1

Filed 11/13/15 Digital Document Technologies v. Friedberg & Parker CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

DIGITAL DOCUMENT TECHNOLOGIES, LLC,

Cross-complainant and Appellant,

v.

FREIDBERG & PARKER, LLP,

Cross-defendant and Respondent.

C077910

(Super. Ct. No. 34-2012-

00123046-CU-BT-GDS)

This appeal arises from a dispute between a law firm, respondent Freidberg & 

Parker, LLP (Freidberg), and a company that provides technical electronic services,

appellant Digital Document Technologies, LLC (DDT). 

It is undisputed that Freidberg asked DDT to process electronic media for use in 

litigation, and that Freidberg had asked DDT to do other work before. This time, DDT’s 

e-mails with Freidberg at least arguably suggested the work would result in a modest 

charge, but when the work was done, DDT charged over $50,000. After a court trial 
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involving expert testimony as to the reasonable value of DDT’s services, the trial court 

awarded DDT just over $8,000, but denied interest or attorney fees. 

On appeal, DDT faults the trial court for not finding that Freidberg was a 

“merchant” under the Uniform Commercial Code (UCC), and not understanding that 

DDT’s operative pleading embraced a UCC contract claim, which, if sustained, would 

have entitled DDT to an award of attorney fees, costs, and interest.

1

 As we will explain, 

DDT has not demonstrated prejudice from any arguable error. Accordingly, we shall 

affirm. 

BACKGROUND

Freidberg sued DDT--originally sued as Mirror Imaging Document Solutions--

eventually filing a second amended complaint alleging DDT overcharged Freidberg when 

it charged more than $50,000 to process electronic media for Freidberg’s use in litigation. 

DDT’s amended cross-complaint alleged common counts, seeking payment of its 

invoice plus interest and attorney fees.

2

 DDT typed onto the Judicial Council form 

complaint an allegation that the claim was “Pursuant to the attached contract/statement 

between the parties by and through their prior course of dealing as between merchants.” 

The current as well as two prior invoices--presumably, to show the prior course of 

dealing between the parties--were attached.

________________________________________________________________

1

 Further undesignated statutory references are to the California Uniform Commercial 

Code.

2

 “A common count is proper whenever the plaintiff claims a sum of money due, either 

as an indebtedness in a sum certain, or for the reasonable value of services, goods, etc., 

furnished. It makes no difference that the proof shows the original transaction to be an 

express contract, a contract implied in fact, or a quasi-contract.” ( 4 Witkin, Cal. 

Procedure (5th ed. 2008) Pleading, § 554, p. 682 (Witkin).) “[T]he only essential 

allegations are (1) the statement of indebtedness in a certain sum, (2) the consideration, 

i.e., goods sold, work done, etc., and (3) nonpayment.” (Id., § 557, pp. 685-686.)
3

After Freidberg dismissed its second amended complaint, a two-day court trial on 

DDT’s amended cross-complaint ensued. The record does not include a reporter’s 

transcript of the trial, or a settled statement, so our understanding is taken from the 

minute orders, trial briefs, and statement of decision.

DDT’s trial brief alleged the dispute “involves the production/delivery of goods by 

and between merchants under the” UCC. Freidberg alleged services--not goods--were at 

issue, and that DDT’s invoice was unconscionable. 

The trial court accepted posttrial briefing. DDT outlined a common counts theory,

relied in part on the UCC to seek a contract recovery, and in part sought quantum meruit.

3

 

Freidberg asserted no contract existed, and the invoice was unconscionable. 

The tentative statement of decision observed no UCC theory was pleaded. DDT 

objected, contending it had pleaded a UCC contract theory. The difference, according to 

DDT, was that if the bill were unconscionable, and the trial court awarded quantum 

meruit rather than contract damages, DDT still would be entitled to attorney fees and 

interest at the purported “contract” rate.4

The final statement of decision noted that the trial court had confirmed with 

counsel that DDT was “proceeding on a common count theory and not breach of 

contract.” The trial court found Freidberg was not a “merchant” and awarded DDT 

quantum meruit, also finding that if the UCC applied, no attorney fees or interest would 

be available, for lack of a course of dealing.

________________________________________________________________

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 “ ‘Where, without express contract, one performs services for another with that other’s 

knowledge, the services being of a character usually charged for, and the other person 

does not dissent but benefits by the services, a promise to pay the reasonable value of 

such services is implied.’ ” (Spinelli v. Tallcott (1969) 272 Cal.App.2d 589, 595.)

