How fast do I need to move on a motion to compel arbitration?
Question: My contract has an arbitration clause but the other side sued in Superior Court. How fast do I need to move on a motion to compel?
Fast — and here is why
Under Code of Civil Procedure section 1281.2, a court will deny a motion to compel arbitration if the moving party has waived the right by conduct inconsistent with an intent to arbitrate. The leading California Supreme Court case is St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196, which set out a six-factor test that courts still apply:
- Whether the actions are inconsistent with the right to arbitrate;
- Whether litigation machinery has been substantially invoked and the parties are well into preparation before the movant notified the opposing party of an intent to arbitrate;
- Whether the movant requested arbitration close to the trial date or delayed for a long period before seeking a stay;
- Whether the movant filed a counterclaim without asking for a stay of proceedings;
- Whether important intervening steps — e.g., taking merits discovery unavailable in arbitration — have occurred; and
- Whether the delay affected, misled, or prejudiced the opposing party.
What conduct is usually safe
Filing a general appearance and answering the complaint, standing alone, is almost always safe. The party has to answer to avoid default; the answer preserves defenses and does not itself invoke the litigation machinery in a merits-heavy way.
What conduct creates real waiver risk
- Filing a cross-complaint on the merits. This affirmatively invokes the court's jurisdiction to resolve claims that could have been arbitrated.
- Propounding merits discovery. Serving substantive interrogatories, requests for production, or depositions on the merits looks like litigation, not arbitration preparation.
- Opposing merits motions on the merits. Fully briefing a demurrer or summary judgment opposition suggests the party has chosen the court.
- Long delay. Waiting months after the answer without invoking the clause is often the single largest waiver factor.
Practical sequencing
- File the motion to compel as your first substantive filing, or as close to it as possible. If an answer must be filed first to avoid default, file it and file the motion contemporaneously.
- Ask for a stay of the litigation pending arbitration under CCP § 1281.4.
- If discovery has already been served on you, respond narrowly and preserve the arbitration objection in writing before producing anything on the merits. A short letter to opposing counsel invoking the clause is often the cleanest record.
- Do not file a cross-complaint on the merits before the motion is ruled on unless you are prepared to arbitrate that cross-complaint too.
The evidentiary showing
A motion to compel needs (1) the arbitration agreement itself and (2) a declaration authenticating it and establishing the moving party's contractual relationship with the opposing party. If the agreement is in a longer contract, attach the whole contract and cite the specific arbitration clause. If the agreement was executed electronically, an authenticating declaration explaining the electronic-signature process is often necessary.