¹ "Declarant" means (a) Any person who executes as declarant a declaration as defined in subsection (17) of this section; or (b) Any person who reserves any special declarant right in the declaration; or (c) Any person who exercises special declarant rights or to whom special declarant rights are transferred; or (d) Any person who is the owner of a fee interest in the real property which is subjected to the declaration at the time of the recording of an instrument pursuant to RCW 64.34.316 and who directly or through one or more affiliates is materially involved in the construction, marketing, or sale of units in the condominium created by the recording of the instrument. RCW 64.34.020(15).

² All the aforementioned defendants are appellants here. We refer to them collectively as "Ballard Leary." No. 69500-2-1/4 Ballard Leary filed a notice of appearance, but did not file an answer. Nor did any party conduct discovery. Instead, on July 6, 2012 Ballard Leary filed a CR 12(b)(6) motion to dismiss four of the Association's claims: violation of the CPA, negligent misrepresentation, alter ego liability, and disgorgement of fraudulent transfers. Ballard Leary claimed that the Association lacked standing to assert CPA violations and negligent misrepresentation. Ballard Leary also argued that the Association's alter ego liability and fraudulent transfer claims were premature and should be dismissed without prejudice unless and until the Association prevailed on its claim for damages. In the alternative, Ballard Leary requested that the trial court bifurcate the case and stay the premature issues until the Association established liability and damages. On August 3, 2012, the trial court denied Ballard Leary's CR 12(b)(6) motion. Four days later, on August 7, 2012, Ballard Leary and the Continental defendants filed a demand for arbitration pursuant to RCW 64.55.100. The demand encompassed "any and all claims related to all of the above-captioned parties (plaintiff and defendants)." The Association moved to strike the arbitration demand, arguing that Ballard Leary waived arbitration by demonstrating intent to litigate. The Association also asserted that certain defendants were not entitled to demand arbitration. On August 21, 2012, the trial court issued an order denying Ballard Leary's arbitration demand. The court found that the defendants "evidenced a clear intent to litigate the claims herein, rather than arbitrate them under RCW 64.55.100." The court entered specific findings: (1) defendants' CR 12(b)(6) motion sought to narrow specific liability issues for trial while expressly leaving others for determination by the trier of fact; No. 69500-2-1/5 (2) defendants' motion sought to stage the litigation in an alternative motion for bifurcating the trial of liability and damages from the trial of alter ego and Uniform Fraudulent Transfers Act[, chapter 19.40 RCW,] claims; (3) prior to losing those motions, defendants made no effort to invoke or preserve the arbitration forum; (4) defendants' briefing references "jury confusion" as a basis for bifurcating or dismissing specific claims; and (5) granting the defendants' demand for arbitration, coming as it did only after defendants lost a motion intended to shape the posture of the litigation at trial, would tend to promote improper forum shopping. Therefore, the trial court concluded "that defendants impliedly waived arbitration by their conduct, the timing of their motions practice and demand, and their express representations to the court." The trial court further found that: [Defendants CPI Fund 1, LP; Continental Properties LLC; Claudio Guincher, Jane Doe Guincher; Don Bowzer and Jane Doe Bowzer are not alleged or shown to be declarants having a right to invoke arbitration under RCW 64.55.100, and are not alleged or shown to be subcontractors or material suppliers who may be brought into a statutory arbitration proceeding under RCW 64.55.150. Accordingly, it is not proper to refer cases against them to arbitration. The court added, "Other manufacturer defendants likewise do not fall within the statutory reference to 'parties.'" Ballard Leary moved for reconsideration. In the alternative, Ballard Leary requested that the trial court certify the issue for immediate appeal. The trial court denied both requests. Ballard Leary subsequently filed a notice for discretionary review with this court, requesting review of the order denying its arbitration demand and the order denying its No. 69500-2-1/6 motion for reconsideration. Our commissioner concluded that the trial court's decision denying arbitration is appealable as a matter of right under RAP 2.2(a)(3). DISCUSSION Ballard Leary argues that the trial court erred in denying its arbitration demand and finding that it waived the right to arbitrate under RCW 64.55.100 by filing a CR 12(b)(6) motion to dismiss. Ballard Leary also contends that the trial court erred in ruling that not all the defendants are subject to arbitration under RCW 64.55.100 and RCW 64.55.150. The Association moved to strike the appendix from Ballard Leary's reply brief, to which Ballard Leary objected. RCW 64.55.100(1) provides: If the declarant, an association, or a party unit owner demands an arbitration by filing such demand with the court not less than thirty and not more than ninety days after filing or service of the complaint, whichever is later, the parties shall participate in a private arbitration hearing. The declarant, the association, and the party unit owner do not have the right to compel arbitration without giving timely notice in compliance with this subsection. Unless otherwise agreed by the parties, the arbitration hearing shall commence no more than fourteen months from the later of the filing or service of the complaint. This provision is part of the WCA and creates the arbitration right in dispute here. I. Waiver of Arbitration Ballard Leary contends that it could not waive arbitration as a matter of law, because RCW 64.55.100 creates a mandatory, unwaivable right to arbitrate. In the alternative, Ballard Leary argues that even if it could waive arbitration by its conduct, it did not do so. Specifically, Ballard Leary contends that its CR 12(b)(6) motion to dismiss was a procedural motion that did not go to the merits ofthe case. Ballard Leary emphasizes that it demanded arbitration within 90 days of the service of the complaint No. 69500-2-1/7 and within a reasonable time after the trial court denied its motion to dismiss. We first address whether Ballard Leary waived arbitration by its conduct. We review denial of a motion to compel arbitration de novo. Verbeek Props., LLC v. GreenCo Envtl.. Inc.. 159 Wn. App. 82, 86, 246 P.3d 205 (2010). The party opposing arbitration bears the burden of showing the arbitration clause is inapplicable or unenforceable. Id. at 86-87. Washington has a strong public policy favoring arbitration. Heights at Issaquah Ridge Owners Ass'n v. Burton Landscape Grp., Inc., 148 Wn. App. 400, 405, 200 P.3d 254 (2009). We must indulge every presumption in favor of arbitration, whether the issue is construction of an arbitration clause or allegation of waiver, delay, or another defense to arbitrability. Verbeek Props., 159 Wn. App. at 87. Waiver is the voluntary and intentional relinquishment of a known right. Id. Waiver of an arbitration clause may be accomplished expressly or by implication. Lake Wash. Sch. Dist. No. 414 v. Mobile Modules Nw.. Inc.. 28 Wn. App. 59, 62, 621 P.2d 791 (1980). However, waiver "cannot be found absent conduct inconsistent with any other intention but to forego a known right." |a\ Put another way, a party waives its right to arbitrate if it elects to litigate instead of arbitrate. Otis Hous. Ass'n. Inc. v. Ha, 165 Wn.2d 582, 588, 201 P.3d 309 (2009). The determination of whether a party waived arbitration by conduct depends on the facts of the particular case and is not susceptible to bright line rules. River House Dev. Inc. v. Intearus Architecture, PS. 167 Wn. App. 221, 237, 272 P.3d 289 (2012). In Otis Housing, the Washington Supreme Court held that Otis Housing Association (OHA) waived arbitration by its conduct. 