Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of San Diego County, Ct. No. 37-2007-00077395- CU-CL-CTL, Jeffrey B. Barton, Judge.
HUFFMAN, Acting P. J.
Defendant and appellant Kathryn E. M. Brown was sued by her former family law attorney, plaintiff and respondent Barbara J. Weiser, for unpaid legal fees arising out of a contested dissolution proceeding. Brown responded with her cross-complaint for damages for breach of contract, fraud, legal malpractice, and breach of fiduciary duty. The matter went to jury trial and the verdict awarded Weiser contract damages in the amount of $57,500, plus attorney fees and costs to be determined. Brown was not awarded any relief on her cross-complaint. Later, the court granted Weiser's motion for an award of $50,250 attorney fees, prejudgment interest from the date the action was filed in the amount of $10,743.84, and costs of suit.
Brown appeals the judgment, contending the trial court erred in several respects regarding Brown's requests for production of bank records and "bank statements" of trust accounts from her former attorney, Weiser. Specifically, she argues a previous stipulation on the matter was not properly enforced, her subpoena for such bank documents and statements was erroneously quashed shortly before trial, and the trial court should have granted her motion to dismiss Weiser's action, on the same grounds of nonproduction of required bank statements.
With respect to Brown's cross-complaint, she contends the court should not have granted a nonsuit on her breach of fiduciary duty theory, because she had undue difficulty in proving her case, since the bank statements she wanted were not produced in the manner that she deemed proper. Finally, she argues that the postjudgment award of attorney fees to Weiser, who was represented by an attorney in the case, amounts to unconstitutional discrimination against litigants, such as Brown, who act in propria persona. (See Trope v. Katz (1995) 11 Cal.4th 274, 277 (Trope) [contractual attorney fees statute construed to treat two classes of pro se litigants--those who are attorneys and those who are not--the same].)
As we will explain, the trial court made express and implied findings that the production of records by Weiser was adequate under the terms of the stipulation reached during the pleadings stage, or in the alternative, that the later requests by Brown shortly before trial were untimely. These findings are well supported by the record. Brown's substantive arguments against the judgment, underlying rulings, and attorney fees award have no merit. We affirm.
FACTUAL AND PROCEDURAL HISTORY
A. Background, Pleadings and Amendment
From 2000 through 2005, Weiser represented Brown in the underlying family law matter, which consisted of several bifurcated, hotly contested trial proceedings. The attorney-client retention agreement included an attorney fees clause. In 2005, Brown relieved Weiser and began to represent herself.
The underlying family law matter has been before this court on several occasions. (See Brown v. Brown (Dec. 12, 2006, D046086 [nonpub. opn.]), Brown v. Brown (Oct. 19, 2007, D046839 [nonpub. opn.]), and Brown v. Brown (April 2, 2008, D049322 [nonpub. opn.]).)
Weiser's complaint for unpaid legal fees, based on theories of breach of contract and common counts, was filed in October 2007. Brown noticed a demurrer for hearing in July 2008, and Weiser subsequently amended the complaint in May of 2008. The operative pleading, the first amended complaint (FAC), contains allegations that plaintiff Weiser "stipulates to provide an accounting of all Attorney/Client Trust Account Funds held on behalf of" Brown. Additionally, the FAC seeks an award of $8,220.15 outstanding costs paid and prejudgment interest.
At the case management conference held July 11, 2008, the court dealt with several technical problems that had arisen concerning Weiser's request to enter Brown's default, and Brown's efforts to file her answer and cross-complaint, and to pay the appropriate fees. Brown's copy of her case management statement included a request for dismissal of the FAC, based on demurrer grounds and claiming that not all bank statements had been provided, as promised in the FAC, for $225,333.76 held for Brown in Weiser's attorney-client trust account.
The July 11, 2008 minute order for the case management conference shows that the court received the stipulation of the parties that "plaintiff is willing to provide accounting information (bank records re: attorney/client) to the Defendant. It is stipulated and ordered that the documents in question will be provided to the Defendant within 14 days by the Plaintiff." (Italics added.) The court ordered that based on a then anticipated December trial date, motions and discovery were to be completed by November 12, 2008.
