Judge: James C. Chalfant, Case: 24STCP01257, Date: 2024-08-15 Tentative Ruling

Case Number: 24STCP01257    Hearing Date: August 15, 2024    Dept: 85

Respondent Health Net of California, Inc. (“Health Net”) moves to compel arbitration of the Petition filed by Petitioner Ragaa Z. Iskarous (“Iskarous”).

The court has read and considered the moving papers, opposition, and reply[1] and renders the following tentative decision.

A. Statement of the Case

1. The Petition

Petitioner Iskarous filed the Petition on April 19, 2024, alleging a claim for either administrative or traditional mandate.  The Petition alleges in pertinent part as follows.

Since 1990, Iskarous has been in private practice in Southern California. Pet., ¶2.  Her primary office, the Family Medicine & Osteoporosis Prevention Center, is in Downey California and her secondary office, the Maywood Family Medical Center, is located in Maywood, California.  Pet., ¶2.  Her medical staff membership and clinical privileges have never been Suspended nor revoked at any hospital or medical facility.  Pet., ¶2.

Health Net is a Medi-Cal managed care health plan (“MCP”) that sells health insurance policies to consumers in the State of California.  Pet., ¶3.  As part of its operational activities, Health Net performs facility site audits and medical records reviews for practitioners within its network to ensure compliance with Department of Health Care Services (“DHCS”) requirements and the provisions of policies and standards listed in its provider contracts.  Pet., ¶3.

State law requires MCPs such as Health Net to have adequate facilities and service site locations available to meet its contractual requirements with its members for the delivery of primary care.  22 CCR §§ 53230, 53856.  Pet., ¶6.  To ensure compliance, DHCS requires MCPs to perform initial and subsequent primary care provider (“PCP”) site reviews, consisting of a facility site review (“FSR”) and a medical records review (“MRR”). Pet., ¶6.  DHCS collaborates with MCPs to develop, implement, and evaluate site review training and certification, revise training curriculum and materials as needed, and provide technical assistance to MCP personnel on an ongoing basis.  Pet., ¶6.  DHCS also oversees and monitors MCPs’ implementation of its site review policy, currently reflected in its September 22, 2022 All Plan Letter 22-017 (“APL 22-017”).  Pet., ¶6, Ex. B.

In compliance with these mandates, Health Net has included in its provider contracts language facilitating periodic FSRs and MRRs.  Pet., ¶7.  Health Net is thus vested by state law and by contract the responsibility to carry out site reviews of the providers and practices.  Pet., ¶7.  In so doing, it has a ministerial duty to act in compliance with DHCS policies and regulations as well as all other applicable law.  Pet., ¶7.

Pursuant to APL 22-017, when a provider such as Iskarous receives a failing score on a site review from one MCP, all other MCPs "must consider the PCP site as having a failing score."  Pet., ¶8.  As a result, a failing score by one MCP can result in a health care provider being delisted from the provider networks of all MCPs in California.  Pet., ¶8.

In recognition of the importance of fair and accurate site reviews, and consistent with the requirements of APL 22-017, Health Net's contracts with PCPs, including Iskarous, require an exit interview in which the MCP reviewers must share their findings with the PCPs audited and permit the PCP an opportunity to present explanations or evidence challenging those findings.  Pet., ¶9.

The APL 22-017 mandates that fair notice be provided to providers before such site reviews occur.  Pet., ¶14.   Health Net’s contract with Iskarous states "Access to records for the purpose of an audit shall be scheduled at mutually agreed upon times, upon at least thirty (30) business days prior written notice by Health Net or its designated representative. but not more than sixty (60) days following such written notice."  Pet., ¶15.

After an allegedly unfavorable score on a 2022 site review, Health Net informed Iskarous that it would have to perform additional site reviews on her primary practice once every three months for one year.  Pet.¶16.  Following a February 2023 site review, Iskarous was informed that her next site review would take place on June 26, 2023.  Pet., ¶18.Thereafter, the reviewer changed the date of the review to June 28, 2023 without consulting Iskarous or attempting to determine a mutually agreeable time to reschedule.  Pet., ¶18. As a result, Iskarous was forced to cancel patients to accommodate Health Net’s reviewer.  Pet., ¶18.

