Wick v. MHC Rancho
Filed 1/11/13
Wick v. MHC Rancho Mesa CA4/1
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DAVID WICK et
al.,
Plaintiffs and Respondents,
v.
MHC RANCHO MESA, LLC et al.,
Defendants and Appellants.
D061088
(Super. Ct. No.
37-2009-00064864-
CU-BC-EC)
APPEAL
from an order of the Superior Court of
County, Joel R. Wohlfeil, Judge. Affirmed.
MHC
Rancho Mesa, LLC and MHC Rancho Mesa, LP (collectively defendants) appeal from
an order denying their motion to compel
arbitration of claims brought by David and Rhonda Wick. We affirm the court's order. Substantial evidence supported the court's
finding that defendants waived their right to compel arbitration.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants
operate a mobilehome park primarily for senior citizen residents. (See Civ. Code, § 798.76.) In 2004, the Wicks
entered into a long-term rental agreement with defendants to lease a space in
the mobilehome park. As detailed below,
the rental agreement contained provisions requiring arbitration of specified
disputes between the parties.
Five years
later, in March 2009, the Wicks filed a lawsuit against defendants and
others. As against defendants, the Wicks
alleged fraud, negligence, and breach of contract. About seven months later, in October 2009,
the court entered a default against defendants.
About five
months later, defendants moved to set aside the default based on defective
service. Defendants submitted evidence
that their registered agents had never been properly served with the
lawsuit. Defendants also submitted a
declaration of an administrative assistant who works at the mobilehome park,
who said that on or about April 24, 2009, she discovered
the Wicks' summons and complaint "shoved under the door" and she
faxed these documents to defendants' attorney.
The administrative assistant said she was not authorized to accept
service on behalf of defendants.
On April 9, 2010, the court granted defendants' motion to set aside the default, finding
the proofs of service were defective as they did not "indicate service on
anyone authorized to accept service."
The court also found there was no effective substituted service.
About 10 months
later, in late February and mid-March 2011, the Wicks properly served
defendants' registered agents with the summons and complaint.
Several weeks
later, defendants filed a demurrer to the Wicks' complaint. In the demurrer, defendants argued: (1) the causes of action failed to state
facts sufficient to constitute a cause of action; (2) the allegations were
uncertain and ambiguous; (3) the claims were barred by the applicable statute
of limitations; and (4) the claims were barred by a prior settlement and
release agreement between defendants and other mobilehome owners.
Defendants also
filed a separate motion to dismiss. In the motion, defendants argued the court
should dismiss the lawsuit because plaintiffs failed to effect timely service
and failed to bring the action to trial within two years of filing the
complaint. Defendants also urged the
court to dismiss the action on the grounds that the claims were barred by the
statute of limitations and by the prior settlement and release agreement.
Defendants also filed
a motion for sanctions under Code of Civil Procedure section 128.7. Defendants argued sanctions were appropriate
for various reasons, including that the Wicks:
(1) entered the default when they knew or should have known it was void
based on false or defective proofs of service; (2) wrongfully refused to
voluntarily set aside the default; and (3) knowingly filed an action barred by
the statute of limitations.
After
considering the parties' written submissions and conducting a hearing, the
court denied defendants' motion to dismiss and sanctions motion. However, the court sustained defendants'
demurrer with leave to amend. In so
ruling, the court rejected defendants' argument that the prior settlement
barred the Wicks' claims. But the court
found the complaint on its face was time barred and the Wicks did not plead
facts showing an exception based on delayed discovery rules. The court also found the complaint was
deficient because it was vague and lacked specificity with respect to two
causes of action and the Wicks did not attach the written contract between the
parties.
Within several
days after the court entered these rulings, the Wicks filed a first amended
complaint asserting three fraud-based causes of action, and alleging they first
learned of the fraud within three years of filing the complaint. About one month later, defendants filed a
demurrer, arguing that each cause of action failed to state facts supporting a
claim and the allegations were uncertain and ambiguous. Defendants also filed a motion to strike
various allegations in the complaint, including the allegations seeking
punitive damages.
In August 2011,
the court overruled defendants' demurrer and denied its motion to strike. After considering the parties' papers and
holding a hearing, the court found the first amended complaint alleged the
fraud claims with sufficient specificity and the allegations were sufficient to
support a punitive damages claim under Civil Code section 3294.