In late July 2008, Weiser supplied Brown with a ledger sheet entitled "mediation data sheet, " showing that on November 4, 2002, there was a $225,333.76 wire transfer deposited into Weiser's attorney-client trust account, with the beneficiary named as Brown, from Brown's refinancing proceedings for her home. Weiser included with the ledger sheet 105 pages of attachments, mainly consisting of her bills to Brown, copies of canceled checks, and letters memorializing expenditures to other litigation professionals on Brown's behalf, with copies sent to Brown.
This ledger sheet shows that $51,000 of the $225,333.76 proceeds was used the same date to open a mortgage payment bank account for Brown, and $85,000 was distributed to Brown. The next day, $42,888.96 was paid by Weiser to herself as legal fees. Other expenditures were listed from November 2002 through May 2004, and the ledger sheet concludes that as of May 2004, Brown owed $4,681.44 for legal services, and there was no money left in the trust account. Weiser supplied declarations from her paralegal about the preparation and forwarding of this document.
B. Pretrial and Trial Proceedings
At an ex parte hearing on October 23, 2008, the court again dealt with technical problems that had arisen concerning the entry of default, Brown's request for relief from default and to file her cross-complaint, and the discovery deadlines. Ultimately, the court vacated the default, deemed the answer filed, and ordered a trial date set for March 20, 2009, with new cutoff dates for discovery and motions set for February 13, 2009.
Eventually, Brown denied all allegations of the FAC, and filed her cross-complaint for breach of contract, conspiracy, constructive or intentional fraud, professional negligence, and breach of fiduciary duty. Among other things, Brown alleged that Weiser had undertaken special duties to her because Weiser knew Brown had a learning disability with regard to managing financial matters, and further, that the underlying dissolution case proceedings in which Weiser represented Brown were somehow corrupted, fixed or sham.
In January 2009, Brown served a subpoena for production of business records on Weiser and Union Bank, seeking February 2009 production of all bank statements of attorney-client accounts in the name of Brown, and canceled checks. Weiser objected that privileged material was being requested, including information about other clients, and she sought a protective order from the court. Brown was apparently arguing there were several kinds of bank account records and statements, including Weiser's attorney-client trust account in her own name, and also the separate mortgage banking account in Brown's name, created when $51,000 from the refinancing proceeds was deposited for mortgage payments.
Several discovery motions and hearings ensued, due to ongoing technical default and jury and filing fee problems in the case. At an ex parte hearing on those issues on February 24, 2009, the court told the parties that it was not productive to spin everyone's wheels on technical issues, when the eventual resolution of the case was the goal, so that it was important to move the case forward with trial on the merits, in its current procedural status. Brown brought to the court's attention that she was still seeking bank statements, according to the July 2008 order made by the court on the stipulation. Counsel for Weiser explained that there were two trust accounts, one a general client trust account, and another a specific trust account opened just for Brown's mortgage refinancing proceeds. He thought Brown had received all of the bank statements for her own separate mortgage bank account, but for the general client trust account, there were attorney-client privilege issues, so that no bank statements were being provided, but instead, an accounting of her money that went in and out (the ledger sheet). The court inquired why redacted statements had not been provided, and counsel said he would look into it. Ultimately, a trial readiness conference was set for March 13, 2009.
At the March 13, 2009 hearing, the court reviewed the joint trial readiness report and signed and filed the advance trial review order, and set the matter for further proceedings.
Next, at ex parte hearings on March 19, 2009 and March 20, 2009, the parties were still disputing the following items, among others: Whether Weiser had adequately produced the bank records and/or bank statements, and whether Weiser had adequately amended the FAC in the manner that Brown wanted her to accomplish, and whether Weiser was entitled to a protective order and to quash the subpoena. Also, Brown was pursuing an ex parte motion to dismiss the FAC at the joint trial readiness review hearing, based on the alleged failure to amend the FAC. Weiser opposed the motion to dismiss, stating that she had complied with the stipulated order by July 25, 2008, by forwarding the accounting of trust funds received during her representation, in the form of the ledger sheet that was a summary of income and expenses from the refinancing, as well as backup documentation for each transaction. Weiser provided declarations by her paralegal, Sheila Grela, stating that she had prepared the accounting summary sheet, and had sent it and supporting documents to Brown July 25, 2008.
