Filed 4/30/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

DAVID J. DUCHROW,
Plaintiff and Respondent,

v.
ERNESTINE FORREST,
Defendant and Appellant. B233736
(Los Angeles County Super. Ct. No. BC402090)

APPEAL from a judgment of the Superior Court of Los Angeles County, Alan S. Rosenfield, Judge. Reversed with directions. Ernestine Forrest, in pro. pe r., for Defendant and Appellant.
Law Offices of David J. Duchrow a nd David J. Duchrow for Plaintiff and Respondent.

___________________________________________2 Plaintiff, an attorney, repr esented a client, also an a ttorney, in a pr ior civil suit against the client’s employer for discrimi nation, harassment, re taliation, wrongful termination, and other related claims. By mo tion, plaintiff withdrew from the case at the beginning of trial. The client could not find another attorney to represent her, and the trial
court dismissed the suit. In November 2008, plaintiff filed the pres ent action, alleging that the client had breached the parties’ retainer agreement. Th e complaint alleged that , under paragraph 5 of the agreement, plaintiff was en titled to a “combined hourly and contingency based rate,” and under paragraph 7, he was entitled to costs. The comp laint alleged that plaintiff “ha[d] been damaged in the sum of $44,082.22, plus interest.” On March 8, 2011, the case was called for trial by jury. On March 9, 10, and 11, 2011, plaintiff presented evidence and then re sted. On March 11, he moved to amend the complaint to conform to proof, seeking $312,26 0 in attorney fees and $16,851.95 in costs, for a total of $329,111.95. The amendment was based on a ne w theory of liability: Under paragraph 9 of the retainer agreement—wh ich was not mentione d in the complaint— plaintiff was entitled to recover for “all time spent” on the prior case because he had withdrawn for good cause. The client opposed the amendment. The trial court granted the motion to amend. The jury awarded plaintiff $140,056.95. On appeal, the client contends that the trial court abused its discretion by permitting the amendment. We agree. The amendment was made on the fo urth day of a five-day trial without any reason for the delay. If plaintiff had wanted to recover under paragraph 9 of the retainer agreement for all time spent on the case—800.65 hours according to his testimony—at $400 per hour, he could have ea sily included the appropriate allegations in the original complaint or moved to amend the complaint before trial. The client did not see a need to be represented by counsel or to retain an expert on attorney fee awards until the complaint was amended on th e day before the case was subm itted to the jury . By then, it was too late. Nor had the client attemp ted to determine through discovery whether plaintiff had actually spent 800.65 hour s on the case or whether that was a reasonable amount of time. And the delay in making the amendment depriv ed the client of the ability3 to research adequately whether paragraph 9 was an unen forceable provision in the contingency fee agreement. We therefore re verse the judgment and remand for a new trial.
I
BACKGROUND We begin with a description of the prio r suit and administrative proceedings, and then discuss the history of the present case.
A. Prior Lawsuit and Administrative Proceedings Ernestine Forrest, an atto rney with the California Department of Corporations (Department), was suspended by the Department in early 2000 and then discharged during the period of suspension. Sh e appealed the discharge to th e State Personnel Board, which
issued a decision in December 2002 ordering her reinstatem ent and awarding her three years of backpay. Forrest returned to wo rk. Meanwhile, the Department filed a petition for a writ of administrative mandate, seek ing to set aside the board’s decision ( Department of Corporations v. Califo rnia State Personnel Board (Super. Ct. Sac. County, 2005, No. 04CS01424)). Ultimately, the s uperior court denied the petition. On February 24, 2003, Forrestfiled suit, in propria persona, against the Department, alleging wrongful termination, race and gende r discrimination, harassment, retaliation, and breach of contract ( Forrest v. State of California (Super. Ct. L.A. County, 2003, No. BC290873)). Before filing suit, Forrest had been declared a vexatious litigant. 1 The original complaint was never served. After Forrest filed the compla int, she retained David J. Duchrow, Esq., to represent her. On May 14, 2003, Forrest executed an “Attorney-Client Fee C ontract” with Duchrow

1 In 1994, Division Five of this districtdeclared Forrest a vexatious litigant in Forrest v. Sargoy (Apr. 25, 1994, B077881 ) (nonpub. opn.) and “issued a prefiling order pursuant to [Code of Civil Procedure] secti on 391.7, subdivision (a) that prohibited her from filing any new litigation in propria persona without fi rst obtaining leave of the presiding judge of the court where the litig ation was proposed to be filed.” ( Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 1 88, disapproved on another point in Shalant v. Girardi (2011) 51 Cal.4th 1 164, 1172–1173 & fn. 3.)4 concerning his representation of her in the suit against the Department. The contract stated in part:
“ 1. CONDITIONS. This Agreement will not take effect, and the Office will have no obligation to provide legal services, until you return a signed copy of this Agreement. . . .
“ 2. SCOPE OF SERVICES. You are hiring the Office to represent you in obtaining compensation and other relief for your damages, incurred in your employment with the State of California, Department of Co rporations. This Agr eement covers all legal representation through trial and post-trial motions, but does not cover appeals, nor judgment or settlement collec tion matters. [¶] . . . [¶]
“ 3. CLIENT’S DUTIES. You agree to be truthf ul with the Office, to cooperate, to keep us informed of developm ents, to abide by this Agreement, to pay our bills on time and to keep us advised of your address, telephone number and whereabouts. [¶] . . . [¶]
“ 5. BILLING RATES FO R ATTORNEYS FEES. Services will be rendered on a combined hourly and contingency basis . That is, you will be charged an hourly rate, as set forth below, plus an amount which is contingent upon, or depends upon, the monetary recovery from your case. Each part of the fee is described below.
“HOURLY RATE : You will be charged four hundred dollars ($400.00) per hour for time spent in representation of you on this action, including time spent on meetings, telephone calls, drafting and review ing pleadings, motions and correspondence, travel time, and all other acti ons taken on your behalf. You will be billed in units of one tenth (.1) hour. Long distance calls (outsi de 213 or 310 area c odes) will be billed a minimum of two tenths (.2) of an hour. An y appearance outside of Los Angeles County
will be billed a minimum of one hour.
“MAXIMUM HOURLY FEE : The total amount of attorney fees billed on an hourly basis will be eight thousand dollars ($8,000.00)

