Filed 8/27/21 Delgado v. Statewide Fumigation San Diego County CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

NICOLAS DELGADO,

Plaintiff and Respondent,

v.

STATEWIDE FUMIGATION SAN 

DIEGO COUNTY, INC.,

Defendant and Appellant.

 D077913

 (Super. Ct. No. 37-2016-

 00018022-CU-OE-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Timothy Taylor, Judge. Affirmed.

Simpson Delmore Greene, Terence L. Greene and Ross M. Poole for 

Defendant and Appellant.

Rastegar Law Group, Farzad Rastegar and Thomas S. Campbell for 

Plaintiff and Respondent.

I.

INTRODUCTION

In this second appeal in the above-captioned matter, Defendant 

Statewide Fumigation San Diego County, Inc. (Statewide) appeals from an 
2

order denying a petition to compel arbitration. The trial court denied 

Statewide’s petition to compel arbitration on the ground that Statewide

waived any right it may have had to arbitrate this matter. We affirm.

II.

BACKGROUND

Delgado filed this putative class action against Statewide on May 27, 

2016, on behalf of himself and other similarly situated current and former 

employees of Statewide. In his complaint, Delgado alleged a variety of Labor 

Code violations against Statewide, including the failure to provide meal 

periods, to provide rest periods, to pay minimum and straight time wages, to 

pay overtime compensation, to pay wages in a timely manner upon 

termination of employment, and to provide accurate statements and maintain 

required records. The complaint also alleged a claim for unfair business 

practices under Business and Professions Code section 17200 et seq. (Section 

17200). Finally, Delgado brought a representative cause of action under the 

Private Attorneys General Act (PAGA), Labor Code section 2698 et seq., for 

all of the violations of the Labor Code alleged elsewhere in the complaint.

Statewide filed an answer on September 13, 2016.1 After Statewide 

filed its answer, the case proceeded to discovery, and a motion for class 

certification was anticipated. In a previous appeal in this matter, we 

summarized the early procedural history of the litigation as follows:

“The trial court held a Case Management Conference with 

the parties on October 28, 2016. At the Case Management 

Conference, the trial court scheduled a hearing on 

Delgado’s anticipated motion for class certification for July 

21, 2017.

1 The trial court subsequently struck Statewide’s Answer while the 

court’s order denying Delgado’s class certification motion was pending on 

appeal.
3

“On May 9, 2017, the parties filed a joint stipulation to 

continue the hearing on the anticipated motion for class 

certification. In the stipulation, the parties stated that 

they were seeking a six-month continuance for multiple 

reasons, including the fact that Statewide was ‘contend[ing] 

it is in a state of financial hardship and is incapable of 

paying a judgment on Plaintiff’s claims,’ that Statewide 

had ‘objected to the deposition [of the PMK that Delgado 

had noticed] and the Request for Production of Documents’ 

that Delgado had propounded, and that defense counsel 

‘believes it may have to withdraw as counsel, due to 

Defendant’s financial condition,’ such that ‘judicial economy 

and the resources of the parties will be best served if the 

[m]otion for [c]lass certification hearing and filing deadline 

are continued by approximately six month[s].’

“The trial court denied, without comment, the parties’

stipulated request to continue the hearing date for the 

anticipated motion for class certification.

“Later that same month, on May 30, Statewide filed a 

‘Joint Ex parte Application to Continue Motion for Class 

Certification Hearing.’ (Some capitalization omitted.) The 

parties jointly sought a six-month continuance of the 

anticipated hearing on the motion for class certification. In 

addition to the reasons that the parties had provided in the 

May 9 request, they stated that they were ‘exploring the 

possibility of settling the matter.’

“Upon the conclusion of the ex parte hearing, the trial court 

issued a minute order denying the parties’ joint application 

for a continuance, stating . . . , ‘The court is inclined to keep 

the previously scheduled dates in place. [¶] It is now left for 

plaintiff’s counsel to determine whether to proceed with the 

class claims.’

