Roussos v. Roussos CA2/7 ( 2021 )

Filed 2/2/21 Roussos v. Roussos CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
HARRY ROUSSOS et al., B293356
Plaintiffs and (Los Angeles County
Respondents, Super. Ct. No. BS165997)
v.
THEODOSIOS ROUSSOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gregory W. Alarcon, Judge. Affirmed.
Nossaman, Jennifer L. Meeker and Maya G. Hamouie for
Defendant and Appellant.
RMO, Scott E. Rahn, Sean D. Muntz and David G. Greco
for Theocharis Roussos as Amicus Curiae on behalf of Defendant
and Apellant.
Kesselman Brantly Stockinger, S.V. Stuart Johnson and
Ryan Davis for Plaintiffs and Respondents.
Theodosios (Ted) Roussos appeals from a judgment
confirming two arbitration awards. In the first award (the
partition award), the arbitrator granted Harry and Christine
Roussos’s request for partition by sale of six properties owned by
two limited partnerships and a corporation, which in turn were
owned by Ted and Harry1 as cotrustees of two trusts.2 Ted
contends the arbitrator exceeded his powers because the
properties were the assets of the trusts, and the trusts were
expressly excluded from the arbitration agreement; Christine
lacked standing to seek partition based on her status as a
beneficiary of the trusts; Harry and Christine failed to join
indispensable parties to the partition action; and the arbitrator
erred in ordering partition because the provisions in the
applicable partnership agreements prohibited the partners from
seeking partition.3 However, Ted’s petition to vacate the awards
was untimely and deficient. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Trusts and Roussos Entities
Harry and Ted are brothers and cotrustees of the S.M.B.
Investor Associates Irrevocable Trust (SMB Trust) and the O.F.
Management Irrevocable Trust (OF Trust; collectively, the
1 Because the Roussos family members share the same last
name, we refer to them by their first names to avoid confusion.
2 On appeal Ted only challenges the first award, not the later
award of attorneys’ fees.
3 Amicus curiae Theocharis (Harris) Roussos joins in Ted’s
substantive arguments.
2
Trusts). Harry’s wife Christine and Ted’s wife Paula Roussos,
along with their respective children, were beneficiaries of the
Trusts.4
Harry and Ted had management roles and financial
interests in multiple interrelated companies. As cotrustees of the
SMB Trust, Harry and Ted were the sole shareholders of Dazum
Limited (Dazum), which in turn was the sole shareholder of
Velnor Overseas Ltd. (Velnor), which was the sole shareholder of
S.M.B. Management, Inc. (SMB Management). SMB
Management owned a 1 percent interest as the general partner in
S.M.B. Associates, L.P. (SMB LP). The other 99 percent was
owned by Harry and Ted as cotrustees of OF Trust.
As cotrustees of OF Trust, Harry and Ted were the sole
shareholders of Fenbe, Ltd. (Fenbe), which in turn was the sole
shareholder of Kelroad International, Inc. (Kelroad), which was
the sole shareholder of Liro, Inc. (Liro). Liro owned a 1 percent
interest as the general partner of O.F. Enterprises Ltd., L.P. (OF
LP). The other 99 percent of OF LP was owned by Harry and Ted
as cotrustees of OF Trust.
SMB LP, OF LP, and Liro owned six properties, including
five apartment buildings and a vacant lot in Southern California
(the properties). SMB LP owned an apartment building at 153
San Vicente Boulevard, Santa Monica. OF LP owned three
apartment buildings: 2727 Abbot Kinney Boulevard, Venice; 39
Paloma Avenue, Venice; and 580 West E Street, Colton. Liro
4 By their own terms, the Trusts terminated on March 31,
2019, with the Trust assets to be divided equally among
Christine, Harry and Christine’s children, Paula, and Ted and
Paula’s children.
3
owned a vacant lot at 2721 Abbot Kinney Boulevard, Venice and
an apartment building at 2209 Ocean Front Walk, Venice.5
SMB LP and OF LP were governed by similar limited
partnership agreements. Paragraphs 7.3.2 and 8.7.9.2 of each
partnership agreement specified the limited partners did not
have the right to “bring an action for partition against the
Partnership.”
