Filed 3/8/24 Hardiman v. Sun Villaidence Opco CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

RENEE HARDIMAN et al.,

Plaintiffs and Respondents,

v.

SUN VILLAIDENCE OPCO, LLC et al.,

Defendants and Appellants.

F085661

(Super. Ct. No. VCU289407)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Tulare County. Bret D. Hillman, 

Judge.

Beach Law Group, Thomas E. Beach and Eligio J. Luevanos for Defendants and 

Appellants.

Robins Cloud, Brian K. Teets, Jr. and Manuel D. Balam for Plaintiffs and 

Respondents.

-ooOoo-

* Before Poochigian, Acting P. J., Franson, J. and Smith, J.
2.

Appellants Sun Villaidence Opco, LLC, Providence Group of California, LLC, 

and Terri Tate (hereinafter collectively referred to as “SVO”), challenge the trial court’s 

denial of their motion to compel arbitration in an action brought in the Tulare County 

Superior Court by the heirs of Charles Hardiman. Following our review of the record 

provided to this court and the relevant legal authorities, we affirm. 

FACTUAL1 AND PROCEDURAL SUMMARY

Charles Hardiman became a resident of a skilled nursing facility operated by SVO 

in June 2020. Hardiman was transferred to that facility from a hospital to obtain care and 

rehabilitation following the amputation of his lower left leg. In addition to a variety of 

other health concerns, Hardiman was already suffering from edema, a condition that 

commonly occurs following an amputation. The FAC alleged the existence of edema 

would prevent Hardiman from being fitted for a prosthetic leg. The FAC further alleged 

neglect in Hardiman’s care while at the facility. 

In July 2020, Hardiman informed his wife during a phone call that he had tested 

positive for COVID-19, before abruptly ending the call. When his wife finally reached a 

nurse at the facility, she was informed Hardiman was transferred to a hospital after 

exhibiting “complications.” While at the hospital, tests revealed Hardiman had likely 

suffered a stroke while a patient at the facility. Hardiman’s family was allegedly never 

officially informed by the facility about his testing positive for COVID-19 or that he had 

suffered a stroke. Hardiman’s heirs later alleged that the lack of appropriate treatment 

provided by the facility contributed to Hardiman’s death in August 2020. 

In August 2021, Hardiman’s heirs sent SVO an intent to sue pursuant to Code of 

Civil Procedure2section 364. An attorney representing SVO appeared to acknowledge 

1 The presentation of facts in this summary is taken from the first amended 

complaint (FAC) that is part of the record on appeal and the trial court’s order on the 

motion to compel arbitration. 

2 All further statutory references are to the Code of Civil Procedure. 
3.

this potential lawsuit in a letter to the Hardiman’s heirs in September 2021. In November 

2021, Hardiman’s heirs filed a complaint alleging wrongful death and elder abuse.3 In 

May 2022, SVO participated in a case management conference and filed a case 

management statement demanding a jury trial, indicating fees for a jury would be posted, 

providing an estimated length for trial, and representing they planned to participate in 

written discovery, depositions, and expert discovery. Thereafter, a demurrer to the 

complaint was sustained in June 2022, resulting in the filing of the FAC in July 2022. A 

motion to strike portions of the FAC was granted in October 2022, subject to a 

requirement the parties meet and confer on the language that would be stricken. 

However, before such an agreement could be reached, SVO filed a motion to compel 

arbitration in December 2022. Attached to the motion to compel was a copy of a 

standard admission agreement and a confidential arbitration agreement, both 

electronically signed by Hardiman on July 14, 2020. 

The trial court denied the motion to compel arbitration on January 10, 2023, and 

adopted its tentative ruling as its final order. A notice appealing this denial of the motion 

to compel arbitration was filed on January 24, 2023. 

DISCUSSION

SVO appeals from the trial court’s order denying its motion to compel arbitration. 

Such orders are directly appealable pursuant to section 1294, subdivision (a). However, 

before addressing this issue we turn to the adequacy of the record that has been provided 

by SVO in this appeal. 

