California Appellate Court Rules Client Waived Right to Arbitrate Legal Malpractice Action


A California Appeals Court has affirmed a lower court’s denial of a motion to compel arbitration in a legal malpractice action. In Augusta v. Keehn & Associates, a client moved to compel arbitration six and one half months after filing a complaint against his former attorney.

The client had filed an opposition to the attorney’s demurral to the first amended complaint served discovery papers, noticed the attorney’s deposition and filed two motions to compel discovery. Although the deposition was cancelled, the attorney did finally respond to discovery requests.

The client then filed a motion to compel arbitration. The attorney opposed the motion, claiming that the client had waived his right to arbitrate due to his previous inconsistent court actions and undue delay in seeking arbitration. The lower l court denied the motion and the client appealed.

The appeals court agreed, finding that the client’s delay was unreasonable, given that he was aware of the arbitration provision at the time the complaint was filed Further, the client’s court actions indicated that there was no initial intent to arbitrate, but rather an indication that the client intended to litigate in the courts The court also found that prejudice would have resulted if arbitration were permitted since the attorney had divulged certain trial theories in his discovery responses.

Decision: Augusta v. Keehn & Associates


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