Filed 9/16/24 Kourtakis v. Capistrano Beach Care Center CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION THREE

PAMELA KOURTAKIS,

 Plaintiff and Respondent,

v.

CAPISTRANO BEACH CARE 

CENTER, LLC et al.,

 Defendants and Appellants.

 G062935

 (Super. Ct. No. 30-2021-

 01205006)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, 

David J. Hesseltine, Judge. Reversed and remanded with directions.

Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre, Tracy D. 

Forbath, Suzanne L. Schmidt, Kathleen M. Walker and Jeffrey S. Healey for 

Defendants and Appellants.

Law Offices of Felicia C. Curran and Felicia C. Curran for 

Plaintiff and Respondent.
2

Plaintiff Pamela Kourtakis filed a complaint against Capistrano 

Beach Care Center, LLC and Cambridge Healthcare Services, LLC 

(collectively, the Capistrano defendants), asserting claims both in her 

capacity as successor in interest to her deceased mother, Lucille Kourtakis,

and in her individual capacity.

1 The complaint alleges Lucille passed away 

after residing for approximately seven months at a skilled nursing facility

that was owned and operated by the Capistrano defendants (the facility). The 

Capistrano defendants appeal from an order denying their petition to compel 

arbitration of Pamela’s individual claims. 

This is the second appeal in this matter. The Capistrano 

defendants previously petitioned to compel arbitration of all claims contained 

in the complaint based on an arbitration agreement signed by Pamela but not 

by Lucille; the trial court denied the petition. In the first appeal, a panel of 

this court affirmed the order denying the petition as to Pamela’s claims as 

successor in interest to Lucille but remanded to the trial court to determine 

whether Pamela’s individual claims must be arbitrated. (Kourtakis v. 

Capistrano Beach Care Center, LLC et al. (Feb. 2, 2023, G060922) [nonpub. 

opn.] (Kourtakis I).) On remand, following supplemental briefing by the 

parties, the trial court denied the petition as to Pamela’s individual claims on 

the ground the arbitration agreement was unconscionable. 

We reverse. The trial court erred by concluding the arbitration 

agreement was substantively unconscionable and denying the petition to 

compel arbitration of Pamela’s individual claims on that basis. We remand 

with directions for the trial court to determine, in the first instance, whether 

1 As Pamela and Lucille Kourtakis share the same last name, we 

refer to them by their first names; we intend no disrespect. 
3

any of the other arguments raised by Pamela in her opposition to the petition 

has merit.

FACTUAL AND PROCEDURAL HISTORY

I.

THE COMPLAINT

In June 2021, Pamela filed a complaint against the Capistrano

defendants. We summarize the allegations of the complaint relevant to the 

issues presented in this appeal as follows. Lucille was admitted to the facility 

for rehabilitation after she broke her shoulder. Lucille’s weight dropped 20 

pounds during the approximately seven-month period she resided at the 

facility. During a visit on July 5, 2020, Pamela purportedly saw Lucille 

“cough repeatedly, gasp for air, try to catch her breath, and throw up.”

Pamela “was in a panic because she knew that [Lucille] needed emergency 

treatment at the hospital, but the [n]urse was giving her push back and 

would not agree to let [Lucille] be transported to the hospital.” Pamela took 

Lucille to the hospital, where Lucille was diagnosed with, among other 

things, respiratory distress and severe protein and calorie malnourishment. 

Lucille passed away on July 22, 2020.

The complaint asserts claims for wrongful death and negligent 

infliction of emotional distress by Pamela in her individual capacity. It also 

asserts claims in her capacity as Lucille’s successor in interest for (1) reckless 

or willful neglect of an elder in violation of the Elder Abuse and Dependent 

Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.; Elder Abuse 

Act) and (2) violation of the Patient Bill of Rights (Health & Saf. Code, 

§ 1430, subd. (b)). 
4

II.