“On June 14, 2017, two weeks after the trial court issued 

its minute order denying the joint request for a continuance 

of the class certification hearing, Delgado filed an ex parte 

application to compel responses to the requests for 
4

production of documents that he had propounded on 

Statewide. In response to the ex parte application, the 

court scheduled a hearing on Delgado’s motion to compel 

for July 21, 2017, the date the court had originally set for 

the class certification hearing, and treated Delgado’s ex 

parte application papers as his moving papers with respect 

to the motion to compel. The court also continued the class 

certification hearing date to September 1, 2017.

“On July 11, 2017, after much back and forth with counsel 

for Statewide regarding scheduling the deposition of its 

PMK, Delgado returned to court with an ex parte 

application for an order to compel a PMK deposition. The 

following day, July 12, the court heard arguments from the 

attorneys for both parties, and thereafter scheduled a 

hearing on Delgado’s motion to compel the deposition of a 

PMK on July 21, 2017, the same date on which the motion 

to compel responses to the pending request for production 

of documents was set. The court also ordered that a Case 

Management Conference in the matter would be held on 

the same date as the motion for class certification—

September 1, 2017.

“On July 19, 2017, two days prior to the scheduled hearing 

on the motions to compel outstanding discovery, the trial 

court issued tentative rulings indicating its inclination to 

grant both motions to compel.

“The following day, July 20, counsel for Statewide 

submitted a Notice of Withdrawal to the court. The record 

does not demonstrate that Statewide retained other counsel 

to represent it in this matter in the trial court.

“On July 21, the trial court issued a minute order adopting 

its tentative rulings and granting Delgado’s motions to 

compel responses to the outstanding discovery requests. In 

doing so, the court ordered Statewide to produce its PMK 

for a deposition to be conducted on July 31, 2017, which 

was approximately a month before the date set for the 

hearing on the motion for class certification. The court did 

not set any date by which Statewide was to produce the 
5

documents that the court was ordering Statewide to 

produce pursuant to Delgado’s motion to compel.

“[Although the California Rules of Court required Delgado 

to file his motion for class certification by August 4, 2017, 

which was four days after the date of the deposition that 

the court had set,] Delgado did not file a formal motion for 

class certification by August 4, 2017. However, Delgado 

filed his Case Management Statement on August 18, 2017. 

In that document, in the portion of the form where the 

court asks the parties to indicate whether they have a 

request for any additional matters to be ‘considered or 

determined at the case management conference,’ Delgado 

indicated that he was requesting that the court continue 

the class certification hearing date due to Statewide’s 

failure to comply with the court’s orders that it produce its 

PMK for deposition and that it produce the documents that 

Delgado had requested. Delgado also indicated in his Case 

Management Statement, in the portion of the form that 

asks parties to indicate whether they intend to file any 

other motions before trial, that he intended to file a motion 

to strike Statewide’s answer to the complaint, due to 

Statewide’s failure to provide the discovery that it had been 

ordered to produce, and that he also planned to file a 

motion to continue the hearing on the motion for class 

certification.

“Six days later, on August 24, [2017,] the court issued a 

tentative ruling with respect to the class certification 

hearing that was scheduled for September 1. In the 

tentative ruling, the court indicated its intention to deny 

Delgado’s request in his Case Management Statement to 

continue the class certification hearing. The court further 

indicated its intention to deny any motion for class 

certification (even though Delgado had not yet filed his 

motion for class certification), and to strike Delgado’s class 

allegations from the complaint. After stating its intention 

to deny class certification and to strike the class 

allegations, the court added, ‘The defendant is apparently 

insolvent and is unrepresented, and this presents 

tremendous management issues were the court to certify 
6

the case notwithstanding plaintiff’s failure to advance 

evidence supporting certification.’ The court then indicated 

that it would order Delgado to submit an ex parte 

application for an order striking Statewide’s answer to the 

complaint, and would require Delgado to proceed via 

default prove-up ‘with respect to his individual claims.’ 

The court warned that if Delgado failed to proceed as 

ordered, the court would ‘simply dismiss the case.’

