Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. NC019381 Patrick T. Madden, Judge.
Robert S. Lewin for Plaintiff and Appellant.
Early, Maslach & Van Dueck, Michael J. O’Connor; Law Office of Priscilla Slocum and Priscilla Slocum for Defendants and Respondents.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, Jean Letourneau, appeals from an August 27, 2009 judgment entered on an arbitration award in her favor. Judgment was entered against defendants, Hamilton Cove Homeowners Association, Donald Schwartzkopf, Pegi Herrington and Paul M. Cohen. Plaintiff argues she was entitled to additional interest. The trial court awarded plaintiff post-arbitration prejudgment interest from the date the arbitrator, Retired Judge Richard W. Luesebrink, issued the award (January 28, 2005) to the date defendants first tendered payment (May 9, 2005). Plaintiff contends she was entitled to additional interest for the period from the January 28, 2005 award to the August 27, 2009 judgment. Defendants have moved to dismiss the appeal arguing plaintiff waived her right to appeal. We disagree and deny the dismissal motion. On the merits, we uphold the trial court’s interest determination and affirm the judgment. We find there was substantial evidence defendants tendered payment and plaintiff forfeited any defect in the tender by failing to object. We conclude that, as a result, the indebtedness ceased to bear interest.
II. BACKGROUND
Plaintiff filed a wrongful eviction action against defendants. The parties stipulated to binding arbitration “with no right of appeal” by any party. The stipulation also guaranteed plaintiff a minimum award of $10,000 and a maximum award of $60,000. On January 28, 2005, the arbitrator awarded plaintiff $60,000. He reserved jurisdiction to determine whether plaintiff was entitled to attorney fees. On May 9, 2005, defendants tendered a $60,000 check payable to plaintiff and her counsel. The tender was conditioned upon plaintiff executing a partial satisfaction of judgment pending the outcome of her attorney fee request. There was no response from plaintiff or her counsel, Robert S. Lewin. On June 2, 2005, the arbitrator denied Mr. Lewin’s fee request. On April 3, 2006, and again on September 8, 2006, defendants tendered a check for $60,000 to Mr. Lewin. Mr. Lewin never negotiated the check nor returned defense counsel’s several telephone calls. Several years later, on March 27, 2009, plaintiff filed her petition for entry of judgment with interest and costs. The trial court granted the petition and entered the August 27, 2009 judgment. As noted above, the trial court awarded plaintiff interest from January 28, 2005, the date the arbitrator issued his award, to May 9, 2005, at which time defendants first attempted to pay her. On appeal, plaintiff argues she was not obligated to accept defendants’ tender of $60,000 because it did not include accrued interest and it was conditional insofar as it named as a payee her former counsel, Clinton S. Hubbard, with whom she was in litigation. Plaintiff did not present any evidence with respect to this latter point.
III. DISCUSSION
A. Defendants’ Motion To Dismiss The Appeal
Defendants seek to dismiss this appeal on the ground plaintiff waived her right to appeal. We conclude plaintiff did not clearly and expressly waive the right to appeal from the judgment entered on the arbitration award. Accordingly, we deny the motion.
It is well settled that a party may expressly waive the right to appeal from a judgment. (Hibernia Sav. & Loan Soc. v. Waymire (1907) 152 Cal. 286, 287-288; Guseinov v. Burns (2006) 145 Cal.App.4th 944, 952 (Guseinov); Pratt v. Gursey, Schneider & Co. (2000) 80 Cal.App.4th 1105, 1108 (Pratt); Elliott & Ten Eyck Partnership v. City of Long Beach (1997) 57 Cal.App.4th 495, 504.) But the waiver must be clear and express. (Guseinov, supra, 145 Cal.App.4th at p. 952; Lovett v. Carrasco (1998) 63 Cal.App.4th 48, 53; Bischel v. Fire Ins. Exchange (1991) 1 Cal.App.4th 1168, 1172; McConnell v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1985) 176 Cal.App.3d 480, 488.) Any doubt will be resolved against a waiver of the right to appeal from the judgment. (Guseinov, supra, 145 Cal.App.4th at p. 953; Bischel v. Fire Ins. Exchange, supra, 1 Cal.App.4th at p. 1172; Estate of Hart (1962) 204 Cal.App.2d 634, 637.)
