1

Filed 3/28/22 Cazares v. Beckstoffer Vineyards XX, LP CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION TWO

RENEE CAZARES et al. ,

Plaintiffs and Respondents,

v.

BECKSTOFFER VINEYARDS 

XX, LP,

Defendant and Appellant.

 A163078

 (Napa County

Super. Ct. No. 

16CV000228)

Following an earthquake in Napa, a dispute arose between a landlord 

and its tenants regarding the extent of damage to the building, and thus 

issues of repair, the upshot of which was the landlord declared the lease 

terminated. The tenants sued the landlord, which successfully moved the 

matter to arbitration, which occurred in 2020. Following seven days of 

hearing and several post-hearing briefs, the arbitrator found for the tenants

on one of their five claims, that for breach of contract, and awarded them 

damages, attorney fees, and costs that were a fraction of what they sought.

The landlord moved to vacate the award on several bases including, as 

pertinent here, that the arbitrator failed to disclose certain documents and 

pleadings in two lawsuits in Los Angeles County, the first a 2004 lawsuit 

involving a construction company owned by the arbitrator and her husband,
2

the second a 2008 lawsuit in which it was alleged that the arbitrator had 

made a fraudulent conveyance. The trial court denied the landlord’s motion

in a comprehensive order, following which judgment was entered confirming 

the award. The landlord appeals, contending the court erred in not vacating 

the award—that the trial court got it wrong. Our de novo review leads to a 

contrary conclusion—that the trial court got it right. And we affirm the 

judgment. 

The Parties and the General Setting

In 1999, plaintiffs and respondents Renee and Jose Cazares (plaintiffs) 

leased the ground floor of a building located at 1202 First Street, Napa, a 

two-story, unreinforced masonry building built in 1905, where plaintiffs 

operated a restaurant, Sushi Mambo. In April 2014, defendant and appellant

Beckstoffer Vineyards XX, LP (Beckstoffer) purchased the building and 

assumed the Sushi Mambo lease, which at that point had 21 more months to 

run. 

In August 2014, a magnitude 6.0 earthquake struck the city of Napa, 

causing extensive damage to numerous buildings, including 1202 First 

Street. Issues thereafter arose between plaintiffs and Beckstoffer as to 

paragraph 9 of the lease, entitled “Damage or Destruction,” which paragraph 

defines “ ‘Premises Partial Damage’ ” to mean damage that can reasonably be 

repaired in six months or less, and “ ‘Premises Total Destruction,’ ” to mean 

“damage or destruction which cannot reasonably be repaired in six months or 

less from the date of the [destructive event.]” Under paragraph 9.1(b), the 

landlord must notify the tenant within 30 days whether a destructive event 

caused partial or total damage, i.e., whether repairing the damage will take

more or less than six months. And if total destruction has occurred, the lease 

“shall terminate sixty (60) days following” the destructive event. 
3

Various persons inspected the damage, following which Beckstoffer 

obtained one report that repairs would take a year and cost some $2 million. 

Another report projected completion of the repairs no earlier than May 2015, 

more than six months after the earthquake. So, representing that best 

available estimates would be that repairs would take nine to 12 months, by 

letter dated September 10 Beckstoffer invoked the “Premises Total 

Destruction” clause of the lease, and that the lease will terminate on October 

23, 2014, sixty days after the earthquake. 

The Lawsuit and the Appeal

In April 2016, plaintiffs filed a lawsuit in Napa County Superior Court, 

alleging five causes of action. Beckstoffer filed a petition to compel 

arbitration, and the trial court granted it in part, ordering arbitration of one 

of the five causes of action, which arbitration it ordered stayed. Beckstoffer 

appealed, and in July 2018 we filed our unpublished opinion reversing and 

remanding the case for further proceedings consistent with our opinion:

Cazares v. Beckstoffer Vineyards XX, LP (Jul. 12, 2018, A150986) [nonpub. 

opn.].

