Filed 11/24/21 Old Trace Partners v. Sorensen CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
OLD TRACE PARTNERS, L.P., et al., H045706
(Santa Clara County
Plaintiffs and Respondents, Super. Ct. No. 2014-1-CV-266849)
v.
THEODORE G. SORENSEN, et al.,
Defendants and Appellants.
Appellants Theodore G. Sorensen, Gerald J. Sorensen, Gunn Management Group,
Inc., and 40 Main Street Offices, LLC (collectively referred to as Developers) seek
review of a judgment confirming a binding arbitration award. They contend the arbitrator
awarded remedies not available in a court of law, thus exceeding the power and authority
given to him by the parties’ binding arbitration agreement. Finding no legal basis to
review the judgment, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND1
Respondents Old Trace Partners, L.P. (Old Trace), Daniel and Kimberly Nero (the
Neros), Paul and Mary Ellen Klein (the Kleins), Alan Truscott (Truscott), and Fick
Investment Group (Fick) (collectively referred to as Investors), filed a complaint against
Developers related to the purchase and development of real property located at 40 Main
1
We carefully considered the record in this case and include only those facts that
are relevant to the issues addressed in this appeal.
Street in Los Altos, California. Investors alleged that Theodore and Gerald Sorenson (the
Sorensons) prepared an investment prospectus/ project plan for the purpose of procuring
investors, and in doing so, committed fraud by intentionally or negligently
misrepresenting, concealing, and failing to disclose material facts. Investors further
claimed that Gunn Management Group, Inc. (Gunn), the entity created by the Sorensons
to manage the development project, breached its fiduciary duties by mismanaging the
property and violating the operating agreement entered into by Developers and Investors
to create 40 Main Street LLC (Main Street), a limited liability company designed to be an
investment vehicle to acquire title to the property and build the building.
The project plan created by the Sorensons reflected the primary intention to build
a three-story office building with 20 underground parking spaces, which would require
revisions to several zoning ordinances. The plan included three “Alternative
Development Scenarios,” including one that would require no variance in the zoning
ordinances. The project plan disclosed various risk factors, including the potential that
the project could take longer and cost more than anticipated, that public objection could
be stronger than anticipated, that the Los Altos City Council (City Council) might not
approve the three-story office building, and that the required zoning variances might not
be obtainable. The plan stated that the City Council had “already voted to increase Floor
Area Ratios to allow 200% FAR in the downtown area; implementation is only subject to
appropriate parking and traffic studies. It has been determined that these plans can be
implemented based on a negative declaration and no Environmental Impact Report is
required.” The plan also indicated that a committee had recommended “an increase to
250% FAR for substantial parts of the downtown village including [the subject
property].”
Investors each made an initial capital contribution towards the purchase of the
property and for an interest in Main Street. Old Trace, the Neros, and the Kleins each
2
contributed $284,000 for a 10% interest, while Truscott and Fick contributed $142,000
for a 5% interest.
Developers and Investors, as “members,”2 entered into an operating agreement
(OA) “to form and provide for the governance of [Main Street] and the conduct of its
business, and to specify their respective rights and obligations.” As part of the OA, each
member represented that he or she was an “ ‘accredited investor’ as defined in Rule
50l(a) of Regulation D promulgated by the Securities and Exchange Commission (the
‘SEC’) under the Securities Act of 1933, as amended (‘Securities Act’),” and that he or
she was “an experienced investor in unregistered and restricted securities of limited
liability companies or limited partnerships speculative and high risk ventures.” The
signatories to the original OA agreed to submit “any dispute, controversy or claim arising
out of or relating to [the OA], or any breach thereof. . .” to binding arbitration. The OA
provided, “The arbitrator shall not have any power to alter, amend, modify or change any
of the terms of [the OA] nor to grant any remedy which is either prohibited by the terms
of [the OA], or not available in a court of law.” The parties later signed two amendments
to the OA, neither of which altered the types of disputes that required arbitration, or the
powers of the arbitrator.
Developers commenced preparing the design and development of the office
building; they submitted an entitlements application for approval of a three-story building
with underground parking. After obtaining feedback from staff with the Los Altos
Planning Department indicating that the planning department would support the building
without underground parking, the entitlements application was modified. Ultimately, the
2
“ ‘Member’ shall mean each Person who (a) is an initial signatory to [the
operating agreement] as a holder of a Percentage Interest or as a Profit Holders’ Interest,
has been admitted to the Company as a Member in accordance with the Articles or this
Agreement. . . .”