B. The Arbitration Agreement
As a result of significant disagreements between Ted and
Harry on management and operation of the family businesses, in
December 2012 Ted, Paula, Harry, and Christine stipulated to
binding arbitration. Ted and Harry signed the arbitration
agreement on behalf of themselves, OF LP, and SMB LP. Two
other individuals signed the agreement on behalf of Liro, SMB
Management, Velnor, Kelroad, Fenbe, and Dazum. The
arbitration agreement provides in part, “1. The parties stipulate
and agree not to contest that Judge John P. Shook will arbitrate
all issues with binding authority over Harry Roussos, Christine
Roussos, Theodosios Roussos, Paula Roussos, S.M.B. Investor
5 According to Ted, the 153 San Vicente Boulevard and 2727
Abbot Kinney Boulevard properties were sold after the
arbitration. Ted also asserts 2209 Ocean Front Walk, LLC (OFW
LLC), which was not a party to the arbitration agreement or
arbitration, owns 2209 Ocean Front Walk and possibly 2721
Abbot Kinney Boulevard. However, in Liro, Inc. v. 2209 Ocean
Front Walk (Super. Ct. L.A. County, 2011, No. SC108947), the
trial court on January 7, 2011 entered judgment quieting title to
the two properties. The court ruled Liro had been the sole owner
of 2721 Abbot Kinney Boulevard and 2209 Ocean Front Walk
since 1995, and OFW LLC never owned the two properties.
4
Associates, LP; O.F. Enterprises Ltd[.], L.P[.]; Liro, Inc[.]; S.M.B.
Management, Inc.; Velnor Overseas Ltd[.]; Kelroad International,
Inc.; Fenbe Ltd[.]; [and] Dazum Limited. [¶] . . . [¶] 4. Nothing
in this agreement shall be construed as submitting S.M.B.
Investor Associates Irrevocable Trust or O.F. Management
Irrevocable Trust to this arbitration; the parties reserve all rights
as to any arguments regarding the arbitrability of issues or
claims arising out of or relating to the above-mentioned trusts.
[¶] 5. The prevailing party shall be entitled to recover all
litigation costs, including attorney fees, and expert fees. [¶] 6.
The arbitration costs shall be born[e] jointly by Liro, Inc. and
S.M.B. Management, Inc. Upon request of a prevailing party,
Judge Shook has the discretion to order any party to reimburse
said arbitration costs to Liro, Inc. and/or S.M.B. Management,
Inc.”
C. The Partition Award
As part of the arbitration, Harry and Christine sought
partition by sale of the six properties; Ted and Paula sought
partition by appraisal. The arbitrator (Retired Judge Shook) also
resolved competing claims asserted by the parties, including for
fraud, breach of contract, breach of fiduciary duties, accounting,
conversion, and intentional and negligent infliction of emotional
distress. Harry and Christine named Ted and Paula as
respondents in the arbitration, as well as OF LP, SMB LP, SMB
Management, Liro, Velnor, Kelroad, Fenbe, and Dazum
(collectively the Roussos Entities), and OFW LLC. However, only
Harry, Christine, Ted, and Paula were present with their counsel
at the arbitration. No appearances were made by or on behalf of
5
the Roussos Entities.6 The arbitrator held he had binding
authority and unlimited jurisdiction over the parties to the
arbitration agreement.
On July 29, 2016 the arbitrator issued his statement of
decision and judgment (partition award). On September 14, 2016
the arbitrator served the partition award on Harry, Christine,
Ted, and Paula though their respective counsel by mail and e-
mail. The arbitrator found Christine had an equitable interest in
the Roussos Entities and their properties as a beneficiary of the
Trusts and on this basis had standing to bring the claim and seek
partition of the properties. The arbitrator concluded, “Here,
partition by sale is the appropriate solution. First, the Properties
cannot be divided in sub-parcels due to their nature as fully
developed rental properties. Second, partition by sale will
permanently end Harry Roussos and Ted Roussos[’s] disputes
related to the Properties. Third, and perhaps most importantly,
it will allow the parties to seize upon the tremendous once-in-a-
lifetime gains the Properties have realized in the current
unprecedented real estate market. Additionally, equally dividing
the Properties in kind between the Limited Partnerships [(SMB
LP and OF LP)] would not resolve the disputes here. This is
because Harry Rousso[s] and Ted Rousso[s] cannot effectively
manage the Properties when they must agree with each other.”
