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California court declines to compel arbitration without evidence of plaintiff consent

9/29/25

By: Rachel E. Hobbs

In the Third Appellate District decision of Brockman v. Kaiser Foundation Hospitals, the plaintiff was a biological female who sued the defendants for medical malpractice in connection with her gender-affirming treatment. She alleged that her mental health declined and she became suicidal following her breast-removal surgery at age fifteen. The defendants petitioned to compel arbitration, relying on disclosure forms the plaintiff’s mother signed in enrolling for health care. The court noted that the enrollment forms stated that the “full arbitration provision” was contained in separate documents. These documents were not placed before the court. Moreover, it was not sufficient for the party seeking to compel arbitration to show the parties generally agreed to arbitrate their disputes by incorporating some arbitration provision into their contract. Rather, the petitioning party was required to establish the precise arbitration provision the parties incorporated into their agreement to govern their disputes.

The court stated that in the case before it, the defendants failed to point to anything in the record showing that the plaintiff or her mother consented to the full arbitration agreement. Therefore, the defendants failed to sustain their burden of establishing by a preponderance of the evidence that there was a valid agreement to arbitrate, which is a statutory prerequisite to granting a petition to compel arbitration. Under this ruling, healthcare providers and other businesses that use “incorporation by reference” language should ensure that the arbitration clause is clearly and unambiguously part of the signed agreement.

For any questions or further clarification, please contact Rachel E. Hobbs at rachel.hobbs@fmglaw.com or your local FMG attorney.

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