Filed 5/17/13 Root v. Emeritus Corp. CA1/5

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


JOYCE ROOT et al.,
         Plaintiffs and Respondents,
                                                                     A134748
v.
EMERITUS CORPORATION AND                                             (Solano County
EMERITUS AT WESTWIND                                                 Super. Ct. No. FCS038463)
GARDENS,
         Defendants and Appellants.


         Emeritus Corporation and Emeritus at Westwind Gardens appeal from an order
denying their petition to compel the arbitration of claims brought against them by
respondents Joyce Root et al., as successors in interest to Geneva Benthin, a deceased
former resident at Westwind Gardens. Appellants had based their petition on an
arbitration agreement purportedly signed on Benthin‟s behalf pursuant to a uniform
statutory form power of attorney and a health care power of attorney in a California
advance health care directive. Appellants contend the court erred in: (1) ruling that the
powers of attorney, which were neither notarized nor acknowledged by witnesses, were
invalid; (2) finding there was insufficient evidence that the arbitration agreement was
signed by an ostensible agent; and (3) denying appellants‟ request for a continuance of
the hearing to conduct discovery on the validity of the powers of attorney.
         We will affirm the order.


                                                             1
                       I. FACTS AND PROCEDURAL HISTORY
       Appellant Emeritus at Westwind Gardens is a residential care facility for the
elderly that is managed and operated by appellant Emeritus Corporation. In California, a
residential care facility for the elderly is a housing arrangement in which 75 percent of
the residents are at least 60 years old and staff provides varying levels of care and
supervision. (Cal. Code Regs., tit. 22, § 87101, subd. (r)(5).)
       Geneva Benthin (Benthin) lived at Emeritus at Westwind Gardens for about
two years before her death in September 2010 at the age of 94. For convenience and
consistent with the parties‟ practice, we will refer to Emeritus at Westwind Gardens and
Emeritus Corporation collectively as “Emeritus.”
       A. Agreements and Powers of Attorney
       As part of the paperwork for Benthin‟s admission to Emeritus in August 2008,
Benthin‟s daughter, Joyce Root, signed a Resident Agreement and checked two boxes on
the agreement indicating that Root was the responsible party and had power of attorney to
act on Benthin‟s behalf.
       On that same day, Root also signed an “Agreement to Resolve Disputes by
Binding Arbitration” (Arbitration Agreement) as Benthin‟s “authorized representative.”
In pertinent part, the Arbitration Agreement stated: “[A]ny action, dispute, claim, or
controversy of any kind, whether in contract or in tort, statutory or common law, personal
injury, property damage, legal or equitable or otherwise, arising out of the provision of
assisted living services, healthcare services, or any other goods or services provided
under the terms of any agreement between the Parties, including disputes involving the
scope of this Arbitration Agreement, or any other dispute involving acts or omissions that
cause damage or injury to either Party, except for matters involving evictions, shall be
resolved exclusively by binding arbitration and not by lawsuit or resort to the judicial
process, except to the extent that applicable law provides for judicial review of arbitration
proceedings. To the fullest extent permitted by law, this Arbitration Agreement shall apply
to third parties not signatories to this Agreement, including any spouse, heirs, or persons
claiming through the Resident.”


