Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG08388779.
Richman, J.
In November 2002, Paul Bishop, a most experienced business executive, began employment at World Savings, Inc. (World) as a loan consultant, in connection with which he signed an agreement to arbitrate. Bishop was terminated in May 2006, following which he filed a demand for arbitration, selected an arbitrator, and vigorously participated in the arbitration process for almost a year. In May 2008, Bishop announced that he would participate no longer, and that he would file a lawsuit-which he did.
World filed a petition to compel arbitration, which Bishop opposed on the fundamental basis that the arbitration agreement was unconscionable. In a comprehensive, detailed order, the trial court found first that Bishop had waived the right to assert any such claim, further finding that the arbitration agreement would be enforceable in any event, and ordered Bishop to resume the arbitration. Following seven days of testimony, the arbitrator found for World, and World’s petition to confirm the award and enter judgment was granted. Bishop appeals. We affirm, concluding that the trial court’s finding of waiver is supported by the record. We thus need not reach the issue of unconscionability.
BACKGROUND
Bishop’s Employment At World
On November 2, 2002 Bishop was hired by World as a loan consultant. While Bishop’s age is not in the record, some of his employment history is, and it is impressive, especially that since the 1970’s. As described in Bishop’s own opening brief, he “had been a Senior Vice President of Investments for the previous 15 years with a variety of larger Wall Street firms with offices located in Walnut Creek... and San Francisco.... Prior to that BISHOP had been in the top percentages of the Sales force of the IBM Corporation for 11 years. By the time BISHOP arrived at WORLD he was a very seasoned and financially mature sales person.”
When Bishop first applied for employment at World, and before he was hired, he acknowledged in writing that one of the conditions of employment was that he would have to sign an arbitration agreement. He was later hired and, as he described it under oath, “during the first day of [his] employment” with World he signed an “Arbitration Agreement.” What Bishop in fact signed was a three-page document entitled “Mutual Agreement to Arbitrate Claims, ” which agreement had 15 sections, each with a boldfaced heading. One section was called “Arbitration Procedures, ” and provided in pertinent part that any arbitration would be conducted in accordance “with the then-current national Rules for the Resolution of Employment Disputes of the American Arbitration Association (AAA).”
On May 31, 2006 Bishop was terminated by World.
On February 9, 2007, Bishop wrote to World’s director of human resources, asking for a copy of the “Mutual Agreement to arbitrate claims acknowledgment form that [he] signed on 11/01/2002, ” and also asking several questions. Susan Lennox, Group Senior Vice-President of Human Resources, responded by letter of March 12, 2007, which letter provided in pertinent part as follows:
Bishop apparently wrote an earlier letter, on January 31, 2007, which letter is not in the record.
“Dear Mr. Bishop:
“I have been asked to respond to your letters of January 31 and February 9, 2007. I apologize for the delay in getting back to you as I have been out of the office much of the past five weeks.
“In your letters, you had several questions and requests to which I can provide the following information:
“1. Your options under arbitration: I am enclosing a blank copy of the Mutual Agreement to Arbitrate Claims for your reference. (A copy of the form you signed on November 1, 2002 is included in your personnel file. See item 3, below.) The arbitration process is as follows:
“You complete the highlighted sections on the enclosed copy of the American Arbitration Association Demand for Arbitration.
“Then, return the completed form to me, together with a check made payable to the American Arbitration Association in the amount of One Hundred Fifty Dollars ($150.00) as your share of the administrative fee.
“Upon receipt of the completed Demand for Arbitration and your share of the administrative fee from you, I will complete the form on behalf of World Savings, make the required number of copies, and forward them to the American Arbitration Association, together with your check for $150.00 and a check from World for $900.00.
“The American Arbitration Association will then forward materials to each of us regarding the selection of an arbitrator and the arbitration process.
“You may also obtain a copy of the current National Rules for the Resolution of Employee Disputes from the AAA’s Website at www.adr.org or by calling the AAA at 1 800-788-8789.