The Arbitration 

In January 2019, plaintiffs filed a claim in arbitration asserting five 

claims, for breach of contract, fraud and deceit, trespass to real property, 

trespass to personal property, and conversion. Following the rules and 

procedures of the American Arbitration Association (AAA), the parties

ranked and/or struck various of the proposed arbitrators, the result of which

was that the AAA appointed Wendy Fassberg to act as arbitrator, the 

circumstances of which are the heart of Beckstoffer’s appeal and will be 

discussed in detail below.
4

The arbitration hearing was held over seven days in August 2020, prior 

to which the parties had filed pre-hearing briefs. Arbitrator Fassberg heard 

from 16 witnesses, 12 on behalf of plaintiffs and four on behalf of Beckstoffer,

and numerous exhibits were introduced.1 The parties submitted post-hearing 

briefs, and then supplemental briefs on a limited issue, following which, on 

November 2, Arbitrator Fassberg re-opened the hearing for further briefing 

on plaintiffs’ claim for “tax neutralization damages” in connection with any 

compensatory damage award. Following receipt of that briefing, on 

November 16, the hearing was re-closed. 

On December 8, Arbitrator Fassberg issued her award, 22 pages of 

discussion and analysis. Following descriptions of the procedural and factual

background, the award analyzed in detail,two of plaintiffs’ claims, beginning 

with their claim for breach of contract. Arbitrator Fassberg held for plaintiffs

on that claim where, following an exhaustive discussion of the evidence, the 

arbitrator concluded as follows: “[Beckstoffer] failed to present any credible 

evidence to show that they had the necessary information before terminating

[plaintiffs’] lease and demolishing the interior of the Premises so that there 

was no going back. In fact, as stated above, the evidence showed that 

[Beckstoffer] made no effort to actually secure that information within the 

required notification window, or at all. As of September 17, 2014, one week 

after the Termination Letter, ZFA [Structural Engineers] send [sic] a letter to 

[Andy Beckstoffer] that included as one of its tasks defining ‘project scope, 

prepare preliminary budget estimates, project timeline and outline project 

process for Owner review.’ [Citation.] Consequently, [Beckstoffer] failed to 

1 The parties devote many pages in their briefs setting forth their 

version of the facts developed at the arbitration. We see no need for any such 

detail here. 
5

meet the requirement that they make a good faith effort to determine 

whether a [Premises Total Damage], or a [Premises Partial Damage] had 

occurred before terminating the Lease, thereby breaching their obligations 

under the Lease. [Beckstoffer] is therefore liable to [plaintiffs] for breach of 

contract.” 

As to the damages, Arbitrator Fassberg awarded plaintiffs $225,888,

significantly less than sought. She also denied plaintiffs’ claims for economic 

damages based on a lease extension and for pre-judgment interest, and also 

their non-economic damage claims for punitive damages and emotional 

distress, as well as their claim for tax neutralization. And on plaintiffs’ claim 

for attorney fees, the arbitrator awarded $582,860, approximately 27.5 

percent of the $1,936,951 they had sought.2 Finally, on plaintiffs’ claim for 

costs, she awarded $13,365, some 10 percent of the $127,249 claimed.

As to the plaintiffs’ four other claims, the award specifically analyzed, 

and rejected, their claim for fraud and deceit. Concerning the remaining 

claims—trespass to real property, trespass to personal property, and 

conversion—the arbitrator concluded there was “insufficient evidence 

presented to sustain the stated causes of action. Moreover, at the close of the 

evidentiary hearing, in accordance with the claims asserted in [plaintiffs’] 

Closing Brief, these claims are no longer asserted and are therefore 

DENIED.”

Post-Award Proceedings

On January 4, 2021, plaintiffs filed a petition to confirm the award. 

