Opinion
G057848
08-20-2020
SALEH AL-NASRAWI, Plaintiff and Respondent, v. FCI LENDER SERVICES, INC., Defendant and Appellant.
Blank Rome, Cheryl S. Chang and Andrew K. Fletcher for Defendant and Appellant. Seto Wood & Schweickert, Stephen C. Seto and Bruce A. McIntosh; Joseph A. Hearst for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00749141) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed. Blank Rome, Cheryl S. Chang and Andrew K. Fletcher for Defendant and Appellant. Seto Wood & Schweickert, Stephen C. Seto and Bruce A. McIntosh; Joseph A. Hearst for Plaintiff and Respondent.
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Defendant FCI Lender Services, Inc. appeals from a judgment confirming an arbitration award in favor of plaintiff Saleh Al-Nasrawi. The underlying dispute arose from plaintiff's purchase of a golf course in a short sale. After plaintiff paid the purchase price, an owner of the mortgage loan on the property refused to release its lien. Plaintiff then sued defendant, which was the mortgage loan servicer, and others. Plaintiff alleged claims for breach of contract, negligent misrepresentation, and breach of warranty of authority against defendant, claiming defendant was responsible for failure of the lien release.
The arbitrator issued an interim award finding plaintiff had proved liability on one of his claims—breach of warranty of authority. The arbitrator reserved jurisdiction to determine the amount of damages and requested that plaintiff submit supplemental declarations based on the evidence in the record. After plaintiff submitted the declarations, the arbitrator issued a final award adopting the damages calculation in one of the declarations and awarding damages to plaintiff. The court confirmed the award.
On appeal, defendant raises two main arguments. First, it contends the court should have vacated the award pursuant to Code of Civil Procedure section 1286.2, subdivision (a)(4) because the arbitrator acted in excess of her powers by failing to follow the parties' arbitration agreement. The parties' arbitration agreement required the arbitrator to follow California law. According to defendant, the arbitrator acted contrary to California law by receiving additional evidence after the arbitration hearing ended and by basing the final award on the declaration of an unqualified expert witness. Second, defendant argues the court erred by interpreting the arbitrator's award of prejudgment interest at 10 percent per annum to mean pre-award interest at 10 percent per annum. We disagree with all of defendant's contentions and affirm the judgment.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTS
The Underlying Litigation
In November 2012, plaintiff offered to purchase a golf course in a short sale for $930,000. Alliance Capital, certain trusts (the Wachtell Entities), and other investors owned the mortgage loan on the property. Defendant was the mortgage loan servicer for Alliance Capital and submitted a payoff demand to escrow promising "on behalf of lien holder on subject loan to accept the total Short Payoff amount of $730,210.59 . . . . " Plaintiff then paid the $930,000 purchase price. The funds were disbursed to the lenders, but the Wachtell Entities refused to release their lien and claimed they had not agreed to the amount of the short sale.
Plaintiff commenced the underlying lawsuit against defendant, the Wachtell Entities, and others seeking to release the lien. The operative second amended complaint alleged claims for breach of contract, negligent misrepresentation, and breach of warranty of authority against defendant, claiming defendant was responsible for the Wachtell Entities' failure to release their lien. In 2017, the Wachtell Entities released their lien, and plaintiff and defendant were the only remaining parties in the action.
The Parties' Oral Arbitration Agreement
At a hearing before the court in July 2017, plaintiff and defendant agreed to submit the matter to arbitration. Defendant's counsel stated, "The parties have agreed that this matter will be arbitrated before the Honorable Mitchell Goldberg . . . . This agreement for arbitration will be subject to requiring Judge Goldberg to comply with California law, the California Evidence Code, the [Code of Civil Procedure], Civil Code, et cetera." Plaintiff's counsel stated, "Also, parties have agreed that the procedural posture of the case will carry over to arbitration. In other words, all non-expert and expert discovery is closed." The parties further agreed the arbitration was binding. Pursuant to this agreement, the court ordered the parties to arbitrate. The Arbitration, Interim Award, and Final Award
In his arbitration brief, plaintiff indicated he was seeking over $400,000 in special damages, $185,643 in attorney fees to remove the lien, and $20,321 in costs. The arbitration hearing took place over the course of two days in March 2018.
Judge Goldberg was not available, so the parties proceeded to arbitration before the Honorable Judith M. Ryan (Ret.).