THE PETITION TO COMPEL ARBITRATION

The Capistrano defendants filed a petition to compel arbitration

(the petition) based on a two-page arbitration agreement, entitled 

“RESIDENT–FACILITY ARBITRATION AGREEMENT,” which Pamela

signed on Lucille’s behalf and “as an Individual” (Agreement). (Boldface 

omitted.) On the first page of the Agreement, the line designated for 

“Resident Name” is blank, as are two lines designated for “Initials.” The 

Agreement also states on the first page: “Residents shall not be required to 

sign this arbitration agreement as a condition of admission to this facility.”

The Agreement contains eight articles, two of which are most relevant to this 

appeal.

First, Article 4 provides: “This Agreement shall be binding for 

any dispute, except for disputes pertaining to collections or evictions. This 

Agreement is binding on all parties, including the Resident’s representatives, 

executors, family members, and heirs who bring any claims individually or in 

a representative capacity. The Resident’s representatives, agents, executors, 

family members, successors in interest and heirs who execute this Agreement 

below on the signature line are doing so not only in their representative 

capacity for the Resident, but also in their individual capacity and thus agree 

that any claims brought individually by any such representatives, agents, 

executors, family members, representatives, successors in interest and heirs 

are subject to binding arbitration. This Agreement may be rescinded by 

written notice within thirty (30) days of signature.”

Second, Article 6 provides: “Resident and Facility agree that 

California substantive law, including California Code of Civil Procedure 

§667.7 and Civil Code §§3333.1-3333.2 applies to any and all claims arising 
5

out of the care, treatment and services provided to the Resident by the 

Facility. The parties agree that California Code of Civil Procedure §1281.2(c) 

is excluded from this Agreement as the parties mutually desire to have any 

and all disputes submitted to binding arbitration. The parties do not want 

any claims not subject to arbitration to impede any and all other claims from 

being ordered to binding arbitration. The expenses and fees of the 

arbitrator(s) shall be apportioned equally among all parties except as 

otherwise permitted by law.”

The Agreement concludes with two notices written in red font.

The first notice provides: “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.”

(Boldface and some capitalization omitted.) The second notice provides: “By 

signing this contract you are agreeing to have all claims, including claims 

other than a claim for medical malpractice, decided by arbitration and you 

are giving up your right to a jury or court trial and you agree that no party 

shall adjudicate any claim on a class action basis.” (Boldface and some 

capitalization omitted.) 

Pamela’s signature appears on the line labeled under each notice 

as “Signature on behalf of the Resident and as an Individual[.]” Signatures 

appear on the corresponding lines labeled for the facility representative. The 

line under each notice labeled “Resident’s Signature” is blank. 

III.

THE TRIAL COURT DENIES THE PETITION AND THE CAPISTRANO DEFENDANTS 

APPEAL; THE APPELLATE COURT AFFIRMS IN PART AND REMANDS THE MATTER

The trial court denied the petition as to Pamela’s claims made in 

her capacity as successor in interest to Lucille on the ground Lucille had not 
6

entered into the Agreement and the Capistrano defendants failed to show 

Pamela was authorized to enter the Agreement on Lucille’s behalf. The trial 

court denied the petition as to the claims Pamela brought in her individual 

capacity by exercising its discretion under Code of Civil Procedure section 

1281.2, subdivision (c)2to avoid inconsistent rulings. 

On appeal, a panel of this court affirmed the order denying the 

petition as to the claims Pamela brought in her capacity as successor in 

interest to Lucille on the ground the Capistrano defendants failed to show the 

existence of a valid agreement to arbitrate Lucille’s claims for elder abuse 

and violation of Health and Safety Code section 1430. (Kourtakis I, supra, 

G060922.) As to the claims Pamela brought in her individual capacity, the 

appellate court concluded the trial court erred by denying the petition based 

on section 1281.2, subdivision (c) before determining whether the Agreement 

was an enforceable agreement between the Capistrano defendants and 

Pamela. (Kourtakis I, supra, G060922.) The court then remanded the matter 

with directions that the trial court determine whether such an agreement 

exists and, if so, whether Pamela’s individual claims are arbitrable under it. 

