Filed 9/3/24 Loflin v. Creative Care CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MARQUITA HAIRE LOFLIN et 

al.,

Plaintiffs and Respondents,

v.

CREATIVE CARE, INC. et al.,

Defendants and Appellants.

 B325585

(Los Angeles County

Super. Ct. No. 22STCV21220)

APPEALS from an order of the Superior Court of Los 

Angeles County, Virginia C. Keeny, Judge. Affirmed.

Citron & Citron, Thomas. H. Citron and Katherine A. 

Tatikian for Defendants and Appellants Creative Care, Inc., 

Dr. Morteza Khaleghi and Dr. Karen Khaleghi.

Lewis Brisbois Bisgaard & Smith LLP, Lann G. McIntyre, 

Tracy D. Forbath, Raymond K. Wilson and Kathleen M. Walker 

for Defendant and Appellant Farrah Khaleghi.
2

Brown, Neri, Smith & Khan LLP, Amjad M. Khan and 

Jacquelynn K. M. Levien for Plaintiffs and Respondents.

__________________________

Creative Care, Inc., Morteza Khaleghi, Karen Khaleghi, 

and Farrah Khaleghi (collectively, Creative Care defendants) 

appeal from an order denying their motions to compel arbitration

of the causes of action asserted by Marquita Haire Loflin and

McKenzie Loflin (collectively, Loflin heirs) for wrongful death, 

fraudulent misrepresentation, and intentional infliction of 

emotional distress, and the survival and elder abuse causes of 

action asserted by the estate of Johnathon Loflin.

1 The Creative 

Care defendants contend all the causes of action are subject to 

arbitration, including those brought by the nonsignatory Loflin 

heirs, and the trial court erred in denying their motions. Farrah 

Khaleghi (Khaleghi) also argues the court abused its discretion in 

denying arbitration of the estate’s claims pursuant to Code of 

Civil Procedure section 1281.2, subdivision (c),

2 which provides 

an exception to mandatory arbitration where a party to an 

arbitration agreement and parties not bound by the agreement 

assert claims in an action arising out of the same transaction. We 

affirm.

1 Creative Care, Inc., Morteza Khaleghi, and Karen Khaleghi

filed one motion to compel arbitration; Farrah Khaleghi filed a 

separate motion. We refer to the motions collectively as the 

motions to compel arbitration and indicate where an argument is 

asserted only by Farrah Khaleghi. 

2 Further undesignated statutory references are to the Code 

of Civil Procedure.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. Treatment at the Rehabilitation Facility and the Arbitration 

Agreement 

On October 18, 2019 Johnathon Loflin (Johnny)3 was 

admitted into the Creative Care rehabilitation facility for 

treatment of his mental health issues and substance abuse 

disorder in a residential inpatient program. On the day of his 

admission Johnny signed Creative Care’s Admissions Agreement

(admissions agreement). On December 20 Johnny signed a 

second admission agreement. Both agreements contained the 

following arbitration provision: “BINDING ARBITRATION: The 

Client, any Guarantor of the Client’s payment and the facility 

agree that Binding Arbitration is the sole and the exclusive 

remedy against Creative Care and its staff. Any such Binding 

Arbitration must be conducted in Los Angeles County and the 

prevailing party, in addition to any other awards received, shall 

be entitled to reasonable attorney’s fees and costs.” 

On December 18, 2019, while Johnny was still at the 

facility, Creative Care lost accreditation for its substance abuse 

treatment services. Late at night on February 12, 2020, Creative 

Care informed Johnny’s family that the facility was going to 

transfer Johnny immediately to another facility, even though his

therapist advised against the transfer. Creative Care told 

Johnny’s family the transfer would cost $5,000. Johnny’s sister

McKenzie objected to the transfer, but Creative Care’s senior 

admissions coordinator told her that Johnny would be transferred 

3 We refer to the Loflin parties by their first names to avoid 

confusion. Our factual recitation is based on the allegations in 

the complaint.
4

or he would be “out on the street” that night. After speaking with 

one of Creative Care’s doctors and its founder, McKenzie agreed 

to transfer Johnny to the other facility. Less than two months 

after being transferred, Johnny was found unresponsive in a 

bathroom after ingesting fentanyl, and he died soon after. 