At those March hearings, the court continued to work diligently with Weiser's counsel and Brown to prepare the case for trial, which was now set for March 23, 2009. On March 19, the court discussed with Weiser's counsel the extent of her compliance with the previous order to produce bank records, and he responded that she had produced ledgers and 50 or 60 other documents, which was all that he believed was required under the stipulation. Counsel explained, "what we have not provided are the bank statements because the bank statements would not show a balance on Brown's deposits. They would show a total balance in a trust account." Weiser's counsel continued to distinguish between Weiser's attorney-client trust accounts (more than one client), and the mortgage banking account in Brown's name, in which she had deposited $51,000 funds out of the total received from the refinancing of her house.
After further discussion at the March 19 hearing, about whether the alleged lack of production of records had anything to do with any required amendment of the FAC, the trial court told Brown that providing documents was not the same as amending a complaint. The court then pointed out that trial was set for the next day, the subpoena proceedings would postdate the discovery cut off, and it was important to reach the merits in these proceedings. In other words, the court ruled that the bank did not have to produce the bank statements or records, because it was now too late to deal with discovery issues a day or two before trial, and it was past the point of the court being able to iron out the discovery dispute. The court declined to rule upon Brown's motion to dismiss.
However, the next day, at trial call, the court notified the parties that it would include in the joint trial notebook's statement of issues that Brown was still seeking to dismiss the FAC, for alleged failure to produce bank statements, as well as her other relief.
The matter went to jury trial on March 23, 2009, with Weiser represented by counsel and Brown representing herself. Each testified about her respective understanding of their transactions and the discovery disputes, as will be briefly summarized in the discussion portion of this opinion. Among other arguments, Weiser sought a ruling that Brown should be judicially estopped from denying that attorney fees were owed to Weiser, since Brown had previously sought recovery of such fees from her ex-husband, but that motion for judicial estoppel was denied.
Among other rulings, the trial court granted nonsuit on the cross-complaint's professional negligence claim, due to the lack of expert testimony to analyze the transactions between the parties. With respect to Brown's breach of fiduciary duty claim, the court said that since it was based on allegations of incomplete production of records, and the court had previously denied Brown's eve of trial request for such records, she should not now be able to further pursue that theory, for consistency.
Ultimately, the jury verdict awarded Weiser damages in the amount of $57,500 on her collection action, and found no breach of the attorney-client contract by Weiser. As to Brown's remaining theories in her cross-complaint, the jury found that she had not met her burden on fraud or breach of contract, and was not entitled to recover anything.
C. Judgment; Attorney Fees Motion; Record
Judgment was entered on the verdict, stating that Weiser was entitled to recover damages, as well as attorney fees and costs "to be determined." Subsequently, Weiser filed a motion for contractual attorney fees and prejudgment interest, to which Brown filed opposition. The matter was set for hearing August 21, 2009.
At the hearing, the court ruled that Weiser was entitled to recover, in part, the attorney fees and prejudgment interest that she sought, with the exception of certain attorney time that was not actually "incurred." The court carefully analyzed the billings and reduced some of the fees sought and restricted the prejudgment interest to the date after the complaint was filed. The court expressly rejected Brown's argument that Civil Code section 1717, the contractual attorney fees statute, was unconstitutional (as unduly penalizing parties who act in propria persona). (Trope, supra, 11 Cal.4th 274.)
The clerk was ordered to serve a copy of the interlineated judgment, to include the postjudgment contractual attorney fees award of $50,250 and prejudgment interest of $10,743.84. Brown filed a timely notice of appeal from that judgment on the verdict. No separate notice of appeal was filed as to the attorney fees order.
In addition to the clerk's transcript and reporter's transcript of the trial proceedings, Brown has lodged numerous trial exhibits, including exhibit 93, the "bank records" produced by Weiser (ledger sheet, billing records and copies of canceled checks).
Additionally, the record has been augmented to include various demurrer and pleading matters, default forms, and the moving, opposing, and reply papers in Weiser's motion for attorney fees and prejudgment interest. The augmentation also includes the attorney fees order after hearing and the transcript of the hearing.
