Filed 7/6/21 Hillair Capital Investments v. West CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

HILLAIR CAPITAL 

INVESTMENTS LP et al.,

Plaintiffs and Appellants,

v.

KIM KARDASHIAN WEST et al.,

Defendants and Respondents.

 B299897

 (Los Angeles County

 Super. Ct. No. BC614374)

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Richard L. Fruin, Jr., Judge. Affirmed.

Fayer Gipson, Gregory A. Fayer, Elliot B. Gipson and 

Michelle K. Millard for Plaintiffs and Appellants.

Kinsella Weitzman Iser Kump & Aldisert, Michael J. 

Kump, Jonathan P. Steinsapir and Nicholas C. Soltman for 

Defendants and Respondents.

_________________________
2

This case arises primarily out of disputes over licensing 

royalties, indemnity obligations, and promotional duties between

the owners and affiliates of a cosmetics company and Kim 

Kardashian West, Kourtney Kardashian, Khloe Kardashian, 

Kimsaprincess Inc., 2Die4Kourt, and Khlomoney Inc. (collectively 

the Kardashians).1 

The cosmetics company was originally operated by Boldface 

Licensing + Branding (Boldface) pursuant to a licensing 

agreement (Licensing Agreement) with the Kardashians. 

Boldface developed a cosmetics line with the brand name Khroma 

Beauty but later rebranded it as Kardashian Beauty. Haven 

Beauty, Inc. (Haven), a company affiliated with Hillair Capital 

Investments LP (HCI) and Hillair Capital Management LLC 

(HCM) (collectively appellants), eventually acquired all of

Boldface’s assets from a receiver, including its rights under the 

Licensing Agreement. 

Though Haven attempted to continue the cosmetics line, 

the relationship between appellants and the Kardashians soon 

degraded. HCI and HCM sued the Kardashians for, inter alia, 

breaching their obligations to promote the cosmetics line. The 

Kardashians, in turn, initiated arbitration pursuant to 

arbitration clauses in two agreements, the Licensing Agreement 

and the mutual releases (Releases) signed by the parties just 

prior to the time Haven acquired Boldface’s assets. In their 

1 Kimsaprincess Inc., 2Die4Kourt and Khlomoney Inc. are 

loan out companies for, respectively, Kim Kardashian West, 

Kourtney Kardashian, and Khloe Kardashian. For ease of 

reference, we equate the three companies with the corresponding 

individuals.
3

demand for arbitration, the Kardashians asserted claims against 

appellants for Haven’s failure to pay royalties. Additionally, they 

asserted a claim for indemnity based on Haven’s failure to pay 

the attorney fees associated with prior litigation in which the 

Kardashians were sued for trademark infringement over 

Boldface’s use of the brand name Khroma. The trial court 

compelled HCI and HCM to arbitrate their claims against the 

Kardashians, and the arbitration panel (Panel)2 determined that 

it had jurisdiction over certain claims asserted by the parties 

against each other. The Panel awarded the Kardashians over 

$11 million against appellants for, among other things, Haven’s 

failure to pay royalties and indemnity. The trial court confirmed 

the arbitration award, and it denied appellants’ contemporaneous 

petition for vacatur.

On appeal, appellants seek review of the orders compelling 

arbitration, confirming the arbitration award, and denying 

appellants’ petition for vacatur. 

We affirm the judgment.

FACTS3

The Licensing Agreement Between Boldface and the 

Kardashians

In 2012, the Kardashians and Boldface executed the 

Licensing Agreement to allow Boldface to use the Kardashians’ 

2 The Panel was comprised of three arbitrators. 

3 We have incorporated the Panel’s factual findings into our 

statement of facts. The appellate record does not contain a 

transcript from the arbitration, and the Panel’s factual findings 

are not subject to review for sufficiency of the evidence. 

(Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 

367, fn. 1. (AMD).)
4

trademarks, images, and likenesses for the development, 

manufacture, production, distribution, advertisement, promotion

and sale of specified cosmetic products. The Kardashians were 

entitled to an advance of $1 million plus an 8 to 10 percent 

royalty on the wholesale price of products (sales royalty) or, 

alternatively, guaranteed minimum royalty payments for various 

contract periods and an optional renewal period for a total of

$5,206,900.

4 They agreed to provide ancillary services, which 

included making marketing and production appearances, taking

photographs for promotional material and product packaging, 

wearing products, and providing design input. 

Boldface agreed to defend, indemnify and hold each of the 

Kardashians harmless from and against claims by third parties 

based on the development, manufacture, distribution, and sale of 

its products. 

The Licensing Agreement contained an arbitration clause

providing that all “claims, disputes and other matters arising out 

of or relating to this Agreement shall be submitted to, and 

determined by, binding arbitration in accordance with Judicial 

Arbitration and Mediation Services [(JAMS)] . . . and . . . in 

accordance with its Commercial Rules[.]”

HCI and HCM

HCM “manages the investment funds of[,] and is the 

investment advisor to[,]” HCI. HCI invests in small-cap publiclytraded companies and in other business opportunities. HCM and 

4 Contract period one was from May 9, 2012, to 

November 30, 2013; contract period two was from December 1, 

2013, through November 30, 2014; contract period three was from 

December 1, 2014, through November 30, 2015; contract period 

four was from December 1, 2015, through November 30, 2016; 

and the renewal period was 18 months. 
5

HCI act primarily through Sean McAvoy (McAvoy) and Neal 

Kaufman (Kaufman).

Trademark Infringement Litigation; HCI’s Loan to 

Boldface; the Kardashians’ Forbearance

Boldface publicly announced that its new line of cosmetic 

products would be called Khroma Beauty. At the time, Lee 

Tillett, Inc. held a federally registered “Kroma” mark used in 

connection with the sale of its own cosmetics products. In 

October 2012, Lee Tillett, Inc. sued Boldface and the Kardashians

for trademark infringement in Florida, and Boldface later filed a 

competing declaratory relief action in California (collectively the 

Tillett litigation). 

Boldface borrowed money from HCI to fund the litigation as 

well as its cosmetics operation, and it released cosmetic products 

under the new brand name Kardashian Beauty. Due to the 

money they invested in Boldface, HCI and/or HCM had the 

leverage to select John LaBonty (LaBonty) to serve as Boldface’s

new chief executive officer (CEO). 

To assist Boldface in coping with its financial distress and 

the demands of the Tillett litigation, the Kardashians agreed to 

forbear payment of sales royalties and guaranteed minimum 

royalties due throughout 2013 and 2014. The Tillett litigation

settled and a judgment was entered against Boldface and the 

Kardashians.

The July 31, 2014, Term Sheet

By July 2014, Boldface was descending into insolvency. 

HCI and/or HCM discussed a cooperative relationship with the 

Kardashians to keep Kardashian Beauty afloat. On July 31, 

2014, HCM and the Kardashians executed a term sheet (Term 

Sheet) identifying them as investors in a company called Newco 
6

Beauty Company (Newco). Per the Term Sheet, HCI would 

acquire Boldface’s assets in an insolvency proceeding with a $2 

million credit bid. Also, HCI would invest equity and pay the 

judgment in the Tillett litigation. While HCI would own 

51 percent of Newco, the Kardashians would own 40 percent and 

unrelated parties would own 9 percent. The Term Sheet set forth 

various conditions, including: “[Newco] shall have obtained free 

and clear title to the Licens[ing] Agreement;” and it “shall have 

been amended by [the Kardashians] and [Newco] to provide for 

the elimination of minimum required payments[.]” 

The parties negotiated for several months but they did not 

agree on an amendment to the Licensing Agreement. Many other 

terms in the Term Sheet went unfulfilled. 

The Releases

On August 26, 2014, HCM and the Kardashians executed

the Releases. The Kardashians released “any and all Claims” 

which could have been asserted against HCM and its affiliates 

“in connection with (a) the Licens[ing] Agreement and the subject 

matter thereof, (b) Boldface and its business, and/or (c) the 

[Tillett litigation settlement] and the subject matter thereof, 

including without limiting the generality of the foregoing, any 

Claims and Obligations which were, might or could have been 

asserted in connection with [HCM’s] involvement or investment 

in Boldface and its business.” Appellants released their claims 

against the Kardashians in commensurate fashion.

The Releases stated that any “dispute, claim or controversy 

arising out of or relating to this Agreement or the breach, 

termination, enforcement, interpretation or validity thereof, 

including the determination of the scope or applicability of this 

agreement to arbitrate, shall be determined by arbitration” 
7

administered by JAMS “pursuant to its Comprehensive 

Arbitration Rules and Procedures.” Subdivision (b) of the JAMS 

Comprehensive Arbitration Rules & Procedures, Rule 11 

provided that “[j]urisdictional and arbitrability disputes, 

including disputes over the formation, existence, validity, 

interpretation or scope of the agreement under which Arbitration 

is sought, and who are proper Parties to the Arbitration, shall be 

submitted to and ruled on by the Arbitrator. The Arbitrator has 

the authority to determine jurisdiction and arbitrability issues as 

a preliminary matter.” 

The Asset Purchase Agreement; Bill of Sale; Instrument of 

Transfer and Assignment

To accomplish the acquisition of Boldface, HCI and/or HCM 

sued Boldface as a secured creditor. The trial court placed 

Boldface into receivership. HCI and/or HCM made a credit bid 

on all of Boldface’s assets. 

