The question of whether the right to arbitration was waived by litigation conduct is to be decided by the court, not the arbitrator.  Hong v. CJ CGV America Holdings, Inc., 166 Cal. Rptr. 3d 100(Cal. Ct. App. 2013) (No. B246945).  Defendants moved to compel plaintiffs to arbitrate pursuant to an arbitration clause.  Plaintiffs opposed the motion, arguing that defendants had waived the right to arbitrate by litigating the dispute before moving for arbitration.  The trial court rejected defendants’ argument that the “waiver by litigation conduct defense” should have been decided by an arbitrator and denied the motion to compel arbitration.  The California Appellate Court affirmed, concluding that the court, rather than an arbitrator, should decide the merits of the waiver by litigation conduct defense to arbitration.