Janssen Malloy LLP obtained a unanimous First District Court of Appeal decision recently in a wrongful death/elder abuse action regarding Timber Ridge Assisted Living LLC (Timber Ridge).  Partner Michael Crowley argued the matter before the three justice panel.  The Court of Appeal ruled 3-0 that plaintiff Valerie Monschke, as personal representative of her mother’s estate, could proceed to a jury trial rather than be forced into a binding arbitration of the case concerning her mother’s death.  Ms. Monschke had filed suit for wrongful death and elder abuse against defendant Timber Ridge, and Timber Ridge petitioned to compel arbitration on the ground that plaintiff, on behalf of decedent, had signed a residence agreement for her mother which had an arbitration clause.  The Humboldt County Superior Court trial judge denied their petition, ruling that the wrongful death claim had been brought on behalf of decedent’s children, who were not parties to the arbitration agreement.  

Ms. Monschke and her sisters chose Timber Ridge for their mother in part because the facility marketed itself has having a special “memory care unit” for residents like their mom, who suffered from dementia.  At Timber Ridge their mom exited a door without supervision, wandered around outside and suffered a fall.  She was left outside for 30-45 minutes and suffered a serious head injury as well as fractures, and died of her injuries two weeks later.  Timber Ridge in their appeal tried to argue that the decedent’s adult children should be bound by an arbitration provision in the admission residence agreement that was signed by Valerie on behalf of her mother, an agreement none of the children signed in their own capacity (as to Valerie) or at all (as to her two sisters).  In California, the right to bring a wrongful death action belongs to the heirs of the decedent, not to the person who has died. The Court of Appeal affirmed the trial court’s ruling that the case can proceed to jury trial, rather than arbitration.

This is the second appellate victory by Janssen Malloy LLP in the Court of Appeal preserving the right to jury trial over a corporate defendant’s attempt to keep elder abuse and neglect from public view.  The Janssen firm also prevailed on a similar issue in Fitzhugh v. Grenada Healthcare and Rehabilitation LLC, also by a unanimous 3-0 appellate court.  Both cases illustrate the litigation tactics of corporate facility owners, who try to shield their behavior from public view, inserting arbitration clauses in fine print buried in residence agreements that the average person neither reads nor could understand.  

Preserving the right to jury trial is essential not only to obtaining justice for individual clients, but critical to the health of our democratic system.  Our Founding Fathers, in the Bill of Rights, thought the right of jury trial so important that it is the essence of the 7th Amendment to our Constitution.  Nowhere does one find any reference to the importance of arbitration for corporate defendants as a foundational principal for our democracy.

The attorneys at Janssen Malloy LLP are not only experienced in litigating wrongful death and elder abuse claims, they have led the way in developing the appellate case law that guides others in the protection of our most vulnerable population, our elderly loved ones.  Our trial lawyers stand ready to assist your family if the need arises.