The petition to compel arbitration is DENIED. The Court finds by clear and convincing evidence that the right to arbitrate in this matter has been waived.

In Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, the Court of Appeal referred to the following factors: In determining waiver, 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 [e.g., 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.’ ”
[Approved by the Supreme Court in Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187].

This action was filed on June 14, 2012 and the petition to compel arbitration was not filed until November 26, 2013, more than 17 months later. In the interim period the moving party Defendant substantially invoked “litigation machinery” in many regards. Indeed, on September 5, 2012, Defendant posted jury fees with a demand for a jury trial. This certainly would lead any Plaintiff to believe that he or she had to fully prepare for a full trial. Case management conferences were held on September 5, 2012 and February 16, 2013, and in neither instance did Defendant suggest that it would seek to have the matter transferred to arbitration. At the latter conference the parties agreed to a discovery schedule and thereafter they commenced discovery. The schedule called for Plaintiff to prepare and file a motion to certify the action as a class action on or before September 30, 2013, and discovery proceeded at a pace to accomplish that. A very extensive motion was then prepared. Opposition was due on November 18 but a stipulation was reached extending that deadline to December 6.

The only reasonable conclusion to be reached is that during its preparation of an opposition to class certification the Defendant made a strategy decision that its position would be stronger in an arbitration setting. Defendant fully overlooks the extensive prejudice to the Plaintiff in having to do class certification discovery and prepare an extensive motion for certification, both of which would not play any part in an arbitration proceeding.

The Court will deny the petition without prejudice. In the event that class certification should not occur in the action, the Court will reconsider the possibility that arbitration may be appropriate and not prejudice the Plaintiff.