“2. The reason for the termination of your employment: Your employment with World was terminated, effective June 1, 2006, for failure to meet expectations of the One-Time Warning you received on September 28, 2005. In the event that you do not have a copy of that memo, I am enclosing one with this letter.
“3. Copy of your personnel file: A copy of your personnel file is enclosed.”
On May 23, 2007, Bishop wrote to Ms. Lennox, thanking her for her letter and the copy of his personnel file. The letter further advised that “[t]omorrow I will be proceeding with formally filing my request for Arbitration with the American Arbitration Association. I will also forward my part of the fee $150, and I assume World Savings will be notified in the manner you outlined in your letter.”
The Arbitration
On May 30, 2007, Bishop filed with the AAA his “Demand for Arbitration” form. Among other things, the demand listed Bishop as a claimant and, next to that, under the heading “representatives, ” listed Kevin Bishop. World filed a response, and the arbitration would involve the conflicting positions regarding Bishop’s termination: Bishop’s claim that he was fired because he was (or would become) a “whistleblower, ” and World’s claim that he was terminated for substandard performance, his failure to meet expectations in a warning he had received, capped by inappropriate conduct in “blowing up” at a World vice president.
By September 2007 the parties had agreed to the selection of the Honorable Raymond D. Williamson, Jr. (ret.), a long-serving member of the San Francisco Superior Court, to act as arbitrator. Judge Williamson held two case management conferences, on December 12, 2007 and February 21, 2008; he also held a telephone conference on April 24, 2008. Bishop attended both in-person conferences; Kevin Bishop, identified as Bishop’s “brother, ” attended the one in February.
Judge Williamson’s order following the first case management conference set the deadline for document requests (January 16, 2008) and the time for document exchange (February 8, 2008). And on January 16, 2008 Bishop propounded to World his “First Set of Document Demand[s]”, requesting 26 categories of documents.
Also on January 16, 2008, Bishop sent the first of three January letters to Judge Williamson, complaining of various conduct by World’s counsel, Ian Fellerman. This letter cited, among other things, “case authority” for Judge Williamson to consider, and the letter thoughtfully ended with this:
“The underlying purpose of meet and confer is simple: To encourage the parties to work out their differences informally so as to avoid the necessity for a motion and formal court order, where the parties could confer and reach a mutually acceptable solution to the problem. [Citation.]
“I am well aware of the number of depositions that need to be taken, tied to the issues that I raised in my complaint and request for arbitration.
“I have made these requests in a recent email to Mr. Fellerman, which to date Mr. Fellerman continues to ignore, or even address such in his responses to me. [¶]... [¶]
“I have requested status of employment of certain individuals, without a response from Mr. Fellerman to date, tied to current employment....
“When Mr. Fellerman advises on the status of employment of the names I submitted then I can begin to request the names for Mr. Fellerman to produce for a deposition. In the event the individuals are no longer employed by World Savings/Wachovia then I will have the appropriate party served. The status of whether the person is in the State of California or outside of the State will not be an issue, ...
“Hopefully this court will allow the parties to work out any issues before this Judge has to intercede. I am anticipating Mr. Fellerman will oppose any depositions I propose, if so Mr. Fellerman can file for a protective order when I request the individuals for deposition.
“Mr. Fellerman should act in good faith and meet and confer to resolve any issues before involving this Court or Judge.”
Bishop’s next letter to Judge Williamson was on January 23, 2008, and began as follows: “It is apparent that I will be taking 5 depositions in the near future and it is premature for the Court to intercede at this point.” The letter goes on to describe some communications with Mr. Fellerman, and then requests “the Court set a time line, so that I might propound Interrogatories and admissions upon World Savings. I will use the Federal Rules of Procedure as a guideline and follow the procedures encompassed in the respective rules.”
