Waiver: Trial Court, Not The Arbitrator, Decides Whether Party Waived Right To Arbitrate By Pursuing Litigation.

The trial court denied defendant’s petition to compel arbitration. On appeal, defendant contended that whether or not a party has waived the right to arbitrate by pursing litigation in the trial court should be decided by the arbitrator. Defendant cited language appearing in Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, [123 S.Ct. 588; 154 L.Ed.2d 491]  “So, too, the presumption is that the arbitrator should decide ‘allegation[s] of waiver, delay, or a like defense to arbitrability.’” The appellate court affirmed the denial of the petition to arbitrate, stating: “Based upon the near-unanimous analysis of federal and state courts, we conclude the foregoing language in Howsam does not apply here. The trial court correctly ruled it, rather than an arbitrator, should decide the merits of the waiver by litigation conduct defense to arbitration asserted by plaintiffs. We affirm the order denying the motion to compel arbitration.”  (Hong v. CJ CGV America Holdings, Inc. (Cal. App. Second Dist., Div. 5; December 18, 2013) 222 Cal.App.4th 240.)