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 Case No. 4:16-cv-07387-JSW 

PLAINTIFFS’ REPLY TO RESPONSE TO MOTION TO VACATE, MODIFY, OR CORRECT

ARBITRATION AWARD 

MICHAEL J. SMIKUN (Admitted Pro Hac Vice) 

CALLAGY LAW, P.C. 

Mack Cali Centre II 

650 From Road – Suite 565 

Paramus, New Jersey 07652 

Telephone: (201)261-1700 

Facsimile: (201)621-6236

E-mail: msmikun@callagylaw.com 

[Additional counsel listed on signature page.] 

Attorneys for Plaintiffs 

PARKRIDGE LIMITED AND MABEL MAK

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

PARKRIDGE LIMITED, a Hong Kong 

corporation, by Mabel Mak, and MABEL MAK, 

an individual, 

Plaintiffs, 

v. 

INDYZEN, INC., a California 

corporation, and PRAVEEN NARRA 

KUMAR, an individual, 

 Defendants. 

Case No. 4:16-cv-07387-JSW

REPLY TO RESPONSE TO MOTION TO 

VACATE, MODIFY, OR CORRECT 

ARBITRATION AWARD 

Hon. Jeffrey S. White 

Date: January 24, 2020 

Time: 9:00 a.m. 

Dept.: Courtroom 5, 2nd Floor 

Complaint Filed: December 29, 2016 

INDYZEN, INC., a California corporation, 

Counter-Plaintiffs, 

v. 

PARKRIDGE LIMITED, a Hong Kong 

corporation, by Mabel Mak, BOON 

GLOBAL LIMITED, a Hong Kong 

company, F8 VIETNAM COMPANY 

LIMITED, a Vietnam company, 

CALIFORNIA FITNESS & YOGA 

CENTERS COMPANY LIMITED, a 

Vietnam company, and RANDY 

DOBSON, an individual, 

 Counter-Defendants. 

Case 4:16-cv-07387-JSW Document 90 Filed 12/20/19 Page 1 of 10
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i

 Case No. 4:16-cv-07387-JSW 

PLAINTIFFS’ REPLY TO RESPONSE TO MOTION TO VACATE, MODIFY, OR CORRECT

ARBITRATION AWARD 

TABLE OF CONTENTS

I. PRELIMINARY STATEMENT .................................................................................................... 1

II. LEGAL ARGUMENTS.................................................................................................................. 2

A. MABEL MAK CANNOT BE PERSONALLY LIABLE FOR THE ATTORNEY’S 

FEES BECAUSE SHE IS A NON-PARTY IN THE CASE ................................................ 2

1. Mabel Mak Is Not a Party and so Not Subject to An Award of 

Attorney’s Fees .............................................................................................................. 2

2. There Is No Legal Basis for Imposing Fees on a Non-Party. ........................................ 3

B. DEFENDANTS HAVE FAILED TO REBUT THE SHOWING THAT THE 

ARBITRATOR ERRED IN ALLOCATING ATTORNEY’S FEES ................................... 5

C. DEFENDANTS ARE ATTEMPTING TO DISTRACT FROM THE LAW 

THROUGH IMPROPER EMOTIONAL APPEAL .............................................................. 6

III. CONCLUSION ............................................................................................................................... 7

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ii Case No. 4:16-cv-07387-JSW 

PLAINTIFFS’ REPLY TO RESPONSE TO MOTION TO VACATE, MODIFY, OR CORRECT

ARBITRATION AWARD 

TABLE OF AUTHORITIES 

Cases

21X Capital, Ltd. v. Werra 

 No. C06-04135 JW (HRL), 2008 WL 753907 (N.D. Cal. Mar. 19, 2008) ........................................ 6 

Barrey v. Ocwen Loan Servicing, LLC 

 No. CV-09-00573-PHX-GMS, 2009 WL 1940717 (D. Ariz. July 2, 2009) ...................................... 4 

Bell Aerospace Co. v. Local 516 

500 F.2d 921 (2d Cir. 1974) .............................................................................................................. 5 

Blake v. Batmasian 

 No. 15-81222-CIV, 2016 WL 7438838 (S.D. Fla. June 13, 2016) .................................................... 6 

Brusso v. Running Springs Country Club, Inc. 

