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Filed 2/16/22 Naganuma v. Windsor Oakridge Healthcare Center 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

GARY NAGANUMA, et al.,

 Plaintiffs and Respondents,

v.

WINDSOR OAKRIDGE 

HEALTHCARE CENTER, LP, 

et al.,

 Defendants and Appellants.

 A162113

 (Alameda County

 Super. Ct. No.

 RG20062602)

Defendants Windsor Oakridge Healthcare Center, LP d.b.a. 

Windsor Healthcare Center of Oakland, Brookdale Healthcare 

and Wellness Centre, LP d.b.a. Brookdale Healthcare and 

Wellness Center and d.b.a. Windsor Healthcare Centre of 

Oakland, SF Management Co., LLC, and Boardwalk West 

Financial Services, LLC (collectively, “Windsor”) appeal from an 

order denying their petition to compel arbitration of this civil 

action filed by Gary Naganuma’s estate and his heirs, wife 

Debbie Naganuma and daughter Allison Naganuma (collectively, 

“plaintiffs”) based on the care Gary1 received as a resident in a 

1 Because the plaintiffs share the same last name, we use 

first names to ease the task of the reader.
2

skilled nursing facility they owned and operated. (Code of Civ. 

Proc., §§ 1281.2, 1294.)2 We agree with the trial court that the 

plaintiffs are not bound by an arbitration agreement signed by 

Debbie admitting Gary into Windsor’s facility, because Windsor 

did not prove that Debbie had the authority to act as Gary’s 

agent for this purpose. We also conclude the trial court, and not 

the arbitrator, properly made this determination. We affirm.

I. BACKGROUND

On May 28, 2020, plaintiffs filed a civil complaint alleging 

causes of action against Windsor for negligence, negligent 

infliction of emotional distress, elder abuse, violation of statutory 

rights, wrongful death and violation of the right to inspect and 

copy medical records. The complaint alleged that Gary was 

admitted to a skilled nursing facility in 2019 at the age of 66 for 

rehabilitation following the partial amputation of his foot due to 

diabetes, and that he died after a series of physical ailments 

culminating in sepsis caused by a bed sore. 

Windsor filed a motion to compel arbitration, alleging that 

Debbie, as Gary’s authorized representative, had signed a 

separate arbitration agreement on his behalf in connection with 

his admission to the Windsor facility. They attached the 

arbitration agreement signed by Debbie, in which she certified, 

“By virtue of Resident’s consent, instruction and/or durable power 

of attorney, I hereby certify that I am authorized to act as 

Resident’s agent in executing and delivering of this arbitration 

2 Further statutory references are to the Code of Civil 

Procedure.
3

agreement. I acknowledge that the facility is relying on this 

representation.” Windsor did not present any evidence that 

Debbie was a conservator or guardian of Gary, that Gary was 

incapacitated in any way at the time of his admission, or that 

Debbie was acting pursuant to a power of attorney. 

Plaintiffs opposed the motion to compel arbitration, 

arguing, among other things, that the arbitration agreement was 

not enforceable because it was not signed by Gary or by anyone 

acting with authority to sign it on his behalf. The trial court 

denied the motion to compel, ruling that there was no enforceable 

agreement as to plaintiffs. The court further ruled that assuming 

that Debbie had agreed to arbitration of her own claims by 

signing the agreement, the agreement was unenforceable as to 

her pursuant to section 1281.2, subdivision (c), because rulings in 

an arbitration of Debbie’s claims could conflict with jury findings 

as to Gary and Allison.

II. DISCUSSION

A. Delegation Clause

The fundamental question presented by the motion to 

compel arbitration was whether Gary agreed to arbitrate this 

controversy with Windsor when he did not personally sign the 

arbitration agreement, i.e., whether Debbie had authority to 

agree to arbitration on Gary’s behalf. As a threshold matter, 

Windsor argues that the court did not have the authority to 

resolve this issue because it had been delegated to the arbitrator 

under the arbitration agreement. We disagree.
4

When the delegation issue is based solely on the language 

of the arbitration agreement itself, we review the issue de novo. 

(Ajamian v. CantorCO2e (2012) 203 Cal.App.4th 771, 782 & fn. 5

(Ajamian).) Here, the parties offered no extrinsic evidence on the 

issue of delegation beyond the language of the agreement, so we 

apply a de novo standard.