On February 19, Beckstoffer filed its response to the petition. That 

same day it filed the pleading leading to the issue here, a motion to vacate 

2 Plaintiffs sought attorney fees of $768,470, plus a lodestar 

enhancement of $1,152,711, plus $15,770 paid to a prior attorney Paynter. 
6

the award. The motion to vacate asserted it was based on Code of Civil 

Procedure sections 1281.9, 1283.4, 1286.2, subdivision (a)(2), 1286.2, 

subdivision (a)(4), and 1286.2, subdivision (a)(6),

3 and asserted three grounds,

only the first of which is pertinent here: (1) “the arbitrator failed to disclose 

within the time required for disclosure a ground for disqualification of which 

the arbitrator was aware, including without limitation matters that could 

cause a person aware of the facts to reasonably entertain a doubt that the 

arbitrator would be able to be impartial.”

4

The motion was accompanied by a lengthy memorandum of points and 

authorities; a declaration of Beckstoffer attorney Kevin Block (that with its 

attachments and exhibits comprised 318 pages); and a request for judicial 

notice, requesting notice of nine documents. Mr. Block’s declaration was only 

15 short paragraphs of testimony, almost all of which referred to various 

exhibits pertaining to the arbitration. Most significantly, Beckstoffer’s 

request for judicial notice included a request to put before the court some 

specific records and pleadings from two cases filed in Los Angeles County, 

including the following: 

(1) The corrected judgment entered on March 24, 2005 in the case of 

Fassberg Construction Co. v. Housing Authority of City of Los Angeles

(Super. Ct. Los Angeles County, 2003, No. BC 290195), which case ultimately 

3 Hereafter, all undesignated statutory references are to the Code of 

Civil Procedure. 

4 The other grounds were that the arbitrator (1) “exceeded her powers 

by arbitrarily remaking the parties’ contract and deciding a question that 

was not before her and that the award cannot be corrected without affecting 

the merits of the decision upon the controversy submitted” and (2) “failed to 

decide a question submitted to her, the decision of which is necessary to a 

determination of the controversy.” 
7

resulted in a published opinion in the Court of Appeal: Fassberg 

Construction Co. v. Housing Authority of City of Los Angeles (2007) 

152 Cal.App.4th 720 (the Housing Authority lawsuit); and 

(2) The second amended complaint filed in the 2008 case of Fidelity and 

Deposit Company of Maryland v. Abraham Fassberg, et al (Super. Ct. Los 

Angeles County, 2008, No. BC 389072) (the Fidelity lawsuit).

Mr. Block’s declaration ended with these three paragraphs:

“I was unaware of litigation involving Wendy Fassberg and Fassberg 

Construction Company before I received Arbitrator Fassberg’s award. I 

relied on the biographical information she provided to me via AAA and her 

representation that it was accurate and complete. It was only after receiving 

her award that I discovered the lawsuits described in defendant’s motion to 

vacate. Had I known of the allegations against Fassberg beforehand, I would 

not have agreed to her appointment as arbitrator.

“In reviewing the docket of the Fidelity case, a copy of which is 

attached to defendant’s request for judicial notice, I saw that it ended with a 

voluntary dismissal by Fidelity after two years of hard-fought litigation. I 

assumed that this reflected a settlement. To make sure, I called the lead 

attorney for Fidelity in the Fassberg case, David Veis, who confirmed that the 

case had settled. He did not have access to the settlement agreement, he 

said, because his office was closed due to the pandemic, but he recalled that 

the settlement agreement contained a confidentiality clause.

“I asked Mr. Veis if, without revealing any of the terms of the 

settlement, he could sign a declaration that the case had ended in a 

confidential settlement. He said he felt comfortable doing so. I drafted a 

declaration for him, a copy of which is attached to this declaration as 

Exhibit X. When I sent it to him for review, however, he refused to sign, 
8

sending me the e-mail attached to this declaration as Exhibit Y. I then 

contact[ed] the second chair in the case, David Lynch, who refused to sign the 

declaration for the same reason as David Veis, as reflected in the e-mail 

attached as Exhibit Z to this declaration.” 

Nowhere in Mr. Block’s declaration or, for that matter, anywhere else 

in the record, is there any evidence as to how he or Beckstoffer learned of the 

two cases—or when.