                                               2
       The Arbitration Agreement specified that it would be governed by the Federal
Arbitration Act (9 U.S.C., §§ 1-16) and that arbitration would be administered by the
National Arbitration Forum. In addition, the Arbitration Agreement advised, “[a]dmission
to the Community is not contingent upon signing this agreement.”
       Root also presented Emeritus with two powers of attorney: a “Uniform Statutory
Form Power of Attorney” and a “California Advance Health Care Directive Including
Power of Attorney for Health Care.” The documents were purportedly signed by
Benthin, but Benthin‟s signature on them was neither notarized nor acknowledged by
witnesses.
       The uniform statutory form power of attorney was purportedly signed by Benthin on
September 6, 2007. According to this form, Benthin appointed Root as her attorney-in-fact
with respect to a broad variety of matters, including “personal and family maintenance.”
The power of attorney indicated Benthin‟s agreement that a third party receiving a copy of
the power of attorney could “act under it.”
       The California advance health care directive, including a health care power of
attorney, was also purportedly signed by Benthin on September 6, 2007. According to
this document, Benthin appointed Root as her agent to make medical and health care
decisions for her when Benthin lacked the mental capacity to make them. Attached to the
power of attorney is a form ostensibly disclosing Benthin‟s health care preferences.
       B. Respondents’ Lawsuit
       Around 5:50 a.m. on September 7, 2010, Benthin fell on Emeritus‟ premises and
suffered terminal injuries. She died four days later.
       Benthin‟s successors-in-interest – respondents Root, Donna Morgan, and Elnora
Good – sued Emeritus for damages, asserting causes of action for elder abuse, fraud,
wrongful death, and violation of Health & Safety Code section 123110 (requiring provision
of copies of medical records). Respondents alleged that Emeritus left Benthin outside and
unattended in the dark and on wet pavement in the facility‟s courtyard, despite knowing
that she was confused and disoriented, had a history of falls and an unsteady gait, was
visually impaired, needed assistance of a walker, and suffered from advanced dementia and


                                              3
osteoporosis. Benthin fell, suffering a laceration, multiple brain contusions and intracranial
bleeding, and fractures to her frontal bone, right hip, right ribs and right femur. Found
lying in a pool of blood, she was transported by ambulance to a hospital, where she later
died.
        C. Emeritus’ Petition to Compel Arbitration
        In October 2011, Emeritus filed a petition to compel arbitration of the claims in
respondents‟ complaint, setting a hearing date for four months later in February 2012.
Emeritus based its petition on the Resident Agreement, the Arbitration Agreement, and the
powers of attorney; Emeritus attached these documents to a declaration of its counsel, who
had no personal knowledge of their execution.
        Respondents opposed the petition, arguing that Emeritus failed to establish a valid
agreement to arbitrate because the powers of attorney were invalid. Respondents also
argued that the Arbitration Agreement was not properly authenticated, it could not be
enforced because the named arbitration forum was shut down, the agreement was
unconscionable, and arbitration would result in inconsistent rulings.
        In reply, Emeritus argued, among other things, that the Arbitration Agreement was
valid and that Root in any event had ostensible authority to sign the agreement based on
her own statements and the invalid powers of attorney Benthin purportedly signed.
        D. Denial of Petition to Compel Arbitration
        At the hearing on Emeritus‟ motion, Emeritus argued that it believed there was a
valid power of attorney somewhere in existence – that is, one that was witnessed or
notarized – but not all of the pages had been provided to Emeritus when Benthin was
admitted. The trial court asked Emeritus‟ attorney if she needed time to conduct discovery
on the issue, and counsel requested that the hearing be continued, “if necessary,” so
Emeritus could depose Root and have her “produce the durable power of attorney.” The
court acknowledged that it “would be extremely important to the court to know” whether
the power of attorney was valid. When asked about Emeritus‟ request for additional time to
conduct discovery, respondents‟ attorney stated, “[t]hat would be fine,” but claimed there



