Full Opinion

Filed 10/22/26 Moffett v. Lake Merritt Healthcare Center CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE PARIS D’MARCO MOFFETT, Plaintiff and Respondent, A174369 v. LAKE MERRITT HEALTHCARE (Alameda County CENTER, LLC., et al., Super. Ct. No. 25CV107536) Defendants and Appellants. Defendants Lake Merritt Healthcare Center, LLC. (LMHC) and Crystal Solorzano appeal from a trial court order denying their motion to compel arbitration. We affirm in part and reverse in part. I. FACTUAL AND PROCEDURAL BACKGROUND In September 2022, while in his early 20s, Paris Moffett (Paris) was shot and paralyzed from the waist down. The following month, he was admitted to LMHC, a skilled nursing facility, owned by Solarzano. In early March 2023, Paris signed an arbitration agreement with LMHC. His father, plaintiff Paris D’Marco Moffett (Moffett), did not sign the agreement. The agreement stated it was binding “on all parties, including the Resident’s representatives, executors, family members, and heirs who bring any claims individually or in any representative capacity.” Several days after signing 1 the agreement, Paris was again shot, this time fatally, by two people who entered the facility in the middle of the night through an unlocked rear door. Moffett filed a complaint against LMHC and Solorzano, suing both in his personal capacity and as Paris’s successor. He alleged four causes of action: 1) negligence; 2) negligent abuse of a dependent adult;1 3) a claim for the “extreme pain suffered” by Paris before he died; and 4) wrongful death. Defendants filed a motion to compel arbitration, which the trial court denied. The court denied the motion largely because Moffett had not signed the arbitration agreement. II. DISCUSSION 1. The Trial Court Properly Denied Defendants’ Motion to Compel Arbitration of the Wrongful Death Claim. “As a general rule, plaintiffs cannot be compelled to arbitrate their disputes if they have not previously agreed to arbitration.” (Holland v. Silverscreen Healthcare, Inc. (2025) 18 Cal.5th 364, 370 (Holland).) Relying on this rule, Moffet argues that the trial court correctly concluded that he could not be compelled to arbitrate his wrongful death cause of action because he did not sign the arbitration agreement or otherwise consent to arbitration. We agree. We start by observing that Moffett’s wrongful death claim was necessarily brought in Moffett’s personal capacity. “In California, wrongful death claims, unlike survivor claims, are not derivative of the decedent’s own claims; they are, rather, independent statutory actions accruing to a decedent’s heirs for pecuniary injuries suffered by the loss of a relative.” 1 The claim was brought under the Elder Abuse and Dependent Adult Civil Protection Act. (Welf. & Inst. Code, § 15610 et seq.) 2 (Holland, supra, 18 Cal.5th at p. 375; see also Code Civ. Proc., § 377.60.2) Thus, the fact that Paris signed the arbitration agreement does not establish that Moffett, a non-signatory, agreed to arbitrate his separate claims. In Ruiz v. Podolsky (2010) 50 Cal.4th 838, our Supreme Court recognized an exception to the rule that non-signatories of an arbitration agreement cannot be compelled to arbitrate. Ruiz held that non-signatory heirs can be compelled to arbitrate wrongful death claims under section 1295, which is part of the Medical Injury Compensation Reform Act (MICRA), when the deceased patient agreed to bind them to arbitrate such claims. (Ruiz at p. 842.) This exception, however, is limited. As it arises out of MICRA, the exception binds non-signatory heirs who assert wrongful death claims alleging medical malpractice, but it does not bind non-signatory heirs who assert wrongful death claims that sound in elder (or dependent adult) abuse.3 (Holland, supra, 18 Cal.5th at p. 384.) The question here, therefore, is whether Moffett’s wrongful death claim is properly described as alleging medical malpractice or dependent adult abuse. We have little difficulty concluding that it is the latter. A claim of elder or dependent adult abuse “ ‘does not refer to substandard performance of medical services but rather the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.’ ” 2 All undesignated statutory references are to the Code of Civil Procedure 3 Even an heir who signs an arbitration agreement that purportedly binds heirs from bringing future claims in their individual capacity cannot be compelled to arbitrate those claims unless the heir signed the agreement in a personal capacity. (See, e.g., Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 842.) Here, Moffett did not sign the arbitration agreement in either a representative or personal capacity. 3 (Holland, supra, 18 Cal.5th at p. 384.) The critical question is whether the complaint alleges negligent acts or omissions by “ ‘health care providers in their capacity as providers’ ” rather than “ ‘against custodians and caregivers . . . that may or may not, incidentally, also be health care providers.’ ” (Id. at p. 382) The Supreme Court recognized that “there is potential for confusion” in drawing the line between to the two types of claims because “ ‘some health care institutions, such as nursing homes, perform custodial functions and provide professional medical care.’ ” (Holland, supra, 18 Cal.5th at p. 379.) It therefore offered guidance, explaining “that only acts or omissions by a skilled nursing facility in its capacity as a health care provider fall under the banner of professional negligence. [Citation.] By contrast, ‘a failure to fulfill custodial duties owed by a custodian who happens also to be a health care provider . . . is at most incidentally related to the provider’s professional health care services.’ [Citation.] The failure to provide basic necessities, such as assistance in personal hygiene, food, hydration, or clothing, are paradigmatic examples of a failure to fulfill custodial duties. [Citations.] The same is true of a failure to provide an adequate and habitable living space or protect from routine safety hazards. [Citations.] Similarly, a failure of staff to attend to, monitor, or assist a resident in obtaining appropriate medical care generally falls on the custodial side of the line because such omissions involve ‘not . . . the undertaking of medical services, but . . . the failure to provide medical care.’ ” (Holland, supra, 18 Cal.5th at p. 380.) When applying these considerations in evaluating a particular wrongful death claim, courts focus on “the primary basis” of the claim. (Avila v. Southern California Specialty Care, Inc., supra, 20 Cal.App.5th at p. 842.) 