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Filed 3/3/15 Benthin v. Emeritus Corp. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

GENEVA BENTHIN et al.,

Plaintiffs and Respondents,

v.

EMERITUS CORPORATION et al.,

Defendants and Appellants.

 A141385

 (Solano County

 Super. Ct. No. FCS038463)

Emeritus Corporation and Emeritus Westwind Gardens appeal from an order 

denying their renewed motion to compel arbitration. Appellants contend the trial court 

abused its discretion because (1) appellants had acted with reasonable diligence in 

obtaining a valid copy of the power of attorney that was needed to establish a binding 

arbitration agreement, (2) equitable estoppel applied, and (3) public policy favors 

arbitration. We conclude the order from which they appeal is a nonappealable order, treat 

the appeal as a writ petition, and deny the petition as meritless. 

I. FACTS AND PROCEDURAL HISTORY

For about two years before her death, Geneva Benthin (Benthin) lived at Emeritus 

at Westwind Gardens, a residential care facility for the elderly that is managed and 

operated by Emeritus Corporation. We refer to Emeritus at Westwind Gardens and 

Emeritus Corporation collectively as “Emeritus.”
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As part of the paperwork for Benthin’s admission to Emeritus in August 2008, 

Benthin’s daughter, Joyce Root (Root), signed a Resident Agreement and checked two 

boxes on the agreement indicating that Root was the responsible party and had power of 

attorney to act on Benthin’s behalf. 

On that same day, Root signed an “Agreement to Resolve Disputes by Binding 

Arbitration” (Arbitration Agreement) as Benthin’s “authorized representative.” As 

relevant here, the Arbitration Agreement required arbitration of claims arising out of 

Emeritus’s provision of services or its acts or omissions that cause injury. 

Root also presented Emeritus with two powers of attorney: a “Uniform Statutory 

Form Power of Attorney” and a “California Advance Health Care Directive Including 

Power of Attorney for Health Care.” The documents were purportedly signed by 

Benthin, but Benthin’s signature was neither notarized nor acknowledged by witnesses. 

A. Respondents’ Lawsuit

Around 5:50 a.m. on September 7, 2010, Benthin fell on Emeritus’s premises and 

suffered terminal injuries. Benthin’s successors-in-interest—respondents Root, Donna 

Morgan, and Elnora Good—sued Emeritus for damages, asserting causes of action for 

elder abuse, fraud, wrongful death, and violation of Health and Safety Code section 

123110. 

B. Emeritus’s Petition to Compel Arbitration

In October 2011, Emeritus filed a petition to compel arbitration of respondents’ 

claims, setting a hearing date for four months later in February 2012. Emeritus based its 

petition on the Resident Agreement, the Arbitration Agreement, and the power of 

attorney forms in its possession. 

Six days after Emeritus filed its petition, Emeritus and respondents stipulated to 

conduct discovery. Respondents agreed that Emeritus’s participation in discovery would 

not waive its right to seek arbitration. 

Respondents opposed Emeritus’s petition, arguing among other things that 

Emeritus had failed to meet its burden of establishing a valid agreement on Benthin’s 
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behalf to arbitrate, because the powers of attorney forms attached to the petition did not 

include a notarization or witness acknowledgment, and therefore did not establish valid 

powers of attorney. 

In reply, Emeritus countered that the Arbitration Agreement was valid and that 

Root in any event had ostensible authority to sign the agreement based on her own 

statements and the power of attorney forms. 

C. Denial of Petition to Compel Arbitration

At the hearing on Emeritus’s petition, Emeritus asserted its belief that there was a 

valid power of attorney somewhere in existence—that is, one that was witnessed or 

notarized—but not all of the pages had been provided to Emeritus when Benthin was 

admitted. The court asked Emeritus’s attorney if she needed time to conduct discovery on 

the issue, and counsel requested that the hearing be continued, “if necessary,” so 

