Filed 5/1/15 Certified for Publication 6/1/15 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                               DIVISION TWO


JULIO OREGEL,
         Plaintiff and Respondent,
                                                                 A141947
v.
PACPIZZA, LLC,                                                   (Contra Costa County
                                                                 Super. Ct. No. MSC12-01454)
         Defendant and Appellant.


         Seventeen months and more than 1,300 attorney hours after plaintiff Julio Oregel
(Oregel) filed a class action against his former employer, defendant PacPizza, LLC
(PacPizza), PacPizza petitioned to compel arbitration of Oregel’s claims. The trial court
denied the petition, finding PacPizza waived its right to enforce a purported arbitration
agreement between the two parties. PacPizza appeals, primarily contending the court
erred in denying the petition, and also asserting two other claimed errors. We conclude
the petition was properly denied, a conclusion that moots PacPizza’s remaining
arguments. We thus affirm.
                                               BACKGROUND
         Preliminary Observation
         We begin with an observation that, as the appellant, PacPizza was tasked with
providing in its opening brief a summary of all evidence in the record that is material to
the issues raised on appeal. (Cal. Rules of Court, rule 8.204(a)(2)(C); Foreman & Clark
Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) This, it failed to do. PacPizza sets forth a
less-than-candid “Chronology of Pertinent Events Underlying Appeal” that suggests little


                                                          1
transpired in the 17 months between Oregel’s filing of his complaint and PacPizza’s
filing of its petition to compel arbitration. Among other things, PacPizza has omitted any
discussion of the extensive class discovery it conducted—an omission that is nothing
short of brazen given the trial court’s finding that Oregel was prejudiced by the discovery
the parties conducted on his class allegations during the lengthy period of time PacPizza
delayed in seeking arbitration.
       What follows is a chronology of what actually transpired.
       Oregel’s Job Application
       On July 24, 2008, Oregel submitted a written application for a job as a delivery
driver at PacPizza’s Pizza Hut restaurant in El Cerrito. At the bottom of the two-page
application was a section titled, “Agreement,” followed by five paragraphs in small font,
estimated by Oregel to be 8-point font, an estimate PacPizza does not dispute—indeed,
one that we believe may overstate the size of the font. The fifth paragraph, titled
“Agreement to Arbitrate,” stated: “Because of the delay and expense of the court system,
Pizza Hut and I agree to use confidential binding arbitration, instead of going to court, for
any claims that arise between me and Pizza Hut, its related companies, and/or their
current or former employees. Without limitation, such claims would include any
concerning compensation, employment (including, but not limited to, any claims
concerning sexual harassment or discrimination), or termination of employment. Before
arbitration, I agree: (i) first to present any such claims in full written detail to Pizza Hut;
(ii) next, to complete any Pizza Hut internal review process; and (iii) finally, to complete
any external administrative remedy (such as with the Equal Employment Opportunity
Commission). In any arbitration, the then prevailing employment dispute resolution rules
of the American Arbitration Association will apply, except that Pizza Hut will pay the
arbitrator’s fees, and Pizza Hut will pay that portion of the arbitration filing fee in excess
of the similar court filing fee had I gone to court.” Oregel’s signature followed.1


       1
         There is no evidence in the record that Oregel was given a copy of the
application or saw it at any point after he submitted it to PacPizza.


                                               2
       Oregel’s Complaint and First Amended Complaint
       Oregel was apparently hired and worked as a delivery driver for some time. But
on June 14, 2012, he filed a class action against PacPizza. The complaint alleged that
PacPizza failed to fully reimburse delivery drivers for necessary expenses associated with
using their personal vehicles to deliver pizza on PacPizza’s behalf. It asserted two causes
of action, one for failure to reimburse expenses in violation of Labor Code section 2802,
the other for violation of California’s Unfair Competition Law (Bus. & Prof. Code,
§ 17200 et seq.). And it sought compensatory and special damages, injunctive relief,
disgorgement, attorney fees, and costs.
       On July 30, 2012, PacPizza answered, generally denying Oregel’s allegations. It
also asserted 15 affirmative defenses, none of which alleged the existence of an
agreement to arbitrate the dispute.
       The court held case management conferences on September 5, 2012, and
February 19, 2013. At the second conference, the parties agreed to a discovery schedule,
and the court set September 30, 2013, as the deadline for Oregel to file his anticipated
motion for class certification. The parties subsequently stipulated to a complete briefing
schedule on the motion, with PacPizza’s opposition due November 18 and the motion to
be heard on December 6. PacPizza was silent on its intent to arbitrate Oregel’s claims at
both conferences and throughout discussions concerning the discovery and briefing
schedules.
       On March 4, 2013, Oregel filed a first amended complaint in which he reasserted
his original two causes of action and added a third cause of action under the Private
Attorneys General Act of 2004 (Lab. Code, § 2699, subd. (a)) (PAGA). To the relief
sought in his original complaint, Oregel added civil penalties pursuant to Labor Code
section 2699.
       PacPizza answered Oregel’s first amended complaint three days later, once again
denying his allegations and asserting 15 affirmative defenses—again, none of which
alleged the existence of an agreement to arbitrate the dispute.



