Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County, Super. Ct. No. MCV028922, James E. Oakley, Judge.
Law Offices of Jay S. Gill and Jay S. Gill for Defendants and Appellants.
Wild, Carter, & Tipton and Russell G. VanRozeboom for Plaintiff and Respondent.
OPINION
HILL, J.
This is an appeal from a judgment in favor of plaintiff and respondent, Integrated Grain & Milling Company, on its claim for payment for chicken feed it sold and delivered to defendants and appellants, David Rashidian and Mahshid Jazayeri Rashidian. Appellants also appeal from the order awarding respondent attorney fees. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2003, appellants submitted a credit application to respondent. The application was approved and appellants purchased chicken feed from respondent on credit. The application provided that the terms were net cash in 14 days, with a service charge for late payment; the application also included a provision for the prevailing party to recover attorney fees in the event action was taken to collect on the account.
In 2005, respondent filed its complaint, containing causes of action for breach of contract and common counts, including book account, and alleging that appellants owed respondent $39,579.61 for chicken feed delivered pursuant to the credit application. At trial, appellants represented themselves. They contended respondent’s bookkeeping was in error and they owed nothing, or respondent owed appellants due to overpayments. After a one-day court trial, judgment was entered in favor of respondent for $25,475.51, and the court later awarded respondent $17,980.00 in attorney fees.
DISCUSSION
Appellants raise four issues. They contend the trial court erroneously admitted two exhibits over their objections; the trial court failed to issue a statement of decision, despite their request; substantial evidence did not support the judgment; and attorney’s fees should have been awarded based on a book account, rather than based on a contract.
I. Admission of Exhibits 1 and 2
“‘Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion.’ [Citation.] … The trial court's ‘discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered.’ [Citation.]” (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640, first and last bracketed insertions added.)
Appellants contend the trial court abused its discretion in admitting exhibits 1 and 2 into evidence. “‘Where inadmissible evidence is offered, the party who desires to raise the point of erroneous admission on appeal must object at the trial, specifically stating the grounds of his objection, and directing the objection to the particular evidence which he seeks to exclude. Obviously, failure to object at all waives the defect.’” (Estate of Silverstein (1984) 159 Cal.App.3d 221, 225; see also Evid. Code, § 353.)
Appellants did not object to admission of exhibit 1 at trial. The judge informed appellants they could object to admission of exhibit 1 or agree to it being in evidence. David Rashidian responded: “Your Honor, I agree.” Mahshid Rashidian said nothing. Because appellants failed to object to admission of exhibit 1 at trial, any objection to that exhibit has been waived.
Respondent offered exhibit 2 in evidence, describing it as its accounting system’s history of the Rashidians’ payments and invoices for 2003, 2004, 2005, and 2006 up to September 30. Respondent’s credit supervisor testified the document accurately reflected all of the debit and credit activity on the Rashidians’ account. David Rashidian objected to exhibit 2, stating that he did not know if it was the same as the accounting attached to the credit supervisor’s earlier declaration, or if respondent had made changes to it.
The court advised appellant that it was going to accept the exhibit in evidence, but that did not mean the court was going to agree with it. The court stated: “In other words, you can certainly show evidence that there are entries that are invalid. And you can certainly use a different – a different version of it that was printed earlier, if that’s more convenient to your usage later on, but at this point the Court will admit this as part of what the Court will consider. And, therefore it is in evidence.”
Appellants now argue exhibit 2 “should not have been admitted based upon the sound objections of the defendant.” They cite no authority for the validity of an objection based upon uncertainty as to whether an exhibit offered in evidence is the same as an exhibit attached to a declaration in earlier proceedings. Appellants argue that David Rashidian “conveyed to the court that he was not aware of the contents of the exhibits” and “[t]he trier of fact assured the defendant that the evidence would be admitted, but only on a basis of allowing the exhibits and not taking them into consideration.” This, appellants contend, led them to not object further. Lack of knowledge of the content of an exhibit is not ground for objection; the exhibit was available to appellants for their inspection. Further, the court clearly stated that it was admitting exhibit 2 in evidence “as part of what the Court will consider.” Thus, appellants’ argument is not supported by the record.
Appellants have not established that they made any valid objection to admission of exhibits 1 and 2 at trial or that the court abused its discretion in admitting those exhibits.
II. Denial of Appellants’ Request for Statement of Decision
“Where counsel makes a timely request for a statement of decision upon the trial of a question of fact by the court, that court's failure to prepare such a statement is reversible error.” (Social Service Union v. County of Monterey (1989) 208 Cal.App.3d 676, 681.) Appellants contend they requested a statement of decision, and that request was denied by the trial court as untimely. Appellants do not discuss the issue of the timeliness of the request.
