Bond v. Helman



Filed 3/9/11 Bond v. Helman CA2/8



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

GREGG BOND, Plaintiff and Respondent, v. BARRY HELMAN et al., Defendants and Appellants.

B225194 (Los Angeles County Super. Ct. No. BC 426895)

APPEAL from an order of the Superior Court of Los Angeles County, Coleman S. Swart, Judge. Dismissed.

Nevers, Palazzo, Maddux & Packard, Gary W. Nevers and Roxanne Torabian-Bashardoust for Defendants and Appellants.

Law Offices of Jonathan G. Gabriel, Jonathan G. Gabriel, Jeffrey P. Alpert and David Mayes for Plaintiff and Respondent.


* * * * * *
The Helman Group, Ltd. (THG), Beacon Place Investments, LLC (BPI), Barry Helman and Andrew Helman (collectively appellants) appeal from an order of the superior court denying THG's motion to compel arbitration and for stay of this action brought by respondent Gregg Bond. For the reasons we explain below, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
On November 25, 2009, Bond filed a complaint against appellants for breach of contract, conversion, breach of fiduciary duty, accounting, dissolution of THG and BPI, and injunctive relief.^[1] The complaint alleged as follows.
Since 2003, Bond has been corporate vice president and a 15 percent shareholder of THG. Of the remaining shares of THG, Barry Helman owns 44 percent and Andrew Helman 41 percent. THG operated under the terms of a written shareholders' agreement (THG Agreement). Additionally, since 2006, Bond and the Helmans verbally agreed that all distributions from THG would be split 40 percent to Barry Helman, 40 percent to Andrew Helman and 20 percent to Bond, and distributions in fact were made according to this formula.
In February 2000, Bond and the Helmans formed BPI, with Bond having 13 percent, Barry Helman 45 percent and Andrew Helman 42 percent. BPI was operated pursuant to an operating agreement (BPI Agreement). BPI was the owner of a property located on Beacon Place in Oxnard.
Beginning in January 2006, the Helmans paid their personal expenses out of THG's revenues without Bond's knowledge or consent. Those self-payments resulted in the Helmans' receiving excess distributions from THG. The Helmans never repaid THG for the excess distributions, and they failed to report or deliberately concealed those distributions. Since January 2007, the Helmans also allowed THG's defined benefits plan to become underfunded and to fall out of compliance with tax laws and regulations such that Bond could not transfer sums accumulated in the THG retirement plan to another account without incurring a substantial tax or penalty.
In 2009, appellants caused one of two parcels of real property BPI owned to be sold. The Helmans refused to give Bond any information about the sale of the property despite Bond's requests. Beginning in September 2009, the Helmans distributed proceeds of the sale without Bond's knowledge or consent. After the sale closed in October 2009, Bond received a letter from appellants' attorney, informing him that appellants had applied about $1 million of the sale proceeds to offset funds they had borrowed to pay a creditor of THG. This was done without Bond's knowledge or consent and without following proper corporate procedures or accepted accounting practices.
Beginning in 2009, the Helmans failed to properly account to Bond and THG for the Helmans' pro-rata share of the personal guaranties they had signed to guarantee payment of THG's debts to its creditors. Specifically, they refused to split liability to THG's factor in proportion to their ownership interests in THG.
The BPI Agreement, but not the THG Agreement, provided for arbitration of any controversy between the parties.^[2]
In March 2010, all appellants, including THG, moved to compel Bond to submit his claims to arbitration and for an order staying all proceedings in this action pending the outcome of the arbitration.^[3] Bond opposed appellants' motion arguing no claims should be submitted to arbitration because the disputes regarding THG and the equitable and punitive damages claims would not be subject to arbitration. Additionally, Bond argued, submission of a few claims to arbitration would necessarily expose the parties to inconsistent findings of fact or law.
The trial court granted the motion to compel arbitration. However, in light of Bond's objection, the trial court denied the motion to compel arbitration of the claims against THG. The court stayed the action with respect to Bond's claim for injunctive relief, accounting and punitive damages relating to BPI but ruled that â€