“Seven days later (and one day prior to the scheduled date 

for both the Case Management Conference and the hearing 

on the motion for class certification), Delgado submitted a 

motion to strike Statewide’s answer and a corresponding 

motion to continue the class certification hearing. In his 

motion, Delgado explained that Statewide had failed to 

replace its counsel after its original counsel had withdrawn, 

and that Statewide was ‘not cooperating with Plaintiff in 

the discovery process.’ Delgado listed the multiple times 

that he had noticed a deposition for a PMK and indicated 

that despite the trial court’s order that this deposition take 

place, Statewide had failed to produce anyone for 

deposition on the appointed date, and had also failed to 

respond in any way to Delgado’s request for documents. 

Delgado indicated that Statewide’s failure to replace its 

counsel precluded Delgado’s attorneys from being able to 

communicate with Statewide, and was preventing Delgado 

from being able to ‘file supporting documents to 

successfully move for class certification at this time.’

“The following day, September 1, 2017, the trial court held 

a joint case management conference and hearing regarding 

class certification. After hearing argument from Delgado’s 

counsel, the court affirmed its tentative ruling denying 

Delgado’s request to continue the hearing on the motion for 

class certification and also denying on the merits any 

motion for class certification. The court also issued an 

order to show cause why the case should not be dismissed, 

and set a hearing on the order to show cause for November 

3, 2017.
7

“On October 5, 2017, Delgado filed a notice of appeal from 

the court’s order denying class certification . . . .” (Delgado 

v. Statewide Fumigation San Diego County, Inc. (Mar. 15, 

2019, D072966) [nonpub. opn.] [2019 Cal.App.Unpub. Lexis 

1555, *5–12] (Delgado I), italics omitted.)

At some point, Statewide hired new counsel. While the appeal from the 

denial of class certification was pending, that counsel filed a new answer, 

given that the trial court had stricken the original answer. In the new 

answer, Statewide asserted an affirmative defense that Delgado’s claims 

were subject to arbitration pursuant to an agreement between the parties.

Delgado’s appeal of the trial court’s order denying class certification 

was pending before this court from October 2017 until March 2019. 

Statewide’s counsel represented Statewide in that appeal.

On March 5, 2019, this court issued our opinion in Delgado I, in which 

we reversed the trial court’s denial of the motion for class certification and 

directed the trial court “to permit Delgado sufficient time to attempt to obtain 

the discovery that the court previously ordered Statewide to produce and to 

file his papers in support of class certification.” (Delgado I., supra, 2019 

Cal.App.Unpub. Lexis 1555 at p. *25.) The remittitur issued on June 26, 

2019.

On remand, the trial court set a Case Management Conference for 

August 16, 2019. In the Case Management Statement that Statewide filed 

for the August 2019 Case Management Conference, Statewide indicated that 

it was requesting “a jury trial”; Statewide did not mark any of the boxes 

related to arbitration or otherwise indicate that Delgado’s claims were 

subject to arbitration.2

2 The only other Case Management Statement that Statewide filed in the 

trial court that is included in the record on appeal similarly contains no 
8

At the August 2019, hearing, the trial court set June 5, 2020 as the new 

date for Delgado’s class certification hearing.

As the trial court noted in the order that Statewide challenges in this 

appeal, on March 17, 2020, the Presiding Judge of the San Diego Superior 

Court signed the first in a series of administrative orders closing the court for

all but emergency matters due to the COVID-19 pandemic. Both a May 15, 

2020 civil motion hearing date set by Statewide and the June 5, 2020 hearing 

date for Delgado’s class certification were vacated because of the court’s 

closure. The trial court re-opened on May 26, 2020. More than a month 

later, the parties appeared before the court for a status conference, at which 

time the court rescheduled the hearings for Statewide’s motion to compel 

arbitration and Delgado’s motion for class certification.

The trial court noted that during the time that the court was closed, the 

parties exchanged moving and opposition papers with respect to Statewide’s 

motion to compel arbitration. The court deemed these motion and opposition 

papers filed as of May 26, 2020, the day the trial court reopened.

The trial court heard Statewide’s motion to compel arbitration on 

August 28, 2020. After reviewing the parties’ briefing and hearing oral 

argument on the matter, the trial court denied the motion to compel 

arbitration on the ground that Statewide had waived its right to compel 

arbitration of this matter.