. “In calculating the maximum hourly fee, hours billed but not charged will not be included. For example, if [y]ou are billed for a telephone call (i.e., it appears on your5 billing statement), but you are not chargeda fee for the call, the time spent on that call will not count toward the maximum hourly fee, since no fee was charged for the time.
“CONTINGENCY RATE : In addition to the hour ly rate in the preceding paragraph, you will be charged an amount which depends upon (i .e., is contingent upon) a monetary recovery. Any contingency fee is ne gotiable and is not set by law (except that in any claims against a health care provider for professional negligence, the contingency fee may not exceed limits provided in California Business & Professions Code Section 6146). “Bearing such advice in mind, you agree to pay a conti ngency fee equal to forty percent (40%) of the gross recovery . [¶] . . . [¶]
“Costs and disbursements in curred and advanced in connection with the prosecution or settlement of your claim shall be reimbursed after the contingency fee is computed

. . . . [¶] . . . [¶]
“ 7. COSTS AND OTHER CHARGES. Various costs and expenses will be incurred in performing legal services under this Agreement. You agree to pay for those costs and expenses in addition to the fees. It is the policy of the Office not to advance costs, and it remains your responsibility to pay th e costs as they are incurred. If the Office does advance a cost, the Office does not there by waive its right to se ek reimbursement for costs prior to recovery of a settlement of [ sic ] judgment. “Common costs include costs imposed by ad ministrative agencies, court filing fees, facsimile transmission (FAX) costs, to be billed at one dollar ($1.00) per page; photocopying, to be billed at fifteen cents ($0.15) per pa ge; mileage, to be billed at thirtyfive cents ($0.35) per mile; jury fees; w itness fees, including expert witness fees; substantial long distance telephone calls; mess enger and delivery fees; court reporter and transcript costs; postage including certified mail costs; parking and other local travel expenses; and other co sts. [¶] . . . [¶]
“ 8. BILLING STATEMENTS. You may be sent periodic statements for fees
and costs incurred. Each statement will be du e within ten calendar days of its date. You may request a statement at intervals of no less than thirty (30) days. If you do, the Office will provide a statement within ten (10) days. If your account becomes ‘past due’ for four6 months, you may be charged interest at the annu al percentage rate of 12% simple interest, calculated monthly, plus any amounts incurred as costs or attorney’s fees, in collecting past due amounts. “If the Office represents itself in collec ting past due fees or costs from you, you acknowledge that the Office w ill be entitled to an attorney fee equal to four hundred dollars ($400.00) per hour for such efforts.
“ 9. DISCHARGE AND WITHDRAWAL. You may discharge the Office at any time. The Office may withdraw with your consent orfor good cause . Good cause includes your material breach of this Agreement, your refusal to cooperate with us or to
follow our advice on a material matter, such as unreasonable re fusal to accept a settlement, or any fact or circumstance that would render continuing representation unlawful or
unethical.
“ If you do discharge the office , prior to a settlement or judgment being obtained, or if there is good cause, as described above, for this Office to withdraw , the Office reserves the right to bill for all time spent in the prosecution of your matter .” (Italics & last boldface added, undersco ring in original.) The parties refer to this re tainer agreement as “Contrac t 1”; we refer to it as the “Litigation Agreement.” As we discuss belo w, the lawsuit governed by the Litigation Agreement was dismissed involuntarily afte r Duchrow filed a successful motion to
withdraw from the case and Forrest could not find another attorney. On December 6, 2003, Forre st and Duchrow executed a nother “Attorney-Client Fee
Contract.” This second contract related to Duchrow’s representati on of Forrest in the administrative proceedings before the State Pe rsonnel Board. The contract provided that Forrest would pay Duchrow $275 for each hour he spent on the matter and also pay for
costs. The contract recited that Forrest would be sent periodic billing statements for attorney fees and costs; paymen t was due within 10 days. If th e bill was not paid within 30 calendar days of the date of the statement, Du chrow reserved the righ t to charge “interest at the annual percentage rate of twelve perc ent, or one percent per month.” The parties7 refer to the second retainer agreement as “Contr act 2”; we refer to it as the “Administrative Agreement.” Duchrow revised the original complaint, alleging claims under the California Fair Employment and Housing Act (FEHA) (Gov. Code, §§ 12900–12996) for discrimination ( id. , § 12940, subd. (a)), harassment ( id. , subd. (j)), retaliation ( id. , subd. (h)), and failure to remedy discrimination and retaliation ( id. , subd. (k)). The amen ded complaint also alleged common law claims for wrongful termination in viol ation of public policy and
intentional infliction of emotional distress. It was filed and served on June 27, 2003. While the suit was pending, the Departme nt discharged Forre st a second time. The case was assigned to Judge Thomas L. Willhite, Jr. “[It] wa s set for trial in August 2004, and then continue d to December 7, 2004. Prior to the December 7 trial date, Duchrow informed Forrest by facs imile that he would be withdrawing as counsel, but he
did not in fact withdraw at that time. The December trial date was continued to January 18, 2005, then January 31, and then February 7. On February 4, 2005, Duchrow informed Forrest by letter that he would withdraw on February 7, but filed no motion with the court seeking to withdraw. “A jury trial commenced Fe bruary 8, 2005. After the first witness began testimony, Judge Willhite declared a mistrial when he was nominated to the Court of Appeal and became unavailable to complete the case. The case was reassigned to Judge Tricia Ann Bigelow on March 28, 2005, and a final status conference and trial were set on June 20, 2005. [¶] . . . “On June 17, 2005, Duchrow filed a motion on shortened notice to be relieved as counsel. He simultaneously filed an ex parte application to continue the trial for 120 days
to allow Forrest to retain new counsel. “At the June 20 hearing, [the Departme nt’s] counsel indicate d she did not oppose Duchrow’s withdrawal; however, she did oppo se the continuance because of witness
health issues. . . . “The trial court sealed the reporter’s notes of an in camera hearing with Duchrow regarding his motion to withdraw and granted the motion. . . .8 “During [the June 20 hearing, the Department] revealed that Forrest had been designated a vexatious litigant. . . .
“The court asked Forrest how much time she needed to hire another attorney. Forrest responded that ‘attorneys don’t like to come into this kind of circumstance.’ The court then stated: ‘[I]f there is a necessity for continuance, I am going to have to consider that. So I will give you two weeks.’ The co urt then set an OSC (o rder to show cause) hearing for July 7, 2005 ‘re failure of plaintiff to retain counsel . . . .’ In response to Forrest’s question about the purpose of the July 7 OSC, the court clarified: ‘For you to get new counsel . . . .’ With respect to the trial da te, the court stated: ‘Why don’t we continue the trial to the 7th, with the understanding if new counsel comes in I, obviously, am not going to make him pick up the paper and have him pick it up and go to trial that same date.’” ( Forrest v. Department of Corporations , supra , 150 Cal.App.4th at pp. 189–191.) Before the July 7, 2005 hearing, Forrest “infor med the trial court [in a written response] that when first instituting the laws uit she had difficulty lo cating counsel because employment attorneys advised he r they did not like litigating with the government. She also stated, ‘I attempted to initiate contact with a lawyer to consult after the June 20, 2005 proceedings but he was away on vacation. I no w have an appointment with that lawyer on Wednesday, July 6, 2005.’ . . . Forrest advise d that she did not yet have counsel [and] had not yet been able to retrieve the case file from Duchrow . . . .” ( Forrest v. Department of Corporations , supra , 150 Cal.App.4th at p. 191.) “The trial court set an OSC regarding