The receiver in possession of Boldface’s assets executed an 

Asset Purchase Agreement (APA) with Newco. The APA was 

dated October 15, 2014. It stated that the receiver would 

transfer various assets, including all rights under the Licensing 

Agreement. Further, it stated that Newco would assume all 

Boldface’s liabilities for transaction taxes, and “all liabilities and 

obligations arising on or after the Closing Date, relating to or 

arising out of the Acquired Assets.” Under the APA, Newco was 

not “assuming any other liability or obligation” and specified that 

“[a]ll such other liabilities and obligations shall be retained by 

and remain liabilities and obligations of Boldface[.]” 

Newco and the receiver executed a bill of sale dated 

October 22, 2014, as well as an Instrument of Transfer and 

Assignment.
8

Haven; Negotiations Between the Kardashians and 

HCI/HCM

HCI/HCM formed Haven to hold the former assets of 

Boldface. Haven took Newco’s place and acquired the assets on 

October 17, 2014. Boldface’s CEO, LaBonty, continued on as the 

CEO of Haven. 

LaBonty dedicated much of the next year looking for an 

investor-partner to replace HCI/HCM and to fund Haven’s capital 

through a relaunch and coordinated his efforts with McAvoy and 

Kaufman on behalf of HCI/HCM, and Todd Wilson on behalf of 

the Kardashians. 

As 2015 wore on, the parties realized that no investor was 

prepared to buy out HCI/HCM’s interests in the Licensing 

Agreement. HCI/HCM terminated LaBonty as CEO. On 

December 5, 2015, McAvoy and Kaufman spoke to the 

Kardashians’ representatives about entering a long-term 

licensing agreement. The Kardashians were interested, but only 

if HCI/HCM would commit to investing sufficient capital in 

Kardashian Beauty to adequately fund development, production, 

marketing and sales. HCI/HCM submitted a proposal that 

offered debt financing at levels the Kardashians deemed 

inadequate.

Notice of Breach

By the beginning of 2016, the Kardashians were 

increasingly disenchanted with the idea of continuing their 

relationship with Haven and HCI/HCM. They had not received 

any royalties due from Boldface or Haven except for the advance 

payment of $1 million. 

On February 26, 2016, the Kardashians sent appellants a 

letter stating that they had breached the Licensing Agreement by 
9

failing to pay $3,043,625 in royalties and failing to indemnify the 

Kardashians for $767,259.73 in legal fees and costs incurred in 

the Tillett litigation. 

HCI and HCM’s Complaint for Breach of Contract and 

Various Torts

HCI and HCM sued the Kardashians for breach of the 

Term Sheet, breach of its covenant of good faith and fair dealing, 

breach of fiduciary duty, fraud, negligent misrepresentation, and 

promissory estoppel. They alleged: “The essence of the [Term 

Sheet] was that [HCI/HCM] would put up millions of dollars to 

fund the continued distribution of [the Kardashians’ makeup] 

line, and [the Kardashians] would continue to be the faces of the 

line and actively promote, market and support the line, while 

making certain concessions under their existing deal with 

Boldface.” The Kardashians’ “support was . . . absolutely 

essential to the success of the Kardashian-branded line[.]” While 

HCI/HCM “upheld its end of the bargain, [the Kardashians] did 

not. After the parties executed the [T]erm [S]heet and 

[HCI/HCM’s] money was committed, [the Kardashians] almost 

immediately stopped marketing, promoting and supporting the 

line and began courting new potential investors to buy out 

[HCI/HCM’s] stake.” The Kardashians’ “wrongful conduct 

. . . destroyed any opportunity for [HCI/HCM] to obtain the 

benefit of its bargain under the [T]erm [S]heet.” As a result, 

HCI/HCM “suffered significant damages, including the loss of 

approximately $10,170,000 in invested funds, as well as the loss 

of the value of [HCI/HCM’s] equity interest in the company that 

distributes the Kardashian Beauty line, valued at between” $64 

and $180 million. 
10

The Kardashians’ Demand for Arbitration

The Kardashians filed a demand for arbitration of claims 

against appellants for breach of the Licensing Agreement, breach 

of the Term Sheet, breach of the implied covenant of good faith 

and fair dealing of both contracts, promissory fraud and 

declaratory relief. The Kardashians sought damages for 

appellants’ failure to pay about $3.4 million in guaranteed 

minimum royalties as well as $809,502.325 in indemnity related 

to the legal fees and costs the Kardashians incurred in the Tillett

litigation. They additionally sought damages for appellants’ 

unauthorized uses of their images. In the prayer, they sought 

recovery of attorney fees. 

Petition to Compel Arbitration of the Breach of Contract 

and Tort Claims in HCI and HCM’s Complaint

The Kardashians filed a petition to compel HCI and HCM 

to arbitrate the breach of contract and tort claims in their 

complaint, citing the arbitration clauses set forth in the Releases

and the Licensing Agreement. The trial court granted the 

petition. In its written ruling, it stated:

6

“a) Plaintiffs concede that under the parties’ agreements, 

‘the arbitrator determines the question of arbitrability with 

respect to the [Releases].

5 The amount of the requested indemnity increased over 

time. The reasons are not relevant to this opinion.

6 In the ruling, the trial court referred to “Plaintiffs” and 

“HILLAIR.” While it is clear that “Plaintiffs” refers to HCI and 

HCM, it is unclear whether “HILLAIR” is a reference to HCI and 

HCM or perhaps just HCM. We have therefore preserved these 

references in our quote of the ruling.
11

“b) Plaintiffs’ causes of action raise common questions of 

law or fact re the issues to be arbitrated under the [Releases]. It 

is undisputed that, under [the Releases] HILLAIR released the 

Kardashians from ‘any and all claims and obligations,’ etc., and 

that in the instant complaint, Plaintiffs seek to recover monies 

from the Kardashians that Plaintiffs alleged[ly] ‘invested in 

Boldface and its business . . . .’ Such claims, regardless of 

whether they are asserted as breaches of the ‘Term Sheet,’ 

necessarily ‘relate to the [Releases] or its breach, termination, 

enforcement, interpretation or validity thereof’ and must 

therefore be resolved in arbitration per the parties’ agreement.

“c) The non-signatories can be compelled to arbitration 

where, as here, the claims are ‘dependent upon or inextricably 

intertwined with the obligations imposed by the contract 

containing the arbitration clause.’

“d) The question of arbitrability under the Licens[ing]

Agreement should also be decided by the arbitrator. Here, 

Plaintiffs’ objections to arbitration are either already under 

consideration, or will be referred to the arbitration panel by 

JAMS.

“e) Plaintiffs are estopped from denying the arbitrability of 

claims under the Licens[ing] Agreement, having sued pursuant to 

that agreement. . . .

“f) For purposes of determining arbitrability, HILLAIR is 

the ‘alter ego’ of HAVEN—at least, that’s a question for the 

arbitrator to decide.” 

Further Notice of Breach

On June 22, 2016, the Kardashians sent a letter notifying 

appellants of “certain breaches” and stated that appellants failed 

to pay required indemnification of $815,747.20 plus 8 percent of 
12

royalties on sales. The purpose of the letter was to give 

appellants an opportunity to cure these breaches within 10 

business days. It stated that notice of these breaches was not 

intended to waive any breaches detailed in prior letters or the 

demand for arbitration.

The Termination Letter; The Kardashians’ Federal Action

for Injunctive Relief; The Federal Court’s Ruling on 

Arbitration

The Kardashians sent a letter on July 8, 2016, terminating 

the Licensing Agreement. After Haven continued using the 

Kardashians’ names and images, the Kardashians filed a 

complaint against appellants, Kaufman, and McAvoy for 

injunctive relief in federal court under the Lanham Act (15 

U.S.C. § 1051 et seq.) and California law to enjoin appellants’ 

alleged infringement of the Kardashians’ trademarks and state 

rights of publicity. The Kardashians obtained a preliminary 

injunction to prevent Haven from releasing the Kardashian 

Beauty products and using the Kardashians’ names and images 

without their permission.

7

The Kardashians requested that the federal court compel 

appellants, Kaufman and McAvoy to arbitrate. The federal court 

issued an order to show cause but then later denied the request 

as to HCI, HCM, Kaufman and McAvoy because they were not 

signatories to the Licensing Agreement, and because equitable 

estoppel could not be used to compel nonsignatories to arbitrate 

their defenses to contract claims. The federal court noted that 

7 Appellants represent that once the preliminary injunction 

was in force, Haven “immediately ceased distributing products 

and wound down its business.” 
13

the Kardashians and Haven agreed that their dispute was 

subject to arbitration. 

Appellants’ Objection to Arbitral Jurisdiction; the Panel’s 

Order Regarding Jurisdiction and Arbitrability

Appellants objected to the Panel’s arbitral jurisdiction

under the Releases, contending they have “nothing whatsoever to 

do with the claims in this action. The Releases are irrelevant as 

they predate any of the claims at issue.” (Bolding omitted.) They 

also argued: “[T]he claims herein do not arise out of the 

[Releases], nor are they related in any way to the [Releases]. The 

[Releases are] utterly irrelevant to this dispute.” Alternatively,

they argued that to the extent any claims were arbitrable under 

the Releases, that would mean they had been released and 

should be dismissed. Appellants also objected to the Panel’s 

arbitral jurisdiction under the Licensing Agreement with respect 

to the claims asserted by HCI and HCM against the 

Kardashians. According to appellants, (a) the trial court had to 

decide whether HCI and HCM, as nonsignatories to the Licensing 

Agreement, could be compelled to arbitrate based on equitable 

estoppel or an alter ego theory, and (b) the facts did not support a 

finding that equitable estoppel or an alter ego theory were 

applicable.

