Filed 8/23/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

MARIA ELENA SPRUNK et al.,

Plaintiffs and Respondents,

v.

PRISMA LLC,

Defendant and Appellant.

 B268755

 (Los Angeles County

 Super. Ct. No. BC471171)

APPEAL from an order of the Superior Court of Los 

Angeles County. Jane L. Johnson, Judge. Affirmed.

Markun Zusman Freniere & Compton and Daria Dub 

Carlson for Defendant and Appellant.

Knapp, Petersen & Clarke, André E. Jardini, Gwen 

Freeman and K. L. Myles for Plaintiff and Respondent.

___________________________________
2

The primary issue presented in this appeal is whether a 

defendant in a putative class action can waive its right to compel

arbitration against absent class members by deciding not to seek 

arbitration against the named plaintiff. In deciding that issue, 

we must also consider the scope of the “futility” rule, which 

excuses a party in some circumstances from seeking to enforce an 

arbitration right when the state of the law at the time would 

make the effort futile.

We agree with the trial court that, under the circumstances 

of this case, defendant and appellant Prisma LLC, doing business 

as Plan B Club (Plan B) waived its right to seek arbitration by 

filing and then withdrawing a motion to compel arbitration 

against the named plaintiff, Maria Elena Sprunk, and then 

waiting until after a class had been certified to seek arbitration 

against class members. We therefore affirm the trial court’s 

denial of Plan B’s motion to compel arbitration.

BACKGROUND

Sprunk is the named plaintiff in a wage and hour class 

action that the trial court certified on April 24, 2015. Plan B 

owns and operates a bar and restaurant in Los Angeles in which 

exotic (i.e., bikini-clad) dancers perform. Sprunk and the other 

class members are dancers who performed at Plan B.

Sprunk alleges that the dancers were misclassified as 

independent contractors rather than employees, and that they 

were consequently denied various benefits that the law requires 

for employees, such as minimum wages, meal periods, and 

reimbursement of expenses. Sprunk also alleges that Plan B 

misappropriated tips.
3

Sprunk and all other class members signed contracts 

containing an arbitration clause. There were two versions of the 

arbitration clause. One version, which was in effect prior to July 

2011, did not specifically address class arbitration.1 The other 

version, which Plan B claimed was in effect beginning in July 

2011, contained an express waiver.2 Sprunk signed the first 

version of the agreement.

1. Proceedings in the Trial Court

Sprunk filed her complaint on October 7, 2011. On 

November 28, 2011, Plan B sent an arbitration demand. Plan B’s 

demand letter stated that “new case law has issued which 

permits demanding and requiring arbitration of individual claims 

despite class allegations,” citing AT&T Mobility LLC v. 

Concepcion (2011) 563 U.S. 333 (Concepcion) and Stolt-Nielsen 

1 This category of arbitration agreement stated in its 

entirety: “Arbitration: Any dispute, statutory, contractual or 

tort, arising out of this Contract or Entertainer’s performances, 

the relationship between the parties, or any other dispute 

between the parties, shall be decided by binding Arbitration, 

pursuant to the Federal Arbitration Act, and shall be before a 

neutral arbitrator agreed upon by the parties who shall be 

permitted to award any relief available in a Court. Any award 

may be entered in any court having jurisdiction.”

2 That category of arbitration agreement was identical to 

the prior version, but added language stating: “There is no right 

to class arbitration, and Entertainer must arbitrate individually. 

The Arbitrator shall have no power to consolidate claims of 

others or proceed as a class or representative action.” It also 

added the sentence, “Employer shall pay any costs of arbitration 

required by applicable law.”
4

S. A. v. AnimalFeeds Int’l Corp. (2010) 559 U.S. 662 (StoltNielsen).

The parties filed a joint initial status report on 

December 30, 2011, in which Plan B stated that it “wishes to file 

a motion to compel arbitration at the earliest available 

opportunity.” Sprunk stated that she intended to oppose the 

arbitration motion, but agreed that Plan B’s “contemplated 

motion to compel arbitration is an issue that should be resolved 

before discovery on the merits, or discovery with respect to class 

certification issues, is commenced.”

On January 25, 2012, Plan B filed a “Petition to Compel 

Individual Arbitration and Stay Superior Court Proceedings.” 

The petition sought arbitration of Sprunk’s individual claims 

only.

Sprunk filed an opposition to the petition on February 15, 

2012, in which she argued, among other things, that the 

“extremely broad” arbitration clause that Sprunk signed 

permitted arbitration of class claims. For that reason, Sprunk 

claimed that the court must decide “whether or not to order 

arbitration of all individual and class claims,” or alternatively 

should deny Plan B’s motion on the ground that it sought to limit 

the arbitration only to individual claims. Sprunk also argued 

that, to the extent the arbitration agreement is “construed as a 

class action waiver,” Plan B could not compel arbitration because 

such a waiver would interfere with the right of employees to 

engage in collective action under federal law. In support of that 

argument Sprunk cited a January 3, 2012 decision by the 

National Labor Relations Board (Board). (D. R. Horton, Inc.

(2012) 357 NLRB 2277 (Horton I), revd. in part sub nom. D.R. 

Horton, Inc. v. N.L.R.B. (5th Cir. 2013) 737 F.3d 344 (Horton II).)
5

On September 6, 2012, Plan B filed a notice withdrawing 

its motion for arbitration. Plan B filed an answer the same day. 

The answer included several affirmative defenses based upon the 

arbitration agreements. Plan B also filed a cross-complaint, 

which it amended on November 14, 2002.

The cross-complaint named Sprunk and 500 fictional “Roe” 

cross-defendants, whom Plan B described as “professional 

entertainers who performed under contract as exotic dancers” at 

Plan B’s premises during the class period. Plan B alleged that it 

was entitled to a “setoff” in the form of the dance fees that the 

cross-defendants earned in the event that the cross-defendants 

were adjudicated to be employees. Plan B based the allegation on 

a provision in the cross-defendants’ contracts stating that “[i]f 

Plan B were an ‘employer’ all dance fees would be its sole 

property,” and that Plan B would pay the cross-defendants only 

“the legal minimum wage and any other benefits required by 

law.”

On December 19, 2012, Sprunk filed a demurrer and a 

motion to strike in response to the cross-complaint. Before those 

motions could be heard, Plan B dismissed the cross-complaint 

without prejudice.

The parties proceeded with discovery. Sprunk served 

interrogatories and deposed four Plan B witnesses. Plan B 

served a document request on Sprunk and took her deposition. 

Plan B responded to Sprunk’s interrogatories on February 20, 

2013, again identifying the arbitration agreements as an 

affirmative defense.

Sprunk filed her class certification motion on 

September 19, 2014. In opposing class certification, Plan B 

argued that a class action was not superior to other forms of 
6

litigation because the class members had signed arbitration 

agreements. Citing several federal district court decisions, Plan 

B asserted that it “could not have previously moved for individual 

arbitration of the claims of the unnamed class members” because 

the putative class members were not parties to the action prior to 

the time the court certified the class. In her reply, Sprunk 

argued that Plan B had waived the right to arbitrate by actively 

litigating the case.

