Plaintiff files a retaliation suit against his employer, DoorDash, but deliberately refrains from making a sexual harassment claim, hoping that the trial court will refuse to compel arbitration on the merits, without applying the California harassment exception. Sadly (for him), the court issues a tentative disagreeing with his position and compelling arbitration. So at the hearing, plaintiff asks (for the first time) to amend and add a harassment claim. Has the plaintiff waived, or forfeited, arbitration by not raising the issue in his original complaint and in his opposition to the motion to compel arbitration?
Justice Scherb authors the majority opinion and says "Yes." Justice Wiley dissents, arguing that while he would be fine with sanctioning plaintiff's lawyer for the manipulation, there's no waiver. (Truthfully, this is more "forfeiture" than "waiver" -- the two concepts are often conflated.)
Two competing views of a strategy that, in all honesty, I don't think anyone should replicate regardless.