Aside from a narrow exception, the Panel determined that 

it had subject matter and personal jurisdiction over all claims, 

defenses and parties in the arbitration based on the Releases and 

Licensing Agreement.

Arbitration Proceedings

In the arbitration, parties asserted their claims against 

each other. As for the Kardashians, they sought damages for

breach of the Licensing Agreement by HCI, HCM and Haven; 
14

intentional interference with contractual relations by HCI and 

HCM; and infringement by Haven of the Kardashians’ trademark 

and right to publicity. 

Denial of Appellants’ Motion for a Continuance

Appellants filed a motion to continue the arbitration 

hearing, and the Kardashians opposed. The Panel denied the 

motion. 

Trial Briefs

The Kardashians submitted a trial brief and argued that 

they were entitled to guaranteed minimum royalties or, 

alternatively, sales royalties. They also claimed they were 

entitled to be indemnified for the attorney fees they incurred in 

the Tillett litigation. With respect to Haven, the Kardashians 

sought damages for trademark infringement and violation of 

their right to publicity. They also sought an award of attorney

fees under the Lanham Act in conjunction with their federal 

action to enjoin Haven from infringing on their trademarks and 

right of publicity. 

In appellants’ trial brief, they argued in favor of their 

affirmative claims. They also argued that the parties intended 

that the Releases have no effect on the parties’ obligations under 

the Term Sheet. 

The Merits Hearing

The Panel conducted a nine-day arbitration hearing from 

February 20, 2018, through March 2, 2018. 

Postarbitration Briefs

The Kardashians submitted a postarbitration brief in 

which they requested an award of $6,280,750 in guaranteed 

minimum royalties. In the alternative, they requested $342,498

in sales royalties that were due. Also, the Kardashians requested 
15

an award of $1,027,854 to indemnify them for their defense in the 

Tillett litigation.

Appellants submitted a postarbitration brief and argued 

that they had been damaged by the Kardashians’ conduct in 

multiple respects, including their failure to promote the 

Kardashian Beauty cosmetics line. Regarding the Kardashians’ 

claims, appellants argued that they did not breach the Licensing 

Agreement, Haven did not infringe on any trademarks or 

publicity rights, and HCI and HCM did not breach the Term 

Sheet. Appellants did not argue that the Kardashians’ claims 

had been released by the Releases and should be dismissed. 

The Merits Orders

The Panel issued two merits orders. 

In the first merits order, it noted that the Kardashians

“seek recovery jointly and severally from Hillair and Haven of 

$6,280,750 in [guaranteed minimum royalties] . . . accrued but 

unpaid during the term of the Licens[ing Agreement]. If the 

Panel finds that [guaranteed minimum royalties] are not

available, [the Kardashians] seek recovery from Hillair of 

$342,498, representing 8% of total net sales of $4,281,234 during 

relevant Haven Contract Periods. The Kardashians also seek 

recovery of $1,027,854 in attorney’s fees” related to the Tillett

litigation. 

The Panel proceeded to find that Haven breached the 

Licensing Agreement by (a) failing to make the sales royalty 

payments to the Kardashians as demanded on July 22, 2016, and 

(b) failing to indemnify the Kardashians for legal fees that they 

incurred defending themselves in the Tillett litigation. Based on 

these breaches, the Kardashians’ “termination of the Licensing 

Agreement was warranted[.]” Next, the Panel found that HCI, 
16

HCM and “Haven are jointly and severally liable for damages 

caused by their breaches of the Licensing Agreement. Haven is a 

wholly-owned subsidiary of [HCI/HCM], and Haven’s only 

function was to serve as the agent of [HCI/HCM]. All dealings 

between Haven and the Kardashians were conducted by 

[HCI/HCM] through [McAvoy] or [Kaufman]. To the extent 

Haven’s CEO, LaBonty, interacted with the Kardashians, he was 

under the direction and control of McAvoy or Kaufman. [¶] The 

principal members of [HCI/HCM] also were the principal 

members of Haven and controlled the conduct of LaBonty 

throughout their mutual relationship with the Kardashians. 

[HCI/HCM] controlled the most important decisions of Haven in 

its dealings with the Kardashians under the Licensing 

Agreement. Under the circumstances, Haven served as the agent 

of [HCI/HCM].”8 The Panel also concluded that “it would be 

inequitable” for HCI/HCM to avoid liability after “ensuring that 

Haven would have inadequate funds to pay” any judgment 

against it.

The Panel rejected appellants’ argument that “the 

receivership proceedings extinguished the Kardashians’ rights to 

indemnification under . . . the Licensing Agreement. Here[,] the 

[r]eceiver took the assets of Boldface subject to all liens, defenses, 

and equities[.]” Also, the APA, Bill of Sale and Instrument of 

Transfer and Assignment clearly provided that the assets of 

Boldface were conveyed as is. “That this also was the 

understanding of Haven and [HCI/HCM] was confirmed by the 

8 To support its agency finding, the Panel cited Sonora 

Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523

(Sonora Diamond).
17

testimony of [LaBonty], former CEO of both Boldface and Haven, 

and Haven’s [chief financial officer], Jeanene Morgan [(Morgan)], 

by email communications between [Kaufman], [LaBonty], 

[Morgan], and Todd Wilson.” 

Shifting from liability to damages, the Panel determined 

that the “Licensing Agreement provides substantial guidance on 

how these damages should be calculated.” “The Panel finds that 

the most reasonable and readily quantifiable measure of the 

Kardashians’ damages for unpaid royalties is the sum of the 

guaranteed minimum royalties that were due. Section 5.A. of the 

Licensing Agreement specifies that the Kardashians are to 

receive a Guaranteed Minimum Royalty of $4,686,125 for the 

original 54 months of the Licensing Agreement from May 9, 2012, 

to November 30, 2016.” The Panel explained that Haven gave 

written notice of extending the term of the Licensing Agreement 

by an additional 18 months through May 30, 2018. Thus, the 

Kardashians “contend they are entitled to an additional 

[guaranteed minimum royalty] of $2,594,625[,] bringing the total 

[guaranteed minimum royalty] to which they are entitled to 

$7,280,750, less the $1,000,000 advance payment, for a total

[guaranteed minimum royalty] due to the Kardashians of 

$6,280,750.” 

Appellants argued that the Kardashians should be 

equitably estopped from recovering guaranteed minimum 

royalties “because the Term Sheet provided for their elimination 

upon execution of an amended Licensing Agreement.” Because 

the Licensing Agreement was never amended, the Panel rejected 

this argument. 

The Panel awarded a total of $1,027,854 for attorney fees 

incurred in the Tillett litigation. Next, it determined that 
18

because Haven infringed on the Kardashians’ trademark and 

publicity rights, and because the Kardashians obtained an 

injunction, the Lanham Act (15 U.S.C. § 1117(a)) entitled the 

Kardashians to recover their related attorney fees and costs. The 

order specified that the Kardashians could file a petition for 

attorney fees and costs. Finally, it determined that the 

Kardashians were entitled to interest at 18 percent per annum 

and instructed the parties to confer and agree on a computation 

of the interest to be included in the award.

All of appellants’ claims against the Kardashians were 

rejected. 

In the second merits order, the Panel awarded the 

Kardashians preaward and postaward interest. 

The Interim Award

The Panel issued an interim award consistent with the 

merits orders. It added that the Kardashians were entitled to 

$254,673 in attorneys’ fees and costs, and HCI/HCM were

entitled to a $54,986.40 offset based on an award of sanctions 

against the Kardashians for spoliation of evidence.9 Per the 

interim award, the parties were ordered to confer concerning the 

form and content of the final award, and to serve the Panel with 

“a joint report with agreed and non-agreed corrections and 

suggestions for inclusion in a final award, which must be 

consistent with the determinations set forth in [the] Interim 

Award[.]” 

Appellants’ Letter Brief; Further Briefing

On December 14, 2018, appellants submitted a letter. They

argued that Haven was not the agent of HCI and HCM so they 

9 Appellants claimed that the Kardashians intentionally 

deleted their e-mails.
19

could not be liable for its breaches, and that the Releases

extinguished the Kardashians’ claims for guaranteed minimum 

royalties and indemnity. 

The Panel issued an order stating that the parties could 

submit briefing. 

In response, the Kardashians defended the Panel’s 

imposition of agency liability. Regarding the Releases, they 

posited that appellants’ “arguments are too little, too late. First, 

for strategic reasons, Hillair knowingly waived any argument 

that the [Releases were an affirmative defense to the 

Kardashians’ claims for] damages. Hillair was obviously 

concerned that the . . . Release[s] would jeopardize its alleged

claim for millions of dollars in damages based on its ‘lost 

investments’ in Boldface. Having chosen to ignore [whether the

Releases were an affirmative defense] to the Kardashians’ claims 

in its over 120 pages of pre-trial and post-trial briefing, 

[appellants] must live with the consequences of that choice. In 

any event, even if the Panel chooses to reach the merits of 

[appellants’] waived Release[s] arguments, the Kardashians in

August 2014 could not have, and did not, release Hillair from 

liability for future conduct. Because the Panel’s liability and 

damages award is based on conduct occurring after August 2014, 

the Release[s] ha[ve] no effect whatsoever on the viability of the 

Kardashians’ claims.” They cited law for the proposition that the 

failure to raise an issue prior to a ruling on the merits functions 

as a waiver. 