The trial court granted class certification in a written order 

filed on April 24, 2015. The court rejected Plan B’s arbitration 

argument. The court found that Plan B’s delay in seeking 

arbitration—during which it took advantage of “the court’s 

processes”—meant that Plan B had “waived its right to arbitrate 

at least as to Plaintiff’s claims.”

Following the court’s ruling, the parties filed a joint status 

conference report in which Plan B stated that it intended to file a 

motion to compel individual arbitration “of the claims of Plaintiff 

and the Class Members.” The court set a date for the motion to 

compel arbitration.

2. Plan B’s Motion to Compel Arbitration Against Class 

Members

On August 12, 2015, Plan B filed two separate motions to 

compel arbitration directed to the class members who signed the 

two different versions of the arbitration agreement. In the 

motions Plan B again argued that it had not waived the right to 

compel arbitration against the unnamed class members because 

they were not parties until a class had been certified.

Plan B also argued that withdrawing its original motion to 

compel arbitration against Sprunk did not cause an unreasonable 

delay. Plan B claimed that it withdrew that motion because it 
7

feared that, under the state of the law at the time, the court 

might order classwide arbitration, which Plan B did not want. 

Plan B argued that it “had no certainty” that the court would 

order only individual arbitration because the law at the time 

made class arbitration possible even if an arbitration agreement 

contained a class action waiver. In particular, Plan B relied on 

the holding in Gentry v. Superior Court (2007) 42 Cal.4th 443 

(Gentry) that a class arbitration waiver in an employment 

arbitration agreement is invalid if class arbitration would provide 

a significantly more effective means of vindicating the 

unwaivable rights of employees than individual arbitration. (42 

Cal.4th at p. 450.) Plan B claimed that Gentry’s status was 

uncertain until our Supreme Court decided Iskanian v. CLS 

Transportation Los Angeles LLC (2014) 59 Cal.4th 348 

(Iskanian).3

Sprunk opposed the motions on several grounds, including: 

(1) Plan B had waived its right to arbitrate; (2) the arbitration 

agreements were unconscionable; and (3) Plan B failed to provide 

sufficient evidence that the class members actually signed 

arbitration agreements.

The trial court heard the motions on October 15, 2015. The 

court rejected the argument that the arbitration agreements were 

3 In Iskanian, the court held that Concepcion abrogated the 

basis for the holding in Gentry. In Concepcion, the United States 

Supreme Court held that section 2 of the Federal Arbitration Act 

(the FAA, 9 U.S.C. § 1 et seq.) preempted “California’s rule 

classifying most collective-arbitration waivers in consumer 

contracts as unconscionable,” overruling our Supreme Court’s 

decision in Discover Bank v. Superior Court (2005) 36 Cal.4th 148 

(Discover Bank). (Concepcion, supra, 563 U.S. at pp. 340, 352.) 

We discuss the chronology of these decisions in more detail below.
8

unconscionable. However, the court ruled that Plan B had 

waived its right to compel arbitration based upon its delay in 

seeking arbitration of Sprunk’s individual claims. The court 

concluded that the delay was both unreasonable and prejudicial.

The trial court considered and rejected Plan B’s 

justifications for its delay in moving to compel arbitration. The 

court agreed with Plan B that, prior to certification, Plan B could 

not have compelled absent class members to arbitrate. However, 

the court concluded that Plan B had unreasonably delayed in 

seeking arbitration of Sprunk’s claims. The court noted that Plan 

B “could have gone through with [its] motion with Ms. Sprunk” 

but instead “made a strategic decision” that it “didn’t want to 

take the risk” of classwide arbitration. Even though Sprunk 

herself had signed only one form of the arbitration agreement, 

Plan B could have brought a motion directed to that version and 

“ended the case” if the trial court had ruled in its favor, without 

the need to brief and decide the class certification motion.

The trial court rejected Plan B’s argument that the state of 

the law at the time it moved to compel arbitration against 

Sprunk would have made the motion “futile.” The court observed 

that “[t]he law wasn’t clearly against” Plan B, and concluded that 

Plan B simply decided it “didn’t want to take the risk” of 

classwide arbitration. The court also found that Plan B delayed 

unreasonably in moving to compel arbitration even after the 

decision in Iskanian, which was filed in June 2014. (Iskanian, 

supra, 59 Cal.4th 348.)

The court found that the plaintiffs would be prejudiced by 

the four-year delay in adjudicating their claims if the court were 

to now order arbitration. The court also expressed concern that 

the plaintiffs might be reluctant to “come forward” to arbitrate 
9

their claims individually due to “[t]he kind of business that they 

are in.”

The court denied Plan B’s motion in a written order filed on 

November 6, 2015.

DISCUSSION

1. Plan B Provided Sufficient Evidence of the 

Arbitration Agreements

Sprunk initially argues that it is unnecessary to consider 

the trial court’s waiver finding because Plan B did not provide 

adequate evidence to show that individual class members had 

actually signed arbitration agreements. Plan B supported its 

motions to compel arbitration with examples of the two different 

versions of the arbitration provision attached as exhibits to the 

declaration of Plan B’s general manager, Frank Grundel. The 

pre-July 2011 version was signed by Sprunk; the copy of the later 

version was unsigned. On reply, Grundel submitted a 

supplemental declaration stating that “[e]ach and every Class 

Member signed one or more forms of the Entertainer Contracts 

attached to my original Declaration.”

Sprunk argues that this evidence was insufficient to 

establish that the class members were actually parties to an 

arbitration agreement. Sprunk claims that “nothing excuses the 

failure to attach signed copies to prove the right to arbitrate as to 

each class member.”

We reject the argument. Under the California Rules of 

Court, rule 3.1330, a party petitioning to compel arbitration must 

state “the provisions of the written agreement and the paragraph 

that provides for arbitration.” “The provisions must be stated 

verbatim or a copy must be physically or electronically attached 

to the petition and incorporated by reference.” (Ibid., italics 
10

added.) Thus, under this rule, unless there is a dispute over 

authenticity, it is sufficient for a party moving to compel 

arbitration to recite the terms of the governing provision. (See 

Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 

215, 219 (Condee) [holding that rule 371, the predecessor to rule 

3.1330, “does not require the petitioner to introduce the 

agreement into evidence or provide the court with anything more 

than a copy or recitation of its terms”].) The Grundel 

declarations met this requirement by providing the two different 

versions of the arbitration provision and stating that all class 

members signed at least one of those versions.

Sprunk’s reliance on Ruiz v. Moss Bros. Auto Group, Inc. 

(2014) 232 Cal.App.4th 836 (Ruiz) is misplaced. In that case, 

there was a dispute about whether the plaintiff had actually 

signed an employment agreement. The defendant provided 

conclusory declarations that the plaintiff, Ruiz, had 

“electronically signed” the agreement. (Id. at p. 840.) Ruiz 

testified that he could not recall signing an arbitration provision. 