4

 Interest is not normally awarded on quantum meruit claims, although the court has 

discretion to award interest if the claim is based on a contract. (Civ. Code, § 3287, subd. 

(b); see George v. Double-D Foods, Inc. (1984) 155 Cal.App.3d 36, 46-48.)
4

The trial court found DDT provided services such as “document scanning and 

[copying], the provision of color copies . . . digital conversion, and certain electronic 

discovery applications.” “From time to time” DDT had performed “a variety of these 

services” for Freidberg. In the prior instances, the work involved fewer than 15,000 

pages and the largest bill was less than $3,000. In this transaction, Freidberg gave DDT 

two DVDs relevant to a case that could hold large amounts of data, but Freidberg did not 

know “the extent of the content” thereon. By e-mail, a DDT employee clarified that 

Freidberg wanted DDT to extract files, repair files, and convert files, Freidberg asked for 

a page count, and about a week later the DDT employee replied that the page count was 

over 500,000, and indicated DDT could provide a hard drive with relevant files on it for 

$99; a Freidberg employee agreed. Freidberg’s two trial experts estimated the work 

should have been billed at around $6,900 to $7,500, not the $50,000+ claimed on DDT’s 

invoice. 

The trial court found: “The emails and phone calls between the parties, while 

establishing an agreement to proceed on the work detailed, do not discuss price or terms 

or attorney fees or interest.” Nor did the invoice itself amount to a contract. 

Accordingly, a quantum meruit recovery for a quasi-contract, rather than contract 

recovery for an implied-in-fact contract, was appropriate. (See Maglica v. Maglica

(1998) 66 Cal.App.4th 442, 455 [distinguishing a “ ‘quasi-contractual’ quantum meruit 

theory” with “an implied-in-fact contract” theory of recovery].) 

The trial court awarded DDT the higher amount testified to by Freidberg’s experts

plus sales tax, for a total of $8,090.95, but also awarded Freidberg its costs of $4,299.70. 

DDT timely appealed from the ensuing judgment. 
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DISCUSSION

I

Application of the UCC

A. Standard of Review

“Because [appellant] provides us only the original trial court file, and fails to 

provide any reporter’s transcript of the trial preceding the judgment from which he 

appeals, we must treat this as an appeal ‘on the judgment roll.’ [Citations.] Therefore,

. . . we ‘ “must conclusively presume that the evidence is ample to sustain the [trial 

court’s] findings.” ’ [Citation.] Our review is limited to determining whether any error 

‘appears on the face of the record.’ ” (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 

324-325.) 

“ ‘In a judgment roll appeal every presumption is in favor of the validity of the 

judgment and any condition of facts consistent with its validity will be presumed to have

existed rather than one which will defeat it.’ ” (Estate of Kievernagel (2008) 166 

Cal.App.4th 1024, 1031.)

B. Analysis

DDT contends the UCC entitled it to attorney fees and interest based on the 

following chain of reasoning: (1) Both parties were “merchants” under the UCC. (2) 

Under the UCC, an invoice creates a contract if it is not disputed within 10 days. 

(§ 2201, subd. (2).) (3) Freidberg did not timely dispute DDT’s invoice. (4) Therefore, 

DDT and Freidberg had a binding contract for the invoice price. 

As we shall explain, even if the first point is correct--which we discuss for 

completeness but need not decide--the second point is wrong as a matter of law.

DDT suggests Freidberg’s merchant status is a legal question to be reviewed de 

novo. We disagree. As in other factual contests, in determining whether a party is a 

merchant under the UCC we review the facts for substantial evidence and ascertain 

whether those facts support the judgment. (See Prenger v. Baker (Iowa 1995) 542 
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N.W.2d 805, 808 [“whether a party . . . is a merchant is a question of fact”]; Smith v. 

General Mills, Inc. (1998) 291 Mont. 426, 430 [968 P.2d 723, 726] [“mixed question of 

law and fact”]; Vince v. Broome (Miss. 1983) 443 So.2d 23, 28 [“a question of fact for 

the jury’s determination” after legally correct instructions]; 10, Williston on Contracts 

(4th ed. 2011) § 29:25, pp. 801-803.) 