Health Net's typical practice is to send a "pre-audit" packet prior to site reviews to ensure practitioners receive fair notice of what the review will entail, the relevant scoring criteria, and what to expect.  Pet., ¶19.  No pre-audit packet was provided to Iskarous for the June 28, 2023 review.  Pet., ¶19.  Rather, it was forwarded to her on June 29, 2023, one day after the site review.  Pet., ¶19.

 Per APL 22-017, the MRR portion of a site review is supposed to involve the random selection and review of ten charts at the provider's office.  Pet., ¶21.  For the June 28, 2023 site review, Health Net sent two reviewers, both registered nurses.  Pet., ¶22.  For her own convenience, one nurse reviewed ten small paper-only charts instead of electronic charts selected at random.  Pet., ¶22. 

Iskarous's contract with Health Net explains that the "[p]rovider shall attend an exit interview upon completion of the audit for the purpose of obtaining a mutually agreed upon reconciliation of the initial audit findings."  Pet., ¶23, Ex. C.  No such exit interview took place.  Pet., ¶24.  During the FSR, a nurse reviewer discussed two aspects of her review with Iskarous but shared no findings.  Pet., ¶24.

After the site review was completed, the nurses shared only the raw MRR and FSR scores with Iskarous.  Pet., ¶25.  On June 29, 2023, Iskarous received a Corrective Action Plan form detailing the findings for the first time.  Pet., ¶31.  Iskarou disagreed and believed the nurses made a number of errors.  Pet., ¶28.  These errors were both for the MRR and FSR.  Pet., ¶¶ 34-49.  A Health Net supervisor erroneously asserted to her that there was no mechanism to correct a reviewer’s errors.  Pet., ¶¶ 29, 32. 

On June 30 and July 8, 2023, Iskarous asked that the reviewer errors in the site review be corrected and that her office's scores be recalculated.  Pet., ¶50.  She also requested that the erroneous and invalid failing scores not be shared with other MCPs unless the recalculated scores were also deemed to be failing.  Pet., ¶50.  Even including the errors, Iskarus was within 1% point of a passing score, so it was reasonable to presume that even minimal corrections would have resulted in a score that would not trigger reporting to other MCPs and mandatory delisting therefrom.  Pet., ¶50.

On July 19, 2023, Iskarous’s counsel emailed Health Net's supervisor, informing Health Net that he was representing her and reiterating Iskarous's request that Health Net refrain from informing other MCPs of the allegedly failing scores.  Pet., ¶51.  Fourteen days later, at the urging of Iskarous’s counsel, a Health Net supervisor finally contacted a Health Net attorney.  Pet., ¶51.

On August 3, 2023, Iskarous's counsel emailed the Health Net counsel about the impropriety of reporting disputed failing scores before errors are corrected and the potential consequences of such an action, which would include cancellation of contracts and immediate harm to Iskarous.  Pet., ¶52.  Health Net failed to take appropriate corrective action and reported the invalid failing scores to all other MCPs, severely damaging Iskarous and her practice.  Pet., ¶52.

Thereafter, counsel for both parties met and conferred. Pet., ¶53.  A consensus was reached that neither the APL 22-017 nor Health Net's policies contained a specific protocol for addressing resolution of disputes related to nurse reviewer errors (versus errors by the provider or office).  Pet., ¶53.  A dispute resolution process was agreed upon wherein (1) Health Net would provide Iskarous with necessary documents, e.g., current copy of her provider contract, (2) Iskarous would submit a formal written response to the site review which provided evidence of all the site review errors she contended had occurred, and (3) Health Net would make any corrections it deemed appropriate, recalculate Iskarous's site review scores if necessary, and take whatever corrective action was warranted, if any.  Pet., ¶53.

Iskarous painstakingly gathered evidence and drafted detailed written explanations, identifying the errors that were committed by Health Net's nurse reviewers in their site review and submitted this 122-page response on September 26, 2023, within 30 days of her receiving the agreed upon documents from Health Net.  Pet., ¶54.

Health Net did not reply for over four months. On January 26, 2024, it replied in a five-page letter that it had "no basis to revise the score from Dr. Iskarous's June 2023 follow up audit, nor do the Medi-Cal program rules allow for it."  Pet., ¶55.