Emeritus could depose Root and have her “produce the durable power of attorney.” The 

court acknowledged that it “would be extremely important to the court to know” whether 

the power of attorney was valid. When asked about Emeritus’s request for additional time 

to conduct discovery, respondents’ attorney stated, “That would be fine,” but claimed 

there were other issues that compelled denial of Emeritus’s petition. The court took the 

matter under submission.1 

By written order filed on February 23, 2012, Emeritus’s petition was denied. The 

court found that Emeritus failed to establish the existence of an arbitration agreement, 

because the power of attorney form was neither notarized nor acknowledged by 

 

1 At the hearing on the petition, the court asked respondents’ attorney, “What do 

you know or not know about the completeness of the Durable Power of Attorney that is 

out there right now?” Respondents’ attorney replied: “What I do know—and there’s two 

issues here, if I may. One is, it’s their burden of proof. It’s—they provided the 

arbitration agreement, along with the admission documents. Those were provided to me 

before they were attached to their petition and did not have a Durable Power of Attorney. 

[¶] Second is I don’t have any outside information that there is a Durable Power of 

Attorney. This argument and this petition, it is all made within the framework of their 

moving papers.” (Italics added.)
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witnesses. (Citing Prob. Code, §§ 4401, 4402, 4121.) The court also rejected Emeritus’s

argument that Root signed the Arbitration Agreement as Benthin’s ostensible agent. 

D. Emeritus’s First Appeal

Emeritus appealed from the court’s denial of the petition to compel arbitration 

(A134748). In May 2013, we filed an unpublished opinion affirming the order. We held 

the trial court did not err in concluding that the powers of attorney were invalid and 

provided no basis for enforcing the Arbitration Agreement, since the copies attached to 

Emeritus’s papers were not notarized or acknowledged by two witnesses. We also held 

that the court did not err in ruling Root was not Benthin’s ostensible agent when she 

signed the Arbitration Agreement. 

In addition, we held that the court did not err in declining to grant the continuance

Emeritus requested orally at the hearing. We explained: “Emeritus was the party that 

had filed the petition to compel arbitration based on an arbitration agreement that, on its 

face, could not be enforced unless the signatory had authority to sign it on Benthin’s 

behalf. Before even filing the motion, therefore, Emeritus should have considered 

whether the powers of attorney it was relying upon were valid—namely, whether they 

were acknowledged by witnesses or notarized. Upon finding that the powers of attorney 

in Emeritus’s own files had no witness signatures or notarization, Emeritus could have 

sought leave to conduct its requested discovery before filing its motion to compel 

arbitration—or at least within the four months between the time it filed its petition and 

the hearing.” 

We then addressed Emeritus’s arguments on this issue, many of which Emeritus 

repeats in this appeal. “Emeritus points out that unilaterally conducting discovery on the 

merits before the hearing might have waived Emeritus’ right to arbitrate. But surely no 

waiver could have been implied if Emeritus had obtained court permission to conduct 

discovery limited to the issue of the validity of the powers of attorney in connection with 

the existence and enforceability of the Arbitration Agreement: obviously if a court can 

continue the hearing to allow a party to engage in such limited discovery (as Emeritus 
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requests), it can also permit such discovery before the hearing without a waiver of

arbitration resulting. It was not an abuse of discretion for the court to deny Emeritus’

request for a continuance on the ground that its delay in seeking discovery was 

unjustified and unreasonable. [¶] . . . [¶] Emeritus also contends there was adequate 

reason to continue the hearing because it sees a good chance that discovery will indeed 

reveal a valid power of attorney. In particular, Emeritus argues, a notary page might well 

exist because Benthin signed the healthcare directive (which included a power of attorney 

for healthcare) under the written instruction to ‘[s]ign the document in the presence of the 

witnesses or the Notary.’ Emeritus also notes that respondents did not submit a 

declaration averring that the powers of attorney were not notarized or acknowledged by 

witnesses. The fact remains, however, that no matter how fruitful Emeritus might think 

the discovery will be, Emeritus had plenty of time to seek it before the hearing on the 

petition. Emeritus has not shown that the trial court was irrational or arbitrary in 

declining to continue the hearing. [Fn. omitted.]” 

