Filed 4/14/14 Mata v. Regency Park Senior Living CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



JUDITH MATA,                                                         B249130

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. BC493461)
         v.

REGENCY PARK SENIOR LIVING,
INC.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Elihu M.
Berle, Judge. Affirmed.
         Reed Smith, Thomas E. Hill and Mara D. Matheke for Defendant and Appellant.
         Hayes Pawlenko, Matthew B. Hayes and Kye D. Pawlenko for Plaintiff and
Respondent.


                               ____________________________________
       The trial court denied the motion of defendant and appellant Regency Park Senior
Living, Inc. (Regency Park), to compel plaintiff and respondent Judith Mata to arbitrate
her claims against Regency Park on an individual basis. Regency Park contends the court
erred in finding a waiver of the right to compel arbitration. It further contends the court
erroneously found the Federal Arbitration Act (FAA) inapplicable to the arbitration
agreement and failed to compel arbitration on an individual, rather than class-wide, basis.
Because Regency Park’s actions were inconsistent with the intent to arbitrate and caused
prejudice to Mata, we conclude that the trial court’s finding of waiver is supported by
substantial evidence. The questions of whether the FAA applies and whether class-wide
arbitration is permissible under the agreement are moot.


                  FACTUAL AND PROCEDURAL BACKGROUND


       On October 9, 2012, Mata filed a putative class action complaint alleging her
former employer Regency Park violated various wage and hour laws. The court assigned
the matter to the complex litigation department and ordered the parties to file an initial
status report in advance of an initial status conference set for December 20, 2012. The
court also imposed a stay on all proceedings until the initial status conference. Mata filed
a proof of service of summons on October 31, 2012, and Regency Park retained counsel
to represent it in the matter by November 12, 2012.
       On December 5, 2012, the parties1 met and conferred telephonically to prepare the
required initial status report. During that call, Regency Park advised that it was aware of
an arbitration agreement signed by Mata but was leaning against seeking to compel
arbitration, and a final decision would be made within the next month. The parties jointly
filed an initial status report on December 13, 2013. The report states: “During her


1      For clarity and to avoid repetition, all references to statements and actions taken
by counsel for Mata or Regency Park will be described as statements and actions by the
respective party, not the party’s counsel.



                                              2
employment with Regency, Plaintiff signed an arbitration agreement which Defendant
asserts covers Plaintiff’s claims in this lawsuit[.] Defendant asserts that the arbitration
agreement is enforceable . . . . Accordingly, Regency is considering filing a motion to
compel arbitration. Regency realizes this motion must be filed in a timely manner and
intends to determine whether arbitration is the appropriate forum to adjudicate Plaintiff’s
claims in the next thirty days.” The parties identified the motion to compel arbitration as
the only crucial early motion and agreed to conduct preliminary discovery with respect to
class certification issues, including discovery of contact information for absent class
members. The parties proposed a second status conference in March 2013, stating:
“Defendant believes that at this time, any motion to compel can be decided before March
2013. In addition, Plaintiff believes its preliminary discovery . . . may be completed
before March 2013.” At the status conference on December 20, 2012, Regency Park
again advised Mata it was doubtful it would elect to seek arbitration, but it was
conducting a final evaluation and would have a decision shortly. With the court’s leave,
Mata filed a first amended complaint on December 28, 2012.
       On December 31, 2012, plaintiff propounded discovery relating to her individual
claims as well as class discovery. On Wednesday, January 16, 2013, Mata inquired about
the status of Regency Park’s arbitration decision. Regency Park responded by e-mail:
“In regards to the motion to compel arbitration, I am hoping to work out that detail by the
end of the week or early next week. I will keep you informed and provide you with an
update on Friday.” Almost two weeks later, on January 29, 2013, Regency Park advised
Mata by voicemail that Regency Park would be proceeding in court and filing a
demurrer. On January 30, 2013, the parties conferred by phone and Mata expressly
confirmed that Regency Park had decided not to seek arbitration and would instead
proceed with filing a demurrer and motion to strike. At Regency Park’s request, Mata
granted Regency Park a one-week extension (from February 1 to February 8) to file a
responsive pleading, as well as a two-week extension to respond to Mata’s special
interrogatories and request for production of documents, making responses due by
February 19, 2013. Mata would not have granted an extension of time to file a demurrer


