Berman

I agree with my colleagues that the judgment must be affirmed, based on the record before the trial court when it ruled on Health Net’s motion to compel arbitration. I write separately to state my view that a finding of prejudice sufficient to establish waiver requires more than a mere showing that the party seeking arbitration has obtained discovery not available in arbitration, as the majority opinion suggests. I think the law is clear that there must be, in addition, some basis for inferring that the discovery obtained has worked an unfair advantage to the moving party, or some other evidence of unreasonable delay, bad faith or the like from which prejudice may be inferred.

Arbitration is strongly favored. In waiver cases, our Supreme Court has “stressed the significance of the presence or absence of prejudice,” observing that waiver does not occur “by mere participation in litigation . . . .” *1374 (Keating v. Superior Court (1982) 31 Cal.3d 584, 605 [ 183 Cal.Rptr. 360 , 645 P.2d 1192 ].)

My concern in this case arises because it appears from the record on appeal that both Health Net and the Bermans engaged in extensive discovery. This suggests to me that both parties…

Defendants and appellants Health Net and Health Systems International, Inc. (collectively, Health Net), appeal from an order of the trial court denying their petition to compel arbitration of claims by plaintiff and respondent Peter Berman in connection with Health Net’s handling of health care benefits for his late wife, Renee. Health Net argues the discovery it conducted prior to filing its motion to compel arbitration was not enough, in the absence of any other factor, to establish prejudice to the Bermans, and thus was insufficient to support a finding it waived its right to compel arbitration. We disagree and find substantial evidence supports the trial court’s implied finding of prejudice, and its consequent finding of waiver by Health Net. We therefore affirm the judgment based on Davis v. Continental Airlines, Inc. (1997) 59 Cal.App.4th 205 [ 69 Cal.Rptr.2d 79 ].

Factual and Procedural Background

Renee Berman, now deceased, was diagnosed with colon cancer in June 1992. She had surgery and chemotherapy in July, receiving medical care under her husband Peter’s insurance, obtained through his employment as a deputy district attorney in Los Angeles County. In the…

Defendants and appellants Health Net and Health Systems International, Inc. (collectively, Health Net) appeal from an order of the trial court denying their petition to compel arbitration of claims by plaintiff and respondent Peter Berman in connection with Health Net's handling of health care benefits for his late wife Renee. Health Net argues the discovery it conducted prior to filing its motion to compel arbitration was not enough, in the absence of any other factor, to establish prejudice to the Bermans, and thus was insufficient to support a finding it waived its right to compel arbitration. We disagree and find substantial evidence supports the trial court's implied finding of prejudice, and its consequent finding of waiver by Health Net. We therefore affirm the judgment based on Davis v. Continental Airlines, Inc. (1997) 59 Cal. App.4th 205 , 69 Cal.Rptr.2d 79 .

Renee Berman, now deceased, was diagnosed with colon cancer in June 1992. She had surgery and chemotherapy in July, receiving medical care under her husband Peter's insurance, obtained through his employment as a deputy district attorney in Los Angeles County. In the fall of 1992, the Bermans' health…