We concluded: “In the final analysis, the trial court did not abuse its discretion in 

failing to order a continuance of the hearing to allow Emeritus discovery on the validity 

of the powers of attorney. As respondents’ attorney indicated at the hearing on Emeritus’

petition, the issue before the court was whether the documents Emeritus had presented in 

support of its petition were sufficient to establish a valid power of attorney, not whether 

the powers of attorney were, in fact, notarized or signed by the requisite witnesses and 

thus valid.” 

E. Post-Appeal Discovery Disclosing a Valid Power of Attorney

After we issued our opinion in the prior appeal, Emeritus propounded its initial 

written discovery on respondents. Following a meet and confer process, respondents 

provided discovery responses including, among other things, a uniform statutory form 

power of attorney that was notarized. Root also admitted she held a uniform statutory 

form power of attorney, but she denied holding a valid California advance health care 

directive because it was not duly acknowledged. 
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Emeritus asked respondents to stipulate to arbitration, but received no response. 

F. Emeritus’s Renewed Motion to Compel Arbitration

Emeritus thereafter filed a “Motion for Reconsideration,” citing Code of Civil 

Procedure section 1008, subdivision (b).

2

 Despite the motion’s name, the parties agree it 

was a renewed motion to compel arbitration (§ 1008, subd. (b)), rather than a motion for 

reconsideration of the court’s prior ruling (§ 1008, subd. (a)). 

In its motion, Emeritus asked the court to order the case to arbitration because 

Emeritus had finally received a copy of a power of attorney that included a notarization, 

this valid power of attorney constituted a new fact and circumstance, and Emeritus was 

reasonably diligent in obtaining this discovery.

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 Respondents argued that Emeritus had 

not been diligent, because it could have conducted discovery before the hearing on the 

original petition to compel arbitration. 

G. Denial of Emeritus’s Renewed Motion 

After a hearing, the court denied Emeritus’s renewed motion by written order filed 

on January 22, 2014. The court found: “Defendants [Emeritus] have not established that, 

in the exercise of reasonable diligence, they could not have obtained a copy of the valid 

durable power of attorney before the petition to compel arbitration was adjudicated. As 

the moving party, the burden was on defendants to establish that Joyce Root had a valid 

power of attorney when she signed the arbitration agreement on behalf of Geneva 

Benthin. Had defense counsel exercised reasonable diligence, she would have realized 

prior to receiving plaintiffs’ opposition that the invalid power of attorney on which she 

was relying to support the petition to compel arbitration was not sufficient, and she would 

have taken steps to obtain a valid one. Even after the petition was filed, the parties 

entered into a stipulation to conduct discovery prior to the hearing on the petition. 

(Declaration of Daniel Newman, paragraph 2). Yet defense counsel conducted no 

 

2 All statutory references hereafter are to the Code of Civil Procedure.

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Emeritus also provided a copy of a letter ostensibly authored by Root to Emeritus 

on March 11, 2011, requesting Benthin’s medical records and representing that she 

possessed a power of attorney to act on Benthin’s behalf. 
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discovery to obtain a copy of the valid durable power of attorney from plaintiffs during 

this time.” 

H. Emeritus’s Motion to Recall the Remittitur in This Court

Emeritus next turned to this court and filed a motion asking us to recall the 

remittitur in the first appeal (A134748), contending the decision was brought about by a 

misrepresentation of facts, mistake or inadvertence. We denied the motion.

I. Emeritus’s Current Proceedings in This Court

Claiming uncertainty as to whether an order denying a renewed motion to compel 

arbitration is an appealable order, Emeritus pursued both a petition for writ of mandate in 

this court (A141370) and the instant appeal. We issued an order deferring further action 

on the writ petition pending the appeal’s resolution. 

II. DISCUSSION

Emeritus contends the trial court erred in denying its renewed motion to compel 

arbitration. Respondents disagree and contend the order denying Emeritus’s motion is 

not appealable. We address the last issue first. 

A. Appealability

An order denying an original petition to compel arbitration is immediately 

appealable. (§ 1294, subd. (a).) An order denying a motion for reconsideration of a prior 

ruling under section 1008, subdivision (a), is not appealable. (§ 1008, subd. (g).) The 

parties debate the appealability of an order denying a renewed motion under section 

1008, subdivision (b).