In April 2018, after the arbitration hearing, plaintiff submitted a closing brief arguing he had incurred $2,430,570.51 in damages. He also submitted supporting declarations from his counsel and from Thomas A. Tarter (the First Tarter Declaration). His counsel declared plaintiff had incurred $555,153 in attorney fees and $78,726.92 in costs. Tarter declared he was plaintiff's banking and financial management expert witness who had testified during the arbitration. He explained plaintiff was unable to refinance with a low interest small business administration (SBA) loan due to the lien on the property and had to obtain loans with high interest rates and fees to fund the purchase. His declaration also set forth a damages calculation.
Defendant objected to the First Tarter Declaration on the ground the evidence was inadmissible because the evidentiary record had closed in March 2018. Defendant also argued Tarter "was not permitted to testify as an economist/damages expert." Plaintiff then submitted Tarter's amended declaration correcting an error in his damages calculation (the Second Tarter Declaration).
In May 2018, the arbitrator issued an interim award finding plaintiff had proved liability on one of his claims against defendant—breach of the warranty of authority pursuant to Civil Code section 2342. The arbitrator found "[plaintiff was] entitled to damages pursuant to Civil Code section 3318" but "reserve[d] jurisdiction to determine the amount of damages . . . ." The arbitrator explained: "[Plaintiff] has submitted certain Declarations in support of the claimed damages. Upon review and consideration of the entire record the undersigned has determined that additional submissions based upon the evidence in the record are necessary to review and determine the exact amount of damages as supported by the evidence in the record."
The arbitrator ordered plaintiff's counsel to submit supplemental declarations on two issues "based upon the evidence in the record." First, the arbitrator requested "[a] declaration in support of the damages sustained by [plaintiff] pursuant to Civil Code section 3318 that sets forth with specificity the amount of damages sustained by [plaintiff] specifically as a result of the failure to obtain the SBA loan." The arbitrator requested the declaration to "specifically include the calculation[s] including the basis of the calculation, the time frame and the interest rates used and all other factors for the basis of the damages requested . . . ." Second, the arbitrator requested "[a] supplemental declaration from counsel with greater specificity to support the 'expenses of the legal proceedings' sought pursuant to Civil Code section 3318."
In response to the arbitrator's request, plaintiff submitted two declarations: (1) a supplemental declaration from Tarter (the Third Tarter Declaration); and (2) a declaration from his counsel. Defendant filed an opposition to plaintiff's claim for damages and argued "the amounts sought cannot be awarded" because it would violate defendant's due process rights and violate JAMS rules. According to defendant, plaintiff tripled or quadrupled his damages claim after the close of evidence "which . . . deprived [defendant] of the ability to dispute such evidence before the [a]rbitrator through, among other things, the cross-examination of witnesses."
In July 2018, the arbitrator issued a final award incorporating the interim award and noting that plaintiff "sought as damages the difference between the costs of the hard money loans he obtained when he was unable to finance with the SBA loan and what would have been the cost of the SBA loan." The arbitrator then "adopt[ed] the methodology and mathematical calculations/computations as contained in [the Third Tarter Declaration] for the time frame of the years 2013 through 2016 . . . ." The arbitrator accordingly awarded "the total sum of $742,327.66" consisting of: (1) $293,640.01 for excess loan interest; (2) $94,777 for excess loan fees; (3) $326,911.50 for legal fees; and (4) $27,399.15 for expenses. The arbitrator also awarded "pre-judgment interest at 10%."
Petition to Confirm the Arbitration Award and the Court's Judgment
Plaintiff petitioned the court to confirm the final award and to enter judgment in the amount of $988,940.12, which was $742,327.66 plus $246,612.46 in prejudgment interest. Defendant opposed the petition and argued: (1) the arbitrator exceeded her authority by failing to follow the rules of arbitration and altering the findings in the interim award; (2) the arbitrator violated the California rules of evidence by relying on Tarter's declaration even though he was not qualified as an expert witness; and (3) the arbitration violated defendant's right to a fair hearing. In support of its opposition, defendant filed a declaration from its arbitration counsel describing the arbitration record. No other record of the arbitration appears to have been available or presented to the court.
