Filed 9/19/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JAMES MAXWELL et al.,

Plaintiffs and Respondents,

v.

ATRIA MANAGEMENT 

COMPANY, LLC, et al.,

Defendants and Appellants.

 A168043

 (San Mateo County

 Super. Ct. No. 22-CIV-03985)

 

Trudy Maxwell was a 93-year-old resident of Atria Park of San Mateo 

(Atria) who died after she drank an industrial strength cleaner that had been

poured into a beverage pitcher by an Atria employee and served to her and 

several other residents. Trudy’s eight surviving children, including James 

Maxwell III (James III) (collectively, Trudy’s children or the children), along 

with James III acting as successor in interest to Trudy’s estate (plaintiffs), 

filed this action for damages against numerous Atria-connected individuals 

and entities (collectively, the Atria defendants). The trial court denied the 

Atria defendants’ motion to compel arbitration, concluding, among other 

things, that James III was not authorized to sign the arbitration agreement 

executed in connection with Trudy’s admission to Atria because, as the holder 

of a durable power of attorney (DPOA), he was not authorized to make health 

care decisions for Trudy. Instead, Trudy’s daughter, Marybeth, held Trudy’s

power of attorney for health care (health care POA). 
2

On appeal, the Atria defendants challenge the trial court’s denial of 

their motion to compel arbitration on numerous grounds. They argue that, as 

holder of the DPOA, James III did have authority to sign the arbitration 

agreement, and Marybeth did not. They also contend that, under the terms 

of the arbitration agreement, all of Trudy’s heirs are bound to arbitrate their 

wrongful death claims. Finally, they assert Code of Civil Procedure1

section 1281.2, subdivision (c) (section 1281.2(c)), which allows an exception 

to arbitration when third party claims may be affected, is preempted by the 

Federal Arbitration Act (9 U.S.C. § 1 et seq.; FAA) or, at the very least, was 

improperly applied on these facts. 

We will reverse the order denying arbitration and remand for further

proceedings consistent with this opinion and the Supreme Court’s recent 

decision in Harrod v. Country Oaks Partners, LLC (2024) 15 Cal.5th 939 

(Harrod) (petn. for cert. filed June 26, 2024).

2 

I. BACKGROUND

A. Relevant Facts

In 1999, Trudy signed a durable power of attorney for health care, 

naming her husband, James H. Maxwell (husband), as her agent to make 

health care decisions. The document designated James III as her first 

alternate agent and Marybeth as the second alternate. Thereafter, Trudy 

signed an advance care directive in 2005, again naming her husband as her 

agent to make health care decisions. James III was again named as the first 

alternate, and Marybeth was the second alternate. In 2015, Trudy executed 

1 All undesignated statutory references are to the Code of Civil 

Procedure.

2 Harrod was decided while this appeal was pending. We requested 

and received supplemental briefing from both parties regarding its impact, if 

any, on this case. 
3

the health care POA prepared under Probate Code section 4701 that is at

issue in this case. Her husband was named as her agent for health care 

decisions for a third time. The POA defined health care decisions in 

accordance with the statute to include the authority to (1) “[c]onsent or refuse 

consent to any care, treatment, service, or procedure to maintain, diagnose, 

or otherwise affect a physical or mental condition”; (2) “[s]elect or discharge 

health care providers and institutions”; (3) “[a]pprove or disapprove

diagnostic tests, surgical procedures, and programs of medication”; 

(4) “[d]irect the provision, withholding, or withdrawal of artificial nutrition 

and hydration and all other forms of health care, including cardiopulmonary 

resuscitation”; and (5) “[m]ake anatomical gifts, authorize an autopsy, and 

direct disposition of remains.” (Compare Prob. Code, § 4701.) This time, 

Marybeth was named the first alternate agent and another daughter, 

Melanie, was the second alternate. The healthcare POA was to become 

effective when Trudy’s “primary physician determines that I am unable to 

make my own health care decisions.” The health care POA did not identify a 

specific “primary physician.” It revoked “any prior advance health care 

directive, any prior durable power of attorney for health care and any prior 

nomination of conservator.” 

On the same day she executed the health care POA, Trudy also signed 

the DPOA that applies in this case. The DPOA includes broad authority to 

handle all types of business and financial matters, including the ability to act 

for Trudy “in any and all ways in any business in which” she might be 

“interested in any way”; to execute any contracts or “other instruments in 

writing of every kind and description”; and, most relevant here, “[t]o 

commence, prosecute or enforce or to defend, answer or oppose all actions, 

suits or other legal proceedings of every kind and description in which [Trudy 
4

is] now or may become engaged or interested in any way” and “to 

compromise, refer to arbitration or to submit to judgment in any such action 

or proceedings whether before or after suit may be actually commenced.” The 

DPOA also generally grants Trudy’s attorney in fact “full power and 

authority to do and perform all and every act and thing which may be 

necessary or convenient in connection with any of the” powers it describes “as 

fully, to all intents and purposes, as [Trudy] might or could do if personally 

present,” and “ratif[ies] and confirm[s] all that [her] said attorney-in-fact 

shall lawfully do or cause to be done by authority hereof.” 

