When an arbitration agreement with a memory care facility provides that the “arbitrator will decide any question about whether a claim or dispute must be arbitrated,” have the parties clearly and unmistakably delegated questions of arbitrability to the arbitrator? And when the agreement requires arbitration “in accordance with the Federal Arbitration Act,” have the parties expressly agreed to be governed by the FAA’s procedural rules in court, instead of those specified by the California Arbitration Act (“CAA”)?
The answer to both questions is a resounding “no” according to Wright v. WellQuest Elk Grove, LLC, No. C105070, 2026 WL 762409, — Cal. Rptr. 3d —-, which the California Court of Appeal decided on March 18, 2026. The court held that the delegation clause fell short of the “clear and unmistakable” standard and that the parties did not “expressly” agree to use the FAA’s procedural rules when they specified that arbitration should be “in accordance with” the FAA. That distinction matters because the FAA’s procedural rules do not include a provision comparable to California Code of Civil Procedure section 1281.2(c), which permits California courts to decline arbitration when non-arbitrable claims create a risk of conflicting rulings. Because the CAA applies by default, section 1281.2(c) remained available to the trial court.
The opinion is a significant boon to trial counsel opposing motions to compel arbitration, particularly in elder care cases, and is required reading for anyone litigating arbitrability under California Code of Civil Procedure section 1281.2.
The background
Kathleen Charles was a dementia patient admitted to WellQuest, a memory care facility in Elk Grove, CA. Although her family told staff that she was a wanderer who needed constant supervision, Kathleen was found unresponsive in a courtyard in 102-degree heat with burns over nearly a quarter of her body only three days after her admission. Kathleen died four days later.
Kathleen’s family filed suit against WellQuest, asserting claims for elder neglect, wrongful death, and others. WellQuest moved to compel arbitration based on an agreement Kathleen’s niece signed on her behalf at admission. The trial court denied the motion, and the Court of Appeal affirmed.
The delegation clause
The arbitration agreement included a delegation clause stating that “an arbitrator will decide any question about whether a claim or dispute must be arbitrated.” WellQuest argued that this was a clear and unmistakable delegation of questions of arbitrability to the arbitrator.
The Court of Appeal disagreed. Under California law, a delegation clause must satisfy a heightened standard. “First, the language of the clause must be clear and unmistakable. Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability.” Aanderud v. Superior Court, 13 Cal. App. 5th 880, 892 (2017) (quoting Tiri v. Lucky Chances, Inc., 226 Cal. App. 4th 231, 242 (2014)). This standard “reflects a ‘heightened standard of proof’ that reverses the typical presumption in favor of the arbitration of disputes.” Id. (emphasis omitted) (quoting Ajamian v. CantorCO2e, L.P., 203 Cal. App. 4th 771, 787 (2012)).
The WellQuest agreement’s language — that “an arbitrator will decide any question about whether a claim or dispute must be arbitrated” — fell short. The court explained that this language “only speaks to ‘whether a claim or dispute must be arbitrated’ and says nothing about other aspects of arbitrability, such as interpretation or enforcement of the arbitration agreement.” The court contrasted this with the delegation clause upheld in Aanderud, which expressly covered “the interpretation, validity, or enforceability of this Agreement, including the determination of the scope or applicability of this [arbitration] Section.” Aanderud, 13 Cal. App. 5th at 892. That text, the Aanderud court held, clearly and unmistakably delegated questions of arbitrability to the arbitrator.
The WellQuest agreement also fell short in another respect. The Aanderud agreement stated that JAMS would administer the arbitration pursuant to its “Streamlined Rules and Procedures” and provided an internet link to those rules. JAMS rule No. 8 expressly assigned arbitrability questions to the arbitrator, which provided the court further evidence of the parties’ intent. The WellQuest agreement, by contrast, specified JAMS as the arbitral forum but made no reference to the applicable rules, provided no link to them, and included nothing indicating that the rules were available to the patient or her representative before signing. Under these circumstances, the court concluded, the agreement did not clearly and unmistakably delegate threshold questions of arbitrability.
