Cecil Kepner brought a negligence and wrongful death lawsuit in his individual capacity and as successor in interest to his mother Darlene Kepner (“Darlene”) against the owners and operators of the Oakmont Senior Living Facility, where Darlene had been a resident. Darlene had fallen at the facility, suffering injuries, and died six months later. The defendants moved to enforce an alleged arbitration agreement with regard to the claims.
When Darlene entered the facility, plaintiff signed a residence and services agreement on her behalf. Plaintiff initialed lines in the agreement identifying himself as Darlene’s agent under a durable power of attorney for healthcare, a “Healthcare Surrogate Decision Maker,” her agent under a financial power of attorney, the “Financial Responsible Party,” and her “Agent.” The agreement contained an arbitration provision that required “neutral, binding arbitration in accordance with the Federal Arbitration Act.” The arbitration section of the agreement included a provision stating, “If someone other than the resident signs this arbitration clause, he/she understands and agrees that he/she is agreeing to arbitrate on behalf of the resident and on behalf of him/herself as an individual.” The arbitration section also included two separate signature lines, each of which is marked “Resident or Resident’s Representative’s Signature.” There is no signature line in the agreement for plaintiff as an individual. The agreement also contains a choice of law provision specifying California law.
The Court of Appeal of the State of California Fourth Appellate District Division Three (“California Appellate Court”) stated in its unpublished Opinion filed on September 5, 2023: “Here, the only evidence of plaintiff’s agency is plaintiff’s own representations in the agreement. That is not enough. It makes no difference that plaintiff’s representation of
his authority included the magic words “durable power of attorney”; there remains no evidence of any act by Darlene to give plaintiff this authority.”
“Plaintiff’s name on a joint checking account with Darlene does not create an agency relationship sufficient to allow plaintiff to bind Darlene to contracts. Nor does defendants’ internal administrative file checklist demonstrate anything other than plaintiff’s representations, which we have already determined are insufficient to establish agency.”
As to the defendants’ argument that plaintiff is individually bound by the arbitration provision of the agreement, the California Appellate Court stated: “Plaintiff did not sign on a single signature line anywhere in the agreement that was marked for him in his individual capacity. Everywhere he signed, including the specific signature lines associated with the arbitration provision, the line describes him only as Darlene’s legal representative. As the trial court concluded, plaintiff is not bound by this agreement and cannot be compelled to arbitrate his individual claims against defendants.”
Source Kepner v. Oakmont Senior Living, LLC, CA4/3, G061709.
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