Filed 5/10/22; on rehearing (prior 4/14/22 nonpub opinion vacated)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

PETER QUACH,

Plaintiff and Respondent,

v.

CALIFORNIA COMMERCE 

CLUB, INC.,

Defendant and Appellant.

 B310458

 (Los Angeles County

 Super. Ct. No. 19STCV42445)

APPEAL from an order of the Superior Court of 

Los Angeles County, Michael L. Stern, Judge. Reversed and 

remanded with directions.

* Pursuant to California Rules of Court, rules 8.1105(b)

and 8.1110, this opinion is certified for publication, with the 

exception of part B of the Discussion.
2

Sanders Roberts, Reginald Roberts, Jr., Eric S. Mintz, 

Ayan K. Jacobs; Benedon & Serlin, Wendy S. Albers and Gerald 

M. Serlin for Defendant and Appellant.

Law Offices of Dilip Vithani, Dilip Vithlani; Law Office of 

Jonathan J. Moon and Jonathan J. Moon for Plaintiff and 

Respondent.

_______________________

California Commerce Club, Inc. (Commerce Club) appeals 

from an order denying its motion to compel arbitration of a 

dispute with its former employee, Peter Quach, respondent here.

Quach argued below that Commerce Club had waived its right to 

arbitrate by waiting 13 months after the filing of the lawsuit to 

move to compel arbitration, and by engaging in extensive 

discovery during that period. Quach claimed the delay prejudiced 

him by forcing him to expend time and money preparing for 

litigation. The trial court agreed, finding Commerce Club had 

waived the right to arbitrate by propounding a “large amount of 

written discovery,” taking Quach’s deposition, and expending 

“significant time meeting and conferring.” 

We disagree with the trial court. Our Supreme Court has 

made clear that participation in litigation alone cannot support a 

finding of waiver, and fees and costs incurred in litigation alone

will not establish prejudice on the part of the party resisting 

arbitration. (St. Agnes Medical Center v. PacifiCare of California

(2003) 31 Cal.4th 1187, 1203 (St. Agnes Medical Center).) This 

rule has particular force here, where Quach admitted he incurred 

no costs in litigation that he would not otherwise have expended 

had the case gone to arbitration earlier. 
3

Although Quach argues later Supreme Court authority has 

approved of Court of Appeal cases diluting the rule from 

St. Agnes Medical Center, those cases nonetheless involved a 

showing that a party’s unreasonable delay in asserting the right 

to arbitrate prejudiced the party resisting arbitration. That 

showing is absent in the instant case.

In the unpublished portion of the opinion, we reject Quach’s 

alternative argument that the arbitration agreement is 

unconscionable.

Accordingly, we reverse and direct the trial court to grant 

Commerce Club’s motion to compel arbitration.

FACTUAL AND PROCEDURAL BACKGROUND1

Commerce Club operates a hotel and casino in Commerce, 

California. In 1989, it hired Quach to supervise activity on the 

gambling floor of the casino. 

In 2015, Commerce Club required all its employees to sign 

a new arbitration policy as a condition of continued employment. 

The agreement required employees to submit any covered dispute 

to an informal resolution process within the company, and, if 

necessary, to resolve the dispute through arbitration. The 

agreement covered “all matters directly or indirectly related to 

[Quach’s] recruitment, employment, or termination of 

employment.” Quach signed and returned his copy of the 

agreement on February 18, 2015. 

1 Our factual recitation is presented in the light most 

favorable to the trial court’s ruling, including assuming the trial 

court found credible the factual assertions in Quach’s opposition 

to Commerce Club’s motion to compel arbitration. 
4

On November 16, 2018, Commerce Club terminated 

Quach’s employment after a customer paid the casino with $100 

in counterfeit bills during Quach’s shift. 

On November 22, 2019, after receiving a right-to-sue letter 

from the Department of Fair Employment & Housing, Quach 

filed a lawsuit against Commerce Club. Among other things, the 

lawsuit alleged causes of action for wrongful termination, age 

discrimination, retaliation, and harassment. 

On January 7, 2020, Commerce Club filed its answer to the 

complaint. Although it asserted Quach should be compelled to 

arbitrate “[t]o the extent that [he] has agreed to arbitrate any or 

all of the purported claims asserted in the [c]omplaint,” 

Commerce Club did not move to compel arbitration at that time. 

It propounded an initial set of discovery requests, consisting of 

form interrogatories, special interrogatories, requests for 

admission, and requests for production of documents. It posted 

jury fees on March 3, 2020, and sent responses to Quach’s 

discovery requests on March 6, 2020. 

On March 4, 2020, the Governor declared a statewide state 

of emergency due to the global COVID-19 pandemic. On 

March 23, 2020, the Chief Justice of the California Supreme 

Court issued the first in a series of emergency orders delaying 

lower court proceedings for the foreseeable future.2

On March 25, 2020, Commerce Club propounded a second 

set of special interrogatories on Quach. It also engaged in a meet 

and confer process with Quach to address concerns Quach raised 

with Commerce Club’s discovery responses. Among other things, 

2 We take judicial notice of these orders sua sponte. 

(Evid. Code, § 452, subd. (c).)
5

Quach informed Commerce Club in May 2020 that Commerce 

Club had not provided verifications for any of its discovery 

responses. According to a declaration provided by Quach’s 

counsel, “the meet and confer process was put on hold while 

[Quach] waited for [Commerce Club] to provide verifications.” 

On June 23, 2020, Commerce Club took Quach’s deposition

via Zoom in a full-day session. 

On September 16, 2020, the trial court on its own motion 

continued the trial date, previously set for December 7, 2020, to 

July 19, 2021, with the final status conference continued from 

November 19, 2020, to July 1, 2021. 

Also on September 16, 2020, Commerce Club served the 

verifications Quach had requested in May 2020. 

On October 9, 2020, Commerce Club participated in 

another meet and confer process with Quach, ultimately agreeing 

to provide supplemental responses to Quach’s discovery requests. 

On October 29, 2020, Commerce Club informed Quach’s 

counsel that it had located Quach’s complete arbitration 

agreement, and it asked for Quach’s stipulation to stay his 

lawsuit and resolve the dispute through arbitration. Quach 

refused, asserting that Commerce Club had waived its right to 

arbitrate. 

On December 23, 2020, 13 months after Quach filed his 

lawsuit, Commerce Club filed a motion to compel arbitration. 

