Filed 6/6/ 23 Castillo v. Alhambra Healthcare & Wellness Centre CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b) . This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ESPERANZA CASTILLO

,

Plaintiff and Respondent

,

v.

AL HAMBRA H EALTHC ARE & WE L LNESS CENTRE , LP et al.

,

Defendant s and Appellants

. B 3 19869

(Los Angeles County Super. Ct. No. 20 STCV 32074 )

APPEAL from a n order of the Superior Court of
Los Angeles County. Richard L. Fruin

, Jr., Judge

. A ffirmed

.

De Castro Law Group, Jos é

- Manuel A. de Castro and
Lori V. Minassian f

or Defendants and Appellant s

.

Law Office s of Glenn D. Hamovitz and Glenn D. Hamo vitz for Plaintiff and Respondent

.

___________________

__________

_2 Plaintiff and respondent E sper anza Casti llo filed this action against d efendants and appellants Alhambra Healthcare & Wellness Centre, LP, and Rockport Administrative Services LLC doing business as Rockport Healthcare Services alleging employment

- related claims. Defendants moved t o compel
arbit ration pur suant to a n agreement to arbitrate . The trial court denied defendants’ motion on the grounds that defendants waived the right to compel arbitration by unreasonably delayin g in filing their motion to compel

. We affirm. FACTUAL AN D PROCED URAL B ACKGROUND
The instant lawsuit On August 21, 2020 , plaintiff filed the instant lawsuit against defendants

. The complaint alleg es 11 employment

related causes of action. Defendants’ counsel ’

s letter to plaintiff

’ s counsel On Augu s t 31, 202 0, defense couns el sent a letter to plaintiff ’ s counsel, advising, in ter alia: “ [A]s you may

. . . recall fr om the documents I provided to y ou on my clients ’ behalf in response to your client [ ’ s] pre

- litigation request for records, your client s igne d an arb it r ation agree ment at the outse t of her employment with my client. I have attached a copy for your reference. Please let me know if your client will stipulate to arbitration of her claims and a corresponding stay or dismissal without prejudic e of judicia l p rocee dings on her claims pending
arbi tration rather than opposing a motion to compel arbitration

. ” Plaintiff ’ s counsel notifies defense counsel of problems with the arbitration agreement On September 8, 2020, plaintiff ’ s cou nsel res pon ded, asserting th at certa in ter ms in the arbitration agreement were3

imper missible

. “ Without waiving any rights or reme dies, I will review [ the alternati ve dispute resolution po licy documents] further and get back to you i n t he n ear futu re about your request for a stipulat ion. ”
An swer Defendants filed their answer to the complaint on December 14, 2020, alleging ar bitration as one of t heir affirmative defenses. Case management conf erence Defendants ’ case managem ent statement On May 11, 2021, defendants file d their case ma nagement

state ment, requesting a “ nonjury trial ” and provid ing the trial court with dates that defendants and their counsel were
unavailable for trial. T he statement also estimated a three to five day trial

. Furt hermore , the statement represented that
de fense co unsel had discussed with defendants an alternative dispute resolution package and indicated tha t defend ants were willing to par ticipate in mediation

, a s ettlement conference , and binding arbitration

. Regarding their intent to enforce the arbitrati on
agree ment, defendants notified the trial court that they were still

“ awaiting [p ] laint iff

’ s resp on se to a re q uest to stipulate to
arbitration. Will move if necessary. ” Defendants indicated that they intend ed to file a “ [ m]otion to compel arbitration i f plaint iff
de clines to s tipulate. ” Plaintiff ’ s case ma nagement stat emen t The f ollowing day , plaintiff filed her case management

statement , requesting a jury trial. She mentioned a “ [p]ossible motion to compel arbitration b y defendants, ” b ut asserted th a t her c ase w a s exempt from judicial arbitra tion. She spec ific ally4

req uested that the following matter be determ ined at the case management conference: “ Whe ther defendants ’ delay wai ves their right, if any, to mo ve to compel arbitration. Defend ants sign ed Notic e and Acknowle dgment of Receipts on September 24,

2 020

— ALMOST 8 months ago ! Defen dants answered the

co mplaint on December 14, 2020

— ALMOST 5 months ago. Plaintiff relied on the pending action and t i mely posted jury fees
and served notice of the sa me on de fendan ts [ ’ ] counsel on December 8, 2020. ”
She did not check the box that would have indicated her willing ness to participate in binding private arbitration. Case management conference At the May 24, 2021, case managemen t conference, the
trial court or dered that all final status conferen ce d ocuments be filed by January 31, 2022, and set the matter for a jury trial to begin on February 14, 2022. Regarding defendants ’ potential motion to compel arbitration, defens e counsel represented that a motion to compel

w ould b e filed with in two to three weeks. Defendants ’ motion to compel arbitration After plaintiff had propounded multiple discovery requests on defendants, on November 2, 2021, defend ants filed their motion to compel arbitration. As is relevant t o the is sues o n appeal, d efendants argued that they did not waive their right to compel arbitration as they (1) pled arbitration as an affirmative defense in their answer to plaintiff ’ s complaint, (2) reaffirmed their intent to move to compel arbitration a t the

ca se ma n agement conference, and (3) had not yet conducted any discovery or sought affirmative relief from the trial court

