Substitution Of New Named Plaintiff To Represent Class Didn’t “Restart The Clock”.

     In Jacoby v. Islands Restaurants, L.P., No. B250886 (2nd Dist. Div. 5 June 20, 2014) (Turner, Kriegler, Mink) (unpublished), the Court of Appeal ruled that substantial evidence supported the trial court’s finding that defendant employer had waived its right to arbitrate. 

     As readers of this blawg know, findings of waiver are usually very fact specific.  Here, Islands Restaurants filed a demurrer, two motions to strike, a mandate petition, and a review petition in the Supreme Court, and the parties engaged in class-wide discovery.  The case was over two years old and there was a pending class certification motion when defendant filed its motion to compel.  That was “substantial evidence” to support a finding of waiver.

     The one wrinkle is that Chambless, not Jacoby, was the original named plaintiff.  Defendant contended that plaintiff’s substitution as class representative “’reset the clock for purposes of waiver’ jurisprudence.”  Not so, said the Court of Appeal.  Plaintiff Jacoby had always been a putative class member.