The motion, citing a declaration from Commerce Club’s executive 

director of human resources, contended that Commerce Club 

initially was unable to locate a complete copy of the arbitration 

agreement signed by Quach, and only discovered it when 

reviewing Quach’s employment file in responding to Quach’s 

requests for production of documents. Commerce Club argued 
6

Quach suffered no prejudice from the delay, because the parties 

had engaged in only “minimal discovery” due to Commerce Club 

closing operations during the COVID-19 pandemic, “which has 

impacted access to information and witnesses.” 

In opposition, Quach argued that Commerce Club had 

waived the right to arbitrate. He claimed Commerce Club was 

aware it possessed a copy of the arbitration agreement from the 

beginning, because it had provided him a copy of his signed 

signature page from the agreement before the lawsuit was filed. 

He asserted that Commerce Club’s delay in seeking to arbitrate

was prejudicial because he had spent time and money preparing 

for litigation. Alternatively, he argued the agreement was 

unconscionable and unenforceable. 

On January 22, 2021, the trial court denied Commerce 

Club’s motion, finding that Commerce Club had waived its right 

to arbitration. The court reasoned that Commerce Club had 

engaged in a “litany of pretrial exchanges and actions,” despite 

knowing of its right to compel arbitration and its company policy 

to secure signed arbitration agreements from each employee. 

The trial court also found that Commerce Club had presented a 

“large amount of written discovery,” “tak[en] [Quach’s] 

deposition,” and spent “significant time meeting and conferring 

over many months,” and concluded that this evidence showed “a 

position inconsistent to arbitrate and resulting prejudice to 

[Quach].” The trial court did not reach the issue of 

unconscionability.

Commerce Club timely appealed. 
7

DISCUSSION

A. Commerce Club Did Not Waive the Right To 

Arbitration

We disagree with the trial court’s conclusion that 

Commerce Club, through its conduct, waived the right to demand 

arbitration.

1. Applicable law

“California law strongly favors arbitration” “ ‘ “as a speedy 

and relatively inexpensive means of dispute resolution.” ’ 

[Citation.]” (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125 

(OTO).) Code of Civil Procedure section 1281.2, subdivision (a), 

however, provides grounds for denying a petition to compel 

arbitration, including when “[t]he right to compel arbitration has 

been waived by the petitioner.”

“ . . . ‘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.] . . . [Citation.]’ [Citation.]” (Iskanian v. CLS 

Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 374–375 

(Iskanian).) “In light of the policy in favor of arbitration, ‘waivers 

are not to be lightly inferred and the party seeking to establish a 

waiver bears a heavy burden of proof.’ [Citation.]” (Id. at 

p. 375.)

Waiver of the right to arbitrate is assessed through a 

number of factors, including: “ ‘ “ ‘(1) whether the party’s actions 

are inconsistent with the right to arbitrate; (2) whether “the 
8

litigation machinery has been substantially invoked” and the 

parties “were well into preparation of a lawsuit” before the party

notified the opposing party of an intent to arbitrate; (3) whether a 

party either requested arbitration enforcement close to the 

trial date or delayed for a long period before seeking a stay; 

(4) whether a defendant seeking arbitration filed a counterclaim 

without asking for a stay of the proceedings; (5) “whether 

important intervening steps [e.g., taking advantage of judicial 

discovery procedures not available in arbitration] had taken 

place”; and (6) whether the delay “affected, misled, or prejudiced” 

the opposing party.’ ” ’ [Citation.]” (Iskanian, supra, 59 Cal.4th

at p. 375, quoting St. Agnes Medical Center, supra, 31 Cal.4th at 

p. 1196.) 

“No one of these factors predominates and each case must 

be examined in context.” (Lewis v. Fletcher Jones Motor Cars, 

Inc. (2012) 205 Cal.App.4th 436, 444; see also St. Agnes Medical 

Center, supra, 31 Cal.4th at p. 1195 [“no single test delineates the 

nature of the conduct that will constitute a waiver of 

arbitration”].) The question of prejudice, however, “is critical in 

waiver determinations.” (St. Agnes Medical Center, at p. 1203; 

accord, Iskanian, at pp. 376–377; see Hoover v. American Income 

Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1205 (Hoover) [“The 

presence or absence of prejudice from the litigation is a 

determinative issue” in waiver analysis].)

“ ‘The question of waiver is generally a question of fact, and 

the trial court’s finding of waiver is binding on us if it is 

supported by substantial evidence. [Citation.] “We infer all 

necessary findings supported by substantial evidence [citations] 

and ‘construe any reasonable inference in the manner most 

favorable to the judgment, resolving all ambiguities to support an 
9

affirmance.’ ” ’ ” (Garcia v. Haralambos Beverage Co. (2021) 

59 Cal.App.5th 534, 541–542.) “Where the relevant facts are 

undisputed and only one inference may reasonably be drawn 

from the facts, the waiver issue may be reviewed de novo.” 

(Fleming Distribution Co. v. Younan (2020) 49 Cal.App.5th 73, 81

(Fleming).)

2. Analysis

Even deferring to the trial court’s factual findings under a 

substantial evidence standard of review, we conclude Quach’s 

showing of prejudice was inadequate as a matter of law, and he 

therefore failed to meet his “ ‘heavy burden’ ” below. (Iskanian, 

supra, 59 Cal.4th at p. 375.)

In his opposition below, Quach contended Commerce Club 

had “acted inconsistently with an intent to arbitrate” “by 

propounding and responding to discovery, engaging in the meet 

and confer process regarding those responses, posting jury fees, 

and taking [Quach’s] deposition.” He claimed he had “been 

prejudiced by expending time and money on the litigation in this 

case.” The trial court appears to have accepted this argument, 

stating that Commerce Club’s participation in discovery “shows 

both a position inconsistent to arbitrate and resulting prejudice 

to [Quach].” 

Quach’s showing was insufficient as a matter of law to 

establish waiver. In St. Agnes, our Supreme Court held that 

“ ‘ “[w]aiver does not occur by mere participation in litigation” ’ if 

there has been no judicial litigation of the merits of arbitrable 

issues . . . . [Citation.]” (St. Agnes Medical Center, supra, 

31 Cal.4th at p. 1203.) In the instant case, there has “been no 

judicial litigation of the merits of arbitrable issues,” and therefore 

no waiver on that basis. (Ibid.) 
10

Further, although “ ‘ “ ‘waiver could occur prior to a 

judgment on the merits if prejudice could be demonstrated,’ ” ’ ”

(St. Agnes Medical Center, supra, 31 Cal.4th at p. 1203, italics 

added), the Supreme Court has made clear that litigation 

expenses alone cannot support a claim of prejudice: “Because 

merely participating in litigation, by itself, does not result in a 

waiver, courts will not find prejudice where the party opposing 

arbitration shows only that it incurred court costs and legal 

expenses.” (Ibid.) 

