Filed 11/18/21 Rough v. Berris CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

SANDEE ROUGH, as Trustee, etc.,

Plaintiff and Respondent,

v.

NORMAN BERRIS et al.,

Defendants and Appellants.

 B309228

 (Los Angeles County

 Super. Ct. No. 19STCP01095)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Stephanie Bowick, Judge. Affirmed.

Loeb & Loeb and William M. Brody for Defendants and 

Appellants.

Baker & McKenzie, Perrie M. Weiner, Edward D. Totino 

and Benjamin W. Turner for Plaintiff and Respondent.

_______________________
2

Respondent Sandee Rough initiated arbitration against 

individual and corporate entities with whom she (and her late 

husband) participated in a real estate venture. She alleged 

accounting irregularities and claimed to have equitable interests

in the two Walgreens drug stores that were acquired following 

the sale of two prior apartment buildings that were jointly 

owned.

1

The arbitration clauses in the operative written 

agreements were signed by the individual appellants. After 

nearly two years of arbitration, the arbitrator awarded Rough a 

one-third equitable interest in the two drug stores, as well as her 

legal fees, arbitration costs, and over $700,000 for accounting 

irregularities by the individual appellants. Appellants paid 

Rough her monetary award in full.

When Rough petitioned the trial court to confirm the 

arbitration award, the individual appellants and their newlyformed LLC appellants claimed, at various points, that they were 

1 Rough and her R&S Rough Living Trust dated March 1, 

1990 (the R&S Trust) are partners with the individually-named 

appellants Norman Berris, Ruth Jeanette Veprin, and Sondra 

Pomerantz (individual appellants) as well as the entities they 

formed to purchase and manage two Walgreens drugstores, 

Waterford 20 LLC and 496 Ritchie Highway LLC (LLC 

appellants). The earlier partnership entities were denominated 

as Magnolia Apartments, L.P. and Racquet Club Apartments, 

L.P. (LP appellants). No specific award was made against the LP 

appellants and they seek no relief in this appeal. The term 

“appellants” refers to both the individual and LLC appellants 

collectively, but does not include individual appellant Jeff Berris, 

who was neither named as a respondent in the arbitration nor 

represented by counsel while it took place.
3

not proper parties to the arbitration and also had not 

participated in the arbitration so as to bind them to its results.

The trial court granted Rough’s petition in a 12-page order, 

finding that appellants either had signed arbitration agreements

and/or impliedly consented to arbitration by fully participating in 

the proceedings.

As they did in the trial court, appellants claim they are not 

bound by the arbitration award under Code of Civil Procedure 

section 1287.2 2 which requires trial courts to dismiss a 

confirmation petition against any person that “the court 

determines . . . [is] not bound by the arbitration award and was 

not a party to the arbitration.” (§ 1287.2, italics added.)

Although appellants claim the benefit of a written 

stipulation to limit the responsible parties, the record contains 

scant evidence of its existence. Appellants participated in and 

submitted to the arbitration, paying over $1 million in withheld 

distributions, attorney’s fees and administrative costs, in 

accordance with the arbitrator’s award. All appellants were 

represented by sophisticated legal counsel who aggressively 

contested the merits of the claims.

Section 1287.2 does not require or authorize dismissal of 

appellants under these circumstances. Thus, we affirm the trial 

court’s judgment confirming the arbitration award as to all 

appellants, including individual appellant Jeff Berris.

2 Subsequent undesignated statutory citations are to the 

Code of Civil Procedure.
4

FACTUAL AND PROCEDURAL BACKGROUND3

A. The Parties’ Dispute

In the 1970s, Rough’s late husband and predecessor-ininterest invested in two apartment buildings, the Magnolia 

Apartments and the Racquet Club Apartments, with individual

appellants and others. Rough’s late husband constructed the 

buildings with the individual appellants (or their predecessors) 

providing financing. The parties agreed to equally share any 

distributions from the projects.

This business arrangement was not memorialized until 

1994, when the parties drafted a pair of ownership agreements 

that gave the R&S Trust, to which Rough’s husband had 

transferred his interest, an equitable interest in each apartment 

building, entitling the trust to a share of any profits distributed 

from the properties. These agreements contain identical 

arbitration clauses, stating that “[a]ll disputes under this 

[a]greement shall be resolved by arbitration under the then rules 

of the American Arbitration Association.”

In 2014 and 2015, both of the apartments owned by the LP 

appellants were sold, prompting some parties to terminate their 

interests under the ownership agreements, whereas Rough and 

the individual appellants elected to exchange their share of the 

proceeds for an interest in two Walgreens drug stores (the 

replacement properties which were held in the name of the LLC 

appellants). This exchange tripled the value of the partners’ 

property interests.