3

Windsor acknowledges that the trial court, not the 

arbitrator, is generally presumed to have the authority to resolve 

challenges to the enforceability of an arbitration clause, such as 

unconscionability. (E.g., Rent-A-Center West, Inc. v. Jackson

(2010) 561 U.S. 63, 68 (Rent-A-Car).) It argues that the 

arbitrator should have determined the enforceability of the 

arbitration clause in this case, citing the rule that the parties 

may agree to delegate this power to the arbitrator when the 

language they use is “clear and unmistakable.” (Tiri v. Lucky 

Chances, Inc. (2014) 226 Cal.App.4th 231, 242; see also Henry 

Schein, Inc. v. Archer & White Sales, Inc. (2019) ___ U.S. ___ [139 

S.Ct. 524, 529] (Schein); First Options of Chicago, Inc. v. Kaplan

(1995) 514 U.S. 938, 

944–945.) Windsor points to language in the arbitration 

agreement that states, “The Arbitrator, and not any federal, 

state, or local court or agency, shall have exclusive authority to 

3 Plaintiffs suggest that when the underlying evidence 

regarding a third party’s authority to sign an arbitration 

agreement on behalf of another is in dispute, we should review 

the court’s ruling for substantial evidence. But they acknowledge 

that in this case, there is no conflict in the evidence. In any 

event, we would reach the same result if we applied a substantial 

evidence standard.
5

resolve any dispute relating to the interpretation, applicability, 

enforceability, or formation of this Agreement, including, but not 

limited to, any claim that all or part of this Agreement is void or 

voidable.” 

The language cited by Windsor would be clear and 

unmistakable evidence of an intent to delegate the issue of 

arbitrability from the court to the arbitrator if it had been 

demonstrated that Gary actually entered into the arbitration 

agreement which contains the delegation clause. (Rent-A-Center, 

supra, 561 U.S. at pp. 70–71; cf. Ajamian, supra, 203 Cal.App.4th 

at p. 784.) But although California has a strong policy favoring 

arbitration, there is no public policy favoring the arbitration of 

disputes the parties did not agree to arbitrate. (Aanderud v. 

Superior Court (2017) 13 Cal.App.5th 880, 890.) When a party 

seeks to compel arbitration, the trial court—not the arbitrator—

must initially determine in a summary proceeding whether an 

agreement to arbitrate exists. (§ 1281.2; Rosenthal v. Great 

Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413

(Rosenthal); see Schein, supra, ___U.S. ___ [139 S.Ct. 524, 530].) 

“To presume arbitrability without first establishing, 

independently, consent to arbitration is to place the proverbial 

cart before the horse.” (Sandquist v. Lebo Automotive, Inc. (2016) 

1 Cal.5th 233, 252.)

Case law has recognized that when claims arise from a 

contract that does not itself contain an arbitration clause, the

threshold question of whether there is an agreement to arbitrate 

(based, for example, on other contracts between the parties) is 
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properly decided by the court and not the arbitrator, 

notwithstanding the existence of a delegation clause in the 

contract containing the arbitration provision. (See Banc of 

California, National Assn v. Superior Court (2021) 69 

Cal.App.5th 357, 369–370; Moritz v. Universal City Studios

(2020) 54 Cal.App.5th 238, 248; Bautista v. Fantasy Activewear, 

Inc. (2020) 52 Cal.App.5th 650, 656.) Although in this case the 

contract on which the motion to compel arbitration is based

contains an arbitration clause, that clause is only effective if it 

was signed by the principal or a person who had authority to bind 

the principal. Otherwise, it cannot be said that the principal 

agreed to arbitrate the case. (See Ahlstrom v. DHI Mortgage 

Company, Ltd., LP (9th Cir. 2021) 21 F.4th 631, 634–635 [parties 

cannot delegate issue of the formation of arbitration clause to 

arbitrator].)

Recently, a different Division of this Court squarely 

addressed the issue of whether the court or the arbitrator should 

decide arbitrability when an arbitration agreement contains a 

delegation clause but there is a dispute as to whether a family 

member had the authority to sign the arbitration agreement on 

behalf of a resident in connection with that resident’s admission 

to a convalescent home. (Theresa D. v. MBK Senior Living LLC

(2021) 73 Cal.App.5th 18, 24] (Theresa D.).) The court concluded 

“there is no public policy in favor of forcing to arbitration a 

person who has not agreed to it” and held the court, not the 

arbitrator, properly decided the gateway issue of whether there 

was an agreement to arbitrate. “In the absence of an agreement, 
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made either directly by plaintiff or by one capable of binding 

[him] to arbitration, there would be no basis to require plaintiff to 

submit any issue to the arbitrator.” (Id. p. 26.) We agree with 

the analysis in Theresa D. and conclude the court properly 

determined the threshold question of whether there was an 

agreement to arbitrate.