Order Re Requested Modifications of Interim Award; The 

Final Award

In an order regarding requested modifications of the 

interim award, the Panel stated, “Certain modifications to which 
20

the parties have agreed or to which no objection has been made 

have been incorporated into the final award, which is rendered 

contemporaneously with this Order. To the extent other 

requested modifications have not been included, the Panel has 

determined those modifications to be unnecessary and/or 

inappropriate. Accordingly, the Panel expressly [denies] any 

request for modification that has not been incorporated into the 

Final Award.” 

The final award was consistent with the interim award

except that the indemnity award was increased from $1,027,854 

to $1,070,714.

The Competing Petitions to Confirm and Vacate the 

Arbitration Award

The Kardashians petitioned to confirm the arbitration 

award and appellants petitioned to set it aside. The trial court 

confirmed the award, denied the petition to set aside the award, 

and entered judgment against HCI, HCM and Haven for 

$11,243,772.03. Haven was ordered to pay the additional sum of 

$254,673. 

This appeal followed.

DISCUSSION

Appellants challenge the order compelling arbitration, 

claiming: 

(1) The trial court improperly made substantive 

determinations regarding arbitrability that were reserved for the 

Panel in the arbitration clause in the Releases.

(2) The trial court improperly permitted the Panel to 

decide whether HCI and HCM, as third parties to the Licensing 

Agreement, had to arbitrate under that agreement’s arbitration 

clause.
21

(3) Insofar as the trial court stated that HCI and HCM 

were equitably estopped as third parties from denying 

arbitrability under the Licensing Agreement, that statement was 

nonbinding dicta.

(4) If the trial court made a binding ruling based on 

equitable estoppel that HCI and HCM, as third parties, must 

arbitrate based on the arbitration clause in the Licensing 

Agreement, it erred.

(5) Even if the trial court properly compelled HCI and HCM 

to arbitrate their contract claims under the Licensing Agreement

based on equitable estoppel, it erred when it compelled them to 

arbitrate their tort claims based on that same doctrine.

Next, appellants contend that the trial court abdicated its 

role and failed to address many of the urged grounds for vacatur 

of the arbitration award. Appellants challenge the orders 

confirming the arbitration award and denying vacatur of the 

arbitration award as follows:

(1) “The Panel failed to decide a necessary issue: whether 

the Releases, pursuant to which the Panel took jurisdiction over 

HCI and HCM, released any of the claims at issue.”

(2) “The arbitrators ‘exceeded their powers’ by. . .[:]”

(a) “awarding $6,280,750 as a ‘proxy’ remedy for

Haven’s failure to pay a fixed and undisputed amount of 

$342,498 due under the License;”

(b) “awarding [guaranteed minimum royalties] and 

indemnity amounts that [r]espondents repeatedly 

relinquished;”

(c) “imposing joint and several liability on HCI and

HCM for Haven’s breaches of a contract to which they were 

not parties;”
22

(d) “improperly awarding attorneys’ fees under the

Lanham Act;” and

(e) deciding issues beyond the scope of their

jurisdiction.

(3) “Appellants were substantially prejudiced by the

arbitrators’ denial of Appellants’ well-founded request for a first 

continuance of the final hearing.” 

I. Standards of Review.

Orders compelling arbitration are subject to independent 

review on appeal when the trial court’s interpretation of the 

arbitration agreement does not involve conflicting extrinsic 

evidence. (Cortez v. Doty Bros. Equipment Co. (2017) 15 

Cal.App.5th 1, 12.) The same standard applies to orders

confirming arbitration awards and denying their vacatur. 

(Lindenstadt v. Staff Builders, Inc. (1997) 55 Cal.App.4th 882, 

892, fn. 7.; SWAB Financial, LLC v. E*Trade Securities, LLC

(2007) 150 Cal.App.4th 1181, 1198 (SWAB).) 

II. Up Front Resolution of Certain Issues.

Though appellants raise many arguments attacking the 

underlying court orders, the lead dominoes in this appeal are:

(1) whether the final award is subject to judicial review for errors 

of fact or law, (2) whether the Panel determined its own 

jurisdiction under the arbitration clause in the Releases, 

(3) whether the Panel’s determination of its own jurisdiction

under the Releases is subject to judicial review, (4) whether the 

Panel’s determination of its own jurisdiction under the Releases 

was wholly groundless, and (5) whether the Kardashian’s claims 

against appellants should have been dismissed because those 

claims were released.
23

The first issue impacts whether we can question the Panel’s 

legal and factual findings.

The second, third and fourth issues streamline matters

because if the Panel had jurisdiction over all the claims based on 

the Releases, it does not matter whether they had jurisdiction 

based on the Licensing Agreement.

Finally, the second through fifth issues are pivotal because 

the Kardashian’s claims were arbitrable, if at all, only under the 

Releases. If they were not arbitrable, then the portion of the final

award awarding damages to the Kardashians should have been 

vacated. While equitable estoppel was a viable theory for 

compelling appellants to arbitrate their claims under the 

Licensing Agreement, equitable estoppel was not available as a 

vehicle for compelling appellants to arbitrate their defenses to

the Kardashians’ claims because appellants were not signatories 

to the Licensing Agreements and the doctrine cannot be invoked 

against nonsignatory defendants. (Jensen v. U-Haul Co. of 

California (2017) 18 Cal.App.5th 295, 306–307 [plaintiffs can be 

equitably estoppel from denying arbitrability when they seek the 

benefits of contracts containing an arbitration clause]; JSM 

Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 

1239–1240 [same].)

A. In General, We Cannot Review Errors of Fact or Law.

Unless an arbitration clause specifically requires 

arbitrators to act in conformity with rules of law, an arbitrator 

can base his or her decision upon broad principles of justice and 

equity. Arbitrators may expressly or impliedly reject a claim that 

a party might successfully have asserted in a judicial action. 

(Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10–11 

(Moncharsh).) Generally, arbitration awards are immune from 
24

judicial review. “More specifically, courts will not review the 

validity of the arbitrator’s reasoning. [Citations.] Further, a 

court may not review the sufficiency of the evidence supporting 

an arbitrator’s award. [Citations.]” (Id. at p. 11.) With narrow 

exceptions, “an arbitrator’s decision cannot be reviewed for errors 

of fact or law.” (Ibid.)

Despite Moncharsh, appellants contend that when the 

Federal Arbitration Act (FAA) applies, an arbitrator’s errors of 

law are subject to judicial review.

The FAA applies to written agreements to arbitrate if they 

evidence “a transaction involving commerce.” (9 U.S.C. § 2) The 

Licensing Agreement and Term Sheet fall within that definition 

because they contemplated the sale of cosmetics, an endeavor 

that affects commerce. (Shepard v. Edward Mackay Enterprises, 

Inc. (2007) 148 Cal.App.4th 1092, 1097 [“‘“involving commerce”’”

means “‘“affecting commerce,”’” “a term of art that ordinarily 

signals the broadest permissible exercise of Congress’s commerce 

clause power”].) But the “FAA’s procedural provisions are not 

controlling, and the determinative question is whether [the 

California Arbitration Act (CAA)] procedures conflict with the 

FAA policy favoring the enforcement of arbitration agreements. 

[Citation.]” (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 

Cal.4th 1334, 1352 (Cable Connection).) 

Based on Cable Connection, appellants argue that we 

should find that the CAA is preempted to “the extent that it 

affords more restricted review than the FAA.” There are some 

federal courts that will find that an arbitrator exceeded his or her 

powers when the arbitration award evinces a manifest disregard 

of the law. (Comedy Club, Inc. v. Improv West Assocs. (9th Cir. 

2009) 553 F.3d 1277, 1290; Comerica Bank v. Howsam (2012) 208 
25

Cal.App.4th 790, 830 [noting that federal courts are split as to 

whether manifest disregard of the law remains grounds for 

vacatur].) Appellants request that we apply that standard. But 

precedent establishes that an “arbitrator’s [alleged] manifest 

disregard of the law is not a ground for vacatur under California 

law.” (Ibid.) Cable Connection does not countermand this rule. 

When California courts refrain from reviewing arbitration 

awards for errors of law, that logically leads to confirmation of 

those awards out of deference. A rule that leads to confirmation 

of arbitration awards helps to enforce arbitration agreements. 

There is no basis to find preemption.

We conclude that our review of the arbitration award is 

broadly controlled by Moncharsh.

B. The Panel Decided its Own Jurisdiction Under the 

Arbitration Clause in the Releases.

Some arbitration clauses grant arbitrators the unusual 

power of deciding their own jurisdiction. (Patchett v. Bergamot 

Station, Ltd. (2006) 143 Cal.App.4th 1390, 1397 [arbitrator could 

decide his own jurisdiction when the parties agreed that 

controversies of whatever nature in relation to the interpretation 

of the agreement, including the arbitrability of any claim, would 

be settled by arbitration].) 