B. The Complaint 

On June 29, 2022, the Loflin heirs and Johnny’s estate filed 

an action against the Creative Care defendants. The Loflin heirs

alleged causes of action for wrongful death (§ 377.60 et seq.),

fraudulent misrepresentation, and intentional infliction of 

emotional distress; Johnny’s estate alleged causes of action for

survival (§ 377.30 et. seq.) and violations of the Elder Abuse and 

Dependent Adult Civil Protection Act (Welf. & Inst. Code, 

§ 15600 et seq.).

4 All claims were based on a common set of “facts 

giving rise to all claims.” (Capitalization, boldface, and 

underlining omitted.)

The wrongful death and survival causes of action alleged, 

using almost identical language, that the Creative Care 

defendants owed a duty of care to Johnny, and they breached 

that duty by failing to provide medical care for his physical and 

mental needs, ultimately causing his death. The elder abuse 

cause of action alleged the Creative Care defendants “neglected 

Johnny by failing to use the degree of care that a reasonable 

person in the same situation [as his caretaker] would have used 

4 The amended complaint separately alleged a cause of 

action for “professional liability—negligence” against Cliffside 

Malibu, Inc. Cliffside Malibu was later dismissed from the action 

pursuant to a good faith settlement. 
5

in providing for Johnny’s basic needs.” The fraudulent 

misrepresentation cause of action alleged that Creative Care 

made intentionally false representations to Johnny’s family 

regarding his psychiatric care. The intentional infliction of 

emotional distress cause of action alleged the Creative Care

defendants’ misrepresentations regarding psychiatric care and 

threats to throw Johnny “‘out on the street’” were “outrageous, 

i.e., so extreme as to exceed all bounds of that usually tolerated in 

a civilized community,” causing the Loflin heirs to suffer 

emotional distress. 

C. The Creative Care Defendants’ Motion To Compel 

Arbitration

In August 2022 the Creative Care defendants filed their 

motions to compel arbitration (styled as petitions to compel 

arbitration). The Creative Care defendants argued the 

arbitration provision in the admissions agreement bound the 

Loflin heirs, even though only Johnny signed the agreement,

because the agreement reflected the parties’ intent that all claims 

arising from the care and services rendered to Johnny during his 

stay at Creative Care be arbitrated. Further, the Loflin heirs 

were required to arbitrate their claims pursuant to section 1295, 

which sets forth requirements for arbitration provisions in 

contracts for medical services. They also highlighted California’s 

strong public policy favoring arbitration. 

In their oppositions, the Loflin plaintiffs argued the heirs

were not bound by the arbitration provision because it did not 

purport to bind the heirs, successors, or family members. 

Further, section 1295 did not apply because the arbitration 

agreement did not comply with the statutory requirements. In 
6

addition, given the possibility of conflicting rulings if the estate’s

claims were arbitrated and the Loflin heirs’ claims litigated in 

court, the court should exercise its discretion under 

section 1281.2, subdivision (c), to deny arbitration of the estate’s 

claims. 

In their reply briefs, the Creative Care defendants argued 

section 1281.2, subdivision (c), did not apply because all the 

parties were bound by the arbitration agreement, so there were 

no third parties. Khaleghi also argued that, “[a]t a bare 

minimum, the causes of action brought on behalf of the estate 

should be ordered to arbitration . . . with any causes of action not 

subject to arbitration (if any) remaining stayed pending the 

completion of arbitration.” 

D. The Trial Court’s Ruling 

At the December 12, 2022, hearing on the motions, the 

Creative Care defendants’ attorney asserted, among other 

arguments, that under the Supreme Court’s decision in Ruiz v. 

