NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

Respondent Michael Colello obtained a nonbinding State Bar arbitration award against his former attorneys, appellants Stephen Yagman and Yagman & Yagman & Reichmann (collectively, Yagman). Yagman then filed a complaint for trial de novo and Colello filed a cross-complaint. After Yagman successfully demurred to the cross-complaint on the ground that the applicable statute of limitations had expired (Code Civ. Proc., § 340.6),1 the trial court dismissed the cross-complaint as untimely and dismissed the complaint as moot.

In Colello's prior appeal, we affirmed the judgment of dismissal based on the statute of limitations defense. (Colello v. Yagman (Aug. 17, 2009, B209364) [nonpub. opn.].) In the present appeal, Yagman challenges the order denying his motion for attorney fees incurred in the prior appeal. The trial court denied the motion on the ground that it would be a "gross abuse of discretion" to award Yagman additional fees when, according to the arbitration award, Yagman has kept $261,000 in unearned fees. Finding no abuse of discretion, we affirm the order of denial.

FACTS AND PROCEDURAL BACKGROUND

In November 1999, Colello retained Yagman to represent him in a federal criminal matter. Colello paid Yagman $290,000 pursuant to the fee agreement. After the federal district court disqualified Yagman from representing Colello, Colello retained other counsel. Colello was convicted and imprisoned from January 2002 to June 2004.

In February 2005, Colello initiated a nonbinding State Bar arbitration proceeding against Yagman for a refund of unearned attorney fees. Yagman raised section 340.6's one-year limitations period as an affirmative defense. The arbitrators concluded that section 340.6 did not apply and that the claim was timely under the four-year limitations period of section 337. The arbitrators awarded Colello a $261,000 refund.

Yagman then filed the present action for trial de novo and Colello filed a cross-complaint for damages. Yagman successfully demurred to the cross-complaint based on the one-year limitations period of section 340.6. Given Colello's inability to recover any damages, the trial court dismissed the cross-complaint as untimely and dismissed the complaint as moot. In the prior appeal, we affirmed the judgment of dismissal under section 340.6 and awarded Yagman costs on appeal.

After the remittitur issued, Yagman moved to recover $64,768.50 in attorney fees incurred in the prior appeal. Yagman contended that he was entitled to fees as the prevailing party under Business and Professions Code section 6204, subdivision (d).2

In opposition, Colello submitted the arbitrators' $261,000 award in his favor. He argued that it would be inequitable to award Yagman additional fees, given the arbitrators' finding that Yagman has kept $261,000 in unearned fees. Colello stated that "[i]t would be obscene for Yagman to benefit further from this technical defense" of the statute of limitations. In addition, Colello argued that Yagman was not the prevailing party under the statute.3

In reply, Yagman argued that the arbitration award was not properly authenticated and was therefore inadmissible. Alternatively, Yagman argued that the arbitration award was irrelevant in light of the final judgment in his favor.4

The trial court took judicial notice of the arbitration award over Yagman's objection. Without deciding whether Yagman was the prevailing party under the statute, the trial court held that it would be "a gross abuse of discretion" to honor the fee request under the unique circumstances of this case.

The trial court stated: "The circumstances of this case are uncommon: Reflecting on its 39 years of experience (including over 15 as a judge), this Court can think of only a few instances in which a party has so sought to over-reach. Yagman has obtained and retained over [$260,000] paid to him by Colello (Colello originally paid $290,000), almost the entirety of which was for services which neither Yagman nor his firm ever rendered. It was the operation of the applicable statute of limitations that barred Colello from recovering any part of this amount. Now, Yagman (individually and through the firm bearing his name) seek[s] fees for its `victory' in reversing an error of law (but not of fact) by the fee arbitration panel. [¶] It would be a gross abuse of discretion to grant this fee request, viz., any award of fees is inappropriate and unmerited. The action at bar arose from Stephen Yagman's `outrageous, egregious, unethical' conduct (Arbitrators' Statement of Decision and Award, at 9:2), including his unreasonable refusal to refund any of the unearned fees. The Court declines, in any manner, to stamp its imprimatur on Mr. Yagman's opprobrious conduct."

Yagman timely appealed from the order denying the motion for attorney fees. (§ 904.1, subd. (a)(2).)

DISCUSSION

Yagman contends that the trial court abused its discretion in denying the motion for attorney fees. In deciding this issue, we will assume for the sake of discussion that Yagman was the prevailing party under Business and Professions Code section 6204, subdivision (d).

Yagman argues that the trial court abused its discretion by adopting the arbitrators' adverse findings without considering that the statute of limitations, which is a technical defense, was the sole defense raised in opposition to the claim. (See Koch v. Rodlin Enterprises (1990) 223 Cal.App.3d 1591, 1596 [termination of an action by a statute of limitations is deemed a technical or procedural, rather than a substantive, termination].) He contends that under Business and Professions Code section 6204, subdivision (d), the court was required to consider the relevant evidence, "i.e., (i) the reason why the arbitrators ruled in favor of Colello; and (ii) that [Yagman & Yagman & Reichmann] was Colello's counsel for nearly one year and earned the retainer [internal record reference omitted]." He asserts that by failing to consider these two factors (the one-sided nature of the evidence and the length of the attorney-client relationship), the trial court failed to exercise its discretion as required by statute, which was itself an abuse of discretion. (Citing People v. Sandoval (2007) 41 Cal.4th 825, 847-848 [a trial court's exercise of criminal sentencing discretion must be based on appropriate factors and a failure to exercise discretion may itself constitute an abuse of discretion]; Garcia v. Santana (2009) 174 Cal.App.4th 464, 477 [a trial court's failure to exercise discretion is itself an abuse of discretion].) The contention lacks merit.

We begin with the basic rule that "`[a] judgment or order of the lower court 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. . . .' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Accordingly, Yagman must show that the trial court failed to consider the relevant factors.

As we understand it, Yagman's contention is that because the attorney-client relationship lasted for a year and the substantive evidence at the arbitration hearing was one-sided, the trial court was precluded from considering the arbitrators' adverse findings that a refund was due. We disagree. The fact that the evidence was one-sided does not establish that the evidence was inherently untrustworthy or insufficient to support the arbitrators' findings. The fact that the attorney-client relationship lasted one year does not show that Yagman was entitled to retain the full $290,000 in fees.

The lack of evidence in opposition to Colello's claim does not undermine the validity of his claim. On the contrary, when a party produces no evidence in opposition to the merits of a claim, there is a risk that adverse findings will be entered on the strength of the uncontradicted evidence. "[W]hen a party testifies to favorable facts, and any contradictory evidence is within the ability of the opposing party to produce, a failure to bring forth such evidence will require acceptance of the uncontradicted testimony unless there is some rational basis for disbelieving it." (Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 728.)

Given the presumption that the trial court's order is correct (Denham v. Superior Court, supra, 2 Cal.3d at p. 564), Yagman must show that the trial court's reliance on the arbitrators' findings was erroneous. Yagman's only arguments on this point—that the evidence in support of the claim was one-sided and the attorney-client relationship lasted for one year—fail to invalidate the arbitrators' findings. Having received no reasonable explanation or argument as to why Colello's evidence was untrustworthy, we have no basis for concluding that the trial court's reliance on the arbitrators' findings constituted an abuse of discretion. In light of Yagman's failure to carry his burden on appeal, the order must be affirmed.

DISPOSITION

The order is affirmed. Colello is awarded his costs.

We concur:

EPSTEIN, P.J.

WILLHITE, J.