I. The Adequacy of the Record on Appeal

The most fundamental rule of appellate review is that a judgment challenged on 

appeal is presumed correct. (People v. Chubbuck (2019) 43 Cal.App.5th 1, 12.) We, 

3 The original complaint filed in this action is not part of the record on appeal. The 

first pleading we have been provided is the FAC. 
4.

therefore, indulge every presumption to uphold a judgment on appeal. (People v. 

Sullivan (2007) 151 Cal.App.4th 524, 549.) To counter these presumptions, an appellant 

must affirmatively demonstrate an error was made by the trial court, as any uncertainty in 

the record will be resolved against the appellant. (Ibid.) A record of the lower court 

proceedings is required to both support allegations of claimed error, and to facilitate an 

appellate court’s review of those claims. (In re Marriage of Wilcox (2004) 124 

Cal.App.4th 492, 498–499.) Where an appellant fails to supply an adequate record for 

the court’s review, the claim will fail. (People v. Whalen (2013) 56 Cal.4th 1, 85

[disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1].) 

The record provided to this court lacks documents on file with the trial court that 

could have assisted our review of the totality of the circumstances relevant to the issue of 

waiver. We were not provided the original complaint, the moving or opposition papers to 

the demurrer of that original complaint, or the order from the court granting the demurrer 

to the original complaint. These documents could have enlightened this court as to the 

complexity of the issues presented in the earlier demurrer, and the concerns of the trial 

court when ordering language stricken from the FAC. As explained below, the lack of 

this information impacts our analysis of the primary question raised in this appeal, 

specifically, the validity of the trial court’s conclusion that SVO waived its right to 

compel arbitration. 

II. Was the Right to Compel Arbitration Waived?

A. Applicable Law

“A written agreement to submit to arbitration an existing controversy or a 

controversy thereafter arising is valid, enforceable and irrevocable, save upon such 

grounds as exist for the revocation of any contract.” (§ 1281.) However, because 

arbitration agreements are not self executing, a party who intends to pursue arbitration 

must take “ ‘ “active and decided steps to secure that right.” ’ ” (Fleming Distribution 

Company v. Younan (2020) 49 Cal.App.5th 73, 80–81.) While a written agreement to 
5.

arbitrate is generally enforceable, “a petition to compel arbitration will be denied when 

the right has been waived by the proponent’s failure to properly and timely assert it.” 

(Guess?, Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 557, citing §§ 1281, 1281.2, 

subd. (a).)

Both state and federal law express “a strong policy favoring arbitration agreements 

and requires close judicial scrutiny of waiver claims.” (St. Agnes Medical Center v. 

PacifiCare of California (2003) 31 Cal.4th 1187, 1195 (St. Agnes).) Because such 

waivers are not lightly inferred, a “party seeking to establish a waiver bears a heavy 

burden of proof.” (Ibid.) Among the factors a party opposing a motion to compel 

arbitration must establish, and a trial court must consider are:

“ ‘ “(1) whether the [party seeking arbitration has acted in a manner] 

inconsistent with the right to arbitrate; (2) whether ‘the litigation machinery 

has been substantially invoked’ and the parties ‘were well into preparation 

of a lawsuit’ before the party notified the opposing party of an intent to 

arbitrate; (3) whether a party either requested arbitration enforcement close 

to the trial date or delayed for a long period before seeking a stay; 

(4) whether a defendant seeking arbitration filed a counterclaim without 

asking for a stay of the proceedings; (5) ‘whether important intervening 

steps [e.g., taking advantage of judicial discovery procedures not available 

in arbitration] had taken place’; and (6) whether the delay ‘affected, misled, 

or prejudiced’ the opposing party.” ’ ” (St. Agnes, supra, 31 Cal.4th at 

p. 1196.) 

Whether or not a party waived the right to compel arbitration is a factual question 

we review using a substantial evidence standard of review. (Lewis v. Fletcher Jones 

Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 443 (Lewis).) If a trial court’s finding on 

this factual issue is supported by substantial evidence, the appellate court is bound by that 

finding. (Ibid.) It is only when the record before the trial court shows there was no 

waiver as a matter of law, will the appellate court reverse a finding of waiver made by 

the trial court. (Ibid., emphasis added.) “ ‘A waiver of the right to arbitrate may properly 

be implied from any conduct which is inconsistent with the exercise of that right.

