Defendants Simply Could Not Overcome Substantial Evidence Standard
After their 52-year-old sibling died following bariatric surgery, plaintiffs sued surgery center defendants for wrongful death. No, surgery center defendants did not immediately move to compel arbitration. Instead, they demurred, they moved to change venue, they propounded discovery that plaintiffs answered, and they took three depositions. On June 15, 2012, nine and a half months after the complaint was filed, the surgery center defendants filed their petition to compel arbitration. The superior court denied the petition finding the surgery center defendants had waived any contractual right to arbitrate, and an appeal followed. Brown v. Beverly Hills Surgery Center, LLC, Case No. B243494 (2nd Dist. Div. 7 Feb. 18, 2014) (Perluss, Woods, Zelon) (unpublished).
There were plenty of arguments for finding no waiver: other cases have found no waiver despite longer delay; no trial date had been set; demurrers do not reach the merits; and taking discovery is not necessarily prejudicial. However, it was relevant here that written discovery had been propounded, and had been answered, and that the efforts to demur and to obtain a different judicial venue were “wholly inconsistent with any intent to arbitrate”. In any case, the courts generally treat waiver as a question of fact, and the defendants simply could not overcome the conclusion that “substantial evidence” supported the trial court’s finding of waiver.