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The only published decision to address the issue held that a renewed motion under 

section 1008, subdivision (b) is not appealable. (Tate v. Wilburn (2010) 184 Cal.App.4th 

 

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Section 1008, subdivision (b) states in part: “A party who originally made an 

application for an order which was refused in whole or in part . . . may make a 

subsequent application for the same order upon new or different facts, circumstances, or 

law, in which case it shall be shown by affidavit what application was made before, when 

and to what judge, what order or decisions were made, and what new or different facts, 

circumstances, or law are claimed to be shown.” 
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150, 152, 156, 159-160 (Tate).) Emeritus urges us not to follow Tate, contending among 

other things that Tate is distinguishable because it dealt with a renewed motion to set 

aside a child support order, while this case involves a renewed motion to compel 

arbitration, which implicates the public policy in favor of arbitration agreements. We 

conclude the order in this case is not appealable.

We further conclude, however, that under the circumstances we should exercise 

our discretion to treat the appeal as a writ petition and reach the merits. (See Tate, supra, 

184 Cal.App.4th at p. 160, fn. 10; Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 

768 [“In the interest of justice and to avoid unnecessary delay, we will treat the appeal as 

a petition for a writ of mandate and proceed on that basis”].) Because we reach the 

merits in this proceeding, we will dismiss the pending writ proceeding (A141370) as 

moot.

B. Denial of Renewed Motion for Lack of Reasonable Diligence

A party filing a renewed motion under section 1008, subdivision (b) must show 

(1) new or different facts, circumstances, or law, and (2) “a satisfactory explanation for 

the previous failure to present the allegedly new or different evidence or legal authority 

offered in the second application.” (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 

368, 383; Thompson v. Superior Court (1972) 26 Cal.App.3d 300, 310.)

In the matter before us, the purported “new” fact was that the power of attorney 

was valid because there was, indeed, a notarization. The issue, therefore, was whether 

Emeritus provided a satisfactory explanation for failing to present the notarized copy in 

connection with its original petition to compel arbitration. (See Garcia v. Hejmadi

(1997) 58 Cal.App.4th 674, 690 [requirement of a satisfactory explanation is synonymous 

with “a strict requirement of diligence”].)

The court did not err in concluding Emeritus could have obtained a valid copy of 

the power of attorney earlier with the exercise of reasonable diligence. The papers in 

Emeritus’s possession, when it filed its initial petition to compel arbitration, did not 

include the notarization or witness acknowledgment necessary for the power of attorney 
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to be valid. From this, Emeritus knew or should have known that the documents it would 

be able to attach to its petition would not suffice to establish a binding arbitration 

agreement. There was no showing that Emeritus could not have obtained a stipulation or 

order of discovery on this limited issue before filing the petition. Furthermore, the parties 

stipulated to conduct discovery six days after the petition was filed, without prejudice to 

Emeritus’s pursuit of arbitration, giving Emeritus about four months before the hearing to 

obtain discovery of the valid power of attorney. Moreover, respondents’ opposition to 

the petition, served about two weeks before the hearing, asserted that the papers attached 

to the petition did not demonstrate a valid power of attorney, leaving Emeritus nearly two 

weeks before the hearing to attempt expedited discovery and cure the defect. Under the 

circumstances, it was not an abuse of discretion to conclude that Emeritus failed to 

exercise reasonable diligence in obtaining a complete copy of a valid power of attorney. 

Emeritus’s arguments to the contrary lack merit. It claims the notarized power of 

attorney could not have been discovered before filing its petition to compel arbitration 

because “Emeritus had no reason to doubt the validity of the powers of attorney.” In 

particular, Emeritus contends Root represented that she held valid powers of attorney to 

act on her mother’s behalf when she obtained Benthin’s admission to Emeritus’s facility, 

checked the box on the Resident Agreement, and requested Benthin’s medical records. 

Furthermore, respondents’ attorney did not contend there was no valid power of attorney 

when asked to stipulate to arbitration.