(Ibid.)

2

Section 1281, subdivision (c) of the Code of Civil Procedure

provides in part a trial court shall order arbitration of a controversy if it 

determines that an agreement to arbitrate the controversy exists unless it 

finds “[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 further undesignated code sections are to the Code of Civil 

Procedure.
7

IV.

ON REMAND, THE TRIAL COURT CONCLUDES THE AGREEMENT IS 

UNENFORCEABLE AS UNCONSCIONABLE AND DENIES THE PETITION

Following remand, the Capistrano defendants filed supplemental 

briefing in support of the petition as to Pamela’s individual claims. Pamela 

filed supplemental opposition to the petition, which included her declaration. 

In that declaration, Pamela described the circumstances surrounding her 

execution of the Agreement as follows: “Some time after [Lucille] moved into 

[the facility], I was asked to step into the office of a gentleman named Carlos 

at [the facility]. I am not sure of Carlos’ exact title, but he is part of the 

business office of the facility. [Lucille] was not present for this conversation. 

Carlos had some papers, and he said, now that [Lucille] had moved in, they 

wanted me to sign the admitting paperwork. He did not give me an 

opportunity to read the papers, and he did not give me a copy of the papers. 

He did say that one of the papers was for arbitration, and he told 

me . . . where to sign. He did not tell me that I did not need to sign the 

papers. He said that everyone signs the papers. I did not know that I did not 

need to sign the arbitration papers in order for [Lucille] to stay there. I was 

afraid that they might ask [Lucille] to leave if I did not sign. I did not want to 

say or do anything that would make them not want to keep [Lucille] as a 

patient, because she needed rehabilitation therapies to recover from the 

shoulder injury. So I signed where he asked me to sign. Carlos is the only 

person from [the facility] that I recall speaking to regarding the arbitration 

paperwork.” Pamela also said there was no money in her mother’s estate. 

The trial court denied the petition as to Pamela’s individual 

claims after finding the Agreement was unconscionable and, thus, not 

enforceable against Pamela. Regarding procedural unconscionability, the 
8

trial court recognized “Pamela declare[d] she thought she needed to sign the 

agreement to get care for her mother, she was not given time to read the 

agreement, she was not given a copy, and she signed where she was asked to 

sign.” The trial court noted the Capistrano defendants did not provide any 

evidence to the contrary, and it found Pamela’s version of events to be 

credible given there was no resident name or initials on the first page of the 

Agreement. The trial court found further support for procedural 

unconscionability because the Agreement was “captioned as ‘ResidentFacility Arbitration Agreement,’ [the Agreement] refers in Article 2 to ‘any 

dispute between Resident and Capistrano,’ Pamela’s name was not on the 

agreement, and Article Four, which is the provision purporting to requiring

[sic] Pamela to arbitrate claims in her individual capacity, was inserted into 

the agreement without any heading or highlighting to draw attention to it.”

The trial court noted the signature block’s reference to “Signature on behalf 

of the Resident and as an Individual” reduced the amount of procedural 

unconscionability but did not eliminate it. Ultimately, the trial court

concluded there was “a fair degree of procedural unconscionability.”

The trial court also concluded there was a fair degree of 

substantive unconscionability. The trial court determined two provisions 

were substantively unconscionable: (1) the provision exempting “disputes 

pertaining to collections or evictions[,]” which the trial court described as 

being the most likely that the Capistrano defendants would bring against 

residents, and (2) the provision stating “[t]he expenses and fees of the 

arbitrator(s) shall be apportioned equally among all parties except as 

otherwise permitted by law.” For these reasons, the trial court determined
9

the Agreement could not be enforced against Pamela as to her individual

claims. 

The Capistrano defendants filed a timely notice of appeal.

DISCUSSION

For the reasons we will explain, the trial court erred by denying 

the petition as to Pamela’s individual claims on the ground the Agreement 

was unenforceable as unconscionable. While the Agreement had some degree 

of procedural unconscionability, it was devoid of substantive 

unconscionability.

