Davis v. Continental Airlines, Inc

In Davis v. Continental Airlines, Inc. (1997) 59 Cal.App.4th 205, the Court found that defendants who asserted an arbitration clause in their answers, served plaintiff with a discovery demand, took plaintiff's deposition, responded to interrogatories and a request for documents, then filed a motion to compel arbitration six months after answering the complaint, had waived their right to arbitrate. (59 Cal.App.4th at pp. 208, 212-213.) "The trial court could reasonably infer from these facts that defendants unreasonably delayed their motion to compel arbitration in order to take advantage of court discovery procedures to learn plaintiff's strategies, evidence, and witnesses and to pin plaintiff down to a particular version of the facts." (Id. at p. 213.) The Court also remarked: "There is more prejudice in the present case than plaintiff's mere incurring of court costs or legal expenses. The vice involved here, whether characterized as 'unreasonable delay,' 'bad faith misconduct,' 'gamesmanship' or 'unilateral discovery' (all are words mentioned in Christensen v. Dewor Developments (1983) 33 Cal.3d 778) is that defendants used the discovery processes of the court to gain information about plaintiff's case which defendants could not have gained in arbitration. After obtaining discovery from plaintiff by court processes, defendants then belatedly sought to change the game to arbitration, where plaintiff would not have equivalent discovery rights. (Brock v. Kaiser Foundation Hospitals 1992 10 Cal.App.4th 1790, 1802 & fn.10.)" (Davis, supra, at p. 215.)