Filed 10/31/23 Reynolds v. Bacon CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

DON J. REYNOLDS et al.,

Plaintiffs and Respondents,

v.

JAMES V. BACON, SR.,

Defendant and Appellant.

 B320678

 (Los Angeles County

 Super. Ct. No. 20STCV22155)

APPEAL from an order of the Superior Court of Los 

Angeles County, Michael Small, Judge. Affirmed.

Fisher Law Corporation and David S. Fisher for Defendant 

and Appellant.

Scali Rasumssen, Jeffrey W. Erdman, Colleen O’Brien and 

Janae L. Hill for Plaintiffs and Respondents.

______________________
2

This case involves one part of a broader dispute among 

family members over the control of the Allen Gwynn Chevrolet 

dealership (AG Chevy or the dealership), which the litigants’ 

family has owned and operated for generations. Plaintiff Nancy 

L. Reynolds is defendant James V. Bacon, Sr.’s sister. Plaintiff 

Don J. Reynolds is Nancy’s son; plaintiff Stephen W. Bacon is 

James’s son.

1 In a prior opinion, Reynolds v. Bacon (Mar. 22, 

2023, B317784) [nonpub. opn.], we addressed a dispute in probate 

proceedings over control of family trusts that own shares of stock 

in the dealership. Now, we must deal with a motion to compel 

arbitration of lawsuits in which each side accuses the other of 

misconduct in operating the dealership and in corporate 

governance.

Don, Stephen, and Nancy (collectively, respondents) filed 

suit against James in June 2020. One week later, James filed a 

separate suit—which the parties refer to as the “Glendale action” 

after the location of the courthouse in which it was filed—against 

respondents over largely the same issues. The cases were 

consolidated and proceeded through nearly 18 months of 

litigation, at which point James filed a motion to compel 

arbitration of both consolidated cases on the basis of arbitration 

agreements Don and Stephen signed years earlier as part of their 

employment at the dealership.

The trial court denied the motion on the ground that James 

waived his right to compel arbitration by delaying too long, to the 

prejudice of respondents. James now challenges that ruling.

1 We refer to the parties by their first names in order to 

avoid confusion. We intend no disrespect.
3

The analysis of this issue is complicated by the United 

States Supreme Court’s decision in Morgan v. Sundance, Inc.

(2022) 596 U.S. 411 [142 S.Ct. 1708, 212 L.Ed.2d 753] (Morgan)

holding that under the Federal Arbitration Act (FAA; 9 U.S.C. § 1 

et seq.), federal law does not require a party opposing arbitration 

on the basis of waiver to prove it was prejudiced by the other 

party’s delay. (Morgan, supra, at pp. 416-419 [142 S.Ct. at 

pp. 1712–1714].) California law has long required a showing of 

prejudice as a condition of waiver of the right to arbitrate (see, 

e.g., St. Agnes Medical Center v. PacifiCare of California (2003) 

31 Cal.4th 1187, 1203 (St. Agnes)). While our Supreme Court has 

taken up the question of how Morgan applies to cases decided in 

our state courts and under the California Arbitration Act (CAA;

Code Civ. Proc., § 1280 et seq.) in Quach v. California Commerce 

Club, Inc. (2022) 78 Cal.App.5th 470, review granted August 24, 

2022, S275121 (Quach), it has not yet decided the issue.

The trial court, which denied the motion to compel 

arbitration prior to Morgan, made no finding as to whether the 

arbitration agreement was governed by the FAA or CAA, 

presumably because at the time it made no difference in the 

analysis of the motion to compel. We need not decide that 

question either because we hold that even under the stricter St. 

Agnes test, there was substantial evidence to support the trial 

court’s finding that James waived the right to arbitrate.

2 

Accordingly, we affirm.

2 Because we affirm the trial court’s decision on the basis of 

waiver, we do not consider respondents’ additional arguments for 

denying the motion to compel arbitration, namely that 

respondents’ claims were outside the scope of the arbitration 
4

FACTS AND PROCEEDINGS BELOW

All four of the primary litigants in this case have been 

closely involved with the ownership and operation of AG Chevy 

for many years. James has been the president of the dealership 

for decades, and Don and Stephen worked there from the 1990s 

until 2020. Nancy was not a formal employee, but she alleges she 

worked informally for the dealership in exchange for 

compensation. The four control most of the shares in the 

dealership through trusts established at the direction of Nancy 

and James’s parents.

