California, United States of America
The following excerpt is from Mayflower Ins. Co. v. Pellegrino, 212 Cal.App.3d 1326, 261 Cal.Rptr. 224 (Cal. App. 1989):
While waiver of a contractual right to arbitrate is ordinarily a question of fact, "where the record before the trial court establishes a lack of waiver as a matter of law, the appellate court may reverse a finding of waiver made by the trial court." (Weisman v. Johnson, (1982) 133 Cal.App.3d 289, 293, 183 Cal.Rptr. 792.) The converse is also true--if the trial court finds a lack of waiver or makes no finding even though the record establishes a waiver as a matter of law, the appellate court may reverse the trial court's finding or hold there was a waiver as a matter of law where the issue was raised but no finding was made.
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