                                              4
were other issues that compelled denial of Emeritus‟ petition. The court took the matter
under submission.
       By written order filed on February 23, 2012, the court denied Emeritus‟ petition to
compel arbitration. The court found that Emeritus failed to establish the existence of an
arbitration agreement, because the September 2007 power of attorney was invalid under the
Probate Code, in that it was neither notarized nor acknowledged by witnesses. (Citing
Prob. Code, §§ 4401, 4402, 4121.) The court also rejected Emeritus‟ argument that Root
signed the Arbitration Agreement as Benthin‟s ostensible agent, because “the only
evidence of any act by Geneva Benthin that would suggest she authorized Root to act on
her behalf is her signing of the power of attorney,” but “because the power of attorney is
invalid, the court cannot find an ostensible agency was created based on this document[,
and to] do so would render meaningless all of the requirements set out in Probate Code
Sections 4401, 4402, and 4121.” The court did not rule on respondents‟ alternative
grounds for the denial of the petition.
       Emeritus now appeals from the order denying its petition to compel arbitration.
(See Code Civ. Proc., § 1294, subd. (a).)
                                      II. DISCUSSION
       Emeritus sets forth the following issues on appeal: (1) whether the court erred in
determining that the powers of attorney were invalid; (2) whether the court erred in ruling
that no ostensible agency was created; and (3) whether the court erred in declining to
grant Emeritus‟ request for a continuance.
       On appeal from the denial of a petition to compel arbitration, where the facts are
undisputed, we review the arbitration agreement de novo to determine whether it is legally
enforceable, applying general principles of California contract law. (Baker v. Osborne
Development Corp. (2008) 159 Cal.App.4th 884, 892; Mitri v. Arnel Management Co.
(2007) 157 Cal.App.4th 1164, 1170.) Here, the threshold question is whether the
Arbitration Agreement is legally enforceable against Benthin (and therefore her successors);
more particularly, whether Emeritus established the existence of an arbitration agreement
with Benthin, in that Root had the authority to bind Benthin by signing the Arbitration


                                              5
Agreement on her behalf. (See Flores v. Evergreen at San Diego, LLC (2007) 148
Cal.App.4th 581, 586 [party seeking to compel arbitration has the burden of proving the
existence of a valid arbitration agreement] (Flores).) Emeritus‟ two theories in this regard
are that: (1) Root had such authority under the powers of attorney, because they were valid;
and (2) Root had such authority as Benthin‟s ostensible agent. We address these theories in
turn.
        A. Validity of Powers of Attorney
        Uniform statutory form powers of attorney are governed by Probate Code
section 4402. Probate Code section 4402 provides that “a statutory form power of
attorney under this part is legally sufficient if all of the following requirements are
satisfied . . . The signature of the principal is acknowledged.” (Prob. Code, § 4402,
subd. (c), italics added.) In the matter before us, however, there is no dispute that
Benthin‟s signature on the statutory form power of attorney was not acknowledged.
        The parties assumed in the trial court and their appellate briefs that the health care
power of attorney in California‟s advance health care directive is governed by Probate
Code section 4121, which applies to special or limited powers of attorney. Under Probate
Code section 4121, a power of attorney is legally sufficient if “[t]he power of attorney is
either (1) acknowledged before a notary public or (2) signed by at least two witnesses
who satisfy the requirements of Section 4122.” (Prob. Code, § 4121, subd. (c).) In our
view, however, a power of attorney for health care in an advance health care directive is
governed by Probate Code sections 4680 et seq. (See Prob. Code, § 4050, subd., (a)(1)
[Division 4.5 is inapplicable to powers of attorney for health care governed by
Division 4.7, commencing with § 4600], § 4671.) Those sections have the same
requirement as Probate Code section 4121: to be legally sufficient, a written power of
attorney for health care must be acknowledged before a notary public or signed by at
least two qualifying witnesses. (Prob. Code, §§ 4680, 4673, subd. (a)(3).) Here, it is
undisputed that Benthin‟s heath care power of attorney was neither acknowledged by a
notary or signed by the requisite witnesses.