On April 8, 2024, counsel for both parties met and conferred to attempt to find an out-of-court solution to the dispute.  Pet., ¶77.  Health Net’s counsel invoked a clause in Iskarous's contract for the first time and demanded that Iskarous meet and confer with one of Health Net’s executives without counsel present.  Pet., ¶77.  Iskarous’s counsel sent letters requesting that this meet and confer take place via certified mail.  On April 19, 2024, Health Net’s counsel stipulated that the meet and confer requirement should be considered as fulfilled. Pet., ¶78.  No further mechanism to challenge this decision has been provided. By Health net’s own averment and actions, Iskarous has no plain, speedy and adequate remedy at law remaining. Pet., ¶79.

Although the process by which Health Net considered the information and evidence Iskarous provided was adopted ad hoc and the decision was made on the papers, it meets the applicable definition of a hearing pursuant to CCP section 1094.5 and review via a petition for a writ of administrative mandamus is therefore appropriate.  Pet., ¶61.

Health Net denied Iskarous her contractually mandated exit interview, which was the only expressly described mechanism for challenging erroneous findings by its reviewers.  Pet., ¶64.  During the subsequent review process, it casually disregarded all of her evidence and explanations. Pet., ¶65.  Health Net also unduly delayed the dispute resolution process by taking over four months to provide its dismissive five-page reply, strongly implying that its agreement to engage in the dispute resolution process was no more than a delay tactic.  Pet., ¶66.  The methods Health Net employed to adjudicate her dispute were therefore decidedly unfair.  Pet., ¶67.

Health Net violated the law by willfully disregarding the requirements of DHCS's APL 22-017 in several respects, including by refusing to provide adequate notice of pending site reviews, failing to provide the required pre-audit packet before the June 2023 site review, rejecting the patient charts randomly selected in favor of charts chosen by a Health Net nurse reviewer for her own convenience and according to her own arbitrary criteria, failing to adhere to the DCHS standards, refusing to correct clear errors, and flawed, invalid site review scores to other MCPs.  Pet., ¶69.

By violating the terms of its agreement with Iskarous and denying her a fair opportunity to challenge the false and inaccurate findings of its site review, Health Net failed to adhere to its ministerial duties under APL 2022-017 and her provider contract, denied her what amounts to the hearing to which she was entitled, and abused its discretion by not proceeding in the manner required of it by law.  Pet., ¶11.

Iskarous seeks a writ of administrative mandate issue commanding Health Net to set aside its site review scores and its January 26, 2024 decision upholding those scores and to issue a new decision consistent with the court’s findings regarding its errors.  Prayer, ¶1.  Iskaroous also seeks traditional mandamus compelling Health Net to inform MCPs to which it previously reported that its scoring and decision of Iskarous were in error.  Prayer, ¶2.  Iskarous further seeks costs of suit, damages, and such other and further relief as the court deems just and proper. Prayer, ¶¶ 3-5.

2. Course of Proceedings

A proof of service on file shows that Health Net was served with the Petition on April 22, 2024.

B. Applicable Law

When a party to an arbitration agreement refuses to submit to arbitration, the other party may petition the court to compel arbitration and stay any pending proceedings.  CCP §§ 1281.2, 1281.4.  The petitioner must allege the existence of an agreement to arbitrate the controversy.  CCP §1281.2.   A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.  CCP §1281. 

Whether an agreement to arbitrate the controversy exists generally involves determination of two issues: (1) whether the parties agreed to arbitrate and (2) what controversies are subject to the parties’ agreement to arbitrate (i.e., arbitrability).  See Omar v. Ralphs Grocery Co., (2004) 118 Cal.App.4th 955, 961; United Public Employees v. City and County of San Francisco, (1997) 53 Cal.App.4th 1021, 1026; see also Citizens of Humanity, LLC v. Applied Underwriters, Inc., (2017) 17 Cal.App.5th 806, 815 (noting that Ninth Circuit defines “questions of arbitrability” as question of “whether parties have submitted a particular dispute to arbitration”).  Where the agreement contains an arbitration clause, a presumption of arbitrability exists and doubts should be resolved in favor of arbitration.  California Teamsters Public, Prof. etc. Union v. County of Solano, (1991) 233 Cal.App.3d 800, 804.