I.

OVERVIEW OF THE UNCONSCIONABILITY DOCTRINE AND 

THE APPLICABLE STANDARD OF REVIEW

“‘“[G]enerally applicable contract defenses, such 

as . . . unconscionability, may be applied to invalidate arbitration agreements 

without contravening” the FAA’ or California law.” (OTO, L.L.C. v. Kho

(2019) 8 Cal.5th 111, 125 (OTO).) “A contract is unconscionable if one of the 

parties lacked a meaningful choice in deciding whether to agree and the 

contract contains terms that are unreasonably favorable to the other party.”

(Ibid.) There are thus both procedural and substantive elements. (Ibid.) 

Procedural unconscionability “‘addresses the circumstances of contract 

negotiation and formation, focusing on oppression or surprise due to unequal 

bargaining power,’” and ‘“[s]ubstantive unconscionability pertains to the 

fairness of an agreement’s actual terms and to assessments of whether they 

are overly harsh or one-sided.’” (Ibid.) “[C]ourts are required to determine the 

unconscionability of the contract ‘at the time it was made.’” (Sanchez v. 

Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 920.) 
10

While “[b]oth procedural unconscionability and substantive 

unconscionability must be shown, . . . ‘they need not be present in the same 

degree’ and are evaluated on ‘“a sliding scale.”’” (Pinnacle Museum Tower 

Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 247 

(Pinnacle).) “‘[T]he more substantively oppressive the contract term, the less 

evidence of procedural unconscionability is required to come to the conclusion 

that the term is unenforceable, and vice versa.’” (Ibid.) “‘The ultimate issue in 

every case is whether the terms of the contract are sufficiently unfair, in view 

of all relevant circumstances, that a court should withhold enforcement.’”

(OTO, supra, 8 Cal.5th at p. 126.) Notably, “[t]he degree of unfairness 

required for unconscionability must be as rigorous and demanding for 

arbitration clauses as for any other contract clause.” (Id. at p. 125.) As the 

party asserting unconscionability, Pamela has the burden of proving it. (See 

id. at p. 126.) 

On appeal, the Capistrano defendants argue the trial court erred 

in denying the petition as to Pamela’s individual claims because there is no 

procedural or substantive unconscionability. “Whether an agreement is 

unconscionable presents a question of law which we review de novo.” (Lopez

v. Bartlett Care Center, LLC (2019) 39 Cal.App.5th 311, 320 (Lopez).) 

However, “‘“factual issues may bear on that determination. [Citations.] Thus, 

to the extent the trial court’s determination that the arbitration agreement 

was unconscionable turned on the resolution of conflicts in the evidence or on 

factual inferences to be drawn from the evidence, we consider the evidence in 

the light most favorable to the trial court’s ruling and review the trial court’s 

factual determinations under the substantial evidence standard.”’” (Ibid.) 
11

II.

THE AGREEMENT IS MODERATELY PROCEDURALLY UNCONSCIONABLE

“[P]rocedural unconscionability requires oppression or surprise. 

‘“Oppression occurs where a contract involves lack of negotiation and 

meaningful choice, surprise where the allegedly unconscionable provision is 

hidden within a prolix printed form.”’” (Pinnacle, supra, 55 Cal.4th at p. 247.) 

“‘The circumstances relevant to establishing oppression include, but are not 

limited to (1) the amount of time the party is given to consider the proposed 

contract; (2) the amount and type of pressure exerted on the party to sign the 

proposed contract; (3) the length of the proposed contract and the length and 

complexity of the challenged provision; (4) the education and experience of 

the party; and (5) whether the party’s review of the proposed contract was 

aided by an attorney.’” (OTO, supra, 8 Cal.5th at pp. 126–127.) 