3 This factual background is largely taken from the 

arbitration award.
5

Later, there was disagreement about the percentage of the 

R&S Trust’s equitable interests in the two new properties. 

Rough also suspected that accounting irregularities had 

attributed an increasing amount of debt to the R&S Trust over 

time, effectively decreasing the amount of distributions owed to 

the trust.

B. The Arbitration

On September 19, 2016, Rough demanded that the parties 

arbitrate their disputed interests in the two Walgreens drug 

stores, pursuant to the arbitration clauses within the ownership 

agreements. She named the individual appellants as 

respondents.

From the beginning, Rough and individual appellants 

disagreed as to which persons and entities were subject to 

arbitration. Appellants claimed that Rough had stipulated to 

exclude them from arbitration and include the entities which 

owned the two Walgreens drug stores. Rough claimed that she 

had been prepared to stipulate along these lines, but that the 

stipulation was stymied by individual appellants’ unwillingness 

to disclose the names of the new ownership entities (LLC 

appellants).

On May 27, 2017, the arbitration hearing took place. 

Appellants were jointly represented by sophisticated counsel, who 

filed a trial brief specifically on behalf of individual appellants,

arguing not only that the individual appellants were not proper 

parties but also arguing the merits, i.e., that the R&S Trust was 

not entitled to an increased percentage of distributions, that the 

trust owed a significant amount of debt, and that it was not 

entitled to prejudgment interest.
6

On April 9, 2018, the arbitrator issued a final award in 

Rough’s favor, containing two forms of relief: (1) a monetary 

judgment of over $1 million in wrongfully withheld 

distributions,

4 attorney’s fees, administrative costs, and prejudgment interest; and (2) declaratory relief providing that the 

R&S Trust was entitled to increased equitable interests in the

two drugstore replacement properties.5

On December 27, 2017, appellants made payments totaling 

$1,026,298.43 pursuant to the arbitration award.

C. The Petition to Confirm the Arbitration Award

On April 8, 2019, Rough filed a petition to confirm the 

arbitration award against appellants, including Jeff Berris as 

Pomerantz’s alleged successor-in-interest, pursuant to section 

4 As the arbitrator concluded, “[s]uffice it to say that such 

accounting treatment was not remotely in accordance with 

generally accepted accounting principles.”

5 Both leading up to the arbitration and afterwards there 

was some confusion about the identities of the “current holders of 

interests” in the two Walgreens drug stores. The parties 

submitted numerous emails presenting argument on which 

parties were properly subject to arbitration. When Rough 

learned through independent research that the LLC appellants 

owned the drugstore replacement properties, she communicated 

this to appellants and the arbitrator. Although the arbitration 

award begins by saying that the parties agreed (at the beginning) 

that the proper parties were the R&S Trust and LP appellants, it 

later discusses the role of the individual and LLC appellants and 

enters significant monetary judgments and equitable relief 

against them, with the declaratory relief also binding upon all 

persons and entities who hold ownership interests in the 

replacement drugstore properties.
7

1285. She filed a noticed motion for the court to hear the petition 

on May 6, 2019. The parties then stipulated to continue the 

hearing date until January 28, 2020.

On January 6, 2020, all appellants responded by requesting 

that Rough’s petition be dismissed as to individual appellants, 

LLC appellants, and Jeff Berris pursuant to section 1287.2. After 

multiple rounds of briefing and oral argument on the 

confirmation petition, the trial court concluded that none of these 

appellants was eligible for dismissal under section 1287.2.

The trial court found that both groups of appellants (i.e., 

the individual appellants and LLC appellants) were parties to the 

arbitration, achieving that status either by signing the 

arbitration agreements, by their conduct during the arbitration 

proceedings, and/or by the lawful decision of the arbitrator.6 

Accordingly, the trial court granted the petition and confirmed 

the arbitration award against all appellants.

All appellants timely appealed.

DISCUSSION

The individual and LLC appellants argue that the petition 

should have been dismissed against them under section 1287.2 

because neither was a party to the arbitration and because the 

6 Among other things, the Code of Civil Procedure defines a 

party to arbitration as “[a] party against whom such arbitration 

is sought pursuant to [an arbitration] agreement,” or “[a] party 

who is made a party to the arbitration by order of the neutral 

arbitrator . . . upon the application of any other party to the 

arbitration, or upon the neutral arbitrator’s own determination.” 