Code of Civil Procedure section 632 provides, in pertinent part: “The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision.…” The trial was completed in one calendar day, October 16, 2006. Thus, the request for a statement of decision was required to be made “prior to the submission of the matter for decision.” At the time of trial, a cause was deemed submitted in a trial court on the earlier of:
“(1) the date the court orders the matter submitted; or
“(2) the date the final paper is required to be filed or the date argument is heard, whichever is later.” (Former Cal. Rules of Court, rule 825(a); see now, Cal. Rules of Court, rule 2.900(a).)
The trial court took the matter under submission at the end of the trial on October 16, 2006. Judgment was entered on October 23, 2006. Appellants filed a written request for a statement of decision on November 1, 2006. Appellants’ request was not made before the matter was submitted for decision, and it was therefore untimely. The trial court did not err in denying the untimely request for a statement of decision.
III. Substantial Evidence Supporting Judgment
Appellants argue that the evidence at trial demonstrated they never stopped making payments on their account with respondent, even up until the day of trial, so the evidence did not support a finding that they breached the contract. The contract in issue was a contract pursuant to which respondent permitted appellants to purchase chicken feed on credit. When parties enter into a contract to extend credit for the purchase of goods, the seller’s cause of action for breach of the contract does not accrue until expiration of the term of credit. (Tatum v. Ackerman (1905) 148 Cal. 357, 359.) “[W]here goods are sold on credit an action cannot ordinarily be maintained for the purchase price until the term of credit has expired. Until such time the obligation to pay has not matured, and there has been no breach of contract as to payment.” (Id. at p. 358.) In Tatum, where credit of 60 days was given, the action was held premature because it was filed within the 60-day period. (Id. at pp. 357-358.) In this case, the payment term of the contract was “net cash in 14 days.” The complaint was filed on June 7, 2005. The evidence at trial included evidence of unpaid amounts dating back to 2003. Substantial evidence supported the trial court’s finding that appellants breached the contract by failing to pay within the time required by the contract.
IV. Award of Attorney’s Fees
Appellants contend the trial court erroneously awarded attorney’s fees based on the contract, although the credit application was not a contract, as that term is used in Civil Code section 1717. They contend attorney’s fees should have been awarded based on a book account, rather than on a contract, and therefore they should have been limited in amount by Civil Code section 1717.5.
“‘On appeal this court reviews a determination of the legal basis for an award of attorney fees de novo as a question of law.’ [Citation.]” (Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 923.) Under Code of Civil Procedure section 1032, subdivision (4)(b), “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Recoverable costs include attorney’s fees, when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) Civil Code section 1717 provides, in pertinent part:
“In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” (Civ. Code, § 1717, subd. (a).)
The court found that the credit application was a contract that covered the transactions between the parties and authorized an award of attorney’s fees under Civil Code section 1717. Appellants have not identified any element of a contract absent from the credit application to support their argument that the credit application did not constitute a contract. The credit application provides the information was given “for the purpose of obtaining credit from” respondent, and appellants were “agreeing that your terms are net cash 14 days and a service charge of 1.3 [percent] per month will be added to all past due accounts.” Respondent extended credit to appellants based on the agreement in the application. Appellants do not deny the agreement also contained a provision for an award of attorney’s fees to the prevailing party if “any action is taken for collection on this account.” Consequently appellants have not demonstrated any error in the court’s determination that respondent, as the prevailing party, was entitled to attorney’s fees pursuant to the contract. “‘The burden of affirmatively demonstrating error is on the appellant.’ … The order of the lower court is ‘“presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.”’ [Citation.]” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) The trial court’s award of attorney’s fees is presumed correct, and appellants have not demonstrated otherwise.
Civil Code section 1717.5 provides, in part: “[I]n any action on a contract based on a book account, … which does not provide for attorney’s fees and costs, as provided in Section 1717 , the party who is determined to be the party prevailing on the contract shall be entitled to reasonable attorney’s fees … in addition to other costs.” (Civ. Code, § 1717.5, subd. (a), italics added.) Thus, section 1717.5 applies only in the absence of a contract containing an express provision for attorney’s fees. Since the court in this case found that the credit application was a contract and it expressly provided for an award of attorney’s fees, section 1717.5 did not apply and could not form the basis for an attorney fee award.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR: CORNELL, Acting P.J., KANE, J.