                                             3
       The Parties Conduct Extensive Class Discovery
       Meanwhile, in September 2012, discovery commenced with Oregel propounding
written discovery, much of which related to class certification issues. PacPizza objected
to a special interrogatory seeking the identities of putative class members, forcing Oregel
to move to compel production of the information. The court ordered PacPizza to produce
the putative class members’ identities. At no time during the discovery dispute did
PacPizza suggest class discovery was unwarranted because it intended to arbitrate
Oregel’s claims.
       On November 6, 2012, PacPizza served responses to Oregel’s outstanding written
discovery and produced responsive documents. Significantly, Oregel’s special
interrogatory nos. 27 and 28 asked, respectively, “If YOU contend this action is affected
by an arbitration agreement, state all facts supporting such contention,” and “If YOU
contend this action is affected by an arbitration agreement, IDENTIFY all
DOCUMENTS supporting such contention.” In response to both, PacPizza stated:
“Plaintiff Julio Oregel signed an arbitration agreement on July 24, 2008, wherein he
agreed to arbitrate all claims, including all employment related claims between he, Pizza
Hut and all of Pizza Hut’s related companies, which includes PacPizza.”
Although PacPizza appended Oregel’s job application to its responses, it gave no
indication that it intended to seek enforcement of the arbitration agreement.
       The parties continued discovery for the next 12 months. As to some of the
particulars, on November 9, 2012, PacPizza propounded 226 written discovery requests,
in response to which Oregel provided written responses and produced 792 documents.
Much of the discovery PacPizza propounded pertained to Oregel’s class allegations. By
way of example, its special interrogatories asked Oregel to “[i]dentify all dates on which
each putative class member incurred business expenses that DEFENDANT failed to fully
reimburse to each respective putative class member” and to “[s]tate the amount of money
that YOU claim is owed to each putative class member for DEFENDANT’S alleged
failure to fully reimburse each respective putative class member’s business expenses.”
PacPizza asked Oregel to produce “[a]ll DOCUMENTS that support YOUR contention


                                             4
that DEFENDANT did not fully reimburse the expenses incurred by each putative class
members . . . when each made deliveries for DEFENDANT” and “[a]ll DOCUMENTS
that YOU used to calculate the amount of business expenses DEFENDANT failed to
reimburse to putative class members . . . .”
       In April 2013, PacPizza propounded additional written discovery, and in May,
June, and September 2013, PacPizza served substantive responses to Oregel’s second,
third, and fourth sets of discovery requests.
       In summer 2013, Oregel deposed PacPizza Director of Finance Alan Fuss and
employee Collin Day, both designated by PacPizza as its persons most knowledgeable
regarding specific topics, including class issues. Oregel also deposed PacPizza president
Brian Thompson and audit department head William Likens on class-related subjects, as
well as a representative from PacPizza’s outside computer vendor.
       On September 9, 2013, PacPizza deposed Oregel. During the deposition, counsel
for PacPizza asked general questions regarding the job application Oregel signed,
including whether he understood it contained an arbitration agreement. Oregel
responded, “No” to that question.
       On September 13, 2013, PacPizza served a motion to compel discovery of
questionnaires putative class members had submitted to Oregel’s counsel. Although
Oregel initially opposed the motion, the parties reached a resolution with the assistance of
a court-appointed facilitator, and he ultimately produced copies of certain questionnaires.
       Oregel’s Motion forClass Certification
       On September 30, 2013, Oregel filed his motion for class certification. It was
supported by declarations of his counsel Eric Grover (appending 275 pages of supporting
evidence), 33 putative class members, statistical consultant Richard Drogin, Ph.D., and
Oregel himself.
       On October 21, 2013, the parties stipulated to a modification of the briefing
schedule on Oregel’s motion to allow PacPizza time to depose the putative class
members who had submitted declarations. The stipulation extended the due dates for
PacPizza’s opposition—originally due November 18—to December 6 and Oregel’s reply


                                                5
to January 8, 2014, and continued the hearing on the motion to January 31, 2014. When
the parties were working out the modified briefing and hearing schedule, PacPizza never
mentioned that a petition to compel arbitration was imminent.
       Between October 23 and November 27, 2013, PacPizza deposed 25 putative class
members. Three of those depositions took place on November 26 and 27, which, as will
be seen, was the same day and the day after PacPizza petitioned to compel arbitration.
Oregel’s counsel spent more than 100 hours of attorney time on those 25 putative class
member depositions alone.
       PacPizza’s Petition to Compel Arbitration
       On November 22, 2013—17 months after Oregel filed his complaint and despite
all that had occurred in the litigation—PacPizza’s counsel sent a letter to Oregel’s
counsel demanding arbitration of Oregel’s claims. Oregel’s counsel promptly rejected
the demand, advising, “That train left the station a long time ago. We have been actively
litigating the case in court for well over a year, including law and motion practice, written
discovery and many depositions, including the dozens of depositions your firm has taken
over the past few weeks.”
       Four days later, PacPizza filed a petition to compel arbitration, stay the
proceedings, and dismiss Oregel’s class allegations and PAGA claim (the petition). Filed
in support of the petition was Oregel’s job application, among other documents.
       The Court Denies PacPizza’s Request For a Stay Of the Proceeding
       On December 3, 2013, PacPizza applied ex parte for a stay of the proceeding
pending decision on the petition or, alternatively, for an order shortening time to hear a
motion for a stay. The Honorable David B. Flinn denied ex parte relief on the grounds
that a noticed motion was required and PacPizza had not presented any basis for
shortening time on a motion.
       PacPizza’s Opposition To Oregel’s Motion For Class Certification
       In the absence of a stay, on December 6, 2013, PacPizza filed opposition to
Oregel’s motion for class certification, an opposition supported by four declarations and
more than 1,000 pages of exhibits.


