Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. HGO6268959
Sepulveda, J.
An attorney, Christopher Appleton, sued his former client, Pin Lian Tu, to recover for legal services he rendered in a prior civil action in which Appleton successfully defended Tu. Following a bench trial, the court awarded Attorney Appleton $57,562.87 under a written retainer agreement entitling the attorney to hourly fees for his legal representation. Tu appeals, and represents herself on appeal. We affirm the judgment.
Appellant Tu filed a motion to augment the appellate record with trial exhibits, court registers of action in this case and others, and correspondence between herself and attorneys. We grant the motion as to the trial exhibits and registers of action, and deny the motion as to the correspondence not presented at trial. “[D]ocuments not before the trial court cannot be included as a part of the record on appeal.” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn 1.)
In September 2005, Tu was sued by her brother and sister-in-law for breach of contract and related claims over ownership of an Oakland condominium. The lawsuit was founded on a 1998 written agreement between Tu and her relatives for the purchase of the condominium. Tu purportedly agreed to lend her brother and sister-in-law $80,000 of the $100,000 down payment, and take title to the property “temporarily” until $20,000 of the loan was paid. Tu would then transfer title to her relatives, who were stated to be the true owners and users of the property and responsible for its expenses. Tu’s relatives alleged they honored the agreement, and paid mortgage expenses and loan interest. But Tu claimed ownership, and tried to evict her relatives. Tu’s relatives sued for title of the condominium, and she cross-complained for possession.
Tu retained and discharged several attorneys before contacting Attorney Appleton less than two months before the scheduled trial. In August 2005, Tu signed a written retainer agreement with Appleton in which she agreed to pay the attorney $225 hourly for his services, and interest of 1.5 percent monthly on any unpaid balance due. Appleton successfully represented Tu in an eight-day jury trial. At the close of the plaintiffs’ case, Appleton moved for nonsuit and directed verdict on Tu’s behalf, and the motion was granted. Tu dismissed her cross-complaint upon obtaining a stipulation that her relatives would vacate the property. Tu gained possession and clear title to property worth about $450,000, and did not have to reimburse her relatives for their mortgage payments or other expenses incurred during their years of occupancy.
Attorney Appleton submitted a detailed invoice for his services, describing the tasks undertaken, the date of the tasks, and the duration of time spent on each task. Tu refused to pay for Appleton’s services and refused to arbitrate the dispute. Appleton brought this lawsuit in May 2006 to recover payment.
The case was initially called for bench trial on March 2, 2007, but continued for ten days at Tu’s request to allow her additional time to prepare for trial. Trial commenced on March 12, 2007, with self-representation by each party. Tu requested another continuance, saying she “cannot work . . . fast enough” and that the case involves “many people,” referring to her efforts to cross-complain against 25 parties including previous attorneys who represented her. The court explained that the cross-complaint was never authorized or served, and thus the case was limited to the fee dispute between Tu and Appleton. The court denied the continuance motion upon finding no good cause to continue the trial date.
Attorney Appleton testified and presented documentation supporting his claim for unpaid fees. Appleton submitted the retainer agreement as a trial exhibit and testified that he “fully performed all acts and services required by [his] contract and required of [him] by the rules of professional conduct.” Appleton noted that Tu told him that her highest expectation was recovery of the property after reimbursement of her relatives’ mortgage payments and expenses, or payment to them of a 20 percent share of profits from a sale of the property. Appleton asserted that he therefore exceeded her expectations by securing the property without any payment from Tu. Appleton presented detailed invoices for legal services, and claimed an unpaid balance of $49,410.19 in fees and expenses, plus interest. Tu had previously paid $18,000.
Tu then testified for over an hour. Tu admitted retaining Appleton and signing the retainer agreement obligating her to pay hourly fees and interest on unpaid balances. Tu also admitted that Appleton rendered a “good performance,” did “a good job,” and obtained a “good result.” But Tu maintained that the attorney’s services were worth no more than $50,000 total, and not the approximately $67,000 he claimed. Tu said Appleton’s bill was “exorbitant.” The court queried Tu closely on this matter, and repeatedly asked for specification of the fees Tu claimed were unjustified. Tu stated a number of complaints, each of which the court carefully considered. Among Tu’s complaints were that Appleton spent too much time subpoenaing documents from the title company involved in the sale of the disputed condominium and trying to locate the condominium seller. The court explored these issues, and Appleton responded to them in rebuttal by explaining that he believed his efforts were necessary to prove Tu’s ownership.
