Filed 11/29/22 Thomas v. Overland Terrace Healthcare etc. CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

CARLISE THOMAS,

Plaintiff and Respondent,

v.

OVERLAND TERRACE 

HEALTHCARE & WELLNESS 

CENTRE LP, et al.,

Defendants and Appellants.

 B310868, B312568

 (Los Angeles County

 Super. Ct. No. 20STCV37010)

APPEALS from orders of the Superior Court of Los Angeles 

County, Terry A. Green, Judge. Affirmed.

Zarmi Law and David Zarmi for Defendants and 

Appellants.

Garcia & Artigliere, Stephen M. Garcia, William M. 

Artigliere and David M. Medby for Plaintiff and Respondent.

_________________________
2

INTRODUCTION

Overland Terrace Healthcare & Wellness Centre, LP 

(Overland Terrace), Rockport Administrative Services, LLC 

(Rockport) and Schlomo Rechnitz (collectively, appellants) appeal 

from orders denying their petitions to compel arbitration of the 

civil action filed by William Thomas, through his sister Carlise 

Thomas (Carlise1) as his “attorney in fact,” against Overland 

Terrace, Rockport and Rechnitz. Thomas opposed the petitions 

on multiple grounds, including that he did not have the mental 

capacity to enter the arbitration agreements. The trial court 

properly ruled that the parties could not contractually delegate2

the issue of Thomas’s capacity defense to the arbitrator, and its 

finding that Thomas lacked capacity to enter the arbitration 

agreement is supported by substantial evidence. We therefore 

affirm.

1 To avoid confusion, we will refer to plaintiff William 

Thomas as “Thomas” and to his sister Carlise Thomas by her first 

name only. No disrespect to Ms. Thomas is intended.

2 The term “delegate” is derived from what is sometimes 

referred to as a “delegation provision,” which has been described 

as “an agreement to arbitrate threshold issues concerning the 

arbitration agreement . . . such as whether the parties have 

agreed to arbitrate or whether their agreement covers a 

particular controversy.” (Rent-A-Center, West, Inc. v. Jackson

(2010) 561 U.S. 63, 68-69 [130 S.Ct. 2772, 177 L.Ed.2d 403].) In 

this context, “delegate” means the parties have agreed to have 

such threshold issues decided by the arbitrator instead of the 

court.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. Thomas Is Admitted to Country Villa

Thomas was admitted to a 24-hour skilled nursing facility 

known as Country Villa South Convalescent Center (Country 

Villa) on August 1, 2020. Overland Terrace operates Country 

Villa; Rechnitz is allegedly the sole owner of Overland Terrace. 

Rockport allegedly operates Overland Terrace and is also owned 

by Rechnitz.

At the time Thomas was admitted to Country Villa, he was 

56 years old. Thomas’s sister, Carlise, who was not present when 

Thomas was transferred to Country Villa, informed Country Villa 

staff that she had a medical power of attorney for Thomas and 

that he “was unable to sign documents for himself and suffered 

from mental retardation.”

B. The Arbitration Agreement

The record contains a document bearing the title 

“arbitration agreement,” dated August 4, 2020, between “Country 

Villa South” (designated as the “Facility”) and “Thomas, William” 

(designated as the “Resident”). “WT” is written on the signature 

block for the Resident, on pages 4 and 5 of the agreement. It is 

unclear whether this is purportedly Thomas’s full signature, or 

only his initials. The agreement contains a form to be filled out 

by a witness when a Resident uses a mark instead of a signature, 

but that form is blank. A declaration signed by Aurea 

Hernandez, the Director of Admissions at Country Villa, states 

that she signed the arbitration agreement on behalf of the facility 

and that the agreement was in Thomas’s file at Country Villa; 

the declaration does not state that Thomas signed the agreement, 

describe the circumstances under which Hernandez executed the 
4

agreement, or state that Hernandez recalled executing the 

agreement.3

Appellants do not contend that Carlise, who held a medical 

power of attorney, agreed to the arbitration agreement on behalf 

of Thomas, or that the arbitration agreement was ever presented 

to her. While they assert that Carlise “gave Country Villa 

consent to treat [Thomas] ‘over the telephone’ ” there is no 

contention that she ever agreed on his behalf to the arbitration 

agreement, which by its terms provides that it is “Not Part of 

Admission Agreement” and “Residents shall not be required to 

sign this arbitration agreement as a condition of admission to 

this facility.” Thus, Carlise’s oral consent to treatment cannot be 

considered assent to the terms of the arbitration agreement.

The arbitration agreement is not part of any other 

agreement, such as the admission agreement. It includes two 

primary arbitration provisions. The first requires arbitration of 

“any and all disputes or claims as to medical malpractice (that is, 

whether any medical services rendered during the Resident’s 

3 The petition filed by Overland Terrace and Rockport 

indicated that Hernandez’s declaration was being submitted in 

support, but the declaration itself is not included in the copy of 

the petition contained in the appellate record. However, it 

appears that the declaration was included with the petition filed 

in the trial court, as it is referenced in Thomas’s opposition to the 

petition. A copy of the declaration is included in the record as 

part of a petition to compel arbitration filed by Rechnitz, who 

filed a separate petition because he did not appear in the case 

until after the court had ruled on the petition filed by Overland 

Terrace and Rockport. The date of the declaration is consistent 

with the petition filed by Overland Terrace and Rockport, so it is 

apparently the same declaration.
5

admission were unnecessary or unauthorized or were improperly, 

negligently or incompetently rendered or not rendered).” The 

second requires arbitration of “any and all disputes, 

controversies, demands or claims that relate or arise out of the 

provision of services or health care or any failure to provide 

services or health care by Facility, the admission agreement 

and/or this Agreement, the validity, interpretation, construction, 

performance and enforcement thereof, including, without 

limitation, claims that allege: medical malpractice; breach of 

contract; unpaid nursing home charges; fraud; deceptive trade 

practices; misrepresentation; negligence; gross negligence; Health

and Safety Code section 1430 claims; violations of the Elder 

Abuse and Dependent Adult Civil Protection Act, the Unfair 

Competition Act, the Consumer Legal Remedies Act; and/or any 

right granted to Resident by law or by the admission agreement.”

In addition, in the “Recitals” section, the agreement 

provides: “The arbitrator, and not any federal, state, or local 

court or agency, shall have the exclusive authority to resolve any 

Dispute relating to the interpretation, applicability, 

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

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

or voidable.”