                                              6
       Oregel’s Opposition to PacPizza’s Petition
       On December 24, 2013, Oregel filed opposition to PacPizza’s petition. He argued
that PacPizza waived any right to arbitration, the arbitration agreement was
unconscionable and unenforceable, the agreement allowed class and representative
arbitration, and the PAGA claim should not be sent to arbitration. In support of his
opposition, Oregel submitted a declaration of his counsel Grover. In addition to detailing
the exhaustive discovery the parties had conducted since the June 2012 filing of Oregel’s
complaint, Grover testified that he and other attorneys in his office had “spent more than
1300 hours working on this case. The lodestar associated with those hours exceeds well
over $500,000. All of those hours were spent performing tasks related to getting the class
certification motion on file and preparing for and defending depositions of putative class
members who filed declarations in support of class certification . . . .” He further testified
that his firm had incurred out-of-pocket costs exceeding $19,900.
       The Court Issues a Tentative Ruling Denying PacPizza’s Petition
       On January 9, 2014, Judge Flinn issued a detailed tentative ruling denying
PacPizza’s petition, finding by clear and convincing evidence that it had waived its right
to arbitrate Oregel’s claims. He explained his reasoning as follows:
       “In Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980 [(Sobremonte)], the
Court of Appeal referred to the following factors: In determining waiver, a court can
consider ‘(1) whether the party’s actions are inconsistent with the right to arbitrate;
(2) 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; (3) whether a party either requested arbitration enforcement close to
the trial date or delayed for a long period before seeking a stay; (4) whether a defendant
seeking arbitration filed a counterclaim without asking for a stay of the proceedings;
(5) “whether important intervening steps [e.g., taking advantage of judicial discovery
procedures not available in arbitration] had taken place”; and (6) whether the delay
“affected, misled, or prejudiced” the opposing party.’ [¶] [Approved by the Supreme
Court in St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187].


                                              7
       “This action was filed on June 14, 2012 and the petition to compel arbitration was
not filed until November 26, 2013, more than 17 months later. In the interim period the
moving party Defendant substantially invoked ‘litigation machinery’ in many regards.
Indeed, on September 5, 2012, Defendant posted jury fees with a demand for a jury trial.
This certainly would lead any Plaintiff to believe that he or she had to fully prepare for a
full trial. Case management conferences were held on September 5, 2012 and
February 16, 2013, and in neither instance did Defendant suggest that it would seek to
have the matter transferred to arbitration. At the latter conference the parties agreed to a
discovery schedule and thereafter they commenced discovery. The schedule called for
Plaintiff to prepare and file a motion to certify the action as a class action on or before
September 30, 2013, and discovery proceeded at a pace to accomplish that. A very
extensive motion was then prepared. Opposition was due on November 18 but a
stipulation was reached extending that deadline to December 6.
       “The only reasonable conclusion to be reached is that during its preparation of an
opposition to class certification the Defendant made a strategy decision that its position
would be strong in an arbitration setting. Defendant fully overlooks the extensive
prejudice to the Plaintiff in having to do class certification discovery and prepare an
extensive motion for certification, both of which would not play any part in an arbitration
proceeding.
       “The Court will deny the petition without prejudice. In the event that class
certification should not occur in the action, the Court will consider the possibility that
arbitration may be appropriate and not prejudice the Plaintiff.”
       Hearing on PacPizza’s Petition to Compel Arbitration
       PacPizza’s petition came on for hearing on January 10, 2014 before Judge Flinn.
He opened the hearing by observing, “Looks like an awful clear waiver to me. I mean I
have read a lot of cases out of the appellate courts about waiving arbitration. And I’ve
had a lot of cases, a lot of facts. I got to say you are the first one that posted jury fees and
then came in and said ‘I want arbitration.’ ” This, Judge Flinn continued, “sends a



                                               8
message to your opponent that, despite the fact that you’ve got an arbitration clause, you
see the case as staying in the courts. And he goes out and does the work.”
       Counsel for PacPizza argued against a finding of waiver, contending Oregel had
not demonstrated he had suffered “actual prejudice,” since merely incurring the cost of
litigation was insufficient. After further argument about prejudice and waiver, Judge
Flinn denied the petition, stating:
       “[T]he fact of the matter is that I find the idea that a party with an arbitration
clause, clearly the one that wanted the arbitration clause, that drafted the contract, can go
into . . . litigation and keep an option open—there is none of these cases I have read that
said option is a good idea.
       “And my problem with the St. Agnes and the concept that you are talking about is
the idea that you are really stating. And I simply wouldn’t believe it if one told me, oh,
no, we knew all along we were going to do this. I think it’s—our society is just really
deprived of benefits if we say in our judicial process you can make one side have to
defend the case as a court case all the way up to the point where you exercise this, quote,
‘option’ to ask for arbitration.
       “And I just don’t think that option is intended. I don’t think those cases talk about
an option.
       “I’m finding in this case that the conduct of [PacPizza] was to keep it as an option
and by asking for a jury and then doing all the pre-certification work, and so I find
prejudice.”
       Oregel’s Ex Parte Application To Delay Entry Of Judge Flinn’s Order
       Denying The Petition
       Following the hearing, the parties submitted competing proposed orders. Before
Judge Flinn signed an order, however, Oregel filed an ex parte application requesting that
he not enter an order until Oregel’s class certification motion—then set for hearing on
January 31—was heard. The application was based on “the prejudice and irreparable
harm that he and the putative class members will suffer if [PacPizza] is permitted to
interrupt the class certification proceedings with an immediate appeal to [sic] the order


