In this appeal of a relatively rare denial of a petition to compel arbitration, Presiding Justice Gilbert and Justice Tangeman each authored an opinion. After you read Gilbert's opinion, you will surely agree with it. But then read Tangeman's opinion, and tell me you haven't changed your mind.
The Upshot: If you decide to litigate despite having a right to arbitrate, consider raising a reservation of the right to arbitrate should new arbitrable claims or defenses be raised. Answers and CMC statements may be a good place to leave these breadcrumbs.
Be prepared for litigation to change shape. Retaining appellate counsel early is a good way be prepared for unexpected turns.
Wells Fargo Bank, N.A. v. Agak (Apr. 12, 2021) no. B300635 (unpublished).