(Ibid.) The appellate court found sufficient evidence supporting 

the trial court’s finding in favor of the plaintiff in the 

authentication dispute. The court distinguished Condee, supra, 

88 Cal.App.4th 215, explaining that the court in that case held 

“that a petitioner is not required to authenticate an opposing 

party’s signature on an arbitration agreement as a preliminary 

matter in moving for arbitration or in the event that authenticity 

of the signature is not challenged.” (Ruiz, 232 Cal.App.4th at 

p. 846.)

Here, Sprunk did not challenge the truth of Plan B’s claim 

that each class member signed an arbitration provision; she 

merely contested the sufficiency of Plan B’s preliminary 
11

evidentiary showing. Moreover, here, unlike in Ruiz, the trial 

court implicitly rejected Sprunk’s authentication argument by 

considering the merits of Plan B’s motion. The trial court’s ruling 

was supported by sufficient evidence.

Sprunk also argues that the trial court should not have 

considered Grundel’s statement that each class member signed 

one or the other versions of the arbitration agreement because 

the statement was submitted for the first time in his reply 

declaration. Sprunk objected to that declaration below on the 

ground that it included new evidence, and the trial court 

overruled the objection. The declaration responded to argument 

in Sprunk’s opposition concerning the alleged lack of evidence 

“that any unnamed class member signed an arbitration 

agreement.” The decision to consider the declaration was within 

the court’s discretion. (Alliant Ins. Services, Inc. v. Gaddy (2008) 

159 Cal.App.4th 1292, 1307–1308.)

We therefore proceed to consider Plan B’s challenges to the 

trial court’s finding that Plan B waived its arbitration right.

2. Sufficient Evidence Supports the Trial Court’s 

Waiver Finding

A. Standard of review

Whether a party has waived the right to compel arbitration 

is generally a question of fact. A trial court’s finding of waiver is 

therefore reviewed under the substantial evidence standard 

unless “ ‘the facts are undisputed and only one inference may 

reasonably be drawn,’ ” in which case “ ‘the reviewing court is not 

bound by the trial court’s ruling.’ ” (St. Agnes Medical Center v. 

PacifiCare of California (2003) 31 Cal.4th 1187, 1196 (St. Agnes), 

quoting Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 319.)
12

While the parties here do not disagree over the relevant 

litigation events, they have very different positions concerning 

the inferences that should be drawn from those events. In 

particular, they disagree about the reasons for Plan B’s delay in 

seeking to compel arbitration and whether Plan B’s conduct was 

inconsistent with an intent to arbitrate. Because the trial court 

could reasonably draw different inferences from the undisputed 

events, we apply the substantial evidence standard in reviewing 

the court’s findings on these issues. (Bower v. Inter-Con Security 

Systems, Inc. (2014) 232 Cal.App.4th 1035, 1043 (Bower) 

[substantial evidence standard applied where “different 

inferences may be drawn depending upon the weight to be 

afforded to certain facts”].) Under that standard, the trial court’s 

finding of waiver is binding on this court if “supported by 

sufficient evidence.” (Engalla v. Permanente Medical Group, Inc. 

(1997) 15 Cal.4th 951, 983 (Engalla).)

Plan B also raises a legal issue concerning the status of 

absent class members. Plan B argues that the trial court erred in 

considering Plan B’s delay in moving to compel arbitration before 

the court decided class certification because the unnamed class 

members were not parties until a class was certified. Because 

this argument raises an issue of law concerning the time period 

that the trial court could properly consider in analyzing waiver, 

we review it de novo. (Sky Sports, Inc. v. Superior Court (2011) 

201 Cal.App.4th 1363, 1367 (Sky Sports) [applying the de novo 

standard to the issue whether a defendant “waived its right to 

compel arbitration because it did not bring the motion before 

certification of a class that included parties to the arbitration 

agreement”].)
13

In reviewing the trial court’s ruling, we also keep in mind 

the “strong policy favoring arbitration agreements” found in both 

the FAA and state law. (St. Agnes, supra, 31 Cal.4th at p. 1195.) 

In light of that policy, “waivers are not to be lightly inferred and 

the party seeking to establish a waiver bears a heavy burden of 

proof.” (Ibid.)

B. Factors relevant to waiver

Code of Civil Procedure section 1281.2 provides that, upon 

petition by a party to an arbitration agreement, a court shall 

order arbitration “if it determines that an agreement exists,” 

unless it determines that “(a) [t]he right to compel arbitration 

has been waived by the petitioner; or [¶] (b) [g]rounds exist for 

the revocation of the agreement.” Although “no single test 

delineates the nature of the conduct that will constitute a waiver 

of arbitration,” our Supreme Court has identified various factors 

that are “relevant and properly considered in assessing waiver 

claims.” (St. Agnes, supra, 31 Cal.4th at pp. 1195–1196.) Those 

factors, first articulated in Sobremonte v. Superior Court (1998) 

61 Cal.App.4th 980, 992 (Sobremonte), are: “ ‘ “(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, 
14

misled, or prejudiced’ the opposing party.” ’ ” (St. Agnes, 31 

Cal.4th at p. 1196; Sobremonte, 61 Cal.App.4th at p. 992.)

The trial court repeatedly returned to the theme of Plan B’s 

delay in discussing the specific St. Agnes factors. In doing so, the 

trial court correctly recognized that the issue of delay is 

dispositive here. Therefore, before analyzing the specific St. 

Agnes factors, we first consider the circumstances of, and Plan B’s 

claimed justification for, the nearly four-year delay between the 

filing of this action and Plan B’s motions to compel arbitration.

C. Substantial evidence supports the trial court’s 

finding that Plan B delayed filing its motions to 

compel arbitration so that it could obtain a 

strategic advantage

The trial court found that Plan B could have asserted its 

right to arbitrate against Sprunk, but made a strategic decision 

to delay doing so. Such conduct fits comfortably within the legal 

concept of waiver. As the court explained in St. Agnes, “While 

‘waiver’ generally denotes the voluntary relinquishment of a 

known right, it can also refer to the loss of a right as a result of a 

party’s failure to perform an act it is required to perform, 

regardless of the party’s intent to relinquish the right.” (St. 

Agnes, supra, 31 Cal.4th at p. 1195, fn. 4.) In the context of an 

arbitration right, waiver can result from “ ‘ “[unreasonable delay] 

in undertaking the procedure.” ’ ” (Id. at p. 1196; see Engalla, 

supra, 15 Cal.4th at p. 984 [“the evidence of Kaiser’s course of 

delay, . . . which was arguably unreasonable or undertaken in 

bad faith, may provide sufficient grounds for a trier of fact to 

conclude that Kaiser has in fact waived its arbitration 

agreement”].)
15

Plan B does not dispute that unreasonable delay can cause 

waiver, but argues that it did not delay at all in seeking 

arbitration against the persons who were actually the subject of 

its motions. Plan B claims that it could not have moved for, or 

even demanded, arbitration from the unnamed class members 

until a class had been certified. Plan B therefore “assumes that 

had it brought motions to compel individual arbitration of the 

claims of the unnamed Class Members prior to certification, the 

Court would have denied the motions on the basis that the Court 

had no jurisdiction over them because they were not yet, and 

might never be if the class was not certified, parties to the 

litigation.”