The DPOA initially appointed Trudy’s husband as her attorney in fact. 

However, if he was “unwilling or unable to serve,” the DPOA appointed 

James III as successor attorney in fact. Marybeth was appointed as 

James III’s successor. For any successor to function as the attorney in fact,

the DPOA required one of several documents to be attached to it—such as a 

certified death certificate—to demonstrate the basis for the successor’s 

authority.3 The DPOA also revoked any prior powers of attorney executed by 

Trudy. 

Trudy was reportedly diagnosed with dementia in 2018. James III 

appears to have signed a “Residency Agreement” (Residency Agreement) and 

related documents to facilitate Trudy’s admission to Atria in September 2020,

individually or as her “Responsible Person,” but not as her attorney in fact. 

Trudy was admitted to Atria’s memory care unit. James III signed all the 

residency documents despite the fact that Marybeth purportedly held a valid 

3 It does not appear that James III ever provided Atria with a power of 

attorney that attached his father’s death certificate. Indeed, in its motion to 

compel arbitration, the Atria defendants seemed to confuse James III with 

Trudy’s husband, arguing that he was authorized to sign the arbitration 

agreement under both the DPOA and the health care POA.
5

healthcare POA which expressly authorized her to select or discharge health 

care providers and institutions and which he had provided to Atria. 

Thereafter, in June 2021, James III executed a separate arbitration 

agreement with Atria as Trudy’s “POA.” 

The arbitration agreement states that it applies to “any and all claims 

and disputes related to or arising out of [Trudy’s] residence at [Atria] that 

may be asserted by either party against the other party as well as any claim 

or dispute” that may be asserted by or against various Atria-related entities. 

It states that “[a]ny claim or dispute asserted against [the Atria defendants] 

shall be resolved through submission to individual arbitration as governed by 

the [FAA], to the maximum extent permitted by law, and/or the Rules of Civil 

Procedure and Rules of Evidence governing the jurisdiction in which [Atria] 

is located.” Moreover, “[t]he laws of the State in which [Atria] is located shall 

govern the interpretation and application of [the arbitration agreement] and 

the Residency Agreement, as well as any and all disputes arising out of or 

relating to [the arbitration agreement] or the Residency Agreement.” The 

arbitration agreement also contains an express waiver of constitutional jury 

trial rights.

Page two of the three-page arbitration agreement provides, in regular 

type at the bottom of the page: “This Agreement is voluntarily entered into 

by the Parties and is not a pre-requisite to residing at [Atria] or receiving 

services at [Atria]. Refusal by Resident, Responsible Party, and/or Resident’s 

designee shall not affect residency status. Nothing in this Agreement 

precludes Resident, Responsible Party, and/or Resident’s designee from 

contacting any regulatory or governing agency in relation to the services 

provided by [Atria].”

Trudy died on August 29, 2022. 
6

B. The Complaint

On September 29, 2022, Trudy’s children individually, along with 

James III as successor in interest to Trudy’s estate, filed their complaint in

this case. The complaint alleges negligence, wrongful death (§ 337.60), and 

violations of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. 

& Inst. Code, § 15600 et seq.; Elder Abuse Act) and demands a jury trial. 

Specifically, plaintiffs allege that Trudy was transported to the hospital on 

August 27, 2022, along with two other residents, after (according to an Atria 

press release) “ ‘mistakenly being served dishwashing liquid as juice.’ ” First 

responders were allegedly told that Trudy had located and ingested the liquid 

on her own, despite the fact that she needed assistance to move around the 

facility, use the bathroom, feed herself, and change her clothing. After two 

days in the hospital, Trudy died from being poisoned with what was 

apparently an industrial strength cleaning liquid. 

Based on these facts, James III asserted a negligence claim and a claim

under the Elder Abuse Act against the Atria defendants as the successor in 

interest to Trudy’s estate. Trudy’s children each brought wrongful death 

actions in their individual capacities against the Atria defendants. They 

alleged that their mother would not be dead but for the negligent conduct of 

the Atria defendants and that her death was foreseeable. 

Plaintiffs alleged generally that Atria represents to the public that it 

has a memory care unit for residents with Alzheimer’s disease, dementia, and 

similar ailments where it offers “ ‘[a]n individual care plan with 24/7 support 

[ . . . ] from staff with extensive dementia training.’ ” According to plaintiffs, 

Atria had a history of failing to comply with state safety regulations, as well 

as a specific history of neglecting Trudy despite expressions of concern from 

her children. They also alleged that poisoning at senior care facilities was a 
7

known industry problem. And that a similar poisoning had taken place at a 

nearby Atria facility four days before Trudy was poisoned. Plaintiffs sought 

general, special, and punitive damages against the Atria defendants, as well 

as costs of suit and attorney fees. 

