Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Judith Vander Lans, Judge, Super. Ct. No. NC 038285
Donna Bader for Defendant, Cross-Complainant and Appellant.
Wise Pearce Yocis & Smith and Michael J. Pearce for Plaintiff, Cross-Defendant and Respondent.
ROTHSCHILD, J.
Defendant and cross-complainant Supara Ratanasadudi (defendant) appeals from the judgment following a jury’s special verdict in favor of plaintiff and cross-defendant M. Darlene Allen (plaintiff) in this suit over a failed real estate transaction. Defendant contends the jury’s verdict is not supported by substantial evidence. This contention fails because defendant did not include in the record all the material testimony on the issues she contends are without substantial evidence. Therefore, we affirm the judgment.
FACTS AND PROCEEDINGS BELOW
The following facts are not in dispute.
Plaintiff is an attorney licensed to practice in the State of California. Prior to the events leading up to this lawsuit plaintiff and defendant had been friends for several years. Plaintiff had also provided legal services to defendant in the past.
In 2004, plaintiff and defendant commenced negotiations for the sale of defendant’s Long Beach duplex to plaintiff. These negotiations eventually led to a contract between the parties. Subsequently, defendant failed to complete the transaction and plaintiff brought suit against defendant for breach of contract. Defendant cross-complained against plaintiff for legal malpractice and breach of fiduciary duty.
Following a 15 day trial, the jury returned a special verdict in favor of plaintiff and awarded her $207,000 in damages. In answer to the questions submitted to it the jury made the following findings. The parties entered into a contract for the sale of the duplex and defendant breached that contract. The plaintiff did not exercise such undue influence over defendant that the contract should be unenforceable. During the time of the transaction no attorney-client relationship existed between plaintiff and defendant and plaintiff did not provide legal services to defendant during that time. Plaintiff’s prior attorney-client relationship with defendant did not result in any advantage over defendant at the time of the transaction.
Defendant moved for a new trial and for judgment notwithstanding the verdict on the grounds that substantial evidence did not support the verdict and that the verdict was against the law. The trial court denied the motions and defendant filed a timely notice of appeal.
DISCUSSION
I.
FAILURE TO DESIGNATE THE ISSUES UNDER RULE 8.130, SUBDIVISION (A)(2).
In designating the reporter’s transcript, defendant designated only the testimony of the plaintiff, the defendant’s certified public accountant, John Martin, and the escrow officer, Jeri Schouw. She did not designate the testimony of either party’s expert witness on the issue of formation of an attorney-client relationship.
California Rules of Court, rule 8.130, subdivision (a)(2) states: “If the appellant designates less than all the testimony, the notice must state the points to be raised on appeal; the appeal is then limited to those points unless, on motion, the reviewing court permits otherwise.” In her designation of testimony defendant stated: “Plaintiff M. Darlene Allen’s and John Martin, C.P.A.’s testimony specifically relates to the existence of an attorney-client relationship between the parties, whether plaintiff had a fiduciary duty to defendant, and whether plaintiff gave legal advice to defendant. Additionally, plaintiff M. Darlene Allen’s and Jeri Schouw’s testimony specifically relates to the existence or non-existence of an enforceable contract between the parties.”
Plaintiff filed a motion to dismiss the appeal on the ground that defendant’s designation of the reporter’s transcript did not comply with rule 8.130, subdivision (a)(2) because it did not specify the points to be raised on appeal. Defendant filed an opposition to the motion. We did not rule on the motion because plaintiff withdrew it after defendant filed her opening brief in which her only argument is that the verdict is not supported by substantial evidence.
In her brief plaintiff renews her challenge to the designation of the reporter’s transcript. She argues that because rule 8.130, subdivision (a)(2) limits defendant’s appeal to the points stated in her designation, and the designation states no points, the appeal should be dismissed.
Giving defendant’s designation of the record a liberal construction (cf. Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20-21 [notice of appeal must be liberally construed]), and reading it in conjunction with her notice of appeal and her motions for new trial and judgment notwithstanding the verdict, we conclude that the designation was sufficient to put plaintiff on notice that defendant’s appeal would be based on the insufficiency of the evidence to support the verdict on the issue of an attorney-client relationship between the parties. Plaintiff conceded as much by withdrawing her motion to dismiss the appeal after defendant filed her opening brief and by not seeking leave to augment the record.
Defendant’s notice of appeal states she is appealing from the judgment and the orders denying her motions for judgment notwithstanding the verdict and for a new trial.
II.
FAILURE TO PROVIDE AN ADEQUATE RECORD ON APPEAL
“‘It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, citations omitted.) Accordingly, if the appellant contends the evidence is insufficient to support the jury’s finding on a particular issue, the burden is on appellant to set forth “‘all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived.’” (Ibid., citations omitted.)
Defendant failed to include in the record all of the material testimony on the existence or non-existence of an attorney-client relationship between plaintiff and defendant because defendant did not designate the testimony of the parties’ expert witnesses on this issue. We have only defendant’s bare assertion that the there is no other testimony pertinent to the issue. We do not suggest that defendant made this assertion in bad faith. But whether testimony is material to an issue is a question for us to determine based on something more than the designating party’s viewpoint.
DISPOSITION
The judgment is affirmed. Respondent is awarded her costs on appeal.
We concur: MALLANO, P. J., HASTINGS, J.
Retired Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.