dismissal for failure to retain counsel for July 22, 2005.” ( Ibid. ) On July 22, 2005, Forrest filed a declaration st ating she had contacted four attorneys, one of whom could not represent he r due to his schedule and two of whom could not meet with her until after July 22 to discus s the possibility of representation. She did not indicate the response she recei ved from the fourth attorney. ( Forrest v. Department of Corporations , supra , 150 Cal.App.4th at pp. 191–192.) “[T]he trial court continued the OSC to August 4, 2005.” ( Id. at p. 192.) On July 28, 2005, the Depa rtment filed a request for dismissal pursuant to Code of Civil Procedure section 391.7, subdivision (c) (secti on 391.7(c)). That statute provides:9 “The clerk may not file a ny litigation presented by a ve xatious litigant subject to a prefiling order unless the vexatio us litigant first obtains an or der from the presiding justice or presiding judge permitting the filing. If th e clerk mistakenly file s the litigation without the order, any party may file with the clerk and serve, or the presiding justice or presiding judge may direct the clerk to file and serve, on the plaintiff and other parties a notice stating that the plaintiff is a vexatious litigant subject to a pref iling order . . . . The filing of the notice shall automatically stay the litigation. The litiga tion shall be automatically dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding justice or presiding judge permitting the filing of the litigation . . . .” “On August 4, 2005, Forrest filed [a] re sponse to the OSC and responded to [the Department’s] request for dismissal. She ex plained her further efforts to retain new counsel, which consisted of a conversation with an attorney who dec lined to represent her due to his relationship with Duchrow and conv ersations with Patricia Barry who showed an interest in taking the cas e and agreed to appear at the August 4 hearing. Forrest opposed [the Department’s] request for dismissa l, arguing that her case had merit and was ready for trial. “Ms. Barry did appear on August 4 and re presented that she and Forrest were in
discussions but that she had not been retained . The trial court again continued the OSC, informing Forrest that the case would be dismissed if she did not retain counsel by August 11, 2005.” ( Forrest v. Department of Corporations , supra , 150 Cal.App.4th at p. 192.) “Forrest filed another update prior to the August 11, 2005 OSC. Her declaration
stated she was out of town on a business trip from August 4 through August 10, that she had spoken with Patricia Barry by telephone on the evenings of August 9 and 10 and that unresolved issues remained with respect to Ms . Barry’s representation. Forrest offered to ‘post security so that this case can pr oceed to trial . . . .’ . . . . [¶] . . . “On August 12, 2005, the trial court i ssued its ruling, dismissing Forrest’s complaint on the grounds that she had failed to retain counsel after several continuances. The trial court served notice of its ruling on all parties by mail on that date. [The10 Department] then served notice of entry of the order dismissing the case on Forrest by express mail on August 22, 2005.” ( Forrest v. Department of Corporations , supra , 150 Cal.App.4th at pp. 192–193.) Forrest f iled a motion for reconsideration, which was denied. She appeal ed the dismissal. On appeal, Division Two of this district affirmed in a split decision. It rejected Forrest’s argument that the trial court erred in allowing Duchrow to withdraw, saying: “Duchrow filed a declaration in support of hi s motion to withdraw stating that he had an irreparable conflict with Forrest, continued representation would require him to violate ethical rules, Forrest had breached the fe e agreement and continuing would pose an extreme financial hardship on him, Forre st had rendered his continued effective employment on the case unreasonably difficult, a nd she refused to follow his advice. In order to protect attorney-client privileged matters, the court conducted a hearing with Duchrow in camera with a court reporter presen t. After the proceedings in chambers, the court explained in open court that granting Duchrow’s motion to be relieved was based on matters discussed in camera.” ( Forrest v. Department of Corporations , supra , 150 Cal.App.4th at p. 194.) The Court of Appeal also disagreed with Forrest’s assertion that the trial court lacked authority to dismis s the suit under section 391. 7(c). Forrest argued that section 391.7(c) applied to the filing of a lawsuit by a vexatious litigant, not to postfiling representation in an ongoing actio n. As the Court of Appeal stated: “[T]he statutory
scheme as a whole can be r econciled by recognizing that th e terms of the prefiling order— representation by counsel or perm ission to file—pertain through out the life of the lawsuit. We therefore hold that the requirements of a pr efiling order, under section 391.7, remain in effect throughout the life of a lawsuit and permit dismissal at any point when a vexatious litigant proceeds without counsel or without the permission of the presiding judge.” ( Forrest v. Department of Corporations , supra , 150 Cal.App.4th at p. 197, fn. omitted.) The Court of Appeal’s resolution of this issue was subsequently disapproved in Shalant v.
Girardi , supra , 51 Cal.4th at pages 1172–1173 and fo otnote 3. The Supreme Court held11 that section 391.7(c) “applies only to actions filed in propria persona by vexatious litigants.” ( Shalant , at p. 1168, original italics.) Finally, the Court of Appeal concluded that the trial court had not abused its discretion by failing to grant Forre st additional continuances. ( Forrest v. Department of Corporations , supra , 150 Cal.App.4th at pp. 199–202.)
B. Present Lawsuit On November 17, 2008, Du chrow filed this action agai nst Forrest. The complaint contained one cause of action, for breach of c ontract, and alleged as follows. The parties’ had entered into two retainer agreements . “Pursuant to paragraph 5 of the [ Litigation Agreement, Duchrow] is entitle d to a combined hourly and contingency base d rate,” and “[p]ursuant to paragraph 5 of [the Administrative Agreement, he] is entitled to an hourly rate of $275.00 for the time sp en[t] in the administrative acti ons.” (Italics added.) Both agreements stated that Duchrow could recover costs and fu rther provided that Forrest was liable for 12 percent interest on overdue payments . In the body of th e complaint, Duchrow alleged that Forrest had breached the agreements by failing to pay for services rendered. And “[a]s a direct and proximat e result of [Forrest’s] breach of the [agreements], legal fees in the amount of $44,082.22 [are] now due and unpaid.” Th e prayer of the complaint
