Waiver Of Right To Arbitrate Does Not Require Voluntary Relinquishment Of Known Right

     Plaintiff sued 1-800-GET THIN and several other parties, after undergoing an endoscopic screening procedure for gastric band surgery and allegedly suffering injury.  The trial court denied defendants’ petition to arbitrate, noting “delay and denial of discovery”, and that Plaintiff “will suffer prejudice if the petition is granted.”  Defendants appealed.  Prewitt v. 1-800 GET THIN, Case No. B246574 (2nd Dist. Div. 7 June 10, 2014) (Woods, Perluss, Segal) (unpublished). 

     The Court of Appeal had no trouble affirming the trial court, on the ground that substantial evidence supported the finding of waiver.  Often no one factor is dispositive in deciding whether waiver has occurred.  In fact, the leading case, St. Agnes Medical Center v. PacifiCare of California, 31 Cal.4th 1187 (2003), sets forth a six factor test for waiver – factors that often overlap.

      Here, defendants had not proceeded expeditiously to request arbitration, they propounded discovery and obtained answers, apparently they did not provide much by way of discovery responses themselves, and they attended court appearances without mentioning arbitration. 

      COMMENT:  The Court notes that the typical meaning of waiver – voluntary relinquishment of a known right – is different from the meaning in the context of a waiver of the right to arbitrate:  “[A] party may be said to have ‘waived’ its right to arbitrate by an untimely demand, even without intending to give up the remedy.  In this context, waiver is more like a forfeiture arising from the nonperformance of a required act.”  Prewitt, supra, quoting Burton v. Cruise, 190 Cal.App.4th 939, 944 (2010).