“Rather,” continued the court, “courts assess prejudice with 

the recognition that California’s arbitration statutes reflect ‘ “a 

strong public policy in favor of arbitration as a speedy and 

relatively inexpensive means of dispute resolution” ’ and are 

intended ‘ “to encourage persons who wish to avoid delays 

incident to a civil action to obtain an adjustment of their 

differences by a tribunal of their own choosing.” ’ [Citation.] 

Prejudice typically is found only where the petitioning party’s 

conduct has substantially undermined this important public 

policy or substantially impaired the other side’s ability to take 

advantage of the benefits and efficiencies of arbitration.” 

(St. Agnes Medical Center, supra, 31 Cal.4th at p. 1204.) “For 

example, courts have found prejudice where the petitioning party 

used the judicial discovery processes to gain information about 

the other side’s case that could not have been gained in 

arbitration [citations]; where a party unduly delayed and waited 

until the eve of trial to seek arbitration [citation]; or where the 

lengthy nature of the delays associated with the petitioning 

party’s attempts to litigate resulted in lost evidence [citation].” 

(Ibid.) 
11

Quach has not met St. Agnes’s test. His showing below 

indicated nothing more than the parties participated in litigation. 

That participation, moreover, largely was limited to partydirected discovery, with no trial court involvement, and certainly 

no determinations by the court on the merits. Quach has not 

shown any prejudice apart from the expenditure of time and 

money on litigation. He does not, for example, claim Commerce 

Club has gained information or conducted discovery it would not 

have been able to obtain in arbitration or that the delay led to 

lost evidence. Commerce Club moved to compel arbitration 

almost seven months before the then-operative trial date, not on 

the “eve of trial.”3 (See St. Agnes Medical Center, supra, 

31 Cal.4th at p. 1204.)

Quach argues that cases cited in the Supreme Court’s later 

decision in Iskanian establish that litigation expenses can 

support a finding of prejudice if they are the result of a party’s 

“unreasonable” delay in asserting the right to arbitrate. Iskanian

stated, “Some courts have interpreted St. Agnes Medical Center

to allow consideration of the expenditure of time and money in 

determining prejudice when the delay is unreasonable.” 

(Iskanian, supra, 59 Cal.4th at p. 377.) As an example, the court 

quoted Burton v. Cruise (2010) 190 Cal.App.4th 939 (Burton),

which held 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.” 

3 As previously noted, the trial court had previously 

continued the initial trial date so that when Commerce Club 

moved to compel arbitration in December 2020, the trial date was 

set for July 2021.
12

[Citation.] Arbitration loses much, if not all, of its value if undue 

time and money is lost in the litigation process preceding a lastminute petition to compel.’ [Citation.]” (Iskanian, at p. 377, 

quoting Burton, at p. 948.) 

Iskanian then cited to “[o]ther courts [that] have likewise 

found that unjustified delay, combined with substantial 

expenditure of time and money, deprived the parties of the 

benefits of arbitration and was sufficiently prejudicial to support 

a finding of waiver to arbitrate.” (Iskanian, supra, 59 Cal.4th at 

p. 377, citing Hoover, supra, 206 Cal.App.4th at p. 1205;

Roberts v. El Cajon Motors, Inc. (2011) 200 Cal.App.4th 832, 845–

846 (Roberts); Adolph v. Coastal Auto Sales, Inc. (2010) 

184 Cal.App.4th 1443, 1451 (Adolph); Guess?, Inc. v. Superior 

Court (2000) 79 Cal.App.4th 553, 558 (Guess?, Inc.); Sobremonte 

v. Superior Court (1998) 61 Cal.App.4th 980, 996 (Sobremonte).) 

The court in Iskanian found these authorities inapplicable, 

however, because “[i]n each of them, substantial expense and 

delay were caused by the unreasonable or unjustified conduct of 

the party seeking arbitration.” (Iskanian, supra, 59 Cal.4th at p. 

377.) In Iskanian, in contrast, the court concluded the delay in 

seeking arbitration was reasonable and excusable given the 

fluctuating state of the law at the time as to the arbitrability of 

the particular claims at issue. (Id. at pp. 376–378.)

In light of Iskanian, Quach argues that the proper test for 

waiver is whether Commerce Club’s delay in asserting its right to 

arbitration was “reasonable.” (See Bower v. Inter-Con Security

Systems, Inc. (2014) 232 Cal.App.4th 1035, 1048 (Bower) [“The 

distinction in the case law turns on whether any delay in seeking 
13

arbitration is reasonable.”].)4 Quach contends Commerce Club’s 

delay was not reasonable, because the evidence showed 

Commerce Club knew of the arbitration agreement even before 

the lawsuit was filed, yet waited more than a year before moving 

to compel arbitration. “By then,” he contends, “all benefits of a 

speedy resolution [Quach] could have obtained through 

arbitration had been lost.” 

An examination of the cases cited in Iskanian, however, 

reveals that the showing of prejudice and/or undue delay in those 

cases was qualitatively different from Quach’s showing here.

In Burton, the plaintiff moved to compel arbitration so close 

to the trial date that she had to seek ex parte relief to shorten 

time to hear the motion. The appellate court concluded that

granting the motion would have actually lengthened the 

proceedings by requiring the parties to take extra time to select 

the arbitrators: “ ‘Starting anew in an arbitral forum at that late 

date would delay resolution of the dispute, not advance it.’ 

[Citation.]” (Burton, supra, 190 Cal.App.4th at p. 949.) The 

defendant was further prejudiced because, on the assumption he 

was preparing for a jury trial, he already had selected and 

prepared experts specifically suited for testifying to a jury rather 

than a more technically adept arbitration panel. (Id. at pp. 949–

950.)

In Hoover, the evidence showed that the defendant, the

party seeking to compel arbitration, had delayed asserting its 

4 It is not clear to us that Iskanian, in citing Burton and 

the other Court of Appeal decisions, was endorsing them as 

opposed merely to distinguishing them. We need not decide that 

question, because as we explain, those cases are distinguishable 

from and inapplicable to the instant case as well.
14

right to arbitrate while it “availed itself of discovery mechanisms 

like depositions not available in arbitration” and “solicited 

putative class members, in an effort to reduce the size of the

class.” (Hoover, supra, 206 Cal.App.4th at p. 1205.) The 

defendant also had engaged in extensive litigation requiring 

court involvement, including two attempts to remove the case to 

federal court, a demurrer, discovery disputes, and opposing a 

temporary restraining order. (Id. at pp. 1200, 1205.)