C. The Arbitration Request

The Atria defendants moved to compel binding arbitration and to stay 

this matter on October 26, 2022. They claimed that the arbitration 

agreement was voluntarily signed by James III as attorney in fact and was 

valid and enforceable. They further argued that “[t]he clear intent” of the 

agreement was to “bind the parties to contractual arbitration for all claims

related to [Trudy’s] care and services at [Atria].” (Italics added.) Moreover, 

the Atria defendants argued the enforceability of the arbitration agreement 

was to be decided by the arbitrator as a threshold matter; the arbitration 

provision was fair and enforceable; and California procedural rules were

preempted by the FAA. 

Plaintiffs opposed the Atria defendants’ motion and challenged many of 

their claims. They argued that the individual wrongful death claims of 

Trudy’s children were not arbitrable because they were not parties to the 

arbitration agreement. They stressed that Marybeth, not James III, had the 

power to admit Trudy to Atria under the healthcare POA that had been given 

to Atria prior to Trudy’s admission. And they argued that the DPOA 

provided to Atria was also invalid because it did not attach proof that Trudy’s 

husband had passed away and James III was empowered to act as his 

successor. Plaintiffs further asserted that the enforceability of the 

arbitration agreement was a matter for the court; the agreement was 

unconscionable; any advance waiver of Trudy’s jury trial rights was contrary 
8

to public policy and void; and the trial court could deny the Atria defendants’ 

request for arbitration under section 1281.2(c).

Plaintiffs supported their opposition with James III’s declaration. 

Among other things, he stated that he had provided Atria with both the 

DPOA and the health care POA before he admitted his mother to Atria. But 

he did not attach his father’s death certificate to the DPOA. When Atria 

erroneously contacted him with respect to health care decisions, he 

repeatedly told them they should be contacting his sister, Marybeth. James 

III has no legal training. When Atria e-mailed him the draft arbitration 

agreement in June 2021, some nine months after his mother was admitted, 

they stated there was “ ‘still some paperwork [they] were missing for Trudy.’ ” 

He signed the arbitration agreement because he thought it was required for 

Trudy to remain at Atria. No Atria representative ever explained the 

arbitration agreement to him or told him it was optional. The Atria 

defendants filed a reply, stressing that James III was authorized to execute 

the voluntary arbitration agreement, the agreement was valid and 

enforceable, and arbitrability should be decided by the arbitrator. 

In March 2023, the court requested supplemental briefing on a number 

of issues, including whether the Atria defendants had met their burden to 

show section 1281.2(c) was preempted by the FAA and whether the facts 

supported a finding of procedural and substantive unconscionability with 

respect to the arbitration agreement. Both parties filed supplemental 

briefing, and the motion was heard on May 25, 2023. 

On June 9, 2023, the court filed its order denying the Atria defendants’

motion to compel arbitration. Preliminarily, the court concluded it was 

proper for the court to decide enforceability because the language in the 

agreement did not clearly and unmistakably delegate the issue to an 
9

arbitrator, stating only that an arbitrator “will decide any question about 

whether a claim or dispute must be arbitrated under this Arbitration Clause 

to the maximum extent permitted by law.” (Compare Najarro v. Superior 

Court (2021) 70 Cal.App.5th 871, 888, 878 [delegation clause clear and 

unmistakable where it stated: “ ‘the arbitrator shall have the exclusive power 

to resolve any dispute relating to the interpretation, applicability, 

enforceability, or formation of this [a]greement, including the assumption 

that this [a]greement is unenforceable’ ”].)4

The trial court went on to conclude that James III did not have the 

authority to execute the arbitration agreement because he did not have the 

authority to make health care decisions for Trudy, and the arbitration 

agreement was part of Atria’s admissions process. Neither did the 

arbitration agreement bind Trudy’s children with respect to their individual 

wrongful death claims. The court also determined that the transaction 

between Atria and Trudy did not involve interstate commerce, and the 

arbitration agreement allowed for application of either FAA or California 

procedural rules, including section 1281.2(c). So, there was no preemption.

This timely appeal followed. 

II. DISCUSSION

“ ‘California has a strong public policy in favor of arbitration and any 

doubts regarding the arbitrability of a dispute are resolved in favor of 

arbitration.’ ” (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 890

(Aanderud).) But “California’s policy with respect to the enforceability of 

arbitration agreements, like federal policy, ‘is about treating arbitration 

contracts like all others, not about fostering arbitration.’ ” (Quach v. 

California Commerce Club, Inc. (2024) 16 Cal.5th 562, 572, quoting Morgan 

4 The Atria defendants do not contest this conclusion.
10

v. Sundance, Inc. (2022) 596 U.S. 411, 418.) Both California and federal 

policy put arbitration agreements “on equal footing” with other types of 

contracts. (Quach, at p. 569; see Theresa D. v. MBK Senior Living LLC

(2021) 73 Cal.App.5th 18, 24 [“In California, ‘ “[g]eneral principles of contract 

law determine whether the parties have entered a binding agreement to 

arbitrate.” ’ ”].)