The practical lesson is straightforward. A generic statement that the arbitrator will decide “whether a claim must be arbitrated” does not clearly and unmistakably delegate threshold questions of arbitrability, enforceability, and unconscionability. Facilities defending these motions need language that expressly addresses those issues. Plaintiffs opposing these motions should examine whether the delegation clause is specific enough to meet the heightened “clear and unmistakable” standard — and whether the referenced arbitration rules were actually available to the patient or their representative at signing.
The FAA vs. CAA question
The second issue was whether the arbitration agreement’s reference to the FAA displaced California’s procedural arbitration rules — specifically Code of Civil Procedure section 1281.2(c), which gives a California trial court discretion to decline to compel arbitration of arbitrable claims when there is a risk of conflicting rulings with non-arbitrable claims.
WellQuest argued that because the agreement required arbitration “in accordance with the Federal Arbitration Act,” the FAA’s procedural rules applied, and those rules do not include a provision comparable to section 1281.2(c). Under the FAA, a court faced with an arbitrable claim and a related non-arbitrable claim has only one option: stay the court proceeding and compel arbitration.
The Court of Appeal rejected this argument. The default rule in California state court is that the CAA’s procedural rules apply, even in cases where the FAA governs the substantive arbitrability of the dispute. For the FAA’s procedural rules to apply instead, the parties must expressly incorporate them. Agreeing to arbitrate “in accordance with” the FAA indicates intent to be consistent with the FAA, but does not specify whether that intent extends to the FAA’s procedural provisions, its substantive provisions, or both.
That ambiguity was fatal to WellQuest’s argument because California Supreme Court precedent requires more than general FAA references to displace the CAA’s default procedural rules. As the court explained, “in order to indicate an affirmative choice to be bound by the FAA’s procedures over the expected CAA provisions the parties are required to expressly state so — which requires more exacting language than what is present here.” The phrase “in accordance with the Federal Arbitration Act,” the court held, means only that “any arbitration must be consistent with the FAA” — it says nothing about whether that consistency applies to the FAA’s substantive provisions, its procedural provisions, or both. Without that specificity, the CAA applies by default, and section 1281.2(c) remains available to the court.
The court also expressly declined to follow Rodriguez v. American Technologies, Inc., 136 Cal. App. 4th 1110 (2006), an earlier Court of Appeal decision that had reached the opposite conclusion regarding a clause that similarly agreed to arbitrate “pursuant to” the FAA. The court held that Rodriguez was inconsistent with California Supreme Court precedent establishing the CAA as the default procedural framework in state court. [last two paragraphs: what California supreme court precedent? Please weave this in.]
The practical implication here is significant. As long as any plaintiff in the case is a non-signatory to the arbitration agreement — a family member asserting wrongful death or emotional distress claims, for example — the trial court retains discretion under section 1281.2(c) to keep the entire case in court if there is a risk of conflicting rulings. Facilities cannot eliminate this risk simply by referencing the FAA in their arbitration agreements. They need language that expressly and specifically designates the FAA’s procedural provisions as controlling. Plaintiffs should take note that facilities’ existing arbitration agreements rarely sufficiently designate the FAA’s procedural provisions under Wright, so section 1281.2(c) arguments remain available.
What this means for your cases
First, delegation clauses in existing residential care agreements rarely meet the heightened standard required to send enforceability questions to the arbitrator. If the agreement does not expressly assign issues of interpretation, enforceability, and unconscionability to the arbitrator, the court decides them.
Second, the presence of non-signatory family members in a lawsuit creates a significant opening to invoke section 1281.2(c). When the survivor claims and the individual wrongful death and emotional distress claims arise from the same facts, the risk of conflicting rulings is real. A well-briefed opposition to a motion to compel arbitration should develop this argument carefully.
Third, the FAA’s procedural provisions do not apply in California state court unless the agreement expressly says so. Broad language referencing the FAA is not enough. This means that section 1281.2(c) remains available in most cases involving residential care facility arbitration agreements.
We can help
If you are defending against a motion to compel arbitration, we can help you evaluate the agreement and develop the strongest possible opposition. Contact us to discuss whether we’d be a good fit.