At the end of trial, Tu complained that she did not have “time to organize all I want to submit.” The court told Tu it could not give her any more time: “You were suppose[d] to be ready for trial on March 2nd, and you weren’t, and you put it over to today because you weren’t ready from last week. You needed to get ready before today. I honestly don’t know there’s anything more that would help.” Tu insisted that there was “[a] lot” more that would help her case and there was “a lot” she had not told the court, but made no offer of proof. The court ended the hearing, over Tu’s objection, and took the case under submission.
The court weighed the parties’ testimony and reviewed the exhibits, including Appleton’s billing statements documenting 284.5 hours spent on the case. The court concluded, in a written order, that “the amounts charged are not unreasonable for the work necessitated by an 8-day jury trial.” The court determined that Tu “cited no credible grounds for refusing to pay the balance to Plaintiff” Appleton. The court entered judgment in favor of Appleton, and awarded him $57,562.87 in damages (the balance due of $49,410.19 plus prejudgment interest of $8,152.68). Tu appealed to this court.
DISCUSSION
Tu raises a number of claims on appeal, most of them directed to the conduct of the trial judge. Tu says the trial judge was biased and denied Tu due process when “the trial judge arbitrarily cut off appellant Pin Tu’s testimony in the middle, notwithstanding appellant’s insistence that she had further probative evidence to present, attacking the legitimacy of [Attorney Appleton’s] excessive bill.” Tu also argues that her trial testimony establishes that Appleton’s bill was excessive, and maintains that the interest rate is excessive and that she is not liable for attorney fees because Appleton’s invoice was not timely tendered.
There is absolutely no basis for Tu’s assertion of judicial bias or denial of due process. The reporter’s transcript of the trial shows that Tu was given a full opportunity to present her case, and that the trial judge patiently and fairly weighed Tu’s testimony. As noted above, Tu testified for over an hour. The judge assisted Tu in directing her testimony to the relevant issue by repeatedly asking Tu to specify her grievances with the fees charged. The judge encouraged Tu to state her case by asking, at several different junctures in the testimony: “Did you ever tell [Attorney Appleton] why you thought [the bill] was exorbitant?”; “Can you tell me what you disputed?”; “[W]hy did you decide that [$50,000] was a good amount[,] when the amount he was charging you thought was not a good amount?”; “Ms. Tu, anything more you want to tell the court? . . . [T]he only [relevant] subject is why you shouldn’t be required to pay the amount of fees that have been charged to you by Mr. Appleton”; “Is there anything else that you want to tell me, you haven’t already told me, as to why you shouldn’t be required to pay the bill that was charged to you by Mr. Appleton?” After each inquiry, Tu would state a grievance and the court would explore the matter through additional questioning.
The time allotted for the trial (which started at 9:30 a.m.) was drawing to a close when the court said: “It’s now getting to be quarter to 3:00. I do have another case that’s here to be heard, and so [you need] to kind of wrap up for me and tell me anything, whatever it is that I need to hear as to why you shouldn’t be required to pay the full amount of the bill that’s been charged by Mr. Appleton.” Tu replied that the fees must be overstated because the total number of hours spent on the case in the first days of representation, divided by the number of working days, averages to about six hours a day—and no attorney could work that number of hours on one case while also representing other clients. The court explained that Tu could not establish that the bill was excessive by simply asserting that Appleton spent too much time on the case without specifying which listed tasks were unjustified. Redirected in this manner, Tu’s testimony continued and Appleton replied to the matters raised. When the court asked if there were any additional, specific charges that Tu claimed were unjustified, Tu said she would “have to collect all my e-mails” and compare them to the invoice. The court told Tu: “[Y]ou should have done that long before today.” The court soon concluded the trial, over Tu’s objection, who insisted she needed “more time to organize all I want to submit.”