“[T]he threshold questions presented by every motion or petition to 

compel arbitration are whether an agreement to arbitrate exists [citations] 

and, if so, whether the parties’ dispute falls within the scope of that 

agreement.” (Ahern v. Asset Management Consultants, Inc. (2022) 

74 Cal.App.5th 675, 686–687.) The party seeking arbitration bears the 

preliminary burden of proving the existence of an applicable agreement to 

arbitrate. (San Francisco Police Officers’ Assn. v. San Francisco Police Com.

(2018) 27 Cal.App.5th 676, 683.) Once an agreement to arbitrate is 

established, the party opposing arbitration has the burden to show the 

arbitration provision does not encompass the claims in the complaint. 

(Aanderud, supra, 13 Cal.App.5th at p. 890.) “ ‘On appeal, we review orders 

denying motions to compel arbitration for abuse of discretion unless the 

matter presents a pure question of law, which we review de novo.’ ” (Garcia 

v. Stoneledge Furniture LLC (2024) 102 Cal.App.5th 41, 49.) 

A. Authority to Execute the Arbitration Agreement 

The crux of this dispute before the trial court was whether execution of 

the arbitration agreement was a “health care decision.” The trial court 

concluded that it was, based on the Third Appellate District’s opinion in 

Hutcheson v. Eskaton Fountain Wood Lodge (2017) 17 Cal.App.5th 937

(Hutcheson). However, while this appeal was pending, our high court 
11

reached a different conclusion in Harrod, supra, 15 Cal.5th 939. 

Unfortunately, in this case, Harrod raises more questions than it answers.

In Harrod, as in this case, the optional arbitration agreement was not 

signed by the patient. It was signed by a relative. (Harrod, supra, 15 Cal.5th 

at p. 947.) But unlike our case, the signatory in Harrod had been granted a 

formal, written power of attorney to make health care decisions, and she 

signed documents admitting the patient to a skilled nursing facility under 

the authority granted in the health care POA. (Ibid.) On these facts, the 

California Supreme Court held the agreement was not within the scope of the 

signatory’s authority, because “agreeing to an optional, separate arbitration 

agreement with a skilled nursing facility is not a health care decision.” (Id. 

at p. 966.)

The Harrod court based its reasoning in part on an analysis of the 

language of the relevant statutes, but also on the need for a rule that

conforms to commonsense expectations about the distinction between 

decisions regarding health care and those generally affecting a person’s legal 

rights. (Harrod, supra, 15 Cal.5th at pp. 950, 957–958.) As the court 

explained, “ ‘Unlike admission decisions and medical care decisions, the 

decision whether to agree to an arbitration provision in a nursing home 

contract is not a necessary decision that must be made to preserve a person’s 

well-being. Rather, an arbitration agreement pertains to the patient’s legal 

rights, and results in a waiver of the right to a jury trial.’ ” (Id. at p. 959.) 

Thus, “[d]efining health care decisions as including decisions about dispute 

resolution that are not necessary for health care might create unnecessary 

tension between the two regimes for powers of attorney and between agents 

designated under them. Doing so, for example, could undermine the 

expectations of a principal who designates one agent to make health care 
12

decisions and another agent, under the form power of attorney, to make 

decisions about claims and litigation. A principal executing both form powers 

of attorney found in [Probate Code] sections 4401 [(power of attorney)] and 

4701 [(advance health care directive)] could readily view health care decisions 

as separate from decisions involving claims and litigation, because the forms 

expressly make this distinction. In that case, the principal might expect and 

prefer the agent in charge of claims and litigation to accept or reject optional 

arbitration agreements. A broad construction of the term health care 

decision might, therefore, and contrary to the principal’s expectations, 

‘override’ a grant of power over claims and litigation decisions.” (Id. at 

p. 957.)

The court also considered it relevant that, pursuant to statute, “the 

health care decision maker for an incapacitated patient is, first, a patientselected surrogate, second, a patient’s ‘agent pursuant to an advance health 

care directive or a power of attorney for health care,’ third, a ‘conservator or 

guardian of the patient having the authority to make health care decisions 

for the patient,’ and, fourth, a close family member or friend designated by a 

health care provider or facility. ([Prob. Code,] § 4712, subds. (a), (b); see also 

[id.], § 4643 [‘ “Surrogate” means an adult, other than a patient’s agent or 

conservator, authorized under this division to make a health care decision for 

the patient’].)” (Harrod, supra, 15 Cal.5th at p. 959.) Thus, “[t]he authority 

to make health care decisions may devolve upon not only agents carefully 

selected in advance, but also on surrogates the principal chooses in 

emergency situations or even those the health care provider chooses itself.” 