                                              3
and motion to strike if Regency Park planned to move to compel arbitration, as
responding to the demurrer and motion to strike would have been a waste of time and
money if the case were going to be moved to arbitration.
       Regency Park filed a demurrer and motion to strike on February 8, 2013. On
February 20, 2013, Regency Park served its own discovery, including form
interrogatories, 68 special interrogatories, and 52 categories of document requests. The
discovery sought information and documents relating not only to Mata’s individual
claims but also relating to putative class members.
       On February 26, 2013, Regency Park responded to Mata’s discovery, mostly
objecting to the class discovery on the grounds that a Belaire2 procedure must be
followed. Mata sent a draft Belaire notice and a meet and confer letter responding to
Regency Park’s discovery objections on March 1, 2013.
       On March 11, 2013, the trial court overruled Regency Park’s demurrer in its
entirety and denied the motion to strike, except to the extent it was unopposed by Mata.
It also granted Mata leave to file a second amended complaint adding meal and rest break
allegations and scheduled a hearing on a second demurrer for April 22, 2013. The record
on appeal does not provide us with copies of the first amended complaint, demurrer,
motion to strike, opposition, or reply briefs and also does not include a transcript or
settled statement summarizing the hearing on the demurrer or motion to strike.
       On March 14, 2013, Mata filed her second amended complaint and served a
second set of interrogatories and document requests seeking additional class discovery.
On March 15, 2013, the parties met and conferred again to finalize the Belaire notice.
Regency Park agreed to provide supplemental discovery responses by March 22, 2013.
Regency Park agreed to share the cost of a third party administrator for the Belaire notice
process and circulated a final version of the notice on March 19, 2013.


2      Parties seeking discovery of identifying information for putative class members
must follow an opt-out notice procedure described in Pioneer Electronics, Inc. v.
Superior Court (2007) 40 Cal.4th 360 and Belaire West Landscape, Inc. v. Superior
Court (2007) 149 Cal.App.4th 554.


                                              4
       On March 20, 2013, Regency Park advised Mata that Regency Park was in the
process of finding different counsel. Given the anticipated change in counsel, the parties
stipulated to extend the deadline for Regency Park to file an answer to the second
amended complaint from March 25 to April 16, 2013. The stipulation stated an answer
would be filed and made no reference to a possible motion to compel arbitration. Mata
responded to Regency Park’s discovery on March 26, 2013.
       Represented by new counsel, Regency Park requested and received an extension
of time to respond to Mata’s second set of discovery on April 10, 2013. There was no
mention of an intent to file a motion to compel arbitration. Regency Park did not again
raise the topic of arbitration until an April 12, 2013 letter requesting Mata dismiss her
claims or enter a stipulation to stay the action and submit her claims to arbitration. On
April 16, 2013, Regency Park filed a motion to compel arbitration, which the trial court
denied on May 23, 2013. Mata spent 75 hours in attorney time, valued at more than
$30,000, responding to Regency Park’s class discovery, meeting, and conferring about
Regency Park’s class discovery responses, preparing and finalizing a Belaire notice and
procedure, and opposing Regency Park’s demurrer and motion to strike.


                                       DISCUSSION


A. Standard of Review


       “We apply the substantial evidence standard of review to the court’s finding
defendant waived its right to arbitrate.” (Adolph v. Coastal Auto Sales, Inc. (2010) 184
Cal.App.4th 1443, 1449 (Adolph); see also St. Agnes Medical Center v. PacifiCare of
California (2003) 31 Cal.4th 1187, 1196 (St. Agnes) [“[g]enerally, 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”].) If the facts are undisputed and only one
inference may be reasonably drawn, the issue is one of law and we review de novo. (St.
Agnes, supra, at p. 1196; Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 319.) The


                                               5
substantial evidence standard of review applies because the key issue is whether the
evidence supports an inference that Regency Park waived its contractual right to
arbitration. We draw all reasonable inferences and resolve all ambiguities in favor of the
trial court’s findings. (Burton v. Cruise (2010) 190 Cal.App.4th 939, 946 (Burton).)


