1

Filed 11/30/21 Theresa D. v. MBK Senior Living CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

THERESA D.,

Plaintiff and Respondent,

v.

MBK SENIOR LIVING, LLC et al.,

Defendants and Appellants.

 A163312

 (Sonoma County

 Super. Ct. No. SCV-268130)

Defendants, operators of the Muirwoods Memory Care assisted living 

facility (Muirwoods), a residential care facility for the elderly (RCFE) appeal 

an order denying their petition to compel arbitration of plaintiff Theresa D.’s 

claims against them for elder abuse and neglect.

1 We agree with the trial 

court that plaintiff is not bound by an arbitration agreement her daughter 

signed on her behalf when placing her at Muirwoods, and accordingly we 

affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff brought this action on April 2, 2021, through her son and 

attorney-in-fact Raymond Donahue, alleging that plaintiff was a resident at 

1 Defendants are MBK Senior Living, LLC; MBK Real Estate, LLC; 

Muirwoods MSL LLC; MSL Community Management, LLC; MSL Holdings 

IX, LLC; Muirwoods Memory Care; and Jaime Gralund.
2

Muirwoods from July 12, 2020 through March 20, 2021, that all adult 

residents of Muirwoods were dependent adults or elders, that defendants 

knew she suffered from dementia and was at risk of falls, that they failed to 

provide adequate care and supervision, and that as a result she suffered four 

falls at Muirwoods, the fourth fall resulting in a fractured hip and 

deteriorating health; she became bedbound, she suffered emotional distress, 

and her need for care and assistance increased. The complaint also alleges

she was left in unsanitary conditions and infected with scabies while at 

Muirwoods. 

Defendants moved to compel arbitration of the dispute, asserting that 

plaintiff’s daughter Kellie Tennier, as her authorized representative, signed 

an arbitration agreement pursuant to her authority to make health care 

decisions for plaintiff when assisting in her placement at Muirwoods. The 

arbitration provision required binding arbitration of “any and all claims and 

disputes arising from or related to this Agreement or to your residency, care 

or services at the Community,” with the exception of claims involving 

“unlawful detainer proceedings (eviction) or any claims that can be brought 

in small claims court,” and it included a delegation clause providing that an 

arbitrator would decide whether a claim or dispute must be arbitrated under 

the arbitration clause. The arbitration was to be conducted by Judicial 

Arbitration and Mediation Services (JAMS). The clause specified that the 

agreement to arbitrate could be withdrawn within 30 days and that “agreeing 

to arbitration is not a condition of admission to the Community.” 

In support of their motion, defendants provided the declaration of 

Jaime Gralund, the former executive director of Muirwoods, who stated 

Tennier had identified herself as plaintiff’s authorized representative with 

authority to make the health care decisions required for admission and to 
3

execute the residence and services agreement, including the arbitration 

agreement. According to Gralund, “I discussed with Ms. Tennier . . . that 

signing the Arbitration Agreement was not required for admission to the 

facility.” Defendants also provided a document entitled Physician Orders for 

Life-Sustaining Treatment, dated July 1, 2020, signed by Tennier as “Legally 

Recognized Decisionmaker,” and JAMS’s “Comprehensive Arbitration Rules 

& Procedures,” which provide that the arbitrator will determine 

“[j]urisdictional and arbitrability disputes, including disputes over the 

formation, existence, validity, interpretation, or scope of the agreement under 

which Arbitration is sought, and who are proper Parties to the Arbitration.” 

In opposition to the motion to compel arbitration, plaintiff argued the 

arbitration provision was unenforceable because she did not sign it and 

Tennier had neither actual nor ostensible authority to do so on her behalf, 

and because it was unconscionable. She submitted evidence that Donahue 

rather than Tennier had a general power of attorney to act on her behalf, and 

plaintiff’s counsel declared that Tennier had been neither appointed as 

plaintiff’s agent under an advance health care directive nor appointed as 

plaintiff’s conservator. 

The trial court denied the motion to compel arbitration, ruling that

Tennier was not plaintiff’s agent for purposes of binding her to arbitration. 

Defendants have appealed from this order. 