(Ibid.) In such circumstances, our high court concluded that, “Because the 

statute gives both agents and as-needed surrogates authority to make health 

care decisions, that authority, when exercised pursuant to a power of 
13

attorney such as [the one in Harrod], is not best understood as relating to 

every possible aspect of a transaction with a skilled nursing facility, such as 

optional, separate agreements that do not affect health care or the selection 

of the facility.” (Id., at p. 960.)

Resort to the general law of agency in this context would not change 

the result, because under general agency principals “[t]he nature of the task 

delegated in a power of attorney itself provides a limit on the powers to be 

implied.” (Harrod, supra, 15 Cal.5th at pp. 960–962.) The court also rejected 

the notion that its decision “emerge[d] from or reflect[ed] hostility towards 

arbitration.” (Id. at p. 966.)

Of particular relevance in this case, footnote 7 in the Harrod opinion

disapproved dicta in Hutcheson, supra, 17 Cal.App.5th at pages 956–

957, which suggested “a person empowered to make decisions about all a 

principal’s claims and litigation lacks authority to do so when the party 

across the contracting table is a health care facility or provider.” (Harrod, 

supra, 15 Cal.5th at p. 957, fn. 7.) And the court made clear that it was not 

announcing a rule concerning whether an agent under a DPOA could agree to 

arbitration when a different person held power over health care decisions—

“We have no occasion to address Hutcheson’s ultimate concern: whether an 

agent with power over claims and litigation, but without power over health 

care decisions, may agree to arbitration with a health care facility with whom 

the agent had no right to contract for services in the first instance.” (Ibid.)

At first blush, this case appears to fall squarely within the “footnote 7”

scenario Harrod explicitly does not resolve. What happens when two 

separate powers of attorney exist and are held by different people, such as 

James III’s DPOA and Marybeth’s health care POA? However, before this 

issue can be resolved, there are other matters that must be addressed. For 
14

example, was the arbitration agreement validly executed when the proffered 

DPOA had no attached document proving Trudy’s husband was deceased? 

Further, even if authorized to do so, did James III execute the arbitration 

agreement voluntarily, understanding it was not required as part of the 

admissions process? And is the dispute over whether Marybeth was 

authorized to make decisions under the health care POA without evidence in 

the record that Trudy’s primary care physician ever determined that she was

unable to make her own health care decisions at all relevant? In light of 

these open issues, we will remand to the trial court to reconsider the validity 

of the arbitration agreement in light of Harrod. 

B. Arbitrability of Wrongful Death Claims 

The Atria defendants argue that, if James III lawfully executed the 

arbitration agreement on Trudy’s behalf, broad language in the agreement 

requires that the wrongful death claims filed by Trudy’s eight surviving 

children should also be subject to arbitration. Trudy’s children disagree, 

stressing that they were never parties to the arbitration agreement. Whether 

a third party is bound by an arbitration agreement presents a question of 

law. (Williams v. Atria Las Posas (2018) 24 Cal.App.5th 1048, 1053 

(Williams).) After conducting our independent review of the matter, we agree 

with the children.

Noting that California law applies to the construction of the arbitration 

agreement, the Atria defendants contend that the trial court erred by 

disregarding the clear and explicit language of that agreement when it 

concluded that it did not bind Trudy’s heirs. (Aanderud, supra, 13 

Cal.App.5th at p. 890 [“ ‘If contractual language is clear and explicit, it 

governs.’ ”]; Civ. Code, § 1638.) They point to the following language: “This 

Agreement pertains to any and all claims and disputes related to or arising 
15

out of [Trudy’s] residence at [Atria] . . . . These claims and disputes pertain to 

legal claims, civil actions, and/or disputes related to or arising out of 

[Trudy’s] residency at [Atria] or otherwise relating to the care or services 

provided to [Trudy] at [Atria].” (Italics added.) Since the children’s wrongful 

death claims are premised on Trudy’s inadequate care at Atria, the Atria 

defendants posit, such claims are covered by the arbitration agreement. Not 

so.

The arbitration agreement makes clear that it applies only to disputes 

between the parties, here, Trudy and Atria (along with certain Atria-related 

entities). Indeed, the language the Atria defendants cite actually states in 

context, “This Agreement pertains to any and all claims and disputes related 

to or arising out of [Trudy’s] residence at [Atria] that may be asserted by 

either party against the other party as well as any claim or dispute that may 

be asserted by or against [various Atria-related entities].” (Italics added.) 

Other portions of the arbitration agreement support our interpretation. For 

example, under “Purpose & Consideration,” the agreement states that 

“[a]rbitration provides an alternative means for the Parties to resolve any 

claim or dispute” and that “the Parties voluntarily and mutually agree and 

assent to enter into this Agreement.” (Italics added.)