3
planning department rejected the plan for the three-story building, as well as a later,
reduced-in-size plan.
Old Trace filed an initial complaint against Developers in June 2014; in September
2014, the complaint was amended to include all Investors as plaintiffs. In the amended
complaint, Investors alleged causes of action for intentional and negligent
misrepresentation, concealment, false promise, breach of fiduciary duty and contract,
constructive trust, accounting, declaratory relief, violations of Business and Professions
Code section 17200, and receivership. They claimed Developers committed fraud when
procuring investors for the project, and thereafter mismanaged the project. Relevant to
the issues on appeal, Investors contended that Developers misrepresented the following:
the City Council’s plans for a “250% FAR increase” in the area where the project was
located; the financial feasibility of including underground parking for the building; the
financial prospects of the project if there were no changes in zoning laws; and, the ability
to procure permission for a three-story building. Investors also alleged Developers made
false promises that they would remove the current structure on the property and build a
new office building, and create a profitable project even if the zoning limitations could
not be changed. Investors sought an order that the OA and its amendments be deemed
null and void, and for a lien on the property in an amount no less than the value of
Investors’ full investment in the project, with interest, among other relief. Investors did
not explicitly set forth a cause of action for rescission.
Developers requested that the trial court order the matter to binding arbitration, in
compliance with the terms of the OA. Over Investors’ objection, the trial court granted
the request, stayed the trial court action, and authorized the arbitrator to decide any
arbitrability issue in the first instance.
In accord with the trial court’s order, Investors submitted a demand for arbitration
to JAMS, attaching the amended complaint to outline the relief they were requesting.
They indicated in the demand that they were seeking “nullification of the fraudulently
4
induced [OA][,] any amendments and restatements of it, the return of [Investors’] full
investment amounts plus interest or a lien on the property for that value,” and additional
relief. Investors also opined that the relief they sought was outside the scope of the
arbitration clause in the OA, and thus they filed the lawsuit. They filed a motion asking
the arbitrator to determine the scope of the arbitration proceedings, alleging the matter
should be adjudicated in the trial court because of limitations imposed on the arbitrator’s
powers by the OA. Investors believed the validity of the OA and its amendments and
restatements was an issue that the trial court should determine.3 Developers contended
the arbitrator had authority to hear all issues presented by the parties.
The arbitrator agreed with Developers, finding that the language of the arbitration
provision in the OA was clear, requiring that “ ‘. . . any dispute or claim arising out of the
Operating Agreement, including breaches thereof, or claims that it (the operating
agreement) is voidable or void, or otherwise invalid, be submitted to arbitration’ as set
forth in Paragraph 14.10 in both the original and the restated agreements.” Investors
argued that the arbitrator would be required to amend or revise terms of the OA in order
to arbitrate the claims, but the arbitrator disagreed. He found that the OA authorized him
to “decide issues of void, or voidable provisions based on fraud or misrepresentation
under California law. . . . In effect, the agreement provides that the [arbitrator] has the
same powers as a court.”4
Following an eleven-day hearing, at which he took evidence, including testimony
from 23 witnesses, the arbitrator issued a final interim award in February 2017. The
3
That motion and the related pleadings submitted to the arbitrator by the parties
are not included in the record on appeal designated by the parties. This court’s summary
of the proceedings is based on the information included in the arbitrator’s written
decision and award.
4
The arbitrator’s final interim award states, “In effect, the agreement provides that
the court has the same powers as a court.” In context, this is a clear typographical error.
The arbitrator was discussing his own powers relative to those of the trial court.
5
arbitrator found that Investors were “entitled to an Award voiding their acquisition of a
membership in the 40 Main Street Offices, LLC based upon the negligent representations
made by the Sorensens, setting aside and rescinding the 40 Main Street Development
Agreement as to them[,] and a return of their investment with interest at the legal rate
from May of 2007.” Because not all of the members had joined in the law suit, the
arbitrator determined he could not set aside the entire OA for fraud, misrepresentation,
and mismanagement. However, he did confirm that Investors were entitled to an award,
finding that they could “rescind the acquisition of their memberships in the company and,
by way of damages, [obtain] a return of their investment with interest. . . .”