DISCUSSION

I. General Legal Principles

In California, “ ‘[g]eneral principles of contract law determine whether 

the parties have entered a binding agreement to arbitrate.’ ” (Pinnacle 

Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 

Cal.4th 223, 236.) Although public policy favors arbitration, that policy 
4

“ ‘ “ ‘does not extend to those who are not parties to an arbitration 

agreement.’ ” ’ ” (Espejo v. Southern California Permanente Medical Group

(2016) 246 Cal.App.4th 1047, 1057 (Espejo).) 

We review an order denying a motion to compel arbitration for abuse of 

discretion unless the matter presents a pure question of law, in which case 

our review is de novo. (Espejo, supra, 246 Cal.App.4th at pp. 1056–1057.) To 

the extent the court’s decision is based on disputed facts, we review the 

decision for substantial evidence. (NORCAL Mutual Ins. Co. v. Newton

(2000) 84 Cal.App.4th 64, 71.) There is no dispute as to the operative facts 

here, and our review is accordingly de novo.

When a party has filed a petition to compel arbitration, the trial court 

must determine in a summary proceeding whether an “agreement to 

arbitrate the controversy exists.” (Code Civ. Proc., §§ 1281.2, 1290.2; 

Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412–

413.) In that proceeding, “[b]ecause the existence of the agreement is a 

statutory prerequisite to granting the petition, the petitioner bears the 

burden of proving its existence by a preponderance of the evidence.” 

(Rosenthal, at p. 413; accord, Engalla v. Permanente Medical Group, Inc.

(1997) 15 Cal.4th 951, 972.)

When parties have agreed to arbitration, challenges to the validity of 

the underlying contract are for the arbitrator to decide, but challenges to the 

validity of the arbitration clause itself are generally for the court. (Nielsen 

Contracting, Inc. v. Applied Underwriters, Inc. (2018) 22 Cal.App.5th 1096,

1107–1108 (Nielsen Contracting).) There is an exception, however, when “the 

parties have clearly and unmistakably agreed to delegate questions regarding 

the validity of the arbitration clause to the arbitrator.” (Id. at p. 1108; 

accord, Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 891–892
5

(Aanderud) [noting “clear and unmistakable evidence that the parties 

intended to arbitrate arbitrability”].) In such a case, a delegation clause will 

generally be enforced. (Nielsen Contracting, at p. 1108.)

II. Who Decides Whether an Arbitration Agreement Exists?

The fundamental issue in this case is whether an agreement between 

plaintiff and defendants to arbitrate controversies arising out of her care at 

Muirwoods was ever formed—that is, whether such an agreement exists. 

Because plaintiff did not sign the agreement personally, the answer to that 

question turns on whether Tennier had authority to agree to arbitration on 

her behalf. Defendants urge us to treat this threshold issue as one for the 

arbitrator, rather than for the court, under the delegation provision, which 

states, “You agree that an arbitrator will decide any question about whether 

a claim or dispute must be arbitrated under this arbitration clause,” and 

under the rules of JAMS.

We first note that defendants acknowledge that the trial court was 

authorized to make a preliminary finding as to the existence of an arbitration 

agreement, determining whether there was a written agreement and whether 

it was signed on behalf of plaintiff. Indeed, they would be hard pressed not to 

do so in light of the well-established rule that “a trial court has no power to 

order parties to arbitrate a dispute that they did not agree to arbitrate.” 

(Bouton v. USAA Casualty Ins. Co. (2008) 43 Cal.4th 1190, 1202.) But, 

defendants contend, questions regarding the scope of Tennier’s ability to bind 

plaintiff to arbitration fall outside this rule and are for the arbitrator, not for 

the court, to decide.

As authority, defendants rely upon Rent-A-Center, West, Inc. v. Jackson

(2010) 561 U.S. 63 (Rent-A-Center). The issue there was whether, under the 

Federal Arbitration Act (9 U.S.C. § 1 et seq.), a court could decide the 
6

unconscionability of an arbitration agreement where the agreement explicitly 

assigned that question to the arbitrator. (Rent-A-Center, at p. 65.) The 

agreement there, between the plaintiff and his employer, granted the 

arbitrator “ ‘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.’ ” (Id. at p. 66.) In seeking to avoid arbitration of his 