The children’s wrongful death claims are not derivative of Trudy’s

causes of action, which are within the purview of the plain language in the 

arbitration agreement. In California, a wrongful death claim is personal and 

lies independent of survivor claims. “ ‘Unlike some jurisdictions wherein 

wrongful death actions are derivative, Code of Civil Procedure section 377.60 

“creates a new cause of action in favor of the heirs as beneficiaries, based 

upon their own independent pecuniary injury suffered by loss of a relative, 

and distinct from any the deceased might have maintained had he 
16

survived.” ’ ” (Daniels v. Sunrise Senior Living, Inc. (2013) 212 Cal.App.4th 

674, 680 (Daniels), italics added by Daniels.) Thus, “the measure of damages 

[in a wrongful death action] is the value of the benefits the heirs could 

reasonably expect to have received from the deceased if she had lived

[citations]. These benefits include the personal services, advice, and training 

the heirs would have received from the deceased, and the value of her society 

and companionship.” (Allen v. Toledo (1980) 109 Cal.App.3d 415, 423, italics 

added.)

Moreover, as the children correctly maintain, generally “ ‘[p]arties can 

only be compelled to arbitrate when they have agreed to do so.’ ” (Williams, 

supra, 24 Cal.App.5th at p. 1053; accord, Espejo v. Southern California 

Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1057 [although 

public policy favors arbitration, that policy “ ‘ “ ‘does not extend to those who

are not parties to an arbitration agreement’ ” ’ ”].) Here, there is no evidence 

that any of Trudy’s children other than James III signed the arbitration 

agreement or otherwise agreed to its terms. And James III signed only in his 

representative capacity as Trudy’s successor in interest under the DPOA. 

In Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC 

(2007) 150 Cal.App.4th 469, our colleagues in Division Three of this District 

concluded that wrongful death claims were not subject to arbitration under 

like circumstances. There, George Fitzhugh (individually and as the

successor in interest to his deceased wife) and the decedent’s two adult sons 

(John and Frank) filed a complaint against a convalescent center and certain 

related entities alleging, among other things, causes of action for elder abuse

and wrongful death. (Id. at p. 471.) George had previously executed an 

arbitration agreement as his wife’s “ ‘Legal Representative/Agent.’ ” (Id. at 

p. 472.) Even though the arbitration agreement in Fitzhugh, unlike the 
17

agreement in this case, purported to bind “ ‘the heirs, representatives, 

executors, administrators, successors, and assigns’ ” of the decedent, the

court concluded: “Because there is no evidence that George Fitzhugh signed 

the arbitration agreement[] in his personal capacity, and because John and 

Frank Fitzhugh did not sign the arbitration agreement[], there is no basis to 

infer that they waived their personal right to jury trial on the wrongful death 

claim.” (Id. at pp. 472, 474.) 

We similarly conclude that, because James III is not acting in a 

representative capacity with respect to his wrongful death allegations but is 

instead pursuing his own claim based on Atria’s alleged misconduct, he and

his siblings are not bound by an arbitration agreement which they did not 

sign. The trial court thus correctly determined that the wrongful death 

claims in this case are not arbitrable.

C. Applicability of Section 1281.2(c)

In light of our holding that the wrongful death claims are not 

arbitrable, we will consider whether section 1281.2(c) applies to these 

proceedings. The Atria defendants argue that this state procedural statute is 

preempted by the FAA. The trial court disagreed, finding both that the 

transaction between Trudy and Atria did not involve interstate commerce 

and that the language of the arbitration agreement allowed for the 

application of California procedural rules, including section 1281.2(c). 

Because we agree with the trial court’s interpretation of the contractual 

language, we will not reach the interstate commerce question. 

1. Section 1281.2(c)

Generally speaking, a trial court will order parties to arbitrate a

dispute “if it determines that an agreement to arbitrate the controversy

exists.” (§ 1281.2, 1st par.) However, section 1281.2(c), allows a court to stay 
18

or refuse to compel arbitration of all or part of an arbitrable controversy 

when (1) “[a] party to the arbitration agreement is also a party to a pending 

court action . . . with a third party, arising out of the same transaction or 

series of related transactions,” and (2) “there is a possibility of conflicting 

rulings on a common issue of law or fact.” As used in the statute, a “third 

party” is one who is neither bound by nor entitled to enforce the arbitration 

agreement. (Thomas v. Westlake (2012) 204 Cal.App.4th 605, 612.) Thus, 

section 1281.2(c) “ ‘addresses the peculiar situation that arises when a 

controversy also affects claims by or against other parties not bound by the 

arbitration agreement.’ ” (Cronus Investments, Inc. v. Concierge Services

(2005) 35 Cal.4th 376, 393 (Cronus).)

If the conditions set forth in section 1281.2 are satisfied, the statute 

“identifies four options from which the court may choose”: “(1) . . . refuse to 

enforce the arbitration agreement and . . . order intervention or joinder of all 

parties in a single action or special proceeding; (2) . . . order intervention or 

joinder as to all or only certain issues; (3) . . . 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) . . . stay arbitration pending the outcome of the court action or special 

proceeding.’ ” (Williams, supra, 24 Cal.App.5th at p. 1054; § 1281.2, subd. (d), 

4th par.)