                                               6
       Under the Probate Code, therefore, the powers of attorney submitted to Emeritus
were invalid. (Kaneko v. Yager (2004) 120 Cal.App.4th 970, 979 [special power of
attorney was invalid under Probate Code, § 4121, subd. (c), where it was neither
witnessed nor notarized] (Kaneko); Title Trust Deed Service Co. v. Pearson (2005) 132
Cal.App.4th 168, 179, fn. 4 [settlement agreement signed by wife was not enforceable
where husband‟s power of attorney in wife‟s favor was neither witnessed nor notarized
and was therefore invalid].)
       Emeritus argues that the powers of attorney were nonetheless valid simply because
Benthin signed them, as the fact of her signature evinced her intent for Root to possess
the enumerated powers. Drawing on language from Torres v. Torres (2006) 135
Cal.App.4th 870 at pages 876-877 (Torres), Emeritus adds: “Although a notary page is
missing from the documents given to Emeritus, „[i]t seems highly unlikely [Benthin]
intended to sign a document which lacked purpose and legal effect.‟ [Citation.].”
       To the extent Emeritus is arguing that Benthin‟s signature was sufficient to make
the powers of attorney themselves valid, its argument is untenable. Probate Code
sections 4402, 4121, and 4673 expressly provide to the contrary. And nothing in Torres
compels a different conclusion: Torres involved a power of attorney that was found valid
because, although it did not substantially comply with the statutory form for powers of
attorney, it did substantially comply with California law governing the creation of powers
of attorney as set forth in the Probate Code, including the requirement that the power of
attorney be “acknowledged before a notary public.” (Torres, supra, 135 Cal.App.4th at
p. 876.) It is undisputed that the powers of attorney presented to Emeritus, unlike the
power of attorney in Torres, did not meet this statutory requirement.
       A slightly different argument is that Benthin‟s execution of the powers of attorney,
while insufficient to make the powers of attorney valid, could still serve as extrinsic
evidence that Benthin intended for Root to sign agreements like the Arbitration
Agreement, and on that basis it could be said that Root‟s signature bound Benthin under
the Arbitration Agreement. But this argument we also find unpersuasive. To accept
Emeritus‟ position would improperly circumvent the requirements and purposes of


                                              7
Probate Code sections 4402, 4121, 4680 and 4673, since it would permit health care and
other decisions to be made based on the principal‟s alleged signature alone, without the
safeguards of a witness acknowledgement or notarization (or other indicia of
authorization, discussed post). This is plainly contrary to the legislature‟s intent: “The
requirement the power of attorney be in writing and acknowledged before a notary or two
witnesses „is intended to provide a protective level of formality‟ to the execution of the
document.” (Torres, supra, 135 Cal.App.4th at p. 877.)
       Emeritus reminds us of the public policy favoring arbitration of disputes and,
citing Cione v. Foresters Equity Services, Inc. (1997) 58 Cal.App.4th 625 (Cione) at
page 642, urges that Benthin‟s intentions should be “generously construed as to issues of
arbitrability.” Emeritus‟ argument is unconvincing. In the first place, Cione is
distinguishable, because in that case the plaintiff had personally signed the contract
containing the arbitration clause, so the only question was the scope of the arbitration
provision. Here, by contrast, the question is not the scope of the Arbitration Agreement,
but the threshold question of whether Benthin (and her successors) are bound by it.
Moreover, while it is true that public policy generally favors arbitration, claims may be
arbitrated only to the extent the parties have agreed they should be arbitrated. (Ajamian
v. CantorCO2e (2012) 203 Cal.App.4th 771, 780-781; Victoria v. Superior Court (1985)
40 Cal.3d 734, 744.)
       Lastly, Emeritus argues that the trial court erred in analyzing only one power of
attorney purportedly signed by Benthin, since Emeritus presented two powers of attorney.
In our view of the court‟s order, however, the court did not necessarily consider only one of
the two powers of attorney, since the court cited both Probate Code sections 4401 and 4402
(pertaining to statutory form powers of attorney) and Probate Code section 4121 (which the
parties cited as pertaining to the health care power of attorney in the advance health care
directive). In any event, as a matter of law neither power of attorney was valid in light of
the statutory requirements, so neither could justify enforcement of the Arbitration
Agreement whether the court considered them both or not.



