Augusta v. Keehn & Associates: Delay and Taking Steps in Superior Court Inconsistent with Right to Arbitrate Results in Waiver of Right to Arbitrate


In a published decision issued by the California Court of Appeal, Fourth Appellate District, Division One, the Court of Appeal addressed the issue of whether the trial court properly dismissed a petition to compel arbitration of a legal malpractice claim on the ground that the plaintiff/former client had waived his right to arbitrate. Augusta . Keehn & Associates, 11 C.D.O.S. 2935. The Court of Appeal affirmed the finding of waiver.

The case arose out of alleged malpractice in the handling of securities litigation and alleged bankruptcy-related advice. The retainer agreement between the attorney and client contained a binding arbitration clause covering “any issue or controversy with the firm.” The client filed the legal malpractice complaint in the Superior Court and then, six and a half months later, filed a petition to compel arbitration. During that time, the former client served discovery on the defendant attorney, engaged in meeting and conferring about the attorney’s discovery responses, noticed the attorney’s deposition, and filed two motions to compel discovery.

The Court of Appeal stated the following with respect to the applicable test for waiver....

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