The arbitration clause in the Releases state that all 

controversies arising out of or relating to the agreement, 

including interpretation and determination of the scope or 

applicability of the arbitration clause shall be determined by 

JAMS pursuant to its Comprehensive Arbitration Rules and 

Procedures. Those rules gave the arbitrator final say on 

jurisdiction and arbitrability. In their reply brief, appellants 

state that they “do not dispute that the Panel had the power to 
26

determine whether the claims at issue were arbitrable pursuant 

to the Releases[.]” 

We conclude that the Releases gave the Panel the power to 

decide its own jurisdiction. The question presented is whether it

in fact decided its own jurisdiction. While appellants agree that 

the Panel had the power to do so, they contend that the trial 

court, not the Panel, decided arbitral jurisdiction. Because a trial 

court cannot make determinations on substantive issues of 

arbitrability that are reserved for arbitrators (Sandquist v. Lebo 

Automotive, Inc. (2016) 1 Cal.5th 233, 261), appellants argue that 

we must reverse the final award.

To tackle these issues, we must interpret (1) the trial 

court’s order compelling arbitration of HCI and HCM’s claims 

and (2) the Panel’s order on jurisdiction over HCI and HCM’s 

claims and the Kardashians’ claims.

1. The Trial Court’s Order Refrained from Deciding 

Substantive Issues of Arbitrability Regarding HCI and HCM’s 

Claims and Instead Referred Those Issues to the Eventual 

Arbitrators.

“The meaning of a court order or judgment is a question of 

law within the ambit of the appellate court. [Citation.] ‘. . . In 

construing orders they must always be considered in their 

entirety, and the same rules of interpretation will apply in 

ascertaining the meaning of a court’s order as in ascertaining the 

meaning of any other writing. If the language of the order be 

in any degree uncertain, then reference may be had to the 

circumstances surrounding, and the court’s intention in the 

making of the same.’ [Citations.]” (In re Ins. Installment Fees 

Cases (2012) 211 Cal.App.4th 1395, 1429–1430.)
27

The trial court determined that HCI and HCM’s claims 

based on the Term Sheet necessarily related to the breach, 

termination, enforcement, interpretation or validity of the 

Releases and, on that basis, it referred them to arbitration

because HCI and HCM sought to recover money that they 

invested in Boldface and its business. At the same time, it stated 

that the parties “concede that under the parties’ agreements, ‘the 

arbitrator determines the question of arbitrability with respect’” 

to the Releases, and the “question of arbitrability under the 

Licens[ing] Agreement should also be decided by the 

arbitrato[rs][.]” In context, we interpret the trial court’s order to 

mean that the parties had to litigate all issues—including the 

scope of arbitration—before the eventual arbitrators. The trial 

court left it for the Panel to decide what issues fell within its 

arbitral jurisdiction.

2. The Panel Decided its Own Jurisdiction.

The Panel’s jurisdictional order stated: “The Panel has 

determined that it has subject matter and personal jurisdiction 

over all claims, defenses and parties in and to this arbitration—

including all state court claims asserted by the Hillair parties, 

which have been determined to be arbitrable, based on [the 

Releases] and the Licens[ing] Agreement—except for the narrow 

exception carved out by [the federal court] . . . .” The Panel then 

added that it “decided to accord respect and thus defer to . . . [the 

trial court’s] determinations of equitable estoppel as a basis for 

[its] order . . . compelling arbitration of Hillair’s state court 

claims.” 

In a footnote, the Panel stated that it determined that 

appellants’ “contentions and argument that its claims were 

neither released nor releasable under the [Releases] is an 
28

invitation to put the ‘cart-before-the-horse,’ which the Panel has 

declined to do, instead determining that—regardless of their

ultimate resolution by the Panel—the claims are subject to the 

arbitration provision of the [Releases].” 

Whether it was right or wrong, the Panel determined that 

it had jurisdiction over all claims except those it expressly 

excluded. 

Pushing back, appellants take the position that the 

jurisdictional order was preliminary, and that the Panel failed to 

make a final decision on jurisdiction by deciding whether the 

Releases in fact released the claims at issue. There was nothing 

preliminary about the language in the jurisdictional order. Even 

if it was preliminary, the final award implicitly resolved all 

jurisdictional issues. After all, by ruling on the various claims, 

the Panel was expressing its belief that it had the authority to 

issue those rulings.10

C. The Panel’s Determination of Its Own Jurisdiction Must 

be Upheld Unless it Was Wholly Groundless. 

Greenspan v. LADT, LLC (2010) 185 Cal.App.4th 1413, 

1439 (Greenspan) held that a court can review “whether the 

arbitrator’s decision on arbitrability was ‘wholly groundless.’ 

[Citations.]” (Id. at p. 1443.) 

Greenspan relied on a federal case and two state cases 

holding that a trial court should honor a party’s claim that a 

dispute is arbitrable unless that claim is wholly groundless. 

10 Appellants contend that the final award was not final 

because the Panel did not decide the necessary issue of whether 

any claims were released. They seek to conflate that issue with 

whether the Panel determined that it had jurisdiction under the 

Releases. We view these as separate issues. Whether the Final 

Award was final is analyzed in part IV.A. post, of the Discussion.
29

(Greenspan, supra, 185 Cal.App.4th at p. 1443.) That federal 

case, Qualcomm, Inc. v. Nokia Corp. (Fed.Cir. 2006) 466 F.3d 

1366, was overruled by Henry Schein, Inc. v. Archer & White 

Sales, Inc. (2019) 139 S.Ct. 524, 531 (Schein), which held that

there is no “‘wholly groundless’” exception to the power of an 

arbitrator to decide his or her own jurisdiction. The Supreme 

Court explained that when “the parties’ contract delegates the 

arbitrability question to an arbitrator, the courts must respect 

the parties’ decision as embodied in the contract.” (Schein, supra,

at p. 531.) Because California courts often look to federal law 

with respect to arbitration matters, the Kardashians suggest that

Greenspan may no longer be good law in light of Schein. But 

Greenspan sets forth state law, and it has not been overruled. 

We opt to follow it.

D. Appellants Failed to Show That the Panel’s Exercise of 

Jurisdiction Was Wholly Groundless.

Appellants did not raise the “wholly groundless” issue in 

their opening brief. The Kardashians, however, raised it in their

respondents’ brief, and argued it. In the reply brief, appellants 

argue: “So while [the Kardashians] are correct that a challenge 

to an arbitrator’s jurisdictional ruling is ordinarily governed by a 

‘wholly groundless’ standard, the Panel never made this crucial 

jurisdictional ruling as to the ‘scope or applicability’ of the 

Releases to the claims. There was thus no jurisdictional ruling 

on this issue for the Court to evaluate under a ‘wholly groundless’ 

standard.” Alternatively, they argue: “Even applying the ‘wholly 

groundless’ standard that [the Kardashians] advocate, the 

Panel’s decision to rule on the merits of claims that it treated as 

unreleased and, thus, untouched by the Releases—and which 

therefore bore no conceivable relation to the Releases [citation]—
30

was the very definition of ‘wholly groundless.’” This one sentence 

argument in the reply brief assumes that there is no conceivable 

relation between any of the claims and Releases but offers no 

analysis. Elsewhere in appellants’ briefs, and in connection with 

their discussion of whether the Panel failed to decide a necessary 

issue, they posit that if the Panel found a relationship between 

the Releases and the Kardashians’ claims, that finding “would 

produce an absurd result because then every conceivable 

unreleased claim would be ‘related’ to the Releases[.]”

The subject matter of the Releases was claims that could 

have been asserted in connection with the Licensing Agreement, 

Boldface and its business, the Tillett litigation, and HCM’s 

involvement with or investment in Boldface and its business. 

The parties were required to arbitrate any dispute related to the 

Releases. The word “related” is a broad concept meaning 

associated or connected. All the claims arose out of the Licensing 

Agreement, the Tillett litigation, and HCM’s involvement with or 

investment in Boldface and its business. Even if those claims 

postdated the Releases, they involved the same or similar 

subjects, parties and legal issues, and it was not wholly 

groundless for the Panel to conclude that their subject matter 

was related to the Releases. This analysis is circumspect and 

thereby avoids the result of every conceivable unreleased claim 

being related to the Releases. 

E. Whether the Kardashians’ Claims Should Have Been 

Dismissed is Not Reviewable.

Appellants posit that the Kardashians’ claims accrued 

before the Releases were executed and should have been 

dismissed by the Panel accordingly. But appellants are 
31

essentially arguing that the Panel made either an error of fact or 

an error of law. Neither are reviewable.

III. Challenges to the Order Compelling HCI and HCM to 

Arbitrate the Contract and Tort Claims in Their 

Complaint.

A trial court cannot make determinations on substantive 

issues of arbitrability that are reserved for arbitrators. 

(Sandquist v. Lebo Auto., Inc. (2016) 1 Cal.5th 233, 261.) 

Appellants contend that the trial court violated this rule when it 

compelled arbitration under the Releases. But as we explained in 

part II.B.1., ante, of the Discussion, the trial court did not decide 

any substantive issues of arbitrability, which undermines

appellants’ position. It referred substantive issues of 

arbitrability to the arbitrators. 

Next, appellants lodge a series of objections to the trial 

court’s order compelling them to arbitrate under the Licensing 

Agreement based on an equitable estoppel theory. Those issues 

are moot given that appellants were required to arbitrate under 

the Releases.

IV. Challenges to the Orders Confirming the Arbitration 

Award and Denying Vacatur.