In Roberts, the defendant’s delay in asserting the right to 

arbitration led to the plaintiff expending substantial time and 

money conducting class discovery, much or all of which “would be 

rendered useless” if the matter proceeded to arbitration given a 

class action waiver in the arbitration agreement. (Roberts, supra, 

200 Cal.App.4th at p. 845.) The defendant also used the delay 

between filing its answer and moving to compel arbitration to 

seek out putative class members and attempt to settle with them, 

an action the reviewing court held was inconsistent with an 

intent to arbitrate and prejudicial to the plaintiff. (Id. at p. 847.)5

In Adolph, the court affirmed the trial court’s finding that 

the defendants intended to proceed with the court action up until 

the point the trial court overruled their second demurrer, at 

which point they suddenly produced the previously undisclosed 

arbitration agreement and moved to compel arbitration. (Adolph, 

supra, 184 Cal.App.4th at p. 1451.) The Court of Appeal stated it 

was “loathe to condone conduct by which a defendant repeatedly 

5 The dissent states that Hoover and Roberts, as class 

action cases, “have little relevance to someone in Quach’s 

position.” (Dis. opn. post, at p. 6.) We agree. We address them

only because Quach relies on Iskanian’s purported approval of 

those cases and others to support his position.
15

uses the court proceedings for its own purposes (challenging the 

pleadings with demurrers) while steadfastly remaining 

uncooperative with a plaintiff who wishes to use the court 

proceedings for its purposes (taking depositions) . . . .” (Id. at 

p. 1452.) The court held the evidence supported a finding of bad 

faith on the part of defendants. (Ibid.) As in Burton, the court 

also found that given the late date at which the defendants 

moved to compel arbitration, switching to the arbitral forum 

would further delay the proceedings. (Adolph, at p. 1452.)

In Guess?, Inc., the court concluded that Guess?, Inc., the

party resisting arbitration, had suffered prejudice because of the 

“substantial expense of pretrial discovery and motions that would 

have been avoided had Kirkland [the party moving to compel 

arbitration] timely and successfully asserted a right to arbitrate. 

Through its use of the discovery process, Guess has disclosed at 

least some of its trial tactics to Kirkland, certainly more so than 

would have been required in the arbitral arena. ” (Guess?, Inc., 

supra, 79 Cal.App.4th at p. 558.) 

In Sobremonte, akin to Roberts and Guess?, Inc., the parties 

resisting arbitration spent time and money on discovery and 

proceedings that would have not occurred in arbitration. 

(Sobremonte, supra, 61 Cal.App.4th at p. 995.) The party seeking 

to compel arbitration, moreover, had taken “ ‘ “advantage of 

judicial discovery procedures not available in arbitration.” ’ 

[Citation.]” (Ibid.) That party also engaged in substantial 

litigation requiring judicial involvement, including filing 

demurrers, resisting motions to compel discovery, seeking 

protective orders, and attempting to transfer the matter to 

municipal court. (Id. at pp. 995–996.)
16

Quach has made no showing comparable to those in the 

cases described above. Perhaps most crucially, he provided no 

evidence or argument, other than conclusory statements, that he 

had spent time or money engaging in proceedings or preparation

he would have avoided had Commerce Club asserted its right to 

arbitrate sooner. Indeed, at oral argument Quach’s counsel 

conceded Quach had incurred no such expenses. Nor has Quach 

made any effort to show that moving to an arbitral forum at this 

point will delay proceedings, as the late-filed motions to compel 

arbitration did in Burton and Adolph. 

The record also is bereft of evidence that Commerce Club 

engaged in bad faith abuse of judicial processes akin to the 

defendants in Adolph, who used judicial mechanisms such as 

demurrers to their advantage while resisting the plaintiff’s use of 

other judicial mechanisms. Instead, the parties engaged only in 

party-directed discovery, and had yet to involve the trial court or 

invoke its powers through demurrers, motion practice, or 

otherwise. 

Quach argues that Commerce Club was recalcitrant in 

responding to his discovery requests while aggressively pursuing 

its own discovery, suggesting “it was more interested in delay 

than expeditious resolution through arbitration.” Quach has 

made no effort to show, however, that this would have been 

avoided had the parties been in an arbitral forum. That is, 

Quach makes no effort to show that the arbitrator or the 

applicable arbitration rules would have altered the discovery the 

parties sought or prevented Commerce Club’s purported delay 

tactics.

Quach cites additional cases postdating Iskanian, but they 

are similarly unavailing. In Bower, the court affirmed a finding 
17

of waiver when the defendant “substantially impaired [the 

plaintiff’s] ability to obtain the cost savings and other benefits 

associated with arbitration” by “requir[ing] [the plaintiff] to 

respond to discovery that would have been unavailable in 

arbitration. It was not just that [the plaintiff] incurred legal fees 

and costs; those expenses were associated with work that would 

be useless in arbitration.” (Bower, supra, 232 Cal.App.4th at 

p. 1046.) 

In Fleming, the employer did not move to compel 

arbitration until after its former employee had prevailed on a 

claim of unpaid wages and commissions before the Labor 

Commissioner. (Fleming, supra, 49 Cal.App.5th at p. 78.) The 

Court of Appeal affirmed the trial court’s finding of waiver, 

stating the employee “suffered the prejudice of waiting several 

years to collect wages that at least one tribunal has determined 

he was owed, when the matter could have been arbitrated . . . if 

[the employer] had sought to compel arbitration” earlier. (Id. at 

p. 83.)

In contrast, again, Quach has made no showing that he has 

spent any time or money on litigation that he would not have 

spent had Commerce Club moved to compel arbitration earlier. 

Nor does he offer any evidence or other basis to conclude that his 

claims would have been resolved more quickly in arbitration. 

Commerce Club’s delay is not comparable to the employer in 

Fleming, which did not move to compel arbitration until the 

Labor Commissioner had issued a ruling on the merits against it.

Also distinguishable is the recent decision by our colleagues 

in Division Eight, Kokubu v. Sudo (2022) 76 Cal.App.5th 1074, 

which upheld the trial court’s finding that the appellants had 

waived their right to arbitrate. (Id. at p. 1079.) The appellants 
18

in that case had, inter alia, withdrawn an earlier arbitration 

demand, acknowledged that they “secretly intended to avail 

themselves of rights unique to the court before seeking to compel 

arbitration,” engaged in judicial discovery not available 

in arbitration, and “substantially invoked the litigation 

machinery” by filing a cross-complaint, 10 motions, propounding 

discovery, and obtaining relief with respect to a lis pendens. 