 228 Cal.App.3d 92 (1991) .............................................................................................................. 3, 4 

Chambers v. NASCO, Inc. 

 501 U.S. 32 (1991) ............................................................................................................................. 4 

Comedy Club, Inc. v. Improv West Associates 

 553 F.3d 1277 (9th Cir. 2009) ........................................................................................................... 5 

Corder v. Howard Johnson & Co. 

 53 F.3d 225 (9th Cir. 1994) ................................................................................................................ 4 

Estate of Jaquez v. Flores 

 No. 10 CIV. 2881 (KBF), 2016 WL 1060841 (S.D.N.Y. Mar. 17, 2016) ......................................... 6 

Indiezone, Inc. v. Rooke, 

 720 F. App'x 333 (9th Cir. 2017) ....................................................................................................... 4 

Nelson v. E. Side Grocery Co., 

 26 Cal. App. 344 (Cal. Ct. App. 1915) .............................................................................................. 2 

Swift Industries Inc. v. Botany Industries Inc. 

 466 F.2d 1125 (3d Cir. 1972) ............................................................................................................. 5 

Todd Shipyards Corp. v. Cunard Line Ltd. 

 943 F.2d 1056 (9th Cir. 1991) ............................................................................................................ 5 

Statutes

9 U.S.C. § 10(a)(4) ................................................................................................................................. 6 

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1 Case No. 4:16-cv-07387-JSW 

PLAINTIFFS’ REPLY TO RESPONSE TO MOTION TO VACATE, MODIFY, OR CORRECT

ARBITRATION AWARD 

I. PRELIMINARY STATEMENT 

Defendants have failed to respond to or overcome the merits of the Motion to Vacate and are 

instead relying upon misleading and misrepresented case law to preserve an erroneous Arbitration 

Award which categorically meets the criteria for vacatur or modification. The Arbitrator’s issuance of 

the award of attorney’s fees against Mabel Mak individually is a manifest disregard of the law, 

completely irrational, and must be vacated. The Court cannot confirm an Arbitration Award that 

disregards the Arbitrator’s own findings that would preclude the entry of an attorney fee award against 

Mabel Mak because to do otherwise would be to support a flagrant miscarriage of justice. 

As addressed in the Motion to Vacate, the Arbitrator lacked jurisdiction over Ms. Mak to enter 

an award against her in an individual capacity. Ms. Mak is not a party to any of the claims in this 

matter. This is a fact recognized by the Arbitrator himself. Moreover, there is no basis for treating the 

award as a sanction for misconduct, of which none has been alleged, and certainly not proven. As a 

result, on this basis alone, the Arbitrator clearly exceeded his authority by entering a fee award against 

a non-party. . 

 Neither can the Arbitrator enter an award against Ms. Mak individually by virtue of her position 

as a shareholder of Parkridge as argued by Defendants. To accept this argument, the Court must also 

accept its legal predicate: the Arbitrator pierced the corporate veil and made Ms. Mak individually 

liable for the debts of the corporation, despite his own findings that there was no basis for veil piercing 

or alter-ego liability. The award, in the face of these findings, is plainly and completely irrational, as 

well as a manifest disregard of the law. 

Defendants’ arguments that Ms. Mak can be held personally responsible as a shareholder 

notwithstanding the lack of justification for veil piercing is predicated upon a deliberate 

misrepresentation of the law that must be rejected. The Court cannot permit such an abuse and must 

vacate the award. 

Finally, the Court must vacate the Arbitration Award because the grant of declaratory relief, 

which was not actually a claim pled by Defendants, exceeded the Arbitrator’s authority. Given these 

errors, the requisite standards for vacating the Arbitration Award have been met, and the Court must 

vacate the Award accordingly.