employment discrimination action, the plaintiff argued the arbitration 

agreement as a whole was unconscionable, but he did not challenge the 

delegation provision in particular. (Id. at pp. 71–73.) The high court 

concluded the delegation provision was severable from the remainder of the 

arbitration agreement and, in the absence of a direct challenge to that 

provision, the plaintiff must submit to the arbitrator the question of whether 

the arbitration agreement was unenforceable as unconscionable. (Id. at 

pp. 72–76.) The court left open the possibility that, if the unconscionability 

challenge was to the delegation clause itself, the question would be one for 

the court rather than the arbitrator. (Id. at p. 74; see Gibbs. v. Sequoia 

Capital Operations, LLC (4th Cir. 2020) 966 F.3d 286, 291 [under Rent-ACenter, court may consider enforceability of delegation clause where specific 

objection is raised]; Nielsen Contracting, supra, 22 Cal.App.5th at pp. 1109–

1114 [court properly ruled on enforceability of delegation clause where party 

raised specific challenge to it].)

Rent-A-Center does not support defendants’ position because it does not 

suggest that a party may be forced to submit to an arbitrator the existence,

validity, or enforceability of an arbitration agreement if the party has not 

agreed to do so, either personally or through someone authorized to agree to 

arbitration on her behalf. Such a conclusion would fly in the face of the 
7

principle that arbitration agreements are governed by contract law and 

construed to effectuate the intentions of the parties. (See Aanderud, supra, 

13 Cal.App.5th at p. 890; see also Rent-A-Center, supra, 561 U.S. at pp. 67–

68.) There is no public policy in favor of forcing to arbitration a person who 

has not agreed to it (Aanderud, at p. 890), a rule that should apply with 

particular force under the “ ‘heightened standard’ ” that requires a “ ‘clear and 

unmistakable’ ” delegation of authority to the arbitrator to decide questions 

of arbitrability (id. at p. 892). 

Other cases on which defendants rely are no more helpful to their 

position. Dream Theater, Inc. v. Dream Theater (2004) 124 Cal.App.4th 547, 

551, emphasized that “[t]he issue of who should decide arbitrability turns on 

what the parties agreed [to] in their contract.” (Italics added.) Rodriguez v. 

American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1122–1123, held 

that an arbitrator should decide issues concerning the scope of an arbitration 

clause when “the parties clearly and unmistakably” so agreed. (Italics 

added.) And the high court explained in Henry Schein, Inc. v. Archer & White 

Sales, Inc. (2019) 139 S.Ct. 524, that “[w]hen the parties’ contract delegates 

the arbitrability question to an arbitrator, a court may not override the 

contract, . . . even if the court thinks that the argument that the arbitration 

agreement applies to a particular dispute is wholly groundless.” (Id. at 

p. 529, italics added.) Nothing in those cases suggests a person who has not

entered into an arbitration agreement may be required to submit any 

threshold issue to an arbitrator. (See Benaroya v. Willis (2018) 23 

Cal.App.5th 462, 473 [authorizing arbitrator to decide what issues are 

arbitrable does not “give the arbitrator the power to compel a nonsignatory to 

the agreement to become a party to the arbitration”].)
8

Again relying on Rent-A-Center, defendants insist that the trial court 

should have delegated to the arbitrator the question of whether an 

arbitration agreement exists because plaintiff raised no specific challenge to 

the delegation clause separate from the arbitration clause as a whole. This 

contention lacks merit. The question in Rent-A-Center was whether, where

there was no claim that a delegation clause was unconscionable, the court 

should enforce the clause and allow the arbitrator to determine whether the 

arbitration agreement as a whole was unconscionable. (Rent-A-Center, supra, 

561 U.S. at pp. 70–75.) But here, the question is simply whether plaintiff 

entered at all into the arbitration agreement of which the delegation clause is 

a part. In the absence of an agreement, made either directly by plaintiff or by

one capable of binding her to arbitration, there would be no basis to require 

plaintiff to submit any issue to the arbitrator. 

We therefore conclude the initial determination of whether Tennier was 

authorized to agree to arbitration on plaintiff’s behalf is one for the court, not 

the arbitrator.

III. Authority to Bind Plaintiff to Arbitration

The trial court concluded Tennier did not have authority to bind 

plaintiff to arbitrate her disputes with defendants. Defendants argue this 

conclusion was error under the laws governing RCFE’s. 