4 There can be no question that the primary basis of Moffet’s wrongful death claim is that defendants failed in their custodial care of Paris, and we flatly reject defendants’ characterization of the claim as “arising out of medical malpractice” because the allegations “implicate [LMHC’s] status as a healthcare provider.” Holland makes clear that what matters is the type of conduct alleged—not the type of facility in which the conduct occurred. (Holland, supra, 18 Cal.5th at p. 380.) The complaint alleged that defendants failed to adequately check on Paris the night he was killed; failed to lock and secure exterior access into the facility; failed to maintain adequate patient supervision, security and safety; failed to adequately observe and monitor patients; failed to provide adequate security personnel; failed to adequately staff the facility sufficiently to meet patient’s needs; failed to keep Paris from physical abuse; and failed to provide and maintain safe accommodations. These allegations clearly assert that defendants failed in their custodial duties. Thus and in short, the trial court properly denied the motion to compel arbitration of Moffett’s wrongful death claim. The claim was brought by Moffett in his personal capacity, Moffett did not sign the arbitration agreement or otherwise agree to arbitrate the claim, and Paris’s consent to arbitration did not bind Moffett because the primary basis of the claim is not based on medical malpractice. 2. The Trial Court Erred in Denying Defendants’ Motion to Compel Arbitration of the Remaining Claims. We reach a different conclusion regarding the remaining causes of action. Both in the trial court and on appeal, defendants argued that Moffett was bound to arbitrate those claims. We agree with them. 5 Unlike a cause of action for wrongful death, “a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264 (Quiroz).) A claim brought under California’s survival statutes (§ 377.20 et seq.) “ ‘is a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event. [Citation.] The survival statutes do not create a cause of action. Rather, “[t]hey merely prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased.” ’ ” (Ng v. Superior Court (2025) 108 Cal.App.5th 382, 388.) A cause that survives the death of a person passes to the decedent’s successor in interest and is enforceable by the “decedent’s personal representative or, if none, by the decedent’s successor in interest.” (§ 377.30.) Here, the causes of action other than the wrongful death claim were alleged as survivor claims, a point defendants’ counsel emphasized at the hearing on the motion to compel. The negligence cause of action alleged that defendants “owed a duty to its resident/patients to exercise ordinary care in the training, supervision and management of its staff, and security of its facilities in order to avoid exposing its residents or other persons to an unreasonable risk of harm.” The cause of action brought under the Elder Abuse Act was a survivor claim as a matter of law, because claims and remedies under that act are afforded only to the victims of abuse. (Quiroz, supra, 140 Cal.App.4th at p. 1281.) If the victim dies, successors in interest may bring only a survivor claim on the decedent’s behalf; they may not bring a claim seeking to vindicate their own, independent interests. (Id. at 6 pp. 1264–1265.) Finally, the cause of action that sought damages for the “extreme pain suffered, incurred and experienced” by Paris before his death plainly sought to vindicate Paris’s personal interests.4 Thus, this case involves one claim—the wrongful death claim—brought by Moffett as a third party who did not sign the arbitration agreement, and three claims—the claims for negligence, negligent abuse of a dependent adult, and for damages for pain and suffering—brought by Paris (through Moffett, his successor in interest) who did sign the agreement. In his appellate briefing, Moffett does not dispute that Paris signed the arbitration agreement and had the capacity to do so. Defendants contend that the trial court had no discretion to deny their motion to compel arbitration of these claims because the agreement expressly provided that “California Code of Civil Procedure § 1281.2(c) is excluded from this Agreement as the parties mutually desire to have any and all disputes submitted to binding arbitration. The parties do not want any claims not subject to arbitration to impede any and all other claims from being ordered to binding arbitration.” Section 1281.2, subdivision (c) (section 1281.2(c)) is part of the California Arbitration Act, and it gives trial courts discretion to stay or deny arbitration when “[a] party to the arbitration agreement is also a party to a pending court action . . . with a third party” that “aris[es] out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.” The Federal Arbitration Act (9 U.S.C. § 1 et seq.), however, “does not permit a trial court to stay or 4 California permits survivor claims for “the loss or damage that the decedent sustained . . . before death” and for damages for pain and suffering, so long as the action was filed, as this one was, “before January 1, 2026.” (§ 377.34, subd. (b).) 7 deny arbitration in those circumstances.” (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 157.) Thus, whether a court can stay or deny arbitration in a proceeding involving a third party depends on whether section 1281.2(c) applies. Defendants have consistently maintained that section 1281.2(c) does not apply because Paris and LMCH expressly exempted its application in the arbitration agreement. Moffet, acting in the capacity of Paris’s successor of interest, did not respond to this contention in his appellate briefing. We therefore consider the issue submitted on appellants’ brief. (California Ins. Guarantee Assn. v. Workers’ Comp. Appeals Bd. (2005) 128 Cal.App.4th 307, 316, fn. 2.) Having no reason to decide otherwise, we therefore conclude that Paris and LMHC expressly agreed to the inapplicability of section 1281.2(c), and the trial court therefore had no discretion to deny arbitration of the three survivor causes of action under any ostensible authority conferred by that section. III. DISPOSITION The trial court’s order denying defendants’ motion to compel arbitration is affirmed in part and denied in part. The trial court’s order denying arbitration is affirmed as to the wrongful death cause of action, but it is reversed as to the remaining causes of action. The parties shall bear their own appellate costs. 8 _________________________ Humes, P. J. WE CONCUR: _________________________ Banke, J. _________________________ Langhorne Wilson, J. Moffett v. Lake Merrit Healthcare Center, LLC., et al. A174369 9