Meyer v. Thuesen CA1.3

Filed 12/20/13 Meyer v. Thuesen CA1.3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

LUCKY MEYER,
Defendant and Appellant,
A136848
v.
VICTOR C. THUESEN, (Napa County
Super. Ct. No. 26-57184)
Plaintiff and Respondent.

Lorene “Lucky” Meyer (appellant), in pro per, appeals from a judgment ordering
her to pay $76,369.05 in attorney fees and costs to her former attorney, Victor C.
Thuesen (respondent). She contends: (1) the fee agreement she and respondent entered
into was unconscionable or voidable; (2) the trial court erred in denying her motion for a
continuance of the trial; (3) the trial court made certain discovery errors; (4) respondent
committed fraud upon the court. We reject the contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, appellant, who had been demoted from her position with her employer,
California Department of Mental Health (DMH), was reinstated after successfully
challenging that demotion before the California State Personnel Board (the Board).
DMH filed a petition for a writ of mandate seeking to set aside the Board’s decision, and
in October 2009, appellant retained respondent as her attorney to defend against the
petition. Appellant, represented by respondent, prevailed in the action, and DMH
appealed. In early 2010, appellant entered into a second legal services agreement (the

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Agreement) with respondent under which respondent agreed to represent appellant on the
appeal.
By the terms of the Agreement, respondent was to receive compensation for
representing appellant by receiving a percentage of any recovery if the Court of Appeal
affirmed the trial court’s judgment. The Agreement permitted respondent to withdraw as
appellant’s attorney if, among other things, appellant’s “conduct renders it unreasonably
difficult for the attorney to carry out the employment effectively.” The Agreement
provided that in the event of such a withdrawal, “client will be obligated to pay Attorney
out of the recovery a reasonable attorney’s fee for all services provided, and to reimburse
Attorney out of the recovery for all costs advanced, before the withdrawal.”
On June 25, 2010, respondent filed appellant’s opening brief with this court. On
or about September 17, 2010, after the case was fully briefed, respondent filed a motion
requesting to withdraw as appellant’s appellate attorney. Appellant opposed the motion,
and we granted the request on September 28, 2010. After oral argument on the matter,
we issued an opinion affirming the trial court’s judgment. Thereafter, in a letter dated
March 30, 2011, DMH informed appellant that it owed her $161,712.88 for the salary
difference between her original position and the position to which she was demoted,
overtime of $79,974.72, and interest, which was $26,913.89 as of March 31, 2011.
On September 22, 2011, respondent filed a complaint against appellant seeking
attorney fees and costs from appellant. He alleged he performed the duties for which he
was retained and had succeeded in defeating DMH’s writ petition and appeal. He alleged
that the reasonable value of the services performed by him was $78,359.20 and that
appellant had told him “she has no intention of paying for legal services to [respondent]
from any compensation that she receives as a result of [his] efforts on her behalf.”
On August 7, 2012, the matter went to trial, and both parties testified and offered
various exhibits into evidence. Thereafter, the trial court issued a tentative ruling on
September 17, 2012. It noted, as a “threshold matter,” that appellant, by prior court
order, had been “deemed to have admitted . . . Requests for Admissions . . . that
[respondent] propounded to [appellant] on April 23, 2012.” The court found that those

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admissions addressed the ultimate issues in the case and supported a ruling in
respondent’s favor. The court further found, “Even if the admissions are not considered,
however, there was ample evidence at trial that [respondent] fully and competently
performed all of the services that he was retained to perform.” The court noted that
respondent withdrew as appellant’s attorney only after completing “virtually all of the
legal work” that needed to be performed. It stated, “The only service he did not provide
was appearing at oral argument before the Court of Appeal. The testimony was
uncontradicted . . . There is no credible reason to believe that [appellant’s] appearance in
pro per at oral argument changed the outcome in her favor. It is reasonable to conclude
that [respondent’s] significant efforts resulted in the favorable decision.” The court
stated it had reviewed respondent’s time log and believed the time he spent on the case
and the rates were reasonable.
The court further found that appellant’s defenses lacked merit and that she had
“received exactly what she retained [respondent] to do: an order for reinstatement in her
job and back pay.” The court noted that although appellant was “very vague and
evasive” about how much DMH had paid her, she did state she had received “$100,000
and change” as of June 2012 and believed she was not going to receive “even $100,000
more,” or that she was going to receive “more than the $268,601.49 in payments reflected
in the March 30, 2011, letter from [DMH].” The court found that appellant was going to
receive at least $268,601.49 in payments, “more than enough to compensate [respondent]
the reasonable value of his services.” Noting that respondent would have been entitled to
$107,000—40 percent of appellant’s recovery under the Agreement—if he had not
withdrawn, the court found, “Given that the only services left to be performed was an
appearance at oral argument, $75,240 is well within the reasonable recovery
contemplated by the Agreement.” The trial court found that appellant owed respondent a
total of $76,369.05 in fees and costs, and entered judgment in favor of respondent and
against appellant in that amount.