Bishop’s third letter was on January 29, 2008, and began as follows: “It is unfortunate that we have to continue to deal with these frivolous letter’s [sic] tied to Mr. Fellerman’s request. My position remains that Mr. Fellerman comply with Shuffle Master [v.] Progressive Games case logic regarding ‘meet and confer’ in ‘good faith’. It is clear Mr. Fellerman is trying to run the clock out regarding discovery deadlines and this is a tactical ploy to thwart the discovery process. [¶] That being said, I would like to get resolution to the following...., ” discussing three issues Bishop wanted addressed. The letter then set forth the names of Bishop’s proposed deponents, with each person described at length as to why his or her deposition was appropriate. Following all that, the letter ends as follows:
“I will serve the above potential witnesses and if Mr. Fellerman wants to seek a ‘protective order’ then he will have that option. I have tried to resolve this issue tied to depositions in the least intrusive manner, without success. It is apparent Mr. Fellerman and his clients at all costs want to prevent anyone from being deposed, and are just trying to run out the discovery clock and take me out of the process.
“I request the Court to set a clear timeline to discovery issues regarding Production of Documents, interrogatories, and Admissions. I await the Courts decision tied to discovery. It is premature for the Court to intercede regarding depositions, since the issue has not been resolved by the parties.
“I am awaiting a date when Mr. Fellerman will produce Mr. Judd. Mr. Wilson remains a potential deponent, depending on the outcomes of the other 4 deponents. Mr. Felerman [sic] and I can work out the details under the guidelines of case authority cited in esrlier [sic] communications.”
As noted above, a case management conference was held on February 21, 2008. Bishop appeared with Kevin Bishop, Mr. Fellerman appeared for World. Judge Williamson issued a three-page order addressing various issues, including World’s request for a confidentiality agreement, as to which the order provided as follows: World will prepare a “proposed agreement. Assuming the signing of such an agreement, Kevin [Bishop] may attend depositions and be on conference calls, but is not to participate in the questioning. [¶] Since [Bishop] now works for a competitor of World, [it] has asked that [Bishop] sign too.”
Judge Williamson’s order went on to discuss other issues, including offering his services to resolve deposition-related issues while the deposition was proceeding. The order ends with reference to a scheduled April 24, 2008 conference call, which call “will be used to set the matter for hearing, determine the need for any further depositions and clear up any other issues.”
The next item in the record is a March 28, 2008 letter from Bishop to Mr. Fellerman, where Bishop wrote as follows:
“Mr. Fellerman, “Sorry for the delay, both Kevin and I have been traveling.
“I have some concerns with the manner in which your confidentiality agreement is drafted.
“1st.
“Kevin Bishop attending depositions and assisting Paul L. Bishop
“As you and [World] are aware [it] and Paul L. Bishop signed a ‘Mutual Agreement to Arbitrate Claims’.
“It is clear in the section titled ‘Representation’ that both parties agreed ‘any party may be represented by an Atty. Or any other party selected by the party.
“In the last conference call you failed to disclose this to Judge Williamson. In light of this knowledge, I have complied with the terms of the Agreement... and selected Kevin Bishop to be my representative at this particular stage of the Arbitration. At my discretion this could change at any time.
“Simply stated Kevin Bishop will be my representative and is not bound by any ‘Confidentiality Agreement’, and in fact our Agreement is silent on such, but supports the position that I can select a representative of my choosing.
“If you can point me to case law or a Court Ruling that requires this, I’ll be glad to reevaluate my position. Until that point Kevin Bishop will not be signing any such Agreement.
“Secondly, Kevin Bishop has already reviewed the files, and papers, and has conducted some inquiries. Kevin Bishop feels that your request is misplaced and moot, since your clients waived this privilege early on by not requesting such an agreement at the outset. Your clients produced documentation without such a request for a Confidentiality Agreement, including documents I have provided to your attention on earlier dates on several occasions.
“If your firm wants a Confidentiality Agreement tied to FUTURE DOCUMENTS, that may be produced by you and your clients, through ‘production of Documents’, I will certainly entertain such, if the request has merit.”
Apparently the scheduled conference call on April 24, 2008 occurred, but whatever was said there or followed it are not in the record.