The essence of Beckstoffer’s claim of non-disclosure by Fassberg begins 

with the AAA’s providing a list of potential arbitrators that included Wendy 

Fassberg, whose biography describes her history as a real estate and 

construction attorney, specifically noting that she has been involved “on 

multiple levels” with real estate and construction projects and involved in “all 

manner of disputes.” As noted, following the AAA rules and procedures,

Fassberg was appointed, after which the parties received her arbitrator 

disclosure form in which she denied any knowledge of matters that (i) might 

cause a reasonable person to entertain doubts about her impartiality or (ii) 

would otherwise lead her to believe that her disqualification would further 

the interests of justice. And at the end of the form, she signed an arbitrator’s 

oath that the biographical information provided to the parties is current, 

accurate, and complete. 

This, Beckstoffer contends, was false in light of certain documents 

referred to in its request for judicial notice, which documents contained 

material that should have been disclosed, including the corrected judgment in 

the Housing Authority lawsuit. That lawsuit—not incidentally, involving 

Fassberg Construction, not Fassberg individually—began when the 

construction company sued the Housing Authority for breach of contract. The 

Housing Authority cross-complained for fraud, breach of contract, and breach 
9

of the implied covenant of good faith and fair dealing, alleging that Fassberg 

Construction failed to complete work on numerous projects and submitted 

fraudulent claims for payment. (See Fassberg Construction Co. v. Housing 

Authority of City of Los Angeles, supra, 152 Cal.App.4th at pp. 730−731.) 

And, Beckstoffer’s motion argued, the corrected judgment revealed that the 

jury awarded the Housing Authority almost $4 million in compensatory and 

punitive damages and penalties, which Fassberg was under a duty to 

disclose. 

As to the second lawsuit, Beckstoffer’s motion to vacate argued that 

Fassberg failed to disclose that between 2008 and 2010, she was a defendant 

in the Fidelity lawsuit, an action filed against her and her husband by a 

surety that had issued construction bonds on 13 construction projects for 

which Fassberg Construction was the general contractor. Focusing on the 

allegations in Fidelity’s verified second amended complaint, Beckstoffer 

pointed out that Fidelity alleged that Fassberg submitted false financial 

statements to induce Fidelity to issue the bonds, and breached contracts of 

indemnity with Fidelity that she signed in her individual capacity to obtain 

the bonds; and that once Fassberg Construction’s default became clear, 

Fassberg fraudulently conveyed over $10 million in personal assets to an 

offshore tax haven in order to place them beyond Fidelity’s reach. 

Fidelity sought a preliminary injunction in the lawsuit, in response to 

which Fassberg submitted a lengthy declaration, described in detail below. 

Suffice to say here that while Fassberg admitted she transferred some assets 

overseas, she denied any intent to defraud her creditors, claiming that asset 

transfers were motivated by an overseas investment strategy that she had 

been considering since 2002, various personal issues, and a desire for 

increased security for her assets after some $2 million was stolen from a 
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personal bank account in the United States. We cannot tell from the register 

of actions whether Fidelity’s request for injunction was granted or denied, 

and Beckstoffer’s papers are silent on the issue. What we do know is that in 

2010 the Fidelity case was resolved on the eve of trial by confidential 

settlement. 

On February 9, plaintiffs filed their opposition to the motion to vacate,

and on February 19, Beckstoffer filed its reply, along with 10 pages of 

objections to plaintiffs’ evidence. 

The motion to vacate came on for hearing on February 26, prior to 

which the trial court had issued a tentative ruling denying the motion; and at 

the conclusion of the hearing, the court took the matter under submission. 