B. Debbie was not Gary’s Agent, and Gary Did Not Agree to 

Arbitrate his Claims

Turning to the question of whether the trial court correctly 

determined the merits of the motion to compel, we note that its 

ruling was based not only upon the language of the arbitration 

agreement, but also upon its assessment of the evidence 

concerning Debbie’s signature of the agreement on Gary’s behalf, 

Gary’s physical and mental condition at the time of his 

admission, and the absence of any evidence that Gary gave 

Debbie the authority to act on his behalf. The ruling thus 

involved a weighing of the evidence and we review the trial 

court’s findings for substantial evidence. (See Lopez v. Bartlett 

Care Center, LLC (2019) 39 Cal.App.5th 311, 317 (Lopez).)4 

4 Because Windsor had the burden of proving the existence 

of an arbitration agreement (Rosenthal, supra, 14 Cal.4th at 

p. 413; Theresa D., supra, 73 Cal.App.5th at p. 24.), and because 

the substantial evidence standard is “ ‘typically implicated when 

a defendant contends that the plaintiff has succeeded at trial in 

spite of insufficient evidence’ ” (In re Aurora P. (2015) 241 

Cal.App.4th 1142, 1156, we apply a modified version of the 

substantial evidence test. “ ‘Specifically, the question becomes 

whether the appellant’s evidence was (1) “uncontradicted and 

unimpeached” and (2) “of such a character and weight as to leave 

no room for a judicial determination that it was insufficient to 
8

It is undisputed that Debbie was the person who signed the 

arbitration agreement on behalf of Gary, that she was not his 

conservator or guardian and that she was not acting under a 

power of attorney. (Compare Gordon v. Atria Management Co., 

LCC (2021) 70 Cal.App.5th 1020, 1026–1027; with Garrison v. 

Superior Court (2005) 132 Cal.App.4th 253, 262–265 [adult 

children who had durable power of attorney had authority to 

enter into arbitration agreements on behalf of their mothers].) 

This leaves the question of whether Debbie was otherwise Gary’s 

agent. 

“ ‘[A]n agency relationship may arise by oral consent or by 

implication from the conduct of the parties. [Citation.] However, 

an agency cannot be created by the conduct of the agent alone; 

rather, conduct by the principal is essential to create the 

agency.’ ” (Flores v. Evergreen at San Diego, LLC (2007) 148 

Cal.App.4th 581, 587–588 (Flores) [nonsignatory patient at 

skilled nursing facility was not bound by arbitration agreement 

because her signatory husband was not her agent]; see 

also Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 

298, 301–302 [comatose mother not bound by nursing home 

arbitration agreement signed by daughters because there was no 

evidence mother authorized daughters to act as her agents].)” 

(Lopez, supra, 39 Cal.App.5th at p. 318; see also Golinger v. AMS 

Properties, Inc. (2004) 123 Cal.App.4th 374, 376–377 [daughter 

support a finding.” ’ ” (Valero v. Board of Retirement of Tulare 

County Employees' Assn. (2012) 205 Cal.App.4th 960, 966.)
9

whom the mother allowed to make medical decisions for her did 

not have authority to bind her to arbitration agreement].)

As the trial court recognized, while there was evidence from 

which it could be inferred that Debbie had represented that she 

was Gary’s agent when she signed the arbitration agreement (the 

agreement said as much), there was no evidence from which the 

court could infer that Gary authorized Debbie to act on his 

behalf. Thus, there was no evidence that Gary, who apparently 

was in full possession of his capacities, was bound by the 

arbitration agreement signed by Debbie.

We are again guided by Theresa D., supra, 73 Cal.App.5th 

18, in which the court found the plaintiff, a resident of a 

residential care facility for the elderly who brought claims 

against the facility for elder abuse and neglect, was not bound by 

an arbitration agreement signed by her daughter. The court

assumed that the daughter had the authority to place her mother 

in the facility, but concluded that this authority did not translate 

into authority to enter into an arbitration agreement. (Id. at 

p. 27.)

Windsor cites Bolanos v. Khatarian (1991) 231 Cal.App.3d 

1586, 1591 (Bolanos) for the proposition that one spouse can bind 

the other to arbitration. The situation in that case is completely 

distinguishable from the one before us. There, a wife, husband,

and child all alleged medical malpractice against the obstetrician 

who delivered the child for injuries suffered during the delivery. 

Wife, who was the patient, signed an arbitration agreement that 

purported to cover all claims arising from medical malpractice, 
10

and this was held sufficient to require the arbitration of

husband’s claims for medical malpractice, even though he was a 

nonsignatory to the agreement. Nothing in Bolanos suggests 

that husband, who was not the patient, could have bound the 

wife to arbitrate her own claims had she not personally signed 

the arbitration agreement. (Ibid.) 