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 DISCUSSION
Validity of Agreement
Appellant contends the Agreement is “unconscionable,” is “voidable,” and
“should be voided.” We reject the contention.
Unconscionability has both a “procedural” and a “substantive” element, with the
former focusing on “oppression” or “surprise” due to unequal bargaining power, and the
latter on “overly harsh” or “one-sided” results. (Armendariz v. Foundation Health
Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.) Procedural unconscionability
“focuses on the manner in which the contract was negotiated and the circumstances of the
parties,” while “[s]ubstantive unconscionability focuses on the actual terms of the
agreement.” (American Software, Inc. v. Ali (1996) 46 Cal.App.4th 1386, 1390.)
Procedural and substantive unconscionability must both be present in order for a court to
exercise its discretion to refuse to enforce a contract or clause, although they need not be
present in the same degree. (Armendariz v. Foundation Health Psychcare Services, Inc.,
supra, 24 Cal.4th at p. 114.) Courts use a “sliding scale” approach, such that “the more
substantively oppressive the contract term, the less evidence of procedural
unconscionability is required to come to the conclusion that the term is unenforceable,
and vice versa.” (Ibid.)
Appellant’s argument is not entirely clear, but it appears she is arguing that there
was procedural unconscionability because respondent, an experienced employment
attorney, had “a great deal more bargaining power and a tremendous advantage” over her.
She states that at the time she entered into the Agreement, she “was in a very vulnerable
and emotional state after being wrongfully demoted twice and having to litigate for close
to a decade to clear my name.” She states that she asked respondent for “information
about fees, awards, or information about the specific questions I asked,” but that
respondent did not adequately answer her questions. As for substantive
unconscionability, she asserts the Agreement contained “unclear and hidden terms” that
she did not “notice and understand.” For example, she states she did not understand that
attorney fees are negotiable, or that she had the right to have another attorney “examine

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the [Agreement] for fairness.” She states she did not fully understand how the
contingency fee system worked.
Appellant’s contention fails because she has not shown that respondent’s superior
knowledge of the law or her lack of understanding about some of the terms of the
Agreement rendered the Agreement unconscionable or voidable. She does not explain
how respondent took advantage of the situation, or how any of the terms of the
Agreement—now that she understands what they mean—are unfair or one-sided. She
does not explain what she would have done if she had known that attorney fees were
negotiable, or what she might have learned from another attorney if she had retained one
to “examine the [Agreement] for fairness.” Because appellant has cited to nothing, either
in the record or in the law, to show the Agreement was unconscionable or voidable, her
contention fails.
Motion for continuance
Appellant contends the trial court abused its discretion in denying her request to
continue the trial. We disagree.
The “decision to grant or deny a continuance is committed to the sound discretion
of the trial court.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984; Cal. Rules of
Court, rule 3.1332(d).) In making such a decision, the court may be called upon to make
a factual determination as to whether to give credence to the reasons for the requested
continuance. With regard to this factual determination, “the power of an appellate court
begins and ends with the determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, which will support the
determination. . . .” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874, italics
omitted.) “ ‘ “We have no power to judge of the effect or value of the evidence, to weigh
the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the
evidence or in the reasonable inferences that may be drawn therefrom.” ’ ” (Johnson v.
Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622–623.)
Here, appellant made an oral motion for a continuance on the day the matter was
set for trial. She gave various reasons for the request, stating she has had a heart attack at

