Filed 8/10/26 Tumbleweed Tiny House Co. v. NBCUniversal Media CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
TUMBLEWEED TINY HOUSE CO., B349399
INC., et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No.
21STCV41185)
v.
NBCUNIVERSAL MEDIA, LLC, et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Christopher K. Lui, Judge. Affirmed.
Law Office of Dominic Surprenant and Dominic Surprenant
for Plaintiffs and Appellants.
Latham & Watkins and Robert J. Ellison for Defendants
and Respondents Marcus Lemonis, FreedomRoads Holding Co.,
LLC, and Camping World, Inc.
Gibson, Dunn & Crutcher, Ilissa Samplin, Marissa M.
Mulligan, Matt A. Getz and Mckenzie R. Robinson for Defendant
and Respondent NBCUniversal Media, LLC.
Davis Wright Tremaine, Jonathan L. Segal, Cristina
Salvato, Zoë McKinney and Farrah C. Vazquez for Defendant and
Respondent Machete Corporation.
_________________________
Tumbleweed Tiny House Co., Inc. (Tumbleweed), and its
owner Steve Weissmann appeal from the trial court’s order
confirming an arbitration award in favor of respondents
NBCUniversal Media, LLC, Machete Corporation, Marcus
Lemonis, Camping World, Inc., and FreedomRoads Holding Co.,
LLC. Contrary to appellants’ assertions, neither undue means
nor bias prejudicially infected the arbitration award. We thus
affirm the judgment.
I.
Tumbleweed is Weissmann’s tiny home manufacturing
business. In 2016, Tumbleweed was in debt and losing money.
At that time, Weissmann sought to have Tumbleweed appear on
The Profit. The Profit was an unscripted television show on
CNBC, an NBCUniversal subsidiary, and was a production of
Machete Corporation. The show featured entrepreneur Marcus
Lemonis. Lemonis would attempt to help the struggling small
businesses appearing on the show become profitable. Lemonis
would sometimes invest in those businesses. Weissmann had
watched The Profit for years. He was impressed with Lemonis’s
track record of helping businesses, but was also aware that not
every participating company fared well on the show.
The Profit decided to feature Tumbleweed. Weissmann, for
himself and his company, signed participant agreements. The
agreements described how the show would include a “simulated
investment” to create a televised “dramatic moment.” If Lemonis
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were to really invest, this would occur after filming. Tumbleweed
agreed to assume the risk of relying on Lemonis’s advice, and
disavowed relying on “any promise, representation, or warranty”
outside the agreements in deciding whether to appear on the
show.
Filming lasted six non-consecutive days. Tumbleweed then
appeared on an initial episode and, later, on a look-back episode,
which provided an update on the company but contained no
previously unaired footage.
During filming of an hours-long simulated investment
negotiation, Lemonis raised concerns with Tumbleweed’s
financials and Weissmann’s financial practices. Lemonis stated
Weissmann was “on the hook criminally” and that Tumbleweed’s
liabilities could land him in jail. Nonetheless, Lemonis and
Weissmann discussed the framework for potential investment
deals where Lemonis (or his companies, Camping World and
FreedomRoads) would provide Tumbleweed access to $2.5 or $3
million for an equity stake in the company. Later in the filming,
Lemonis initiated an “all hands” meeting where he told
Tumbleweed’s employees that he agreed to invest $2.5 or $3
million, would be “100% in charge,” and accused Weissmann of
illegal practices, claiming $900,000 was gone. None of the
accusations of illegality or the threat of jail aired.
At the time of filming, Lemonis and Weissmann at times
appeared committed to making a deal, though they acknowledged
no deal had been reached. After filming, no investment deal was
set forth in writing. Though no investment deal was
memorialized, Lemonis’s company, FreedomRoads, did loan
Tumbleweed approximately $2.5 million both during and after
the filming.
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Tumbleweed struggled to repay those loans and filed for
bankruptcy in 2020.