A. First Argument (The Panel Failed to Decide a Necessary 

Issue: Whether the Releases, Pursuant to Which the Panel Took 

Jurisdiction Over HCI and HCM, Released Any of the Claims at 

Issue).

Appellants argue that the final award did not determine 

the necessary issue of whether any claims were extinguished by 

the Releases. This leads them to claim that the arbitration 

award was not subject to confirmation because it was not final. 

This argument fails.
32

Code of Civil Procedure section 1283.411 provides: “[An 

arbitration] award shall be in writing and signed by the 

arbitrators concurring therein. It shall include a determination 

of all the questions submitted to the arbitrators the decision of 

which is necessary in order to determine the controversy.” If an 

arbitration award does not meet these requirements, it is not a 

final award and cannot be confirmed. (Kaiser Foundation Health 

Plan, Inc. v. Superior Court (2017) 13 Cal.App.5th 1125, 1131

(Kaiser).) 

It is for the arbitrators to decide what is necessary to the 

ultimate decision. (Cothron v. Interinsurance Exchange (1980) 

103 Cal.App.3d 853.) “An award is valid if its settles the entire 

controversy and there is no general rule that an arbitrator must 

either find facts [citation], detail the process by which the result 

was reached [citations], or give the reasons behind the award. 

[Citation.] It is not the finding on issues that is required; it is the 

determination thereof when ‘necessary in order to determine the 

controversy.’” (Id. at p. 860.) Thus, an award “need not . . . set 

forth findings of facts or a statement of reasons. The award is 

valid as long as it serves to settle the entire controversy and 

simply state that one party pay the other a sum of money. 

[Citation.]” (Severtson v. Williams Construction Co. (1985) 173 

Cal.App.3d 86, 92.)

The final award determined whether the parties proved 

their claims and stated the sums that appellants were required to 

pay the Kardashians for damages, interest and attorney fees. 

That was sufficient to make it valid. The law did not require the 

arbitration award to include a determination on whether any 

11 All further references are to the Code of Civil Procedure 

unless otherwise indicated.
33

claims had been released or, alternatively, whether appellants 

waived their affirmative defense based on the releases due to 

their failure to sufficiently assert the issue until after the Panel 

issued its interim award. 

Appellants argue that reversal is dictated by Banks v. 

Milwaukee Ins. Co. (1966) 247 Cal.App.2d 34 (Banks). In that 

case, the plaintiff received an award of special damages in 

arbitration but not an award of general damages. He petitioned 

the trial court to correct or vacate the award. In a declaration 

submitted to the trial court, the arbitrator declared that through 

inadvertence, mistake and/or excusable neglect, he failed to make 

an award for general damages. (Id. at pp. 35–37.) The defendant 

sought confirmation of the award. After a hearing, the trial court 

denied the plaintiff’s petition and confirmed the award. On 

appeal, the court noted, “If the record actually shows that the 

issue of general damages had been submitted to the arbitrator, 

and that he had totally failed to consider it, the [trial] court could 

and should have vacated the award.” (Id. at p. 38.) Because the 

record showed that the arbitrator failed to consider the element 

of general damages, the court concluded the arbitrator violated 

section 1283.4. (Banks, supra, at p. 39.) Banks is 

distinguishable. In that case, the arbitrator failed to rule on an 

issue of damages. That did not happen here. 

Kaiser, supra, 13 Cal.App.5th 1125 also offers appellants no 

aid. There, an arbitration panel issued a partial final award 

regarding certain claims but not others. (Id. at p. 1130.) The 

court concluded that the partial final award was not final under 

section 1283.4 and could not be confirmed. (Kaiser, supra, at 

p. 1131.) Unlike in Kaiser, the arbitration award here resolved 

all the parties’ claims.
34

B. Second Argument (The Panel Exceeded Its Powers).

1. Relevant Law.

Section 1286.2, subdivision (a)(4) establishes that an 

arbitration award can be vacated if a court determines that the 

arbitrators exceeded their powers. An arbitrator “‘exceeds his 

powers . . . when he acts without subject matter jurisdiction, 

decides an issue that was not submitted to arbitration [citations], 

arbitrarily remakes the contract [citation], upholds an illegal 

contract [citation], issues an award that violates a well-defined 

public policy [citation], issues an award that violates a statutory 

right [citation], fashions a remedy that is not rationally related to 

the contract [citation], or selects a remedy not authorized by law

[citations].’” (O’Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 

1055–1056.) If an arbitration clause defines the issues to be 

arbitrated and describes the limits of the arbitrators’ review 

authority and the available remedies, arbitrators exceed their 

authority if they stray beyond those limits. (Cal. Faculty Ass’n. v. 

Superior Court (1998) 63 Cal.App.4th 935, 953 (California 

Faculty).)

In AMD, our Supreme Court sought “a meaningful, 

workable and properly deferential framework for reviewing an 

arbitrator’s choice of remedies” for breach of contract. (AMD, 

supra, 9 Cal.4th at pp. 366, 381.) It held: “[I]n the absence of 

more specific restrictions in the arbitration agreement, the 

submission or the rules of arbitration, the remedy an arbitrator 

fashions does not exceed his or her powers if it bears a rational 

relationship to the underlying contract as interpreted, expressly 

or impliedly, by the arbitrator and to the breach of contract 

found, expressly or impliedly, by the arbitrator.” (Id. at p. 367.) 

AMD explained that “[a]rbitrators are not obliged to read 
35

contracts literally, and an award may not be vacated merely 

because the court is unable to find the relief granted was 

authorized by a specific term of the contract. [Citation.]” (AMD, 

supra, 9 Cal.4th at p. 381.) An award “will be upheld so long as it 

was even arguably based on the contract; it may be vacated only 

if the reviewing court is compelled to infer the award was based 

on an extrinsic source. [Citations.]” (Ibid.)

2. Second Argument, Part (a) (The Panel Exceeded 

its Powers by Awarding $6,280,750 as a Proxy Remedy for

Haven’s Failure to Pay a Fixed and Undisputed Amount of 

$342,498 Due Under the Licensing Agreement).

In a civil court, an award cannot be based on an estimate 

when the contract provides a readily ascertainable basis for 

calculating damages. (El Centro Mall, LLC v. Payless 

ShoeSource, Inc. (2009) 174 Cal.App.4th 58, 64.) Based on

appellants’ reading of the final award, the Panel violated this 

rule by using guaranteed minimum royalties as an estimate (or a 

proxy) for sales royalties due under the Licensing Agreement

even though it provided a readily ascertainable basis for 

calculating sales royalties. Thus, they claim that the Panel 

exceeded its powers when it awarded $6,280,750 in guaranteed 

minimum royalties instead of the readily ascertainable amount of

$342,498 in sales royalties. This leads them to also claim that

the award was not rationally related to the Licensing Agreement 

and a breach. (AMD, supra, 9 Cal.4th at p. 378.) But the Panel 

expressly stated that the Licensing Agreement entitled the 

Kardashians to either sales royalties or guaranteed minimum 

royalties, and it stated that guaranteed minimum royalties “were 

due.” It implicitly found that the Licensing Agreement required 

those payments and that appellants were in breach of that term. 
36

Thus, the award was not based on an estimate of sales royalties 

due, it was based on the guaranteed minimum royalties that 

were due. Consequently, it was rationally related to the 

Licensing Agreement and a breach, and it passes the low hurdle

necessary to escape court oversight.

Shifting to a different argument, appellants suggest that 

the Panel exceeded its authority by awarding guaranteed 

minimum royalties because the Kardashians’ June 22, 2016, 

letter demanded payment of only the sales royalties. This 

argument is infirm. First, as stated above, the test is whether 

the award bears a rational relationship to the Licensing 

Agreement and a breach. Second, the June 22, 2016, letter made 

clear that the Kardashians were not waiving the demands for 

guaranteed minimum royalties set forth in the February 26, 

2016, letter and the demand for arbitration. More importantly, 

we cannot second guess the Panel’s determination of the issues to 

be decided in arbitration.

3. Second Argument, Part (b) (The Panel Exceeded 

its Powers by Awarding Guaranteed Minimum Royalties and 

Indemnity Amounts That the Kardashians Repeatedly 

Relinquished).

Appellants assert that the Releases relinquished the 

Kardashians’ claims related to the Licensing Agreement, the 

Term Sheet called for the parties to amend the Licensing 

Agreement to eliminate guaranteed minimum royalties, and the 

APA stated that Boldface retained liabilities predating the APA. 

Based on these contracts, appellants argue that they had 

defenses to the Kardashians’ claims for guaranteed minimum 

royalties and indemnity under the Licensing Agreement. They 

bundle all this together and argue that the awards of guaranteed 
37

minimum royalties and indemnity did not bear a rational 

relationship to the Release, Term Sheet and APA and therefore 

the Panel exceeded its authority.

Appellants’ argument finds no support in the law. AMD

only requires us to consider if an award is rationally related to 

the underlying contract. It does not require us to consider 

whether the awards were rationally related to contracts 

providing affirmative defenses. The cases cited by appellants do 

not establish otherwise. (See California Faculty, supra, 63 

Cal.App.4th at p. 953 [holding that the arbitrator failed to 

conform to the specific restrictions of the parties’ agreement and 

therefore made decisions outside the scope of his authority]; Blue 

Cross of California v. Jones (1993) 19 Cal.App.4th 220, 228 

[holding that an award that exceeded financial limits imposed in 

insurance policies exceeded the arbitrators’ authority]; Bonshire 

v. Thompson (1997) 52 Cal.App.4th 803, 811 [an award exceeded 

the arbitrator’s authority because it was based on a contractual 

term provided by extrinsic evidence that the arbitration clause 

prohibited the arbitrator from considering].)