The next item in the record is a May 13, 2008 letter from Attorney Marcus Jackson to Judge Williamson and Mr. Fellerman, which letter reads in its entirety as follows:
“Dear Judge Williamson and Mr. Fellerman
“Having reviewed this matter in depth with my client, he has decided to pursue litigation rather than arbitration at this time. Thus I have prepared a civil Complaint that will be filed forthwith. While Mr. Bishop will of course pursue arbitration should a Court order him to do so, we feel such an outcome is extremely unlikely due to numerous unconscionable provisions in the arbitration agreement imposed by World Savings, Inc. as a condition of employment. My client and I both thank you Judge Williamson for your time and commitment of attention to this dispute.
Bishop would later testify in his declaration that he retained “an attorney, Marcus Jackson” in “April of 2008.”
“Please feel free to contact me... should either of you have any questions or concerns.
“Best regards, “/s/ Marcus Jackson
“Marcus Jackson, Esq.”
The Superior Court Proceedings
On May 21, 2008, represented by Mr. Jackson, Bishop filed a complaint in the Alameda County Superior Court, alleging four causes of action: (1) wrongful termination in violation of public policy; (2) violation of Business & Professions Code sections 17200 et seq.; (3) retaliation in violation of Labor Code section 1102.5; and (4) negligent supervision/retention.
On July 22, 2008 World filed a petition to compel arbitration and stay action, set to be heard before the Honorable Patrick Zika, to whom the case had been assigned for all purposes. World’s petition argued, among other things, that by participating in the arbitration for almost a year, and engaging in the conduct described above, Bishop had waived the right to proceed in court. The argument was supported by evidence that World had relied to its detriment based on Bishop’s conduct, beginning with the $4,700.00 fee it had paid to AAA. Beyond that, World paid substantial attorney’s fees relating to the arbitration, not to mention all of the time and effort it had devoted.
On August 5, 2008, Bishop filed his opposition, consisting of a memorandum of points and authorities, a brief declaration of Bishop, and a declaration of Mr. Jackson, attached to which were 16 articles from various newspapers, magazines, and websites. The thrust of Bishop’s opposition was that the arbitration agreement was unconscionable and should not be enforced. On the issue of waiver, the sum total of Bishop’s response was relegated to a footnote on the last page of his points and authorities.
The footnote reads in its entirety as follows: “Defendants desperately rely on two old federal cases to support a nonmeritorious argument that Plaintiff waived his right to litigate because he chose to initiate and take part in some arbitration telephone conferences before filing this lawsuit. The cases relied upon by Defendant both predate the seminal Armendariz[ v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83] decision, do not address the question of unconscionability and have little persuasive weight in this Court. Indeed, the most recent 9th Circuit pronouncement on the issue makes clear that the doctrine of waiver requires a knowing and voluntary relinquishment of rights. See Nagrampa v. Mailcoups (9th Cir. 2006) 469 F.3d 1257, 1278-1279 (finding no waiver just because Plaintiff took part in some arbitration proceedings and ruling that underlying arbitration agreement was unconscionable). There was no knowing relinquishment here where Plaintiff relief [sic] on representations from Defendants that he must arbitrate and had no knowledge that he could challenge the substance of the arbitration agreement as unconscionable until he retained an attorney. Moreover the matter here had not even proceeded to a single deposition before Plaintiff decided to challenge the arbitration agreement as opposed to the cases Defendants rely upon where the Plaintiffs offered evidence at hearings and challenged the scope of the arbitration clause as an arbitration decision was imminent. Lastly, nearly all monies spent by Defendants on arbitration were for attorney work that will be applicable to the litigation as well.”
On August 11, 2008 World filed its reply, along with its objection to much of Bishop’s evidence, especially to the 16 paragraphs of Mr. Jackson’s declaration with the articles attached.
The matter came on for hearing on August 18, 2008, before Judge Zika. Bishop did not request a court reporter for the hearing, and thus we have no record of what transpired there. What we do have is Judge Zika’s thorough, conscientious, well reasoned three-page, single-spaced order, which order went on in great detail to rule for World, ordering Bishop to resume the arbitration before Judge Williamson.