                                               9
denying [PacPizza’s] frivolous petition to compel arbitration filed 17 months after the
case was first filed.” As Oregel reasoned, “If [PacPizza] is allowed to file its appeal
before a ruling is issued on the class certification motion and the appeal is denied (as is
surely the case), then the parties will have to wait one to two years to have the fully
briefed certification motion heard. Then, if the motion for class certification is denied,
another one to two years will pass before the parties know whether or not the case will
proceed as a class action. It makes far more sense to deal with any appeals all at once.
Either both orders will be the subject of an appeal (if class certification is denied) or, if
certification is granted, the parties will at least know that the case will proceed as a class
action if the appeal of the order denying the petition to compel is denied.”
        The application was considered by the Honorable George V. Spanos, who agreed
with Oregel and granted it “[b]ased on the facts presented [and] the interests of
justice . . . .”2
        PacPizza’s Motion For Reconsideration
        On March 12, 2014, PacPizza moved for reconsideration of Judge Spanos’s order.
PacPizza noted that the class certification motion had been continued to April 9, 2014,
and it had been deprived of its right to appeal Judge Flinn’s denial of its petition since
January 10.3 It further explained that at the ex parte hearing, it had requested an
opportunity for full briefing, a request Judge Spanos denied for lack of sufficient time,
given that the class certification motion was then set to be heard on January 31, 2014.
According to PacPizza, there was now time for full briefing, since the class certification
motion had been continued to April.
        Oregel opposed the motion as “untimely, moot and without merit,” and the court
set the motion for hearing on the same day as Oregel’s class certification motion which,



        2
       PacPizza sought writ review of Judge Spanos’s ruling, which we denied.
(A140842.)
        3
        The motion was continued after PacPizza filed a peremptory challenge to Judge
Spanos, necessitating a reassignment of the case.


                                              10
the court noted, “effectively moot[ed]” PacPizza’s request that the court revisit Judge
Spanos’s order.
       The Court Grants Oregel’s Motion For Class Certification and Enters Orders
       On PacPizza’s Petition and Motion For Reconsideration
       Oregel’s class certification motion came on for hearing on April 23, 2014 before
the Honorable Steven K. Austin. Following argument, Judge Austin granted the motion,
noting that PacPizza’s motion for reconsideration was thus moot.
       On May 14, 2014, Judge Austin entered an order denying PacPizza’s petition. To
the language contained in Judge Flinn’s tentative ruling, Judge Austin’s order added the
following paragraph: “Defendant’s conduct has also prejudiced Plaintiff due to the
expenditure of time and expense that could have been avoided if Defendant had filed its
petition to compel individual arbitration early in the litigation. Any potential cost-saving
or time-saving benefits of arbitration have been lost due to Defendant’s delay that forced
Plaintiff to fully work up the case to prepare it for class certification. (Sobremonte,
supra, 61 Cal.App.4th at 996.)”
       Judge Austin also entered orders granting Oregel’s motion for class certification
and denying as moot PacPizza’s motion for reconsideration of Judge Spanos’s order.
       PacPizza timely appeals from the denial of its petition.
                                       DISCUSSION
       Standard of Review
       We begin with a discussion of the applicable standard of review, a standard on
which the parties do not agree.
       PacPizza suggests we are to review the order denying its petition de novo. In
support, it quotes Richards v. Ernst and Young (9th Cir. 2013) 744 F.3d 1072, 1074, as
follows: “ ‘Where, as here, the concern is whether the undisputed facts of defendant’s
pretrial participation in the litigation satisfy the standard of waiver, the question of waiver
of arbitration is one of law which we review de novo.’ ”
       Oregel submits that we are to review the order for an abuse of discretion. As he
would have it, “An order denying arbitration commonly is reviewed for abuse of


                                              11
discretion. ‘Generally, the determination of waiver is a question of fact, and the trial
court’s finding, if supported by sufficient evidence, is binding on the appellate court.’
De Novo review applies only where the trial court’s denial of a petition to arbitrate
presents a pure question of law. [¶] Here, the trial court made the factual determination
that, based on the evidence presented, [PacPizza] waived any right to arbitrate that may
have existed. The trial court found that [PacPizza’s] delay in bringing its petition was a
strategic decision made only after [PacPizza] had reviewed Oregel’s class certification
motion and was in the process of deposing the putative class member declarants and
preparing the opposition. [PacPizza] disputes that finding along with the trial court’s
other factual findings supporting its waiver determination. Abuse of discretion, therefore,
is the appropriate standard of review.” (Fns. omitted.)
       In reply, PacPizza concedes “there is no bright line rule,” quoting the following
passage in Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 60:
“ ‘There is no uniform standard of review for evaluating an order denying a motion to
compel arbitration. [Citation.] If the court’s order is based on a decision of fact, then we
adopt a substantial evidence standard. [Citation.] Alternatively, if the court’s denial rests
solely on a decision of law, then a de novo standard of review is employed.
[Citations.]’ ” PacPizza then insists the de novo standard applies here, because “there
was no dispute that a valid, enforceable arbitration agreement exists . . . .”
       Our Supreme Court addressed this question in St. Agnes Medical Center v.
PacifiCare of California (2003) 31 Cal.4th 1187 (St. Agnes), providing a succinct
summary we find instructive here: “Generally, the determination of waiver [of the right
to arbitrate] is a question of fact, and the trial court’s finding, if supported by sufficient
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.’ [Citation.]” (Id. at p. 1196.)
       Certainly PacPizza has not shown that Judge Flinn abused his discretion. And
certainly his decision is supported by substantial evidence. But even were we to agree
with PacPizza that a de novo standard applies, that the essential underlying facts are not