(Underscoring omitted.) The arbitrator found the limited
partnership agreements contained waivers of the right to
partition, but he exercised his equitable powers to strike the
provisions.
6 The record does not reflect whether the Roussos Entities
were properly served with notices of the arbitration, but Ted does
not assert they were not.
6
The arbitrator rejected Ted’s request for partition by
appraisal, explaining, “[T]his is not legally possible as a forced
sale, because this Arbitrator does not have jurisdiction over the
trusts,” and he could not force the Trusts to sell their assets. The
arbitrator ordered OF LP, SMB LP, and Liro to sell the
properties and to maximize the value for the trust beneficiaries.
The arbitrator further ordered the parties to bear their own costs
of suit, arbitration fees, and attorneys’ fees.
D. The Parties’ Competing Petitions in the Trial Court
On October 21, 2016 Harry and Christine filed a “petition
to confirm arbitration award,” which sought to confirm the
partition award (case No. BS165997). After a further arbitration
held on November 16, 2016, on November 19 the arbitrator
issued a separate attorneys’ fees award (fee award), ordering
SMB Management and Liro to pay the attorneys’ fees incurred by
Harry, Christine, Ted, and Paula in the arbitration based on an
indemnification provision in both corporations’ bylaws.7 The
arbitrator noted that Harry, Christine, Ted, and Paula had no
objection to entry of the fee award. On December 14, 2016 Harry
and Christine filed a first amended petition to confirm the
partition and fee awards.
7 We grant Ted’s September 27, 2019 request for judicial
notice as to exhibits 1 (petition to vacate arbitration award, with
attached attorneys’ fees award), 5 (opposition to motion to vacate
arbitration award), and 6 (declaration in support of petition to
confirm arbitration award) pursuant to Evidence Code sections
452, subdivision (d), and 459. We deny Ted’s request as to the
other exhibits and his February 20, 2020 request for judicial
notice as not necessary to our decision.
7
Ted did not respond to Harry and Christine’s first amended
petition. Instead, on February 24, 2017 Ted and Paula’s estate8
filed a “petition to vacate contractual arbitration award” in a
separate action (case No. BS168231).9 The petition named as
respondents Harry and Christine, the owners of the six
properties (SMB LP, OF LP, and Liro), and SMB LP’s general
partner, SMB Management. The petition attached the
arbitration agreement and the fee award, but not the partition
award. The petition acknowledged Ted and his counsel received
the fee award on November 22, 2016.
On May 22, 2017 Harry and Christine filed a second
amended petition and a motion to confirm the partition and fee
awards. The petition and motion named Ted, Sophia, SMB LP,
SMB Management, OF LP, Liro, Velnor, Kelroad, Fenbe, and
Dazum as respondents.
On June 21, 2017 Ted and Sophia filed an opposition to the
second amended petition and motion. They contended Ted’s and
Harry’s “Chapter 7” bankruptcies automatically stayed all
litigation; Harry and Christine did not obtain relief from the
automatic stay; and the bankruptcy court sold the San Vicente
Boulevard property at auction. Ted and Sophia also argued the
arbitrator did not have jurisdiction over assets that were outside
the scope of the arbitration agreement; Harry and Christine had
no standing to seek partition of the properties; Harry waived his
8 Paula passed away in November 2016. Her daughter
Sophia Roussos was later appointed the special administrator of
Paula’s estate.
9 On May 11, 2017 Harry and Christine filed a notice of
related case stating that case No. BS168231 was related to case
No. BS165997. The trial court later related the two cases.
8
right to seek partition under the terms of the partnership
agreements for SMB LP and OF LP; and the properties could not
be partitioned until the Trusts terminated on March 31, 2019, at
which time the assets would be equally divided among the
beneficiaries. On December 28, 2017 Ted filed an opposition to
the motion to confirm the awards in which he repeated his
jurisdictional and standing arguments. He also argued Harry
and Christine failed to authenticate the arbitration agreement
and to join indispensable parties. In their reply brief, Harry and
Christine objected to Ted’s petition to vacate as untimely because
it was served more than 105 days after mailing of the fee award
(including five days for mailing), was not served on all parties,
and failed to state the grounds for the petition. Harry and
Christine also addressed Ted’s substantive arguments.