Despite this, Bishop’s opening brief purports to set forth what he claims was said at the hearing, attempted advocacy for which Bishop is appropriately criticized by World. Bishop’s opening brief suffers from other improprieties, including that it contains Mr. Jackson’s declaration “and attached exhibits.” After claiming that these exhibits were introduced at the arbitration hearing, Mr. Jackson purports to testify about what the documents mean and testimony allegedly given about them. This is most inappropriate. Despite these improprieties, we deny World’s motion to strike Bishop’s opening brief.
Judge Zika first found as follows: Bishop “has waived his claims that the Arbitration Agreement is unconscionable. There is no dispute that plaintiff (1) filed a demand for arbitration in 2007, (2) agreed to use Judge Williamson as the arbitrator, (3) served Defendants with document requests; (4) responded to defendants’ requests for production of documents; (5) discussed and scheduled depositions in the arbitration proceeding; and (6) participated in three separate Case Management Conferences. Defendants have detrimentally relied and would be prejudiced if the Court allowed this action to proceed. Defendants expended substantial fees in the arbitration proceeding, including arbitration fees and attorney’s fees related to prosecution of the arbitration proceeding. Plaintiff does not show that the arbitration proceedings that were being conducted were unfair or that he would have been deprived of any legal remedies available in a court proceeding. To the contrary, it appears that the arbitration proceeded in a reasonable manner for about a year. Plaintiff claims that he did not realize the Agreement was ‘defective’ until he retained an attorney, but has not shown that any of the provisions he challenges have created any unfairness in the arbitration proceeding. The doctrine of unconscionability is equitable in nature. In the situation presented here, it would not be equitable to allow Plaintiff to avoid his agreement to arbitrate, and go forward with this legal action, and the Court declines to do so.”
Judge Zika went on to hold that even if Bishop had not waived any claim of unconscionability, the arbitration agreement was nevertheless enforceable-despite that there was some unconscionability. Specifically, Judge Zika concluded that he “does not find that this is a strong showing of procedural unconscionability. Plaintiff does not show surprise or oppression. The agreement is clearly drafted and labeled and there is no evidence of any attempt to mislead or coerce plaintiff into signing the agreement. [¶] Plaintiff’s showing of substantive unconscionability is not strong.” From there, Judge Zika went on to a detailed analysis of various provisions in the agreement, to ultimately conclude that any unconscionable provisions would appropriately be severed.
Judge Zika’s order sustained most of World’s objections to Bishop’s evidence, and ordered the arbitration to resume before Judge Williamson.
The Resumption of the Arbitration
The arbitration resumed before Judge Williamson, and evidence was presented on seven days between February 8 and 17, 2010. On March 18, 2010, Judge Williamson issued his final award, holding for World. The award was thorough indeed, seven-pages long with a detailed factual analysis. The transcript of the arbitration is not before us, and thus we have only the award to shed light on the evidence presented, which, in any event, is not particularly germane to the issue before us. However, some of Judge Williamson’s conclusions from the seven days of evidence are worth noting, including the following introductory comments:
Bishop was hired as a 100 percent commission employee, and “[f]rom the start, Bishop became an extremely difficult employee to deal with. He refused to go to meetings because he was on 100 percent commission and, therefore, could spend his time as he wished. He refused to go to seminars because he knew all the answers and management was stupid, did not know what it was doing and, in addition, crazy. He was continuously rude to his co-workers and bullying and condescending to his support staff. [¶] When his first six-month performance review was presented to him he stunned his supervisor, Maria Guadamuz, by ripping it up in front of her. [¶] Complaints continued to come in and his conduct was again reflected in subsequent performance reviews. However, Bishop ignored all reviews, suggestions and critiques because he did not believe he needed to improve any aspect of his performance and his treatment of other employees was excellent and did not need improvement.” And it was downhill from there.
After several pages of factual analysis, Judge Williamson’s award ends with this: “Bishop’s claim that he was fired because he was a whistle blower or was threatening to be one fails for lack of substantiation. [¶] He was fired for (one more time) blowing up totally inappropriately at a Vice President for no valid reason. [¶] [Bishop] has failed to prove his case. [Bishop] is awarded nothing. [World] is awarded Judgment and determined to be the Prevailing Party.”