                                               12
in dispute and only one inference may reasonably be drawn, we would conclude that that
one inference fully supports Judge Flinn’s ruling.
       The Law Governing Waiver of An Arbitration Agreement
       The enforcement of a contractual arbitration provision is governed by Code of
Civil Procedure section 1281.2, which provides in pertinent part: “On petition of a party
to an arbitration agreement alleging the existence of a written agreement to arbitrate a
controversy and that a party thereto refuses to arbitrate such controversy, the court shall
order the petitioner and respondent to arbitrate the controversy if it determines that an
agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right
to compel arbitration has been waived by the petitioner . . . .” California law “reflects a
strong policy favoring arbitration agreements and requires close judicial scrutiny of
waiver claims[, and] the party seeking to establish a waiver bears a heavy burden of
proof.” (St. Agnes, supra, 31 Cal.4th at p. 1195; Engalla v. Permanente Medical Group,
Inc. (1997) 15 Cal.4th 951, 972.) Waiver will not be lightly inferred, and any doubts
regarding waiver should be resolved in favor of arbitration. (St. Agnes, supra, at
p. 1195.)
       No single test defines the conduct that will constitute waiver of an arbitration
right. Rather, courts look to a number of factors to determine whether waiver has
occurred. (St. Agnes, supra, 31 Cal.4th at pp. 1195-1196.) In St. Agnes, the Supreme
Court confirmed that a court may consider the following six factors in assessing a waiver
claim: “ ‘ “(1) whether the party’s actions are inconsistent with the right to arbitrate;
(2) 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; (3) whether a party either requested arbitration enforcement close to
the trial date or delayed for a long period before seeking a stay; (4) whether a defendant
seeking arbitration filed a counterclaim without asking for a stay of proceedings;
(5) ‘whether important intervening steps [e.g., taking advantage of judicial discovery
procedures not available in arbitration] had taken place’; and (6) whether the delay



                                             13
‘affected, misled, or prejudiced’ the opposing party.” ’ [Citation.]” (Id. at p. 1196; see
also Sobremonte v. Superior Court, supra, 61 Cal.App.4th at p. 992.)
       The Trial Court Properly Denied PacPizza’s Petition
       Before delving into the question of whether PacPizza waived its right to arbitrate
Oregel’s claims, we address PacPizza’s assertion that Oregel “conceded” the existence of
a valid arbitration agreement. We see nothing in the record evidencing such a concession
and, indeed, Oregel expressly “does not concede that the purported arbitration agreement
would have been valid or enforceable” but for PacPizza’s waiver. Contrary to PacPizza’s
representation, Oregel’s opposition to the petition was not based exclusively on a waiver
claim; he also argued the agreement was unconscionable and unenforceable. Judge Flinn
made no finding on the validity of the arbitration agreement, ruling only on the issue of
waiver. Like Judge Flinn, we do not address the validity of the agreement because even
assuming a valid arbitration agreement, we conclude that Oregel satisfied his burden of
establishing waiver.
       Turning to the six factors enumerated in St. Agnes, one factor—the fourth one—is
clearly inapplicable here, as PacPizza did not file a cross-complaint. The five remaining
factors all support a waiver finding.
       In the 17 months between Oregel’s initiation of it class action and PacPizza’s
assertion of the arbitration agreement, PacPizza engaged in substantial conduct
inconsistent with its claimed right to arbitrate. An agreement to arbitrate is an affirmative
defense to claims asserted in a lawsuit. (Ross v. Blanchard (1967) 251 Cal.App.2d 739,
742.) Despite this, PacPizza filed two answers in which it failed to assert the existence of
an arbitration agreement as an affirmative defense. (See Guess?, Inc. v. Superior Court
(2000) 79 Cal.App.4th 553, 558 (Guess?) [“At a minimum, the failure to plead arbitration
as an affirmative defense is an act inconsistent with the later assertion of a right to
arbitrate.”].) Early in the litigation, PacPizza paid jury fees and demanded a jury trial,
which Judge Flinn rightly found “would lead any Plaintiff to believe that he or she had to
fully prepare for a full trial.” PacPizza objects that it was obligated to pay jury fees
before the first case management conference, lest it waive its right to a jury. (Code Civ.


                                              14
Proc., § 631.) It certainly would not have been imprudent for PacPizza to preserve its
right to a jury trial in the event its petition proved unsuccessful, had it done so while
making known its intent to seek arbitration. It was the act of preserving its jury rights
while remaining silent on the arbitration agreement that was inconsistent with a right to
arbitrate.
       PacPizza also attended two case management conferences. At the second, the
court established a schedule for the completion of discovery and Oregel’s filing of his
class certification motion. At both conferences, PacPizza was silent about its intent to
arbitrate Oregel’s claims. It later stipulated to a modification of that schedule, again
maintaining its silence on arbitration.
       Beyond all that, PacPizza acted inconsistently with its purported right to arbitrate
by actively participating in discovery pertaining to Oregel’s class claims. Not only did it
respond to Oregel’s discovery, but it also propounded its own discovery requests, many
of which sought information regarding Oregel’s class allegations. PacPizza produced
multiple deponents who were questioned on class issues, and it also deposed Oregel and
25 putative class members. While conducting class discovery, never once did PacPizza
object that the discovery was improper because it intended to seek arbitration of Oregel’s
claims.
       It is also significant that in its November 6, 2012 responses to Oregel’s special
interrogatories, PacPizza represented that there existed a valid arbitration agreement
between the parties, attaching Oregel’s job application to its responses. But PacPizza did
not then seek enforcement of that agreement. Rather, a full year went by—during which
time PacPizza participated in class discovery—before it demanded that Oregel submit his
claims to arbitration.
       Despite of all this, PacPizza disputes it acted inconsistently with its right to
arbitrate Oregel’s claims. This is so, it contends, because it believed it would have been
futile to seek enforcement of the arbitration agreement given the state of the law at the
time. PacPizza is correct that a court may find a party has not acted inconsistently with
its right to arbitrate if the party delayed seeking to enforce an arbitration agreement


