Daily Blast February 1, 2016

The Court of Appeal, First Appellate District, Division One, issued an opinion in Monschke v. Timber Ridge Assisted Living, LLC (Jan. 29, 2016, A144289) __ Cal.App.4th __, affirming an order denying a petition to compel arbitration in an elder abuse and wrongful death case. The plaintiff, acting as personal representative for the estate of her mother, sued the defendant for wrongful death and elder abuse. The defendant petitioned to compel arbitration since the plaintiff, on behalf of her mother, had signed an agreement with an arbitration clause. (Slip opn., p. 1.) The trial court denied the petition. The Court of Appeal affirmed. (Id. at p. 2.)

The Court of Appeal determined that the plaintiff was not a party to the arbitration agreement. (Slip opn., p. 4.) The court rejected the defendant’s argument that the plaintiff essentially stepped into the shoes of decedent and was therefore bound by decedent’s obligations under the residency agreement, because she filed the action as the personal representative of decedent’s estate. According to the court, “[w]hile plaintiff signed the residency agreement, she did so as decedent’s power of attorney, not in her personal capacity.” (Ibid.) Further, “[a]s personal representative of the estate, plaintiff is asserting the wrongful death claim on behalf of decedent’s heirs, not decedent.” (Ibid.) The court also rejected the defendant’s argument that a personal representative in a wrongful death action is the alter ego of the decedent. (Id. at p. 5.) “Regardless of who files suit, recovery in a wrongful death action belongs to the heirs, not to the decedent or the estate. . . . Thus, while a personal representative’s interests may not directly align with the interests of any particular heir, the personal representative’s duty is to stand in the position of the heirs, not the decedent.” (Ibid.) Accordingly, the Court of Appeal affirmed the trial court’s order denying the defendant’s petition to compel arbitration since the children were not parties to the arbitration agreement. (Id. at p. 1.)