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2 Case No. 4:16-cv-07387-JSW 

PLAINTIFFS’ REPLY TO RESPONSE TO MOTION TO VACATE, MODIFY, OR CORRECT

ARBITRATION AWARD 

II. LEGAL ARGUMENTS 

A. MABEL MAK CANNOT BE PERSONALLY LIABLE FOR THE 

ATTORNEY’S FEES BECAUSE SHE IS A NON-PARTY IN THE CASE 

The Arbitrator’s issuance of the award of attorney’s fees against Mabel Mak individually 

manifestly disregards the law and is completely irrational because it seeks to impose liability upon a 

non-party over whom the Arbitrator lacked jurisdiction. 

1. Mabel Mak Is Not a Party and so Not Subject to An Award of 

Attorney’s Fees 

Under California law, it is evident that Ms. Mak is not a party to the claims at issue in this 

matter, and so the Arbitrator had no jurisdiction over her in an individual capacity. First, the mere fact 

that Ms. Mak’s name appears in the caption is not probative, let alone dispositive, on the issue of 

individual liability. “It should require no argument to sustain the view that in determining who the 

parties to an action are the whole body of the complaint is to be taken into account, and not the caption 

merely.” Nelson v. E. Side Grocery Co., 26 Cal. App. 344, 347 (Cal. Ct. App. 1915). Though Ms. Mak 

is identified as a “plaintiff” in the Complaint and the Arbitration Demand, none of the claims asserted 

against Defendants are claims made by Mak. See Exhibit A, ¶ 210 (“the claims made on behalf [of] 

Parkridge are made by Parkridge directly.”). Defendants cannot – and do not – cite to any part of the 

Demand, or to any evidence that was produced in the Arbitration, that shows any claim brought by Ms. 

Mak, either individually or derivatively. This is because she did not assert any claims and was not, in 

actuality, a party-plaintiff. 

Neither can it be said that Ms. Mak was a defendant, or Cross-Respondent, as Defendants 

specifically excluded Ms. Mak from the group of Cross-Respondents against whom they alleged their 

counterclaims. See Defendants’ Amended Counterclaims, Caption & pg 2, ln 4-6 (Listing only 

Parkridge, Boon Global Limited (“Boon”), F8 Vietnam Company Limited (“F8”), California Fitness 

& Yoga Centers (“CFYC”), California Management Group (“CMG”), and Dobson as CounterRespondents and stating, “The following counterclaims are against all of the counterrespondents [sic] 

described in the caption above, who are jointly referred to as the “Counter-Respondents” throughout 

this document.” (emphasis added)). By the terms of Defendants’ own counterclaims, Ms. Mak was not 

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3 Case No. 4:16-cv-07387-JSW 

PLAINTIFFS’ REPLY TO RESPONSE TO MOTION TO VACATE, MODIFY, OR CORRECT

ARBITRATION AWARD 

a party to their claims. Thus, it is clear, as a matter of law, that Ms. Mak was not a party to any of the 

disputed claims. 

The Arbitrator also clearly recognized that Ms. Mak was not a party to any of the claims. The 

Arbitrator did not include Ms. Mak in his lengthy discussion of the cross-claims brought by Indyzen 

for misappropriation of trade secrets (Final Award at ¶ 232-283) and breach of contract (Final Award 

at ¶284-315). The Arbitrator likewise never refers to Ms. Mak as a Cross-Respondent. See e.g. 

Arbitration Award, 96 ¶ G. The reason is obvious – none of Defendants’ claims were raised against 

Ms. Mak and she was never a Cross-Respondent. 

The Arbitrator himself did not consider Ms. Mak a party to the claims in this case and, under 

California law, she was not a party. The Award is thus completely irrational in awarding attorney’s 

fees against a non-party. 