(Id. at pp. 1086–1087.) The record here shows no conduct akin to 

that in Kokubu.

Quach suggests that Commerce Club’s purported reasons 

for its delay in moving to compel arbitration—closures due to 

COVID-19 and the inability to find a complete signed copy of the 

arbitration agreement—were pretextual, and nothing prevented 

Commerce Club from asserting its right to arbitrate at the outset 

of the lawsuit. The trial court similarly found that Commerce 

Club “knew of its right to compel arbitration,” and failure to “find 

the proper documents is not an excuse for not moving to compel 

arbitration at a much earl[ier] time.” 

As the case authority we have discussed above establishes, 

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

“unreasonable” merely because the party could have asserted it 

at an earlier time. Rather, what makes the delay “unreasonable” 

is that it negatively impacts the party resisting arbitration, such 

as by requiring that party to expend resources it otherwise would 

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

asserting arbitration to take advantage of judicial processes not 

available in arbitration. Quach has failed to show negative 

impact from Commerce Club’s delay.

The dissent contends we should infer from Commerce 

Club’s “lack of candor” regarding the reasons for its delay that 
19

Commerce Club deliberately delayed the proceedings and 

subjected Quach to judicial discovery “to intimidate a vulnerable 

at-will employee who lacks the economic resources to cope with 

such delay.” (Dis. opn. post, at p. 8.) Respectfully, this is pure 

speculation, and goes far beyond the trial court’s findings, which 

were that Commerce Club’s explanations did not excuse the 

delay. There is no indication the trial court inferred nefarious 

intent, nor shall we on this record. 

The dissent at various points intimates we are imposing an 

unreasonable or unnecessary evidentiary burden on parties 

seeking to establish waiver of arbitration. We merely hold that 

when a party resisting arbitration makes no showing other than 

a lengthy delay during which the parties engaged in partydirected discovery—with no indication that discovery would have 

been unavailable or unnecessary in arbitration or that the party 

incurred costs that it would not otherwise have incurred had 

arbitration occurred earlier—that showing runs afoul of St. Agnes 

Medical Center’s admonitions that “ ‘ “[w]aiver does not occur by 

mere participation in litigation” ’ ” and “courts will not find 

prejudice where the party opposing arbitration shows only that it 

incurred court costs and legal expenses.” (St. Agnes Medical 

Center, supra, 31 Cal.4th at p. 1203.) Our holding here is based 

on Quach’s failure to show anything beyond what St. Agnes 

Medical Center already has declared insufficient to prove waiver.

Although the dissent suggests we are “overextend[ing] 

ourselves to preserve a compulsory arbitration agreement” (dis. 

opn. post, at p. 2), we are merely applying well-established 

principles set forth by our high court. This we must do regardless 

of the dissent’s views on the fairness of compelling plaintiffs to 
20

arbitrate pursuant to an agreement signed as a condition of 

employment.

B. Quach Fails To Show The Arbitration Agreement Is 

Unconscionable

Quach argues that even if Commerce Club did not waive 

the right to arbitrate, the arbitration agreement is 

unconscionable and unenforceable. We disagree.

1. Applicable law

“ ‘ “[G]enerally applicable contract defenses, such as . . . 

unconscionability, may be applied to invalidate arbitration 

agreements without contravening” the FAA’ or California law.” 

(OTO, supra, 8 Cal.5th at p. 125.) 

“A contract is unconscionable if one of the parties lacked a 

meaningful choice in deciding whether to agree and the contract 

contains terms that are unreasonably favorable to the other 

party. [Citation.] Under this standard, the unconscionability 

doctrine ‘ “has both a procedural and a substantive element.” ’ 

[Citation.] ‘The procedural element addresses the circumstances 

of contract negotiation and formation, focusing on oppression or 

surprise due to unequal bargaining power. [Citations.] 

Substantive unconscionability pertains to the fairness of an 

agreement’s actual terms and to assessments of whether they are 

overly harsh or one-sided.’ [Citation.]” (OTO, supra, 8 Cal.5th at 

p. 125.) 

“Both procedural and substantive unconscionability must 

be shown for the defense to be established, but ‘they need not be 

present in the same degree.’ [Citation.] Instead, they are 

evaluated on ‘ “a sliding scale.” ’ [Citation.]” (OTO, supra, 
21

8 Cal.5th at p. 125.) “The burden of proving unconscionability 

rests upon the party asserting it.” (Id. at p. 126.)

If an arbitration agreement contains unconscionable 

provisions, the court “ ‘must determine whether these terms 

should be severed, or whether instead the arbitration agreement 

as a whole should be invalidated.’ [Citation.]” (Lange v. Monster 

Energy Co. (2020) 46 Cal.App.5th 436, 452–453 (Lange).) “ ‘[T]he 

strong legislative and judicial preference is to sever the offending 

term and enforce the balance of the agreement,’ ” unless the 

“ ‘ “agreement is ‘permeated’ by unconscionability.” ’ [Citations.]” 

(Id. at p. 453.)

In the absence of conflicting evidence, whether an 

arbitration provision is unconscionable presents an issue of law 

we review de novo. (Swain v. LaserAway Medical Group, Inc.

(2020) 57 Cal.App.5th 59, 66.) Thus, although the trial court in 

the instant case did not reach the issue of unconscionability, we 

may resolve the issue on undisputed facts as a matter of law in 

the first instance.

2. Analysis

We will presume Quach has made a showing of at least 

some procedural unconscionability, given the evidence that 

Commerce Club required him to sign the arbitration agreement 

as a condition of continued employment. (See Najarro v. Superior 

Court (2021) 70 Cal.App.5th 871, 883–884.) We nonetheless 

conclude he has made an insufficient showing of substantive 

unconscionability to invalidate the agreement.
22

Quach first attacks the following paragraphs in the 

arbitration agreement:

6 “In the event of any dispute, prior to 

commencing any legal action, [the employee] or the Company, 

whichever is the complaining party, shall give prompt written 

notice to the other . . . of the nature of the dispute, claim or 

controversy. Upon the receipt of such written notice, the Parties 

agree to meet within 30 days in person to discuss in good faith 

the dispute, claim or controversy for the purpose of attempting to 

resolve it informally. [¶] If the Parties cannot resolve their 

differences in that informal dispute resolution process, then all 

claims relating to [the employee’s] recruitment, employment 

with, or termination of employment from the Company shall be 

deemed waived unless submitted to final and binding arbitration 

by JAMS . . . .” 