DISCUSSION
I
ACCOUNTING INFORMATION ("BANK STATEMENTS") ARGUMENTS
Brown first claims the judgment is invalid, because the court should have found that (1) the stipulation for production of "accounting information (bank records regarding attorney/client)" was not properly enforced, (2) her subpoena for such bank records and statements was erroneously quashed shortly before trial, and (3) the trial court should have granted her motion to dismiss based on the lack of production, which she characterizes as Weiser's failure to amend the FAC. Additionally, Brown argues the order granting nonsuit on her cross-complaint's claim for breach of fiduciary duty was erroneous, due to her inability to provide additional evidence in her favor, again based on the bank record or "bank statement" discovery problems. In part II, post, we will address Brown's contentions of error in the award of attorney fees.
In analyzing each of these claims, we will outline and apply the appropriate standard of review to the record provided. First, however, we set forth basic guidelines for review. "In propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the [procedural and court] rules. [Citations.]" (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)
As the appellant, Brown has the burden of providing an adequate record and of showing that error occurred and that it was prejudicial. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 (Aguilar).) Absent an adequate record to demonstrate error, a reviewing court presumes the judgment or order are supported by the evidence. (In re Angel L. (2008) 159 Cal.App.4th 1127, 1136-1137.)
A. Enforcement of Stipulation; Definitional Issues
Brown seeks to have this court conduct de novo review of the language of the stipulation and/or the undisputed facts in the record. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-801 [pure questions of law are subject to independent de novo review on appeal and accordingly no deference is owed to the trial court's ruling or reasoning].) It is not possible, however, to interpret the language of this stipulation in a vacuum, to determine its scope. Rather, Brown's arguments are essentially challenging the trial court's discretionary determinations throughout the pretrial hearings, about the extent of Weiser's compliance with the stipulation to provide full and complete "accounting information (bank records regarding attorney/client)." She further is challenging the court's case management determination that on the eve of trial, it was too late for the parties and the court to pursue the matter further, because of the greater interest of resolving the matter on the merits through testimony at trial.
Accordingly, the main questions here are whether the evidentiary rulings by the trial court amounted to any abuses of discretion, under all of the relevant circumstances. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.) Reviewing courts examine decisions about admissibility, particularly those turning upon the relevance of the evidence in question, for abuse of discretion. (Ibid.) The governing standard is set forth in Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357, holding that a party must be given "a full and fair opportunity" to present all competent, relevant, and material evidence bearing upon any issue properly presented for determination. (Ibid.)
Here, the trial court was well aware of the heated discovery disputes and had been continuously dealing with them from July 2008 through the trial preparation time, in March 2009. Throughout numerous hearings, the court continued to inquire about the nature of the production that had been made and to evaluate it for adequacy. Brown seems to argue on appeal that since she was originally requesting bank records and bank statements, the court must have meant to grant her entire request, and thus to include bank statements in the stipulated production that was required. However, the record does not support her assertion, because the actual order was to produce "accounting information (bank records regarding attorney/client)." The reporter's transcript shows that although the court originally told Brown that her request for bank statements sounded logical, after further argument, the actual order was for production of the requested bank and accounting records showing the handling of Brown's trust funds. The court did not make any order affecting anyone else's trust funds.
On this point, we agree with Weiser's statements in her brief, quoted as follows: "The difference between an 'accounting, ' a 'bank record, ' and a 'bank statement' form the basis of the parties' disagreements in this appeal. The words have sometimes been used interchangeably. Weiser contends Brown received an 'accounting, ' which included 'bank records' in the form of cancelled checks. Brown contends she is also entitled to 'bank statements, ' but what those statements might show which can add to the accounting is never described."
Moreover, throughout the trial preparation stage, Brown was presenting her arguments in novel and unsubstantiated ways, such as seeking to amend the amended pleadings, or seeking ex parte dismissal of the case, rather than earlier, timely pursuit of alternative discovery methods. She has not explained why she did not earlier seek to depose Weiser, serve interrogatories, or seek expert accountant assistance or formal production of documents. As a threshold matter, the record does not show that the manner in which the trial court handled these definitional problems, about what bank records and accounting materials were being sought, amounted to an incorrect interpretation of the stipulation, nor any abuse of discretion.