Along with Plan B, we may assume (without deciding) that 

a motion to compel arbitration against unnamed class members 

would have been premature until a class was certified. However, 

that is not the end of our inquiry. Sprunk was a party, and Plan 

B could have moved to compel arbitration against her. Indeed, it 

did so, and then decided to withdraw the motion. Thus, the 

critical issue is whether the trial court could consider Plan B’s 

delay in moving to compel arbitration against Sprunk in 

determining whether Plan B waived its right to arbitrate against 

the unnamed class members, who ultimately did become parties 

and for whom Sprunk serves as the class representative. We 

conclude that, in the circumstances of this case, the trial court 

could properly do so.

i. The trial court properly considered Plan 

B’s delay in moving to compel arbitration 

against Sprunk

In considering the significance of Plan B’s conduct, the trial 

court was not required to ignore the practical realities of the 
16

litigation. Sprunk was a signatory to an arbitration agreement. 

Thus, as the trial court recognized, Plan B had the procedural 

mechanism available to compel arbitration in a manner that, if 

successful, would as a practical matter have resolved the judicial 

proceedings with respect to the class.

Had Plan B forced Sprunk to individual arbitration, it 

likely would have ended the judicial action. While a different 

named plaintiff could conceivably have filed a new action, all 

class members were subject to an arbitration provision. If 

Sprunk had been forced to arbitrate, given the court’s ruling it is 

unlikely that any other plaintiff would attempt to litigate in 

court.4 And, were someone to make the attempt, it is even less 

likely that the result would be different in light of the principle of 

stare decisis.

Plan B correctly points out that unnamed class members 

would not technically have been bound by the trial court’s rulings 

prior to certification. However, this fact does not affect the 

waiver analysis. By moving to compel arbitration against 

Sprunk, Plan B could have effectively settled the question 

whether the claims in this action should be adjudicated in a court 

4 The difference between the two forms of the arbitration 

provision that the class members signed is immaterial to this 

analysis. The difference concerned whether the provision 

contained an explicit class arbitration waiver. The version that 

Sprunk signed did not include such an explicit waiver. Thus, if 

Plan B had succeeded in compelling individual arbitration 

against Sprunk, any potential class action plaintiff who had 

signed the other version of the arbitration agreement would have 

had an even weaker case to avoid individual arbitration.
17

or through arbitration, at least with respect to the form of the 

agreement that Sprunk signed.5

Instead, as the trial court observed, there is good reason to 

suspect that Plan B made a strategic decision to delay its motion 

to compel arbitration to give itself another opportunity to win the 

case by defeating a class. Plan B’s stated reason for withdrawing 

its motion to compel arbitration against Sprunk was concern 

that, based upon the current state of the law, Plan B might be 

compelled to participate in class arbitration. Yet Plan B waited 

over a year to file its motions to compel arbitration after the 

Supreme Court decision that Plan B concedes settled the law in 

California on class arbitration waivers. Our Supreme Court 

issued its decision in Iskanian on June 23, 2014. Plan B did not 

5 This proviso is necessary because, as the trial court 

recognized, there is one scenario in which Plan B might have had 

a second chance to seek arbitration of some claims following class 

certification. If the trial court had denied a motion to arbitrate 

against Sprunk individually based upon the absence of an 

express class arbitration waiver in her agreement, Plan B might 

later have been able to file another motion to arbitrate against 

class members who had signed the other version of the 

agreement once the class had been certified. But that 

hypothetical possibility does not change the fact that a motion to 

arbitrate against Sprunk would likely have determined whether 

the claims at issue in this case should be arbitrated, probably for 

all class members, but at least for those class members who 

signed the same version of the agreement as Sprunk. Moreover, 

Plan B does not claim that it declined to seek arbitration against 

Sprunk because it only wanted to arbitrate against persons who 

signed the other version of the agreement. It could not credibly 

do so, as it ultimately filed motions below seeking arbitration 

against class members under both versions of the agreement.
18

file its motions to compel arbitration until August 12, 2015, over 

a year after that decision and after the trial court had issued its 

order certifying the class on April 24, 2015.

Based upon this sequence of events, the trial court 

explained its conclusion: “So, I think, the defendants rolled the 

dice again thinking, maybe, the class wouldn’t be certified. I 

don’t know. But that was quite a delay between the time 

Iskanian came down and the time defendants said we wanted to 

file our motion. So, I think, the actions were inconsistent with 

the right to arbitrate.”

An attempt to gain a strategic advantage through litigation 

in court before seeking to compel arbitration is a paradigm of 

conduct that is inconsistent with the right to arbitrate. For 

example, Bower was a putative wage and hour class action in 

which the defendant engaged in discovery and attempted to settle 

the case on a classwide basis when the class was a modest size. 

(Bower, supra, 232 Cal.App.4th at pp. 1038–1040.) When the 

plaintiff sought an amendment that would have expanded the 

class, the defendant (Inter-Con) moved to compel arbitration. 

The trial court found waiver, and the appellate court affirmed, 

concluding that Inter-Con’s decision to delay seeking arbitration 

“appears to have been tactical.” (Id. at pp. 1045, 1049). Based 

upon Inter-Con’s litigation conduct, “[o]ne can infer that InterCon chose to conduct discovery, delay arbitration, and seek a 

classwide settlement because it saw an advantage in pursuing 

that course of action in the judicial forum.” (Id. at p. 1049.) Such 

conduct provided substantial evidence to support the finding that 

“Inter-Con’s actions were inconsistent with a right to arbitrate.” 

(Id. at p. 1045.)
19

The court in Oregel v. PacPizza, LLC (2015) 237 

Cal.App.4th 342 (Oregel) also relied upon a defendant’s strategic 

decision in finding waiver. The defendant, PacPizza, engaged in 

discovery and delayed moving to compel arbitration until after 

the plaintiff had filed his motion for class certification. (Id. at pp. 

346–348.) The trial court found waiver on a number of grounds, 

including that PacPizza made the strategic decision to seek 

arbitration after seeing the plaintiff’s class certification motion. 

(Id. at pp. 350–351.)

The appellate court affirmed, rejecting PacPizza’s 

explanation that it delayed filing a motion to compel arbitration 

until Iskanian had clarified the law on class arbitration. In 

analysis that is equally appropriate here, the court concluded 

that PacPizza’s decision not to move to compel arbitration until 

after the plaintiff had filed his class certification motion was 

consistent with a strategic decision rather than a bona fide desire 

to await clarification of the law: “[I]f PacPizza had truly believed 

the arbitration agreement was unenforceable prior to Iskanian, 

as it would have us believe, the looming issue of class 

certification would not have made any difference: Either the 

state of the law supported enforcement of the agreement or it did 

not. Instead, the record suggests that PacPizza believed it could 

keep open the option of arbitrating the dispute while it conducted 

discovery, but when it appeared the class was going to be 

certified, it asserted its purported right to arbitrate to preempt 

certification.” (Oregel, supra, 237 Cal.App.4th at pp. 358–359.) 