The arbitration agreement states in two places that 

agreeing to arbitration is not a condition of admission to the 

facility.
6

C. Thomas Is Hospitalized After Having Seizures and 

Then Sues Overland Terrace, Rockport and Rechnitz

On August 14, 2020, Thomas suffered seizures at Country 

Villa and was taken to the hospital.4

On September 28, 2020, Thomas, acting through his sister 

Carlise as an “attorney in fact,” sued Rechnitz, Overland Terrace 

and Rockport for dependent adult abuse (Welf. & Inst. Code, 

§ 15600 et seq.) and negligent hiring and supervision.5 The 

complaint alleges that Thomas “suffered from high functioning 

Intellectual Disability since birth” (fn. omitted) and had been 

diagnosed with a seizure disorder, diabetes, congestive heart 

failure, and stage III kidney failure. It further alleges that staff 

at Country Villa failed to administer Thomas’s seizure 

medication, which resulted in Thomas suffering four seizures on 

August 14, 2020; Thomas was taken to the hospital where he was 

placed on a ventilator and was unresponsive.

On October 5, 2020, Thomas filed a motion for a preference 

in trial setting pursuant to Code of Civil Procedure section 36, 

subdivision (d).

6

4 On September 22, 2021, Thomas’s attorneys filed a notice 

in this court that Thomas had recently died. We granted 

Carlise’s subsequent motion to be substituted as respondent in 

place of her brother. Carlise’s declaration in support of this 

motion, and the attached death certificate, indicated that Thomas

died on September 17, 2021.

5 Thomas also named Overland Terrace Wellness GP, LLC 

as a defendant, but later dismissed that entity from the suit.

6 Code of Civil Procedure section 36, subdivision (d) 

provides that a trial court has discretion to grant a trial 
7

D. Overland Terrace and Rockport File a Petition to 

Compel Arbitration

On November 2, 2020, Overland Terrace and Rockport7

filed a motion to compel arbitration. Overland Terrace and 

Rockport argued that the Federal Arbitration Act (FAA; 9 U.S.C. 

§ 1 et seq.) applied because Country Villa participates in the 

Medicare program and therefore its services affect interstate 

commerce. In support of this argument, Overland Terrace and 

Rockport noted that the arbitration agreement states that “ ‘[t]he 

Facility, among other things, participates in the Medicare and/or 

Medi-Cal programs and/or procures supplies from out-of-state 

vendors,’ ” and that it “ ‘shall be construed and enforced in 

accordance with and governed by the [FAA] and the procedures 

set forth in the [FAA] shall govern any petition to compel 

arbitration.’ ”

Overland Terrace and Rockport argued that Thomas’s 

causes of action fell within the scope of the arbitration 

agreement.

Thomas filed an opposition to the motion. The opposition

argued that Thomas lacked mental capacity to sign the 

arbitration agreement. The argument relied on medical records 

from Country Villa, including the following: (1) a “Cognitive 

Loss” care plan for Thomas, apparently created on August 1,

preference if it “concludes that one of the parties suffers from an 

illness or condition raising substantial medical doubt of survival 

of that party beyond six months,” and a trial preference serves 

the interests of justice.

7 At that time, Rechnitz had not appeared in the case and 

had not yet been served with the summons and complaint.
8

2020, which stated as a “Problem/Need” that Thomas had 

“[a]ltered through process related to: . . . Periods of confusion[;] 

Periods of disorientation[;] [and] Periods of forgetfulness,” was 

“[u]nable to make decision[s]” and had “[p]oor judgment”; (2) a 

“Consent to Treatment” form dated August 1, 2020, which 

indicated that Thomas was “unable to sign” and that “verbal 

consent” had been obtained from Thomas’s sister, Carlise; (3) an

August 2, 2020, evaluation by a doctor at Country Villa in which 

the doctor checked a box indicating that “[t]his resident . . . does 

NOT have the capacity to understand and make decisions”;

8 (4) a 

nursing note dated August 2, 2020, which stated “client is unable 

to sign & make decisions for himself due to cognitive status[.] 

[C]lient experiences mental retardation[.] Called power of 

attorney Charlise Thomas and explained the pts plan of care and 

current status”; and (5) other forms indicating that Carlise’s

consent to treat Thomas had been obtained in lieu of Thomas’s 

signature.

In a declaration submitted in support of the opposition, 

Carlise stated that, on September 1, 2010, Thomas had executed 

a power of attorney designating her “as his health care agent 

should he be unable to make his own healthcare decisions,” and 

Thomas had not revoked the document.

9 She further stated that 

8 The form had two other options: “[t]his resident . . . has 

the capacity to understand and make decisions,” and “[t]his 

resident . . . can make needs known but can not make medical 

decisions.”

9 The power of attorney document, which was attached to 

Carlise’s declaration, states in relevant part that Thomas 

appointed Carlise “[a]s my agent to make any and all health care
9

she had informed staff at Country Villa that Thomas “was unable 

to sign documents for himself and suffered from mental 

retardation” and that, as a result, Country Villa staff contacted

her by telephone to obtain her consent “for various issues that 

arose related to his admission at the facility.” With respect to the 

arbitration agreement, Carlise stated in her declaration, “Due to 

my brother’s cognitive deficit and mental retardation, it would 

have been impossible for my brother at that time to have 

understood what an arbitration agreement was or what he was 

signing. As his power of attorney for healthcare matters, I was at 

that time, and had been for many years prior, the person who 

was responsible for making decisions on his behalf regarding 

health care matters, including whether my brother would have 

wanted to enter into an arbitration agreement whereby he would 

be waiving his constitutionally protected right to a jury trial.”

The opposition also argued that there was no evidence that 

the apparent initials “WT” on the arbitration agreement were 

placed there by Thomas and, as a result, Overland Terrace and 

Rockport had failed to carry their burden of showing the 

existence of an arbitration agreement.

Finally, the opposition argued that the arbitration 

provision was unconscionable as a result of evidence, from other 

arbitrations, that Rechnitz, Overland Terrace and Rockport 

would seek to bar discovery in the arbitration proceeding.

Overland Terrace and Rockport filed a reply brief. They 

first argued that the arbitration agreement contains a delegation 

decisions for me, except to the extent I state otherwise in this 

document. This Medical Power of Attorney takes effect if I 

become unable to make my own health care decisions and my 

physician certifies this fact in writing.”
10

provision which requires any disputes regarding the formation of 

the arbitration agreement itself to be decided by the arbitrator. 

They also argued that Thomas’s apparent capacity to enter the 

power of attorney agreement showed he had capacity to contract, 

and there was no admissible evidence Thomas lacked capacity to 

contract on the day the arbitration agreement was executed. 

