What is the test for waiver of right to arbitrate?

Defendants challenge the court's finding that they waived any assumed right to arbitrate. When determining waiver, the trial court considers whether (1) the party's actions are inconsistent with the right to arbitrate; (2) the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; (3) a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) intervening stepse.g., taking advantage of judicial discovery procedures not available in arbitrationhad taken place; and (5) the delay affected, misled, or prejudiced the opposing party. (St. Agnes, supra, 31 Cal.4th at p. 1196.)⁴ "[W]aiver is not to be lightly inferred and the party seeking to establish it bears a 'heavy burden of proof,' with all doubts resolved in favor of arbitration. . . . ' "It was the trial court's duty to determine whether" the petitioners met their "burden of proof; it is our duty to determine whether there is substantial evidence to support the trial court's findings that it did." ' " (Burton v. Cruise (2010) 190 Cal.App.4th 939, 945-946.)

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