The judge did not, as Tu claims on appeal, cut off her testimony “in the middle” or end the trial “summarily.” Tu was given a full opportunity to testify. The only thing Tu was denied was a continuance to collect and organize unspecified e-mails. The court did not abuse its discretion in denying Tu additional time. The case had been pending since May 2006, which gave Tu ten months to gather her evidence before the March 2007 trial. Tu had also been given one continuance of the trial date. Tu was not denied due process.
Turning to the substantive issue in the case, we find that the evidence amply supports the trial court’s determination that “the amounts charged are not unreasonable for the work necessitated by an 8-day jury trial.” Tu’s appellate arguments against the sufficiency of the evidence are unavailing. There is no “inherent improbability” in an attorney working the number of hours Appleton said he worked in preparing for trial and conducting trial. At trial of this fee dispute, Tu argued that the fees must be overstated because the total number of hours spent on the underlying case in the first days of representation, divided by the number of working days, averages to over six hours a day—and no attorney could work that number of hours on one case while also representing other clients. On the first 47 days of representation from August 29 to October 24, 2005, which included trial, Appleton billed 275.20 hours. This averages to almost six hours per day. This mathematical calculation simplifies the invoice, which does not show a consistent number of hours worked each day. Some days are billed at a far lower level, and others at a higher level. Six of the eight trial days exceed 12 hours, which is not surprising. Contrary to Tu’s supposition, long hours are not unusual for an attorney, especially one trying a case. At trial of the fee dispute, Tu reasoned that Appleton could not have averaged six hours of work on her case when he had other clients and there are only seven hours in a work day. The central flaw in this logic is that there are not seven hours in a work day for trial attorneys, who routinely work into the night on behalf of their clients. There is no “inherent improbability” in an attorney working the number of hours Appleton charged for trial work.
Nor may Tu fairly assert that “the fact that the underlying case was won on a non-suit demonstrates that the alleged vast quantity of preparation time was really not necessary in order to win.” No competent attorney neglects trial preparation on the reckless speculation that the opposing party may fail to prove its case. Tu would not be taking this position had Attorney Appleton gambled on such a maneuver, failed to obtain a nonsuit, and then stood in court unprepared to defend Tu.
Tu’s remaining appellate arguments against the reasonableness of the fees are similarly meritless. Tu asserts, for example, that Attorney Appleton wasted time subpoenaing the records of the title company that handled escrow on the disputed condominium and trying to locate the condominium seller. Appleton responded to this accusation at trial, and explained that information from the escrow holder and seller was properly sought in an effort to prove Tu’s ownership of the condominium. The trial court reasonably accepted this explanation. Appleton also responded to Tu’s assertion, repeated on appeal, that he overstated the time spent with Tu during the initial retention interview. The court weighed this conflicting testimony and decided in favor of Appleton. The court concluded that Tu presented “no credible grounds for refusing” payment. (Italics added.) It is not our place, as a reviewing court, to reweigh the credibility of witnesses. “[W]e defer to the trier of fact on issues of credibility.” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)
Tu’s final claims are that the contractual rate of interest is excessive, and that she is not liable for attorney fees because Attorney Appleton’s invoice was not timely tendered. The first claim is meritless and the second claim is forfeited. The California Constitution limits the interest payable on “loans,” not on unpaid account balances. (Cal. Const., art. XV, § 1; Southwest Concrete Products v. Gosh Construction Corp. (1990) 51 Cal.3d 701, 704-709.) Interest charged on unpaid account balances in a sale of goods or services is not a form of interest within the meaning of the Constitution’s proscription against usury. (Fox v. Federated Department Stores, Inc. (1979) 94 Cal.App.3d 867, 872; accord Southwest Concrete Products, supra, at p. 707.) As to the timeliness of Attorney Appleton’s invoice, Tu did not challenge the timeliness of the invoice at trial, and may not be heard to do so now. “Points not raised in the trial court will not be considered on appeal.” (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.)
DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J., Reardon, J.