FACTS

A. COMPLAINT

Resident was born in 1936. Husband is Resident’s husband.2 Bower and

Melody (collectively, Children) are Resident’s children. Silverscreen does business as

Asistencia Villa Rehabilitation and Care Center (the Center), which is a skilled nursing

facility. Diane Machain was the Center’s administrator.

In February 2020, Resident was recovering from a stroke and was admitted to the

Center. Resident suffered from “chronic respiratory failure . . . and was deemed

‘cognitively impaired.’ She had a tracheostomy tube to aid in her breathing, which

made communication difficult for her.” In March 2020, visitors were prohibited from

entering the Center. On April 29, 2020, Resident tested positive for COVID-19.

On May 2, 2020, Resident was taken to a hospital emergency room due to sepsis.

“[Resident] was diagnosed with septic shock, chronic respiratory failure, healthcare

associated pneumonia, urinary tract infection, acute kidney injury and hyperkalemia.”

Resident died the same day.

Husband and Children allege that Silverscreen intentionally understaffed the

Center and retained employees without adequate training in order to increase profits.

Husband and Children allege that the understaffing caused Resident to suffer

substandard care. The complaint is unverified.

2 In the opposition to the petition to compel arbitration, Gregorio Vitela is identified as Resident’s son. In the complaint and in a declaration, Gregorio Vitela is identified as Resident’s husband. We assume the declaration is correct and that Gregorio Vitela is Resident’s husband.

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B. PETITION TO COMPEL ARBITRATION

In petitioning to compel arbitration, Silverscreen asserted that, on March 1, 2020,

as part of Resident’s admission to the Center, Husband, acting as Resident’s

representative, signed an agreement to arbitrate all disputes pertaining to whether any

medical services at the Center “were improperly, negligently, or incompetently

rendered.” (Boldface omitted.) Silverscreen asserted the arbitration agreement was

binding on all the plaintiffs in the instant case. The only evidence attached to the

petition to compel arbitration was a copy of the arbitration agreement signed by

Husband.

One paragraph in the arbitration agreement reads: “The Resident and/or

Resident’s Representative/Agent certifies that he/she has read this Agreement and has

been given a copy of this Agreement, and affirmatively represents that he/she is duly

authorized, by virtue of the Resident’s consent, instruction and/or durable power of

attorney, to execute this Agreement and accept its terms on behalf of the Resident. The

Resident and/or Resident’s Representative/Agent acknowledges that the Facility is

relying on the aforementioned certification.”

Husband signed the arbitration agreement on the signature line for “Resident

Representative/Agent.” The signature line for “Resident’s Signature” is blank.

C. OPPOSITION

In opposing the petition to compel arbitration, Husband and Children asserted

that Silverscreen failed to provide evidence that (1) Resident was incapable of making

decisions and signing the arbitration agreement; (2) there was an express authorization,

4 such as a power of attorney, allowing Husband to sign agreements as Resident’s agent;

or (3) words and actions on Resident’s part that would imply Resident had authorized

Husband to sign agreements as Resident’s agent. No evidence was included with the

opposition.

D. REPLY

In reply, Silverscreen asserted, “[I]t would seem incumbent upon [Husband and

Children] to explain to the Court why [Husband] certified he was [Resident’s] agent if

he was truly not, and to affirmatively refute the prior certification when he signed the

Arbitration Agreement.” No evidence was included with the reply.

E. HEARING

The trial court held a hearing on the petition to compel arbitration. No one

testified and no evidence was admitted.

F. RULING

In its ruling, the trial court wrote: “No evidence is presented that [Husband] held

a power of attorney or other express document establishing he was the agent of

[Resident] with authority to bind her to contract agreements, including arbitration

agreements. No evidence is offered that [Resident] did anything to cause [Silverscreen]

or [its] staff to believe [Husband] was authorized by [Resident] to sign the Agreement

on her behalf or to act as her agent. Merely because [Husband] signed the Agreement

as [Resident’s] representative does not make him her agent.

5 “As [Resident] did not sign the Agreement and no evidence is offered to support

that [Husband] was the actual or ostensible agent of [Resident], no contract was formed

between [Silverscreen] and [Resident] compelling her survival causes of action to

arbitration.”