Podolsky (2010) 50 Cal.4th 838 (Ruiz), nonsignatory heirs are 

required to arbitrate professional negligence claims brought 

against health care providers under section 1295. The Loflin 

plaintiffs’ counsel argued Ruiz was inapplicable because, unlike 

in Ruiz, the arbitration agreement did not reflect an intent to 

bind the Loflin heirs. Following arguments from the attorneys, 

the trial court took the matter under submission. 

On December 15, 2022 the trial court issued an order 

denying the motions to compel arbitration. The court found (1) 

the arbitration agreement did not comply with the mandatory 

provisions of section 1295; and (2) there was no evidence of an 

intent to bind the nonsignatory Loflin heirs to the arbitration 
7

agreement. The court exercised its discretion under 

section 1281.2, subdivision (c), to deny arbitration of all claims

because the wrongful death and survivor claims were based on 

the same facts, and there was a strong possibility of conflicting 

rulings on common issues of law and fact if the estate’s claims 

were arbitrated and the Loflin heirs’ claims were litigated in 

court.

5 

The Creative Care defendants timely appealed. 

DISCUSSION

A. Governing Law on Arbitration Agreements and Standard of

Review

Section 1281.2 requires the trial court to order arbitration 

of a controversy, subject to exceptions not applicable here, “‘[o]n 

petition of a party to an arbitration agreement alleging the 

existence of a written agreement to arbitrate a controversy and 

that a party to the agreement refuses to arbitrate such 

controversy . . . if it determines that an agreement to arbitrate 

the controversy exists.’” (Trinity v. Life Ins. Co. of North America 

(2022) 78 Cal.App.5th 1111, 1119-1120.) “Generally speaking, 

one must be a party to an arbitration agreement to be bound by 

it. ‘The strong public policy in favor of arbitration does not 

extend to those who are not parties to an arbitration agreement, 

and a party cannot be compelled to arbitrate a dispute that he 

has not agreed to resolve by arbitration.’” (Monschke v. Timber 

Ridge Assisted Living, LLC (2016) 244 Cal.App.4th 583, 586-587; 

5 For ease of reference, like the trial court, we refer to the 

Loflin heirs’ claims collectively as their wrongful death claims 

and the estate’s claims as the survivor claims.
8

accord, Pinnacle Museum Tower Assn. v. Pinnacle Market 

Development (U.S.), LLC (2012) 55 Cal.4th 223, 236 [“‘“a party 

cannot be required to submit to arbitration any dispute which he

[or she] has not agreed so to submit”’”].)

In Ruiz, supra, 50 Cal.4th at page 841, the Supreme Court 

carved out an exception to the general rule that only parties to 

arbitration agreements are bound, holding with respect to 

medical malpractice claims that “all wrongful death claimants 

are bound by arbitration agreements entered into pursuant to 

section 1295, at least when . . . the language of the agreement 

manifests an intent to bind these claimants.” The court in Ruiz

explained, “‘Section 1295 was enacted as part of the Medical 

Injury Compensation Reform Act of 1975 (MICRA). . . . The 

purpose of section 1295 is to encourage and facilitate arbitration 

of medical malpractice disputes. [Citations.] Accordingly, the 

provisions of section 1295 are to be construed liberally.’ In other 

words, the encouragement of arbitration ‘“as a speedy and 

relatively inexpensive means of dispute resolution”’ [citation] 

furthers MICRA’s goal of reducing costs in the resolution of 

malpractice claims and therefore malpractice insurance 

premiums.” (Id. at pp. 843-844; accord, Holland v. Silverscreen 

Healthcare, Inc. (2024) 101 Cal.App.5th 1125, 1132 [“Ruiz 

concluded ‘that section 1295, construed in light of its purpose, is 

designed to permit patients who sign arbitration agreements to 

bind their heirs in wrongful death actions.’”]; Daniels v. Sunrise

Senior Living, Inc. (2013) 212 Cal.App.4th 674, 682 (Daniels).)