They further argued that Thomas’s claim he lacked capacity to 

contract was contradicted by the contention, made by Thomas’s 

counsel in their reply brief in support of the motion for trial 

preference, that Thomas “has capacity and is able to 

communicate just not verbally. In fact [Thomas] executed the 

declaration in support of Plaintiff’s Opposition to the Petition to 

Compel Arbitration himself.”10 Overland Terrace and Rockport 

submitted several medical records which they claimed showed 

Thomas was alert and oriented on days before, on and after the 

date the arbitration agreement was signed, and one medical 

record he signed in January of 2019.

Relying on Probate Code section 811, subdivision (d), 

Overland Terrace and Rockport argued that “the mere diagnosis 

of a mental or physical disorder is not sufficient to determine a 

person is of unsound mind. [Thomas] has not attached an expert 

declaration to decipher and opine on the medical records, or the 

impact of or diagnosis provided to [Thomas].”

Finally, Overland Terrace and Rockport argued that the 

arbitration agreement was not procedurally unconscionable 

because it was clear from the agreement’s language that 

10 There is no declaration by Thomas in the record, and the 

opposition to the petition to compel arbitration does not indicate 

that any declaration from Thomas was submitted in support.
11

residents were not required to sign it, and it was not 

substantively unconscionable because it did not state that 

discovery was not allowed in the arbitration proceeding.

E. Proceedings in the Superior Court

The court held a hearing on the petition to compel 

arbitration and the motion for trial preference on December 7, 

2020, at which it ordered Thomas to obtain a supplemental

declaration from his medical expert, Shahab Attarchi, M.D., to 

include the foundation for Dr. Attarchi’s summary of Thomas’s 

medical history. Dr. Attarchi prepared a supplemental 

declaration which was submitted on January 4, 2021.

On January 6, 2021, the court continued the hearing on the 

motions to January 28, 2021, and invited the parties to file 

supplemental briefs on the issue whether a party’s capacity to 

contract can be contractually delegated to an arbitrator.

Overland Terrace and Rockport filed a supplemental brief, 

in which they argued that the arbitration agreement “clearly and 

unmistakably” delegates to the arbitrator issues regarding the 

formation of the agreement itself, and that such formation issues, 

including a claim of lack of capacity, can legally be delegated to 

an arbitrator. Thomas filed a supplemental brief which argued 

that a claim that an arbitration agreement was never formed 

must be decided by the court, and cannot be delegated to an 

arbitrator.

On January 28, 2021, the court held a hearing on Overland 

Terrace’s and Rockport’s petition to compel arbitration and 

Thomas’s motion for a trial preference. The next day, the court 

issued a written ruling denying both the petition and the motion 

for a preference in trial setting.
12

With respect to the petition to compel arbitration, the court 

first addressed whether the parties could delegate to the 

arbitrator the two defenses Thomas was raising, namely, that he 

lacked capacity to enter the arbitration agreement and that the 

agreement was unconscionable. Relying on Tiri v. Lucky 

Chances, Inc. (2014) 226 Cal.App.4th 231, 242, the court 

concluded that the question whether the arbitration agreement 

was unconscionable could be delegated to an arbitrator.

However, the court concluded that the issue whether a party had 

capacity to enter the arbitration agreement could not be 

delegated to an arbitrator because “the issue of capacity goes to 

the existence of mutual assent.”

The court then concluded that Thomas lacked capacity to 

enter the arbitration agreement, so the agreement was “VOID”

(or there was no agreement formed). It first noted the lack of 

evidence regarding the circumstances under which Thomas 

supposedly signed the agreement, and the lack of an “official 

assessment of capacity from that date.” It then summarized the 

medical records submitted by Overland Terrace and Rockport as 

suggesting that Thomas was “alert and responsive” on days 

before and after August 4, and the records submitted by Thomas

as showing he was “confused and unable to make decisions” 

during that time. The court found “salient” the declaration of 

Thomas’s sister, Carlise, wherein she stated that Thomas had 

made her his agent for health care purposes, she informed the 

staff at Country Villa of this and they referred decisions to her, 

including consent for admission and treatment, approval of the 

care plan and authorization for life-support, if necessary. Based 

on this evidence, the court stated, “it appears that [d]efendants

[Overland Terrace and Rockport] themselves acknowledged 
13

[Thomas’s] lack of capacity in August of 2020. If he had capacity, 

the facility would not have referred his decisions to his power of 

attorney.” The court also stated, “[t]he record before the court 

contains one formal evaluation of capacity performed by a 

physician on August 2, 2020. That evaluation indicates that 

[Thomas] lacked capacity. . . . The conclusion of [d]efendants’ 

own physician, on the spot, is persuasive here.”11

The court rejected the arguments made by Overland 

Terrace and Rockport that Thomas took inconsistent positions 

regarding his competence by claiming he had capacity to execute 

the power of attorney form and claiming he had capacity to 

proceed in his lawsuit.

As to Thomas’s motion for a trial preference, the court 

concluded that there was not clear and convincing evidence that 

Thomas was likely to die within six months. The court found 

that both sides’ experts were credible and both made good points, 

so the issue was a close one. Thomas’s expert opined that 

Thomas was likely to die within six months based on Thomas’s 

numerous health problems, while the defense expert opined that 

Thomas could survive based on the fact he had survived for years 

with many of the same health problems. The court further 

concluded that, even if Thomas was not likely to survive six 

months, a preference in trial setting would not serve the interests 

of justice because Thomas would not be able to play a meaningful 

role in the litigation because of his medical and mental condition. 

11 Earlier in its decision, the court had stated that the 

“competing evaluations” of Thomas submitted by the parties “are 

not terribly helpful in the analysis here.” However, the court was 

apparently not referring to the August 2, 2020, evaluation by the 

Country Villa physician, which it did find persuasive.
14

As the court explained, “[Thomas] himself will not be assisting 

his counsel in preparing the case. Given his mental disability, it 

is not clear that he could have done so on an ordinary day. But 

according to his own complaint, he currently lies unresponsive in 

the hospital.” The court also addressed the argument made by 

Thomas’s counsel that, if Thomas died, the burden of proof on his 

causes of action would be different and his potential recovery 

would be less. The court acknowledged that Thomas’s potential 

damages would be less, although it disagreed that the burden of 

proof would be different, but in any event concluded that the 

interests of justice did not compel a preference in trial setting due 

to the difficulty Overland Terrace and Rockport would face in 

having to prepare for a trial in such a short time period.

On February 17, 2021, Overland Terrace and Rockport filed 

a notice of appeal of the court’s denial of their petition.

