The Petition to Compel Arbitration was deemed not enforceable as a matter of law since Defendant Kaiser failed to meet its burden of establishing the existence of a valid arbitration agreement as follows:
a) There was no competent declaration filed in support of Kaiser’s petition, nor any evidence before this court, substantiating that Kaiser is licensed in accordance with the Knox-Keene Health Care Service Plan Act of 1975, as amended, Health & Safety Code Section 1340 et seq., and that Kaiser is a health care service plan that arranges for and facilitates the provision of health services for employer groups with which they contract.
b) Kaiser asserted that The Medicare Act Preempts the Application of Section 1363.1 of the California Health and Safety Code to attempt to enforce the Contractual Arbitration Provision in this Case. Contrary to any such Kaiser position, The Medicare Act Does Not Preempt the Application of California Health and Safety Code Section 1363.1 and therefore any violation of California Health and Safety Code Section 1363.1 shall indeed preclude the legal enforcement of any purported Contractual Arbitration Provision. See Zolezzi v. Pacificare of California, 105 Cal.App.4th 573 (2003)129 Cal.Rptr.2d 526
c) The subject arbitration agreement was not governed by the Federal Arbitration Act. Please see Health & Safety Code Section 1363.1 and Donald Imbler v. Pacificare of California, Inc. et al. (2002) 103 Cal.App.4th 567.
d) The purported Arbitration Disclosures was Not “Prominently Displayed, See California Health and Safety Code Section 1363.1(b).
e) The Kaiser Arbitration Disclosure Did Not Stand Out and Is Not Readily Noticeable. See California Health and Safety Code Section 1363.1(b)
f) No clear and Understandable language. See California Health and Safety Code Section 1363.1.
g) The Arbitration Agreement did not comply with California Code of Civil Procedure Section 1295(a). See also California Health and Safety Code Section 1361.3(c).
h) This case involved third-party co-defendants not parties to the arbitration agreement, and this Court used its absolute discretion to deny the instant petition pursuant to California Code of Civil Procedure Section 1281.2(c) due to the risk of conflicting rulings on a common issues of law or fact.
i) Accordingly, where so much uncertainty as to the enforceability of an arbitration agreement exists, fairness and common sense suggest that the Court did find inferences in favor of Plaintiff. Constitutional rights should not be so easily disregarded especially where the alleged waiver of those rights is supported by flimsy, controverted “Kaiser” evidence that failed to make the case that the alleged constitutional waiver was made knowingly, voluntarily, legally and intelligently, if at all.
The Peck Law Group successfully again kept this Elder Abuse/ Medical Malpractice matter out of unfair and biased Arbitration forum preserving our client’s constitutional right to a jury trial. We can help you too call toll free at 1-866-999-9085.
About the Author
Attorney Steven Peck has been practicing law since 1981. A former successful business owner, Mr. Peck initially focused his legal career on business law. Within the first three years, after some colleagues and friend’s parents endured nursing home neglect and elder abuse, he continued his education to begin practicing elder law and nursing home abuse law.