.5

Plaintiff ’ s opposition Plaintiff opposed defendants ’ motion , a sserting, inter alia, that defendants waived their righ t, i f any , t o com pel ar bitration by delaying more than 14 months before filing their motion

. Initia l hearing on defendants ’ motion (Dec. 10, 2021) The night before the scheduled hearing on defendants ’ motion to compel arbitration, the trial co urt e

- ma iled the part ies
its tentat ive ruling . Regarding waiver, the trial court found: “ It is this last argument that most concern s the Court, and which necessitates denial of the motion

. . . . Moving parties ’ delay in seeking arbitration was signific ant. The Complaint w as filed on 8/ 21/20. Per proofs of service filed 10/ 8/20, moving d efendants
were served with S&C on 9/4/20. Defenda nts ’ Answer, filed 12/14/20, asserts arbitration as an affirmati ve defense, yet the
instant motion wasn ’ t file d until 11/2/21. Plaintiff ’ s opposit ion

no tes the long delay, and cites cases for the propositi on that a delay in seeking arbitration supports a finding that the right to compel arbitration has been waived. [Citations.]

“ The Court finds this a r gumen t to be pers uasive.

“ Notably, wh il e the Reply argues that defendants haven ’ t taken steps which are inconsistent with the right to compel arbitration, the Reply offers no explanation for the delay. Instead, Defense counsel submits a declaration in which h e

as serts th at: a) even be fore t he compl aint w as served, he asked
Plaintiff ’ s counsel whether Plaint iff would stipulate to

a rbitration , but he never got a response; b) he advised the Court that a motion to compel arbitration wo uld be forthcoming at a

case man agement c onference; and c) af ter he r eceive d discovery fro m Plaint i ff on 1 0/1/21, he realized tha t Plaintiff ‘ had elected not to stipulate, ’ and he then prepared the motion. The6

declaration doesn ’ t explain why Defendants wai ted; instead, it
states onl y th at Defend ants wai ted until Pl aintiff took a ction to

move the case along

— i. e., for approxi m ate l y f ourteen months after service of the Summ ons and C o mplaint. Had defendants acted promptly to co m pel arbitration

, the case might have been resolved by now i n ar bitration

. Defendants could not simp ly ‘ si t on their hands ’ and wait for Plaintiff to ser v e disco very. They were obligated to seek to compel arbitration with in a reasonable time, and they failed to do so. ” During oral argument, defend ants c ited new case law at the hearing. As a re sult, th e tria l court continued the he aring to allow plaintiff to file a surreply to address the legal authority first mentioned at the hearing

. Continued hearing on defendants ’ motion (Dec. 16, 202 1) Aft er entertaining further argument from the parties, t he
trial court indicat ed that it had “looked at the facts carefully, ” considered the new cases cited by defendants at the prior hearing date, and was going to stand by its earlier tentative ruling a nd
den y def endants ’ motion to compel arbitration.
A ppeal
D efendan ts’ ti mely appeal ensued.

DISCUSSION
I. R e levant law A court may deny a petition to compel arbitration on the ground that “ [t]he right to compel arbit ra tion has been waived by the petitioner

. ” ( Code Ci v. Proc., § 1281.2, subd. (a).) A p arty

may w aive the right to compel ar bitration by failing to demand
arbitration within a reasonable ti me. ( Wagner Construction Co. v. Pacific Mechanical Co rp. (2007) 4 1 Cal. 4th 19, 30 ( Wagner ) .)