stated that Duchrow was seek ing “the sum of $44,082.22 for breach of CONTRACT and the value of its performance.” The complaint made no mention of paragr aph 9, which provided that Duchrow was entitled to payment for “all time sp ent” on the case if he withdrew for good cause. Nor did it explain how Duchrow had calculated the damages figure ($44,082.22) or state what portion of that amount was attri butable to each agreement. Forrest responded to the complaint with a demurrer, ar guing that Duchrow had not adequately pleaded a breach of contract claim, and he should have attached the retainer agreements as exhibits to the complaint. In response, Duch row stated in his memorandum of points and authorities that “[ t]he specific terms of the signed , written contracts are described in the Complaint. . . . The fee was to be a combined hourly and contingency rate.” (Underscoring in origin al.) In support of that conten tion, Duchrow asserted: “The12 Complaint . . . pleads f acts to show [his] performance . . . , [Forrest’s] breach . . . , causation . . . , and resulting damage . . . .” The trial court, Judge Alan S. Rosenfield presiding, overruled the demurrer and ordered th at an answer be filed within 20 days. On February 10, 2010, Forrest file d an answer generally denying a ll material allegations of the complaint. (See Code Civ. Proc., § 431.30, subd. (d).) Trial by jury began on March 8, 2011. Du ring the trial, Duchrow was represented or assisted by various attorney s and appears to have been se lf-represented at times. He handled most of the significant tasks, such as conducting the voir dire of potential jurors, making the opening statement, cross-examining Forrest, prepar ing jury instructions, and presenting closing argument. Forrest was self-represented throughout the trial. On March 9, 2011, the parties made openi ng statements. Duchrow told the jury that “[u]nder the terms of the [Litig ation Agreement], Ms. Forrest would pay $400 per hour for the first 20 hours of time, a total of $8,000, plus a contingency fee, a percentage of the recovery. . . . [¶] Also, under that agreemen t, Ms. Forrest would pay for what are called costs.” Duchrow stated that Forrest had paid the $8,000. He contin ued: “The [Litigation Agreement] also provides that the law o ffice may withdraw from representation under certain circumstances: [¶ ] One, if [Forrest] doesn’t pay he r bills; [¶] Two, if she does not cooperate; [¶] and three, if there’s continui ng representation which would be either illegal
or unethical . . . .” Accord ing to Duchrow, the evidence would show that Forrest had failed to pay her bills and that she was unc ooperative during every phase of the case. Duchrow also argued that Forrest had created an ethical problem for him in the prior suit
because she had stated to the tr ial court, under penalty of perj ury, that “she didn’t have the money to pay the court costs”—thereby obtainin g a fee waiver—but subsequently failed to
inform the court that her financial circumst ances had changed when she received an award of over $200,000 in backpay from the State Personnel Board. With respect to damages, Duchrow assertedthat under the Litigation Agreement, he was entitled to compensation for “a ll of my time in the case” because he had to “withdraw
for cause.” He said Forrest’s misconduct left hi m with no choice but to withdraw. Duchrow stated that he charge d $400 per hour, he had spent a total of 800.65 hours on the13 prior suit, and he would be “seeking recovery for those hours.” He claimed that “[t]he total amount under [the Litigatio n Agreement], fees plus costs that I’ll be asking for, is over $300,000.” Addressing damages under the Administrative Agreement, Duchrow said, “The total of the past due on [that agreement] for fees, costs, and interest, which is provided for in the contract, is almost $36,000.” In her opening statement, Forrest started out by saying, “This is a case that [Mr. Duchrow] described that I know nothing ab out. The facts are not that way.” She went on to say: “Yes, I’m a lawyer, but I’m a different kind of lawyer. I’m what’s called a transactional lawyer. . . . I deal with paper. . . . [¶] When I have a problem, when I have to go to court, I have to hire a trial lawyer . . . . [¶] So you’re he re with me in a first experience. I’ve never done a trial before, but I’m going to do the best I can . . . .” In Forrest’s words, “I agreed to pay [Mr. Du chrow] $8,000 up front and to enter into a contingency agreement. [¶] And what that me ans is that, if you win, you pay the lawyer. If you don’t win, you don’t owe the lawyer any money.” Forrest took issue with
Duchrow’s contention that he “withdrew” in th e prior suit, saying that, instead, he had
“abandoned” her. On the witness stand, Duchrow testified that, under the Litigation Agreement, he was to be paid $400 per hour until Forrest ha d paid $8,000. Therea fter, the agreement was purely a contingency fee agreem ent. Duchrow discussed paragraph 9 of the Litigation Agreement, stating it entitled him to payment fo r “all time spent on th e case” at $400 per hour if a client discharged him or if he wit hdrew for cause. He said he had spent 800.65 hours on the prior suit. Duch row also asserted that, under the Administrative Agreement, he was entitled to a reduced billing rate of $275 per hour for a ll work on the matter.
Duchrow testified that Forrest had bre ached the Litigation Ag reement (1) by not paying her bills, consisti ng of costs incurred after she had paid the $8,000; (2) by refusing to cooperate with his office; and (3) by enga ging in conduct that would “render continuing representation unlawful and unethical.” He de scribed each of these alleged breaches in
detail. Duchrow admitted that after Forrest had paid the $8,000, he no longer sent her14 monthly bills for attorney fees—as opposed to costs—under the Litiga tion Agreement. As he put it, “[A]fter she had reached th e $8,000 maximum hourly billing, it was a contingency fee, and there is no need to bill th e client for the time because I expect my fee to come out of the recovery at the end.” Duchrow also said Forre st had breached the Administrative Agreement by not paying her bills, which, in acco rdance with that agreement, consisted of both attorney fees and costs. On the subject of damages, Duchrow te stified he was entitled to $312,260 in attorney fees under the Litigatio n Agreement, plus $16,851.95 in costs, for a total of $329,111.95. 2 Under the Administrative Agreement, he said he was owed $27,777.36 in attorney fees, plus interest at 12 percent ($8, 155.13), for a total of $35,932.49. Duchrow’s testimony about both agreements supported a total damages award of $365,044.44.
Forrest cross-examined Duch row. Afterward, he moved to amend the complaint to conform to proof. Duchrow st ated that the complaint had requested “around $44,000” in damages. But, he said, the evidence at trial supported damages for br each of the Litigation Agreement “more along the lines of $320,000 ” and, for breach of the Administrative Agreement, damages of $35,932.49. Forre st opposed the amendment. Referring to paragraph 9, she said: “This case has been $44,000 throug hout the period we’ve considered it. It’s only in these last days th at Mr. Duchrow, who was aware of this clause before, decided that he would use this clause in what now appears to be a test case to see if he can switch the fees. [¶] And I just tota lly object to letting him make that kind of change at the last minute in the pleading, whatthe prayer was, because the prayer has been for, what, about two years now, $44 ,000. [¶] If he was aware of this contract provision, if it was as prominent as he says it is, he should have been able to . . . make [me] aware of that and the effect of it long before, and in consideration [I] would have had to try and find counsel or something. It’s a last -minute change that is unjustified.”

