opposed the motion to compel arbitration on numerous grounds, including that Danmar produced no evidence that Marie had legal authority to bind him to any arbitration agreement. The trial court agreed, and this appeal followed.
DISCUSSION
The party seeking to compel arbitration bears the burden of establishing the existence of a valid agreement to arbitrate and the party opposing the petition has the burden of proving any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356.) “If the facts are undisputed, on appeal we independently review the case to determine whether a valid arbitration agreement exists.” (Flores v. Evergreen at San Diego, LLC 148 Cal.App.4th 581, 586 (Flores).)
Danmar produced no evidence that Marie had any authority to contractually bind her husband to arbitration. Rather, Danmar relies entirely on the fact that Marie signed the agreement containing the arbitration clause as James’s “Legal Representative,” defined by the agreement as one who may legally make decisions about the resident’s health care. Without citation to authority, Danmar claims that it is entitled to rely upon these representations. But Marie’s representation of herself as having legal authority to make health care decisions on James’s behalf did not establish that she actually had such authority. There was no evidence that James had granted Marie a durable power of attorney or that Marie had been appointed as James’s guardian or conservator prior to signing the agreement. Indeed, in signing Appendix B to the agreement authorizing the release of medical information, Marie identified her “legal capacity” to sign on James’s behalf as “wife,” not conservator or attorney in fact.
A person cannot become the agent of another merely by representing herself as such. (Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, 301 (Pagarigan).) “To be an agent she must actually be so employed by the principal or ‘the principal intentionally, or by want of ordinary care, [has caused] a third person to believe another to be his agent who is not really employed by him.’” (Id. at pp. 301–302, fn. omitted; see Civ. Code §§ 2299 [actual agency] & 2300 [ostensible agency]; see also Flores, supra, 148 Cal.App.4th at pp. 587–588 [“an agency cannot be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the agency”].) Nor can the marital relationship alone create an agency. (Flores, supra, at p. 589.)
Danmar did not produce any evidence that James actually appointed his wife as his agent or that James, who was suffering from Alzheimer’s disease, did anything to suggest that Marie was authorized to act as his agent at the time the arbitration agreement was signed. (See Warfield v. Summerville Senior Living, Inc. (2007) 158 Cal.App.4th 443, 448 [noting “the failure of a resident suffering from dementia to object to the living arrangements her husband had made would hardly constitute evidence that she had authorized him to act as her agent in waiving her right to a jury trial”].)
Flores and Pagarigan are instructive. In Flores, a husband signed an arbitration agreement when admitting his wife, who suffered from dementia and other ailments, to the defendant’s skilled nursing facility. (Flores, supra, 148 Cal.App.4th at p. 585.) The trial court denied the defendant’s petition to compel arbitration on the ground that the defendant had failed to establish a valid agreement to arbitrate. (Id. at p. 586.) The appellate court affirmed, finding that while there was evidence that the husband acted as if he were his wife’s agent, there was no evidence that the wife, who was the principal, had conferred such status on her husband. (Id. at p. 589.) The appellate court also rejected the husband’s argument that his status as spouse was sufficient to confer agency status on him. (Ibid.) While the appellate court acknowledged that the establishment of an agency relationship between spouses does not require a high level of proof, the court concluded that a marital relationship alone cannot create an agency. (Ibid.)
In Pagarigan, supra, 99 Cal.App.4th 298, the appellate court also affirmed the denial of a skilled nursing home’s motion to compel arbitration, finding there was no evidence that a comatose mother had authorized her daughters to act as her agents to bind her to a nursing home arbitration agreement. (Id. at pp. 301–302.) Like Flores, the Pagarigan court rejected the nursing home’s contention that the daughters’ mere act of signing the agreements created agency status, explaining that conduct by the principal was necessary to establish the agency. (Pagarigan, supra, at pp. 301–302.)
Here also, in the absence of any evidence that Marie had authority to bind James to an arbitration agreement, there was no error in the trial court’s denial of the motion to compel arbitration. We therefore need not address James’s additional arguments as to why the arbitration agreement was not enforceable.
DISPOSITION
The order denying the motion to compel arbitration is affirmed. James is entitled to recover his costs on appeal.
We concur: ASHMANN-GERST, J., CHAVEZ, J.