But Emeritus’s understanding that there was a valid power of attorney did not 

diminish its obvious need to obtain a complete copy of it before seeking to compel 

arbitration, rather than relying on papers that lacked the requisite notarization and were 

insufficient as a matter of law. As we stated in our earlier opinion: “Finally, Emeritus 

argues that it reasonably believed that a notary page existed because Benthin signed the 

health care power of attorney under the instruction, ‘Sign the document in the presence of 

the witnesses or the Notary.’ . . . If Emeritus did indeed look at that language, it would 

have been naturally led to inquire, ‘so where are the witnesses’ signatures or 

notarization’?” 
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On a slightly different tack, Emeritus argues in its reply brief that it had no reason 

to take discovery because it could not have anticipated respondents taking the position

that the powers of attorney were invalid, and when respondents finally did so, there was 

not enough time to conduct discovery. 

Again, we must disagree. In the first place, whether or not Emeritus thought 

plaintiffs would object to the insufficiency of the documents on which Emeritus was 

relying, Emeritus certainly knew or should have known that the documents did not meet 

the requisites of the statute. Moreover, Emeritus became keenly aware of respondents’ 

objection when it received their opposition papers, about two weeks (or, as Emeritus calls 

it, nine court days) before the hearing. At that point, Emeritus still had time to move for 

a continuance of the hearing or an order shortening time for discovery, or even to serve a 

deposition notice. (See § 2025.270, subd. (a) [oral deposition may be scheduled on 10 

calendar days’ notice].) 

Emeritus’s reliance on Film Packages, Inc. v. Brandywine Film Productions, Ltd.

(1987) 193 Cal.App.3d 824 (Film Packages) is accordingly misplaced. There, the Court 

of Appeal held that the trial court did not err in granting the plaintiff’s renewed motion 

for a right to attach order, in light of depositions taken after the previous attachment 

hearings, since the trial court found that the depositions “shed new light on the case.” 

(Id. at p. 829.) The appellate court declined to find that the information uncovered in

these depositions could have been obtained earlier, because there is often no reasonable 

opportunity in attachment proceedings to undertake the meaningful discovery that can 

occur later. (Id. at pp. 829-830.) But Film Packages is distinguishable for two reasons. 

First, the matter before us is not an attachment proceeding; indeed, Emeritus had months 

to conduct discovery before the hearing on its petition to compel. Second, Film Packages
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merely held that the trial court did not err in its ruling; by no means did it hold that a trial 

court would necessarily abuse its discretion if it reached a contrary conclusion.

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Emeritus further contends it did not conduct discovery because it “had concerns 

about waiving its right to compel arbitration.” We rejected this argument in Emeritus’s

prior appeal, when we stated “surely no waiver could have been implied if Emeritus had 

obtained court permission to conduct discovery limited to the issue of the validity of the 

powers of attorney in connection with the existence and enforceability of the Arbitration 

Agreement: obviously if a court can continue the hearing to allow a party to engage in 

such limited discovery (as Emeritus requests), it can also permit such discovery before 

the hearing without a waiver of arbitration resulting.” Moreover, just six days after 

Emeritus’s initial petition was filed, the parties stipulated to conduct discovery and 

plaintiffs agreed that Emeritus’s participation in discovery would not constitute a waiver 

of its right to compel arbitration. 

Lastly, Emeritus argues that respondents should not be allowed to escape their 

agreement to arbitrate based on “the technical argument that the defense has the burden 

of producing a complete copy of the power of attorney with its petition to compel

arbitration, and Emeritus failed to do so.” But the requirement that Emeritus demonstrate 

the existence of a binding arbitration agreement (and therefore, in this case, a valid power 

of attorney) is not a mere technicality; it is what the Legislature has required before a 

court strips a party of its right to trial. (§ 1281.2.) And while the law does not honor 

 

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The other cases on which Emeritus relies are plainly inapposite. In Graham v. 

Hansen (1982) 128 Cal.App.3d 965 (Graham), facts obtained after the denial of an initial 

summary judgment motion were held sufficient to support the granting of a renewed 

summary judgment motion under section 1008, subdivision (b). (Id. at pp. 969-970.) 