2 The $312,260 figure for attorney fees was based on the total number of hours Duchrow said he worked on th e case—800.65—multiplied by hi s hourly rate of $400, less the $8,000 Forrest had already paid in fees.15 Duchrow responded by stating: “[T]hese figures were given to Ms. Forrest during my deposition. She’s been aware of the amountI’ve been seeking. I don’t believe a party is limited by the amount stated in the comp laint since the complaint is what puts her on notice of a breach. [¶] Further, she read the [Litigation Agreement] b ack in 2003 and was aware of this provision, and now that I’m exer cising it and now that the evidence is in, we
have the correct amounts.” The trial court inquired as to when Duchrow’s deposition ha d been taken, and
Duchrow answered: “I believe it was June of 2010.” Forrest added: “At which time everything had been completed. And we kept coming in, an d we kept having the date changed for trial, because trial was shortly after that. July was the trial date. So we were moving toward the trial date. [¶] [I] was not on notice, the prominence that Mr. Duchrow gives to this paragraph which talks about how to withdraw, th e prominence is in his head right now. It’s nothing to suggest in the letters he wrote to [me]. [¶] . . . There’s no notice he gave [me] of a provision like this. . . . He didn’t gi ve [me] billings to say, ‘Oh, your bill is getting up to potentially it could be $100 ,000; $200,000; $300,000,’ that would make a
client turn around and look and decide: Is this worth it? [¶ ] He didn’t do any of those things. And now here, when it was almost the we ek of trial, he starts this novel theory of this case being worth six times what was pl ed, seven, eight times.” After Forrest concluded her argument, the trial court granted the motion. Next, Forrest took the witness stand and te stified in narrative form. She described the Litigation Agreement as follows: “Basically, I was to pay [Mr. Du chrow] $8,000 up front, which I did over time, taken out of my payroll, and he was to have 40 percent of my recovery. It was a contingency fee arra ngement, 40 percent. And if he failed to prevail, then he didn’t get anything.” On the subject of her alleged failure to co operate, Forrest testif ied: “[T]here was no reason for me to create any proble ms for Mr. Duchrow. I did no t do so. I did whatever he
asked that I do.” She also said that the be havior he described as uncooperative did not happen. Forrest admitt ed that, in response to a documen t demand, she “got a little behind”16 in finding all of the relevant documents. Sh e “rush[ed]” to get ev erything to Duchrow, who then “took his own time getting it to the lawyers.” Forrest disputed that she had a change in financial circumstances that created an ethical problem for Duchrow. Af ter the mistrial was declared in the prior suit, the retrial was scheduled to begin on June 20, 2005. In May 2005, Forrestreceived “payroll
warrants” from the State of California worth around $200,000—the amount of backpay awarded by the State Personnel Board. Nevertheless, the Department filed a petition for a
writ of administrative mandate seek ing to set aside that award ( Department of Corporations v. California State Personnel Board , supra , No. 04CS01424). The superior court judge in the writ proceeding stated th at the question of whether Forrest was entitled to backpay would not be dete rmined until the court had rule d on the Department’s writ petition. The judge instructed Forrest not to cash the warrants before the conclusion of the writ proceeding. In addition, the judge told Forrest, “You can’t cash this. If you cash this and I rule against you, . . . you’ll have to pay it back.” Ultimately, the superior court judge denied the Department’s petition on D ecember 23, 2005—about six months after Duchrow had withdrawn from the prior su it. In referring to Duchrow’s alleged ethical problem, Forrest testified, “There is no truth whatsoever to that.” Forrest disagreed with Duchrow’s asser tion that she had breached the Litigation Agreement by failing to pay his bi lls, which consisted of costs. She pointed out that, as stated in the Litigation Agreem ent, “Costs and disbursements incurred and advanced in the prosecution or settlement of your claim shall be reimbursed after the contingency fee is computed .” (Underscoring in original.) No contingency fee was ever calculated. Forrest testified that Judge Bigelow gr anted Duchrow’s motion to withdraw after meeting with him in chambers. The reasons for granting the motion were not announced in court. That led Forrest to ask Judge Bigelow, “‘Well, how do you know it’s even true?’” According to Forrest, Judge Bigelow replied, “‘It doesn’t matter if it’s true. And
he’s an officer of the court.’”17 With respect to the Administrative Ag reement, Forrest said she discharged
Duchrow in or before June 20 04 because she thought his fees were excessive and she had
been overbilled. After Forrest finished testifying, Du chrow briefly cross-examined her. He questioned her about the midtrial amendm ent of the complaint and her financial circumstances at the time the prior suit wa s to be retried before Judge Bigelow.
The trial court instructed the jury using stan dard instructions for a breach of contract claim. Closing arguments followed. Duchrow described his litigation experience, saying he had “tried some cases here” and ha d “been in front of the California Supreme Court a few times.” He urged the jury to aw ard him damages for breach of the Litigation Agreement pursuant to paragraph 9, stating he had spent 800 hours on Forrest’s case, billed at $400 per hour. He summarizedhis own testimony about how Forrest had breached the two retainer agreements and stat ed he had performed all of his contractual obligations. He requested that the jury awar d him $324,864.45 for breach of the Litigation Agreement and $35,932.49 for breach of the Administrative Agreemen t, for a total award of $360,796.94. 3 In her closing argument, Forrest assert ed she had not breached the Litigation Agreement, Duchrow shou ld not be able to re ly on paragraph 9 to “change an $8,000-plus contingency agreement into a $300-some thou sand agreement,” and he had breached the Litigation Agreement by withdrawin g in the prior suit instead of taking the case to trial. She argued that his claim unde r the Administrative Agreement was barred by the statute of limitations because she discharged him in or before June 2004 in connection with the State Personnel Board proceedings, an d he did not file suit until No vember 2008. (See Code Civ. Proc., § 337.1.)