Counsel for Ted, Harry, Christine, OF LP, and SMB LP
appeared at the January 11, 2018 hearing on Harry and
Christine’s motion to confirm the partition and fee awards. The
parties addressed the timeliness as well as the substantive
arguments. On January 12 the trial court granted the motion,
and on November 19, 2018 the court entered judgment
confirming the two awards. On November 21, 2018 Harry and
Christine served notice of entry of judgment on Ted, Sophia, SMB
LP, SMB Management, OF LP, Liro, Dazum, Kelroad, Fenbe, and
Velnor. Ted timely appealed from the judgment.
9
DISCUSSION
A. Judicial Review of Arbitration Awards
Code of Civil Procedure section 128510 provides that “[a]ny
party to an arbitration in which an award has been made may
petition the court to confirm, correct or vacate the award.” An
arbitration award “is not subject to judicial review except on the
grounds set forth in sections 1286.2 (to vacate) and 1286.6 (for
correction).” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 33;
accord, Soni v. SimpleLayers, Inc. (2019) 42 Cal.App.5th 1071,
1086 (Soni).)11
“A petition to vacate an award or to correct an award shall
be served and filed not later than 100 days after the date of the
service of a signed copy of the award on the petitioner.” (§ 1288.)
“The filing and service deadline for a petition to vacate is
jurisdictional; noncompliance deprives a court of the power to
vacate an award unless the party has timely requested vacation
in response to a petition to confirm.” (Santa Monica College
Faculty Assn. v. Santa Monica Community College Dist. (2015)
243 Cal.App.4th 538, 544-545 (Santa Monica College); accord,
Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1211 [“The trial
court’s power to vacate an arbitration award is governed by
statute, and the deadline for seeking such relief is mandatory.”].)
10 All further references are to the Code of Civil Procedure
unless otherwise indicated.
11 Section 1286.2, subdivision (a)(4), authorizes the court to
vacate an arbitration award on enumerated grounds including if
“[t]he arbitrators exceeded their powers and the award cannot be
corrected without affecting the merits of the decision upon the
controversy submitted.”
10
Further, “‘“[a]n appeal of the judgment confirming the award
may not be used to circumvent the prescribed time allowed to
petition for vacation or correction of the award.”’” (Soni, supra,
42 Cal.App.5th at p. 1093; accord, Louise Gardens of Encino
Homeowners’ Assn., Inc. v. Truck Ins. Exchange, Inc. (2000)
82 Cal.App.4th 648, 659.)
In reviewing the ruling on a petition under section 1285,
“[w]e apply the substantial evidence test to the trial court’s
determination of disputed factual issues.” (Soni, supra,
42 Cal.App.5th at p. 1087; accord, EHM Productions, Inc. v.
Starline Tours of Hollywood, Inc. (2018) 21 Cal.App.5th 1058,
1063.) But “‘[i]ssues of statutory interpretation and the
application of that interpretation to a set of undisputed facts are
questions of law subject to independent review by this court.’”
(Soni, at p. 1087; accord, Loeb v. Record (2008) 162 Cal.App.4th
431, 441.)
B. Ted’s Petition To Vacate the Arbitration Awards Was
Untimely and Deficient
Under section 1288, Ted was required to file and serve his
petition to vacate the arbitration awards by March 6, 2017—100
days after the date of the service of the November 19, 2016 fee
award (which concluded the arbitration), plus five days for
service by mail (§ 1013, subd. (a)).12 But Ted only served Harry
12 Because the arbitrator served the arbitration awards by
mail, section 1013, subdivision (a), extended Ted’s time to file and
serve the petition to vacate the award by five days to 105 days
from the date of service. (Oaktree Capital Management, L.P. v.