2. There Is No Legal Basis for Imposing Fees on a Non-Party. 

There is no legal basis for imposing fees on Ms. Mak, a non-party, in this case. In a misguided 

effort to retroactively justify a fee award against Ms. Mak individually, Defendants are attempting to 

persuade the Court that Ms. Mak argues she brought claims in a derivative capacity. This is clearly not

what Ms. Mak and Parkridge have argued. On the contrary, Ms. Mak brought no claims in this action. 

Even Defendants admit that Parkridge brought all the claims on its own behalf. See Defendants 

Response to Motion to Vacate, pg 8, n 4. Using this misleading narrative, Defendants attempt to 

persuade the Court that Ms. Mak can be held individually liable as a shareholder of Parkridge. Not only 

are Defendants incorrect, they are deliberately misstating the law. 

Defendants cite Brusso v. Running Springs Country Club, Inc., 228 Cal.App.3d 92 (1991), for 

the proposition that Ms. Mak can be individually held liable for Defendants’ attorney’s fees because 

the claims at issue involved a contract with a fee shifting provision. Defendants are deliberately and 

inappropriately simplifying Brusso’s holding. Nothing in Brusso stands for the proposition that a 

shareholder may be liable for attorney’s fees when the corporation fails to prevail in a breach of contract 

case. On the contrary, Brusso clearly holds that a party to a lawsuit may be held liable for attorney’s 

fees if the prevailing party would have been liable to that party had that other party prevailed. Brusso, 

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4 Case No. 4:16-cv-07387-JSW 

PLAINTIFFS’ REPLY TO RESPONSE TO MOTION TO VACATE, MODIFY, OR CORRECT

ARBITRATION AWARD 

228 Cal.App.3d at 110-11. In this instance, however, Ms. Mak was not a party to the claims pursued 

in this case. She was not a party and so cannot be held liable as a party. 

What Defendants are really seeking is for the Court to allow the Arbitrator to pierce the 

corporate veil and hold a shareholder individually liable for attorney’s fees despite the Arbitrator’s 

express findings that there was no basis for imposing alter-ego liability. Far from a “red-herring” 

argument, as Defendants contest, this is the only rational basis for explaining the Arbitrator’s award of 

fees against Ms. Mak individually, and that basis demonstrates a manifest disregard for the law because 

the Arbitrator specifically found that it did not apply, and then awarded fees notwithstanding his own 

conclusions. 

 The only other potential basis for awarding fees against a non-party would be as a sanction for 

abuse of the judicial process. While a Court may impose attorney’s fees against a non-party as an 

exercise of the court’s inherent power to sanction misconduct, that power “must be exercised with 

restraint and discretion” and, with respect to non-parties, is reserved only for those who abuse litigation 

practices. Chambers v. NASCO, Inc., 501 U.S. 32, 44–45 (1991); see also Corder v. Howard Johnson 

& Co., 53 F.3d 225, 232 (9th Cir. 1994) (not assessing attorney’s fees against a non-party because they 

did not act in bad faith, even when it was admitted the non-party engineered the lawsuit to take a “longshot” at the defendant”). Under this standard, Courts have sanctioned non-parties only when it is clear 

their bad-faith conduct egregiously abused the litigation process and/or made their adversary accrue 

unnecessary expenses. See Indiezone, Inc. v. Rooke, 720 F. App’x 333, 337 (9th Cir. 2017), cert. denied, 

139 S. Ct. 419 (2018), reh’g denied, 139 S. Ct. 868 (2019) (assessing attorney’s fees against non-party 

when he, inter alia, disobeyed a court order” explicitly directing him to appear and testify at the hearing 

on sanctions”); see also Barrey v. Ocwen Loan Servicing, LLC, No. CV-09-00573-PHX-GMS, 2009 

WL 1940717, at *2 (D. Ariz. July 2, 2009) (assessing attorney’s fees against a non-party when they 

admitted the civil suit she was encouraging individuals to bring had “no basis in law” and made their 

adversary “. . . incur unnecessary expenses.”). 