In 2021, Tumbleweed and Weissmann (together, the
“claimants”) sued respondents in California for, as now relevant,
breach of fiduciary duty, fraud, fraudulent inducement,
fraudulent concealment, and intentional infliction of emotional
distress. Claimants alleged Lemonis falsely promised a $3
million deal while filming when he never intended to make such
a deal, that claimants were fraudulently induced to appear on the
show due to false statements about Lemonis’s ability to help
struggling companies become profitable, and that Weissmann
experienced severe emotional distress from his fear that
Lemonis’s claims of criminality would appear on the televised
episodes. FreedomRoads then sued Weissmann in Illinois for
failing to repay its loans to Tumbleweed, which Weissmann had
guaranteed.
The disputes were consolidated in an arbitration conducted
by the Honorable Candace D. Cooper (Ret.) of JAMS. After a
seven-day evidentiary hearing, the arbitrator issued extensive
written findings and conclusions of law and ruled in favor of
respondents.
First, ruled the arbitrator, respondents did not breach a
fiduciary duty. Respondents owed claimants no such duty
because Lemonis did not obtain control of Tumbleweed while
Weissmann retained control “in every practical way.”
Weissmann himself had testified that he continued to run
“Tumbleweed’s business on a day-to-day basis and exercised
unchecked discretion in managing sales, marketing,
manufacturing, the production floor, and deciding which floor
plans [for the tiny homes] would be offered.” “Weissmann, not
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Lemonis, unilaterally terminated two of the most senior
managers at Tumbleweed, and at all times, Weissmann was
Tumbleweed’s CEO, sole board member, and sole shareholder.”
Lemonis’s statement of being “100% in charge” to the employees
was a “trademarked tag line that he ha[d] used on all episodes of
The Profit for eight seasons,” Lemonis repeatedly stated to
Weissmann he was not in control, and Weissmann acknowledged
Lemonis did not want to talk to him except on camera. Further,
claimants had failed to show that any of the other respondents
could have any responsibility for Lemonis’s alleged breach of
duty.
Second, claimants’ fraud and fraudulent inducement claims
failed for various reasons. Under the participant agreements,
filmed simulations were illusory and nonbinding; claimants
assumed the risk of relying on any of Lemonis’s advice; and
claimants waived reliance on “any promise, representation, or
warranty” that appeared outside of the agreements. The
arbitrator found no evidence of anything but fictional deals and
no promise of a $3 million deal for equity. Also, an objectively
prudent businessperson would have expected some sort of written
document to memorialize an upcoming deal involving $3 million.
There was ample evidence, moreover, that Weissmann knew
there was no deal and that a deal, if it materialized, would
“obvious[ly]” be in writing. There was no reasonable reliance. In
addition, claimants had not shown any statement of Lemonis’s
prior successes was false or that Lemonis had engaged in
intentional deceit. Weissmann had been aware that not every
business featured on The Profit was saved.
Third, as to the fraudulent concealment claims, the
arbitrator found claimants had not shown that respondents
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concealed any material fact, that respondents intended to
defraud, that claimants were unaware of any concealed material
fact, that claimants would have acted differently had they known
of any concealed material fact, that respondents had a duty to
disclose running to claimants, or that claimants suffered
damages.
Finally, the statute of limitations barred Weissmann’s
intentional infliction of emotional distress claim. Even so, the
purported distress — having to reckon with the potential airing
of Lemonis’s claims of Weissmann’s criminality — was not
sufficiently “extreme and outrageous.”
The arbitrator ordered claimants to pay almost $5 million
to FreedomRoads for failing to repay its loan, and awarded
respondents roughly $9 million in aggregate attorney’s fees and
costs. The arbitrator paused to note, as do we, the seemingly
“remarkably high” and “extraordinary” nature of the fees and
costs incurred in arbitration. The arbitrator, however, carefully
scrutinized the fees and costs sought, and that portion of the
award is not on review.
The trial court denied claimants’ petition to vacate the
award and granted respondents’ petition to confirm.
Claimants timely appeal. As they did in their petition to
vacate, claimants assert respondents procured the arbitration
award by undue means and that the award was tainted by bias.