Nor is Windsor assisted by Hutcheson v. Eskaton Fountain 

Wood Lodge (2017) 17 Cal.App.5th 937, 941 (Hutcheson), which 

affirmed the denial of a motion to compel arbitration on the 

ground that the decision to admit a resident to a residential care 

facility was a “health care decision” and the relative who signed 

the admission and arbitration agreements had a power of 

attorney that did not include health care decisions. (Id. at 

p. 957.) Hutcheson involved the proper scope of a power of 

attorney, which is not before us, and does not suggest that a 

relative acting without a power of attorney for healthcare 

decisions may bind a resident to arbitration.

Windsor argues that Hutcheson supports its position

because it concludes that an arbitration agreement signed in 

connection with an admission to a convalescent facility is a 

“health care decision,” and spouses are entitled to make “health 

care decisions” on behalf of each other. A similar argument was 

rejected in Theresa D., in which the court noted, “[a]lthough a 

family member may place a person in [a residential care facility 

for the elderly] in appropriate circumstances (22 Cal. Code Regs., 

§ 87101(r)(3)), the governing statutes and regulations say nothing 

about allowing the family member to waive the resident’s legal 
11

right to seek redress through the courts.” (Theresa D., supra, 73

Cal.App.5th at p. 31.)

C. There is No Enforceable Arbitration Agreement as to 

Allison

Windsor argues that Gary’s daughter Allison is bound by 

the arbitration agreement signed by his wife, Debbie, relying 

upon language in that agreement stating that it is applicable to 

Gary’s heirs. Because we conclude Debbie did not have the 

authority to bind Gary to arbitration, there was no agreement to 

arbitrate to be extended to Allison. (Cf. JSM Tuscany, LLC v. 

Superior Court (2011) 193 Cal.App.4th 1222, 1239; Ruiz v. 

Podolsky (2010) 50 Cal.4th 838, 841 [nonsignatories bound by 

extant arbitration agreements; no dispute about signatories’ 

authority to sign agreements].)

D. There is No Enforceable Agreement as to Debbie

Windsor finally argues that the trial court should have 

ordered the case to arbitration on Debbie’s claims. We disagree.

The trial court found that although Debbie had signed the 

arbitration agreement, it could not be enforced against her 

because (1) the agreement was unconscionable in that Debbie 

was “rushed” through the process of signing it and did not have a 

chance to review the documents or knowingly waive her right to a 

jury trial; (2) there was a possibility of conflicting rulings if 

Debbie’s claims were arbitrated because the claims of Gary and 

Allison were not subject to arbitration and presented common 

issues of law and fact; and (3) the arbitration agreement was not 

in the format required by section 1295, which governs a “contract 
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for medical services.” We conclude the court did not abuse its 

discretion in concluding the second factor applies. 

Section 1281.2, subdivision (c) provides that arbitration will 

be ordered when there is an agreement to arbitrate unless “[a] 

party to the arbitration agreement is also a party to a pending 

court action or special proceeding with a third party, arising 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.” Although Windsor argues there was no possibility of

conflicting rulings, it does so on the premise that Gary and 

Allison’s claims are arbitrable, which as we have explained, is 

incorrect. There is no dispute the claims arise out of the same set 

of operative facts as Debbie’s. (See Birl v. Heritage Care, LLC

(2009) 172 Cal.App.4th 1313, 1319–1323 [motion to compel 

arbitration properly denied under § 1281.2, subd. (c) where

hospital and doctors with no arbitration agreement were involved 

in same transaction as nursing home with arbitration 

agreement]; Fitzhugh v. Granada Healthcare & Rehabilitation 

Center, LLC (2007) 150 Cal.App.4th 469, 474 [no abuse of 

discretion in denying arbitration of heirs’ wrongful death claims 

under § 1281, subd. (c) when decedent’s claim for violation of 

Patient’s Bill of Rights was not arbitrable and there was 

possibility of inconsistent rulings].)

Because the trial court’s ruling was correct under section 

1281.2, subdivision (c), we need not consider whether the 

arbitration agreement was unconscionable as to Debbie or 

whether it complied with section 1295. We also note that because 
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Debbie signed the arbitration agreement in her capacity as 

Gary’s representative (a status that has been properly found by

the trial court not to exist), the agreement did not purport to bind 

Debbie in her individual capacity. (See Goldman v. Sunbridge 

Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1176–1177.)

III. DISPOSITION

The judgment (order denying motion to compel arbitration) 

is affirmed. Costs to plaintiffs/respondents.
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NEEDHAM, J.

We concur.

JACKSON, P.J.

BURNS, J.

Naganuma v. Windsor Oakridge Healthcare Center / A162113