The party seeking to compel arbitration bears the burden of 

proving by a preponderance of the evidence an agreement to 

arbitrate a dispute exists, and the party opposing arbitration 

bears the burden of proving unconscionability or other defenses. 
9

(Pinnacle Museum Tower Assn. v. Pinnacle Market Development 

(U.S), LLC, supra, 55 Cal.4th at p. 236; Rosenthal v. Great 

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

“Absent conflicting evidence, we review de novo the trial court’s 

interpretation of an arbitration agreement.” (Trinity v. Life Ins. 

Co. of North America, supra, 78 Cal.App.5th at p. 1120; accord, 

Villareal v. LAD-T, LLC (2022) 84 Cal.App.5th 446, 456 [“[W]e 

independently review the order [to compel arbitration] if the trial 

court’s denial rests solely on a question of law.”].)

B. The Loflin Heirs Are Not Bound by the Arbitration 

Agreement 

The Creative Care defendants contend that, as in Ruiz, 

supra, 50 Cal.4th at pages 850 to 851, the Loflin heirs are bound 

by the arbitration agreement even though they did not sign the 

admissions agreement. There are two fatal flaws in the Creative 

Care defendants’ argument: the arbitration agreement did not 

purport to bind Johnny’s heirs, and the arbitration agreement did 

not comply with section 1295. 

The arbitration agreement in Ruiz provided “that this 

agreement binds all parties whose claims may arise out of or 

relate to treatment or service provided by the physician including 

any spouse or heirs of the patient and any children, whether born 

or unborn, at the time of the occurrence giving rise to the claim.” 

(Ruiz, supra, 50 Cal.4th at pp. 841-842, italics added.) By 

contrast, the arbitration agreement here stated only that Johnny, 

any guarantor, and the Creative Care facility agreed that 

arbitration “is the sole and the exclusive remedy against Creative 

Care and its staff.” The absence of language in the arbitration 

agreement binding heirs, spouses, or family members shows a 
10

lack of intent to bind anyone other than Johnny and Creative 

Care (or a guarantor).6 

This case also differs from Ruiz because the admissions 

agreement failed to comply with MICRA’s requirements in

section 1295. Section 1295, subdivision (a), provides that the first 

article of any contract requiring arbitration of medical 

malpractice disputes “shall have” the following language: “‘It is 

understood that any dispute as to medical malpractice, that is as 

to whether any medical services rendered under this contract 

were unnecessary or unauthorized or were improperly, 

negligently or incompetently rendered, will be determined by 

submission to arbitration as provided by California law, and not 

by a lawsuit or resort to court process except as California law 

provides for judicial review of arbitration proceedings. Both 

parties to this contract, by entering into it, are giving up their 

constitutional right to have any such dispute decided in a court of 

law before a jury, and instead are accepting the use of 

arbitration.’” 

6 Khaleghi contends that because Johnny’s sister McKenzie 

was designated as his agent for purposes of obtaining care for 

Johnny, as alleged in the complaint, she was bound by the 

Agreement under Civil Code section 2337, which states a 

principal may bind an agent “if such intent is plainly inferable 

from the instrument itself.” But it is not “plainly inferable” from 

the arbitration agreement that the parties intended to bind 

anyone other than the signatories. Further, the fact McKenzie 

was Johnny’s agent for the purpose of obtaining medical care for 

him does not mean she intended to give up her right to a jury 

trial on any claims she might have in her personal capacity. 
11

The first article in the admissions agreement does not 

contain the mandatory language prescribed by section 1295, 

subdivision (a), providing only: “1. ADMISSION: The 

undersigned hereby requests admission for the above-named 

client to [Creative Care].” The arbitration provision is contained 

in paragraph 16 on the second page of the admissions agreement. 

Moreover, the admissions agreement does not comply with 

MICRA’s notice requirement under section 1295, subdivision (b), 

which provides, “Immediately before the signature line provided 

for the individual contracting for the medical services must 

appear the following in at least 10-point bold red type: [¶] 

NOTICE: BY SIGNING THIS CONTRACT YOU ARE 

AGREEING TO HAVE ANY ISSUE OF MEDICAL 

MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND 

YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT 

TRIAL. SEE ARTICLE 1 OF THIS CONTRACT.” Here, the 

admissions agreement contains no such notice provision above

the client signature line (or anywhere). Indeed, the arbitration 

provision, placed in the middle of the agreement, does not state 

that the parties are waiving their right to a jury, nor is it in red 

bold type or capital letters. 

