Spanos v. Dreyer, Babich, Buccola & Callaham CA3

California Court of Appeal Jun 27, 2016 No. C077235Unpublished

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Holding. The court affirmed the judgment because the appellant failed to include the operative complaint in the appellate record, rendering it impossible to conduct the required de novo review of the demurrer.

Issues

Whether the trial court erred in sustaining a demurrer to the first amended complaint in a legal malpractice action.
Whether the appellant met the burden of providing an adequate record for appellate review.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It was Spanos’s burden, as the appellant, to provide us with a record adequate for review.”

“Accordingly, because Spanos has not supplied us with an adequate record for review, we decline to address her substantive claims.”

Filed 6/27/16 Spanos v. Dreyer, Babich, Buccola & Callaham CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) ----

ANGELA SPANOS, C077235

Plaintiff and Appellant, (Super. Ct. No. 34-2013- 00137950-CU-PN-GDS) v.

DREYER, BABICH, BUCCOLA & CALLAHAM, LLP, et al.,

Defendants and Respondents.

In this legal malpractice case, plaintiff Angela Spanos (Spanos) sued her former lawyers, Dreyer, Babich, Buccola & Callaham, LLP, and Robert Bale (collectively, Dreyer), alleging malpractice in connection with a mediation session that settled both an underlying tort case and a related workers’ compensation claim. After a hearing at which Spanos’s counsel agreed the first amended complaint did not state a cause of action, the trial court sustained a demurrer with leave to amend. After Spanos did not amend, the trial court entered a judgment from which she timely appealed.

As the parties brief this case, it turns on the application of the mediation privilege (Evid. Code, § 1119) which has been interpreted by our Supreme Court to bar legal malpractice claims arising out of mediation. This bar applies even in cases of alleged fraud, deception, and coercion by counsel, because the mediation privilege makes it impossible to know what was said and done during the mediation. (Cassel v. Superior Court (2011) 51 Cal.4th 113, 118-119, 128-138; see Amis v. Greenberg Traurig LLP (2015) 235 Cal.App.4th 331, 339; Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 163.) Spanos offers reasons why her case is exceptional, and Dreyer defends the judgment. However, the first amended complaint is not in the record on appeal. In the factual section of her brief, Spanos cites to purported excerpts of the operative complaint contained in her opposition to Dreyer’s motion to strike that complaint. She also cites to the underlying settlement agreement--of which she sought judicial notice in the trial court--although it does not appear the trial court granted that request. The factual section of Dreyer’s brief cites to Spanos’s original complaint, filed by her in propria persona, attached to a declaration filed in support of Dreyer’s demurrer, Dreyer’s points and authorities, and Dreyer’s motion to strike the first amended complaint. On appeal from an order sustaining a demurrer, we review the operative complaint to determine whether a cause of action is stated. (See Blank v. Kirwin (1985) 39 Cal.3d 311, 318.) “We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Ibid.) We cannot do this without the operative complaint.1

Spanos v. Dreyer, Babich, Buccola & Callaham CA3

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ANGELA SPANOS, C077235

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