The trial court ruled that Husband had to arbitrate his wrongful death cause of

action because the arbitration agreement provided that the person signing as a

representative did “ ‘so not only in their representative capacity for the Resident, but

also in their individual capacity.’ ” Because Husband’s wrongful death claim was

brought in his individual capacity, he had to arbitrate it—to the extent it was based upon

medical malpractice.

DISCUSSION

A. EVIDENCE OF A CONTRACT

1. CONTENTION

Silverscreen contends the evidence supports a finding that there was a valid

arbitration agreement.

2. STANDARD OF REVIEW

Silverscreen contends the de novo standard of review should apply because there

are no disputed facts. Husband and Children contend the substantial evidence standard

of review should apply because the trial court’s ruling is based upon findings of fact.

“[A]gency is generally a factual question.” (Rogers v. Roseville SH, LLC (2022) 75

Cal.App.5th 1065, 1072.) However, the only evidence in this case is the arbitration

6 agreement. Because the only evidence is a document, we will apply the de novo

standard of review. (Ibid.)

3. BURDEN SHIFTING

There is a burden-shifting procedure involved in petitions to compel arbitration.

In the first step of the process, “[t]he petitioner bears the burden of proving the

existence of a valid arbitration agreement by the preponderance of the evidence.”

(Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) If the

petitioner meets that burden, then, in the second step of the process, the “party opposing

the petition bears the burden of proving by a preponderance of the evidence any fact

necessary to its defense.” (Ibid.) “In these summary proceedings, the trial court sits as

a trier of fact, weighing all the affidavits, declarations, and other documentary evidence,

as well as oral testimony received at the court’s discretion, to reach a final

determination.” (Ibid.)

4. AGENCY

In some cases, “[t]he party seeking arbitration can meet its . . . burden [simply]

by attaching to the petition a copy of the arbitration agreement purporting to bear the

[opposing party’s] signature.” (Bannister v. Marinidence Opco, LLC (2021) 64

Cal.App.5th 541, 543-544.) However, when an arbitration agreement is signed by a

third party, then, as part of its burden of proving the existence of a contract, the

petitioning party must provide evidence that the third party was the agent of the

principal. (Kinder v. Capistrano Beach Care Center, LLC (2023) 91 Cal.App.5th 804,

815; Rogers v. Roseville SH, LLC, supra, 75 Cal.App.5th at p. 1075.) Such evidence is

7 necessary because two essential elements of a valid agreement are: “1. Parties capable

of contracting; [and] [¶] 2. Their consent.” (Civ. Code, § 1550.) In order to prove that

the third party had the authority to consent on behalf of the principal, agency must be

proven.

Agency can be established in three ways. The first method is by express

agreement between the agent and the principal. (Warfield v. Summerville Senior Living,

Inc. (2007) 158 Cal.App.4th 443, 448.) There is no evidence of an express agreement

between Resident and Husband. For example, Silverscreen did not provide a copy of a

power of attorney executed by Resident giving Husband authority to enter into contracts

on her behalf.

The second method for establishing agency is evidence of Resident intentionally

making statements or conducting herself in a manner indicating there was an agreement

for Husband to act on Resident’s behalf. (Warfield v. Summerville Senior Living, Inc.,

supra, 158 Cal.App.4th at p. 448; Civ. Code, § 2300.) Silverscreen did not provide

evidence of Resident’s actions or statements.

The third method for establishing agency is “by want of ordinary care” (Civ.

Code, § 2300), which means neglect by a principal gave the impression of agency

(Pereda v. Atos Jiu Jitsu LLC (2022) 85 Cal.App.5th 759, 768). Binding a principal to a

contract formed by an ostensible agent is a form of estoppel—“that the principal should

be estopped from creating the false impression of agency.” (Ibid.) In order to prove

that the principal should be estopped, there must be evidence of (1) the principal’s

neglect that caused the impression of an agency relationship; and (2) that the other

8 contracting party, i.e., Silverscreen, “was not negligent in relying on the agent’s

apparent authority.” (Ibid.) We have no evidence of the circumstances under which the

arbitration agreement was signed. There is no evidence of what Resident knew, what

Resident was doing, what Husband was doing, what Silverscreen knew, and what

Silverscreen observed between Resident and Husband. Due to a lack of evidence,

agency by want of ordinary care has not been established.

