In Sky Sports, Inc. v. Superior Court, (2nd Dist., Div. 3, Dec. 15, 2011) Case No. B233820, the California Court of Appeal held that a defendant does not waive its right to compel arbitration of a class action by waiting to file a motion to compel arbitration until the class has been certified, where some of the class members, but not the class representative, signed arbitration agreements with defendant.

Plaintiff, a private security guard, filed a class action against his employer, Sky Sports, Inc. ("Sky Sports") for failing to provide rest breaks to its security guard employees. In its answer to the complaint, Sky Sports contended the action was barred by a mandatory arbitration agreement. Although plaintiff had not signed an arbitration agreement with Sky Sports, many other putative class members had.

Plaintiff subsequently moved to certify a class of "all current and former licensed security guards." In its opposition, Sky Sports submitted a list of putative class members who had signed arbitration agreements. Sky Sports contended that plaintiff was an inadequate class representative because he had not signed such an agreement. Sky Sports further contended that plaintiff could not use the class action procedure to circumvent valid arbitration agreements. The trial court agreed with the plaintiff. It certified the class and ruled that Sky Sports had waived its right to arbitration by unreasonably delaying in filing their motion to compel arbitration. Sky Sports filed a petition for writ of mandate to overturn the trial court, and the Court of Appeal stayed the proceedings and granted the petition.

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