Whether an arbitration agreement is binding on a third party (e.g., a 

nonsignatory) is a question of law subject to de novo review. (Suh v. Superior 

Court (2010) 181 Cal.App.4th 1504, 1512.) “By contrast, the ultimate 

determination 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. [Citation.] ‘The court’s discretion under section 1281.2, 
19

subdivision (c) does not come into play until it is ascertained that the 

subdivision applies, which requires the threshold determination of whether 

there are nonarbitrable claims against at least one of the parties to the 

litigation.’ ” (Daniels, supra, 212 Cal.App.4th at p. 680.) 

Since we have concluded that the children’s wrongful death claims are 

not subject to the arbitration agreement, they are clearly third parties for 

purposes of section 1281.2(c). Further, the arbitration agreement signed by 

James III (as Trudy’s successor) said it covered any dispute between Trudy

and Atria arising out of Trudy’s residence at Atria. The elder abuse and 

negligence causes of action are arbitrable disputes if the arbitration 

agreement was valid and enforceable. Moreover, they arose out of the same 

facts as the wrongful death causes of action. As described above, although 

the measure of damages differs, all of the claims in the complaint rely on 

allegations that Atria failed to appropriately train their staff and follow 

safety regulations, which led to Trudy’s death. Under these circumstances, 

the trial court had discretion under section 1281.2(c) to deny the Atria 

defendants’ motion to compel arbitration or stay that arbitration with respect 

to Trudy’s claims to avoid conflicting rulings. (Compare Avila v. Southern 

California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 837–839, 845 [no 

abuse of discretion in denying motion to compel arbitration under § 1281.2(c) 

where there was a strong possibility of inconsistent rulings if survivor claims 

(negligence and elder abuse) were arbitrated and a wrongful death claim was 

litigated]; Daniels, supra, 212 Cal.App.4th at pp. 677–678, 686–687.) 

A different result would be reached, however, if the FAA preempts this

state procedural statute. The Atria defendants argue section 1281.2(c) is 

preempted. We conclude that it is not.
20

2. No FAA Preemption

“The FAA ‘requires courts to enforce privately negotiated agreements to 

arbitrate, like other contracts, in accordance with their terms.’ [Citation.] 

‘Arbitration under the [FAA] is a matter of consent, not coercion, and parties 

are generally free to structure their arbitration agreements as they see fit. 

Just as they may limit by contract the issues which they will arbitrate, 

[citation], so too may they specify by contract the rules under which that 

arbitration will be conducted.’ [Citation.] Under these principles, the parties 

‘might choose to have portions of their contract governed by the law of Tibet, 

the law of pre-revolutionary Russia, or (as is relevant here) the law of 

California’ irrespective of that law’s preemption by the FAA.” (Saheli v. 

White Memorial Medical Center (2018) 21 Cal.App.5th 308, 316, fn. omitted;

accord, Best Interiors, Inc. v. Millie & Severson, Inc. (2008) 161 Cal.App.4th 

1320, 1326 (Best Interiors) [“even if the FAA applies . . . the parties may 

agree that California law governs their agreement to arbitrate”].) 

Here, the arbitration agreement states in relevant part: “Any claim or 

dispute asserted against Atria shall be resolved through submission to 

individual arbitration as governed by the [FAA], to the maximum extent 

permitted by law, and/or the Rules of Civil Procedure and Rules of Evidence 

governing the jurisdiction in which [Atria] is located”—i.e., California. The 

arbitration agreement further provides that California law “shall govern the 

interpretation and application of this Agreement and the Residency 

Agreement, as well as any and all disputes arising out of or relating to this 

Agreement or the Residency Agreement.”

The question before us is whether this contractual language precludes 

the trial court from applying section 1281.2(c) in this context. In making 

such a determination, “we examine the language of the contract to determine 
21

whether the parties intended to apply the FAA to the exclusion of California 

procedural law and, if any ambiguity exists, to determine whether 

section 1281.2(c) conflicts with or frustrates the objectives of the FAA.” 

(Cronus, supra, 35 Cal.4th at p. 383.)

The language of the arbitration agreement leaves room here for the 

application of California procedural and evidentiary rules, including 

section 1281.2(c). It states that arbitration will be governed by the FAA 

“and/or” the California “Rules of Civil Procedure and Rules of Evidence.” 

Generally, the procedural aspects of the FAA do not apply in state court 

absent an express provision in the arbitration agreement. (See Sanchez v. 

Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 922 [even where agreement 

specifies the FAA governs any disputes, California law governs procedures]; 

Cronus, supra, 35 Cal.4th at pp. 388–390.) Here, although the arbitration 

agreement states that the FAA will apply “to the maximum extent,” we do 

not interpret “maximum extent” to mean complete preemption of all 

procedural rules.