The court concluded that this strategic decision “should not be 

rewarded.” (Id. at p. 359.)

Similarly, here there is substantial evidence to support the 

conclusion that Plan B’s delay in moving to compel arbitration 
20

until after a ruling on class certification was a strategic decision 

to attempt to win the case by defeating the class before seeking to 

arbitrate. Such a strategic use of the judicial forum is 

inconsistent with an arbitration right and supports a waiver 

finding.

Plan B cites Sky Sports and Lee v. Southern California 

University for Professional Studies (2007) 148 Cal.App.4th 782 

for the proposition that it is premature to bring a motion to 

compel arbitration against unnamed class members until the 

class has been certified. But neither of those cases involved a 

situation where a named plaintiff in a putative class action had 

agreed to arbitrate. Because the named plaintiffs in those cases 

had not signed arbitration agreements, the courts concluded that 

they could not be compelled to arbitrate, even though the 

putative class included persons who had signed such agreements. 

(Sky Sports, supra, 201 Cal.App.4th at pp. 1367–1369; Lee, at 

pp. 786–788.) The courts in those cases had no reason to consider 

whether a defendant who decides for strategic reasons not to 

pursue arbitration against a named plaintiff who did sign an 

arbitration agreement could waive its right to arbitrate against 

the class.

Plan B also cites several federal district court cases for the 

proposition that unnamed class members are not parties until a 

class has been certified. (TFT-LCD (Flat Panel) Antitrust 

Litigation (N.D.Cal., May 9, 2011) 2011 U.S. Dist. LEXIS 55033 

(TFT-LCD); Saleh v. Titan Corp. (S.D.Cal. 2004) 353 F.Supp.2d 

1087, 1091 (Saleh); Laguna v. Coverall North America (S.D.Cal. 

July 26, 2011) 2011 U.S. Dist. LEXIS 81105 (Laguna); Mora v. 

Harley-Davidson Credit Corp. (E.D.Cal. April 9, 2012) 2012 U.S. 

Dist. LEXIS 49636 (Mora).) Those cases are not controlling, and 
21

in any event do not purport to describe a general rule that would 

require reversal here.

In TFT-LCD, supra, 2011 U.S. Dist. LEXIS 55033, the only 

one of these cases that dealt with delay in moving to compel 

arbitration against a named plaintiff, the court found the issue of 

waiver “extremely close,” and characterized the defendants’ delay 

as conduct that “evinces either previous indifference to the 

arbitration clauses they now seek to assert or, possibly, a 

strategic decision to delay their enforcement.” (Id. at p. *28.) 

The case was a complex, multi-defendant antitrust class action in 

which, unlike here, not all class members (and apparently not 

even all named plaintiffs) had signed arbitration agreements. 

(Id. at pp. **22–23.) Thus, unlike here, a motion to compel 

arbitration earlier in the case presumably could not have been 

dispositive. The district court’s discretionary decision not to find 

waiver based upon these facts does not support a general rule 

that would preclude the trial court’s waiver finding here.6

6 Saleh did not involve an arbitration provision; it held that 

putative class members are not parties to a class action for 

purposes of enjoining them from proceeding with a separate 

federal action under the “ ‘first-to-file’ ” rule. (Saleh, supra, 353 

F.Supp.2d at pp. 1090–1092.) Laguna did not involve an issue of 

waiver, but simply observed in the course of denying a discovery 

motion that a motion to compel arbitration against absent class 

members would be premature prior to certification. (Laguna, 

supra, 2011 U.S. Dist. LEXIS 81105 at p. *8.) In Mora, the court 

did not find that the defendant had delayed seeking arbitration 

against the named plaintiff or even that the named plaintiff was 

a party to an arbitration agreement. Indeed, from the court’s 

summary of facts it appears that the named plaintiff was not. 

(Mora, supra, 2012 U.S. Dist. LEXIS 49636 at pp. **4, 36, 46–47.)
22

Thus, the abstract question of whether absent class 

members are parties to a class action prior to certification is not 

decisive here. The trial court could properly consider Plan B’s 

delay in seeking arbitration against Sprunk when deciding 

whether it had waived its right to compel arbitration against 

unnamed class members following certification.

For the reasons discussed below, the trial court also 

properly concluded that Plan B’s stated reasons for delaying a 

motion to compel against Sprunk were not sufficient to avoid 

waiver.

ii. Plan B’s asserted reason for withdrawing 

its motion to compel against Sprunk does 

not justify its decision to litigate in court 

rather than arbitrate

Plan B argues that its withdrawal of its motion to compel 

arbitration against Sprunk and its subsequent participation in 

the litigation should not be considered in a waiver analysis 

because it acted reasonably based upon the state of the law on 

class arbitration at the time. Specifically, Plan B claims that it 

reasonably withdrew its motion to compel arbitration against 

Sprunk because “it believed individual arbitration was foreclosed 

under then current law.” Before considering the merits of this 

argument, it is helpful to recap briefly the state of the law prior 

to our Supreme Court’s decision in Iskanian.

In 2005, the court held in Discover Bank, supra, 36 Cal.4th 

148, that class arbitration waivers were unconscionable and 

unenforceable under California law when included in consumer 

contracts of adhesion, where “it is alleged that the party with the 

superior bargaining power has carried out a scheme to 

deliberately cheat large numbers of consumers out of individually 
23

small sums of money.” (Id. at pp. 162–163.) The court 

subsequently held in Gentry, supra, 42 Cal.4th 443, that class 

action waivers in employment arbitration agreements might be 

unenforceable on the ground that they “undermine the 

vindication of the employees’ unwaivable statutory rights.” (Id. 

at p. 450.) The court directed trial courts to consider various 

factors to determine whether “a class arbitration is likely to be a 

significantly more effective practical means of vindicating the 

rights of the affected employees than individual litigation or 

arbitration” and whether “the disallowance of the class action 

will likely lead to a less comprehensive enforcement of overtime 

laws for the employees alleged to be affected by the employer’s 

violations.” (Id. at p. 463.) If so, then the class arbitration 

waiver should not be enforced. (Ibid.)

In April 2011, the United States Supreme Court 

invalidated Discovery Bank in its ruling in Concepcion. 

(Concepcion, supra, 563 U.S. 333.) The court held that requiring 

the availability of classwide arbitration “interferes with 

fundamental attributes of arbitration and thus creates a scheme 

inconsistent with the FAA.” (Id. at p. 344.) The court concluded 

that the FAA therefore preempted “California’s Discovery Bank 

rule.” (Id. at p. 352.)

In 2012, the Board issued its decision in Horton I, supra, 

357 NLRB 2277. The Board decided that the National Labor 

Relations Act (49 Stat. 449, 29 U.S.C. § 151 et seq. (NLRA)) 

generally prohibits contracts that require employees to waive

their right to participate in class proceedings to resolve wage 

claims. The Board concluded that such contracts amount to an 

unfair labor practice under the NLRA because they interfere with 

the right of employees to engage in concerted activity. (Horton I,
24

at p. 2280.) The Board also found that the NLRA did not conflict 

with the FAA in invalidating such waivers. (Id. at pp. 2285–

2288.)