In finding that Statewide had waived its right to compel arbitration, 

the trial court noted that Statewide “knew about the arbitration provision” in 

the parties’ agreement from the outset, given that Statewide asserted the 

existence of the arbitration provision and its right to arbitrate pursuant to 

indication by Statewide of its intention to move to compel arbitration or that 

it believed that Delgado’s claims should be determined in an arbitral forum.
9

that provision in an affirmative defense “in the now-stricken answer it filed 

nearly four years ago.” The court noted that Statewide “reiterate[d] the same 

asserted right to compel arbitration” in its 2017 answer to the complaint, as 

well, but did not seek to enforce that term of the parties’ agreement “until, at 

the earliest, mid-March 2020,” and that Statewide failed to offer the court 

“any explanation for its delay.” Based on this delay, the court determined 

that the petition to compel arbitration “was not brought within a reasonable 

time,” citing Burton v. Cruise (2010) 190 Cal.App.4th 939, 945, in which the 

court noted that the Supreme Court has expressly observed that “ ‘[a] party’s 

unreasonable delay in demanding or seeking arbitration, in and of itself, may 

constitute a waiver of a right to arbitrate.’ ”

The trial court also found that Statewide had not only unreasonably

delayed in asserting its right to arbitrate Delgado’s claims, but that it had 

also taken actions inconsistent with an intent to assert its right to arbitrate 

by participating in discovery negotiations, objecting to discovery requests on 

the merits, and generally participating in the litigation over a period of 

several years. Finally, the trial court found that Delgado had suffered 

prejudice as a result of Statewide’s conduct in waiting so long to move to 

compel arbitration and in acting in a manner inconsistent with its right to 

arbitrate during that time period.

Statewide filed a timely notice of appeal from the trial court’s order.

III.

DISCUSSION

Statewide contends that there is insufficient evidence to support the 

trial court’s finding that it waived its right to compel arbitration. We 

disagree.
10

Code of Civil Procedure section 1281.2, subdivision (a) provides: “On 

petition of a party to an arbitration agreement alleging the existence of a 

written agreement to arbitrate a controversy and that a party to the 

agreement refuses to arbitrate that controversy, the court shall order the 

petitioner and the respondent to arbitrate the controversy if it determines 

that an agreement to arbitrate the controversy exists, unless it determines 

that: [¶] (a) The right to compel arbitration has been waived by the 

petitioner . . . .” (Italics added.)3

The determination that a party has waived its right to compel 

arbitration is a question of fact, and this determination is reviewed for 

substantial evidence. (St. Agnes Medical Center v. PacifiCare of California

(2003) 31 Cal.4th 1187, 1196 (St. Agnes).) There is no specific test for 

waiving the right to compel arbitration. However, “ ‘ “[i]n the past, California 

courts have found a waiver of the right to demand arbitration in a variety of 

contexts, ranging from situations in which the party seeking to compel 

arbitration has previously taken steps inconsistent with an intent to invoke 

arbitration [citations] to instances in which the petitioning party has 

unreasonably delayed in undertaking the procedure. [Citations.] The 

decisions likewise hold that the ‘bad faith’ or ‘willful misconduct’ of a party 

may constitute a waiver and thus justify a refusal to compel arbitration. 

[Citations.]” ’ [Citations.]” (Ibid.)

Given the varying contexts in which waiver of arbitration may be 

found, the St. Agnes court noted that there are a number of relevant factors 

that a trial court may consider in deciding whether a party has waived its 

3 Given this statutory framework, the question of waiver of the right to 

compel arbitration is one for the trial court, not the arbitrator, to decide. (See 

Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 982.)
11

right to compel arbitrate: “ ‘ “(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 the 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.)

A waiver of arbitration is not to be lightly inferred, and a party seeking

to establish waiver bears a heavy burden of proof. (St. Agnes, supra, 

31 Cal.4th at p. 1195.) However, once a trial court determines that a party 

has met that burden of proof and established waiver of the right to 

arbitration, an appellate court reviews the trial court’s ruling on the waiver 

of the right to arbitrate only for substantial evidence to support that 

determination (See Burton v. Cruise (2010) 190 Cal.App.4th 939, 945–946.)