A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract.  Freeman v. State Farm Mutual Auto Insurance Co., (1975) 14 Cal.3d 473.  The petition to compel arbitration functions as and is heard as a motion; i.e., the facts are proven by declaration and documentary evidence with oral testimony permitted only in the court’s discretion.  CCP §1290.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413-414.  The court must conduct a summary hearing “in the manner provided by law for the ... hearing of motions...”  CCP §1290.2.  The provisions of the arbitration agreement shall be set forth verbatim or a copy shall be attached to the petition and incorporated by reference.  CRC 3.1330.  CRC 3.1330 does not require the petitioner to authenticate the agreement or do anything more than allege its existence and attach a copy.  Condee v. Longwood Management Corp., (2001) 88 Cal.App.4th 215.  Once this is done, the burden shifts to the opposing party to demonstrate the falsity of the purported agreement.  Id. 

The trial court shall generally compel the parties to arbitrate if it determines that an arbitration agreement exists and that a party refuses to comply.  Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 342.  The substantive merits of the petitioner’s contentions are irrelevant (CCP §1281.2), and any doubts are resolved in favor of arbitration.  Valsan Partner Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 816.

The issue of who should decide arbitrability turns on what the parties agreed in their contract.  Dream Theater, Inc. v. Dream Theater, (“Dream Theater”) (2004) 124 Cal.App.4th 547, 551.  It is normally an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.  Id. at 552.  An express contractual provision that the arbitrator has power to decide the jurisdictional issue of arbitrability is a clear and unmistakable conveyance.   See Patchett v. Bergamot Station, Ltd., (2006) 143 Cal.App.4th 1390, 1397-98.  However, an express contractual provision to that effect is not necessary.  A contractual provision that a contested claim must be submitted to binding arbitration in accordance with AAA arbitration rules, and those rules specify that an arbitration will decide disputes over the scope of the arbitration agreement, also is a clear and unmistakable conveyance.  Dream Theater, supra, 124 Cal.App.4th at 557; Cal. Prac. Guide: A.D.R. (The Rutter Group 2013) ¶5:214.4.

Regardless of arbitrability, the court will not order the parties to arbitrate a controversy when (1) the right to compel arbitration has been waived by the petitioner or (2) grounds exist for the revocation of the arbitration agreement.  CCP §1281.2.

C. Analysis

Respondent Health Net moves to compel Petitioner Iskarous to arbitrate her mandamus claim on the ground that the parties’ Agreement contains a binding arbitration agreement covering the dispute.  Iskarous opposes, contending that Health Net waived its right to arbitrate.

1. Agreement to Arbitrate

The threshold question is whether there is an agreement to arbitrate.  Cheng-Canindin v. Renaissance Hotel Associates, (1996) 50 Cal.App.4th 676, 683.  “With respect to the moving party’s burden to provide evidence of the existence of an agreement to arbitrate, it is generally sufficient for that party to present a copy of the contract to the court.”  Baker v. Italian Maple Holdings, LLC, (2017) 13 Cal.App.5th 1152, 1160.  Once such a document is presented, the burden shifts to the party opposing the motion to compel to present any challenges to the enforcement of the agreement and evidence in support thereof.  Ibid.

Health Net points to the parties’ Agreement, attached as Exhibit C to the Petition.  Article VII, section 7.5 (Provider Dispute Resolution Procedure) states: “The parties agree to use the dispute resolution provision set forth in [the Agreement], and binding arbitration … as the final steps in resolving any Dispute.”  Ex. C, p. 14.  The parties also agree that any and all Health Net internal appeal processes must be properly pursued and exhausted before engaging in the dispute resolution process in Section 7.5.  Id.

The definition of “Dispute” is “any controversy or disagreement that may arise out of or relate to this Agreement, or the breach thereof, whether involving a claim in tort, contract or other applicable area of law.”  Ex. C, p. 1 (Article I, §1.10).