                                              15
during a time when that agreement would have been considered unenforceable under
existing law. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348,
376 (Iskanian).) PacPizza is incorrect, however, that the futility rule had any
applicability here.
       By way of background, in Discover Bank v. Superior Court (2005) 36 Cal.4th 148,
162–163, the California Supreme Court held that a class action waiver in a consumer
arbitration agreement was unconscionable, and thus unenforceable, where the “disputes
between the contracting parties predictably involve small amounts of damages, and when
it is alleged that the party with the superior bargaining power has carried out a scheme to
deliberately cheat large numbers of consumers out of individually small sums of
money . . . .” This was followed two years later by its opinion in Gentry v. Superior
Court (2007) 42 Cal.4th 443 (Gentry), in which it extended a similar rationale to a class
action waiver in an employment arbitration agreement.
       In AT&T Mobility v. Concepcion (2011) 563 U.S. __ [131 S.Ct. 1740]
(Concepcion), the United States Supreme Court abrogated the rule established in
Discover Bank, holding that the Federal Arbitration Act (FAA) preempts state laws that
interfere with the fundamental attributes of arbitration. (Concepcion, supra, at p. 1748.)
While Concepcion expressly overruled Discover Bank, it made no mention of Gentry.
(Concepcion, supra, at p. 1753.)
       In June 2014, the California Supreme Court decided Iskanian, supra, 59 Cal.4th
348, which, like Gentry, involved an employment arbitration agreement that contained a
class action, as well as representative action waiver. The Court held that Concepcion
abrogated Gentry and that the class action waiver was valid. (Id. at p. 364.) It also held
that an employer cannot compel waiver of PAGA claims because a PAGA claim in the
employment context is a dispute between the state and the employer and thus falls outside
the FAA’s coverage. (Id. at pp. 386–387.)
       Against this background, PacPizza claims that after Concepcion but before
Iskanian, “there was uncertainty in the law regarding whether a court would enforce the
[arbitration agreement in Oregel’s job application] and order individual arbitration of


                                            16
[his] wage and hour claims . . . .” PacPizza reasons that because Concepcion expressly
overruled Discover Bank but did not specifically address Gentry, Concepcion “did not
provide desired clarity to California employers with respect to employment arbitration
agreements. Instead, California had to wait for the June 2014 California Supreme Court
ruling in Iskanian for that clarification.” PacPizza’s theory is fatally flawed, however, for
one simple reason: the line of cases on which it relies (e.g., Discover Bank, Gentry,
Concepcion, and Iskanian) all involved the enforceability of arbitration agreements
containing express class action waivers. The arbitration provision in Oregel’s job
application did not contain a class action waiver. Thus, Concepcion was irrelevant to the
arbitration agreement at issue here, and the California Supreme Court’s decision in
Iskanian—whether an affirmance or reversal—could have no bearing on the
enforceability of that agreement.
       PacPizza seeks support from multiple cases in which the petitioner prevailed on a
futility claim. None of those cases avails PacPizza, however, because in those cases, the
state of the law was such that the arbitration agreements were in fact unenforceable.
(See, e.g., Fisher v. A.G. Becker Paribas Inc. (9th Cir. 1986) 791 F.2d 691, 695
[defendant had “properly perceived that it was futile to file a motion to compel arbitration
until” the United States Supreme Court rejected the intertwining doctrine]; Letizia v.
Prudential Bache Securities, Inc. (9th Cir. 1986) 802 F.2d 1185, 1186-1187 [same].)
Contrast here, where PacPizza attempts to rely on an erroneous interpretation of the law
to justify its delay in seeking to enforce an arbitration agreement. This, it cannot do.
(See, e.g, Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 447
[rejecting defendant’s futility argument because it relied on a clearly erroneous
interpretation of Discover Bank].)
       We also note that Oregel filed his initial complaint in June 2012. PacPizza does
not identify any authority decided in the period just prior to its November 2013 petition
that changed the governing law and suggested that the arbitration agreement at issue
would suddenly be enforceable. PacPizza’s only excuse for the suspicious timing of its
petition—filed after Oregel filed his class certification motion but before PacPizza’s


