Can delay alone waive the right to arbitrate in California?

California had long applied a rule that made waiver hard to establish: even a party that litigated for months could compel arbitration later unless the other side showed it had been prejudiced by the delay.

Quach removed that requirement, following the U.S. Supreme Court's reasoning in Morgan v. Sundance that arbitration agreements may not be given special procedural treatment. Waiver of the right to arbitrate is now analysed under ordinary contract principles.

The test is whether the party knew of the right and acted inconsistently with it. In Quach the defendant had litigated for roughly thirteen months, participated in discovery and requested a jury trial before moving to compel — conduct the trial court found inconsistent, and which no longer needs to have harmed the plaintiff to count.

The operational consequence is simple and cuts both ways. If an arbitration agreement exists and you intend to rely on it, move early. Litigating first and reaching for the clause when the case turns is now materially more likely to lose the right entirely.