                                              8
       The court did not err in concluding that the power(s) of attorney were invalid and
provided no basis for enforcement of the Arbitration Agreement.
       B. Ostensible Agency
       Where the statutory requirements for a power of attorney are not met – and therefore
no actual agency has been established on that basis – a principal may still be bound to an
arbitration agreement under general agency principles, including the theory of ostensible
agency. (Flores, supra, 148 Cal.App.4th at p. 587 [when agent lacks written agency
authorization to enter into an arbitration agreement, an agency relationship may still arise
by oral consent or by implication from the parties‟ conduct]; see generally Civ. Code,
§ 2298 [agency can be actual or ostensible].)
       Agency “is ostensible when the principal intentionally, or by want of ordinary
care, causes a third person to believe another to be his agent who is not really employed
by him.” (Civ. Code, § 2300.) The agency is created based upon the principal’s conduct
that causes a third party to reasonably believe the agent has authority to act. (Tomerlin v.
Canadian Indemnity Co. (1964) 61 Cal.2d 638, 643; see Civ. Code, § 2334 [“A principal
is bound by acts of his agent, under a merely ostensible authority, to those persons only
who have in good faith, and without want of ordinary care, incurred a liability or parted
with value, upon the faith thereof”].) There are, therefore, two essential requirements for
an ostensible agency: (1) conduct by the principal that would cause a reasonable person
to believe there was an agency; and (2) reasonable reliance on that apparent agency by the
third party. (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th
1448, 1457.)
       Here, the trial court did not err in ruling that Root was not Benthin‟s ostensible agent
when she signed the Arbitration Agreement. As the court noted, whether an ostensible
agency exists depends on the acts of the principal, and the only act by Benthin indicating she
authorized Root to be her agent was Benthin‟s purported signature on the powers of attorney.
The trial court observed that, because the powers of attorney are invalid as a matter of law,
they could not constitute sufficient evidence of an ostensible agency, because such a
conclusion would negate the requirements of the applicable Probate Code sections.


                                               9
Moreover, we would add, Emeritus did not establish that it held a reasonable belief that
Benthin had made Root her agent for the purpose of signing the Arbitration Agreement,
since Emeritus‟ only cognizable basis for that belief were powers of attorney that were
invalid on their face.
       Emeritus insists it had a reasonable belief in Root‟s authority because Root said she
had a power of attorney and presented the two powers of attorney during the admission
process. Again, however, what Root did or said does not suffice. (Flores, supra, 148
Cal.App.4th at pp. 587-588 [agent‟s acts alone are insufficient for creation of ostensible
agency].) What counts is what Benthin said or did, which amounts to her purported
execution of the powers of attorney. (See id. at p. 588.) And since the powers of attorney
that Root presented were facially invalid – indeed, the absence of witness signatures or
notarization brought into question whether the powers of attorney bore Benthin‟s signature
at all – Emeritus fails to show that its belief was reasonable.
       Emeritus‟ reliance on Tutti Mangia Italian Grill, Inc. v. American Textile
Maintenance Co. (2011) 197 Cal.App.4th 733 (Tutti Mangia) is misplaced. There, the trial
court found that an employee with the title of General Manager had ostensible authority to
enter into a contract containing an arbitration agreement on behalf of his employer. (Id. at
p. 743.) The court of appeal affirmed, concluding there was substantial evidence to support
the finding because the employee had signed the agreement as the employer‟s “General
Manager” and there was testimony that the employee was holding himself out as the
General Manager with authority to sign. (Ibid.) In Tutti Mangia, however, there was no
dispute that the employer had made the employee General Manager, and general
managers have authority to enter into contracts on their employer‟s behalf. (Id. at
pp. 736, 743.) By no means did Tutti Mangia hold that an ostensible agency can arise
where the principal had not done something that reasonably suggested an agency.
       Emeritus‟ reliance on Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th
88 is also misplaced. There, a hospital‟s designation of a doctor as a director of its
adolescent psychiatric unit and its provision of releases for the doctor on its admissions
forms created a reasonable inference that the hospital caused patients to believe the doctor