Several weeks
later, defendants moved for the first time to compel arbitration under
arbitration provisions in an addendum to the parties' 2004 lease
agreement. Under these provisions, the
parties agreed to arbitrate "any dispute . . . arising out of or concerning
or connected with" the rental agreement or other residency documents. (Capitalization omitted.) The agreement states that an arbitration
demand must be made "within a reasonable time after the claim[,] dispute
or other matter in question has arisen," but no later than "the date
that institution of legal or equitable proceedings based upon such claim,
dispute or other matter would be barred by the applicable statute of
limitations."
title="">[1] (Capitalization omitted.) The agreement also provides that the parties
shall use the JAMS arbitration service; each party must deposit one-half the
estimated arbitration costs before the proceeding begins (prearbitration
deposit requirement); and the nonprevailing party shall bear the attorney fees
and costs. The agreement further states
that if the arbitration provisions are held unenforceable, "all arbitrable
issues . . . will be . . . referred" to a judicial
referee under Code of Civil Procedure section 638. (Capitalization omitted.)
In opposing the
arbitration and judicial referee requests, the Wicks argued the arbitration
agreement was a contract of adhesion and was substantively and procedurally
unconscionable; they were fraudulently induced to enter into the contract; and
the arbitration agreement violated various statutes and public policies governing
mobilehome parks. The Wicks also argued
the prearbitration deposit requirement would deny them a forum to litigate
their disputes because they could not afford the deposit amount, which they
said could be as much as $18,000 ($600 per hour for the arbitration for 40-60
hours of arbitration services). In
support, the Wicks submitted their declarations stating that they are
"facing Bankruptcy," Mr. Wick was required to return to work after
retirement, their mobilehome is worth less than they owe, and they cannot
afford to pay for a private judge.
During the
hearing on the motion to compel arbitration, the Wicks' counsel raised the
issue whether defendants had waived their right to arbitration by unreasonably
delaying in asserting the request.
Counsel noted that defendants had repeatedly "asked this
court" for "dispositive rulings," and having unsuccessfully
"swung the bat several times," they have now changed their course and
decided "'oh well, since we can't get the judgment we've asked for, let's
arbitrate." At the conclusion of
the hearing, the court decided to permit the parties to brief the waiver
issues, stating that it "may be that . . . defendants
. . . have participated so meaningfully in proceedings before the court, that
they have effectively waived their right to enforce an arbitration
provision."
In their
supplemental briefing, the Wicks argued that defendants' filings constituted
meaningful participation in the litigation and showed that defendants
"very much wanted this court to rule on this case when they believe[d] it
would do so in their favor. Now they
want to forum shop and try again. Having
asked this court to make a disposition in their case, they should be deemed to
have waived the right to take this case elsewhere." With respect to prejudice, the Wicks argued
they were required to defend their case on the merits, and "Defendants,
having lost on this issue, are essentially forum shopping seeking to force the
Plaintiffs into another judicial system where they can be forced to retry these
matters."
In urging the
court to find there was no waiver, defendants argued that their prior motions
concerned only pleading issues and thus did not constitute litigation on the
merits constituting a waiver. They also
argued the Wicks suffered no prejudice from any delay in requesting
arbitration. In support, they submitted
their counsel's declaration discussing the history of the litigation
(summarized above), and noting that the parties have not yet engaged in
discovery and there is no trial date. In
explaining why defendants did not raise the arbitration issue earlier, defense
counsel stated: "Defendants have
always intended to compel Plaintiffs' claims to arbitration," but before
doing so, they "sought to dispose of the entire lawsuit . . . based upon
the statute of limitations and the general release in the [prior lawsuit]. . .
. [W]hen it became apparent the lawsuit
would move forward, Defendants immediately moved to compel all of Plaintiffs'
claims to arbitration . . . . "
After considering
the parties' papers and conducting another hearing, the court denied
defendants' motion to compel. In a
lengthy statement of decision, the court found defendants had waived their
right to compel arbitration under the six-factor test set forth in
Cal.App.4th 980 (Sobremonte). The court explained that defendants' actions
were inconsistent with a desire to arbitrate the dispute and defendants had
gone "well beyond" the " 'preparation' " phase
before "choos[ing] to strategically notify Plaintiffs of their intent to
arbitrate." The court identified
defendants' litigation actions (including filing multiple demurrers, motions to
strike and motions for sanctions) and emphasized that defense counsel had
acknowledged in his declaration that defendants had " 'always
intended to compel Plaintiffs' claims to arbitration.' " The court also found the Wicks were
"prejudiced by Defendants' strategic decision to delay their request for
arbitration by having to invest substantial resources to respond to multiple
demurrers, motions to strike and motions for sanctions," and referred to
the evidence showing the Wicks have limited financial resources. The court additionally stated that the case
"is already more than 900 days old," and that "both sides"
have "devoted an inordinate amount of resources to reap the benefits of
the judicial system before raising the arbitration issue."