The Board’s rulings on these issues were subsequently 

reversed by the Fifth Circuit in December 2013. (See Horton II,

supra, 737 F.3d 344.) The Fifth Circuit concluded that 

“[r]equiring a class mechanism is an actual impediment to 

arbitration and violates the FAA,” and that neither the NLRA 

itself nor any inference from an inherent conflict between the 

FAA and the NLRA demonstrated any congressional command 

against application of the FAA. (Id. at p. 360.)7

Our Supreme Court’s decision in Iskanian considered this 

history in the context of a wage and hour class action that 

involved an arbitration agreement containing an express class 

7 Federal circuits are split on this issue, and the issue is 

currently before the United States Supreme Court. (See NLRB v. 

Alt. Entm’t, Inc. (6th Cir. 2017) 858 F.3d 393, 405 [“Mandatory 

arbitration provisions that permit only individual arbitration of 

employment-related claims are illegal pursuant to the NLRA and 

unenforceable pursuant to the FAA’s savings clause”]; Morris v. 

Ernst & Young, LLP (9th Cir. 2016) 834 F.3d 975, 985–986, cert. 

granted Jan. 13, 2017, ___ U.S. ___ [137 S.Ct. 809] [arbitration 

provisions that mandate individual arbitration of employmentrelated claims violate the NLRA and fall within the FAA’s saving 

clause]; Lewis v. Epic Sys. Corp. (7th Cir. 2016) 823 F.3d 1147, 

1160, cert. granted Jan. 13, 2017, ___ U.S. ___ [137 S.Ct. 809] 

[same]; Cellular Sales of Mo., LLC v. NLRB (8th Cir. 2016) 824 

F.3d 772, 776 [arbitration provisions that mandate individual 

arbitration of employment-related claims do not violate the 

NLRA]; Murphy Oil, USA, Inc. v. NLRB (5th Cir. 2013) 737 F.3d 

344, cert. granted Jan. 13, 2017, ___ U.S. ___ [137 S.Ct. 809] 

[upholding the Fifth Circuit’s prior ruling in Horton II].)
25

action waiver. The court decided several issues relevant to the 

enforceability of class action waivers. First, the court confirmed 

that Concepcion invalidated Gentry. The court explained that, 

under the holding in Concepcion, the FAA preempts states from 

“mandating or promoting procedures incompatible with 

arbitration,” and that “[t]he Gentry rule runs afoul of this . . . 

principle.” (Iskanian, supra, 59 Cal.4th at p. 366.) The court also 

rejected the holding in Horton I, agreeing with the Fifth Circuit’s 

ruling that the Board’s decision was inconsistent with the FAA 

and was not justified by any “ ‘ “contrary congressional 

command” ’ ” in the NLRA. (Iskanian, at p. 373.)

The final entry in this chronology is the United States 

Supreme Court’s decision in Stolt-Nielsen. In that case, decided 

in 2010, the court held that, under the FAA, no party may be 

compelled to participate in class arbitration “unless there is a 

contractual basis for concluding that the party agreed to do so.” 

(Stolt-Nielsen, supra, 559 U.S. at p. 684.) The case did not 

involve a class action waiver; rather, the contract at issue was 

silent on the issue of class arbitration.8 The court concluded that 

an agreement for class arbitration could not be inferred from the 

contract “because class-action arbitration changes the nature of 

arbitration to such a degree that it cannot be presumed the 

parties consented to it by simply agreeing to submit their 

disputes to an arbitrator.” (Id. at p. 685.)

8 The parties in that case stipulated that the contract’s 

silence meant that there was “ ‘no agreement’ ” on the issue of 

class arbitration. (Stolt-Nielsen, supra, 559 U.S. at p. 687, 

fn. 10.)
26

In light of this history, Plan B’s argument that its delay in 

seeking arbitration against Sprunk was reasonable based upon 

the state of the law is unpersuasive for several reasons.

a. Plan B delayed unreasonably even 

after the decision in Iskanian

Plan B claims that the opinion in Iskanian changed the 

legal landscape. However, as discussed above, that argument 

does not explain Plan B’s delay of over a year in moving to compel 

arbitration after the Supreme Court decided that case. Plan B 

attempts to justify its delay by reiterating its argument that a 

motion to compel arbitration against unnamed class members 

would have been premature prior to certification. But that has 

nothing to do with the state of the law on class arbitration. There 

was nothing precluding Plan B from moving to compel individual 

arbitration against Sprunk as soon as Iskanian was decided, even 

if Plan B had reasonably believed prior to that decision that such 

a motion would have been futile. (Oregel, supra, 237 Cal.App.4th 

at pp. 358–359.)

b. Plan B’s motion would not have been 

“futile” before Iskanian

Plan B claims that the law on class arbitration waivers was 

unsettled until the court’s decision in Iskanian confirmed that 

Concepcion had overruled Gentry, and that the Board’s ruling in 

Horton I would not be followed in California. However, while 

uncertainty remained, there was ample reason to conclude that 

Plan B could not comfortably rely on the decisions in Gentry or 

Horton I to excuse the failure to seek individual arbitration. In 

particular, a prudent litigant who was intent on avoiding an 

implication of waiver would not have taken such a risk.
27

Several Court of Appeal decisions prior to the Supreme 

Court’s opinion in Iskanian suggested that Concepcion had 

invalidated Gentry and declined to follow Horton I. In Nelsen v. 

Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th 1115 

(Nelsen), the court affirmed the trial court’s order enforcing an 

agreement for individual arbitration in an employment class 

action, rejecting the plaintiff’s argument that individual 

arbitration violated public policy. The court declined to follow 

Horton I. (Nelson, at p. 1133.) With respect to Gentry, the court 

observed that the “continuing vitality” of that case “has been 

called into serious question” by Concepcion. (Id. at p. 1131.) 

Citing the Court of Appeal opinion in Iskanian, the court noted 

that “[o]ne California appellate court and a number of federal 

district courts have found Concepcion applies equally to Gentry 

and the FAA therefore precludes California courts from ordering 

classwide arbitration of wage and hour claims unless the parties 

have agreed to it.” (Nelsen, at pp. 1131–1132.)

The court in Nelsen did not reach the issue of Gentry’s 

continued viability, but the reason it did not do so would also 

have supported Plan B’s motion to compel against Sprunk. The 

court noted that Gentry did not establish a “categorical rule 

applicable to the enforcement of class arbitration waivers in all 

wage and hour cases.” (Nelsen, supra, 207 Cal.App.4th at 

p. 1132.) Rather, to show that a waiver is invalid, a plaintiff was 

required to prove the presence of a number of case-specific factors 

demonstrating that individual arbitration would not be 

adequate.9 Because the plaintiff had not made such a showing in 

9 The factors were that: “(1) potential individual recoveries 

are small; (2) there is a risk of employer retaliation; (3) absent 

class members are unaware of their rights; and (4) as a practical 
28

Nelsen, the court concluded that Gentry was not applicable even 

if it was still good law.