F. Rechnitz Appears in the Action and Files a Petition 

to Compel Arbitration

Rechnitz was served with the summons and complaint after 

the trial court denied the petition to compel arbitration filed by 

Overland Terrace and Rockport. Rechnitz then filed his own 

petition to compel arbitration, which relied on the same 

arguments and evidence as the prior petition. Thomas opposed 

Rechnitz’s petition on the same grounds he had opposed the 

earlier petition. On April 21, 2021, the trial court denied 

Rechnitz’s petition, incorporating its written ruling on Overland 

Terrace’s and Rockport’s petition. On April 30, 2021, Rechnitz 

filed a notice of appeal from the trial court’s denial of his petition.

Overland Terrace, Rockport and Rechnitz filed a motion in 

this court to consolidate Rechnitz’s appeal (No. B312568) with the 

appeal filed by Overland Terrace and Rockport (No. B310868). 
15

We granted the motion, consolidating the two appeals for the 

purposes of the record on appeal, briefing, oral argument, and 

decision.

We affirm the trial court’s rulings denying both petitions to 

compel arbitration. The trial court properly considered the issue 

of whether Thomas had capacity to enter the arbitration 

agreement, and its finding that Thomas in fact did not have 

capacity to enter the agreement is supported by substantial 

evidence and was not an abuse of discretion.

DISCUSSION

Appellants challenge the court’s ruling that the court, and 

not the arbitrator, should decide Thomas’s claim he lacked 

capacity to enter the arbitration agreement, and they also 

challenge the court’s conclusion Thomas lacked capacity.

12

A. Standard of Review

In deciding a petition to compel arbitration, “the trial court 

sits as a trier of fact, weighing all the affidavits, declarations, and 

other documentary evidence, as well as oral testimony received at 

the court’s discretion, to reach a final determination.” (Engalla v. 

Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)

“If the superior court’s decision regarding arbitrability is 

based on resolution of disputed facts, we review the decision for 

12 Appellants do not contend that Carlise agreed on 

Thomas’s behalf to the arbitration agreement. Thus, we do not 

need to decide if Carlise’s status as a holder of a power of 

attorney for medical decisions would have given her the authority 

to bind Thomas to an arbitration provision or whether, if she had 

such authority, it could have been exercised orally and be binding 

on Thomas without her signature on the arbitration agreement.
16

substantial evidence.” (Baker v. Italian Maple Holdings, LLC 

(2017) 13 Cal.App.5th 1152, 1158, citing Engineers & Architects 

Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 

644, 653.) In such a case the appellate court “ ‘must accept the 

trial court’s resolution of disputed facts when supported by 

substantial evidence; [the appellate court] must presume the 

court found every fact and drew every permissible inference 

necessary to support its judgment, and defer to its determination 

of credibility of the witnesses and the weight of the evidence. 

[Citation.]’ [Citation.]” (Engineers & Architects Assn., supra, at 

p. 653.) However, “ ‘where the trial court’s denial of a petition to 

arbitrate presents a pure question of law, we review the order de 

novo.’ ” (Mendez v. Mid-Wilshire Health Care Center (2013) 220 

Cal.App.4th 534, 541.)

Here, the trial court’s decision rested on a legal conclusion 

and a factual determination. The legal conclusion was that the 

parties could not delegate to the arbitrator the issue of whether 

Thomas had capacity to enter into the arbitration agreement in 

the first place. The factual determination was that Thomas did 

not have capacity to enter into the arbitration agreement. 

Therefore, we review the legal issue de novo and the factual issue 

under the substantial evidence standard.

B. The Trial Court Properly Decided That It Should 

Rule on Thomas’s Claim He Lacked Capacity to 

Enter the Arbitration Agreement

It is unclear whether appellants claim the FAA or the 

California Arbitration Act (CAA) applies. Neither party provides

any specific arguments or authority on this point, and they cite to 

cases applying both the CAA and FAA.
17

The FAA applies to contracts “evidencing a transaction 

involving commerce.” (9 U.S.C. § 2.) “Commerce” refers to 

interstate commerce. (Tiri v. Lucky Chances, Inc., supra, 226 

Cal.App.4th at p. 239 [FAA “governs only arbitration agreements 

that are part of written contracts affecting interstate 

commerce”].) At the trial court level, appellants argued that the 

arbitration agreement at issue here involves interstate commerce 

because Country Villa participates in the Medicare program, the 

agreement acknowledges this fact, and the agreement provides 

“[t]his agreement shall be construed and enforced in accordance 

with and governed by the Federal Arbitration Act and the 

procedures set forth in the (FAA) shall govern any petition to 

compel arbitration.”

We need not decide whether the FAA or the CAA applies 

because the analysis and result are the same under both statutes. 

Under both statutes, the court is to decide whether there are 

grounds for rescission of the arbitration agreement. Specifically, 

under the CAA, “the court shall order the petitioner and the 

respondent to arbitrate the controversy if it determines that an 

agreement to arbitrate the controversy exists, unless it 

determines that: [¶] . . . [¶] . . . Grounds exist for rescission of the 

agreement.” (Code Civ. Proc., § 1281.2, subd. (b); see Engalla v. 

Permanente Medical Group, Inc., supra, 15 Cal.4th at p. 973 [“We 

construe [§] 1281.2, [subd.] (b), to mean that the petition to 

compel arbitration is not to be granted when there are grounds 

for rescinding the agreement”].) The FAA provides, in relevant 

part, “[a] written provision in . . . a contract evidencing a 

transaction involving commerce to settle by arbitration a 

controversy thereafter arising out of such contract or transaction, 

or the refusal to perform the whole or any part thereof . . . shall 
18

be valid, irrevocable, and enforceable, save upon such grounds as 

exist at law or in equity for the revocation of any contract . . . .”

(9 U.S.C. § 2; see Rent-A-Center, West, Inc. v. Jackson, supra, 561 

U.S. at p. 70 [an arbitration agreement “is valid under § 2 [of the 

FAA] ‘save upon such grounds as exist at law or in equity for the 

revocation of any contract’ ”].) The California Supreme Court has 

noted that the difference between these state and federal 

provisions is “inconsequential.” (Ericksen, Arbuthnot, McCarthy, 

Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 

322.)

