Defendants Charles Eusey; Brea, Brea LLC DBA Brookdale Brea (erroneously sued as Brea LLC and Brookdale Brea); and Emeritus Corporation filed a petition to compel arbitration and a motion to stay proceedings until arbitration is completed. ?The petition to compel arbitration is denied.? The motion to stay is also denied.
Although California has a strong public policy in favor of arbitration, there is no preference for the arbitral forum when the parties have not agreed to arbitrate.? (Garrison v. Superior Court?(2005) 132 Cal.App.4th 254, 263-264.)? The party seeking to compel the arbitration bears the burden to prove the existence of a valid arbitration agreement.? (Avila v. Southern California Specialty Care, Inc.?(2018) 20 Cal.App.5th 835, 844.)
It is undisputed that Charles Kelly did not sign the arbitration agreement.? The arbitration agreement was signed by Michael Kelly (who Defendants assert is Charles Kelly?s son).? Michael Kelly signed after ?Authorized Representative Signature?.?? (Eusey Decl., Exh. B.)? Defendants provided a copy of the Residence and Services Agreement that Michael Kelly had check-marked ?Power of Attorney? and signed as Charles Kelly?s representative.? (Eusey Decl., Exh. A.)? Defendants argue that based upon Michael Kelly?s representations that he was an authorized representative and had power of attorney, Charles Kelly had entered into a valid arbitration agreement.
?It is essential to the existence of a contract that there should be: [?] 1.? Parties capable of contracting; [?] 2.? Their consent; [?] 3.? A lawful object; and [?] 4.? A sufficient cause or consideration.?? (Civ. Code, ? 1550.)
?Agency ?can be established either by agreement between the agent and the principal, that is a true agency [citation], or it can be founded on ostensible authority, that is, some intentional conduct or neglect on the part of the alleged principal creating a belief in the minds of third persons that an agency exists, and a reasonable reliance thereon by such third persons.?? [Citations.] ? ? ?The principal must in some manner indicate that the agent is to act for [her], and the agent must act or agree to act on [her] behalf and subject to [her] control.? . . .? [Citations.] Thus, the ?formation of an agency relationship is a bilateral matter.? Words or conduct by both principal and agent are necessary to create the relationship.? ? ? ? (Warfield v. Summerville Senior Living, Inc.?(2007) 158 Cal.App.4th 443, 448.)
?A person cannot become the agent of another merely by representing herself as such.? 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.??? (Pagarigan v. Libby Care Center, Inc.?(2002) 99 Cal.App.4th 298, 301-302.)
Other than the agreements signed by Michael Kelly, Defendants have offered no evidence that Charles Kelly had ever employed Michael Kelly as his agent in any capacity.? They did not produce any evidence, such as a durable power of attorney or other written authorization, that Charles Kelly had done anything which caused them to believe that Michael Kelly was authorized to act as his agent in any capacity. ?(Compare?Garrison v. Superior Court, supra,?132 Cal.App.4th at pp. 265-267.)? Michael Kelly?s representations on the admission documents, including the arbitration agreement, are not circumstantial evidence of Charles Kelly?s authority.?? (Pagarigan v. Libby Care Center, Inc., supra,?99 Cal.App.4th at p. 302.) ?Defendants have not shown that Charles Kelly authorized Michael Kelly to execute the arbitration agreement on his behalf.
Defendants have not met their burden of proving that there is a written agreement to arbitrate a controversy (Code Civ. Proc., ? 1281) or a valid arbitration agreement? (9 U.S.C. ? 2). ?Accordingly, the petition to compel arbitration is denied.
Since arbitration will not be compelled, a stay requested under Code of Civil Procedure section 1281.4, is unavailable. ?The motion for stay is denied.
Plaintiffs shall give notice of the rulings.