Similarly, in Kinecta Alternative Financial Solutions, Inc. 

v. Superior Court (2012) 205 Cal.App.4th 506 (Kinecta), 

disapproved on another ground in Sandquist v. Lebo Automotive, 

Inc. (2016) 1 Cal.5th 233, 260, footnote 9, the court questioned 

the continued viability of Gentry, but held that it did not apply to 

that case in any event because the plaintiff failed to provide 

evidence showing the presence of the specific Gentry factors. (Id. 

at pp. 516–517.) And in Truly Nolen of America v. Superior Court 

(2012) 208 Cal.App.4th 487 (Truly Nolen), the court also 

questioned Gentry in light of Concepcion before concluding that 

stare decisis required it to follow Gentry. (Id. at pp. 506–507.) 

Nevertheless, as in Nelsen and Kinecta, the court held that 

Gentry did not invalidate the arbitration agreement in that case 

because the plaintiff had failed to present individualized evidence 

establishing the Gentry factors. (Id. at p. 510.) The court also 

declined to follow Horton I. (Id. at pp. 514–515.)

Here, in opposing Plan B’s initial motion to compel, Sprunk 

did not provide any evidence showing the presence of the specific 

Gentry factors. Sprunk did not even argue that Gentry required 

class arbitration; she cited that case only for the proposition that, 

if arbitration were ordered, it must include certain procedural 

safeguards. Plan B did not withdraw its original motion to 

compel until September 6, 2012, after the Court of Appeal 

decisions in Nelsen, Kinecta, and Truly Nolen. Thus, even if the 

trial court in this case had decided that Gentry remained good 

 

matter, only a class action can effectively compel employer 

overtime law compliance.” (Nelsen, supra, 207 Cal.App.4th at 

p. 1132.)
29

law, Plan B had ample authority to argue that Gentry did not 

apply to its motion.

In summary, well prior to our Supreme Court’s decision in 

Iskanian, the state of the law on class arbitration in California 

was that (1) the continued viability of Gentry was in serious 

question following Concepcion, (2) even under Gentry, a class 

plaintiff resisting individual arbitration had to make a specific 

factual showing that only a class action could adequately protect 

unwaivable statutory rights (a showing that Sprunk did not 

make), (3) the Fifth Circuit had reversed Horton I, and (4) several 

California Courts of Appeal had rejected Horton I. While the 

outcome was not free from doubt, given this authority one could 

not reasonably describe Plan B’s prospects of compelling 

individual arbitration prior to Iskanian as “futile.”

That conclusion dooms Plan B’s argument that it 

reasonably delayed moving to compel arbitration against Sprunk 

because of the state of the law. As the trial court correctly 

observed here, Plan B was not entitled to litigate indefinitely in 

court so long as there was some risk that it might lose a motion to 

compel individual arbitration. Plan B could reasonably make a 

strategic decision that it did not want to assume the risk that the 

trial court might order class arbitration. But risk is not the same 

as futility.

In Iskanian, the court held that the defendant’s conduct in 

initially filing, and then withdrawing, a motion to compel 

arbitration in a wage and hour class action did not amount to 

waiver because the state of the law at the time the defendant 

(CLS) withdrew the motion would have made the motion futile. 

(Iskanian, supra, 59 Cal.4th at pp. 374–378.) CLS had filed the 

motion before our Supreme Court decided Gentry, and the trial 
30

court granted it. (Id. at p. 375.) However, while the case was in 

the appellate court, the Supreme Court issued its opinion in 

Gentry, and CLS withdrew its motion. (Ibid.) When the United 

States Supreme Court subsequently decided Concepcion, CLS 

quickly filed a renewed motion to compel arbitration and to 

dismiss the class (which had been certified in the interim). (Ibid.)

The court held that CLS’s delay was reasonable in light of 

the state of the law and did not support waiver. (Iskanian, supra, 

59 Cal.4th at pp. 376–378.) The court concluded that “futility as 

grounds for delaying arbitration is implicit in the general waiver

principles we have endorsed.” (Id. at p. 376.) Significantly, the 

court described the “futility” doctrine using language as strong as 

the label suggests: “The fact that a party initially successfully 

moved to compel arbitration and abandoned that motion only 

after a change in the law made the motion highly unlikely to 

succeed weighs in favor of finding that the party has not waived 

its right to arbitrate.” (Ibid., italics added.) In later discussing 

the issue of prejudice, the court similarly explained: “Where, as 

here, a party promptly initiates arbitration and then abandons 

arbitration because it is resisted by the opposing party and 

foreclosed by existing law, the mere fact that the parties then 

proceed to engage in various forms of pretrial litigation does not 

compel the conclusion that the party has waived its right to 

arbitrate when a later change in the law permits arbitration.” 

(Id. at pp. 377–378, italics added.)

It is significant that the defendant in Iskanian did what 

Plan B claims it reasonably decided not to do here, i.e., move to 

compel arbitration once the United States Supreme Court had 

decided Concepcion. In its initial arbitration demand letter to 

Sprunk in 2011, Plan B cited Concepcion in identifying “new case 
31

law” that permits individual arbitration “despite class 

allegations.” While Plan B perhaps later reassessed the risk that 

its interpretation of Concepcion was wrong, that risk was based 

on lingering uncertainty, not on existing law that “foreclosed” its 

motion to compel. (Iskanian, supra, 59 Cal.4th at pp. 377–378.) 

In any event, regardless of the ultimate impact of Concepcion, 

Plan B had ample reason to believe that neither Gentry nor 

Horton I would affect the enforceability of its arbitration 

agreements in light of the existing case law and the lack of 

evidence from Sprunk concerning the Gentry factors.

c. Iskanian was irrelevant to whether 

the arbitration agreement that 

Sprunk signed contemplated class 

arbitration

A large part of the risk of class arbitration that existed at 

the time Plan B withdrew its motion to compel was not affected 

by the subsequent ruling in Iskanian. Much of the argument 

concerning class arbitration in the briefing on Plan B’s motion 

dealt with the question whether the version of the arbitration 

provision in Sprunk’s employment agreement—which did not 

address class arbitration—could be interpreted to include an 

agreement to arbitrate on a class basis. The answer to that 

question was controlled by the United States Supreme Court 

decision in Stolt-Nielsen, which was decided in 2010. Plan B does 

not claim that Iskanian had any effect on the interpretation of 

Stolt-Nielsen.

Indeed, in opposing Plan B’s motion to compel Sprunk 

argued that Concepcion was not even relevant because it 

concerned the enforceability of an express class action waiver, 

which Sprunk’s agreement did not have. Whatever the ultimate 
32

merits of that argument,10 it underscores that the major issue 

concerning class arbitration raised by Plan B’s motion—that is, 

whether the agreement itself permitted class arbitration—was 

not affected by the subsequent legal developments that Plan B 

claims changed the legal landscape and ultimately made its 

motion viable.