4. Second Argument, Part (c) (The Panel Exceeded 

its Powers by Imposing Joint and Several Liability on HCI and

HCM for Haven’s Breaches of a Contract to Which they were not 

Parties).

The Panel held HCI and HCM liable for Haven’s breaches 

based on an agency theory. Alternatively, it found that it would 

be inequitable to permit HCI and HCM to avoid liability after 
38

ensuring Haven was insolvent. This alternative ruling suggested

an alter ego theory of liability.12 

Appellants argue that the “agency remedy” bears no 

rational relationship to the Licensing Agreement and Haven’s 

breaches.

13 They cite no law establishing that the AMD rational 

relationship test applies to an arbitrator’s decision to impose 

agency liability on a principal. We conclude that the imposition 

of agency liability is not reviewable under AMD. Whether a 

12 The Panel did not expressly hold HCI and HCM liable on 

an alter ego theory. But it did rule that it would be inequitable to 

allow them to escape liability after ensuring that Haven did not 

have adequate funds to pay a judgment, and it cited Toho-Towa 

Co., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 

Cal.App.4th 1096, 1108, a case that cited and then applied the 

alter ego doctrine. Under the alter ego doctrine, the corporate 

veil can be pierced when (1) there is a unity of interest between 

the corporation and the owners such that they are not separate, 

and (2) there would be an inequitable result if the acts in 

question are treated as those of the corporation alone. (Curci 

Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 214, 221 

(Curci).) “Evidence of inadequate capitalization is . . . merely a 

factor to be considered by the trial court in deciding whether or 

not to pierce the corporate veil.” (Associated Vendors, Inc. v. 

Oakland Meat Co. (1962) 210 Cal.App.2d 825, 841–842.) 

13 Appellants cite Postal Instant Press, Inc. v. Kaswa Corp.

(2008) 162 Cal.App.4th 1510, 1522 for the proposition that agency 

is a court-created remedy. But that case stated that “[t]raditional 

piercing of the corporate veil is justified as an equitable remedy 

when the shareholders have abused the corporate form to evade 

individual liability, circumvent a statute, or accomplish a 

wrongful purpose. [Citations.]” Whether agency is a “remedy” 

does not impact our analysis.
39

principal should be held liable for an agent’s breach of contract is

wholly separate from whether the contract damages award is 

rationally related to the agent’s breach. As an aside, we wish to 

point out that the “agency doctrine may bind a parent to the 

contracts of its subsidiary where, in addition to owning the 

subsidiary, the parent company exercises ‘sufficient control over 

the [subsidiary’s] activities’ such that the subsidiary becomes a 

‘mere agen[t] or “instrumentality” of the parent.’ [Citations.]” 

(Cohen v. TNP 2008 Participating Notes Program, LLC (2019) 31 

Cal.App.5th 840, 862.) The Panel found that HCI and HCM 

owned and controlled Haven, and that Haven’s only role was to 

serve as their agent. These are findings of fact that we cannot 

second guess.

Appellants offer other arguments, each of which fails. We

discuss them in the order they are offered.

a. Argument that the Award Conflated HCI 

and HCM and Evinced No Rational Basis for Piercing the Veil as 

to Each Separately.

Appellants state that the Kardashians “did not argue, 

adduce evidence, or even take discovery attempting to prove that 

HCI or HCM was the alter ego or agent of the other;” the 

Kardashians and the Panel improperly lumped HCI and HCM 

together and treated them as one entity; the Kardashians had the 

burden to prove some basis for piercing the veil as to HCI and 

HCM separately; and they submitted no evidence and made no 

attempt to prove any alter ego relationship between any of the 

appellants at the final hearing.

These statements boil down to two ideas. Imposing liability 

on HCI and HCM was contrary to the law, and it was contrary to 

the evidence. But the Panel was permitted to base its decision on 
40

broad principles of justice and equity, and we cannot review the 

Panel’s reasoning or the sufficiency of the evidence.

b. Argument that Controlling ParentSubsidiary Agency Law Precludes a Joint and Several Remedy 

Under These Circumstances.

Appellants maintain that Sonora Diamond—the case cited 

by the Panel in support of its decision to impose liability on HCI 

and HCM based on agency—establishes that there was 

insufficient evidence that Haven was the agent of either HCI or 

HCM. But as we already stated, we cannot review the agency 

finding, which ends our analysis.

c. Argument that Vacatur is Also Warranted 

Under Statutory Right and Public Policy Exceptions.

Appellants contend that the Panel’s decision violated 

statutory rights and well-defined public policies related to 

shielding shareholders from liability. (Sargon Enterprises, Inc. v. 

Browne George Ross LLP (2017) 15 Cal.App.5th 749, 765–769 

[arbitrator misinterpreted an arbitration agreement and violated 

a party’s absolute statutory right to initiate litigation in court by 

finding that when the party sued in court, it breached the 

arbitration agreement]; Corp. Code, §§ 200 [separate existence of 

corporations], 409 [limited shareholder liability], 17701.04 

[limited liability for the debts and other obligations of limited 

liability companies].) This argument is moot because the Panel 

expressly premised HCI’s and HCM’s liability on agency, and 

that ruling is not impacted by appellants’ argument. But even if 

we entertained the notion that the Panel ruled exclusively based 

on an alter ego theory, HCI and HCM’s challenge would fail as a 

matter of law. Unlike in Sargon, this case does not involve the 

undisputed violation of an absolute statutory right. As noted in 
41

Curci, a company’s corporate veil can be pierced under certain 

circumstances. Thus, the only way that HCI’s and HCM’s 

statutory rights could have been conceivably violated by the 

Panel is if there was insufficient evidence to support an alter ego 

theory. That issue was beyond the purview of the trial court, and 

it is beyond ours, so there would be no basis to conclude that the 

Panel exceeded its authority.

5. Second Argument, Part (d) (The Panel Exceeded 

its Powers by Improperly Awarding Attorney Fees under the

Lanham Act).

The Lanham Act provides that when “a violation of any 

right of the registrant of a mark registered in the Patent and 

Trademark Office . . . shall have been established in any civil 

action arising under this Act, the plaintiff shall be entitled . . . to 

recover . . . the costs of the action. . . . The court in exceptional 

cases may award reasonable attorney fees to the prevailing 

party.” (15 USC § 1117(a).)

The Panel awarded attorney fees after concluding that title 

15 United States Code section 1117(a) was triggered because the 

Kardashians obtained an injunction to prevent Haven from 

infringing on their trademark and publicity rights.

Appellants contend that the attorney fee award based on 

the trademark infringement claim cannot stand because it bears 

no rational relationship to the Licensing Agreement or the breach 

of it, and because this was not an exceptional case. These

arguments miss the mark. Trademark infringement sounds in 

tort (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 

921, 931) and the attorney fee award was based on the Lanham 

Act. AMD does not apply because it imposes a limitation on 

remedies for breach of contract. As for whether this is an 
42

exceptional case, that issue relates to the sufficiency of the 

evidence. Moncharsh prohibits us from examining the evidence 

to determine its sufficiency. 

Taylor v. Van-Catlin Construction (2005) 130

Cal.App.4th 1061 bolsters our conclusion. The arbitrator in that 

case awarded attorney fees to the prevailing party based on a 

Civil Code section. On appeal, the losing party objected, arguing 

that the arbitrator exceeded his powers. The court rejected the 

argument, holding that even if the arbitrator failed to apply the 

law properly, “it would have amounted to an error of law, not an 

act exceeding his powers. The award therefore was not subject to 

judicial review[.]” (Id. at pp. 1067–1068.) 

6. Second Argument, Part (e) (The Panel Decided 

Issues Beyond the Scope of its Jurisdiction).

Appellants argue that the Panel lacked arbitral jurisdiction

over all the claims. Presumably, they mean that it lacked subject 

matter jurisdiction. “[T]he subject matter jurisdiction of an 

arbitrator is purely a product of contract [citation], which by 

definition turns on the parties’ mutual consent [citation].” 

(Douglass v. Serenivision, Inc. (2018) 20 Cal.App.5th 376, 385.) 

The question, then, is whether the claims presented by the 

parties were subject to being arbitrated. 

Because the Panel’s exercise of jurisdiction under the 

arbitration clause in the Releases was not wholly groundless, we 

are required to defer to the Panel’s determination of its own 

jurisdiction. It determined that it had jurisdiction over all the 

claims that it decided. 
43

C. Third Argument (Appellants were Substantially 

Prejudiced by the Arbitrators’ Denial of Appellants’ Well-Founded 

Request for a First Continuance of the Final Hearing).

“The neutral arbitrator may adjourn the hearing from time 

to time as necessary. On request of a party to the arbitration for 

good cause, or upon his own determination, the neutral arbitrator 

may postpone the hearing to a time not later than the date fixed 

by the agreement for making the award[.]” (§ 1282.2, subd. (b).)