Later that day, the trial court filed its order denying the motion to vacate,

rejecting all three of Beckstoffer’s claims. It was a comprehensive nine-page 

single-spaced order that, as pertinent to the issue here, rejected Beckstoffer’s 

claim of failure to disclose. Citing to, and quoting extensively from,

Haworth v. Superior Court (2010) 50 Cal.4th 372 (Haworth), the trial court 

saw no connection between the claimed dishonesty and Fassberg’s ability to 

be impartial, going on to note that disclosure requirements are designed to 

ensure lack of bias, not moral rectitude. The court added that, even if any 

past misconduct were to raise doubts about Fassberg’s capacity for bias, there 

was no evidence that any actual bias occurred in this case, rejecting as 

“conjecture” Beckstoffer’s suggestions as to how Fassberg’s conduct as alleged 

in the Fidelity lawsuit could distort her view of Beckstoffer’s alleged fraud 

and bad faith, adding that the lawsuit ended in a settlement, meaning that 

the allegations against Fassberg were “never proven.” Finally, the court 

noted that the Fidelity lawsuit and the arbitration were “wholly unrelated”: 

one a surety/fraudulent conveyance case, the other a lease dispute. 
11

On March 1, plaintiffs refiled their petition to confirm the award. 

Beckstoffer filed brief opposition, and plaintiffs a brief reply. On April 28, the 

trial court entered judgment confirming the award, from which Beckstoffer 

filed its appeal. 

DISCUSSION

Introduction

Beckstoffer makes one argument on appeal, that the award “should be 

vacated for corruption under Code of Civil Procedure section 1286.2 based on 

(1) the arbitrator’s failure to disclose serious and credible allegations of 

dishonesty against her and (2) her active concealment of those allegations by 

signing a false arbitration oath.” Beckstoffer argues that failure to disclose a 

matter that must be disclosed constitutes “corruption” within the meaning of 

section 1286.2 (O’Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1104; 

Michael v. Aetna Life (2001) 88 Cal.App.4th 925, 937), and requires that the 

award be vacated. (Benjamin, Weill & Mazer v. Kors (2011) 195 Cal.App.4th 

40, 73.)

The trial court rejected the claim, which presents a mixed question of 

fact and law, with our review de novo. (Haworth, supra, 50 Cal.4th at 

pp. 384−385.) And that review leads us to reject the claim as well. It has no 

merit.

The Law of Arbitrator Disclosure

Section 1281.9 requires a proposed arbitrator to disclose “all matters 

that could cause a person aware of the facts to reasonably entertain a doubt 

that the proposed neutral arbitrator would be able to be impartial.” (§1281.9, 

subd. (a).) This is the same standard set forth in the California Judicial 

Council Ethics Standards for Neutral Arbitrators (Ethics Standards), 

compliance with which is mandatory. (§1281.85, subd. (a).) “An arbitrator’s 
12

duty to disclose arises under the same circumstances that give rise to a 

judge’s duty to recuse, that is, if ‘[f]or any reason . . . [¶] . . . [¶] . . . [a] person 

aware of the facts might reasonably entertain a doubt that the judge would 

be able to be impartial.’ (§170.1, subd (a)(6)(A)(iii).” (Haworth, supra, 

50 Cal.4th at pp. 388−389.) 

Disclosure standards are intended to (a) inform and protect the parties 

to arbitration and (b) promote public confidence in the integrity of the 

arbitration system. (Ethics Standards, Standard 1, subd. (a).) As another 

Code of Ethics puts it, “Any doubt as to whether or not disclosure is to be 

made should be resolved in favor of disclosure.” (American Bar Association 

Code of Ethics for Arbitrators in Commercial Disputes, Canon II, 

subsection D; AAA California Arbitrator Oath Form, page 1), which is 

perhaps why we have heard it said that the guidance given to arbitrators is 

“disclose, disclose, disclose.”

Arbitrators are responsible for implementing the standards so as to 

promote and protect public confidence. (Ethics Standards, Standard 1, 

subd. (b).) Thus, some courts have noted that parties do not have an 

obligation to discover information, even public information, about an

arbitrator that should have been disclosed. (Mt. Holyoke Homes, L.P. v. Jeffer 

Mangels Butler & Mitchell, LLP (2013) 219 Cal.App.4th 1299, 1313 (Mount 

Holyoke).) The obligation to make the required disclosure rests at all times 

with the arbitrator. (Ibid.)