165 Wn.2d at 588. OHA leased a hotel from John and Min Ha with a purchase option. \± at 584-85. OHA announced its intent to No. 69500-2-1/8 exercise the option, but no sale closed before the option expired. Ig\ at 585. Then, after OHA failed to pay rent for six months, the Has brought an unlawful detainer action. Id In a show cause hearing, OHA argued that it timely exercised the purchase option. Id. at 585-86. Only after the trial court disagreed, did OHA move to compel arbitration, id. at 586. The Supreme Court held that OHA's conduct of arguing that it exercised the option as a defense to the unlawful detainer action was completely inconsistent with its intent to arbitrate, jd. at 588. "Having lost that issue, [OHA] may not later seek to relitigate the same issue in a different forum." Id. Similarly, in River House, the party demanding arbitration already attended an in- person status conference with the assigned judge, agreed to a trial schedule and date, exchanged a trial witness list with the opposing party, participated in formal discovery, and represented to the court that it was preparing for trial. 167 Wn. App. at 238-39. This amounted to conduct inconsistent with any other intent but to forgo arbitration, jd. at 239. Conversely, in Verbeek Properties, Verbeek's preliminary attempt to remove a lien was not an election to litigate instead of arbitrate. 159 Wn. App. at 92. Verbeek's motion to dismiss the lien as frivolous raised different issues than those it later sought to arbitrate. \± at 91-92. In essence, a party to a lawsuit who claims the right to arbitrate must take some action to enforce that right within a reasonable time. Otis Housing, 165 Wn.2d at 588. The Washington Supreme Court recently applied this rule in Townsend v. Quadrant Corp., 173 Wn.2d 451, 463, 268 P.3d 917 (2012). There, homeowners sued Quadrant, as well as its parent companies Weyerhaeuser Real Estate Company (WRECO) and Weyerhaeuser Company (Weyerhaeuser), alleging shoddy workmanship in building their homes. Jd. at 453-54. Shortly after receiving notice of the lawsuit, WRECO and Weyerhaeuser moved for summary judgment. Id, at 454. They argued that, aside from the parent-subsidiary relationship with Quadrant, neither of them had any connection to the plaintiffs or their houses. JdL The superior court denied the motion. Id. WRECO and Weyerhaeuser then moved to compel arbitration, jd. at 455. On appeal, we held that WRECO's and Weyerhaeuser's motion for summary judgment did not waive their right to arbitrate. Id. The Washington Supreme Court affirmed this court and held that WRECO's and Weyerhaeuser's conduct did not evince intent to waive arbitration, jd. at 463. They moved to compel arbitration promptly after the superior court denied their motion for summary judgment. Id. And, their summary judgment motion dealt only with their assertions that they had no connection to the lawsuit, jd. The court distinguished these facts from Naches Valley Sch. Dist. No. JT3 v. Cruzen, 54 Wn. App. 388, 395-96, 775 P.2d 960 (1989). Townsend, 173 Wn.2d at 462. In that case, teachers waived arbitration when they prevailed on a substantive summary judgment motion disputing the meaning of their collective bargaining agreement. ]d at 462-63. The Townsend court emphasized that, in contrast, WRECO and Weyerhaeuser moved to compel arbitration promptly after the superior court denied their motion for summary judgment, jd at 463. In its CR 12(b)(6) motion, Ballard Leary asked the trial court to (1) dismiss the Association's CPA and negligent misrepresentation claims for lack of standing and (2) dismiss without prejudice the alter ego liability and fraudulent transfer claims as premature (or, alternatively, bifurcate and stay those claims). Townsend controls on the No. 69500-2-1/10 standing issue. Ballard Leary disputed whether the Association could bring certain claims. Without standing, the Association would not be the proper party to bring suit on those claims nor to arbitrate them. See Ullerv v. Fulleton. 162 Wn. App. 596, 604, 256 P.3d 406 (2011) ("[T]he claims of a plaintiff determined to lack standing are not his or hers to assert and cannot be resolved in whole or in part on the merits."). This is comparable to WRECO's and Weyerhaeuser's argument that they were not proper parties to the lawsuit. Townsend. 173 Wn.2d at 462-63. Such conduct did not waive arbitration there and neither does it waive arbitration here. The question is then whether Ballard Leary waived arbitration by asking the court to dismiss or stay claims as premature. Ballard Leary argued in its CR 12(b)(6) motion that the alter ego and fraudulent transfer issues were secondary to the Association's claim for damages and should be dismissed without prejudice until the Association actually prevailed on its claim for damages. In the alternative, Ballard Leary asked the trial court to exercise its authority under CR 42(b) to bifurcate the case and stay the premature issues. Ballard Leary analyzed the CR 42(b) factors for bifurcating a case: "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim." CR 42(b). In this analysis, Ballard Leary discussed jury confusion and trial expediency as a basis to bifurcate. We must indulge every presumption in favor of arbitration. Discussing jury confusion and trial expediency is consistent with making a CR 42(b) argument to bifurcate, and not necessarily consistent with intent to waive arbitration. The arbitration right available under the statute involved less than all the parties and less than all of the claims. A motion to dismiss other parties or claims, stay those claims, or bifurcate the proceedings would be compatible with the exercise of that arbitration right.3 Such a motion does not necessarily suggest waiver. Moreover, seeking to compel arbitration after losing on bifurcation is not the type of forum shopping at issue in Otis Housing. Only after losing on the merits did OHA seek to compel arbitration. Otis Housing, 165 Wn.2d at 586. In contrast, Ballard Leary lost on a preliminary procedural motion and then immediately sought to compel arbitration. Requesting dismissal without prejudice or bifurcation does not go to the merits of alter ego liability or fraudulent transfers. This is analogous to Townsend. Ballard Leary also did not evince other intent to litigate rather than arbitrate. For instance, it did not file an answer or conduct any discovery. Ballard Leary also moved to compel arbitration only four days after the trial court denied the CR 12(b)(6) motion. There is no dispute that this was within 90 days from service of the complaint, as required by RCW 64.55.100. Otis Housing does not hold that a party must immediately preserve its right to arbitrate. See also Verbeek Props., 159 Wn. App. at 90 (holding that a party does not waive arbitration simply by failing to invoke it in the complaint or answer). Rather, the rule is that a party must take some action to enforce its right to arbitrate within a reasonable time. Otis Housing, 165 Wn.2d at 588. Ballard Leary did so here. Aside from discussing jury confusion and trial expediency as a basis to bifurcate, Ballard Leary evinced no other intent to litigate rather than arbitrate. Best practice would have been for Ballard Leary to preserve its right to arbitrate in its CR