After issuance of the final interim award, Developers asked the arbitrator to amend
the award on the grounds that it inappropriately allowed interest to run from the date of
the Investors’ investments, rather than the date they filed the complaint—the equivalent
of the rescission demand. Following a hearing in April 2017, the arbitrator denied the
motion to amend, finding that “the interest award of the legal rate from the date of the
damages is compelled by both the law and, as importantly, the [OA], Paragraph 14.20.” 5
In July 2017, the arbitrator issued a final award, incorporating his previous rulings.
He confirmed that Investors were entitled to an award of $1,136,000 in principal
damages, plus simple interest at the legal rate of 10 percent, which from May 10, 2007, to
May 9, 2017, amounted to $1,113,600. Investors filed a petition in the trial court to
confirm the arbitration award. Developers subsequently petitioned to vacate the award,
in part on the grounds that the arbitrator exceeded his authority by awarding rescission as
well as interest of 10 percent per annum from the date of Investors’ investment.
5
Paragraph 14.20 of the OA includes the following provision: “Any judgment or
order entered in [an action concerning a dispute between the Company and the Members
or among the Members] shall contain a specific provisions [sic] for the recovery of
attorney fees and costs incurred in enforcing such judgment and an award of prejudgment
interest from the date of the breach at the maximum rate of interest allowed by law.”
6
The trial court held a hearing on the competing petitions in September 2017, after
which it granted Investors’ petition to confirm the award and denied Developers’ petition
to vacate the award. The court determined it did not have authority to review the award
based on Developers’ claims that the arbitrator exceeded his authority, as an error of law
does not provide grounds for judicial review. Pursuant to the trial court’s order, it
entered judgment in January 2018, voiding Investors’ memberships in Main Street and
rescinding agreements relating to each of Investors’ investments in Main Street. The
court ordered Developers to pay damages in the amounts awarded by the arbitrator, and
determined the additional interest owed by Developers since May 9, 2017. Developers
timely filed a notice of appeal after being served with notice of entry of the judgment,
which is appealable pursuant to Code of Civil Procedure section 1294, subdivision (d).
II. DISCUSSION
On appeal, Developers contend the trial court erred when it declined to vacate the
arbitrator’s award. They assert that the arbitrator exceeded his authority by 1) awarding
rescission, and 2) awarding prejudgment interest at the rate of 10 percent per annum.
Code of Civil Procedure section 1286.2 sets forth the bases on which the trial court can
vacate an arbitration award; relevant to this appeal, subdivision (a)(4) requires the court
to vacate the award if it determines that “[t]he arbitrators exceeded their powers and the
award cannot be corrected without affecting the merits of the decision upon the
controversy submitted.” We thus consider whether the arbitrator exceeded his powers.
A. General Legal Principles
The trial court’s ability to vacate an award is limited. It may not simply “vacate
awards the court disagrees with or believes are erroneous.” (Gueyffier v. Ann Summers,
Ltd. (2008) 43 Cal.4th 1179, 1184 (Gueyffier).) The parties’ agreement to arbitrate their
disputes generally affords the arbitrator the authority to resolve questions of contract
interpretation, fact, and law necessary for the arbitrator to decide the dispute. (Ibid.)
“Inherent in that power is the possibility the arbitrator may err in deciding some aspect of
7
the case. Arbitrators do not ordinarily exceed their contractually created powers simply
by reaching an erroneous conclusion on a contested issue of law or fact, and arbitral
awards may not ordinarily be vacated because of such error, for ‘ “[t]he arbitrator’s
resolution of these issues is what the parties bargained for in the arbitration agreement.” ’
[Citations.]” (Ibid.)
The parties can expressly limit the arbitrator’s powers, including limiting the
remedies the arbitrator can award. Where they do, the arbitrator exceeds his or her
authority by ordering a remedy the parties’ arbitration agreement expressly forbids.
(Gueyffier, supra, 43 Cal.4th at p. 1185; Advanced Micro Devices, Inc. v. Intel Corp.
