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Turner v. Superior Court of Los Angeles County11/24/1998
In April, Arianna filed a petition for a writ of mandate in which she asked us to compel the trial court to order Kaiser to pay her party arbitrator's fees. We reviewed the record, found it wholly inadequate to support Arianna's position, and summarily denied the petition. Arianna then filed a petition for review, which the Supreme Court granted and transferred the matter to us with directions to issue an order to show cause. We complied.
DISCUSSION
The only point raised in Arianna's petition is a claim that she should not be deprived of "the party arbitrator of her choice due to lack of resources with which to pay his required charges." She says that if "she is unable to pay the charges demanded by her choice of party arbitrator, a fortiori she is denied procedural due process." On a different record, she might be right. On this record, she is not entitled to relief. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1153 [it is the petitioner's burden to establish entitlement to a writ].)
First, there is no factual basis for Arianna's assertion that she is not bound by the agreement to arbitrate. As noted above, Arianna was born at a Kaiser hospital because her mother (Wendy) is a covered dependent of an employee (Arianna's grandfather) of a company that provides coverage. We do not know whether the Kaiser plan was offered on a "take it or leave it" basis, or whether it was selected as one of several alternatives, or whether there are any other circumstances that might call into question the ability of this health care plan (or its provision for binding arbitration) to satisfy the minimum levels of integrity required by Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 984-986. Arianna does not contend the contract is invalid on its face, and we will not presume unconscionability. (Id. at p. 985.)
Second, the legislative policy of this state is that, absent an agreement to the contrary, arbitration costs are to be borne by the party incurring them. (Code Civ. Proc., § 1284.2 [each party must bear the fees and expenses incurred for the party's own benefit]; Austin v. Allstate Ins. Co. (1993) 16 Cal.App.4th 1812, 1815.) In the case of binding arbitration provisions in health care service plans, the legislature has created an exception to that general rule for the costs of the neutral arbitrator. (§ 1373.20, subd. (c) [in cases of extreme hardship, the plan must assume all or a portion of the claimant's share of the fees and expenses of the neutral arbitrator].) Accordingly, Arianna is entitled to apply to Kaiser (directly or through a neutral arbitrator who is not otherwise involved in these proceedings) for relief from her obligation to pay her share of the neutral arbitrator's fees, and a showing by her of extreme hardship would probably obligate the neutral arbitrator to grant her application. (§ 1373.20, subd. (c)(4).)
Third, Arianna has failed to make even that minimum showing. All we know about her is that her mother receives some form of state or federal financial assistance. We do not know if that is based on need or on Arianna's medical problems. We do not know anything about Arianna's father. Indeed, we do not know anything at all about Arianna or her family, or whether she would qualify for even the minimal cost-shifting required by section 1373.20.
Fourth, whatever merit there might be to a contention that an indigent claimant is entitled to greater protection than that provided by section 1373.20 when she is compelled to participate in binding arbitration and deprived of her right to a low or no cost jury trial, we cannot decide that issue in the abstract. We d
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