Rather, the Supreme Court’s decision in Cronus is instructive. There, 

the arbitration agreement stated it was governed by California law but

continued: “ ‘The designation of a situs or specifically a governing law for this 

agreement or the arbitration shall not be deemed an election to preclude 

application of the [FAA], if it would be applicable.’ ” (Cronus, supra, 

35 Cal.4th at p. 387.) The parties agreed that this language meant that the 

scope of the California choice-of-law provision was “ ‘specifically limited by 

applicable provisions of the FAA’ ” and was nullified “ ‘only where the FAA’s 

provisions were inconsistent.’ ” (Ibid.) “Unlike its California counterpart, the 

FAA ‘contains no provision permitting a court to stay arbitration pending 

resolution of related litigation involving third parties not bound by the 
22

arbitration agreement.’ ” (Best Interiors, supra, 161 Cal.App.4th at p. 1325.) 

Thus, there was no inconsistency, and section 1281.2 was not preempted by 

the FAA under the language of the arbitration contract. (Cronus, at p. 394.)

The Cronus court recognized that, while “state law may be applied to 

regulate contracts, including arbitration clauses, ‘ “if that law arose to govern 

issues concerning the validity, revocability, and enforceability of contracts 

generally[,]” [citation]’ courts may not invalidate arbitration agreements 

under state law contract principles applicable only to arbitration provisions, 

and that therefore disfavor such contracts, or single them out for ‘suspect 

status.’ ” (Cronus, supra, 35 Cal.4th at p. 385, quoting Doctor’s Associates,

Inc. v. Casarotto (1996) 517 U.S. 681, 686–687.) But it went on to clarify that

“section 1281.2(c) is not a special rule limiting the authority of arbitrators. It 

is an evenhanded law that allows the trial court to stay arbitration 

proceedings while the concurrent lawsuit proceeds or stay the lawsuit while 

arbitration proceeds to avoid conflicting rulings on common issues of fact and 

law amongst interrelated parties. Moreover, ‘[s]ection 1281.2(c) is not a 

provision designed to limit the rights of parties who choose to arbitrate or 

otherwise to discourage the use of arbitration.’ Rather, it is part of 

California’s statutory scheme ‘designed to enforce the parties’ arbitration 

agreements, as the FAA requires.’ ” (Cronus, supra, 35 Cal.4th at p. 393; 

accord, Doctor’s Associates, supra, 517 U.S. at p. 688 [describing § 1281.2(c) 

as “determin[ing] only the efficient order of proceedings [and] not affect[ing] 

the enforceability of the arbitration agreement itself”].)

In sum, the Cronus court concluded “that the language of the 

arbitration clause in [that] case, calling for the application of the FAA ‘if it 

would be applicable,’ should not be read to preclude the application of 

[section] 1281.2(c), because it does not conflict with the applicable provisions 
23

of the FAA and does not undermine or frustrate the FAA’s substantive policy 

favoring arbitration.” (Cronus, supra, 35 Cal.4th at p. 394.) So too, here.

The arbitration agreement does not operate to preempt section 1281.2(c), 

because our state statute is an additional procedural rule that neither

conflicts with application of the FAA to its “maximum extent” nor California 

procedural rules as mandated by the contractual language. Nor does

section 1281.2(c) frustrate FAA policy favoring arbitration.

D. Instructions on Remand

Under the circumstances, we remand this case to the trial court with 

directions to reconsider disposition of the motion to compel arbitration in 

light of Harrod, supra, 15 Cal.5th 939 and section 1281.2(c). The trial court 

must first consider whether the DPOA as presented to Atria by James III

was valid. If so, the trial court must next determine whether the arbitration 

agreement is otherwise enforceable given the facts surrounding its 

execution. If the trial court determines the DPOA as presented to Atria was 

valid and the arbitration agreement is otherwise enforceable under the facts 

surrounding its execution, then the trial court must determine whether 

Marybeth, rather than James III, held the authority to admit Trudy to Atria 

under the health care POA, and, if she did, whether James III nevertheless 

had the authority to agree to arbitration. In other words, if there existed 

both a health care POA and a DPOA, held by different persons, does this 

affect application of the holding in Harrod.

5 

5 It is also possible the court may determine that the appropriate 

resolution of this case is to deny arbitration altogether under 

section 1281.2(c). If so, it could assume without deciding that the arbitration 

agreement was validly executed by James III without determining whether it 

is enforceable under Harrod.
24

III. DISPOSITION

The judgment is reversed and the matter is remanded for further 

proceedings consistent with this opinion. Each party shall bear their own 

costs on appeal.

SIGGINS, J.*

WE CONCUR:

BANKE, ACTING P. J.

LANGHORNE WILSON, J.

* Retired Presiding Justice of the Court of Appeal, First Appellate 

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

California Constitution. 
25

Trial Court: Superior Court of San Mateo County

Trial Judge: Susan L. Greenberg, Judge

Counsel: 

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

and Reuben B. Jacobson for Defendants and Appellants.

Cotchett, Pitre & McCarthy, LLP, Niall P. McCarthy, Anne Marie Murphy, 

Tamarah P. Prevost and David G. Hollenberg for Plaintiffs and Respondents.