Quach argues the requirement of informal, nonbinding 

mediation “ha[s] no meaning to [Quach], unless he retains 

counsel.” The very purpose of mediation is to work out disputes 

without having to proceed to litigation or arbitration, which is of 

benefit to all parties. We see nothing unconscionable in requiring 

the parties to do so, and Quach cites no authority to the contrary.

Quach next contends the above quoted language requires 

him to “resolve the dispute within 30 days.” (Italics & boldface

omitted.) This misreads the language, which requires only that 

6 Quach characterizes the arguments concerning these 

paragraphs as pertaining to procedural unconscionability, but 

because he is challenging the terms of the agreement itself, his 

argument is better characterized as one of substantive 

unconscionability. (OTO, supra, 8 Cal.5th at p. 125 

[“ ‘Substantive unconscionability pertains to the fairness of an 

agreement’s actual terms . . . .’ [Citation.]”].) 
23

the parties meet to discuss their dispute within 30 days after one 

has served notice of a dispute on the other. 

Quach then challenges the language stating that an 

employee waives claims not submitted to JAMS for arbitration. 

Quach reads this language to provide that “if an employee waits 

6 months after a failed mediation, he is out of luck.” We see 

nothing in the language setting a deadline for when an employee 

must arbitrate claims following an unsuccessful mediation. 

Rather, the language indicates that to the extent the employee 

wishes to pursue claims following mediation, the employee must 

do so through arbitration. 

Turning to other provisions of the arbitration agreement, 

Quach contends the agreement unfairly exempts from arbitration 

claims likely to be brought by Commerce Club, such as claims for 

violation of confidentiality or theft of trade secrets, while 

requiring the employee to arbitrate most claims. This argument 

fails because Quach does not identify any language in the 

arbitration agreement establishing this purported exemption for 

employer claims, nor can we find any such language. Rather, the 

agreement applies to “all matters directly or indirectly related to 

[the employee’s] recruitment, employment, or termination of 

employment.” This broad language would encompass claims by 

Commerce Club against Quach for confidentiality or trade secret 

violations, which would be “related to” his “employment.” Indeed, 

the agreement’s only express exemptions are for specific claims 

by the employee, such as workers’ compensation benefits, 

unemployment insurance benefits, and claims under the National 

Labor Relations Act. 

Quach next contends the agreement is unconscionable for 

incorporating JAMS rules that “subjected [Quach] to a risk of 
24

bearing costs forbidden by” case law. Arbitration agreements

between employees and employers “ ‘cannot generally require the 

employee to bear any type of expense that the employee would 

not be required to bear if he or she were free to bring the action 

in court. . . .’ [Citation.]” (O’Hare v. Municipal Resource 

Consultants (2003) 107 Cal.App.4th 267, 279, italics omitted.) 

Quach does not cite any JAMS rules contravening this principle. 

Regardless, the agreement expressly states that any arbitration 

fees paid by the employee “shall be limited up to the amount the 

Employee would have had to pay had the matter been filed in 

court. [Commerce Club] shall pay remaining arbitration 

administrative costs and arbitrator’s fees.” Quach’s argument 

ignores this language.

Quach argues the agreement fails to “discuss recovery of 

fees and costs by [Quach],” suggesting that the agreement might 

impair his statutory right to fees and costs under the Fair 

Employment and Housing Act (FEHA). We read the agreement’s 

silence as to attorney fees and costs to indicate the parties intend 

the arbitrator to apply FEHA or other substantive law without 

alteration. (Armendariz v. Foundation Health Psychcare 

Services, Inc. (2000) 24 Cal.4th 83, 112 [an “agreement to 

arbitrate a statutory claim is implicitly an agreement to abide by 

the substantive remedial provisions of the statute”].)

Quach argues the agreement is unconscionable because it 

requires him to waive his right to bring claims in a

“representative proceeding.” Quach argues this language waives 

his right to bring claims under the Labor Code Private Attorneys 

General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA), a waiver 

the Supreme Court has held is unenforceable as contrary to 

public policy. (Iskanian, supra, 59 Cal.4th at p. 384.) Assuming 
25

arguendo a PAGA waiver is substantively unconscionable, a 

question on which we express no opinion, the solution would be to 

sever that provision from the agreement. (See Lange, supra, 

46 Cal.App.5th at p. 453.) The PAGA waiver would not justify 

invalidating the entire agreement. Also, Quach has not asserted 

a PAGA claim, and therefore we need not decide whether to sever 

that provision.

Although not raised on appeal, in his opposition to the 

motion to compel arbitration below, Quach challenged as 

unconscionable the following provision: “In the event that either 

party files, and is allowed by the courts to prosecute, a court 

action on any claim covered by this agreement, the parties agree 

that they each agree not to request, and hereby waives his/her/its 

right to a trial by jury.” We have held that a similar provision in 

an arbitration agreement waiving a right to a jury trial “ ‘in the 

event that any controversy or claim is determined in a court 

of law’ ” is substantively unconscionable. (Lange, supra, 

46 Cal.App.5th at pp. 451–452.) Assuming arguendo the waiver 

here also is unconscionable, again, it would be severable.

The only provisions of the agreement identified by Quach 

that arguably support a finding of substantive unconscionability 

are severable, and Quach’s other claims of substantive 

unconscionability are without merit. There is thus no basis to 

invalidate the agreement as unconscionable. 
26

DISPOSITION

The order is reversed. The trial court is directed to grant 

California Commerce Club, Inc.’s motion to compel arbitration 

and stay further proceedings. California Commerce Club, Inc. is 

awarded its costs on appeal. 

CERTIFIED FOR PARTIAL PUBLICATION.

BENDIX, J.

I concur:

ROTHSCHILD, P. J.
CRANDALL, J.,* Concurring and Dissenting.

The unfairness of compelling non-unionized employees to 

forfeit their access to the civil justice system in favor of private 

arbitration is well recognized. (Greene & O’Brien, Epic 

Backslide: The Supreme Court Endorses Mandatory 

Individual Arbitration Agreements–#TimesUp on Workers’ 

Rights (2019) 15 Stan. J. C.R. & C.L. 43, 45, 47-48 (Epic 

Backslide).) In 2018, there were as many as 60 million 

American workers subjected to such “agreements,” and that 

number is likely much higher today. (Id. at p. 45.) Mandatory 

arbitration for such employees is pernicious because economic 

and noneconomic pressures can leave them without any viable 

forum in which to bring their claims. (Id. at pp. 50, 70-71.)