B. Waiver of Right to Arbitrate


       When a party to an arbitration agreement moves to compel arbitration, “the court
shall order the petitioner and the respondent to arbitrate the controversy . . . unless it
determines that: [¶] (a) The right to compel arbitration has been waived by the
petitioner . . . .” (Code Civ. Proc., § 1281.2.)3 “Although the statute speaks in terms of
‘waiver,’ the term is used ‘“as a shorthand statement for the conclusion that a contractual
right to arbitration has been lost.”’ [Citation] This does not require a voluntary
relinquishment of a known right; to the contrary, a party may be said to have ‘waived’ its
right to arbitrate by an untimely demand, even without intending to give up the remedy.
In this context, waiver is more like a forfeiture arising from the nonperformance of a
required act. [Citations.]” (Burton, supra, 190 Cal.App.4th at p. 944.)
       State and federal law reflect a strong public policy favoring arbitration because it
permits parties to resolve disputes quickly and with less expense than litigation. (St.
Agnes, 31 Cal.4th at p. 1204; AT&T Mobility LLC v. Concepcion (2011) ___ U.S. ___
[131 S.Ct. 1740, 1745] (AT&T Mobility).) The party opposing arbitration has a heavy
burden of proof and any doubts concerning waiver should be resolved in favor of
arbitration. (St. Agnes, supra, at p. 1195.) “Both state and federal law emphasize that no
single test delineates the nature of the conduct that will constitute a waiver of

3       Mata argues on appeal that Regency Park expressly waived the right to arbitrate
on January 30, 2013 when it notified Mata it had elected against pursuing arbitration and
would be filing a demurrer and motion to strike instead. Regency Park contends Mata
forfeited this argument by failing to raise it before the trial court. In any event, because
we find substantial evidence supports the trial court’s finding of waiver, we need not
address whether Regency Park expressly waived its right to arbitrate.


                                               6
arbitration.” (Id. at pp. 1195-1196.) “‘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.”’” (Id. at p. 1196, quoting Sobremonte v. Superior Court
(1998) 61 Cal.App.4th 980, 992.) Not one of these factors predominates and each case
must be examined in context. (Burton, supra, 190 Cal.App.4th at pp. 944-945.) One
critical factor in determining waiver is whether litigation results in prejudice to the party
opposing arbitration. (St. Agnes, supra, at p. 1203; Augusta v. Keehn & Associates
(2011) 193 Cal.App.4th 331, 340 (Augusta).)
       When the trial court denied Regency Park’s motion to compel arbitration, it found
waiver based on facts demonstrating that Regency Park (1) acted inconsistently with the
intent to arbitrate and (2) its actions resulted in prejudice to Mata. Although the court’s
ruling does not expressly mention unreasonable delay, we examine that factor before
moving on to the other two.


       1. Unreasonable Delay


       The parties disagree about the length of Regency Park’s delay in filing its motion
to compel arbitration, with Regency Park arguing it filed its motion to compel within
three and a half months after the trial court lifted a stay on all proceedings, and Mata
arguing that Regency Park waited more than six months from the filing of the original
complaint in October 2012. Regardless of the exact time frame, we conclude the delay
was unreasonable in light of Regency Park’s failure to even demand arbitration for more


                                              7
than five months after learning of Mata’s lawsuit. It also provided no explanation for
delaying almost three months after January 19, 2013, its self-imposed deadline for filing
a motion to compel arbitration, while at the same time demurring to Mata’s first amended
complaint and actively participating in discovery.
       In Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436 (Fletcher
Jones), the defendant participated in litigation for five months, filing multiple demurrers
and motions to strike and participating in discovery without moving to compel
arbitration. The appellate court affirmed a finding of waiver and agreed that the
defendant’s delay was unreasonable. “We cannot fault the trial court’s conclusion this
delay was unreasonable under these circumstances. Indeed, other courts have found
comparable delays to be unreasonable and justification for a waiver finding. (Guess?,
Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 556 (Guess?) [less than four months
between filing lawsuit and motion to compel arbitration]; Kaneko Ford Design v.
Citipark, Inc. (1988) 202 Cal.App.3d 1220, 1228-1229 . . . [five and one-half months
between filing lawsuit and motion to compel arbitration]; Augusta, supra, 193
Cal.App.4th at pp. 338-339, [six and one-half months between filing lawsuit and motion
to compel arbitration]; Adolph, supra, 184 Cal.App.4th at pp. 1446, 1449, 1451-1452 [six
months between filing lawsuit and demand for arbitration].)” (Fletcher Jones, supra, at
p. 446.)
       In the initial status conference statement filed on December 13, 2012, Regency
Park acknowledged it was aware of the arbitration agreement and asserted the agreement
was enforceable and it was considering filing a motion to compel arbitration. The
statement continued: “Regency realizes this motion must be filed in a timely manner and
intends to determine whether arbitration is the appropriate forum to adjudicate Plaintiff’s
claims in the next thirty days. Plaintiff plans to oppose the motion to compel arbitration,
should such a motion ultimately be filed.” Under the most generous reading of Regency
Park’s statement, if it chose to file a motion to compel, it would do so on or before
January 19, 2013. Regency Park’s failure to file such a motion within its own identified
time frame, combined with the absence of any explanation for the subsequent delay of