The court
rejected the Wicks' alternative arguments that the arbitration agreement was
substantively and procedurally unconscionable, except the court stated that it
was deferring "at this time" ruling on the issue whether the
prearbitration deposit requirement is unconscionable because the deposit
requirement would be "cost-prohibitive for plaintiffs." The court also denied defendants' alternate
request for the appointment of a referee under Code of Civil Procedure section
638 on the same waiver grounds.
DISCUSSION
I. Legal Principles Governing Arbitration Waivers
Federal and
state law reflect a strong public policy favoring arbitration as " '
"a speedy and relatively inexpensive means of dispute resolution." '
" (St. Agnes Medical Center v.
PacifiCare of California (2003) 31 Cal.4th 1187, 1204 (St. Agnes).) Nonetheless,
waiver grounds. (Id. at p. 1195.) Based on
the public policy favoring arbitration, waiver claims receive "close
judicial scrutiny" and the "party seeking to establish a waiver bears
a heavy burden of proof." (
identified six factors that courts should consider in determining whether a
party has waived the right to compel arbitration.
Cal.App.4th at p. 992.) Thereafter, in
agreed that these factors are relevant to the analysis, but admonished that
"no single test delineates the nature of the conduct that will constitute
a waiver of arbitration." (
1195.) Each factor must be examined in
the context of the particular circumstances of the case. (Id. at
p. 1196.) Among the relevant factors
identified by the Sobremonte and
party asserted the arbitration right in a timely fashion and whether there has
been judicial litigation of the merits of arbitrable issues. (St.
Agnes, supra, 31 Cal.4th at p.
1196; Sobremonte, supra, 61
Cal.App.4th at p. 992.) Additionally,
the party asserting waiver must generally establish prejudice. (St.
Agnes, supra, 31 Cal.4th at pp.
1196, 1203.) However, where other
factors supporting a waiver are present, the prejudice showing need not be
substantial. (See id. at pp. 1203-1204.)
factual
the substantial evidence standard. (
v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 443 (
Associates (2011) 193 Cal.App.4th 331, 337 (Augusta)
"determination of this factual issue, ' "if supported by substantial
evidence, is binding on an appellate court." ' [Citation.]
Only ' "in cases where the record before the trial court
establishes a lack of waiver as a matter of law, [may] the appellate court . .
. reverse a finding of waiver made by the trial court." ' [Citation.]" (Adolph v. Coastal Auto Sales, Inc.
(2010) 184 Cal.App.4th 1443, 1450 (Adolph); see Zamora v. Lehman
(2010) 186 Cal.App.4th 1, 12.)
Applying the
court found defendants waived the right to arbitrate the Wicks' claims
primarily because defendants delayed asserting the arbitration demand until
after the court had ruled on certain dispositive motions. The court further found the timing of
defendants' motion to compel arbitration prejudiced the Wicks' rights by
creating an unnecessary delay and imposing litigation costs on plaintiffs
before submitting the matter to an arbitrator.
These findings are supported by substantial evidence and justify the
court's waiver finding.
First, the record supports that
defendants sought to have the case dismissed on its merits before seeking an
alternate arbitration forum. The conduct
is inconsistent with the right to arbitration, particularly because the record
shows defendants knew about the arbitration provision before they filed any of
their motions and always intended to raise the arbitration issue. (See Augusta,
supra, 193 Cal.App.4th at p. 338; Guess?,
Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 557.)
There was an approximately
five-month delay between the time defendants were properly served and the time
defendants raised the arbitration issue.
During this time, defendants filed dispositive motions, several of which
were on the merits of their defenses, including that the claims were barred by
a prior lawsuit and that the claims were barred by the statute of
limitations. Litigating issues through
demurrers can constitute judicial litigation on the merits justifying a waiver
finding. (Lewis, supra, 205
Cal.App.4th at pp. 449-451; see also St.
Agnes, supra, 31 Cal.4th at p. 1201; Berman
v. Health Net (2000) 80 Cal.App.4th 1359, 1371, fn. 16;
& Smith, Inc. (1980) 105 Cal.App.3d 946, 951; but see
Cal.App.4th 1189, 1195 (Groom).)