The relationships among the family members grew 

increasingly hostile in the 2010s, as Don and Stephen accused 

James of mismanaging the dealership, and James alleged Don 

and Stephen stole from the dealership by authorizing bonus 

payments for themselves without James’s knowledge. Matters 

came to a head in the spring of 2020, when James fired Don and 

Stephen and repossessed their company cars, along with Nancy’s. 

Don, Stephen, and Nancy convened meetings of the dealership’s 

board of directors in James’s absence at which they passed 

resolutions reversing James’s actions and sought to replace 

James as the dealer operator3 of the dealership. James claims 

agreements, and that Nancy, who did not sign an arbitration 

agreement, was not bound by the agreements Don and Stephen 

signed.

3 The parties do not explain what a dealer operator is, but 

the pleadings suggest that it is the individual recognized by 

General Motors to represent and make decisions on behalf of a 

dealership.
5

the board meetings were illegitimate4 and the resolutions of no 

legal effect.

The two sides filed complaints against one another within 

the space of one week in June 2020. Respondents acted first, 

alleging 16 causes of action against James. These included 

derivative causes of action on behalf of the dealership for breach 

of fiduciary duties as officer and director of the dealership, unjust 

enrichment, and unfair competition. Respondents also asserted 

several direct causes of action. These included claims of

conversion, for repossessing respondents’ cars; intentional 

interference with contractual relations, for firing Don and 

Stephen and ceasing payments to Nancy; and several related 

claims. Respondents also sought declarations affirming that the

three of them, together with James, constitute the board of 

directors, and that their actions at the May and June 2020 board 

meetings were legitimate. They also demanded an accounting of 

dealership finances.

Four days later, James filed a separate complaint,

5 the 

Glendale action, alleging four causes of action against 

4 The sides disagree as to who the members of the board 

were.

5 We grant James’s request for judicial notice, which 

includes the complaint in the Glendale action as well as 

documents related to the probate matter. The trial court took the 

Glendale action into account when denying James’s motion to 

compel arbitration, and it is impossible to understand the court’s 

reasoning without considering the Glendale complaint. The 

probate matter is not central to the issues in this appeal, but the

inclusion of these documents does not prejudice respondents. 

Respondents’ motion to strike related portions of James’s opening 

brief is denied.
6

respondents. The first cause of action was a derivative claim on 

behalf of the dealership in which James alleged that Don and 

Stephen breached their fiduciary duties by taking unauthorized 

bonus payments, and that Nancy breached her fiduciary duties 

by failing to repay $60,000 that the dealership erroneously paid 

her. In the next two causes of action, James sought to remove 

Don, Stephen, and Nancy from the board, and to invalidate their 

actions at the May and June 2020 board meetings. The fourth 

cause of action was for declaratory relief on the same issues 

addressed in the previous causes of action. The trial court later

ordered the two cases, along with the probate proceeding,

consolidated.

Over the succeeding 18 months, the parties conducted 

extensive discovery, which led to frequent disputes. The trial 

court accused both sides of “weaponizing discovery,” stated that 

“this case has become a discovery nightmare for all sides and the 

court,” and ultimately appointed a referee to adjudicate the

parties’ discovery motions. In February 2022, James filed a 

notice of appeal from an order imposing discovery sanctions.

In addition to conducting discovery, James filed two 

demurrers. The first demurrer is missing from the appellate 

record, but it appears to have been based on respondents’ failure 

to notify the dealership or its board in writing before filing a 

derivative suit on the dealership’s behalf, and, as to the causes of 

action for interference with prospective economic advantage, the 

lack of a third party with which James allegedly interfered. The 

trial court sustained the demurrer in part and overruled it in 

part, and granted respondents leave to amend. Respondents filed 

a second amended complaint, and James again demurred on 

similar grounds. This time, respondents gave James, as 
7

representative of the dealership, a copy of the complaint before 

filing it, but he alleged respondents did not give him enough time 

to investigate and respond before filing a derivative suit. James 

also alleged that the causes of action for interference with 

contractual relations and prospective economic advantage failed 

to state a cause of action because James acted on behalf of the 

dealership, and there was no third party with which he could 

have interfered. The trial court overruled the second demurrer. 

James later sought writ relief from the overruling of his second 

demurrer, a petition we denied. (Bacon v. Superior Court

(May 12, 2022, B318944).)