Under both statutes, the focus is on the arbitration 

agreement itself, and not on any broader agreement between the 

parties that contains the arbitration agreement. (Ericksen, 

Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street, 

supra, 35 Cal.3d at p. 322 [consistent with the FAA, under the 

CAA “the term ‘agreement’ may properly be construed to refer to 

the agreement to arbitrate, as distinguished from the overall 

contract in which that agreement is contained”]; see Buckeye 

Check Cashing, Inc. v. Cardegna (2006) 546 U.S. 440, 445 [126 

S.Ct. 1204, 163 L.Ed.2d 1038] [“as a matter of substantive federal 

arbitration law, an arbitration provision is severable from the 

remainder of the contract”].) In this case, the specific agreement 

at issue is a so-called “delegation provision,” which is a clause in 

the arbitration agreement that provides for the arbitrator to 

decide whether the arbitration agreement as a whole is valid and 

enforceable.13 “The delegation provision is an agreement to 

13 This delegation provision, which is included in the 

“Recitals” section, states that the arbitrator has “exclusive 

authority” to resolve disputes relating to “enforceability” and 
19

arbitrate threshold issues concerning the arbitration agreement. 

We have recognized that parties can agree to arbitrate ‘gateway’

questions of ‘arbitrability,’ such as whether the parties have 

agreed to arbitrate or whether their agreement covers a 

particular controversy.” (Rent-A-Center, West, Inc. v. Jackson,

supra, 561 U.S. at pp. 68-69.) The delegation provision “is valid 

under § 2 [of the FAA] ‘save upon such grounds as exist at law or 

in equity for the revocation of any contract.’ ” (Id. at p. 70.) This 

same analysis applies under the CAA. (Tiri v. Lucky Chances, 

Inc., supra, 226 Cal.App.4th at pp. 240-241.) As a result, in 

considering this “gateway” question, the applicability of the FAA 

is not at issue as the outcome remains the same. (Id. at p. 239.)

In addition, under both the CAA and the FAA, a claim that 

challenges the formation of the contract that contains the 

arbitration agreement at issue must be decided by the court, and 

cannot be delegated to the arbitrator. (Rosenthal v. Great 

Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 402, 406, fn. 

omitted [under both the FAA and CAA “the court may deny the 

application [to compel arbitration] if it finds the party resisting 

arbitration did not in fact agree to arbitrate”] (Rosenthal).) In 

Rosenthal, several plaintiffs opposed the defendants’ petition to 

“formation” of the arbitration agreement, among other issues. 

One of the primary arbitration provisions also arguably contains 

a delegation provision, in that it requires arbitration of “any and 

all disputes, controversies, demands or claims that relate or arise 

out of . . . this [a]greement, the validity, interpretation, 

construction, performance and enforcement thereof.” This clause 

commingles the issue of arbitration of “the validity, 

interpretation, construction, performance and enforcement” of the 

arbitration agreement with other issues that must be arbitrated.
20

compel arbitration on the ground that the arbitration provisions 

they had agreed to were void for fraud in their execution. The 

defendants argued that the fraud claims were arbitrable under 

Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967) 388 U.S. 

395 [87 S.Ct. 1801, 18 L.Ed.2d 1270] (Prima Paint). In Prima 

Paint, the court held “if the claim is fraud in the inducement of 

the arbitration clause itself—an issue which goes to the ‘making’ 

of the agreement to arbitrate—the federal court may proceed to 

adjudicate it. But the statutory language does not permit the 

federal court to consider claims of fraud in the inducement of the 

contract generally.” (Id. at pp. 403-404, fn. omitted.) Based on 

Prima Paint, the defendants in Rosenthal argued that a 

challenge to the formation of the parties’ agreement was 

arbitrable unless it constituted “an ‘independent’ or ‘separate and 

distinct’ challenge to the arbitration clause itself.” (Rosenthal, 

supra, at p. 415.) The court rejected this argument, concluding

that “claims of fraud in the execution of the entire agreement are 

not arbitrable under either state or federal law. If the entire 

contract is void ab initio because of fraud, the parties have not 

agreed to arbitrate any controversy; under that circumstance, 

Prima Paint does not require a court to order arbitration.” (Id. at 

p. 416.)

As the court explained, “The central rationale of the high 

court’s decision in Prima Paint was that arbitration clauses must, 

under federal law established in the [FAA], be viewed as 

‘ “separable” ’ from other portions of a contract (Prima Paint, 

supra, 388 U.S. at p. 402 . . .); hence, fraud in the inducement 

relating to other contractual terms does not render the 

arbitration agreement unenforceable, even when it might justify 

rescission of the contract as a whole. By entering into the 
21

arbitration agreement, the parties established their intent that 

disputes coming within the agreement’s scope be determined by 

an arbitrator rather than a court; this contractual intent must be 

respected even with regard to claims of fraud in the inducement 

of the contract generally. [¶] Where, however, a party’s apparent 

assent to a written contract is negated by fraud in the inception, 

there is simply no arbitration agreement to be enforced.” 

(Rosenthal, supra, 14 Cal.4th at p. 416.)

Rosenthal applies to Thomas’s claim he lacked capacity to 

enter the arbitration agreement because Thomas challenges the 

very formation of the arbitration agreement; although he does not 

specifically challenge the delegation provision, if he lacked 

capacity to enter the arbitration agreement then he could not 

have agreed to the delegation provision.14 Notably, in Rosenthal 

one of the plaintiffs asserted a lack-of-capacity defense. The 

daughter and guardian ad litem of that plaintiff submitted a 

declaration stating that the plaintiff suffered from “ ‘severe 

memory loss, diminished understanding and [was] incapable of 

understanding complicated monetary transactions.’ ” (Rosenthal, 

supra, 14 Cal.4th at p. 430.) The court concluded that the 

“declaration, if believed, raise[d] a factual issue as to [the 

plaintiff’s] capacity to contract; if extreme enough, her mental 

deficiency could render void any contract to which she apparently 

assented, including client agreements containing the arbitration 

clause. [Citation.]” (Id. at pp. 430-431.) Thus, it remanded the 

14 The only agreement appellants contend Thomas 

assented to is the arbitration agreement. The arbitration 

agreement was a stand-alone agreement, and was not part of the 

admission agreement or any other, broader agreement.
22

matter to the trial court to find the facts and decide whether the 

plaintiff’s alleged incapacity rendered the contract void. (Id. at 

p. 431.)

Appellants rely on Primerica Life Ins. Co. v. Brown (5th

Cir. 2002) 304 F.3d 469, 472 (Primerica) where the court held 

that under the FAA the arbitrator, and not the trial court, was 

required to decide the merits of the plaintiff’s claim he lacked 

capacity to enter into the agreement at issue. The court 

concluded that Prima Paint applied to the lack-of-capacity claim 

because it was a defense to the entire contract and “not a specific 

challenge to the arbitration clause.” (Primerica, supra, at p. 472.)