Bernard (2010) 182 Cal.App.4th 60, 65 [§ 1013, subd. (c),
extended by two days the 10-day deadline for appellant to seek
11
and Christine on March 6, 2017. He served SMB Management,
Liro, SMB LP, and OF LP—all parties to the arbitration and
named in Ted’s petition—on March 9, 2017.13 Because Ted did
not serve his petition on SBM Management, Liro, SBM LP, and
OF LP until March 9, 2017, his petition was untimely. (Santa
Monica College, supra, 243 Cal.App.4th at p. 545 [trial court
lacked jurisdiction to vacate arbitration award where petition to
vacate was served 108 days after service of award]; Eternity
Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739, 745 [“‘If
[the party who lost in the arbitration does] not serve and file a
petition to vacate or a response to [a] petition to confirm within
the 100-day period from the date of service of the award . . . , the
award must be treated as final.’”])
Further, section 1286.4, subdivision (b), provides the court
may not vacate an award unless “(1) All petitioners and
respondents are before the court; or [¶] (2) All petitioners and
respondents have been given reasonable notice that the court will
be requested at the hearing to vacate the award . . . .” Ted’s
petition to vacate the awards failed to name as respondents or
vacation of the arbitration award in response to the petition to
confirm the award under § 1290.6]; see Camper v. Workers’
Comp. Appeals Bd. (1992) 3 Cal.4th 679, 685 [“‘[W]here a
prescribed time period is triggered by the term “service” of a
notice, document or request then section 1013 will extend the
period.’”].)
13 We grant Harry and Christine’s January 31, 2020 request
for judicial notice of exhibit 3 (proofs of service of Ted’s petition to
vacate arbitration awards) under Evidence Code sections 452,
subdivision (d), and 459. We deny Harry and Christine’s request
for judicial notice of other documents as not necessary to our
decision.
12
give notice to the other parties to the arbitration—Dazum, Fenbe,
Kelroad and Velnor, and they were not represented in the trial
court proceedings.
Likewise, Ted and Sophia’s June 21, 2017 filing of an
opposition to Harry and Christine’s motion to confirm the
partition and fee awards was filed and served more than 100
days after service of the fee award. Thus, Ted’s opposition was
not a timely response to Harry and Christine’s petition to confirm
the partition award or first amended petition to confirm the
partition and fee awards. (Soni, supra, 42 Cal.App.5th at p. 1093
[appellant “was barred from asserting that the arbitrator
exceeded his powers as grounds to prevent confirmation of the
petition” where his “response to the petition to confirm the award
was filed more than 100 days after service of the award”];
Douglass v. Serenivision, Inc. (2018) 20 Cal.App.5th 376, 384-385
[“‘[a] response to a petition’ to confirm an award ‘may request the
court to . . . vacate the award’ (§ 1285.2), but a response
containing such a request is only timely if it is ‘served and filed
not later than 100 days’ after the responding party was served
with a signed copy of the award (§ 1288.2)”].)
Moreover, section 1285.8 requires a petition to vacate an
award “set forth the grounds on which the request for such relief
is based.” Ted’s petition did not state any grounds to vacate the
arbitration awards, nor did it include a copy of the July 29, 2016
partition award, instead attaching only the November 19, 2016
fee award. Although the petition stated “[t]he facts supporting
the grounds for vacating the award” were contained in
attachment 10c(2), the attachment did not specify any grounds
for vacatur. The attachment only argued the 100-day
requirement was tolled because Paula’s death on November 29,
13
2016 made it impracticable to proceed with the petition by the
deadline because the probate court had not yet appointed a
representative for Paula’s estate. But Paula’s death would not
have prevented Ted from timely filing and serving a petition to
vacate the arbitration awards that properly set forth the grounds
for relief.14
Ted relies on Shepherd v. Greene (1986) 185 Cal.App.3d
989, 993, for the proposition the 100-day deadline is tolled during
the period it is “impossible or impracticable” to proceed with a
petition. Ted reads the holding in Shepherd too broadly. The
court there held the 100-day deadline for filing a petition to
correct and confirm an arbitration award (a State Bar arbitration
award as to disputed attorneys’ fees) was tolled by the filing of a
civil complaint to recover the fees. (Ibid.) The court concluded it
would be impractical and futile for the aggrieved party to seek to
vacate an arbitration award because the arbitration award would
only become binding if 30 days passed after mailing of the award
14 In attachment 10c(2), Robert Clarkson and Clarkson Riley
Rubin LLP, who represented Ted and Paula in the arbitration,
stated Ted had not yet retained the law firm to represent him in
any challenge to the arbitration awards. Further, Clarkson Riley
Rubin LLP indicated even if both Ted and Paula’s estate decided
to retain the law firm, it would not represent either party “even
with an informed written waiver of this actual conflict interest.”