In December 2018, the court granted plaintiff's petition to confirm the arbitration award. The court rejected defendant's contention that the court should vacate the final award because the arbitrator exceeded her powers by failing to follow California law. According to the court, "errors of law are generally not grounds for vacating an award," and "[f]ailure to correctly apply a particular law or body of law is not in excess of an arbitrator's powers." Because the parties did not specifically agree to allow judicial review of an award for errors of law, the court found the award was not subject to review on this ground. The court also rejected defendant's argument that the arbitrator could not issue the final award where the interim award purportedly stated plaintiff failed to prove damages. The court explained the interim award only requested supplementation "'based on the evidence in the record'" and defendant had an opportunity to respond. According to the court, defendant failed to show that it had requested an opportunity to cross-examine plaintiff's declarants or that there were disputed issues of fact as to the claimed damages. The court accordingly found the arbitration proceedings were not "fundamentally unfair."
Plaintiff then submitted a proposed judgment seeking "$988,940.12, plus interest thereon at 10 percent per annum ($206.11 per diem) from the date of the Final Award." Among other things, defendant objected to the proposed judgment on the ground that plaintiff was not entitled to prejudgment interest on damages prior to the date of the final award. Defendant claimed that the final award permitted prejudgment interest only from the date of the award and that the judgment should have been stated as "$742,327.66 plus prejudgment interest at 10%."
In February 2019, the court issued an order finding that the final award "appear[ed] to include prejudgment interest for the period prior to entry of the award . . . ." The court explained, "This must be so, as prejudgment interest would have accrued in any event post award." Regardless, the court requested supplemental briefing on whether the court should seek clarification from the arbitrator because the final award "failed to specifically state the sums thus awarded for prejudgment interest." In response, defendant argued it was not proper to request clarification from the arbitrator.
In March 2019, the court entered judgment in favor of plaintiff in the amount of $988,940.12 without seeking clarification from the arbitrator. The court also denied defendant's subsequent motion to set aside the judgment.
DISCUSSION
Defendant contends the court erred by confirming the final award because the arbitrator acted in excess of her powers by failing to follow the parties' arbitration agreement, which required the application of California law. Defendant also claims the court erred by awarding prejudgment interest for a period prior to entry of the award. For the reasons below, we disagree with defendant's contentions.
We review the court's confirmation of the arbitration award de novo. (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1217.) "'[T]o the extent the trial court made findings of fact in confirming the award, we affirm the findings if they are supported by substantial evidence.'" (Branches Neighborhood Corp. v. CalAtlantic Group, Inc. (2018) 26 Cal.App.5th 743, 750.) "[A]n arbitrator's decision is not generally reviewable for errors of fact or law, whether or not such error appears on the face of the award and causes substantial injustice to the parties." (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 6 (Moncharsh).) Exceptions to this rule are "set forth in [Code of Civil Procedure] sections 1286.2 (to vacate [the arbitration award]) and 1286.6 (for correction [of the arbitration award])." (Id. at p. 33.) The court did not err by confirming the arbitration award.
Section 1286.2, subdivision (a)(4) states the court shall vacate an arbitration award if "[t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted." Defendant contends the arbitrator exceeded her powers by failing to follow the parties' arbitration agreement and agreed rules of arbitration, which required the arbitrator to comply with California law, including the Evidence Code, Code of Civil Procedure, and the Civil Code. According to defendant, the arbitrator violated the parties' arbitration agreement in two ways.
First, defendant claims the arbitrator could not have requested and received additional evidence regarding plaintiff's damages after the arbitration hearing ended because it violated California law. Defendant argues the arbitrator was required to enter an award in favor of defendant because the interim award found "that [plaintiff] had failed to prove damages." By failing to do so, defendant contends it was denied the right to cross-examine witnesses. Second, defendant argues the arbitrator violated the agreed rules of arbitration by basing the final award on Tarter's declaration even though he was an unqualified expert witness.
Before we address these contentions, we note that an arbitrator's decision cannot be reviewed for errors of law. (Moncharsh, supra, 3 Cal.4th at p. 11.) "Even where application of a particular law or body of law is required by the parties' arbitration agreement, an arbitrator's failure to apply such a law is not in excess of an arbitrator's powers . . . ." (Marsch v. Williams (1994) 23 Cal.App.4th 238, 244-245 [arbitrator did not exceed powers by failing to apply California Corporations Code even though arbitration agreement required the application of California law]; see Christensen v. Smith (2009) 171 Cal.App.4th 931, 937-938 [arbitration agreement requiring an award in accordance with California law did not render the award reviewable for legal error]; see also Alexander v. Blue Cross of California (2001) 88 Cal.App.4th 1082, 1089-1091 [arbitrator did not exceed powers by failing to impose discovery sanctions even though arbitrator was required by statute to apply California discovery law to the arbitration proceeding].)