Neither assertion warrants vacatur of the award. Before
addressing these matters, we deny claimants’ request for judicial
notice of New York arbitration documents involving the nonparty
participants and Lemonis. They do not bear on the dispositive
issues in this appeal. (OneTaste Inc. v. Netflix, Inc. (2025) 116
6
Cal.App.5th 174, 194 [denial of judicial notice proper for
irrelevant and unnecessary documents].)
II.
The arbitration award was not procured by undue means.
A.
Claimants’ assertion of undue means stems from
respondents’ entry into a confidential settlement agreement with
70 other participants on The Profit who could have been
witnesses in favor of Tumbleweed and Weissmann. That
agreement prevented these participants from assisting claimants
absent a judicial order, and thus, assert claimants, suppressed
relevant evidence of respondents’ unlawful conduct. Claimants
contend the settlement agreement and respondents’ invocation of
it during the arbitration constitute “undue means” meriting
vacatur. (Code Civ. Proc., § 1286.2, subd. (a)(1) [vacatur
available when arbitration award “procured by corruption, fraud
or other undue means”].)
Some additional facts are necessary about the settlement
agreement and claimants’ efforts to secure testimony from the
other show participants. Around March 2021, Weissmann met
other business owners who had appeared on The Profit and
similarly believed Lemonis had hurt, rather than revived, their
businesses. Weissmann communicated with these nonparties up
until they settled with respondents in late 2021. Claimants were
not parties to that settlement, and Weissmann was unaware of
its terms or how many participants were signatories. In 2023,
two years later, Weissmann contacted the nonparties in
anticipation of calling them as witnesses at the arbitration. Only
two responded, and claimants included those two on their
arbitration witness list.
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Respondents moved in limine to exclude the nonparty
participants’ testimony due to relevancy concerns, as well as
because the proposed witnesses had previously agreed not to
“cooperate with the prosecution of claims by other persons”
against respondents without a “judicial order.” By testifying,
respondents claimed, the witnesses would be in violation of their
settlement agreements. Respondents also advised claimants’
counsel that the witnesses who had responded were already
liable for breaching the settlement agreement’s terms, which
included a $100,000 liquidated damages clause for each violative
conversation. Respondents conceded, however, that the
witnesses could testify if “legally compelled” to do so, because the
settlement agreement allowed for testimony in compliance with a
“judicial order.”
Claimants opposed respondents’ motion and, in the same
filing, sought various forms of affirmative relief from the
arbitrator regarding the settlement agreement they then believed
bound “forty-some participants.” (At some later point, claimants
learned there were 70 settling participants.) Claimants asked
the arbitrator to issue subpoenas for the two witnesses it had
identified and to “right th[e] wrong” as to them, draw negative
inferences against respondents, and publicly declare the
settlement agreement could not and did not prevent nonparties
from cooperating with claimants. One of the two witnesses,
urged claimants, could shed light on another scenario where
Lemonis had made false promises and taken over businesses
featured on The Profit. The other witness would add to the
evidence on the emotional distress claim.
At a hearing, claimants’ counsel advised the arbitrator that
the witnesses, given respondents’ threats to enforce the
8
settlement agreement, would not appear absent an order
declaring the settlement agreement’s non-disparagement and
liquidated damages clauses to be unenforceable. The arbitrator
questioned whether she had authority, in the private and
confidential arbitration, to issue a declaration of unenforceability
for venues outside the arbitration. She asked whether such a
declaration could effectively protect the witnesses from
respondents’ potential enforcement efforts, or whether such a
declaration would offer only “cold comfort.” The point of
declaring the agreement invalid, argued claimants, would be to
not lose the testimony of the two witnesses. Claimants wanted to
submit subpoenas for those witnesses for the arbitrator’s
approval. Respondents argued the arbitrator should not make a
global declaration about the settlement agreement, but agreed
that if the arbitrator thought the witnesses would offer relevant
testimony, she could subpoena them and they could testify. In
closing, claimants asked the arbitrator to “rule one way or
another whether Your Honor will issue subpoenas.” The
arbitrator warned any subpoenaed testimony would still be
subject to relevancy considerations. The arbitrator otherwise
stated she would issue a written ruling.
