Opinion
Plaintiff Ruth Chappell
FACTS AND PROCEDURAL HISTORY
On May 27, 2008, plaintiff filed her complaint for damages alleging several violations of the Elder Abuse Act. The complaint asserted that during the period from March 3 until July 21, 2006, plaintiff was a resident at the assisted living facility operated by defendant referred to as Sunrise. While a resident at Sunrise, defendant allegedly engaged in conduct constituting elder abuse of plaintiff. Such conduct allegedly included leaving plaintiff unattended and isolated in her room for prolonged amounts of time resulting in dehydration, ignoring plaintiff’s calls for help or assistance, and failing to respond to plaintiff’s basic health and personal hygiene needs. Allegedly, defendant’s conduct was committed with recklessness, oppression, fraud, or malice and thus came within the scope of section 15657. Section 15657 provides in part: “Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law: [f] (a) The court shall award to the plaintiff reasonable attorney’s fees and costs.”
Plaintiff opposed the petition to compel arbitration on the ground that the above arbitration terms were unconscionable and/or contrary to public policy. Plaintiff argued the entitlement to attorney fees and costs under the Elder Abuse Act was a substantive statutory remedy designed to increase the likelihood that attorneys would take elder abuse cases and ensure that victimized seniors would receive adequate representation. According to plaintiff’s opposition, that policy would be undermined if arbitration could be ordered while at the same time the trial court enforced a provision that each party bear his or her own costs and fees. At oral argument, plaintiff argued further that the provision relinquishing attorney fees recovery was contrary to public policy to the extent that it resulted in a waiver of statutory rights that were intended to be “unwaivable.” Plaintiff pointed out that if the substantive remedies in the Elder Abuse Act were waivable in this manner, “every facility would just include [a provision to] ‘waive attorney fees,’ ” which plaintiff argued would impede the goals of the Elder Abuse Act. In its reply, defendant countered that arbitration is favored under state and federal law, and that the waiver provision was a matter of the freedom of contract that should not be disturbed by the courts. After oral argument, the trial court took the matter under submission.
In September 2008, the trial court issued its written order granting the petition to compel arbitration. The trial court found that plaintiff failed to prove that the arbitration agreement was procedurally or substantively unconscionable. However, as noted, the trial court did find the discrete provision waiving recovery of attorney fees and costs to be in violation of the public
Arbitration of plaintiff’s causes of action was duly conducted in September and October 2009 before a neutral arbitrator. In March 2010, the arbitrator issued an interim arbitration award regarding plaintiff’s elder abuse claims. The arbitrator found clear and convincing evidence of elder abuse based on, among other things, (1) failure to make more prompt discovery of plaintiff’s dangerously low blood pressure and failure to take prompt action to obtain medical care to assist plaintiff after such discovery was made; (2) failure to respond to plaintiff’s numerous emergency calls for help in a timely fashion and failure to notify plaintiff’s family of the frequency of plaintiff’s calls for help; and (3) failure to notify plaintiff’s family of her falls on June 16 and July 15, 2006. As compensatory damages, the arbitrator awarded special damages of $1,954.96 and general damages in the amount of $125,000. In addition, the arbitrator found by clear and convincing proof that plaintiff was entitled to recover punitive damages for defendant’s conduct, which the arbitrator described as “reckless conduct conducted with malice and oppression.” Punitive damages were awarded in the amount of $187,500.
The arbitrator further held that plaintiff was entitled to an award of attorney fees and costs under the Elder Abuse Act, the amounts to be determined at a subsequent hearing. On November 23, 2010, after a separate hearing to determine the issue of attorney fees and costs, the arbitrator awarded plaintiff the sum of $666,725.30 in attorney fees and $94,694.70 in costs. On January 11, 2011, the arbitrator issued a final arbitration ruling, incorporating all the prior interim rulings therein.
DISCUSSION
Defendant contends that the trial "court erred when it severed the provision in the arbitration agreement that “[e]ach party shall bear its own costs and fees in connection with the arbitration.” According to defendant, enforcement of that provision against plaintiff was not contrary to the public policy of the Elder Abuse Act. As more fully explained below, we disagree with defendant and affirm the trial court’s decision to sever that provision in this case.
I. Nature of the Issue and Standard of Review
Under both federal and California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Armendariz v. Foundation Health Psychcare Services, Inc., supra,
Civil Code section 3513 states: “Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.” In Armendariz, the California Supreme Court explained that rights established by statute for a public purpose are unwaivable and that a waiver of such rights in a predispute arbitration agreement is contrary to public policy. (Armendariz, supra, 24 Cal.4th at pp. 100-104.)
Whether a particular term violates public policy by seeking to waive a statutory right or remedy established “ ‘for a public reason’ ” is a question that necessarily entails our discernment of legislative intent. (Armendariz, supra, 24 Cal.4th at pp. 100-102.) In some cases, statutory rights are made expressly unwaivable (see, e.g., Civ. Code, § 1751 [waiver of rights under Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) contrary to public policy and void]). In other cases, whether a statutory right can be waived may be implied from the context and purpose of the statute. (Armendariz, supra, at pp. 100-101 [nonwaivability of FEHA rights deduced from strong public policy against employment discrimination].)
We now consider the Elder Abuse Act, and in particular the attorney fees and costs remedy in section 15657, to determine whether the trial court correctly concluded that the contractual provision in question (a waiver of recovery of attorney fees and costs in connection with arbitration of elder abuse claims) was contrary to public policy.
