Judicial Expertise And Judicial Economy Weigh In Favor Of Letting The Trial Court Make The Call On This Waiver Issue
In a 3-0 opinion penned by Presiding Justice Turner, the Court of Appeal holds, “[t]he trial court correctly ruled it, rather than an arbitrator, should decide the merits of the waiver by litigation conduct defense to arbitration asserted by plaintiffs.” Hong v. CJ CGV America Holdings, Inc., B246945 (2nd Dist. Div. 5 Dec. 18, 2013) (partially certified for publication with exception of part III D concerning substantial evidence). In so ruling, the Court of Appeal was persuaded by four federal appellate court decisions holding issues of waiver by litigation conduct are properly decided by a court, not an arbitrator.
Waiver of the right to arbitrate may occur for a variety of reasons. However, here, judicial economy and efficiency seemed to weigh heavily in favor of letting the judge decide the issue of waiver, when waiver results from litigation conduct. In that circumstance, the parties are already in front of the judge, not the arbitrator, and the judge has observed the conduct of the parties.
I see that Ben Scheibe, a former law school classmate of mine at UCLA, represented the prevailing Plaintiffs/Respondents. Congratulations, Ben!
Comments