Moreover, "a
party's unreasonable
or seeking arbitration,
in and of
a waiver of
945.) Defendants provided no reason for
the delay other than that they were hoping to have the case dismissed in the
judicial forum without the need for arbitration. A party's strategy to delay exercising its
arbitration right for the purpose of seeking to prevail in the court system
constitutes improper forum shopping and supports a waiver finding. As the Burton
court noted, a party should not be permitted "to blow hot and cold by
pursuing a strategy of courtroom litigation only to turn towards the arbitral
forum" once it believes such forum would be advantageous for its own
purposes. (Ibid.) " 'We are
loathe to condone conduct by which a [litigant] repeatedly uses the court
proceedings for its own purposes . . . all the while not breathing a word about
the existence of an arbitration agreement, or a desire to pursue
arbitration.' " (
Other courts have found similar
delays to be unreasonable and justification for a waiver finding. (See Lewis,
supra, 205 Cal.App.4th
arbitration unreasonable]; Augusta, supra, 193 Cal.App.4th at pp. 338-339 [six and one-half months
between filing lawsuit and motion to compel arbitration]; Adolph, supra, 184 Cal.App.4th at pp. 1446, 1449,
1451-1452 [six months between filing lawsuit and demand for arbitration]; Guess?,
Inc. v. Superior Court, supra,
79 Cal.App.4th at p. 556 [less than four months between filing lawsuit and
motion to compel arbitration]; Kaneko Ford Design v. Citipark, Inc.
(1988) 202 Cal.App.3d 1220, 1228-1229 [five and one-half months between filing
lawsuit and motion to compel arbitration].)
Defendants argue that their
motions were not relevant to the waiver analysis because the motions were
directed at vacating the default, which must be accomplished in court rather
than through arbitration. We agree that
the time and costs associated with the motion to vacate the default cannot be
fairly considered a waiver of the arbitration right. However, once defendants successfully
obtained an order vacating the default, defendants did not promptly raise the
arbitration issue. Instead, they
remained silent regarding their intention to seek arbitration and continued to
bring motions seeking to have the matter dismissed in court. Although defendants had the right to demand
proper service of the lawsuit before they had any obligation to take defensive
action in court, for purposes of their contractual arbitration agreement, it
was incumbent on the defendants (if they wished to arbitrate plaintiffs'
claims) to promptly seek arbitration once they were aware of the claim or
dispute.
Relying on the trial court's
statement that the "case is already more than 900 days old,"
defendants argue the court erred in failing to recognize that it was not until
late February/mid-March 2011 that they were properly served with the complaint
and thus most of the delay was the Wicks' responsibility. However, viewing the court's statement in
context, we are confident the court correctly understood the procedural history
of the case. In referring to the 900-day
period, the court recognized that both parties had "devoted an inordinate
amount of resources to reap the benefits of the judicial system," but also
later stated that defendants' activity went "well beyond the 'preparation
of a lawsuit' before . . . [choosing] to strategically notify Plaintiffs of
their intent to arbitrate."
Defendants additionally contend
their conduct was not inconsistent with an arbitration request because they did
not litigate the claims or defenses on their merits except to address
The record does not support this
assertion. Defendants specifically
sought dismissal of the matter based on the statute of limitations
Wicks' allegations did not state a legal cause of action; (2) the matter was
barred by a prior settlement resulting from previous litigation; and (3) the
Wicks were barred from bringing the action by failing to bring the matter to
trial within two years. These issues
required the court to evaluate the claims and defenses asserted in the action,
as well as the relevant procedural facts.
(See Lewis, supra,
["litigating issues through demurrers" can constitute judicial
litigation on the merits justifying a waiver finding].)
Moreover, even assuming the
statute of limitations was the only issue litigated, the court had a reasonable
basis to find the assertion of this defense reflected meaningful litigation
activity constituting a waiver.
Generally, an "affirmative defense that the statute of limitations
has run is for the arbitrator rather than the court to decide." (Wagner
Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19,
26.) In asserting a contrary point,
defendants state that under the parties' arbitration contract, the parties were
required to bring an arbitration request within a reasonable time,
applicable to the claims at issue.