Thus, we conclude that Plan B’s delay in bringing its 

motion to compel was not excused either by the lack of a certified 

class or by the state of the law.

d. The St. Agnes factors support the 

trial court’s waiver finding

The circumstances of Plan B’s delay in seeking arbitration 

against Sprunk support the trial court’s waiver finding under the 

factors that our Supreme Court identified in St. Agnes. (St. 

Agnes, supra, 31 Cal.4th at p. 1196.) Having concluded that Plan 

B’s delay cannot reasonably be explained either by the state of 

the law or the lack of a certified class, the period of the unexcused 

10 There is conflicting authority on whether Concepcion and 

Iskanian are relevant to employment arbitration agreements that 

do not contain a class action waiver. In Oregel, the court rejected 

the defendant’s argument that a motion to compel arbitration 

would have been futile before Iskanian because the arbitration 

agreement at issue did not contain a waiver. The court concluded 

that the line of cases on which the defendant relied (i.e., Discover 

Bank, Gentry, Concepcion, and Iskanian) involved the 

enforceability of class action waivers and therefore was not 

relevant. (Oregel, supra, 237 Cal.App.4th at pp. 357–358.) In 

contrast, in Nelsen, which also concerned an arbitration 

agreement without an express waiver, the court held that 

“Gentry’s application should not turn on whether an arbitration 

agreement bars class arbitration expressly or only impliedly.” 

(Nelsen, supra, 207 Cal.App.4th at p. 1127.)
33

delay—nearly four years between the date that Sprunk filed her 

complaint on October 7, 2011, and the date that Plan B moved to 

compel arbitration on August 12, 2015—is far longer than in 

many cases finding waiver. (See, e.g., Oregel, supra, 237 

Cal.App.4th at p. 359 [17 months’ delay]; Bower, supra, 232 

Cal.App.4th at pp. 1039–1040 [nine months’ delay]; Sobremonte, 

supra, 61 Cal.App.4th at pp. 993–994 [10 months’ delay]; Lewis v. 

Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 446 

[nearly five months’ delay].) Thus, the facts support the third St. 

Agnes factor of a delay for a long period before seeking a stay. 

(St. Agnes, supra, 31 Cal.4th at p. 1196.)

Litigation events during the long delay also support the 

first and fifth factors, conduct inconsistent with the right to 

arbitrate and important intervening steps. (St. Agnes, supra, 

31 Cal.4th at p. 1196.) As discussed above, Plan B’s strategic 

decision to delay until after class certification was inconsistent 

with an intent to arbitrate. In addition, while Plan B argues that 

it did not initiate much discovery during the delay, the class 

certification motion itself was a significant litigation event. The 

motion discussed Sprunk’s factual and legal theories and 

disclosed her positions and evidence on disputed issues. (See 

Oregel, supra, 237 Cal.App.4th at p. 358 [PacPizza waited to 

move for arbitration until the plaintiff had filed his class 

certification motion, “taking the opportunity to examine his 

motion and supporting evidence”].)

Plan B argues that the second St. Agnes factor—whether 

the litigation machinery has been substantially invoked before 

the party notified the opposing party of an intent to arbitrate (St. 

Agnes, supra, 31 Cal.4th at p. 1196)—does not apply here because 

it repeatedly notified Sprunk and the trial court of its intent to 
34

arbitrate, including in its affirmative defenses, discovery 

responses, and its opposition to class certification. The trial court 

in fact noted that arbitration “was always on the table.” 

However, as the trial court also observed, there is a difference 

between stating an intent and actually following through with 

asserting a right. That Plan B asserted arbitration as a defense 

was “merely one factor for the court to consider.” (Sobremonte, 

supra, 61 Cal.App.4th at p. 993.) Identifying the arbitration 

right as an affirmative defense in pleadings “does not preclude a 

finding that subsequent conduct may cause a waiver of that 

right.” (Ibid., citing Davis v. Continental Airlines, Inc. (1997) 

59 Cal.App.4th 205, 217.)

The fourth St. Agnes factor asks whether the defendant 

filed a counterclaim without asking for a stay. (St. Agnes, supra, 

31 Cal.4th at p. 1196.) Plan B did file a counterclaim. However, 

it does not appear that the trial court attached much weight to 

that event, and neither do we. Plan B filed the counterclaim 

against Sprunk and various fictional Roe defendants, but it did 

not attempt to amend the counterclaim to substitute particular 

class members for the fictional defendants and it later dismissed 

the counterclaim. Thus, Plan B did not obtain any litigation 

advantage from its claim.

This leaves the sixth St. Agnes factor, prejudice, which is 

“critical in waiver determinations.” (St. Agnes, supra, 31 Cal.4th 

at p. 1203.) The trial court appeared to find prejudice in part 

from the likelihood that, because of the nature of Plan B’s 

business, individual plaintiffs would be reluctant to press 

arbitration claims. As Plan B points out, this concern would be 

present no matter when it asserted its arbitration right, and 
35

therefore does not show prejudice from its delay. We therefore do 

not give it any weight in assessing prejudice.

However, the trial court also found that Plan B’s four-year 

delay in asserting its arbitration right was inconsistent with the 

principle that arbitration “is supposed to be quick.” The court 

concluded that, if it granted the motion to compel, “it’s going to be 

quite a while before these plaintiffs get their claims heard.”

While “merely participating in litigation” does not cause a 

waiver (see St. Agnes, supra, 31 Cal.4th at p. 1203), in Iskanian

our Supreme Court cited a number of cases in which courts had 

interpreted St. Agnes to “allow consideration of the expenditure 

of time and money in determining prejudice where the delay is 

unreasonable.” (Iskanian, supra, 59 Cal.4th at p. 377; see Oregel, 

supra, 237 Cal.App.4th at p. 361 [noting that in Iskanian “the 

Supreme Court endorsed the line of cases that have interpreted 

St. Agnes to allow consideration of the expenditure of time and 

money in determining prejudice where the delay was 

unreasonable or unjustified”].) The court quoted Burton v. Cruise

(2010) 190 Cal.App.4th 939 for its conclusion that “ ‘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.” ’ ” (Iskanian, at p. 377, quoting Burton, at 

p. 948.)

Here, the four-year delay resulted in Sprunk conducting 

class-related discovery and preparing and arguing an extensive 

class certification motion that never would have been necessary if 

individual arbitration had been ordered earlier in the case. 

Because Plan B’s delay was unreasonable, we conclude that the 
36

trial court’s finding of prejudice is supported by sufficient 

evidence.11

DISPOSITION

The trial court’s order denying the motions to compel 

arbitration is affirmed. Sprunk is entitled to her costs on appeal.

CERTIFIED FOR PUBLICATION.

LUI, J.

We concur:

CHANEY, Acting P. J.

JOHNSON, J.

11 Because we affirm the trial court’s waiver finding, there 

is no need to consider Sprunk’s argument that the arbitration 

provisions were unconscionable.