The test to be applied for disclosure is an objective one, which “focuses

on a reasonable person’s perception of bias and does not require actual bias.”

(Mount Holyoke, supra, 219 Cal.App.4th at p. 1311) Put slightly differently,

the question is not a subjective question of whether the arbitrator was

actually biased, but whether an objective, reasonable person aware of the
13

facts reasonably could entertain a doubt that he or she could be impartial in

the case. (Haworth, supra, 50 Cal.4th at pp. 385–386.)

As Haworth went on to describe,“ ‘[t]he “reasonable person” ’ ” under

this test “is not someone who is ‘hypersensitive or unduly suspicious, but

rather is a “well-informed,thoughtful observer.” ’ [Citations.] ‘[T]he partisan

litigant emotionally involved in the controversy underlying the lawsuit is not

the disinterested objective observer whose doubts concerning the judge’s

impartiality provide the governing standard.’ [Citations.] [¶] ‘An impression

of possible bias in the arbitration context means that one could reasonably

form a belief that an arbitrator was biased for or against a party for a

particular reason.’ ” (Haworth, supra, 50 Cal.4th at p. 389.) In this context, 

“ ‘[i]mpartiality’ entails the ‘absence of bias or prejudice in favor of, or 

against, particular parties or classes of parties, as well as maintenance of an 

open mind.’ ” (Ibid.) And, Haworth cautioned, a party raising the issue has a 

heavy burden to “clearly” establish the appearance of bias: The “appearanceof-partiality ‘standard “must not be so broadly construed that it becomes, in 

effect, presumptive, so that recusal is mandated upon the merest 

unsubstantiated suggestion of personal bias or prejudice.” ’ ” (Ibid.)

Haworth involved the arbitration of a battery and medical malpractice 

claim against a male doctor who performed cosmetic lip surgery on a female 

patient. The arbitrator issued an award for the doctor. The arbitrator, a 

retired judge, had been publicly censured 15 years before the arbitration for 

misconduct that included making suggestive remarks to female staff 

members, a fact not disclosed in his disclosure statement. 

Based on that, Haworth moved to vacate the award. The trial court 

granted the motion, and the Court of Appeal denied the doctor’s petition for 

mandamus. The Supreme Court reversed, holding that the award was not 
14

subject to vacation under section 1286.2, subdivision (a)(6)(A) because the 

censure was not a matter that required disclosure under section 1281.9, 

subdivision (a) and the Ethics Standards for neutral arbitrators. (Haworth, 

supra, 50 Cal.4th at p. 377.) Doing so, the court rejected the argument that

the censure would cause a person to reasonably conclude the arbitrator might

be biased against a female plaintiff in a medical malpractice case involving

cosmetic surgery. (Id. at p. 389.) In particular,the court noted, the conduct

for which the former judge had been censured occurred some 15 years before

the subject arbitration and did not involve litigants or take place while court

was in session. The court also observed that the fact the former judge was

censured rather than removed from office reflected the Supreme Court’s view

that his conduct did not indicate he could not be fair to female litigants

generally. (Id. at p. 390.) And since possible inferences to be drawn from the

censured conduct could point either in favor of the female patient or in favor

of the male physician,the public censure “simply provides no reasonable

basis for a belief that [the former judge] would be inclined to favor one party

over the other in the present proceedings.” (Id. at p. 391.)

Finally, the Supreme Court highlighted the importance of a subject

matter link between the current arbitration and the matter claimed to be

subject to disclosure, noting that “the subject matter of this arbitration was

not such that the circumstance of gender was material, or that gender

stereotyping was likely to enter into the decision made by the arbitrators.” 

(Haworth, supra, 50 Cal.4th at p. 391.) “ ‘Judges, like all human beings, have 

widely varying experiences and backgrounds. Except perhaps in extreme 

circumstances, those not directly related to the case or the parties do not 

disqualify them.’ [Citation.]” (Id. at p. 389.) 
15

Applying those principles here leads to the conclusion that Fassberg 

did not violate the rules of disclosure. 