On May 3, 2010, World filed a petition to confirm the arbitration award and enter judgment. Bishop filed a notice of nonopposition, and on June 29, 2010, Judge Zika confirmed the arbitration award and entered judgment for World.
On August 17, 2010 Bishop filed his notice of appeal.
Judge Zika’s August 18, 2008 order directing arbitration was not appealable, and Bishop’s participation in the arbitration did not waive his right to attack that order, which is reviewable on his appeal from the judgment confirming the award. (Code. Civ. Proc., §§ 1294, 1294.2; Lesser Towers, Inc. v. Roscoe-Ajax Constr. Co. (1969) 271 Cal.App.2d 675, 692.)
ANALYSIS
Judge Zika’s Finding of Waiver Is Fully Supported By the Law and By the Evidence
Our Supreme Court discussed the concept of waiver in the context of arbitration in St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187 (St. Agnes), beginning its analysis with confirmation of the rule that “Generally, the determination of waiver is a question of fact, and the trial court’s finding, if supported by substantial evidence, is binding on the appellate court. [Citations.] ‘When, however, the facts are undisputed and only one inference may reasonably be drawn, the issue is one of law and the reviewing court is not bound by the trial court’s ruling.’ ” (St. Agnes, supra, at p. 1196.) As a very recent case has confirmed, we “ ‘may not reverse the trial court’s finding of waiver unless the record as a matter of law compels finding nonwaiver....’ ” (Zamora v. Lehman (2010) 186 Cal.App.4th 1, 12 (Zamora), citing Berman v. Health Net (2000) 80 Cal.App.4th 1359, 1363; accord, Adolph v. Coastal Auto Sales, Inc. (2010) 184 Cal.App.4th 1443, 1449-1450.)
The issue in St. Agnes was the converse of what is present here: whether the party’s participation in a lawsuit waived its right to arbitration. Relying on the strong public policy favoring arbitration (31 Cal.4th at p. 1195), and the principle that waiver of the right to arbitration should not be lightly inferred (ibid.), the Supreme Court concluded that there-where the facts were undisputed-the only conclusion that could be drawn from those facts was that there had been no waiver. (Id. at p. 1206.)
Such holding notwithstanding, much of what the Supreme Court said is persuasive here-in affirming Judge Zika’s ruling. Specifically, while the court concluded that participating in litigation involving an arbitrable claim does not itself waive a party’s right to seek arbitration, at some point that litigation does justify a finding of waiver. And while there is no single test for establishing waiver, the court “agreed” that six factors are “relevant and properly considered in assessing waiver claims, ” which factors are: “whether the party’s actions are inconsistent with the right to arbitrate”; “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’ ”; “whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay”; “whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings”; “whether important intervening steps (e.g., taking advantage of judicial discovery procedures not available in arbitration) had taken place”; and “whether the delay ‘affected, misled, or prejudiced’ the opposing party.” (St. Agnes, supra, 31 Cal.4th at p. 1196; accord, Zamora v. Lehman, supra, 186 Cal.App.4th at pp. 13-15; Adolph v. Coastal Auto Sales, Inc., supra, 184 Cal.App.4th at pp. 1449-1450.)
While St. Agnes does not require that all six factors need be present to support a finding of waiver, all such factors are present here. First, Bishop initiated the arbitration and actively participated in it for some 12 months, actions inconsistent with superior court litigation of his claim. Second, Bishop “substantially invoked” the arbitration “machinery, ” attending case management conferences with Judge Williamson, propounding and responding to written discovery, identifying multiple witnesses for deposition and his reasons for designating them, and opposing World’s requests for a protective order and order of depositions. Third, Bishop proceeded with arbitration for almost a year before filing a civil action. Fourth, World did not participate in Bishop’s lawsuit, other than to file a motion to stop it. Fifth, important intervening steps occurred in the arbitration, including that Judge Williamson had ruled on various discovery disputes. Sixth, and as Judge Zika found, World would be prejudiced if Bishop were allowed to end the arbitration and change forums.