Although a written ruling did not follow, the arbitrator
issued two subpoenas as claimants requested. Claimants,
however, did not call those witnesses at the evidentiary hearing.
Claimants did not press for any further ruling or action regarding
the settlement agreements and other participants.
Moving to vacate before the trial court, claimants asserted
the missing evidence could have established (1) respondents’
pattern and practice of fraudulent activity, showing fraudulent
intent, and (2) other participants’ contemplation of suicide,
9
corroborating Weissmann’s claim that Lemonis was capable of
inflicting severe emotional distress. Claimants also argued the
threat of liquidated damages prevented the unearthing of untold
evidence from other participants that might have supported its
case.
The trial court rejected claimants’ assertion the arbitration
award had been procured by undue means. On appeal, claimants
renew their assertion that other participants could have helped
show fraudulent intent, and they again argue that untold
evidence was suppressed. Claimants also assert, as they did
briefly in their reply seeking vacatur, that the absent witnesses
might have testified that Lemonis took control of their businesses
and thereby could have supported claimants’ view that Lemonis
owed a fiduciary duty. The trial court did not address claimants’
reply-brief contention regarding control and only on appeal do
claimants expressly tie it to the breach of fiduciary duty claim as
opposed to, for instance, the fraudulent concealment claim the
trial court did address.
B.
While judicial review of arbitration awards is “severely
limited” (Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112 Cal.App.4th
810, 825 (Pour Le Bebe)), a court shall vacate an award if it “was
procured by corruption, fraud or other undue means” (Code Civ.
Proc., § 1286.2, subd. (a)(1)). “[C]ases suggest the term” undue
means “refers to unfair conduct that ‘ “ ‘deprives either party of a
fair and impartial hearing to [that party’s] substantial
prejudice.’ ” ’ ” (Starr v. Mayhew (2022) 83 Cal.App.5th 842, 856
(Starr).) Absent the trial court’s resolution of disputed facts, our
review is de novo. (Valencia v. Mendoza (2024) 103 Cal.App.5th
10
427, 442; Greenspan v. LADT, LLC (2010) 185 Cal.App.4th 1413,
1435.)
To streamline our analysis, we assume without deciding
that respondents’ conduct with respect to the settlement
agreement constituted undue means.
Nevertheless, vacatur was inappropriate because claimants
did not show undue means “procured” the arbitration award.
(Code Civ. Proc., § 1286.2, subd. (a)(1).) Claimants bore the
burden “ ‘to demonstrate a nexus between the award and the
alleged undue means used to attain it.’ ” (Starr, supra,
83 Cal.App.5th at p. 857, italics omitted, quoting Pour Le Bebe,
supra, 112 Cal.App.4th at p. 834.) This required a showing that
undue means had a “ ‘substantial or pervasive’ impact on the
‘award,’ ” (Pour Le Bebe, at p. 833) or “materially affect[ed]” the
ruling (Starr, at p. 857.)
Claimants have not met their burden. This is so because
“[t]he arbitrator provided several independent grounds”
untethered to the allegedly missing and suppressed testimony,
and claimants have not challenged those aspects of the
arbitrator’s ruling. (Starr, supra, 83 Cal.App.5th at p. 857; see
ibid. [the challenged award “would have remained the same
regardless” of the alleged undue means]; ECC Capital Corp. v.
Manatt, Phelps & Phillips, LLP (2017) 9 Cal.App.5th 885, 908
[award not procured by undue means when arbitrator provided
“multiple, alternative grounds” for the arbitral decision].)
We address the relevant claims.
The arbitrator rejected the fraud, fraudulent inducement,
and fraudulent concealment claims in part because claimants
could not establish reasonable reliance on Lemonis’s promises of
a deal or statements about Lemonis’s business acumen. (Behnke
11
v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1453
[reasonable reliance an element of promissory fraud]; Dhital v.
Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 843 [same
for fraudulent inducement]; Hoffman v. 162 North Wolfe LLC
(2014) 228 Cal.App.4th 1178, 1185 [fraudulent concealment
requires showing of “justifiable reliance” on the representation
arising from the concealment].) The arbitrator further found that
no real promise of a deal was made and that claimants had not
shown the falsity of the supposedly inducing statements. And, as
to the fraudulent concealment claims, the arbitrator also
concluded claimants had not shown concealment of any material
fact. Claimants have not discussed in their appellate briefing
how the purportedly concealed testimony affects these findings,
which independently resolve these claims and which are based
not on subjective matters such as intent but on objective
reasonableness and the veracity of statements.
The arbitrator rejected the breach of fiduciary duty claim
on the ground that Lemonis did not obtain control of Tumbleweed
while Weissmann retained control “in every practical way.” (See
Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007)
158 Cal.App.4th 226, 246 [“ ‘[t]he key factor in the existence of a
fiduciary relationship lies in control by a person over the property
of another’ ”].) First, claimants did not properly assert to the
trial court, let alone the arbitrator, that the suppressed testimony
would have addressed these findings and the breach of fiduciary
duty claim and so has forfeited the argument. (Schram
Construction, Inc. v. Regents of University of California (2010)
187 Cal.App.4th 1040, 1052, fn. 7 [failure to raise until trial court
reply]; Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 30 [failure
to raise in arbitration]; Cummings v. Future Nissan (2005) 128
12
Cal.App.4th 321, 329 [“[A] party who knowingly participates in
the arbitration process without disclosing a ground for declaring
it invalid is properly cast into the outer darkness of forfeiture”].)
Regardless, claimants have not explained how Lemonis’s
conduct regarding other businesses undermines the arbitrator’s
conclusion, with respect to Tumbleweed, that Weissmann
“remained in control of the company in every practical way,” ran
the company on a day-to-day basis, “exercised unchecked
discretion in managing sales, marketing, manufacturing, the
production floor, and deciding which floor plans would be
offered,” “unilaterally terminated two of the most senior
managers at Tumbleweed, and at all times . . . was Tumbleweed’s
CEO, sole board member, and sole shareholder.” Claimants do
not grapple with this evidence, instead focusing only on the
arbitrator’s finding that Lemonis’s statement that he was “100%
in charge” was a trademarked tag line used on all episodes of the
show. This was insufficient.
As to the intentional infliction of emotional distress claim,
the suppressed witness testimony could not have reversed the
arbitrator’s rejection of the claim on statute of limitations
grounds.
To the extent claimants assert an amorphous prejudice
based on the hope that some other The Profit participant might
have come forward to offer dispositive testimony on the
alternative grounds for the arbitrator’s ruling discussed above,
that speculation does not meet claimants’ burden. (Starr, supra,
83 Cal.App.5th at p. 858; People v. Young (2005) 34 Cal.4th 1149,
1170 [speculation insufficient to show prejudice].)
In sum, even if claimants had established respondents’
conduct with respect to the confidential settlement agreement
13
constituted undue means, they have not shown that the arbitral
award was “procured by” those means given the unchallenged,
independent bases supporting the award.
III.
Nor do claimants show an appearance of arbitral bias
tainted the award.
We vacate an arbitration award when the arbitrator’s
misconduct substantially prejudices a party’s rights. (Code Civ.
Proc., § 1286.2, subd. (a)(3).) “ ‘Misconduct’ in this context
includes actions that create a reasonable impression of possible
bias.” (FCM Investments, LLC v. Grove Pham, LLC (2023)
96 Cal.App.5th 545, 553 (FCM Investments).) “[T]he test is
whether a hypothetical reasonable person (i.e., a disinterested,
well-informed, thoughtful member of the public) would form an
impression of possible bias on the part of the arbitrator.” (Id. at
p. 555.) “ ‘ “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.” ’ [Citation.] The test is objective and fact-specific; there
is no bright-line demarcation for the impression of bias, and each
case must be considered in light of the particular facts involved.”
(Ibid.) We review “the award as a whole.” (Id. at p. 558.)
Claimants, as the parties seeking vacatur, bear the burden of
proof. (Id. at p. 555.)
