Casello & Lincoln v. Tong
Filed 10/4/13 Casello & Lincoln v. Tong CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CASELLO & LINCOLN,
Plaintiff and
Respondent,
v.
TU MY TONG,
Defendant and
Appellant.
G046566
(Super. Ct.
No. 07CC12396)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Steven L. Perk, Judge.
Affirmed.
Tu My Tong, in pro.
per., for Defendant and Appellant.
Casello & Lincoln
and James H. Casello for Plaintiff and Respondent.
*
* *
A jury awarded plaintiff
Casello & Lincoln damages in the amount of $87,765 in this attorney fee
collection action against defendant Tu My Tong.
file a reply brief). Tong fails to
clearly identify alleged errors by the court.
She also fails to provide legal citations and analysis to support her
contentions of error (to the extent such alleged errors can be
identified). Tong fails to cite to the
record to support most of her factual assertions. Most of the asserted facts in the opening
brief have nothing to do with the legal issues that can be identified. Tong’s appendix does not include page numbers
on most pages, making it difficult to find the evidence to which the brief
cites (when it actually does so). To the
extent we can discern Tong’s contentions, they are unmeritorious. We therefore affirm the judgment.
FACTS
As
explained in Casello & Lincoln v.
Tong (June 25, 2010,
G041271 [nonpub. opn.] (Casello I),
“this is a debt collection case. The
debt in question arose out of [Tong’s] retention of, in early 2007, the law
firm of Casello & Lincoln to defend her in two Los
Angeles cases . . . .
In late 2007, Casello & Lincoln filed this action against Tong for
the unpaid balance of their fees, about $82,000. Tong, then represented by counsel . . . ,
responded in January 2008 with a cross-complaint for legal malpractice, the
basic theories being that the firm overbilled for their work and dismissed
claims against certain defendants . . . that they should not have.†In Casello
I, we reversed a 2008 judgment in Casello & Lincoln’s favor because the
trial court abused its discretion by not granting a continuance to Tong to
allow her time to recover her legal file from an attorney who was arrested just
before the trial began. We refer the
parties to Casello I for further
discussion of what occurred prior to our reversal of the judgment and our
rationale for reversing the first judgment.
On
remand, a three day jury trial commenced on January 31, 2012.
Attorney James Casello testified that Tong signed his firm’s standard
representation agreement in February 2007.
Casello authenticated an exhibit setting forth billing summaries for all
the matters worked on during his firm’s representation of Tong; Tong “never
disputed any of them until we stopped representing her.†Casello also authenticated copies of all the
invoices for the four matters. These
exhibits were received into evidence, although they are not included with the
appellate record. Casello also noted
that a “jade†(as alleged by Tong) plaque given to him by Tong was a gift for
his family after winning a trial for Tong and not a payment of attorney fees.
DISCUSSION
“‘A
judgment . . . is presumed
correct. All intendments and
presumptions are indulged to support it on matters as to which the record is
silent, and error must be affirmatively shown.
This is not only a general principle of appellate practice but an
ingredient of the constitutional doctrine of reversible error.’†(Denham
v. Superior Court (1970) 2 Cal.3d 557, 564.) “‘A necessary corollary to this rule is that
if the record is inadequate for meaningful review, the appellant defaults and
the decision of the trial court should be affirmed.’†(Gee v.
American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412,
1416.) To demonstrate prejudicial error,
an appellant must provide an adequate record of the trial court proceedings and
include specific page citations in its briefs illustrating the error. (Aguilar
v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132;
(1999) 72 Cal.App.4th 849, 856.)
Issues not specifically raised at trial are forfeited on appeal. (Premier
Medical Management Systems, Inc. v.
Cal.App.4th 550, 564.) Moreover,
issues not specifically raised in the appellate briefs are waived. (Roberts
v. Assurance Co. of America (2008) 163
Cal.App.4th 1398, 1410.)
For
the reasons noted above in the introduction to this opinion, this court would
be justified if it affirmed the judgment without any further analysis. Tong’s brief and appendix fail to meet the
minimal standards required by the appellate process. Nevertheless, to the extent we can divine
Tong’s arguments, we will address them.
With
regard to a claim that the evidentiary record is insufficient to support
factual findings underlying the judgment, we apply the substantial evidence
standard of review. “Under the
‘we must consider all of the evidence in the light most favorable to the
prevailing party, giving it the benefit of every reasonable inference, and
resolving conflicts in support of the [findings]. [Citations.]
[¶] It is not our task to weigh
conflicts and disputes in the evidence; that is the province of the trier of
fact. Our authority begins and ends with a determination as to whether, on the
entire record, there is any
substantial evidence, contradicted or uncontradicted, in support of the
judgment.’†(ASP Properties Group, L.P. v. Fard, Inc. (2005) 133
Cal.App.4th 1257, 1266.)
To
the extent Tong is making an argument that there is insufficient evidence
supporting the judgment (e.g., the evidence does not support the award of
damages against her, the jury’s implied finding that the “jade†plaque was a
gift to Casello, the legitimacy of the agreement relied on by Casello & Lincoln,
and the defense verdict on Tong’s claims against Casello & Lincoln), we
reject Tong’s argument. The jury was
entitled to credit the testimony of Casello and the exhibits put forward by
Casello in support of Casello & Lincoln’s claims. The jury was entitled to reject Tong’s
testimony to the contrary.
To
the extent Tong is contending the court erred by not granting a continuance to
allow her more time to secure the appearance of an expert at trial, it is
unclear whether Tong actually requested a continuance. Even if it is assumed that she requested a
continuance, there is no showing that the court abused its discretion in
refusing a further delay of this matter to accommodate Tong’s failure to secure
the presence of her own expert witness at trial. (Jurado
v. Toys “R†Us, Inc. (1993) 12 Cal.App.4th 1615, 1617 [decision to
grant or deny continuance “will not be disturbed on appeal absent a clear
showing of abused discretionâ€].)
To
the extent Tong is contending money collected pursuant to the first judgment should
have been returned to her following the reversal of the first judgment, the
issue is moot. The prior collection of
funds by Casello & Lincoln from Tong pursuant to the first judgment was
offset by the court when it entered the second judgment.
Tong
implies that the jury, not the court, should have been tasked with awarding
interest to Casello & Lincoln, but she cites authorities applicable to
non-contract claims. (Civ. Code,
§ 3288; Barry v. Raskov (1991)
232 Cal.App.3d 447, 457.)
DISPOSITION
The
judgment is affirmed. Casello &
Lincoln shall recover costs incurred on appeal.
IKOLA,
J.
WE CONCUR:
RYLAARSDAM,
ACTING P. J.
FYBEL, J.
Judgment was entered
in favor of Casello & Lincoln in the amount of $12,518.68 after the court
took into account costs, interest, and amounts already collected by Casello
pursuant to a prior judgment that was subsequently reversed.