“ This rule is an application of the general principle of co ntract7

law articul ated i n Civil Code section 1657, to the effect that, ‘ [i]f no time is specified for the performance of an act required to be performed, a reas onable t im e is allowed. ’ [Citation.] ‘ [W]hat constitutes a reasonable time is a question of fa ct, depend ing

upon the s ituation of the parties, the nature of the transaction, and the facts of the particular case. ’ ” ( Wagner
, supra, at p. 30 .) Although there is no u nifo r m or single test for determining whether a party ’ s conduct amounts to a waiver of the ri ght to arbi trate, the courts have formulated a list of factors that are relevant in making that determination

. These include

“ ‘ “ (1) whether the party ’ s actions ar e in c onsistent with the right to arbitrate; (2) whether ‘ the litigation machinery has been

su bst antially invok ed ’ and the parties ‘ were well into preparation
of a lawsuit ’ before the party notified the op posing party of an intent to arbitrate; (3) whether a pa r ty either requested arbitration enforcement close to the trial date or delayed for a
lon g p eriod be fore s eeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) ‘ whether importa nt i n tervening steps [e.g., taking advantage of judicial discovery procedures not available i n

a rbitrati on] ha d taken place ’ ; and (6) whether the delay ‘ affected, misled, or prejudiced ’ the opposing party. ” ’ [Citation.] ” ( St. Agnes Medical Center v. Paci fiCa r e of California (2003)
31 Cal.4th 1187, 1196 ( St. Agnes ) ; se e also Simms v. NPCK Enterpr ise s, Inc. (2003) 109 Cal.App.4th 233, 240 .)

“ No one of these factors predominates and each case must
be examined in context. ” ( Lewis v. Fletcher Jones Motor Cars

, In c

. (2012) 205 Cal.App.4th 436, 444.) The question of prejudice, however, “ is critical in wa iver det ermina tions. ” ( St. Agnes

, supra , 31 Cal.4th at p. 1 203.)8 “ Relatedly, a party that wishes to pursue arbitration must take ‘ “ active and decided steps to secu r e that right ” ’ because an arbitration agreemen t ‘ “ is not

. . . self

- executing. ” ’ [Cita tion .]

‘ Mer e anno uncement of the right to compel arbitration is not enough. To properly invoke the right to arbitrate, a party must (1) timely raise the defense a nd t ake affirmati ve steps to
i mplemen t the process, and (2) participate in conduct consisten t wi th the i ntent to arbitrate the dispute. Both of these actions
must be take n to secure for the participants the benefits of arbitration. [Citations.] ” ( Flemin g Di stribution Co. v. Youn an (202 0) 49 Cal.App.5th 73, 80

– 81 ( Fleming ) .)
II. Standard of re view The par ty ass erting waiver “ ‘ bears the burden of producing evidence of, and proving by a preponderance of the eviden ce, any fact necessary to the defense. ’ [C itat ion.] ” ( Hotels N evada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 76 1 .)

“ G ener ally, th e de te rmination of waiver is a question of fact, and the trial court ’ s finding, if supp orted by sufficient
evidence , is binding on the appellate court. [ Cita tion s

. ] ‘ When, however, the facts are undisputed and only one inference may reasonably b e drawn

, the is sue is one of law and the reviewing court is not bound by the trial cour t ’ s ruling. ’ [Citation.] ” ( St. Agnes
, supra , 31 Cal.4th at p. 1196.)

“ Here , th e essential facts may not be in dispute, in the sense that no one doubts that party X did or did n ot do act Y on date Z. Nevertheless, even if there is no difference in opinion on such events or nonoccurrences, the inferences to be d rawn from
the esse ntia l facts are conflicting. And where conflicting inferences may be drawn, the issue is red u ced to w hether the
trial court ’ s finding of waiver is supported by substantial9

evidence. [Citation s .] In conducting that standard of review,

‘ [w]e infer all nec essa r y findings supported by substantial evidence [citations] and “ construe any reasonable in f erence i n the manner most favorable to the [ruling], resolving all ambiguities to support an affirmance ” [citation]. ’ [Citation.] ” ( Dav is v. Shiekh Shoes, LLC ( 2022 ) 84 Cal.App.5th 956, 962

– 963.)

“ Reversal is not justified simply because the trial court
could ha ve pot entially reached a different c onclusion on the question of waiver; ‘ rather, we may reverse the trial c ourt ’ s waiver finding only if the record estab lish e s a lack of waiver as a matter of law. ’ [Citation.] ” ( Fleming

, supra , 49 Cal.App.5th a t

p. 81.)
I I I. The trial court properly denied defendants’ motion Applying these legal principles, we conclude that the trial

court did not err in denying defenda nts’ motion to compel
arbitration. Substantial evidence supports the trial court ’s
determin at ion that defen dants waived their right 1 to arbitrate this dispute

. Defendants ’ conduct was inconsistent with a right to
arbitrate. As confirmed in de fens e counsel ’ s August 31, 2020,
letter to plaintiff

’ s counsel, defendants knew th ey had a right to
arbit rate pla intiff

’ s claims before they were served with the summons and complaint. Despite this knowledge, defendants
waited over 14 months befo r e b ringing their motion to compel
arbitration. In the meanti me, (1) plaintiff posted jury fees, (2) defendants f

iled the ir ans wer to the complai nt, asserting

1 For ease, w e refer to def endants ’ “ righ t ” to arbitr ate this dispute, but we offer no opinion on whether the contract was enforc eable