[Citation.] Partial or piecemeal litigation of issues in dispute, through pretrial 
6.

procedures, may in many instances justify a finding of waiver ....’ ” (Id. at p. 448.) The 

trial court has an obligation to view the actions taken in litigation as a whole and decide if 

those actions are inconsistent with an intent to arbitrate. (Id. at p. 449.) 

For instance, in Lewis, supra, 205 Cal.App.4th 436, the plaintiff served the 

defendant with a complaint, then days later served several requests for written discovery. 

In response, the defendant filed a motion to strike and demurred to the complaint. The 

plaintiff filed a first amended complaint instead of opposing the motion to strike and 

demurrer. After the defendant demurred to the FAC, the trial court sustained this 

demurrer with leave to amend. When the plaintiff met with the defendant to meet and 

confer on the responses to the discovery that was due, the defendant refused to agree to 

any postponement for a discovery motion before the trial court ruled on yet another 

demurrer. The Lewis court agreed the defendant waived its right to insist on arbitration. 

The trial court noted, “[d]uring this nearly five-month period, [the defendant] litigated the 

merits of Lewis’s claims through multiple demurrers and motions to strike and 

participated in discovery without raising its right to arbitration,” and that “ ‘a party’s 

unreasonable delay in demanding or seeking arbitration, in and of itself, may constitute a 

waiver of a right to arbitrate.’ ” (Id. at p. 446.) 

In another case addressing the issue of waiver, an appellate court stated it was 

proper to consider whether the expenditure of time and money deprived the plaintiff of 

the true benefits of arbitration. (Bower v. Inter-Con Security Systems, Inc. (2014) 232 

Cal.App.4th 1035, 1049.) In Bower, the defendant not only engaged in substantive 

discovery, both responding and propounding, but also engaged in significant settlement 

discussions. (Id. at pp. 1039–1040.) While the decision in Bower was partially decided 

on a finding of prejudice, case law has since concluded that prejudice is not a necessary 

finding that must be made before denying a motion to compel arbitration. Specifically, 

when a contract specifies that the Federal Arbitration Act (FAA) applies, as this one does, 

recent case law has held whether a party has waived the right to arbitrate is a matter of 
7.

federal, not state, law. (Davis v. Shiekh Shoes, LLC (2022) 84 Cal.App.5th 956, 963.) 

The United States Supreme Court recently resolved a conflict among circuit courts 

holding that instead of requiring a showing of prejudice to the party opposing the motion 

to compel, a court should focus on the actions of the party holding the right to compel 

arbitration. (Morgan v. Sundance, Inc. (2022) 596 U.S. 411, 1713.) 

Consistent with these holdings, we will therefore focus on the essential question of 

whether, “ ‘under the totality of the circumstances,’ ” SVO acted inconsistently with the 

right to compel arbitration. (Davis v. Shiekh Shoes, LLC, supra, 84 Cal.App.5th at 

p. 964.) 

B. Analysis

When explaining its decision to deny the motion to compel arbitration, the trial 

court noted:

“[T]here is no answer on file and no listing of arbitration as an 

affirmative defense. Rather, [d]efendants demurred and moved to strike, 

obtained a favorable ruling permitting leave to amend, moved a 

second time to strike and obtained a second favorable ruling narrowing the 

avenue of recovery of attorneys’ fees and punitive damages. Plaintiff 

argues that the value of arbitration has been diminished because 

[d]efendants have litigated the merits of the case outside the arbitration 

forum. To the [c]ourt, [d]efendants have improperly used the [c]ourt ‘as a 

convenient vestibule to the arbitration hall so as to allow a party to create 

his own unique structure combining litigation and arbitration.’ ” 

During the hearing on the motion to compel arbitration, the trial court added on the 

record:

“[A]t the case management conference in May of 2022, I mean, 

there’s one-word reference to arbitration, but you demanded a jury. You 

set the case for a jury trial. And nobody said we’re going to file a motion 

and nobody did file a motion until November.