Nothing in the Award suggests that the attorney’s fees were awarded as a sanction or in response 

to any misconduct. Therefore, this last basis for awarding fees against a non-party is entirely 

inapplicable. In the absence of such an alternative, it is clear that the Arbitrator’s award of fees against 

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5 Case No. 4:16-cv-07387-JSW 

PLAINTIFFS’ REPLY TO RESPONSE TO MOTION TO VACATE, MODIFY, OR CORRECT

ARBITRATION AWARD 

Ms. Mak is wholly inappropriate as there is no grounds for awarding fees against a non-party or against 

a shareholder solely because she is a shareholder. The Arbitrator has unquestionably disregarded the 

law and exceeded his authority in assessing fees against Ms. Mak individually. Therefore, the Court 

must vacate the Award. 

B. DEFENDANTS HAVE FAILED TO REBUT THE SHOWING THAT 

THE ARBITRATOR ERRED IN ALLOCATING ATTORNEY’S FEES 

Defendants make no substantive effort to rebut the showing that the Arbitrator’s award of 

attorney’s fees is completely irrational and constitutes a manifest disregard of the law. Defendants 

assert only that the Arbitrator has broad discretion to award fees. While this is true, it does not 

immunize an Arbitration Award from examination and correction when the Arbitrator’s decision is 

completely irrational and manifestly disregards the law. 

As expressed clearly in the Motion to Vacate, the Arbitrator clearly exceeded his authority and 

issued an attorney fee award that is completely irrational and in manifest disregard for established law. 

9 U.S.C. § 10(a)(4); Comedy Club, Inc. v. Improv West Associates, 553 F.3d 1277, 1288 (9th Cir. 

2009); Todd Shipyards Corp. v. Cunard Line Ltd., 943 F.2d 1056, 1060 (9th Cir. 1991); Bell Aerospace 

Co. v. Local, 516, 500 F.2d 921, 923 (2d Cir. 1974); Swift Industries Inc. v. Botany Industries Inc., 466

F.2d 1125, 1131 (3d Cir. 1972). In fact, the attorney’s fee award was not issued pursuant to proper 

authority and completely disregarded the Arbitrator’s factual findings in summarily awarding an 

unsupportable amount of fees. 

The Arbitrator awarded fees for and against individuals who were never parties to the MorFit 

Agreement, and that Agreement, by its own terms, limits the right to recover attorney’s fees to the 

parties to the Agreement. Exhibit B, § 12. Neither Ms. Mak nor Mr. Narra were parties to the MorFit 

Agreement and so neither of them are subject to, or have the right to obtain, an award of fees under the 

MorFit Agreement. The Arbitrator further awarded fees related to claims that did not arise from the 

contractual relationship, giving Mr. Narra a windfall in connection with non-contract claims, for which 

there is no legal authority to award fees. The Arbitrator’s clear disregard for the terms of the MorFit 

Agreement has resulted in a completely irrational award that fails to draw its essence from the contract. 

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6 Case No. 4:16-cv-07387-JSW 

PLAINTIFFS’ REPLY TO RESPONSE TO MOTION TO VACATE, MODIFY, OR CORRECT

ARBITRATION AWARD 

It also demonstrates a manifest disregard for the law by awarding fees in connection with claims for 

which the law does not authorize a fee award. Therefore, the Court must vacate the fee award. 

C. DEFENDANTS ARE ATTEMPTING TO DISTRACT FROM THE LAW 

THROUGH IMPROPER EMOTIONAL APPEAL 

Defendants are attempting to redirect the Court’s attention from the serious failings of the 

Arbitration Award by asserting that the Court must confirm the award of fees against Ms. Mak or 

Defendants will be unable to collect the fees awarded. Defendants assert that Parkridge lacks sufficient 

assets to pay a fee award. Defendants argument is wholly inappropriate and based on an attempted 

emotional ploy, rather than sound legal principles. Defendants are clearly not concerned with whether 

fees are just under the law, but which parties are likely able to afford to pay them. The latter concern 

is irrelevant. 