(See fn. 1, ante.) Based on this provision, defendants argue
that its litigation of the statute of limitations issue was not inconsistent
with its later arbitration demand because under the arbitration provision,
defendants were prohibited from demanding arbitration if the claims were time
barred and that "in simple terms, [defendants were] required to address
the statute of limitations issue before seeking
to compel arbitration."
We are not persuaded, but need
not decide the issue. Whether
defendants' decision to challenge the statute of limitations issue by demurrer
in court was contractually required as defendants assert or an understandable
strategy in response to the apparent expiration of the statute of limitations
appearing on the face of plaintiffs' original complaint, we would not disturb
the court's waiver finding. As noted, in
the initial demurrer, defendants did far more to engage the power of the
superior court than merely contest whether the claims were barred by the statute
of limitations. After the Wicks filed
their amended complaint, defendants then responded with another demurrer,
rather than moving to compel arbitration in lieu of answering the
complaint. (Code Civ. Proc.,
§ 1281.7.) Instead of submitting
what had become a factually intensive inquiry to the arbitrator, defendants
again sought resolution of this affirmative defense in a judicial forum.
This conduct supports the trial
court's finding the defendants were attempting to conclude this matter in
superior court and only belatedly exercised their right to compel
arbitration. Although parties may elect
to litigate in a judicial or arbitration forum, they cannot employ both forums
for the same dispute. (See
33 Cal.3d 778, 784.) A contrary
conclusion would contravene the arbitration statutes and public policy
providing arbitration as a less expensive and less time-consuming alternative
to litigation.
Because defendants delayed
several months (without any reasonable justification) before seeking to compel
arbitration and there was judicial litigation on the merits of arbitrable
issues, defendants' conduct supports the court's waiver finding.
Moreover, the record supports
the court's prejudice finding. "In
California, whether or not litigation results in prejudice . . . is critical in
waiver determinations." (
" 'The moving party's mere participation in litigation is not
enough; the party who seeks to establish waiver must show that some prejudice
has resulted from the other party's delay in seeking arbitration.' [Citation.]" (Augusta, supra, 193 Cal.App.4th at p. 340.)
Generally, " 'courts will not find prejudice where the party
opposing arbitration shows only that
it incurred court costs and legal expenses.' " (Lewis,
supra, 205 Cal.App.4th at p. 452, quoting St. Agnes, supra, 31 Cal.4th at p. 1203.) "But courts ' "may consider .
. . the expense incurred by that party from participating in the litigation
process" ' and the length of delay as factors bearing on whether the
opposing party has been prejudiced."
(Ibid.)
" '[T]he critical factor in
demonstrating prejudice is whether the party opposing arbitration has been
substantially deprived of the advantages of arbitration as a
" ' "speedy and relatively inexpensive
means" ' " of dispute resolution.' " (Lewis,
supra, 205 Cal.App.4th at p.
452.) " '[C]ourts assess prejudice with
the recognition that California's arbitration statutes reflect " 'a
strong public policy in favor of arbitration as a speedy and relatively
inexpensive means of dispute resolution' " and are intended
" 'to encourage persons who wish to avoid delays incident to a civil
action to obtain an adjustment of their differences by a tribunal of their own
choosing.' " ' "
(Burton v. Cruise, supra,
Under these principles, "a petitioning party's conduct in
stretching out the litigation process itself may cause prejudice by depriving
the other party of the advantages of arbitration as an 'expedient, efficient
and cost-effective method to resolve disputes.'
[Citation.]" (
In this case, the Wicks
presented evidence that they had limited financial resources and were required
to respond to several sets of motions in which defendants were seeking to have
the case dismissed.
defendants deprived the Wicks of the benefits available through arbitration,
which include a more speedy resolution of the dispute and relatively
inexpensive means of dispute resolution.
Although this specific prejudice showing was relatively minimal in the
context of the entire case, under the totality of the circumstances test, a
lesser showing of prejudice may be sufficient where, as here, there has been at
least some judicial litigation on the merits of arbitrable issues.
(See St. Agnes, supra,
1203-1205.)
Additionally, the trial court
made findings supporting that defendants were essentially using their motion to
compel arbitration as a means of forum shopping after it was unsuccessful in
having the lawsuit dismissed. The courts
have recognized that the use of a motion to compel arbitration for such purposes
can be a form of prejudice. (See
F.2d 176, 179 [prejudice can occur
when a party loses a motion on the merits and then attempts, in effect, to
relitigate the issue by invoking arbitration]; Gonsalves v. Infosys Technologies, LTD., supra,
Novelties, Inc. (N.D.Cal., May 1, 2007, No. C 06-5304 SBA) 2007 WL 1288349,
at *5-*6 ["use of arbitration as a method of forum shopping would be
prejudicial" to party opposing arbitration].)