(§ 1280, subd. (h)(2) & (3).)
8

arbitrator exceeded his authority in purporting to bind them to 

the award.

We review the trial court’s decision to confirm the 

arbitration award de novo. (EHM Productions, Inc. v. Starline 

Tours of Hollywood, Inc. (2018) 21 Cal.App.5th 1058, 1063.) Any 

questions of law, including questions of statutory interpretation, 

are reviewed under the same standard. (Webster v. Superior 

Court of San Bernardino County (2020) 51 Cal.App.5th 676, 679.)

Appellants’ sole argument is that the trial court should 

have dismissed both the individual and LLC appellants under 

section 1287.2, which requires the trial court to dismiss the 

confirmation petition “as to any person . . . if the court 

determines that such person was not bound by the arbitration 

award and was not a party to the arbitration.”7 (§ 1287.2.) To 

qualify for relief under section 1287.2, the court must determine 

that a person is neither a party to arbitration nor bound by the 

arbitration award. (See § 1285 [“The petition shall name as 

respondents all parties to the arbitration and may name as 

respondents any other persons bound by the arbitration award”]; 

see also § 1280, subd. (h)(2) & (3) [party to arbitration defined as 

“[a] party against whom such arbitration is sought pursuant to 

7 Appellants’ position as to appropriate parties is 

ambiguous at best. They simultaneously argue that the LP 

appellants are the only appropriate parties to arbitration and

that the stipulation substituted the LLC appellants for individual 

appellants. Immediately after the completion of arbitration, 

however, appellants argued that the LLC appellants were the 

only appropriate parties. Their opening brief on appeal states 

that “LLC [a]ppellants along with the LP [a]ppellants[ ] could 

have been parties pursuant to the stipulation.” (Italics added.)
9

[an arbitration] agreement,” or “[a] party who is made a party to 

the arbitration by order of the neutral arbitrator . . . upon the 

application of any other party to the arbitration, or upon the 

neutral arbitrator’s own determination”].)

Initially, appellants claim that they and Rough agreed to a 

stipulation limiting the appropriate parties. However, they have 

not met their burden of proving that the parties entered into any 

sort of stipulation with respect to appropriate parties to the 

arbitration. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 

826, 850 [the moving party bears the entire burden of persuasion 

and the initial burden of producing evidence sufficient to sustain 

a judgment in the movant’s favor].)

The record contains no evidence of any sort of stipulation, 

save for a single reference by the arbitrator to a pre-arbitration 

agreement, which appellants admit is inconsistent with the 

award of declaratory relief he ultimately made. Nor do 

appellants present a cogent explanation of the stipulation’s 

terms, alternately claiming that the stipulation excludes only 

individual appellants,8 that the stipulation excludes both 

individual and LLC appellants, and that the stipulation replaced 

LP appellants with LLC appellants.

Even were we to accept appellants’ argument that 

individual appellants and LLC appellants did not specifically 

8 The request for clarification that appellants submitted to

the arbitrator also suggests that individual appellants could

properly be held accountable for Rough’s attorney’s fees and preaward interest—which individual appellants appear to have 

subsequently paid. This is inconsistent with appellants’ 

insistence that individual appellants cannot not be bound by the 

arbitration award.
10

agree to arbitration, it would not alter the result. The totality of 

the record supports the trial court’s finding that individual 

appellants and LLC appellants should be considered parties to 

the arbitration because of their submission to and participation 

in the arbitral process. (See Douglass v. Serenivision, Inc. (2018) 

20 Cal.App.5th 376, 387, 389 [“parties may enter into an implied 

in fact agreement to arbitrate through their conduct (which may 

additionally be deemed to estop them from denying such an 

agreement)” the test for assessing whether a party, through his 

conduct in litigating in an arbitral forum, has thereby waived his 

right to litigate in a judicial forum is less onerous than waiver of 

judicial litigation because of the strong public policy favoring 

arbitration].) Appellants’ payment of over $1 million in withheld 

distributions, attorney’s fees and administrative costs, which was 

paid by the individual appellants well before Rough filed her 

confirmation petition, belies the assertion that the individual 

appellants and/or LLC appellants are not bound by the 

arbitration.

Further, appellants do not dispute that they are specifically 

named by the arbitrator as persons who are bound by the 

arbitration award, and they cite no legal authority interpreting 

section 1287.2 as requiring the trial court to dismiss the petition 

against persons who are found to be bound by an arbitration 

award. The reason for a dearth of authority is simple: section 

1287.2 is rarely cited by appellate courts. Only three cases 

analyze a person’s eligibility for relief under the specific terms of 

section 1287.2, and none of them supports appellants’ position.