An RCFE is “a housing arrangement chosen voluntarily by persons 60 

years of age or over, or their authorized representative, where varying levels 

and intensities of care and supervision, protective supervision, personal care, 

or health-related services are provided.” (Health & Saf. Code, § 1569.2, 

subd. (p)(1); see Cal. Code Regs., tit. 22, § 87101(r)(5).) The applicable 

regulations define “ ‘[r]epresentive’ ” as “an individual who has authority to 

act on behalf of the resident; including but not limited to, a conservator, 
9

guardian, person authorized as agent in the resident’s valid advance health 

care directive, the resident’s spouse, registered domestic partner, or family 

member, a person designated by the resident, or other surrogate

decisionmaker designated consistent with statutory and case law.” (22 Cal. 

Code Regs., § 87101(r)(3), italics added.)

The question here is not whether Tennier, as plaintiff’s daughter, had 

authority to place plaintiff in Muirwoods, and we will assume for purposes of 

our analysis that she did. The question is whether in the course of so doing 

she also had authority to bind plaintiff to arbitration. A series of cases has 

considered whether and in what circumstances a family member has that 

power when placing an elderly relative in an RCFE or nursing home.

In a case defendants contend supports their position, Garrison v. 

Superior Court (2005) 132 Cal.App.4th 253 (Garrison) considered whether a 

decedent’s daughter, the attorney in fact under durable powers of attorney for 

health care and for financial matters, was authorized to enter into a binding 

arbitration agreement on her mother’s behalf when admitting her to a facility 

the appellate court described as a residential care facility. (Id. at pp. 256, 

262.) The reviewing court concluded the daughter had such authority based 

on her durable power of attorney for health care, which authorized her to 

make “ ‘all health care decisions’ ” and did not restrict her authority as agent 

to enter into an arbitration agreement on the mother’s behalf. (Id. at p. 265.) 

As the Garrison court viewed the matter,“[w]hether to admit an aging parent 

to a particular care facility is a health care decision,” and “ ‘an agent or other 

fiduciary who contracts for medical treatment on behalf of his beneficiary 

retains the authority to enter into an agreement providing for arbitration of 

claims for medical malpractice.’” (Id. at pp. 264, 266.)
10

The court in Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 

1129 disagreed with Garrison to the extent that case concluded the term 

“ ‘health care decisions’ . . . encompasses the execution of arbitration 

agreements on behalf of the patient.” But whatever the resolution of this 

question, Garrison is easily distinguishable from the case before us because 

there is no indication Tennier had express authorization to make health care 

(or financial) decisions for plaintiff through a durable power of attorney or 

any other vehicle. Rather, it appears she acted solely in her capacity as a 

family member. The court in Garrison considered this difference dispositive,

expressly distinguishing two earlier cases, Pagarigan v. Libby Center Care, 

Inc. (2002) 99 Cal.App.4th 298 (Pagarigan) and Golinger v. AMS Properties, 

Inc. (2004) 123 Cal.App.4th 374 (Golinger) on the ground that in neither case 

did the adult child who secured medical care for an aged parent act pursuant 

to a durable power of attorney. (Garrison, supra, 132 Cal.App.4th at pp. 264–

265.) 

The Pagarigan court concluded the status of two adult children of the 

deceased as next of kin did not authorize them to bind her to an arbitration 

agreement. (Pagarigan, supra, 99 Cal.App.4th at p. 302.) The court noted 

that the children had authority as next of kin to make medical decisions for 

the patient at the request of the treating physician (see Health & Saf. Code, 

§ 1418.8), but concluded that authority did not “translate[] into authority to 

sign an arbitration agreement on the patient’s behalf at the request of the 

nursing home.” (Pagarigan, at p. 302.) The court also rejected the argument 

that since the next of kin had authority to sign the admission agreement on 

her behalf (Cal. Code Regs, tit. 22, § 72527, subd. (c)) they had implicit 

authority to sign an arbitration agreement, concluding that if the Legislature 
11

and the Department of Health Services had wanted to confer that authority 

on the next of kin, “they knew how to say so.” (Pagarigan, at pp. 302–303.) 

Pagarigan was followed by Golinger, which concluded that a daughter 

whom the mother allowed to make medical decisions for her did not have 

authority to bind her to an arbitration agreement. (Golinger, supra,123 

Cal.App.4th at pp. 376–377; see Hogan v. Country Villa Health Services

(2007) 148 Cal.App.4th 259, 268 [noting “critical” distinction between 

Garrison, where child admitting parent to facility had health care power of 

attorney, and Pagarigan and Golinger, where they did not]; see also Gordon 

v. Atria Management Co., LCC (2021) 70 Cal.App.5th 1020, 1026-1027, 1030 

[durable power of attorney authorized son to enter into arbitration 

agreement].) 