Although the legality of these compulsory arbitration 

agreements must be acknowledged for the present moment as 

water under the judicial bridge,1 we should not overextend 

1 Were we writing on a clean slate, I would encourage us to 

find the entire agreement unconscionable and, hence, 

unenforceable. Not only had Peter Quach and his fellow 

employees been forced to sign the agreement upon pain of 

immediate termination, but, among other things, it made all of 

them give up any resort whatsoever to the civil justice system, 

including the right to a jury trial in the event the case ever did 

make it to court. But the California Supreme Court has made 

clear that “ ‘contracts of adhesion’ ” are “ ‘indispensable facts of 

modern life that are generally enforced’ ” even though they

“ ‘ “bear within them the clear danger of oppression and 

overreaching.” ’ ” (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 

1237, 1244.) Further, there is a strong legislative and judicial 

preference to sever any offending term (here: the jury waiver) and 
2

ourselves to preserve a compulsory arbitration agreement that 

the employer has clearly waived, as appellant California 

Commerce Club, Inc. (Commerce Club) did in this case with 

respect to their at-will employee of 29 years, respondent Peter 

Quach.

There is no litmus test for determining whether a party has 

waived its right to pursue arbitration under Code of Civil 

Procedure section 1281.2, subdivision (a). (Iskanian v. CLS 

Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 374-375 

(Iskanian); see St. Agnes Medical Center v. PacifiCare of 

California (2003) 31 Cal.4th 1187, 1195 [“no single test delineates 

the nature of the conduct that will constitute a waiver of 

arbitration”] (St. Agnes).) Rather, waiver depends upon a variety 

of factors, including: “ ‘ “ ‘(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; . . . 

(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.’ ” ’ ” (Iskanian, supra, at p. 375.)

Despite asserting arbitration as an affirmative defense in 

its answer and notwithstanding the litigation difficulties caused 

by the onset of the COVID-19 pandemic, Commerce Club actively 

enforce the balance of such agreements. (Lange v. Monster 

Energy Co. (2020) 46 Cal.App.5th 436, 455.) Accordingly, I

reluctantly concur in the second part of the majority decision.
3

pursued a course of action evidencing every intention of fully 

utilizing the civil justice system. It attended case management 

conferences, propounded multiple sets of written interrogatories 

and requests for admission, engaged in multiple meet-and-confer 

meetings with opposing counsel, tasked Quach and his counsel 

with analyzing over 900 pages of the company’s responses to his 

written discovery, posted jury fees, and required Quach to sit for 

a full day of an expected multi-day deposition on the Zoom 

platform.

Under Iskanian, Commerce Club’s actions were 

“ ‘ “ ‘inconsistent with the right to arbitrate’ ” ’ ” as it 

“ ‘ “ ‘ “substantially invoked” ’ ” ’ ” the litigation machinery before 

its motion to compel arbitration was filed. (Iskanian, supra, 59 

Cal.4th at p. 375.) And, because it first moved to compel 

arbitration on the very day of the originally scheduled trial date 

(having deliberately waited until 13 months after suit had been 

filed) we can safely say that Commerce Club “ ‘ “ ‘requested 

arbitration enforcement close to the trial date.’ ” ’ ” (Ibid.)

A critical element in determining whether arbitration has 

been waived, under both Iskanian and St. Agnes, is “ ‘ “whether 

the delay ‘affect[s], misle[ads], or prejudice[s]’ the opposing 

party.” ’ ” (St. Agnes, supra, 31 Cal.4th at p. 1196.) Such 

prejudice is ordinarily found “where the petitioning party’s 

conduct has substantially undermined [the] important public 

policy [in favor of arbitration] or substantially impaired the other 

side’s ability to take advantage of the benefits and efficiencies of 

arbitration.” (Id. at p. 1204; Iskanian, supra, 59 Cal.4th at p. 377 

[“ ‘a petitioning party’s conduct in stretching out the litigation 

process itself may cause prejudice by depriving the other party of 
4

the advantages of arbitration as an “expedient, efficient and costeffective method to resolve disputes” ’ ” (italics added)].)

Although Commerce Club blamed its 13-month delay in 

seeking arbitration on (1) the COVID-19 pandemic and (2) its 

inability to find a fully executed arbitration agreement, the trial 

court record raised serious questions about the veracity of these 

explanations. Most notably, Quach produced evidence showing 

that, before Quach ever filed his lawsuit, Commerce Club’s 

counsel had turned over his personnel file, including the fullyexecuted second page of Quach’s two-page arbitration agreement, 

signed in 2015 by Quach and Commerce Club’s HR director, Jose 

Garcia.

Recognizing these (and other) serious inconsistencies in 

Commerce Club’s explanations, the trial court concluded: “The 

litany of pretrial exchanges and actions by the defendant 

demonstrate that [Commerce Club] knew of its right to compel 

arbitration as well as company policy and the employee practice 

to sign an arbitration agreement. The combined failure of 

counsel . . . to not find the proper documents is not an excuse for 

not moving to compel arbitration at a much [earlier] time.” In 

other words, the trial court essentially concluded that Commerce 

Club’s explanations were a pretext that had been fabricated to 

justify its tardy motion to compel arbitration.

Given our limited standard of review,2 the trial court’s 

reasoning by itself should be sufficient for us to uphold its finding 

2 Because the trial court resolved disputed facts regarding 

Commerce Club’s delayed arbitration request, we are required to 

infer all necessary findings supported by substantial evidence 

and construe all reasonable inferences in the manner most 

favorable to the judgment. (Garcia v. Haralambos Beverage Co.
5

of waiver. (Adolph v. Coastal Auto Sales, Inc. (2010) 184 

Cal.App.4th 1443, 1452 [courts are “loathe to condone conduct by 

which a [litigant] repeatedly uses the court proceedings for its 

own purposes . . . all the while not breathing a word about . . . 

[its] desire to pursue arbitration”]; Iskanian, supra, 59 Cal.4th at

p. 377 [“ ‘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” ’ ” (italics added)], 

quoting Burton v. Cruise (2010) 190 Cal.App.4th 939, 948.)

Case law cautions against resolving arbitration waivers in 

a rote or formulaic manner. (Lewis v. Fletcher Jones Motor Cars, 

Inc. (2012) 205 Cal.App.4th 436, 444 [“each case must be 

examined in context”].) Although Quach’s showing of prejudice is 

not identical to the prejudice discussed in other arbitration 

cases,3 it is surely meaningful in the context of an at-will 

(2021) 59 Cal.App.5th 534, 541-542.) “The appellate court may 

not reverse the trial court’s finding of waiver unless the record as 

a matter of law compels finding nonwaiver.” (Kokubu v. Sudo 

(2022) 76 Cal.App.5th 1074, 1083.) This deferential standard of 

review is critical in waiver cases. (Id. at p. 1085 [“Trial courts 

are uniquely positioned to evaluate the conduct of litigants before

them within the broader context of a case. Given that the St. 