In section 15600, part of the Elder Abuse Act, the Legislature expressed its findings and intent in enacting the law. It declared that “The Legislature recognizes that elders and dependent adults may be subjected to abuse, neglect, or abandonment and that this state has a responsibility to protect these persons.” (§ 15600, subd. (a).) The Legislature found that the elderly and other dependent adults are particularly vulnerable to such abuse and neglect (id., subds. (b)-(e)), and are a disadvantaged class because “cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits” (id., subd. (h), added by Stats. 1991, ch. 774, § 2, p. 3476). In 1991, the Legislature announced its intention to rectify the problem of lack of incentive to prosecute civil suits, and the primary solution offered to correct that problem was the passage of section 15657: “It is the . . . intent of the Legislature in adding Article 8.5 (commencing with Section 15657) to this chapter to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.” (§ 15600, subd. (j), added by Stats. 1991, ch. 774, § 2, p. 3476.)
Section 15657 provides the following enhanced civil remedies, including recovery of attorney fees and costs, in certain cases of elder abuse or neglect:
“Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:
“(a) The court shall award to the plaintiff reasonable attorney’s fees and costs. The term ‘costs’ includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
“(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.
*11 “(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.”
The purpose of the enhanced civil remedies in section 15657, including the recovery of attorney fees, was discussed in Delaney v. Baker (1999)
In summary, the heightened remedies enacted in section 15657 were remedial measures designed to correct a significant problem affecting a highly vulnerable segment of our society. That is, elders and dependent adults were
III. The Waiver Was Contrary to Public Policy
We reiterate the basic principle declared in Civil Code section 3513: “Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.” In the discussion above, we have shown that section 15657, part of the Elder Abuse Act, including its provision for recovery of attorney fees and costs, was designed to accomplish an important public purpose. Therefore, the rights established in section 15657 were unwaivable and, as a result, the arbitration agreement in the instant case could not be used as a vehicle for the waiver of such important statutory rights. (Armendariz, supra, 24 Cal.4th at pp. 100-104.) Where a provision in an arbitration agreement seeks to waive such rights, as was the case here, the provision is contrary to public policy and may be severed. (Armendariz, supra, at pp. 101, 104, 121-127; Gentry v. Superior Court, supra,
The waiver in question was contained in the arbitration clause of the residency agreement by which plaintiff was admitted into defendant’s care. It is clear from the scope of the arbitration clause, which included “any and all claims and disputes arising from or related to this Agreement or to your residency, care or services at this Community,” that it was intended to cover causes of action for elder abuse. If enforced, it would have left plaintiff, at the time she began her residency in defendant’s assisted living facility, bereft of the statutory right to recover attorney fees and costs under the Elder Abuse Act. Moreover, the enforcement of this waiver—and of others like it if the
We note that our decision is limited to the particular statute and waiver before us. We do not hold or suggest that every time the Legislature seeks to encourage private enforcement of a statute by providing for attorney fees recovery, the fees provision is unwaivable. As noted above, whether a statutory right is unwaivable is a question that must be determined based on the context and purpose of the specific statute under consideration. We emphasize that the statutory remedies at issue here (§ 15657) were established to protect the particularly weak and vulnerable from egregious wrongdoing, and that such remedies were enacted after other methods of enforcement had proven inadequate (§ 15600, subds. (h) & (j)). As should be obvious by the terms of section 15657, it is not an ordinary attorney fees statute. A plaintiff is not entitled to attorney fees under section 15657 by merely proving the existence of elder abuse or neglect. Rather, attorney fees recovery and other heightened civil remedies are reserved for those cases where a plaintiff is able to prove by an elevated standard (“clear and convincing evidence”) that the defendant (i) committed abuse or neglect under the Elder Abuse Act and (ii) was guilty of recklessness, oppression, fraud, or malice in the commission of such abuse. Thus, a plaintiff is entitled to attorney fees only in cases of reprehensible wrongdoing. We do not think the Legislature intended to allow an advance (predispute) waiver of this attorney fees remedy that was enacted to protect the vulnerable elderly from conduct of such an egregious nature.
Because in enacting section 15657 the Legislature intended to implement the important public purpose of protecting elders and dependent adults from egregious abuse and neglect, and because the means it employed to accomplish that purpose was the creation of enhanced civil remedies—of which the right to recover attorney fees and costs was an essential part—we conclude that the waiver in the residency agreement of plaintiff’s right to recover attorney fees and costs under section 15657, part of the Elder Abuse Act, was a violation of public policy.
The judgment is affirmed. Costs on appeal are awarded to plaintiff.
Levy, Acting P. J., and Cornell, 1, concurred.
On June 18, 2012, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied August 8, 2012, S203716.
Notes
Following Ruth Chappell’s death, the instant action was maintained by Brace Bickel, as trastee of the Ruth N. Chappell Revocable Trust dated June 28, 2005.
Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.
For convenience, we sometimes refer to the arbitration clause of the residency agreement as simply the “arbitration agreement.”
California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA).
The particular context of the waiver of statutory rights in Armendariz was a mandatory employment arbitration agreement, and the Supreme Court sought to ensure that such agreements were not used as a means of curtailing employees’ FEHA rights. (Armendariz, supra,
Armendariz involved a statutory scheme (FEHA) that did not have an express nonwaiver provision; thus, contrary to defendant’s argument, the absence of an express nonwaiver provision is not dispositive.
We acknowledge our reliance on the discussion in Sonic-Calabasas A, Inc. v. Moreno (2011)
As occurred here, an agreement to arbitrate may still be enforced after severing the offending provision, assuming the substantive and remedial provisions of the statute are fully vindicated in the arbitral forum. (Armendariz, supra,
As noted by Armendariz in the context of FEHA, “[t]he principle that an arbitration agreement may not limit statutorily imposed remedies such as punitive damages and attorney fees appears to be undisputed.” (Armendariz, supra,