Claimants proffer three arguments on appeal regarding
bias. We decline to address a fourth argument, which claimants
made for the first time in reply, that an impression of bias can be
found in the arbitrator’s ruling on the breach of fiduciary duty
claim. (See People v. Silveria and Travis (2020) 10 Cal.5th 195,
255 [“ ‘ “[I]t is axiomatic that arguments made for the first time
14
in a reply brief will not be entertained because of the unfairness
to the other party” ’ ”]; Benach v. County of Los Angeles (2007)
149 Cal.App.4th 836, 852, fn. 10.)
Claimants first argue bias from the arbitrator failing to
examine the confidential settlement agreement’s terms. This
created an appearance of bias, argue claimants, because it
suggests the arbitrator either prematurely formed an opinion
about the motion in limine or became predisposed to rule in
respondents’ favor. The record belies this contention.
The arbitrator considered the parties’ briefing and held a
hearing where she thoughtfully questioned counsel. She
questioned her authority, in arbitration, to declare the settlement
agreement unenforceable in a way that would bind other fora.
Claimants’ counsel agreed that such a ruling would not be
directly binding on other fora. Respondents agreed testimony
from the two absent witnesses would not violate the agreement if
they were subpoenaed, and the arbitrator issued subpoenas for
those witnesses. It is not clear, as respondents point out, what
relevance the agreement would have had at that point given the
issues that had, by then, been raised and resolved. Of note,
claimants did not later ask the arbitrator to memorialize or make
further rulings on the matter. Claimants have not shown how a
hypothetical observer would view this sequence of events and the
ruling partially in favor of claimants as creating an impression of
bias against them. And a claim of bias is not the proper vehicle
to rehash the merits of a decision. (See Betz v. Pankow (1993) 16
Cal.App.4th 919, 927; Dietrich v. Litton Industries, Inc. (1970) 12
Cal.App.3d 704, 719.)
Second, claimants contend the arbitrator displayed bias
when she created a Catch-22 scenario by issuing the subpoenas
15
without entering an order that the settlement agreement’s non-
disparagement clause was unenforceable. Since the subpoenas
only protected the witnesses while testifying, assert claimants,
the witnesses would have been in breach of the settlement
agreement for any pre-hearing preparation. Accordingly, the
arbitrator’s decision, so the argument goes, forced claimants’
counsel to either forego calling the witnesses or commit
malpractice by calling them without having the opportunity to
prepare them in advance. But at the hearing on the motion in
limine, counsel for respondents gave an apparent assurance that
a subpoena from the arbitrator would fall outside the non-
disclosure provision. Claimants never took issue with that and
appeared ready to proceed with the subpoenas. They did not, as
noted, seek any further orders on this matter and proceeded to
the evidentiary hearing. There was no appearance of bias from
the arbitrator issuing the subpoenas, at claimants’ request, as
she did.
Third, claimants contend bias can be seen in the
arbitrator’s failure to provide a written ruling on the motion in
limine. They argue that by failing to rule, the arbitrator allowed
the settlement agreement to persist and the asserted witness
threats to go unchallenged. However, the arbitrator provided a
reasoned statement as to her belief that she was unable to bind
other fora with a ruling that the settlement agreement was
unenforceable; respondents represented that testifying pursuant
to a subpoena would not constitute a breach of the agreement;
and the arbitrator issued the requested subpoenas, which both
ensured the witnesses could testify and seemingly protected them
from breaching the settlement agreement. Failing to provide a
further written ruling on respondents’ motion does not reflect
16
bias. To the extent any further ruling was needed, claimants’
view of the absent ruling would turn a familiar guideline of
appellate review on its head. If a litigant “does not secure a
ruling, [the litigant] does not preserve the point. That is the rule.
No exception is available.” (People v. Rowland (1992) 4 Cal.4th
238, 259.)
We further highlight the record reveals the arbitrator
conducted a seven-day hearing, thoughtfully considered the
parties’ arguments, and provided an extensive and thorough
written award. Claimants have not made the requisite showing
of an impression of bias necessitating vacatur.
DISPOSITION
We affirm the judgment and award respondents their
appellate costs.
SCHERB, J.
We concur:
STRATTON, P. J.
VIRAMONTES, J.
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