Agnes factors are largely concerned with such conduct, the 

deference we give to the trial courts’ factual determinations is 

especially warranted in the context of alleged arbitration 

waiver”].)

3 While Quach’s out-of-pocket expenditures in this 

litigation have not been significant, his trial counsel has already 

spent considerable time litigating this case. The dollars and 

cents incurred during litigation are only one of many 

considerations in evaluating whether prejudice exists; a party’s 
6

employee who lacks even the benefit of a collective bargaining 

agreement.4

As of this writing, Quach and Commerce Club are well over 

two years into litigation, far beyond the time when private 

arbitration would have fulfilled its promise “ ‘ “as a speedy and 

relatively inexpensive means of dispute resolution.” ’ ” (OTO, 

L.L.C. v. Kho (2019) 8 Cal.5th 111, 125.) Indeed, had Commerce 

Club’s arbitration motion been filed at the outset, i.e., during the 

three and a half months before the onset of the pandemic, the 

entire arbitration could well have been completed by now. (See 

Kokubu v. Sudo, supra, 76 Cal.App.5th at p. 1091 [finding that a 

party caused prejudice by, among other things, “holding their 

demand [to compel arbitration], [and thus] delay[ing] resolution 

of the case relative to when it might have concluded had they 

promptly exercised their right to compel arbitration”].)

Quach should not need to “prove” the obvious point that 

Commerce Club’s serious delay in compelling arbitration has 

prejudiced him. It is widely known that the alternate dispute 

resolution business flourished on remote platforms while this 

and counsel’s expenditure of time is another. (See, e.g., Kokubu

v. Sudo, supra, 76 Cal.App.5th at pp. 1087-1088 [evaluating the 

reasonableness of a party’s delayed arbitration demand by 

examining whether the delay was “accompanied by costs 

incurred, changes in strategic advantage, use of disputed 

property, consumption of the time of parties and counsel, and 

other impacts”].)

4 His case is also dissimilar to Hoover v. American Income 

Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1205 and Roberts v. El 

Cajon Motors, Inc. (2011) 200 Cal.App.4th 832, 845 and 847. 

These class action cases have little relevance to someone in 

Quach’s position.
7

case was being litigated, even as the COVID-19 pandemic 

significantly disrupted traditional litigation. (Maclachlan, ADR 

sees another boom year, becomes ‘way of life,’ L.A. Daily J. 

(Dec. 28, 2021); Maclachlan, Mandatory arbitrations are up, 

plaintiffs’ attorneys say, L.A. Daily J. (Dec. 27, 2021).)5

We also ask too much of Quach by requiring him 

specifically to identify the motivation for Commerce Club’s lack of 

candor.6 (Berman v. Health Net (2000) 80 Cal.App.4th 1359, 

1372 [“subjective bad faith is not a required element in a finding 

of waiver of the right to compel arbitration,” but merely “an 

alternative ground for finding waiver,” such that “the crucial 

inquiry is not [necessarily] the subjective motivation of the party 

seeking arbitration” (capitalization and italics omitted from first 

quotation)]; see Adolph v. Coastal Auto Sales, Inc., supra, 184 

Cal.App.4th at p. 1452 [“Although the trial court made no express 

5 Judicial notice of these articles is proper pursuant to 

section 452 of the Evidence Code. (Id., subd. (h) [“Judicial notice 

may be taken of the following matters . . . [f]acts and propositions 

that are not reasonably subject to dispute and are capable of 

immediate and accurate determination by resort to sources of 

reasonably indisputable accuracy”].)

6 Nor should we fault Quach for declining to speculate 

about what sorts of discovery the arbitrator might or might not 

allow, whether he might be able to use the “judicial” discovery in 

arbitration, or whether the modest money he has already spent 

during litigation will save money in arbitration. (Maj. opn.,

pp. 17 & 18). All we really can say about the arbitration is that it 

will take place in accordance with the JAMS rules, subject to the 

agreement’s requirement that the arbitration process must 

include “a fair and simple method for the employee to get 

information necessary for his/her claim.”
8

finding of [the movant’s] bad faith, the tone of its ruling is 

suggestive of such a finding and, had it been made, sufficient 

evidence would have supported the finding”].)

Even when an employer’s bad faith in delaying arbitration 

is relevant to a finding of waiver, case law does not hold that an 

employee must climb such a steep evidentiary hill. Rather, 

courts typically infer a party’s motivation from its conduct during 

litigation. (See, e.g., Diaz v. Professional Community 

Management, Inc. (2017) 16 Cal.App.5th 1190, 1207 [finding that 

a party had waived its right to arbitrate where its conduct 

showed that “it was the possibility of derailing the trial, rather 

than a sudden desire to arbitrate, that was the true motivation 

underlying [its] last-minute motion to compel arbitration”]; 

Burton v. Cruise, supra, 190 Cal.App.4th at p. 949 [finding a 

waiver where a party’s conduct suggested that it attempted to 

use the court “ ‘ “ ‘as a convenient vestibule to the arbitration hall 

so as to allow a party to create his own unique structure 

combining litigation and arbitration’ ” ’ ”].)

We can readily surmise from Commerce Club’s lack of 

candor (as the trial court implicitly did) why Commerce Club may 

have wanted to put Quach through the time and effort of 

litigation by serving discovery, taking his full day deposition, 

trying to obtain his theory of the case, and then pulling the 

litigation plug 13 months after first raising the specter of 

arbitration in its initial response. What better way to intimidate 

a vulnerable at-will employee who lacks the economic resources 

to cope with such delay? (Greene & O’Brien, Epic Backslide, 

supra, 15 Stan. J. C.R. & C.L. at p. 45.)

But regardless of its subjective motivation, Commerce 

Club’s tactics were prejudicial because they deliberately and 
9

forever undermined the very nature of a quick resolution that is 

the central tenet of arbitration. (OTO L.L.C. v. Kho, supra, 8 

Cal.5th at p. 125.) Quach’s appellate brief hits the nail on the 

head: “[By now], all benefits of a speedy resolution [Quach] could 

have obtained through arbitration [have] been lost.” Although 

Commerce Club’s misconduct surely prejudiced Quach by 

“stretching out the litigation process,” we are nevertheless 

moving Quach back to the arbitration starting gate—a palpably 

unfair result.

Because of the disputed evidence, the deferential standard 

of review traditionally used in arbitration waiver cases, and the 

very real prejudice Quach suffered as a result of Commerce 

Club’s tactics, I respectfully dissent.

CRANDALL, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.