Filed 10/4/13 Casello & Lincoln v. Tong CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

CASELLO & LINCOLN,

 Plaintiff and Respondent,

v.

TU MY TONG,

 Defendant and Appellant.

 G046566

 (Super. Ct. No. 07CC12396)

 O P I N I O N 

Appeal from a judgment of the Superior Court of Orange County, Steven L. 

Perk, Judge. Affirmed.

Tu My Tong, in pro. per., for Defendant and Appellant.

Casello & Lincoln and James H. Casello for Plaintiff and Respondent.

* * *
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A jury awarded plaintiff Casello & Lincoln damages in the amount of 

$87,765 in this attorney fee collection action against defendant Tu My Tong.1 Tong 

appeals the judgment, but her opening brief is incoherent (Tong did not file a reply brief). 

Tong fails to clearly identify alleged errors by the court. She also fails to provide legal 

citations and analysis to support her contentions of error (to the extent such alleged errors 

can be identified). Tong fails to cite to the record to support most of her factual 

assertions. Most of the asserted facts in the opening brief have nothing to do with the 

legal issues that can be identified. Tong‟s appendix does not include page numbers on 

most pages, making it difficult to find the evidence to which the brief cites (when it 

actually does so). To the extent we can discern Tong‟s contentions, they are 

unmeritorious. We therefore affirm the judgment.

FACTS

As explained in Casello & Lincoln v. Tong (June 25, 2010, G041271 

[nonpub. opn.] (Casello I), “this is a debt collection case. The debt in question arose out 

of [Tong‟s] retention of, in early 2007, the law firm of Casello & Lincoln to defend her in 

two Los Angeles cases . . . . In late 2007, Casello & Lincoln filed this action against 

Tong for the unpaid balance of their fees, about $82,000. Tong, then represented by 

counsel . . . , responded in January 2008 with a cross-complaint for legal malpractice, the 

basic theories being that the firm overbilled for their work and dismissed claims against 

certain defendants . . . that they should not have.” In Casello I, we reversed a 2008 

judgment in Casello & Lincoln‟s favor because the trial court abused its discretion by not 

granting a continuance to Tong to allow her time to recover her legal file from an 

 

1

Judgment was entered in favor of Casello & Lincoln in the amount of 

$12,518.68 after the court took into account costs, interest, and amounts already collected 

by Casello pursuant to a prior judgment that was subsequently reversed. 
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attorney who was arrested just before the trial began. We refer the parties to Casello I for 

further discussion of what occurred prior to our reversal of the judgment and our rationale 

for reversing the first judgment.

On remand, a three day jury trial commenced on January 31, 2012. 

Attorney James Casello testified that Tong signed his firm‟s standard representation 

agreement in February 2007. Casello authenticated an exhibit setting forth billing 

summaries for all the matters worked on during his firm‟s representation of Tong; Tong 

“never disputed any of them until we stopped representing her.” Casello also 

authenticated copies of all the invoices for the four matters. These exhibits were received 

into evidence, although they are not included with the appellate record. Casello also 

noted that a “jade” (as alleged by Tong) plaque given to him by Tong was a gift for his 

family after winning a trial for Tong and not a payment of attorney fees.

DISCUSSION

“„A judgment . . . is presumed correct. All intendments and presumptions 

are indulged to support it on matters as to which the record is silent, and error must be 

affirmatively shown. This is not only a general principle of appellate practice but an 

ingredient of the constitutional doctrine of reversible error.‟” (Denham v. Superior Court

(1970) 2 Cal.3d 557, 564.) “„A necessary corollary to this rule is that if the record is 

inadequate for meaningful review, the appellant defaults and the decision of the trial 

court should be affirmed.‟” (Gee v. American Realty & Construction, Inc. (2002) 99 

Cal.App.4th 1412, 1416.) To demonstrate prejudicial error, an appellant must provide an 

adequate record of the trial court proceedings and include specific page citations in its 

briefs illustrating the error. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 

Cal.4th 121, 132; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) 

Issues not specifically raised at trial are forfeited on appeal. (Premier Medical 
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Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 

Cal.App.4th 550, 564.) Moreover, issues not specifically raised in the appellate briefs are 

waived. (Roberts v. Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1410.)

For the reasons noted above in the introduction to this opinion, this court 

would be justified if it affirmed the judgment without any further analysis. Tong‟s brief 

and appendix fail to meet the minimal standards required by the appellate process. 

Nevertheless, to the extent we can divine Tong‟s arguments, we will address them.

With regard to a claim that the evidentiary record is insufficient to support 

factual findings underlying the judgment, we apply the substantial evidence standard of 

review. “Under the substantial evidence standard of review, „we must consider all of the 

evidence in the light most favorable to the prevailing party, giving it the benefit of every 

reasonable inference, and resolving conflicts in support of the [findings]. [Citations.] [¶] 

It is not our task to weigh conflicts and disputes in the evidence; that is the province of 

the trier of fact. Our authority begins and ends with a determination as to whether, on the 

entire record, there is any substantial evidence, contradicted or uncontradicted, in support 

of the judgment.‟” (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 

Cal.App.4th 1257, 1266.) 

To the extent Tong is making an argument that there is insufficient

evidence supporting the judgment (e.g., the evidence does not support the award of 

damages against her, the jury‟s implied finding that the “jade” plaque was a gift to 

Casello, the legitimacy of the agreement relied on by Casello & Lincoln, and the defense 

verdict on Tong‟s claims against Casello & Lincoln), we reject Tong‟s argument. The 

jury was entitled to credit the testimony of Casello and the exhibits put forward by 

Casello in support of Casello & Lincoln‟s claims. The jury was entitled to reject Tong‟s 

testimony to the contrary.

To the extent Tong is contending the court erred by not granting a 

continuance to allow her more time to secure the appearance of an expert at trial, it is 
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unclear whether Tong actually requested a continuance. Even if it is assumed that she 

requested a continuance, there is no showing that the court abused its discretion in 

refusing a further delay of this matter to accommodate Tong‟s failure to secure the 

presence of her own expert witness at trial. (Jurado v. Toys “R” Us, Inc. (1993) 12 

Cal.App.4th 1615, 1617 [decision to grant or deny continuance “will not be disturbed on 

appeal absent a clear showing of abused discretion”].)

To the extent Tong is contending money collected pursuant to the first 

judgment should have been returned to her following the reversal of the first judgment, 

the issue is moot. The prior collection of funds by Casello & Lincoln from Tong 

pursuant to the first judgment was offset by the court when it entered the second 

judgment.

Tong implies that the jury, not the court, should have been tasked with 

awarding interest to Casello & Lincoln, but she cites authorities applicable to noncontract claims. (Civ. Code, § 3288; Barry v. Raskov (1991) 232 Cal.App.3d 447, 457.)

DISPOSITION

The judgment is affirmed. Casello & Lincoln shall recover costs incurred 

on appeal.

IKOLA, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.