"[T]o take themselves out of the general rule that the merits of the award are not subject to judicial review, the parties must clearly agree that legal errors are an excess of arbitral authority that is reviewable by the courts." (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1361.) Here, the parties' arbitration agreement does not expand the scope of our review to include legal errors.
Relying on Emerald Aero, LLC v. Kaplan (2017) 9 Cal.App.5th 1125 (Emerald Aero), defendant contends its argument "is not that the [a]rbitrator erroneously interpreted California law, but that she exceeded her powers by failing to follow the agreed rules of the arbitration." In Emerald Aero, the parties' arbitration agreement expressly incorporated the American Arbitration Association rules, which required 14 days' written notice before a party changed or increased its claim. (Emerald Aero, at p. 1140-1141.) In violation of these rules, the plaintiffs made a request for punitive damages 24 hours before the arbitration hearing. (Id. at p. 1141.) After the arbitrator awarded punitive damages, the court overturned the award finding the defendant did not have fair notice and the arbitrator exceeded its authority by awarding punitive damages without the notice required by the parties' arbitration agreement. (Id. at p. 1146.) These facts are distinguishable from the facts in this case. Here, defendant does not identify any specific law, statute, or rule in the parties' arbitration agreement that the arbitrator violated even though a party seeking to invalidate an award in violation of the arbitrator's powers must identify "'specific restrictions'" in the arbitration agreement. (Id. at p. 1140.) Other than general references to California law, defendant does not identify any specific restrictions on the arbitrator's conduct.
A. The arbitrator did not impermissibly alter the interim award.
Plaintiff argues we should not consider any of defendant's arguments because they are based on inadmissible hearsay. There was no court reporter at the arbitration so plaintiff contends defendant cannot rely on the declaration of its counsel to detail the arbitration proceedings. But the court rejected plaintiff's objections on these grounds, and we are likewise able to resolve the issues raised by defendant without relying on the portions of counsel's declaration to which objections were made. We accordingly do not address the issue.
Even if we expand the scope of our review to include a review for legal error, we do not find the arbitrator exceeded her powers under section 1286.2, subdivision (a)(4). Contrary to defendant's contention, the interim award did not find "that [plaintiff] had failed to prove damages," which would necessitate a final award in favor of defendant. Instead, the interim award stated, "Pursuant to Civil Code section 3318 [plaintiff] seeks the sums attributable to the difference between the SBA loan he could have obtained . . . and the hard money loans he obtained. [Plaintiff] also seeks legal expenses incurred. [Plaintiff] is entitled to those damages." (Italics added.) The arbitrator then "reserve[d] jurisdiction to determine the amount of damages" and requested "additional submissions based upon the evidence in the record . . . to review and determine the exact amount of damages as supported by the evidence in the record." None of this language suggests the arbitrator found plaintiff had failed to prove damages.
The court also correctly rejected defendant's claim that the arbitrator improperly received additional evidence after the arbitration hearing. As the court explained, the arbitrator "requested supplementation 'based on the evidence in the record,' and provided defendant with the opportunity to respond thereto." The arbitrator's final award confirms this was the case by rejecting defendant's objections and noting that "[a]ll substantive determinations [were] made based upon evidence in the record." The final award also explains, "[Plaintiff's] prayer as to the claims set forth in the Demand was specifically 'according to proof' without specification of an amount."
Defendant points to no specific law or rule precluding the arbitrator from receiving supplemental evidence. Instead, defendant claims "there was no agreement regarding, or even consideration of the possibility of, bifurcation of liability and damages, or the submission of additional evidence following the close of the arbitration hearing." But the agreement's silence on this issue cannot be interpreted as a "'specific restriction'" on the arbitrator's conduct. (Emerald Aero, supra, 9 Cal.App.5th at p. 1140.) Case law also is clear that arbitrators can reserve jurisdiction in an interim award to determine remaining issues. (Hightower v. Superior Court (2001) 86 Cal.App.4th 1415, 1438-1441 [arbitrator had authority to issue a partial or interim award and reserve jurisdiction to issue a final award on remaining issues]; Evans v. Centers tone Development Co. (2005) 134 Cal.App.4th 151, 159-160 [arbitrator had authority to reserve jurisdiction in interim award to determine attorney fees and interest]; Roehl v. Ritchie (2007) 147 Cal.App.4th 338, 352 [arbitrator had authority to reserve jurisdiction to issue second arbitration award].)