The Courts of Appeal have recognized a distinction in terms of waivers and the right to appeal an arbitrator’s award. First, there is the waiver of the right to appeal the arbitrator’s decision. Second, there is the waiver of the right to appeal from judicial action on the award. In Pratt, supra, 80 Cal.App.4th at page 1107, we considered an arbitration agreement that provided, “[T]he right to appeal from the arbitrator’s award or any judgment thereby entered or any order made is expressly waived.” We held this constituted an express wavier of the right to appeal from the judgment on the award. (Id. at p. 1108.) In Guseinov, supra, 145 Cal.App.4th at page 948, we considered an arbitration agreement that stated: “‘The arbitrator’s final award shall be binding and shall be fully enforceable.... The Parties waive any right to appeal the arbitral award; to the extent a right to appeal may be lawfully waived. Each Party retains the right to seek judicial assistance: (i) to compel arbitration; (ii) to obtain interim measures of protection prior to or pending arbitration; (iii) to seek injunctive relief..., and (iv) to enforce any decision of the arbitrator, including the final award.’” We held the provision was insufficiently clear and express to constitute a waiver of the defendant’s right to appeal from the judgment on the arbitration award. (Id. at pp. 953-954.)
In Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1088 (Reisman), the Court of Appeal for this appellate district held a Los Angeles County Bar Association form reciting that upon agreement to binding arbitration “‘no appeal or further proceedings’ after the award are ‘possible, ’” did not mean the parties could not appeal from the judgment on the award. The Court of Appeal held, “We conclude that the waiver agreements here are directed against a party seeking a trial de novo and against any appeal directly from the award and within the arbitration proceeding itself as distinguished from an appeal of judicial action on the award.” (Ibid.)
Turning to the present case, we conclude plaintiff did not clearly and expressly waive the right to appeal from the judgment entered on the arbitration award. The pertinent contractual language in this case is more like that in Reisman than in Pratt. Further, as we recognized in Guseinov, under Code of Civil Procedure section 1294, subdivision (d), a judgment entered on an arbitration award is appealable. (Guseinov, supra, 145 Cal.App.4th at p. 954, citing Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 326-327 [an appeal lies from the judgment entered on the order confirming the arbitration award].) The present language lacks sufficient specificity to be construed as waiving the right to prosecute the present appeal.
B. Plaintiff’s Request For Post-Arbitration Prejudgment Interest
As noted above, plaintiff argues she was entitled to post-arbitration prejudgment interest from issuance of the award on January 28, 2005, to entry of judgment on August 27, 2009. We disagree. The trial court could correctly conclude, on substantial evidence, interest ceased to accrue on May 9, 2005, when defendants tendered payment.
Civil Code section 1501 states, “All objections to the mode of an offer of performance, which the creditor has an opportunity to state at the time to the person making the offer, and which could be then obviated by him, are waived by the creditor, if not then stated.” Code of Civil Procedure section 2076 provides, “The person to whom a tender is made must, at the time, specify any objection he may have to the money, instrument, or property, or he must be deemed to have waived it; and if the objection be to the amount of money, the terms of the instrument, or the amount or kind of property, he must specify the amount, terms, or kind which he requires, or be precluded from objecting afterwards.” Our Supreme Court has held, “The purpose of [these statutes]... is to inform the debtor of the amount claimed by the creditor, so that the former may have the opportunity of meeting the demand if he should wish to do so.” (Shafer v. Willis (1899) 124 Cal. 36, 39; accord, McElroy v. Chase Manhattan Mortg. Corp. (2005) 134 Cal.App.4th 388, 394; Gaffney v. Downey Savings & Loan Assn. (1988)200 Cal.App.3d 1154, 1166; Noyes v. Habitation Resources, Inc. (1975) 49 Cal.App.3d 910, 914; Still v. Plaza Marina Commercial Corp. (1971) 21 Cal.App.3d 378, 386; Thomassen v. Carr (1967) 250 Cal.App.2d 341, 350.) As similarly explained in Sanguansak v. Myers (1986) 178 Cal.App.3d 110, 116-117, “[S]ections 2076 and 1501 are primarily intended to protect debtors/offerors who perform or tender performance in good faith from harm by creditors/offerees who refuse to accept or intentionally fail to demand proper tender.” The Court of Appeal has held: “The rule does not permit an offeree to remain silent regarding a tender and later surprise the offeror with hidden objections. (Riverside Fence Co. v. Novak (1969) 273 Cal.App.2d 656, 672.)” (Noyes v. Habitation Resources, Inc., supra, 49 Cal.App.3d at p. 914; accord, Sanguansak v. Myers, supra, 178 Cal.App.3d at p. 116; Layton v. West (1969) 271 Cal.App.2d 508, 512.) Moreover, where a tender is made, and any defect in the tender is forfeited by a failure to object thereto, the indebtedness ceases to bear interest. (Lockhart v. J.H. McDougall Co. (1923) 190 Cal. 308, 312-313, disapproved on another point in Ellis v. Mihelis (1963) 60 Cal.2d 206, 221; accord, Beeler v. American Trust Co. (1944) 24 Cal.2d 1, 29; Rose v. Hecht (1949) 94 Cal.App.2d 662, 665-666; Stockton Theatres, Inc. v. Palermo (1960) 179 Cal.App.2d 323, 325.) In Lockhart, our Supreme Court held: “The plaintiffs had a right to demand a deed to the land held by the defendant as a mortgage (160 acres); the tender of the full amount due was made, and it was not suggested by defendant that there was any distinction between the 80 acres acquired by it by virtue of the sale to it under a trust deed executed by it, and the balance of the land held by it. Apparently none of the parties had this distinction in mind. The defendant declined to negotiate with plaintiffs or consider the question of tender affirming title to the whole 240 acres. The offer of performance was upon a condition not authorized and hence if objected to upon that ground would have been unavailing to stop the running of interest, but where the defendant not only did not object on that ground but also refused to consider the proposition that the plaintiffs owed any debt, or that they had any interest in the land, the defect in the tender was waived by failure to object thereto on that ground. (Civ. Code, sec. 1501; Kofoed v. Gordon [(1989)] 122 Cal. 314, 320, 321.) A good tender having been made, or waived, the indebtedness ceased to bear interest. (Civ. Code, sec. 1504; Stein v. Leeman [(1911)] 161 Cal. 502.” (Lockhart v. J.H. McDougall Co., supra, 190 Cal. at pp. 312-313, italics added.)
Here, the trial court found: defendants tendered payment; plaintiff neither accepted nor raised any objection to the form or amount of the tender; and therefore the tender prevented the running of interest. Substantial evidence supported those findings. (Beeler v. American Trust Co., supra, 24 Cal.2d at p. 29 [“The evidence accredited by the trial court supports not only its finding as to the fact of the offer of payment, but also its sufficiency to prevent the running of interest on the plaintiff’s obligation”]; see In re Marriage of Green (2006) 143 Cal.App.4th 1312, 1322.)
Our conclusion is also consistent with Civil Code section 3287, subdivision (a) which provides: “Every person who is entitled to recover damages certain... and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented... by the act of the creditor from paying the debt.” (Italics added.) There was substantial evidence plaintiff prevented defendants from satisfying their obligation to her by refusing to accept payment and by declining to communicate any reason for doing so.
Plaintiff asserts defendants’ opposition to her petition for entry of judgment was untimely, hence the petition “should be deemed admitted” and the opposition ignored. Plaintiff argues, “No relief was requested under [Code of Civil Procedure section] 473..., and no relief was granted....” That argument is without merit. Defendants did request relief under Code of Civil Procedure section 473. Moreover, the trial court impliedly granted relief insofar as it clearly stated, as reflected in the reporter’s transcript of the hearing, that it had considered the opposition. Plaintiff does not contend the trial court’s decision under Code of Civil Procedure section 473 was in error.
IV. DISPOSITION
The dismissal motion is denied. The judgment is affirmed. Defendants, Hamilton Cove Homeowners Association, Donald Schwartzkopf, Pegi Herrington and Paul M. Cohen, are to recover their costs on appeal from plaintiff, Jean Letourneau.
We concur: KRIEGLER, J., KUMAR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.