B. Pretrial Quashing of Subpoena
Next, Brown argues that the trial court erred or abused its discretion in quashing the subpoena for attorney-client trust account statements. She contends that Weiser should have been estopped from seeking relief from the subpoena, due to Weiser's own, earlier, alleged failure to comply with the stipulation for production of all accounting information and attorney-client bank records. Brown relies on Evidence Code section 623, which codifies the doctrine of equitable estoppel, as follows: "Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it." (See Feduniak v. California Coastal Commission (2007) 148 Cal.App.4th 1346, 1359.)
Before the court ruled that the subpoena was untimely and overbroad, it had previously continually attempted to allow Brown to refine her requests to the point where the dispute could be resolved, without creating any privilege problems with Weiser's client trust accounts. The court had continued the trial and discovery cutoff dates (December to March). However, as the new March 20 trial date approached, the time for resolving discovery disputes was running out. The court made numerous efforts to accommodate Brown's requests for further production, but the court did not abuse its discretion when it evidently made a judgment call, the day before trial, that substantial compliance with the stipulation had taken place, or apparently in the alternative, a determination that further discovery efforts would be unnecessary or futile. For example, Brown never presented any workable suggestions for dealing with the privilege problems.
To the extent that the trial court continued to accept Brown's arguments that there might still be missing information, it adequately dealt with that problem a month before trial, when it told the parties that if that should actually turn out to be the case, that matter would come back to haunt the plaintiff (Weiser) at trial, after the appropriate testimony was heard; at that time, appropriate sanctions could be ordered, if necessary. This was a reasonable approach to take, under all the circumstances.
We next examine the record to determine if Brown's arguments are supported that production of "bank statements" was essential to the conduct of this trial. In doing so, we do not agree with Brown's apparent approach, in her briefing, that a retrial on appeal is appropriate and that we may assess the evidence anew. Rather, the proper role of the reviewing court is to take the record as presented to it and, utilizing the appropriate standards, examine the conclusions drawn by the trial court in support of the challenged rulings. (Code Civ. Proc., §§ 906, 909; all further statutory references are to this code unless noted.)
On this point, we note that Brown does not directly challenge the sufficiency of the evidence to support the verdicts on either the complaint or the cross-complaint. Instead, she is making procedural arguments that she did not get a fair trial, through no fault of her own. In particular, she is alleging that certain payments she made were not properly credited to her by Weiser, or that litigation costs were overcharged, or that some of the mortgage bank account funds ($51,000 originally) must have been misappropriated by Weiser.
Brown has not substantiated her claims that essential information was withheld from her, nor that the production provided was inadequate. It is not enough for her to refer to exhibit 93 as a disorganized stack of invoices and canceled checks, because as a whole, combined with the testimony of Weiser and the explanations of her counsel, that material can be deemed adequate to satisfy the stipulated requirements, to show the disposition of the client trust funds through accounting information. The exhibit 93 ledger sheet, provided in July 2008, shows $85,000 was paid to Brown, $42,888.96 was paid to Weiser for fees incurred, and payments were also made for $500 sanctions required to be paid in the underlying dissolution action, and $10,000 fees to counsel for the minors involved in the dissolution proceedings. Payments were made to a CPA, court reporters, computer consultants, and a legal service. The canceled checks provided in the exhibit amount to over $200,000, and the billing records substantiate that there were other expenses and fees paid.
At the March 19 hearing on Weiser's protective order request, her counsel stated that the problem with providing additional trust account "bank statements" was that they would show a total balance regarding other clients, and instead, Weiser had provided invoices and canceled checks, which she believed had satisfied the bank record requirement. Brown merely responded that amendment of the complaint was still necessary, but the court rejected that argument and stated that the protective order was granted so that the bank did not need to produce the trust account bank records. The court then continued to prepare the case for trial the next week.
With respect to whether any separate "bank statements" for the mortgage bank account were required by the stipulation, it is undisputed that the mortgage banking account was created in 2002 with $51,000 of Brown's refinancing proceeds. Brown seeks to show that Weiser must have misappropriated some amount out of the refinancing proceeds. However, Brown's arguments that information about those funds was concealed from her are not supported. On appeal, she points to certain trial exhibits (Nos. 164 & 165), to show that in 2003, the mortgage bank account had insufficient funds to automatically make the payments. At the request of Weiser to the mortgage fund, a different payment arrangement was made. The mortgage bank had charged certain loan fees and other costs, which somewhat depleted that account, and Brown had deposited other money in it when the insufficient funds notice was received. Brown then started making the payments on her own.