Fassberg Had no Duty to Disclose the Documents in the Prior 

Lawsuits 

In claimed support of its one argument, Beckstoffer has three boldfaced statements, the first of which is that “the allegations of fraud and bad 

faith . . . are serious, credible, and bear directly on the dispositive issue in the 

arbitration case.” We begin by noting that we agree with Beckstoffer that the 

“allegations . . . are serious.” That they are “credible” was never determined. 

And that they “bear directly on the dispositive issue” in the arbitration is 

hardly apparent, as neither case has any relationship whatsoever to any of 

the facts in the arbitration, no relation to any party to this action, and no 

connection with any of the attorneys or law firms involved in it. 

As the trial court noted, what Beckstoffer refers to are “allegations,”

allegations made in the Fidelity lawsuit, a suit against Fassberg and her 

husband that had five causes of action, including for specific performance, 

breach of contract, indemnity, fraudulent transfer, and injunctive relief. As 

noted above, in opposition to Fidelity’s request for a preliminary injunction, 

Fassberg submitted a lengthy, nine-page declaration testifying at length the 

reasons she claimed that led to the various transfers, the transfers 

Beckstoffer claimed were fraudulent. Those reasons began in 2002 or 2003,

via a presentation to her and her husband about overseas investments. In 

early 2003 Fassberg’s mother was diagnosed with cancer (she died in 2004);

later in 2003 Fassberg’s husband was diagnosed with leukemia. Then, in 

mid-2004, a “devastating experience occurred”: their bank account was 

“ravaged,” and “almost all of our funds—more than two million dollars were 

stolen.” And so beginning in 2005, they began to fund the overseas trust. As 

noted also above, while we do not know whether Fidelity’s request for 
16

injunction was granted or denied, we do know that in 2010 the Fidelity 

lawsuit was settled. In short, there is much more to the allegations of 

fraudulent transfer than Beckstoffer would have it.

But Beckstoffer’s reliance on the Fidelity lawsuit pales in comparison 

to its reliance on the corrected judgmentin the Housing Authority lawsuit, 

which judgment awarded the Housing Authority a total of $3,960,500 on its 

cross-complaint following a jury verdict that the construction company 

breached its construction contract by submitting 2,983 false claims. That 

may have been the story in the trial court. It was not the end of the story.

Both sides appealed and the Court of Appeal reversed in great part, 

with most of its holding in favor of Fassberg Construction. These holdings 

included that: (1) the evidence did not support the finding of 2,983 false 

claims and did not establish a sufficient basis for the civil penalty; (2) the 

evidence did not support the finding that the Housing Authority suffered 

$455,000 in damages for false claims and did not support the treble damages 

award; (3) the damages awarded for breach of contract were excessive; (4) the 

award of compensatory damages for misrepresentation was not supported by 

substantial evidence; and (5) the construction company was entitled to 

recover retention proceeds. (Fassberg Construction Co. v. Housing Authority 

of City of Los Angeles, supra, 152 Cal.App.4th at pp 768−769.)

In short, the argument Beckstoffer attempted to put before the trial 

court was based on a less than complete picture. Regardless, it does not 

demonstrate that Fassberg had a duty to disclose what Beckstoffer claimed 

she did. And Beckstoffer’s arguments to the contrary, however vigorous, are 

unavailing. 

In claimed support of its position, Beckstoffer uses strong language to 

describe Fassberg and her conduct. These three paragraphs are illustrative: 
17

“In the eyes of a layperson, Fassberg’s guilt, if she feels any, may 

predispose her to lash out and judge others’ actions more harshly than her 

own, in an effort to minimize her own transgressions. A layperson may 

reasonably conclude that if Fassberg believes she was wrongly accused, she 

may be moved to inflict similar injustice on others.