The only evidence provided by Silverscreen was the arbitration agreement,

which sets forth Husband’s form assertions about Resident: “Resident’s representative

. . . affirmatively represents that he/she is duly authorized, by virtue of Resident’s

consent, instruction and/or durable power of attorney, to execute this Agreement and

accept its terms on behalf of the Resident.” Husband’s assertions do not make him

Resident’s agent—“[a] person cannot become the agent of another merely by

representing [him]self as such.” (Pagarigan v. Libby Care Center, Inc. (2002) 99

Cal.App.4th 298, 301.)

5. RATIFICATION

Silverscreen contends Resident ratified Husband’s signing of the arbitration

agreement. Husband and Children assert Silverscreen forfeited the ratification

argument by failing to raise it in the trial court. We choose to address the issue.

A principal can expressly or impliedly ratify the act of a purported agent after the

act occurs. (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73.) “An essential element of

the legal principle of ratification is knowledge by the principal of the unauthorized act

of his agent and of its material circumstances. This is equally necessary whether the

9 ratification be express or implied. And an express ratification without knowledge of all

the material circumstances of the transaction is not binding on the principal. Much less

will the court imply ratification in the absence of such knowledge, since it is this

knowledge which gives rise to the duty of disavowal, and without which there is

nothing from which ratification may be implied.” (Johnson v. California Interurban

Motor Transp. Assn. (1938) 24 Cal.App.2d 322, 336-337 (Johnson); see also Chastain

v. Belmont (1954) 43 Cal.2d 45, 58 [“A principal must have knowledge of material facts

at the time of the alleged r[a]tification [citation] in order to be held liable for the

unauthorized act of another”].) There is no evidence of Resident being aware of the

arbitration agreement. Therefore, there is no evidence of Resident ratifying the

arbitration agreement.

Silverscreen relies on the following exception to the knowledge element of

ratification: “Ordinarily, the law requires that a principal be apprised of all the facts

surrounding a transaction before he will be held to have ratified the unauthorized acts of

an agent. However, where ignorance of the facts arises from the principal’s own failure

to investigate and the circumstances are such as to put a reasonable man upon inquiry,

he may be held to have ratified despite lack of full knowledge.” (Volandri v. Hlobil

(1959) 170 Cal.App.2d 656, 659.) There is no evidence of Resident’s knowledge or

lack of knowledge, so one cannot determine whether Resident had knowledge of facts

that would put a reasonable person on inquiry.

10 Silverscreen asserts Resident ratified Husband’s signature on the arbitration

agreement by accepting the benefit of the arbitration agreement. Silverscreen identifies

the benefit as lower costs of being a resident at the Center, due to Silverscreen avoiding

costs associated with court trials. Ratification cannot occur without either knowledge of

the act being ratified or knowledge of facts that would put a reasonable person on notice

of the act at issue. (Johnson, supra, 24 Cal.App.2d at pp. 336-337.) In the instant case,

there is no evidence of Resident’s knowledge, so one cannot conclude Resident ratified

anything.

6. MARRIAGE

Silverscreen asserts that, due to Husband’s and Resident’s marital relationship,

Husband had the authority to bind Resident to the arbitration agreement. Silverscreen’s

contention is incorrect. Being married does not give one the authority to bind their

spouse to an arbitration agreement. (Goldman v. Sunbridge Healthcare, LLC (2013)

220 Cal.App.4th 1160, 1171-1172.)

B. CONTRACTS IN THE SKILLED NURSING SETTING

Silverscreen contends that, in the skilled nursing industry, it is customary to have

residents’ relatives sign admission documents on behalf of residents who are unable to

do so themselves. Silverscreen has provided no evidence of customs and practices in

the skilled nursing industry.

Silverscreen points to a regulation regarding the California Health and Human

Services Agency’s mandatory admission contract for residents at skilled nursing

facilities. (Cal. Code Regs., tit. 22, § 72516.) Subdivision (c) of the regulation

11 provides: “No resident or his or her legal representative shall be required to sign any

other document at the time of, or as a condition of, admission to the licensee’s facility.”

