Filed 6/6/13 Zulli v. Mora 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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. B242702
                                                                       (Super. Ct. No. 56-2011-00402118-
     Plaintiff and Appellant,                                                    CU-MM-SIM)
                                                                                (Ventura County)
v.

LAWRENCE MORA,

     Defendant and Respondent.


                   Brian Zulli appeals a judgment of dismissal following an order by the trial
court sustaining a demurrer to his second amended complaint without leave to amend.
(Code Civ. Proc., § 581, subd. (f)(1).)1 We affirm.
                                  FACTS AND PROCEDURAL HISTORY
                   At the end of her life, 81-year-old Sylvia Zulli suffered from heart failure,
vascular strokes, and pancreatic cancer with liver and lung metastases.2 During March
through May 13, 2010, she was admitted to Los Robles Hospital, Simi Valley Hospital,
and Cedars-Sinai Medical Center ("Cedars-Sinai"), and was treated by many physicians,



1
 All further statutory references are to the Code of Civil Procedure unless stated
otherwise.
2
  We shall refer to the parties as "Brian" and "Sylvia," not from disrespect, but to ease
the reader's task.
nurses, and other medical professionals. Doctor Lawrence Mora was Sylvia's primary
care physician during her hospitalization at Cedars-Sinai.
                On August 12, 2011, Brian filed a complaint in propria persona against
Mora and others regarding Sylvia's allegedly negligent medical treatment. He later filed
a first amended complaint, to which Mora demurred. The trial court sustained the
demurrer and permitted Brian leave to amend the first amended complaint.
                On March 16, 2012, Brian filed a 165-page second amended complaint
alleging causes of action for elder abuse and neglect, gross negligence, failure to
properly diagnose and properly treat, lack of informed consent, intentional infliction of
emotional distress, criminal negligence, and wrongful death, among others. He
requested compensatory and punitive damages against Mora and 18 named defendants,
including Cedars Sinai, Sylvia's medical insurers, and her treating physicians and
nurses. Brian's allegations against Mora include Mora's refusal to perform bile-duct
surgery on Sylvia, and to provide her with heart medications or a functioning
pacemaker, and the unauthorized use of a "Do Not Resuscitate" order. Brian also
alleged that Mora ordered and Sylvia received a breathing apparatus that bruised
Sylvia's nose and forehead.
                Brian alleged that Sylvia died on May 13, 2010, when "a nurse instructed
by D[r]. Balfe injected Sylvia's [intravenous line] with a substance that caused Sylvia's
vitals to immediately drop. . . . Within a minute of the substance being administered to
Sylvia Zulli's IV, Sylvia died. No code blue was ever issued. No one came until after
Sylvia died."
                On May 29, 2012, the parties appeared and argued Mora's demurrer. The
trial court then sustained the demurrer to the second amended complaint without leave
to amend, and later entered a judgment dismissing Zulli's action. In ruling, the court
stated: "Plaintiff has failed to set forth a clear causal connection between the acts and or
omissions of Defendant Mora and the stroke/death of Sylvia. Further this cause of
action is time-barred by [Code of Civil Procedure section] 340.5."



                                             2
               Zulli appeals and contends that the trial court erred by sustaining Mora's
demurrer without leave to amend.
                                       DISCUSSION
               Pursuant to sections 430.30, subdivision (a), and 430.50, subdivision (a), a
defendant may demur to a complaint or a part thereof if a defect appears on the face of
the complaint. Section 430.10, subdivision (e) permits a party to demur to a complaint
that "does not state facts sufficient to constitute a cause of action."
               On appeal from a judgment dismissing an action following the sustaining
of a demurrer without leave to amend, our standard of review is de novo, i.e., we
exercise our independent judgment to determine whether the complaint alleges facts
sufficient to state a cause of action under any possible legal theory. (Lafferty v. Wells
Fargo Bank (2013) 213 Cal.App.4th 545, 564.) We treat the demurrer as admitting all
material facts property pleaded, but not contentions, deductions, or conclusion of fact or
law. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1189, fn. 1;
Lafferty, at p. 564.).) We also give the complaint a reasonable interpretation, reading it
in context and as a whole, to determine whether plaintiff has stated a cause of action.
(Lafferty, at p. 564.)
               The trial court did not err by sustaining the demurrer because Brian's
conclusory allegations do not state a cause of action under any legal theory.
               The first cause of action entitled "Elder Abuse and Elder Neglect," fails to
state a cause of action because "neglect" within the Elder Abuse and Dependent Adult
Civil Protection Act does not constitute "negligence" of a healthcare provider. (Welf. &
Inst. Code, § 15600 et seq.; Delaney v. Baker (1999) 20 Cal.4th 23, 34.) Welfare and
Institutions Code section 15657.2 provides: "Notwithstanding this article, any cause of
action for injury or damage against a health care provider, as defined in Section 340.5 of
the Code of Civil Procedure, based on the health care provider's alleged professional
negligence, shall be governed by those laws which specifically apply to those
professional negligence causes of action."