At trial, Weiser testified that Brown had not asked for a separate accounting on the mortgage account, apparently because Brown was already receiving monthly statements from the mortgage company, and knew the mortgage was being paid. Eventually, all of the funds in the mortgage account were used up on the debt, except for $5,000, which Weiser refunded to Brown when the account was closed. Although Brown denied that she received such mortgage account information, the jury did not have to believe her.
Weiser also testified at trial that the attorney billing computer program from her former firm, in August and September 2001, had mislabeled a $14,218.06 entry as a payment by Brown, whereas it was actually an amount due from a previous invoice, and that later bills had corrected the error. Thus, the $14,218.06 was not properly characterized as a missing credit due to Brown, but instead was an amount due. Also, some billing errors on costs were made, based on the timing of the bills sent and the timing of when the money in the trust account ran out, but the errors were corrected.
Weiser testified that during the time she represented Brown, Brown had told her she did not have the money to pay the attorney bills and she was very stressed by the custody trial. Accordingly, Weiser agreed to defer the billing for some period of time, but Weiser never agreed to work for free. At one point, Weiser was sued for unpaid fees from a consultant in the dissolution proceedings that Weiser had retained on Brown's behalf, after Brown quit paying any fees.
At trial, Brown testified that she had a learning disability and had always had difficulty understanding the financial transactions in the dissolution. Brown believed that her dissolution case had been fixed, so that Weiser, her attorney, should not be paid anything further. However, the jury and trial court could reasonably have concluded from all of the available evidence that Brown's suggested inferences that Weiser had misappropriated her funds or otherwise acted improperly were unreasonable.
Brown continues to argue the same points on appeal, but it is not appropriate for us to make new factual determinations at this time, since the record shows the trial proceedings gave her adequate opportunity to present her case. Nor has she shown the trial court erred or abused its discretion in expressly or impliedly concluding that the package of accounting information that Weiser prepared and produced to Brown, including the ledger sheet and supporting documents such as billings and canceled checks, had given her an adequate accounting of the $225,333.76 and the overall disposition of the refinancing proceeds. Brown never showed to the court that production of the "bank statements" that she sought would not violate privacy interests of other of Weiser's clients, nor that those bank statements would materially add information otherwise lacking.
In ordering that the case proceed to trial on the merits, the court implicitly rejected Brown's efforts to prolong the discovery disputes, because those efforts were without adequate foundation for resolving any meaningful "issue properly presented for determination." (Elkins v. Superior Court, supra, 41 Cal.4th 1337, 1357.) The jury rejected Brown's cross-complaint's claims of fraud, conspiracy and breach of contract, and ruled in favor of Weiser. Brown has not shown how the presentation of the bank statements would have made any difference in those conclusions.
Moreover, we reject outright Brown's unsupported allegations against the integrity of the trial judge in this matter. The record shows that in her closing arguments, she told the jury that she had had a fair trial, and had had a good time in court. The reporter's transcript shows that the trial court consistently treated her with respect and patience, while at all times endeavoring to reach a fair resolution on the merits.
Under all the relevant circumstances, we find no abuse of discretion in the manner in which the trial court handled the numerous and challenging evidentiary problems presented to it. Rather, the record shows that the trial court was at all times using the proper procedures in striving to reach a just disposition on the merits, and there was no reversible error. (§ 906.)
C. Motion to Dismiss
Brown further asserts the trial court erred as a matter of law in misconstruing the requirements of the statutes that allow dismissal of a complaint when there has been a failure to amend according to leave of court. (§ 581, subd. (f) ["The court may dismiss the complaint... when: [¶]... [¶] (2) [A]fter a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal [unless section 597, special defenses, applies"]; see § 436 ["The court may, upon a motion..., or at any time in its discretion, and upon terms it deems proper: [¶]... [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court"].)