Appellants’ reliance on Primerica is unavailing. First, the 

holding in Primerica that a lack-of-capacity defense must be 

decided by the arbitrator because it is a defense to the entire 

agreement is contrary to the holding in Rosenthal, where the 

court concluded that a defense which calls into question whether 

there was mutual assent to the contract that includes the 

arbitration agreement must be decided by the court. (Rosenthal, 

supra, 14 Cal.4th at pp. 416-417.)

Second, the reasoning used by the Primerica court is faulty 

and the decision has been rejected by numerous courts, beginning 

with Spahr v. Secco (10th Cir. 2003) 330 F.3d 1266 (Spahr).

15 In 

15 Although the United States Supreme Court has not 

addressed whether a lack-of-capacity defense can be delegated to 

an arbitrator, in Buckeye Check Cashing, Inc. v. Cardegna, supra, 

546 U.S. at page 444, footnote 1, it noted “[t]he issue of the 

contract’s validity is different from the issue whether any 

agreement between the alleged obligor and obligee was ever 

concluded.” The court clarified that its opinion did not address 

challenges of the latter type, including “whether the signor 
23

Spahr, the court distinguished the holding in Prima Paint, which 

involved a defense that the contract was fraudulently induced, 

from the lack-of-capacity defense in the case before it, on the 

ground that “[u]nlike a claim of fraud in the inducement, which 

can be directed at individual provisions in a contract, a mental 

capacity challenge can logically be directed only at the entire 

contract.” (Id. at p. 1273, fn. omitted; see Mayorga v. Ronaldo

(D.Nev. 2020) 491 F.Supp.3d 840, 853-854 [following Spahr and 

disagreeing with Primerica]; Amirmotazedi v. Viacom, Inc.

(D.D.C. 2011) 768 F.Supp.2d 256, 262-263 [following Spahr and 

collecting cases holding that mental capacity defense and other 

defenses challenging signatory authority must be resolved by 

courts]; In re Morgan Stanley & Co., Inc. (Tex. 2009) 293 S.W.3d 

182, 189, fn. omitted [summarizing cases disagreeing with 

Primerica, stating “Primerica has been roundly criticized, and we 

[are] aware of no other court that has followed its reasoning, 

including the Fifth Circuit”]; see also Burgoon v. Narconon of 

Northern California (N.D.Cal. 2015) 125 F.Supp.3d 974, 982-983 

[concluding the issue of whether the plaintiffs lacked capacity to 

enter contracts containing an arbitration clause was for the court 

to decide].)

16 Appellants do not address these cases contrary to 

lacked the mental capacity to assent.” (Ibid., citing Spahr, supra,

330 F.3d 1266.)

16 Legal commentators have also criticized the Primerica

decision. (See, e.g., Huber, The Arbitration Jurisprudence of the 

Fifth Circuit: Round IV (2007) 39 Tex. Tech L.Rev. 463, 476 

[Primerica “drew no distinction between contract defenses and 

contract formation” but “[t]he sensible response, as noted by the 

Supreme Court, is that in the absence of contract formation there 
24

Primerica, only briefly mentioning Spahr without any 

discussion.17

Third, Primerica is distinguishable from this case in that 

the arbitration clause was embedded within the parties’ broader 

agreement. (Primerica, supra, 304 F.3d at p. 471.) Here, in 

contrast, the arbitration agreement was a stand-alone contract, 

can be no basis for arbitration”]; Rau, Everything You Really 

Need to Know About “Separability” in Seventeen Simple 

Propositions (2004) 14 Am. Rev. Int’l Arb. 1, 15-16 [result in 

Primerica not compelled by Prima Paint, which “preserves for the 

courts any claim at all that necessarily calls an agreement to 

arbitrate into question” (italics omitted); “[s]omeone lacking the 

requisite mental capacity to contract cannot, I dare say, assent to 

arbitrate anything at all”].)

17 Appellants suggest that Sandoval-Ryan v. Oleander 

Holdings LLC (2020) 58 Cal.App.5th 217 supports Primerica. 

This is not accurate. The court in Sandoval-Ryan did not reach 

the issue of whether the plaintiff’s challenge to the arbitration 

provision could be delegated to the arbitrator because it 

concluded the parties’ arbitration agreement did not clearly and 

unmistakably provide for the arbitrator to decide the issue. (Id.

at p. 225.) Appellants cite Lefoldt v. Horne, L.L.P. (5th Cir. 2017) 

853 F.3d 804, but that case did not involve a claim of lack of 

capacity. Appellants also cite Goldberg v. C.B. Richard Ellis, Inc.

(D.S.C. Dec. 14, 2012) 2012 WL 6522741, but that case also did 

not involve a lack-of-capacity defense and the plaintiff’s challenge 

regarding the signing of the parties’ agreement did not involve 

the separate arbitration agreement, which the plaintiff did not 

challenge. (Id. at p. *4.) Finally, appellants cite DiGiacomo v. 

Ex’pression Center for New Media, Inc. (N.D.Cal. Sep. 15, 2008) 

2008 WL 4239830, which also did not involve a capacity defense. 

(See id. at p. *5, fn. omitted [“Plaintiff does not go so far as to 

assert that he lacks the mental capacity to contract”].)
25

and was expressly not a part of the contract relating to Thomas’s 

admission to Country Villa.

We decline to follow Primerica. As a threshold matter, we 

are not bound by holdings of the lower federal courts. (Metalclad 

Corp. v. Ventana Environmental Organizational Partnership

(2003) 109 Cal.App.4th 1705, 1715-1716.) Moreover, the holding 

is contrary to our Supreme Court’s holding in Rosenthal and in 

Primerica the court applied Prima Paint, which involved claims 

of fraudulent inducement, to the fundamentally different defense 

of lack of capacity, without taking into account the important 

distinctions between the claims. While it is possible for a 

fraudulent inducement claim to focus on specific portions of an 

agreement (see, e.g., Ericksen, Arbuthnot, McCarthy, Kearney & 

Walsh, Inc. v. 100 Oak Street, supra, 35 Cal.3d at pp. 324 

[plaintiff sought to avoid arbitration as required by lease based 

on allegations it was fraudulently induced to enter the lease by 

false representations that the building’s air-conditioning 

worked]), a lack-of-capacity defense necessarily implicates the 

entire agreement. In other words, a party who has been 

fraudulently induced to enter an agreement can still knowingly 

agree to arbitration, while a party who lacks capacity to enter an 

agreement cannot knowingly agree to arbitration. The situation 

in this case, where the overall contract at issue addresses only 

arbitration, illustrates this point starkly—it is hard to imagine a 

scenario in which Thomas lacked capacity to enter the overall 

arbitration agreement but had capacity to agree to have an 

arbitrator decide whether or not he had such capacity.