9

9 Most of these cases either cite section 1287.2 only in 

passing while describing the confirmation petition process (see, 

e.g., Law Offices of David S. Karton v. Segreto (2009) 176 
11

In N.A.M.E.S. v. Singer (1979) 90 Cal.App.3d 653, 656, our 

colleagues in Division Four affirmed the trial court’s grant of a 

confirmation petition over the appellant’s objections, concluding

that the appellant had assented to arbitration. In Southern Cal. 

Pipe Trades Dist. Council No. 16 v. Merritt (1981) 126 Cal.App.3d 

530, 539 (Southern Cal. Pipe), our colleagues in Division Five

reversed the grant of a confirmation petition against a corporate 

officer who was not properly noticed as a party to arbitration, and 

who thus had no reason to appear in the arbitral proceedings to 

defend his interests. In Toal v. Tardif (2009) 178 Cal.App.4th 

1208, 1223, the Fourth District Court of Appeal remanded the 

question of whether a group of defendants consented to 

arbitration after finding that the court did not make any findings 

of fact on that central issue, relying instead on an insufficient 

arbitration agreement which, although signed by the defendants’ 

attorney, may not have been ratified by the defendants.

Appellants assert that Southern Cal. Pipe stands for the 

proposition that “an arbitration award against one party is not 

binding upon another person who was not party to the 

arbitration.” (Southern Cal. Pipe, supra, 126 Cal.App.3d at 

p. 536.) This broad assertion is neither supported by the holding 

of that court nor applicable where, as here, appellants had notice 

of and fully participated in the arbitration.

In Southern Cal. Pipe, the corporate officer who was 

designated to (and did in fact receive) service on behalf of his 

corporation moved for dismissal under section 1287.2. Although 

Cal.App.4th 1, 10), or discuss whether additional grounds could 

justify dismissal of a confirmation petition (see, e.g., Maplebear,

Inc. v. Busick (2018) 26 Cal.App.5th 394, 401).
12

the officer had received notice of an arbitration proceeding, “there 

[was] no indication that personal liability independent of [the 

corporation] [was] sought.” (Southern Cal. Pipe, supra, 126 

Cal.App.3d at p. 538.) Further, the officer did not attend or 

participate in the arbitration because “[t]he record [did] not show 

that [the officer] had any notice or reason to appear and defend 

personally.” (Id. at p. 539.)

The situation in Southern Cal. Pipe is readily 

distinguishable from the present case, where the individual 

appellants: (1) were each given notice naming them as parties

and appeared; (2) were on notice that they might be held 

personally liable; and (3) were represented throughout by 

sophisticated legal counsel who filed trial and closing briefs on 

their behalf that addressed the merits of the claims.

Further, neither the arbitrator nor the trial court erred in 

concluding that the LLC appellants were bound by the results of 

the arbitration. These entities appear to have been formed by the 

individual appellants specifically for the purpose of holding title 

to the two Walgreens drugstores after the sale of the prior 

apartment buildings. They, too, were represented by counsel and 

participated in the arbitration. At various points counsel argued

that the LLC appellants were appropriate parties to the 

arbitration.10

10 Appellants also contend that the petition should be 

dismissed as to Jeff Berris because Rough did not prove, and the 

trial court did not find, that he was Pomerantz’s successor-ininterest to the property interests at issue in the arbitration. 

However, by confirming the arbitration award as to Jeff Berris, 

the trial court impliedly found in favor of Rough’s assertion that 

he was Pomerantz’s successor-in-interest. (In re Marriage of 
13

Appellants were given appropriate notice, represented by 

experienced counsel, and fully participated in the proceedings. 

Their efforts to undermine the authority of the arbitrator, 

recharacterize their participation in the proceedings, and secondguess the trial court’s dismissal ruling are unavailing.

DISPOSITION

The judgment is affirmed. Respondent is entitled to costs

on appeal.

NOT TO BE PUBLISHED

CRANDALL, J.*

We concur:

CHANEY, J. BENDIX, Acting P. J.

Arceneaux (1990) 51 Cal.3d 1130, 1133 [“A judgment or order of a 

lower court is presumed to be correct on appeal, and all 

intendments and presumptions are indulged in favor of its 

correctness”]; Fladeboe v. American Isuzu Motors Inc. (2007) 150 

Cal.App.4th 42, 48 [“Under the doctrine of implied findings, the 

reviewing court must infer, following a bench trial, that the trial 

court impliedly made every factual finding necessary to support 

its decision”].) The trial court’s implied finding is supported by 

the record.

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.