.10

arbitration as an affirmative defense, (3) defendants filed a case

managem ent stateme nt request i n g a nonjury trial and providing
the trial court with a time estimate and dates of unav ailab ility, (4) defendants were awa re of plaintiff ’ s case management statement that specifically referenced a potential defense m otion

t o compel , and (5) defe nse counsel represented to the trial court at the May 24, 2021, case management conference that the ir motion to compel would be filed withi n two to three weeks

. Taken together, all of these actions are inconsistent with an
intent to arbitr ate this matter. 2 The same evidence demonstrates that the parties were well into preparation for a lawsui t and trial before defend ants filed
their m otion to compel

. In addition, a final status conference
date had been set, with accompanying deadlines for pretrial
docume nts. And, a jury tri al was scheduled to commence just two
months after the initial hearin g date of defendants ’ motion.
Fina lly , def

endant s ’ delay prejudiced plaintiff. ( Fleming

, supra , 49 Cal.App.5th at p. 8 3.) As the trial court aptly noted, plaintiff suffered t h e prejudice of ha ving to wait to have her
claims determined

— claims that may ha ve alr eady been decided
had defenda nts p ro m ptly m oved to compel arbitration. ( Ibid

. [prejudice exists whe re the petitioning party ’ s conduct has substantially impaire d the other side ’ s ability to secure the benefits and eff

icienc ies of arbitration].) Urgi ng us to conclude otherwise, defend ants dir ect us to Quach v. California Com merc e Club, Inc. (2022) 78 Cal.App.5th

2 T h e fact that defendants “ notified ” plaintiff of their intent to enforce the arbitration agreement is insuffici ent

. ( Flemin g , supra , 49 Cal.App .5th at p p

. 80

– 81 .)11

470, review granted August 24, 2022

, S275121 ( Quach )

. In Quac h , the Court of Appeal held that the party opposing the motion to compel arbitr ation did not make an adequate show ing of p rejudi ce as a matter of law. ( Id . at p. 478.) “ His showing below indicated nothing more than th e parties participated in litigation

. . . . [He did] not show[] any prejudice apart from the expenditure of time an d mon ey on litigation. He [did] no t, for

e xample , claim [ that the defenda nt/moving party] gained information or conducted discovery it would not have been able to
ob tain in arb i tration or that the delay led to lost evidence. ” ( Id

. at p. 479 ) Relying upo n this language, defendants contend that pl aintif

f here did not demonstrate prejudice ; therefore, her waiver argument fails. Defendants seem to be asking us to do w h at our colleagues
in Division 8 recently refused to do. In Kokubu v. Sudo (20 22)
76 Cal.App.5th 1074 , t he court considered a request “to li mit prejudic e to situations where the opposing party has (i) provided information in complian ce with civ il discover y o b ligations that do not apply in arbitration; or (ii) ‘alter [ed] its litigati on posture in a fundamentally inalt erable o r oth erwise s ticky [ sic ] way

. . . . ’ ” ( Ko kubu v. Sudo

, supra , 76 Cal.App.5th at p. 1090; see also id . at

p. 1083.) It de clined to d o so, noting that the “ [c]ases do not support such a limitation. ” ( Id . at p. 1 090.)
F or the same r eason , includi ng those outl ined in the
di ssent in Quach

, we reject defendants ’ contention

. ( Quach

, supra , 78 Cal.App.5th at p p. 485

– 490 (dis. opn . of Cranda l l, J.) .)
Defendants ’ “ tactics were prej u dicial because they deliberately
and fore ver undermined the very nature of a quick r esolutio n that is the central ten et of arbitr ation. ” ( Id . at p. 490 ; see also
Kokubu v. Sud o , supra , 76 Cal.App.5th at p. 1091 [ “ c ourts have12

consid ered delayed recovery of a claim ed, but disputed,
entitlement as contributing to prejudice resulting from a delayed
arbitr ation demand ” ] .) To the extent defend ants purport to blame plaintiff for
th eir delay in filing their moti on to compe l , we are not convinced. Regardless of whether defense counse l asked plaintiff ’ s counsel to stipulate to arbitration and neve r got a respon se, it was incumbent upon defendants to pur sue their motion if that is what they desired

— particular l y in lig ht of p laintiff ’ s actions that
demonstrate d her desire to proceed with a jury trial

. DISPOSITION
The order is affirmed

. Plaintiff is entitled to co sts on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

____________________ _, Acting P

. J. ASHMANN

- GERST

We concur:

________________________, J.
CHA VEZ

__ ______________________, J.
HOFFSTADT