Because the arbitration agreement failed to give the 

required notice under MICRA, section 1295 cannot be relied on to 

require the nonsignatory Loflin heirs to arbitrate their claims. 

(Herbert v. Superior Court, supra, 169 Cal.App.3d at p. 727

[“Under section 1295, arbitration of wrongful death or other 

professional negligence claims may not be compelled if the 

requirements of that section are not met.”]; see Daniels, supra, 

212 Cal.App.4th at p. 683 [explaining in affirming denial of 

motion to compel arbitration of wrongful death claims, “we 
12

disagree that Ruiz should be extended to arbitration agreements 

not governed by section 1295”].) 

Herbert v. Superior Court (1985) 169 Cal.App.3d 718, 720, 

725, relied on by the Creative Care defendants, does not support 

their position. There, Clarence Herbert’s estate filed claims for 

medical negligence and fraud arising out of his death following 

surgery, and his heirs filed claims for wrongful death and other 

torts. (Id. at pp. 720-721.) It was undisputed that Herbert was 

bound by an arbitration agreement in a health care service plan 

that covered his wife and minor children, requiring arbitration

for “any claim asserted by a member or a member’s heir or 

personal representative.” (Id. at p.720, italics added.) The Court 

of Appeal concluded that Herbert’s wife and minor children were 

bound by the arbitration agreement because the agreement 

explicitly bound Herbert’s heirs; Herbert had the legal ability to 

bind his wife and minor children; and the health care service plan 

provided notice of the arbitration provision similar to that 

required under section 1295. (Id. at pp. 726-727.) None of these 

factors is present here. 

Finally, the Creative Care defendants contend that 

although the Loflin heirs did not sign the arbitration agreement, 

they were bound as the “‘[g]uarantor[s] of the Client’s payment’” 

because they “paid for [Johnny’s] treatment.” However, the term

“guarantor” is not defined anywhere in the agreement. Even 

under paragraph 19, which is titled “Billing and Payments”

(capitalization omitted), there is no mention of a guarantor of 

payments for Johnny. Paragraph 19 provides, “If you are paying 

privately for treatment, you are expected to pay at the time of 

admission,” suggesting only Johnny was responsible for payment. 

Moreover, Civil Code section 2787 defines a “guarantor” as “one 
13

who promises to answer for the debt, default, or miscarriage of 

another, or hypothecates property as security therefor.” The 

Creative Care defendants presented no evidence that the Loflin 

heirs ever agreed to be guarantors of Johnny’s payments within 

the meaning of Civil Code section 2787. McKenzie made one 

payment of $5,000 for Johnny’s transfer to the new treatment 

facility, but that did not make her the guarantor of Johnny’s 

payments. 

C. The Trial Court Did Not Abuse Its Discretion in Denying 

the Motions To Compel Arbitration as to All Plaintiffs

1. Section 1281.2, subdivision (c)

“[S]ection 1281.2 requires a trial court to enforce a written 

arbitration agreement unless one of three limited exceptions 

applies. [Citation.] Those statutory exceptions arise where (1) a 

party waives the right to arbitration; (2) grounds exist for 

revoking the arbitration agreement; and (3) pending litigation 

with a third party creates the possibility of a conflicting ruling on 

common factual or legal issues.” (Acquire II, Ltd. v. Colton Real 

Estate Group (2013) 213 Cal.App.4th 959, 967; see Leenay v. 

Superior Court (2022) 81 Cal.App.5th 553, 564 [§ 1281.2, 

subd. (c), “addresses litigation with a third party that raises 

‘common issue[s] of law and fact’”].) 