In February 2022, less than a month after the trial court 

overruled the second demurrer, James filed a motion to compel 

arbitration of the two consolidated suits. This was, by all 

accounts, the first time James had mentioned the possibility of 

deciding the dispute in arbitration. The motion was based on 

arbitration agreements Don and Stephen signed nearly 20 years 

earlier, in 2002. The agreements stated that, “The [dealership]

and the undersigned [e]mployee hereby agree that any dispute 

with any party (including the [dealership]’s affiliates, successors, 

predecessors, contractors, employees and agents) that may arise 

from [e]mployee’s employment with the [dealership] or the 

termination of [e]mployee’s employment with the [dealership], 

must be submitted for resolution by mandatory, binding 

arbitration.” Further, “[b]inding [a]rbitration under this 

[a]greement shall be conducted in accordance with” the CAA, and 

“[t]he parties will be permitted to conduct discovery as provided 
8

by California Code of Civil Procedure section 1283.05.”

6 James 

argued that all of Don and Stephen’s claims were subject to 

arbitration under the agreement. Although there was no 

indication that Nancy ever signed an arbitration agreement, 

James argued that she too was required to arbitrate because “the 

[c]laims by and against Nancy are intimately founded in and 

intertwined with the underlying contract obligations of the

[a]rbitration [a]greement.”

Respondents opposed the motion, arguing that James had 

waived any right to arbitration by delaying too long before 

demanding arbitration and by acting inconsistently with the 

right to arbitrate. Respondents also argued that the consolidated 

cases were outside the scope of the arbitration agreement, and 

that Nancy was not bound by the arbitration agreements Don 

and Stephen had signed.

The trial court denied the motion to compel arbitration. 

The court did not issue a statement of decision, but explained its 

reasoning during a hearing. The court found that “[James]’s 

actions in this litigation are inconsistent with the desire to 

arbitrate,” noting that James spent more than a year vigorously 

litigating the case in court before raising the arbitration 

agreement. In addition to the delay in asserting arbitration, 

James “filed his own lawsuit, the Glendale action.” The court 

found that respondents showed they had suffered prejudice from 

6 Under Code of Civil Procedure section 1283.05, “the 

parties . . . shall have the right to take depositions and to obtain 

discovery . . . as if the subject matter . . . were pending before a 

superior court.” (Id., subd. (a).) However, “Depositions for 

discovery shall not be taken unless leave to do so is first granted 

by the arbitrator or arbitrators.” (Id., subd. (e).)
9

James’s delay “by having to, in the crucible of trial court 

litigation, engage in discovery motion after discovery motion.” 

Although “my sense is that the arbitration agreement probably 

does cover the claims here,” including potentially the claims 

involving Nancy, the court found that “the request to arbitrate 

has come too late in the day.”

James timely appealed from the trial court’s order denying 

his motion to compel arbitration.

DISCUSSION

A. Background on Waiver of the Right to Arbitrate

The leading California case on waiver of an arbitration 

agreement is St. Agnes. The case involved the application of the 

FAA, but the court noted that “the federal and state rules 

applicable in this case are very similar” (St. Agnes, supra, 31 

Cal.4th at p. 1194), and courts have subsequently applied St. 

Agnes in cases involving waiver of arbitration under the CAA. 

(See, e.g., Iskanian v. CLS Transportation Los Angeles, LLC

(2014) 59 Cal.4th 348, 374–375.)

The court in St. Agnes recognized that a party may waive 

its contractual right to arbitration, but because of the “strong 

policy favoring arbitration agreements” under both state and 

federal law, “waivers are not to be lightly inferred and the party 

seeking to establish a waiver bears a heavy burden of proof.” (St. 

Agnes, supra, 31 Cal.4th at p. 1195.) The court adopted a sixfactor test that originated in the Tenth Circuit of the United 

States Court of Appeals in an FAA case (see Peterson v. 

Shearson/American Exp., Inc. (10th Cir. 1988) 849 F.2d 464, 

467–468) to determine waiver. The six factors are as follows: 

“ ‘ “(1) whether the party’s actions are inconsistent with the right 

to arbitrate; (2) whether ‘the litigation machinery has been 
10

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.” ’ ” (St. Agnes, supra,

31 Cal.4th at p. 1196, quoting Sobremonte v. Superior Court

(1998) 61 Cal.App.4th 980, 992.)