                                             8
almost three months, supports a finding that Regency Park unreasonably delayed bringing
a motion to compel arbitration.


       2. Conduct Inconsistent with Intent to Arbitrate


       Regency Park contends that there was insufficient evidence to support a finding of
waiver, because its demurrer and motion to strike were “mere participation in litigation”
and the arbitration agreement expressly permitted the parties to engage in written
discovery. (Keating v. Superior Court (1982) 31 Cal.3d 584, 605, overruled on other
grounds in Southland Corp. v. Keating (1984) 465 U.S.1 [“[w]aiver does not occur by
mere participation in litigation”]; Roman v. Superior Court (2009) 172 Cal.App.4th 1462,
1479 (Roman) [finding no waiver where defendant used in litigation the same discovery
tools that were available under arbitration agreement].) We disagree with Regency
Park’s characterization of its actions and hold that substantial evidence supports the trial
court’s finding of “requisite knowledge and involvement in actions inconsistent with the
intent to arbitrate.”
       “There is no fixed stage in a lawsuit beyond which further litigation waives the
right to arbitrate. Rather, the court views the litigation as a whole in determining whether
the parties’ conduct is inconsistent with a desire to arbitrate.” (Hoover v. American
Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1204 (Hoover).)
       Some cases conclude that a party’s participation in litigation in the form of filing
demurrers and participating in discovery is insufficient to support a finding of waiver. In
Groom v. Health Net (2000) 82 Cal.App.4th 1189, the appellate court reversed the trial
court’s waiver finding where defendant had filed two demurrers and served written
discovery on plaintiff, and one year passed between the filing of the lawsuit and
defendant’s motion to compel arbitration. The court reasoned that the demurrer activity
was not the equivalent of litigation on the merits and the plaintiff conceded she was not
prejudiced by the discovery. In Roman, supra, 172 Cal.App.4th 1462, the court denied a
petition for writ of mandate, rejecting the plaintiff’s argument that the defendant waived


                                              9
the right to compel arbitration by filing a demurrer, objecting to the plaintiff’s discovery
requests, and moving to compel the plaintiff’s deposition. The court pointed out that the
defendant moved to compel arbitration only two months after the plaintiff filed the
lawsuit, no substantive discovery responses had been served by either side, and the
plaintiff’s litigation expenses—incurred in opposing the defendant’s demurrer and
motion to compel deposition and objecting to discovery requests—were insufficient by
themselves to support a finding of waiver. (Id. at pp. 1478-1479.)
       However, other cases have found similar activities to be inconsistent with an intent
to arbitrate, and the California Supreme Court in St. Agnes acknowledged that judicially
addressing claims on their merits through pretrial procedures may support a waiver
finding. (St. Agnes, supra, 31 Cal.4th at p. 1201.) In Adolph, supra, 184 Cal.App.4th at
page 1451, the defendant “‘filed two demurrers, accepted and contested discovery
request[s], engaged in efforts to schedule discovery, [and] omitted to mark or assert
arbitration in its case management statement. . . .’” The court found such activity to be
inconsistent with the intent to arbitrate. “‘It is clear to the court that defendants intended
by their conduct to proceed with their court action. It was only until defendant’s second
demurrer was overruled that it now request[s] this court that it litigate now in another
forum to which all appearances it hopes that it will limit its litigation risk and expense.’”
(Ibid.) In Guess?, supra, 79 Cal.App.4th at page 556, the court found waiver where the
defendant delayed three months without explanation, and in the interim participated in
litigation and discovery without any mention of the right to arbitration. The court found
it immaterial that the plaintiff had initiated the discovery, because the defendant’s
responses were inconsistent with its present claim of a right to arbitrate. (Id. at p. 558.)
       In Berman v. Health Net (2000) 80 Cal.App.4th 1359, 1371, the parties expressly
stipulated that the defendant’s demurrers would not waive its right to compel arbitration.
But for the stipulation, the demurrers would have supported a finding of waiver. (Id. at p.
1371, fn. 16.) The court found the stipulation itself troubling, pointing out that the
parties’ actions were not consistent with the public policy favoring arbitration: “‘“The
courtroom may not be used as a convenient vestibule to the arbitration hall so as to allow


