Filed 6/27/13 Zulli v. Graham CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


BRIAN ZULLI,                                                               2d Civil No. B242729
                                                                  (Super. Ct. No. 56-2011-00402116-CU-
     Plaintiff and Appellant,                                                   MM-SIM)
                                                                             (Ventura County)
v.

GEOFFREY GRAHAM, M.D.,

     Defendant and Respondent.


         Brian Zulli, proceeding in propria persona, appeals from a judgment of dismissal
entered after the trial court sustained, without leave to amend, the demurrer of Geoffrey
Graham, M.D., respondent, to appellant's second amended complaint. The complaint
alleged two causes of action. The first was entitled "CRIMINAL NEGLIGENCE WITH
BATTERY / MEDICAL MAL PRACTICE WITH VIOLATIONS OF EMTALA."1
(Bold omitted.) The second cause of action was for wrongful death. Because appellant's
opening brief completely fails to comply with the rules of appellate procedure, we deem
the appeal to be abandoned and dismiss it.
                                                Standard of Review



1
 "EMTALA" is an abbreviation for the federal Emergency Medical Treatment and Labor
Act. (42 U.S.C. § 1395dd.)
       "In reviewing a judgment following the sustaining of a demurrer without leave to
amend, we decide de novo whether the complaint states facts sufficient to state a cause of
action. [Citation.] We treat the demurrer as admitting all facts properly pleaded, but we
do not assume the truth of contentions, deductions or conclusions of law. [Citation.] If
we agree the complaint does not state a cause of action, we review the denial of leave to
amend for an abuse of discretion. [Citation.]" (Holland v. Jones (2012) 210 Cal.App.4th
378, 381.)
                               Rules of Appellate Procedure
       " '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.' " (Denham v. Superior Court (1970) 2 Cal.3d
557, 564.) "To demonstrate error, appellant must present meaningful legal analysis
supported by citations to authority and citations to facts in the record that support the
claim of error. [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 408.) "When an
issue is unsupported by pertinent or cognizable legal argument it may be deemed
abandoned and discussion by the reviewing court is unnecessary. [Citations.]" (Landry
v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699 -700.) "Hence,
conclusory claims of error will fail." (In re S.C., supra, 138 Cal.App.4th at p. 408.)
       The California Rules of Court (Rules) provide: "An appellant's opening brief must
. . . [p]rovide a summary of the significant facts limited to matters in the record." (Rule
8.204(d)(C).) Each factual reference must be supported "by a citation to the volume and
page number of the record where the matter appears." (Rule 8.204(a)(1)(C).)
       The Rules also require that a brief "[s]tate each point under a separate heading or
subheading summarizing the point . . . ." (Rule 8.204(a)(1)(B).) "This is not a mere
technical requirement; it is 'designed to lighten the labors of the appellate tribunals by
requiring the litigants to present their cause systematically and so arranged that those
upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as
they read, of the exact question under consideration, instead of being compelled to
extricate it from the mass.' [Citations.]" (In re S.C., supra, 138 Cal.App.4th at p. 408.)

                                              .2
"The failure to head an argument as required by California Rules of Court, rule
[8.204(a)(1)(B)] constitutes a waiver. [Citations.]" (Opdyk v. California Horse Racing
Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.)
       "[Appellant] is not exempt from the foregoing rules because he is representing
himself on appeal in propria persona. Under the law, a party may choose to act as his or
her own attorney. [Citation.] '[S]uch a party is to be treated like any other party and is
entitled to the same, but no greater consideration than other litigants and attorneys.
[Citation.]' [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow
correct rules of procedure. [Citations.]" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229,
1246-1247.)
                                            Discussion
       Appellant's opening brief completely fails to comply with the rules of appellate
procedure. Appellant omits a summary of the significant facts with supporting citations
to the record. He has not "[s]tate[d] each point under a separate heading or subheading
summarizing the point . . . ." (Rule 8.204(a)(1)(B).) The brief consists of conclusory
allegations without any factual or legal analysis. Although appellant cites legal
authorities, he does not explain how these authorities apply to this case.
       "We are not required to search the record to ascertain whether it contains support
for [appellant's] contentions. [Citation.] . . . [¶] . . . [I]t is not this court's function to serve
as [appellant's] backup appellate counsel." (Mansell v. Board of Administration (1994)
30 Cal.App.4th 539, 545-546; see also In re Marriage of Falcone (2008) 164 Cal.App.4th
814, 830 ["We are not bound to develop appellants' arguments for them"]; Niko v.
Foreman (2006) 144 Cal.App.4th 344, 368 ["One cannot simply say the [trial] court
erred, and leave it up to the appellate court to figure out why"].)
       "Consequently, it is appropriate for this court to deem the appeal abandoned and to
dismiss it. . . . Appellant's [opening] brief . . . simply failed to make any arguments to
support any theory of error." (Berger v. Godden (1985)163 Cal.App.3d 1113, 1120, fn.
omitted.) "[A]ppellant's failure to present any pertinent or intelligible legal argument in
his opening brief constitutes an abandonment of the appeal . . . . In this circumstance,