DDT had to prove Freidberg was a merchant under the UCC, which, for purposes 

of the prompt-dispute rule, “means a person who deals in goods of the kind or otherwise 

by his occupation holds himself out as having knowledge or skill peculiar to the practices 

or goods involved in the transaction or to whom such knowledge or skill may be 

attributed by his employment of an agent or broker or other intermediary who by his 

occupation holds himself out as having such knowledge or skill.” (§ 2104, subd. (1).) 

The trial court found Freidberg “a civil law firm, asked a specialized vendor to extract 

documents” from media for use during discovery or trial, and DDT “has provided the 

Court with no case that establishes that a law firm under these, or any circumstances, is a 

‘merchant’ for purposes of” the UCC. 

On appeal, DDT contends “A merchant . . . is simply someone in business and if 

he is transacting with another business, a transaction between merchants exists.” Thus, a 

civil law firm, in DDT’s view, must be a merchant. As authority, DDT relies entirely on

a jury instruction that defines “merchant” in part in four ways, the first of which is “one 

who engages in a trade, business, or a type of commerce to such an extent that [he/she/it] 

has or should have knowledge of common business practices.” (2 Cal. Forms of Jury 

Instruction (Matthew Bender 2012) Commercial Code Sales Contracts, No. MB300H.06, 

p. 3H-14.) Although DDT fails to provide authority explaining how the instruction 

squares with the statute, we have found authority that fills in the gap. According to the 

official comments to the UCC: “The special provisions as to merchants appear only in 

this Article and they are of three kinds. Sections . . . dealing with the statute of frauds, 

firm offers, confirmatory memoranda and modification rest on normal business practices 
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which are or ought to be typical of and familiar to any person in business. For purposes 

of these sections almost every person in business would, therefore, be deemed to be a 

‘merchant’ under the language ‘who . . . by his occupation holds himself out as having 

knowledge or skill peculiar to the practices . . . involved in the transaction . . . ’ since the 

practices involved in the transaction are non-specialized business practices such as 

answering mail. In this type of provision, banks or even universities, for example, well 

may be ‘merchants.’ ” (U. Com. Code (A.L.I. 2014-2015 ed.) Sales, com. to § 2-104, pp. 

55-56, italics added.) Thus, “a purchaser can be considered a merchant where the 

purchaser is a ‘business professional as opposed to a casual or inexperienced seller or 

buyer,’ [citation], and the purchase involves a type of goods related and necessary to the 

business or occupation of the purchaser.” (Ready Trucking, Inc. v. BP Exploration & Oil 

Co. (2001) 248 Ga.App. 701, 704 [548 S.E.2d 420, 423-424].) 

Under this authority, Freidberg, as a civil law firm, might well be a merchant for 

some purposes, and be subject to the prompt-dispute rule.

Section 2201, subdivision (1) establishes a statute of frauds, and section 2201, 

subdivision (2) establishes one of the exceptions, as follows: “Between merchants if 

within a reasonable time a writing in confirmation of the contract and sufficient against 

the sender is received and the party receiving it has reason to know its contents, it 

satisfies the requirements of subdivision (1) against the party unless written notice of 

objection to its contents is given within 10 days after it is received.” Thus, this section’s 

prompt-dispute rule’s “only effect . . . is to take away from the party who fails to [timely 

dispute a writing] the defense of the Statute of Frauds; the burden of persuading the trier 

of fact that a contract was in fact made orally prior to the written confirmation is 

unaffected.” (U. Com. Code, supra, com. to § 2-201, p. 61; see 1 Williston, supra, § 2-3, 

pp. 127-128 [“Some courts have erroneously held that failure to object to a signed 

confirmatory memorandum renders its terms binding]; see also id. at pp. 129-130.) 
8

DDT misinterprets the prompt-dispute rule, arguing that its application here 

converts Friedberg’s lack of timely objection into acquiescence to the terms of the 

agreement as interpreted by DDT. Although, as we have explained, the rule--if 

applicable--would have overcome Freidberg’s affirmative statute of frauds defense, that 

is all it would have done. To prevail on a contract theory, the document that is not 

promptly disputed must, either of itself or combined with other evidence, establish the 

terms of a contract. (See, e.g., Cook Grains, Inc. v. Fallis (1965) 239 Ark. 962, 963 [395 

S.W.2d 555, 556] [if a merchant, a party “would be liable on the alleged contract because 

he did not, within ten days, give written notice that he rejected it,” which would 

undermine his statute of fraud defense]; Pecker Iron Works, Inc. v. Sturdy Concrete Co.