                                              10
a party to create his own unique structure combining litigation and arbitration.”
[Citation.]’ [Citation.]” (Ibid., quoting Christensen v. Dewor Developments (1983) 33
Cal.3d 778, 784.)
       Viewed in the greater context of the litigation, there is substantial evidence
Regency Park’s actions were inconsistent with the intent to arbitrate. Both parties were
aware of the arbitration agreement from the outset of the litigation. From January 19,
2013, until its April 12, 2013 letter demanding arbitration, Regency Park made no efforts
to communicate an intent to arbitrate, or to preserve its right to compel arbitration.
       On January 29, 2013, Regency Park sought an extension of time to file a demurrer
and confirmed to Mata that it had decided against pursuing arbitration. The record does
not include a copy of Regency Park’s demurrer, but resolving any ambiguity in favor of
the trial court’s finding, we presume the demurrer sought to address the merits of Mata’s
complaint. (Burton, supra, 190 Cal.App.4th at p. 946 [appellate court applying
substantial evidence standard of review resolves all ambiguities in support of an
affirmance].) It is understandable that Regency Park may have had a change of heart
after the trial court overruled its demurrer and granted Mata leave to file an amended
complaint. However, the unfavorable result does not change the fact that in filing the
demurrer, Regency Park acted in a manner that was inconsistent with an intent to
arbitrate.
       In addition, the extent of Regency Park’s participation in discovery, both objecting
and then responding to Mata’s class discovery and propounding its own discovery that
included interrogatories and document requests related to class issues, is inconsistent with
an intent to arbitrate. Regency Park argues that because discovery was permissible under
the arbitration agreement, this case is similar to Roman, where the court did not find facts
sufficient to demonstrate waiver and pointed out that defendant “did not seek to take
advantage of discovery tools unavailable in arbitration.” (Roman, supra, 172
Cal.App.4th at p. 1479.) However, the discovery in this case went well beyond that
which might have been permissible under the arbitration agreement, because it covered
class issues, and Regency Park argued in its motion to compel arbitration and on appeal


                                             11
that the agreement does not authorize class-wide arbitration. Had Regency Park intended
to reserve its contractual right to compel arbitration, it should have objected to class
discovery as premature, on the grounds that such discovery would be irrelevant if the
matter went to arbitration. Regency Park did not raise the right to arbitrate as an
objection to Mata’s class discovery. It objected only on the ground that no Belaire notice
procedure was in place. After responding to Mata’s class discovery, Regency Park
continued to act in a manner inconsistent with an intent to arbitrate, meeting and
conferring with Mata on the Belaire process, and agreeing to split the cost of a third party
administrator to carry out the notice process.
       Finally, as late as March 20, 2013, Regency Park stipulated that it would file an
answer to the second amended complaint, making no mention of a motion to compel
arbitration and certainly not reserving the right to file such a motion. And again on April
10, 2013, Regency Park sought another extension of time to respond to Mata’s second set
of discovery, with no mention of any intent to compel arbitration.