(1994) 9 Cal.4th 362, 375-376, 381 (Advanced Micro Devices); O’Flaherty v. Belgum
(2004) 115 Cal.App.4th 1044, 1056 (O’Flaherty).) We review the trial court’s decision
de novo when determining whether the arbitrator exceeded his powers, giving substantial
deference to the arbitrator’s assessment of his contractual authority. (Advanced Micro
Devices, at p. 376, fn. 9; O’Flaherty, at p. 1056.) “[T]he critical question with regard to
remedies is not whether the arbitrator has rationally interpreted the parties’ agreement,
but whether the remedy chosen is rationally drawn from the contract as so interpreted.”
(Advanced Micro Devices, at p. 377.) We do not undertake an independent review of the
merits of a particular remedy; doing so would defeat “the parties’ contractual expectation
of a decision according to the arbitrators’ best judgment . . . .” (Id. at p. 375.) Rather, we
determine whether the arbitrator’s interpretation of the agreement provides a basis for the
chosen remedy. “In close cases, the arbitrator’s decision must stand.” (Id. at p. 381.)
B. Rescission
Developers contend the remedy of rescission was not allowed under the parties’
arbitration agreement, which precluded the arbitrator from awarding remedies that were
either prohibited by the terms of the OA, or “not available in a court of law.” They argue
8
that rescission was not a remedy that would have been available in a court of law,
because Investors did not satisfy the statutory criteria to obtain such a remedy. 6
Developers rely primarily on O’Flaherty, a case involving the dissolution of a law
partnership, where the appellate court determined that an arbitrator exceeded his authority
by ordering that the withdrawing partners forfeited their partnership capital accounts.
(O’Flaherty, supra, 115 Cal.App.4th at pp. 1056-1061.) The partnership agreement
explicitly provided that capital would be returned to withdrawing partners and did not
include a provision allowing for forfeiture. (Id. at pp. 1057-1058.) The Uniform
Partnership Act, which governed the partnership, did not include a provision authorizing
forfeiture of capital accounts as a remedy. (Id. at p. 1057.) Moreover, a review of
relevant caselaw revealed that forfeiture was not an available remedy in disputes related
to partnership accounts. (Id. at p. 1059.) The appellate court thus concluded that the
award contradicted the provision of the arbitration agreement providing that the arbitrator
could not “grant any remedy which is either prohibited by the terms of this Agreement, or
not available in a court of law.” (Id. at p. 1057.)
The contractual language restricting the available remedies in O’Flaherty
specifying that the arbitrator had no power to “grant any remedy . . . not available in a
court of law” is identical to that in the arbitration agreement before us. Arguing that the
6
“[T]o effect a rescission a party to the contract must, promptly upon discovering
the facts which entitle him to rescind if he is free from duress, menace, undue influence
or disability and is aware of his right to rescind: [¶] (a) Give notice of rescission to the
party as to whom he rescinds; and [¶] (b) Restore to the other party everything of value
which he has received from him under the contract or offer to restore the same upon
condition that the other party do likewise, unless the latter is unable or positively refuses
to do so. [¶] When notice of rescission has not otherwise been given or an offer to
restore the benefits received under the contract has not otherwise been made, the service
of a pleading in an action or proceeding that seeks relief based on rescission shall be
deemed to be such notice or offer or both.” (Civ. Code, § 1691.) A delay in giving
notice or in offering to restore benefits to the other party does not automatically preclude
relief based on recission. (See Civ. Code, § 1693.)
9
cases are thus similar, Developers contend we should follow the logic of O’Flaherty to
conclude that the arbitrator here exceeded his authority in ordering rescission because
recission was not “available in a court of law” to Investors. Developers argue that
Investors did not take the steps to “effect a recission” required by Civil Code section
1691, as they did not give prompt notice of rescission and did not offer to restore to
Developers everything of value they received under the contract. They also contend that
Investors did not plead recission in their amended complaint.