While defendant acknowledges "arbitrators can issue multiple awards in some situations," it contends "an arbitrator [cannot] change a determination of fact or law made in a prior award." But, as explained above, the interim award never held that plaintiff failed to prove damages. By contrast, it stated plaintiff was entitled to damages that constituted the difference between the loan he could have obtained and the loans he actually did obtain. Finally, while defendant claims it did not receive a fair hearing, defendant had an opportunity to challenge plaintiff's post-hearing declarations and to participate in argument.
B. The arbitrator's reliance on the Tarter declaration does not provide a reason to vacate the arbitration award.
Defendant next contends the arbitrator violated the agreed rules of arbitration by basing the final award on the Third Tarter Declaration even though Tarter was an unqualified expert witness. Relying on its counsel's declaration describing the arbitration hearing, defendant notes it objected that Tarter was not qualified to testify as an economic or damages expert. According to the attorney declaration, the arbitrator sustained defendant's objection and found Tarter could not testify about damages but allowed him to testify about banking practices. Defendant accordingly claims the arbitrator erred by relying on the damages calculations in the Third Tarter Declaration. Plaintiff recounts a slightly different story but does not cite any support in the record. He claims Tarter was not disqualified as an expert. Instead, he argues the arbitrator found she did not need evidence in Tarter's area of expertise, banking procedures, but allowed him to testify as a percipient witness regarding his damages calculations.
Regardless of whether the arbitrator allowed Tarter to testify as a percipient witness or an expert witness, which is not clear from the record, any errors in admitting evidence (i.e., the Third Tarter Declaration) are errors of law that do not provide reason to vacate the arbitration award. (Moncharsh, supra, 3 Cal.4th at p. 11.) We accordingly conclude the court did not err by confirming the arbitration award. The court did not err by issuing a judgment that included pre-award interest.
Finally, defendant argues the court erred by entering judgment for $988,940.12. Instead, defendant contends the court should have entered judgment "in the amount of $742,327.66 plus pre-judgment interest at 10% per annum beginning on July 2, 2018 [the date of the final award]." By adding $246,612.46 to the $742,327.66 amount that appeared on the face of the final award, defendant argues the court improperly interpreted "pre-judgment interest at 10%" (which the arbitrator awarded), to mean pre-award interest at 10 percent. Defendant contends "pre-judgment interest at 10%" only refers to the time period after the final award up to the entry of judgment. According to defendant, the court's contrary ruling violated sections 1286 and 1287.4. (§§ 1286 ["If a petition or response . . . is duly served and filed, the court shall confirm the award as made . . . unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding"; 1287.4 ["If an award is confirmed, judgment shall be entered in conformity therewith"].)
Civil Code section 3287, subdivision (a) provides: "A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day." The parties cite no authority, and we are aware of none, deciding, as a matter of law, whether an arbitrator's award of "pre-judgment interest" is limited to the period after the award up to entry of judgment. Instead, whether prejudgment interest may properly be awarded for the period preceding the arbitration award is necessarily dependent on case specific facts. Here, in awarding prejudgment interest, the arbitrator stated, "Pre-judgment interest is specifically allowed pursuant to" Kohlberg v. Havens (1919) 41 Cal.App. 222 (Kohlberg).
In Kohlberg, the plaintiff had entered into a contract with the president of a company by which the plaintiff agreed to perform certain services in exchange for payment by the company of $2,500. (Kohlberg, supra, 41 Cal.App. at p. 223.) The plaintiff performed the services, but the company refused to pay the $2,500, contending the president lacked the authority to enter into the contract on its behalf. (Ibid.) After being nonsuited in an action against the company, the plaintiff sued the president, alleging breach of the warranty of authority. (Ibid.) In awarding damages to the plaintiff under Civil Code section 3318 (id. at p. 225, the court held the plaintiff was entitled to a "fixed and certain amount by reason of the breach of warranty of authority" and awarded prejudgment interest pursuant to Civil Code section 3287 from the date "the right of recovery . . . vested," which was the date the amount due under the contract "became due and payable" (Kohlberg, at p. 226).