Here, Judge Zika’s determination of waiver was based in part on his factual finding that World would be prejudiced if Bishop were allowed to proceed in court. Bishop disputed the facts upon which Judge Zika reached this finding, arguing that he did not know what he was waiving, that he participated only limitedly in arbitration before proceeding to court, and that “nearly all monies spent by Defendants on arbitration was for attorney work that will be applicable to the litigation as well.” Judge Zika found to the contrary, stating in relevant part: “[Bishop] has waived his claims that the Arbitration Agreement was unconscionable.... [World has] detrimentally relied [on Bishop’s conduct] and would be prejudiced if the Court allowed this action to proceed.... [Bishop] does not show that the arbitration proceedings that were being conducted were unfair or that he would have been deprived of any legal remedies available in a court proceeding. To the contrary, it appears that the arbitration proceeded in a reasonable manner for about a year. [Bishop] claims that he did not realize the Agreement was ‘defective’ until he retained an attorney, but has not shown that any of the provisions he challenges have created any unfairness in the arbitration proceeding. The doctrine of unconscionability is equitable in nature. In the situation presented here, it would not be equitable to allow [Bishop] to avoid his agreement to arbitrate, and go forward with this legal action, and the Court declines to do so.”
In sum and in short, the facts here were not, as they were in St. Agnes, undisputed. And Judge Zika’s finding of waiver is supported by the evidence, a finding appropriate here as it has been in other arbitration-related cases. (See Platt Pacific Inc. v. Andelson (1993) 6 Cal.4th 307, 319; Adolph v. Coastal Auto Sales, Inc., supra, 184 Cal.App.4th at pp. 1449-1451; Guess? Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 555, 558; Davis v. Continental Airlines, Inc. (1997) 59 Cal.App.4th 205, 212-216.) As the Court of Appeal said in Guess, ordering mandate to compel denial of the motion to compel arbitration, “in litigation as in life, you can’t have your cake and eat it too.” (Guess?, Inc. v. Superior Court, supra, 79 Cal.App.4th at p. 555.)
The cases cited above involved the converse of the situation here, whether participation in litigation waived the right to arbitrate. Given the strong public policy favoring arbitration, these cases should a fortiori be applicable to Bishop here. Put otherwise, in World’s words, “If anything, waiver should be found more easily in [this] context, given the strong public policy favoring arbitration.”
While there appear to be no published California cases dealing with the exact setting here, there are two Ninth Circuit cases that do: Fortune, Alsweet &Eldridge, Inc. v. Daniel (9th Cir. 1983) 724 F.2d 1355; and Nghiem v. NEC Electronic, Inc. (9th Cir. 1994) 25 F.3d 1437. And both support a finding of waiver.
Daniel, a union member, but without a specific agreement to arbitrate, sent a representative to the arbitration who listened to the union’s evidence, presented limited evidence himself, and requested a second continuance. Two weeks later, Daniel’s representative sent a letter to the arbitration board, claiming Daniel had no obligation to arbitrate and refusing to attend future hearings. The arbitrator issued a decision adverse to Daniel who appealed, arguing that the arbitrator had no such authority. (Daniel, supra, 724 F.2d at p. 1356.) The Ninth Circuit reasoned that Daniel’s conduct manifested his intent to arbitrate the dispute, and held “it would be unreasonable and unjust to allow Daniel to challenge the legitimacy of the arbitration process, in which he had voluntarily participated over a period of several months.... [¶]... Daniel’s conduct demonstrated he agreed to submit this conflict to arbitration and waived any right to object.” (Id. at p. 1357.)
While Nghiem involved a situation where the arbitration proceeded to an award, the Ninth Circuit held that “[o]nce a claimant submits to the authority of the arbitrator and pursues arbitration, he cannot suddenly change his mind and assert lack of authority.” (Nghiem v. NEC Electronic, Inc., supra, 25 F.3d at p. 1440.)
