San Francisco Woman Fights Arbitration Clause In Medical Malpractice Suit, Part 1 of 3

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendants’ Petition to Compel Arbitration and Stay Action

Defendants seek to enforce a purported arbitration clause in a written contract between plaintiff Summer Smith and the Universal Plan entities. Under California law, the alleged arbitration agreement signed by Ms. Smith and attached as Exhibit C to defendants’ moving papers is not enforceable. Burks v. Kaiser (2008) 160 Cal.App. 4th 1021 dealt with an analogous situation. In that case, the plaintiff in a medical negligence or malpractice lawsuit against Universal Plan had signed an enrollment application form which contained language purporting to constitute a waiver of the plaintiff’s right to pursue a civil action and as agreement that the matter being resolved through Universal Plan’s arbitration plan.

The court, citing Health and Safety Code §1363.1, held that the purported waiver was unenforceable. Because the arbitration language was not prominently displayed as that term was defined in the statute, Universal Plan’s petition to compel arbitration was denied. Despite the clear holding of that case. Universal Plan as the moving party in this motion, asserts that Ms. Smith’s purported waiver complies with California law because the arbitration disclosure is prominently displayed directly above plaintiff’s signature. However, the Burks Court rejected such an argument in plain language:

In summary, we conclude that the placement of an arbitration disclosure immediately above the signature line in an enrollment form in compliance with subdivision (d) of Section 1363.1 has no bearing on whether that disclosure is prominently displayed in compliance with subdivision (b) of the statute. (See Part 2 of 3.)

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