Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Charles R. Hayes, Judge. Super. Ct. No. GIC851958.
O'ROURKE, J.
Olivia Amador sued her former employer, San Diego Country Club, and individual defendants Craig Ghio, David Morris and Beth Atayde (collectively defendants), alleging causes of action for: discrimination based on sex, national origin and age; failure to prevent discrimination; harassment; failure to prevent harassment; retaliation; wrongful termination; and unfair competition. Defendants answered the complaint, actively participated in discovery, and subsequently filed a petition to compel arbitration. The trial court denied the petition, ruling defendants waived their right to arbitration. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 5, 2005, Amador — having received right-to-sue letters from the Department of Fair Employment and Housing — filed a civil complaint against defendants. In September, 2005, defendants' counsel, in a letter to Amador's counsel, quoted the arbitration provision contained in the employee handbook and stated, "In the event that you resist referring this matter to arbitration, please let me know as soon as possible. Otherwise, we can prepare a [s]tipulation requesting a stay of the proceedings pending arbitration."
Defendants relied on the "Complaint-Resolution Procedure" contained in the San Diego Country Club's handbook, which provided, "The General Manager and the concerned employee agree that any dispute arising from the terms of this employee handbook and other matters of employment not resolved by the Complaint-Resolution Procedure . . . shall be submitted to mediation before a third party mediator chosen by agreement of all parties. The cost of such mediation, if any, shall be borne by the San Diego Country Club. [¶] In the event that mediation is not successful in resolving the entire dispute, any outstanding issues shall be submitted to final and binding arbitration in accordance with the laws of the state of California."
On October 10, 2005, defendants filed their answer to the complaint and asserted as an affirmative defense that the parties were bound by an arbitration agreement.
In October, 2005, Amador propounded on defendants form interrogatories and a request for production of 41 categories of documents. One of the interrogatories asked defendants to identify each affirmative defense in their pleadings, and for each state all facts on which the affirmative defense was based and identify all supporting documents. In December 2005, defendants responded to the form interrogatories, but did not specifically reassert the right to arbitration. Rather, defendants stated, "This responding party has asserted his [sic] rights under California law to respond to the unverified complaint with a general denial, and asserted various affirmative defenses which may or may not be relevant to this matter depending on discovery and investigation pending, anticipated, or which may be conducted in the future. Response to this interrogatory is therefore premature at this time."
In defendants' case management statement submitted on December 30, 2005, they checked a box indicating they were "willing to participate in" mediation, but not the box that specifically referred to "binding private arbitration." Moreover, they requested a jury for an estimated four-day trial.
On February 8, 2006, the trial court ordered the case to mediation, and scheduled a trial readiness conference for September 8, 2006 and trial for October 6, 2006.
On April 4, 2006, defendants took Amador's deposition and questioned her about a wide range of issues regarding her employment with San Diego Country Club, the adverse employment action she experienced and its effects on her. Two other employees of the San Diego Country Club were deposed between April 4 and 5, 2006.
The court-ordered mediation was held on May 18, 2006, but it did not resolve the case.
On May 26, 2006, Amador propounded on defendants a request for a second set of documents, which defendants responded to on June 27, 2006.
Between June 28 and 29, 2006, Amador deposed six additional employees of San Diego Country Club.
On July 26, 2006, defendants filed a petition to compel arbitration. According to a declaration filed by Amador's attorney in opposition to the petition, "As of the date of filing of this motion, our office has expended in excess of 513.5 attorney hours, 83.4 paralegal hours and 7.1 law clerk hours on this matter and have incurred approximately $20,000 in costs."
On approximately July 27, 2006, Amador received defendants' designation of expert witnesses.
On July 31, 2006, defendants propounded on Amador special interrogatories; form interrogatories, and requests for production of documents that sought information regarding the merits of Amador's complaint.
On August 18, 2006, the trial court ruled in its tentative decision that the defendants had waived their right to compel arbitration because they "actively participat[ed] in all forms of discovery including the designation of expert witnesses to testify at trial. This discovery took place both before and after the mediation which was postponed by the parties." On August 25, 2006, the trial court confirmed the tentative decision. That same day, defendants filed a motion to strike one of Amador's expert witnesses.
On September 13, 2006, defendants filed a notice of appeal.
Defendants filed a motion to strike several documents in the appendix Amador lodged on appeal because they were included in defendants' appendix or, "other than the existence of the pages, they are not cited or relied upon in Amador's Brief, and, other than the existence of the pages, they are not relevant to the issues on appeal." California Rules of Court, Rule 8.124, subd. (b)(6) states, "A respondent's appendix may contain any document that could have been included in the appellant's appendix or a joint appendix." We deny the motion because the documents in Amador's appendix are relevant, and could have been included in appellant's appendix. To the extent Amador's appendix includes duplicative documents, there is no prejudice to defendants.
DISCUSSION
We reject defendants' contention the trial court erred in finding they had waived the right to compel arbitration. "California waiver rules reflect "a strong policy favoring arbitration agreements and requires close judicial scrutiny of waiver claims. [Citation.] Although a court may deny a petition to compel arbitration on the ground of waiver [Citation], waivers are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof." (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195.) Factors to determine if waiver applies include: " ' "(1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether 'the litigation machinery has been substantially invoked' and the parties 'were well into preparation of a lawsuit' before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) 'whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place'; and (6) whether the delay 'affected, misled, or prejudiced' the opposing party." ' " (Id. at p. 1196.) "Generally, the determination of waiver is a question of fact, and the trial court's finding, if supported by sufficient evidence, is binding on the appellate court." (Ibid.)
Here, sufficient evidence supported the trial court's determination. Except for the fourth factor listed above — which is inapplicable — all the other factors support the finding of waiver. We recognize defendants' initial communication with Amador's counsel asserted the right to arbitration of her claim. However, defendants waited until almost one year after Amador filed her lawsuit before they petitioned to compel arbitration. In the intervening time, the defendants answered the complaint, engaged in discovery and substantially advanced the litigation process toward trial. Amador was prejudiced because she prepared for litigation until the eve of trial and incurred the related costs.
We reject defendants' contention they delayed compelling arbitration because of the mediation requirement of San Diego Country Club's complaint resolution process, and their need to conduct discovery regarding the applicability of the arbitration clause to Amador's case. The only mediation in this case took place several months after Amador's complaint was filed and answered and substantial discovery conducted. Moreover, mediation was not initiated by defendants, but was ordered by the court. Defendants, having obtained the benefits of discovery, belatedly sought to enforce the arbitration agreement. But, " '[t]he courtroom may not be used as a convenient vestibule to the arbitration hall so as to allow a party to create [its] own unique structure combining litigation and arbitration.' " (Christensen v. Dewor Developments (1983) 33 Cal.3d 778, 784.)
In light of our conclusion, it is unnecessary to address Amador's arguments that the arbitration agreement was unconscionable.
DISPOSITION
The judgment is affirmed. Olivia Amador is awarded costs on appeal.
WE CONCUR: NARES, Acting P. J., AARON, J.
The arbitration clause states, "If the employee or the San Diego Country Club does not make a written request for arbitration within the limitations period applicable to a claim under applicable federal or state law, that party will have waived its right to raise that claim, in any forum, arising out of that issue or dispute."
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