                                              10
was the hospital‟s ostensible agent, sufficient to create a triable factual issue and preclude
summary judgment. (Id. at pp. 103-104.) But that has nothing to do with whether
ostensible agency may arise from powers of attorney that are invalid under the Probate
Code.
        Nor is Emeritus helped by White v. Moriarty (1993) 15 Cal.App.4th 1290 (White),
another case it cites. In White, the court held that the principal‟s execution of a power of
attorney, his admitted knowledge that the agent would use that power, and his ratification of
the agent‟s prior acts, constituted sufficient evidence of ostensible authority to bind the
principal to certain transactions. (Id. at pp. 1293-1296.) Unlike the matter before us,
however, in White there was no question that the power of attorney was valid; the issue in
White pertained merely to the scope of the agency, not its creation. (Id. at p. 1295.)
        Emeritus also argues it was not negligent in believing that Root was Benthin‟s
agent, because requiring Emeritus to “demand a notary page during the admission
process . . . would require Emeritus‟s admitting clerk to be an expert on all legal facets of
arbitration agreements and powers of attorney.” Emeritus‟ argument is untenable.
Emeritus‟ admitting clerk would not need to be trained to do anything more than to look
to see if a power of attorney bears the signatures of witnesses or a notarization. That does
not seem too much to ask of a residential care facility for the elderly or the staff member
it assigns to enter into residency agreements on its behalf. And the idea that Emeritus
should require notarization or witness signatures before relying on the power of attorney
to accept a new resident seems to be a very good one indeed, since it would help
Emeritus to know if the person acting on behalf of the prospective resident actually has
the authority to do so.
        Finally, Emeritus argues that it reasonably believed that a notary page existed
because Benthin signed the health care power of attorney under the instruction, “Sign the
document in the presence of the witnesses or the Notary.” In our view, however, this
verbiage in the power of attorney just makes it all the more unreasonable for Emeritus to
have relied on Root‟s representation of agency. If Emeritus did indeed look at that



                                               11
language, it would have been naturally led to inquire, “so where are the witnesses‟
signatures or notarization”?
       Emeritus fails to establish error on this ground.1
       C. Request for Continuance
       At the hearing on its motion to compel arbitration, Emeritus‟ attorney announced
her belief that, although Emeritus‟ copy of the power of attorney lacked an
acknowledgement or notarization page, respondents might have a power of attorney with
the page attached. On that basis, Emeritus requested for the first time a continuance of the
hearing it had set on its own motion, in order to conduct discovery. Emeritus argues it
was error for the court not to grant this eleventh-hour request, particularly since
respondents‟ attorney did not object, the court acknowledged it was important to know
whether the power of attorney was valid, and doubts must be resolved in favor of
arbitration. We review for an abuse of discretion. (E.g., Pham v. Nguyen (1997) 54
Cal.App.4th 11, 17 (Pham).)
       The court did not err in proceeding to rule on Emeritus‟ petition without granting its
request for a continuance. Emeritus was the party that had filed the petition to compel
arbitration based on an arbitration agreement that, on its face, could not be enforced unless
the signatory had authority to sign it on Benthin‟s behalf. Before even filing the motion,

1
       Emeritus also invokes the doctrine of equitable estoppel, maintaining that Root relied
upon the powers of attorney to admit Benthin into Emeritus‟ facility, so Root and the other
respondents cannot now claim that the powers of attorney are invalid. (Citing NORCAL
Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 84; Halperin v. Raville (1986) 176
Cal.App.3d 765, 772.) The argument is unavailing. First, Emeritus barely mentioned this
theory in the trial court, and the record is not sufficiently developed for us to review the
adequacy of the evidence that would be needed to establish the factual elements of equitable
estoppel. Second, even if Root could be estopped on this basis, the other respondents
cannot, without at least an indication that they too represented that Root was Benthin‟s
agent. Third, equitable estoppel requires a showing that the party seeking the estoppel was
actually and permissibly ignorant of the truth and induced to rely on the other party‟s
representation or concealment. (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 584-585.) As
discussed ante in the context of ostensible agency, based on the record before us, Emeritus‟
reliance on Root‟s presentation of the powers of attorney was not reasonable, since the
powers of attorney by which Root claimed her authority were invalid on their face.