Defendants’ attempt to assess $700,000 of attorney’s fees by reading into the arbitration award 

the arbitrator’s intent must be rejected. There is ample case law from around the nation that the issue 

of a litigant’s wealth is irrelevant for purposes of damages and litigants have been prevented from 

introducing this type of evidence at trial or obtaining the evidence in discovery. See, e.g. Estate of 

Jaquez v. Flores, No. 10 CIV. 2881 (KBF), 2016 WL 1060841, at *3 (S.D.N.Y. Mar. 17, 2016) 

(“Evidence that a defendant has ‘deep pockets’ is entirely irrelevant to the issue of damages.”); 21X 

Capital, Ltd. v. Werra, No. C06-04135 JW (HRL), 2008 WL 753907, at *2 (N.D. Cal. Mar. 19, 2008) 

(“whether or not [the defendant] is (or was) objectively wealthy seems irrelevant to Plaintiffs' 

[discovery] claims.”); Blake v. Batmasian, No. 15-81222-CIV, 2016 WL 7438838, at *2 (S.D. Fla. 

June 13, 2016) (“The Court agrees that the hearsay commentary that [the defendants] are ‘extremely 

wealthy, powerful, and feared individual[s]’ for purposes of asserting it in a complaint). Here, 

Defendants are going well beyond putting Mabel Mak’s wealth at issue for purposes of discovery or 

an exhibit at trial. They are doing it to tie her to a $700,000 attorney fee award and emotionally 

prejudice the Court against her by painting her as abundantly wealthy. If the former is not permissible, 

then certainly the latter is not either. For the law to be just, it cannot make decisions based solely upon 

the alleged financial means of parties appearing before a court. 

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7 Case No. 4:16-cv-07387-JSW 

PLAINTIFFS’ REPLY TO RESPONSE TO MOTION TO VACATE, MODIFY, OR CORRECT

ARBITRATION AWARD 

Defendants are asking the Court to enforce the fee award against Mable Mak, a non-party who 

has not been found to be liable for any wrong, solely because Defendants believe Ms. Mak has the 

financial means to pay the fee award, and Parkridge does not. Even if true, this is not a basis for 

upholding a fee award. As discussed, there is no legal basis for awarding attorney’s fees against 

Ms. Mak. Defendants’ overt effort to persuade the Court on this improper basis is indicative of the 

meritless nature of Defendants’ arguments throughout. The Court must reject Defendants’ improper 

arguments and vacate the Arbitration Award based upon the established legal grounds set forth by 

Parkridge and Ms. Mak. 

III. CONCLUSION 

Based on the foregoing, it is clear that the Arbitrator exceeded his powers by demonstrating a 

manifest disregard of the law, and issued an award that is completely irrational, incomplete, and 

contradictory.1 Accordingly, Parkridge and Ms. Mak respectfully request the Final Arbitration Award 

be vacated, modified, or corrected. 

DATED: December 20, 2019 

CALLAGY LAW, P.C. 

By: 

MICHAEL J. SMIKUN 

 

 CONSTANCE J. YU (SBN 182704) 

PUTTERMAN | YU LLP 

345 California Street, Suite 1160 

San Francisco, CA 94104-2626 

Telephone: (415) 839-8779 

Facsimile: (415) 737-1363 

E-mail: cyu@plylaw.com 

Attorneys for Plaintiffs and Counter-Defendants 

PARKRIDGE LIMITED and MABEL MAK 

1

 To the extent Plaintiffs/Counter-Defendants have not addressed any of Defendants’ arguments 

herein, Plaintiffs/Counter-Defendants refer the Court to the Motion to Vacate, Modify, or Correct 

Arbitration Award, which addresses the substance of Defendants’ positions. 

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