                                             17
opposition was due—was that it “attempted to wait for the Supreme Court’s decision in
Iskanian, and its anticipated overruling of Gentry, [but] once class certification was on
the horizon, [PacPizza] could wait no longer.” This argument rings hollow for multiple
reasons.
       First, PacPizza did not petition for arbitration before any briefing on class
certification had been filed. Rather, it waited until after Oregel filed his moving papers,
taking the opportunity to examine his motion and supporting evidence, only to then file
the petition before its opposition was due.
       Second, if PacPizza had truly believed the arbitration agreement was
unenforceable prior to Iskanian, as it would have us believe, the looming issue of class
certification would not have made any difference: either the state of the law supported
enforcement of the agreement or it did not. Instead, the record suggests that PacPizza
believed it could keep open the option of arbitrating the dispute while it conducted
discovery, but when it appeared the class was going to be certified, it asserted its
purported right to arbitrate to preempt certification. As Judge Flinn observed, this was a
strategic decision by PacPizza—and one that should not be rewarded.
       Third, PacPizza also claims that until the Supreme Court’s opinion in Iskanian
there existed inconsistent Court of Appeal rulings concerning the arbitrability of PAGA
claims. In support, it compares Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th
489, claiming it held that PAGA claims are not subject to arbitration, to the Court of
Appeal’s opinion in Iskanian v. CLS Transportation Los Angeles, LLC (2012)
206 Cal.App.4th 949, which held that the FAA applied to PAGA claims. Again,
however, this argument fails because, unlike here, the arbitration agreements at issue in
both of those cases contained express PAGA representative action waivers. (Brown v.
Ralphs Grocery Co., supra, 197 Cal.App.4th at p. 495.)
       In addition to PacPizza having engaged in conduct inconsistent with arbitration,
other St. Agnes factors favor a waiver finding. PacPizza substantially invoked the
litigation machinery and the parties were well into preparation of the lawsuit before
PacPizza attempted to invoke the arbitration provision. While we need not repeat it all


                                              18
here, PacPizza propounded class discovery and engaged in motion practice to obtain
discovery from putative class members, allowed Oregel to conduct extensive class
discovery and file his class certification motion revealing legal positions and evidence
regarding the class members’ claims, and deposed 25 absent class members who
provided declarations in support of class certification. It agreed to a discovery schedule,
including requesting that the trial court set a deadline for Oregel’s class certification
motion. In conducting extensive class discovery that went far beyond simply responding
to Oregel’s discovery requests, PacPizza took advantage of judicial discovery procedures
that would not have been available in arbitration. (St. Agnes, supra, 31 Cal.4th at
pp. 1195–1196.)
       PacPizza also delayed for an astonishing 17 months after Oregel filed his
complaint before it sought to enforce the arbitration agreement. It waited a full year after
providing discovery responses asserting the existence of the arbitration agreement. “ ‘A
demand for arbitration must not be unreasonably delayed. . . . [A] party who does not
demand arbitration within a reasonable time is deemed to have waived the right to
arbitration.’ ” (Sobremonte, supra, 61 Cal.App.4th at p. 992.) Nothing in the record
explains PacPizza’s delay other than its misplaced claim, rejected above, that the law as
to the enforceability of the arbitration agreement was unsettled and its failed tactical
decision to conduct class discovery while sitting on the agreement.
       The final factor identified in St. Agnes—whether PacPizza’s delay “ ‘ ‘affected,
misled, or prejudiced” ’ ” Oregel—is significant to our analysis, as mere participation in
litigation and discovery without prejudice does not compel a finding of waiver.
(St. Agnes, supra, 31 Cal.4th at p. 1203; Sobremonte, supra, 61 Cal.App.4th at p. 995.)
PacPizza contends Oregel did not establish prejudice because prejudice cannot be found
where the party opposing arbitration “shows only that it incurred court costs and legal
fees through discovery, motion practice, and other litigation activities.”4 And, it submits,

       4
         PacPizza goes so far as to claim Judge Flinn did not find prejudice. This claim is
patently false. When PacPizza’s counsel inquired at the hearing whether Judge Flinn was
finding that Oregel had suffered prejudice, the judge responded, “Well, yes,” going on to

                                              19
Oregel only claimed prejudice “because of months of litigation, spending 1,300 attorney
hours ($500,000 in fees) in discovery and in taking and defending depositions resulting in
$19,900 in out-of-pocket expenses . . . .” It has indeed been said that “courts will not find
prejudice where the party opposing arbitration shows only that it incurred court costs and
legal expenses.” (St. Agnes, supra, 31 Cal.4th at p. 1203.) Here, however, Oregel
suffered prejudice far beyond merely incurring legal fees and costs.
       Prejudice will be found where the “petitioning party’s conduct has substantially
undermined [the] important public policy [of arbitration as a speedy and relatively
inexpensive means of dispute resolution] or substantially impaired the other side’s ability
to take advantage of the benefits and efficiencies of arbitration.” (St. Agnes, supra,
31 Cal.4th at p. 1204; see also Lewis v. Fletcher Jones Motor Cars, Inc., supra,
205 Cal.App.4th at p. 452 [prejudice may be found where the party demonstrates it “ ‘has
been substantially deprived of the advantages of arbitration as a “ ‘ “speedy and relatively
inexpensive” ’ ” means of dispute resolution.’ ”]; Burton v. Cruise (2010)
190 Cal.App.4th 939, 943 [“a petitioning party’s conduct in stretching out the litigation
process itself may cause prejudice by depriving the other party of the advantages of
arbitration as an ‘expedient, efficient and cost-effective method to resolve disputes’ ”].)
PacPizza delayed seeking arbitration for 17 months while the parties engaged in
extensive discovery, the majority of which went to Oregel’s class allegations and would




cite the cost to Oregel, the fact that PacPizza used the litigation to gain discovery
pertaining to class members’ claims that it could not have obtained in individual
arbitration, and “more.” And the order denying PacPizza’s petition stated, “Defendant
fully overlooks the extensive prejudice to the Plaintiff in having to do class certification
discovery and prepare an extensive motion for certification, both of which would not play
any part in an arbitration proceeding,” and “Defendant’s conduct has also prejudiced
Plaintiff due to the expenditure of time and expense that could have been avoided if
Defendant had filed its petition to compel individual arbitration early in the litigation.
Any potential cost-saving or time-saving benefits of arbitration have been lost due to
Defendant’s delay that forced Plaintiff to fully work up the case to prepare it for class
certification.”