We find O’Flaherty distinguishable. There, forfeiture was prohibited as a remedy
under both partnership law as expressed in statutes and case authorities, and under the
terms of the partnership agreement. No act of pleading or proof by the plaintiffs could
render the forfeiture remedy available in the partnership dissolution action. (O’Flaherty,
supra, 115 Cal.App.4th at p. 1057.) Here, Developers concede that rescission is a
remedy “available in a court of law” when a party to a contract believes it has been
injured by fraud or breach. Rather, Developers argue that while Investors in theory could
have pleaded and proved recission as a remedy for breach of contract or fraud, they did
not satisfy the necessary legal steps to obtain that available remedy. 7 In O’Flaherty, the
forfeiture remedy was not available in a court of law to redress the claim. Here,
7
Investors contend they did plead recission prior to arbitration, if not in their
amended complaint, then in the demand for arbitration submitted to the arbitrator, in
which they stated, “The relief requested of the Court includes the nullification of the
fraudulently induced Operating Agreement[,] any amendments and restatements of it, the
return of Claimants’ full investment amounts plus interest or a lien on the property for
that value, inspection and accounting rights, attorney fees, other actual damages, punitive
damages, and any other relief the Court may deem appropriate.” “When a contract has
been rescinded in whole or in part, any party to the contract may seek relief based upon
such rescission by (a) bringing an action to recover any money or thing owing to him by
any other party to the contract as a consequence of such rescission or for any other relief
to which he may be entitled under the circumstances or (b) asserting such rescission by
way of defense or cross-complaint.” (Civ. Code, § 1692.)
10
Developers dispute whether Investors satisfied the prerequisites to apply the remedy of
recission that was available to them.
Whether Investors properly pursued the recission remedy available to them was a
determination that was within the arbitrator’s purview. Developers do not cite any legal
authority holding that an arbitrator who wrongly applies the laws of pleading and proof
relevant to a remedy exceeds his authority. Whether or not recission was a remedy
appropriately applied based on the pleadings and evidence presented at arbitration was an
issue of law and/or fact for the arbitrator to determine. To the extent the arbitrator
committed any error in so deciding, such error is not reviewable on appeal. (See
Gueyffier, supra, 43 Cal.4th at p. 1184.)
The holding in Shahinian v. Cedars-Sinai Medical Center (2011) 194 Cal.App.4th
987 (Shahinian) further supports our conclusion that the arbitrator did not exceed his
authority by granting recission as a remedy, even if doing so constituted a mistake of law
or fact. In Shahinian, the arbitrator awarded a significant amount of punitive damages in
a breach of contract claim, which the trial court confirmed in a judgment. (Id. at p. 999.)
On appeal, the appellant argued that the amount of the award violated public policy limits
on punitive damages awards, such that it violated the arbitration agreement, which
limited the arbitrator’s powers to remedies that “ ‘would have been available to the
parties had the matter been heard in court. . . .’ ” (Id. at p. 1006.)
In determining that the arbitrator had authority to issue the award, the appellate
court distinguished the case from O’Flaherty. “The arbitration agreement here is nothing
like the one in O’Flaherty, where the remedy of forfeiture of capital accounts was
prohibited both by the partnership agreement and by California partnership law. . . .
Here, the agreement gave the arbitrator broad authority to grant remedies available in
court, and made no reference to punitive damages or to any limitation on the amount of
such an award. If the punitive damages award was excessive, the arbitrator’s error would
be no different from other errors of law, which are generally not reviewable ‘whether or
11
not such error appears on the face of the award and causes substantial injustice to the
parties.’ [Citation.] Moreover, where the arbitrator has made a legal error ‘ “in either
determining the appropriate law or applying it,” ’ the parties may obtain court review of
the merits ‘only if the arbitration agreement expressly provided that the arbitrator’s errors
of law were reviewable in court.’ [Citation.] . . . There was no such agreement here.”
(Shahinian, supra, 194 Cal.App.4th at pp. 1006-1007.) The arbitration agreement before
us provided similarly broad authority to the arbitrator to award remedies, and did not
include any provision that allowed the arbitrator’s errors of law to be reviewed in court.
The Shahinian court based its decision, in part, on the California Supreme Court’s
holding in Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334 (Cable
Connection), a case the parties addressed at oral argument. In Cable Connection, the
Supreme Court determined that, under California law, parties to an arbitration “may
obtain judicial review of the merits by express agreement.” (Id. at p. 1340.) In that case,
the parties’ agreement provided, “The arbitrators shall not have the power to commit
errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a
court of competent jurisdiction for any such error.” (Id. at p. 1341, fn. 3.) The Supreme
Court held that, in order to “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” and “explicitly and
unambiguously” provide for judicial review of such an error. (Id. at p. 1361.) In so
holding, the court stated, “The desire for the protection afforded by review for legal error
has evidently developed from the experience of sophisticated parties in high stakes cases,
where the arbitrators’ awards deviated from the parties’ expectations in startling ways.”