As we have already explained, Brown's arguments about the amendment of the FAC are based on a false premise (i.e., that the stipulation required such). Neither the statement in the FAC that such records would be provided, nor the stipulation at the hearing, appeared to authorize any further amendment of the pleading, for which leave of court would be required. The earlier demurrer proceedings were resolved and were no longer material to the discovery dispute, as the trial court told her at the case management proceedings, when it was endeavoring to move the case to trial. Moreover, the court alternatively, impliedly found a substantial degree of compliance was achieved with the stipulation for production of records, or that in any event, trial would complete the picture. It was not error to deny the motion to dismiss.
D. Grant of Nonsuit
In challenging the grant of nonsuit on her breach of fiduciary duty claim, Brown contends that if the evidence is viewed in the light most favorable to her position, the trial court should have realized she was unable to prove her claim, solely because of the previous erroneous evidentiary rulings. To review that variation of her argument, we use the standard set forth in Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839: "Although a judgment of nonsuit must not be reversed if plaintiff's proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is 'some substance to plaintiff's evidence upon which reasonable minds could differ....' "
To the extent that Brown failed to follow the proper procedures to obtain further production of bank records, in a redacted or other format, she cannot blame the court, but rather herself. (See Wantuch v. Davis, supra, 32 Cal.App.4th 786, 795 [regarding the obligations of a pro per litigant].) For the reasons outlined above, she has not supported her appellate claims that the accounting information (bank records regarding attorney/client) that she received was sham or inconsistent, or that she was somehow prevented from producing any substantial evidence, upon which reasonable minds could differ, to support her claims.
We also take note that Brown's cross-complaint alleged that her learning disabilities with regard to financial matters imposed a special duty upon Weiser, as her attorney, to protect her. By the same token, Brown must have known she had a duty to protect her own interests by obtaining professional advice from a financial expert, if she wished to prove her breach of fiduciary duty claim, to substantiate her allegations. We conclude that Brown cannot show, as a matter of law, that the record supports any claim of error in the granting of the nonsuit. Error is not presumed on appeal. Brown had the burden of proving error, and she has not done so. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)
II
ATTORNEY FEES APPLICATION
As a threshold matter, Weiser claims that Brown's failure to file a separate notice of appeal from the posttrial attorney fees order has deprived this court of jurisdiction to review that ruling. Based on the manner in which this judgment was issued, allowing the later proceedings for attorney fee entitlement to be litigated, and the judgment to be interlineated when those proceedings were concluded, we find that jurisdiction exists to review the attorney fees portion of the judgment. (§ 904.1, subd. (a)(1), (2).) Under Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 997-998, the filing of a notice of appeal regarding a judgment that awarded entitlement to attorney fees and costs will encompass a later order that fixes the amounts of the award. (Cal. Rules of Court, rules 8.100(a)(2), 8.104(d)(2), (3), (e); § 902.)
On the merits, we note that Brown seeks to appeal "the unconstitutionality of the laws regarding the fees in the May 4, 2009 judgment not the amount of those fees." In other words, she is challenging the applicability or validity of Civil Code section 1717, allowing the attorney fees clause in her retention agreement to have effect after litigation.
The Supreme Court has addressed this very statutory and equal protection issue in Trope, supra, 11 Cal.4th 274, 277: "We shall conclude that... an attorney litigant [in pro se] cannot recover such fees under [Civ. Code] section 1717.... Were we to construe the statute otherwise, we would in effect create two separate classes of pro se litigants--those who are attorneys and those who are not--and grant different rights and remedies to each. We find no support for such disparate treatment either in the language of [Civ. Code] section 1717, in the legislative policy underlying it, or in fairness and logic."
Brown's claims of denial of equal protection under law, as a pro per litigant who is required to pay attorney fees under a contractual attorney fees clause to the prevailing party in an action on that contract, must fail, because the focus is not properly placed upon her pro per status, but rather upon the effect of the contract and its attorney fees clause, which she entered into freely and voluntarily. By statute, that clause has reciprocal effect, and will therefore let the chips fall where they may, when the prevailing party is determined. (Civ. Code, § 1717.) In this case, Brown lost, and it would not have made any difference whether she was represented by counsel at the time, or not, for purposes of determining the prevailing party's attorney fee entitlement. The statute is not unconstitutional.
DISPOSITION
The judgment and its incorporated attorney fees order are affirmed. Costs on appeal are awarded to respondent.
WE CONCUR: NARES, J., HALLER, J.