In conclusion, Thomas’s defense to the petition, that he 

lacked mental capacity to enter into the arbitration agreement, 

was an issue that could not be delegated to the arbitrator because 
26

it was a challenge to the very existence of the arbitration 

agreement, including the delegation provision. Therefore, the 

trial court properly addressed Thomas’s defense.

C. The Trial Court Properly Ruled that Thomas Did Not 

Have Mental Capacity to Enter the Arbitration 

Agreement

1. Legal standards governing claims of lack of capacity 

to enter a contract.

Under Civil Code section 1556, “persons of unsound mind” 

are deemed not capable of contracting.18 “The basic starting 

point for any mental capacity determination is the Due Process in 

Competence Determinations Act found in Probate Code sections 

810 to 813, 1801, 1881, 3201, and 3204 (the Act). In 1995, the 

Legislature created the Act to clarify the legal capacity of a 

person who has a mental or physical disorder.” (In re Marriage of 

Greenway (2013) 217 Cal.App.4th 628, 640; see Andersen v. Hunt 

(2011) 196 Cal.App.4th 722, 728 [“[Prob. Code, §§] 810 to 813 set 

18 Civil Code section 38 provides that “[a] person entirely 

without understanding has no power to make a contract of any 

kind, but the person is liable for the reasonable value of things 

furnished to the person necessary for the support of the person or 

the person's family.” Under Civil Code section 39, subdivision 

(a), a contact entered by a person who is “of unsound mind, but 

not entirely without understanding,” and who has not been 

judicially declared of unsound mind, is subject to rescission. (See 

Smalley v. Baker (1968) 262 Cal.App.2d 824, 832 [under 

California law “a party is entitled to rescission of a contract if, 

when he entered into the contract, he was not mentally 

competent to deal with the subject before him with a full 

understanding of his rights”].)
27

out the standard for capacity to make various kinds of decisions, 

transact business, and enter contracts”].)

Probate Code section 810 sets forth the legislative findings 

supporting the Act, including that “[f]or purposes of [the Act], 

there shall exist a rebuttable presumption affecting the burden of 

proof that all persons have the capacity to make decisions and to 

be responsible for their acts or decisions.” (Prob. Code, § 810, 

subd. (a); see Sterling v. Sterling (2015) 242 Cal.App.4th 185, 195 

[Prob. Code, “[§] 810 sets forth a rebuttable presumption of 

competency”].)

Probate Code section 811 in turn sets forth the type of 

evidence a court should consider in making a determination 

whether a person has capacity. Specifically, it provides that “[a] 

determination that a person is of unsound mind or lacks the 

capacity to make a decision or do a certain act, including, but not 

limited to, the incapacity to contract, to make a conveyance, to 

marry, to make medical decisions, to execute wills, or to execute 

trusts, shall be supported by evidence of a deficit in at least one 

of the following mental functions. . . : [¶] (1) Alertness and 

attention[;] [¶] . . . [¶] (2) Information processing[;] [¶] . . . [¶] 

(3) Thought processes[;] [¶] . . . [¶] (4) Ability to modulate mood 

and affect.” (Id., subd. (a); see Sterling v. Sterling, supra, 242 

Cal.App.4th at p. 195 [“[Prob. Code, §] 811 identifies grounds for 

finding incompetency including ability to remember, ability to 

modulate mood, and ability to process information”].) Probate 

Code section 811 provides examples of each type of deficit. (Id., 

subd. (a).)

Under the Act, a deficit in one of the mental functions 

listed “may be considered only if the deficit, by itself or in 

combination with one or more other mental function deficits, 
28

significantly impairs the person’s ability to understand and 

appreciate the consequences of his or her actions with regard to 

the type of act or decision in question.” (Prob. Code, § 811, subd. 

(b).) Thus, “[t]here must be a causal link between the impaired 

mental function and the issue or action in question.” (In re 

Marriage of Greenway, supra, 217 Cal.App.4th at p. 640.) In 

considering the causal link, courts may take into account “the 

frequency, severity, and duration of periods of impairment.” 

(Prob. Code, § 811, subd. (c).) “The mere diagnosis of a mental or 

physical disorder shall not be sufficient in and of itself to support 

a determination that a person is of unsound mind or lacks the 

capacity to do a certain act.” (Prob. Code, § 811, subd. (d).)

Probate Code section 812 provides that “[e]xcept where 

otherwise provided by law, including, but not limited to, Section 

813 [regarding capacity to give informed consent to proposed 

medical treatment] and the statutory and decisional law of 

testamentary capacity, a person lacks the capacity to make a 

decision unless the person has the ability to communicate 

verbally, or by any other means, the decision, and to understand 

and appreciate, to the extent relevant, all of the following:

“(a) The rights, duties, and responsibilities created by, or 

affected by the decision.

“(b) The probable consequences for the decisionmaker and, 

where appropriate, the persons affected by the decision.

“(c) The significant risks, benefits, and reasonable 

alternatives involved in the decision.”

Finally, Civil Code section 39, subdivision (b) provides that 

“[a] rebuttable presumption affecting the burden of proof that a 

person is of unsound mind shall exist for purposes of this section 

if the person is substantially unable to manage his or her own 
29

financial resources or resist fraud or undue influence. 

Substantial inability may not be proved solely by isolated 

incidents of negligence or improvidence.”

2. Substantial evidence supports the trial court’s finding 

that Thomas lacked mental capacity to enter the 

arbitration agreement.

The trial court’s finding that Thomas did not have capacity 

to enter the arbitration agreement is supported by substantial 

evidence and is consistent with the criteria set forth in the Act.

The evidence before the trial court shows that medical staff 

at Country Villa, including a doctor, concluded that Thomas had 

a cognitive deficit that affected his ability to make decisions in 

his own best interest, and that Country Villa staff looked to 

Thomas’s sister, Carlise, to make medical decisions on his behalf. 

This evidence reasonably supports the inference that Thomas had 

at least one of the deficits listed in Probate Code section 811, 

subdivision (a), namely, difficulty with “[i]nformation processing.” 

(Id., subd. (a)(2).) As examples of deficits of this type, Probate 

Code section 811, subdivision (a)(2) lists “[a]bility to reason using 

abstract concepts,” “[a]bility to plan, organize, and carry out 

actions in one’s own rational self-interest,” and “[a]bility to 

reason logically.” The evidence also reasonably supports the 

inference that this deficit “significantly impair[ed]” Thomas’s 

ability to understand that he was being asked to voluntarily 

agree to resolve any disputes that might arise regarding his 

treatment through arbitration instead of court, and to appreciate 

the consequences of such an agreement. (Id., subd. (b).)