We conclude the Agreement here has a moderate degree of

procedural unconscionability. This court’s decision in Lopez, supra, 39 

Cal.App.5th 311 is instructive. In Lopez, the daughter of a deceased resident 

of a nursing facility sued the facility, among others, as successor in interest 

and individually. (Id. at pp. 313–314.) The daughter, but not the deceased 

resident, had signed a two-page arbitration agreement titled “RESIDENTFACILITY ARBITRATION AGREEMENT” on a signature block labeled 

“Resident Representative/Agent Signature.” (Ibid.) Article four of that

arbitration agreement “purport[ed] to bind ‘in their individual capacity’ any 

persons ‘who execute this Agreement below on the “Resident 

Representative/Agent Signature” line,’ thereby mandating arbitration of the 

representative’s individual claims against the Facility and any claims 

brought in a representative capacity.” (Id. at p. 314, fn. omitted.) Lopez

determined the petition to compel arbitration was properly denied as to the 
12

claims brought as successor in interest because the daughter had no 

authority to execute the arbitration agreement on behalf of the deceased 

resident. (Id. at pp. 317–320.) Lopez also concluded the arbitration agreement 

was unenforceable as to the daughter’s individual claim because it was 

unconscionable. (Id. at pp. 320–322.) 

As for procedural unconscionability, the appellate court in Lopez, 

supra, 39 Cal.App.5th at page 321 determined “the brevity of the arbitration 

agreement and the fact it contained boldface and red lettering does not 

overcome the fact the agreement on its face is between a resident and the 

facility. Nowhere does the agreement warn that a person who signs as a 

resident’s representative or agent is agreeing to be bound in his or her 

individual capacity and representative capacity. Article four contains no 

heading or other warning that it includes a provision waiving the individual 

trial rights of one who signs the agreement as a resident’s representative or 

agent. Nor does the signature block warn of the purported dual capacity in 

which the representative is signing.”

The Agreement before us is similar to the one in Lopez. As in 

Lopez, the agreement appears on its face to be between the resident and the 

facility with the title “RESIDENT – FACILITY ARBITRATION 

AGREEMENT.” (Boldface omitted.) And the Agreement’s article four here 

similarly has no heading or warning regarding waiver of individual trial 

rights for one who signs. But there is a difference: the signature block here 

indicates: “Signature on behalf of the Resident and as an Individual.” We

agree with the trial court the signature block difference reduces but does not 

eliminate the procedural unconscionability. While the signature block may 

provide some warning of signing in a dual capacity, it does not alone make 

clear what exactly the signer is potentially waiving in his or her individual 
13

capacity. Again, the title of the document indicates it is an arbitration 

agreement between the resident and facility.

Pamela’s declaration provides further support for a finding of

some degree of procedural unconscionability. Pamela stated in her 

declaration filed in opposition to the petition someone named Carlos at the

facility brought her into his office, where he said “they wanted [her] to sign 

the admitting paperwork[,]” “did not give [her] an opportunity to read the 

papers,” and “told [her] where to sign” and “everyone signs the papers.”

3 The 

Capistrano defendants assert Pamela’s declaration needed to provide more 

details about how the Capistrano defendants caused Pamela to not have 

enough time to review the Agreement, but the trial court credited Pamela’s 

version of events and found the Capistrano defendants introduced no 

contrary evidence. 

The Capistrano defendants argue the Agreement was not 

unconscionable because it did not constitute an adhesive contract. They point 

to language in cases where the “[u]nconscionability analysis begins with an 

inquiry into whether the contract is one of adhesion.” (Armendariz v. 

Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113.) 

According to the Capistrano defendants, this means adhesion is a 

“foundational” issue, essentially arguing there can be no unconscionability 

unless there is an adhesive contract. 

3

The Capistrano defendants also suggest there is no procedural 

unconscionability because Pamela should be presumed to have read and fully 

understood the Agreement regardless of the circumstances. Their argument

is unavailing as it would lead to virtually eliminating any surprise and

oppression analysis, regardless of the circumstances. 
14

“An adhesive contract is standardized, generally on a preprinted 

form, and offered by the party with superior bargaining power ‘on a take-itor-leave-it basis.’” (OTO, supra, 8 Cal.5th at p. 126.) The Capistrano

defendants assert the Agreement was not an adhesive contract because it 

stated the resident was not required to sign as a condition of admission to the 

facility. The Capistrano defendants, however, are incorrect on the law. As a 

panel of this court has stated, “[a]dhesion is not a prerequisite for 

unconscionability.” (Harper v. Ultimo (2003) 113 Cal.App.4th 1402, 1409.)