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some unspecified point in the past, is “very tired” and “very sick,” had not received
certain discovery from respondent, had not been able to “get through the pile of papers”
that respondent had filed, and had retained an attorney who was unavailable to represent
her that day. The trial court asked for the name of the attorney and asked appellant if she
had signed a retainer agreement with the attorney. Appellant provided the attorney’s
name and said she had not signed a retainer agreement. She stated she had not met the
attorney in person but had spoken to him on the telephone, and that he had told her that a
30 day continuance “would probably be sufficient.” The trial court denied appellant’s
request for a continuance, stating, “It doesn’t sound to me like you actually have
representation. Talked to an attorney about the possibility of him representing you, but
today is the trial, and so I don’t find good cause to continue the trial.”
In light of appellant’s vague representations regarding her health condition and
certain discovery issues, and her failure to show she had retained an attorney to represent
her at trial, we conclude the trial court did not abuse its discretion in denying the request
for a continuance.
Discovery Motions
Appellant challenges a July 3, 2012 order deeming appellant to have admitted
respondent’s Request for Admission, and an August 6, 2012 order denying her motion to
compel certain discovery responses. The record shows as to the July 3, 2012 order that
the trial court deemed appellant to have admitted respondent’s Request for Admissions
because she failed to timely respond to the requests. The record shows as to the August
6, 2012 order that the trial court denied appellant’s motion because it was untimely filed.
Appellant does not dispute that she failed to timely respond to the Request for
Admissions, and does not dispute that her motion to compel was untimely filed. She
complains that she is “not an attorney skilled in the law” and was “occupied for quite
some time working on [her] reply to [respondent’s] extensive discovery requests and with
the essentials of daily living.” However, she cites no authority in support of her position
that the trial court should have excused her untimeliness for those reasons. She has not

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shown an abuse of discretion. (See City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887,
900 [discovery rulings are reviewed for abuse of discretion].)
Fraud
Appellant contends the judgment must be reversed because respondent committed
“fraud” upon the court “to influence and prejudice the judgment.” She points to several
portions of his testimony that were questionable or inaccurate. She states, for example,
that he made statements to the court insinuating that he had made court appearances on
her behalf on multiple occasions, even though he had only done so “once.” She asserts
there was evidence suggesting that a different attorney who shares office space with
respondent prepared the briefs for appellant, even though respondent stated he did. These
arguments essentially go to the issue of credibility, i.e., whether respondent was telling
the truth when he testified regarding these matters, and whether the court believed him.
It is well settled that it is within the exclusive province of the trier of fact to determine
credibility. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 823.) The trial court
apparently found respondent credible, and we find no reason to disturb that
determination.
Remaining Contentions
Appellant raises various other issues, which we decline to address. She asserts, for
example, for the first time on appeal, and without citation to the record or to any
authority, that the trial court violated her constitutional rights by allowing respondent’s
son, who is also an attorney, to appear on behalf of respondent. She also asserts the trial
court “held a double standard when it directed respondent to untimely file his motion for
judgment and other papers,” but does not indicate where in the record such an order or
filing can be found. She asserts for the first time on appeal that respondent’s action was
barred by the statute of limitations, but fails to indicate what statute applies to his
complaint. She contends the trial court “gross[ly]” misunderstood the terms of a
settlement agreement into which she entered with DMH, but fails to explain how that is
relevant to the court’s order for attorney fees and costs. She asserts the trial court erred in

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denying her request to call a certain witness at trial, but fails to explain what the
relevance of that witness’s testimony was to the issues set for trial.
“An appellate court is not required to consider alleged errors where the appellant
merely complains of them without pertinent argument.” (Strutt v. Ontario Sav. & Loan
Assn. (1972) 28 Cal.App.3d 866, 873–874.) “ ‘The reviewing court is not required to
make an independent, unassisted study of the record in search of error or grounds to
support the judgment. It is entitled to the assistance of counsel. Accordingly every brief
should contain a legal argument with citation of authorities on the points made. If none is
furnished on a particular point, the court may treat it as waived, and pass it without
consideration.’ [Citation.] [¶] It is the duty of appellants’ counsel, not of the courts, ‘by
argument and the citation of authorities to show that the claimed error exists.’
[Citation.]” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.) We decline to
address the above contentions because appellant has not cited to the record or to any
relevant legal authority in support of them, and has not provided the arguments or
analysis necessary for us to conduct an adequate review.1
DISPOSITION
The judgment is affirmed. Respondent Victor C. Thuesen shall recover his costs
on appeal.

1
We deny appellant’s motions to augment filed December 24, 2012 and
January 10, 2013, on the ground that she has not shown that the materials are relevant to
the issues before us.

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 _________________________
McGuiness, P.J.

We concur:

_________________________
Siggins, J.

_________________________
Jenkins, J.

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