Despite Judge Zika’s finding of waiver as the first basis of his ruling, Bishop’s opening brief does not address the issue of waiver until page 48. There, in an argument heading asserting that Judge Zika’s finding has “absolutely no support under California law, ” Bishop goes on to assert that Judge Zika’s finding “cannot withstand examination. It is undeniable black letter law that a waiver must be both knowing and voluntary. ‘Waiver is the intentional relinquishment of a known right.’ 13 Witkin, Summary of California Law (10th ed. 2005) Equity, § 193, p. 533. As a result, BISHOP could not possibly waive a right he did not know he had: namely the right to challenge the arbitration agreement based on its content. BISHOP was not aware that he had this right until after he retained counsel in April 2008.”
Putting aside that there is no record support citied for such statement, the law is otherwise, as confirmed by Zamora v. Lehman, supra, 186 Cal.App.4th 1, which began with a succinct description of the issue before it:
“A trustee in bankruptcy filed this action against three former officers of a defunct company, alleging breach of fiduciary duty. Two of the officers engaged in discovery; the third attempted to settle the action as to himself only. Four months before trial, defendants remembered that their employment agreements contained an arbitration provision. They moved to compel arbitration. In opposition, the trustee argued defendants had waived the right to arbitrate by delay in bringing the motions and by engaging in discovery not available under the arbitration provision.
“The trial court granted the motions, stating that because defendants had forgotten about the arbitration provision, they had not relinquished a known right.... The trustee appealed.
“The trustee contends defendants waived the right to arbitrate notwithstanding that they forgot about the arbitration provision. Defendants argue a waiver requires the relinquishment of a known right and point out the motions to compel arbitration were brought shortly after their attorneys first learned about the arbitration provision.
“We conclude a waiver of the right to arbitrate does not require the relinquishment of a known right under the Federal Arbitration Act... or the California Arbitration Act....” (Zamora v. Lehman, supra, 186 Cal.App.4th at p. 5.)
The court went on to a lengthy exposition of many cases, cases supporting its conclusion that “the waiver test consists of several factors and does not include whether a defendant voluntarily or intentionally relinquished a known right to arbitrate.” (Zamora v. Lehman, supra, 186 Cal.App.4th at p. 11.) Included in that exposition was discussion of Platt Pacific, Inc. v. Andelson, supra, 6 Cal.4th 307, where the Supreme Court discussed the concept of waiver in the arbitration context: “ ‘[T]he courts of this state have held that the failure to make a timely demand for arbitration results in a “waiver” of the right to compel arbitration.... It is true that... some decisions have defined the term “waiver” as the voluntary relinquishment of a known right.... [H]owever, none of the cases concerning the failure to timely demand arbitration have used the word ‘waiver’ to mean voluntary relinquishment of a known right.’ ” (Zamora v. Lehman, supra, at p. 12.) World relied on Zamora in response to Bishop’s opening brief. Bishop’s reply brief does not even mention the case.
The memorandum and order denying motion to compel in Pezza v. Investors Capital Corporation (Mass. Dist. Ct. Mar. 1, 2011, No. 10-10113) 2001 U.S. Dist. LEXIS 20038, submitted by appellant to this court on June 1, 2011, after this matter was submitted, has no application here, as it does not involve the issue of waiver.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.
Bishop’s neglect in arranging for a court reporter can have significant adverse effect on appeal. As the leading practical treatise puts it: “Transcript may be essential for appellate review: Unless a court reporter is present, the losing party may have no effective way of challenging the court’s ruling by writ or appeal: ‘In the absence of a transcript, the reviewing court will have no way of knowing... what grounds were advanced, what arguments were made, and what facts may have been admitted, mutually assumed or judicially noticed at the hearing. In such a case, no abuse of discretion can be found except on the basis of speculation.’ (Snell v. Sup.Ct. (Marshall Hosp.) (1984) 158 [Cal.App.]3d 44, 49, ... (emphasis added); see also GT Inc. v. Sup.Ct. (Santa Cruz Sentinel Publishers, Inc.) (1984) 151 [Cal.App.]3d 748, 756.)... [¶] PRACTICE POINTER: If you are appearing in a court in which law and motion hearings are not regularly reported, and there is the slightest chance you would seek appellate review if the judge rules against you, be sure to have a court reporter present!” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group (2010)) §§ 9:172 9:173, p. 9(1)-114.)