Although the St. Agnes court cautioned that “no single test 

delineates the nature of the conduct that will constitute a waiver 

of arbitration” (St. Agnes, supra, 31 Cal.4th at p. 1195), the court 

placed special emphasis on the question of prejudice. In cases 

decided under federal law, “ ‘The presence or absence of prejudice 

from the litigation of the dispute is the determinative issue . . . .’

[Citations.]” (Id. at p. 1203, quoting Doers v. Golden Gate Bridge 

etc. Dist. (1979) 23 Cal.3d 180, 188.) The question of “whether or 

not litigation results in prejudice also is critical in waiver 

determinations” applying state law. (St. Agnes, supra, at 

p. 1203.) In reaching its decision, the Supreme Court in St. 

Agnes followed its own longstanding precedent that prejudice is 

required for waiver of the right to arbitrate unless there has been 

“ ‘judicial litigation of the merits of arbitrable issues.’ ” (Keating 

v. Superior Court (1982) 31 Cal.3d 584, 605, quoting Doers, supra,

at p. 188.)

The United States Supreme Court’s opinion in Morgan

eliminated a showing of prejudice as a prerequisite for waiver of 
11

arbitration in cases governed by the FAA and federal law. The 

defendant in Morgan was initially content to litigate the 

plaintiff’s Fair Labor Standards Act complaint in federal court, 

but after eight months filed a motion to compel arbitration under 

the FAA. (Morgan, supra, 596 U.S. at pp. 414–415 [142 S.Ct. at 

p. 1711].) Under the waiver standard applied by the Eighth 

Circuit before the case reached the high court, a party does not 

waive arbitration unless it “knew of the right [to arbitrate]; ‘acted 

inconsistently with that right’; and—critical here—'prejudiced 

the other party by its inconsistent actions.’ ” (Id. at p. 415 [142 

S.Ct. at p. 1712], quoting Erdman Co. v. Phoenix Land & 

Acquisition, LLC (8th Cir. 2011) 650 F.3d 1115, 1117.) Because 

the parties “had not yet begun formal discovery or contested any 

matters ‘going to the merits,’ ” the Eighth Circuit panel held that 

the delay in seeking arbitration had not prejudiced the plaintiff, 

and there had therefore been no waiver. (Morgan, supra, at 

p. 415 [142 S.Ct. at p. 1712].)

The Supreme Court rejected the Eighth Circuit’s rule 

requiring a showing of prejudice. That rule, like the equivalent 

rule in California, had been justified on the basis of a “ ‘policy 

favoring arbitration.’ ” (Morgan, supra, 596 U.S. at p. 415 [142 

S.Ct. at p. 1712].) The court disagreed with the idea that this

policy required creating a special test for waiver of arbitration 

not applicable to any other contractual right. Instead, the 

purpose of the policy is “ ‘to place [arbitration] agreements upon 

the same footing as other contracts.’ [Citation.]” Or, in other 

words, “to make ‘arbitration agreements as enforceable as other 

contracts, but not more so.’ [Citation.]” (Id. at p. 418 [142 S.Ct. 

at p. 1713].) Because “a federal court assessing waiver does not 

generally ask about prejudice” outside the context of arbitration, 
12

there was no justification for doing so when considering 

agreements to arbitrate. (Id. at p. 417 [142 S.Ct. at p. 1713].)

The Supreme Court did not direct the application of a 

specific test upon remand. A court might elect to apply its 

existing waiver inquiry without a prejudice requirement, and ask 

whether the defendant “knowingly relinquish[ed] the right to 

arbitrate by acting inconsistently with that right.” (Morgan, 

supra, 596 U.S. at p. 419 [142 S.Ct. at p. 1714].) Alternatively, a 

court might “determine that a different procedural framework 

(such as forfeiture) is appropriate. [Citation.] Our sole holding 

today is that it may not make up a new procedural rule based on 

the FAA’s ‘policy favoring arbitration.’ ” (Ibid.)