                                             20
have no bearing Oregel’s claims in an arbitration. There can be no doubt that this delay
deprived Oregel of the advantages of arbitration.
       Additionally, the expenditure of time and money are relevant to the prejudice
analysis. In Iskanian, supra, 59 Cal.4th at pp. 377–378, the Supreme Court endorsed the
line of cases that have interpreted St. Agnes to allow consideration of the expenditure of
time and money in determining prejudice where the delay was unreasonable or
unjustified. (See also Bower v. Inter-Con Security Systems, Inc. (2014) 232 Cal.App.4th
1035, 1048.)
       As in those cases, PacPizza’s unreasonable and unjustified delay caused Oregel to
incur substantial expense. It never suggested that class discovery was unwarranted,
instead remaining silent about its intent to pursue arbitration while both it and Oregel
conducted extensive discovery on the class allegations. It maintained its silence while
Oregel prepared and filed an extensive—and no doubt expensive—class certification
motion. Over the 17 months PacPizza delayed seeking arbitration, Oregel’s counsel
expended over 1,300 hours (corresponding to a lodestar of $500,000 in attorney fees) and
$19,900 in costs. The vast majority of these expenditures would have been avoided had
PacPizza been forthcoming about its intention to seek arbitration. Its contention that
those fees and costs are now irrelevant to the question of prejudice is nothing short of
audacious.
       In light of the foregoing, we easily conclude PacPizza waived any claimed right to
arbitrate. Indeed, many cases have found waiver under less compelling circumstances.
(See, e.g., Bower v. Inter-Con Security Systems, Inc., supra, 232 Cal.App.4th 1035 at
pp. 1039-1041 [10-month delay during which time defendant propounded class
discovery]; Roberts v. El Cajon Motors, Inc. (2011) 200 Cal.App.4th 832 [five-month
delay during which time plaintiff conducted class discovery]; Lewis v. Fletcher Jones
Motor Cars, Inc., supra, 205 Cal.App.4th at p. 446 [five-month delay during which time
the parties litigated multiple demurrers and motions to strike and engaged in discovery];
Adolph v. Coastal Auto Sales, Inc. (2010) 184 Cal.App.4th 1443, 1451-1452 [six-month
delay during which time defendant filed two demurrers, contested discovery requests, and


                                             21
engaged in efforts to schedule discovery]; Guess?, supra, 79 Cal.App.4th at pp. 557-558
[four-month delay during which time defendant moved for a stay, objected to written
discovery, and participated in third-party depositions]; Sobremonte, supra,
61 Cal.App.4th at pp. 993-995 [10-month delay during which time defendant filed two
demurrers, a cross-complaint, and motion to transfer case to municipal court, participated
in five hearings, and engaged in extensive discovery].)
        PacPizza’s Remaining Arguments Are Moot
        PacPizza additionally argues that, one, it was improper for Judge Flinn to “pocket”
the order denying its petition and, two, Judge Flinn erred in denying its request to stay the
action pending decision on the petition. Our conclusion that the petition was properly
denied renders these contentions moot.
                                       DISPOSITION
        We close by quoting with approval the Fourth District’s observation in Adolph v.
Coastal Auto Sales, Inc., supra, 184 Cal.App.4th at p. 1452, in which it affirmed denial
of a petition to compel arbitration on waiver grounds: “We are loathe to condone
conduct by which a defendant repeatedly uses the court proceedings for its own
purposes . . . , all the while not breathing a word about the existence of an arbitration
agreement, or a desire to pursue arbitration . . . . We note that ‘ “the ‘bad faith’ or
‘willful misconduct’ of a party may constitute a waiver and thus justify a refusal to
compel arbitration.” ’ [Citations.] Although the trial court made no express finding of
bad faith, the tone of its ruling is suggestive of such a finding and, had it been made,
sufficient evidence would have supported the finding. True, California has a strong
public policy in favor of arbitration. But that public policy is founded upon the notion
that arbitration is a ‘ “ ‘speedy and relatively inexpensive means of dispute
resolution.’ ” ’ [Citation.] That goal was frustrated by defendant’s conduct.” Likewise
here.
        The order denying PacPizza’s petition to compel arbitration is affirmed. Oregel
shall recover his costs on appeal.



                                              22
                                 _________________________
                                 Richman, J.


We concur:


_________________________
Kline, P. J.


_________________________
Stewart, J.




                            23
Filed 6/1/15

                           CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION TWO



JULIO OREGEL,                                      A141947
        Plaintiff and Respondent,
                                                   (Contra Costa County
v.                                                 Super. Ct. No. MSC12-01454)
PACPIZZA, LLC,
                                                  ORDER CERTIFYING OPINION
        Defendant and Appellant.                  FOR PUBLICATION



THE COURT:
        The opinion in the above-entitled matted filed on May 1, 2015, was not certified
for publication in the Official Reports. For good cause, the requests for publication are
granted.
        Pursuant to California Rules of Court, rules 8.1105 and 8.1120, the opinion in the
above-entitled matter is ordered certified for publication in the Official Reports. Listing
of counsel for the Official Reports is attached hereto.




Dated: ________________                           _________________________________
                                                                          Acting P. J.




                                             1
Trial Court:                                 Contra Costa Superior Court

Trial Judge:                                 Honorable David Bernard Flinn

Attorney for Plaintiff and Respondent:       Keller Grover, Eric Andrew Grover; Steven
                                             Lee Miller; Law Offices of Ellen Lake,
                                             Ellen Lake

Attorneys for Defendant and Appellant:       Burnham Brown, Michael Robert Bodzin




                                         2