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dismissal of the appeal, with no consideration on the merits as to the correctness of the
judgment . . . from which the appeal is taken, is the proper disposition." (Ibid.)2
       Even if we were to consider the merits of the appeal, appellant would not prevail.
His causes of action are based on the allegedly negligent medical care of his mother,
Sylvia Zulli. Because of the negligent care, "Sylvia Zulli suffered a stroke . . . and died
on May 13, 2010." Appellant sued respondent, four other doctors, a hospital, and various
medical groups.3
       The complaint alleges that all of the defendants "failed to prescribe blood thinners
Cumidin [Coumadin] when [Sylvia was] discharged [from hospital] on March 25, 2010."
From March 12 through March 25, and March 29 through March 30, 2010, defendants
also "[f]ailed to screen and provide medical treatment of an urgently needed ERCP
[endoscopic retrograde cholangiopancreatogram] Procedure / a closed bial [bile] duct, a
life or death emergency." On March 29, 2010, Sylvia had a stroke and was rushed to
Paso Robles Hospital. "Defendants failed to provide medical treatment for a stroke on
March 29, 30, 2010."



2
  In Berger the original opening brief was struck for failure to comply with the Rules.
The appellate court deemed the appeal to be abandoned after the second brief also failed
to comply with the Rules. Here, on the other hand, there is no second brief because
appellant's opening brief was not struck. But this is a distinction without a difference.
The Berger court noted: "Although we are considering a second brief in this case, we
know of nothing to preclude an appeal from being deemed abandoned by virtue of an
initial brief's failure to present pertinent or comprehensible argument." (Berger v.
Godden, supra, 163 Cal.App.3d at p. 1120, fn. 7.) The Berger court's holding is not
limited to second briefs: "[W]e . . . hold that failure of an appellant in a civil action to
articulate any pertinent or intelligible legal argument in an opening brief may, in the
discretion of the court, be deemed an abandonment of the appeal justifying dismissal."
(Id., at p. 1119.)

3
 In a separate appeal in another case arising out of Sylvia's allegedly negligent medical
care and death, we affirmed a judgment of dismissal entered after the trial court
sustained, without leave to amend, the defendant's demurrer. (Zulli v. Mora (June 6,
2013) B242702.)
                                             .4
        The following allegations in the complaint are the only ones that specifically apply
to respondent: "On March 30, 2010, [after Sylvia had suffered a stroke and had been
admitted to Paso [sic, Los] Robles Hospital, respondent] told [appellant] he refused to
treat Sylvia Zulli [and that] she is going to die. He said Sylvia Zulli has brain cancer,
liver cancer, lung cancer, kidney cancer and pancreatic cancer. [Appellant] had Sylvia
Zulli brought to Simi Valley Hospital. [Respondent] called Elder Abuse and Simi Valley
Hospital and Cedars Hospital [correct name is Cedars-Sinai Medical Center] trying to
keep Sylvia Zulli from having medical treatment provided that would save her life."
Appellant alleged that Sylvia was admitted to Simi Valley Hospital on March 30, 2010,
the same day that respondent refused to treat her at Paso [sic, Los] Robles Hospital.
"Doctor Yu from Simi Valley Hospital said to [appellant that] Sylvia Zulli is suffering a
stroke due to no blood thinners. Sylvia is put on Lovenox [a blood thinner]
immediately."
        The complaint's allegations are insufficient to state a cause of action against
respondent. The complaint does not allege that Sylvia was under respondent's care
before March 30, 2010. Thus, he could not have been responsible for the failure to
prescribe blood thinners when Sylvia was discharged from the hospital on March 25,
2010.
        Moreover, the complaint does not state facts showing a causal connection between
respondent's alleged refusal to treat Sylvia on March 30, 2010, and her death 44 days
later on May 13, 2010. On March 30 appellant had Sylvia discharged from Paso [sic,
Los] Robles Hospital and placed in Simi Valley Hospital, where Dr. Yu immediately
began treating her with blood thinners for the stroke. Appellant does not explain how this
short delay in treatment contributed to Sylvia's death.
        The lack of a causal connection was the trial court's reason for sustaining the
demurrer: "[D]espite being told what needed to be addressed, [appellant] has failed to set
forth a clear causal connection between the acts and or omissions of [respondent] and the
stroke/death of Sylvia." The trial court was correct: "[W]hen . . . ' "the pleaded facts of
negligence and injury do not naturally give rise to an inference of causation[,] the

                                              .5
plaintiff must plead specific facts affording an inference the one caused the others." '
[Citation.] That is, the plaintiff must allege facts, albeit as succinctly as possible,
explaining how the conduct caused or contributed to the injury. [Citations.]" (Bockrath
v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 78-79.)
       In addition, appellant failed to allege facts sufficient to state a cause of action for
"criminal negligence with battery." "The battery theory should be reserved for those
circumstances when a doctor performs an operation to which the patient has not
consented." (Cobbs v. Grant (1972) 8 Cal.3d 229, 240.) Appellant did not allege that
respondent had performed surgery on Sylvia. He alleged that respondent had refused to
treat her.
                                         Disposition
       The appeal is dismissed. Respondent shall recover his costs on appeal.
              NOT TO BE PUBLISHED.



                                                           YEGAN, J.

We concur:



              GILBERT, P.J.



              PERREN, J.




                                               .6
                   Rebecca S. Riley, Judge
              Superior Court County of Ventura


            ______________________________




Brian Zulli, in pro per, Appellant.


Bertling & Clausen; Steve H. Shlens, for Respondent.




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