3 Based on Duchrow’s test imony, his damages for breach of the Litigation Agreement were $329,111.95, not $324,864.45. Duchrow has not explained why his testimony differed from the damages he requested in closing argument.18 The jury commenced deliberations on Marc h 14, 2011. The next day, the jury reached a verdict. In comple ting a special verdict form, the jury found that Duchrow was entitled to damages in the amount of $140,056 .95 for breach of the Litigation Agreement
and that his claim under the Administrative Agreement was barred by the statute of limitations. On April 14, 2011, the trial court entered judgment on the verdict. On the same day, the clerk of court served the partie s with a notice of entry of judgment. Forrest
filed motions for new trial a nd judgment notwithstanding the verdict, both of which were denied. She filed a timely appeal.
II DISCUSSION On appeal, Forrest contends the trial c ourt erred by granting Duchrow’s midtrial motion to amend the complaint, the jury instructions were flawed, the judgment was not supported by substantial eviden ce, the award of damages was excessive, and the trial court erred by excluding evidence regarding her income and by excluding certain witnesses. We
conclude the trial court erred in granting the motion to amend and reverse on that basis. Duchrow offered no reason for the delay in seeking the amendment; the amendment changed the relevant facts and the theory of liability, significantly increasing the damages requested, warranting additional discovery and th e use of an expert witness on attorney fee awards, making representation by counsel all th e more important, and requiring research to determine the enforceability of paragraph 9; and the amendment re sulted in prejudice. We first dispose of Forrest’s contention that the judgment wa s not supported by
substantial evidence and then address the granting of Duchrow’s motion to amend the complaint to conform to proof.
A. Substantial Evidence Forrest’s assertion that the judgment was not supported by subs tantial evidence is based primarily on Duchrow’s failure to represen t her in the prior suit “through trial.” But Duchrow testified he was excused from continuing to represent Forrest because, as alleged in the complaint, she had breached both re tainer agreements by, among other things, refusing to pay for services rendered. Th e testimony of a single witness may constitute19 substantial evidence. (See Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 589.) And contrary to Forrest’s cont ention, Duchrow’s testimony about damages was sufficient regardless of whether he submitted a ny documentation to sup port what he said. (See Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.A pp.4th 257, 269–270.) Forrest argues that some of Duchrow’s evidence was not “cred ible.” But where there is conflicting evidence on an issue, we do not review the jury’s implicit determination of credibility. (See Kelly v. CB&I Constructors, Inc . (2009) 179 Cal.App.4th 442, 452; Palm Medical Group, Inc. v. State Comp. Ins. Fund (2008) 161 Cal.App.4th 206, 218.) And to the extent Forrest relies on posttrial statements made by jurors to explain how they ca lculated damages, we cannot consider her arguments. (See Evid. Code, § 1150, subd. (a); Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 786; Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1124.) Thus, the judgment was suppor ted by substantial evidence. B. Midtrial Amendment of the Complaint “Code of Civil Procedure section 473, subdivision (a)(1) pe rmits a court, ‘in furtherance of justice,’ to ‘allow a party to am end any pleading . . . in any . . . respect.’ The trial court’s ruling on a mo tion to amend a pleading is reviewed under an abuse of discretion standard . . . , and the appellant ha s the burden of establishing its discretion was abused. . . . Generally, ‘the trial court has wi de discretion in determining whether to allow the amendment, but the appropri ate exercise of that discretion requires the trial court to
consider a number of factors: “including the conduct of th e moving party and the belated presentation of the amendment. . . .”’” ( Emerald Bay Community Assn