Defendants seek to distinguish Pagarigan and Golinger on the ground 

that the facilities in question there were not RCFE’s but skilled nursing

facilities, which are subject to regulations that require any arbitration 

agreement to be separate from the standard admission agreement. (See Cal. 

Code Regs., tit. 22, § 72516, subd. (d).) In failing to set a similar limitation on 

the use of arbitration agreements in RCFE agreements, defendants argue, 

the Legislature implicitly allowed arbitration clauses in admission 

agreements. As a further indication that the differing regulations for skilled 

nursing facilities and RCFE’s lead to different results, they point out that the 

RFCE regulations define “ ‘Admission Agreement’” to include “all documents 

that a resident or resident’s representative must sign at the time of, or as a 

condition of, admission,” without carving out an exception for arbitration 

agreements. (Cal. Code Regs., tit. 22, § 87101, subd. (a)(2).) 

These distinctions do not rob Pagarigan and Golinger of their 

persuasive value in the situation before us. First, as plaintiff points out, the 
12

“Resident’s Bill of Rights” for RCFE’s (Health & Saf. Code, § 1569.261 et seq.) 

prohibits an admission contract, “including all documents that a resident or 

his or her representative is required to sign as part of the contract for, or as a 

condition of, admission” to an RCFE, from requiring the resident to waive 

“benefits or rights to which he or she is entitled under this chapter or 

provided by federal or other state law or regulation” (Health & Saf. Code, 

§ 1569.269, subd. (c), italics added). An arbitration agreement is indisputably 

a waiver of the patient’s legal rights, including the right to a jury trial. 

(Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 594

(Flores).) And here, although the arbitration clause was placed within the 

admission agreement,the agreement itself recited that agreeing to 

arbitration was not a condition of admission, and Tennier was so informed. 

Because the arbitration provision was optional, with its own signature line, it 

was in essence a separate agreement, and defendants have not shown 

Tennier, who did not act pursuant to a durable power of attorney or similar 

authorization, could bind a plaintiff to an arbitration agreement as part of 

authorizing her admission to an RCFE.

This point is illustrated in a different context in Holley v. Silverado 

Senior Living Management, Inc. (2020) 53 Cal.App.5th 197. There, the 

temporary conservators of the person (but not the estate) of a woman 

suffering from dementia admitted her to a senior living facility, signing an 

arbitration agreement on her behalf in the course of so doing. (Id. at pp. 199–

200.) Noting the limited powers of temporary conservators, the reviewing

court concluded it was “simply beyond their powers without the court’s 

approval” to relinquish on her behalf “an important right—the right to use 

the courts for redress of grievances.” (Id. at p. 203.) And under the 

governing law, the conservators could not make medical decisions for her 
13

without a court adjudication that she lacked capacity to make such decisions 

for herself, an adjudication that had not yet been made when the agreement 

was signed. (Id. at pp. 203–204.) But Holley is of only limited assistance in 

the case before us because, although the opinion discloses that at least one of 

the conservators was the elderly woman’s adult child (id. at p. 200), the court 

did not discuss the daughter’s ability as a family member to act on her behalf. 

The parties dispute the effect of Hutcheson v. Eskaton FountainWood 

Lodge (2017) 17 Cal.App.5th 937 (Hutcheson). The decedent there had 

executed a health care power of attorney (Prob. Code, § 4671, subd. (a))

appointing her niece to make health care decisions for her (Hutcheson, at 

pp. 941–942, 946), and later a personal care power of attorney (Prob. Code, 

§§ 4123, subd. (a), 4450, subd. (b), 4459, subd. (d), 4460, subd. (a)) appointing