Section 1281.2, subdivision (c), provides an exception to 

mandatory arbitration where “[a] party to the arbitration 

agreement is also a party to a pending court action or special 

proceeding with a third party, arising out of the same transaction 

or series of related transactions and there is a possibility of 

conflicting rulings on a common issue of law or fact.” All three 

requirements must be satisfied before section 1281.2, 
14

subdivision (c), may be invoked to deny a motion to compel 

arbitration. (Avila v. Southern California Specialty Care, Inc.

(2018) 20 Cal.App.5th 835, 845 (Avila); Acquire II, Ltd. v. Colton 

Real Estate Group, supra, 213 Cal.App.4th at p. 968.) “For 

purposes of the statute, a third party is one who is neither bound 

by nor entitled to enforce the arbitration agreement.” (Daniels,

supra, 212 Cal.App.4th at pp. 679.) 

If the requirements of section 1281.2, subdivision (c), are 

met, “the court (1) may refuse to enforce the arbitration 

agreement and may order intervention or joinder of all parties in 

a single action or special proceeding; (2) may order intervention 

or joinder as to all or only certain issues; (3) may order 

arbitration among the parties who have agreed to arbitration and 

stay the pending court action or special proceeding pending the 

outcome of the arbitration proceeding; or (4) may stay arbitration 

pending the outcome of the court action or special proceeding.” 

(§ 1281.2, last para.; see Leenay v. Superior Court, supra, 

81 Cal.App.5th at p. 564.) ‘‘‘[T]he ultimate determination 

[pursuant to section 1281.2, subdivision (c),] whether to stay or 

deny arbitration based on the possibility of conflicting rulings on 

common questions of law or fact is reviewed for an abuse of 

discretion.’” (Nixon v. AmeriHome Mortgage Co., LLC (2021) 

67 Cal.App.5th 934, 946-947; accord, Avila, supra, 20 Cal.App.5th 

at p. 845; Daniels, supra, 212 Cal.App.4th at p. 680.)

2. The trial court did not abuse its discretion in denying 

arbitration of all claims under section 1281.2, 

subdivision (c) 

The Creative Care defendants contend the third-party 

exception under 1281.2, subdivision (c), does not apply because 
15

there were no “third parties” to the arbitration agreement,

relying on their argument that the Loflin heirs were bound by the 

arbitration agreement. As discussed, the Loflin heirs were not 

bound by the arbitration agreement; therefore, they are third 

parties under subdivision (c). (Daniels, supra, 212 Cal.App.4th at 

p. 679.) 

The holding in Laswell v. AG Seal Beach, LLC (2010) 

189 Cal.App.4th 1399, relied on by the Creative Care defendants, 

is not to the contrary. In Laswell, a former patient in the 

Country Villa healthcare facility filed a lawsuit (through her 

daughter) against the facility operator, the owner, and the 

management company for elder abuse and related claims. (Id. at 

p. 1402.) The trial court denied the defendants’ motion to compel 

arbitration on multiple grounds, including that although the 

plaintiff had signed the arbitration agreement, some of the 

defendants did not, and therefore, they were “third parties” under 

section 1281.2, subdivision (c). (Laswell, at p. 1404.) The Court 

of Appeal reversed, holding the exception to arbitration under 

section 1281.2, subdivision (c), “does not apply when all 

defendants, including a nonsignatory to the arbitration 

agreement, have the right to enforce the arbitration provision 

against a signatory plaintiff.” (Laswell, at p. 1405.) Because the 

defendants were “related Country Villa entities,” they could all 

enforce the arbitration agreement and were therefore bound by it. 

(Id. at p. 1407.) Unlike in Laswell, the Loflin heirs were 

nonsignatory plaintiffs, and there was no basis on which they 

could enforce the arbitration agreement; therefore, they were not 

bound by the agreement. 

The other two requirements for application of 

section 1281.2, subdivision (c), are also met. The Loflin heirs’ 
16

claims and the estate’s claims, as alleged, are all based on the 

same “facts giving rise to all claims” (capitalization, boldface, and 

underlining omitted), namely, that in February 2020 Johnny’s 

family was forced to transfer Johnny to another facility even 

though the transferee facility was not appropriate for Johnny’s 

treatment, and due to the lack of proper treatment at the new 

facility, Johnny died two months later after ingesting fentanyl. 