³ Had Ballard Leary been clear with the court about its arbitration rights and intent to invoke them, we have no doubt the trial court would have viewed the issue differently.

⁴ Because we do not reach this issue, we need not consider Ballard Leary's argument regarding Satomi Owners Ass'n v. Satomi, LLC, 167 Wn.2d 781, 805, 225 P.3d 213 (2009). Therefore, we do not consider the Association's motion to strike Ballard Leary's Satomi argument. We find it worth noting, however, that RCW 64.55.100(1) clearly contemplates waiver if the party seeking arbitration does not make a timely demand as required by the statute. 5The parties do not dispute that Ballard Leary is the statutory declarant.

⁶ "'Dealer' means a person who, together with such person's affiliates, owns or has a right to acquire either six or more units in a condominium or fifty percent or more of the units in a condominium containing more than two units." RCW 64.34.020(14).

⁷ See also Mark F. O'Donnell & David E. Chawes, Improving the Construction and Litigation Resolution Process: The 2005 Amendments to the Washington Condominium Act Are a Win-Win for Homeowners and Developers, 29 Seattle U. L.

⁸ Ballard Leary asserted at oral argument that it has counterclaims against the manufacturer defendants. However, nothing in the record shows that Ballard Leary actually brought counterclaims against the manufacturer defendants.