                                              12
therefore, Emeritus should have considered whether the powers of attorney it was relying
upon were valid – namely, whether they were acknowledged by witnesses or notarized.
Upon finding that the powers of attorney in Emeritus‟ own files had no witness signatures
or notarization, Emeritus could have sought leave to conduct its requested discovery before
filing its motion to compel arbitration – or at least within the four months between the time
it filed its petition and the hearing.
       Emeritus points out that unilaterally conducting discovery on the merits before the
hearing might have waived Emeritus‟ right to arbitrate. But surely no waiver could have
been implied if Emeritus had obtained court permission to conduct discovery limited to the
issue of the validity of the powers of attorney in connection with the existence and
enforceability of the Arbitration Agreement: obviously if a court can continue the hearing
to allow a party to engage in such limited discovery (as Emeritus requests), it can also
permit such discovery before the hearing without a waiver of arbitration resulting. It was
not an abuse of discretion for the court to deny Emeritus‟ request for a continuance on the
ground that its delay in seeking discovery was unjustified and unreasonable.
       Emeritus‟ contentions in this regard are unavailing. Although respondents‟
attorney did not object to the proposed continuance, that did not strip the court of
discretion to conclude there was no good cause for the continuance, given the totality of
the circumstances. (See Pham, supra, 54 Cal.App.4th at pp. 14, 17-18 [order denying
stipulated continuance request is reviewed for abuse of discretion].) Similarly, while the
court indicated it was important to know if the power of attorney was valid, the court‟s
statement certainly did not absolve Emeritus of having to establish this fact within the
time frame Emeritus had set for its motion.
       Emeritus repeats its argument that doubts as to whether parties have agreed to
arbitrate a dispute must be resolved in favor of compelling the matter to arbitration.
(Cione, supra, 58 Cal.App.4th at p. 642). In light of the heavy presumption favoring
arbitration, it argues, a court should deny a petition to compel arbitration only where it
“ „ “ „ “may be said with positive assurance that the arbitration clause is not susceptible of
an interpretation that covers the asserted dispute.” ‟ ” ‟ ” (Ibid.) The question here,


                                               13
however, is not whether arbitration should be compelled because a dispute arguably falls
within the scope of an arbitration clause, but whether Emeritus could delay the proceedings
by engaging in discovery on matters that should have been addressed before it even
brought its motion.
       Emeritus also contends there was adequate reason to continue the hearing because it
sees a good chance that discovery will indeed reveal a valid power of attorney. In
particular, Emeritus argues, a notary page might well exist because Benthin signed the
healthcare directive (which included a power of attorney for healthcare) under the written
instruction to “[s]ign the document in the presence of the witnesses or the Notary.”
Emeritus also notes that respondents did not submit a declaration averring that the powers of
attorney were not notarized or acknowledged by witnesses. The fact remains, however, that
no matter how fruitful Emeritus might think the discovery will be, Emeritus had plenty of
time to seek it before the hearing on the petition. Emeritus has not shown that the trial court
was irrational or arbitrary in declining to continue the hearing.2
       In the final analysis, the trial court did not abuse its discretion in failing to order a
continuance of the hearing to allow Emeritus discovery on the validity of the powers of
attorney. As respondents‟ attorney indicated at the hearing on Emeritus‟ petition, the issue
before the court was whether the documents Emeritus had presented in support of its
petition were sufficient to establish a valid power of attorney, not whether the powers of
attorney were, in fact, notarized or signed by the requisite witnesses and thus valid.
       Emeritus has failed to establish error in the trial court‟s order.
       D. Respondents’ Other Arguments
       Respondents argue that the court‟s ruling can be affirmed on alternate grounds:
the arbitration forum referenced in the Arbitration Agreement has been shut down; the
Arbitration Agreement is unconscionable and thwarts respondents‟ ability to vindicate
their statutory rights; and since most of the parties to this action are not parties to the

2
      Emeritus also argues that Benthin possibly told Emeritus‟ staff to deal only with
Root. Emeritus does not explain why it would need to postpone its hearing and conduct
discovery to find out what was said to its own staff.

                                                14
Arbitration Agreement, there is a risk of inconsistent rulings in different forums.
Because we conclude that the trial court did not err in denying the petition to compel
arbitration on the grounds cited by the court, we need not and do not decide any issue
concerning these alternative grounds for the denial.
                                    III. DISPOSITION
       The order is affirmed.




                                          NEEDHAM, J.




We concur.




JONES, P. J.




BRUINIERS, J.




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