. v. Golden Eagle Ins. Corp . (2005) 130 Cal.App.4t h 1078, 1097, citations & italics omitted.) “Courts must apply a policy of liberality in permitting amendmen ts at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown. . . . ‘However, “‘ev en if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of its elf—be a valid reason for denial.’”’” ( P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345; accord, Huff v.20 Wilkins (2006) 138 Cal.App. 4th 732, 746.) “Thus, [if the trial court denies a motion to amend during trial,] appellate courts are less like ly to find an abuse of discretion where, for example, the proposed amendmen t is ‘“offered after long unexplained delay . . . or where
there is a lack of d iligence . . . .”’” ( Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175.) “Where the trial date is set, the jury [has been] impaneled, counsel, the parties, the trial court, and the witnesses have blocked the time, and the only way to avoid prejudice to the opposing party is to continue the trial date to allow further discovery, refusal of leave to amend ca nnot be an abuse of discretion.” ( Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 488.) “[Code of Civil Procedur e section] 469 specifically governs motions to amend at trial to conform to proof . . . . [It] provides in relevant part as follows: ‘No variance between the allegation in a pleading and the pr oof is to be deemed material, unless it has actually misled the adverse party to his prejud ice in maintaining his action or defense upon
the merits.’ Such amendments at trial to conform to proof, ‘if not prejudicial, are favored since their purpose is to do justice and avoid further useless litigation.’ . . . “As summarized by our Supreme Court in Trafton v. Youngblood (1968) 69 Cal.2d 17, 31: ‘[T]he allowance of amendments to conform to the proof rests largely in the
discretion of the trial court and its determinat ion will not be disturbe d on appeal unless it clearly appears that such discretion has been abused. . . . Such amendments have been allowed with great liberality “and no abuse of disc retion is shown unless by permitting the
amendment new and substantially differe nt issues are introduced in the case or the rights of the adverse party prejudiced . . . .” . . .’ Conversely, ‘“amendments of pleadings to conform to the proofs should not be allowe d when they raise new issues not included in the original pleadings and upon which the adverse party had no opportunity to defend . . . .”
. . .’ . . . “‘The cases on amending plea dings during trial suggest trial courts should be guided by two general principles : (1) whether facts or lega l theories are being changed and (2) whether the opposing party will be prejudiced by the proposed amendment. Frequently, each principle represents a different side of the same coin: If new facts are21 being alleged, prejudice may easily result because of the inability of the other party to investigate the validity of the factual allegati ons while engaged in trial or to call rebuttal
witnesses. If the same set of facts supports merely a differe nt theory . . . no prejudice can
result.’ . . . ‘The basic rule applicable to amendments to conform to proof is that the amended pleading must be based upon the same general set of fact s as those upon which
the cause of action or defense as or iginally pleaded was grounded.’” ( Garcia v. Roberts (2009) 173 Cal.App.4th 900, 90 9–910, citations omitted, italic s added & omitted; accord,
North 7th Street Asso ciates v. Constante (2001) 92 Cal.App.4th Supp. 7, 10.) As stated by a leading treatise, in ru ling on a motion to amend a complaint to conform to proof, “the court is usually guided by whether: [¶ ] . . . there is a reasonable