                                              3
               The second cause of action entitled "Gross Negligence" fails because
California does not recognize a cause of action for "gross negligence." (Continental Ins.
Co. v. American Protection Industries (1987) 197 Cal.App.3d 322, 328-330.)
Moreover, Brian has not alleged "an extreme departure from the ordinary standard of
conduct" by Mora's care. (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th
1072, 1082.)
               The third cause of action entitled "Failure to Diagnose or Erroneous
Diagnos[is]" and the fourth cause of action entitled "Failure to Treat or Erroneous
Treatment" allege identical facts and allegations of negligence. Brian may not split his
cause of action for negligence into separate claims to maximize damages. (Crowley v.
Katleman (1994) 8 Cal.4th 666, 681-682 [the violation of one primary right into two
causes of action contravene the rule against "splitting" a cause of action].) "'Even where
there are multiple legal theories upon which recovery might be predicated, one injury
gives rise to only one claim for relief.'" (Ibid.)
               The fifth cause of action entitled "Unauthorized Treatment or Lack of
Informed Consent" fails to state any facts sufficient to constitute an independent cause
of action. Moreover, the theory of lack of informed consent is subsumed within the
cause of action of negligence. (Cobbs v. Grant (1972) 8 Cal.3d 229, 238.)
               The sixth cause of action entitled "Breaches of Doctor-Patient
Confidentiality" fails to state or describe any breach of confidential duty and the
damages proximately caused thereby. (Mosier v. Southern Cal. Physicians Ins.
Exchange (1998) 63 Cal.App.4th 1022, 1044 [describing elements of cause of action for
breach of fiduciary duty].)
               The seventh cause of action entitled "Vicarious Liability Prescription
Drug Errors" does not state facts sufficient to constitute a cause of action because Brian
alleges that Mora authorized Sylvia's medications, "but other doctors that D[r]. Mora
has brought in as consultants . . . without D[r]. Mora's permission are changing [his]




                                              4
orders." The allegation is insufficient to state a cause of action for negligence to hold
Mora liable for the acts of others.
              The eighth cause of action is a claim for punitive damages. The claim is
procedurally barred because, among other things, Brian did not first seek and obtain an
order from the trial court. Section 425.13, subdivision (a) provides that "no claim for
punitive damages shall be included in a complaint or other pleading unless the court
enters an order allowing an amended pleading that includes a claim for punitive
damages to be filed."
              The ninth cause of action entitled "Intentional Infliction of Emotional
Distress" fails to state facts sufficient to constitute a cause of action because Brian does
not allege the requisite element of extreme and outrageous conduct by Mora. (Hughes
v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)
              The tenth cause of action entitled "Criminal Negligence With Battery"
does not state sufficient facts to constitute any cause of action pursuant to established
law. Moreover, Brian fails to allege any surgery or treatment that Mora performed on
Sylvia. (Cobbs v. Grant, supra, 8 Cal.3d 229, 240 [battery theory of medical
malpractice applies when a physician performs an operation or treatment to which the
patient has not consented].)
              The eleventh cause of action entitled "Wrongful Death []" does not state
sufficient facts alleging that Mora's treatment of Sylvia was a substantial factor in
causing her death. Indeed, Brian alleges that an unknown person injected his mother
with a substance that caused her death within minutes.
              To the extent that we consider the second amended complaint to allege a
cause of action for professional medical negligence, section 340.5 precludes Brian's
action. That section provides a one-year limitations period from the date a plaintiff
discovers the injury. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198
Cal.App.4th 396, 413-414 [plaintiff suspected her father was not receiving proper




                                             5
medications on the day he died; she had one year following date of his death to bring an
action for professional negligence].)
              The judgment is affirmed. Mora shall recover costs on appeal.
              NOT TO BE PUBLISHED.




                                         GILBERT, P.J.
We concur:




              YEGAN, J.




              PERREN, J.




                                           6
                   Rebecca S. Riley, Judge

              Superior Court County of Ventura

            ______________________________


Brian Zulli, in pro. per., for Plaintiff and Appellant.

Bertling & Clausen, LLP, Steve H. Shlens for Defendant and Respondent.
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