The court found especially “persuasive” the record of an 

evaluation by a Country Villa doctor on August 2, 2020, two days

before Thomas purportedly executed the arbitration agreement. 
30

According to the record, the doctor concluded that Thomas “does 

NOT have the capacity to understand and make decisions.” That 

same day, in a licensed personnel weekly progress note, Country 

Villa staff wrote “client is unable to sign & make decisions for 

himself due to cognitive status,” and indicated that Carlise was 

contacted to discuss Thomas’s treatment plan. As is shown by 

Carlise’s declaration and medical records from Country Villa, 

staff at Country Villa contacted Carlise to obtain approval to 

admit Thomas to the facility and to approve various aspects of 

treatment. The court could reasonably infer from this evidence 

that Thomas was not able to understand and process information 

well enough to be relied upon to make decisions about his own 

well-being.

The trial court also could rely on the declaration of Carlise,

Thomas’s sister, wherein she stated, “[d]ue to my brother’s 

cognitive deficit and mental retardation, it would have been 

impossible for my brother at that time to have understood what 

an arbitration agreement was or what he was signing.”

The medical records relied upon by appellants do not 

contradict the foregoing evidence. Appellants relied on records 

showing that before, on and after the day he purportedly signed 

the arbitration agreement Thomas was evaluated to be “alert and 

oriented” by various staff at Country Villa. However, even if 

Thomas was “alert and oriented,” he still could have had 

difficulties understanding concepts or making decisions in his 

own best interest. Notably, “[a]lertness and attention” is a 

separate type of deficit under Probate Code section 811, 

subdivision (a)(1).

Appellants also relied on two documents signed by Thomas 

which they claim show he did not lack capacity. One was a 
31

medical form signed by Thomas in January 2019, in which he set 

out his wishes for life-sustaining treatment. The other was the 

medical power of attorney form Thomas signed in September 

2010. Given that Thomas signed both of these documents more 

than a year before he was admitted to Country Villa (10 years 

earlier in the case of the medical power of attorney form) the trial 

court did not err in giving them little weight in deciding the 

question before him, i.e., did Thomas have mental capacity when 

he purportedly signed the arbitration agreement in 2020, when 

he was at Country Villa.

19

Appellants argue that the trial court’s finding Thomas 

lacked capacity to enter the arbitration agreement is undermined 

by the claim in Thomas’s reply brief in support of his motion for a 

preference in trial setting that he had capacity to proceed in his 

lawsuit. This argument is unavailing for two reasons. First, the 

claim was argument and not evidence.20 Second, a suggestion 

that Thomas had “capacity” to assist his attorneys in a lawsuit 

does not necessarily show he had capacity to enter a contract on 

his own, in light of the evidence that the court relied upon to 

19 Thomas signed the medical power of attorney form and 

the 2019 medical form with his full name, which suggests that 

the mark he made on the arbitration agreement—“WT”—was not 

his standard signature.

20 As is noted above, while the reply brief states that 

Thomas executed a declaration in support of his opposition to the 

petition to compel arbitration, it does not appear that any

declaration by Thomas was actually submitted.
32

reach his finding that Thomas lacked capacity in early August 

when he was admitted to Country Villa.21 22

Appellants contend that the trial court based its decision on 

Carlise’s report of Thomas’s diagnosis and the existence of the 

medical power of attorney form instead of a finding that Thomas 

21 According to the complaint, Thomas was represented in 

the lawsuit by Carlise as his attorney-in-fact. A person’s status 

as an attorney-in-fact does not give them the authority of a 

guardian ad litem. (In re Marriage of Caballero (1994) 27 

Cal.App.4th 1139, 1143.) In In re Marriage of Caballero, the 

court concluded that “in the case of an insane or incompetent 

person, it appears incumbent upon the court to appoint a 

guardian ad litem whenever the need for one is brought to the 

court’s attention.” (Id. at p. 1149.) In its written decision dated 

January 29, 2021, the trial court indicated that Thomas was 

represented in the case by a guardian ad litem, but the record 

does not contain an order appointing a guardian ad litem.

22 Appellants contend, without any analysis or authority, 

that based on the claim in the reply brief Thomas should be 

estopped to claim he lacks capacity. To the extent appellants 

argue that Thomas should be judicially estopped to argue he 

lacked capacity to enter the arbitration agreement, their 

argument fails. For the doctrine of judicial estoppel to apply 

Thomas must have been “ ‘ “successful in asserting the first 

position.” ’ ” (Jogani v. Jogani (2006) 141 Cal.App.4th 158, 169.) 

Here, Thomas was not successful in asserting the first position, 

as the trial court denied his motion for a preference in trial 

setting in large part based on its finding that Thomas would not 

be able to assist his counsel. In addition, “ ‘judicial estoppel is an 

equitable doctrine, . . . its application, even where all necessary 

elements are present, is discretionary.’ ” (Id. at p. 170.) The trial 

court did not abuse its discretion in failing to estop Thomas from 

claiming he lacked capacity to enter the arbitration agreement.
33

actually lacked capacity. This misrepresents the trial court’s 

decision. The trial court did not rely on Thomas’ diagnosis or the 

medical power of attorney form, but instead relied on evaluations 

by Country Villa’s own staff that Thomas lacked the capacity to 

understand and make decisions, and on evidence, in the form of 

Carlise’s declaration and Country Villa records, that staff at 

Country Villa contacted Carlise to obtain consent to medical 

treatment because they considered Thomas to be incapable of 

making decisions on his own. As is discussed above, this 

evidence more than amply supports the conclusion that Thomas 

had a deficit in “[i]nformation processing” under Probate Code 

section 811, subdivision (a)(2), which interfered with his ability to 

comprehend a legally technical document like the arbitration 

agreement and to appreciate the consequences of signing such a 

document. (See In re Caden C. (2021) 11 Cal.5th 614, 640 [under 

the substantial evidence standard, a trial court’s “[factual] 

determinations should ‘be upheld if . . . supported by substantial 

evidence, even though substantial evidence to the contrary also 

exists and the trial court might have reached a different result 

had it believed other evidence’ ”].)

We conclude that the trial court properly addressed 

Thomas’s defense to the petition that he lacked capacity to enter 

the arbitration agreement, and that there was substantial 

evidence supporting the trial court’s conclusion Thomas lacked 

such capacity. Therefore, the trial court properly denied 

appellants’ petitions to compel arbitration.
34

DISPOSITION

We affirm the trial court’s orders denying appellants’ 

petitions to compel arbitration. Thomas is awarded costs on 

appeal.

NOT TO BE PUBLISHED

KELLEY, J.*

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.