Arbitration/Correction of Award/1286.6: Arbitrator Did Not Exceed Her Powers In Calculating Damages, Where Appellant Was Ordered To Produce Documentation Of Manufacturing Costs And Failed To Do So

 

Maxim of Equity:  “No one can take advantage of his own wrong.” (Civ. Code, section 3517).

     Defendant/Appellant Donn Zellet appealed from a judgment confirming an arbitration award for $376,418 in damages, contending the arbitrator exceeded her powers in grossly miscalculating damages, and the superior court erred in not correcting the award.  Clark v. Zellet, Case No. B251728 (2/6 Sept. 22, 2014) (Yegan, Gilbert, Perren) (unpublished).

     Zellet argued the superior court should have subtracted plaintiff’s manufacturing cost from plaintiff’s unit cost for items sold.  “The argument fails because Zellet was ordered to produce records of the manufacturing and production costs but refused to do so.”  True, contract damages must be clearly ascertainable.  But:  “The corollary to this rule is that ‘[o]ne whose conduct has rendered difficult the ascertainment of . . . damages cannot escape liability because the damages could not be measured with exactness. [Citations.]”  Zinn v. Ex-Cell-O Corp., 24 Cal.2d 290, 297-298 (1944).

     Affirmed.