[¶] ... [¶]

“[I]n the [c]ourt’s analysis, I don’t feel discovery is dispositive. I 

think it’s⸻again, it’s the machinery of litigation. It’s not necessarily 
8.

prejudice. It’s fully participating in the trial. And this is a case that was 

filed in November of 2021. We set it for trial in May of 2022. And now 

we’re three months from trial.[4] And I think that where some of the cases 

refer to extended silence on the issue of arbitration gets us to a totality of 

circumstances that shows waiver.” 

In this case, SVO was aware Hardiman’s heirs intended to file a lawsuit in 

August 2021. The initial complaint was then filed in November 2021, but was not served 

on SVO until March 2022. Again, before responding to the complaint, SVO participated 

in a case management conference and filed a statement in May 2022 indicating an intent 

to request a jury trial and engage in discovery. After filing at least two motions to strike 

portions of the original complaint and the FAC, as well as demurring to both, SVO 

finally filed its motion to compel arbitration in December 2022, approximately 16 

months5 after becoming aware Hardiman’s heirs intended to file a lawsuit. The motion 

was filed while the parties were still engaged in negotiations addressing the language that 

would be stricken from the FAC before a second amended complaint was filed. The 

record lacks clarity on the question of whether Hardiman’s heirs were aware of the 

confidential arbitration agreement or that it was signed by Hardiman electronically, while 

he was a resident at SVO’s facility. Furthermore, while a declaration attached to the 

motion to compel authenticates this arbitration agreement through a person “familiar with 

the process through which residence and service agreements, and arbitration agreements, 

are presented to residents,” there is no declaration from any person who witnessed 

Hardiman review and/or execute an electronic signature on this document.6 

4 The original trial date set for this case was in March 2023. 

5 Our calculation of 16 months is calculated from the period between the intent to 

sue letter sent by Hardiman’s heirs to SVO. The court cites a nine-month period from the 

time the complaint was served to the filing of the motion to compel. 

6

In fact, the signature on the agreements from an employee of the facility bares a 

timestamp earlier than the one appearing when Hardiman signed the documents. 
9.

SVO relies on the fact that in many cases finding waiver, the discovery process 

has been utilized before a motion to compel was filed. However, while discovery is 

certainly part of the litigation process, case law has yet to hold that the use of discovery is 

a necessary factor before a court can find the right to compel arbitration has been waived. 

When reviewing the St. Agnes test, we note the use of discovery is mentioned as an 

example of an “ ‘important intervening step[],’ ” not a necessary intervening step. (See 

St. Agnes, supra, 31 Cal.4th at p. 1196.) 

Based on the record that is before this court, we cannot conclude with confidence 

there was no waiver as a matter of law. (See Lewis, supra, 205 Cal.App.4th at p. 443.) 

Instead, when considering the St. Agnes criteria, sufficient evidence supports the findings 

that SVO’s actions in challenging the complaint and indicating they wanted to pursue a 

trial, were not only inconsistent with the right to arbitrate, but also that SVO substantially 

employed the machinery of litigation. (See St. Agnes, supra, 31 Cal.4th at p. 1196.) 

Rather than pursuing arbitration from the outset, SVO filed two separate responses to two 

different versions of the complaint which apparently narrowed the potential of recovering 

attorneys’ fees and punitive damages and diminished the value of arbitration for the 

Hardiman heirs. In addition, relevant to the third criteria listed in the St. Agnes test, by 

waiting until December 2022 to file the motion to compel, SVO actually filed the motion 

just three months before the scheduled trial date. (Ibid.) 

Because we are bound by the substantial evidence test here, we cannot draw 

inferences based on “mere speculation or conjecture,” but only from evidence that is 

“ ‘reasonable ..., credible, and of solid value.’ ” (Kuhn v. Department of General 

Services (1994) 22 Cal.App.4th 1627, 1633.) The trial court in this case considered the 

totality of the circumstances then stated, “the value of arbitration has been diminished 

because [d]efendants have litigated the merits of the case outside the arbitration forum.” 

Based on the evidence in the record before us, we are unable to reject this conclusion by 
10.

the trial court and cannot infer there was no waiver of the right to arbitration as a matter 

of law. 

DISPOSITION

The order denying the motion to compel arbitration is affirmed. Respondents are 

awarded their costs on appeal.