excuse for the delay; [¶] . . . the change relates to the facts or only to legal theories; and [¶] . . . the opposing party will be prejudiced by the amendment.” (Wegner et al., Cal.
Practice Guide: Civil Trials and Evidence (The Rutter Group 2012) ¶ 12:393, p. 12-79, original italics.) 1. Delay in Seeking Amendment Duchrow filed the present action on Novemb er 17, 2008, to recover attorney fees, costs, and interest allegedly owed for his work in the prior suit and the administrative proceedings. Judgment was entered in the prior suit on August 12, 2005, and Forrest discharged Duchrow in the ad ministrative proceedings in or before June 2004. Thus, Duchrow had more than three year s to file an adequately plea ded complaint. There was no rush to get something filed. Further, although this action was filed in November 2008, Duchrow did not move to amend the complaint until March 11, 2011—on the fourth day of a five-day trial. He waited more than two years to allege a subs tantial increase in damages (from $44,082.22 to $365,044.44) and to change the theory of liability under the Litigation Agreement from paragraph 5—a 40 percent c ontingency fee—to paragraph 9—which pe rmitted a recovery for “all time spent” on the ca se if Duchrow withdrew for good cause. Paragraph 5 was described in the complaint; paragraph 9 was not referenced in the comp laint, directly or indirectly. Yet, as Duchrow stated in hi s opposition to Forrest’s demurrer: “[T]he specific22 terms of the signed, written contracts are described in the Complaint . . . . The fee was to
be a combined hourly and contingency rate .” (Italics added, underscoring omitted.) In moving to amend the compla int, Duchrow took a contrary position: He invoked paragraph 9, which was not mentioned, much less “described,” in the complaint; and the “combined hourly and contingency rate” be came only an hourly rate—$400 per hour for 800.65 hours—with no contingency. Duchrow offered no explanation for the delay other than to say at trial that he gave Forrest the new damages figures during his de position, and “I don’t believe a party is limited by the amount stated in the complaint si nce the complaint is wh at puts [Forrest] on notice of a breach.” But mentioning new fi gures at Duchrow’s de position did not put
Forrest on notice that Duchrow in tended to rely on a new theo ry of liability at trial to obtain significantly greater damages than the am ount sought in the original pleading. In arguing for the amendment in the trial court, Duchrow did not produce the pertinent pages of his deposition transcript, nor has he cited them in the record on appeal. As a result, we do not know what was said at his deposition. The statements Duchrow made to the trial court in support of the amendment constitute argument, not evidence. (See South Sutter, LLC v. LJ Sutter Partners, L.P . (2011) 193 Cal.App.4th 634, 668, fn. 14; Gdowski v.
Gdowski (2009) 175 Cal.App.4th 128, 138–139.) Before filing the complain t, Duchrow had all of the necessary information to include the appropriate allegations if he want ed to recover damages under paragraph 9; he knew or could have easily determined how many hours he had spent on the prior suit and
the amount of costs he had incurred. In short, the midtrial amendment was made unreasonably late and without a reasonable excu se for the delay. “‘“‘[E]ven if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.’”’” ( P&D Consultants, Inc. v. City of Carlsbad , supra , 190 Cal.App.4th at p. 1345.) And the ame ndment was “‘“offered after long unexplained delay . . . [and] where there [was] a lack of diligence . . . .”’” ( Melican v. Regents of University of California , supra , 151 Cal.App.4th at p. 175.)23 2. Nature of Amendment
The amendment allowed Duchrow to se ek damages under paragraph 9 of the Litigation Agreement, which pe rmitted a recovery for “all time spent” on the case if he withdrew for good cause. In contrast, the original complaint sought relief under paragraph 5 of the Litigation Agreement, which required Forre st to pay for the first 20 hours of Duchrow’s work ( $8,000)—which she did—and en titled Duchrow to 40 percent of any recovery. Before trial, Forrest’s defense was simple: Because there was no recovery, Duchrow was not entitled to any attorney fees. (See Hyon v. Selten (2007) 152 Cal.App.4th 463, 472, fn. 2; Jalali v. Root (2003) 109 Cal.App.4th 1768, 1777.)
But under the midtrial ame ndment, Duchrow’s th eory of liability for breach of the Litigation Agreement turned on whether he had good cause to withdraw, resulting in an attack on every perceived wro ng Forrest allegedly committed. And Forrest’s defense no longer involved a contingency fee agreement but, instead, required her to respond to multiple charges of improper conduct. In addition, the question of whether Duchrow had actually spent 800.65 hours on th e prior suit became a central issue, as did whether 800.65
hours was a reasonable amount of time. Cons equently, under the amendment, “‘new and substantially different issues [wer e] introduced in the case.’” ( Trafton v. Youngblood , supra , 69 Cal.2d at p. 31, italics omitted.) Th e amendment “‘raise[d] new issues not included in the original pleadings.’” ( Ibid. , italics omitted.) 3. Prejudice The amendment of the comp laint prejudiced Forrest in several ways. First, it changed the damages sought from $44,082.22, as pleaded in the complaint, to $312,260 in attorney fees and $16, 851.95 in costs under the Litigatio n Agreement, plus an additional $27,777.36 in attorney fees and $8,155.13 in accrued interest under the Administrative Agreement, for a total of $365 ,044.44. In closing argument, Duchrow asked the jury to award him $360,796.94. The jury obviousl y took the amendment into consideration because it awarded Duchrow $140 ,056.95—more than three times the amount requested in the complaint.24 Second, had Forrest known about the new damages theory before the discovery cutoff date, she could have used one or more di scovery methods to dete rmine if Duchrow had in fact spent 800.65 hours on the prior suit. As she testif ied at trial: “[Mr. Duchrow] hadn’t submitted any bills over time to allow [m e] to know about the accumulating funds.”
“I’ve seen no bills I have to pay.” And Duchrow testified that after Forrest had paid $8,000 for the first 20 hours of his work, he no longer billed her for a ttorney time under the Litigation Agreement. The amendment entitled Forrest to conduct di scovery to determine the total number of hours Duchrow had spent on the prior suit and the sp ecific tasks he had performed. Because a continuance was necessar y to permit further discovery and the trial was nearing its end, the motion to am end should have been denied. (See Magpali v. Farmers Group, Inc. , supra , 48 Cal.App.4th at p. 488.) Third, Forrest could have retained an ex pert on attorney fee awards, and called him
or her as a witness at trial to te stify about whethe r $312,260 was a reasonable amount of attorney fees. (See Mardirossian & Associates, Inc. v. Ersoff , supra , 153 Cal.App.4th at pp. 272–273; Bernardi v. County of Monterey (2008) 167 Cal.App. 4th 1379, 1395–1396; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence, supra , ¶¶ 4:282.35, 8:713.2, pp. 4-73 to 4-74, 8C-88.) Fourth, if Forrest had known earlier ab out Duchrow’s new theo ry of liability, she would have given more thought to accepting his offer to compromise (s ee Code Civ. Proc., § 998) or would have se riously considered settling the case. As Forrest stated in opposing the amendment, if she had known before tr ial that Duchrow was going to seek damages under paragraph 9, she would have asked hersel f, “Is this worth it?” Fifth, Forrest was a transactional attorn ey with no litigation experience. Duchrow was a seasoned trial attorney. When Duchrow testified on dire ct examination at trial, he had another attorney, Marc Coleman, as k him questions. Duchrow’s testimony was presented in an orderly and understandable fa shion. Forrest, on the other hand, took the
stand and testified in the narrative. Her testimony was not easy to follow and was the subject of several meritorious objections. If Forrest had known before trial that Duchrow would ask the jury to award him $360,796.94, she would have retained counsel. As our25 Supreme Court has acknowledged: “‘“The adage that ‘a lawy er who represents himself has a fool for a client’ is the product of years of experience by seasoned litigators.”’” ( PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1092– 1093.) While a transactional attorney might reasonably de cide to represent herself as a defendant in a suit for $44,082.22, Forrest would have heeded the foregoing adage if she had known Duchrow would end up requesting $3 60,796.94 in damages. Last, if Duchrow had made a timely motion to amend, Forrest would have conducted legal research and argued that paragraph 9 wa s unenforceable. As noted, paragraph 9 permitted Duchrow to re cover attorney fees for “all ti me spent” on a case if he was discharged by a client or if he w ithdrew from representation for good cause.
Forrest could have made a colorable argument—one we do not decide—that, at most, Duchrow was entitled to re cover in quantum me ruit for the reasonable value of his services, not $400 for every hour he supposedly worked on the case (800. 65 hours). It is well established that under a contingency fee agreement, when a client discharges an attorney, with or without good cause, the attorney may recove r under a theory of quantum meruit for the reasonable value of his or her services. ( Fracasse v. Brent (1972) 6 Cal.3d 784, 790–791; Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2012) ¶¶ 5:1034 to 5:1034.1, p. 5-1 26 (hereafter Vapnek).) Similarly, under a contingency fee agreement, when an atto rney withdraws from representation based on “justifiable cause,” he or she is entitle d to recover in qu antum meruit. ( Rus, Miliband &
Smith v. Conkle & Olesten (2003) 113 Cal.App.4th 656, 671–676; Estate of Falco (1987) 188 Cal.App.3d 1004, 1012–1016; Vapnek, supra , ¶¶ 5:1073 to 5:1079, pp. 5-135 to 5-137.) In contrast, an attorney who withdraws without justifiable cause may not recover any attorney fees under a contingency fee agreement. ( Rus, Miliband & Sm ith v. Conkle &
Olesten , supra , 113 Cal.App.4th at pp. 672–676; Estate of Falco , supra , 188 Cal.App.3d at pp. 1014–1017; Vapnek, supra , ¶¶ 5:1070 to 5:1071, p. 5- 135.) And the granting of a motion to withdraw does not ipso facto establish justifiable cause for a quantum meruit recovery. (See Rus, Miliband & Smith v. Conkle & Olesten , at pp. 673–674; Estate of26 Falco , at p. 1014; Vapnek, supra , ¶¶ 5:1085 to 5:1085.1, 10: 49, pp. 5-137 to 5-138, 10-11.) “Where justifiable cause for withdrawal is shown, the attorney ’s right to quantum meruit recovery for services rendered is th e same as where the attorney has been discharged after partial performance.” (Vapnek, supra , ¶ 5:1087, p. 5-138.) A quantum meruit recovery requires a trial court to consid er several factors: “‘[t]he nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failu re of the attorney’s e fforts, the attorney’s skill and learning, including his [o r her] age and experience in th e particular type of work demanded.’” (Mardirossian & Associates, Inc. v. Ersoff , supra , 153 Cal.App.4th at p. 272.) In her opening brief, Forrest stat es, “A line of cases including . . . Estate of
Falco [, supra , 188 Cal.App.3d 1004] . . . and more recently Rus, Miliband & Smith v.
Conkle & Olesten [, supra , 113 Cal.App.4th 656], . . . have supported a conclusion that where an attorney abandons or withdraws from a case and ther e is no recovery, as is true here, without a finding of good cause and possibly even with on e, the abandoning, withdrawing attorney cannot recover fees.” When an attorney seeks a recovery in quantum meruit after withdrawing from a case for ethical reasons, he or she “‘has the burden of proof to show: (1) counsel’s withdrawal was mandatory, not merely permissi ve, under statute or State Bar rules; (2) the overwhelming and primary motiv ation for counsel’s withdrawal was the obligation to adhere to these ethical impera tives under statute or State Bar rules; (3) counsel commenced the action in good faith; (4) subse quent to counsel’s withdrawal, the client obtained

recovery ; and (5) counsel has demonstrated that his [ or her ] work contributed in some measurable degree towards the client’s ultimate recovery .’” ( Rus, Miliband & Smith v.
Conkle & Olesten , supra , 113 Cal.App.4th at p. 674, fn. 10, italics added.) Because we are reversing the judgment and remanding the case for a new trial on
Duchrow’s cause of action for breach of the May 14, 2003 contract, Forrest may challenge the validity of paragraph 9 in the firs t instance before the trial court.27 III DISPOSITION The judgment is reversed, and the case is remanded for a new trial on plaintiff’s cause of action for breach of the May 14, 2003 contract. Defendant is entitled to costs on appeal.
CERTIFIED FOR PUBLICATION.

MALLANO, P. J.
We concur:

ROTHSCHILD, J.

JOHNSON, J.