Case Number: BC611891??? Hearing Date: November 07, 2016??? Dept: 98
GREG TIPTON,
Plaintiff,
vs.
RICHARD G. LEFF, M.D., et al.,
Defendants.
CASE NO: BC611891
[TENTATIVE] ORDER RE: PLAINTIFF?S MOTION FOR AN ORDER BARRING ARBITRATIONDept. 98
1:30 p.m.
November 7, 2016
On February 26, 2016, Plaintiff Greg Tipton (?Plaintiff?) filed this action against Defendant Richard G. Leff, M.D. (?Defendant?) for professional negligence. Plaintiff alleges that from April 15, 2014 to December 30, 2014, Defendant undertook the care, treatment, and surgery of Plaintiff. FAC, ? 6. Plaintiff further alleges that Defendant failed to diagnose his perforated bladder condition and failed to perform surgery to remove his cancerous bladder. FAC, ? 7. On April 15, 2014, Plaintiff signed a Physician-Patient Arbitration Agreement (?Agreement?), which provides that all claims arising out of or related to treatment or service provided by Defendant must be arbitrated. Declaration of Greg Tipton, ? 3.
On April 5, 2016, Defendant sent Plaintiff a letter requesting that this matter be arbitrated and attaching a Stipulation to Stay the Action Pending Binding Arbitration. Declaration of Maria Hovsepian, ? 4. On May 31, 2016, Defendant sent a follow-up letter to demand arbitration. Id., ? 5. Counsel for Plaintiff signed the Stipulation, but subsequently informed Defendant that Plaintiff was no longer willing to submit his claim to arbitration. Plaintiff now moves for an order barring arbitration.
First, Plaintiff argues that Defendant has waived his right to compel arbitration because Defendant failed to file the Stipulation and the parties have engaged in extensive trial preparation. Counsel for Plaintiff avers that he has spent extensive time in answering and responding to Defendant?s Form Interrogatories, Special Interrogatories, and Request for Production of Documents. Declaration of Herbert H. Hiestand, Jr., ? 3.
When a court determines that an agreement to arbitrate the controversy exists, it must order the parties to arbitrate the controversy, unless it determines that the right to compel arbitration has been waived. Cal. Code of Civ. Proc. ? 1281.2(a). ?[T]he party who seeks to establish waiver must show that some prejudice has resulted from the other party?s delay in seeking arbitration.? Berman v. Health Net (2000) 80 Cal.App.4th 1359, 1363-64.
The Court finds that Plaintiff has failed to establish waiver on the part of Defendant. Defendant did not file the signed Stipulation because Plaintiff later informed him that he would not stipulate to arbitration and the fact that some discovery has occurred in this action does not establish prejudice to Plaintiff.
Next, Plaintiff argues that the Agreement is a contract of adhesion and unconscionable, such that arbitration should be barred. Plaintiff argues that the Agreement was created with terms and conditions favorable to Defendant made possible by Defendant?s medical group?s relative power and the weakness of Plaintiff?s position. Plaintiff further contends that the following provisions render the Agreement unconscionable: 1) that three arbitrators shall be selected; 2) that each party has the absolute right to arbitrate the issues of liability and damages separately; 3) that each party may file a motion for summary judgment or adjudication; 4) that judicial review of arbitration proceedings as provided by California law may be had; 5) that the arbitrator?s award shell not include attorney?s fees; 6) that each party shall bear his or her own costs; and 7) that no punitive damages shall be awarded. Plaintiff argues that these provisions place unreasonable limitations on Plaintiff?s remedies and create a high financial burden on Plaintiff, who has a limited ability to pay.
Plaintiff does not dispute that he signed the Agreement on April 15, 2014, but states that he was not given the opportunity to present it to an attorney, does not understand legal terms, and was told to sign it and give it back to the clerk.
The Agreement complies with subdivisions (a), (b), and (c) of Code of Civil Procedure section 1295. See Defendant?s Exh. A. A contract drafted in compliance with these subdivisions is not a contract of adhesion, nor unconscionable nor otherwise improper. Cal. Code of Civ. Proc. ? 1295(e).
For an arbitration agreement to be unenforceable as unconscionable, both procedural and substantive unconscionability must be present. Armendariz v. Foundation Health Psychcare Serv., Inc. (2000) 24 Cal.4th 83, 114. Procedural unconscionability includes oppression arising from unequal bargaining power causing an absence of meaningful choice and real negotiating, and surprise due to hidden terms drafted by the party seeking to enforce the provisions. Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 581.
Plaintiff has provided no evidence of any procedural unconscionability. The fact that Plaintiff signed the Agreement without reading or understanding it does not show that he did so due to any unequal bargaining power between the parties. Further, the Agreement complies with section 1295 and therefore statutorily does not constitute a contract of adhesion and is not unconscionable.
In light of the foregoing, Plaintiff?s Motion is DENIED.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 7th day of November, 2016
Hon. Holly J. Fujie
Judge of the Superior Court