III.

THE AGREEMENT IS NOT SUBSTANTIVELY UNCONSCIONABLE

“Substantive unconscionability examines the fairness of a 

contract’s terms. This analysis ‘ensures that contracts, particularly contracts 

of adhesion, do not impose terms that have been variously described as 

“‘“overly harsh”’” [citation], “‘unduly oppressive’” [citation], “‘so one-sided as 

to “shock the conscience”’” [citation], or “unfairly one-sided”’” (OTO, supra, 8 

Cal.5th at pp. 129–130.) These descriptors “‘point to the central idea that the 

unconscionability doctrine is concerned not with “a simple old-fashioned bad 

bargain” [citation], but with terms that are “unreasonably favorable to the 

more powerful party.”’” (Id. at p. 130.) “‘“‘[T]he paramount consideration in 

assessing [substantive] conscionability is mutuality.’”’ [Citation.] Unilateral 

terms with ‘overly harsh effect[s]’ are the hallmark of substantive 

unconscionability.” (Nelson v. Dual Diagnosis Treatment Center, Inc. (2022) 

77 Cal.App.5th 643, 662.)

Here, the trial court concluded two provisions in the Agreement 

were substantively unconscionable. First, the trial court determined there 

was substantive unconscionability because the Agreement exempted from 

arbitration “disputes pertaining to collections or evictions.” Relying on Lopez, 
15

supra, 39 Cal.App.5th 311, the trial court reasoned: “The agreement lacks 

mutuality because it requires residents to arbitrate those claims they are 

most likely to bring against the facility (medical malpractice, personal injury, 

elder abuse) while allowing the facility to pursue in court the actions it is 

most likely to bring against residents (evictions and collections), which is 

clearly ‘one-sided,’ benefitting only the facility, and thus rendering the 

agreement substantively unconscionable.” (Italics added.) 

In Lopez, supra, 39 Cal.App.5th at pages 321–322, the appellate 

court concluded a similar provision, which excepted from arbitration 

“disputes pertaining to collections or evictions,” was substantively 

unconscionable. The appellate court rejected as frivolous an argument by the 

nursing facility that this provision did not benefit only the nursing facility,

instead concluding “the provision is clearly ‘one-sided,’ benefiting only the 

[nursing] [f]acility, . . . [rendering] the agreement itself substantively 

unconscionable.” (Ibid.)

The Capistrano defendants argue that part of the analysis in 

Lopez, supra, 39 Cal.App.5th 311 is inapplicable to the issue presented 

here—which is limited to whether the Agreement is substantively 

unconscionable as to Pamela’s claims brought by her in her individual 

capacity only. The Agreement’s carve-out for claims pertaining to collections 

and evictions does not result in a lack of mutuality between the Capistrano 

defendants and Pamela in her individual capacity because those claims are 

not the type of claim the Capistrano defendants would bring against her as 

an individual (as opposed to Lucille’s successor in interest). Pamela is not a 

resident of the facility who could be evicted. Furthermore, nothing in the 

record suggests Pamela might be personally liable to the Capistrano 

defendants in a matter pertaining to collections. Pamela does not contend she 
16

agreed to pay for any part of Lucille’s stay at the facility (if, for example, 

insurance did not cover the costs).

4

Second, the trial court found the Agreement substantively

unconscionable based on the following provision: “The expenses and fees of 

the arbitrator(s) shall be apportioned equally among all parties except as 

otherwise permitted by law.” The trial court explained: “The effect thereof 

would plainly be to impose a potentially substantial expense on any potential 

plaintiffs, including individuals attempting to assert claims for elder abuse.”