Here, the court held, "The [final a]ward appears to include prejudgment interest for the period prior to entry of the award, based on Kohlberg . . . ." Thus, by entering judgment in the amount of $988,940.12 instead of $742,327.66 plus prejudgment interest at 10 percent, the court concluded the arbitrator intended to award interest accrued prior to the date of the award and confirmed the final award by including the actual amount of accrued interest rather than the arbitrator's generic description of "pre-judgment interest at 10%." If the arbitrator intended to award interest accruing before the award, inclusion in the judgment of the actual amount of prejudgment (award) interest was not a correction of the award under section 1286.6. It was merely a calculation of the amount awarded by the arbitrator. The question then is whether the arbitrator intended to award interest accrued prior to the making of the award. If the arbitrator intended to award interest accrued prior to the award, it matters not whether the arbitrator was correct in making that determination because, if not correct, it would have been an error of law, not reviewable by the court. (Moncharsh, supra, 3 Cal.4th at p. 6.) Thus, defendant's arguments regarding whether Kohlberg is distinguishable; whether the damages in this case were "certain or capable of being made certain"; and whether out- of-state cases cited by defendant compel a different result, are all beside the point. Errors of law are not reviewable.
Defendant never challenged the calculation submitted by plaintiff, did not claim it was wrong, and did not provide an alternative calculation. We have reviewed the exhibits the court had before it which the arbitrator used in assessing the damages. Those exhibits contain all the information needed to make the calculation of pre-award interest. For example, Exhibit B to the Third Tarter Declaration (used by the arbitrator in determining damages), lists the hard money loans, the amount of the loans, the interest rate on those loans (including the daily rate), the SBA interest rate otherwise available (the "but for" rate), the start date of the loans, and the end date of the loans. Taking just one loan by way of example, Loan 2012120, for $650,000, accrued interest at a daily rate of $222.60, starting on February 1, 2014 and ending on July 1, 2015. The SBA rate on this $650,000 loan would have accrued interest at the daily rate of $80.14 starting on February 1, 2014 until the end date of the loan. The difference in the daily rate was thus $142.46. Thus, plaintiff was damaged in the amount of $142.46 for every day from February 1, 2014 to the end date of the loan, July 1, 2015. But interest on the daily damage continued until the date of the award, July 2, 2018, a total of 1,326 days. Interest at 10 percent on the daily damage award is $14.246 for 1,326 days totaling $18,890.20. To arrive at the total amount of pre-award interest one need only perform the same calculation for each of the loans, loan fees, and attorney fees considered by the arbitrator from 2013 through 2016.
So how do we decide whether the arbitrator intended to award interest accrued before the date of the award? We do not. It is a question of fact. The trial court already made that finding, stating: "The Award appears to include prejudgment interest for the period prior to entry of the award, based on Kohlberg v. Havens [supra] 41 Cal.App. 222, as stated in the Tarter calculations at [exhibit] E. [Citation.] This must be so, as prejudgment interest would have accrued in any event post award." "[A]s a general rule an appellate court will not disturb findings made by a trial court in support of its order confirming an award [citation], and is bound by the lower court's determination of the credibility of witnesses and the weight of the evidence; and a decision of a question of fact, whether it be from oral or documentary evidence, is conclusive." (Turner v. Cox (1961) 196 Cal.App.2d 596, 603.) The factual finding that the arbitrator intended to award interest accruing before the final award is supported by substantial evidence. The arbitrator's citation of Kohlberg is telling. Although Kohlberg was not an arbitration proceeding, and the calculation of prejudgment interest was not as complicated as here, the case nevertheless stands for the proposition that in a breach of warranty of authority case, it is proper to award interest accruing for the period before the fact finder determines liability, where the damages are "capable of being made certain by calculation." (Civ. Code, § 3287.) The exhibits to Tarter's Third Declaration contain all the information needed to calculate the pre-award interest as demonstrated in footnote 4, ante.
Finally, defendant argues the final award did "not contain any findings that permit the amount of [the pre-award] interest to be calculated." According to defendant, "[i]f the Arbitrator had intended to award [plaintiff] interest on his damages from a date prior to the issuance of the Final Award, she would have had to, at a minimum, make a finding as to the date or dates those damages became due and owing." But defendant never challenged the specific calculation or claimed that it was wrong. And in any event, the court provided defendant with the opportunity to seek clarification from the arbitrator as to the amount of pre-award interest. But defendant argued it was not proper to seek clarification because the arbitrator had no further powers. Under these circumstances and for the reasons above, we conclude the court did not err by entering judgment in the amount of $988,940.12.
DISPOSITION
The judgment is affirmed. Plaintiff shall recover his costs incurred on appeal.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.