(1978) 96 Misc.2d 998, 1000- 1002 [410 N.Y.S.2d 251, 252-254] [similar].) 

In this case, DDT’s invoice merely lists items claimed to be owed and is not in the 

form of a contract. After explaining the differences between the prior and current 

transactions between the parties, the trial court found the invoice did not create a contract, 

that is, it was not “a sequence of conduct . . . between the parties . . . that is fairly to be 

regarded as establishing a common basis of understanding for interpreting their 

expressions and other conduct.” (§ 1303, subd. (b); C9 Ventures v. SVC-West, L.P.

(2012) 202 Cal.App.4th 1483, 1497-1498 (C9 Ventures).) The trial court also found the 

communications between DDT and Freidberg did not address “price or terms or attorney 

fees or interest.” Because this is a judgment roll appeal and DDT bore the burden of 

proof at trial (see Evid. Code, § 500), the findings to the effect that terms critical to 

establishing a contract were not proven is unassailable. 

Moreover, the statute of frauds as to which the prompt-dispute rule pertains 

applies to “a contract for the sale of goods for the price of . . . $500 or more.” (§ 2201, 

subd. (1).) Under the UCC, “goods” means “all things (including specially manufactured 

goods) which are movable at the time of identification to the contract for sale other than 
9

the money in which the price is to be paid, investment securities (Division 8) and things 

in action.” (§ 2105, subd. (1).) Thus, services are not goods.

The trial court found Freidberg sought “computer document extraction” services 

from DDT. It is true DDT’s invoice included a $99 charge for a hard drive, but the vast 

bulk of the claimed charges were for services. These include repairing corrupt files at an 

hourly rate, and four separate charges at a per-page rate for: converting files to another 

format, adding Bates numbering, adding optical character recognition, and exporting email data to another format. Although these later four charges each exceed $500, they 

are not “goods,” such as the cost of printing copies or the like. 

In considering a “mixed” contract for goods and services, we must look to the 

“predominate” object of the contract. (1 Williston, supra, p. 124, & fn. 12.) “In 

determining whether the agreement was for the sale of goods or the provision of services, 

‘ “we must look to the ‘essence’ of the agreement. When service predominates, the 

incidental sale of items of personal property[] does not alter the basic transaction.” ’ ” 

(Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1186; 

see C9 Ventures, supra, 202 Cal.App.4th at p. 1494.)

Under this test, it has been held that a contract for making copies of a motion 

picture, or audio tapes, is not a contract for the sale of goods, even where there is a perunit charge for performing the service of duplicating the relevant media. (See 

Filmservice Laboratories, Inc. v. Harvey Bernhard Enterprises, Inc. (1989) 208 

Cal.App.3d 1297, 1305-1306.) We find that reasoning applicable here, where the 

“essence” of what Freidberg asked for, and what DDT supplied, was DDT’s technical 

expertise in retrieving, repairing, and modifying electronic data for use in litigation.5 

________________________________________________________________

5

 DDT argued in the trial court that the fact sales tax was charged and the hard drive it 

produced is a tangible item that was prepared in order to be admitted into evidence at a 

trial demonstrates that goods were at issue. But as we have explained, the appropriate 
10

Accordingly, DDT has failed to show that the UCC applied to this transaction.

In a subsidiary argument, DDT contends that after the trial court determined the 

invoice price was unconscionable, the trial court still should have awarded “reasonable 

attorneys fees, costs, and interest” because those other terms of the purported contract 

between merchants were not shown to be unconscionable. (See Civ. Code, § 1670.5, 

subd. (a).) We reject this claim, because it rests on the view that the trial court was 

obligated to find an enforceable contract existed, a view which we do not accept. 

II

Pleading Breach of Contract

On appeal, DDT insists that the trial court misunderstood the breadth of its 

common counts claim, which it contends embraced a theory of breach of contract. We 

agree with DDT that pleading both a generic common counts claim and a specific breach 

of contract claim may be done, inter alia, when, “The two counts, though based on the 

same cause of action, are designed to seek different remedies on distinct legal theories.” 

(4 Witkin, Cal. Procedure, supra, § 568, p. 693.) This may be done prophylactically, so 

that if one theory fails, recovery may be had on the other. (See, e.g., Zint v. Topp 

Industries, Inc. (1960) 184 Cal.App.2d 240, 243 [no express contract found, but quantum 

meruit awarded on “contract implied . . . for services rendered”].) 