An arbitration award can be vacated if “the rights of the 

party were substantially prejudiced by the refusal of the 

arbitrators to postpone the hearing upon sufficient cause being 

shown[.]” (§ 1286.2, subd. (a)(5).) When arbitrators exercise 

their discretion to deny a continuance, a court must consider 

whether the arbitrators abused their discretion in determining 

whether there was sufficient cause, and whether the moving 

party suffered substantial prejudice. (SWAB, supra, 150 

Cal.App.4th at p. 1198.) As noted before, our review of the denial 

of a petition to vacate is de novo. “However, we apply the 

substantial evidence test to the trial court’s ruling to the extent it 

rests upon a determination of disputed factual issues. 

[Citations.]” (Id. at p. 1196.)

An abuse of discretion occurs when a decisionmaker 

exceeds the bounds of reason, all of the circumstances before it 

being considered. The burden is on the party complaining to 

establish an abuse of discretion. (Denham v. Superior Court 

(1970) 2 Cal.3d 557, 566.)
44

l. Relevant Facts.

14

Appellants moved to continue the February 20, 2018, final 

arbitration hearing on multiple grounds.

The Panel denied the motion. It’s ruling detailed the 

following: The Panel entered an order on March 3, 2017, 

establishing certain discovery deadlines and setting a hearing on 

the merits to take place during a two-week period starting 

February 19, 2018. On November 8, 2017, appellants filed a 

motion for a continuance of the discovery deadlines and the 

merits hearings, claiming: the Kardashians failed to produce 

substantial quantities of documents; discovery from third parties 

had not been obtained; there had been massive spoliation of the 

Kardashians’ e-mails; designation of experts and expert witness 

discovery had not been undertaken; attorney-client issues raised 

by the Kardashians’ business manager/attorney had to be 

resolved; an attorney recently left the firm representing 

appellants; and appellants’ lead counsel had a conflict due to a 

trial scheduled in January 2018. The Kardashians objected to a 

continuance but agreed to adjust the discovery schedule.

Per the ruling, the Panel indicated that it had considered 

whether a continuance would prejudice the Kardashians, and it 

noted that the arbitration would be pending for almost two years 

when the merits hearing commenced. It then stated: “The core 

issues of the parties’ claims, which are now presented in or 

related to this arbitration, have been in federal and state courts 

even longer. While the Panel does not doubt that the state 

court’s [decision to set a] . . . trial for mid-January 2018 

14 In their opening brief, appellants do not offer a summary of 

their motion or the Kardashians’ opposition. We decline to 

summarize them on our own.
45

. . . caused [appellants’] counsel consternation, both sides’ lack of 

preparation for the close-in-time scheduled Merits Hearing in 

this arbitration—despite the . . . repeated[] strong 

encouragement to both sides to get moving—was of their own 

making.” 

Moving on, the Panel explained that it “approved a revised 

discovery schedule, including the scheduling of party witnesses 

throughout the month of December, and [it] established other 

discovery deadlines relating to expert discovery.” Starting in 

November 2018, the chair of the Panel made himself available to 

conduct weekly discovery hearings, and he agreed to attend 

depositions, including one that would raise attorney-client 

privilege issues. 

Finally, the Panel determined that a continuance was not 

necessary. It noted that the Kardashians claimed that they had 

produced all requested documents, and they had no documents 

relating to dealings with third parties. And it added: “When 

pressed during the November 30 hearing regarding what expert 

discovery is needed . . . , [appellants acknowledged] it would 

likely be limited to a single damages expert. [The Kardashians] 

stated they would call no experts, except a rebuttal damages 

expert, if deemed necessary. The spoliation issue relating to the 

alleged deletion of emails by the Kardashians[] can be addressed 

at their depositions scheduled in the next two weeks and can be 

addressed by the Panel during the Merits Hearing, according to 

proof. Similarly, as noted above, the attorney-client privilege 

issue relating to the Kardashians’ business manager/attorney

. . . also can be readily addressed by the Chair during [the 

applicable] deposition.” 
46

2. Third Argument, Part (a) (The Panel Abused its 

Discretion).

In the opening brief, appellants do not expressly argue that 

the Panel abused its discretion, but they imply as much when

they state, “[T]here is no dispute that [appellants’] briefing and 

sworn declarations established ‘sufficient cause’ supporting their

request for a brief first continuance of the final hearing.” They do 

not explain why they believe that the issue is undisputed. They 

merely cite to the trial court’s order denying the petition to 

vacate the arbitration award. Then, in the reply brief, appellants 

state, “Neither [the Kardashians], nor the Panel, contest[ed] that 

[appellants] [had] made the necessary showing on the first 

prong.” 

This assertion does not hold up.

At no point did the trial court’s order state that there was 

sufficient cause for a continuance. Rather, it explained the trial 

court’s reasoning as follows: “[Appellants] do not, in their 

motion, argue that they were not ready to proceed with the Final 

Merits Hearing. They do not make a claim, nor demonstrate a 

factual basis to argue, that their counsel, because the . . . [P]anel 

did not grant their motion for a hearing continuance, was unable 

to effectively present their claims and defenses at the Final 

Merits Hearing. [¶] [Appellants] make several arguments that 

are unrelated to the . . . [P]anel’s denial of their motion to 

continue the Final Merits Hearing. They advise they were 

blindsided when, after the . . . [P]anel had approved discovery 

subpoenas to be served on third-parties, the Ninth Circuit ruled

(in an unrelated case) that . . . the FAA did not authorize pretrial discovery against non-parties. . . . [Appellants], therefore, 

were not able to enforce their discovery subpoenas against third 
47

parties (the parties’ arbitration agreement adopted the FAA), but

they could [have], of course, serve[d] hearing subpoenas on those 

parties. Any ruling that the . . . [P]anel made with respect to 

[appellants’] discovery subpoenas against third parties complied 

with the law and is not a ground to vacate the arbitration award. 

[¶] [Appellants] also complain because some of the Kardashian 

defendants had deleted their emails for the relevant of time 

period. [Appellants] refer to this conduct as spoliation of 

evidence. The [P]anel did address this issue in its 

decision. . . . Any remedy for the conduct that [appellants] 

complain of was within [the] province of the [P]anel. [¶] The 

Court finds no basis to vacate the arbitration award under the 

arguments advanced by” appellants. (Bolding omitted.) 

The Panel determined that a continuance was not 

necessary, and in their brief, the Kardashians state in a heading,

“The Panel Did Not Abuse Its Discretion in Denying the Motion 

for a Continuance.” (Bolding omitted.)

Appellants’ argument is deficient. We conclude that they

failed to demonstrate that it was undisputed that the Panel 

abused its discretion or that the Panel exceeded the bounds of 

reason. “It is not our responsibility to develop an appellant’s 

argument. [Citation.]” (Alvarez v. Jacmar Pacific Pizza Corp. 

(2002) 100 Cal.App.4th 1190, 1206, fn. 11.) 

3. Third Argument, Part (b) (Appellants Were 

Substantially Prejudiced).

Because appellants failed to demonstrate an abuse of 

discretion, the issue of substantial prejudice does not have to be 

reached. Nonetheless, we have examined their prejudice 

argument and deem it lacking.

Appellants argue that they are prejudiced in three ways.
48

First, they contend they were deprived of the opportunity to 

discover and present third-party documents and testimony to 

which the Panel had already ruled they were entitled. They 

contend that this discovery was “important.” Their argument 

devolves into a discussion suggesting that even though thirdparty discovery subpoenas are not authorized under the FAA, the

Panel could have concluded that the CAA governed. This leads 

appellants to state that they “were thus forced to forego this 

important evidence and testimony in its entirety in order to avoid 

the specter of taking live testimony and/or getting a document 

dump from hostile parties in the midst of the final hearing 

without knowing what the testimony or evidence would be.” 

Because they do not explain why the discovery was important, we 

cannot analyze why they would be prejudiced if they did not 

obtain it.

Second, appellants contend they were forced to conduct the 

hearing with virtually none of the Kardashians’ relevant e-mails 

because they were destroyed. Appellants do not explain the 

relevance of these e-mails, nor do they explain why a continuance 

would have changed the situation if the e-mails had been 

destroyed. We are left grasping at straws to understand why 

appellants suffered prejudice.

Third, appellants argue that “when the Panel refused to 

continue the merits hearing, it simultaneously forced [them] to 

take virtually the entirety of discovery after the long-established 

discovery cutoff, during precisely the period in which [their] lead 

counsel had repeatedly informed the Panel . . . [he] would be 

unavailable to take discovery due to a conflict with another 

scheduled trial. [Citation.] As a result, [they] were forced to hire 

new co-counsel with no prior background on the case, and were 
49

deprived of their counsel of choice during this crucial period of 

discovery and trial preparation.” The problem for appellants is 

that they make no attempt to quantify the impact of not having 

their chosen counsel during discovery and trial preparation. 

Rather, they simply cite a Florida case for the proposition that an 

arbitrator’s refusal to postpone a hearing after withdrawal of 

counsel lacked a reasonable basis. Here, appellants’ counsel did 

not withdraw.

Simply put, appellants have not established prejudice.15 

All other issues are moot. 

DISPOSITION

The judgment is affirmed. The Kardashians shall recover 

their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________________, J.

ASHMANN-GERST

We concur:

_____________________________, P. J.

LUI

____________________________, J.

CHAVEZ

15 To the degree appellants raise new arguments in their 

reply brief to establish they were substantially prejudiced by not 

being granted a continuance, we deem those arguments waived. 

(Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1755, fn. 1 [“‘a

point not presented in a party’s opening brief is deemed to have 

been abandoned or waived’”].)