California courts have held that in cases “where the FAA 

applies, whether a party has waived a right to arbitrate is a 

matter of federal, not state, law” (Davis v. Shiekh Shoes, LLC

(2022) 84 Cal.App.5th 956, 963), which suggests Morgan governs 

FAA cases filed in state court. (See Correia v. NB Baker Electric, 

Inc. (2019) 32 Cal.App.5th 602, 619 [“On federal questions, 

intermediate appellate courts in California must follow the 

decisions of the California Supreme Court, unless the United 

States Supreme Court has decided the same question 

differently”].) But Morgan elsewhere expressly states that it does

not address any “role state law might play in resolving when a 

party’s litigation conduct results in the loss of a contractual right 

to arbitrate” in an FAA case (Morgan, supra, 596 U.S. at p. 416

[142 S.Ct. at p. 1712]), suggesting questions may remain about 

its application to FAA cases in state court.

At a minimum, the existing case law requiring a showing of 

prejudice for a waiver of arbitration under the CAA (e.g., 

Iskanian v. CLS Transportation Los Angeles, LLC, supra, 59 
13

Cal.4th at pp. 376–377; Wagner Construction Co. v. Pacific 

Mechanical Corp. (2007) 41 Cal.4th 19, 30; Keating v. Superior 

Court, supra, 31 Cal.3d at p. 605) remains authoritative for now.

B. Application to This Case

The trial court decided the motion to compel arbitration 

before the Supreme Court released its opinion in Morgan and 

thus had no occasion to consider how Morgan affects the issue of 

waiver in this case. Indeed, the trial court did not decide 

whether the arbitration agreement is governed by the FAA or the 

CAA,7 presumably because “the federal and state rules 

applicable” to the question of waiver were, at the time, “very 

similar.” (St. Agnes, supra, 31 Cal.4th at p. 1194.) In their 

appellate briefing, respondents argue that the arbitration 

agreements are governed by the FAA, and that they need not 

prove prejudice. James, for his part, argues for state law and a 

prejudice requirement. We need not decide this issue because it 

makes no difference to the outcome of the case. There was 

sufficient evidence to support the trial court’s finding that James 

waived his right to compel arbitration even under the stricter St. 

Agnes standard that the court applied.

The trial court applied the six-factor St. Agnes test and 

found that James waived any right to compel arbitration. The 

court concluded that James acted “ ‘ “inconsistent[ly] with the 

right to arbitrate” ’ ” (St. Agnes, supra, 31 Cal.4th at p. 1196) by 

7 The agreement under which James sought to compel 

arbitration mentions only the CAA, but this is not determinative 

because “[t]he FAA applies to any ‘contract evidencing a 

transaction involving commerce’ that contains an arbitration 

provision.” (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 

238.)
14

litigating the case extensively in trial court for more than 18 

months. By doing so, James also substantially invoked “ ‘ “ ‘the 

litigation machinery’ ” ’ ” (ibid.) before notifying the opposing side 

of an intent to arbitrate. Although the case was not yet close to 

the trial date, the court found that James “ ‘ “delayed for a long 

period before seeking a stay.” ’ ” (Ibid.) In addition, James did 

not merely “ ‘ “file[ ] a counterclaim without asking for a stay of 

the proceedings” ’ ” (ibid.), but went so far as to file his own 

separate lawsuit against the respondents on claims that he later

contended were subject to the arbitration agreement. Finally, the 

court found that the delay in seeking arbitration “ ‘ “ ‘prejudiced’ 

the opposing party” ’ ” (ibid.) by requiring respondents, as the 

trial court stated, “to . . . engage in discovery motion after 

discovery motion after discovery motion after discovery motion 

and go see a discovery referee, and so on.”

“ ‘ “The question of waiver is generally a question of fact,” ’ ”

and for that reason we generally review the trial court’s decision 

for substantial evidence. (Quach, supra, 78 Cal.App.5th at 

p. 478.) Nevertheless, “ ‘Where the relevant facts are undisputed 

and only one inference may reasonably be drawn from the facts, 

the waiver issue may be reviewed de novo.’ [Citation.]” (Ibid.; 

accord, Davis v. Shiekh Shoes, LLC, supra, 84 Cal.App.5th at 

p. 962.)

James takes issue with several of the trial court’s findings, 

but we focus first on the question of prejudice. We examined this 

issue extensively in our recent opinion in Quach and concluded 

that “a party’s delay in asserting the right to arbitrate is not 

‘unreasonable’ merely because the party could have asserted it at 

an earlier time. Rather, what makes the delay ‘unreasonable’ is 

that it negatively impacts the party resisting arbitration, such as 
15

by requiring that party to expend resources it otherwise would 

have saved by arbitrating the dispute, or by allowing the party 

asserting arbitration to take advantage of judicial processes not 

available in arbitration.’ ” (Quach, supra, 78 Cal.App.5th at 

p. 484.) Under this standard, we held that the defendant’s 13-

month delay before filing its motion to compel arbitration alone 

did not prejudice the plaintiff. (Ibid.)