Section 7.5’s dispute resolution process includes (a) a meet and confer (b a voluntary mediation, and (c) binding arbitration.  Ex. C, p. 14-15 (Article VII, §§ 7.5, 7.6.  “If the parties are unable to resolve a Dispute through the dispute resolution process …, the parties agree[d] that such Dispute shall be settled by final and binding arbitration … under the appropriate rules of the AAA or JAMS.” Ex. C, (Article VII, §7.6).  The arbitration requires a motion to arbitrate by either party.  Id. 

 There are two general categories of arbitration agreements, broad and narrow.  An arbitration agreement for arbitration of “all claims arising out of or relating to” a governing document is a broad provision.  Larkin v. Williams, Woolley, Cogswell, Nakazawa & Russell, (1999) 76 Cal.App.4^th 227, 230.  The arbitration agreement in the contract is broad, covering “any controversy or disagreement that may arise out of or relate to this Agreement”, and includes the parties’ dispute over errors in the June 28, 2023 review.  This is prima facie evidence of an arbitration agreement covering the parties’ dispute. 

Iskarous does not dispute the existence of the arbitration agreement, its scope, or that she is bound by it.

2. Waiver of Arbitration

Iskarous argues that Health Net waived arbitration by its pre-litigation conduct.

a. Law Concerning Waiver of Arbitration Right

In St. Agnes Medical Center v. PacifiCare of California, (“St. Agnes”) (2003) 31 Cal.4th 1187, 1195, the California Supreme Court ruled that waiver of arbitration is not to be lightly inferred and the party seeking waiver bears a heavy burden of proof.   No single test delineates the nature of the conduct that will constitute a waiver of arbitration.  Id.  In determining whether waiver has occurred, courts consider six factors: “(1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether ‘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) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) ‘whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place’; and (6) whether the delay ‘affected, misled, or prejudiced’ the opposing party.”  Id. at 1196.

The California Supreme Court recently modified the law for waiver of a right to contractual arbitration in Quach v. California Commerce Club, (“Quach”) (July 25, 2024) __ Cal.5^th __.  Quach noted that a recent U.S. Supreme Court case, Morgan v. Sundance, Inc., (222) 596 U.S. 411, clarified that federal policy favoring arbitration is about putting arbitration agreements on equal footing with other contracts and the rules applicable to contracts apply in deciding whether a party has lost the right to enforce an arbitration agreement.  Id. at 1.  Although St. Agnes and its following case law required a showing of prejudice to find waiver (id. at 4), that is no longer required.  Id. at 9.  Moreover, some of the St. Agnes factors are more applicable to forfeiture, estoppel, laches, or timeliness, but not waiver, and courts should not apply those factors as a single test to determine whether the right to compel arbitration has been lost through litigation.  Id. at 10.  Instead, courts should be careful to consider only those relevant to the defense raised.  Id.

To establish waiver under contract law -- and hence for an arbitration agreement -- the party opposing enforcement must prove by clear and convincing evidence that the waiving party knew of the contractual right and intentionally relinquished or abandoned it.  Id.  The waiving party’s knowledge of the right may be “actual or constructive”.  Id.  Its intentional relinquishment of the arbitration right may be provided by evidence of words expressing an intent to relinquish the right or by conduct that is so inconsistent with an intent to enforce the contractual right as to lead a reasonable factfinder to conclude that it is abandoned.  Id.  The waiver issue focuses solely on the waiving party’s words or conduct and the effect of that conduct on the moving party is irrelevant.  Id.

b. Application

Iskarous relies on the St. Agnes factors to argue that Health Net waived the right to arbitrate her dispute.  At the end of the agreed upon ad hoc dispute resolution process, Health Net gave a January 26, 2024 "final" response to Iskarous that "Health Net can take no further action on the June 2023 FSR/MRR".  Pet., ¶76.  This was a clear statement that all dispute resolution options available had been exhausted, necessarily including arbitration.  Opp. at 6.

Iskarous argues that Health Net’s actions also are inconsistent with the intention to arbitrate.  Health Net contended that Iskarous's sole opportunity to challenge the site review findings was the exit interview, which she actually was denied.  When Iskarous objected that she had been denied fair process and intended to appeal, Health Net stated that no appeal existed for site reviews, and instead proposed and agreed to the quasi-judicial ad hoc dispute resolution process.  Health Net’s effort to craft a quasi-judicial appeals process outside the scope of anything in the Agreement constituted an implied waiver of the dispute resolution process described in the Agreement, namely arbitration.  Opp. at 6-7.