But Ted could have retained another law firm or attorney to file
and serve the petition to vacate the arbitration award or a
response to Harry and Christine’s petition to confirm within 105
days of service of the fee award. Or he could have signed a
conflict waiver to allow his current attorney to continue to
represent him. But filing a form petition stating no grounds for
relief and not attaching the partition award at issue was the
equivalent of not filing a petition at all.
14
and none of the parties sought a trial after arbitration. (Ibid.,
citing Bus. & Prof. Code, § 6203, subd. (b).) Further, only after
the aggrieved party is denied relief in the civil action would the
arbitration award be subject to correction and confirmation.
(Shepherd, at p. 993.) The Shepherd court did not address an
impracticality defense beyond the unique facts of a nonbinding
State Bar arbitration award.
Ted also relies on DeMello v. Souza (1973) 36 Cal.App.3d
79, 84, in which the Court of Appeal discussed the trial court’s
equitable powers to relieve a party of the 100-day deadline. The
DeMello court noted the court had narrow equitable powers,
including granting relief under section 473 based on mistake,
inadvertence, surprise, or excusable neglect where relief is
requested at most six months from entry of the judgment or
order, or using the court’s inherent equitable power where a
party was deprived of his or her ability to participate in the
arbitration due to extrinsic fraud or mistake. (DeMello, at p. 84.)
But as the Court of Appeal explained in Abers v. Rohrs in
declining to follow DeMello, extending section 473 relief “would
be an effective nullification of the statutory 100-day limitation on
filing and serving a petition to vacate” (Abers v. Rohrs, supra,
217 Cal.App.4th at p. 1212). Moreover, Ted did not file a motion
under section 473 (timely or otherwise) or ask the trial court to
exercise its equitable power, nor was he deprived of an
opportunity to participate in the arbitration.
Finally, Ted contends any failure properly to petition to
vacate the arbitration awards does not affect his right to
challenge the arbitrator’s power to make the award, citing United
Firefighters of Los Angeles v. City of Los Angeles (1991)
231 Cal.App.3d 1576, 1581-1582. Ted’s reliance is misplaced.
15
There, the court determined the 100-day deadline in section
1288.2 did not apply because the appellants were not challenging
the correctness of the award, but rather, the trial court’s
jurisdiction to compel arbitration in the first place. (United
Firefighters of Los Angeles, at p. 1581.) Here, Ted consented to
the arbitrator’s subject matter jurisdiction by signing the
arbitration agreement and agreeing to binding arbitration.
(Douglass v. Serenivision, Inc., supra, 20 Cal.App.5th at p. 385
[“the subject matter jurisdiction of an arbitrator is purely a
product of contract [citation], which by definition turns on the
parties’ mutual consent”].)
We need not reach whether the filing and service of a
petition to vacate an arbitration award with a minor deviation
from the filing and service requirements (for example, service of
the petition three days late) constituted substantial compliance
with section 1288 because here Ted’s failure timely to serve the
Roussos entities that owned the properties, the failure to join
other Roussos entities, and the failure to state the grounds for
relief or attach the partition award constituted a clear violation of
sections 1285.8 and 1288 and deprived the trial court of
jurisdiction.15
15 Although we do not reach the merits of Ted’s appeal, we
note the arbitrator had jurisdiction over the properties, which
were owned by SMB LP, OF LP, and Liro, each of which was a
party to the arbitration agreement. Thus, the arbitrator did not
exceed his powers by resolving a dispute over the properties.
(See § 1286.2, subd. (a)(4).) As to the other grounds raised by
Ted, our review is limited to the grounds set forth in section
1286.2. “Generally, courts cannot review arbitration awards for
errors of fact or law, even when those errors appear on the face of
16
DISPOSITION
The judgment is affirmed. Harry and Christine Roussos
are entitled to their costs on appeal.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
the award or cause substantial injustice to the parties.” (Richey
v. AutoNation, Inc. (2015) 60 Cal.4th 909, 916; accord, Moncharsh
v. Heily & Blase, supra, 3 Cal.4th at pp. 11, 33.)
17