James argues the trial court’s finding on prejudice was 

inconsistent with Quach. Even if James indeed forced 

respondents “to . . . engage in discovery motion after discovery 

motion after discovery motion after discovery motion and go see a 

discovery referee, and so on,” this did not prejudice respondents 

because under the terms of the arbitration agreement, the parties 

were entitled to the same discovery in arbitration as they could 

have obtained in court. The discovery disputes may have been

unusually fierce, but there is no reason to believe they would 

have been easier in arbitration.

This argument overlooks another form of prejudice, 

however: James took advantage of the trial court by filing two 

demurrers. He also sought to appeal a sanctions order against 

him—relief that would have been unavailable in an arbitration. 

Shortly after the court overruled the second demurrer, making it 

clear that he could not win the case easily in court, James filed 

the motion to compel arbitration. This was nearly identical to the 

conduct the court found prejudicial in Adolph v. Coastal Auto 

Sales, Inc. (2010) 184 Cal.App.4th 1443. The court rejected the 

defendant’s attempt to take advantage of the system in this way, 

reasoning that “ ‘ “[t]he courtroom may not be used as a 

convenient vestibule to the arbitration hall so as to allow a party 

to create his own unique structure combining litigation and 
16

arbitration.” ’ ” (Id. at p. 1452.) Moreover, while the motion to 

compel arbitration was pending James continued to pursue relief 

unavailable to him in arbitration by filing a writ petition seeking 

review of the overruling of his second demurrer. (Bacon v. 

Superior Court, supra, B318944.)

James challenges the trial court’s ruling in several other 

respects, none of which we find persuasive. He argues that the 

trial court erred by treating the Glendale action that he filed 

against respondents as tantamount to a counterclaim. We 

disagree. The Glendale action addresses many of the same issues 

as respondents’ original complaint, including both the propriety 

of respondents’ purported board resolutions and the 

circumstances of the termination of Don and Stephen’s 

employment. James implicitly acknowledged as much when he 

filed a notice of related case in which he affirmed that the cases 

“involve[ ] the same parties and [are] based on the same or 

similar claims,” and that they “arise[ ] from the same or 

substantially identical transactions, incidents, or events 

requiring the determination of the same or substantially identical 

questions of law or fact.” By filing a cross-complaint, a defendant 

implicitly acknowledges that the trial court, rather than 

arbitration, is the proper venue for resolving a dispute. James 

effectively did the same by filing a separate complaint on the 

same subject matter with similar legal issues.

James argues that the Glendale action is different because 

he asserted only derivative claims against respondents, and 

“there is no arbitration agreement that applies to corporate 

governance matters.” But several causes of action in 

respondents’ operative second amended complaint are also 

derivative claims dealing with corporate governance matters, and 
17

James moved to compel arbitration of not only respondents’ 

entire case but also the complaint that James himself filed. We 

reject James’s 11th hour attempt on appeal to reframe his 

argument about what is and what is not allegedly arbitrable after 

having previously taken the position the entirety of the two 

consolidated cases—including all corporate governance-related 

causes of action—was arbitrable.

James also argues that the trial court erred by overlooking 

several factors favorable to James: that there has been no

determination on the merits of the case; that the timing of his 

motion to compel was reasonable in light of the delays associated 

with the COVID-19 pandemic; and that he did not act 

inconsistently with the right to arbitrate. We disagree with the 

last point—James’s extended participation in litigation in trial 

court for nearly 18 months, including filing his own related 

complaint in court that he later claimed was subject to 

arbitration and seeking appellate intervention in the court

proceedings, was indeed inconsistent with asserting his right to 

arbitrate. James may not be wrong about the other factors, but 

“no single test delineates the nature of the conduct that will 

constitute a waiver of arbitration.” (St. Agnes, supra, 31 Cal.4th 

at p. 1195.) The trial court did not err in determining that the 

factors against James’s position outweighed those in his favor.
18

DISPOSITION

The trial court’s order denying appellant’s motion to compel 

arbitration is affirmed. Respondents are awarded their costs on 

appeal.

NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.