In this case, the trial court stated that it “ha[d] no difficulty concluding 

[that the] defendant waived its right to compel arbitration . . . .” After 

examining the procedural record before it, the court determined that 

Statewide was aware of the arbitration provision from the beginning of the 

litigation, yet waited approximately four years before indicating any 

intention to move to compel arbitration.4 The court found this to be a lengthy 

4 Although some portion of this time involved the closure of court 

services for matters other than emergency matters, that approximately two-
12

delay weighing in favor of a finding of waiver. (See St. Agnes, supra, 

31 Cal.4th at p. 1196 [a court may consider whether a party “ ‘ “delayed for a 

long period before seeking a stay” ’ ” in deciding whether party has waived 

arbitration].)

Beyond the extreme delay that occurred in this case, as the trial court 

noted, Statewide engaged in any number of actions that were inconsistent 

with the right to arbitrate. (See St. Agnes, supra, 31 Cal.4th at p. 1196 [the 

first factor among many a court may consider when weighing waiver of right 

to arbitrate is whether party has engaged in actions inconsistent with the 

right to arbitrate].) For example, Statewide took part in negotiating, 

drafting, and entering into a stipulated protective order regarding “ ‘the 

exchange of documents and information’ ” in the litigation. Further, the 

record discloses that, in response to Delgado’s document demands and notice 

of a deposition of Statewide’s designated person most knowledgeable, 

Statewide filed objections and fought the discovery, all without ever 

suggesting that the matter should be arbitrated and that the judicial 

discovery process should be halted for this reason. The manner in which 

Statewide responded to Delgado’s discovery requests therefore supports the 

trial court’s finding that Statewide engaged in acts that were inconsistent 

with its right to arbitrate. (See Guess?, Inc. v. Superior Court (2000) 

79 Cal.App.4th 553, 558 [defendant who “fully participated in the discovery 

process” by “objecting to [plaintiff’s] interrogatories and demands for 

production on a variety of grounds, but never once suggesting that discovery 

should be barred because this dispute had to be arbitrated” had engaged in 

conduct that was “wholly inconsistent with its present desire to arbitrate”].)

month period was relatively brief when compared with the time that this 

matter has been pending.
13

A review of the record also demonstrates that Statewide participated in 

the litigation in other ways, such as by appearing for hearings, filing 

documents, and defending the trial court’s denial of class certification in the 

appeal taken from that order, all without suggesting that the matter should 

be arbitrated rather than litigated in court. As the trial court noted, 

Statewide did not indicate in either of its case management statements that 

it was “willing to participate in” binding private arbitration. (See Adolph v. 

Coastal Auto Sales, Inc. (2010) 184 Cal.App.4th 1143, 1451 [among conduct 

by the defendant that was considered inconsistent with an intent to arbitrate 

was failure to “ ‘mark or assert arbitration in its case management 

statement’ ”].)

Finally, the record provides ample evidence to support the trial court’s 

finding that Statewide’s actions during the litigation that were inconsistent 

with its claimed intent to arbitrate had the effect of causing real prejudice to 

Delgado. (See St. Agnes, supra, 31 Cal.4th at p. 1196 [court may consider 

whether a party’s delay has “ ‘ “ ‘affected, misled, or prejudiced’ the opposing 

party” ’ ”].) As the trial court noted, Statewide’s conduct has deprived 

Delgado of the opportunity to obtain a prompt resolution of his claims. 

Rather than move to compel arbitration at an earlier point in time, Statewide 

repeatedly defended against Delgado’s discovery and other motions on their 

merits. As a result, Delgado’s attorneys have expended more than 150 hours 

on the case, and have spent $7,753.13 up until the time of this appeal.5

5 As the trial court noted, at one point, Statewide simply stopped paying 

its attorneys, causing that law firm to withdraw from representing 

Statewide. The court understood this to be “part of a strategic ploy to obtain 

delay.” Based on this record, we cannot say that we disagree with the trial 

court’s assessment.
14

We conclude that the record fully supports the trial court’s finding that 

Statewide has waived its right to compel arbitration.

IV.

DISPOSITION

The trial court’s order denying Statewide’s motion to compel arbitration 

is affirmed. Delgado is entitled to his costs on appeal.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DATO, J.