both her sister and the niece to make decisions regarding her personal care, 

claims, and litigation and to enter into contracts to accomplish those 

purposes, but not to make health care decisions (Hutcheson, at pp. 942, 945–

946). The sister later admitted the decedent to an RCFE and signed on her 

behalf an admission agreement that contained an arbitration clause. (Id. at 

p. 942.) In an action against the facility after the decedent’s death, the 

facility sought arbitration, contending the decision to admit her was not a 

health care decision and was authorized under the personal care power of 

attorney. (Id. at pp. 943–944.) The court rejected this contention, noting that 

RCFEs may provide medical care such as dementia care and employ medical 

professionals, and that the facility in question in fact provided such services 

to the decedent. (Id. at pp. 948–950.) Admission to the facility was thus a 

health care decision. (Id. at p. 941.) In the course of its discussion, the 

Hutcheson court recognized that other people—including next of kin—may 

make health care decisions for an incompetent relative who did not execute a 
14

health care power of attorney, but concluded that where such a power of 

attorney exists and is known to the health care provider, the attorney in fact

so appointed has priority for health care decisions. (Id. at p. 957; see Prob. 

Code, § 4685.) Because the sister had no authority to make the health care 

decision, she had no authority to execute an arbitration agreement as part of 

a health care decision, and the agreement was void. (Hutcheson, at p. 957.) 

Defendants distinguish Hutcheson on the ground that here, no one 

holds a health care power of attorney, and Tennier was authorized as a 

family member to place plaintiff in an RCFE. As a result, they argue, 

Tennier could bind plaintiff to arbitration as part of the health care decision 

to admit her to Muirwoods. The trial court rejected this argument, as do we. 

Although a family member may place a person in an RCFE in appropriate 

circumstances (22 Cal. Code Regs., § 87101(r)(3)), the governing statutes and 

regulations say nothing about allowing the family member to waive the 

resident’s legal right to seek redress through the courts, and, as we have 

already explained, state law did not allow, and the agreement here did not 

provide,that agreeing to arbitration would be a condition of admission. In 

the absence of any action on plaintiff’s part granting, or implying she had 

granted, Tennier authority to waive her right of access to the courts, we agree 

with the trial court that she lacked that power. (See Flores, supra, 148 

Cal.App.4th at pp. 587–588 [no ostensible agency absent “intentional conduct 

or neglect on the part of the alleged principal creating a belief in the minds of 

third persons that an agency exists”].) 

Defendants argue that even if plaintiff is not a signatory to the 

arbitration agreement, she may still be compelled to arbitrate her dispute 

under a theory of equitable estoppel. JSM Tuscany, LLC v. Superior Court

(2011) 193 Cal.App.4th 1222 (JSM Tuscany) sets forth several situations in 
15

which a nonsignatory may be required to arbitrate a dispute under this 

theory. First, “ ‘a nonsignatory defendant may invoke an arbitration clause 

to compel a signatory plaintiff to arbitrate its claims when the causes of 

action against the signatory are “intimately founded in and intertwined” with 

the underlying contract obligations.’ ” (Id. at p. 1237, italics added.) Here, in 

contrast, plaintiff is not a signatory to the arbitration agreement. 

JSM Tuscany went on to apply to nonsignatory plaintiffs the general 

rule that “[w]hen a plaintiff brings a claim which relies on contract terms

against a defendant, the plaintiff may be equitably estopped from repudiating 

the arbitration clause contained in that agreement.” (JSM Tuscany, supra, 

193 Cal.App.4th at p. 1239, citing Boucher v. Alliance Title Co., Inc. (2005) 

127 Cal.App.4th 262, 272.) The court explained that applying estoppel 

against a nonsignatory plaintiff may be particularly appropriate where “all of 

the plaintiffs, signatory and nonsignatory, are related entities. A 

nonsignatory can be compelled to arbitrate when a preexisting relationship 

existed between the nonsignatory and one of the parties to the arbitration 

agreement, making it equitable to compel the nonsignatory to arbitrate as 

well.” (JSM Tuscany, at p. 1240.) These rules do not assist defendants. 

Defendants make no showing that plaintiff’s claims for elder abuse and 

negligence rely on the terms of the admission agreement rather than on

defendants’ alleged violation of duties imposed by law. Tennier is not a 

plaintiff in this action, and defendants have not shown she signed the

agreement as a party rather than as plaintiff’s putative representative. 

We conclude, therefore, that Tennier did not bind plaintiff to 

arbitration. Because we affirm the trial court’s order on this basis, we need 

not reach the question of whether the arbitration agreement was 

unconscionable.
16

DISPOSITION

The order is affirmed. Plaintiff shall recover her costs on appeal.

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

RODRIGUEZ, J.

Theresa D. v. MBK Senior Living, LLC et al. (A163312)