Defendant James Welch?s (?Welch?) Petition for an Order to Compel Binding Arbitration is DENIED.
Welch has carried his initial burden of establishing a written agreement to arbitrate and that plaintiff?s claims are within the scope of the agreement for binding arbitration.? (Code Civ. Proc., ? 1281.2; Mansouri v. Sup. Ct. (Fleur Du Lac Estates Ass?n) (2010) 181 Cal.App.4th 633, 640-641; Welch Decl., Ex. A.)? Plaintiff Masimo Corporation, however, has met its shifted burden to raise a defense to enforcement.? (Code Civ. Proc., ? 1281.2, subds. (a), (b).)
A party by conduct and actions can waive their right to arbitration. (See Code Civ. Proc., ? 1281.2(a).)? ?In determining waiver of the right to arbitration, a court can consider (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, such as 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.?? (Saint Agnes Med. Ctr. v. Pacificare of Calif. (2003) 31 Cal.4th 1187, 1196, quoting Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, 992.)
Here, Welch?s actions are inconsistent with the right to arbitrate.? Welch has filed demurrers and a motion to strike.? He also participated in discovery.? Welch has noticed depositions, served discovery requests, and responded to discovery.? (See Holcomb Decl., ? 3; Exs. 1-11.) Additionally, Welch removed this action to federal court.? (Holcomb Decl., ??7; Ex. 14.)
Also, the litigation machinery had been substantially invoked before Welch notified plaintiff of his intent to arbitrate.? Welch filed his petition to compel arbitration just 2.5 weeks before the previously set trial date of February 14, 2017.? Welch filed his petition to compel arbitration: (i) after 3 years and 8 months passed since the filing of the lawsuit; (ii) after 3 years and 3 months passed since plaintiff produced the arbitration agreement in discovery (see Holcomb Decl., ??2); and (iii) after at least one month had passed since Welch?s current counsel discovered the agreement.? Although Welch argues that he did not become aware of the arbitration agreement until his current counsel brought it to his attention in 2016, case law holds that he had knowledge of his right to arbitrate from the moment he signed the agreement.? (See Zamora v. Lehman (2010) 186 Cal.App.4th 1, 18 [?[F]ailure to remember that [a party?s] employment agreements contained an arbitration provision does not preclude a finding of waiver?.courts do not take a defendant?s forgetfulness into account.?].)
Finally, Welch?s delay has prejudiced plaintiff by depriving plaintiff of the benefits of arbitration.? The parties have engaged in over three years of litigation, including discovery disputes, attacks on the pleadings, and a removal to federal court.? (See Lewis v. Fletcher Jones Motor Cars, Inc.,205 Cal.App.4th at 452 [prejudice may be found where the party demonstrates it ?has been substantially deprived of the advantages of arbitration as a ?speedy and relatively inexpensive ? means of dispute resolution.?]; Burton v. Cruise (2010) 190 Cal.App.4th 939, 943 [?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?].)
Plaintiff?s request for sanctions pursuant to Code Civ. Proc. ?128.5 is DENIED.? Although plaintiff met its initial burden to tender some evidence showing potentially sanctionable conduct (San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1319.); Holcomb Decl., Ex.16, 15:6-20; 25:14-26:19), Welch? carried his shifted burden to refute plaintiff?s prima facie case.? (Welch Decl., ?? 4, 6-8.)
Moving party to give notice.