“Either way, a reasonable person could reasonably question whether 

Fassberg has the objectivity to pass judgment on what the duty of commercial 

good faith requires. [Beckstoffer] need not prove whether or how the Fidelity 

trauma undermined Fassberg’s objectivity, only that there is reason to 

question whether it did.

“Fassberg may have concluded [Beckstoffer’s] witnesses were lying to 

cover up [Beckstoffer’s] bad faith. Based on the Fidelity allegations, a 

reasonable person could conclude that Fassberg perjured herself to evade her 

indemnity obligations. A serial liar cannot judge impartially whether 

someone else lied, because the liar’s judgment will inevitably be tainted by 

her own dishonesty.” 

While “serial liar” may be an easy label to throw around, such label 

appears belied by Fassberg’s experience as described by the AAA: “Thirty-six 

years as a real estate, construction, commercial, and business litigator, as 

well as a transactional practitioner in those specialties. Owned and operated 

a property management company for many years and licensed real estate 

broker for over 21 years. Arbitrated, mediated, as well as litigated countless 

landlord/tenant matters. . . . Over the years, arbitrated and mediated 

disputes involving owners, developers, contractors, subcontractors, and 

design professionals, and have represented and served as in-house counsel for 

several of them. Construction matters have involved all manner of disputes, 

including those ranging from fundamental to complex construction defect 
18

claims, to delay claims, to breach of contract claims.” Fassberg’s background 

also includes membership in no fewer than five Bar Associations, service on 

numerous commissions and organizations, and the speaker/presenter on 

numerous education panels. 

Beckstoffer also asserts a “reasonable person could also question 

whether Fassberg was biased in favor of the underdogs”—or, as Beckstoffer

put it below, “the little guy.” Beckstoffer describes how the lawsuit by 

Fidelity, “a large corporation,”threatened the existence of Fassberg’s family 

construction company and the loss of personal wealth. And, so the argument 

runs, Fassberg would have sympathy with plaintiffs on “an emotional level,” 

awarding them compensation from a “wealthier defendant, regardless of the 

merits.” Hardly.

As described in detail above, most of plaintiffs’ claims were denied; the 

damages awarded were significantly less than they sought; their requests for 

attorney’s fees and costs were slashed; their request for tax neutralization 

adjustment was refused; and their request for expert costs denied. If this is 

evidence of bias in favor of the “little guy,” it comes in a novel guise.

Indeed, as plaintiffs point out, a fair reading of the situation is that 

Arbitrator Fassberg may have been biased in favor of someone sued for fraud 

as she was, and against which allegations she fought a vigorous defense, just 

as Beckstoffer fought hard against the allegations of fraud posed against it by 

plaintiffs. Again Haworth is apt: Even if we accept, arguendo, that 

allegations of dishonesty are sufficient to show a capacity for bias, there is no 

evidence presented here from which “ ‘one could reasonably form a belief that 

[the] arbitrator was biased for or against a party for a particular reason.’ ” 

(Haworth, supra, 50 Cal.4th at p. 389.) The situation “simply provides no
19

reasonable basis for a belief that [Fassberg] would be inclined to favor one

party over the other in the present proceedings.” (Id. at p. 391.)

On top of all that, another factor mentioned in Haworth is applicable 

here, the length of time some of the complained of conduct occurred. There it 

was 15 years after the public censure that the arbitration occurred. Here, it 

was 14 years from the corrected judgment in the Housing Authority lawsuit,

10 years from the second amended complaint in Fidelity.

5

DISPOSITION

The judgment is affirmed. Renee Cazares and Jose Cazares shall 

recover their costs on appeal.

5 Beckstoffer makes the somewhat novel argument that Fassberg’s 

appointment was procured by “fraud,” apparently her non-disclosure of facts 

that should have been disclosed. This appears to be just another way of 

arguing what had to be disclosed, which we have rejected. Nothing more 

need be said.
20

_________________________

Richman, Acting P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

Cazares v. Beckstoffer Vineyards XX, LP (A163078)