In this regard, defendants'
reliance on Groom v. Health Net, supra,
82 Cal.App.4th 1189 is unhelpful. In
compel arbitration shortly after the trial court overruled demurrers to the
third amended complaint. (
the defendant's litigation activity constituted an election to abandon the
arbitration forum. (Id. at pp. 1193-1194.) The
Court of Appeal reversed, concluding the plaintiff's filing of several
demurrers did not constitute litigation on the merits of the case. (Id. at
p. 1195.) The court also found the
plaintiff did not show any prejudice, noting that the evidence of the
plaintiff's time and expense in responding to defendants' demurrers and
amending the pleadings was insufficient to support a waiver. (Id. at
pp. 1197; see also St. Agnes, supra,
Groom is distinguishable because it was
unclear from the Groom plaintiff's
initial pleadings whether the claims asserted were subject to arbitration. (Groom,
supra, 82 Cal.App.4th at pp.
1196-1197.) Additionally, the record
showed that the Groom plaintiff had
"artfully drafted" her complaint for the purpose of avoiding
arbitration. (Id. at p. 1196.) There are
no similar facts in this case. Moreover,
at least one Court of Appeal has disagreed with Groom's narrow prejudice analysis as being inconsistent with
California law. (Burton v. Cruise, supra, 190
Cal.App.4th at p. 948; see also Roberts
v. El Cajon Motors, Inc. (2011) 200 Cal.App.4th 832, 844, fn. 9.) Burton
stated that "Groom . . . erred
in failing to recognize that a petitioning party's conduct in stretching out
the litigation process itself may cause prejudice by depriving the other party
of the advantages of arbitration as an 'expedient, efficient, and
cost-effective method to resolve disputes.'
. . . Arbitration loses much, if not all, of its value if undue time and
money is lost in the litigation process preceding a last-minute petition to
compel." (Burton, supra, at p. 948.)
We agree with Burton, and find
Groom's prejudice analysis does not
require a finding that the court erred in this case.
In their appellate briefs,
defendants discuss various other St.
Agnes/Sobremonte factors that would favor a conclusion that they did not
waive their right to compel arbitration.
For example, defendants note that the parties had not yet engaged in
discovery and there was no trial date.
However, the trial court specifically considered these and all of the
other relevant factors and found that under the "totality of the
evidence" defendants had waived their right to compel arbitration. In challenging this conclusion, defendants
are essentially requesting that we reweigh the facts and make different
inferences than did the trial court. We
cannot substitute our deductions for those of the trial court if they are
reasonable and supported by substantial evidence. (See
St. Agnes, supra, 31 Cal.4th at
p. 1196.) The trial court's waiver
conclusion was reasonable and was supported by substantial evidence.
Defendants also challenge the
court's finding that they waived their right to require an appointment of a
judicial referee under Code of Civil Procedure section 638. We conclude this challenge is without merit
for the same reasons that we have found the court's arbitration waiver finding
supported.
DISPOSITION
Order affirmed. Appellants to bear respondents' costs on
appeal.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
time" provision states: "A
demand for arbitration or request for mediation shall be in writing and must be
made within a reasonable time after the claim dispute or other matter in
question has arisen. In no event shall
the demand for arbitration be made after the date that institution of legal or
equitable proceedings based upon such claim, dispute or other matter would be
barred by the applicable statute of limitations. Notice of demand for mediation or arbitration
must provide: (A) A
description . . . of the dispute; (B) facts from which the
dispute arises, including witnesses, dates, times, and circumstances; (C) a
description of the relief of action requested." (Capitalization omitted.)
include: " '(1) whether the
party's actions are inconsistent with the right to arbitrate; (2) whether
"the litigation machinery has been substantially invoked" and the
parties 'were well into preparation of a lawsuit' before the party notified the
opposing party of an intent to arbitrate; (3) whether a party either requested
arbitration enforcement close to the trial date or delayed for a long period
before seeking a stay; (4) whether a defendant seeking arbitration filed a
counterclaim without asking for a stay of the proceedings; (5) "whether
important intervening steps [e.g., taking advantage of judicial discovery
procedures not available in arbitration] had taken place"; and (6) whether
the delay "affected, misled, or prejudiced" the opposing party. [Citations.]' " (
