2014-00162622-CU-PT

Amy Potter vs. Western Dental Servics Inc

Nature of Proceeding:   Petition to Compel Arbitration

Filed By:  Davis, Whitney A.

Petitioner Amy Potter’s (“Potter”) motion to compel arbitration is ruled upon as follows.

This is an action for dental malpractice against Western Dental Services, Inc.
(“Western”).  On April 10, 2003, the parties entered into a written arbitration agreement
(“Agreement”).  On March 30, 2004, Potter made a demand for arbitration.  On May
24, 2004, Western’s counsel agreed to arbitrate.  According to Potter, instead of
selecting an arbitrator pursuant to the terms of the Agreement, Western requested the
exchange of documents evidencing Potter’s damages.  The parties thereafter engaged
in informal discovery regarding Potter’s claims.  After completion of informal discovery,
on April 12, 2013, Potter sent a letter to Western’s counsel seeking a list of proposed
arbitrators.  Western did not respond.  Potter thereafter sent two more letters.  On May
22, 2013, Western responded that the Potter had failed to bring the matter to trial or
arbitration within five years, and to prosecute her case diligently.  Western requested
that Potter voluntarily dismiss the matter.

In opposition to the motion, Western argues Potter waived her right to arbitrate as a
result of her failure to assert and prosecute her demand with reasonable diligence.
Specifically, Western contends that Potter was not diligent because she ceased
prosecuting the claim for eighteen months following her supplemental production of
documents in September 8, 2011.  Western further argues that it did not agree to
waive any of the provisions of the arbitration agreement and that Potter failed to
comply with the provisions that she select an arbitrator within 45 days of her notice and
that she act with reasonable diligence.

A trial court shall refuse to compel arbitration if it determines that the right to compel
arbitration has been waived by the petitioner.  (CCP §1281.2(d); (Engalla v.
Permanente Medical Group (1997) 15 Cal.4th 951, 982.)  The question of waiver is
one of fact. (Id. at 983.)  In order to show waiver, delay must be substantial,
unreasonable and in spite of the moving party’s own diligence.  (Id. at 984.)

In reply, Potter contends that she timely demanded arbitration and that Western
waived or is equitably estopped from maintaining its argument because it agreed to
arbitrate and conduct informal discovery.  Potter further argues that Western
hampered her ability to pursue her claims.  Specifically, Western did not produce
Potter’s file until February 2011, despite her January 2009 request for production of
documents.  Additionally, in 2007, more than 700 Western office were sold for more
than $400 million by trusts and entities controlled by the heirs of Bob Beauchamp.  In
2009, Potter’s counsel was retained to represent the Estate of Betty Beauchamp, an            omitted heiress to the Bob Beauchamp Estate.  Pursuant to the discovery in the
Beauchamp matter, Potter’s attorney learned that her claim was not listed as a liability
of the “new” Western or “old” Western.  The Beauchamp matter was concluded in
February 2012.  Potter’s counsel claims that she spent many months reviewing the
Beauchamp/Western documents and indices, and performed legal research on issues
such as whether there could be a nationwide or state consumer class action in which
Potter could stand as a representative, whether the class action could be arbitrated,
and whether additional defendants needed to be added.

Given the above, the Court is not convinced that Potter waived her right to compel
arbitration.  Nonetheless, the Court notes that the arbitrator has the discretion to
dismiss a proceeding due to unreasonable delay and may apply the concepts and
limits requiring mandatory dismissal of a superior court action not brought to trial within
five years.  (Burgess v. Kaiser Foundation Hospitals (1993) 16 Cal. App. 4th 1077,
1081.)

The Court declines to formally rule on Western’s objections to evidence as the Court
only relied on admissible evidence.

Accordingly, the motion is GRANTED.  The action is stayed pending arbitration on the
matter.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.