Therefore, the claims arise out of the same transaction or series 

of transactions. (See Avila, supra, 20 Cal.App.5th at p. 845 [the

survivor and wrongful death claims “involve the same set of

operative facts”]; Daniels, supra, 212 Cal.App.4th at p. 686 [the

survivor and wrongful death claims were all “based on the

allegation that [the decedent] received inadequate care at

Sunrise”].)

In addition, as the trial court found, because “the wrongful 

death claim is based on the same facts as the survivor claims, 

there is a possibility of conflicting rulings on common issues of 

law and fact” if the estate’s claims were arbitrated and the Loflin 

heirs’ claims were litigated in the trial court. (See Avila, supra,

20 Cal.App.5th at p. 845 [because the claims involved the same 

operative facts, “[i]f the survivor claims were arbitrated while the 

wrongful death claim was litigated, there is a strong possibility of 

inconsistent rulings”]; Daniels, supra, 212 Cal.App.4th at p. 686 

[because the claims were based on the same alleged inadequate 

care, “if the survivor claims are ordered to arbitration but 

Daniels’s wrongful death claim was not, there is a possibility of 

inconsistent rulings on the claims”].) 

As the Court of Appeal observed in Birl v. Heritage Care, 

LLC (2009) 172 Cal.App.4th 1313, 1322, in which the decedent’s 

family members sued a nursing home, hospital, and treating 
17

doctors for wrongful death and survivor claims, if the trial court 

only compelled the survivor claims to arbitration, “different triers 

of fact could reach different conclusions as to which party was at 

fault, the cause of any injuries, and the apportionment of 

liability—unless all the parties are joined in one action.” Here, as 

in Birl, different triers of fact could reach conflicting decisions 

with respect to liability of Creative Care and the individual 

doctors. 

Once the trial court determined that all three requirements 

for application of section 1281.2, subdivision (c), were met, it had 

discretion to select one of the four options in the last paragraph of 

section 1281.2. Khaleghi contends that even if section 1281.2, 

subdivision (c), applied, the trial court abused its discretion by 

selecting option (1) (refusing to enforce the arbitration 

agreement) instead of option (3) (ordering arbitration of the 

estate’s claims and staying litigation of the heirs’ claims). This 

argument is unavailing. 

Khaleghi failed to raise this argument in her motion to 

compel arbitration in the trial court, forfeiting the challenge. 

(Lopez v. Ledesma (2022) 12 Cal.5th 848, 866 [“‘[A] reviewing 

court ordinarily will not consider a challenge to a ruling if an 

objection could have been but was not made in the trial court.’”].) 

In addition, Khaleghi failed in her opening brief to provide any 

legal or factual argument why the trial court abused its 

discretion in selecting option (3) instead of option (1). (See Lee v. 

Kim (2019) 41 Cal.App.5th 705, 721 [appellant’s “burden on 

appeal ‘includes the obligation to present argument and legal 

authority on each point raised.’”].) Even if Khaleghi did not 

forfeit this argument, it was well within the court’s discretion to 

select option (1) and refuse to compel the estate’s claims to 
18

arbitration, which would delay relief for the Loflin heirs until the 

arbitration had concluded. (See Fitzhugh v. Granada Healthcare 

& Rehabilitation Center, LLC (2007) 150 Cal.App.4th 469, 475 

[rejecting argument that the trial court should have compelled 

arbitration of the estate’s claims and stayed the heirs’ claims

because on appeal the court “will not disturb the court’s 

discretionary ruling unless it exceeded the bounds of reason”].)

DISPOSITION

The order denying the Creative Care defendants’ motions

to compel arbitration is affirmed. The Loflin plaintiffs are

entitled to recover their costs on appeal.

FEUER, J.

We concur:

MARTINEZ, P. J.

STONE, J.