However, Graham did not even address the issue here—whether the moving party 

demonstrated sufficient diligence in discovering the new facts. In Hollister v. Benzl 

(1999) 71 Cal.App.4th 582, the trial court had authority to reconsider an order compelling 

arbitration, in light of documents that were produced to plaintiff after the earlier hearing, 

where the plaintiff had requested the documents and made a motion to compel their 

discovery before that hearing. (Id. at pp. 584-585.) Here, Emeritus did not propound any 

discovery, much less make a motion to compel, before the hearing on its petition to 

compel arbitration. 
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form over substance, neither does it require the trial court to turn a blind eye to the 

moving party’s failure to fulfill the relevant statutory requisites.

C. Emeritus’s Equitable Estoppel Argument

Emeritus contends respondents should be equitably estopped from asserting that 

Emeritus failed to exercise reasonable diligence in seeking discovery regarding the 

validity of the powers of attorney. The argument is unavailing.

In the first place, Emeritus did not raise the issue in the trial court. It did not argue 

equitable estoppel in its moving papers or in its reply memorandum in support of its 

renewed motion to compel arbitration; and at the hearing on the motion, Emeritus argued 

judicial estoppel, not equitable estoppel. Emeritus cannot now complain about an issue it 

never asked the trial court to address. (Hepner v. Franchise Tax Bd. (1997) 52 

Cal.App.4th 1475, 1486.)

Second, the argument fails on the merits. To establish equitable estoppel, 

Emeritus had to prove (1) respondents knew the facts; (2) respondents intended their 

conduct to be acted upon, or acted such that Emeritus had a right to believe the conduct 

was so intended; (3) Emeritus was ignorant of the facts; and (4) Emeritus relied upon 

respondents’ conduct to its injury. (See Hopkins v. Kedzierski (2014) 225 Cal.App.4th 

736, 756.)

Emeritus argues that respondents “knew a valid power of attorney existed” and

“represented that a valid power of attorney always existed in this case,” but “Emeritus did 

not know and had no reason to know that the powers of attorney were invalid” and “did 

not realize that the powers of attorney were missing a notary page.” Emeritus further 

contends it “relied upon Root’s representations of authority to its detriment in not 

pursuing discovery on the validity of the powers of attorney before the hearing on the 

motion to compel arbitration.” 

However, the fact that respondents knew a valid power of attorney existed and 

represented that a valid power of attorney existed demonstrates that their representations 

were consistent with the truth. Certainly no estoppel arises on that basis. Emeritus’s
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claim that it “did not know and had no reason to know that the powers of attorney were 

invalid” is confusing, since the powers of attorney were not invalid—it is just that the 

incomplete papers in Emeritus’s possession did not demonstrate their validity. And if 

Emeritus is really claiming that it did not know the papers in its possession failed to 

establish a valid power of attorney, it certainly had reason to know, since the statutory 

prerequisites are clear. For the same reason, Emeritus’s claim that it did not know the 

powers of attorney in its possession were missing a notary page is untenable. (Simmons 

v. Ghaderi (2008) 44 Cal.4th 570, 584-585 [equitable estoppel requires a showing that

the party seeking the estoppel was actually and permissibly ignorant of the truth and 

induced to rely on the other party’s representation or concealment].) 

To the extent Emeritus is asserting an estoppel claim based on respondents’ failure 

to disclose their intent to contest the validity of the powers of attorney, respondents never 

represented they would not contest a petition to compel arbitration that was based on 

papers that failed to establish a binding arbitration agreement. And in fact, respondents 

did contest the petition on this ground, two weeks before the hearing on the petition, 

when there was still time for Emeritus to do something about it.

D. Public Policy

Emeritus urges that the arbitration agreement should be enforced in light of the 

public policy in favor of arbitration under the Federal Arbitration Act and California law. 

However, Emeritus provides no authority that this public policy precludes a trial court 

from denying a renewed motion to compel arbitration where, as here, the party seeking 

arbitration had failed to exercise reasonable diligence in proving the existence of a 

binding arbitration agreement. 

Emeritus fails to establish error.

III. DISPOSITION

The appeal is dismissed. The constructive petition for writ of mandate is denied. 

Appellants shall bear the costs incurred by respondents in this proceeding.
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NEEDHAM, J.

We concur.

SIMONS, Act. P. J.

BRUINIERS, J.