 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Blosser v. Sheibani4/20/2005
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
SUMMARY
In this personal injury action, a physician appeals from a trial court order denying his petition seeking to compel arbitration under an arbitration agreement between the physician and his patient. The trial court denied the petition and refused to enforce the arbitration agreement on unconscionability grounds. The agreement was found unconscionable because:
(1)It fails to specify which party is responsible for paying the arbitration costs;
(2)It contains a provision requiring the patient to pay the physician's attorney's fees if the patient contests the validity of the arbitration agreement and loses, but does not similarly require the physician to pay the patient's attorney's fees in the event the patient prevails;
(3)It contains a provision which effectively grants the physician the sole right to a trial de novo to challenge an unfavorable substantial arbitration award, but prevents the patient from challenging any award of less than $10,000.
We conclude the trial court erred on the issue of costs and attorney's fees. In consumer arbitrations involving individual or private rights, each party is required to bear its own costs where the arbitration agreement fails to specify which party must bear the costs of arbitration. (Code Civ. Proc., ยง 1284.2.) Additionally, Civil Code section 1717 supplies the mutuality the trial court found lacking with respect to attorney's fees. Finally, the contractual provision granting the physician the sole right to a trial de novo for awards over $10,000 is unconscionable. However, because the unconscionable provision is collateral to an otherwise enforceable arbitration agreement, the trial court erred in refusing to excise that provision. Accordingly, we reverse and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent Anne Blosser retained appellant Shane Sheibani, M.D., a cosmetic surgeon, to remove spots on her legs. Blosser was dissatisfied with the results of the surgical procedure and sued Sheibani for breach of contract, medical malpractice, negligent and intentional misrepresentation, and unfair business practices.
After answering the complaint, Sheibani petitioned to compel arbitration under a written Patient-Physician Arbitration Agreement ("arbitration agreement") executed May 1, 2001. The terms of that agreement, which form the basis of this dispute, are:
1. "This is an agreement between Shane Sheibani, MD, Inc. ("Doctor") and myself Anne Blosser ("Patient"). IT IS USNDERSTOOD THAT ANY DISPUTE AS TO MEDICAL MALPRACTICE (THAT IS AS TO WHETHER ANY MEDICAL SERVICES RENDERED UNDER THIS CONTRACT WERE UNNECESSARY OR UNAUTHORIZED OR WERE IMPROPERLY, NEGLIGENTLY OR INCOMPETENTLY RENDERED) WILL BE DETERMINED BY SUBMISSION TO ARBITRATION AS PROVIDED BY CALIFORNIALAW, AND NOT BY A LAWSUIT OR RESORT TO COURT PROCESS EXCEPT AS CALIFORNIA LAW PROVIDES FOR JUDICIAL REVIEW OF ARBITRATION PROCEEDINGS. BOTH PARTIES TO THIS CONTRACT, BY ENTERING INTO IT ARE GIVING UP THEIR CONSTITUTONAL RIGHT TO HAVE ANY SUCH DISPUTE DECIDED IN A COURT OF LAW BEFORE A JURY, AND INSTEAD ARE ACCEPTING THE USE OF ARBITRATION.
2. "I voluntarily agree to submit to arbitration all disputes between myself and the Doctor arising from medical care and treatment by the Doctor of me, whether thes
Page 1 2 3 4 5 6 7 8 9 10 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|