(Cal. Code Regs., tit. 22, § 72516(c), italics added.) Silverscreen notes there is an

expectation that a “legal representative” could sign the admission contract. Silverscreen

contends that allowing relatives to sign admission documents is necessary in the skilled

nursing industry where the residents are often unable to sign documents themselves.

We reject Silverscreen’s argument.

Health and Safety Code section 1599.65, subdivision (a), provides: “Prior to or

at the time of admission, the [health] facility shall make reasonable efforts to

communicate the content of the contract to, and obtain on the contract the signature of,

the person who is to be admitted to the facility. Unless the prospective resident has

been declared legally incompetent or is unable to understand and sign the contract

because of his or her medical condition, he or she shall sign or cosign the admission

agreement. In the event the patient is unable to sign the contract, the reason shall be

documented in the resident’s medical record by the admitting physician. This provision

does not preclude the facility from obtaining the signature of an agent, responsible

party, or a legal representative, if applicable.” A “health facility” includes a skilled

nursing center. (Health & Saf. Code, §§ 1250, subd. (c)(1), 1599.)

Silverscreen is correct that relatives will, at times, sign admission contracts for

residents of skilled nursing facilities, but that does not excuse such facilities from trying

to obtain the residents’ signatures. (Health and Saf. Code, § 1599.65, subd. (a).) In the

instant case, there is no evidence as to what attempts, if any, were made to obtain

12 Resident’s signature on the arbitration agreement. Silverscreen did not provide

evidence of (1) its efforts to communicate with Resident and obtain her signature;

(2) any documents declaring Resident legally incompetent; and/or (3) a medical record

from a doctor documenting Resident’s inability to sign contracts. Therefore,

Silverscreen has not established an excuse for failing to obtain Resident’s signature on

the arbitration agreement.

In its ruling, the trial court wrote that the arbitration agreement “states it is

subject to the [Federal Arbitration Act (FAA)]. [Citation.] [¶] When an agreement

states the FAA governs, it governs.” Silverscreen notes that under Health and Safety

Code section 1599.65, quoted ante, legal representatives are permitted to sign admission

contracts for residents of skilled nursing facilities. Silverscreen contends that courts are

singling out arbitration agreements for requiring a resident’s signature when the FAA

prohibits disparate treatment of arbitration agreements.

In this case, the arbitration agreement is not receiving disparate treatment. As

discussed ante, we looked in the record for the type of evidence described in Health and

Safety Code section 1599.65, subdivision (a). We could not find any such evidence.

Resident’s signature is required on the arbitration agreement because Silverscreen failed

to provide any evidence as to why Resident could not sign the arbitration agreement. In

sum, we applied the same law in this case as we would to other admission contracts for

skilled nursing facilities.

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D. WRONGFUL DEATH CLAIMS

1. PROCEDURAL HISTORY

In the trial court’s ruling, it wrote, “Generally, if a deceased person executes an

agreement to arbitrate medical claims that provide[s] it covers the heirs and successors,

then the heirs and successors are bound to arbitrate their wrongful death cause of action.

(Ruiz v. Podolsky (2010) 50 Cal.4th 838, 841, 854.) [¶] . . . Accordingly, if [Resident]

had signed the Agreement or an agent signed the Agreement on her behalf, then

[Children] would be bound to arbitrate their wrongful death claim to the extent

predicated upon medical malpractice. . . . [¶] Of course, none of this matters when the

evidence is lacking of [Resident] or her agent signing the Agreement. Thus, [Children]

are not subject to arbitrating their wrongful death cause of action.”

2. ANALYSIS

Silverscreen contends the trial court erred by “not resolv[ing] the issue of

whether [Resident’s] non-signatory heirs, [Children], were bound to arbitrate their

wrongful death claims under [Code of Civil Procedure] section 1295 and Ruiz v.

Podolsky (2010) 50 Cal.4th 838.” Silverscreen is mistaken. The trial court expressly

resolved the issue and cited Ruiz. The trial court explained that Silverscreen failed to

prove Husband was Resident’s agent, thereby failing to prove a valid arbitration

agreement with Resident, which means there was no agreement with Resident that

would bind Children.

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DISPOSITION

The order is affirmed. Respondents are awarded their costs on appeal. (Cal.

Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER Acting P. J.

FIELDS

J.

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