(Id. at p. 1363.)
Developers argue that the arbitrator’s recission award here was untoward,
supporting the argument that review of the arbitrator’s alleged errors is warranted.
However, in Cable Connection the Supreme Court did not expand review of arbitration
12
awards to generally encompass circumstances wherein a party to an arbitration believes
the arbitrator has deviated from the party’s expectations. The Supreme Court limited the
scope of its decision to confirm that parties to an arbitration can expressly agree to
judicial review of legal errors committed by an arbitrator. Developers and Investors did
not expressly and unambiguously agree that such legal error would be subject review on
appeal. Cable Connections does not justify review of the merits of the arbitrator’s
decision.
As was the case in Shahinian, here the arbitrator awarded a remedy available in a
court of law when a party to a contract has been injured by fraud or breach. Developers’
attempt to frame the arbitrator’s alleged error in applying the law of rescission as an act
in excess of the authority given to him by the parties in the OA is unpersuasive. Having
determined that rescission was not a remedy precluded by the terms of the OA, we will
not review the arbitration award for errors of law or fact.
C. Prejudgment Interest
Applying the law as set forth above, we similarly conclude that the arbitrator had
authority to order prejudgment interest at the legal rate. Developers have not
demonstrated that such remedy was not available in a court of law. As they did with their
arguments concerning rescission, Developers attempt to frame the arbitrator’s alleged
errors of law and fact as acts in excess of the arbitrator’s authority under the OA.
Developers argue the arbitrator incorrectly interpreted the provision of the OA
providing, “Any judgment or order entered in [an action concerning a dispute between
the Company and the Members or among the Members] shall contain a specific
provisions [sic] for the recovery of attorney fees and costs incurred in enforcing such
judgment and an award of prejudgment interest from the date of the breach at the
maximum rate of interest allowed by law.” (Italics added.) Developers contend this
provision only applies in an action for breach of the OA, whereas the arbitrator’s award
13
of rescission and resulting interest was based on findings that Developers made
misrepresentations in the project plan.
As we previously observed, we do not consider “whether the arbitrator has
rationally interpreted the parties’ agreement, but whether the remedy chosen is rationally
drawn from the contract as so interpreted.” (Advanced Micro Devices, supra, 9 Cal.4th at
p. 377.) We determine whether the arbitrator’s interpretation of the agreement provides a
basis for the chosen remedy. “In close cases, the arbitrator’s decision must stand.” (Id. at
p. 381.) The arbitrator’s award of prejudgment interest from the date of Investors’
investment in the project is rationally drawn from the contract as interpreted by the
arbitrator. To the extent the arbitrator committed an error of law or fact in interpreting
the OA, such error is not for us to review on appeal. (See Gueyffier, supra, 43 Cal.4th at
p. 1184; Shahinian, supra, 194 Cal.App.4th at pp. 1006-1007.)
To the extent the arbitrator based his award of interest on the law pertaining to
rescission, rather than the provision of the OA requiring an award of prejudgment
interest, Developers’ allegations similarly raise issues of error of fact or law, rather than
demonstrating that the arbitrator acted in excess of his authority under the terms of the
arbitration agreement. Developers do not deny that prejudgment interest is an available
remedy at law. Rather, they contend the arbitrator erred both in fixing the date on which
interest began to accrue, and in setting the amount of interest at the legal rate of 10
percent, claiming, in essence, that the arbitrator misapplied the law. If the arbitrator
made a mistake of law or fact in ordering prejudgment interest, he did so within the
confines of the authority given to him by the parties when they agreed on the terms of the
OA, such that we are precluded from reviewing the alleged error on appeal. (Advanced
Micro Devices, supra, 9 Cal.4th at pp. 375-377.)
III. DISPOSITION
The judgment is affirmed.
14
_______________________________
Greenwood, P. J.
WE CONCUR:
_________________________________
Grover, J.
________________________________
Danner, J.
Old Trace et. al. v. Sorenson et. al.
No. H045706