Relying on Bickel v. Sunrise Assisted Living (2012) 206 Cal.App.4th 1

(Bickel), the trial court concluded: “Such a requirement, which could prevent 

meritorious claims from being prosecuted entirely, is contrary to public 

policy.”

In Bickel, the plaintiff, who had been a resident at an assisted 

living facility, filed a lawsuit against that facility alleging several violations 

of the Elder Abuse Act. (Bickel, supra, 206 Cal.App.4th at pp. 4–5.) When

that facility moved to compel arbitration, the plaintiff argued the agreement 

was unconscionable and contrary to public policy because she was entitled to 

seek the recovery of attorney fees and costs under the Elder Abuse Act but 

the agreement provided for each party to bear its own arbitration costs and 

fees. (Id. at p. 6.) Noting the right to recover attorney fees and costs pursuant 

to Welfare and Institutions Code section 15657 of the Elder Abuse Act is

unwaivable, the appellate court “conclude[d] that the waiver of plaintiff’s 

statutory right to attorney fees and costs under the Elder Abuse Act was 

contrary to public policy and, therefore, the trial court correctly severed that 

4

In the trial court, Pamela’s counsel declared she was “informed 

and believe[d] that [Lucille’s] stay at that facility was paid for by MediCal 

insurance.”
17

provision from the residency agreement.” (Bickel, supra, 206 Cal.App.4th at 

pp. 6, 13.) The Bickel court also noted its “decision is limited to the particular 

statute and waiver before [it].” (Ibid.)

Unlike Bickel, supra, 206 Cal.App.4th 1, the Agreement here does 

not require a waiver of any right to seek attorney fees and costs under the 

Elder Abuse Act. The Agreement provides for the splitting of expenses and 

fees of the arbitrator(s) “except as otherwise permitted by law.” Significantly,

Pamela does not argue that this cost/fees splitting aspect of the Agreement is 

substantively unconscionable as to her individual claims. While Pamela 

asserted a claim for a violation of the Elder Abuse Act as Lucille’s successor 

in interest, a claim not at issue in this appeal, she has not made such a claim 

against the Capistrano defendants in her individual capacity. Furthermore, 

in the limited context of evaluating the substantive unconscionability of the 

Agreement, she makes no argument on appeal about her own financial ability 

to proceed in arbitration and does not otherwise argue the Agreement’s costs 

provision is substantively unconscionably as to her individual claims. 

For these reasons, Pamela failed to carry her burden of 

establishing the Agreement was substantively unconscionable as to the 

claims she brought in her individual capacity. (See Pinnacle, supra, 55 

Cal.4th at p. 247 [“party resisting arbitration bears the burden of proving 

unconscionability”].) 

IV.

WE REMAND FOR CONSIDERATION OF PAMELA’S OTHER ARGUMENTS RAISED IN 

OPPOSITION TO THE PETITION

Because the Agreement was not shown to suffer from substantive 

unconscionability, the trial court erred by denying the petition on the ground 

the Agreement was unenforceable as unconscionable with respect to Pamela’s 
18

individual claims. (See Pinnacle, supra, 55 Cal.4th at p. 247 [“both procedural 

unconscionability and substantive unconscionability must be shown”].) 

Having found the Agreement to be unenforceable as unconscionable, the trial 

court did not reach the other arguments asserted by Pamela for the denial of 

the petition as to her individual claims. At the hearing on that petition, the 

trial court stated: “[W]e don’t ever get to whether the FAA and all those other 

matters come into play because, as indicated, it’s based on the 

unconscionability issue.” We therefore remand the matter to the trial court to

consider the other arguments raised by Pamela in opposition to the petition.

DISPOSITION

The order denying the petition to compel arbitration as to 

Pamela’s individual claims is reversed. The matter is remanded to the trial 

court for further proceedings consistent with this opinion. Appellants shall

recover their costs on appeal.

MOTOIKE, ACTING P. J.

WE CONCUR:

DELANEY, J.

GOODING, J.