Appeal from an order of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed. (Super. Ct. No. 30-2008-00104716)
The opinion of the court was delivered by: Aronson, J.
CERTIFIED FOR PUBLICATION
We affirm the trial court's determination that a patient waived her contractual right to arbitrate a medical malpractice dispute by waiting to pursue arbitration until the virtual eve of trial, long after discovery, including expert discovery, had been completed.
Substantial evidence supports the trial court's factual determination on waiver, based on our Supreme Court's multi-factored test in St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195 (St. Agnes). The physician suffered prejudice by losing whatever time and cost benefits could have been gained through arbitration, and by focusing his litigation efforts on a jury trial rather than an arbitration panel. Audiences matter, and the factual record supports a finding of prejudice.
I FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Kirsten Burton consulted with defendant Joseph Cruise, a Newport Beach plastic surgeon, regarding a liposuction procedure. In a preprinted agreement, Burton and Cruise agreed to arbitrate "any issue of medical malpractice . . . ." (Capitalization omitted.) The agreement provided that either party could submit an arbitration demand in writing.
In April 2008, Burton sued Cruise for medical malpractice, alleging that he negligently perforated her viscus and small bowel during the liposuction, resulting in contamination of her abdominal wall.*fn1 Despite the arbitration agreement, Burton failed to request an order compelling arbitration or otherwise mention the parties' right to arbitrate.
In early July 2008, Burton filed a case management statement requesting a jury trial, estimated to last 10 days. While Burton checked a box on the case management form regarding mediation, she failed to check a box on the same form regarding binding arbitration.
The trial court held a case management conference later that month. The court verified that all potential parties, including all potential defendants, were named and served. Rather than seeking arbitration, Burton requested a trial date, which the court set for April 2009.
The parties engaged in discovery during the next six months, including propounding and responding to interrogatories and requests for production of documents and depositions. They exchanged their expert lists before the February 2009 deadline.
On February 20, 2009, Burton's counsel faxed a letter to defense counsel demanding arbitration under the arbitration agreement, but suggesting that a single, neutral arbitrator conduct the arbitration rather than a panel, as the agreement specified. Defense counsel declined, arguing Burton had waived arbitration.
Burton's counsel waited until March 11, 2009, to move ex parte for an order shortening time to hear a petition to compel arbitration. The court shortened the time for a hearing to March 17, 2009.
In opposition, Cruise argued that Burton waived her contractual right to arbitration. Defense counsel declared that he designated expert witnesses "very specifically with an eye towards presentation in a superior court trial as opposed to a binding arbitration. As a practical and strategic matter, that same panel of expert witnesses would not have been selected for this case had it been known that the case was proceeding in binding arbitration rather than superior court trial before a jury."
The trial court conducted a hearing on March 17, but took the matter under submission because it had not reviewed Cruise's opposition. At the hearing, the court expressed doubt that Burton could demand arbitration after participating in the litigation process through the eve of trial: "I think if you availed yourself of the authority of the court in your action, it seems to me that you can't at the last minute say . . . but now we want to arbitrate it." The court denied Burton's ...