       3. Resulting Prejudice


       Regency Park contends the trial court erroneously concluded Mata suffered
prejudice as a result of Regency Park’s actions. “In California, whether or not litigation
results in prejudice also is critical in waiver determinations.” (St. Agnes, supra, 31
Cal.4th at p. 1203.) The combination of ongoing litigation and discovery with delay in
seeking arbitration can result in prejudice. (Hoover, supra, 206 Cal.App.4th at p. 1206;
see also Fletcher Jones, supra, 205 Cal.App.4th at pp.452-453 [finding prejudice where
the defendant’s actions filing multiple demurrers and refusing to extend deadlines,
thereby forcing the plaintiff to file motions to compel, cause the plaintiff to incur $45,000
in attorney’s fees and $1000 in costs].) Although a court will not find prejudice where a
party arguing waiver “shows only that it incurred court costs and legal expenses[,]” a
court can find prejudice where the same party shows that the other party’s conduct has
“substantially undermined” the “‘“strong public policy in favor of arbitration as a speedy


                                             12
and relatively inexpensive means of dispute resolution.”’” (St. Agnes, supra, at pp. 1203-
1204.)
         Mata has suffered prejudice in multiple ways. She repeatedly agreed to extend
Regency Park’s time to file responsive pleadings and respond to discovery. While such
extensions may be a matter of professional courtesy in a complex class action, here they
deprived Mata of the speedy and inexpensive resolution associated with arbitrating an
individual employee claim. Regency Park acknowledged in its initial status conference
statement that a motion to compel arbitration “must be filed in a timely manner” and
stated its intention to file the motion within thirty days. Had it done so by January 19,
2013, Mata would not have been required to oppose the demurrer and could have waited
to pursue compliance with the class discovery she served on December 31, 2012.
         Regency Park’s failure to timely seek arbitration also prejudiced Mata when she
spent unnecessary time and effort seeking and responding to class discovery. Regency
Park’s delay in seeking arbitration had the added prejudicial effect of delaying its
assertion that class wide arbitration is not contemplated under the arbitration agreement.
         Regency Park does not refute that had it made its intent to demand arbitration
known earlier, it is reasonable to infer that Mata would not have engaged in extensive
class discovery without first resolving (a) whether the dispute must be resolved in
arbitration and (b) whether class wide arbitration was permissible under the agreement.
Instead, Regency Park simply relies on the general statement that it is entitled to
participate in litigation before moving to compel arbitration. Both parties were aware of
the arbitration agreement at the outset of this case, Regency Park knew that Mata would
oppose a motion to compel arbitration, and they jointly agreed to proceed with class
discovery. Had Regency Park filed its motion to compel arbitration by January 19, 2013,
as it had represented to Mata and to the trial court, Mata would be aware of Regency
Park’s position that class arbitration is precluded under the agreement, and might have
waited to have the issue resolved before propounding class discovery. The time and
money spent on class discovery goes beyond regular litigation expenses. Mata suffered
prejudice based on the time and resources expended meeting and conferring with


                                              13
Regency Park on its objections to class discovery, and responding to Regency Park’s own
class discovery. Mata was further prejudiced when she drafted a proposed Belaire notice,
which would be meaningless and unnecessary in the context of individual arbitration.


C. Remaining Issues are Moot


       Regency Park contends the trial court erred in finding the arbitration agreement is
not governed by the FAA because Regency Park presented no evidence that the contract
involved interstate commerce. It further contends that the arbitration agreement requires
arbitration on an individual basis, rather than class wide arbitration.
       “‘[A]s a general rule it is not within the function of a court to act upon and decide
a moot question or speculative, theoretical, or abstract question or proposition, or a purely
academic question, or to give an advisory opinion on such a question or proposition . . .’
‘. . . although a case may originally present an existing controversy, if before decision it
has, through act of the parties or other cause, occurring after the commencement of the
action, lost that essential character, it becomes a moot case or question which will not be
considered by the court. [Citations].’” (Wilson v. L.A. County Civil Service Com. (1952)
112 Cal.App.2d 450, 452-453.)
       Both parties agree that the issue of waiver is controlled by state law, not federal
law. Because we affirm the trial court’s finding of waiver, issues of applicable law and
whether class-wide arbitration is permissible under the agreement are moot and need not
be addressed by this court.




                                              14
                                      DISPOSITION


      The order denying Regency Park’s motion to compel arbitration is affirmed.
Costs on appeal are awarded to Mata.




             KRIEGLER, J.



We concur:



             MOSK, J., Acting P. J.



             MINK, J.*




*      Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.


                                          15