Health Net’s failure to reference arbitration until the eve of the Petition filing date was also inconsistent with an intent to arbitrate.  Pet., ¶77.  The litigation machinery had already been substantially invoked and Iskarous was well into preparation of her lawsuit before Health Net ever raised arbitration as a possibility.  Iskarous had repeatedly stated her intention to file a writ petition should Health Net fail to proceed fairly during the agreed upon ad hoc dispute resolution process.  She had drafted the Petition and attempted to enter into a stipulation for service on Health Net’s counsel prior to any mention of arbitration by Health Net.  Opp. at 7.

Only after Iskarous engaged in good faith in this work and suffered through delay has Health Net stumbled upon arbitration as an option.  Had Health Net not disavowed arbitration from the outset, the arbitration could have been invoked in August 2023 after Health Net expressly rejected her contention that she had a right to object to its findings.  Opp. at 7-8.

Health Net’s conduct has severely prejudiced Iskarous. If arbitration was always the answer, then she has been subjected to almost a year of needless and damaging delay in which she has continued to lose contracts and income based on Health Net’s reporting of its erroneous findings and invalid failing scores to all other MCPs. She has also found it increasingly difficult to obtain new contracts with other healthcare entities.  Opp. at 8.

As Quach holds, Iskarous’s prejudice is irrelevant to the issue of waiver.  The only relevant evidence is Health Net’s words expressing an intent to relinquish the right to arbitration or conduct that is so inconsistent with an intent to enforce the contractual right as to lead a reasonable factfinder to conclude that it is abandoned.  Iskarous has not shown clear and convincing evidence of either.

First, Iskarous can point to no statement by Health Net that it would waive its arbitration right.  In fact, she admits that the subject never came up until after her Petition was filed.

Second, Iskarous has not shown anything in Health Net’s conduct that is a waiver arbitration.  The case law makes clear that a defendant’s conduct amounting to a waiver of arbitration occurs only after the plaintiff files a lawsuit.  Quach even stated as much when it noted that some of the St. Agnes factors should not be applied as a single test to determine whether the right to compel arbitration has been lost through litigation.  Id. at 10. 

Moreover, Iskarous’s argument that Health Net could waive its right to arbitrate by pre-litigation conduct is not logical.  The parties’ Agreement permits either party to file a motion to arbitrate.  Ex. C, (Article VII, §7.6).  There was no reason for Health Net to seek arbitration from its own denial of Iskarous’s contentions.  As far as Health Net was concerned, it had made a final decision, and the issue was closed.  In contrast, Iskarous could have sought arbitration at any time after the site review, or after her objections were denied in the ad hoc process, so long as she complied with the meet and confer and/or voluntary mediation requirements in Section 7.6.  Iskarous cannot rely on Health Net’s failure to seek arbitration before it was sued, and Health Net has done nothing after the Petition was filed to waive arbitration.

The parties’ ad hoc resolution process does not bear on this analysis.  In the Agreement, the parties agreed to use the dispute resolution processes in Section 7.5 and 7.6 as the “final steps in resolving any Dispute.”  Ex. C, p. 14.  These final steps are a meet-and-confer, a voluntary mediation, and binding arbitration.  The parties also agreed that any and all Health Net internal appeal processes must be properly pursued and exhausted before engaging in the dispute resolution process in Section 7.5.  Id.  The parties’ ad hoc procedure was just such an internal appeal.  Unlike a meet-and-confer, mediation, or arbitration, Health Net remained the decision-maker for this ad hoc procedure.  That ad hoc procedure may have waived any other available internal appeal, but it has no bearing on what Health Net calls “external dispute resolution.”  Reply at 5-6.[2]

Health Net did not waive its right to arbitrate.[3]

E. Conclusion

Health Net’s motion to compel arbitration of Iskarous’s claims is granted.  There is no reason to grant leave to amend.  The case is ordered stayed pending completion of the arbitration.  See CCP §1281.4.