Tons of Litigation Before Moving to Arbitrate Constituted a Clear Waiver.
Justice Bedsworth, on behalf of a 3-0 panel in Eagan Avenatti, LLP, et al. v. Stroll, et al., Case No. G048143 (4th Dist., Div. 3 Feb. 28, 2014) (unpublished), sustained a lower court ruling that former co-counsel and former clients had waived the right to compel arbitration against former co-counsel suing in protest over the way post-settlement fees should be divided among former clients’ various law firms. The main reason was pretty simple: waiver—both sides had engaged in 18 months of litigation (motions, writs, and a state supreme court review request), substantially invoking the litigation machinery and then seeking arbitration not that far away from a scheduled trial. (Burton v. Cruise, 190 Cal.App.4th 939, 944-947 (2010).) Prejudice was shown because trial preparation was well advanced and the side seeking arbitration had gained the benefit of formal discovery not available under JAMS’ rules.
BLOG APPELLATE PRACTICE POINTER—The decision also has some nice pointers for appellants electing to proceed by filing appendices in lieu of clerk transcripts. First, make sure you put all meaningful documents so as to develop a complete picture—the reviewing court actually got a true picture of all the litigation activity based on respondents’ appendix instead. (So, respondents do like these litigants did if the appellants’ appendix is inadequate; file your own appendices supplementing the sparse record supplied by appellants.) Second, appellants need to review the California Rules of Court and make sure all required documents are in the appendices—such as the actual notice of appendix election and the register of actions (the latter being supplied by the superior court clerk to the parties involved in an appeal).