Prejudice In California

Under federal law, the presence or absence of prejudice from litigating the dispute is sometimes stated to be "the determinative issue." (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 188; see also St. Agnes, supra, 31 Cal.4th at p. 1203; American Recovery v. Computerized Thermal Imaging (4th Cir. 1996) 96 F.3d 88, 95-96.) "In California, whether or not litigation results in prejudice also is critical in waiver determinations." (St. Agnes, supra, 31 Cal.4th at p. 1203.) Prejudice can be found in circumstances including those in which: (1) the moving party's conduct has impaired the other side's ability to take advantage of the benefits and efficiencies of arbitration; (2) the moving party has used the judicial process to gain information about the other side's case that could not have been gained through arbitration, or; (3) a party has unduly delayed and waited until the eve of trial to seek arbitration. (Id. at p. 1204.)