The tentative statement of decision recites that the parties agreed the appropriate 

common count was quantum meruit, the case did not involve an implied-in-fact contract, 

and DDT had not pleaded a claim under the UCC. DDT objected, in part contending that 

the trial court misunderstood the scope of the complaint. DDT argued it was not required 

to plead a separate UCC count, and that the typed addition to the form complaint, 

referencing “the attached contract/statement between the parties . . . as between 

 

legal test is to discern the predominate purpose of the transaction, as Freidberg correctly 

argued in the trial court.
11

merchants,” adequately alleged a contract for the sale of goods under the UCC;

6

further, 

the trial court incorrectly viewed common counts and quantum meruit “as 

interchangeable terms.” DDT also contended the invoice established an enforceable 

written contract (by application of the prompt-dispute rule, a theory we have already 

discussed and rejected in Part I ante). 

However, the final statement of decision recites that “At the conclusion of the 

trial, the Court confirmed with [DDT’s] counsel on the record that he was in fact 

proceeding on a common count theory and not breach of contract.” (Italics added.) This 

is ambiguous because, as DDT correctly points out, a common count theory can be

breach of contract. But because this is a judgment-roll appeal, DDT cannot refute the 

trial court’s finding that DDT disclaimed reliance on its theory of breach at the end of 

trial. (See Estate of Kievernagel, supra, 166 Cal.App.4th at p. 1031.)

7

Moreover, DDT’s pleading practice undermines its contention on appeal that it 

consistently pursued a breach of contract theory in the trial court. The standard Judicial 

Council form for “COMPLAINT—Contract” includes boxes to be checked to specify 

whether the claim is a “Breach of Contract” or “Common Counts,” or “Other.” (Judicial 

Council Forms, form PLD-C-001, p. 2.) DDT used this form, but checked only the box 

specifying that the claim was for common counts. Consistent with this election, DDT 

attached the appropriate companion form for “Cause of Action—Common Counts,” but 

________________________________________________________________

6

 In its briefing on this point, DDT misquotes its cross-complaint so that it references an 

“attached contract” rather than an “attached contract/statement.” DDT’s redaction is 

misleading because the only purported written contract was DDT’s invoice, which would 

only be treated as a contract if the UCC applied as DDT argued. The presence of the 

alternative classification of the attached invoice as a “statement” is significant here. 

7

The fact DDT objected to one part of the tentative decision (to the effect that the parties 

agreed quantum meruit was the correct recovery) does not equate to an objection to the 

trial court’s later statement that DDT disclaimed its theory of breach, contrary to its 

suggestion. 
12

did not attach the separate form for “Cause of Action—Breach of Contract.” (See id., 

forms PLD-C-001(1) & 001(2).) Thus, taking DDT’s form complaint at face value, 

because DDT refrained from checking the box to allege a breach of contract, and 

refrained from attaching the appropriate form to allege a breach of contract, it is difficult 

to find it did plead a breach of contract. We perceive no good reason for DDT not to 

plead both theories by checking the correct boxes and attaching the correct forms, if it 

really intended to pursue both theories of recovery.

8

 

A statement of decision “covers only issues litigated in the case.” (Colony Ins. 

Co. v. Crusader Ins. Co. (2010) 188 Cal.App.4th 743, 750.) Based both on DDT’s

counsel’s presumed disclaimer at the end of trial as described by the statement of 

decision, and our examination of the pleadings, we cannot on this record find the trial 

court erred by concluding a theory of breach of contract was not at issue. 

Moreover, whether or not a contract theory was properly pleaded or disclaimed, 

because the trial court found on the facts that neither the invoice nor the communications 

between the DDT and Freidberg employees established the price or other significant 

terms, DDT’s purported theory of breach would have failed in any event. Accordingly, 

any error by the trial court in construing DDT’s amended cross-complaint provides no 

basis for reversal. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Mayes v. 

Sturdy Northern Sales, Inc. (1979) 91 Cal.App.3d 69, 83.) 

________________________________________________________________

8

 We also note that DDT did not move to amend its cross-complaint to conform to proof. 

(See Code Civ. Proc., § 469; 5 Witkin, supra, Pleading, § 1211, pp. 643-645.) 
13

DISPOSITION

The judgment is affirmed. Appellant DDT shall pay respondent Freidberg’s costs

on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

 /s/

Duarte, J.

We concur:

 /s/

Hull, Acting P. J.

 /s/

Murray, J.